On Friday, the National Labor Relations Board issued notice of the first stage of newly proposed representation case regulations, which were published this morning in the Federal Register. The Republican Board majority advanced the proposed rulemaking, over the dissenting vote of the lone Democrat, Lauren McFerran.

Summary of “Stage One”
The proposed regulations, if they become final, will change three current policies for dealing with situations that sometimes arise before the Board.

Blocking charges.” The Board’s policy on unfair labor practice charges that might interfere with holding a free and fair election, called “blocking charges,” would be changed significantly. Currently, elections are blocked indefinitely by pending unfair labor practice charges. Under the proposed regulations, elections would proceed even if an unfair labor practice charge were filed, under a “vote and impound” policy. In other words, the election would be held and the ballots would be impounded until the unfair labor practice charges were resolved. The Board noted in a Fact Sheet issued with the proposal that blocking charges are usually filed by established unions that are trying to delay decertification elections.

Voluntary recognition” and “contract” bars. Under current Board policy, if an employer voluntarily recognizes a union under Section 9(a) of the National Labor Relations Act, that recognition bars a Board election “for a reasonable time” afterward – six months to a year – on the theory that a union needs a reasonable time after voluntary recognition to get or fail to get a collective bargaining agreement. If the union and employer enter into a collective bargaining agreement, the agreement would bar a new election for the contract term up to three years. The Board’s proposed regulations suggest returning to the rule in the 2007 case of Dana Corp. Under that rule, for voluntary recognition under Section 9(a) to bar a subsequent representation petition, and for a post-recognition collective bargaining agreement to give rise to a contract bar, the employees must receive notice that voluntary recognition was granted. Then, there must be a 45-day open period during which another labor organization can file a petition to represent the employees in the bargaining unit.

“Voluntary recognition” and “contract” bars in the construction industry. Current policy allows, in the construction industry, Section 8(f) pre-hire agreements to convert to voluntary recognition relationships under Section 9(a) of the NLRA, thus giving rise to a contract that can bar an election. A pre-hire agreement is lawful, even without proof that a majority of the employees in a bargaining unit support the union. But generally a Section 8(f) agreement cannot be the basis for a bar to an election petition by a rival union or for decertification.

Since 2001, under the NLRB decision in Staunton Fuel & Material, a Section 8(f) pre-hire agreement can be used by a union to establish a Section 9(a) voluntary recognition bar and, from that, a contract bar of up to three years, based solely on language in the parties’ agreement. It is enough for the contract to state that the union requested voluntary recognition under section 9(a) and obtained it with evidence – or a mere offer of evidence – that demonstrated employees’ majority support for the union.

Under the proposed regulations, the union would need “extrinsic evidence” that the recognition under Section 9(a) was based on a “contemporaneous showing of majority employee support.” A mere statement in a collective-bargaining agreement, or the offer, of evidence of majority employee support, would no longer be enough to establish the Section 9(a) relationship and a contract bar. In its Fact Sheet, the Board explained,

[I]n order to restore the protections of employee free choice to those employees engaged in the construction industry, the amendment proposes that an employer and labor organization representing employees ... can only establish a Section 9(a) bargaining relationship based on positive evidence, apart from contract language, of the labor organization’s majority support.

The extrinsic or positive evidence might include union authorization cards or signatures on a petition.

Reason for the changes, and Member McFerran’s dissent

According to the Board majority (Chairman John Ring and Members William Emanuel and Marvin Kaplan),

The Board believes, subject to comments, that the proposed amendments will better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a Board-conducted secret ballot election.

Chairman Ring was quoted in the NLRB Fact Sheet as saying, “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections.”

Member Lauren McFerran, in her dissent, asserted that the Board’s proposal would actually undermine the goal of protecting employee free choice. She said, “The majority’s proposal, at least at this stage of the proceedings, fails to meet even minimal standards of reasoned decision-making. . . . The proposal relies on faulty premises, fails to ask critical questions, and fails to analyze the relevant data and agency experience.”

What’s next

The proposed regulations are subject to a 60-day public comment period, followed by further Board review and consideration, before a final version is issued and new regulations can take effect. In the meantime, other proposed regulations may soon be coming from the Board.

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