On August 9, 2019, the National Labor Relations Board announced a Notice of Proposed Rulemaking. The Notice, which was issued on August 12, 2019, covers three proposed rules. A majority of the Board is proposing to change the Blocking Charge Policy, the Voluntary Recognition Bar and rules governing union recognition in the construction industry.
The proposed change to the Blocking Charge Policy would modify the Board’s long-standing rule that requires a union representation election (or decertification election) be placed on hold if an unfair labor practice (ULP) charge has been filed regarding conduct leading up to the election. Often times, ULP charges are filed to simply delay the election as a tactical move. The revised Blocking Charge rule would create a vote and impound process. In other words, the election would not be blocked by the filing an ULP charge, but would be conducted. However, the votes would not actually be counted until after the ULP charge is resolved.
The Voluntary Recognition Bar currently provides that the representational status of a union voluntarily recognized by the employer cannot be challenged for a “reasonable period of time” after the voluntarily recognition. Since 2011, the reasonable period of time has been defined as six months to a year. The proposed rule would reinstate a pre-2011 rule, which provides that employees or a rival union could challenge the union’s status during the 45-day period following the voluntarily recognition.
The revision to the rules governing recognition in the construction industry would require unions to actually have evidence to demonstrate that a majority of employees favored union recognition. In the past, a written agreement that such majority support existed was enough. Moving forward, in order to protect employee free choice, actual evidence, other than the contract, must be provided.
The Notice of Proposed Rulemaking continues a recent trend for the Board. While it does have detailed rules and regulations, often the Board makes and changes its rules by decision-making. Recently, the Board has been committed to making more changes through the formal rulemaking process. Formal rulemaking provides for the opportunity to review and comment on the rules prior to implementation. In addition, the rulemaking process also allows for more clarity, as rules are not connected to specific fact patterns, but are, hopefully, more readily understood and implemented.
Greater transparency and predictability will likely be welcomed for many employers trying to keep up with the Board’s ever-changing policies and rules.