United States: National Labor Relations Board Proposes Rulemaking Concerning Certain Union Representation Processes

On August 9, 2019, the National Labor Relations Board (Board) published a Notice of Proposed Rulemaking (NPRM) proposing three amendments to the representation election regulations contained in 29 CFR Part 103. The first proposed amendment would modify the Board's blocking charge policy by establishing a vote-and-impound procedure for processing a representation petition when a party seeks to stay an election while an unfair labor practice (ULP) charge is pending. The second proposed amendment would change the current recognition-bar policy by re-establishing a notice requirement and a 45-day open period for filing an election petition following an employer's voluntary recognition of a labor organization. The third proposed amendment would overrule Board law holding that contract language, by itself, can establish the existence of a Section 9(a) bargaining relationship for companies in the construction industry.

The NPRM on these representational issues, none of which are currently codified in the Board's rules and regulations, is expected to be the first of several efforts by the Board to revise existing election procedures. In announcing the proposed rulemaking, Board Chairman John F. Ring stated:

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. We believe that the changes we propose today further the goal of protecting this vital freedom. Our proposals are, however, subject to comment, and we look forward to reviewing the public's input with an open mind.1

The following discusses the NPRM's three proposed amendments:

Substitution of a Vote-and-Impound Procedure for Current Blocking Charge Policy

A "blocking charge" is an unfair labor practice charge filed by a party to a representation proceeding that alleges conduct that would interfere with employee free choice in an election, if the election were to proceed. Blocking charges occur most often where a union is facing a decertification petition and likely to lose the employee-driven election to rid themselves of union representation. In response, it is common for a union to file ULP charges against the employer and then claim that the election cannot go forward until the charge is resolved because allegedly there is doubt on the ability of employees to make a free and fair choice about representation.

While blocking the election is discretionary, the Board normally holds the decertification petition in abeyance pending determination of the ULP charge. Elections are often delayed by months or even years, thereby affecting employees' statutory right to accept or reject union representation. As the Board noted in the NPRM, it "is inclined to believe, subject to comments, that the current blocking charge policy impedes, rather than protects, employee free choice."2

The NPRM proposes to replace the current blocking charge policy with a vote-and-impound procedure that would allow elections to move forward. Under the proposed change, regional directors would continue to process a representation petition and would conduct an election even when an unfair labor practice charge and blocking request have been filed. If the charge has not been resolved prior to the election, the ballots would remain impounded until the Board makes a final determination regarding the charge. As explained by the Board's General Counsel:

Adoption of a vote-and-impound protocol while the region investigates a charge would allow for balloting when the parties' respective arguments are fresh in the mind of unit employees. Balloting would occur with the understanding that allegations have been proffered, regardless of whether probable cause has been found; thus, neither the charging party nor the charged party would be in control of the narrative underlying the election campaign. Should the director find that the ULP charge is without merit, the count and resulting tally of ballots could occur immediately, rather than after a further delay while the petition is unblocked, an election is either negotiated or directed, the mechanics of the pre-election period dispensed with, and balloting take place. Moreover, any burden in conducting elections created where the ballots may never be counted is more than offset by the benefit of preserving employees' free choice. Indeed, the preservation of employee free choice through a vote and impound procedure far outweighs any other concerns.3

Modification to Current Immediate Voluntary Recognition Bar

Voluntary recognition occurs where an employer opts to recognize a union based on the union's showing of majority support, but without requiring a secret-ballot election. While voluntary recognition is indisputably lawful, there is an accompanying issue of how long employees must wait before challenging the majority status of a voluntarily recognized union. The period during which such challenges are not permitted is referred to as the "voluntary recognition bar," and this is one of the issues the NPRM addresses. Explanation of the NPRM, however, requires a short history lesson.

The Board's first position on the voluntary recognition bar was announced in 1966, when the Board found that voluntarily recognized unions must be afforded a "reasonable" time to bargain and execute resulting contracts. Keller Plastics Eastern, Inc., 157 NLRB 583 (1966). Shortly thereafter, the Board found that voluntary recognition of a union would immediately bar the filing of an election petition for a "reasonable" amount of time. Sound Contractors, 162 NLRB 364 (1966).

In 2007, the Board modified the immediate voluntary recognition bar. The Board held that no election bar would be imposed unless (1) employees in the bargaining unit received notice of the voluntary recognition and their right to file a decertification petition or support the filing by a rival union within 45 days of receiving notice, and (2) 45 days passed from the date of notice without the filing of a valid petition. Dana Corp., 351 NLRB 434 (2007). In making this change, the Board reiterated a clear preference for secret-ballot elections as the superior method of protecting the freedom of choice guaranteed to employees under Section 7 of the National Labor Relations Act (Act).

In 2011, however, the Board overruled Dana Corp.—removing the 45-day notice period and reinstituting an immediate voluntary recognition bar. Lamons Gasket Co., 357 NLRB 739 (2011). The Board also went a step further and defined the "reasonable" period of time for the voluntary recognition bar as no less than six months from the parties' first bargaining session, but no longer than one year. As a result, under Lamons Gasket, no election petition could be filed after voluntary recognition for at least six months from the parties' first bargaining session, and the prohibition could last longer than four years if a contract was reached during the initial voluntary recognition bar.

The NPRM proposes to return to the Dana Corp. notice-period procedures. Under these procedures, voluntary recognition will not bar the processing of an election petition unless: (1) the employer and union notify a regional office that recognition was granted; (2) the employer posts a notice provided by the regional office that informs employees recognition has been granted and they have a right to file a decertification or rival-union petition within a 45-day window; and (3) 45 days pass after the posting without a properly supported petition being filed.

In proposing a return to Dana Corp., the Board stated that it does not intend to diminish the role of voluntary recognition in creating bargaining relationships, but, instead, to ensure that "employee free choice has not been impaired by a process that is less reliable than Board elections."4

Modified Requirements for Proof of Section 9(a) Recognition in the Construction Industry

The collective bargaining relationship in the construction industry is unique. A construction industry employer often operates on a project-by-project basis, in the territories of various unions, with a need for employees specific to that job in varying trades. The work often far outpaces traditional collective bargaining, which can take months or years. A construction industry employer might have its own core workforce it dispatches to projects, it might rely exclusively on local labor, or some combination of those sources. In recognition of these unique employment and bargaining practices, Congress enacted Section 8(f) of the Act, which permits parties in the construction industry to establish a collective bargaining relationship absent majority support, unlike a Section 9(a) relationship in other industries. Section 8(f) also states that an agreement signed under Section 8(f) does not bar a petition for a Board election, unlike a 9(a) agreement, which bars an election for the duration of the contract up to three years. Under the authority of Section 8(f), construction employers commonly execute "pre-hire agreements" with a union to secure a reliable, cost-certain, and immediate source of labor for a job.

What are the parameters of a Section 8(f) relationship? Under what circumstances is a Section 8(f) relationship converted into a Section 9(a) relationship? Board doctrine has varied over the years. Eventually, the Board in John Deklewa & Sons, 282 NLRB 1375, 1378 (1987) provided some clarity by holding that 8(f) contracts are enforceable under Sections 8(a)(5) and 8(a)(3) of the Act, but only for the duration of the agreement. Upon expiration, either party may repudiate the agreement. In later decisions, the Board required a union claiming voluntary recognition to show "positive evidence" that the union unequivocally demanded recognition, that the union had contemporaneous majority support, and that the employer unequivocally accepted it. See, e.g., J & R Tile, 291 NLRB 1034, 1036 (1988).

In Staunton Fuel & Material, Inc., 335 NLRB 717, 719–720 (2001), however, the Board held that a construction industry union could prove 9(a) recognition based on contract language alone without any other ''positive evidence'' of a contemporaneous showing of majority support.

In the NPRM, the Board articulates its disapproval of Staunton Fuel. The Board agrees with the reasoning of the D.C. Circuit in Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031, 1040 (D.C. Cir. 2018) and Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), as well as former Board Member Miscimarra's dissent in Nova Plumbing, that Staunton Fuel fails to account for employees' rights under Sections 7 and 8(f) of the Act to choose whether to be represented by a union after the execution of an 8(f) agreement. The Board also criticizes Staunton Fuel because it creates an opportunity for construction industry employers and unions to collude at the expense of employees and rival unions. The Board quoted the D.C. Circuit's point that reliance on contract language alone: ''would reduce the requirement of affirmative employee support to a word game controlled entirely by the union and employer. Which is precisely what the law forbids.'' Colorado Fire, 891 F.3d at 1040. In the NPRM, the Board cites the high stakes for employees. Again, once a 9(a) contract is in place, it bars an election for the duration of the contract up to three years and the union's representative status continues post-expiration absent a decertification. This means that employees may never actually get the opportunity to vote for or against union representation.

Accordingly, the Board proposes to overrule Staunton Fuel and adopt the D.C. Circuit's position that contract language alone cannot create a 9(a) relationship. Going forward, a union would have to show "positive evidence, apart from contract language," that the union unequivocally demanded recognition and the employer accepted it, "based on a contemporaneous showing of support from a majority of employees in an appropriate unit." Overruling Staunton Fuel, opines the Board, comports with the presumption that construction industry agreements are governed by Section 8(f). It would also follow the voluntary recognition policy applied outside the construction industry, where the Board requires undisputed proof of employee majority support through union authorization cards or a pro-union petition.

Conclusion

As explained in the NPRM, the Board has decided to modify these election bar policies through rulemaking and not case adjudication for three reasons: (1) it allows for broad public comment on the current policies; (2) rulemaking does not depend on the arguments by parties in a specific case and cannot be mooted by developments in a specific case; and (3) it provides all parties with the ability to plan ahead for changes, as opposed to implementing them instantaneously through case adjudication.Public comments are invited on all aspects of the proposed rule and should be submitted by October 11, 2019.

Employers may expect the Board to continue its focus on revising existing election procedures, including potential revisions to the more controversial aspects of the "quickie election" rules adopted by the Board's final rule published on December 15, 2014.

Footnotes

1 NLRB, News Release, NLRB Proposes Rulemaking to Protect Employee Free Choice, Aug. 9, 2019.

2 NLRB, Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, 84 Fed. Reg. 39,930, 39,937 (Aug. 12, 2019).

3 General Counsel's April 18, 2018 response to the Board's Request for Information regarding the 2014 Election Rule, p. 2, available for viewing on the Board's public website at https://www.nlrb.gov/reports-guidance/public-notices/requestinformation/....

4 84 Fed. Reg. at 39,938.

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