April 6, 2020

NLRB Issues Final Rule On Union Representation Case Procedures

On April 1, the National Labor Relations Board (NLRB) finalized changes to its union representation case procedures. This final rule will implement the following new policies:

  • Blocking-Charge Policy. The final rule ends the current policy, which halted all union decertification elections if an Unfair Labor Practice (ULP) charge was filed against the employer until the charge was settled. Under the final rule, the NLRB will allow the vote to be held but will either impound or count but hold the votes, depending on the nature of the ULP charge. In either case, the NLRB will not certify the results of the election until the charge is settled. Votes will be impounded if the ULP charge 1) challenges “the circumstances surrounding the petition or the showing of interest submitted in support of the petition” or 2) claims “an employer has dominated a union … and seeks to disestablish a bargaining relationship.” If the ULP does not meet this criteria, the vote will be counted immediately. If the charge does meet the above criteria, however, the impounded votes will be held for up to 60 days, after which the vote would be counted; if a complaint is issued in response to the charge, however, the ballots will be impounded until the charge is settled. The Final Rule clarifies that the 60-day period will not be extended regardless of the number of ULP charges serially filed.
  • Voluntary-Recognition Bar. The final rule gives employees 45 days to file for a decertification election if their employer voluntarily recognizes a union. The 45-day window only applies to voluntary recognition established on or after the effective date of the final rule and to the first collective bargaining agreement reached. The final rule also requires both the employer and union to inform the Regional Office that recognition has been granted and specifies various requirements for notifying employees of the voluntary recognition.
  • Majority-Based Recognition in the Construction Industry. The final rule prohibits the creation of a collective bargaining relationship in the construction industry based solely on contract language alone, and it requires a union prove they have support from the majority of workers before a collective bargaining agreement or voluntary recognition can be established with the employer. The final rule applies to voluntary recognition reached on or after the effective date of the rule and to any collective bargaining agreement reached on or after the date of that voluntary recognition.

MSCI’s partners at the Coalition for Democratic Workplace filed comments on the Board’s Proposed Rule in January. Click here to read those comments.