New Rulemaking At NLRB

3 discretionary bars to representation election petitions

In a notice of proposed rulemaking and request for comments published on August 12, the NLRB exercised its discretionary rulemaking authority to propose changes to three discretionary election bar policies:
 

•    The blocking charge policy,
•    The voluntary election bar policy, and
•    For the construction industry only, the contract bar policy.

These policies currently bar – for a period of time – the filing or processing of representation election petitions by employers, employees or rival unions to challenge an incumbent union as the bargaining representative. The lack of a formal rule has resulted in modifications and inconsistent application of these policies by past Boards. 

The current Board contends that repeated modifications to the policies deprive stakeholders of certainty related to the processing of election petitions challenging majority support for union representation, and that the current interpretation of the scope of the three election bar policies is overbroad, causes lengthy delays in processing election petitions, and infringes on employees’ statutory right to freely choose a bargaining representative. Under its rulemaking authority, the Board proposes to establish new election bar standards that modify or abrogate these discretionary bars on Board election petitions. Comments from all stakeholders are due no later than October 11, 2019.

The Board’s first proposal would eliminate the policy of postponing a Board election upon the filing of unfair labor practice (ULP) charges. Under current policy, the filing of a ULP charge by a union, employee, or employer permits the charging party to file a request with the NLRB to block the processing of an election petition, including decertification petitions filed by employees (RD), representation election petitions filed by unions (RC), and representation election petitions filed by employers (RM). 

The current policy was amended and codified partially in 2014 under rule 103.20 which requires the party requesting the block to make a simultaneous offer of proof, including disclosure of a witness list, expected testimony of the witnesses, and to make the witness available to the NLRB. Section 103.20 was adopted to curb the filing of meritless blocking charges used to manipulate the blocking charge policy for the purpose of delaying elections and avoiding challenges to a union’s representational status.

Under the current blocking charge policy, election petitions are held in abeyance or dismissed at the discretion of regional directors of the NLRB upon the filing of a ULP, if the offer of proof by the charging party describes evidence showing interference with employees’ free choice in an election or evidence that is inherently inconsistent with the election petition.

To address the concerns of abuse and manipulation of the blocking charge policy that results in lengthy delays of RM, RD and rival RC representation election petitions, the Board contends that more substantial measures beyond the measures imposed by rule 103.20 should be implemented. As such, it proposes to abrogate the current blocking charge policy and to substitute a vote and impound procedure that had been previously suggested by the General Counsel in response to a 2017 request for information.

Under the new policy, an election would be allowed to proceed even though a ULP charge and blocking request are pending. If the merits of the ULP charge have not been resolved prior to the election, the ballots would be impounded until the Board makes a final determination regarding the charge. A finding that the ULP charge was without merit would result in the immediate tallying of the ballots and certification of the results.

The second proposed change would eliminate the immediate voluntary election bar. The current voluntary recognition policy, known as the immediate voluntary recognition bar, was reinstated by the Board decision, Lamons Gasket Co., in 2011. Under the immediate recognition bar, an employer’s voluntary recognition of a union as the exclusive bargaining representative under §9(a) of the NLRA immediately bars the filing of an election petition challenging the union’s claim of majority representation for a period of six months to one year from the date of the party’s first bargaining session. 

Board policy on immediate voluntary recognition, however, has been inconsistent. Prior to the current policy, the 2007 Dana Corp Board decision abrogated the long-standing policy of immediately barring an electoral challenge following the voluntary recognition of a union and instead, adopted notice and post recognition open period to allow for the filing of petitions for a Board election following voluntary recognition of the union.

The Board’s proposed rule would reinstate and codify a post recognition period similar to the policy adopted in Dana Corp, which required, upon the voluntary recognition of a union by the employer along with a contemporaneous showing of majority support by the union:

•    Written notice to employees of the bargaining unit of the voluntary recognition of the union as the exclusive representative and of the 45-day open period to file election petitions, and
•    Elapse of the 45-day open period in which employees and rival unions could file a Board election petition.

A bar to electoral challenges would take effect only if proper notice was provided and no party filed an election petition within the 45-day open period.

The third proposal would eliminate the ability of a union and construction employer to convert a pre-hire agreement authorized under §8(f) of the NLRA to a §9(a) collective bargaining agreement without a showing of majority support for the union. In the construction industry, unions and employers may enter into pre-hire agreements under §8(f) of the NLRA to establish a collective bargaining relationship in the absence of the support of a majority of the employees of the bargaining unit. This non-majority exception arose as a result of the pre-hire employment agreements used by the construction industry to secure qualified workers from unions. 

A collective bargaining relationship under §8(f), however, does not create a contract bar, and the collective bargaining relationship is subject to election petitions by employees and rival unions. While a §8(f) collective bargaining relationship can be converted into a §9(a) collective bargaining relationship, which does allow for contract and voluntary recognition bars to election petitions, Board policy has been inconsistent with regard to the proof required to establish a §9(a) collective bargaining relationship in the construction industry.

Under the current Board policy, an employer and a union in the construction industry are allowed to convert a §8(f) collective bargaining relationship to a §9(a) collective bargaining relationship on the basis of contract language alone and are not required to provide extrinsic evidence showing union support by a majority of the bargaining unit employees.

The proposed rule would preclude the conversion of a §8(f) bargaining relationship to a §9(a) bargaining relationship by contract language alone. Instead, the proposed rule would require extrinsic proof that a union unequivocally demanded recognition as the §9(a) exclusive bargaining representative and that an employer unequivocally accepted the union as the exclusive representative based on a showing of support from a majority of the employees in the bargaining unit.

The Board’s use of rulemaking to codify changes to Board policies was implemented by the Board under the Obama administration in its Election Rule published on December 15, 2014, and effective April 14, 2015. The current Board has embraced the same strategy and has continued to exercise its rulemaking authority to modify and codify changes to discretionary bars on election petitions filed by employees, employers and rival unions to challenge an incumbent union’s representative status. In a footnote, the Board signaled that in the future “it may choose to address one or more” other discretionary election bar policies not addressed in the August 12, 2019 notice of proposed rulemaking. It should be presumed that the Board will continue to narrow the circumstances under which the presumption of union support exists without a secret board election.

Stakeholders have until October 11, 2019, to submit comments to the NLRB regarding the Board’s decision to engage in rulemaking to modify certain discretionary election bars as well as the specific changes proposed regarding the filing and processing of representation election petitions.

Terry L. Potter is a Senior Counsel at Husch Blackwell. He concentrates his practice on labor and management relations. As a former field attorney with the National Labor Relations Board (NLRB), he brings invaluable insight to clients. This wisdom results in solutions that are not only legally sound but also advance business goals. Visit www.huschblackwell.com Connect Terry L. Potter Follow @terrylpotter1

An assertive advocate, Katherine Pearlstone represents clients in a variety of matters, including discrimination and retaliation claims, wage and hour disputes, and other employment-related conflicts. Thanks to her prior work with labor organizations, Kat also has an extensive background in arbitration and negotiation. With ever-expanding litigation costs, she understands that alternative dispute resolution is vital to obtain favorable outcomes with limited expense. Visit www.huschblackwell.com Connect Katherine Pearlstone  Follow @HuschBlackwell