NLRB Reinstates Blocking Charge Policy Along with Other Recognition-Based Policies in a Flurry of Amendments

July 26, 2024

Today, the National Labor Relations Board rescinded and replaced several amendments that the previous Board made in April of 2020 to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation elections. In doing so, the Board asserts that these new amendments better protect employees’ statutory right to freely choose whether to be represented by a labor organization, promote industrial peace, and encourage the practice and procedure of collective bargaining.

The April 2020 Amendments

Blocking Charge: In April of 2020, the Board substantially eliminated its blocking charge policy. Under the blocking charge policy, regional directors had authority to delay processing election petitions if there were pending unfair labor practice charges present. Under the April 2020 amendment, regional directors were generally required to conduct the election, even when an unfair labor practice charge and blocking request had been filed (depending on the type of unfair labor practice alleged). Regional directors were generally required to immediately open and count the ballots, except in limited circumstances where the ballots would be impounded for a max of 60 days. Certification of the results, however, would not be issued until there was a final disposition of the charge and determination of its effect, if any, on the election petition. Part of the reasoning for the 2020 Amendment was to prevent unions from filing frivolous unfair labor practice charges in attempts to block a decertification petition and Board election.

Voluntary Recognition Bar: In April of 2020, the Board also made changes to the voluntary-recognition bar doctrine. Under this doctrine, there was a bar on decertification petitions for a certain period of time, if a union was voluntarily recognized. The purpose of this was to give the voluntarily recognized union sufficient chance to bargain and attempt to obtain a contract, which, as a result, would trigger the much longer contract bar. Under the April 2020 amendment, neither an employer’s voluntary recognition of a union, nor the first collective-bargaining agreement barred the processing of an election petition unless: (1) the employer or union notified that Board’s Regional Office that recognition has been granted; (2) the employer posts a notice informing employees that recognition has been granted and that they have a right to file a petition during a 45-day window period beginning on the date the notice is posted; (3) the employer distributes the notice electronically to employees, if such types of communication are customary; and (4) 45 days from posting date pass without a properly supported election petition being filed.

Construction Industry: The April 2020 Amendments also made changes to representation in the construction context. Section 9(a) of the National Labor Relations Act requires that a union have majority support among employees in an appropriate unit to be recognized as the exclusive collective-bargaining representative. Section 8(f) provides an exception to this rule and permits a construction employer and a union to enter a prehire agreement establishing the union as the exclusive collective-bargaining representative, even where the union does not have the support of a majority of the construction employer’s employees under Section 9(a). The April 2020 Amendment required that the parties retain additional positive evidence of the union’s majority support at the time of its initial 9(a) recognition, beyond the parties’ contract language, if they seek to rely on either the Board’s voluntary recognition bar or contract bar in response to a challenge to the union’s presumption of majority support.

2024 Amendments

Blocking Charge: Under the final rule, whenever a party to a representation proceeding seeks to block the processing of an election petition, the party must simultaneously file a written offer of proof listing the names of witnesses who will testify in support of the charge, and a summary of each witness’s anticipated testimony, and promptly make its witnesses available. Further, if the regional director determines that the offer of proof is sufficient, the regional director will hold the decertification/election petition in abeyance. The regional director may also dismiss the petition outright if it determines that certain unfair labor practice charges have merit. If the regional director determines that the offer of proof is not sufficient, then it may continue to process the petition and conduct the election. The regional director may also resume processing the petition if it determines after investigation that the charges lack merit or if there is a final disposition over the charges.

For example, if a petition is held in abeyance under this policy based on unfair labor practice charges, and a complaint was issued over the charges, then the regional director resume processing the petition when either (a) the employer has taken all action required under the Board’s order or (b) the Board dismisses the complaint following the unfair labor practice hearing.

Voluntary Recognition Bar: Under the final rule, a voluntarily recognized union is automatically insulated from challenge for a certain period of time. This insulation spans a “reasonable period for collective bargaining” which, depending on the results of a multi-factor test, will be for somewhere between 6-months and 1-year. It’s important to note that this insulation does not begin on the date of recognition, but rather from the date of the parties’ first bargaining session.

Construction Context: Under the final rule, the April 2020 Amendment is wholly rescinded and not replaced. This is because the current Board believes it is better to resolve future issues involving the proper standard for finding voluntary 9(a) recognition in the construction industry though adjudication. Under Section 9 of the Act employees choose union representation. Member Kaplan dissented to this new final rule as he believes that it allows unions and employers in the construction industry to install a union as a Section 9(a) representative of the employer’s employees through contract language alone, regardless of whether the employees have chosen the union and even if the employer has no employees at all when it enters into the contract. (Emphasis included).

Where we stand now:

As demonstrated above, the Board was incredibly busy this week reforming these representation-based policies. This final rule is expected to go into effect on September 24, 2024. When this rule goes into effect, Unions will again be able to file unfair labor practice charges to block decertification petitions, Employers and employees will be unable to challenge a union’s majority status for 6-months to 1-year after the first bargaining session when the union was voluntarily recognized, and unions in the construction industry will be able to achieve exclusive representative status without majority support if it comes to terms with the construction employer.

If you have any questions regarding the NLRB’s blocking charge policy, voluntary recognition bars, or the effect of these amendments on representative status in the construction industry, please contact Gaetano Urgo at gurgo@dcamplaw.com or by telephone at (312) 995-7128.