Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the Board nevertheless continues moving forward on non-COVID-19 matters as well.

On March 31, 2020, the NLRB announced it had finalized three amendments to its rules and regulations regarding union election and recognition procedures.  The rule was finalized on April 1, 2020, and will take effect on May 31, 2020.

The Board implemented the final rules with minor modifications from the proposed rules published on August 12, 2019 (which we reported on here) based on the 80 comments it received.  The rules are intended to “better protect employees’ statutory right of free choice on questions concerning representation.”

The Board also published a fact sheet that provides a helpful summary of the final rules and the differences from the originally-proposed rules.

The key takeaways from each of the three final rules are discussed below, including the changes from the original notices of proposed rulemaking from last year.

Replacing the Blocking Charge Policy to Expedite the Election by Implementing Vote-and-Impound or Vote-and-Count

A major criticism of the current election rules has been the ability of (mostly) the petitioning union to block, sometimes for months or years, an election based on the filing of charges alleging that the employer committed unfair labor practices.  The process for investigation and resolution of the charges could leave employees in limbo as to a decision.

Now, the final rule eliminates the ability of a party to block an election merely by filing charges.  Despite a pending ULP charge, the election will proceed as scheduled, and the votes will either be impounded (i.e., not counted) or counted, depending on the nature of the alleged unfair labor practice:

  • Vote-and-Impound: Where the party alleges a violation of 8(a)(1) and (2) or 8(b)(1)(A) that challenges the circumstances surrounding the petition or the showing of interest submitted in support of the petition; or where an employer has allegedly dominated a union in violation of 8(a)(2) in order to disestablish a bargaining relationship.
  • Voteand-Count: All other unfair labor practice charges.

Importantly, regardless of the nature of the charge, the certification of results, including, where appropriate, a certification of representative, will not issue until the ULPs are finally disposed of, and the effect on the election is determined.

Changes from Proposed Rule in Final Rule:  The August 2019 proposed rule established the vote-and-impound procedure for all ULPs, whereas now, only those ULPs that address the very legitimacy of the election process necessitate a vote-and-impound procedure.  As a result, for most ULP charges, the election results will be publicized to all interested parties, and even though the election results will not be certified until the ULPs are resolved, the union will know whether it was acting “with the support of or in the teeth of employee’ wishes,” which the Board hopes will facilitate settlement between the parties.

Reinstating Dana Corp. Challenges to Voluntary Recognition

In Lamons Gasket, Co., 357 NLRB 739 (2011), the Board, overruling Dana Corp., 351 NLRB 434 (2007), established that an employer’s voluntary recognition of a union immediately barred the filing of an election petition for between 6 months to one year after the parties’ first bargaining session.

Now, the Board has overruled Lamons and reinstated Dana Corp., providing that where an employer voluntarily recognizes a union pursuant to NLRA Section 9(a), it must post a notice to its employees reflecting the same, and employees may challenge such recognition if they petition for a secret-ballot election within 45 days thereafter.  If no petition is filed during the 45-day notice period, the voluntary recognition bar would operate for “a reasonable period of time” afterwards.

Changes from Proposed Rule in Final Rule:  Unlike in the proposed rule from August 2019, the final rule:

  • Applies only to an employer’s voluntary recognition on or after the effective date of the rule, and only to the first collective bargaining agreement reached after such voluntary recognition;
  • Permits either the employer or the union to notify the NLRB Regional Office that recognition has been granted (the prior rule required both parties to do so);
  • Specifies the employer’s notice to employees advising them of the 45-day notice period must be posted “in conspicuous places, including all places where notices to employees are customarily posted”;
  • Eliminates the rule’s specific reference in the notice as to the right to file a “decertification or rival-union petition” and just refers to a “petition”;
  • Requires an employer to distribute the notice to unit employees electronically if the employer customarily communicates with its employees by such means; and
  • Provides the wording of the notice to employees.

For Construction Industry Employers, Requiring Evidence of Majority Employee Support for Section 9(a) Recognition in Addition to Contractual Language

In the construction industry, NLRA Section 8(f) allows employers and unions to form a collective bargaining relationship through what are often called “pre-hire” agreements, even absent the support of a majority of employees.  8(f) relationships last as long as the term of the contract, unless the parties agree to extend.  All other employer/union relationships, which are formed pursuant to NLRA Section 9(a), last indefinitely, even after the CBA term expires, unless the union no longer maintains majority support of the workforce.

Under Staunton Fuel, 335 NLRB 717 (2001), a union could convert a Section 8(f) agreement with a construction industry employer to a “full” Section 9(a) agreement through contract language alone – e.g., by including language in the CBA that agreement was subject to Section 9(a) of the NLRA and the union has majority support of the bargaining unit.  Indeed, many unions have insisted on such language in construction industry agreements to maintain their foothold on the relationship.

The Board’s final rule overrules Staunton, and conditions Section 9(a) status on “positive evidence” that the union demanded recognition, which was accepted by the employer and supported by a majority of the employees.  The Board clarified that the required “positive evidence” would be the same showing necessary for unions in non-construction industries to establish recognition.  In other words, contract language alone is insufficient.

Changes from Proposed Rule in Final Rule:  Importantly, like the voluntary recognition bar amendment, the Board clarified that this rule applies only to voluntary recognition extended or any CBA entered into on or after the effective date of the rule, as the Board hoped to minimize the impact on longstanding bargaining relationships.  As a result, construction industry employers with existing CBAs referencing NLRA Section 9(a) cannot rely on this final rule to transform their collective bargaining relationship with the union to 8(f).

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The Board’s finalization of these rules addressing union election procedures continues its mission of adopting the principles set out in its ambitious rule making agenda from May 2019.

Already, the Board has updated the representation-case procedures that are expected to go into effect on May 31, 2020; and announced a proposed rule regarding the “employee” status of students, and accepted all comments as of February 28, 2020.  All that is left from the May 2019 agenda is a proposed rule regarding the standards for access to an employer’s private property.

As always, we will continue to monitor any developments and keep you updated.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Scott Tan Scott Tan

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of…

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of the Moot Court Honors Board. He also worked as a research assistant for Dean Jennifer Mnookin and Professor Hiroshi Motomura.