In March of 2020, the National Labor Relations Board (“NLRB” or “the Board”) finalized a rule that substantially overhauled certain parts of NLRB election procedures thereby providing additional protections to the rights of workers with respect to their ability to choose whether or not they wanted to be represented by a union.

More specifically, in 2020, the Board revamped three portions of its election procedure and weakened three historical doctrines that had protected unions from removal in certain circumstances:  1) with respect to “blocking charges,” whereby pending unfair labor practice charges filed by a union prior to a decertification election would delay an election, the Board in 2020 directed the regions in most situations to hold elections and count the ballots, but not certify the results until the unfair labor practice charge had been ruled upon (to see if the alleged conduct interfered with the vote), or to impound the ballots for up to 60 days before counting them; 2) with respect to the “voluntary recognition bar,” whereby challenges to a voluntarily recognized union were barred for a reasonable period of time (typically six months to a year), the Board in 2020 stated that unions were only insulated from removal if they notified the Board of their voluntary recognition and the employer had posted a notice alerting workers to their right to file for a decertification election within 45 days of the posting; and 3) with respect to certain collective bargaining relationships involving employers in the construction industry, whereby unions and employers can set terms and conditions of employment without the union having demonstrated majority support, the Board in 2020 reversed a long-standing rule that prevented employers from challenging a union’s removal more than six months after being recognized, and required a union invoking the removal bar to point to more than contract language to prove majority support.

On November 4, 2022, the National Labor Relations Board issued a proposal to roll back and rescind its 2020 rule and return to the pre-2020 status quo on the basis that the 2020 changes hampered the right of employees to choose their collective bargaining representative.  NLRB Chair Lauren McFerran stated, reversing these changes “will better protect workers’ ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining,”   Hence, under the current proposal, unions would be able to file an unfair labor practice charge to block a pending decertification election, employers would be prohibited for a reasonable period of time from attempting to have a union removed after the employer had voluntarily recognized the union, and employers in the construction industry would also have to wait at least six months before challenging the majority support of a union they may have voluntarily recognized.

Interested parties have until Jan. 3 to comment on the pending proposal.

If you have questions about the NLRB’s proposed new rule or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.