Last week, the National Labor Relations Board (“Board”) announced that it had proposed three rules aimed at protecting employee free choice on questions concerning representation. These rules address the NLRB’s blocking charge policy, voluntary recognition, and collective bargaining in the construction industry.

• Blocking Charge Policy. Generally, the Board suspends the processing of an election petition if an unfair labor practice charge is filed alleging that a party coerced workers to vote a certain way. Under the proposed rule, the Board would institute a “vote-and-impound” procedure where it would no longer pause the election and instead would seize the votes until the charges are resolved.
• Voluntary Recognition Bar. Currently, a union that has been voluntarily recognized by an employer as a bargaining representative cannot have its status challenged during a “reasonable period” for bargaining, which is defined as six months to a year.  Under the proposed rule, the Board would return to the standard articulated in the Dana Corp.  Under this standard, employees and rival unions would be given a 45-day window after voluntary recognition to either file a decertification petition or election petition respectively before the voluntary recognition bar period takes effect.
• Section 9(a) Recognition in the Construction Industry. Section 9(a) of the National Labor Relations Act (the “Act”) covers most unions and requires that unions obtain support from a majority of workers, which is usually obtained by a vote. However, the construction industry is unique in that Section 8(f) of the Act allows unions and employees in the construction industry to enter into “pre-hire” agreements before the union achieves majority status.  This is usually done for short-term construction work on a project.  The proposed rule would overrule a decision titled Staunton Fuel which held that a full-fledged Section 8(f) bargaining relationship can transition to a Section 9(a) bargaining relationship based on the contract language alone.  The Board’s proposed rule would require a construction union to show “extrinsic evidence” of a majority of support and will no longer allow the union to rely on contract language alone.

Board Chairman Jonathan Ring is a proponent of using the rulemaking process to change Board Rules.  For example, the Board proposed a new rule to overturn the current joint employer rule last year.  Based on his support, we can expect the Board to continue to use the rulemaking process in the future.

If you are interested in commenting on any of these proposed rules you can do so here until October 11, 2019.