Blocking Charges- NLRB
Regulatory Topic: Blocking Charges
Regulatory Agency: NLRB
Over decades the National Labor Relations Board (NLRB) has enacted policy changes around union election and decertification procedures. On November 4, 2022, the Biden NLRB proposed a new rule, Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, which would rescind three Trump era NLRB changes that give workers greater say in union representation, instead making it easier for unions to undermine worker led efforts. Public comments for this rule can be submitted through January 3, 2023.
A particularly harmful policy in the rule would allow unions to delay union decertification procedures initiated by employees by launching unfair labor practice (ULP) charges against employers to the NLRB. These charges are filed as “blocking charges” because over decades the NLRB has often blocked union decertification procedures until resolving such complaints, which are used strategically by union leaders to delay certification and decertification votes when they believe the vote will not side with the union. Often the charges are unrelated to the certification processes or are proven unfounded altogether, but the delays undermine the voice of workers who wish to use their legal rights to change or end their union representation.
The NLRB, formed as part of the 1935 National Labor Relations Act (NLRA), oversees private sector union elections and related matters across the United States. By using labor cases brought before the board or advancing new rules, the NLRB can implement new policies that American workers and businesses must comply with, including by modifying the rules around what actions workers, businesses, and unions can take during union organizing and representation matters.
On April 1, 2020, the NLRB published a final rule with 3 notable NLRB procedural changes that remain in effect until/unless the newly proposed Biden NLRB rule or another future rule replaces them:
- Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
- Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
- Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.
The newly proposed Biden NLRB rule would undo each of these three changes. This means:
- First, a decertification election initiated by workers will be halted by any blocking charges made by unions regardless of whether the ULP charges are valid or related to the union decertification process until such charges are resolved. Over that period of time, unions use tactics to try to earn worker support, including at times intimidation.
- Second, workers will face up to a three-year ban on calling for a union decertification election if employers choose to recognize a union regardless of whether the recognition was voluntary or in response to union pressure such as picketing, intimidation of employers and employees inside or outside of work property, property destruction, or other forms of pressure and coercion. Workers will be forced into union control over their terms of employment for extended periods of time.
- Third, in the construction industry, “positive evidence” of majority support of workers would no longer be required to establish an official collective bargaining relationship between an employer and a union in order to be recognized as a union under section 9(a) of the National Labor Relations Act (NLRA). Instead, section 8(f) of the NLRA, which allows for project labor agreements (PLAs), may be used to establish collective bargaining via language in contracts without confirming majority worker consent, and workers will not have a six-month window to petition for an election to contest a recognized union.
Who will these rules impact?
Workers across the private sector in the United States will be broadly affected, particularly currently unionized workplaces, workplaces that are being targeted by unions or some workers for unionization, and construction firms and workers that secure construction projects under project labor agreements (PLAs), which are union contracts sometimes mandated by federal, state, and local governments in order to perform construction work. Currently only around 6 percent of the private workforce overall and 12 percent of construction workers are unionized, but this totals over 8 million workers, and millions more are in workplaces that are or may be targeted for unionization efforts.
What is union decertification, and why is this important?
When workers no longer want a union to represent them or wish to have a different union represent them, they can gather signatures of 30% of workers to trigger a decertification vote, but there are a number of stipulations on when and how these efforts can occur, including several aspects that would impede efforts in the proposed rule described here.
Brief NLRB Timeline Related to Blocking Charges, Voluntary Recognition Bar, and Recognition in the Construction Industry:
- 1937 – United States Coal and Coke Company, 003 NLRB 398. This case established a long standing but problematic practice of the NLRB allowing blocking charges to pause union certification and decertification efforts by workers until the charges, whether pertinent to the certification efforts or not, were resolved.
- 1966 – Keller Plastics Eastern, 157 NLRB 583 (1966). Established the “recognition bar” doctrine in whereby when an employer recognizes a union, workers cannot ask for a union certification/decertification election for a period of time of up to 3 years.
- 2001 – Staunton Fuel & Material, 335 N.L.R.B. 717 – In this case, the NLRB established that construction unions could be formed via employer consent in a project labor contract that a majority of workers supported a union without a showing of evidence being required to make union representation binding. Furthermore, workers could not petition for an election to challenge unionization for at least six months.
- 2007 – Dana Corp., 351 NLRB No. 28 – The NLRB granted employees a 45 day window, with notice provided by employers, to file a union decertification petition or a petition to recognize a different union after an employer recognized a union without an election.
- 2011 – Lamons Gasket Company, a Division of Trimas Corporation, 16-RD-1597; 357 NLRB No. 72 – In this case, the NLRB removed the Dana Corp. policy, again blocking the ability of workers to file a decertification petition against a union recognized by an employer regardless of circumstances, which meant up to a 3 year block on challenging the union’s representation.
- 2020 – NLRB issues Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships rule, which gave workers greater control surrounding blocking charges, voluntary recognition bars, and recognition in construction unions.
- November 2022 – The Biden NLRB proposes Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships to rescind the 3 policy changes in the 2020 rule.
- See Institute for the American Worker Blocking Charges Related Posts Here: https://i4aw.org/tag/blocking-charges/
- Claiming ‘democracy under attack,’ Biden administration looks to make it harder to oust unions. https://www.thecentersquare.com/national/claiming-democracy-under-attack-biden-administration-looks-to-make-it-harder-to-oust-unions/article_80b506e0-5d5a-11ed-9a4c-2fd675026ab6.html
- National Right to Work Foundation Slams Biden National Labor Relations Board’s Move to Reverse ‘Election Protection Rule’. https://www.nrtw.org/news/election-protection-rule-rescission-11032022/
- Potential Rescission of NLRB’s 2020 Election Protection Rule. https://www.littler.com/publication-press/publication/potential-rescission-nlrbs-2020-election-protection-rule
- The National Labor Relations Act (NLRA): Union Representation Procedures and Dispute Resolution. https://crsreports.congress.gov/product/pdf/RL/RL32930/37
- NLRB Declines to Make It Easier to Withdraw Union Recognition. https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/nlrb-retains-contract-bar-doctrine.aspx
- National Labor Relations Board and the “Contract Bar” Doctrine. https://fedsoc.org/commentary/fedsoc-blog/national-labor-relations-board-and-the-contract-bar-doctrine
- Unelected Unions: Why Workers Should Be Allowed to Choose Their Representatives. https://www.heritage.org/jobs-and-labor/report/unelected-unions-why-workers-should-be-allowed-choose-their-representatives