What happened?

On July 26, 2024, the National Labor Relations Board (“NLRB” or “Board”) issued a final rule (the “2024 Rule”), codified at 29 C.F.R. 103.20–22, rescinding an earlier rule the Board issued in April 2020 (the “2020 Rule”) that amended representation election procedures.

What are the details?

Background:

• The NLRB issued its Proposed Rule in November 2022 and then received several comments during the comment period that ended on February 2, 2023. 

The Rule (Fair Choice-Employee Voice Final Rule):

• The 2024 Rule marks a return to (1) the blocking-charge policy, (2) the immediate voluntary-recognition bar in place before the 2020 Rule, and eliminates (3) a rule that unions in the construction industry must show affirmative evidence of majority support to convert from an 8(f) to 9(a) relationship.
  • Blocking Charge: Regional Directors will regain the authority to delay elections indefinitely if a party requests that its unfair labor practice (ULP) charge block the election.
    • This policy is known as “blocking charges” and was used before 2020 to delay elections until ULP charges were resolved.
    • The 2020 Rule had largely eliminated this practice, requiring elections to proceed with immediate ballot counting or a “vote-and-impound” system where ballots were impounded for up to 60 days.
    • The new rule reinstates the blocking charge policy, allowing unions to delay decertification elections by filing ULP charges.
  • Voluntary Recognition Bar: The 2024 Rule reinstates the voluntary recognition bar as established in Lamons Gasket (2011), which was previously overturned by Dana Corp. (2007), which means that once an employer voluntarily recognizes a union, employees cannot file an election petition for 6 months to a year after the first bargaining session.
    • The 2020 Rule had allowed employees 45 days to challenge this recognition.
    • The 2020 Rule had largely eliminated this practice, requiring elections to proceed with immediate ballot counting or a “vote-and-impound” system where ballots were impounded for up to 60 days.
  • Construction Industry: The 2024 Rule eliminates 29 C.F.R. § 103.22 and returns to previous practices for voluntary recognition and contract bars in the construction industry. Under NLRA Section 8(f), employers and unions can form “pre-hire” agreements without majority employee support, allowing employers to withdraw union recognition after a CBA expires.
    • Section 9(a) relationships require continued negotiations and provide benefits like a presumption of majority support.
    • Section 8(f) unions to Section 9(a) allows recognition under Section 9(a) based on contract language alone, even without employee support.

• The 2024 Rule may face challenges that delay its effective date or prevent it from taking effect altogether, particularly in light of the Supreme Court’s recent elimination of Chevron deference, which reined in the authority that administrative agencies like the Board can exercise in issuing rules that “interpret” the law. 

• The 2024 Rule will only be applied to cases filed after the effective date.

Business Considerations

• Employers should be prepared for potential delays in union elections due to the reinstated blocking charge policy, which allows elections to be delayed if there are pending unfair labor practice (ULP) charges.
• Employers should inform themselves about the reinstated voluntary recognition bar, which prevents employees from filing an election petition for 6 months to a year after the first bargaining session following voluntary union recognition.
• Employers should understand that in the construction industry, the 2024 Rule allows unions to be recognized based on contract language alone, without needing additional proof of employee support.
• Employers should monitor any legal challenges to the 2024 Rule that could delay or prevent its implementation, especially considering recent Supreme Court decisions limiting administrative agency authority.
• Employers should note that the 2024 Rule will only apply to cases filed after its effective date of September 30, 2024, and plan accordingly for any representation proceedings.

Source References

• NLRB Fair Choice-Employee Voice Final Rule
• NLRB Final Rule Announcement
• NLRB Issues “Fair Choice-Employee Voice” Final Rule (Proskauer Rose LLP.)
• NLRB Continues Its Rollback of Trump-Era Union Election Changes (Benesch)
• NLRB Makes It Harder to Decertify Unions in Latest Pro-Labor Move: 3 Key Takeaways for Employers (Fisher & Phillips LLP.)
• Get Ready for NLRB Rule Making It Harder to Decertify Unions: 5 Key Steps for Employers (Fisher & Phillips LLP.)

Resources

• NLRB case Dana Corp., 351 NLRB 434 (2007)
• NLRB case Lamons Gasket, 357 NLRB 739 (2011)

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