On April 1, the National Labor Relations Board published its final rule on Representation – Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships, which makes three amendments to its rules and regulations governing the filing and processing of petitions for an NLRB-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships. The final rule will go into effect on June 1.
According to an NLRB news release, the amendments, initially proposed by the NLRB in August 2019 and as modified in the final rule, include:
- 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 an NLRB 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.
ABC filed comments in support of the NLRB’s proposed rule in January. Additionally, the ABC led-Coalition for a Democratic Workplace submitted comments in support of the NLRB proposal.
More information on the final rule can be found on the NLRB website.