NLRB Reinstates Weapons for Unions in Attempting to Organize Non-Union Workplaces
Topics: New Laws & Legislation, Union-Management Relations
Last week, the National Labor Relations Board issued its Fair Choice - Employee Voice Final Rule. This new Final Rule reinstates several practices that were in place prior to the Trump NLRB making changes in 2020.
First, the new Final Rule returns to the Board’s pre-2020 practice to allow blocking charges by a union before an election is held. More specifically, the Final Rule restores an NLRB Regional Director’s authority to delay an election, if a ULP charge is filed and the Regional Director determines (a) that the employer has committed an unfair labor practice, and (b) that the conduct forming the basis of the charge is sufficiently serious to interfere with employee free choice.This reverses the NLRB’s 2020 rule requiring Regional Directors to run elections on time in such situations, and address the ULP charge after the election, before final certification.
This change could encourage unions to file frivolous charges to delay decertification elections or to allow a union more time to organize employees if a union believes it is going to lose an election but is not ready to withdraw its petition.
Second, the Final Rule also makes it easier to avoid employee objections to voluntary recognition of a union by an employer. The new Final Rule removes the Trump NLRB requirement that when an employer chooses to voluntarily recognize a union that contends that it represents a majority of workers, the parties provide for an automatic mandatory 45-day period to allow the opportunity for a minority of workers to demand an election in order to question that voluntary recognition choice.
Third, the new Final Rule also restores a six-month decertification bar for unions that are voluntarily recognized by the employer. Now, if an employer voluntarily recognizes a union as the bargaining agent for a group of employees in its workforce, those employees are barred for six (6) months from petitioning the NLRB for decertification, and the employees must accept the union as their representative for six months without recourse. These second and third developments help cement any voluntary recognition decision by an employer.
Finally, the new Final Rule gives certain additional rights to construction-worker unions.
Reuters and Bloomberg Law have already reported a 30% year-over-year increase in NLRB election petitions from 2023 to 2024. In addition, unions are winning a higher percentage of elections in 2024 than in any other time in recent memory, according to NLRB-provided statistics. This new Final Rule, which provides unions with additional weapons to help them in their organizing efforts, is only likely to help unions build on their recent success.
However, one thing to keep a close eye on is a potential challenge to the Final Rule. With the recent SCOTUS decisions in Loper Bright Enterprises, the courts are not likely to give much deference to the NLRB and its new Final Rule in their review of it, so we should expect to see multiple challenges in the weeks and months ahead.
CDF Labor Law’s Traditional Labor Practice Group, led by the author of this article, Mark S. Spring, regularly represents and advises employers with respect to union organizing.
