No one should be stuck with something they no longer want. Unfortunately, the National Labor Relations Board (NLRB) seems to think that shouldn’t apply to employees who wish to vote out a union they don’t think is serving their interests. That’s certainly one way to look at the agency’s newest rulemaking.
The NLRB on July 26 released its dubiously named Fair Choice–Employee Voice Final Rule, which amends three of the agency’s lesser-known policies related to representation elections: so-called blocking charges, the voluntary recognition bar, and the contract bar specific to the construction industry. More importantly, it reverses a 2020 final rule issued by its then-Republican majority dealing with the same policies that enhanced worker protections.
As this blog observed in 2020, the NLRB’s old blocking charge policy had allowed a party in a representation case to file repeated unfair labor practice (ULP) charges challenging the validity of a petition or alleging coercion of the employees voting. In such cases, the election would not take place until the allegations were resolved, a process that delayed the vote indefinitely. This could apply to decertification elections, where workers try to vote out a union they no longer want. It’s obvious why an incumbent union would seek to hold up such an election as long as possible. To protect workers, the 2020 final rule required the election to proceed and ballots to be impounded except in certain cases, such as if an employer was alleged to have “dominated” a union in violation of the law.
Before 2020, the Board’s voluntary recognition bar policy implemented an immediate six-month bar on filing a representation petition in cases where the employer voluntarily recognized a union and started bargaining. This automatic bar deprived employees of their right to vote or to seek decertification of the union for up to four years. The 2020 rule required employers to post a notice that it had recognized a union, and employees could challenge the employer’s recognition by seeking an NLRB election within 45 days.
The last major element of the 2020 rule dealt with a legal provision for the construction industry under which an employer and a union may maintain a collective bargaining contract in the absence of majority support otherwise necessary for most employers. It required “positive evidence” of employee support in those cases.
The new final rule returns to the Board’s pre-2020 practices in all three of these areas. All told, it will prevent workers from having a real say when it comes to union representation in the circumstances contemplated by the rule. How that amounts to “fair choice” and “employee voice,” however, is anyone’s guess.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
