While Covid-19 has slowed down certain things at the NLRB, it hasn’t stopped the agency from functioning.  The NLRB announced today that it will publish its final rule on certain employee free choice issues tomorrow, April 1.

The rules will address three major issues:

  1. The NLRB’s “Blocking Charge” Policy.  The term comes from the NLRB’s long-standing rule that if a union filed a ULP charge while an election proceeding was pending, it would usually serve to “block” the election – i.e., prevent it from going forward.  The ULP charge would then need to be resolved before the regional office could hold the election.  The rule is expected to replace the blocking charge with a “vote-and-count” or “vote-and-impound” procedure.
  2. Voluntary Recognition Bar.  The rule is expected to return to the holding in Dana Corporation, a 2007 NLRB decision.  It would apply when an employer, as is its right, voluntarily chooses to recognize a labor union.  In that situation, employees in the voluntarily recognized bargaining unit must receive notification of the recognition and be given a 45-day open period in which to file an election petition.
  3. Section 9(a) Recognition in the Construction Industry.  Employers in the construction industry are subject to some unique rules regarding recognition of unions.  One such rule is the ability to enter into what is known as a “pre-hire” agreement – where the employer and union agree to recognition before a single employee has even been hired.  Where this has occurred, the NLRB’s new rule will require positive evidence of majority support for the union, and not merely union contract language reciting same, before the NLRB will bar a petition for an NLRB-supervised election.  The rule will overturn a 2001 decision holding to the contrary.

Labor professionals should certainly review the rule in full when it is published, particularly if the employer is considering, or a union has requested, voluntary recognition, or there is a pending election petition.  Likewise, labor professionals in the construction industry will need to familiarize themselves with the NLRB’s new standards.