This past week, the National Labor Relations Board (“NLRB”) proposed new election rules. These two rules, if passed, will ultimately further empower employees with the choice of whether they want union representation. As the proposed changes will impact both employers and unions, everyone involved in the bargaining process should be mindful of these proposals to avoid labor disputes.

Blocking Charge Policy

The NLRB proposed to change its blocking charge policy, which currently permits decertification elections to be significantly delayed after an unfair labor practice charge (“ULP”) is filed. Typically, such ULPs are filed by the union for strategic reasons to delay the pending decertification vote. This tactic allows the union additional time to try and change the voters’ minds. Additionally, this delay tactic could take years to resolve, after which the employees who ultimately vote on the issue of representation are not the same as those who were working when the petition was first filed.

The proposed change would create a “vote and impound process” where employees will be able to proceed with the election in a timely manner. To the extent that the ULP persists, the election would still occur and the votes would be impounded until the charge is resolved. This new rule will not necessarily shorten the union decertification process, given that ULP charges will still take the same time to investigate and resolve, but it will ensure relevant employees’ voices are heard and are permitted to vote sooner regarding union representation.

Voluntary Recognition Bar

Unions are formally recognized either through an election process or after an employer voluntarily recognizes a union as the exclusive representative of the workers. Under current NLRB law, if the employer voluntarily recognizes the union, the employees cannot contest this arrangement for at least six months.

The proposed new voluntary recognition bar rule would allow employees, or a rival union, to challenge the employer-recognized union’s status within 45 days following the voluntary recognition. In addition, the employer will be required to provide employees notice that it voluntarily recognized the union (which is not currently required) and that the employees have 45 days to file a decertification petition.

While it is not certain that the NLRB will ultimately implement these proposed changes, it shows that the NRLB is focusing its rules on giving employees a voice over union representation.

Brownstein will continue to monitor these proposed changes and provide notices as they arise.