In 2020, the National Labor Relations Board’s (NLRB) Republican-appointed majority adopted regulations dealing with the effect of allegations of coercive conduct on pending union elections. Those rules removed the so-called “blocking charge policy” that allowed the NLRB to delay the election until the allegations of improper conduct could be held.

Instead, unions were limited to a post-election attempt to overturn the results based on the alleged coercive practices.

Last week, the now Democratic NLRB majority proposed rescinding the 2020 rules, reinstating the prior ability of the NLRB to delay union elections while the coercive practice claims are heard. In addition, the Board proposed changes to an employer’s ability to challenge the status of voluntarily recognized unions, making withdrawal of such recognition more difficult.

Employers should assume that if a Republican majority takes control over the NLRB at some future date, the new proposal will be rescinded in favor of the 2020 rules. As with other labor and employment issues, such as the recent Department of Labor independent contractor proposal, important policy questions made by federal agencies appear to be based not on their underlying statutory authority but instead on political preferences of the party currently in office. This makes strategic business planning difficult when employers must assume that the interpretation of the law will change based on which party holds the White House at any given time.

The NLRB is accepting comments on the proposed rules through January 3.

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