Change To NLRB Election Rules Gives Unions A Leg Up

On July 26, 2024, the National Labor Relations Board (NLRB or Board) rescinded the 2020 Election Protection Rule and replaced it with the “Fair Choice-Employee Voice Final Rule” which applies to election petitions filed after September 30, 2024. This change essentially restores three policies which make it easier for unions to organize and harder for employees to decertify a union. 

First, the NLRB has returned to its pre-2020 practice of allowing Regional Directors to delay an election if an unfair labor practice charge is filed – a “blocking charge.” Allowing blocking charges is particularly troublesome for employees who want an election to decertify a union. The union can prevent the decertification election from moving forward by filing an unfair labor practice charge which must then be investigated by the Board. This process, which can take a year or more, buys the union time to shore up its support. 

Second, the NLRB has returned to its immediate voluntary recognition bar and revoked the 2020 procedure allowing workers to seek decertification within a 45-day period if their employer voluntarily recognized a union. Under the voluntary recognition bar, if an employer agrees to recognize a union without an election, employees are barred from filing a decertification petition for a minimum of 6 months and a maximum of one year from the date of the parties’ first bargaining session. 

Third, the Board has made it easier for unions to bind construction employers and employees to a bargaining relationship. Here, where voluntary recognition is common and proof that a majority of the employees support the union is not initially required for a pre-hire agreement, employees will be forced to wait six months before challenging the employer’s recognition of the union. Moreover, while the 2020 election rule required an additional showing of majority support for the union to achieve recognition as the employees’ bargaining representative, the Board has removed that requirement. Unions can now use contract language alone (which employees may never see) to establish a bargaining relationship. 

It is possible that the Board’s “Fair Choice-Employee Voice” rule will face legal challenges. In the meantime, it is important that your employees and supervisors are well educated on recognizing and understanding the impact of a union organizing campaign. Construction employers need to be particularly careful with contract language.

KZA’s attorneys are very familiar with the Board’s restored policies. If we can assist you with a labor matter or question, please contact us. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.