Proposed NLRB Rule Would Make Union Decertification More Difficult

Allen Smith, J.D. By Allen Smith, J.D. April 19, 2023

​Employees will likely have a harder time voting out unions they no longer want to represent them if the National Labor Relations Board (NLRB) finalizes a proposed rule to rescind a 2020 amendment to the "blocking charge" rule. The board plans to issue a final rule in August, according to an April 12 memorandum from NLRB General Counsel Jennifer Abruzzo, who favors the rescission.

Delaying decertification elections through blocking charges is a way for a union to halt momentum when it believes employees would vote it out, according to David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

Under the 2020 change, union representation elections can go forward—potentially with impounded ballots—even if there is an open unfair labor practice charge that might require a rerun election, explained Jenn Betts, an attorney with Ogletree Deakins in Pittsburgh.

If the 2020 amendment is rescinded, the NLRB will let unions block an election by filing a charge alleging unlawful conduct by the employer that affected or will affect employee voting, as was the case before the rule change.

Such a move would likely have "widespread impact" on employers because a blocking charge is a tactic that unions often used prior to 2020 to delay elections, said Melissa Atkins, an attorney with Obermayer in Philadelphia. With a blocking charge, "the mere allegation will be sufficient to delay the conduct of the election until the charge is resolved," she said. "This is costly to employers."

Blocking Charges Led to Postponed Votes

Many employers claimed the blocking charge policy in place before 2020 let unions file frivolous charges solely to delay elections, particularly decertification votes, according to John Ring, former NLRB chairman and an attorney with Morgan Lewis in Washington, D.C.

"While the NLRB investigated the charge and litigated, the election would be paused. In practice, the charge would block the holding of an election for months, or even years," he explained.

If the 2020 policy is repealed and the prior blocking charge policy restored, decertification elections—as well as certification elections—once again would be delayed while an unfair labor practice charge is investigated and litigated.

"Restoring the blocking charge procedures potentially provides greater leverage for unions to control the timing of elections," Ring said. "An unfair labor practice charge filed during an initial election can delay voting until the union shores up the support it needs among employees to win. And a charge filed during the decertification process can indefinitely postpone a vote on whether employees still want the union."

2020 Rule Ensured Timely Election Results

Under the 2020 amendment, some of the gamesmanship was eliminated, said Josh Nadreau, an attorney with Fisher Phillips in Boston.

Instead, the rule required a vote-and-impound procedure by which the vote occurred and the ballots were impounded until a resolution of the unfair labor practice charge, as opposed to delaying the election while the underlying charge was adjudicated. "This meant that employees cast their ballot when the issue of union representation or decertification was fresh in their minds, presumably leading to a more informed choice," he said.

The 2020 rule says that if a party alleges violations of Section 8(a)(1), 8(a)(2) or 8(b)(1)(A) of the National Labor Relations Act (NLRA), the ballots may be impounded for only 60 days, Nadreau said. Section 8(a)(1) prohibits an employer from interfering with employees' exercise of their NLRA rights. Section 8(a)(2) prohibits employers from dominating or interfering with the formation or administration of a union. Section 8(b)(1)(A) says it is unlawful for a union to coerce employees in the exercise of their rights.

For all other unfair labor practice charges, the 2020 rule required that all ballots be promptly opened and counted, thus providing employees with the results of their election in a timely manner, Nadreau said. In all cases, the certification of the results did not occur until a final disposition of the unfair labor practice charge and its effect, if any, on the election petition.

The current NLRB proposal would scrap these safeguards, returning to the prior policy "and allowing the strategic use of blocking charges once again."

The proposal would let unions "stop a campaign in its tracks, simply by alleging an unfair labor practice," he emphasized, saying this was "a recipe for abuse and manipulation."

Purpose of the Proposed and 2020 Rules

Betts noted that the NLRB has said the proposed return to the pre-2020 standard "is designed to allow voters to make their representation decisions in an atmosphere without risks of taint from coercive conduct from employers."

Meanwhile, the 2020 rule was about protecting employees' statutory rights to make a free choice of union representation without barriers to the fair and prompt resolution of representation questions, she said.



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