Proposed Rule Makes It Easier for Unions to Carry On

Leah Shepherd By Leah Shepherd November 7, 2022

​The National Labor Relations Board (NLRB) released a proposed rule on Nov. 3 that would make it harder for unionized employees to vote out a union that they don't support.

"The big takeaway here is that the current NLRB is moving to protect union status among organized workforces," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. "This rule would make it easier for unions to keep their umbrella over workers, even if the employees no longer wished to be represented by a union. It doesn't impact workers' ability to form unions."

The NLRB "is picking up the pace on reversing Trump-era policies in favor of policies that are more friendly to labor organizations," said Liz Mincer, an attorney with Duane Morris in Philadelphia.

Provisions in the Rule

The proposed rule addresses three areas: election-blocking charges, voluntary union recognition and construction industry bargaining relationships. The proposal would rescind a 2020 final rule, which is still in effect.

The proposed rule would restore the board's "blocking charge" policy, in which election proceedings would stop if the union brings allegations that the employer used coercive conduct to interfere with workers' free choice.

Under the old policy, if there were charges of coercive conduct, the ballots would be impounded until the charges were resolved. If no merit is found to the charges, then the votes would be counted. If the employer acted unlawfully, the ballots would stay impounded.

The National Labor Relations Act states employers cannot:

  • Threaten employees with loss of jobs or benefits if they join or vote for a union.
  • Threaten to close the plant if employees select a union to represent them.
  • Question employees about their union sympathies or activities.
  • Promise benefits to employees to discourage union support.
  • Transfer, layoff, fire or reassign employees because they engaged in union activity.

The proposed rule would eliminate the 45-day window to challenge a union that an employer voluntarily recognized. Instead, it would restore a ban on challenges for six months after voluntary recognition.

The proposed rule also would remove a provision that made it easier to challenge a union's relationship with a construction company. It would "eliminate a requirement that employers and organizations in the construction industry provide actual proof of majority status to establish a more long-term bargaining relationship," Mincer said.

Promoting Stability

The proposed rule is intended to reduce the instability that could occur if unions form and get ousted frequently.

"These proposed changes will better protect workers' ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining," said NLRB Chairman Lauren McFerran.

Pryzbylski disagreed: "I believe the 2020 rule was a better way to ensure free choice by workers."

Before the 2020 rule, "the board generally allowed unions to block a union election merely by filing a charge alleging unlawful conduct by the employer that would affect employee votes. Unions often used this tactic to delay decertification elections in order to kill momentum when they believed employees would vote them out," he added.

Public comments on the proposed rule must be submitted to the NLRB by Jan. 3, 2023.

The proposed rule could be finalized sometime next year. "It typically takes 12 to 18 months after an agency gives notice of a proposed rule for it to be finalized and implemented," Pryzbylski explained. "As part of the process, they must solicit public comments, which can take time. They then have to review and consider that feedback before going final."

Related Lawsuit

The AFL-CIO, a group of labor unions based in Washington, D.C., sued the NLRB in March 2020, alleging that the board's 2020 rule was unlawful. In July 2020, the U.S. District Court for the District of Columbia partially granted the AFL-CIO's request to have the case reconsidered. The case hasn't been resolved yet, but it may be moot, given the new rulemaking effort.

Twelve percent of U.S. workers are union members, according to a recent poll by Gallup, and this number has declined significantly since union membership's peak in the 1950s.



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