Proposed Rule2022-23823
Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships
Primary source
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Published
November 4, 2022
Issuing agencies
National Labor Relations Board
Abstract
As part of its ongoing efforts to more effectively administer the National Labor Relations Act (the Act or the NLRA) and to further the purposes of the Act, the National Labor Relations Board (the Board) proposes to rescind and replace amendments that the Board made in April 2020 to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election while unfair labor practice charges are pending, and following an employer's voluntary recognition of a union as the majority-supported collective- bargaining representative of the employer's employees. The Board also proposes to rescind an amendment governing the filing and processing of petitions for a Board-conducted representation election in the construction industry. The Board believes, subject to comments, that these proposed changes will better protect employees' statutory right to freely choose whether to be represented by a labor organization, promote industrial peace, and encourage the practice and procedure of collective bargaining.
Full Text
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[Federal Register Volume 87, Number 213 (Friday, November 4, 2022)]
[Proposed Rules]
[Pages 66890-66933]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-23823]
[[Page 66889]]
Vol. 87
Friday,
No. 213
November 4, 2022
Part III
National Labor Relations Board
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29 CFR Part 103
Representation--Case Procedures: Election Bars; Proof of Majority
Support in Construction Industry Collective-Bargaining Relationships;
Proposed Rule
Federal Register / Vol. 87 , No. 213 / Friday, November 4, 2022 /
Proposed Rules
[[Page 66890]]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 103
RIN 3142-AA22
Representation--Case Procedures: Election Bars; Proof of Majority
Support in Construction Industry Collective-Bargaining Relationships
AGENCY: National Labor Relations Board.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: As part of its ongoing efforts to more effectively administer
the National Labor Relations Act (the Act or the NLRA) and to further
the purposes of the Act, the National Labor Relations Board (the Board)
proposes to rescind and replace amendments that the Board made in April
2020 to its rules and regulations governing the filing and processing
of petitions for a Board-conducted representation election while unfair
labor practice charges are pending, and following an employer's
voluntary recognition of a union as the majority-supported collective-
bargaining representative of the employer's employees. The Board also
proposes to rescind an amendment governing the filing and processing of
petitions for a Board-conducted representation election in the
construction industry. The Board believes, subject to comments, that
these proposed changes will better protect employees' statutory right
to freely choose whether to be represented by a labor organization,
promote industrial peace, and encourage the practice and procedure of
collective bargaining.
DATES: Comments regarding this proposed rule must be received by the
Board on or before January 3, 2023. Comments replying to comments
submitted during the initial comment period must be received by the
Board on or before January 17, 2023. Reply comments should be limited
to replying to comments previously filed by other parties. No late
comments will be accepted.
ADDRESSES:
Internet--Federal eRulemaking Portal. Electronic comments may be
submitted through <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the instructions
for submitting comments.
Delivery--Comments may be submitted by mail or hand delivery to:
Roxanne L. Rothschild, Executive Secretary, National Labor Relations
Board, 1015 Half Street SE, Washington, DC 20570-0001.
FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive
Secretary, National Labor Relations Board, 1015 Half Street SE,
Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free
number), 1-866-315-6572 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Submission of Comments
Because of security precautions, the Board continues to experience
delays in U.S. mail delivery. You should take this into consideration
when preparing to meet the deadline for submitting comments. It is not
necessary to mail comments if they have been filed electronically with
<a href="http://regulations.gov">regulations.gov</a>. If you mail comments, the Board recommends that you
confirm receipt of your delivered comments by contacting (202) 273-1940
(this is not a toll-free number). Individuals with hearing impairments
may call 1-866-315-6572 (TTY/TDD). Because of precautions in place due
to COVID-19, the Board recommends that comments be submitted
electronically or by mail rather than by hand delivery. If you feel you
must hand deliver comments to the Board, hand delivery will be accepted
by appointment only. Please call (202) 273-1940 to arrange for hand
delivery of comments. Please note that there may be a delay in the
electronic posting of hand-delivered and mail comments due to the needs
for safe handling and manual scanning of the comments. The Board
strongly encourages electronic filing over mail or hand delivery of
comments.
Only comments submitted through <a href="http://www.regulations.gov">http://www.regulations.gov</a>, hand-
delivery, or mail will be accepted; ex parte communications received by
the Board will be made part of the rulemaking record and will be
treated as comments only insofar as appropriate. Comments will be
available for public inspection at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and
during normal business hours (8:30 a.m. to 5 p.m. ET) at the above
address.
The Board will post, as soon as practicable, all comments received
on <a href="http://www.regulations.gov">http://www.regulations.gov</a> without making any changes to the
comments, including any personal information provided. The website
<a href="http://www.regulations.gov">http://www.regulations.gov</a> is the Federal eRulemaking portal, and all
comments posted there are available and accessible to the public. The
Board requests that comments include full citations or internet links
to any authority relied upon. The Board cautions commenters not to
include personal information such as Social Security numbers, personal
addresses, telephone numbers, and email addresses in their comments, as
such submitted information will become viewable by the public via the
<a href="http://www.regulations.gov">http://www.regulations.gov</a> website. It is the commenter's
responsibility to safeguard their information. Comments submitted
through <a href="http://www.regulations.gov">http://www.regulations.gov</a> will not include the commenter's
email address unless the commenter chooses to include that information
as part of their comment.
II. Summary of 2020 Rule
As described more fully below, the Board is proposing to rescind
and replace the amendments to its rules and regulations adopted in 2020
governing blocking charges and the voluntary-recognition bar doctrine
and to rescind the amendment governing proof of majority support for
labor organizations representing employees in the construction
industry. See Representation--Case Procedures: Election Bars; Proof of
Majority Support in Construction-Industry Collective-Bargaining
Relationships, 85 FR 18366 (April 1, 2020).
First, the April 2020 final rule substantially eliminated the
Board's long-established blocking charge policy, under which regional
directors had authority to delay processing election petitions in the
face of pending unfair labor practice charges alleging conduct that
would interfere with employee free choice in an election or conduct
that is inherently inconsistent with the election petition itself.
Under the final rule, regional directors generally are now required to
conduct an election even when an unfair labor practice charge and
blocking request have been filed. 85 FR 18370, 18375. Moreover, under
the final rule, regional directors generally are further required to
immediately open and count the ballots, except in a limited subset of
cases where the ballots will be impounded for a maximum of 60 days
(unless a complaint issues within 60 days of the election). 85 FR
18369-18370, 18376.\1\
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\1\ However, the April 2020 final rule did not disturb the
authority of regional directors to dismiss a representation
petition, subject to reinstatement, under the Board's long-standing
practice of ``merit-determination dismissals.'' See Rieth-Riley
Construction Co., Inc., 371 NLRB No. 109 (2022).
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Second, the April 2020 final rule made changes to the voluntary-
recognition bar doctrine, which encourages collective bargaining and
promotes industrial stability by allowing a union--after being
voluntarily and lawfully recognized by an employer--to represent
employees for a certain period of time without being subject to
challenge. The final rule abandoned Lamons Gasket Co., 357
[[Page 66891]]
NLRB 934 (2011), and returned to the approach taken previously by the
Board in Dana Corp., 351 NLRB 434 (2007). Under the final rule, neither
an employer's voluntary recognition of a union, nor the first
collective-bargaining agreement executed by the parties after
recognition, will bar the processing of an election petition, unless:
(1) the employer or the union notifies the Board's Regional Office that
recognition has been granted; (2) the employer posts a notice
``informing employees that recognition has been granted and that they
have a right to file a petition during a 45-day `window period'
beginning on the date the notice is posted''; (3) the employer
distributes the notice electronically to employees, if electronic
communication is customary; and (4) 45 days from the posting date pass
without a properly supported election petition being filed. 85 FR
18370.
Third, the April 2020 final rule made changes to the Staunton Fuel
& Material, 335 NLRB 717 (2001), doctrine, which defined the minimum
requirements for what must be stated in a written recognition agreement
or contract clause in order for it to serve as sufficient evidence that
a union representing employees in the construction industry has
attained 9(a) status, and overruled the Board's decision in Casale
Industries, 311 NLRB 951 (1993), providing that the Board would not
entertain a claim that a union lacked 9(a) status when it was initially
granted recognition by a construction employer if more than 6 months
had elapsed. 85 FR 18369-18370.\2\
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\2\ Sec. 8(f) of the Act uses the term ``engaged primarily in
the building and construction industry.'' 29 U.S.C. 158(f).
Throughout this NPRM, for convenience, and without any intent to
define or alter the accepted scope of the term, we use the shorthand
``construction industry'' and ``construction employer.''
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The effect of the instant proposed amendments would be to return
the law in each of those areas to that which existed prior to the
adoption of the April 1, 2020 final rule, including by rescinding and
replacing the portions of the final rule that addressed the blocking
charge policy and voluntary-recognition bar doctrine and rescinding the
portion of the final rule that addressed proof of majority support for
labor organizations representing employees in the construction
industry. The Board believes, subject to comments, that these proposed
changes to the April 2020 final rule will better protect employees'
statutory right of free choice on questions concerning representation,
further promote industrial stability, and more effectively encourage
the practice and procedure of collective bargaining.\3\
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\3\ Upon consideration of the comments received regarding each
of the proposed changes in this NPRM to the April 2020 final rule,
the Board may elect to issue a single final rule or separate final
rules covering each or any of the proposed amendments. We invite
comments as to any advantages or disadvantages of issuing a single
final rule versus separate final rules.
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III. Background
Section 1 of the Act sets forth Congressional findings that the
denial by some employers of the right of employees to organize and
bargain collectively leads to industrial strife that adversely affects
commerce. Congress has declared it to be the policy of the United
States to mitigate or eliminate those adverse effects by ``encouraging
the practice and procedure of collective bargaining and by protecting
the exercise by workers of full freedom of association, self-
organization, and designation of representatives of their own choosing,
for the purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection.'' 29 U.S.C. 151. Further,
section 7 of the Act grants employees the right ``to bargain
collectively through representatives of their own choosing . . . .'' 29
U.S.C. 157.
As discussed more fully below, Federal labor law recognizes that
employees may seek representation for the purpose of bargaining
collectively with their employer through either a Board election or by
demonstrating majority support for representation. See, e.g., United
Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 72 fn. 8
(1956). Voluntary recognition predates the Act, and an employer's
voluntary recognition of a majority union ``remains `a favored element
of national labor policy.' '' NLRB v. Creative Food Design Ltd., 852
F.2d 1295, 1299 (D.C. Cir. 1988) (citation omitted). An employer is
free to voluntarily recognize a union as the designated majority
representative of a unit of its employees without insisting on the
union's proving its majority status in an election. And, ``once the
employer recognizes the Union . . . the employer is bound by that
recognition and may no longer seek an election.'' Id. at 1297
(citations omitted). Nevertheless, when employers, employees, and labor
organizations are unable to agree on whether the employer should
recognize (or continue to recognize) a labor organization as the
representative of a unit of employees for purposes of collective
bargaining, section 9 of the Act gives the Board authority to determine
if a ``question of representation'' exists and, if so, to resolve the
question by conducting ``an election by secret ballot.'' 29 U.S.C.
159(c).
Because the Act calls for freedom of choice by employees as to
whether to obtain, or retain, union representation, the Board has long
recognized that ``[i]n election proceedings, it is the Board's function
to provide a laboratory in which an experiment may be conducted, under
conditions as nearly ideal as possible, to determine the uninhibited
desires of the employees.'' General Shoe Corp., 77 NLRB 124, 127
(1948). A Board-conducted election ``can serve its true purpose only if
the surrounding conditions enable employees to resister a free and
untrammeled choice for or against a bargaining representative.'' Id. at
126. Indeed, as the Supreme Court has recognized, it is the ``duty of
the Board . . . to establish `the procedure and safeguards necessary to
insure the fair and free choice of bargaining representatives by
employees.' '' NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973)
(emphasis added) (citation omitted). By definition, a critical part of
protecting employee free choice is ensuring that employees are able to
vote in an atmosphere free of coercion, so that the results of the
election accurately reflect the employees' true desires concerning
representation. General Shoe Corp., 77 NLRB at 126-127.
The Supreme Court has repeatedly recognized that ``Congress has
entrusted the Board with a wide degree of discretion in establishing
the procedure and safeguards necessary to insure the fair and free
choice of bargaining representatives by employees.'' NLRB v. A.J. Tower
Co., 329 U.S. 324, 330 (1946). ``The control of the election
proceeding, and the determination of the steps necessary to conduct
that election fairly were matters which Congress entrusted to the Board
alone.'' NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940); see
also Southern S.S. Co. v. NLRB, 316 U.S. 31, 37 (1942).
Although the Act itself contains only one express limitation on the
timing of elections,\4\ the Board has instituted
[[Page 66892]]
through adjudication several policies that affect the timing of
elections in an effort to further other core goals of the Act. For
example, the Board, with court approval, precludes electoral challenges
to an incumbent union bargaining representative for the first 3 years
of a collective-bargaining agreement (the contract bar) in the
interests of stabilizing existing bargaining relationships,
notwithstanding that it delays employees' ability to choose not to be
represented or to select a different representative. See General Cable
Corp., 139 NLRB 1123, 1125 (1962); see also Terrace Gardens Plaza, Inc.
v. NLRB, 91 F.3d 222, 227-228 (D.C. Cir. 1996); Leedom v. IBEW Local
Union No. 108, AFL-CIO, 278 F.2d 237, 242 (D.C. Cir. 1960) (noting that
``Congress relied on the Board's expertise to harmonize the competing
goals of industrial stability and employee freedom of choice to best
achieve the ultimate purposes of the Act.'').\5\
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\4\ Sec. 9(c)(3) provides that ``[n]o election shall be directed
in any bargaining unit or any subdivision within which, in the
preceding twelve-month period, a valid election shall have been
held.'' 29 U.S.C. 159(c)(3).
Election petitions filed by labor organizations seeking
certification as the collective-bargaining representative of
employees are classified as RC petitions. Decertification election
petitions filed by an individual employee seeking to oust an
incumbent collective-bargaining representative are classified as RD
petitions. Petitions for elections filed by employers are classified
as RM petitions.
\5\ See generally Auciello Iron Works, Inc. v. NLRB, 517 U.S.
781, 785 (1996) (``The object of the National Labor Relations Act is
industrial peace and stability, fostered by collective-bargaining
agreements providing for the orderly resolution of labor disputes
between workers and employees'').
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The subject of this rulemaking proceeding concerns three other
policies that the Board originally created through adjudication to
protect employee free choice in elections and to effectuate the Act's
policies favoring stable bargaining relationships: the blocking charge
policy; the voluntary-recognition bar doctrine; and the policy
governing 9(a) recognition in the construction industry. The Board's
April 2020 final rule radically altered each of those policies.
A. Blocking Charge Policy
1. The Board's Historical Blocking Charge Policy
As the Board acknowledged in the notice of proposed rulemaking that
culminated in the April 2020 final rule, see 84 FR 39930, 39931, the
blocking charge policy dates back to the early days of the Act. See
United States Coal & Coke Co., 3 NLRB 398, 399 (1937). Indeed, prior to
the April 2020 final rule, and for more than eight decades, the Board
had maintained a policy of generally declining to process an election
petition over party objections in the face of pending unfair labor
practice charges alleging conduct that, if proven, would interfere with
employee free choice in an election, until the merits of those charges
could be determined.\6\
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\6\ See generally The Developing Labor Law 561-63 (John E.
Higgins, Jr., 5th edition 2006); 3d NLRB Ann. Rep. 143 (1938) (``The
Board has often provided that an election be held at such time as
the Board would thereafter direct in cases where the employer has
been found to have engaged in unfair labor practices and the Board
has felt that the election should be delayed until there has been
sufficient compliance with the Board's order to dissipate the
effects of the unfair labor practices and to permit an election
uninfluenced by the employer's conduct. Similarly, where charges
have been filed alleging that the employer has engaged in unfair
labor practices, the Board has frequently postponed the election
indefinitely pending the investigation and determination of the
charges.''); 13th NLRB Ann. Rep. 34 & fn. 90 (1948) (``Unremedied
unfair labor practices constituting coercion of employees are
generally regarded by the Board as grounds for vacating an
election[.] For this reason, the Board ordinarily declines to
conduct an election if unfair labor practice charges are pending or
if unfair labor practices previously found by the Board have not yet
been remedied[.]'').
Throughout this NPRM, in discussing the blocking charge policy
as it existed prior to the April 2020 rule, we often cite to
editions of the Developing Labor Law and the NLRB Casehandling
Manual that were in effect before the enactment of the 2014 rule
amending representation case procedures and the subsequent enactment
of the 2020 rule. This reference to sources that have been
supplemented since those rules is intentional and intended to
demonstrate the manner in which the blocking charge policy was
interpreted and applied during the course of its long history before
those rules.
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The rationale for the blocking charge policy was straightforward:
it was ``premised solely on the [Board's] intention to protect the free
choice of employees in the election process.'' NLRB Casehandling Manual
(Part Two), Representation Proceedings Section 11730 (August 2007)
(``Casehandling Manual (August 2007)''). ``The Board's policy of
holding the petition in abeyance in the face of pending unfair labor
practices is designed to preserve the laboratory conditions that the
Board requires for all elections and to ensure that a free and fair
election can be held in an atmosphere free of any type of coercive
behavior.'' Mark Burnett Productions, 349 NLRB 706, 706 (2007).
Prior to the effective date of the April 2020 amendments, there
were two broad categories of blocking charges. The first, called Type I
charges, encompassed charges that alleged conduct that merely
interferes with employee free choice. Casehandling Manual Section
11730.1 (August 2007). See also NLRB Casehandling Manual (Part Two),
Representation Proceedings Section 11730.1 (January 2017)
(``Casehandling Manual (January 2017)''). Examples of Type I charges
included allegations of employer threats to retaliate against employees
if they vote in favor of union representation or promises of benefits
if employees vote against union representation. For many years, the
blocking charge policy provided that if the charging party in a pending
unfair labor practice case was also a party to a petition, and the
charge alleged conduct that, if proven, would interfere with employee
free choice in an election (a Type I charge), were one to be conducted,
and no exception was applicable, the charge should be investigated and
either dismissed or remedied before the petition was processed.
Casehandling Manual Section 11730.2 (August 2007).\7\
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\7\ As discussed below, under the Board's 2014 rule amending
representation case procedures, for a Type I charge to block the
processing of a petition, the charging party needed to have both
filed a request to block accompanied by a sufficient offer of proof
and to have promptly made its witnesses available. Casehandling
Manual Section 11730.2 (January 2017).
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The policy further provided that if upon completion of the
investigation of the charge, the regional director determined that the
Type I charge had merit and that a complaint should issue absent
settlement, the regional director was to refrain from conducting an
election until the charged party took all the remedial action required
by the settlement agreement, administrative law judge's decision, Board
order, or court judgment. Casehandling Manual Sections 11730.2; 11733,
11734 (August 2007). On the other hand, if upon completion of the
investigation of the charge, the regional director determined that the
charge lacked merit and should be dismissed absent withdrawal, the
regional director was to resume processing the petition and conduct an
election where appropriate. Casehandling Manual Sections 11730.2; 11732
(August 2007).
In short, in cases where the Type I charges proved meritorious and
there had been conduct that would interfere with employee free choice
in an election, the blocking charge policy delayed the election until
those unfair labor practices had been remedied and employees could
register a free and untrammeled choice for or against a representative.
As for the subset of cases where the charges were subsequently found to
lack merit, the policy provided for regional directors to resume
processing those petitions to elections.
The second broad category of blocking charges, called Type II
charges, encompassed charges that alleged conduct that not only
interferes with employee free choice, but that is also inherently
inconsistent with the petition itself. Casehandling Manual Sections
11730.1, 11730.3 (August 2007). Under the policy, such charges could
block a related petition during the investigation of the charges,
because a determination of the merit of the charges could also result
in the dismissal of the petition. Casehandling Manual Section 11730.3
(August 2007). Examples of Type II charges included allegations that a
labor
[[Page 66893]]
organization's showing of interest was obtained through threats or
force, allegations that an employer's representatives were directly
involved in the initiation of a decertification petition, and
allegations of an employer's refusal to bargain, for which the remedy
is an affirmative bargaining order. Casehandling Manual Sections
11730.3(a), (b) (August 2007). For many years, the blocking charge
policy provided that regardless of whether the Type II charges were
filed by a party to the petition or by a nonparty, and regardless of
whether a request to proceed was filed, the charge should be
investigated before the petition was processed unless an exception
applied. Casehandling Manual Sections 11730.3, 11731, 11731.1(c)
(August 2007).
The blocking charge policy further provided that if the regional
director determined that the Type II charge had merit, then the
regional director could dismiss the petition, subject to a request for
reinstatement by the petitioner after final disposition of the unfair
labor practice case. A petition was subject to reinstatement if the
allegations in the unfair labor practice case which caused the petition
to be dismissed were ultimately found to be without merit. Casehandling
Manual Section 11733.2. (August 2007).\8\ On the other hand, if the
director determined that the Type II charge lacked merit, the director
was to resume processing the petition and to conduct the election where
appropriate. Casehandling Manual Section 11732 (August 2007).
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\8\ For either Type I or II charges, parties had the right to
request Board review of regional director determinations to hold
petitions in abeyance or to dismiss the petitions altogether. See 29
CFR 102.71(b) (2011); Casehandling Manual Sections 11730.7,
11733.2(b) (August 2007).
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However, the mere filing of an unfair labor practice charge did
``not automatically cause a petition to be held in abeyance'' under the
blocking charge policy. Casehandling Manual Sections 11730, 11731
(August 2007). See also Casehandling Manual Sections 11730, 11731
(January 2017); Veritas Health Services, Inc. v. NLRB, 895 F.3d 69, 88
(D.C. Cir. 2018) (noting that pending unfair labor practice charges do
not necessarily preclude processing a representation petition). For
example, the Board had long declined to hold a petition in abeyance if
the pending unfair labor practice charge did not allege conduct that
would interfere with employee free choice in an election. See, e.g.,
Holt Bros., 146 NLRB 383, 384 (1964) (rejecting party's request that
its charge block an election because even if the charge in question
were meritorious, it would not interfere with employee free choice in
the election). The Board could also decline to block an immediate
election despite a party's request that it do so when the surrounding
circumstances suggested that the party was using the filing of charges
as a tactic to delay an election without cause. See Columbia Pictures
Corp., 81 NLRB 1313, 1314-1315 fn. 9 (1949).\9\
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\9\ The Board also directed an immediate election, despite
pending charges, in order to hold the election within 12 months of
the beginning of an economic strike so as not to disenfranchise
economic strikers, American Metal Products Co., 139 NLRB 601, 604-
605 (1962), or in order to prevent harm caused to the economy by a
strike resulting from an unresolved question of representation, New
York Shipping Association, 107 NLRB 364, 375-376 (1953). The
Casehandling Manual set forth other circumstances in which regional
directors could decline to block petitions. Casehandling Manual
Section 11731 (August 2007).
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2. The Blocking Charge Policy and the Board's 2014 Final Rule Amending
Representation Case Procedures
After notice and comment, the Board adopted some 25 amendments to
its representation-case procedures in a 2014 final rule, that, among
other things, was designed to advance the public interests in free and
fair elections and in the prompt resolution of questions concerning
representation. See Representation-Case Procedures, 79 FR 74308, 74308-
74310, 74315, 74341, 74345, 74379, 74411 (December 15, 2014). As the
Board acknowledged when adopting the April 2020 final rule (85 FR
18376-18377), the Board also made certain modifications to the blocking
charge policy as a part of its 2014 final rule revising the Board's
representation-case procedures. In particular, in response to
allegations that at times incumbent unions may misuse the blocking
charge policy by filing meritless charges to delay decertification
elections, the Board imposed a requirement that, whenever any party
sought to block the processing of an election petition, it must
simultaneously file an offer of proof listing the names of witnesses
who will testify in support of the charge and a summary of each
witness' anticipated testimony and promptly make its witnesses
available. 79 FR 74419; 29 CFR 130.20. The 2014 final rule also
provided that if the regional director determined that the party's
offer of proof does not describe evidence of conduct that, if proven,
would interfere with employee free choice in an election or would be
inherently inconsistent with the petition itself, and thus would
require that the processing of the petition be held in abeyance absent
special circumstances, the regional director would continue to process
the petition and conduct the election where appropriate. 79 FR 74419;
29 CFR 103.20. The Board expressed the view that those amendments would
protect employee free choice while helping to remove unnecessary
barriers to the expeditious resolution of questions of representation
by providing the regional director with the information necessary to
assess whether the unfair labor practice charges have sufficient
support and involve the kind of violations that warrant blocking an
election, or whether the charges are filed simply for purposes of
delay. 79 FR 74418-74420.
Two Board members dissented from the 2014 final rule. With respect
to the blocking charge policy, the dissenting Board members did not
propose any changes to the blocking charge policy with respect to Type
II charges. However, the two dissenting members advocated a 3-year
trial period under which the Board would hold elections--and thereafter
impound the ballots--notwithstanding the presence of a request to block
(supported by an adequate offer of proof) based on a Type I charge. 79
FR 74456.
The Board majority rejected the dissenters' proposal to conduct
elections in all cases involving Type I charges. The 2014 final rule
explained that the dissenting Board Members had not identified any
compelling reason to abandon a policy continuously applied since 1937.
79 FR 74418-74420, 74429 (``Unfair labor practice charges that warrant
blocking an election involve conduct that is inconsistent with a free
and fair election: It advances no policy of the Act for the agency to
conduct an election unless employees can vote without unlawful
interference.'').
The courts upheld the 2014 final rule. See Associated Builders and
Contractors of Texas, Inc. v. NLRB, 826 F.3d 215, 229 (5th Cir. 2016)
(noting that the Board ``conducted an exhaustive and lengthy review of
the issues, evidence, and testimony, responded to contrary arguments,
and offered factual and legal support for its final conclusions'');
Chamber of Commerce of the United States of America v. NLRB, 118 F.
Supp. 3d 171, 220 (D.D.C. 2015) (``[T]he Board engaged in a
comprehensive analysis of a multitude of issues relating to the need
for and the propriety of the Final Rule, and it directly addressed the
commenters' many concerns[.]''). See also RadNet Mgmt, Inc. v. NLRB,
992 F.3d 1114, 1123 (D.C. Cir. 2021) (rejecting arbitrary-and-
capricious challenge to 2014 final rule).
Accordingly, under the blocking charge policy as it existed prior
to the effective date of the April 2020
[[Page 66894]]
amendments, a regional director could not block an election based on
the request of a party who had filed an unfair labor practice charge if
the party had not first (1) submitted an offer of proof describing
evidence that, if proven, would interfere with employee free choice in
an election were one to be conducted or conduct that would be
inherently inconsistent with the petition itself, (2) listed its
witnesses who would testify in support of the charge, and (3) agreed to
promptly make its witnesses available. Casehandling Manual Section
11730 (January 2017). Even then, the regional director retained
discretion to process the petition if an exception to the blocking
charge policy applied. Casehandling Manual Sections 11730, 11730.2,
11730.3, 11730.4, 11731, 11731.1-11731.6 (January 2017).
3. The April 2020 Blocking Charge Amendments
In 2019, the Board issued a Notice of Proposed Rulemaking
proposing, in relevant part, to substantially change the blocking
charge policy. Under the proposed rule, whenever a party filed unfair
labor practice charges that would have blocked processing of the
petition under prior doctrine, the Board would instead conduct the
election and impound the ballots (absent dismissal of the
representation petition, as noted above at fn. 1). See Representation-
Case Procedures: Election Bars; Proof of Majority Support in
Construction Industry Collective-Bargaining Relationships, 84 FR 39930,
39930, 39937-39938 (August 12, 2019). If the charge had not been
resolved prior to the election, the NPRM proposed that the ballots
would remain impounded until the Board made a final determination
regarding the charge. 84 FR 39937. The NPRM acknowledged that the
ballots would ``never be counted'' in cases where the Board made a
final determination that the charge had merit and that the conduct
warranted either dismissing the petition or holding a new election. 84
FR 39938.
The NPRM offered several justifications for the proposed
amendments, including the arguments that the Board's historical
blocking charge policy impeded employee free choice by delaying
elections and that there is a potential for incumbent unions to abuse
the blocking charge policy by deliberately filing nonmeritorious unfair
labor practice charges in the hopes of delaying decertification
elections. See, e.g., 84 FR 39931-39933, 39937. The majority prepared
appendices and cited them in support of its claims. 84 FR 39933 & fns.
13-14, 39937.
Then-Member McFerran dissented from the NPRM's proposed changes to
the blocking charge policy. In her view, the Board majority offered no
valid reasons for substantially changing the blocking charge policy
that Boards of differing perspectives had adhered to for more than
eight decades. 84 FR 39939-39949. Noting that the majority had
implicitly conceded that its proposed vote-and-impound procedure would
require regional directors to run--and employees, unions, and employers
to participate in--elections conducted under coercive conditions that
interfere with employee free choice, the dissent argued that the
proposed blocking charge amendments would undermine employee rights and
the policies of the Act. 84 FR 39940, 39941, 39943, 39945, 39948,
39949. The dissent further argued that because the proposed amendments
would require regional directors to run--and employees, unions, and
employers to participate in--elections that would not resolve the
question of representation, the proposed amendments would impose
unnecessary costs on the parties and the Board. 84 FR 39941, 39945,
39948, 39949. The dissent also pointed out inaccuracies in the data
relied on by the majority in support of its proposed changes to the
blocking charge policy.\10\
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\10\ Then-Member McFerran also prepared an appendix analyzing FY
2016-and FY 2017-filed RD, RC, and RM petitions that were blocked
pursuant to the blocking charge policy. 84 FR 39943 & fn. 63;
<a href="https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/member-mcferran-dissent-appendix.pdf">https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/member-mcferran-dissent-appendix.pdf</a>. Then-Member McFerran
explained in her dissent that her review of the relevant data for
Fiscal Years 2016 and 2017 indicated that ``the overwhelming
majority of decertification petitions are never blocked.'' 84 FR
39943-39944 and Dissent Appendix (``Approximately 80 percent of the
decertification petitions filed in FY 2016 and FY 2017 were not
impacted by the blocking charge policy because only about 20 percent
(131 out of 641) of the decertification petitions filed in FY 2016
and FY 2017 were blocked as a result of the policy.''). The dissent
further explained that ``[e]ven in the minority of instances when
decertification petitions are blocked, most of these petitions are
blocked by meritorious charges. Approximately 66% (86 out of 131) of
the decertification petitions that were blocked in FY 2016 and FY
2017 were blocked by meritorious charges. See Dissent Appendix,
[s]ection 1.'' 84 FR 39944 & fn. 64 (explaining that in determining
whether a petition was blocked by a meritorious charge, the dissent
``applied the Office of the General Counsel's long-standing merit
definition contained in OM 02-102 available at <a href="https://www.nlrb.gov/news-publications/nlrb-memoranda/operations-management-memos">https://www.nlrb.gov/news-publications/nlrb-memoranda/operations-management-memos</a>.
Accordingly, a petition was deemed blocked by a meritorious charge
if the petition was blocked by a charge that resulted in a
complaint, a pre-complaint Board settlement, a pre-complaint
adjusted withdrawal, or a pre-complaint adjusted dismissal. Id. at
p.4.''). The dissent additionally noted that the Board Chairman and
General Counsel in office as of the issuance of the NPRM ``used the
same merit definition in their Strategic Plan for FY 2019-FY 2022.
See, e.g., Strategic Plan p. 5, attached to GC Memorandum 19-02,
available at https://www.nlrb.gov/news-publications/nlrb-memoranda/
general-counsel-memos.'' 84 FR 39944 fn. 64.
Based on her analysis of the relevant data, then-Member McFerran
also pointed out that ``the overwhelming majority of RM petitions
are never blocked, and that even in the minority of instances when
RM petitions are blocked, most of these petitions are blocked by
meritorious charges. See Dissent Appendix, sec. 1.'' 84 FR 39945 fn.
69 (``Indeed, my review of the relevant data indicates that
approximately 82 percent of the RM petitions filed during FY 2016
and FY 2017 were not blocked, leaving only about 18 percent (18 out
of 99) of the RM petitions filed during FY 2016 and FY 2017 as
blocked under the policy. See Dissent Appendix, available at <a href="https://www.nlrb.gov">https://www.nlrb.gov</a>. And most pointedly, nearly 89 percent (16 out of 18)
of the RM petitions blocked during FY 2016 and FY 2017 were blocked
by meritorious charges. See Dissent Appendix, sec. 1.''). 84 FR
39945 fn. 69.
The dissent also pointed out numerous errors in the majority's
appendices, noting for example that the majority had artificially
inflated the length of time periods that their cited cases were
blocked, apparently by ``inappropriately aggregat[ing] multiple
blocking periods for the same case, even when those periods run
concurrently [. . . which . . . ] has the rather bizarre effect of
listing a case such as Piedmont Gardens, Grand Lake Gardens, 32-RC-
087995, as having been blocked for more than 12 years--an impossibly
high estimate considering that the case was less than 7 years old as
of December 31, 2018 (with a petition-filing date of August 24,
2012). See Majority Appendix B Tab 4.'' 84 FR 39946 fn. 71. The
dissent also pointed out that the majority had artificially inflated
the number of ``blocked petitions pending'' by including in its list
cases that had not been blocked due to the blocking charge policy.
84 FR 39946 fn. 71, fn. 74.
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The majority did not correct the errors before issuing the NPRM. 84
FR 39930-39939 & fn. 15.\11\ As noted, on April 1, 2020, the Board
issued a final rule substantially eliminating the blocking charge
policy.\12\ 85 FR 18366. The final rule differed from the NPRM. Unlike
the NPRM, which had proposed a vote and impound procedure for all cases
involving blocking charges until there was a final determination of the
merits of the charge, the final rule adopted a vote and immediately
count the ballots procedure for the vast majority of blocking charge
cases (including all cases involving Type I blocking charges and some
cases involving Type II blocking charges). 85 FR 18366, 18369-18370,
18374. The final rule also provided that notwithstanding a request to
block based on a pending charge alleging certain specified types of
Type
[[Page 66895]]
II conduct, the Board will impound the ballots for no more than 60 days
(unless a complaint issues on the Type II charge within the 60-day
period, in which case the ballots will be remain impounded pending a
final determination by the Board). 85 FR 18369-18370, 18374. In short,
under the April 2020 final rule, a blocking charge request will never
delay any election, and will only rarely delay the count of the
ballots. 85 FR 18370, 18375. Nevertheless, the final rule ``clarifie[d]
that the certification of results (including, where appropriate, a
certification of representative) shall not issue until there is a final
disposition of the charge and a determination of its effect, if any, on
the election petition.'' 85 FR 18370.
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\11\ In addition to then-Member McFerran's analysis of the data
in her dissent, on December 5, 2019, Bloomberg Law published an
article entitled, ``Federal Labor Board Used Flawed Data to Back
Union Election Rule.'' Alex Ebert and Hassan A. Kanu, ``Federal
Labor Board Used Flawed Data to Back Union Election Rule,''
Bloomberg Law (Dec. 5, 2019). The article reported on the results of
a Bloomberg Law analysis, which found that the NPRM used flawed data
in support of the proposed blocking charge amendments. Id. After
publication of the Bloomberg Law article, the Board still did not
issue a new NPRM correcting the data.
\12\ Lauren McFerran was no longer serving on the Board when the
final rule issued.
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The Board adopted the amendments requiring the Board to refrain
from delaying any election involving blocking charges essentially for
the reasons contained in the NPRM. 85 FR 18375-18380, 18393. As for its
decision to abandon the proposed vote-and-impound procedure and to
substitute the requirement that ballots be immediately opened and
counted in all cases involving Type I charges and a subset of Type II
charges, the Board stated that it had concluded that it would be
``preferable for ballots to be counted immediately after the conclusion
of the election . . . with regard to most categories of unfair labor
practice charges.'' 85 FR 18380. The final rule agreed with a commenter
that:
[I]mpoundment of ballots does not fully ameliorate the problems
with the current blocking charge policy because impoundment fails to
decrease a union's incentive to delay its decertification by filing
meritless blocking charges; makes it more difficult for parties to
settle blocking charges, as they would not know the results of the
election during their settlement discussions; and further frustrates
and confuses employees waiting, possibly for an extended post-
election period, to learn the results of the election.
85 FR 18380.
As noted, however, the Board chose to adopt a vote-and-impound-for-
60-days-procedure (with impoundment to last longer if a complaint
issued within 60 days of the election) for certain types of Type II
unfair labor practice charges. The Board stated in this regard:
At the same time, however, some types of unfair labor practice
charges speak to the very legitimacy of the election process in such
a way that warrants different treatment--specifically, those that
allege violations of section 8(a)(1) and 8(a)(2) or section
8(b)(1)(A) of the Act and that challenge the circumstances
surrounding the petition or the showing of interest submitted in
support of the petition, and those that allege that an employer has
dominated a union in violation of section 8(a)(2) and that seek to
disestablish a bargaining relationship. We believe that in cases
involving those types of charges, it is more appropriate to impound
the ballots than to promptly count them. Nevertheless, in order to
avoid a situation where employees are unaware of the election
results indefinitely, we believe it is appropriate to set an outer
limit on how long ballots will be impounded. Accordingly, the final
rule provides that the impoundment will last for only up to 60 days
from the conclusion of the election if the charge has not been
withdrawn or dismissed prior to the conclusion of the election, in
order to give the General Counsel time to make a merit determination
regarding the unfair labor practice charge.
85 FR 18380.
As for the errors in the NPRM pointed out by then-Member McFerran
in her dissent to the NPRM and in the Bloomberg law article, supra fn.
11, the Board stated in the final rule that we also acknowledge the
claims in the dissent to the NPRM and by some commenters that there
were errors in some of the data that the NPRM majority cited to support
the proposed rule and that these errors led to exaggeration both of the
number of cases delayed and the length of delay involved. Even
accepting those claims as accurate, the remaining undisputed statistics
substantiate the continuing existence of a systemic delay that supports
our policy choice to modify the current blocking-charge procedure that
does not, and need not, depend on statistical analysis. As the AFL-CIO
candidly acknowledges, ``[b]locking elections delays elections. That is
undeniably true and requires no `statistical evidence' to
demonstrate.'' We agree. Furthermore, anecdotal evidence of lengthy
blocking charge delays in some cases, and judicial expressions of
concern about this, remain among the several persuasive reasons
supporting a change that will assure the timely conduct of elections
without sacrificing protections against election interference. 85 FR
18377 (footnote omitted).
The April 2020 amendments became effective on July 31, 2020. See 85
FR 20156 (Apr. 10, 2020).
B. The Voluntary-Recognition Bar
1. Historical Development of the Voluntary-Recognition Bar
Since before the NLRA was passed, employers have sometimes chosen
to voluntarily recognize labor unions as the collective-bargaining
representatives of their employers, and the Act itself clearly
contemplated that the practice of voluntary recognition would
continue.\13\ While the statute provides for Board-conducted
representation elections, with winning unions certified by the Board,
the Act does not make such elections the only route to union
representation under the statute, as the Supreme Court has
explained.\14\
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\13\ Citing the Supreme Court, the Board has previously pointed
out that ``[v]oluntary recognition itself predates the National
Labor Relations Act and is undisputedly lawful under it.'' Dana
Corp., 351 NLRB 434, 436 (2007) (footnote omitted) (citing NLRB v.
Gissel Packing Co., 395 U.S. 575, 595-600 (1969)). As the Dana Board
observed, ``voluntary recognition has been embedded in [s]ection
9(a) from the Act's inception.'' 351 NLRB at 438. See also Lamons
Gasket Co., 357 NLRB 739, 741 (2011) (``Congress was well aware of
the practice of voluntary recognition when it adopted the Act in
1935, because the practice long predated the Act.'') (citing H.R.
Rep. No. 74-969, at 4 (1935), reprinted in 2 Legislative History of
the National Labor Relations Act 1935, at 2914 (1949)) (an election
is appropriate ``[w]hen an employee organization has built up its
membership to a point where it is entitled to be recognized . . .
and the employer refuses to accord such recognition'').
\14\ See United Mine Workers of America v. Arkansas Oak Flooring
Co., 351 U.S. 62, 72 fn. 8 (1956) (``A Board election is not the
only method by which an employer may satisfy itself as to the
union's majority status.''). There, the Supreme Court observed that
an employer was free to voluntarily recognize a labor union that did
not comply with certain statutory requirements and that could not be
certified by the Board as the result of an election. Id. at 71, 74-
75.
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Rather, section 8(a)(5) of the Act requires an employer ``to
bargain collectively with the representatives of his employees, subject
to the provisions of section 9(a).'' 29 U.S.C. 158(a)(5). Section 9(a),
in turn, refers to ``[r]epresentatives designated or selected . . . by
the majority of the employees'' in an appropriate unit.\15\ Section
9(c)(1)(A), meanwhile, provides for Board-conducted elections when
employees seek union representation and file a petition with the Board
``alleging . . . that their employer declines to recognize their
representative as . . . defined in section 9(a).'' 29 U.S.C.
159(c)(1)(A) (emphasis added). When an employer does not ``decline[ ]
to recognize'' the designated union, there is no obvious statutory
``question of representation'' under section 9(c) to be resolved by a
Board election. A union that has been certified by the Board after
winning an election enjoys certain statutory privileges and protections
that a voluntarily recognized union does not. Most important, section
9(c)(3) of the Act, in providing that another Board election may not be
held for twelve months after a valid election,
[[Page 66896]]
effectively insulates a certified union from an electoral challenge to
its representative status for that one-year period.\16\
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\15\ 29 U.S.C. 159(a) (emphasis added). See Gissel Packing Co.,
supra, 395 U.S. at 596-598. Sec. 9(a) provides in relevant part that
representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.
\16\ 29 U.S.C. 159(c)(3) (``No election shall be directed in any
bargaining unit or any subdivision within which, in the preceding
twelve-month period, a valid election shall have been held.''). The
other statutory advantages of certification are (1) protection
against recognitional picketing by rival unions under sec.
8(b)(4)(C); (2) the right to engage in certain secondary and
recognitional activity under sec. 8(b)(4)(B) and 7(A); and (3) in
certain circumstances, a defense to allegations of unlawful
jurisdictional picketing under sec. 8(b)(4)(D). See Lamons Gasket
Co., supra, 357 NLRB at 748 & fn. 35; 85 FR 18381 fn. 124.
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To be lawful, voluntary recognition pursuant to section 9(a) of the
Act must be based on the union's majority support among employees.\17\
Such support is often demonstrated by having employees sign cards
authorizing the union to represent them in collective bargaining,
although the Board recognizes other mechanisms as well.\18\ Traditional
Board law reflects that under the Act, ``[o]nce voluntary recognition
has been granted to a majority union, the [u]nion becomes exclusive
collective-bargaining representative of the employees.'' \19\ In short,
as the Supreme Court has recognized, voluntary recognition is not
simply permitted under the Act; it establishes a bargaining
relationship between union and employer that must be honored.\20\ So
long as employees have freely chosen the union to represent them,
voluntary recognition clearly promotes the statutory policy of
``encouraging the practice and procedure of collective bargaining and
by protecting the exercise by workers of full freedom of . . .
designation of representatives of their own choosing.'' \21\
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\17\ Int'l Ladies' Garment Workers' Union v. NLRB (Bernhard-
Altmann), 366 U.S. 731, 738 (1961) (employer violated sec. 8(a)(2)
of Act by recognizing and bargaining with union that lacked majority
support). See, e.g., Alliant Foodservice, Inc., 335 NLRB 695, 695
(2001) (employer violated sec. 8(a)(2) by recognizing union that did
not legitimately represent majority of employees in bargaining unit,
and union violated sec. 8(b)(1)(A) by accepting recognition).
\18\ See Lamons Gasket, supra, 357 NLRB at 741 (citing
authorization cards, employee statements, and secret-ballot
elections conducted by private third parties).
\19\ Brown & Connolly, Inc., 237 NLRB 271, 275 (1978), enfd. 593
F.2d 1373 (1st Cir. 1979).
\20\ See Gissel Packing Co., supra, 395 U.S. at 596 (``Since
Sec. 9(a) . . . refers to the representative as the one `designated
or selected' by a majority of the employees without specifying
precisely how that representative is to be chosen, it was early
recognized that an employer had a duty to bargain whenever the union
representative presented `convincing evidence of majority support.'
'').
\21\ National Labor Relations Act, sec. 1, 29 U.S.C. 151.
---------------------------------------------------------------------------
In 1966, a unanimous Board in Keller Plastics,\22\ an unfair labor
practice case, added the voluntary-recognition bar to its previously
established bar doctrines, which temporarily insulate a union from
challenges to its status as exclusive bargaining representative. The
Keller Plastics Board rejected a claim that an employer had unlawfully
reached a collective-bargaining agreement with a union that had since
lost the majority support it enjoyed when it was voluntarily recognized
by the employer. The Board held that in cases involving voluntary
recognition of a union--as in cases where a bargaining relationship was
established by a Board certification, by a Board order in an unfair
labor practice case, or by an unfair labor practice settlement--``the
parties must be afforded a reasonable time to bargain and to execute
the contracts resulting from such bargaining'' because ``negotiations
can succeed . . . and the policies of the Act can thereby be
effectuated, only if the parties can normally rely on the continuing
representative status of the lawfully recognized union for a reasonable
period of time.'' \23\ Following Keller Plastics, the Board quickly and
unanimously held in Sound Contractors,\24\ also decided in 1966, that
the voluntary-recognition bar applied in representation cases as well
as in unfair labor practice cases, barring election petitions that
challenged a voluntarily recognized union's representative status
during a reasonable period for bargaining.
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\22\ Keller Plastics Eastern, Inc., 157 NLRB 583 (1966).
\23\ 157 NLRB at 587. Among the precedent cited as support for
this rule was the Supreme Court's 1944 decision in Franks Bros. Co.
v. NLRB, 321 U.S. 702 (1944). There, the Court upheld the Board's
bargaining order against an employer that had unlawfully refused to
bargain with a majority union, which then lost majority support.
Rejecting the argument that the bargaining order was unfair to
employees who opposed the union, the Court observed that the order
only temporarily insulated the union from challenge and that a
``bargaining relationship once rightfully established must be
permitted to exist and function for a reasonable period in which it
can be given a fair chance to succeed.'' 321 U.S. at 705.
\24\ Sound Contractors Assn., 162 NLRB 364, 365 & fn. 5 (1966)
(permitting representation petition to be processed because union
seeking to bar petition had not been voluntarily recognized by
employer).
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2. Dana Corp. and Lamons Gasket
For more than 40 years, the Board consistently applied the
voluntary-recognition bar as articulated in Keller Plastics.\25\ In
2007, however, a divided Board, citing the increased use of voluntary-
recognition agreements to establish collective-bargaining
relationships, re-examined Board doctrine and adopted a different
approach. In Dana Corp.,\26\ the Board established a novel election
procedure in voluntary-recognition cases, through adjudication and not
rulemaking. It held that no election bar would be imposed after an
employer's ``card-based recognition'' of a union, nor would a contract
bar be imposed on contracts executed with a voluntarily recognized
union, unless:
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\25\ Collective-bargaining agreements have also long been
subject to a contract-bar period of up to three years, insulating
the union from challenges to majority status during that period. See
General Cable Corp., 139 NLRB 1123, 1125 (1962).
\26\ Dana Corp., 351 NLRB 434 (2007).
(1) employees in the bargaining unit receive notice of the
recognition and of their right, within 45 days of the notice, to
file a decertification petition or to support the filing of a
petition by a rival union, and (2) 45 days pass from the date of
notice without the filing of a valid petition. If a valid petition
supported by 30 percent or more of the unit employees is filed
---------------------------------------------------------------------------
within 45 days of the notice, the petition will be processed.
351 NLRB at 434 (footnote omitted). The Dana Board asserted a need
to ``provide greater protection for employee free choice,'' id. at 438,
and cited two principal reasons for establishing the new procedure.
First, it concluded that Board-conducted elections were more reliable
than union-authorization cards in determining employee free choice. Id.
at 438-440. Second, it found that the rationale for the other election
bars established by the Board was ``far less persuasive'' in the
context of voluntary recognition. Id. at 440-441. Nevertheless, the
Dana Board properly acknowledged that ``[s]everal courts of appeals
ha[d] endorsed the current recognition-bar doctrine,'' while citing no
contrary decisions. Id. at 441 & fn. 31 (collecting cases from District
of Columbia Circuit and Second, Third, Sixth, Seventh, and Ninth
Circuits). The dissenting Board members in Dana rejected both of the
principal reasons offered by the majority for the new procedure. They
argued that the voluntary-recognition bar served the same purposes as
other election bars in giving a bargaining relationship a fair chance
to succeed, particularly given that negotiations for a first contract
were involved. Id. at 446. The dissenters also pointed out that there
was no empirical evidence that the use of authorization cards was a
less reliable indicator of employee free choice than an election. Id.
at 448.
Four years later, in 2011, the Dana decision was overruled by a
divided Board in Lamons Gasket,\27\ which rejected the Dana procedure
and restored the voluntary-recognition bar
[[Page 66897]]
and for the first time defined benchmarks for measuring the reasonable
bargaining period covered by the bar. The Board defined ``a reasonable
period of bargaining, during which the recognition bar will apply, to
be no less than 6 months after the parties' first bargaining session
and no more than 1 year.'' 357 NLRB at 748. ``In determining whether a
reasonable period has elapsed in a given case,'' the Board held that it
would apply the multifactor test of Lee Lumber & Building Material
Corp., 334 NLRB 399 (2001), and would ``impose the burden of proof on
the General Counsel to show that further bargaining should be
required.'' 357 NLRB at 748 (footnote omitted). As noted by the Lamons
Gasket Board, the Lee Lumber test considers ``(1) whether the parties
are bargaining for an initial contract; (2) the complexity of the
issues being negotiated and of the parties' bargaining processes; (3)
the amount of time elapsed since bargaining commenced and the number of
bargaining sessions; (4) the amount of progress made in negotiations
and how near the parties are to concluding an agreement; and (5)
whether the parties are at impasse.'' Lee Lumber, supra, 334 NLRB at
402.
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\27\ Lamons Gasket Co., supra, 357 NLRB at 739.
---------------------------------------------------------------------------
In overruling Dana, the Lamons Gasket Board made three principal
arguments. First, it argued that empirical data from the period in
which the Dana procedure was in effect refuted the claim that voluntary
recognition did not accurately reflect employee free choice:
``employees decertified the voluntarily recognized union under the Dana
procedures in only 1.2 percent of the total cases in which Dana notices
were requested.'' 357 NLRB at 742 (footnote omitted). Second, the Board
contended that the Dana notice, ``understood in context,''
inappropriately compromised the Board's neutrality by ``suggest[ing] to
employees that the Board considers their choice to be represented
suspect and signals to employees that their choice should be
reconsidered through the filing of a petition.'' Id. at 744. Third, the
Board argued that the voluntary-recognition bar, in protecting a newly
established bargaining relationship, promoted the same statutory
policies advanced by its other bar doctrines. Id. Thus, voluntary
recognition reflected the Act's approval of a ``system of private
ordering'' in labor relations in which collective bargaining was to be
encouraged and labor disputes avoided. Id. at 746. Voluntary
recognition was consistent with employee free choice because it
required a showing of majority support among all employees in the
bargaining unit, not merely a majority of voters (as in a Board
election), and because the Act's unfair labor practice provisions
enabled improper recognition to be redressed. Id. at 746-747. In the
view of the Lamons Gasket Board, the Dana procedure simply served to
create uncertainty around the new bargaining relationship and to
interfere unnecessarily in the bargaining process. Id. at 747. The
dissenting Board member rejected each of these arguments, contending
(among other things) that the same empirical evidence relied on by the
majority in fact supported the rationale of Dana. Id. at 748-754.
3. The April 2020 Amendments
In 2019, as part of its larger rulemaking culminating in the April
1, 2020 final rule discussed herein, the Board proposed, subject to
public comment, to overrule Lamons Gasket and to reinstate the Dana
procedure.\28\ As support for the proposed rule, the Board cited the
views of the Dana Board and the dissenting Board member in Lamons
Gasket. No intervening judicial decisions had questioned Lamons Gasket
or its restoration of the longstanding voluntary-recognition bar, nor
had a petition for rulemaking addressing the issue been filed with the
Board. Then-Member McFerran dissented.\29\
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\28\ NLRB, Representation Case Procedures: Election Bars; Proof
of Majority Support in Construction Industry Collective-Bargaining
Relationships, Notice of Proposed Rulemaking, 84 FR 39930, 39938,
39958 (Aug. 12, 2019).
\29\ Id. at 39949-39951.
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On April 1, 2020, following a public comment period, the Board
adopted a final rule that essentially codified the Dana procedure.\30\
The new rule (``Processing of petitions filed after voluntary
recognition'') appears as Sec. 103.21 in the Board's Rules and
Regulations, 29 CFR 103.21. Under the rule, neither the employer's
voluntary recognition of a union, nor the first collective-bargaining
agreement executed by the parties after recognition, will bar the
processing of an election petition, unless: (1) the employer or the
union notifies the Board's Regional Office that recognition has been
granted; (2) the employer posts a prescribed notice of recognition
``informing employees that recognition has been granted and that they
have a right to file a petition during a 45-day `window period'
beginning on the date the notice is posted''; (3) the employer
distributes the notice electronically to employees, if electronic
communication is customary; and (4) 45 days from the posting date pass
without a properly supported election petition being filed. The Board
noted that it did ``not rely on any data, or analysis of data, other
than that discussed in Dana and in Lamons Gasket, which [it had] fully
considered.'' \31\
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\30\ NLRB, Representation Case Procedures: Election Bars; Proof
of Majority Support in Construction Industry Collective-Bargaining
Relationships, Final Rule, 85 FR 18366, 18367-18368, 18370, 18380-
18388, 18399-183400 (April 1, 2020). At the time the final rule was
adopted, the Board member who had dissented from the proposed rule
(then-Member McFerran) was not serving on the Board.
\31\ 85 FR 18373.
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In explaining the reasons for the new rule, the Board essentially
repeated the rationale of the Dana decision, advancing arguments that
had been rebutted by the Lamons Gasket decision.\32\ Thus, the Board
characterized Board elections as the ``Act's preferred method for
resolving questions of representation,'' citing the Act's election-year
bar (under section 9(c)(3), after a valid Board election is held,
another election may not be directed for one year) and the specific
statutory protections granted only to a Board-certified union.\33\ The
Board asserted that ``secret-ballot elections are better than voluntary
recognition at protecting employees' [s]ection 7 freedom to choose, or
not choose, a bargaining representative.'' \34\ It noted that the Board
``does not supervise voluntary recognitions'' and rejected the notion
that the Act's unfair labor practice provisions were sufficient to
address coercive conduct related to voluntary recognition.\35\ A Board
election was deemed superior to voluntary recognition because ``it
presents a clear picture of employee voter preference at a single
moment.'' \36\ Rejecting criticism of the proposed rule, the Board
insisted that it does not ``restrict the lawful voluntary establishment
of majority-supported bargaining relationships, nor does it limit the
immediate statutory rights and responsibilities that ensue upon
commencement of those relationships.'' \37\ According to the Board, the
rule was also supported by the need to protect employees' ability to
challenge the union's majority status from the possibility that
voluntary recognition immediately triggering an election bar might be
followed by a
[[Page 66898]]
collective-bargaining agreement, which would trigger its own, separate
bar.\38\
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\32\ 85 FR 18380-18388.
\33\ Id. at 18381.
\34\ Id.
\35\ Id.
\36\ Id.
\37\ Id. at 18382.
\38\ Id. at 18382-18383.
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The Board also addressed experience under the Dana procedure, as
described in the Lamons Gasket decision, by echoing the arguments of
the dissenting Board member in Lamons Gasket.\39\ It acknowledged that
``only 7.65 percent of Dana notice requests resulted in election
petitions, only 4.65 percent of Dana notices resulted in actual
elections, and employees decertified the voluntarily recognized union
in only 1.2 percent of the total cases in which Dana notices were
requested.'' \40\ In expressing the view that ``the fact that only a
small percentage of all Dana notices resulted in ending continued
representation by the voluntarily recognized union does not mean that
the post-recognition open period procedure was unnecessary and should
not be restored,'' the Board pointed to the fact that in the (rare)
instances where a Dana election was held, the union was decertified
about one-quarter of the time.\41\ As for the overwhelming majority of
cases where no Dana election was held, the Board asserted that it knew
``nothing about the reliability of the proof of majority support that
underlay recognition in each of these cases,'' nor ``why no petition
was filed.'' \42\ In turn, the Board cited the absence of evidence that
the Dana procedure had produced negative effects, such as discouraging
voluntary recognition or discouraging or delaying collective
bargaining.\43\ The Board acknowledged the possibility that the
``existence of a pending election petition will cause unions to spend
more time campaigning or working on election-related matters rather
than doing substantive work on behalf of employees,'' but concluded
``that this is a reasonable trade-off for protecting employees' ability
to express their views in a secret-ballot election.'' \44\
---------------------------------------------------------------------------
\39\ Id. at 18383-18384.
\40\ Id. at 18383.
\41\ Id.
\42\ Id.
\43\ Id. at 18384.
\44\ Id. at 18385.
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The new election procedure established by the Board's rule went
into effect on June 1, 2020. In response to a series of Freedom of
Information Act requests, the Board has compiled and disclosed data
that reflects its experience under the rule.\45\ That experience has
been entirely consistent with the Board's experience under the Dana
procedure, during the 2007-2011 period. The new data, which has been
assembled incrementally by the Board's FOIA officer in response to
successive information requests, show as follows.\46\ First, for the
calendar year 2020, the data show that 32 requests for voluntary
recognition notices were filed with the Board. In those cases, no
election petitions were filed.\47\ For the period from January 1, 2021
through June 30, 2021, the data shows that 39 requests for notices were
filed, and no subsequent petitions were filed. For the period from July
1, 2021 through September 30, 2021, 31 requests for notices were filed.
One decertification petition was subsequently filed, after which the
union disclaimed interest. For the period from October 1, 2021 through
December 31, 2021, 53 requests were filed, and no subsequent petitions
were filed. For the period from January 1, 2022 through March 31, 2022,
the data shows that 51 requests for notices were filed, and no
subsequent petitions were filed. For the period from April 1, 2022
through June 30, 2022, the data shows that 54 requests for notices were
filed, and no subsequent petitions were filed. As a whole, then, the
data thus far show that since the effective date of Sec. 103.21, 260
requests for recognition notices were filed with the Board. In those
cases, one election petition was subsequently filed, and no elections
were held--although the union in the one case where a petition was
filed disclaimed interest after its filing. Thus, only 0.4 percent of
recognition notice requests resulted in election petitions, 0 percent
of notices resulted in actual elections, and (if we count the
disclaimer as an effective proxy for the de-selection of the union in
the sole case where a petition was filed), employees opted not to
retain the voluntarily recognized union in only 0.4 percent of the
total cases in which recognition notices were requested. In over 99
percent of notice cases, employees appear to have affirmed their choice
to be represented by a union.
---------------------------------------------------------------------------
\45\ The data cited here can be found at <a href="https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-000944&type=request">https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-000944&type=request</a>; <a href="https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-001133&type=request">https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-001133&type=request</a>; <a href="https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000090&type=Request">https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000090&type=Request</a>; <a href="https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000354&type=Request">https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000354&type=Request</a>; <a href="https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000844&type=Request">https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000844&type=Request</a>; and <a href="https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-001456&type=Request">https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-001456&type=Request</a>.
\46\ In a few instances, the FOIA compilations show that a
petition was filed, but further inquiry shows that the petition was
an RC petition filed prior to voluntary recognition and later
withdrawn. Those cases have not been counted as examples of cases
where a subsequent petition was filed. In six cases, the FOIA
spreadsheets indicate that a petition was filed, but follow-up
research in the Board's recordkeeping system discloses no such
petition, thus suggesting that the registry of a petition was in
error. Those cases also have not been counted as examples of cases
where a subsequent petition was filed. A few cases (none of which
involved petitions) appear duplicative and have only been counted
once. One case, in which a notice was requested but no pertinent
information was supplied even after it was requested, has also not
been counted in the analysis of petitions filed in response to
voluntary recognition notice requests.
In yet another case, which has not been counted in this
analysis, voluntary recognition was, according to the FOIA
compilations, extended after the filing of a petition, but case
records suggest that in fact the union won an election and no
voluntary recognition was involved.
\47\ However, in one case, after an initial faulty notice
posting, the union subsequently disclaimed interest for unknown
reasons. No petition was filed. Given the ambiguity, this case has
not been counted in our analysis at all.
---------------------------------------------------------------------------
As we explain below, the Board's preliminary view, subject to
comments, is that the voluntary-recognition bar as articulated in
Lamons Gasket better serves the policies of the National Labor
Relations Act than does the current rule.
C. Section 9(a) Recognition in the Construction Industry
1. Overview
In the construction industry, employees often work for their
employer for only a relatively brief period until the completion of a
discrete project, at which time they may have begun working on a new
project for a different employer.\48\ This sporadic and temporary
feature of much construction-industry work complicates a union's effort
to demonstrate majority support among employees whose time with any one
employer may be fleeting. At the same time, the widespread use of the
project bid process means that construction employers need to know
their labor costs, and thus, the terms of a collective-bargaining
agreement, even before they hire their first employee.\49\ The employer
has to be able to forecast its labor costs to submit a contract bid and
have available a pool of skilled craft workers ready for quick
referral.\50\
---------------------------------------------------------------------------
\48\ John Deklewa & Sons, 282 NLRB 1375, 1380 (1987) (quoting S.
Rep. No. 86-187, reprinted in 1 NLRB, Legislative History of the
Labor-Management Reporting and Disclosure Act of 1959 (Leg. Hist.),
at 423, and H. Rep. No. 86-741, reprinted in 1 NLRB, Leg. Hist., at
777-778), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770
(3d Cir. 1988).
\49\ Id. (quoting S. Rep. No. 86-187, reprinted in 1 NLRB, Leg.
Hist., at 424).
\50\ Id.
---------------------------------------------------------------------------
Consequently, construction employers and unions frequently
negotiate and enter into prehire collective-bargaining
[[Page 66899]]
agreements.\51\ For the length of these agreements, even before it
hires any employees, the construction employer recognizes the union as
the bargaining representative of the employer's eventual employees and
the employer is guaranteed precise labor costs pursuant to the
agreement and, in the event of a union hiring hall, a source of skilled
craft workers.\52\
---------------------------------------------------------------------------
\51\ Id.
\52\ Id. at 1385.
---------------------------------------------------------------------------
In 1959, responsive to these unique construction-industry
practices, Congress amended the Act,\53\ adopting section 8(f),\54\
which permitted a limited alternative in the building and construction
industry to the Act's existing section 9(a) requirement that a union
have majority support to obtain exclusive collective-bargaining
representative status.\55\ By declaring that ``[i]t shall not be an
unfair labor practice'' to do so, section 8(f) sanctions the
construction-industry practice of a construction employer and a union
entering into a prehire agreement even where the union has not
established its majority support among any bargaining unit of the
employer's employees under section 9(a).\56\
---------------------------------------------------------------------------
\53\ The Landrum-Griffin Act of 1959, Public Law 86-257, 73
Stat. 541, amending 29 U.S.C. 151-169.
\54\ Sec. 8(f), 29 U.S.C. 158(f).
\55\ John Deklewa & Sons, 282 NLRB at 1380.
\56\ Id.
---------------------------------------------------------------------------
For more than 35 years, the Board's decision in John Deklewa & Sons
has governed how the Board has handled these 8(f) agreements and the
interplay with a construction employer's 9(a) recognition of a union in
instances where the union does have the support of a majority of the
bargaining unit employees. Under John Deklewa & Sons, the Board adopted
a rebuttable presumption that a collective-bargaining relationship in
the construction industry was established under section 8(f), with the
burden of proving that the relationship instead falls under section
9(a) placed on the party so asserting.\57\
---------------------------------------------------------------------------
\57\ The Board in John Deklewa & Sons abandoned the ``conversion
doctrine,'' adopted in 1971, 16 years before it issued John Deklewa
& Sons, in which a bargaining relationship initially established
under section 8(f) could convert into a 9(a) relationship by means
other than a Board election or majority-based voluntary recognition.
Id. at 1377. The ``conversion doctrine'' was premised on an 8(f)
agreement being a ``preliminary step that contemplates further
action for the development of a full bargaining relationship.'' Id.
at 1378 (quoting Ruttmann Construction Co., 191 NLRB 701, 702
(1971)). As such, the 8(f) agreement could be repudiated at any time
by any party but also permitted the signatory union to convert the
8(f) agreement into a 9(a) relationship/agreement based on its
majority support during a relevant period, even though ``[t]he
achievement of majority support required no notice, no simultaneous
union claim of majority, and no assent by the employer to complete
the conversion process.'' Id. In contrast, under John Deklewa &
Sons, the parties to an 8(f) agreement cannot unilaterally repudiate
the agreement until it expires or the unit employees vote to reject
or change their representative. Id. at 1387.
---------------------------------------------------------------------------
The distinction is important because, unlike where there is only an
8(f) relationship, a union recognized as the 9(a) representative enjoys
the full panoply of rights and obligations available to unions in all
other industries as the exclusive collective-bargaining representative
under section 9(a).\58\ This includes the irrebuttable presumption of
majority support during the term of the contract and a rebuttable
presumption of majority support at other times, including at the
contract's expiration.\59\ In practice, under the Board's contract-bar
rules, 9(a) recognition bars the filing of a representation petition
challenging the union's majority status during the ``reasonable
period'' of an agreement (up to 3 years) outside of the ``window
period'' and imposes an obligation on the employer to continue to
recognize and bargain with the union even after the parties' agreement
has expired.\60\ By contrast, as the Board explained in John Deklewa &
Sons, there is no contract or recognition bar where there is only an
8(f) relationship: ``the 8(f) union enjoys no presumption of majority
status on the contract's expiration and cannot picket or strike to
compel renewal of an expired agreement or require bargaining for a
successor agreement. At no time does it enjoy a presumption of majority
status, rebuttable or otherwise, and its status as the employees'
representative is subject to challenge at any time.'' \61\
---------------------------------------------------------------------------
\58\ Id. at 1385.
\59\ Id. at 1387.
\60\ See Mountaire Farms, Inc., 370 NLRB No. 110, slip op. at 1
(2021) (``During this `contract bar' period, the Board will dismiss
all representation petitions unless they are filed during the 30-day
period that begins 90 days and ends 60 days before the agreement
expires. In other words, there is a 30-day period--customarily known
as the `window period'--during which a petition may be properly
filed while the agreement is still in effect.'') (internal citation
omitted); MSR Industrial Services, LLC, 363 NLRB 1, 2 (2015) (``When
relationships in the construction industry are governed by section
9(a), the employer cannot change terms and conditions of employment
unilaterally upon contract expiration, and it must continue to
recognize and bargain with the union after the contract expires.'').
See also sec. 8(f), 29 U.S.C. 158(f) (recognizing that an 8(f)
agreement ``shall not be a bar to a petition filed pursuant to
section 9(c) or 9(e)'').
\61\ 282 NLRB at 1387.
---------------------------------------------------------------------------
Nonetheless, nothing in section 8(f) prevents a union representing
employees in the construction industry from overcoming the 8(f)
presumption and obtaining the same 9(a) recognition (and the attendant
benefits) as any other union. Thus, under John Deklewa & Sons, the
Board provided for unions representing employees in the construction
industry to obtain 9(a) recognition by demonstrating--similar to unions
representing employees in nonconstruction industries--a ``clear showing
of majority support'' from the unit employees, assayed either through a
Board representation election or the construction employer voluntarily
recognizing that a majority of unit employees had designated the union
as its collective-bargaining representative.\62\
---------------------------------------------------------------------------
\62\ Id. at 1385-1387 & fn. 53.
---------------------------------------------------------------------------
Additionally, because section 8(f) uniquely permits voluntary
recognition in the construction industry in the absence of majority
support, where a construction employer voluntarily recognizes a union,
in order to avoid the uncertainty of whether the recognition is
pursuant to section 8(f) or 9(a), there must be unambiguous evidence
that the construction employer's recognition was pursuant to section
9(a) instead of 8(f). In considering whether there was unambiguous
evidence of section 9(a) recognition, the Board has looked to positive
evidence, including contract language, of the union having made an
unequivocal demand for 9(a) recognition and the employer having
unequivocally granted it.\63\
---------------------------------------------------------------------------
\63\ J & R Tile, Inc., 291 NLRB 1034, 1036 (1988) (``[A]bsent a
Board-conducted election, the Board will require positive evidence
that the union sought and the employer extended recognition to a
union as the 9(a) representative of its employees before concluding
that the relationship between the parties is 9(a) and not 8(f).'');
see also Golden West Electric, 307 NLRB 1494, 1495 (1992) (finding
positive evidence of a union's demand for and a construction
employer's grant of 9(a) recognition where the parties' voluntary-
recognition agreement unequivocally stated that the union claimed it
represented a majority of employees and the employer acknowledged
this was so). This avoids the Board having to determine whether the
union enjoyed majority support at some point in the past--in some
cases many years before a dispute over the union's status has
arisen--if a construction employer attempts to escape a longstanding
bargaining relationship unilaterally, claiming that the relationship
was always an 8(f) relationship. The Board (and the parties) can
rely on the specific written language in the parties' agreement to
confirm their mutual acknowledgment that a showing of majority
support existed when the relationship was established as opposed to
years in the future when evidence may no longer be easily available
(as witnesses and documents may disappear over time).
---------------------------------------------------------------------------
In Staunton Fuel & Material, Inc., the Board defined the minimum
requirements for what must be stated in a written recognition agreement
or contract clause in order for it to serve as sufficient evidence of
the union having attained 9(a) status.\64\ The Board, following the
approach taken by the Tenth Circuit in NLRB v. Triple C Maintenance,
Inc., 219 F.3d 1147 (10th
[[Page 66900]]
Cir. 2000) and NLRB v. Oklahoma Installation Co. 219 F.3d 1160 (10th
Cir. 2000), found that ``[a] recognition agreement or contract
provision will be independently sufficient to establish a union's 9(a)
representation status where the language unequivocally indicates that
(1) the union requested recognition as the majority or 9(a)
representative of the unit employees; (2) the employer recognized the
union as the majority or 9(a) bargaining representative; and (3) the
employer's recognition was based on the union's having shown, or having
offered to show, evidence of its majority support.'' \65\
---------------------------------------------------------------------------
\64\ 335 NLRB 717, 719-720 (2001).
\65\ Id. at 719-720.
---------------------------------------------------------------------------
Significantly, this contract language does not substitute for the
union showing or offering to show evidence of its majority support; it
does, however, provide a contemporaneous, written memorialization that
the union had majority support at the time of the 9(a) recognition.
While holding that contract language can be independently dispositive
of a 9(a) relationship, the Board in Staunton Fuel left open the issue
of whether an employer could challenge the union's majority support
within the 10(b) period where the contractual language the employer had
agreed to unequivocally stated that the union made a showing of
majority support.\66\ As the D.C. Circuit has held, if other evidence
casts doubt on the assertion that the union enjoyed majority support at
the time the employer purportedly granted 9(a) recognition, then the
contract language necessarily fails to satisfy its intended purpose.
---------------------------------------------------------------------------
\66\ Id. at 720 fn. 14.
---------------------------------------------------------------------------
Thus, in Nova Plumbing, Inc. v. NLRB, the D.C. Circuit held that
language in the collective-bargaining agreement between a construction
employer and a union could not establish a 9(a) relationship.\67\ The
court pointed to strong evidence in the record that contradicted the
contractual language.\68\ In particular, senior employees who had been
longtime union members opposed the union representing them with this
employer, for instance a meeting between the senior employees and union
representatives turned ``extremely hostile,'' and the employer's field
superintendents and other foremen ``encountered resistance'' as they
informed other employees about having to join the union.\69\ The court
reasoned that language in the collective-bargaining agreement ``cannot
be dispositive at least where, as here, the record contains strong
indications that the parties had only a section 8(f) relationship.''
\70\ Subsequently, in M & M Backhoe Service, Inc. v. NLRB, the D.C.
Circuit distinguished Nova Plumbing to uphold the language in the
parties' agreement establishing that the union was the 9(a)
representative where there was evidence that the union actually had
majority support, even if the employer never requested to see it.\71\
Six years after M & M Backhoe, in Allied Mechanical Services, Inc. v.
NLRB, the D.C. Circuit quoted the Nova Plumbing court but, in doing so,
added emphasis to indicate that contract language cannot be dispositive
of a union's 9(a) status where the record contains contrary
evidence.\72\
---------------------------------------------------------------------------
\67\ 330 F.3d 531, 537-538 (D.C. Cir. 2003).
\68\ Id. at 533.
\69\ Id. at 537.
\70\ Id.
\71\ 469 F.3d 1047, 1050 (D.C. Cir. 2006) (``This case is like
Nova Plumbing in the following respects: the union offered to prove
to the employer that it had majority support; and the employer
recognized the union without examining the union's proof. But there
is a critical difference. Unlike Nova Plumbing, in which there was
no evidence that the union actually had majority support, here the
record shows--as the Board found--that a majority of employees
voluntarily signed union authorization cards signifying their
support of [the union].'').
\72\ 668 F.3d 758, 766 (2012) (``Standing alone . . . contract
language and intent cannot be dispositive at least where . . . the
record contains strong indications that the parties had only a
section 8(f) relationship.'') (quoting Nova Plumbing, 330 F.3d at
537) (emphasis added in Allied Mechanical Services).
---------------------------------------------------------------------------
More recently, the D.C. Circuit in Colorado Fire Sprinkler, Inc. v.
NLRB rejected the union's claim of 9(a) recognition where the union
relied solely on demonstrably false contract language stating that the
employer had ``confirmed that a clear majority'' of the employees had
designated it as their bargaining representative, even though not a
single employee had been hired at the time the parties initially
executed their agreement containing that language.\73\ The court noted
that ``actual evidence that a majority of employees have thrown their
support to the union must exist and, in Board proceedings, that
evidence must be reflected in the administrative record.'' \74\ The
court recognized that the only evidence of the union's majority support
that could be pointed to in the record was the ``demonstrably false''
contract language.\75\ In fact, as the court pointed out,
``[t]ellingly, at no point in the administrative record did the [u]nion
even explain, let alone proffer, what evidence it claimed to have
collected'' to support its assertion that a majority of employees had
designated it as their bargaining representative.\76\ The court
concluded that the Board had improperly ``blink[ed] away record
evidence undermining the credibility or meaningfulness of the
recognition clauses'' and ``ma[de] demonstrably untrustworthy
contractual language the be-all and end-all of [s]ection 9(a) status.''
\77\ Construction industry employers and unions--like those in all
other industries--cannot have created a 9(a) relationship where the
union did not enjoy majority support, regardless of whether they agree
to a contractual provision falsely attesting to the union's majority
support.\78\
---------------------------------------------------------------------------
\73\ 891 F.3d 1031, 1036 (D.C. Cir. 2018).
\74\ Id. at 1040.
\75\ Id.
\76\ Id. at 1041.
\77\ Id.
\78\ More recently, relying on the D.C. Circuit decision in
Colorado Fire Sprinkler, the Board in Enright Seeding, Inc. noted
that ``contractual language can only serve as evidence of a union's
9(a) majority representation if it is true.'' 371 NLRB No. 127, slip
op. at 5 (emphasis added). Furthermore, the Board explained that
``[c]ontract language alone is insufficient to demonstrate the
union's 9(a) status if other evidence casts doubt on the assertion
that the union enjoyed majority support at the time the employer
purportedly granted 9(a) recognition.'' Id., slip op. at 6. An
application for enforcement of the Board's decision in Enright
Seeding is currently pending in the Eighth Circuit.
---------------------------------------------------------------------------
2. The 6-Month Limitations Period for Challenging a Union's 9(a)
Recognition in the Construction Industry
Importantly, in John Deklewa & Sons, despite the greater statutory
leeway granted to construction employers and unions to enter into
section 8(f) collective-bargaining relationships, the Board recognized
that unions seeking section 9(a) representation do not ``have less
favored status with respect to construction industry employers than
they possess with respect to those outside the construction industry.''
\79\
---------------------------------------------------------------------------
\79\ John Deklewa & Sons, 282 NLRB at 1387 fn. 53. Just as
importantly, employees working for construction employers are
entitled to the same rights and opportunities for their union to
obtain 9(a) status through voluntary recognition as employees in
nonconstruction industries.
---------------------------------------------------------------------------
Six years after issuing John Deklewa & Sons, the Board in Casale
Industries \80\ relied on this basic tenet from John Deklewa & Sons--
that unions representing construction-industry employees should be
treated no less favorably than those representing nonconstruction-
industry employees--to explicitly incorporate into the representation
arena the teachings of the Supreme Court in Local Lodge No. 1424,
International Association of Machinists, AFL-CIO (Bryan Manufacturing
Co.) v. NLRB. In Bryan Manufacturing, the Supreme Court held that if an
employer recognizes a union as the section 9(a) representative and more
than 6 months
[[Page 66901]]
elapse, the Board will not entertain a claim that the union lacked
majority status when it was initially granted recognition.\81\
---------------------------------------------------------------------------
\80\ Casale Industries, 311 NLRB 951, 953 (1993).
\81\ 362 U.S. 411, 419 (1960); see also North Bros. Ford, 220
NLRB 1021, 1021 (1975).
---------------------------------------------------------------------------
In Bryan Manufacturing, more than 6 months after the parties had
executed a collective-bargaining agreement, unfair labor practice
charges were filed contesting the parties' enforcement of the union-
security clause in the contract on the grounds that the union
indisputably lacked majority support at the time the parties executed
their agreement.\82\ Nonetheless, the Court reversed the Board and
dismissed the complaint because, under section 10(b)'s 6-month
limitations period, the complaint was premised on the allegedly
unlawful recognition of the union, which occurred more than 6 months
prior to the filing of the charge.\83\ The Court based its decision on
not only the statutory language but also the practical need for a time
restriction on challenges to a union's initial recognition.\84\ As the
Court acknowledged, quoting the legislative history from the Congress
that enacted it, the 6-month limitations period under section 10(b) is
essential ``to bar litigation over past events `after records have been
destroyed, witnesses have gone elsewhere, and recollections of the
events in question have become dim and confused,' . . . and of course
to stabilize existing bargaining relationships.'' \85\
---------------------------------------------------------------------------
\82\ 362 U.S. at 412.
\83\ Id. at 416-417.
\84\ Id. at 419.
\85\ Id.
---------------------------------------------------------------------------
Relying on Bryan Manufacturing, in Casale, the Board reiterated
that, in nonconstruction industries, the Board will not entertain a
claim that a union lacked majority status at the time of recognition if
more than 6 months have elapsed because ``a contrary rule would mean
that longstanding relationships would be vulnerable to attack, and
stability in labor relations would be undermined.'' \86\ The Board
stated succinctly that these interests should prevail in construction
industry representation cases: ``These same principles would be
applicable in the construction industry . . . . [P]arties in
nonconstruction industries, who have established and maintained a
stable [s]ection 9 relationship, are entitled to protection against a
tardy attempt to disrupt their relationship. Parties in the
construction industry are entitled to no less protection.'' \87\
---------------------------------------------------------------------------
\86\ Casale, 311 NLRB at 953 (citing Bryan Manufacturing Co.,
362 U.S. at 411).
\87\ Id. (citing John Deklewa & Sons, 282 NLRB at 1387 fn. 53).
---------------------------------------------------------------------------
3. The Board's 2019 NPRM on 9(a) Recognition in the Construction
Industry
On August 12, 2019, the Board issued an NPRM seeking public
comments on its proposal, among other things, to modify the manner in
which construction employers may acknowledge a union's 9(a) status.
The Board proposed in its 2019 NPRM to overrule Staunton Fuel,
regarding the sufficiency of contract language alone to establish a
9(a) bargaining relationship.\88\ The Board contended that overruling
Staunton Fuel would be in accordance with the D.C. Circuit decision in
Colorado Fire Sprinkler and that it would be most consistent with
statutory majoritarian principles and protecting employee free
choice.\89\ The Board reasoned that the proposed rule was necessary to
prevent a union, without having any extrinsic proof of its majority
support, from barring the processing of an election petition filed by
an employee or a rival union for up to three years based solely on
language in the union's collective-bargaining agreement with a
construction employer.\90\
---------------------------------------------------------------------------
\88\ 84 FR 39938-39939.
\89\ Id.
\90\ Id.
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Under the rule proposed in the 2019 NPRM, the Board would require,
in the representation context, the parties to retain additional
positive evidence of the union's 9(a) majority support beyond the
parties' contract language. Specifically, if a representation petition
is filed, and the parties are unable to present positive evidence of
the union having made a contemporaneous showing of support from a
majority of unit employees at the time initial recognition was granted,
the parties would be unable to rely on the Board's customary voluntary-
recognition and contract bars. The regional director would be required
to process the representation petition, even if it would destabilize
the collective-bargaining relationship.\91\ Moreover, if the employer
had granted the union 9(a) recognition at a time when it did not enjoy
majority support, the Board would be processing a representation
petition at a time when the employer had provided the union unlawful
assistance under section 8(a)(2) and (1) so that laboratory conditions
may not exist to ascertain employees' true sentiment towards the
union.\92\
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\91\ See General Cable Corp., 139 NLRB 1123, 1125 (1962)
(finding the delay as to when employees are able to exercise their
free choice in an election ``fully warranted when viewed in the
light of countervailing considerations, including the necessity to
introduce insofar as our contract-bar rules may do so, a greater
measure of stability of labor relations into our industrial
communities as a whole to help stabilize in turn our present
American economy'').
\92\ See Joseph Weinstein Electric Corp., 152 NLRB 25, 39 (1965)
(a construction employer's 9(a) recognition of and entering into an
agreement with a union that does not enjoy majority support is
unlawful under sec. 8(a)(2) and (1) and 8(b)(1)(A)); Bear Creek
Construction Co., 135 NLRB 1285, 1286-1287 (1962) (a construction
employer provided unlawful assistance under sec. 8(a)(2) to a union
in obtaining membership applications and checkoff authorization
cards and, therefore, was ordered to cease and desist from
recognizing the union as its employees' collective-bargaining
representative and giving effect to the parties' agreement); see
also General Shoe Corp., 77 NLRB 124, 126 (1948) (``An election can
serve its true purpose only if the surrounding conditions enable
employees to register a free and untrammeled choice for or against a
bargaining representative.'').
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While the NPRM indicated that the Board sought to overrule Staunton
Fuel, the Board's NPRM made no mention whatsoever of altering the
bedrock principle from Bryan Manufacturing, reiterated in Casale--which
was itself a representation case involving an election petition--that a
challenge cannot be made to a union's initial recognition by a
construction employer after 6 months had elapsed. Indeed, no mention
was made of section 10(b), or that a modification to the Board's
limitations period for challenging a union's initial recognition of
9(a) majority status was in any way being contemplated by the Board.
Accordingly, under the language and reasoning of the Board's NPRM, and
in accordance with Casale, even if a construction employer and/or a
union were unable to present positive evidence of the union's initial
9(a) recognition, a representation petition challenging the union's
9(a) recognition that was based on unequivocal written 9(a) recognition
could not be processed if more than 6 months had elapsed from the
union's initial 9(a) recognition.
4. The 2020 Final Rule
On April 1, 2020, following a public comment period, the Board
promulgated its final rule adopting the proposed language from its NPRM
but also stating in the preamble to the rule that it was overruling
Casale ``to the extent that it is inconsistent with the instant rule.''
\93\ The Board proceeded by stating that ``we overrule Casale's holding
that the Board will not entertain a claim that majority status was
lacking at the time of recognition where a construction-industry
employer extends 9(a)
[[Page 66902]]
recognition to a union and 6 months elapse without a petition.'' \94\
The Board asserted that the DC and Fourth Circuits, and some former
Board Members, had expressed doubts regarding section 10(b)'s
applicability to challenges to a construction-industry union's
purported 9(a) status.\95\ The Board claimed that ``the Casale Board
failed to recognize that employees and rival unions will likely presume
that a construction-industry employer and union entered an 8(f)
collective-bargaining agreement . . . . Thus, it is highly unlikely
that [employees and rival unions] will file a petition challenging the
union's status within 6 months of recognition.'' \96\ The Board also
stated that, ``most significantly, [the Board finds that] Casale's
requirement that an election petition be filed within 6 months to
challenge a purported 9(a) recognition in the construction industry
improperly discounts the importance of protecting employee free choice
. . . .'' \97\
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\93\ 85 FR 18391.
\94\ Id.
\95\ Id.
\96\ Id.
\97\ Id.
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The practical effect of the Board's unanticipated overruling of
Casale in the final rule--an action not mentioned, much less considered
by the Board in the NPRM--was to require that a union and employer be
prepared to prove evidence of the union's initial majority support--
forever. Under the final rule, a challenge could be made to a
construction employer's initial recognition of a union many years into
the future at a time when it would be fundamentally unreasonable to
expect the construction employer or the union to have maintained
contemporaneous evidence of the union's majority support. Under the
rule, there is no limit to the amount of time that may have passed
since the initial recognition, but parties would be required to produce
proof of the initial majority support in order for the Board to reject
a challenge to even a longstanding employer-union 9(a) relationship.
D. Pending Litigation Challenging the 2020 Final Rule
On July 15, 2020, the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO) and the Baltimore-DC Metro Building
and Construction Trades Council sued the NLRB (D.D.C. No. 20-cv-1909)
(``AFL-CIO II''), alleging that the entirety of the April 2020 Rule was
invalid because, among other things, it is arbitrary, capricious, an
abuse of discretion, and in violation of the NLRA.
On August 11, 2020, the NLRB filed a motion to transfer AFL-CIO II
to the United States Court of Appeals for the District of Columbia
Circuit, arguing that the district court lacks subject matter
jurisdiction. The AFL-CIO opposed the transfer. The NLRB previously
advanced similar threshold jurisdictional arguments in AFL-CIO v. NLRB
(``AFL-CIO I'') (D.D.C. Case No. 20-cv-675 (KBJ)), which is currently
pending decision by the D.C. Circuit (Case No. 20-5223), concerning
changes to the Board's representation case procedures that the Board
promulgated on December 18, 2019. On October 23, 2020, the district
court in AFL-CIO II ordered a temporary stay pending resolution of the
parties' cross-appeals of AFL-CIO I, where the same jurisdictional
issue will be decided. On May 14, 2021, the D.C. Circuit held oral
argument in AFL-CIO I. Once the D.C. Circuit issues its decision, the
AFL-CIO II parties must file a joint status report within 14 days
proposing a schedule for further proceedings. That litigation remains
pending.
E. Rulemaking Petitions Seeking Rescission of the April 1, 2020 Rule
On November 16, 2021, the AFL-CIO and North America's Building
Trades Unions (``NABTU'') filed a joint petition for rulemaking (``2021
petition'') requesting that the Board rescind each of the amendments
made in the April 1, 2020 final rule. The 2021 petition urged the Board
to: (1) rescind Sec. 103.20, arguing that the Board violated the
Administrative Procedure Act in two respects (by presenting erroneous
data in the NPRM and failing to correct those errors in the final rule,
and by adopting a final rule that was not a logical outgrowth of the
proposed rule) and additionally arguing, as a policy matter, that the
changes to the blocking charge policy were ill-conceived; (2) rescind
Sec. 103.21, alleging that the Board had violated the Administrative
Procedure Act by failing to respond to the AFL-CIO's comment that the
rule violated the Board's duty of neutrality with respect to employees'
choice concerning union representation; and (3) rescind Sec. 103.22,
because the NPRM had not proposed overruling Casale and did not advise
the public that it was contemplating overruling Casale and thus failed
to provide the public with an opportunity to be heard on such a
fundamental modification to collective-bargaining relationships in the
construction industry.
On April 7, 2022, UNITE HERE International Union (``UNITE HERE'')
filed a petition (``2022 petition'') for rulemaking specifically
requesting the Board to rescind Sec. 103.21. The 2022 petition
expressed its support for the 2021 petition but listed additional
policy arguments favoring a return to the Board's prior voluntary-
recognition bar doctrine.\98\
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\98\ The 2021 and 2022 petitions for rulemaking will be part of
the administrative record for this rulemaking.
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III. Statutory Authority
Section 6 of the NLRA, 29 U.S.C. 156, provides that ``[t]he Board
shall have authority from time to time to make, amend, and rescind, in
the manner prescribed by subchapter II of chapter 5 of Title 5 [the
Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations
as may be necessary to carry out the provisions of this [Act].'' \99\
The Supreme Court unanimously held in American Hospital Association v.
NLRB, 499 U.S. 606, 609-610 (1991), that the Act authorizes the Board
to adopt both substantive and procedural rules governing representation
case proceedings. The Board interprets section 6 as authorizing the
proposed amendments to its existing rules.
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\99\ Sec. 6 of the Act refers to the Board's authority to
``rescind'' rules, while sec. 553 of the Administrative Procedure
Act refers to the ``repeal'' of rules. See also 5 U.S.C. 551(5) (``
`[R]ule making' means agency process for formulating, amending, or
repealing a rule''). For purposes of this NPRM, we treat these terms
as interchangeable.
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IV. The Proposed Rule Amendments
A. Rescission of the April 1, 2020 Blocking Charge Amendments
As set forth above, the Board developed the blocking charge policy
through adjudication more than eight decades ago. And, for the more
than eight decades that the Board adhered to the policy, the blocking
charge policy enabled the Board to fulfill one of its core obligations:
to preserve laboratory conditions for ascertaining employee choice
during Board-conducted elections. In addition, the policy advanced the
interests of potential voters by shielding them from voting in an
atmosphere tainted by coercion. Reviewing courts have approved the
Board's historical blocking charge policy. See, e.g., Bishop v. NLRB,
502 F.2d 1024, 1028-1029, 1032 (5th Cir. 1974) (distinguishing
Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (5th Cir. 1971),
and Surratt v. NLRB, 463 F.2d 378 (5th Cir. 1972), as involving a
``high degree of arbitrariness'' in application of the blocking-charge
policy). No court has ever held the policy invalid, despite occasional
disagreements between the Board and
[[Page 66903]]
the courts over the application of the policy in particular cases. For
the reasons that follow, we are inclined to believe, subject to
comments, that the pre-April 2020 blocking charge policy better
balances the Board's interests in protecting employee free choice,
preserving laboratory conditions in Board-conducted elections, and
resolving questions concerning representation expeditiously.
Before explaining why we are inclined to believe, subject to
comments, that the pre-April 2020 blocking charge policy better
balances the Board's interests than the April 2020 final rule, we note
that the rulemaking process that the Board followed in adopting the
April 2020 rule was flawed in its treatment of Board election data. As
discussed above and as the parties that filed the 2021 rulemaking
petition also noted, 2021 Petition at 2-12, the NPRM contained flawed
data that was never corrected in the final rule.
In adopting the final rule, the Board contended that any errors did
not matter because the blocking charge policy by definition delays the
conduct of elections, and its conclusion--that its amendments to the
blocking charge policy better protect employees' statutory right of
free choice on questions concerning representation--constituted a
``policy choice . . . that . . . does not . . . depend on statistical
analysis.'' 85 FR 18366, 18377. We do not dispute that in rulemaking,
the Board may be free to make a policy choice that does not primarily
rely on either statistical data or particular facts about the operation
of the prior rule.\100\ Nevertheless, we are concerned that the Board's
failure to correct errors in the data presented in the NPRM might well
have harmed the rulemaking process.\101\
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\100\ While we acknowledge the Supreme Court's teaching that
relevant data must be examined in the course of rulemaking, Motor
Vehicle Mfrs. Assn. v. State Farm Mutual Automobile Ins. Co., 463
U.S. 29, 43 (1983), it remains true that the Agency may make policy
decisions for which the data does not provide the answer.
\101\ Cf. American Relay Radio League v. FCC, 524 F.3d 227, 237
(D.C. Cir. 2008) (``[S]tudies upon which an agency relies in
promulgating a rule must be made available during the rulemaking in
order to afford interested persons meaningful notice and an
opportunity for comment.''); Portland Cement Association v.
Ruckelshaus, 486 F.2d 375, 392-393 (D.C. Cir. 1973) (relying on
inaccurate data is a ``critical defect'' in an agency's
decisionmaking during a rulemaking proceeding).
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More importantly, turning to the merits of the April 2020 final
rule, the Board is inclined to believe, subject to comments, that
returning to the Board's pre-April 2020 blocking charge policy would
best serve the policies of the Act. Permitting regional directors to
generally decline to process an election petition at the request of a
party who has filed a charge alleging conduct that would interfere with
employee free choice or conduct that is inherently inconsistent with
the petition (and who has simultaneously filed an adequate offer of
proof and agreed to promptly make its witnesses available), until the
merits of the charge can be determined, better protects employee free
choice than the April 2020 amendments that require regional directors
to conduct elections in all cases no matter how serious the unfair
labor practice charges and no matter how powerful the indicia of their
merit. Accordingly, we propose to amend the wording of 29 CFR 103.20 to
conform to the wording of that section as it existed prior to the April
2020 final rule.\102\ In all other respects, the Board's prior
applicable law regarding the blocking charge policy, which was
developed through adjudication, would be restored.
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\102\ See 29 CFR 103.20 (Dec. 15, 2014) (requiring that a party
filing a request to block must simultaneously file an adequate offer
of poof and promptly make its witnesses available, and further
providing that ``[i]f the regional director determines that the
party's offer of proof does not describe evidence that, if proven,
would interfere with employee free choice in an election or would be
inherently inconsistent with the petition itself, and thus would
require that the processing of the petition be held in abeyance
absent special circumstances, the regional director shall continue
to process the petition and conduct the election where
appropriate.'').
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Although we agree with the April 2020 Board that, under ordinary
circumstances, the Board should conduct elections expeditiously, there
can also be no denying--and the April 2020 Board did not deny--that the
Board has regularly confronted cases involving unlawful conduct that
either interferes with the ability of employees to make a free choice
about union representation in an election or is inherently inconsistent
with the petition itself. The Board is inclined to believe, subject to
comments, that it would undermine employee rights, and would run
counter to the Board's duty to conduct elections in circumstances in
which employees may freely choose whether to be represented by a union,
if the Board were to require regional directors to conduct, and
employees to vote in, a coercive atmosphere. But, as the April 2020
Board acknowledged in adopting the final rule, the 2020 blocking charge
amendments require the Board to do precisely that. In particular, the
April 2020 Board acknowledged that the results of the elections must be
set aside and rerun elections ordered when the Type I charges are found
to have merit and to have impacted the election. The April 2020 Board
further acknowledged that the ballots cast in cases involving certain
types of Type II charges will either not be honored (if the ballots had
been counted) or will ``never be counted'' (if they were impounded
because a complaint, which issued within 60 days of the election, is
found to have merit). Thus, it cannot be denied that under the April
2020 amendments, regional directors will be required to run--and
employees, unions, and employers will be required to participate in--
elections conducted under coercive conditions. 85 FR 18370, 18378-
18380. Subject to comments, we are also inclined to believe that
because the April 2020 final rule requires regional directors to run--
and employees, unions, and employers to participate in--elections that
will not resolve the question of representation because they were
conducted under coercive circumstances, the proposed amendments run the
risk of imposing unnecessary costs on the parties and the Board.
Subject to comments, we are also inclined to believe that the Board's
position in the April 2020 rulemaking--that nothing is more important
under the Act and its policies than having employees vote without delay
in every case (even though it means they will be required to vote in
elections under coercive conditions)--cannot be squared with the
Board's responsibility to provide laboratory conditions for
ascertaining employee choice during Board-conducted elections. Put
simply, we are inclined to disagree with the April 2020 Board's
conclusion that it is inappropriate to delay an initial election to
shield employees from having to vote under coercive circumstances.
Subject to comments, we also question the April 2020 Board's
premise that its amendment requiring elections to be held in all cases
involving requests to block is necessary to preserve employee free
choice because the blocking charge policy deprives employees of free
choice in those cases where petitions are blocked by nonmeritorious
charges. While we recognize that blocking elections based on
nonmeritorious charges may result in some delay, our preliminary
position, subject to comments, is that the benefits of not allowing
elections to proceed under the clouds of an unfair labor practice far
outweigh any such delay. We are inclined to believe that the Board's
blocking charge policy as it existed prior to the effective date of the
April 2020 final rule best preserved employee free choice in
representation cases in which petitions are blocked because of
concurrent unfair labor practice charges. We note that because
[[Page 66904]]
the historical blocking charge policy provided for the regional
director to resume processing the representation petition to an
election if a charge were ultimately determined to lack merit,
employees in those cases would be afforded the opportunity to vote
whether they wish to be represented, and thus employee free choice was
preserved. However, unlike the April 2020 rule amendments, the Board's
historical blocking charge policy also protects employee free choice in
cases involving meritorious charges by suspending the processing of the
election petition until the unfair labor practices are remedied. By
shielding employees from having to vote under coercive conditions, the
historical blocking charge policy would seem to be more compatible with
the policies of the Act and the Board's responsibility to provide
laboratory conditions for ascertaining employee choice during Board-
conducted elections. In short, we are inclined to believe, subject to
comments, that it is the 80-year-old blocking charge policy, not the
April 2020 final rule amendments requiring elections in all cases
involving requests to block, that best protects employee free choice in
the election process. 84 FR 39945.\103\
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\103\ Subject to comments, we question the suggestion of the
April 2020 Board that the Board's historical blocking charge policy
can prevent employees from ever obtaining an election if they
continue to desire an election after the merits of the charge are
determined. 85 FR 18366, 18377. As shown, if the petition was held
in abeyance because of a Type I charge, the regional director
resumed processing the petition once the charge was ultimately found
to lack merit or the unfair labor practice conduct was remedied.
Casehandling Manual Sections 11732, 11733.1, 11734 (August 2007).
If, on the other hand, the petition was dismissed because of a Type
II charge, it was subject to reinstatement if the charge was found
nonmeritorious. Id. at section 11733.2. And, as the courts had
recognized, even if the petition was dismissed because of a
meritorious Type II blocking charge, employees could, if they so
choose, file a new petition after the unfair labor practice conduct
that caused the petition to be dismissed is remedied. See Bishop v.
NLRB, 502 F.2d 1024, 1028-1029 (5th Cir. 1974) (``If the employees'
dissatisfaction with the certified union should continue even after
the union has had an opportunity to operate free from the employer's
unfair labor practices, the employees may at that later date submit
another decertification petition.''); see also Albertson's Inc. v.
NLRB, 161 F.3d 1231, 1239 (10th Cir. 1998) (``[A]ny harm to
employees seeking decertification resulting from the blocking of the
petition is slight in that employees are free to file a new petition
so long as it is circulated and signed in an environment free of
unfair labor practices.''). Moreover, even if the petitioner
withdrew their petition, another employee was free to file a new
petition. To be sure, as the April 2020 Board noted, 85 FR 18377, a
blocked decertification petition may never proceed to an election if
the incumbent union disclaims interest in representing the unit.
However, there plainly is no need to hold a decertification election
to afford employees the opportunity to oust the incumbent union if
that union has voluntarily withdrawn from the scene.
We also question the final rule's complaint, 85 FR 18367, 18379,
that the pre-April 2020 blocking charge policy renders illusory the
possibility of employer-filed (``RM'') election petitions. Under
that policy if an RM petition is blocked, the regional director
resumes processing it once the unfair labor practice charges are
remedied or the charges are determined to lack merit. Moreover, as
noted, then-Member McFerran's analysis of the relevant data
indicated that the overwhelming majority of RM petitions are never
blocked, and that even in the minority of instances when RM
petitions are blocked, most of these petitions are blocked by
meritorious charges.
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In proposing to return to the Board's historical blocking charge
policy, we further note that the April 2020 Board pointed to nothing
that had changed in the representation case arena during the eight
decades that the blocking charge policy had been in existence that
justified making their sea change in the law. Prior to the adoption of
the April 2020 final rule, Congress had not amended the Act in such a
way as to call the blocking charge policy into question. No court had
invalidated the policy. To the contrary, the courts had recognized that
the salutary reasons for the blocking charge policy ``do not long elude
comprehension,'' and that the policy had ``long-since [been]
legitimized by experience.'' Bishop v. NLRB, 502 F.2d 1024, 1028, 1032
(5th Cir. 1974).\104\ And, significantly, the Agency's regional
directors--the officials who are charged with administering the policy
in the first instance, and whose opinions were explicitly sought and
received by the Board--had publicly endorsed the policy.\105\
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\104\ Accord Blanco v. NLRB, 641 F.Supp. 415, 417-418, 419
(D.D.C. 1986) (rejecting claim that sec. 9 imposes on the Board a
mandatory duty to proceed to an election whenever a petition is
filed notwithstanding the pendency of unfair labor practice charges
alleging conduct that would interfere with employee free choice in
an election, and holding that the use of the blocking charge rule
was ``in accord with the Board's policy to preserve the `laboratory
conditions' necessary to permit employees to cast their ballots
freely and without restraint or coercion.''); see also Remington
Lodging & Hospitality, LLC v. Ahearn, 749 F.Supp.2d 951, 960-961 (D.
Alaska 2010) (``[W]here a petition to decertify the union is related
to the ULP charges, the `blocking charge rule' prioritizes the
agency's consideration of the ULP charges to ensure that any
decertification proceedings are handled in an uncoerced
environment.''). As the Fifth Circuit explained in Bishop, 502 F.2d
at 1028-1029 (citations omitted), ``it would be particularly
anomalous, and disruptive of industrial peace, to allow the
employer's [unfair labor practices] to dissipate the union's
strength, and then to require a new election which `would not be
likely to demonstrate the employees' true, undistorted desires,'
since employee disaffection with the union in such cases is in all
likelihood prompted by [the situation resulting from the unfair
labor practices].
``If the employer has in fact committed unfair labor practices
and has thereby succeeded in undermining union sentiment, it would
surely controvert the spirit of the Act to allow the employer to
profit by his own wrongdoing. In the absence of the `blocking
charge' rule, many of the NLRB's sanctions against employers who are
guilty of misconduct would lose all meaning. Nothing would be more
pitiful than a bargaining order where there is no longer a union
with which to bargain.
``Nor is the situation necessarily different where the
decertification petition is submitted by employees instead of the
employer or a rival union. Where a majority of the employees in a
unit genuinely desire to rid themselves of the certified union, this
desire may well be the result of the employer's unfair labor
practices. In such a case, the employer's conduct may have so
affected employee attitudes as to make a fair election impossible.
``If the employees' dissatisfaction with the certified union
should continue even after the union has had an opportunity to
operate free from the employer's unfair labor practices, the
employees may at that later date submit another decertification
petition.''
\105\ See April 13, 2018 Regional Director Committee's Response
and Comments to the Board's Request for Information on the
Representation-Case Procedures, at 1 (reporting that directors ``do
not see a need to change'' blocking charge Sec. 103.20).
---------------------------------------------------------------------------
Subject to comments, we also question the reasons offered by the
Board in adopting the April 2020 amendments and eliminating the
historical blocking charge policy.
First, the April 2020 Board repeatedly emphasized the obvious: that
the blocking charge policy causes delays in conducting elections. From
this, the Board argued that the blocking charge policy impedes employee
free choice. 85 FR 18366, 18367, 18372-18373, 18375-18380, 18393.
However, as then-Member McFerran pointed out in her dissent to the
proposed amendments, the Board's conclusion does not necessarily follow
from its premise. 84 FR 39943. To the contrary, we are inclined to
believe that the blocking charge policy better protects employee free
choice notwithstanding the delay that the policy necessarily entails.
As the Board has previously observed, ``it is immaterial that elections
may be delayed or prevented by blocking charges, because when charges
have merit, elections should be [delayed or] prevented.'' Levitz, 333
NLRB at 728 fn. 57 (emphasis in original). We thus are inclined to
agree with the observation of the December 2014 Board, when it codified
the decades-old blocking charge policy, that ``[i]t advances no policy
of the Act for the agency to conduct an election unless employees can
vote without unlawful interference.'' 79 FR 74429. If the circumstances
surrounding an election interfere with employee free choice, then,
contrary to the April 2020 final rule, it does not seem ``efficient''
to permit employees to cast ballots ``speedily'' because the ballots
cast in such an election cannot be deemed to ``accurately'' reflect
employees' true, undistorted desires. 85 FR 18367,
[[Page 66905]]
18380, 18393. That is why, as the April 2020 Board acknowledged,
elections conducted under coercive circumstances under its amendments
will not actually resolve the question of representation.\106\
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\106\ The April 2020 Board made the claim that employees would
be less ``frustrate[d]'' or ``confuse[d]'' under its amendments, 85
FR 18380, which provide that, although the ballots will be promptly
opened and counted in the vast majority of cases, the results of the
election will nevertheless not be certified until there has been a
final disposition of the charge and a determination of its effects
on the petition by the Board. 85 FR 18370. We reject this
speculative proposition. We are inclined to believe, subject to
comments, that opening and counting ballots submitted under coercive
circumstances, yet refusing to certify the results, will, at best,
confuse employees and, at worst, actively mislead them by conveying
a materially false impression of union support. Moreover, it takes
the same amount of time to determine the merits of the charge,
whether that determination is made before an election is conducted
(as under the Board's historical blocking charge policy) or whether
that determination is made after the election (as is the case under
the April 2020 amendments). In short, just as was the case under the
Board's historical blocking charge policy, the question of
representation cannot be resolved under the April 2020 final rule
until the merits of the charge have been determined. In any event,
the final rule also did not address the frustration that might well
be felt by employees who, under the April 2020 final rule, will be
required to vote under coercive circumstances.
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Second, the Board complained that there is a potential for
incumbent unions to abuse the blocking charge policy by deliberately
filing nonmeritorious unfair labor practice charges in the hopes of
delaying decertification elections. 85 FR 18367, 18376, 18377, 18379-
18380, 18393. But, as then-Member McFerran pointed out in her dissent
to the proposed rule, the prior Board majority made no effort to
determine how often decertification petitions are blocked by
meritorious charges, as compared to nonmeritorious charges, or how much
delay is attributable to nonmeritorious charges (which still may well
have been filed in good faith, and not for purposes of obstruction). 84
FR 39943. Nor did the final rule. In short, there has been no showing
that it was the norm for unions to file frivolous blocking charges to
postpone elections in RD or RM cases. And, as noted, the NPRM dissent's
analysis of the pre-Covid data would seem to undercut the April 2020
Board's unsupported concern, as it appears to show that an overwhelming
majority of the decertification petitions and employer filed RM
petitions are never blocked, and that even in the minority of instances
when decertification petitions and RM petitions are blocked, most of
these petitions are blocked by meritorious charges.\107\ Moreover,
subject to comments, we are inclined to believe that the regulatory
provisions adopted in 2014--requiring the party that seeks to block the
election to (1) simultaneously file an offer of proof providing the
names of its witnesses who will testify in support of the charge and a
summary of each witness' anticipated testimony, and (2) promptly make
the witnesses available to the regional director--constitute a
disincentive to file frivolous charges and provide powerful tools to
regional directors to promptly dispose of any frivolous charges that
are filed. See Associated Builders and Contractors of Texas, Inc. v.
NLRB, 826 F.3d 215, 228 (5th Cir. 2016) (citing amended Sec. 103.20's
offer of proof requirement and concluding that the Board ``considered
the delays caused by blocking charges, and modified current policy in
accordance with those considerations.'').
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\107\ Moreover, the NPRM dissent's analysis seemed to show that
the merit rates for blocking charges filed in the RD and RM
contexts--66 percent and 89 percent respectively--were substantially
higher than the merit rate for all unfair labor practice charges,
which in FYs 2016 and 2017 merely ranged from 37.1% to 38.6%. 84 FR
39944 & fn. 64, 39945 fn. 69 (and materials cited therein).
Ultimately, however, just as the April 2020 Board decided to
substantially eliminate the blocking charge policy based on a policy
choice that does not depend on statistical analysis, we propose to
return to the judicially approved, historical blocking charge policy
based on a policy choice that the historical blocking charge policy
better enables the Board to fulfill its function in election
proceedings of providing a laboratory in which an experiment may be
conducted, under conditions as nearly ideal as possible, to
determine the uninhibited desires of employees.
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Further, compared to the countless examples of cases where
employers engage in coercive behavior--such as instigating
decertification petitions, committing unfair labor practices that
inevitably cause disaffection from incumbent unions, and engaging in
unfair labor practices after a decertification petition is filed--in an
effort to oust incumbent unions, or engage in coercive behavior to sway
employee votes in the context of initial organizing campaigns, the
final rule cited the same few isolated cases that the NPRM had cited to
support the April 2020 Board's claim of judicial concern about the
blocking charge policy's effect on employee free choice. 85 FR
18367,18376; 84 FR 39931-39932. Subject to comments, we are inclined to
believe that those cases do not constitute persuasive authority for
eliminating the blocking charge policy, for the same reasons the
dissenting Board member articulated in her dissent to the NPRM.\108\
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\108\ As mentioned above, although the Board's application of
the blocking charge policy in a particular case had occasionally
been criticized, no court had ever denied enforcement to a Board
decision based upon a generalized rejection of that policy. 84 FR
39943.
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Third, the April 2020 Board found fault with the blocking charge
policy because it permits a mere discretionary ``administrative
determination'' as to the merits of unfair labor practice charges to
delay employees' ability to vote whether they wish to obtain, or
retain, union representation. 85 FR 18367, 18377, 18393. Subject to
comments, we are inclined to believe that that does not constitute a
persuasive reason to retain the April 2020 amendments. As the dissent
to the NPRM pointed out, the Board ignored that regional directors and
the General Counsel make all sorts of administrative determinations
that impact the ability of employees to obtain an election or to retain
union representation. 84 FR 39944. For example, employees, unions, and
employers are denied an election if the regional director makes an
administrative determination that the petitioner lacks an adequate
showing of interest. See 79 FR 74391, 74421 (the adequacy of the
showing of interest is a matter for administrative determination and is
nonlitigable). Regional directors may also deny employer and union
requests for second elections based on an administrative determination
that no misconduct occurred or that any misconduct that occurred did
not interfere with employee free choice. See 79 FR 74412, 74416
(parties have no entitlement to a post-election hearing on election
objections or determinative challenges, and regional directors have
discretion to dispose of such matters administratively).\109\ Indeed,
the Board's skepticism toward regional director administrative
determinations in this context is in considerable tension with
Congress' decision to authorize regional directors to administratively
decide when elections should be conducted in
[[Page 66906]]
the first place and when the results of elections should be certified
in section 3(b) of the Act. See also 79 FR 74332-74334 (observing that
Congress expressed confidence in the regional directors' abilities when
it enacted section 3(b)).
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\109\ The D.C. Circuit's decision in Allied Mechanical Services,
Inc. v. NLRB, 668 F.3d 758, 761, 771, 773 (D.C. Cir. 2012) provides
further support for the notion that the April 2020 Board's distrust
of administrative determinations is not well founded. There, the
court rejected claims that an administrative settlement of a Gissel
complaint--that is, a settlement agreement approved by a regional
director requiring the company to bargain with the union as the
unit's exclusive representative--was insufficient to demonstrate
that a union had sec. 9(a) status. Id. at 770-771. In doing so, the
court relied on a longstanding presumption that the actions of
administrative officials are fair and regular. Id. (citing cases).
The court reasoned, moreover, that it would be ``unlikely--and even
illogical--to suppose that the Board's General Counsel would have
asserted that a majority of [the Company's] unit employees had
designated the Union as their representative through authorization
cards, and that a Gissel bargaining order was necessary to remedy
the Company's unfair labor practices, without first investigating
the Union's claim of majority status and satisfying itself that a
Gissel bargaining order was appropriate.'' Id. at 771.
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Fourth, the April 2020 Board complained that employees who support
decertification petitions are adversely affected by blocking charges
because delay robs the petition effort of momentum and thereby
threatens employee free choice. 85 FR 18367, 18393. We are inclined to
believe, subject to comments, that this justification for the April
2020 amendments misapprehends the core statutory concerns underlying
the blocking charge policy. As then-Member McFerran noted in her
dissent to the NPRM, if a party has committed unremedied unfair labor
practices that interfere with employee free choice, then elections in
those contexts will not accurately reflect the employees' unimpeded
desires and therefore should not be conducted. 84 FR 39944. Indeed, the
momentum that the final rule seeks to preserve may be entirely
illegitimate, as in cases where the employer unlawfully initiates the
decertification petition, or the momentum may be infected by unlawful
conduct, as in cases where after a decertification petition is filed,
the employer promises to reward employees who vote against continued
representation or threatens adverse consequences for employees who
continue to support the incumbent union.\110\
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\110\ Subject to comments, we question whether the Board was
justified in adopting its amendments because they allow the
balloting to occur when the parties' respective arguments are
``fresh in the mind[s] of unit employees.'' 84 FR 39937-39938, 85 FR
18393. Under the Board's historical blocking charge policy,
balloting also occurred when the parties' respective arguments were
``fresh in the minds'' of unit employees, because parties had an
opportunity to campaign after the regional director resumed
processing a petition (once either the unfair labor practice conduct
was remedied or the director determined that the charge lacked
merit). Subject to comments, we are inclined to believe that all the
April 2020 final rule ensures is that balloting will occur when the
unremedied coercive conduct is fresh in the minds of unit employees,
undermining the Act's policy of protecting employee free choice in
the election process and contravening the Board's duty to conduct
fair elections.
We also question whether the Board was justified in adopting the
April 2020 amendments because they eliminate the ability of either
party to control the pre-election narrative as to whether the Board
has found probable cause that the employer has committed unfair
labor practices. 84 FR 39938, 85 FR 18393. As then-Member McFerran
pointed out in her dissent to the NPRM, under the Board's historical
blocking charge policy, neither the Board nor the regional director
notified unit employees that the petition was being held in abeyance
because there was ``probable cause'' to believe that a party had
committed unfair labor practices. 84 FR 39946 fn. 70. To be sure,
under the Board's historical blocking charge policy, a party was
free to tell unit employees that the regional director had blocked
action on the petition because a party stood accused of committing
unfair labor practices, and the charged party was free to tell the
unit employees that it was innocent of any wrongdoing and that the
charging party was responsible for the delaying the employees'
opportunity to vote. But, under the April 2020 final rule, parties
are similarly free to inform unit employees, in advance of the
election in the vast majority of cases, that although employees will
be permitted to vote, the results of the election will not be
certified until a final determination is made as to the merits of
the unfair labor practice charge(s) alleging that a party has
engaged in conduct that interferes with employee free choice (or
that the regional director will impound the ballots cast in the
election for at least 60 days--rather than immediately opening and
counting the ballots following the election--because a party stands
accused of committing unfair labor practices concerning the
legitimacy of the petition itself). The charged party, meanwhile,
will be free to inform unit employees that it is innocent of any
wrongdoing and that the charging party is responsible for the delay
in the certification of the results or the opening and counting the
ballots.
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The April 2020 Board also criticized the blocking charge policy as
creating ``an anomalous situation'' whereby conduct (if alleged in
election objections) that cannot be found to interfere with employee
free choice because it occurred pre-petition, see Ideal Electric, 134
NLRB 1275 (1961), can nevertheless be the basis for delaying or denying
an election. 85 FR 18367, 18393. We question whether this constitutes a
persuasive reason not to return to the blocking charge policy as it
existed prior to the effective date of the April 2020 amendments. Ideal
Electric does not preclude the Board from considering pre-petition
misconduct as a basis for setting aside an election. As the Board has
explained, ``Ideal Electric notwithstanding, the Board will consider
prepetition conduct that is sufficiently serious to have affected the
results of the election.'' Harborside Healthcare, Inc., 343 NLRB 906,
912 fn. 21 (2004). Accord Madison Square Garden CT., LLC, 350 NLRB 117,
122 (2007). Further, as the April 2020 Board implicitly conceded, under
its final rule, it is equally the case that ballots will ``never be
counted'' in some cases based on serious pre-petition misconduct, such
as where the employer instigates the petition and where a complaint
issues within 60 days of the election. 85 FR 18378, 18380 (even if the
ballots are counted under the April 2020 final rule because the
complaint on the Type II charge issues more than 60 days after the
election, the ballots will be thrown out if the Board ultimately
decides that the charge has merit). Moreover, under the pre-April 2020
blocking charge policy, regional directors had discretion to reject
blocking requests and proceed straight to an election when they
concluded that, under the circumstances, employees would be able to
exercise free choice notwithstanding a pending unfair labor practice
charge (because, for example, the charge merely alleged minor and
isolated pre-petition unfair labor practice conduct).\111\
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\111\ See Casehandling Manual Section 11731.2 (January 2017)
(``There may be situations where, in the presence of a request to
block (Secs. 11731.1(a)), the regional director is of the opinion
that the employees could under the circumstances, exercise their
free choice in an election and that the R case should proceed
notwithstanding the existence of a concurrent Type I or Type II
unfair labor practice case. In such circumstances, the regional
director should deny the request to block.'').
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The April 2020 Board also justified its amendments to the blocking
charge policy by claiming that regional directors had not been applying
the blocking charge policy consistently. 85 FR 18367, 18379, 18393.
However, after reviewing the final rule, we question whether that
justification is persuasive. The final rule did not offer any specific
evidence demonstrating any significant differences in how regions were
actually applying the blocking charge policy as it existed at the time.
Moreover, because the pre-April 2020 blocking charge policy entitled
parties to file requests for Board review of regional director
decisions to block elections based on either Type I or Type II charges,
we believe that the Board had the ability to correct any erroneous
blocking determinations made by regional directors. See 29 CFR 102.71
(2011); Casehandling Manual Sections 11730.7, 11733.2(b) (January
2017). Accordingly, we are inclined to believe that a return to the
blocking charge policy as it existed prior to the effective date of the
amendments would not create a widespread problem where petitions that
would normally be blocked in some regions would normally be processed
to election in other regions.
The April 2020 Board also faulted the blocking charge policy
because a possible result of delaying elections is that employees who
were in the workforce when the petition was filed might not be in the
workforce when the election is ultimately held following disposition of
the blocking charge, thereby disenfranchising those employees. 85 FR
18367, 18378, 18393. Subject to comments, we question whether this
justification for eliminating the historical blocking charge policy is
persuasive. Unless the Board were to conduct elections the day the
election petition is filed, the possibility of employee turnover is
unavoidable. Indeed, even in the absence of any unfair labor practice
charges being filed
[[Page 66907]]
prior to the election, those eligible to vote are not those employed in
the unit at the time the petition is filed. Rather, the employees who
are eligible to vote in the election are those employees who were
employed during the payroll period for eligibility and who remain
employed as of the election. In directed election cases, this means
that only employees employed in the unit during the payroll period
immediately preceding the date the decision and direction issues--and
who remain employed as of the election--are eligible. Casehandling
Manual Section 11312.1 (August 2007). In the stipulated election
context, the payroll period for eligibility is normally the last
payroll period ending before the regional director's approval of the
agreement. Casehandling Manual Sections 11086.3, 11312.1 (August 2007).
Subject to comments, we are inclined to believe that it serves no
valid purpose to conduct elections in which employees cannot exercise
free choice, even though delaying the election until employees can vote
in a noncoercive atmosphere might mean that some employees who were
present at the time the petition was filed are no longer employed at
the time a free and fair election is held. As for the subset of cases
where the charges are nonmeritorious, we question whether it is
``unjust'' to bar employees from voting who were employed at the time
of the petition filing, but who are no longer employed when the
regional director resumes processing the petition. As noted, the same
rule applies in cases where no unfair labor practice charges are ever
filed. Thus, employees who were employed as of the filing of the
petition, but who are no longer employed as of the time of the
election, are not eligible to vote. Certainly, there is nothing in the
blocking charge policy that compels any employee to leave their place
of employment during the period when the petition is held in abeyance
pending a determination of the merits of the charge. The April 2020
Board does not explain why employees who are no longer in the workforce
should be given a say in determining whether current employees should
be represented for purposes of collective bargaining with their
employer.\112\
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\112\ Subject to comments, we are also inclined to believe that
the April 2020 Board's view--that it should prioritize speedy
elections over employee free choice in order to maximize the
likelihood that those employed at the time of the petition filing
will be able to vote in an election--is undermined by the same
Board's adoption of the 2019 Representation-Case Procedures Rule
that delayed the period of time between the filing of the petition
and the holding of the election (thereby potentially
disenfranchising those employed when the petition was filed) in
cases where there have been no unfair labor practice charges of any
kind filed, let alone those alleging conduct that would interfere
with employee free choice. See Representation-Case Procedures, 84 FR
69524, 69524-69525, 69560-69563, 69566-69569, 69572-69579, 69580-
69585 (Dec. 18, 2019) (noting that the Board's December 2019 rule
delays the period between the filing of the petition and the
election in directed election cases by, for example, delaying the
opening of the pre-election hearing by two weeks--beyond any Board's
processing time in more than two decades--while simultaneously
making such hearings easier to postpone, entitling parties to file
briefs in all cases a week after the close of the pre-election
hearing (with additional extensions of up to 2 weeks) even when the
regional director concludes that briefing would be unhelpful,
entitling parties to litigate matters that are not relevant to the
statutory purpose of the pre-election hearing and requiring regional
directors to decide matters that need not be decided to determine
whether a question of representation exists that should be resolved
by an election; and instituting a 20-business day waiting period
between the direction of election and the election itself to allow
the Board to rule on interlocutory appeals that are rarely filed
prior to the election, almost never result in reversals before the
election, and in any event could be mooted by election results).
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We additionally note that the April 2020 amendments do not entirely
eliminate the risk that employees who end up voting in a valid election
(i.e., an election whose results are certified) will not be those who
were employed at the time of the petition filing. To repeat, the April
2020 final rule recognizes that the Board should set aside the initial
election and, in certain circumstances, conduct a rerun election in
cases where the charges are meritorious. And just as was the case prior
to the April 2020 amendments, the eligibility period for rerun
elections after that final rule is the payroll period preceding the
date of issuance of the notice of rerun election, not the payroll
period preceding the date of the original decision and direction of
election (or approval of the stipulated election agreement), and
certainly not the date of the petition filing. See Casehandling Manual
Sections 11436, 11452.2 (August 2007); Casehandling Manual Sections
11436, 11452.2 (September 2020). Some risk of disenfranchisement is
unavoidable in this context, but the risk of disenfranchisement caused
by holding an election under nonlaboratory conditions may well outweigh
that risk under the 2020 final rule.
The final rule also appeared to suggest that the blocking charge
policy impeded settlement and that the policy should therefore be
eliminated to promote settlement of blocking charges. 85 FR 18380. We
confess that we are not entirely certain that we understand the Board's
cryptic statements in this regard. To the extent that the April 2020
Board adopted the amendments because it believed they would promote
settlement (by enabling the parties to know the results of the election
during their settlement discussions), we question whether that belief
is a reason to refrain from restoring the Board's historical blocking
charge policy. The blocking charge policy advances core statutory
interests--promoting employee free choice regarding whether to be
represented by a labor organization for purposes of collective
bargaining. We are inclined to believe that, even assuming for purposes
of argument that the April 2020 final rule promotes settlement of
charges, the worthy administrative goal of promoting settlement of
unfair labor practice charges should not trump the fundamental
statutory policy of protecting the right of employees to freely choose
whether to be represented for purposes of collective bargaining by
labor organizations.
In any event, we note that the April 2020 Board did not explain why
parties would in fact be more likely to settle a charge under the April
2020 amendments (which provide for the holding of an election in all
cases) than they would be to settle if the same charge were instead
holding up an election and preventing employees from voting (under the
pre-April 2020 blocking charge policy). And we question whether that is
the case. Indeed, we suspect that the April 2020 Board thought that
settled charges should not be deemed meritorious in part because it
believed that at least some employers thought that it was worth
settling blocking charges under the historical blocking charge regime
that they otherwise would not have settled just so that their employees
could vote ``sooner'' to possibly rid themselves of their
representative in a decertification election. However, as noted, under
the April 2020 amendments, employees will be permitted to vote even if
the employer does not settle a pending charge against it before the
election. Nor is it clear why the April 2020 final rule would encourage
a union (that is seeking to delay its ouster) to settle its unfair
labor practice charge after the election. As noted, under the April
2020 amendments, the certification of results is withheld until there
is final disposition of the charge and its impact on the election by
the Board. 85 FR 18370, 18377, 18399. In other words, under the April
2020 final rule, the outcome of the representation case still must
await the outcome of the unfair labor practice case (even though an
election has been held), the same result that obtained under the
Board's historical blocking charge policy. And it
[[Page 66908]]
takes the same amount of time to determine the merits of the charge
whether that determination is made before an election is conducted (as
under the Board's historical blocking charge policy) or whether that
determination is made after the election (as is the case under the
April 2020 amendments).
We also question the April 2020 Board's apparent view that once the
results of the election are known, the unfair-labor-practice-charge-
settlement discussions are simplified because the parties' strategic
considerations related to the election are removed from consideration.
85 FR 18380. Thus, although under the April 2020 amendments, an
election will be held in all cases, it seems that parties will still
have to consider the representation case as part of their settlement
negotiations regarding the unfair labor practice charge(s). Because, as
the April 2020 Board noted (85 FR 18377), a ``settled charge'' cannot
be deemed meritorious unless it has been admitted by the charged party,
a settled charge cannot result in a rerun election (or dismissal of the
petition) unless the charged party agrees to a rerun election as part
of the settlement agreement or admits that it violated the Act as part
of the settlement. Thus, the party seeking to set aside the election
results will need to address the representation case as part of its
settlement discussions regarding the unfair labor practice charge(s) it
filed. (In other words, the charging party will want the charged party
as part of the settlement to agree to a rerun election or to admit that
it violated the Act.) Indeed, knowledge of the provisional election
outcome may perversely incentivize cases not to settle where a party
deems that vote tally so valuable to its interests that it makes it
efficient to litigate a long-shot legal theory in the unfair labor
practice case.
Finally, the final rule asserted that there is no reason to delay
elections when charges allege conduct that would interfere with
employee free choice because the Board can always conduct a rerun
election if the charge is ultimately found meritorious (or issue an
affirmative bargaining order in cases involving the limited subset of
Type II charges). 85 FR 18378, 18380. Subject to comments, we are
inclined to disagree. Indeed, we are inclined to believe that, by
requiring the Board to conduct elections under coercive circumstances,
the April 2020 amendments contravene the Board's responsibility to
conduct free and fair elections and undermines the Act's policy of
protecting employee free choice in the election process. We also are
inclined to believe, subject to comments, that by forcing employees to
go to elections that will not count, the April 2020 final rule
additionally threatens to create a sense among the employees that
attempting to exercise their section 7 rights is futile, while risking
imposing unnecessary costs on the parties and the Board. Moreover, by
requiring the Board to conduct elections that will have to be rerun,
the April 2020 final rule would seem to threaten industrial peace.
Subject to comments, we are inclined to believe that the April 2020
amendments do not put the unit employees in the position that most
closely approximates the position they would have been in had no party
committed unfair labor practices interfering with employee free choice.
Had no party committed unfair labor practices, employees would not be
voting in an atmosphere of coercion. But employees seemingly have to
vote in an atmosphere of coercion under the April 2020 amendments,
because the April 2020 final rule requires regional directors to
conduct elections in all cases where there are concurrent unfair labor
practice charges and further requires the opening and counting of the
ballots in the vast majority of such cases. Accordingly, when a rerun
election is conducted after the charged party takes all the action
required by the Board order or settlement agreement, the union will
have to convince each employee who voted against it under coercive
conditions to switch their vote, something the union normally would not
have had to do under the blocking charge policy because the regional
director would not have held an election until the unfair labor
practice conduct was remedied. And, as the Board previously concluded
in its 2014 rule, 79 FR 74418-74419, there is a substantial risk that
the tainted election will compound the effects of the unfair labor
practices, because employees who voted against union representation
under the influence of the employer's coercion are unlikely to change
their votes in the rerun election. See NLRB v. Savair Mfg. Co., 414
U.S. 270, 277-78 (1973). The union will also have to convince employees
that it is worth voting for the union--and to risk incurring the wrath
of their employer--even though employees will know that the union
already lost the earlier election, something the union normally would
not have had to do under the blocking charge policy because the
regional director would not have held an election until the unfair
labor practice was remedied.\113\ It certainly cannot be counted as a
statutory success if a union chooses not to seek a rerun election after
losing an election conducted under coercive conditions that interfered
with employee free choice. Thus, we are inclined to believe, subject to
comments, that it is the historical blocking charge policy, rather than
the April 2020 amendments, that puts the unit employees in a position
that more closely approximates what would have happened had no party
committed unfair labor practices and best protects employee free
choice.
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\113\ We note that the April 2020 final rule implicitly conceded
the validity of these concerns in two primary respects. First, the
rule acknowledged that the harm employees will suffer by voting in
an election that will later be set aside can be addressed ``in some
cases'' by impounding the ballots. 85 FR 18378, 18380. Second, the
rule apparently relied on a premise that the immediate opening and
counting of the ballots in the vast majority of cases provides a
disincentive for unions to file charges seeking to block the
election because tallying the ballots reveals to employees that the
union is acting against their wishes. 85 FR 18379-18390. Thus, under
this premise, if the union has lost the election that was conducted
despite the pendency of charges alleging coercive conduct, that
circumstance will (or is at least very likely to) have a meaningful
effect on employees' perception of the union.
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We are also inclined to believe that the April 2020 final rule
creates perverse incentives for employers to commit unfair labor
practices. By requiring the Board to conduct elections in most cases
where Type I or Type II unfair labor practice conduct has occurred, the
final rule creates a perverse incentive for unscrupulous employers to
commit unfair labor practices because the predictable results will be:
(1) to force unions to expend resources in connection with elections
that will not reflect the uninhibited desires of the employees; and (2)
to create a sense among employees that seeking to exercise their
section 7 rights is futile.\114\ This possibility may well induce
unions to forego the Board's electoral machinery in favor of
recognitional picketing and other forms of economic pressure, thereby
exacerbating industrial strife and
[[Page 66909]]
contravening the statutory policy favoring ``eliminat[ing] the causes
of certain substantial obstructions to the free flow of commerce.'' 29
U.S.C. 151.
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\114\ Indeed, it seems difficult, at least, to square the April
2020 final rule's requiring elections in all cases no matter the
severity of the employer's unfair labor practices with the Supreme
Court's approval in Gissel of the Board's practice of withholding an
election and issuing a bargaining order when the employer has
committed serious unfair labor practice conduct disruptive of the
election machinery and where the Board concludes that ``the
possibility of erasing the effects of [the employer's] past [unfair
labor] practices and of ensuring a fair election . . . by the use of
traditional remedies, though present, is slight and that employee
sentiment once expressed through [union authorization] cards would,
on balance, be better protected by a bargaining order . . . .'' NLRB
v. Gissel Packing Co., 395 U.S. 575, 591-592, 610-611, 614-615
(1969).
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In sum, we are inclined to believe, subject to comments, that the
Board's historical blocking charge policy better protects employee free
choice than the April 2020 amendments. Accordingly, we propose to
permit regional directors once again to generally decline to process
election petitions at the request of a party who has filed an unfair
labor charge alleging conduct that would interfere with employee free
choice in an election or that is inherently inconsistent with the
petition itself and which is supported by an offer of proof listing the
names of the witnesses who will testify in support of the charge and a
summary of each witness's anticipated testimony, until the merits of
the charge can be determined.
B. Rescission of Rule Providing for Processing of Election Petitions
Following Voluntary Recognition; Voluntary-Recognition Bar to
Processing of Election Petitions
The Board, subject to comments on all aspects of the proposed rule,
proposes to rescind the current Sec. 103.21 of the Board's Rules and
Regulations, providing for the processing of election petitions
following voluntary recognition, and to replace it with a new rule that
codifies the traditional voluntary-recognition bar as refined in Lamons
Gasket Co., 357 NLRB 739 (2011), which the Board overruled in adopting
Sec. 103.21.\115\
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\115\ Concerning the appropriateness of bargaining units in this
context, in Central General Hospital, 223 NLRB 110, 111 fn. 10
(1976), the Board stated: ``As in the contract bar area, e.g.,
Airborne Freight Corporation, 142 NLRB 873, 874-875 (1963), a
recognition agreement constitutes a bar only if the unit involved
meets the requisite standard of appropriateness.'' Thus, under the
proposed rule, the recognition bar applies where the recognized unit
is an appropriate one. However, as Central General Hospital
suggests, this requirement incorporates the long-standing principle
that the appropriateness of the unit depends on the context, and the
question of whether a voluntarily recognized unit is appropriate may
turn on considerations deemed relevant in this particular setting,
or in an analogous context, such as contract or successor bar,
rather than those that obtain in the case of an initial
determination made by the Board following a representation petition.
Id. at 111-112 (``[T]he resulting unit is sufficiently appropriate
for the recognition agreement to operate as a bar'') (emphasis
added). See also NLRB v. Cardox Div. of Chemetron Corp., 699 F.2d
148, 156 (3d Cir. 1983) (``[I]n a voluntary recognition case,
section 9(b) requires only that the Board make a determination that
the unit agreed upon by the parties is not inconsistent with the
National Labor Relations Act and past Board policy.''); Airborne
Freight Corp., supra 142 NLRB at 874-875 (``[T]he voluntary grouping
of the two clericals with the operating employees, a number of whom
regularly perform clerical functions, is insufficient to render the
contractual agreement inherently inappropriate and remove the
agreement as a bar'').
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The proposed rule, like current Sec. 103.21, is limited to the
representation-case context. It does not subject an employer to unfair
labor practice liability under section 8(a)(5) of the Act for
withdrawing recognition from a voluntarily recognized union before a
reasonable period for bargaining has elapsed. See, e.g., Brown &
Connolly, Inc., 237 NLRB 271, 275 (1978), enfd. 593 F.2d 1373 (1st Cir.
1979). The Board invites public comment on whether it should adopt as
part of the Board's Rules and Regulations a parallel rule to apply in
the unfair labor practice context, prohibiting an employer--which
otherwise would be privileged to withdraw recognition based on the
union's loss of majority support--from withdrawing recognition from a
voluntarily recognized union, before a reasonable period for collective
bargaining has elapsed.
The Board's preliminary view is that restoring the voluntary-
recognition bar, in its more traditional form, as well as the
traditional contract bar in cases of voluntary recognition, better
serves the policies of the National Labor Relations Act, respecting--
indeed, vindicating--employee free choice, while encouraging collective
bargaining and preserving stability in labor relations.\116\ Experience
under Sec. 103.21, meanwhile, seems to show that voluntary recognition
almost always reflects employee free choice accurately. This was the
experience under Dana as well. Thus, the Board is concerned that Sec.
103.21 imposes requirements that burden collective bargaining without
producing commensurate benefits in vindicating employee free choice of
bargaining representatives. Such a disproportionate waste of party and
Board resources cannot be justified by reference to Federal labor
policy, which favors voluntary recognition.\117\
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\116\ With the rescission of the current rule and the rejection
of the rationales for treating voluntarily-recognized unions
substantially differently for the purposes of challenges to a
union's status, the Board's contract-bar doctrine--which generally
insulates a union, regardless of the means by which it established
its majority status, from challenges during the term of a
collective-bargaining agreement--will be restored in the case of
contracts executed with voluntarily-recognized unions to the same
extent it has applied historically (typically, if certain criteria
are met, for a period not to exceed 3 years). See Lamons Gasket Co.,
supra, 357 NLRB at 745 fn. 22.
\117\ In affirming the Board's application of the traditional
voluntary-recognition bar, the District of Columbia Circuit, for
example, has explained that whatever advantages an election may have
over the use of authorization cards to determine employee support
for a union, ``an employer's voluntary recognition of a majority
union also remains `a favored element of national labor policy.' ''
NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1299 (D.C. Cir.
1988) (quoting NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th
Cir. 1978)). Other circuits have characterized voluntary recognition
precisely the same way. See, e.g., NLRB v. Winco Petroleum Co., 668
F.2d 973, 981 (8th Cir. 1982); NLRB v. Lyon & Ryan Ford, Inc., 647
F.2d 745, 750 (7th Cir. 1981).
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We believe, subject to comments, that restoration of the voluntary-
recognition bar as proposed in this document is fully consistent with
the statutory language and would better effectuate the purpose and
policies of the Act. Several Federal appellate courts have endorsed the
voluntary-recognition bar, deferring to the Board's understanding of
the Act and its application of the Act's policies.\118\ No court of
appeals has rejected the voluntary-recognition bar. Neither the Dana
Board nor the Board that promulgated Sec. 103.21 argued that the
traditional voluntary-recognition bar was irrational or inconsistent
with the Act. Nor did the Board at either time argue that the election
procedure established in Dana, and then reestablished in Sec. 103.21,
was somehow compelled by the Act.\119\ While the Board's approach to
the voluntary-recognition bar has varied, the Board consistently has
viewed the issue as presenting a policy choice for the Board to make,
and this, of course, is how the Federal courts have seen it for
decades. Similarly, applying contract-bar principles has long been
recognized as promoting stability in the bargaining relationships
between employers and unions.\120\
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\118\ See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1247-
1248 (D.C. Cir. 1994); Royal Coach Lines, Inc. v. NLRB, 838 F.2d 47,
51-52 (2d Cir. 1988); NLRB v. Lyon & Ryan Ford, Inc., supra, 647
F.2d at 750-751; NLRB v. Broadmoor Lumber Co., supra, 578 F.2d at
241; Toltec Metals, Inc. v. NLRB, 490 F.2d 1122, 1125-1126 (3d Cir.
1974); NLRB v. San Clemente Publishing Corp., 408 F.2d 367, 368 (9th
Cir. 1969); NLRB v. Montgomery Ward & Co., 399 F.2d 409, 411-413
(7th Cir. 1968); NLRB v. Universal Gear Service Corp., 394 F.2d 396,
397-398 (6th Cir. 1968).
\119\ See United Mine Workers of America v. Arkansas Oak
Flooring Co., supra, 351 U.S at 73 (explaining that union's failure
to comply with certain statutory provisions, which prevented union
from being certified by Board, did not prevent union from being
voluntarily recognized by employer: ``The very specificity of the
advantages to be gained [by compliance with statutory provisions]
and the express provision for the loss of these advantages imply
that no consequences other than those so listed shall result from
noncompliance.''). The statutory benefits conferred only on
certified unions are discussed above at fn. 16 and the accompanying
text.
\120\ See, e.g., General Cable Corp., 139 NLRB 1123, 1125
(1962).
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In proposing to restore the traditional voluntary-recognition bar,
subject to comments, we give weight to the rationale for the bar that
the Board, with judicial approval, has advanced and adhered to in the
past: that the new
[[Page 66910]]
collective-bargaining relationship established through voluntary
recognition--just like bargaining relationships established through
other lawful means and protected by related Board bar doctrines--``must
be permitted to exist and function for a reasonable period in which it
can be given a fair chance to succeed,'' in the Supreme Court's
words,\121\ in order to promote the Act's goals of encouraging the
practice and procedure of collective bargaining. We specifically invite
comment on the reasonable period for bargaining defined in the proposed
rule. In our initial view, the current rule tends to undermine (a) the
stability vital for the parties to successfully negotiate a first
contract, as the employer may question whether its negotiating partner
may be out of the picture in a matter of weeks, and (b) the stability
needed to fairly administer an executed collective-bargaining agreement
without the shadow of a possible challenge to the union's status by
making the contract bar contingent on the notice procedure.
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\121\ Franks Bros. Co. v. NLRB, supra, 321 U.S. at 705. See
Lamons Gasket, supra, 357 NLRB at 739-740, 744-745.
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In proposing to return to the voluntary-recognition bar that
existed under the Board's Lamons Gasket decision, we note that the
Board in Lamons Gasket provided, in accordance with its decision in
Smith's Food & Drug Center, 320 NLRB 844 (1996), that ``voluntary
recognition of one union will not bar a petition by a competing union
if the competing union was actively organizing the employees and had a
30-percent showing of interest at the time of recognition.'' 357 NLRB
at 745 fn. 22. Because of the importance of stability to newly-
established collective-bargaining relationships, we invite public
comment on whether the Board should continue to process, consistent
with Smith's Food, a representation petition filed by a competing union
that had a 30-percent showing of interest at the time of recognition or
bar the processing of such a petition so as to not delay until after a
Board election the employer's recognition of the employees' designation
of their collective-bargaining representative.
We are further inclined to believe that Sec. 103.21 rejects the
premise that newly established bargaining relationships must be given a
fair chance to succeed in the context of voluntary recognition. In the
name of promoting employee free choice, the rule permits a union's
representative status to be challenged by an election petition
immediately after the union has been voluntarily recognized. Indeed,
the rule arguably invites such a challenge, by requiring employers, as
a precondition to receiving the benefit of the recognition and contract
bars, to post a notice to employees informing them of their right to
file an election petition with the Board. In no other context does the
Board require that employees be given notice of their right to change
their minds about a recent exercise of statutory rights.\122\ Section
103.21 suggests to employees that the Board considers their choice to
be represented suspect and signals to employees that their choice
should be reconsidered through the filing of a petition.\123\
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\122\ Lamons Gasket, supra, 357 NLRB at 743.
\123\ Id. at 744.
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It does so absent any basis to conclude that the union was not, in
fact, freely chosen by employees to represent them. To proceed to an
election, employees opposed to the union need not allege, much less
establish, that the union lacked lawful majority support at the time it
was voluntarily recognized. Nor are employees required to present
evidence demonstrating that a majority of bargaining-unit employees no
longer support the recently recognized union. Rather, a showing that a
minority of unit employees (as few as 30 percent) desire an election is
enough. An election, in turn, is decided by a majority of voting
employees, who may comprise a minority of unit employees. Subject to
comments, the Board's preliminary view is that Sec. 103.21 actually
undermines employee free choice by failing to fully respect the lawful
designation of the voluntary-recognized union by a majority of
bargaining-unit employees.\124\
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\124\ See Lamons Gasket, supra, 357 NLRB at 746 (observing that
``a more demanding standard is imposed on voluntary recognition than
on certification following a Board-supervised election'' and citing
authority).
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To be sure, Sec. 103.21 acknowledges that the employer still has a
duty to bargain with the voluntarily recognized union. But collective
bargaining during the 45-day window period for petitions established by
Sec. 103.21 will necessarily proceed (or not) under the cloud cast by
the possibility of a challenge to the union's status, which (if
successful) would vitiate any agreement reached. And if an election
petition is filed, then bargaining will proceed under the same cloud
until the election is held. In such a situation, it seems reasonable to
conclude that instead of being ``given ample time for carrying out its
mandate on behalf of its members,'' a union will be ``under exigent
pressure to produce hot-house results or be turned out''--a concern
cited by the Supreme Court in upholding the Board's rule that the
status of a newly-certified union may not be challenged for one
year.\125\ That concern would seem to apply with equal force in the
context of voluntary recognition, as the Federal courts have
recognized.\126\ The Board's tentative view--in agreement with the
Lamons Gasket Board, but subject to comments--is that Sec. 103.21 thus
has a significant potential to interfere with effective collective
bargaining.\127\ Insofar as Sec. 103.21 might be premised on the view
that voluntary recognition based on union-authorization cards is
inherently suspect, it would be in obvious tension with the provisions
of the Act reflecting Congress's determination that a lawful--and,
indeed, statutorily enforceable--collective-bargaining relationship may
be established without a Board election.\128\ Indeed, in holding that
the Board, under certain circumstances, may compel an employer to
recognize and bargain with a union whose majority support was
demonstrated by authorization cards, the Supreme Court has flatly
rejected arguments that union-authorization cards cannot reliably
reflect employee free choice--and has noted a ``union's right to rely
on cards as a freely interchangeable substitute for elections where
there has been no election interference.'' \129\
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\125\ Brooks v. NLRB, 348 U.S. 96, 100 (1954).
\126\ See, e.g., NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d
1380, 1383-1384 (2d Cir. 1973). The Second Circuit there noted with
approval the ``general Board policy of protecting valid[l]y
established bargaining relationships during their embryonic stage.''
Id. at 1384 fn. 5.
\127\ In adopting Sec. 103.21, the Board pointed to the absence
of more than anecdotal evidence that the election procedure
previously established by the Dana decision did, in fact, discourage
or delay collective bargaining. 85 FR 18384. Nonetheless, the Board
did acknowledge the possibility that the ``existence of a pending
election petition will cause unions to spend more time campaigning
or working on election-related matters rather than doing substantive
work on behalf of employees,'' but expressed the view that ``this is
a reasonable trade-off for protecting employees' ability to express
their views in a secret-ballot election.'' Id. at 18384-18385. The
Lamons Gasket Board, in contrast, cited the Dana experience of
unions that filed amicus briefs with the Board, as well as the game-
theoretical model of collective bargaining presented by amicus
Professor Kenneth Dau-Schmidt. Lamons Gasket, supra, 357 NLRB at 747
& fn. 30. We invite public comment on the effect of Sec. 103.21 on
collective-bargaining negotiations.
\128\ As explained, sec. 8(a)(5) of the Act requires an employer
``to bargain collectively with the representatives of his employees,
subject to the provisions of section 9(a),'' 29 U.S.C. 158(a)(5),
and sec. 9(a), in turn, refers to ``[r]epresentatives designated or
selected . . . by the majority of the employees'' in an appropriate
unit. 29 U.S.C. 159(a) (emphasis added). See Gissel Packing Co.,
supra, 395 U.S. at 596-598.
\129\ See Gissel Packing Co., supra, 395 U.S. at 601-604. The
Gissel Court noted that in the case before it, ``a union's right to
rely on cards as a freely interchangeable substitute for elections
where there has been no election interference [was] not put in
issue''; rather, the Court was only required to ``decide whether the
cards are reliable enough to support a bargaining order where a fair
election probably could not have been held, or where an election
that was held was in fact set aside.'' 395 U.S. at 601 fn. 18.
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[[Page 66911]]
Finally, this proposal to return to the traditional voluntary-
recognition bar, as refined in Lamons Gasket, is consistent with the
Board's preliminary view of the experience to date under Sec. 103.21.
That experience provides no evidence that voluntary recognition is
suspect (as discussed above) and thus there is nothing to outweigh the
reasonable tendency of the current rule to undermine employee free
choice (as reflected in the lawful designation of the voluntarily
recognized union) and to interfere with effective collective
bargaining. Rejecting the Dana election procedure, the Lamons Gasket
Board pointed to the tiny fraction of cases in which, following
voluntary recognition of a union, employees ultimately rejected the
union in a Board election. According to the Board in Lamons Gasket, the
data showed that the ``proof of majority support that underlay the
voluntary recognition [of unions] during the [Dana period] was a highly
reliable measure of employee sentiment,'' contrary to the assumption of
the Dana Board.\130\ Insofar as Sec. 103.21 might be premised on any
empirical showing of the rate at which employees reject the union
following the posting of the notice prescribed in the current rule, it,
too, would seem to lack substantial empirical support.
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\130\ Lamons Gasket, supra, 357 NLRB at 742.
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But in restoring the Dana election procedure by adopting Sec.
103.21, the Board did not clearly endorse or reject the premise on
which the procedure was originally based. The Board's position arguably
was grounded not in administrative experience, but rather in a
particular interpretation of the Act, independent of that experience--
and so not falsifiable by empirical evidence.\131\ Subject to comments,
we doubt that the Act's provision for Board elections as one means (but
not the exclusive means) for determining employee free choice, coupled
with the implicit statutory preference for Board elections (insofar as
certain benefits are conferred only on certified unions), were enough
to justify restoring the Dana procedure, given substantial evidence
that permitting an election soon after voluntary recognition almost
never results in employees making a different choice. Indeed, in
adopting Sec. 103.21, the Board acknowledged that ``data from the
post-Dana period indicates that recognized unions will not often have
to jump through the procedural `hoop' of an election, and those that do
will far more often emerge with a reaffirmation of their majority
support . . . .'' \132\ Put differently, the evidence seems strongly to
suggest that the Dana procedure is an empty exercise at best, and one
which imposes pointless burdens on parties and the Board--or at least
that it is not something that would justify the current rule's
departure from policies favoring voluntary recognition and encouraging
stability in such bargaining relationships. We invite commenters to
submit additional empirical evidence to inform our views on this
subject.
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\131\ See 85 FR 18383 (notwithstanding commenter's assertions
regarding data, rule ``solidly based on and justified by the policy
grounds already stated'').
\132\ 85 FR 18385.
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As noted earlier, the experience under Sec. 103.21 has been
entirely consistent with the experience under Dana. To date, the
current rule has resulted in scant instances of employees actually
filing a petition and almost no instances of employees rejecting the
voluntarily recognized union. Thus, only 0.4 percent of cases (1 out of
260 included cases) resulted in a petition being filed, and 0.4 percent
resulted in a union's loss of representative status. Both data sets
show that the number of instances in which the notices have resulted in
the filing of a petition or holding an election is vanishingly small--
and the cases where the voluntarily recognized union was displaced to
be almost nothing. It seems illuminating that the post-Sec. 103.21
data show no significant change from the post-Dana data, suggesting
that the low rate of election-petition filing and employee rejection of
the voluntarily recognized union is consistent over time. Our
preliminary view, accordingly, is that just as the Board's
administrative experience under the Dana election procedure refuted the
rationale offered in Dana (as the Lamons Gasket Board explained), so,
too, does the experience under Sec. 103.21 demonstrate that there was
no reason to doubt that voluntarily recognized unions actually enjoy
majority support.
In proposing and adopting Sec. 103.21, however, the Board viewed
the empirical evidence examined in Lamons Gasket very differently. In
the notice of proposed rulemaking for Sec. 103.21, the Board found
that the post-Dana ``election statistics . . . support, rather than
detract from, the need for a notice and brief open period following
voluntary recognition.'' \133\ The Board reiterated this surprising
conclusion in the preamble to the final rule and delineated reasons why
it deemed the data with respect to elections actually conducted under
Dana to support Sec. 103.21.
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\133\ 84 FR 39938.
[T]he [post-Dana] statistics showed that (1) Dana served the
intended purpose of assuring employee free choice in those cases
where the choice made in the preferred Board electoral process
contradicted the showing on which voluntary recognition was granted;
(2) in those cases where the recognized union's majority status was
affirmed in a Dana election, the union gained the additional
benefits of [s]ection 9(a) certification, including a 1-year bar to
further electoral challenge, (3) there was no substantial evidence
that Dana had any discernible impact on the number of union
voluntary-recognition campaigns, or on the success rate of such
campaigns, and (4) there was no substantial evidence that Dana had
any discernible impact on the negotiation of bargaining agreements
during the open period or on the rate at which agreements were
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reached after voluntary recognition.
85 FR 18368.\134\
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\134\ Reasons (3) and (4) pertain only to the absence of
evidence of select negative consequences of the rule. As explained
previously, we will consider additional data on these questions;
moreover, we will also consider the probable, reasonable
consequences in the absence of sufficient data pointing in either
direction.
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Preliminarily, we see nothing in the data that would support, let
alone compel, discarding long-standing policies that support voluntary
recognition in favor of the current rule. As to the first assertion,
subject to comments, we are inclined to agree with the Lamons Gasket
Board that an election loss by the recognized union does not
affirmatively suggest that at the time it was recognized, the union
lacked majority support. The election, rather, would seem just as
likely, if not more so, to be a referendum on the union's
accomplishments in bargaining during the brief period after recognition
and the result, a consequence, too, of the pre-election campaign. Other
post-recognition factors, such as employee turnover or simply a change
of employee sentiment, might also be at play. The Board's bar doctrines
involving new collective-bargaining relationships, of course, are based
on the premise that unions should not be subjected to challenge before
a reasonable period for bargaining has elapsed. Section 103.21, in
contrast, does not contemplate such a period. On our preliminary view,
then, even in the tiny fraction of total voluntary-recognition cases
where a recognized union ultimately was ousted, the result says nothing
about employee free choice as reflected in the union's original
designation by a majority of bargaining-unit employees.
The relevance of the Board's second assertion--pointing out that
when
[[Page 66912]]
unions prevailed in a Dana election, they consequently gained the
benefits of a Board certification--is not clear. The suggestion
apparently is that the burden imposed on the union in requiring it to
defend its status is mitigated or even outweighed. But unions and the
employees who support them have always been free to choose to seek a
Board election and the benefits of certification. When they seek and
gain voluntary recognition from the employer instead--as the Act
indisputably permits them to do--the Board presumably should respect
that lawful expression of free choice.
The Board also suggested that, notwithstanding the low percentage
of cases in which the recognized union was ousted after a Dana notice
was requested, employees should still be given the option of an
election (and informed of that right) because the data still leave
substantial ambiguity regarding the validity of voluntary recognition
based on majority support.\135\ However, this claim--essentially that
every instance of voluntary recognition remains open to doubt
concerning employees' true sent
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