Rule2024-16535
Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships
Primary source
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Published
August 1, 2024
Effective
September 30, 2024
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) hereby rescinds and replaces the amendments 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 rescinds an amendment governing the filing and processing of petitions for a Board-conducted representation election in the construction industry. The Board believes that the amendments made in this final rule 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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<title>Federal Register, Volume 89 Issue 148 (Thursday, August 1, 2024)</title>
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[Federal Register Volume 89, Number 148 (Thursday, August 1, 2024)]
[Rules and Regulations]
[Pages 62952-63027]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16535]
[[Page 62951]]
Vol. 89
Thursday,
No. 148
August 1, 2024
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;
Final Rule
Federal Register / Vol. 89 , No. 148 / Thursday, August 1, 2024 /
Rules and Regulations
[[Page 62952]]
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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: Final rule.
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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)
hereby rescinds and replaces the amendments 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
rescinds an amendment governing the filing and processing of petitions
for a Board-conducted representation election in the construction
industry. The Board believes that the amendments made in this final
rule 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: This rule is effective September 30, 2024.
FOR FURTHER INFORMATION CONTACT: Roxanne Rothschild, Executive
Secretary, National Labor Relations Board, 1015 Half Street SE,
Washington, DC 20570-0001, (202) 273-2917 (this is not a toll-free
number), 1-866-315-6572 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Introduction & Overview of the Rulemaking
As set forth more fully below, on April 1, 2020, the Board made
various amendments to its rules and regulations governing blocking
charges, the voluntary-recognition bar doctrine, and 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) (``the April 2020
rule'').
First, the April 2020 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
April 2020 rule, regional directors generally were required for the
first time since the Act was declared constitutional to conduct an
election even when an unfair labor practice charge and blocking request
had been filed. 85 FR 18370, 18375. Moreover, under the April 2020
rule, regional directors generally were further required to immediately
open and count the ballots, except in a limited subset of cases where
the ballots would 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, as discussed more fully below, the April 2020 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 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 April 2020 rule abandoned Lamons Gasket Co., 357 NLRB
934 (2011), and returned to the approach taken previously by the Board
in Dana Corp., 351 NLRB 434 (2007). Under the April 2020 rule, neither
an employer's voluntary recognition of a union, nor the first
collective-bargaining agreement executed by the parties after
recognition, bars 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 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, 18391.\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 rule, 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 April 2020 rule became effective on July 31, 2020. See
Representation--Case Procedures: Election Bars; Proof of Majority
Support in Construction-Industry Collective-Bargaining Relationships,
85 FR 20156 (April 10, 2020) (delaying effective date from June 1, 2020
to July 31, 2020).
On November 4, 2022, the Board issued a Notice of Proposed
Rulemaking proposing to rescind and replace the three amendments to its
rules and regulations made by the April 2020 rule. See Representation--
Case Procedures: Election Bars; Proof of Majority Support in
Construction-Industry Collective-Bargaining Relationships, 87 FR 66890
(November 4, 2022). The Board set an initial comment period of 60 days,
with 14 additional days allotted for reply comments. 87 FR 66890.
Thereafter the Board extended these deadlines by thirty days. See
Representation--Case Procedures: Election Bars; Proof of Majority
Support in Construction Industry Collective-Bargaining Relationships,
87 FR 73705 (December 1, 2022). The comments are summarized and
addressed in detail below.
The effect of the instant final rule, which adopts the NPRM
proposals with several modifications, discussed below, is to return the
law in each of those areas to that which existed prior to the adoption
of the April 2020 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. More
[[Page 62953]]
specifically, under the instant rule, regional directors once again
have authority to delay an election when a party to the representation
proceeding requests that its unfair labor practice charge block an
election, provided the request is supported by an adequate offer of
proof, the party agrees to promptly make its witnesses available, and
no exception is applicable. The final rule restores the Board's prior
applicable law regarding the blocking charge policy. For the sake of
clarity, the final rule codifies the basic contours of the historical
blocking charge policy, as well as the pre-April 2020 requirements
contained in 29 CFR 103.20 in full.\3\ The final rule rescinds current
Section 103.21 and codifies the traditional voluntary-recognition bar,
as refined in Lamons Gasket to define the reasonable period for
collective bargaining that sets the duration of the bar. Lastly, the
final rule rescinds current Section 103.22 in toto and returns to the
Board's previously effective caselaw precedent, such as Staunton Fuel
and Casale Industries, governing the application of the voluntary
recognition bar and contract bar in the construction industry. After
carefully considering the comments on the NPRM and the views of the
April 2020 Board, we conclude that these 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.\4\
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\3\ Accordingly, the Board expects that the General Counsel will
restore the provisions addressing blocking charges contained in the
NLRB Casehandling Manual (Part Two), Representation Proceedings to
those that existed prior to April 2020 rule.
\4\ The Board's intention is that the actions taken in this
final rule be treated as separate and severable. In the Board's
view, set forth more extensively below, the 2020 rule fails to fully
promote the Act's policies. The Board's rescissions of the portions
of the 2020 rule that address the blocking charge policy and the
voluntary-recognition bar doctrine are intended to be independent of
its promulgation of the final rule text addressing these subjects.
If all or portions of the final rule text promulgated here were
deemed invalid, the Board would nevertheless adhere to its decision
to rescind the 2020 rule's provisions addressing the blocking charge
policy and the voluntary-recognition bar doctrine. In that event,
the Board's view is that the historical blocking charge policy,
which was developed through adjudication, would again be applied and
developed consistent with the precedent that was extant before the
2020 rule was promulgated, unless and until the policy were revised
through adjudication. Likewise, the Board's view is that the
voluntary-recognition bar would revert to a caselaw doctrine,
reflected in the controlling decision that preceded the 2020 rule,
Lamons Gasket, supra, 357 NLRB 934, insofar as permissible, subject
to change through adjudication.
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II. Substantive 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 register 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
proceedings, and the determination of the steps necessary to conduct
that election fairly were matters which Congress entrusted to the Board
alone.'' NLRB v. Waterman Steamship 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,\5\ the Board has instituted 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
[[Page 62954]]
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.'').\6\
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\5\ 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. Petitions to deauthorize union-security provisions
are classified as UD petitions.
\6\ 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 rule radically altered each of those policies, and the
instant rule restores the status quo ante.
A. Blocking Charge Policy
1. The Board's Historical Blocking Charge Policy; Its Rationale and
Application
As the Board acknowledged in the notice of proposed rulemaking that
culminated in the April 2020 rule, the blocking charge policy dates
back to the early days of the Act. See Representation--Case Procedures:
Election Bars; Proof of Majority Support in Construction Industry
Collective-Bargaining Relationships, 84 FR 39930, 39931 (Aug. 12,
2019). See also United States Coal & Coke Co., 3 NLRB 398, 399 (1937).
Indeed, prior to the April 2020 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.\7\
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\7\ See generally The Developing Labor Law 561-563 (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 the instant rule, in discussing the blocking charge
policy as it existed prior to the April 2020 rule, we often cite to
older editions of the Developing Labor Law and to versions of 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 April 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 rule, 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 representation proceeding, 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).\8\
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\8\ 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 required the charging party to both file a
request to block accompanied by a sufficient offer of proof and to
promptly make 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. 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 organization's showing of interest was obtained through threats
or force, allegations that an employer's
[[Page 62955]]
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).\9\ 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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\9\ 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).\10\
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\10\ 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 Assn., 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 December 2014 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) (``the
December 2014 rule''). As the Board acknowledged when adopting the
April 2020 rule (85 FR at 18376-18377), the Board also made certain
modifications to the blocking charge policy as a part of its December
2014 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 at 74419; 29 CFR 130.20. The December 2014
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
at 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 at 74419-74420.
Two Board members dissented from the December 2014 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 at 74456.
The Board majority rejected the dissenters' proposal to conduct
elections in all cases involving Type I charges. The December 2014 rule
explained that the dissenting Board Members had not identified any
compelling reason to abandon a policy continuously applied since 1937.
79 FR at 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 December 2014 rule. See Associated Builders &
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
[[Page 62956]]
effective date of the April 2020 rule, 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 the 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 84 FR 39930,
39937-39938. 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 that led to the April 2020 final rule 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 2019 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. 84 FR 39946 fn. 71, 39947 fn. 74.
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 39943-39944 & fn. 63; available at
<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, Section 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/guidance/memos-research/operations-management-memos">https://www.nlrb.gov/guidance/memos-research/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 <a href="https://www.nlrb.gov/guidance/memos-research/general-counsel-memos">https://www.nlrb.gov/guidance/memos-research/general-counsel-memos</a>.'' 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.'' 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,
[currently] available at <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>.
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
[[Page 62957]]
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, 39947 fn. 74.
The majority did not correct the errors before issuing the 2019
NPRM. 84 FR 39930-39939 & fn. 15.\11\
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\11\ After issuance of the NPRM, Bloomberg Law analyzed the data
cited by the Board Majority in support of the 2019 NPRM and found
that the Board Majority's empirical assertions were flawed. See Alex
Ebert and Hassan A. Kanu, ``Federal Labor Board Used Flawed Data to
Back Union Election Rule,'' Bloomberg Law (Dec. 5, 2019), available
at <a href="https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X1NF9E1C000000?bna_news_filter=daily-labor-report">https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X1NF9E1C000000?bna_news_filter=daily-labor-report</a> (``[A] Bloomberg
Law review of data supporting the rulemaking found dozens of cases
in which the board overstated the length of delays attributable to
blocking charges over the last three years--overshooting the mark in
one instance by more than 12 years, and in another by five years.''
Id. ``The board's data overcounted delays in more than one-third of
cases--55 in all--in which they said blocking charges were
filed.''). After publication of the Bloomberg Law article, the Board
still did not issue a new NPRM correcting the data.
---------------------------------------------------------------------------
As noted, on April 1, 2020, the Board issued a final rule
substantially eliminating the blocking charge policy. 85 FR 18366.\12\
The April 2020 rule differed from the 2019 NPRM. Unlike the 2019 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 April 2020 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,
18399. The April 2020 rule also provided that notwithstanding a request
to block based on a pending charge alleging certain specified types of
Type 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 remain impounded pending a final
determination by the Board). 85 FR 18369-18370, 18374, 18399. In short,
under the April 2020 rule, a blocking charge request normally does not
delay an election, and only rarer still delays the count of the
ballots. 85 FR 18370, 18375, 18399. Nevertheless, the April 2020 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.
---------------------------------------------------------------------------
\12\ Lauren McFerran was no longer serving on the Board when the
final rule issued.
---------------------------------------------------------------------------
The Board adopted the amendments requiring the Board to refrain
from delaying virtually all elections involving blocking charges
essentially for the reasons contained in the 2019 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 2019 NPRM and in the Bloomberg law article, supra
fn. 11, the Board stated in the final rule:
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 blocking charge amendments became effective on July
31, 2020. See 85 FR 20156.
B. The Voluntary-Recognition Bar
1. The Historical Development of the Voluntary-Recognition Bar
The NPRM carefully examined the historical development of the
voluntary-recognition bar, culminating in the adoption of the April
2020 final rule and the Board's experience under that rule. 87 FR
66895-66898. We briefly summarize that discussion here.
Voluntary recognition of unions by employers, based on the union's
majority support among employees, is firmly grounded in the provisions
and policies of the National Labor Relations Act. The explicit policies
of the Act, expressed in Section 1, are to ``encourage[e] the practice
and procedure of collective bargaining'' and to ``protect[ ] the
exercise by workers of . . . designation of representatives of their
own choosing, for the purpose of negotiating the terms and conditions
of their employment.'' 29 U.S.C. 151. The Act expressly endorses
``practices fundamental to the friendly adjustment of industrial
disputes arising out of differences as to wages, hours, or other
working conditions.'' Id. (emphasis added). Section 8(a)(5) of the Act
accordingly 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
[[Page 62958]]
designated or selected . . . by the majority of the employees'' in an
appropriate unit. 29 U.S.C. 159(a) (emphasis added). Finally, Section
9(c)(1)(A)(i) provides that employees seeking union representation may
file an election petition with the Board if they allege ``that their
employer declines to recognize their representative.'' 29 U.S.C.
159(c)(1)(A)(i) (emphasis added).
Thus, as the Supreme Court has observed, an employer may lawfully
choose to recognize a union as the representative of its employees,
based on a showing that a majority of employees have designated the
union, as opposed to insisting on a Board-conducted representation
election.\13\ Once an employer voluntarily recognizes a majority-
supported union, the union becomes the exclusive bargaining
representative of employees, and the employer has a duty to bargain
with it.\14\ The Act does not impose any procedural restrictions on
voluntary recognition beyond the requirement that the union have
majority support.\15\ Nor does the Act suggest in any way that a
lawfully recognized union lacks the same full authority to represent
workers as a Board-certified union. Both are the exclusive
representative of employees with whom the employer must bargain.\16\
---------------------------------------------------------------------------
\13\ NLRB v. Gissel Packing Co., 395 U.S. 575, 595-597 (1969);
United Mine Workers, 351 U.S. at 72 fn. 8.
\14\ See, e.g., Brown & Connolly, Inc., 237 NLRB 271, 275
(1978), enfd. 593 F.2d 1373 (1st Cir. 1979).
\15\ If the union lacks majority support, measured by the number
of employees in the bargaining unit, then the employer's voluntary
recognition violates Sec. 8(a)(2) of the Act, which makes it an
unfair labor practice for an employer ``to dominate or interfere
with the formation or administration of any labor organization or
contribute financial or other support to it.'' International Ladies'
Garment Workers' Union v. NLRB (Bernhard-Altmann), 366 U.S. 731, 733
fn. 2, 738 (1961). Notably, to be certified by the Board through an
election, a union need only win a majority of voting employees,
regardless of the size of the bargaining unit. RCA Mfg. Co., 2 NLRB
159, 177-178 (1936).
\16\ To be sure, a union that has been certified by the Board as
the result of an election enjoys certain specific protections and
privileges--related to protecting their representative status,
including from challenges by rival unions--that are not extended to
voluntarily recognized unions. Thus, Sec. 9(c)(3) of the Act, in
providing that another Board election may not be held for twelve
months after a valid election, effectively insulates a certified
union from a rival's challenge for that period. In addition, the Act
confers on certified unions: (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).
No other provision of the Act treats certified unions and
recognized unions differently, and certainly not with respect to
their role as bona fide representatives of a bargaining unit.
Reading into the Act any broader Congressional intent to treat
recognized unions less favorably would be unwarranted. See United
Mine Workers, supra, 351 U.S. at 73 (addressing statutory
consequences of union's failure to comply with certain since-
repealed requirements and observing that the ``very specificity of
the advantages to be gained and the express provision for the loss
of these advantages imply that no consequences other than those so
listed shall result from noncompliance'').
---------------------------------------------------------------------------
In 1966, the Board instituted the voluntary-recognition bar
doctrine, temporarily insulating a recognized union from challenge to
its representative status for a reasonable period for collective
bargaining and so protecting the newly formed bargaining
relationship.\17\ The principle that a rightfully established
bargaining relationship must be given a ``fair chance to succeed''
before being tested had already been recognized by the Supreme
Court,\18\ which had also endorsed the Board's adoption of a
certification bar, insulating a Board-certified union from challenge
for one year.\19\ The voluntary-recognition bar doctrine was modeled on
existing bar doctrines protecting not only bargaining relationships
established by Board certification of a union following an election,
but also relationships established by a Board order in an unfair labor
practice case or by an unfair labor practice settlement.\20\
---------------------------------------------------------------------------
\17\ Keller Plastics Eastern, Inc., 157 NLRB 583 (1966)
(establishing voluntary-recognition bar for unfair labor practice
cases); Universal Gear Service Corp., 157 NLRB 1169 (1966) (applying
voluntary-recognition bar in unfair labor practice case), enfd. 394
F.2d 396 (6th Cir. 1968); Sound Contractors Assn., 162 NLRB 364
(1966) (establishing voluntary-recognition bar for representation
cases).
\18\ Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944)
(upholding bargaining order against employer, despite union's loss
of majority support, and observing that ``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'').
\19\ Brooks v. NLRB, 348 U.S. 96, 100 (1954) (upholding
certification bar and endorsing principle that ``[a] union should be
given ample time for carrying out its mandate on behalf of its
members, and should not be under exigent pressure to produce hot-
house results or be turned out'').
\20\ Keller Plastics, supra, 157 NLRB at 586-587. The Keller
Plastics Board observed:
[L]ike situations involving certifications, Board orders, and
settlement agreements, the parties must be afforded a reasonable
time to bargain and to execute the contracts, resulting from such
bargaining. Such negotiations can succeed, however, 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.
Id. at 587.
---------------------------------------------------------------------------
The Board's voluntary-recognition bar doctrine became well
established over the next 40 years.\21\ It was upheld by every federal
court of appeals presented with the issue on review, as reflected in
decisions from the District of Columbia, Second, Third, Sixth, Seventh,
and Ninth Circuits.\22\ In 1988, for example, the Court of Appeals for
the District of Columbia Circuit explained that whatever advantages an
election may have 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.' '' \23\
---------------------------------------------------------------------------
\21\ For cases applying the voluntary-recognition bar during
this period, see, e.g., Universal Gear Service Corp., supra, 157
NLRB 1169; Montgomery Ward & Co., 162 NLRB 294 (1966), enfd. 399
F.2d 409 (7th Cir. 1968); Blue Valley Machine & Mfg. Co., 180 NLRB
298 (1969), enfd. in relevant part 436 F.2d 649 (8th Cir. 1971);
Broad Street Hospital & Medical Center, 182 NLRB 302 (1970), enfd.
452 F.2d 302 (3d Cir. 1971); Timbalier Towing Co., 208 NLRB 613
(1974); Whitemarsh Nursing Center, 209 NLRB 873 (1974); Rockwell
International Corp., 220 NLRB 1262 (1975); Brown & Connolly, Inc.,
supra, 237 NLRB 271; Ford Center for the Performing Arts, 328 NLRB 1
(1999); MGM Grand Hotel, Inc., 329 NLRB 464 (1999); and Seattle
Mariners, 335 NLRB 563 (2001).
\22\ See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1247-
1248 (D.C. Cir. 1994); NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d
1380, 1383-1384 (2d Cir. 1973); NLRB v. Frick Co., 423 F.2d 1327,
1332 (3d Cir. 1970); 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, 398 (6th Cir. 1968).
\23\ 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)).
---------------------------------------------------------------------------
In 2007, however, the decision of a divided Board in Dana Corp.,
supra, 351 NLRB 434, undercut the doctrine. Dana imposed new
preconditions for application of the voluntary-recognition bar,
introducing a notice-and-election procedure. Under that procedure,
after voluntarily recognizing a union, employers were required to post
a notice informing employees of their right to file a decertification-
election petition, or to support a rival union's representation
petition, within 45 days. A petition supported by at least 30 percent
of bargaining-unit employees would be processed by the Board, leading
to an election. In other words, no allegation or evidence that the
recognized union lacked majority support, whether at the time it was
recognized or thereafter, was required. Only if no election petition
were filed within the 45-day period following the notice posting would
the voluntary-recognition bar apply.
The Dana Board majority acknowledged that voluntary recognition was
``undisputedly lawful'' under the Act \24\ and that ``[s]everal courts
of appeals ha[d] endorsed the [existing] recognition-bar doctrine.''
\25\ But it asserted that ``[t]here is good reason to question whether
[union-authorization] card signings [used to
[[Page 62959]]
demonstrate a union's majority support] accurately reflect employees'
true choice concerning union representation.'' \26\ The Dana Board
accordingly justified the new notice-and-election procedure by
concluding that the ``immediate post[-]recognition imposition of an
election bar does not give sufficient weight to the protection of the
statutory rights of affected employees to exercise their choice on
collective bargaining representation through the preferred method of a
Board-conducted election.'' \27\
---------------------------------------------------------------------------
\24\ 351 NLRB at 436.
\25\ Id. at 441.
\26\ Id. at 439.
\27\ Id. at 434.
---------------------------------------------------------------------------
Four years later, in Lamons Gasket, decided in 2011, the Board
reversed the Dana decision, abandoned its novel notice-and-election
procedure, and reinstated the traditional voluntary-recognition bar
with one significant modification. For the first time, the Board
defined the reasonable period for bargaining that established the
length of the voluntary-recognition bar. It fixed the period at no less
than six months, but no more than one year, and incorporated the
multifactor test used by the Board to determine the analogous period
when an employer has been ordered to bargain with a union.\28\
---------------------------------------------------------------------------
\28\ 357 NLRB at 748 & fn. 34 (citing Lee Lumber & Building
Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir.
2002)).
---------------------------------------------------------------------------
The Lamons Gasket Board carefully refuted the rationale of the Dana
decision. It observed that, as demonstrated by the Act's provisions,
Congress had endorsed the practice of voluntary recognition and had not
subordinated it to the election process as a means for employees to
exercise free choice concerning union representation.\29\ It pointed to
the Board's administrative experience under the Dana notice-and-
election procedure, observing that experience refuted the Dana Board's
skepticism that voluntarily recognized unions actually had majority
support among employees: in only 1.2 percent of the cases in which a
Dana notice was requested did employees ultimately decertify a
voluntarily recognized union through an election.\30\ It characterized
the Dana notice-and-election procedure as inviting employees to
reconsider their choice to be represented, which inappropriately
suggested ``that the Board considers their choice . . . suspect.'' \31\
It explained that the voluntary-recognition bar doctrine was consistent
with the Board's other bar doctrines, all of which ``share the same
animating principle: that a newly created bargaining relationship
should be given a reasonable chance to succeed before being subject to
challenge.'' \32\ Finally, the Lamons Gasket Board pointed out that by
creating a period of uncertainty about the union's representative
status, the Dana notice-and-election procedure unnecessarily interfered
with the bargaining process and made successful bargaining less
likely.\33\
---------------------------------------------------------------------------
\29\ Id. at 740-742.
\30\ Id. at 742.
\31\ Id. at 744.
\32\ Id. That principle was especially applicable in the case of
bargaining relationships established voluntarily, the Board noted,
because the Act not only explicitly promotes collective bargaining,
but also encourages workplace cooperation, without government
intervention, to avoid labor disputes. Id. at 746 (citing, inter
alia, H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970)) (``The
object of th[e] Act was not to allow governmental regulation of the
terms and conditions of employment, but rather to insure that
employers and their employees could work together to establish
mutually satisfactory conditions.'').
\33\ Id. at 747.
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2. The April 2020 Amendments to the Voluntary-Recognition Bar
Lamons Gasket remained Board law for nine years \34\ until it was
overruled by the Board's 2020 rule, which essentially reinstated and
codified the Dana notice-and-election procedure as Section 103.21 of
the Board's Rules and Regulations, 29 CFR 103.21. Under the 2020 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.
---------------------------------------------------------------------------
\34\ During that period, no judicial decision had cast doubt on
Lamons Gasket or questioned the long-established, judicially
approved voluntary-recognition bar.
---------------------------------------------------------------------------
The Board's justification for the 2020 rule adhered closely to the
rationale of the Dana decision. The Board described elections as the
statutorily preferred method for resolving questions concerning
representation, citing Section 9(c)(3) of the Act (which prohibits a
new election for the year following a valid election) and the specific
statutory advantages granted only to Board-certified unions.\35\ It
noted that the Board did not supervise the recognition process and
rejected the notion that the Act's unfair labor practice provisions
were sufficient to address coercive conduct related to voluntary
recognition.\36\ Elections had the advantage of ``present[ing] a clear
picture of employee voter preference at a single moment,'' the Board
claimed. The reinstituted Dana notice-and-election procedure, the Board
added, did not restrict or limit voluntary recognition or the
bargaining obligations that follow from recognition. According to the
Board, the new rule was also supported by the possibility that a
recognized union would reach a collective-bargaining agreement during
the bar period, triggering the separate, long-established contract-bar
doctrine and extending the period during which the union's
representative status could not be challenged.\37\ These arguments,
first advanced in Dana, had been persuasively addressed by the Lamons
Gasket decision, which the 2020 rule overruled.
---------------------------------------------------------------------------
\35\ 85 FR 18381.
\36\ Id.
\37\ Id.
---------------------------------------------------------------------------
In overruling Lamons Gasket, the 2020 rule Board acknowledged the
administrative experience under the Dana notice-and-election procedure
(only 4.65 percent of Dana notices resulted in election petitions, and
employees decertified voluntarily recognized unions in only 1.2 percent
of cases in which a Dana notice was requested), but rejected the view
that the Dana procedure had been revealed as unnecessary.\38\ Instead,
the Board focused on the fact that when a Dana election was held, the
union was decertified about one-quarter of the time, and declined to
infer--from the more than 95 percent of Dana notice cases in which no
election petition was filed--that voluntarily recognized unions
typically have majority support.\39\ There was no evidence, the Board
observed in turn, that the Dana procedure had discouraged voluntary
recognition or discouraged or delayed collective bargaining.\40\ In the
Board's view, the cost to recognized unions of diverting resources from
bargaining to campaigning was outweighed by the benefit of permitting
employees to vote in an election.\41\
---------------------------------------------------------------------------
\38\ Id. at 18383.
\39\ Id.
\40\ Id. at 18384.
\41\ Id. at 18385.
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3. The 2022 Proposed Rule
In the NPRM, the Board explained that it ``propose[d] to rescind
the current Sec. 103.21 of the Board's Rules and
[[Page 62960]]
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.'' \42\ The Board stated its preliminary view that ``restoring
the voluntary-recognition bar, in its more traditional form . . .
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.'' \43\
---------------------------------------------------------------------------
\42\ 87 FR 66909. The proposed rule was limited to the
representation-case context; the Board invited comment on whether
the final rule should extend to unfair labor practices cases as
well, e.g., case where an employer is alleged to have violated Sec.
8(a)(5) by withdrawing recognition from a union, before a reasonable
period for bargaining has elapsed. Id. The Board also specifically
invited comment on whether it should adhere to the Board's decision
in Smith's Food, supra, 320 NLRB 844, reaffirmed in Lamons Gasket,
which governs situations in which a rival union files an election
petition following the employer's voluntary recognition of another
union. 87 FR 66910. Finally, the Board invited comment on the
reasonable period for bargaining defined in the proposed rule and
the effect of Sec. 103.21 on the collective-bargaining process. Id.
\43\ Id.
---------------------------------------------------------------------------
In explaining its preliminary support for rescission of the 2020
rule and codification of Lamons Gasket, the Board observed that
experience under existing Section 103.21 ``seems to show that voluntary
recognition almost always reflects employee free choice accurately.''
\44\ If Section 103.21 were premised on suspicion of voluntary
recognition, in turn, it would be ``in obvious tension'' with the Act
itself and with the Supreme Court's Gissel decision, which permit
lawful--and enforceable--bargaining relationships to be established
without a Board election.\45\ The Board noted, among other things,
that: (1) several federal appellate courts had endorsed the voluntary-
recognition bar, while none had rejected it; and (2) the 2020 Board had
argued neither that the voluntary-recognition bar was irrational or
inconsistent with the Act, nor that the current notice-and-election
procedure was compelled by the Act.\46\ The Board invoked the
traditional, judicially-approved rationale for the recognition-bar
doctrine: that, like other bar doctrines, it served to promote
collective bargaining by protecting a bargaining relationship until it
had a fair chance to succeed.\47\ The Board expressed its initial view
that the existing notice-and-election procedure ``has a significant
potential to interfere with effective collective bargaining'' by
subjecting a recognized union to challenges to its status as it sought
to bargain or to administer a first collective-bargaining
agreement.\48\
---------------------------------------------------------------------------
\44\ Id.
\45\ Id. at 66910.
\46\ Id. at 66909-66910.
\47\ Id. at 66910. As noted previously, the Board specifically
invited public comment on how the final rule should define a
reasonable period for collective bargaining, establishing the
duration of the voluntary-recognition bar. Id.
\48\ Id.
---------------------------------------------------------------------------
The Board also observed that the current rule permits such a
challenge without evidence that the recognized union--which was
required to show majority support in the bargaining-unit as a whole--
had not been freely chosen and without a showing that it had since lost
majority support in the unit.\49\ Indeed, the union could lose its
representative status based on an election decided by a majority of
voting employees that might comprise a minority of unit employees.\50\
That process thus tended to undermine, not promote, employee free
choice, in the Board's preliminary view.\51\
---------------------------------------------------------------------------
\49\ Id.
\50\ Id.
\51\ Id.
---------------------------------------------------------------------------
Finally, the Board addressed its experience under the notice-and-
election procedure restored by Section 103.21. It expressed the
preliminary view that this ``experience provides no evidence that
voluntary recognition is suspect'' and thus that the current rule would
seem to have a reasonable tendency both to ``undermine employee free
choice (as reflected in the lawful designation of the voluntarily
recognized union) and to interfere with effective collective
bargaining.'' \52\ Examining the relevant data, the Board suggested it
showed ``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.'' \53\ This tentative conclusion,
the Board observed, was entirely consistent with the relevant data
developed under the original Dana notice-and-election procedure.\54\
The Board explained why, in line with the Lamons Gasket decision, it
was inclined to disagree with the 2020 Board's dismissal of the data
under Dana.\55\ In any case, the Board observed, the ``data offer no
affirmative suggestion that voluntary recognition is suspect as a means
of ascertaining employee choice.'' \56\
---------------------------------------------------------------------------
\52\ Id. at 66911. The Board ``invite[d] commenters to submit
additional empirical evidence to inform our views on this subject.''
Id.
\53\ Id. The Board observed that ``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.''
Id. In the NPRM, the Board provided a quarter-by-quarter description
of the administrative data from the inception of the 2020 rule
through June 30, 2022. Id. at 66898. For this period, 260 requests
for notices following voluntary recognition were filed with the
Board. Id. In those cases, one election petition was subsequently
filed, and no elections were held. In the one case where a petition
was filed, the union disclaimed interest after its filing. Id. Thus,
only 0.4 percent of recognition-notice requests resulted in election
petitions and 0 percent of notices resulted in actual elections. If
we count the union's disclaimer as equivalent to a decertification
following an election loss, then employees opted not to retain the
voluntarily recognized union in only 0.4 percent of the total cases
in which recognition notices were requested. Id.
\54\ Id. at 66911.
\55\ Id. at 66911-66912.
\56\ Id. at 66912.
---------------------------------------------------------------------------
In the interest of transparency, we provide in quarterly detail the
administrative data made available since the NPRM issued, which is
consistent with prior data cited in the NPRM and in the Lamons Gasket
decision.\57\ We have placed this new data in the administrative
record, but we do not rely on it as a basis for the final rule. We also
provide a consolidated tally of all experience based on data
practicably available from the inception of the 2020 rule until the
issuance of this final rule.\58\
---------------------------------------------------------------------------
\57\ Since the issuance of the NPRM, NLRB FOIA data has been
migrated to a new website. The new location for the previously
listed data from the NPRM is: <a href="https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155">https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155</a>, under the following file
names: 2024-NLFO-00812-VR Cases Received Calendar Year 2020.xlsx;
2024-NLFO-00812-VR Cases Received Calendar Year 2021.xlsx; 2024-
NLFO-00812-VR Cases Received Calendar Year 2022.xlsx. Note that,
although the files are organized by calendar year, the files include
tabs that contain the quarterly (or other incrementation) data under
which the data was analyzed in the NPRM.
\58\ The administrative data show as follows:
For the period from July 1, 2022, through September 30, 2022,
administrative data shows 54 voluntary recognition notice requests
in NLRB regions. None resulted in a petition being filed. However,
in one case a petition was withdrawn under unknown circumstances.
For the period from October 1, 2022 through December 31, 2022,
there were 52 notice requests. In two instances decertification
petitions were filed. In one of these, the union disclaimed interest
and in the other the union prevailed 14-8 in an election.
For the period from January 1, 2023 through March 31, 2023,
there were 39 notice requests. In one instance a petition was
dismissed and the notice pulled because of the union's lack of cards
and in another the matter was closed because of the union's lack of
cooperation.
For the period from April 1, 2023 through June 30, 2023, 92
notice requests occurred. In one case a decertification petition was
dismissed for lack of a showing of interest. In another, the
recognized union apparently stepped aside to allow another union to
process its petition.
During the period from July 1, 2023 through September 30, 2023,
there were 51 notice requests and no petitions filed. Two notice
requests were apparently withdrawn, but no additional detail was
provided.
For the period from October 1, 2023 through December 31, 2023,
the administrative data shows that 69 notices were requested and no
petitions were filed.
For the period from January 1, 2024 through March 31 2024, the
administrative data shows that 59 notices were requested and no
petitions were filed.
We discount the three instances where the notice request was
withdrawn and/or the notice matter was closed (given the lack of
information as to why this occurred in each case), conservatively
construe the disclaimer case and the case where the matter was
closed because the union appeared to lack cards as cases where the
notice posting resulted in a change in representative status, and
count the cases of a union victory and a decertification
petitioner's lack of sufficient signatures as cases where the notice
posting failed to effect a change in status.
Thus, we have the following totals: 413 notice requests,
possibly leading to a change in representative status in 2 cases,
i.e., less than one percent (0.5%), of the total number.
The data is publicly available at the following URL: <a href="https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155">https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155</a>,
under the following files (which, for 2022 and 2023, are internally
organized by tabs corresponding to each calendar quarter): 2024-
NLFO-00812-VR Cases Received Calendar Year 2022.xlsx; 2024-NLFO-
00812-VR Cases Received Calendar Year 2023.xlsx; 2024-NLFO-01446-
final-VR cases received 1-1-2024 thru 3-31-2024.xlsx.
---------------------------------------------------------------------------
[[Page 62961]]
C. Section 9(a) Recognition in the Construction Industry
1. The Board's Historical Treatment of 9(a) Recognition in the
Construction Industry
As discussed in greater detail in the NPRM, in response to the
unique characteristics of the construction industry, Congress amended
the Act in 1959 to adopt Section 8(f), which provides a limited
exception to the Act's Section 9(a) requirement that a union must have
majority support among the employees in an appropriate unit to be
recognized as the exclusive collective-bargaining representative.
Section 8(f) permits a construction employer and a union to enter into
a prehire agreement establishing the union as the exclusive collective-
bargaining representative, even where the union does not have the
support of a majority of the construction employer's employees under
Section 9(a).
In the seminal case of John Deklewa & Sons, the Board set forth a
framework for applying Section 8(f) to further the dual Congressional
objectives that prompted its enactment: ``attempt[ing] to lend
stability to the construction industry while fully protecting employee
free choice principles.'' 282 NLRB 1375, 1388 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied
488 U.S. 889 (1988).
As recounted in the NPRM, the Deklewa Board was mindful of a
critical principle underlying Section 8(f): unions representing
employees in the construction industry should not be treated less
favorably than unions in other industries, including with regard to
permitting a construction employer to be able to voluntarily recognize
a union with majority support as its employees' 9(a) representative.
Id. at 1387 fn. 53. Unions with majority support may choose to seek
9(a) recognition because, unlike where there is only an 8(f)
relationship, it would allow them to enjoy the full panoply of rights
and obligations available to unions serving as the exclusive
collective-bargaining representative of employees in all other
industries, including the irrebuttable presumption of majority support
during the first three years of the contract and a rebuttable
presumption of majority support at other times such as at the
contract's expiration. Id. at 1385, 1387. Consequently, the Board in
Deklewa adopted a rebuttable presumption that a collective-bargaining
relationship in the construction industry is established under Section
8(f), but provided that a union asserting 9(a) status could rebut that
presumption. Id. at 1385 fn. 41. For the 8(f) relationship to become a
9(a) relationship, a union--like unions representing employees in
nonconstruction industries--must demonstrate a ``clear showing of
majority support'' from the unit employees. Id. at 1385-1387 & fn. 53.
Thus, both within the construction industry and outside it,
establishing a bargaining relationship under Section 9(a) requires a
proffered showing of majority support for the union.
Because Section 8(f) uniquely permits, in the construction
industry, voluntary recognition in the absence of majority support, the
Board has sought to avoid uncertainty over whether a grant of
recognition is pursuant to Section 8(f) or 9(a) by requiring that 9(a)
recognition in the construction industry be supported by positive
evidence acknowledging a union's 9(a) status, such as agreed-upon
language in a collective-bargaining agreement. 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 9(a)
relationship 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, despite
conflicting evidence as to whether the employer saw the union's
authorization cards).
In Staunton Fuel & Material, Inc., supra, the Board defined the
minimum requirements for what must be stated in a written recognition
agreement or a contract clause in a collective-bargaining agreement for
it to suffice as evidence of a union having attained 9(a) status. 335
NLRB at 719-720. The Board in Staunton Fuel, following the approach of
the Tenth Circuit, 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.'' Id. at 719-720
(citing NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147, 1154 (10th
Cir. 2000), and NLRB v. Oklahoma Installation Co., 219 F.3d 1160 (10th
Cir. 2000)). Outside of the construction industry, where there is no
8(f) recognition, no similar evidentiary formality is needed for
voluntary recognition because there is no need to distinguish
presumptive 8(f) recognition from 9(a) majority recognition.
Significantly, the contract language attesting to a construction
employer's 9(a) recognition of a union neither itself bestows 9(a)
status nor substitutes for a union showing or offering to show evidence
of its majority support. It does, however, provide a contemporaneous,
written memorialization that a union had majority support at the time
of the initial 9(a) recognition. Relying on the contract language is
much preferable to trying to ascertain years in the future, should the
union's 9(a) status later be challenged, whether the purported majority
support had existed at the inception of the 9(a) relationship--in some
cases many years before a dispute over a union's status has arisen--
when evidence may no longer be easily available as witnesses and
documents may disappear over time. Instead, the Board and the parties
can look to the language adopted as a part of the parties' agreement to
confirm that majority support existed when the 9(a) relationship was
initially established.
Moreover, the Board in Staunton Fuel recognized that contract
language can
[[Page 62962]]
only serve as evidence of a union's 9(a) status if it is true. Because
contract language alone would not necessarily evidence a union's
majority support where there are questions about its veracity, the
Board in Staunton Fuel left open the possibility that an employer could
challenge the union's majority support within the 10(b) period. Id. at
720 & fn. 14. Staunton Fuel did not alter the Board's longstanding
practice of considering all available evidence bearing on the nature of
the parties' bargaining relationship where the contract language alone
is not conclusive of whether the parties intended to establish a 9(a)
rather than an 8(f) relationship. Id. at 720 fn. 15.
As the District of Columbia Circuit has recognized, if other
evidence casts doubt on the assertion that the union enjoyed majority
support at the time the employer purportedly granted 9(a) recognition,
the contract language necessarily fails to satisfy its intended purpose
and cannot be relied upon to demonstrate 9(a) status. For instance, in
Nova Plumbing, Inc. v. NLRB, the District of Columbia Circuit reasoned
that language in a collective bargaining ``cannot be dispositive at
least where, as here, the record contains strong indications that the
parties had only a section 8(f) relationship.'' 330 F.3d 531, 537 (D.C.
Cir. 2003). The court pointed to strong evidence in the record that
contradicted the contract language. Id. at 533. Subsequently, in M & M
Backhoe Service, Inc. v. NLRB, the District of Columbia Circuit
distinguished Nova Plumbing to uphold 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. 469 F.3d 1047, 1050 (D.C.
Cir. 2006).
Six years after M & M Backhoe, in Allied Mechanical Services, Inc.
v. NLRB, the District of Columbia Circuit quoted the Nova Plumbing
court but, in doing so, added emphasis to specify that the contract
language cannot be dispositive of a union's 9(a) status in situations
where the record contains contrary evidence. 668 F.3d 758, 766 (2012).
More recently, in Colorado Fire Sprinkler, Inc. v. NLRB, the District
of Columbia Circuit 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.
891 F.3d 1031, 1040-1041 (D.C. Cir. 2018). 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 Section 9(a) status.'' Id. at 1041.
In Enright Seeding, Inc., the Board noted that neither Nova
Plumbing nor Colorado Fire Sprinkler involved situations where the
court rejected the union's claim of 9(a) status based solely on
contract language because in both cases other evidence existed calling
into question the union's majority status. 371 NLRB No. 127, slip op.
at 4 fn. 18 (2022). However, responding to both court decisions, the
Board clarified that ``contractual language can only serve as evidence
of a union's 9(a) majority representation if it is true.'' Id. at 5.
``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 alone is insufficient to
demonstrate the union's 9(a) status.'' Id. at 3-4.
As the Board noted in the NPRM, where there has been unlawful 9(a)
recognition of a minority union, Staunton Fuel does not change
longstanding Board precedent that an employer--regardless of whether a
construction employer or a nonconstruction employer--engages in
``unlawful support.'' See Bernhard-Altmann, 366 U.S. at 738 (``The law
has long been settled that a grant of exclusive recognition to a
minority union constitutes unlawful support in violation of [Section
8(a)(2)], because the union so favored is given `a marked advantage
over any other in securing the adherence of employees.' '') (quoting
NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 267 (1938)). Even
if done in good faith, an employer violates Section 8(a)(2) and (1) by
extending 9(a) recognition to a union that does not enjoy majority
support, and the union's acceptance of such recognition in these
circumstances violates Section 8(b)(1)(A). See Joseph Weinstein
Electric Corp., 152 NLRB 25, 39 (1965) (finding a construction
employer's 9(a) recognition of and entering into an agreement with a
union that does not enjoy majority support unlawful under Section
8(a)(2) and (1) and 8(b)(1)(A)).
Because an employer voluntarily recognizing a union and entering
into a collective-bargaining agreement creates a contract bar of up to
3 years, no question of representation can be raised during that time.
Thus, an employee or a rival union that seeks to challenge the
propriety of the recognition generally cannot do so in a representation
proceeding; rather, that allegation must be investigated and
adjudicated in an unfair labor practice proceeding. If the Board finds
that the employer entered into an agreement with a union that was a
minority representative, the Board will remedy the violation by
ordering the employer to cease recognizing the union and to repudiate
the collective-bargaining agreement. See, e.g., Bear Creek Construction
Co., 135 NLRB 1285, 1286-1287 (1962) (ordering a construction employer
that provided unlawful assistance to a union in obtaining membership
applications and checkoff authorization cards to cease and desist from
recognizing the union as its employees' collective-bargaining
representative and giving effect to the parties' agreement).
With this safeguard against employer and union collusion in place,
Staunton Fuel promotes critical federal labor law policies, including
protecting employee free choice while fostering stability in
collective-bargaining relationships. It also prevents construction
employers from evading their duties under bargaining relationships that
they entered into voluntarily and challenging an initial grant of 9(a)
recognition from years earlier, since evidence confirming the union's
majority support may no longer be available. After all, memories fade
and the witnesses and documents pertinent to the initial 9(a)
recognition disappear over time. Thus, Staunton Fuel furthers the
policies of the Act and those set forth in Deklewa.
As recounted in the NPRM, six years after issuing Deklewa, the
Board in Casale Industries fashioned a limitations period for
challenging an initial grant of 9(a) recognition by relying on the same
basic tenet from Deklewa discussed above--that unions representing
construction-industry employees should be treated no less favorably
than those representing nonconstruction-industry employees. The Board
explicitly incorporated 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, 362 U.S. 411,
419 (1960), barring a challenge to a union's majority support if more
than 6 months had elapsed from when it was initially granted
recognition. 311 NLRB 951, 953 (1993).
The Court in Bryan Manufacturing based its decision on not only the
statutory language of Section 10(b) of the Act but also the practical
need for a time restriction on anyone--employers, unions, and
employees--
[[Page 62963]]
from challenging a union's initial recognition. 362 U.S. at 416-417. 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.'' Id. at 419.
The Casale Board concluded that the same interests acknowledged by
the Court in Bryan Manufacturing should prevail in construction-
industry representation cases: ``[P]arties in nonconstruction
industries, who have established and maintained a stable Section 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.'' 311 NLRB at 953 (citing Deklewa, 282
NLRB at 1387 fn. 53); see also NLRB v. Triple A Fire Protection, Inc.,
136 F.3d 727, 737 (11th Cir. 1998), cert. denied 525 U.S. 1067 (1999).
2. The April 2020 Amendments to 9(a) Recognition in the Construction
Industry
In the April 2020 rule, the Board adopted the proposed language
from its August 12, 2019 NPRM to overrule Staunton Fuel, regarding the
purported sufficiency of contract language alone to establish a 9(a)
bargaining relationship. The April 2020 rule required, in the
representation context, that parties retain additional positive
evidence, beyond the parties' contract language, of the union's
majority support at the time of its initial 9(a) recognition if they
seek to rely on either the Board's voluntary recognition bar or
contract bar in response to a challenge to the union's presumption of
majority support. Moreover, under the April 2020 rule, a regional
director must process a representation petition, even if a construction
employer had provided unlawful assistance to a union by granting it
9(a) recognition despite the union's lack of majority support. The
election would be held but, because of the unremedied unfair labor
practices by the construction employer having granted and the union
having accepted unlawful assistance, there would not be the laboratory
conditions necessary to ascertain employees' uncoerced sentiments
towards the union.
Moreover, even though the August 12, 2019 NPRM made no mention
whatsoever of altering the bedrock principle from Bryan Manufacturing,
reiterated in Casale, that a challenge cannot be made to a union's
initial recognition by a construction employer after 6 months had
elapsed, the Board's April 2020 rule stated in the preamble that it was
overruling Casale ``to the extent that it is inconsistent with the
instant rule'' and 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)
recognition to a union and 6 months elapse without a petition.'' 85 FR
18391. The practical effect of the Board's unanticipated overruling of
Casale in the April 2020 rule was to require a construction employer
and a union to retain any and all evidence of the union's initial
majority support indefinitely because--no matter how much time had
passed--a party would never be time-barred from challenging the union's
9(a) status by asserting that the union lacked majority support when it
was initially granted 9(a) recognition.
3. The 2022 Proposed Rule
In the Board's November 4, 2022 NPRM, the Board proposed to rescind
Section 103.22 in toto and to have the Board's previously effective
caselaw precedent, such as Staunton Fuel, Casale, and other cases
pertaining to the application of the voluntary recognition bar and
contract bar in the construction industry govern 9(a) recognition in
the construction industry. The Board stated in the NPRM that it
preliminarily believed that this change may be required because Section
103.22 is premised both on overruling Casale and on revoking the
limitations period for challenging voluntary recognition in the
construction industry, neither of which were disclosed anywhere in the
August 12, 2019 NPRM as steps under consideration by the Board. In the
absence of the required notice in the August 12, 2019 NPRM,
stakeholders and members of the public had no reason to submit comments
on these critical related issues. As a result, the Board expressed its
concern in the November 4, 2022 NPRM that the lack of public notice--
and therefore a lack of commentary--may have affected the Board's
ultimate decision to enact Section 103.22, especially in light of
Section 103.22's resultant imposition of an onerous and unreasonable
recordkeeping requirement on construction employers and unions.
III. Procedural Background
A. Pending Litigation Challenging the April 2020 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 lacked 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, at the time,
was pending decision by the District of Columbia Circuit in another
case (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 would be decided. On
January 17, 2023, the D.C. Circuit rejected the argument that district
courts lack subject-matter jurisdiction over challenges to Board rules
that are exclusively concerned with representation elections. AFL-CIO
v. NLRB, 57 F.4th 1023, 1027, 1032-1034 (D.C. Cir. 2023). On January
31, 2023, pursuant to the parties' joint motion, AFL-CIO II was further
stayed. Within 14 days of the issuance of the final rule or by
September 28, 2023 (whichever occurs sooner), the parties were required
to file a joint status report advising whether any disputes remain. On
September 26, 2023, the parties jointly moved for a further stay of the
litigation through March 31, 2024. Following the parties' April 1, 2024
joint status report, on April 18, 2024, United States District Judge
Beryl A. Howell extended the stay of the litigation until fourteen days
after issuance of this final rule, or until October 14, 2024, whichever
occurs sooner.
B. Rulemaking Petitions Seeking Rescission of the April 2020 Rule
Meanwhile, on November 16, 2021, the AFL-CIO and North America's
Building Trades Unions (``NABTU'')
[[Page 62964]]
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 Section
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 Section 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 Section 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 Section 103.21 of the April 2020 rule,
which allows the Board to process decertification petitions received
within 45 days of an employer's voluntary recognition of a union as its
employees' exclusive bargaining representative. UNITE HERE's 2022
petition also expressed its support for the 2021 rulemaking petition
filed by AFL-CIO and NABTU regarding the other amendments contained in
the April 2020 rule.
C. The Notice of Proposed Rulemaking
As noted, on November 4, 2022, the Board issued a Notice of
Proposed Rulemaking proposing to rescind the three amendments to its
rules and regulations made by the April 2020 rule and to replace two of
the amendments with different regulatory language. See Representation--
Case Procedures: Election Bars; Proof of Majority Support in
Construction-Industry Collective-Bargaining Relationships, 87 FR 66890
(November 4, 2022). The NPRM set forth the Board's preliminary view
that the Board's historical blocking charge policy, as amended by the
December 2014 rule, better serves the Act's policies than the April
2020 blocking charge amendments, and therefore proposed to rescind the
April 2020 blocking charge amendments and return to the pre-April 2020
blocking charge policy regulatory language. 87 FR 66891, 66902-66909.
The NPRM also set forth the Board's preliminary view that the
voluntary-recognition bar as articulated in Lamons Gasket better serves
the policies of the National Labor Relations Act than did the April
2020 rule, and therefore proposed to rescind the April 2020 amendments
governing the filing and processing of petitions for a Board-conducted
representation election following an employer's voluntary recognition
of a union as the majority-supported collective-bargaining
representative of the employer's employees, and to codify pre-April
2020 rule case law in this area. 87 FR 66890-66891, 66909-66912. The
NPRM also set forth the Board's preliminary view that rescission of
Section 103.22 of the April 2020 rule governing Section 9(a)
recognition in the construction industry was required because that
section was premised on overruling Casale, but revoking the limitations
period for challenging voluntary recognition in the construction
industry was not mentioned anywhere in the 2019 NPRM as being under
consideration by the Board, and because the previously effective case
law would better serve the policies of the Act. 87 FR 66891, 66912-
66914. The NPRM proposed that the previously effective case-law
precedent would govern Section 9(a) recognition in the construction
industry, such as Staunton Fuel, Casale, and other cases pertaining to
the application of the voluntary-recognition and contract bars. 87 FR
66912.
After carefully considering the comments, which are summarized and
addressed in detail below, as well as the views expressed by the April
2020 Board, we have decided, for the reasons set forth below, to
rescind the 2020 amendments and to adopt the proposed amendments to the
blocking charge policy and voluntary-recognition bar doctrine
regulatory language, with certain modifications described further
below.
IV. Statutory Authority To Engage In This Rulemaking
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].'' \59\
These provisions include Sections 1, 7, 8, and 9 of the Act, 29 U.S.C.
151, 157, 158, and 159, respectively discussed in relevant part in
Section II.A., B., and C., above. The amendments made by the instant
rule implicate these provisions of the Act, and Section 6 grants the
Board the authority to promulgate rules that carry out those
provisions. In addition, Section 9(c), 29 U.S.C. 159(c)(1),
specifically contemplates rules governing representation-case
procedures, stating that elections will be held ``in accordance with
such regulations as may be prescribed by the Board.'' 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 Sections 6 and 9 as authorizing the
instant rulemaking proceeding.
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\59\ 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 the instant rule, we treat
these terms as interchangeable.
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V. The Amendments in This Rulemaking
A. Rescission of the April 1, 2020 Blocking Charge Amendments and
Return to Pre-April 2020 Blocking Charge Policy
1. Comment Overview
The Board received a number of comments from interested
organizations, a member of Congress, labor unions, and individuals
regarding its proposal to rescind the changes made by the April 2020
rule to the Board's blocking charge policy. We have also considered the
views of our dissenting colleague.
Comments in favor of the proposed rule make both process-oriented
and substantive arguments. Some commenters argue that the Board should
rescind the April 2020 rule because of its serious procedural flaws.
They cite, inter alia, the April 2020 Board's failure to correct the
faulty data contained in the 2019 NPRM that led to the April 2020 rule
and the April 2020 rule's adoption of amendments that were not a
logical outgrowth of the NPRM, both of which commenters claim impaired
the integrity of the rulemaking process (and the public's ability to
intelligently evaluate and comment on the proposed rule), and rendered
the final rule arbitrary and capricious.\60\ At least one
[[Page 62965]]
comment points out that the April 2020 Board's failure to correct the
faulty data contained in its NPRM has infected this rulemaking because
commenters on the instant NPRM continue to rely on that faulty
data.\61\ The same commenter also charges that the April 2020 Board
failed to respond to substantive well-supported comments.\62\
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\60\ See, e.g., comments of The American Federation of Labor &
Congress of Industrial Organizations (``AFL-CIO'') and North
America's Building Trades Unions (``NABTU'') (collectively ``AFL-
CIO/NABTU''); AFL-CIO/NABTU reply comments; National Nurses United
(``NNU''); International Union of Operating Engineers (``IUOE'');
Service Employees International Union (``SEIU'').
\61\ See reply comments of AFL-CIO/NABTU.
\62\ See comments of AFL-CIO/NABTU.
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As for the substance, many comments in favor of the proposed rule
argue that returning to the Board's historical blocking charge policy,
as amended by the December 2014 rule, is appropriate because it better
protects employee free choice by enabling regional directors to shield
employees from having to vote under coercive conditions.\63\ Commenters
claim that the April 2020 rule constitutes ``a betrayal'' of the
Board's statutory responsibility to ensure free and fair elections and
``an abdication'' of the Board's responsibility to preserve laboratory
conditions because the April 2020 Rule requires regional directors to
conduct elections under coercive conditions.\64\ Some commenters
relatedly argue that the April 2020 rule must be rescinded because it
allows for such absurd results as requiring the Board to conduct an
election notwithstanding overwhelming evidence of egregious unfair
labor practices that would necessitate setting aside any election that
was held, and which can lead to petitioners withdrawing their
petitions.\65\
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\63\ See comments of American Federation of State, County and
Municipal Employees (``AFSCME''); AFL-CIO/NABTU; General Counsel
Jennifer A. Abruzzo (``GC Abruzzo''); Brotherhood of Railroad
Signalmen (``Railroad Signalmen''); Center for American Progress
(``CAP''); Economic Policy Institute (``EPI''); NNU; joint comment
filed by the Los Angeles County Federation of Labor, AFL-CIO,
International Brotherhood of Teamsters Locals 848, 572, 396, and 63
and UNITE HERE Local 11 (collectively the ``LA Federation''); SEIU;
United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO
(``UA''); United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union,
AFL-CIO/CLC (``USW'').
\64\ See comments of EPI; LA Federation; NNU; SEIU.
\65\ See comments of SEIU; AFL-CIO/NABTU; LA Federation.
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Some commenters also argue that the April 2020 rule wastes
governmental and party resources by requiring regional directors to
conduct, and the parties and employees to participate in, elections
that will be set aside on account of the coercive conditions, and that
holding an election under those coercive circumstances further taints
any rerun election.\66\ At least one comment notes that the blocking
charge policy was publicly endorsed by the Agency's regional directors,
the Board officials who are charged with administering the policy in
the first instance.\67\
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\66\ See comments of AFL-CIO/NABTU (initial and reply); AFSCME;
EPI; GC Abruzzo; LA Federation; NNU; SEIU; UA; USW. In the view of
these commenters, simply holding a rerun election does not fully and
completely remedy the holding of an election in which employees were
forced to cast their votes on the question concerning representation
in an atmosphere of coercion. The commenters explain that this is so
because there is a substantial risk that the tainted election will
compound the effects of the unfair labor practices: an employee who
voted against union representation under the influence of the
employer's unlawful conduct is unlikely to reconsider the issue and
change their vote in the rerun election. Commenters such as UA
support this by citing academic research finding that decisionmakers
``who have expressly committed to a position on an issue are often
reluctant to change that position when asked to make that decision
again,'' a phenomenon known as status quo bias. Moreover, according
to the AFL-CIO/NABTU, which agrees that it is psychologically
difficult for employees to change their votes even if the ballots
are impounded, ``[t]he tainted votes that the 2020 Rules require
regional directors to conduct affect a second election . . . all the
more so when the ballots are opened and counted'' as they are in the
vast majority of cases under the April 2020 rule. The AFL-CIO/NABTU
comment points to studies showing the impact (on voter turnout and
choice) of disclosing early returns and exit poll results while the
polls remain open in political elections. NNU claims that this
taints future rerun elections by inaccurately depicting the
bargaining unit's support for the union and which can deter
employees from choosing to vote in a rerun election.
\67\ See comments of GC Abruzzo.
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Many commenters in favor of the proposed rule also argue that the
April 2020 Board failed to demonstrate a need or reasoned basis for its
amendments. For example, some comments note that the April 2020 Board
mischaracterized the blocking charge policy by suggesting that unfair
labor practice charges automatically blocked elections.\68\ Commenters
further note that the December 2014 rule adopted certain provisions
that enable regional directors to swiftly dispose of nonmeritorious
blocking requests that could delay elections, and that, as the April
2020 Board acknowledged, the number of blocked elections declined after
the December 2014 rule went into effect.\69\
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\68\ See comments of AFL-CIO/NABTU; SEIU.
\69\ See comments of AFL-CIO/NABTU; AFSCME; GC Abruzzo; LA
Federation; SEIU; UA.
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Commenters further note that the April 2020 Board did not deny that
the majority of decertification petitions--as well as the majority of
employer-filed RM petitions and initial organizing RC petitions--are
never blocked and that the merit rate for blocking charges was
substantially higher than the merit rate for unfair labor practice
charges generally.\70\ They also point out that the filing of
meritorious blocking charges by definition provides no support for the
April 2020 Board's decision to substantially eliminate the blocking
charge policy.\71\ And some comments argue that ``the 2020 majority
made no effort whatsoever to separate well-founded blocking charges
from baseless blocking charges or, in other words, merited delay from
unmerited delay.'' \72\ In fact, commenters further claim that the
April 2020 Board failed to substantiate its repeated claim that unions
knowingly file meritless charges to delay their ouster in the
decertification context.\73\ Some commenters argue that the April 2020
Board's concern--that the blocking charge policy robs the election
petition of momentum by depriving employees of a prompt election--
ignores that the momentum may be the product of unfair labor
practices.\74\ These commenters further argue that concerns about a
petition's momentum cannot justify the April 2020 Board's decision to
eliminate the ability of regional directors to delay elections in the
initial organizing context, because petitioners may obtain a prompt
election if they so desire under the blocking charge policy
notwithstanding their filing of unfair labor practice charges.\75\
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\70\ See comments of AFL-CIO/NABTU; GC Abruzzo; LA Federation;
SEIU.
\71\ See AFL-CIO/NABTU; LA Federation; SEIU.
\72\ Comments of AFL-CIO/NABTU. See also comments of SEIU.
\73\ See comments of AFL-CIO/NABTU; SEIU.
\74\ See comments of AFL-CIO/NABTU; GC Abruzzo; NNU; SEIU.
\75\ See id.
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Commenters in favor of the NPRM also argue that, although the April
2020 rule results in elections taking place sooner, the April 2020 rule
does not necessarily expedite the effectuation of employees' choice.
They note that the April 2020 rule expressly provides that the
certification of the results of the election is delayed until the
merits of the charge are determined. Accordingly, in their view, the
April 2020 rule simply shifts the adjudication of unfair labor
practices from before the election until after the election.\76\ At
least one commenter relatedly argues that the April 2020 rule ignores
the frustration that employees feel in not having their votes
effectuated until the merits of the charge are determined. This
commenter claims that the blocking charge policy makes it more likely
that the election that is held will in fact count, by
[[Page 62966]]
enabling regional directors to delay elections until the merits of a
pending charge alleging misconduct are determined.\77\
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\76\ See comments of AFL-CIO/NABTU; LA Federation; USW.
\77\ See comments of USW.
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Still other commenters argue that the April 2020 rule's requirement
that the Board conduct elections in virtually all cases does not
comport with the Supreme Court's holding in Gissel and makes it harder
to obtain a remedial bargaining order, particularly in the context of
Section 10(j) litigation.\78\
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\78\ See comments of GC Abruzzo; NNU.
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On the other hand, both our dissenting colleague and commenters
opposed to the proposed rule urge the Board to adhere to the April 2020
rule's blocking charge provisions. Because the pre-April 2020 blocking
charge policy delayed elections, commenters claim that the policy
interferes with employees' Section 7 rights and/or is antidemocratic
and interferes with employees' constitutional rights of free assembly
and association.\79\ Some commenters also claim the blocking charge
policy is racist,\80\ can impose a collective-bargaining representative
on employees without the employees having the chance to vote for
representation in the first place,\81\ and infringes on workers'
alleged ``statutory right to hold decertification elections at any time
outside of 12 months following a previous NLRB-supervised election.''
\82\ Other commenters claim that by denying employees a prompt vote,
the policy unfairly punishes employees for the misconduct of their
employer and ignores their desires.\83\ Commenters additionally argue
that the blocking charge policy not only makes it harder for employees
to leave a union but forces them to pay dues to the union they wish to
decertify after the collective-bargaining agreement expires.\84\ At
least one commenter argues that because the workforce can turn over
during the period of time while the merits of the blocking charge are
being determined, the blocking charge policy can disenfranchise
employees and undermine the goal of confining the pool of eventual
voters to those employed at the time the question concerning
representation arises.\85\ Our dissenting colleague also advances a
similar argument.
---------------------------------------------------------------------------
\79\ See, e.g., comments of Associated Builders and Contractors
(``ABC''); Virginia Foxx, Chairwoman, Committee on Education and the
Workforce (``Chairwoman Foxx''); U.S. Chamber of Commerce
(``Chamber''); the Coalition for a Democratic Workplace (``CDW'');
HR Policy Association (``HRPA''); National Right to Work Legal
Defense Foundation (``NRTWLDF''); Marvin Graham (``Graham''); Rachel
Greszler (``Greszler''); John Weber (``Weber''); Julius Scaccia
(``Scaccia''); David L. Chaump (``Chaump''); Trent Bryden
(``Bryden''); Jennifer Christiano (``Christiano''); Clark Coleman
(``Coleman''); William Fedewa (``Fedewa''); Pierre Giani
(``Giani''); Sam Gompers (``Gompers''); Leonard Mead (``Mead'');
Kenneth Morris (``Morris''); Anonymous 143; Anonymous 83; Anonymous
106; Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76.
Scaccia appears to suggest that that the Board should outline a
specific time frame for elections similar to the regular election
cycles in the political arena.
\80\ See comments of Bryden.
\81\ See, e.g., comments of Chaump.
\82\ See, e.g., comments of Anonymous 83; Anonymous 106;
Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76; Paul
Andrews; Kenneth Bailey; Donald Barefoot; Barry Barkley; Kathleen
Brown; Howard Butz; Dawn Castle; Kenneth Chase; John Churchill;
Marvin Graham; Annette Craig; Julie D'Alessandro; Richard Damico;
Daniel De La O; John-G Donovan; Edward Farrow; William Fedewa; R.E.
Fox; John Gaither; Rachel Hughes; Gary Kirkland; Alan Goldberg;
Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah Hurd;
Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred
Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles
Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert;
Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John
Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine
Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner;
George Zolnoski.
\83\ See, e.g., comments of ABC; NRTWLDF; Anonymous 143;
Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous
152; Anonymous 76; Paul Andrews; Kenneth Bailey; Donald Barefoot;
Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth
Chase; John Churchill; Graham; Annette Craig; Julie D'Alessandro;
Richard Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E.
Fox; John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland;
Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard;
Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck
Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip
Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin
McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park;
James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen
Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart;
Elizabeth Turner; George Zolnoski.
Our dissenting colleague makes a slightly different version of
this argument, contending that ``a prompt opportunity for employees
to vote in a Board election itself safeguards employee free
choice.''
\84\ See comments of Chairwoman Foxx; Chamber; NRTWLDF; Scaccia.
\85\ See, e.g., comments of CDW.
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Some commenters go so far as to suggest that the blocking charge
policy can disenfranchise the entire unit by preventing unit employees
from ever exercising their right to vote against union
representation.\86\ Some commenters, along with our dissenting
colleague, further argue that the policy disenfranchises employees
based on a mere administrative determination made by a regional
director, rather than by the Board itself following an unfair labor
practice hearing, and that regional director practice varied widely
resulting in substantial inconsistency in application of the blocking
charge policy.\87\
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\86\ See comments of CDW; HRPA; NRTWLDF.
\87\ See, e.g., comments of CDW; HRPA. On the other hand, the
NRTWLDF comments suggest that there was no variation; in its
experience, regional directors invariably and automatically blocked
elections immediately upon the filing of any union-filed unfair
labor practice charge. See comments of NRTWLDF.
---------------------------------------------------------------------------
Commenters offer additional arguments against returning to the pre-
April 2020 blocking charge policy, including claims that it rendered
illusory the ability of employers to file RM petitions, that it
unjustifiably treated decertification petitioners worse than
petitioning unions in an initial organizing context by only allowing
unions to proceed to an election, and that the April 2020 rule better
accords with Section 8(a)(2), which forbids an employer to grant
recognition as an exclusive bargaining representative to a union that
represents a minority of bargaining-unit employees.\88\ Both our
dissenting colleague and some commenters additionally argue that
judicial criticism of the blocking charge policy counsels against
returning to it.\89\
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\88\ See comments of CDW; NRTWLDF reply comments; Paul Andrews;
Anonymous 143; Anonymous 83; Anonymous 106; Anonymous 113; Anonymous
123; Anonymous 152; Anonymous 76; Kenneth Bailey; Donald Barefoot;
Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth
Chase; John Churchill; Marvin Graham; Annette Craig; Julie
D'Alessandro; Richard Damico; Daniel De La O; John-G Donovan; Edward
Farrow; R.E. Fox; John Gaither; Allan Gardiner; Rachel Hughes; Gary
Kirkland; Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta
Howard; Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck
Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip
Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin
McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park;
James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen
Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart;
Elizabeth Turner; George Zolnoski.
Our dissenting colleague also takes the view that the historical
blocking charge policy rendered the RM petition safe harbor under
Levitz illusory and that it treated decertification petitioners less
favorably than unions in an initial organizing context.
\89\ See comments of ABC; CDW; Chamber; NRTWLDF.
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Our dissenting colleague, along with many commenters opposed to the
proposal, also argue that because the blocking charge policy can
substantially delay elections based on mere allegations of unfair labor
practices, the policy incentivizes the filing of meritless or frivolous
charges, particularly in the decertification context where employees
are seeking to rid themselves of their incumbent union
representative.\90\ At least one commenter argues that although the
[[Page 62967]]
NPRM complained about the April 2020 rule imposing unnecessary costs on
the parties and the Agency by requiring the Agency to conduct elections
that will not count, the NPRM ignored that the blocking charge policy
imposes unnecessary costs on the parties and the Agency by
incentivizing parties to file nonmeritorious unfair labor practice
charges that have to be investigated.\91\
---------------------------------------------------------------------------
\90\ See, e.g., comments of ABC; CDW; Chairwoman Foxx; Chamber;
Christiano; Graham; HRPA; NRTWLDF; Scaccia.
\91\ See comments of NRTWLDF.
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Both our dissenting colleague and many commenters argue that there
is no need to return to the pre-April 2020 blocking charge policy to
protect employee rights even in cases where the concurrent charges are
meritorious. Thus, they note that the April 2020 rule withholds the
certification of the results of an election until the merits of the
concurrent unfair labor pace charges are determined, thereby allowing
for a rerun election (or a bargaining order) if the Board finds, after
an unfair labor practice hearing, that a party has in fact committed
unfair labor practices that interfered with the election that was
conducted notwithstanding the pendency of the unfair labor practice
charge.\92\ Both our dissenting colleague and at least one commenter
argue that there is no need to return to the Board's historical
blocking charge policy to protect employee free choice, because the
Board's recent decision in Rieth-Riley Construction Co., supra, 371
NLRB No. 109, permits regional directors to dismiss petitions rather
than conduct elections in the face of concurrent unfair labor practice
charges when they believe that employer conduct has interfered with
laboratory conditions.\93\
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\92\ See, e.g., comments of CDW; Chairwoman Foxx; Chamber;
NRTWLDF (initial and reply). At least one commenter relatedly
attacks then-Member McFerran's analysis of blocking charge data in
the dissent to the 2019 NPRM that led to the April 2020 rule by
claiming that she should not have deemed charges meritorious if they
resulted in a settlement. See comments of NRTWLDF.
\93\ See comments of NRTWLDF (initial and reply).
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Some commenters complain that the NPRM contained no data analyzing
the effect of the April 2020 amendments, that the April 2020 rule has
succeeded in its goal of permitting employees to vote promptly without
interfering with the employees' Section 7 rights to register a free and
untrammeled choice for or against union representation, and that absent
proof of a spike in the number of elections being set aside under the
April 2020 amendments, it would be unreasonable for the Board to
rescind the April 2020 amendments.\94\ According to some commenters,
the Board would be engaging in needless policy oscillation if it
rescinds the April 2020 rule, which would threaten the legitimacy of
the Agency.\95\
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\94\ See comments of CDW; NRTWLDF (initial and reply).
\95\ See comments of CDW; Chamber.
Our dissenting colleague similarly criticizes the majority's
decision to rescind the April 2020 rule on the grounds that doing so
may spur policy oscillation and disserve the Agency's stakeholders.
We address this argument in greater detail in Section VII, below.
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At least one commenter argues that if the Board decides to
reinstate the pre-April 2020 blocking charge policy, it should include
a provision allowing decertification petitioners to intervene as full
parties in blocking charge litigation to protect and effectuate their
statutory right to an election.\96\
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\96\ See comments of NRTWLDF.
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2. Explanations for Adoption of NPRM Proposal To Return to the Pre-
April 2020 Blocking Charge Policy; Responses to Blocking Charge
Comments
Having carefully considered the comments, the views of the April
2020 Board, and the views of our dissenting colleague, we have
determined, consistent with the NPRM, that returning to the Board's
historical blocking charge policy, as modified by the December 2014
rule, represents a better balance of the Board's statutory interests in
protecting employee free choice, preserving laboratory conditions in
Board-conducted elections, and resolving questions concerning
representation expeditiously than does the April 2020 rule, which at
times requires regional directors to conduct elections under coercive
circumstances. 87 FR 66903. The final rule restores and codifies the
historical blocking charge policy, as modified by the December 2014
rule. Under the final rule, we shall once again permit regional
directors to delay the processing of an election petition at the
request of a party who has filed a charge alleging conduct that would
interfere with employee free choice in an election or conduct that is
inherently inconsistent with the petition itself--provided that the
party simultaneously files an adequate offer of proof and agrees to
promptly make its witnesses available, and provided no exception is
applicable--until the merits of the charge can be determined.
We agree with the views of the commenters who oppose the NPRM (and
with the April 2020 Board and our dissenting colleague) that, under
ordinary circumstances, the Board should conduct elections
expeditiously. Nevertheless, 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. In our
considered judgment, the April 2020 rule runs counter to the policies
of the National Labor Relations Act by requiring regional directors to
conduct, and employees to vote in, elections in a coercive atmosphere
that interferes with employee free choice. Many comments agree.\97\ We
note in this regard that the April 2020 Board itself acknowledged that
the April 2020 rule does at times require regional directors to conduct
elections in coercive circumstances that interfere with employee free
choice, over the objections of charging parties who are parties to the
representation proceeding. 85 FR 18370 & fn. 10, 18378-18380. Thus, the
April 2020 Board acknowledged that under its rule, the regional
director shall continue to process the petition and conduct the
election despite the filing of a blocking request and 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 affected the
election. 85 FR 18370, 18378-18380. 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
an unfair labor practice complaint issued within 60 days of the
election) if the unfair labor practice charges are found to have merit.
85 FR 18369-18370, 18378-18380.
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\97\ See, e.g., comments of AFL-CIO/NABTU; AFSCME; CAP; EPI; GC
Abruzzo; LA Federation; NNU; Railroad Signalmen; SEIU; UA; USW.
---------------------------------------------------------------------------
We also note that several of the commenters who oppose the proposed
rule implicitly acknowledge this as well; thus, for example, the HRPA
states that it ``does not imply that all such [blocking] charges are
meritless.'' \98\ In short, it cannot be denied that under the April
2020 amendments, regional directors are required to run--and employees,
unions, and employers are required to participate in--some elections
conducted under coercive conditions that interfere with employee free
choice. 85 FR 18370, 18378-18380. And because the April 2020 rule
requires regional directors to run--and employees, unions, and
employers to participate in--some elections that will not resolve the
question of representation, the April 2020 rule
[[Page 62968]]
imposes unnecessary costs on the parties and the Board. We also
conclude, in agreement with several commenters,\99\ that the April 2020
rule's position--that nothing is more important under the Act and its
policies than having employees vote without delay in virtually 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. See General Shoe
Corp., 77 NLRB at 127 (``In 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.''); Mark Burnett Productions,
349 NLRB at 706 (``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.'').
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\98\ See also comments of CDW, Chairwoman Foxx, Chamber, and
NRTWLDF, acknowledging that under the April 2020 rule, the Board can
order a rerun election in those cases where elections were conducted
under coercive circumstances over the objections of the charging
party.
\99\ See, e.g., comments of EPI; LA Federation; NNU; SEIU.
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The April 2020 rule also creates perverse incentives for employers
to commit unfair labor practices. By requiring the Board to conduct
elections in all cases where Type I unfair labor practice conduct has
occurred and many cases where Type II unfair labor practice conduct has
occurred, the 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 free choice of the employees;
and (2) to create a sense among employees that seeking to exercise
their Section 7 rights is futile. This possibility may well induce
unions to forego the Board's electoral machinery in favor of
recognitional picketing and other forms of economic pressure,
potentially exacerbating industrial strife and risking contravening the
statutory policy favoring ``eliminat[ing] the causes of certain
substantial obstructions to the free flow of commerce.'' 29 U.S.C.
151.\100\
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\100\ Commenters such as NNU share this concern.
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It is not surprising that although the Board's application of the
blocking charge policy in a particular case had occasionally been
criticized, no court invalidated the policy itself during the more than
eight decades that it had been in effect. 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).\101\ We find further support for our
decision to return to the pre-April 2020 blocking charge policy in the
fact that the April 2020 Board had jettisoned that policy even though
the Agency's regional directors--the career officials who are charged
with administering the policy in the first instance--had publicly
endorsed the policy. 87 FR 66904 & fn. 105.
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\101\ 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.
Our dissenting colleague criticizes our ``heavy reliance on the
Fifth Circuit's positive perceptions of the historical policy fifty
years ago.'' We find this criticism puzzling. Bishop remains good
law. In addition, the language quoted above persuasively articulates
the policy justifications militating in favor of our decision to
return to the historical blocking charge policy.
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We also agree with the comments filed by AFL-CIO/NABTU, LA
Federation, and USW that argue that, although the April 2020 rule
certainly results in many elections being held more promptly in the
face of concurrent unfair labor practice charges than they would have
been held under the pre-April 2020 blocking charge policy, the April
2020 rule does not necessarily result in the employees' choice being
effectuated in a significantly shorter period of time. This is so
because, as the April 2020 Board conceded, the certification of the
results of the election conducted under such circumstances must still
await a determination of the merits of the unfair labor practice
charge.\102\ And it takes the same amount of time to determine the
merits of an unfair labor practice charge whether the charge is
investigated before the election or after the election. For example,
under the April 2020 rule, the results of a promptly held
decertification election are set aside if the charge is ultimately
found to be meritorious. Then, a new election is conducted after the
unfair labor practice is remedied. Only then can employees' choice
actually be effectuated. The situation is thus the same as under the
pre-April 2020 blocking charge policy, when a meritorious charge
blocked the election until the unfair labor practice was remedied. As
for cases involving nonmeritorious charges, even under the April 2020
rule, the incumbent union will not actually be decertified until the
charge is ultimately determined to lack merit--despite the employees
having voted in the decertification election.\103\ Moreover, it stands
to reason that the representation proceedings that were blocked the
longest under the pre-April 2020 blocking charge policy were those
cases litigated before administrative law judges, then the Board, and
then the courts of appeals, rather than the cases
[[Page 62969]]
involving nonmeritorious charges that can be weeded out
administratively at the regional level. The same is true under the
April 2020 rule. In short, the actual resolution of the question of
representation can take a substantial period of time under the April
2020 rule, even though an election was promptly held.
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\102\ See 85 FR 18370 (``Finally, for all types of charges upon
which a blocking-charge request is based, the final rule clarifies
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.''); 29 CFR 103.20(d) (April 1,
2020) (``For all charges described in paragraphs (b) or (c) of this
section, 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.'').
\103\ The same is true in elections held in the context of an
initial organizing campaign. Elections will be set aside if the
charges that are subject of requests to block are meritorious, and
the results of the elections will not be certified until the charges
that are subject of requests to block are determined to be
nonmeritorious.
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For the reasons set forth below, the arguments of the April 2020
Board and the commenters opposing the NPRM do not persuade us that we
should continue to adhere to the April 2020 rule.
a. Comments Regarding the Effect of Delay on the Petition's Momentum
and the Pre-Election Narrative
Like the April 2020 Board, our dissenting colleague and many
commenters opposed to the NPRM emphasize the obvious: that the blocking
charge policy causes delays in conducting elections. From this, they
argue that the blocking charge policy impedes employee free
choice.\104\ However, the conclusion of the April 2020 Board, our
colleague, and the commenters does not necessarily follow from their
premise. To the contrary, we 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 Furniture Co. of the Pacific, 333 NLRB 717, 728
fn. 57 (2001) (emphasis in original). We thus agree with the
observation of the December 2014 Board 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. After all, if the
circumstances surrounding an election interfere with employee free
choice, then, contrary to the April 2020 rule, it plainly is not
``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, 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, provided the charging
party files election objections (or a request to block). 85 FR 18370,
18378-18380.
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\104\ See 85 FR 18366, 18367, 18372-18373, 18375-18380, 18393.
See also, e.g., comments of ABC; CDW; Chairwoman Foxx; Chamber;
HRPA; NRTWLDF; Graham; Greszler; Weber; Scaccia; Bryden; Christiano;
Giani; Morris; Anonymous 143; Anonymous 83; Anonymous 106; Anonymous
113; Anonymous 123; Anonymous 152; Anonymous 76.
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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, 18379, 18393 (finding it
appropriate to issue the April 2020 Rule ``[f]or all the reasons set
forth . . . [in the April 2020 preamble] and in the NPRM[.]''). See
also 84 FR 39937. Our dissenting colleague reiterates this view.
However, 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 2019 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' true desires and therefore should not
be conducted. 84 FR 39944. Indeed, the momentum that the April 2020
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. Notwithstanding the impact of delay on the
decertification petition's momentum, we think the delay is justified to
safeguard employee free choice.\105\
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\105\ We also find unpersuasive the April 2020 Board's claim
that its amendments are superior to the pre-April 2020 blocking
charge policy because the April 2020 rule allows the balloting to
occur when the parties' respective arguments are ``fresh in the
mind[s] of unit employees.'' 84 FR 39937-39938, 85 FR at 18379,
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). Thus, all the April 2020 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 disagree with the April 2020 Board's view that its
amendments 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 18379, 18393. As then-Member McFerran pointed out in her
dissent to the 2019 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 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.
The April 2020 Board also suggested that employees would be less
frustrated or confused under its amendments--which provide that
elections will be held with the ballots being promptly opened and
counted in the vast majority of cases involving requests to block,
notwithstanding that the results of the election will nevertheless
not be certified until there has been a final disposition of the
unfair labor practice charge and a determination of its effects on
the petition by the Board--than they would be under the pre-April
2020 blocking charge policy, which delays the election itself until
the merits of the charge are determined. 85 FR 18367, 18370, 18379-
18380, 18393. See also 84 FR 39937-39938. We reject that speculative
proposition. Permitting employees to vote and opening and counting
ballots, yet delaying the certification of the results, might very
well equally frustrate employees who must await the outcome of the
Board's investigation of the charge to learn whether the results of
the election will be certified and, at worst, actively mislead them
by conveying a materially false impression of the level of union
support. 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 rule until the merits of the charge
have been determined. In any event, the April 2020 rule also did not
address the frustration that is felt by employees who, under the
April 2020 rule, are required to vote under coercive circumstances.
See comments of GC Abruzzo; LA Federation; NNU; SEIU; UA.
---------------------------------------------------------------------------
We also note that the April 2020 rule applies to petitions filed in
initial organizing campaigns, not just to petitions filed in the
decertification context. The April 2020 Board's concern about the
blocking charge policy's negatively impacting a petition's momentum has
little persuasive force where blocking charges are filed by a
petitioning union in the initial organizing context. Because the final
rule restores the December 2014 rule's
[[Page 62970]]
changes to the historical blocking charge policy, an election cannot be
delayed on the basis of a concurrent charge filed by a union unless the
union requests that its charge block the petition. 29 CFR 103.20 (Dec.
15, 2014); Casehandling Manual Section 11730 (January 2017).\106\ In
other words, a petitioner in the initial organizing context can indeed
obtain a prompt election notwithstanding its unfair labor practice
charge. On the other hand, if the petitioner requests that its charge
delay the election, then the petitioner obviously believes that the
employer's unfair labor practices have already halted the petition's
momentum. In short, the April 2020 Board's concern cannot justify
depriving regional directors of the authority to delay elections in the
initial organizing context at the request of petitioners.\107\
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\106\ Similarly, as commenters such as AFL-CIO/NABTU and NNU
note, under the pre-December 2014 blocking charge policy, a union in
an organizing context could request to proceed to an election
notwithstanding its charge.
\107\ Of course, if an employer files a charge against a
petitioning union with an adequately supported request to block,
then the election in the initial organizing context may indeed by
delayed. But, just as is the case with regard to blocking charges
filed in the decertification context, we think the delay here is
justified to protect employee free choice.
---------------------------------------------------------------------------
b. Comments Regarding Rieth-Riley and the Availability of a Rerun
Election
Both our dissenting colleague and many comments filed in opposition
to the NPRM also argue that there is no need to return to the pre-April
2020 blocking charge policy to protect employee rights even when
meritorious unfair labor practice charges have been filed prior to an
election. We disagree. We are not persuaded by the NRTWLDF's comments
that there is no need to return to the Board's pre-April 2020 blocking
charge policy because the Board's recent decision in Rieth-Riley
Construction Co., 371 NLRB No. 109 (2022), permits regional directors
to dismiss petitions rather than conduct elections in the face of
concurrent unfair labor practice charges ``when they believe employer
conduct has interfered with laboratory conditions.'' \108\ To begin, we
find the argument to be a non sequitur; as the Board noted in Rieth-
Riley, the merit-determination dismissal process was itself merely an
``aspect of the blocking charge policy.'' Id., slip op. at 1. The
Casehandling Manuals in effect prior to both the 2014 Rule and the 2020
Rule explicitly set forth merit-determination dismissals as part of the
blocking charge policy. See, e.g., Casehandling Manual Sections
11730.1, 11730.2, 11730.3 (August 2007) (noting that Type II blocking
charges may cause a petition to be dismissed after a determination as
to their merit, whereas Type I charges result in petition being held in
abeyance until the charge is dismissed or remedied); Casehandling
Manual Sections 11730.1, 11730.2, 11730.3 (January 2017) (same). In
short, the instant rule simply restores the status quo that existed
prior to the April 2020 rule (i.e., it maintains the merit-
determination dismissal procedure while also restoring the other
aspects of the blocking charge policy, which for example permit
regional directors to hold petitions in abeyance based on Type I
charges).
---------------------------------------------------------------------------
\108\ Our dissenting colleague takes a similar position, arguing
that Rieth-Riley ``undermines the justification for returning to''
the historical blocking charge policy.
---------------------------------------------------------------------------
In any event, we conclude that Rieth-Riley's merit-determination
dismissal procedure alone does not adequately protect employee rights.
To begin, the merit-determination dismissal procedure does not permit a
regional director to dismiss a petition rather than conduct an election
whenever the director finds merit to charges alleging conduct that
would interfere with laboratory conditions. Rather, as the Board's
decision in Rieth-Riley makes clear, and as the NRTWLDF recognizes
elsewhere in its comments, the merit-determination dismissal procedure
is available ``only with respect to a Type II charge,'' i.e., a charge
alleging conduct that if proven is ``inherently inconsistent with the
petition.'' 371 NLRB No. 109, slip op. at 3. Thus, the merit-
determination dismissal procedure is not available in cases involving
Type I charges that allege conduct that would merely interfere with
employee free choice in an election were one to be held, and this is
true even if the director has found merit to the Type I charge. Indeed,
under the current legal regime, regional directors are required to
conduct elections and open and count the ballots in cases where Type I
charges are pending, even if the regional director has found merit to
the charges. In other words, regional directors are required to conduct
elections in the initial organizing context even if the regional
director has found merit to a charge alleging, for example, that an
employer has promised benefits if its employees vote against union
representation and has threatened to close the plant if the employees
vote in favor of union representation. Regional Directors are also
required to conduct decertification elections even if, for example, a
regional director has found merit to a charge alleging that after the
filing of the decertification petition, the employer promised employees
benefits if they vote against the incumbent union and threatened
adverse consequences if they vote for continued representation. And
this is so, as the comments filed by SEIU and AFL-CIO/NABTU note, even
if the employer admits engaging in the unlawful conduct. Thus,
notwithstanding the Board's decision in Rieth-Riley, regional directors
currently are required to conduct elections even when the employer has
committed Type I unfair labor practices that interfere with employee
free choice and destroy laboratory conditions.
Moreover, in our view, and contrary to our dissenting colleague's
position, the merit-determination dismissal procedure does not even
adequately protect employee rights in all cases where Type II charges
have been filed. Thus, as the Board unanimously held in Rieth-Riley,
the merit-determination dismissal procedure is available only when
there has been a determination by the Regional Director that the Type
II charge has merit. 371 NLRB No. 109, slip op. at 3 (merit-
determination dismissals ``hinge on [the Regional Director's]
determination . . . that [the Type II] unfair labor practice charge has
merit''). Thus, as the AFL-CIO/NABTU point out in their reply comment,
where the regional director has not had sufficient time to investigate
the charge and make a merit determination, the merit-determination
dismissal procedure is not available even for Type II charges, and the
regional director is required to run an election.
Many commenters \109\ also agree with the April 2020 Board (85 FR
18378-18380) that there is no need for the blocking charge policy
because the Board may always throw out the results of the first
election and conduct a rerun election if the Board finds, after an
unfair labor practice hearing, that a party has in fact committed
unfair labor practices that interfered with the election that was
conducted notwithstanding the pendency of the unfair labor practice
charge(s). They posit that a rerun election fully protects employee
free choice. They reason that, because the second election will not be
conducted until the employer has complied with the Board's traditional
remedies for the unfair labor practice conduct found to have interfered
with employee free choice, employees will be able to exercise free
choice for or against union representation when the rerun election is
held.\110\
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\109\ See, e.g., comments of CDW; Chairwoman Foxx; Chamber;
NRTWLDF.
\110\ Our dissenting colleague similarly argues that because
``the Board's traditional remedies are perfectly capable of
dissipating the coercive effects of unfair labor practices so as to
permit a free and fair election in all but extreme cases,'' the
majority should not ``assume that the Board's traditional remedies
for pertinent unfair labor practices will necessarily be inadequate
to ensure a fair rerun election in those cases where an initial
election was held but later set aside under the 2020 Rule.''
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[[Page 62971]]
We are not persuaded by these comments. To begin, during the more
than eight decades that the blocking charge policy was in effect, the
Board never viewed its authority to rerun elections as obviating the
need for the policy. This is not surprising. The Board is tasked with
ensuring free and fair elections, and the Board's goal is to conduct
elections under conditions as nearly ideal as possible. We undermine
that goal when we require employees to vote under coercive
circumstances that interfere with free choice.\111\
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\111\ It also bears mentioning that, as discussed in greater
detail below, the Board lacks authority to conduct a rerun election
in the absence of election objections (or a request to block), which
may not be filed or may be withdrawn even if the election was/is
scheduled to be conducted under coercive circumstances. Thus, the
commenters and our dissenting colleague ignore the real possibility
that the only election that is conducted under the April 2020 rule
will be the election conducted under coercive circumstances.
---------------------------------------------------------------------------
Moreover, in our considered policy judgment, a return to the pre-
April 2020 status quo better protects employee rights by putting the
unit employees in a position that more closely approximates the
position that the unit employees would have been in had no party
committed unfair labor practices interfering with employee free choice,
than the position employees are put in under the April 2020 rule. Had
no party committed unfair labor practices, employees would not be
forced to vote in an atmosphere of coercion. However, as the 2020 Board
conceded (85 FR 18378, 18379, 18380), its amendments, by definition,
sometimes require employees to vote under coercive circumstances by
requiring the regional director to conduct elections over the
objections of the charging party in virtually all cases involving
pending unfair labor practice charges. This means that when a rerun
election is conducted after the charged party takes all the remedial
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 December 2014 rule (79 FR 74418-74419) and as several commenters
note,\112\ 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 may well be unlikely to change their votes in the
rerun election even if they vote in the second election. See Savair
Mfg. Co., 414 U.S. at 277-278. To make matters even worse, the April
2020 rule's additional requirement that the ballots be immediately
opened and counted following the election (except in a very limited
subset of cases) means that, following a loss, the union will also have
to convince employees (including those employees who voted in favor of
the union in the first election) that it is worth voting for the
union--and to risk incurring retaliation from their employer--even
though employees will know that the union already lost the earlier
election. This is something the union normally would not have had to do
under the pre-April 2020 blocking charge policy, because the regional
director would not have held an election until the unfair labor
practice was remedied. Put simply, when the Board sets aside an
election because of employer unfair labor practice conduct, it does not
erase the memory of that election outcome and the illegalities that led
to it being set aside; after all, the posting of the remedial notice
reminds employees of those illegalities.\113\
---------------------------------------------------------------------------
\112\ See, e.g., comments of AFL-CIO; LA Federation; NNU; UA.
\113\ The NRTWLDF's reply comment questions any reliance on
Savair, supra. It notes that employees will have voted by secret
ballot election in the first election (that ends up getting set
aside because of the unlawful conduct) and will again vote by secret
ballot in the rerun election. However, because the ballots cast in
the first election conducted under coercive circumstances are in
fact opened and tallied in the vast majority of cases under the
April 2020 rule, the employees do in fact know how a majority of
their colleagues have voted before the second election. It is
insufficient to argue, as our dissenting colleague does, that
``opening and counting ballots reveals only collective union
sentiment at a moment in time, not individual union sentiments.'' In
every case, employees obviously know how they themselves voted in
the first election.
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Indeed, we find it significant that the April 2020 rule itself
implicitly conceded that employees and the union they seek to represent
them are in fact harmed when the employees are required to vote under
coercive circumstances, even though the first election will not count
and they will be permitted to vote in a second election if a request to
block or objections are filed. Thus, the April 2020 Board 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. Moreover, the rule expressly justified requiring
that the ballots be opened and counted in all cases involving Type I
misconduct and many cases involving Type II misconduct on the ground
that keeping the ballots secret would fail to provide an adequate
disincentive for unions to file blocking charges in the context of a
decertification election. 85 FR 18379-18380. The April 2020 Board
relied on the premise that the immediate opening and counting of the
ballots in the vast majority of cases provides a disincentive for
unions to file meritless charges seeking to block the election because
tallying the ballots reveals to employees that the union is acting
against their wishes. 85 FR 18379-18380. Thus, under April 2020 rule's
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.
We further note that the position of commenters critical of the
proposed rule--that elections should be held in virtually all cases (no
matter the severity of the employers' unfair labor practices) because
of the availability of a rerun election--is difficult to square with
the Supreme Court's approval in Gissel of the Board's practice of
withholding an election or rerun 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 (or a fair rerun) 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 . . . . '' Gissel Packing Co., 395 U.S. at 591-592,
610-611, 614-615.\114\ As the Court explained,
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\114\ See comments of NNU.
If the Board could enter only a cease-and-desist order and
direct an election or a rerun [election] . . . where an employer has
committed independent unfair labor practices which have made the
holding of a fair election unlikely or which have in fact undermined
a union's majority and caused an election to be set aside . . . it
would in effect be rewarding the employer and allowing him `to
profit from [his] own wrongful refusal to bargain,' . . . while at
the
[[Page 62972]]
same time severely curtailing the employees' right freely to
determine whether they desire a representative. The employer could
continue to delay or disrupt the election processes and put off
indefinitely his obligation to bargain; and any election held under
these circumstances would not be likely to demonstrate the
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employees' true, undistorted desires.
Id. at 610-611. And this applies equally in the decertification
context. See Bishop, 502 F.2d at 1029 (``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.'').\115\
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\115\ The April 2020 Board itself acknowledged that its rule in
some cases requires the regional director to hold an election,
notwithstanding that following the election the Board will set it
aside and issue a Gissel bargaining order--rather than conduct a
rerun election--because a fair rerun election cannot be held. 85 FR
18380. Our dissenting colleague similarly acknowledges that the
Board also may need to ``redress the harm from certain serious
unfair labor practices by issuing a general bargaining order.'' In
our view, no valid statutory purpose is served by requiring the
Board to conduct an election in such circumstances. Moreover,
requiring the Board to conduct elections in such circumstances
plainly wastes party and agency resources.
Long after the close of the comment period, the Board issued its
decision in Cemex Construction Materials, Pacific, LLC, holding in
part that an employer violates Sec. 8(a)(5) and (1) by refusing to
recognize, upon request, a union that has been designated as the
Sec. 9(a) representative by the majority of employees in an
appropriate unit unless the employer promptly files a petition
pursuant to Sec. 9(c)(1)(B) of the Act (an RM petition) to test the
union's majority status or the appropriateness of the unit, assuming
that the union has not already filed an RC petition pursuant to Sec.
9(c)(1)(A). 372 NLRB No. 130, slip op. at 25-26 & fn. 141 (2023),
rev. pending, Case 23-2302 (9th Cir.). Cemex also held, however,
that ``if the employer commits an unfair labor practice that
requires setting aside the election, the petition (whether filed by
the employer or the union) will be dismissed, and the employer will
be subject to a remedial bargaining order.'' Id. slip op. at 26-27
(an employer ``may not insist on an election, by refusing to
recognize and bargain with the designated majority representative,
and then violate the Act in a way that prevents employees from
exercising free choice in a timely way.''). Thus, ``if the Board
finds that an employer has committed unfair labor practices that
frustrate a free, fair, and timely election, the Board will dismiss
the election petition and issue a bargaining order, based on
employees' prior, proper designation of a representative for the
purpose of collective bargaining pursuant to Sec[.] 9(a) of the
Act.'' Id. slip op. at 28-29.
No commenter has requested the Board to reopen the comment
period for the purpose of addressing Cemex. We would reject any
suggestion that Cemex eliminates the need for the Board to return to
the pre-April 2020 blocking charge policy. To be sure, both Cemex
and the Board's pre-April 2020 blocking charge policy are designed
to protect the Sec. 7 rights of employees to freely choose whether
to be represented for purposes of collective bargaining and the
integrity of the Board's election process by shielding employees
from having to vote, and the Board from having to conduct elections,
under coercive circumstances. See Cemex, 372 NLRB No. 130, slip op.
at 27-28, 34 fn. 179 (because the ``new standard will more
effectively disincentivize employers from committing unfair labor
practices prior to an election . . . , this standard will advance
the Board's interest in `provid[ing] a laboratory in which an
experiment may be conducted, under conditions as nearly ideal as
possible, to determine the uninhibited desires of the employees.' .
. . Similar concerns about the importance of `provid[ing] a
laboratory in which an experiment may be conducted, under conditions
as nearly ideal as possible, to determine the uninhibited desires of
the employees,' . . . prompted the Board to issue a notice of
proposed rulemaking to solicit public input on the desirability of
restoring its historical blocking charge policy. See
Representation--Case Procedures: Election Bars; Proof of Majority
Support in Construction Industry Collective-Bargaining
Relationships, 87 [FR] 66890, 66902-66903 (Nov. 4, 2022).'')
(internal citations omitted). However, by definition, Cemex only
applies where the Union can establish that majority support by
authorization cards or other means and where the Union has demanded
recognition on the basis of that majority support. By contrast, a
union may petition for an election based merely on a 30 percent
showing of interest. See Casehandling Manual Section 11023.1 (August
2007). Thus, in some cases where a union has petitioned for an
election and the employer has committed unfair labor practices that
would interfere with employee free choice in an election were one to
be held (or where an employer that has filed an RM petition commits
unfair labor practices that interfere with employee free choice), a
Cemex bargaining order will not be available.
We further note that, as the Board acknowledged in Cemex,
``[m]any unions may prefer pursuing certification following a Board
election[--rather than invoking Cemex--] as certification confers
certain benefits on unions. These include: Sec. 9(c)(3)'s 1-year
nonrebuttable presumption of majority status; Sec. 8(b)(4)(C)'s
prohibition against recognitional picketing by rival unions; Sec.
8(b)(4)(D)'s exception to restrictions on coercive action to protect
work jurisdiction; and Sec. 8(b)(7)'s exception from restrictions on
recognitional and organizational picketing. See also Gissel, 395
U.S. at 598-599 & fn. 14 (1969) (``A certified union has the benefit
of numerous special privileges which are not accorded unions
recognized voluntarily or under a bargaining order[.]''). Cemex, 372
NLRB No. 130, slip op. at 25 fn. 140.
In our considered policy judgment, restoration of the pre-April
2020 blocking charge policy provides a measure of protection to
employees and unions that would prefer Board certification as well
as to the unit employees in those cases where unions have petitioned
for an election with an adequate showing of interest (but one that
falls of short of a majority) or without demanding recognition from
the employer. And for the reasons explained at length above, the
pre-April 2020 blocking charge policy also provides a measure of
protection to unit employees in the context of decertification
elections (and employer-filed RM petitions).
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For similar reasons, we reject the NRTWLDF's contention in its
comments that it would be internally inconsistent for the Board to
conclude in this rulemaking that employee free choice is not adequately
protected via the rerun election process.\116\ The Board has
historically deemed it appropriate, outside the Gissel bargaining order
and blocking charge contexts, to conduct a rerun election following a
finding of objectionable misconduct after the employer has fully
complied with the Board's traditional remedies for the unfair labor
practice conduct found to have interfered with employee free choice.
However, the fact that under the Board's limited remedial authority the
Board can (absent a showing of a card majority) only conduct a second
election after the unfair labor practice conduct--that interfered with
the initial election--has been remedied certainly does not mean that
requiring employees to vote under coercive conditions and then giving
them a second chance to vote puts the employees and the labor
organization at issue in the position that most closely approximates
the position they would have occupied had no party committed unfair
labor practices.
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\116\ See comments of NRTWLDF. As noted above, our dissenting
colleague also points to the availability of a rerun election as a
basis for preferring the April 2020 rule.
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c. Comments Regarding the Pre-April 2020 Blocking Charge Policy's
Reliance on Mere Administrative Determinations Made by Regional
Directors and Alleged Inconsistent Application of That Policy
Both the dissenters to the 2022 NPRM and the April 2020 Board also
found fault with the pre-April 2020 blocking charge policy because it
permitted 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,
especially since there is always the possibility that the Board could
ultimately conclude, contrary to the regional director, that the charge
lacks merit. 87 FR 66918 fn.173; 85 FR at 18367, 18377, 18393).\117\
Our
[[Page 62973]]
dissenting colleague reiterates this position. In our view, this
argument does not constitute a persuasive reason for declining to
return to the pre-April 2020 blocking charge policy. To begin, we find
the criticism internally inconsistent. The NPRM dissenters were part of
a unanimous Board holding that the April 2020 rule did not do away with
the merit-determination dismissal procedure. See Rieth-Riley, supra,
371 NLRB No. 109, slip op. at 1, 3, 8. Thus, even under the April 2020
rule, a petition could be dismissed--thereby blocking an election--
based on a mere ``administrative determination'' by the regional
director that a complaint should issue so long as the complaint
concerned a Type II charge, notwithstanding that the Board could
ultimately conclude, contrary to the regional director, that the charge
lacked merit. No reasoned explanation has been offered for deferring to
the regional director's administrative determination as to the merits
of those kinds of Type II charges, but not to the regional director's
administrative determination concerning the merits of other kinds of
unfair labor practice charges that would warrant setting aside an
election or dismissing a petition. Indeed, under the statutory scheme,
it is the regional directors, on behalf of the General Counsel, who
make the initial determination as to the merits of all unfair labor
practice charges. And of course, as the December 2014 Board noted (79
FR 74334), the courts have recognized that regional directors have
expertise in deciding what constitutes objectionable conduct--i.e.,
conduct that would interfere with employee free choice in an election.
See, e.g., NLRB v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir.
1991), cert. denied, 504 U.S. 955 (1992).
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\117\ Some comments echo this concern. See, e.g., comments of
CDW; HRPA. Many comments similarly complain that union officials
should not be allowed to delay or block workers' right to hold
decertification votes using ``unproven `blocking charges.' '' See,
e.g., comments filed by Paul Andrews; Anonymous 143; Anonymous 83;
Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 152;
Anonymous 76; Kenneth Bailey; Donald Barefoot; Barry Barkley;
Kathleen Brown; Howard Butz; Dawn Castle; Kenneth Chase; John
Churchill; Marvin Graham; Annette Craig; Julie D'Alessandro; Richard
Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E. Fox;
John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland; Alan
Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah
Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred
Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles
Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert;
Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John
Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine
Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner;
George Zolnoski.
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The District of Columbia Circuit's decision in Allied Mechanical
Services, Inc. v. NLRB, supra, 668 F.3d at 761, 771, 773, provides
further support for the notion that the April 2020 Board's distrust of
regional directors' 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 Section 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 thus reasoned:
It is therefore 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.\118\
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\118\ Although it opposes returning to the pre-April 2020
blocking charge policy, the NRTWLDF argues that if a decertification
election is to be blocked, that block ``should at least be based on
a Regional Director's formal merit determination, not mere
allegations made by a self-interested union attempting to delay or
prevent its potential ouster.'' Our dissenting colleague similarly
attempts to minimize the role of the offer-of-proof requirement,
arguing that ``the reliance on offers of proof and witness
availability requirements alone are insufficient to curb known union
abuse of blocking charges.'' Of course, these arguments ignore that
a petition is not blocked based on ``mere allegations'' of unlawful
conduct. Rather, as shown, under the pre-April 2020 blocking charge
policy to which we return, a request to block based on an unfair
labor practice charge must be supported by an adequate offer of
proof, filed simultaneously with the blocking request, providing the
names of the witnesses who will testify in support of the charge and
a summary of each witness's anticipated testimony. 29 CFR 103.20
(Dec. 15, 2014). Moreover, the policy to which we return specifies
that the regional director should continue to process the petition
and conduct the election where appropriate--notwithstanding the
blocking request--if the 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. 29 CFR 103.20 (Dec. 15, 2014). We expect regional
directors to adhere to these requirements. In other words, an offer
of proof is insufficient if, for example, it merely states in
conclusory fashion that a named witness will testify about alleged
but unspecified unlawful employer assistance to the decertification
petitioner; specifics regarding the assistance must be provided in
the offer of proof. In any event, we decline the suggestion of the
commenter and our dissenting colleague that we should deprive
regional directors of the authority to delay elections based on
unfair labor practice charges supported by adequate offers of proof
unless the regional director has made a formal merit determination.
Although there is no prehearing discovery in unfair labor practice
proceedings, regional investigations of unfair labor practice
charges are not perfunctory affairs; they involve several steps,
including the taking of affidavits of the charging party's
witnesses, attempts to obtain corroborating evidence, the
solicitation of the position of the alleged wrongdoer, including
obtaining affidavits from the charged party's witnesses if the
charged party agrees to make its witnesses available in a timely
manner, and legal research. See, e.g., NLRB Casehandling Manual
(Part 1) Unfair Labor Practice Proceedings, Sections 10052.3,
10052.5, 10052.8, 10054.2, 10054.3, 10054.4, 10054.8, 10058.2,
10060, 10064 (February 2023); NLRB, FY 2022 Performance and
Accountability Report 26, available at <a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a> (last visited
September 28, 2023) (noting that in FY 2022 only 41.2 percent of
unfair labor practice charges were found to have merit by the
regional directors). Thus, it obviously takes some time before a
regional director can make a formal merit determination regarding an
unfair labor practice charge. In FY 2022, the average time between
charge filing and regional disposition was 84.4 days. See GC
MEMORANDUM 23-06, p. 2, available at <a href="https://www.nlrb.gov/guidance/memos-research/general-counsel-memos">https://www.nlrb.gov/guidance/memos-research/general-counsel-memos</a>. We believe that where parties
have filed sufficient offers of proof in support of their blocking
requests and no exceptions are applicable, regional directors should
have the authority to delay elections, notwithstanding they have not
had sufficient time to make formal merit determinations. Adoption of
the commenter's suggestion would require regional directors to
conduct elections in circumstances where conduct has occurred that
has a tendency to interfere with employee free choice, or which is
inherently inconsistent with the petition itself, simply because the
regional director was not yet able to make the requisite merit
determination. This would undermine employee free choice and
contravene the Board's duty to conduct elections under conditions as
nearly ideal as possible.
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Moreover, as then-Member McFerran pointed out in her dissent to the
2019 NPRM, this criticism ignores 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). Indeed, the
April 2020 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 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)).\119\
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\119\ Nor did the April 2020 amendments do away with the Board's
longstanding practice of permitting regional directors to set aside
elections based on their administrative approval of an informal
settlement agreement providing for a rerun election (but containing
a nonadmissions clause), even though there has been no posthearing
finding by the Board of merit to the charge.
And despite criticizing the pre-April 2020 blocking charge
policy for permitting a mere administrative determination to delay
employees' ability to go to the polls to resolve their
representational status, the April 2020 Board did not explain why it
left unchanged Board law permitting an employer to withdraw
recognition from an incumbent union that had won a Board-conducted
election based merely on the General Counsel's administrative
determination that a majority of the unit no longer desire union
representation. And that administrative determination--unlike the
administrative determination to hold a petition in abeyance under
the blocking charge policy--is not even reviewable by the Board,
because the General Counsel has unreviewable discretion to decline
to issue a complaint challenging an employer's unilateral withdrawal
of recognition from an incumbent union. See NLRB v. United Food &
Commercial Workers Union, Local 23, AFL-CIO, 484 U.S 112, 118-119
(1987) (a charging party may appeal a regional director's dismissal
of an unfair labor practice charge to the General Counsel, but not
to the Board); Williams v. NLRB, 105 F.3d 787, 790-791 fn. 3 (2d
Cir. 1996) (`` `General Counsel's prosecutorial decisions are not
subject to review by the Board,' '' and courts may not pass judgment
on the merits of a matter never put in issue or passed upon by the
Board) (citation omitted).
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[[Page 62974]]
Our dissenting colleague and some commenters \120\ also invoke the
April 2020 Board's complaint (85 FR 18367, 18379, 18393) that regional
directors had not applied the blocking charge policy consistently.
However, after reviewing the comments and the April 2020 rule, we do
not find that justification persuasive. The April 2020 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. Nor do the commenters. In any event, because
parties were enti
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