The National Labor Relations Board (NLRB) is continuing its campaign to change how employee union representation elections are conducted by pursuing both rulemaking proceedings and by voting on individual cases as they arise.
Historically, the five-member NLRB has made policy by voting on individual cases that are brought to it from the board’s field offices where the initial rulings on unfair labor practice complaints are made. The Trump-era board is aiming to undo many of the pro-union decisions of the NLRB during the Obama Administration that sought to make it easier for unions to win representation elections.
On August 12, the NLRB issued a notice of proposed rulemaking dealing with changes in how union representation elections are conducted. It proposes replacing the current “blocking charge” policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.
Another suggested change would significantly alter the board’s voluntary recognition bar rule. In addition to representation votes, unions can obtain voluntary recognition from the employer when it can demonstrate majority support, such as with signed authorization cards.
Issues arise, however, when a representation petition is subsequently filed with the NLRB. According to the agency’s “voluntary recognition bar” doctrine, petitions were traditionally barred until the passage of an unspecified “reasonable” period of time. The Obama-era board changed that and said signed union authorization cards constituted enough of showing of majority support to make recognition immediate.
In a change aimed at the construction industry, employers would no longer be able to choose to become union shops without any showing of employee support. Under the proposed rule, the union would have to demonstrate “positive evidence, apart from contract language” that its recognition was “based on a contemporaneous showing of majority employee support.”
This evidence would typically be in the form of employee signatures on authorization cards or a petition, must be presented and show that recognition was based on a contemporaneous showing of majority employee support. Absent such proof, the relationship between a construction employer and a construction union will be deemed to be a prehire relationship that can be terminated at will by an employer at the expiration of a construction labor agreement.
In regard to the overall rulemaking proposal, NLRB chairman John Ring says, “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections.”
He adds, “We believe that the changes we propose today further the goal of protecting this vital freedom. Our proposals are, however, subject to comment, and we look forward to reviewing the public’s input with an open mind.”
Another front burner item on the board’s agenda is revision of the “ambush” election rules adopted by the Obama-era NLRB, which ended the previous 25-day gap from when an organizing election was scheduled to when the vote occurs to only eight days after a petition is filed. The Trump-era board is expected to tackle this issue in the near future.
Easier Decertification
Decertification refers to the process by which the NLRB allows employees to request a special election to get rid of the union as their exclusive collective bargaining representative. It is very important to keep in mind that the employer cannot help the employees plan or assist them in any way with decertifying a union—that has to come directly from the employees themselves.
In July, the board handed down a decision in an individual case it reviewed that clarified how decertification petitions should be handled. This decision was termed “good news” for employers by attorney Kerry Hastings of the law firm of Taft Stettinius & Hollister.
The decision, called Johnson Controls, holds that an employer who receives, within 90 days of contract expiration, lawfully obtained proof that the union has lost majority support can still discontinue bargaining and notify the union that it plans to withdraw recognition when the contract expires.
If the employer gives this notice, the board will no longer consider whether a union has reacquired majority support at the time of actual withdrawal. If a union wishes to prove it has regained majority support, it must now petition the NLRB for a secret-ballot election within 45 days after the employer announces it will withdraw recognition.
If the union files a petition, the board will process it regardless of whether the contract has expired. During the 45-day period, the employer may still choose not to withdraw recognition even if the contract expires during that window and the union has not yet filed an election petition.
If the union files an election petition, the employer may also wait to withdraw recognition until after the election. This “safe harbor” allows employers to avoid potentially unlawful withdrawals of recognition.
The Johnson Controls case also addresses how and when employers can change employees’ terms and conditions of employment after contract expiration. If the union does not file an election petition within 45 days from the date of the employer’s notice, the employer may make unilateral changes after the contract expires.
However, if a union files a petition for an election, the employer acts at its peril if it changes terms and conditions of employment, Hastings notes. Changes made after the petition (and after the contract expired) and before the election still can be objectionable under the usual NLRB election rules.
If the union loses the vote and there are challenged ballots or objections, the employer also acts at its peril if it makes unilateral changes depending on the outcome of the challenges or objections, Hastings points out. If the union wins and the employer challenges ballots or files objections, the employer also may find itself in trouble if it makes unilateral changes depending on the outcome of those challenges and objections.
As you can see, getting rid of a union during an organizing campaign means willfully entering a legal minefield, which is best done with opens eyes and the guidance of someone who has already charted the field. “An employer contemplating withdrawal of recognition should consult with counsel and carefully consider all aspects of the situation before taking any action,” Hastings warns.
Mediation Board Changes
In another development, on July 26 the National Mediation Board (NMB) changed its regulations to provide a straightforward procedure for the decertification of labor unions in the U.S. railroad and airline industries, which fall under its authority. The board published a notice of proposed rulemaking in January, invited public comment and held a public hearing on the matter.
Before the rules were changed, a craft or class of employees who wished to decertify must do so through the use of a "straw man." Under the straw man procedure, employees had to first identify an individual or organization willing to put their name forward as someone who purported to seek to represent the employees, with the understanding that the “straw man” person or organization did not actually intend to serve as a representative.
If at least 50% of the employees signed an authorization card, they then met the “showing of interest” requirement to hold a representation election. The straw man would be listed on the election ballot and a majority of the employees must then would be required to vote for either the straw man or for no representation.
Under the new rule, the straw man requirement is eliminated, allowing for direct decertification. Employees who wish to decertify will submit authorization cards stating that at least 50% no longer want to be represented by their union." If the showing of interest is found to be valid, the NMB then will authorize an election. When the employees vote, they will have to choose among three ballot options: staying with the union, choosing to have no representative or writing in the name of a desired representative.
The board said that it found support for the change in the comments it had received from individuals and organizations earlier this year, according to attorneys Jeffery Wall and Jaime Wamble of the law firm of Ford & Harrison.
NMB says the "many comments" submitted to it detailed the confusion inherent in the straw man process, including observations that described the straw man process that was so "daunting" that employees gave up on seeking decertification after the straw man process was explained to them.
