Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships

Federal RegisterNov 4, 2022

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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 103

RIN 3142-AA22

Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships

AGENCY:

National Labor Relations Board.

ACTION:

Notice of proposed rulemaking; request for comments.

SUMMARY:

As part of its ongoing efforts to more effectively administer the National Labor Relations Act (the Act or the NLRA) and to further the purposes of the Act, the National Labor Relations Board (the Board) proposes to rescind and replace amendments that the Board made in April 2020 to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election while unfair labor practice charges are pending, and following an employer's voluntary recognition of a union as the majority-supported collective-bargaining representative of the employer's employees. The Board also proposes to rescind an amendment governing the filing and processing of petitions for a Board-conducted representation election in the construction industry. The Board believes, subject to comments, that these proposed changes will better protect employees' statutory right to freely choose whether to be represented by a labor organization, promote industrial peace, and encourage the practice and procedure of collective bargaining.

DATES:

Comments regarding this proposed rule must be received by the Board on or before January 3, 2023. Comments replying to comments submitted during the initial comment period must be received by the Board on or before January 17, 2023. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted.

ADDRESSES:

Internet

—Federal eRulemaking Portal. Electronic comments may be submitted through

http://www.regulations.gov.

Follow the instructions for submitting comments.

Delivery

—Comments may be submitted by mail or hand delivery to: Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001.

FOR FURTHER INFORMATION CONTACT:

Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Submission of Comments

Because of security precautions, the Board continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. It is not necessary to mail comments if they have been filed electronically with

regulations.gov.

If you mail comments, the Board recommends that you confirm receipt of your delivered comments by contacting (202) 273-1940 (this is not a toll-free number). Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD). Because of precautions in place due to COVID-19, the Board recommends that comments be submitted electronically or by mail rather than by hand delivery. If you feel you must hand deliver comments to the Board, hand delivery will be accepted by appointment only. Please call (202) 273-1940 to arrange for hand delivery of comments. Please note that there may be a delay in the electronic posting of hand-delivered and mail comments due to the needs for safe handling and manual scanning of the comments. The Board strongly encourages electronic filing over mail or hand delivery of comments.

Only comments submitted through

http://www.regulations.gov,

hand-delivery, or mail will be accepted;

ex parte

communications received by the Board will be made part of the rulemaking record and will be treated as comments only insofar as appropriate. Comments will be available for public inspection at

http://www.regulations.gov

and during normal business hours (8:30 a.m. to 5 p.m. ET) at the above address.

The Board will post, as soon as practicable, all comments received on

http://www.regulations.gov

without making any changes to the comments, including any personal information provided. The website

http://www.regulations.gov

is the Federal eRulemaking portal, and all comments posted there are available and accessible to the public. The Board requests that comments include full citations or internet links to any authority relied upon. The Board cautions commenters not to include personal information such as Social Security numbers, personal addresses, telephone numbers, and email addresses in their comments, as such submitted information will become viewable by the public via the

http://www.regulations.gov

website. It is the commenter's responsibility to safeguard their information. Comments submitted through

http://www.regulations.gov

will not include the commenter's email address unless the commenter chooses to include that information as part of their comment.

II. Summary of 2020 Rule

As described more fully below, the Board is proposing to rescind and replace the amendments to its rules and regulations adopted in 2020 governing blocking charges and the voluntary-recognition bar doctrine and to rescind the amendment governing proof of majority support for labor organizations representing employees in the construction industry. See Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships, 85 FR 18366 (April 1, 2020).

First, the April 2020 final rule substantially eliminated the Board's long-established blocking charge policy, under which regional directors had authority to delay processing election petitions in the face of pending unfair labor practice charges alleging conduct that would interfere with employee free choice in an election or conduct that is inherently inconsistent with the election petition itself. Under the final rule, regional directors generally are now required to conduct an election even when an unfair labor practice charge and blocking request have been filed. 85 FR 18370, 18375. Moreover, under the final rule, regional directors generally are further required to immediately open and count the ballots, except in a limited subset of cases where the ballots will be impounded for a maximum of 60 days (unless a complaint issues within 60 days of the election). 85 FR 18369-18370, 18376.

However, the April 2020 final rule did not disturb the authority of regional directors to dismiss a representation petition, subject to reinstatement, under the Board's long-standing practice of “merit-determination dismissals.” See

Rieth-Riley Construction Co., Inc.,

371 NLRB No. 109 (2022).

Second, the April 2020 final rule made changes to the voluntary-recognition bar doctrine, which encourages collective bargaining and promotes industrial stability by allowing a union—after being voluntarily and lawfully recognized by an employer—to represent employees for a certain period of time without being subject to challenge. The final rule abandoned

Lamons Gasket Co.,

357

NLRB 934 (2011), and returned to the approach taken previously by the Board in

Dana Corp.,

351 NLRB 434 (2007). Under the final rule, neither an employer's voluntary recognition of a union, nor the first collective-bargaining agreement executed by the parties after recognition, will bar the processing of an election petition, unless: (1) the employer or the union notifies the Board's Regional Office that recognition has been granted; (2) the employer posts a notice “informing employees that recognition has been granted and that they have a right to file a petition during a 45-day `window period' beginning on the date the notice is posted”; (3) the employer distributes the notice electronically to employees, if electronic communication is customary; and (4) 45 days from the posting date pass without a properly supported election petition being filed. 85 FR 18370.

Third, the April 2020 final rule made changes to the

Staunton Fuel & Material,

335 NLRB 717 (2001), doctrine, which defined the minimum requirements for what must be stated in a written recognition agreement or contract clause in order for it to serve as sufficient evidence that a union representing employees in the construction industry has attained 9(a) status, and overruled the Board's decision in

Casale Industries,

311 NLRB 951 (1993), providing that the Board would not entertain a claim that a union lacked 9(a) status when it was initially granted recognition by a construction employer if more than 6 months had elapsed. 85 FR 18369-18370.

Sec. 8(f) of the Act uses the term “engaged primarily in the building and construction industry.” 29 U.S.C. 158(f). Throughout this NPRM, for convenience, and without any intent to define or alter the accepted scope of the term, we use the shorthand “construction industry” and “construction employer.”

The effect of the instant proposed amendments would be to return the law in each of those areas to that which existed prior to the adoption of the April 1, 2020 final rule, including by rescinding and replacing the portions of the final rule that addressed the blocking charge policy and voluntary-recognition bar doctrine and rescinding the portion of the final rule that addressed proof of majority support for labor organizations representing employees in the construction industry. The Board believes, subject to comments, that these proposed changes to the April 2020 final rule will better protect employees' statutory right of free choice on questions concerning representation, further promote industrial stability, and more effectively encourage the practice and procedure of collective bargaining.

Upon consideration of the comments received regarding each of the proposed changes in this NPRM to the April 2020 final rule, the Board may elect to issue a single final rule or separate final rules covering each or any of the proposed amendments. We invite comments as to any advantages or disadvantages of issuing a single final rule versus separate final rules.

III. Background

Section 1 of the Act sets forth Congressional findings that the denial by some employers of the right of employees to organize and bargain collectively leads to industrial strife that adversely affects commerce. Congress has declared it to be the policy of the United States to mitigate or eliminate those adverse effects by “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U.S.C. 151. Further, section 7 of the Act grants employees the right “to bargain collectively through representatives of their own choosing . . . .” 29 U.S.C. 157.

As discussed more fully below, Federal labor law recognizes that employees may seek representation for the purpose of bargaining collectively with their employer through either a Board election or by demonstrating majority support for representation. See,

e.g., United Mine Workers

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

Creative Food Design Ltd.,

852 F.2d 1295, 1299 (D.C. Cir. 1988) (citation omitted). An employer is free to voluntarily recognize a union as the designated majority representative of a unit of its employees without insisting on the union's proving its majority status in an election. And, “once the employer recognizes the Union . . . the employer is bound by that recognition and may no longer seek an election.” Id. at 1297 (citations omitted). Nevertheless, when employers, employees, and labor organizations are unable to agree on whether the employer should recognize (or continue to recognize) a labor organization as the representative of a unit of employees for purposes of collective bargaining, section 9 of the Act gives the Board authority to determine if a “question of representation” exists and, if so, to resolve the question by conducting “an election by secret ballot.” 29 U.S.C. 159(c).

Because the Act calls for freedom of choice by employees as to whether to obtain, or retain, union representation, the Board has long recognized that “[i]n election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.”

General Shoe Corp.,

77 NLRB 124, 127 (1948). A Board-conducted election “can serve its true purpose only if the surrounding conditions enable employees to resister a free and untrammeled choice for or against a bargaining representative.” Id. at 126. Indeed, as the Supreme Court has recognized, it is the “duty of the Board . . . to establish `the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.' ”

NLRB

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

A.J. Tower Co.,

329 U.S. 324, 330 (1946). “The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.”

NLRB

Waterman S.S. Corp.,

309 U.S. 206, 226 (1940); see also

Southern S.S. Co.

NLRB,

316 U.S. 31, 37 (1942).

Although the Act itself contains only one express limitation on the timing of elections,

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 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.

NLRB,

91 F.3d 222, 227-228 (D.C. Cir. 1996);

Leedom

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.”).

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.

See generally

Auciello Iron Works, Inc.

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”).

The subject of this rulemaking proceeding concerns three other policies that the Board originally created through adjudication to protect employee free choice in elections and to effectuate the Act's policies favoring stable bargaining relationships: the blocking charge policy; the voluntary-recognition bar doctrine; and the policy governing 9(a) recognition in the construction industry. The Board's April 2020 final rule radically altered each of those policies.

A. Blocking Charge Policy

1. The Board's Historical Blocking Charge Policy

As the Board acknowledged in the notice of proposed rulemaking that culminated in the April 2020 final rule, see 84 FR 39930, 39931, the blocking charge policy dates back to the early days of the Act. See

United States Coal & Coke Co.,

3 NLRB 398, 399 (1937). Indeed, prior to the April 2020 final rule, and for more than eight decades, the Board had maintained a policy of generally declining to process an election petition over party objections in the face of pending unfair labor practice charges alleging conduct that, if proven, would interfere with employee free choice in an election, until the merits of those charges could be determined.

See generally

The Developing Labor

Law 561-63 (John E. Higgins, Jr., 5th edition 2006); 3d NLRB Ann. Rep. 143 (1938) (“The Board has often provided that an election be held at such time as the Board would thereafter direct in cases where the employer has been found to have engaged in unfair labor practices and the Board has felt that the election should be delayed until there has been sufficient compliance with the Board's order to dissipate the effects of the unfair labor practices and to permit an election uninfluenced by the employer's conduct. Similarly, where charges have been filed alleging that the employer has engaged in unfair labor practices, the Board has frequently postponed the election indefinitely pending the investigation and determination of the charges.”); 13th NLRB Ann. Rep. 34 & fn. 90 (1948) (“Unremedied unfair labor practices constituting coercion of employees are generally regarded by the Board as grounds for vacating an election[.] For this reason, the Board ordinarily declines to conduct an election if unfair labor practice charges are pending or if unfair labor practices previously found by the Board have not yet been remedied[.]”).

Throughout this NPRM, in discussing the blocking charge policy as it existed prior to the April 2020 rule, we often cite to editions of the Developing Labor Law and the NLRB Casehandling Manual that were in effect before the enactment of the 2014 rule amending representation case procedures and the subsequent enactment of the 2020 rule. This reference to sources that have been supplemented since those rules is intentional and intended to demonstrate the manner in which the blocking charge policy was interpreted and applied during the course of its long history before those rules.

The rationale for the blocking charge policy was straightforward: it was “premised solely on the [Board's] intention to protect the free choice of employees in the election process.” NLRB Casehandling Manual (Part Two), Representation Proceedings Section 11730 (August 2007) (“Casehandling Manual (August 2007)”). “The Board's policy of holding the petition in abeyance in the face of pending unfair labor practices is designed to preserve the laboratory conditions that the Board requires for all elections and to ensure that a free and fair election can be held in an atmosphere free of any type of coercive behavior.”

Mark Burnett Productions,

349 NLRB 706, 706 (2007).

Prior to the effective date of the April 2020 amendments, there were two broad categories of blocking charges. The first, called Type I charges, encompassed charges that alleged conduct that merely interferes with employee free choice. Casehandling Manual Section 11730.1 (August 2007). See also NLRB Casehandling Manual (Part Two), Representation Proceedings Section 11730.1 (January 2017) (“Casehandling Manual (January 2017)”). Examples of Type I charges included allegations of employer threats to retaliate against employees if they vote in favor of union representation or promises of benefits if employees vote against union representation. For many years, the blocking charge policy provided that if the charging party in a pending unfair labor practice case was also a party to a petition, and the charge alleged conduct that, if proven, would interfere with employee free choice in an election (a Type I charge), were one to be conducted, and no exception was applicable, the charge should be investigated and either dismissed or remedied before the petition was processed. Casehandling Manual Section 11730.2 (August 2007).

As discussed below, under the Board's 2014 rule amending representation case procedures, for a Type I charge to block the processing of a petition, the charging party needed to have both filed a request to block accompanied by a sufficient offer of proof and to have promptly made its witnesses available. Casehandling Manual Section 11730.2 (January 2017).

The policy further provided that if upon completion of the investigation of the charge, the regional director determined that the Type I charge had merit and that a complaint should issue absent settlement, the regional director was to refrain from conducting an election until the charged party took all the remedial action required by the settlement agreement, administrative law judge's decision, Board order, or court judgment. Casehandling Manual Sections 11730.2; 11733, 11734 (August 2007). On the other hand, if upon completion of the investigation of the charge, the regional director determined that the charge lacked merit and should be dismissed absent withdrawal, the regional director was to resume processing the petition and conduct an election where appropriate. Casehandling Manual Sections 11730.2; 11732 (August 2007).

In short, in cases where the Type I charges proved meritorious and there had been conduct that would interfere with employee free choice in an election, the blocking charge policy delayed the election until those unfair labor practices had been remedied and employees could register a free and untrammeled choice for or against a representative. As for the subset of cases where the charges were subsequently found to lack merit, the policy provided for regional directors to resume processing those petitions to elections.

The second broad category of blocking charges, called Type II charges, encompassed charges that alleged conduct that not only interferes with employee free choice, but that is also inherently inconsistent with the petition itself. Casehandling Manual Sections 11730.1, 11730.3 (August 2007). Under the policy, such charges could block a related petition during the investigation of the charges, because a determination of the merit of the charges could also result in the dismissal of the petition. Casehandling Manual Section 11730.3 (August 2007). Examples of Type II charges included allegations that a labor

organization's showing of interest was obtained through threats or force, allegations that an employer's representatives were directly involved in the initiation of a decertification petition, and allegations of an employer's refusal to bargain, for which the remedy is an affirmative bargaining order. Casehandling Manual Sections 11730.3(a), (b) (August 2007). For many years, the blocking charge policy provided that regardless of whether the Type II charges were filed by a party to the petition or by a nonparty, and regardless of whether a request to proceed was filed, the charge should be investigated before the petition was processed unless an exception applied. Casehandling Manual Sections 11730.3, 11731, 11731.1(c) (August 2007).

The blocking charge policy further provided that if the regional director determined that the Type II charge had merit, then the regional director could dismiss the petition, subject to a request for reinstatement by the petitioner after final disposition of the unfair labor practice case. A petition was subject to reinstatement if the allegations in the unfair labor practice case which caused the petition to be dismissed were ultimately found to be without merit. Casehandling Manual Section 11733.2. (August 2007).

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).

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).

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.

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).

The Board also directed an immediate election, despite pending charges, in order to hold the election within 12 months of the beginning of an economic strike so as not to disenfranchise economic strikers,

American Metal Products Co.,

139 NLRB 601, 604-605 (1962), or in order to prevent harm caused to the economy by a strike resulting from an unresolved question of representation,

New York Shipping Association,

107 NLRB 364, 375-376 (1953). The Casehandling Manual set forth other circumstances in which regional directors could decline to block petitions. Casehandling Manual Section 11731 (August 2007).

2. The Blocking Charge Policy and the Board's 2014 Final Rule Amending Representation Case Procedures

After notice and comment, the Board adopted some 25 amendments to its representation-case procedures in a 2014 final rule, that, among other things, was designed to advance the public interests in free and fair elections and in the prompt resolution of questions concerning representation. See

Representation-Case Procedures,

79 FR 74308, 74308-74310, 74315, 74341, 74345, 74379, 74411 (December 15, 2014). As the Board acknowledged when adopting the April 2020 final rule (85 FR 18376-18377), the Board also made certain modifications to the blocking charge policy as a part of its 2014 final rule revising the Board's representation-case procedures. In particular, in response to allegations that at times incumbent unions may misuse the blocking charge policy by filing meritless charges to delay decertification elections, the Board imposed a requirement that, whenever any party sought to block the processing of an election petition, it must simultaneously file an offer of proof listing the names of witnesses who will testify in support of the charge and a summary of each witness' anticipated testimony and promptly make its witnesses available. 79 FR 74419; 29 CFR 130.20. The 2014 final rule also provided that if the regional director determined that the party's offer of proof does not describe evidence of conduct that, if proven, would interfere with employee free choice in an election or would be inherently inconsistent with the petition itself, and thus would require that the processing of the petition be held in abeyance absent special circumstances, the regional director would continue to process the petition and conduct the election where appropriate. 79 FR 74419; 29 CFR 103.20. The Board expressed the view that those amendments would protect employee free choice while helping to remove unnecessary barriers to the expeditious resolution of questions of representation by providing the regional director with the information necessary to assess whether the unfair labor practice charges have sufficient support and involve the kind of violations that warrant blocking an election, or whether the charges are filed simply for purposes of delay. 79 FR 74418-74420.

Two Board members dissented from the 2014 final rule. With respect to the blocking charge policy, the dissenting Board members did not propose any changes to the blocking charge policy with respect to Type II charges. However, the two dissenting members advocated a 3-year trial period under which the Board would hold elections—and thereafter impound the ballots—notwithstanding the presence of a request to block (supported by an adequate offer of proof) based on a Type I charge. 79 FR 74456.

The Board majority rejected the dissenters' proposal to conduct elections in all cases involving Type I charges. The 2014 final rule explained that the dissenting Board Members had not identified any compelling reason to abandon a policy continuously applied since 1937. 79 FR 74418-74420, 74429 (“Unfair labor practice charges that warrant blocking an election involve conduct that is inconsistent with a free and fair election: It advances no policy of the Act for the agency to conduct an election unless employees can vote without unlawful interference.”).

The courts upheld the 2014 final rule. See

Associated Builders and Contractors of Texas, Inc.

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

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.

NLRB,

992 F.3d 1114, 1123 (D.C. Cir. 2021) (rejecting arbitrary-and-capricious challenge to 2014 final rule).

Accordingly, under the blocking charge policy as it existed prior to the effective date of the April 2020

amendments, a regional director could not block an election based on the request of a party who had filed an unfair labor practice charge if the party had not first (1) submitted an offer of proof describing evidence that, if proven, would interfere with employee free choice in an election were one to be conducted or conduct that would be inherently inconsistent with the petition itself, (2) listed its witnesses who would testify in support of the charge, and (3) agreed to promptly make its witnesses available. Casehandling Manual Section 11730 (January 2017). Even then, the regional director retained discretion to process the petition if an exception to the blocking charge policy applied. Casehandling Manual Sections 11730, 11730.2, 11730.3, 11730.4, 11731, 11731.1-11731.6 (January 2017).

3. The April 2020 Blocking Charge Amendments

In 2019, the Board issued a Notice of Proposed Rulemaking proposing, in relevant part, to substantially change the blocking charge policy. Under the proposed rule, whenever a party filed unfair labor practice charges that would have blocked processing of the petition under prior doctrine, the Board would instead conduct the election and impound the ballots (absent dismissal of the representation petition, as noted above at fn. 1). See

Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships,

84 FR 39930, 39930, 39937-39938 (August 12, 2019). If the charge had not been resolved prior to the election, the NPRM proposed that the ballots would remain impounded until the Board made a final determination regarding the charge. 84 FR 39937. The NPRM acknowledged that the ballots would “never be counted” in cases where the Board made a final determination that the charge had merit and that the conduct warranted either dismissing the petition or holding a new election. 84 FR 39938.

The NPRM offered several justifications for the proposed amendments, including the arguments that the Board's historical blocking charge policy impeded employee free choice by delaying elections and that there is a potential for incumbent unions to abuse the blocking charge policy by deliberately filing nonmeritorious unfair labor practice charges in the hopes of delaying decertification elections. See,

e.g.,

84 FR 39931-39933, 39937. The majority prepared appendices and cited them in support of its claims. 84 FR 39933 & fns. 13-14, 39937.

Then-Member McFerran dissented from the NPRM's proposed changes to the blocking charge policy. In her view, the Board majority offered no valid reasons for substantially changing the blocking charge policy that Boards of differing perspectives had adhered to for more than eight decades. 84 FR 39939-39949. Noting that the majority had implicitly conceded that its proposed vote-and-impound procedure would require regional directors to run—and employees, unions, and employers to participate in—elections conducted under coercive conditions that interfere with employee free choice, the dissent argued that the proposed blocking charge amendments would undermine employee rights and the policies of the Act. 84 FR 39940, 39941, 39943, 39945, 39948, 39949. The dissent further argued that because the proposed amendments would require regional directors to run—and employees, unions, and employers to participate in—elections that would not resolve the question of representation, the proposed amendments would impose unnecessary costs on the parties and the Board. 84 FR 39941, 39945, 39948, 39949. The dissent also pointed out inaccuracies in the data relied on by the majority in support of its proposed changes to the blocking charge policy.

Then-Member McFerran also prepared an appendix analyzing FY 2016-and FY 2017-filed RD, RC, and RM petitions that were blocked pursuant to the blocking charge policy. 84 FR 39943 & fn. 63;

https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/member-mcferran-dissent-appendix.pdf.

Then-Member McFerran explained in her dissent that her review of the relevant data for Fiscal Years 2016 and 2017 indicated that “the overwhelming majority of decertification petitions are never blocked.” 84 FR 39943-39944 and Dissent Appendix (“Approximately 80 percent of the decertification petitions filed in FY 2016 and FY 2017 were not impacted by the blocking charge policy because only about 20 percent (131 out of 641) of the decertification petitions filed in FY 2016 and FY 2017 were blocked as a result of the policy.”). The dissent further explained that “[e]ven in the minority of instances when decertification petitions are blocked, most of these petitions are blocked by meritorious charges. Approximately 66% (86 out of 131) of the decertification petitions that were blocked in FY 2016 and FY 2017 were blocked by meritorious charges. See Dissent Appendix, [s]ection 1.” 84 FR 39944 & fn. 64 (explaining that in determining whether a petition was blocked by a meritorious charge, the dissent “applied the Office of the General Counsel's long-standing merit definition contained in OM 02-102 available at

https://www.nlrb.gov/news-publications/nlrb-memoranda/operations-management-memos.

Accordingly, a petition was deemed blocked by a meritorious charge if the petition was blocked by a charge that resulted in a complaint, a pre-complaint Board settlement, a pre-complaint adjusted withdrawal, or a pre-complaint adjusted dismissal. Id. at p.4.”). The dissent additionally noted that the Board Chairman and General Counsel in office as of the issuance of the NPRM “used the same merit definition in their Strategic Plan for FY 2019-FY 2022. See,

e.g.,

Strategic Plan p. 5, attached to GC Memorandum 19-02, available at

https://www.nlrb.gov/news-publications/nlrb-memoranda/general-counsel-memos.”

84 FR 39944 fn. 64.

Based on her analysis of the relevant data, then-Member McFerran also pointed out that “the overwhelming majority of RM petitions are never blocked, and that even in the minority of instances when RM petitions are blocked, most of these petitions are blocked by meritorious charges. See Dissent Appendix, sec. 1.” 84 FR 39945 fn. 69 (“Indeed, my review of the relevant data indicates that approximately 82 percent of the RM petitions filed during FY 2016 and FY 2017 were not blocked, leaving only about 18 percent (18 out of 99) of the RM petitions filed during FY 2016 and FY 2017 as blocked under the policy. See Dissent Appendix, available at

https://www.nlrb.gov.

And most pointedly, nearly 89 percent (16 out of 18) of the RM petitions blocked during FY 2016 and FY 2017 were blocked by meritorious charges. See Dissent Appendix, sec. 1.”). 84 FR 39945 fn. 69.

The dissent also pointed out numerous errors in the majority's appendices, noting for example that the majority had artificially inflated the length of time periods that their cited cases were blocked, apparently by “inappropriately aggregat[ing] multiple blocking periods for the same case, even when those periods run concurrently [. . . which . . . ] has the rather bizarre effect of listing a case such as

Piedmont Gardens, Grand Lake Gardens,

32-RC-087995, as having been blocked for more than 12 years—an impossibly high estimate considering that the case was less than 7 years old as of December 31, 2018 (with a petition-filing date of August 24, 2012). See Majority Appendix B Tab 4.” 84 FR 39946 fn. 71. The dissent also pointed out that the majority had artificially inflated the number of “blocked petitions pending” by including in its list cases that had not been blocked due to the blocking charge policy. 84 FR 39946 fn. 71, fn. 74.

The majority did not correct the errors before issuing the NPRM. 84 FR 39930-39939 & fn. 15.

As noted, on April 1, 2020, the Board issued a final rule substantially eliminating the blocking charge policy.

85 FR 18366. The final rule differed from the NPRM. Unlike the NPRM, which had proposed a vote

and impound

procedure for

all

cases involving blocking charges until there was a final determination of the merits of the charge, the final rule adopted a vote

and immediately count the ballots

procedure for the vast majority of blocking charge cases (including all cases involving Type I blocking charges and some cases involving Type II blocking charges). 85 FR 18366, 18369-18370, 18374. The final rule also provided that notwithstanding a request to block based on a pending charge alleging certain specified types of Type

II conduct, the Board will impound the ballots for no more than 60 days (unless a complaint issues on the Type II charge within the 60-day period, in which case the ballots will be remain impounded pending a final determination by the Board). 85 FR 18369-18370, 18374. In short, under the April 2020 final rule, a blocking charge request will never delay any election, and will only rarely delay the count of the ballots. 85 FR 18370, 18375. Nevertheless, the final rule “clarifie[d] that the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and a determination of its effect, if any, on the election petition.” 85 FR 18370.

In addition to then-Member McFerran's analysis of the data in her dissent, on December 5, 2019, Bloomberg Law published an article entitled, “Federal Labor Board Used Flawed Data to Back Union Election Rule.” Alex Ebert and Hassan A. Kanu, “Federal Labor Board Used Flawed Data to Back Union Election Rule,”

Bloomberg Law

(Dec. 5, 2019). The article reported on the results of a Bloomberg Law analysis, which found that the NPRM used flawed data in support of the proposed blocking charge amendments. Id. After publication of the Bloomberg Law article, the Board still did not issue a new NPRM correcting the data.

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 any election involving blocking charges essentially for the reasons contained in the NPRM. 85 FR 18375-18380, 18393. As for its decision to abandon the proposed vote-and-impound procedure and to substitute the requirement that ballots be immediately opened and counted in all cases involving Type I charges and a subset of Type II charges, the Board stated that it had concluded that it would be “preferable for ballots to be counted immediately after the conclusion of the election . . . with regard to most categories of unfair labor practice charges.” 85 FR 18380. The final rule agreed with a commenter that:

[I]mpoundment of ballots does not fully ameliorate the problems with the current blocking charge policy because impoundment fails to decrease a union's incentive to delay its decertification by filing meritless blocking charges; makes it more difficult for parties to settle blocking charges, as they would not know the results of the election during their settlement discussions; and further frustrates and confuses employees waiting, possibly for an extended post-election period, to learn the results of the election.

85 FR 18380.

As noted, however, the Board chose to adopt a vote-and-impound-for-60-days-procedure (with impoundment to last longer if a complaint issued within 60 days of the election) for certain types of Type II unfair labor practice charges. The Board stated in this regard:

At the same time, however, some types of unfair labor practice charges speak to the very legitimacy of the election process in such a way that warrants different treatment—specifically, those that allege violations of section 8(a)(1) and 8(a)(2) or section 8(b)(1)(A) of the Act and that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition, and those that allege that an employer has dominated a union in violation of section 8(a)(2) and that seek to disestablish a bargaining relationship. We believe that in cases involving those types of charges, it is more appropriate to impound the ballots than to promptly count them. Nevertheless, in order to avoid a situation where employees are unaware of the election results indefinitely, we believe it is appropriate to set an outer limit on how long ballots will be impounded. Accordingly, the final rule provides that the impoundment will last for only up to 60 days from the conclusion of the election if the charge has not been withdrawn or dismissed prior to the conclusion of the election, in order to give the General Counsel time to make a merit determination regarding the unfair labor practice charge.

85 FR 18380.

As for the errors in the NPRM pointed out by then-Member McFerran in her dissent to the NPRM and in the Bloomberg law article, supra fn. 11, the Board stated in the final rule that we also acknowledge the claims in the dissent to the NPRM and by some commenters that there were errors in some of the data that the NPRM majority cited to support the proposed rule and that these errors led to exaggeration both of the number of cases delayed and the length of delay involved. Even accepting those claims as accurate, the remaining undisputed statistics substantiate the continuing existence of a systemic delay that supports our policy choice to modify the current blocking-charge procedure that does not, and need not, depend on statistical analysis. As the AFL-CIO candidly acknowledges, “[b]locking elections delays elections. That is undeniably true and requires no `statistical evidence' to demonstrate.” We agree. Furthermore, anecdotal evidence of lengthy blocking charge delays in some cases, and judicial expressions of concern about this, remain among the several persuasive reasons supporting a change that will assure the timely conduct of elections without sacrificing protections against election interference. 85 FR 18377 (footnote omitted).

The April 2020 amendments became effective on July 31, 2020. See 85 FR 20156 (Apr. 10, 2020).

B. The Voluntary-Recognition Bar

1. Historical Development of the Voluntary-Recognition Bar

Since before the NLRA was passed, employers have sometimes chosen to voluntarily recognize labor unions as the collective-bargaining representatives of their employers, and the Act itself clearly contemplated that the practice of voluntary recognition would continue.

While the statute provides for Board-conducted representation elections, with winning unions certified by the Board, the Act does not make such elections the only route to union representation under the statute, as the Supreme Court has explained.

Citing the Supreme Court, the Board has previously pointed out that “[v]oluntary recognition itself predates the National Labor Relations Act and is undisputedly lawful under it.”

Dana Corp.,

351 NLRB 434, 436 (2007) (footnote omitted) (citing

NLRB

Gissel Packing Co.,

395 U.S. 575, 595-600 (1969)). As the

Dana

Board observed, “voluntary recognition has been embedded in [s]ection 9(a) from the Act's inception.” 351 NLRB at 438. See also

Lamons Gasket Co.,

357 NLRB 739, 741 (2011) (“Congress was well aware of the practice of voluntary recognition when it adopted the Act in 1935, because the practice long predated the Act.”) (citing H.R. Rep. No. 74-969, at 4 (1935), reprinted in 2 Legislative History of the National Labor Relations Act 1935, at 2914 (1949)) (an election is appropriate “[w]hen an employee organization has built up its membership to a point where it is entitled to be recognized . . . and the employer refuses to accord such recognition”).

See

United Mine Workers of America

Arkansas Oak Flooring Co.,

351 U.S. 62, 72 fn. 8 (1956) (“A Board election is not the only method by which an employer may satisfy itself as to the union's majority status.”). There, the Supreme Court observed that an employer was free to voluntarily recognize a labor union that did not comply with certain statutory requirements and that could not be certified by the Board as the result of an election. Id. at 71, 74-75.

Rather, section 8(a)(5) of the Act requires an employer “to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).” 29 U.S.C. 158(a)(5). Section 9(a), in turn, refers to “[r]epresentatives

designated or selected

. . . by the majority of the employees” in an appropriate unit.

Section 9(c)(1)(A), meanwhile, provides for Board-conducted elections when employees seek union representation and file a petition with the Board “alleging . . . that their employer

declines to recognize

their representative as . . . defined in section 9(a).” 29 U.S.C. 159(c)(1)(A) (emphasis added). When an employer does

not

“decline[ ] to recognize” the designated union, there is no obvious statutory “question of representation” under section 9(c) to be resolved by a Board election. A union that has been certified by the Board after winning an election enjoys certain statutory privileges and protections that a voluntarily recognized union does not. Most important, section 9(c)(3) of the Act, in providing that another Board election may not be held for twelve months after a valid election,

effectively insulates a certified union from an electoral challenge to its representative status for that one-year period.

29 U.S.C. 159(a) (emphasis added). See

Gissel Packing Co.,

supra, 395 U.S. at 596-598. Sec. 9(a) provides in relevant part that representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.

29 U.S.C. 159(c)(3) (“No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.”). The other statutory advantages of certification are (1) protection against recognitional picketing by rival unions under sec. 8(b)(4)(C); (2) the right to engage in certain secondary and recognitional activity under sec. 8(b)(4)(B) and 7(A); and (3) in certain circumstances, a defense to allegations of unlawful jurisdictional picketing under sec. 8(b)(4)(D). See

Lamons Gasket Co.,

supra, 357 NLRB at 748 & fn. 35; 85 FR 18381 fn. 124.

To be lawful, voluntary recognition pursuant to section 9(a) of the Act must be based on the union's majority support among employees.

Such support is often demonstrated by having employees sign cards authorizing the union to represent them in collective bargaining, although the Board recognizes other mechanisms as well.

Traditional Board law reflects that under the Act, “[o]nce voluntary recognition has been granted to a majority union, the [u]nion becomes exclusive collective-bargaining representative of the employees.”

In short, as the Supreme Court has recognized, voluntary recognition is not simply permitted under the Act; it establishes a bargaining relationship between union and employer that must be honored.

So long as employees have freely chosen the union to represent them, voluntary recognition clearly promotes the statutory policy of “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of . . . designation of representatives of their own choosing.”

Int'l Ladies' Garment Workers' Union

NLRB (Bernhard-Altmann),

366 U.S. 731, 738 (1961) (employer violated sec. 8(a)(2) of Act by recognizing and bargaining with union that lacked majority support). See,

e.g., Alliant Foodservice, Inc.,

335 NLRB 695, 695 (2001) (employer violated sec. 8(a)(2) by recognizing union that did not legitimately represent majority of employees in bargaining unit, and union violated sec. 8(b)(1)(A) by accepting recognition).

See

Lamons Gasket,

supra, 357 NLRB at 741 (citing authorization cards, employee statements, and secret-ballot elections conducted by private third parties).

Brown & Connolly, Inc.,

237 NLRB 271, 275 (1978), enfd. 593 F.2d 1373 (1st Cir. 1979).

See

Gissel Packing Co.,

supra, 395 U.S. at 596 (“Since § 9(a) . . . refers to the representative as the one `designated or selected' by a majority of the employees without specifying precisely how that representative is to be chosen, it was early recognized that an employer had a duty to bargain whenever the union representative presented `convincing evidence of majority support.' ”).

National Labor Relations Act, sec. 1, 29 U.S.C. 151.

In 1966, a unanimous Board in

Keller Plastics,

an unfair labor practice case, added the voluntary-recognition bar to its previously established bar doctrines, which temporarily insulate a union from challenges to its status as exclusive bargaining representative. The

Keller Plastics

Board rejected a claim that an employer had unlawfully reached a collective-bargaining agreement with a union that had since lost the majority support it enjoyed when it was voluntarily recognized by the employer. The Board held that in cases involving voluntary recognition of a union—as in cases where a bargaining relationship was established by a Board certification, by a Board order in an unfair labor practice case, or by an unfair labor practice settlement—“the parties must be afforded a reasonable time to bargain and to execute the contracts resulting from such bargaining” because “negotiations can succeed . . . and the policies of the Act can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time.”

Following

Keller Plastics,

the Board quickly and unanimously held in

Sound Contractors,

also decided in 1966, that the voluntary-recognition bar applied in representation cases as well as in unfair labor practice cases, barring election petitions that challenged a voluntarily recognized union's representative status during a reasonable period for bargaining.

Keller Plastics Eastern, Inc.,

157 NLRB 583 (1966).

157 NLRB at 587. Among the precedent cited as support for this rule was the Supreme Court's 1944 decision in

Franks Bros. Co.

NLRB,

321 U.S. 702 (1944). There, the Court upheld the Board's bargaining order against an employer that had unlawfully refused to bargain with a majority union, which then lost majority support. Rejecting the argument that the bargaining order was unfair to employees who opposed the union, the Court observed that the order only temporarily insulated the union from challenge and that a “bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.” 321 U.S. at 705.

Sound Contractors Assn.,

162 NLRB 364, 365 & fn. 5 (1966) (permitting representation petition to be processed because union seeking to bar petition had not been voluntarily recognized by employer).

2. Dana Corp. and Lamons Gasket

For more than 40 years, the Board consistently applied the voluntary-recognition bar as articulated in

Keller Plastics.

In 2007, however, a divided Board, citing the increased use of voluntary-recognition agreements to establish collective-bargaining relationships, re-examined Board doctrine and adopted a different approach. In

Dana Corp.,

the Board established a novel election procedure in voluntary-recognition cases, through adjudication and not rulemaking. It held that

election bar would be imposed after an employer's “card-based recognition” of a union, nor would a contract bar be imposed on contracts executed with a voluntarily recognized union,

unless

Collective-bargaining agreements have also long been subject to a contract-bar period of up to three years, insulating the union from challenges to majority status during that period. See

General Cable Corp.,

139 NLRB 1123, 1125 (1962).

Dana Corp.,

351 NLRB 434 (2007).

(1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed.

351 NLRB at 434 (footnote omitted). The

Dana

Board asserted a need to “provide greater protection for employee free choice,” id. at 438, and cited two principal reasons for establishing the new procedure. First, it concluded that Board-conducted elections were more reliable than union-authorization cards in determining employee free choice. Id. at 438-440. Second, it found that the rationale for the other election bars established by the Board was “far less persuasive” in the context of voluntary recognition. Id. at 440-441. Nevertheless, the

Dana

Board properly acknowledged that “[s]everal courts of appeals ha[d] endorsed the current recognition-bar doctrine,” while citing no contrary decisions. Id. at 441 & fn. 31 (collecting cases from District of Columbia Circuit and Second, Third, Sixth, Seventh, and Ninth Circuits). The dissenting Board members in

Dana

rejected both of the principal reasons offered by the majority for the new procedure. They argued that the voluntary-recognition bar served the same purposes as other election bars in giving a bargaining relationship a fair chance to succeed, particularly given that negotiations for a first contract were involved. Id. at 446. The dissenters also pointed out that there was no empirical evidence that the use of authorization cards was a less reliable indicator of employee free choice than an election. Id. at 448.

Four years later, in 2011, the

Dana

decision was overruled by a divided Board in

Lamons Gasket,

which rejected the

Dana

procedure and restored the voluntary-recognition bar

and for the first time defined benchmarks for measuring the reasonable bargaining period covered by the bar. The Board defined “a reasonable period of bargaining, during which the recognition bar will apply, to be no less than 6 months after the parties' first bargaining session and no more than 1 year.” 357 NLRB at 748. “In determining whether a reasonable period has elapsed in a given case,” the Board held that it would apply the multifactor test of

Lee Lumber & Building Material Corp.,

334 NLRB 399 (2001), and would “impose the burden of proof on the General Counsel to show that further bargaining should be required.” 357 NLRB at 748 (footnote omitted). As noted by the

Lamons Gasket

Board, the

Lee Lumber

test considers “(1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues being negotiated and of the parties' bargaining processes; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse.”

Lee Lumber,

supra, 334 NLRB at 402.

Lamons Gasket Co.,

supra, 357 NLRB at 739.

In overruling

Dana,

the

Lamons Gasket

Board made three principal arguments. First, it argued that empirical data from the period in which the

Dana

procedure was in effect refuted the claim that voluntary recognition did not accurately reflect employee free choice: “employees decertified the voluntarily recognized union under the

Dana

procedures in only 1.2 percent of the total cases in which

Dana

notices were requested.” 357 NLRB at 742 (footnote omitted). Second, the Board contended that the

Dana

notice, “understood in context,” inappropriately compromised the Board's neutrality by “suggest[ing] to employees that the Board considers their choice to be represented suspect and signals to employees that their choice should be reconsidered through the filing of a petition.” Id. at 744. Third, the Board argued that the voluntary-recognition bar, in protecting a newly established bargaining relationship, promoted the same statutory policies advanced by its other bar doctrines. Id. Thus, voluntary recognition reflected the Act's approval of a “system of private ordering” in labor relations in which collective bargaining was to be encouraged and labor disputes avoided. Id. at 746. Voluntary recognition was consistent with employee free choice because it required a showing of majority support among all employees in the bargaining unit, not merely a majority of voters (as in a Board election), and because the Act's unfair labor practice provisions enabled improper recognition to be redressed. Id. at 746-747. In the view of the

Lamons Gasket

Board, the

Dana

procedure simply served to create uncertainty around the new bargaining relationship and to interfere unnecessarily in the bargaining process. Id. at 747. The dissenting Board member rejected each of these arguments, contending (among other things) that the same empirical evidence relied on by the majority in fact supported the rationale of

Dana

. Id. at 748-754.

3. The April 2020 Amendments

In 2019, as part of its larger rulemaking culminating in the April 1, 2020 final rule discussed herein, the Board proposed, subject to public comment, to overrule

Lamons Gasket

and to reinstate the

Dana

procedure.

As support for the proposed rule, the Board cited the views of the

Dana

Board and the dissenting Board member in

Lamons Gasket

. No intervening judicial decisions had questioned

Lamons Gasket

or its restoration of the longstanding voluntary-recognition bar, nor had a petition for rulemaking addressing the issue been filed with the Board. Then-Member McFerran dissented.

NLRB,

Representation Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships,

Notice of Proposed Rulemaking, 84 FR 39930, 39938, 39958 (Aug. 12, 2019).

Id. at 39949-39951.

On April 1, 2020, following a public comment period, the Board adopted a final rule that essentially codified the

Dana

procedure.

The new rule (“Processing of petitions filed after voluntary recognition”) appears as § 103.21 in the Board's Rules and Regulations, 29 CFR 103.21. Under the rule, neither the employer's voluntary recognition of a union, nor the first collective-bargaining agreement executed by the parties after recognition, will bar the processing of an election petition, unless: (1) the employer or the union notifies the Board's Regional Office that recognition has been granted; (2) the employer posts a prescribed notice of recognition “informing employees that recognition has been granted and that they have a right to file a petition during a 45-day `window period' beginning on the date the notice is posted”; (3) the employer distributes the notice electronically to employees, if electronic communication is customary; and (4) 45 days from the posting date pass without a properly supported election petition being filed. The Board noted that it did “not rely on any data, or analysis of data, other than that discussed in

Dana

and in

Lamons Gasket,

which [it had] fully considered.”

NLRB,

Representation Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships,

Final Rule, 85 FR 18366, 18367-18368, 18370, 18380-18388, 18399-183400 (April 1, 2020). At the time the final rule was adopted, the Board member who had dissented from the proposed rule (then-Member McFerran) was not serving on the Board.

85 FR 18373.

In explaining the reasons for the new rule, the Board essentially repeated the rationale of the

Dana

decision, advancing arguments that had been rebutted by the

Lamons Gasket

decision.

Thus, the Board characterized Board elections as the “Act's preferred method for resolving questions of representation,” citing the Act's election-year bar (under section 9(c)(3), after a valid Board election is held, another election may not be directed for one year) and the specific statutory protections granted only to a Board-certified union.

The Board asserted that “secret-ballot elections are better than voluntary recognition at protecting employees' [s]ection 7 freedom to choose, or not choose, a bargaining representative.”

It noted that the Board “does not supervise voluntary recognitions” and rejected the notion that the Act's unfair labor practice provisions were sufficient to address coercive conduct related to voluntary recognition.

A Board election was deemed superior to voluntary recognition because “it presents a clear picture of employee voter preference at a single moment.”

Rejecting criticism of the proposed rule, the Board insisted that it does not “restrict the lawful voluntary establishment of majority-supported bargaining relationships, nor does it limit the immediate statutory rights and responsibilities that ensue upon commencement of those relationships.”

According to the Board, the rule was also supported by the need to protect employees' ability to challenge the union's majority status from the possibility that voluntary recognition immediately triggering an election bar might be followed by a

collective-bargaining agreement, which would trigger its own, separate bar.

85 FR 18380-18388.

Id. at 18381.

Id.

Id. at 18382.

Id. at 18382-18383.

The Board also addressed experience under the

Dana

procedure, as described in the

Lamons Gasket

decision, by echoing the arguments of the dissenting Board member in

Lamons Gasket

It acknowledged that “only 7.65 percent of

Dana

notice requests resulted in election petitions, only 4.65 percent of

Dana

notices resulted in actual elections, and employees decertified the voluntarily recognized union in only 1.2 percent of the total cases in which

Dana

notices were requested.”

In expressing the view that “the fact that only a small percentage of all

Dana

notices resulted in ending continued representation by the voluntarily recognized union does not mean that the post-recognition open period procedure was unnecessary and should not be restored,” the Board pointed to the fact that in the (rare) instances where a

Dana

election was held, the union was decertified about one-quarter of the time.

As for the overwhelming majority of cases where no

Dana

election was held, the Board asserted that it knew “nothing about the reliability of the proof of majority support that underlay recognition in each of these cases,” nor “why no petition was filed.”

In turn, the Board cited the absence of evidence that the

Dana

procedure had produced negative effects, such as discouraging voluntary recognition or discouraging or delaying collective bargaining.

The Board acknowledged the possibility that the “existence of a pending election petition will cause unions to spend more time campaigning or working on election-related matters rather than doing substantive work on behalf of employees,” but concluded “that this is a reasonable trade-off for protecting employees' ability to express their views in a secret-ballot election.”

Id. at 18383-18384.

Id. at 18383.

Id.

Id. at 18384.

Id. at 18385.

The new election procedure established by the Board's rule went into effect on June 1, 2020. In response to a series of Freedom of Information Act requests, the Board has compiled and disclosed data that reflects its experience under the rule.

That experience has been entirely consistent with the Board's experience under the

Dana

procedure, during the 2007-2011 period. The new data, which has been assembled incrementally by the Board's FOIA officer in response to successive information requests, show as follows.

First, for the calendar year 2020, the data show that 32 requests for voluntary recognition notices were filed with the Board. In those cases, no election petitions were filed.

For the period from January 1, 2021 through June 30, 2021, the data shows that 39 requests for notices were filed, and no subsequent petitions were filed. For the period from July 1, 2021 through September 30, 2021, 31 requests for notices were filed. One decertification petition was subsequently filed, after which the union disclaimed interest. For the period from October 1, 2021 through December 31, 2021, 53 requests were filed, and no subsequent petitions were filed. For the period from January 1, 2022 through March 31, 2022, the data shows that 51 requests for notices were filed, and no subsequent petitions were filed. For the period from April 1, 2022 through June 30, 2022, the data shows that 54 requests for notices were filed, and no subsequent petitions were filed. As a whole, then, the data thus far show that since the effective date of § 103.21, 260 requests for recognition notices were filed with the Board. In those cases, one election petition was subsequently filed, and no elections were held—although the union in the one case where a petition was filed disclaimed interest after its filing. Thus, only 0.4 percent of recognition notice requests resulted in election petitions, 0 percent of notices resulted in actual elections, and (if we count the disclaimer as an effective proxy for the de-selection of the union in the sole case where a petition was filed), employees opted not to retain the voluntarily recognized union in only 0.4 percent of the total cases in which recognition notices were requested. In over 99 percent of notice cases, employees appear to have affirmed their choice to be represented by a union.

The data cited here can be found at

https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-000944&type=request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-001133&type=request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000090&type=Request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000354&type=Request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000844&type=Request; and https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-001456&type=Request

In a few instances, the FOIA compilations show that a petition was filed, but further inquiry shows that the petition was an RC petition filed prior to voluntary recognition and later withdrawn. Those cases have not been counted as examples of cases where a subsequent petition was filed. In six cases, the FOIA spreadsheets indicate that a petition was filed, but follow-up research in the Board's recordkeeping system discloses no such petition, thus suggesting that the registry of a petition was in error. Those cases also have not been counted as examples of cases where a subsequent petition was filed. A few cases (none of which involved petitions) appear duplicative and have only been counted once. One case, in which a notice was requested but no pertinent information was supplied even after it was requested, has also not been counted in the analysis of petitions filed in response to voluntary recognition notice requests.

In yet another case, which has not been counted in this analysis, voluntary recognition was, according to the FOIA compilations, extended after the filing of a petition, but case records suggest that in fact the union won an election and no voluntary recognition was involved.

However, in one case, after an initial faulty notice posting, the union subsequently disclaimed interest for unknown reasons. No petition was filed. Given the ambiguity, this case has not been counted in our analysis at all.

As we explain below, the Board's preliminary view, subject to comments, is that the voluntary-recognition bar as articulated in

Lamons Gasket

better serves the policies of the National Labor Relations Act than does the current rule.

C. Section 9(a) Recognition in the Construction Industry

1. Overview

In the construction industry, employees often work for their employer for only a relatively brief period until the completion of a discrete project, at which time they may have begun working on a new project for a different employer.

This sporadic and temporary feature of much construction-industry work complicates a union's effort to demonstrate majority support among employees whose time with any one employer may be fleeting. At the same time, the widespread use of the project bid process means that construction employers need to know their labor costs, and thus, the terms of a collective-bargaining agreement, even before they hire their first employee.

The employer has to be able to forecast its labor costs to submit a contract bid and have available a pool of skilled craft workers ready for quick referral.

John Deklewa & Sons,

282 NLRB 1375, 1380 (1987) (quoting S. Rep. No. 86-187, reprinted in 1 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (Leg. Hist.), at 423, and H. Rep. No. 86-741, reprinted in 1 NLRB, Leg. Hist., at 777-778), enfd. sub nom.

Iron Workers Local 3

NLRB,

843 F.2d 770 (3d Cir. 1988).

Id. (quoting S. Rep. No. 86-187, reprinted in 1 NLRB, Leg. Hist., at 424).

Id.

Consequently, construction employers and unions frequently negotiate and enter into prehire collective-bargaining

agreements.

For the length of these agreements, even before it hires any employees, the construction employer recognizes the union as the bargaining representative of the employer's eventual employees and the employer is guaranteed precise labor costs pursuant to the agreement and, in the event of a union hiring hall, a source of skilled craft workers.

Id.

Id. at 1385.

In 1959, responsive to these unique construction-industry practices, Congress amended the Act,

adopting section 8(f),

which permitted a limited alternative in the building and construction industry to the Act's existing section 9(a) requirement that a union have majority support to obtain exclusive collective-bargaining representative status.

By declaring that “[i]t shall not be an unfair labor practice” to do so, section 8(f) sanctions the construction-industry practice of a construction employer and a union entering into a prehire agreement even where the union has not established its majority support among any bargaining unit of the employer's employees under section 9(a).

The Landrum-Griffin Act of 1959, Public Law 86-257, 73 Stat. 541, amending 29 U.S.C. 151-169.

Sec. 8(f), 29 U.S.C. 158(f).

John Deklewa & Sons,

282 NLRB at 1380.

Id.

For more than 35 years, the Board's decision in

John Deklewa & Sons

has governed how the Board has handled these 8(f) agreements and the interplay with a construction employer's 9(a) recognition of a union in instances where the union does have the support of a majority of the bargaining unit employees. Under

John Deklewa & Sons,

the Board adopted a rebuttable presumption that a collective-bargaining relationship in the construction industry was established under section 8(f), with the burden of proving that the relationship instead falls under section 9(a) placed on the party so asserting.

The Board in

John Deklewa & Sons

abandoned the “conversion doctrine,” adopted in 1971, 16 years before it issued

John Deklewa & Sons,

in which a bargaining relationship initially established under section 8(f) could convert into a 9(a) relationship by means other than a Board election or majority-based voluntary recognition. Id. at 1377. The “conversion doctrine” was premised on an 8(f) agreement being a “preliminary step that contemplates further action for the development of a full bargaining relationship.” Id. at 1378 (quoting

Ruttmann Construction Co.,

191 NLRB 701, 702 (1971)). As such, the 8(f) agreement could be repudiated at any time by any party but also permitted the signatory union to convert the 8(f) agreement into a 9(a) relationship/agreement based on its majority support during a relevant period, even though “[t]he achievement of majority support required no notice, no simultaneous union claim of majority, and no assent by the employer to complete the conversion process.” Id. In contrast, under

John Deklewa & Sons,

the parties to an 8(f) agreement cannot unilaterally repudiate the agreement until it expires or the unit employees vote to reject or change their representative. Id. at 1387.

The distinction is important because, unlike where there is only an 8(f) relationship, a union recognized as the 9(a) representative enjoys the full panoply of rights and obligations available to unions in all other industries as the exclusive collective-bargaining representative under section 9(a).

This includes the irrebuttable presumption of majority support during the term of the contract and a rebuttable presumption of majority support at other times, including at the contract's expiration.

In practice, under the Board's contract-bar rules, 9(a) recognition bars the filing of a representation petition challenging the union's majority status during the “reasonable period” of an agreement (up to 3 years) outside of the “window period” and imposes an obligation on the employer to continue to recognize and bargain with the union even after the parties' agreement has expired.

By contrast, as the Board explained in

John Deklewa & Sons,

there is no contract or recognition bar where there is only an 8(f) relationship: “the 8(f) union enjoys no presumption of majority status on the contract's expiration and cannot picket or strike to compel renewal of an expired agreement or require bargaining for a successor agreement. At no time does it enjoy a presumption of majority status, rebuttable or otherwise, and its status as the employees' representative is subject to challenge at any time.”

Id. at 1385.

Id. at 1387.

See

Mountaire Farms, Inc.,

370 NLRB No. 110, slip op. at 1 (2021) (“During this `contract bar' period, the Board will dismiss all representation petitions unless they are filed during the 30-day period that begins 90 days and ends 60 days before the agreement expires. In other words, there is a 30-day period—customarily known as the `window period'—during which a petition may be properly filed while the agreement is still in effect.”) (internal citation omitted);

MSR Industrial Services, LLC,

363 NLRB 1, 2 (2015) (“When relationships in the construction industry are governed by section 9(a), the employer cannot change terms and conditions of employment unilaterally upon contract expiration, and it must continue to recognize and bargain with the union after the contract expires.”). See also sec. 8(f), 29 U.S.C. 158(f) (recognizing that an 8(f) agreement “shall not be a bar to a petition filed pursuant to section 9(c) or 9(e)”).

282 NLRB at 1387.

Nonetheless, nothing in section 8(f) prevents a union representing employees in the construction industry from overcoming the 8(f) presumption and obtaining the same 9(a) recognition (and the attendant benefits) as any other union. Thus, under

John Deklewa & Sons,

the Board provided for unions representing employees in the construction industry to obtain 9(a) recognition by demonstrating—similar to unions representing employees in nonconstruction industries—a “clear showing of majority support” from the unit employees, assayed either through a Board representation election or the construction employer voluntarily recognizing that a majority of unit employees had designated the union as its collective-bargaining representative.

Id. at 1385-1387 & fn. 53.

Additionally, because section 8(f) uniquely permits voluntary recognition in the construction industry in the absence of majority support, where a construction employer voluntarily recognizes a union, in order to avoid the uncertainty of whether the recognition is pursuant to section 8(f) or 9(a), there must be unambiguous evidence that the construction employer's recognition was pursuant to section 9(a) instead of 8(f). In considering whether there was unambiguous evidence of section 9(a) recognition, the Board has looked to positive evidence, including contract language, of the union having made an unequivocal demand for 9(a) recognition and the employer having unequivocally granted it.

J & R Tile, Inc.,

291 NLRB 1034, 1036 (1988) (“[A]bsent a Board-conducted election, the Board will require positive evidence that the union sought and the employer extended recognition to a union as the 9(a) representative of its employees before concluding that the relationship between the parties is 9(a) and not 8(f).”); see also

Golden West Electric,

307 NLRB 1494, 1495 (1992) (finding positive evidence of a union's demand for and a construction employer's grant of 9(a) recognition where the parties' voluntary-recognition agreement unequivocally stated that the union claimed it represented a majority of employees and the employer acknowledged this was so). This avoids the Board having to determine whether the union enjoyed majority support at some point in the past—in some cases many years before a dispute over the union's status has arisen—if a construction employer attempts to escape a longstanding bargaining relationship unilaterally, claiming that the relationship was always an 8(f) relationship. The Board (and the parties) can rely on the specific written language in the parties' agreement to confirm their mutual acknowledgment that a showing of majority support existed when the relationship was established as opposed to years in the future when evidence may no longer be easily available (as witnesses and documents may disappear over time).

Staunton Fuel & Material, Inc.,

the Board defined the minimum requirements for what must be stated in a written recognition agreement or contract clause in order for it to serve as sufficient evidence of the union having attained 9(a) status.

The Board, following the approach taken by the Tenth Circuit in

NLRB

Triple C Maintenance, Inc.,

219 F.3d 1147 (10th

Cir. 2000) and

NLRB

Oklahoma Installation Co.

219 F.3d 1160 (10th Cir. 2000), found that “[a] recognition agreement or contract provision will be independently sufficient to establish a union's 9(a) representation status where the language unequivocally indicates that (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 9(a) bargaining representative; and (3) the employer's recognition was based on the union's having shown, or having offered to show, evidence of its majority support.”

335 NLRB 717, 719-720 (2001).

Id. at 719-720.

Significantly, this contract language does not substitute for the union showing or offering to show evidence of its majority support; it does, however, provide a contemporaneous, written memorialization that the union had majority support at the time of the 9(a) recognition. While holding that contract language can be independently dispositive of a 9(a) relationship, the Board in

Staunton Fuel

left open the issue of whether an employer could challenge the union's majority support within the 10(b) period where the contractual language the employer had agreed to unequivocally stated that the union made a showing of majority support.

As the D.C. Circuit has held, if other evidence casts doubt on the assertion that the union enjoyed majority support at the time the employer purportedly granted 9(a) recognition, then the contract language necessarily fails to satisfy its intended purpose.

Id. at 720 fn. 14.

Thus, in

Nova Plumbing, Inc.

NLRB,

the D.C. Circuit held that language in the collective-bargaining agreement between a construction employer and a union could not establish a 9(a) relationship.

The court pointed to strong evidence in the record that contradicted the contractual language.

In particular, senior employees who had been longtime union members opposed the union representing them with this employer, for instance a meeting between the senior employees and union representatives turned “extremely hostile,” and the employer's field superintendents and other foremen “encountered resistance” as they informed other employees about having to join the union.

The court reasoned that language in the collective-bargaining agreement “cannot be dispositive at least where, as here, the record contains strong indications that the parties had only a section 8(f) relationship.”

Subsequently, in

M & M Backhoe Service, Inc.

NLRB,

the D.C. Circuit distinguished

Nova Plumbing

to uphold the language in the parties' agreement establishing that the union was the 9(a) representative where there was evidence that the union actually had majority support, even if the employer never requested to see it.

Six years after

M & M Backhoe,

Allied Mechanical Services, Inc.

NLRB,

the D.C. Circuit quoted the

Nova Plumbing

court but, in doing so, added emphasis to indicate that contract language cannot be dispositive of a union's 9(a) status where the record contains contrary evidence.

330 F.3d 531, 537-538 (D.C. Cir. 2003).

Id. at 533.

Id. at 537.

Id.

469 F.3d 1047, 1050 (D.C. Cir. 2006) (“This case is like

Nova Plumbing

in the following respects: the union offered to prove to the employer that it had majority support; and the employer recognized the union without examining the union's proof. But there is a critical difference. Unlike

Nova Plumbing,

in which there was no evidence that the union actually had majority support, here the record shows—as the Board found—that a majority of employees voluntarily signed union authorization cards signifying their support of [the union].”).

668 F.3d 758, 766 (2012) (“Standing alone . . . contract language and intent cannot be dispositive

at least where . . . the record contains strong indications that the parties had only a section 8(f) relationship.”

) (quoting

Nova Plumbing,

330 F.3d at 537) (emphasis added in

Allied Mechanical Services

More recently, the D.C. Circuit in

Colorado Fire Sprinkler, Inc.

NLRB

rejected the union's claim of 9(a) recognition where the union relied solely on demonstrably false contract language stating that the employer had “confirmed that a clear majority” of the employees had designated it as their bargaining representative, even though not a single employee had been hired at the time the parties initially executed their agreement containing that language.

The court noted that “actual evidence that a majority of employees have thrown their support to the union must exist and, in Board proceedings, that evidence must be reflected in the administrative record.”

The court recognized that the only evidence of the union's majority support that could be pointed to in the record was the “demonstrably false” contract language.

In fact, as the court pointed out, “[t]ellingly, at no point in the administrative record did the [u]nion even explain, let alone proffer, what evidence it claimed to have collected” to support its assertion that a majority of employees had designated it as their bargaining representative.

The court concluded that the Board had improperly “blink[ed] away record evidence undermining the credibility or meaningfulness of the recognition clauses” and “ma[de] demonstrably untrustworthy contractual language the be-all and end-all of [s]ection 9(a) status.”

Construction industry employers and unions—like those in all other industries—cannot have created a 9(a) relationship where the union did not enjoy majority support, regardless of whether they agree to a contractual provision falsely attesting to the union's majority support.

891 F.3d 1031, 1036 (D.C. Cir. 2018).

Id. at 1040.

Id.

Id. at 1041.

Id.

More recently, relying on the D.C. Circuit decision in

Colorado Fire Sprinkler,

the Board in

Enright Seeding, Inc.

noted that “contractual language can only serve as evidence of a union's 9(a) majority representation

if it is true.”

371 NLRB No. 127, slip op. at 5 (emphasis added). Furthermore, the Board explained that “[c]ontract language alone is insufficient to demonstrate the union's 9(a) status if other evidence casts doubt on the assertion that the union enjoyed majority support at the time the employer purportedly granted 9(a) recognition.” Id., slip op. at 6. An application for enforcement of the Board's decision in

Enright Seeding

is currently pending in the Eighth Circuit.

2. The 6-Month Limitations Period for Challenging a Union's 9(a) Recognition in the Construction Industry

Importantly, in

John Deklewa & Sons,

despite the greater statutory leeway granted to construction employers and unions to enter into section 8(f) collective-bargaining relationships, the Board recognized that unions seeking section 9(a) representation do not “have less favored status with respect to construction industry employers than they possess with respect to those outside the construction industry.”

John Deklewa & Sons,

282 NLRB at 1387 fn. 53. Just as importantly, employees working for construction employers are entitled to the same rights and opportunities for their union to obtain 9(a) status through voluntary recognition as employees in nonconstruction industries.

Six years after issuing

John Deklewa & Sons,

the Board in

Casale Industries

relied on this basic tenet from

John Deklewa & Sons

—that unions representing construction-industry employees should be treated no less favorably than those representing nonconstruction-industry employees—to explicitly incorporate into the representation arena the teachings of the Supreme Court in

Local Lodge No. 1424, International Association of Machinists, AFL-CIO (Bryan Manufacturing Co.)

NLRB

. In

Bryan Manufacturing,

the Supreme Court held that if an employer recognizes a union as the section 9(a) representative and more than 6 months

elapse, the Board will not entertain a claim that the union lacked majority status when it was initially granted recognition.

Casale Industries,

311 NLRB 951, 953 (1993).

362 U.S. 411, 419 (1960); see also

North Bros. Ford,

220 NLRB 1021, 1021 (1975).

Bryan Manufacturing,

more than 6 months after the parties had executed a collective-bargaining agreement, unfair labor practice charges were filed contesting the parties' enforcement of the union-security clause in the contract on the grounds that the union indisputably lacked majority support at the time the parties executed their agreement.

Nonetheless, the Court reversed the Board and dismissed the complaint because, under section 10(b)'s 6-month limitations period, the complaint was premised on the allegedly unlawful recognition of the union, which occurred more than 6 months prior to the filing of the charge.

The Court based its decision on not only the statutory language but also the practical need for a time restriction on challenges to a union's initial recognition.

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.”

362 U.S. at 412.

Id. at 416-417.

Id. at 419.

Id.

Relying on

Bryan Manufacturing,

Casale,

the Board reiterated that, in nonconstruction industries, the Board will not entertain a claim that a union lacked majority status at the time of recognition if more than 6 months have elapsed because “a contrary rule would mean that longstanding relationships would be vulnerable to attack, and stability in labor relations would be undermined.”

The Board stated succinctly that these interests should prevail in construction industry representation cases: “These same principles would be applicable in the construction industry . . . . [P]arties in nonconstruction industries, who have established and maintained a stable [s]ection 9 relationship, are entitled to protection against a tardy attempt to disrupt their relationship. Parties in the construction industry are entitled to no less protection.”

Casale,

311 NLRB at 953 (citing

Bryan Manufacturing Co.,

362 U.S. at 411).

Id. (citing

John Deklewa & Sons,

282 NLRB at 1387 fn. 53).

3. The Board's 2019 NPRM on 9(a) Recognition in the Construction Industry

On August 12, 2019, the Board issued an NPRM seeking public comments on its proposal, among other things, to modify the manner in which construction employers may acknowledge a union's 9(a) status.

The Board proposed in its 2019 NPRM to overrule

Staunton Fuel,

regarding the sufficiency of contract language alone to establish a 9(a) bargaining relationship.

The Board contended that overruling

Staunton Fuel

would be in accordance with the D.C. Circuit decision in

Colorado Fire Sprinkler

and that it would be most consistent with statutory majoritarian principles and protecting employee free choice.

The Board reasoned that the proposed rule was necessary to prevent a union, without having any extrinsic proof of its majority support, from barring the processing of an election petition filed by an employee or a rival union for up to three years based solely on language in the union's collective-bargaining agreement with a construction employer.

84 FR 39938-39939.

Id.

Under the rule proposed in the 2019 NPRM, the Board would require, in the representation context, the parties to retain additional positive evidence of the union's 9(a) majority support beyond the parties' contract language. Specifically, if a representation petition is filed, and the parties are unable to present positive evidence of the union having made a contemporaneous showing of support from a majority of unit employees at the time initial recognition was granted, the parties would be unable to rely on the Board's customary voluntary-recognition and contract bars. The regional director would be required to process the representation petition, even if it would destabilize the collective-bargaining relationship.

Moreover, if the employer had granted the union 9(a) recognition at a time when it did not enjoy majority support, the Board would be processing a representation petition at a time when the employer had provided the union unlawful assistance under section 8(a)(2) and (1) so that laboratory conditions may not exist to ascertain employees' true sentiment towards the union.

See

General Cable Corp.,

139 NLRB 1123, 1125 (1962) (finding the delay as to when employees are able to exercise their free choice in an election “fully warranted when viewed in the light of countervailing considerations, including the necessity to introduce insofar as our contract-bar rules may do so, a greater measure of stability of labor relations into our industrial communities as a whole to help stabilize in turn our present American economy”).

See

Joseph Weinstein Electric Corp.,

152 NLRB 25, 39 (1965) (a construction employer's 9(a) recognition of and entering into an agreement with a union that does not enjoy majority support is unlawful under sec. 8(a)(2) and (1) and 8(b)(1)(A));

Bear Creek Construction Co.,

135 NLRB 1285, 1286-1287 (1962) (a construction employer provided unlawful assistance under sec. 8(a)(2) to a union in obtaining membership applications and checkoff authorization cards and, therefore, was ordered to cease and desist from recognizing the union as its employees' collective-bargaining representative and giving effect to the parties' agreement); see also

General Shoe Corp.,

77 NLRB 124, 126 (1948) (“An election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative.”).

While the NPRM indicated that the Board sought to overrule

Staunton Fuel,

the Board's NPRM made no mention whatsoever of altering the bedrock principle from

Bryan Manufacturing,

reiterated in

Casale—

which was itself a representation case involving an election petition—that a challenge cannot be made to a union's initial recognition by a construction employer after 6 months had elapsed. Indeed, no mention was made of section 10(b), or that a modification to the Board's limitations period for challenging a union's initial recognition of 9(a) majority status was in any way being contemplated by the Board. Accordingly, under the language and reasoning of the Board's NPRM, and in accordance with

Casale,

even if a construction employer and/or a union were unable to present positive evidence of the union's initial 9(a) recognition, a representation petition challenging the union's 9(a) recognition that was based on unequivocal written 9(a) recognition could not be processed if more than 6 months had elapsed from the union's initial 9(a) recognition.

4. The 2020 Final Rule

On April 1, 2020, following a public comment period, the Board promulgated its final rule adopting the proposed language from its NPRM but also stating in the preamble to the rule that it was overruling

Casale

“to the extent that it is inconsistent with the instant rule.”

The Board proceeded by stating that “we overrule

Casale'

s holding that the Board will not entertain a claim that majority status was lacking at the time of recognition where a construction-industry employer extends 9(a)

recognition to a union and 6 months elapse without a petition.”

The Board asserted that the DC and Fourth Circuits, and some former Board Members, had expressed doubts regarding section 10(b)'s applicability to challenges to a construction-industry union's purported 9(a) status.

The Board claimed that “the

Casale

Board failed to recognize that employees and rival unions will likely presume that a construction-industry employer and union entered an 8(f) collective-bargaining agreement . . . . Thus, it is highly unlikely that [employees and rival unions] will file a petition challenging the union's status within 6 months of recognition.”

The Board also stated that, “most significantly, [the Board finds that]

Casale'

s requirement that an election petition be filed within 6 months to challenge a purported 9(a) recognition in the construction industry improperly discounts the importance of protecting employee free choice . . . .”

85 FR 18391.

Id.

The practical effect of the Board's unanticipated overruling of

Casale

in the final rule—an action not mentioned, much less considered by the Board in the NPRM—was to require that a union and employer be prepared to prove evidence of the union's initial majority support—forever. Under the final rule, a challenge could be made to a construction employer's initial recognition of a union many years into the future at a time when it would be fundamentally unreasonable to expect the construction employer or the union to have maintained contemporaneous evidence of the union's majority support. Under the rule, there is no limit to the amount of time that may have passed since the initial recognition, but parties would be required to produce proof of the initial majority support in order for the Board to reject a challenge to even a longstanding employer-union 9(a) relationship.

D. Pending Litigation Challenging the 2020 Final Rule

On July 15, 2020, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the Baltimore-DC Metro Building and Construction Trades Council sued the NLRB (D.D.C. No. 20-cv-1909) (“AFL-CIO II”), alleging that the entirety of the April 2020 Rule was invalid because, among other things, it is arbitrary, capricious, an abuse of discretion, and in violation of the NLRA.

On August 11, 2020, the NLRB filed a motion to transfer

AFL-CIO II

to the United States Court of Appeals for the District of Columbia Circuit, arguing that the district court lacks subject matter jurisdiction. The AFL-CIO opposed the transfer. The NLRB previously advanced similar threshold jurisdictional arguments in

AFL-CIO

NLRB

(“

AFL-CIO I”

) (D.D.C. Case No. 20-cv-675 (KBJ)), which is currently pending decision by the D.C. Circuit (Case No. 20-5223), concerning changes to the Board's representation case procedures that the Board promulgated on December 18, 2019. On October 23, 2020, the district court in

AFL-CIO II

ordered a temporary stay pending resolution of the parties' cross-appeals of

AFL-CIO I,

where the same jurisdictional issue will be decided. On May 14, 2021, the D.C. Circuit held oral argument in

AFL-CIO I.

Once the D.C. Circuit issues its decision, the

AFL-CIO II

parties must file a joint status report within 14 days proposing a schedule for further proceedings. That litigation remains pending.

E. Rulemaking Petitions Seeking Rescission of the April 1, 2020 Rule

On November 16, 2021, the AFL-CIO and North America's Building Trades Unions (“NABTU”) filed a joint petition for rulemaking (“2021 petition”) requesting that the Board rescind each of the amendments made in the April 1, 2020 final rule. The 2021 petition urged the Board to: (1) rescind § 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 § 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 § 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 § 103.21. The 2022 petition expressed its support for the 2021 petition but listed additional policy arguments favoring a return to the Board's prior voluntary-recognition bar doctrine.

The 2021 and 2022 petitions for rulemaking will be part of the administrative record for this rulemaking.

III. Statutory Authority

Section 6 of the NLRA, 29 U.S.C. 156, provides that “[t]he Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by subchapter II of chapter 5 of Title 5 [the Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this [Act].”

The Supreme Court unanimously held in

American Hospital Association

NLRB,

499 U.S. 606, 609-610 (1991), that the Act authorizes the Board to adopt both substantive and procedural rules governing representation case proceedings. The Board interprets section 6 as authorizing the proposed amendments to its existing rules.

Sec. 6 of the Act refers to the Board's authority to “rescind” rules, while sec. 553 of the Administrative Procedure Act refers to the “repeal” of rules. See also 5 U.S.C. 551(5) (“ `[R]ule making' means agency process for formulating, amending, or repealing a rule”). For purposes of this NPRM, we treat these terms as interchangeable.

IV. The Proposed Rule Amendments

A. Rescission of the April 1, 2020 Blocking Charge Amendments

As set forth above, the Board developed the blocking charge policy through adjudication more than eight decades ago. And, for the more than eight decades that the Board adhered to the policy, the blocking charge policy enabled the Board to fulfill one of its core obligations: to preserve laboratory conditions for ascertaining employee choice during Board-conducted elections. In addition, the policy advanced the interests of potential voters by shielding them from voting in an atmosphere tainted by coercion. Reviewing courts have approved the Board's historical blocking charge policy. See,

e.g., Bishop

NLRB,

502 F.2d 1024, 1028-1029, 1032 (5th Cir. 1974) (distinguishing

Templeton

Dixie Color Printing Co.,

444 F.2d 1064 (5th Cir. 1971), and

Surratt

NLRB,

463 F.2d 378 (5th Cir. 1972), as involving a “high degree of arbitrariness” in application of the blocking-charge policy). No court has ever held the policy invalid, despite occasional disagreements between the Board and

the courts over the application of the policy in particular cases. For the reasons that follow, we are inclined to believe, subject to comments, that the pre-April 2020 blocking charge policy better balances the Board's interests in protecting employee free choice, preserving laboratory conditions in Board-conducted elections, and resolving questions concerning representation expeditiously.

Before explaining why we are inclined to believe, subject to comments, that the pre-April 2020 blocking charge policy better balances the Board's interests than the April 2020 final rule, we note that the rulemaking process that the Board followed in adopting the April 2020 rule was flawed in its treatment of Board election data. As discussed above and as the parties that filed the 2021 rulemaking petition also noted, 2021 Petition at 2-12, the NPRM contained flawed data that was never corrected in the final rule.

In adopting the final rule, the Board contended that any errors did not matter because the blocking charge policy by definition delays the conduct of elections, and its conclusion—that its amendments to the blocking charge policy better protect employees' statutory right of free choice on questions concerning representation—constituted a “policy choice . . . that . . . does not . . . depend on statistical analysis.” 85 FR 18366, 18377. We do not dispute that in rulemaking, the Board may be free to make a policy choice that does not primarily rely on either statistical data or particular facts about the operation of the prior rule.

100

Nevertheless, we are concerned that the Board's failure to correct errors in the data presented in the NPRM might well have harmed the rulemaking process.

101

100

While we acknowledge the Supreme Court's teaching that

relevant

data must be examined in the course of rulemaking,

Motor Vehicle Mfrs. Assn.

State Farm Mutual Automobile Ins. Co.,

463 U.S. 29, 43 (1983), it remains true that the Agency may make policy decisions for which the data does not provide the answer.

101

Cf.

American Relay Radio League

FCC,

524 F.3d 227, 237 (D.C. Cir. 2008) (“[S]tudies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment.”);

Portland Cement Association

Ruckelshaus,

486 F.2d 375, 392-393 (D.C. Cir. 1973) (relying on inaccurate data is a “critical defect” in an agency's decisionmaking during a rulemaking proceeding).

More importantly, turning to the merits of the April 2020 final rule, the Board is inclined to believe, subject to comments, that returning to the Board's pre-April 2020 blocking charge policy would best serve the policies of the Act. Permitting regional directors to generally decline to process an election petition at the request of a party who has filed a charge alleging conduct that would interfere with employee free choice or conduct that is inherently inconsistent with the petition (and who has simultaneously filed an adequate offer of proof and agreed to promptly make its witnesses available), until the merits of the charge can be determined, better protects employee free choice than the April 2020 amendments that require regional directors to conduct elections in all cases no matter how serious the unfair labor practice charges and no matter how powerful the indicia of their merit. Accordingly, we propose to amend the wording of 29 CFR 103.20 to conform to the wording of that section as it existed prior to the April 2020 final rule.

102

In all other respects, the Board's prior applicable law regarding the blocking charge policy, which was developed through adjudication, would be restored.

102

See 29 CFR 103.20 (Dec. 15, 2014) (requiring that a party filing a request to block must simultaneously file an adequate offer of poof and promptly make its witnesses available, and further providing that “[i]f the regional director determines that the party's offer of proof does not describe evidence that, if proven, would interfere with employee free choice in an election or would be inherently inconsistent with the petition itself, and thus would require that the processing of the petition be held in abeyance absent special circumstances, the regional director shall continue to process the petition and conduct the election where appropriate.”).

Although we agree with the April 2020 Board that, under ordinary circumstances, the Board should conduct elections expeditiously, there can also be no denying—and the April 2020 Board did not deny—that the Board has regularly confronted cases involving unlawful conduct that either interferes with the ability of employees to make a free choice about union representation in an election or is inherently inconsistent with the petition itself. The Board is inclined to believe, subject to comments, that it would undermine employee rights, and would run counter to the Board's duty to conduct elections in circumstances in which employees may freely choose whether to be represented by a union, if the Board were to require regional directors to conduct, and employees to vote in, a coercive atmosphere. But, as the April 2020 Board acknowledged in adopting the final rule, the 2020 blocking charge amendments require the Board to do precisely that. In particular, the April 2020 Board acknowledged that the results of the elections must be set aside and rerun elections ordered when the Type I charges are found to have merit and to have impacted the election. The April 2020 Board further acknowledged that the ballots cast in cases involving certain types of Type II charges will either not be honored (if the ballots had been counted) or will “never be counted” (if they were impounded because a complaint, which issued within 60 days of the election, is found to have merit). Thus, it cannot be denied that under the April 2020 amendments, regional directors will be required to run—and employees, unions, and employers will be required to participate in—elections conducted under coercive conditions. 85 FR 18370, 18378-18380. Subject to comments, we are also inclined to believe that because the April 2020 final rule requires regional directors to run—and employees, unions, and employers to participate in—elections that will not resolve the question of representation because they were conducted under coercive circumstances, the proposed amendments run the risk of imposing unnecessary costs on the parties and the Board. Subject to comments, we are also inclined to believe that the Board's position in the April 2020 rulemaking—that nothing is more important under the Act and its policies than having employees vote without delay in every case (even though it means they will be required to vote in elections under coercive conditions)—cannot be squared with the Board's responsibility to provide laboratory conditions for ascertaining employee choice during Board-conducted elections. Put simply, we are inclined to disagree with the April 2020 Board's conclusion that it is inappropriate to delay an initial election to shield employees from having to vote under coercive circumstances.

Subject to comments, we also question the April 2020 Board's premise that its amendment requiring elections to be held in all cases involving requests to block is necessary to preserve employee free choice because the blocking charge policy deprives employees of free choice in those cases where petitions are blocked by nonmeritorious charges. While we recognize that blocking elections based on nonmeritorious charges may result in some delay, our preliminary position, subject to comments, is that the benefits of not allowing elections to proceed under the clouds of an unfair labor practice far outweigh any such delay. We are inclined to believe that the Board's blocking charge policy as it existed prior to the effective date of the April 2020 final rule best preserved employee free choice in representation cases in which petitions are blocked because of concurrent unfair labor practice charges. We note that because

the historical blocking charge policy provided for the regional director to resume processing the representation petition to an election if a charge were ultimately determined to lack merit, employees in those cases would be afforded the opportunity to vote whether they wish to be represented, and thus employee free choice was preserved. However, unlike the April 2020 rule amendments, the Board's historical blocking charge policy also protects employee free choice in cases involving

meritorious

charges by suspending the processing of the election petition until the unfair labor practices are remedied. By shielding employees from having to vote under coercive conditions, the historical blocking charge policy would seem to be more compatible with the policies of the Act and the Board's responsibility to provide laboratory conditions for ascertaining employee choice during Board-conducted elections. In short, we are inclined to believe, subject to comments, that it is the 80-year-old blocking charge policy, not the April 2020 final rule amendments requiring elections in all cases involving requests to block, that best protects employee free choice in the election process. 84 FR 39945.

103

Subject to comments, we question the suggestion of the April 2020 Board that the Board's historical blocking charge policy can prevent employees from ever obtaining an election if they continue to desire an election after the merits of the charge are determined. 85 FR 18366, 18377. As shown, if the petition was held in abeyance because of a Type I charge, the regional director resumed processing the petition once the charge was ultimately found to lack merit or the unfair labor practice conduct was remedied. Casehandling Manual Sections 11732, 11733.1, 11734 (August 2007). If, on the other hand, the petition was dismissed because of a Type II charge, it was subject to reinstatement if the charge was found nonmeritorious. Id. at section 11733.2. And, as the courts had recognized, even if the petition was dismissed because of a meritorious Type II blocking charge, employees could, if they so choose, file a new petition after the unfair labor practice conduct that caused the petition to be dismissed is remedied. See

Bishop

NLRB,

502 F.2d 1024, 1028-1029 (5th Cir. 1974) (“If the employees' dissatisfaction with the certified union should continue even after the union has had an opportunity to operate free from the employer's unfair labor practices, the employees may at that later date submit another decertification petition.”); see also

Albertson's Inc.

NLRB,

161 F.3d 1231, 1239 (10th Cir. 1998) (“[A]ny harm to employees seeking decertification resulting from the blocking of the petition is slight in that employees are free to file a new petition so long as it is circulated and signed in an environment free of unfair labor practices.”). Moreover, even if the petitioner withdrew their petition, another employee was free to file a new petition. To be sure, as the April 2020 Board noted, 85 FR 18377, a blocked decertification petition may never proceed to an election if the incumbent union disclaims interest in representing the unit. However, there plainly is no need to hold a decertification election to afford employees the opportunity to oust the incumbent union if that union has voluntarily withdrawn from the scene.

We also question the final rule's complaint, 85 FR 18367, 18379, that the pre-April 2020 blocking charge policy renders illusory the possibility of employer-filed (“RM”) election petitions. Under that policy if an RM petition is blocked, the regional director resumes processing it once the unfair labor practice charges are remedied or the charges are determined to lack merit. Moreover, as noted, then-Member McFerran's analysis of the relevant data indicated that the overwhelming majority of RM petitions are never blocked, and that even in the minority of instances when RM petitions are blocked, most of these petitions are blocked by meritorious charges.

In proposing to return to the Board's historical blocking charge policy, we further note that the April 2020 Board pointed to nothing that had changed in the representation case arena during the eight decades that the blocking charge policy had been in existence that justified making their sea change in the law. Prior to the adoption of the April 2020 final rule, Congress had not amended the Act in such a way as to call the blocking charge policy into question. No court had invalidated the policy. To the contrary, the courts had recognized that the salutary reasons for the blocking charge policy “do not long elude comprehension,” and that the policy had “long-since [been] legitimized by experience.”

Bishop

NLRB,

502 F.2d 1024, 1028, 1032 (5th Cir. 1974).

104

And, significantly, the Agency's regional directors—the officials who are charged with administering the policy in the first instance, and whose opinions were explicitly sought and received by the Board—had publicly endorsed the policy.

105

104

Accord

Blanco

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

Ahearn,

749 F.Supp.2d 951, 960-961 (D. Alaska 2010) (“[W]here a petition to decertify the union is related to the ULP charges, the `blocking charge rule' prioritizes the agency's consideration of the ULP charges to ensure that any decertification proceedings are handled in an uncoerced environment.”). As the Fifth Circuit explained in

Bishop,

502 F.2d at 1028-1029 (citations omitted), “it would be particularly anomalous, and disruptive of industrial peace, to allow the employer's [unfair labor practices] to dissipate the union's strength, and then to require a new election which `would not be likely to demonstrate the employees' true, undistorted desires,' since employee disaffection with the union in such cases is in all likelihood prompted by [the situation resulting from the unfair labor practices].

“If the employer has in fact committed unfair labor practices and has thereby succeeded in undermining union sentiment, it would surely controvert the spirit of the Act to allow the employer to profit by his own wrongdoing. In the absence of the `blocking charge' rule, many of the NLRB's sanctions against employers who are guilty of misconduct would lose all meaning. Nothing would be more pitiful than a bargaining order where there is no longer a union with which to bargain.

“Nor is the situation necessarily different where the decertification petition is submitted by employees instead of the employer or a rival union. Where a majority of the employees in a unit genuinely desire to rid themselves of the certified union, this desire may well be the result of the employer's unfair labor practices. In such a case, the employer's conduct may have so affected employee attitudes as to make a fair election impossible.

“If the employees' dissatisfaction with the certified union should continue even after the union has had an opportunity to operate free from the employer's unfair labor practices, the employees may at that later date submit another decertification petition.”

105

See April 13, 2018 Regional Director Committee's Response and Comments to the Board's Request for Information on the Representation-Case Procedures, at 1 (reporting that directors “do not see a need to change” blocking charge § 103.20).

Subject to comments, we also question the reasons offered by the Board in adopting the April 2020 amendments and eliminating the historical blocking charge policy.

First, the April 2020 Board repeatedly emphasized the obvious: that the blocking charge policy causes delays in conducting elections. From this, the Board argued that the blocking charge policy impedes employee free choice. 85 FR 18366, 18367, 18372-18373, 18375-18380, 18393. However, as then-Member McFerran pointed out in her dissent to the proposed amendments, the Board's conclusion does not necessarily follow from its premise. 84 FR 39943. To the contrary, we are inclined to believe that the blocking charge policy better protects employee free choice notwithstanding the delay that the policy necessarily entails. As the Board has previously observed, “it is immaterial that elections may be delayed or prevented by blocking charges, because when charges have merit, elections

should

be [delayed or] prevented.”

Levitz,

333 NLRB at 728 fn. 57 (emphasis in original). We thus are inclined to agree with the observation of the December 2014 Board, when it codified the decades-old blocking charge policy, that “[i]t advances no policy of the Act for the agency to conduct an election unless employees can vote without unlawful interference.” 79 FR 74429. If the circumstances surrounding an election interfere with employee free choice, then, contrary to the April 2020 final rule, it does not seem “efficient” to permit employees to cast ballots “speedily” because the ballots cast in such an election cannot be deemed to “accurately” reflect employees' true, undistorted desires. 85 FR 18367,

18380, 18393. That is why, as the April 2020 Board acknowledged, elections conducted under coercive circumstances under its amendments will not actually resolve the question of representation.

106

The April 2020 Board made the claim that employees would be less “frustrate[d]” or “confuse[d]” under its amendments, 85 FR 18380, which provide that, although the ballots will be promptly opened and counted in the vast majority of cases, the results of the election will nevertheless not be certified until there has been a final disposition of the charge and a determination of its effects on the petition by the Board. 85 FR 18370. We reject this speculative proposition. We are inclined to believe, subject to comments, that opening and counting ballots submitted under coercive circumstances, yet refusing to certify the results, will, at best, confuse employees and, at worst, actively mislead them by conveying a materially false impression of union support. Moreover, it takes the same amount of time to determine the merits of the charge, whether that determination is made before an election is conducted (as under the Board's historical blocking charge policy) or whether that determination is made after the election (as is the case under the April 2020 amendments). In short, just as was the case under the Board's historical blocking charge policy, the question of representation cannot be resolved under the April 2020 final rule until the merits of the charge have been determined. In any event, the final rule also did not address the frustration that might well be felt by employees who, under the April 2020 final rule, will be required to vote under coercive circumstances.

Second, the Board complained that there is a potential for incumbent unions to abuse the blocking charge policy by deliberately filing nonmeritorious unfair labor practice charges in the hopes of delaying decertification elections. 85 FR 18367, 18376, 18377, 18379-18380, 18393. But, as then-Member McFerran pointed out in her dissent to the proposed rule, the prior Board majority made no effort to determine how often decertification petitions are blocked by meritorious charges, as compared to nonmeritorious charges, or how much delay is attributable to nonmeritorious charges (which still may well have been filed in good faith, and not for purposes of obstruction). 84 FR 39943. Nor did the final rule. In short, there has been no showing that it was the norm for unions to file frivolous blocking charges to postpone elections in RD or RM cases. And, as noted, the NPRM dissent's analysis of the pre-Covid data would seem to undercut the April 2020 Board's unsupported concern, as it appears to show that an overwhelming majority of the decertification petitions and employer filed RM petitions are never blocked, and that even in the minority of instances when decertification petitions and RM petitions are blocked, most of these petitions are blocked by meritorious charges.

107

Moreover, subject to comments, we are inclined to believe that the regulatory provisions adopted in 2014—requiring the party that seeks to block the election to (1) simultaneously file an offer of proof providing the names of its witnesses who will testify in support of the charge and a summary of each witness' anticipated testimony, and (2) promptly make the witnesses available to the regional director—constitute a disincentive to file frivolous charges and provide powerful tools to regional directors to promptly dispose of any frivolous charges that are filed. See

Associated Builders and Contractors of Texas, Inc.

NLRB,

826 F.3d 215, 228 (5th Cir. 2016) (citing amended § 103.20's offer of proof requirement and concluding that the Board “considered the delays caused by blocking charges, and modified current policy in accordance with those considerations.”).

107

Moreover, the NPRM dissent's analysis seemed to show that the merit rates for blocking charges filed in the RD and RM contexts—66 percent and 89 percent respectively—were substantially higher than the merit rate for all unfair labor practice charges, which in FYs 2016 and 2017 merely ranged from 37.1% to 38.6%. 84 FR 39944 & fn. 64, 39945 fn. 69 (and materials cited therein). Ultimately, however, just as the April 2020 Board decided to substantially eliminate the blocking charge policy based on a policy choice that does not depend on statistical analysis, we propose to return to the judicially approved, historical blocking charge policy based on a policy choice that the historical blocking charge policy better enables the Board to fulfill its function in election proceedings of providing a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of employees.

Further, compared to the countless examples of cases where employers engage in coercive behavior—such as instigating decertification petitions, committing unfair labor practices that inevitably cause disaffection from incumbent unions, and engaging in unfair labor practices after a decertification petition is filed—in an effort to oust incumbent unions, or engage in coercive behavior to sway employee votes in the context of initial organizing campaigns, the final rule cited the same few isolated cases that the NPRM had cited to support the April 2020 Board's claim of judicial concern about the blocking charge policy's effect on employee free choice. 85 FR 18367,18376; 84 FR 39931-39932. Subject to comments, we are inclined to believe that those cases do not constitute persuasive authority for eliminating the blocking charge policy, for the same reasons the dissenting Board member articulated in her dissent to the NPRM.

108

As mentioned above, although the Board's application of the blocking charge policy in a particular case had occasionally been criticized, no court had ever denied enforcement to a Board decision based upon a generalized rejection of that policy. 84 FR 39943.

Third, the April 2020 Board found fault with the blocking charge policy because it permits a mere discretionary “administrative determination” as to the merits of unfair labor practice charges to delay employees' ability to vote whether they wish to obtain, or retain, union representation. 85 FR 18367, 18377, 18393. Subject to comments, we are inclined to believe that that does not constitute a persuasive reason to retain the April 2020 amendments. As the dissent to the NPRM pointed out, the Board ignored that regional directors and the General Counsel make all sorts of administrative determinations that impact the ability of employees to obtain an election or to retain union representation. 84 FR 39944. For example, employees, unions, and employers are denied an election if the regional director makes an administrative determination that the petitioner lacks an adequate showing of interest. See 79 FR 74391, 74421 (the adequacy of the showing of interest is a matter for administrative determination and is nonlitigable). Regional directors may also deny employer and union requests for second elections based on an administrative determination that no misconduct occurred or that any misconduct that occurred did not interfere with employee free choice. See 79 FR 74412, 74416 (parties have no entitlement to a post-election hearing on election objections or determinative challenges, and regional directors have discretion to dispose of such matters administratively).

109

Indeed, the Board's skepticism toward regional director administrative determinations in this context is in considerable tension with Congress' decision to authorize regional directors to administratively decide when elections should be conducted in

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)).

109

The D.C. Circuit's decision in

Allied Mechanical Services, Inc.

NLRB,

668 F.3d 758, 761, 771, 773 (D.C. Cir. 2012) provides further support for the notion that the April 2020 Board's distrust of administrative determinations is not well founded. There, the court rejected claims that an administrative settlement of a

Gissel

complaint—that is, a settlement agreement approved by a regional director requiring the company to bargain with the union as the unit's exclusive representative—was insufficient to demonstrate that a union had sec. 9(a) status. Id. at 770-771. In doing so, the court relied on a longstanding presumption that the actions of administrative officials are fair and regular. Id. (citing cases). The court reasoned, moreover, that it would be “unlikely—and even illogical—to suppose that the Board's General Counsel would have asserted that a majority of [the Company's] unit employees had designated the Union as their representative through authorization cards, and that a

Gissel

bargaining order was necessary to remedy the Company's unfair labor practices, without first investigating the Union's claim of majority status and satisfying itself that a

Gissel

bargaining order was appropriate.” Id. at 771.

Fourth, the April 2020 Board complained that employees who support decertification petitions are adversely affected by blocking charges because delay robs the petition effort of momentum and thereby threatens employee free choice. 85 FR 18367, 18393. We are inclined to believe, subject to comments, that this justification for the April 2020 amendments misapprehends the core statutory concerns underlying the blocking charge policy. As then-Member McFerran noted in her dissent to the NPRM, if a party has committed unremedied unfair labor practices that interfere with employee free choice, then elections in those contexts will not accurately reflect the employees' unimpeded desires and therefore should not be conducted. 84 FR 39944. Indeed, the momentum that the final rule seeks to preserve may be entirely illegitimate, as in cases where the employer unlawfully initiates the decertification petition, or the momentum may be infected by unlawful conduct, as in cases where after a decertification petition is filed, the employer promises to reward employees who vote against continued representation or threatens adverse consequences for employees who continue to support the incumbent union.

110

Subject to comments, we question whether the Board was justified in adopting its amendments because they allow the balloting to occur when the parties' respective arguments are “fresh in the mind[s] of unit employees.” 84 FR 39937-39938, 85 FR 18393. Under the Board's historical blocking charge policy, balloting also occurred when the parties' respective arguments were “fresh in the minds” of unit employees, because parties had an opportunity to campaign after the regional director resumed processing a petition (once either the unfair labor practice conduct was remedied or the director determined that the charge lacked merit). Subject to comments, we are inclined to believe that all the April 2020 final rule ensures is that balloting will occur when the unremedied

coercive conduct

is fresh in the minds of unit employees, undermining the Act's policy of protecting employee free choice in the election process and contravening the Board's duty to conduct fair elections.

We also question whether the Board was justified in adopting the April 2020 amendments because they eliminate the ability of either party to control the pre-election narrative as to whether the Board has found probable cause that the employer has committed unfair labor practices. 84 FR 39938, 85 FR 18393. As then-Member McFerran pointed out in her dissent to the NPRM, under the Board's historical blocking charge policy, neither the Board nor the regional director notified unit employees that the petition was being held in abeyance because there was “probable cause” to believe that a party had committed unfair labor practices. 84 FR 39946 fn. 70. To be sure, under the Board's historical blocking charge policy, a party was free to tell unit employees that the regional director had blocked action on the petition because a party stood accused of committing unfair labor practices, and the charged party was free to tell the unit employees that it was innocent of any wrongdoing and that the charging party was responsible for the delaying the employees' opportunity to vote. But, under the April 2020 final rule, parties are similarly free to inform unit employees, in advance of the election in the vast majority of cases, that although employees will be permitted to vote, the results of the election will not be certified until a final determination is made as to the merits of the unfair labor practice charge(s) alleging that a party has engaged in conduct that interferes with employee free choice (or that the regional director will impound the ballots cast in the election for at least 60 days—rather than immediately opening and counting the ballots following the election—because a party stands accused of committing unfair labor practices concerning the legitimacy of the petition itself). The charged party, meanwhile, will be free to inform unit employees that it is innocent of any wrongdoing and that the charging party is responsible for the delay in the certification of the results or the opening and counting the ballots.

The April 2020 Board also criticized the blocking charge policy as creating “an anomalous situation” whereby conduct (if alleged in election objections) that cannot be found to interfere with employee free choice because it occurred pre-petition, see

Ideal Electric,

134 NLRB 1275 (1961), can nevertheless be the basis for delaying or denying an election. 85 FR 18367, 18393. We question whether this constitutes a persuasive reason not to return to the blocking charge policy as it existed prior to the effective date of the April 2020 amendments.

Ideal Electric

does not preclude the Board from considering pre-petition misconduct as a basis for setting aside an election. As the Board has explained, “

Ideal Electric

notwithstanding, the Board will consider prepetition conduct that is sufficiently serious to have affected the results of the election.”

Harborside Healthcare, Inc.,

343 NLRB 906, 912 fn. 21 (2004). Accord

Madison Square Garden CT., LLC,

350 NLRB 117, 122 (2007). Further, as the April 2020 Board implicitly conceded, under its final rule, it is equally the case that ballots will “never be counted” in some cases based on serious pre-petition misconduct, such as where the employer instigates the petition and where a complaint issues within 60 days of the election. 85 FR 18378, 18380 (even if the ballots are counted under the April 2020 final rule because the complaint on the Type II charge issues more than 60 days after the election, the ballots will be thrown out if the Board ultimately decides that the charge has merit). Moreover, under the pre-April 2020 blocking charge policy, regional directors had discretion to reject blocking requests and proceed straight to an election when they concluded that, under the circumstances, employees would be able to exercise free choice notwithstanding a pending unfair labor practice charge (because, for example, the charge merely alleged minor and isolated pre-petition unfair labor practice conduct).

111

See Casehandling Manual Section 11731.2 (January 2017) (“There may be situations where, in the presence of a request to block (Secs. 11731.1(a)), the regional director is of the opinion that the employees could under the circumstances, exercise their free choice in an election and that the R case should proceed notwithstanding the existence of a concurrent Type I or Type II unfair labor practice case. In such circumstances, the regional director should deny the request to block.”).

The April 2020 Board also justified its amendments to the blocking charge policy by claiming that regional directors had not been applying the blocking charge policy consistently. 85 FR 18367, 18379, 18393. However, after reviewing the final rule, we question whether that justification is persuasive. The final rule did not offer any specific evidence demonstrating any significant differences in how regions were actually applying the blocking charge policy as it existed at the time. Moreover, because the pre-April 2020 blocking charge policy entitled parties to file requests for Board review of regional director decisions to block elections based on either Type I or Type II charges, we believe that the Board had the ability to correct any erroneous blocking determinations made by regional directors. See 29 CFR 102.71 (2011); Casehandling Manual Sections 11730.7, 11733.2(b) (January 2017). Accordingly, we are inclined to believe that a return to the blocking charge policy as it existed prior to the effective date of the amendments would not create a widespread problem where petitions that would normally be blocked in some regions would normally be processed to election in other regions.

The April 2020 Board also faulted the blocking charge policy because a possible result of delaying elections is that employees who were in the workforce when the petition was filed might not be in the workforce when the election is ultimately held following disposition of the blocking charge, thereby disenfranchising those employees. 85 FR 18367, 18378, 18393. Subject to comments, we question whether this justification for eliminating the historical blocking charge policy is persuasive. Unless the Board were to conduct elections the day the election petition is filed, the possibility of employee turnover is unavoidable. Indeed, even in the absence of any unfair labor practice charges being filed

prior to the election, those eligible to vote are

not

those employed in the unit at the time the petition is filed. Rather, the employees who are eligible to vote in the election are those employees who were employed during the payroll period for eligibility and who remain employed as of the election. In directed election cases, this means that only employees employed in the unit during the payroll period immediately preceding the date the decision and direction issues—and who remain employed as of the election—are eligible. Casehandling Manual Section 11312.1 (August 2007). In the stipulated election context, the payroll period for eligibility is normally the last payroll period ending before the regional director's approval of the agreement. Casehandling Manual Sections 11086.3, 11312.1 (August 2007).

Subject to comments, we are inclined to believe that it serves no valid purpose to conduct elections in which employees cannot exercise free choice, even though delaying the election until employees can vote in a noncoercive atmosphere might mean that some employees who were present at the time the petition was filed are no longer employed at the time a free and fair election is held. As for the subset of cases where the charges are nonmeritorious, we question whether it is “unjust” to bar employees from voting who were employed at the time of the petition filing, but who are no longer employed when the regional director resumes processing the petition. As noted, the same rule applies in cases where no unfair labor practice charges are ever filed. Thus, employees who were employed as of the filing of the petition, but who are no longer employed as of the time of the election, are not eligible to vote. Certainly, there is nothing in the blocking charge policy that compels any employee to leave their place of employment during the period when the petition is held in abeyance pending a determination of the merits of the charge. The April 2020 Board does not explain why employees who are no longer in the workforce should be given a say in determining whether current employees should be represented for purposes of collective bargaining with their employer.

112

Subject to comments, we are also inclined to believe that the April 2020 Board's view—that it should prioritize speedy elections over employee free choice in order to maximize the likelihood that those employed at the time of the petition filing will be able to vote in an election—is undermined by the same Board's adoption of the 2019 Representation-Case Procedures Rule that delayed the period of time between the filing of the petition and the holding of the election (thereby potentially disenfranchising those employed when the petition was filed) in cases where there have been no unfair labor practice charges of any kind filed, let alone those alleging conduct that would interfere with employee free choice. See

Representation-Case Procedures,

84 FR 69524, 69524-69525, 69560-69563, 69566-69569, 69572-69579, 69580-69585 (Dec. 18, 2019) (noting that the Board's December 2019 rule delays the period between the filing of the petition and the election in directed election cases by, for example, delaying the opening of the pre-election hearing by two weeks—beyond any Board's processing time in more than two decades—while simultaneously making such hearings easier to postpone, entitling parties to file briefs in all cases a week after the close of the pre-election hearing (with additional extensions of up to 2 weeks) even when the regional director concludes that briefing would be unhelpful, entitling parties to litigate matters that are not relevant to the statutory purpose of the pre-election hearing and requiring regional directors to decide matters that need not be decided to determine whether a question of representation exists that should be resolved by an election; and instituting a 20-business day waiting period between the direction of election and the election itself to allow the Board to rule on interlocutory appeals that are rarely filed prior to the election, almost never result in reversals before the election, and in any event could be mooted by election results).

We additionally note that the April 2020 amendments do not entirely eliminate the risk that employees who end up voting in a valid election (

i.e.,

an election whose results are certified) will not be those who were employed at the time of the petition filing. To repeat, the April 2020 final rule recognizes that the Board should set aside the initial election and, in certain circumstances, conduct a rerun election in cases where the charges are meritorious. And just as was the case prior to the April 2020 amendments, the eligibility period for rerun elections after that final rule is the payroll period preceding the date of issuance of the notice of rerun election,

not

the payroll period preceding the date of the original decision and direction of election (or approval of the stipulated election agreement), and certainly not the date of the petition filing. See Casehandling Manual Sections 11436, 11452.2 (August 2007); Casehandling Manual Sections 11436, 11452.2 (September 2020). Some risk of disenfranchisement is unavoidable in this context, but the risk of disenfranchisement caused by holding an election under nonlaboratory conditions may well outweigh that risk under the 2020 final rule.

The final rule also appeared to suggest that the blocking charge policy impeded settlement and that the policy should therefore be eliminated to promote settlement of blocking charges. 85 FR 18380. We confess that we are not entirely certain that we understand the Board's cryptic statements in this regard. To the extent that the April 2020 Board adopted the amendments because it believed they would promote settlement (by enabling the parties to know the results of the election during their settlement discussions), we question whether that belief is a reason to refrain from restoring the Board's historical blocking charge policy. The blocking charge policy advances core statutory interests—promoting employee free choice regarding whether to be represented by a labor organization for purposes of collective bargaining. We are inclined to believe that, even assuming for purposes of argument that the April 2020 final rule promotes settlement of charges, the worthy administrative goal of promoting settlement of unfair labor practice charges should not trump the fundamental

statutory

policy of protecting the right of employees to freely choose whether to be represented for purposes of collective bargaining by labor organizations.

In any event, we note that the April 2020 Board did not explain why parties would in fact be more likely to settle a charge under the April 2020 amendments (which provide for the holding of an election in all cases) than they would be to settle if the same charge were instead holding up an election and preventing employees from voting (under the pre-April 2020 blocking charge policy). And we question whether that is the case. Indeed, we suspect that the April 2020 Board thought that settled charges should not be deemed meritorious in part because it believed that at least some employers thought that it was worth settling blocking charges under the historical blocking charge regime that they otherwise would not have settled just so that their employees could vote “sooner” to possibly rid themselves of their representative in a decertification election. However, as noted, under the April 2020 amendments, employees will be permitted to vote even if the employer does not settle a pending charge against it before the election. Nor is it clear why the April 2020 final rule would encourage a union (that is seeking to delay its ouster) to settle its unfair labor practice charge after the election. As noted, under the April 2020 amendments, the certification of results is withheld until there is final disposition of the charge and its impact on the election by the Board. 85 FR 18370, 18377, 18399. In other words, under the April 2020 final rule, the outcome of the representation case still must await the outcome of the unfair labor practice case (even though an election has been held), the same result that obtained under the Board's historical blocking charge policy. And it

takes the same amount of time to determine the merits of the charge whether that determination is made before an election is conducted (as under the Board's historical blocking charge policy) or whether that determination is made after the election (as is the case under the April 2020 amendments).

We also question the April 2020 Board's apparent view that once the results of the election are known, the unfair-labor-practice-charge-settlement discussions are simplified because the parties' strategic considerations related to the election are removed from consideration. 85 FR 18380. Thus, although under the April 2020 amendments, an election will be held in all cases, it seems that parties will still have to consider the representation case as part of their settlement negotiations regarding the unfair labor practice charge(s). Because, as the April 2020 Board noted (85 FR 18377), a “settled charge” cannot be deemed meritorious unless it has been admitted by the charged party, a settled charge cannot result in a rerun election (or dismissal of the petition) unless the charged party agrees to a rerun election as part of the settlement agreement or admits that it violated the Act as part of the settlement. Thus, the party seeking to set aside the election results will need to address the representation case as part of its settlement discussions regarding the unfair labor practice charge(s) it filed. (In other words, the charging party will want the charged party as part of the settlement to agree to a rerun election or to admit that it violated the Act.) Indeed, knowledge of the provisional election outcome may perversely incentivize cases

not

to settle where a party deems that vote tally so valuable to its interests that it makes it efficient to litigate a long-shot legal theory in the unfair labor practice case.

Finally, the final rule asserted that there is no reason to delay elections when charges allege conduct that would interfere with employee free choice because the Board can always conduct a rerun election if the charge is ultimately found meritorious (or issue an affirmative bargaining order in cases involving the limited subset of Type II charges). 85 FR 18378, 18380. Subject to comments, we are inclined to disagree. Indeed, we are inclined to believe that, by requiring the Board to conduct elections under coercive circumstances, the April 2020 amendments contravene the Board's responsibility to conduct free and fair elections and undermines the Act's policy of protecting employee free choice in the election process. We also are inclined to believe, subject to comments, that by forcing employees to go to elections that will not count, the April 2020 final rule additionally threatens to create a sense among the employees that attempting to exercise their section 7 rights is futile, while risking imposing unnecessary costs on the parties and the Board. Moreover, by requiring the Board to conduct elections that will have to be rerun, the April 2020 final rule would seem to threaten industrial peace.

Subject to comments, we are inclined to believe that the April 2020 amendments do not put the unit employees in the position that most closely approximates the position they would have been in had no party committed unfair labor practices interfering with employee free choice. Had no party committed unfair labor practices, employees would not be voting in an atmosphere of coercion. But employees seemingly have to vote in an atmosphere of coercion under the April 2020 amendments, because the April 2020 final rule requires regional directors to conduct elections in all cases where there are concurrent unfair labor practice charges and further requires the opening and counting of the ballots in the vast majority of such cases. Accordingly, when a rerun election is conducted after the charged party takes all the action required by the Board order or settlement agreement, the union will have to convince each employee who voted against it under coercive conditions to switch their vote, something the union normally would not have had to do under the blocking charge policy because the regional director would not have held an election until the unfair labor practice conduct was remedied. And, as the Board previously concluded in its 2014 rule, 79 FR 74418-74419, there is a substantial risk that the tainted election will compound the effects of the unfair labor practices, because employees who voted against union representation under the influence of the employer's coercion are unlikely to change their votes in the rerun election. See

NLRB

Savair Mfg. Co.,

414 U.S. 270, 277-78 (1973). The union will also have to convince employees that it is worth voting for the union—and to risk incurring the wrath of their employer—even though employees will know that the union already lost the earlier election, something the union normally would not have had to do under the blocking charge policy because the regional director would not have held an election until the unfair labor practice was remedied.

113

It certainly cannot be counted as a statutory success if a union chooses not to seek a rerun election after losing an election conducted under coercive conditions that interfered with employee free choice. Thus, we are inclined to believe, subject to comments, that it is the historical blocking charge policy, rather than the April 2020 amendments, that puts the unit employees in a position that more closely approximates what would have happened had no party committed unfair labor practices and best protects employee free choice.

113

We note that the April 2020 final rule implicitly conceded the validity of these concerns in two primary respects. First, the rule acknowledged that the harm employees will suffer by voting in an election that will later be set aside can be addressed “in some cases” by impounding the ballots. 85 FR 18378, 18380. Second, the rule apparently relied on a premise that the immediate opening and counting of the ballots in the vast majority of cases provides a disincentive for unions to file charges seeking to block the election because tallying the ballots reveals to employees that the union is acting against their wishes. 85 FR 18379-18390. Thus, under this premise, if the union has lost the election that was conducted despite the pendency of charges alleging coercive conduct, that circumstance will (or is at least very likely to) have a meaningful effect on employees' perception of the union.

We are also inclined to believe that the April 2020 final rule creates perverse incentives for employers to commit unfair labor practices. By requiring the Board to conduct elections in most cases where Type I or Type II unfair labor practice conduct has occurred, the final rule creates a perverse incentive for unscrupulous employers to commit unfair labor practices because the predictable results will be: (1) to force unions to expend resources in connection with elections that will not reflect the uninhibited desires of the employees; and (2) to create a sense among employees that seeking to exercise their section 7 rights is futile.

114

This possibility may well induce unions to forego the Board's electoral machinery in favor of recognitional picketing and other forms of economic pressure, thereby exacerbating industrial strife and

contravening the statutory policy favoring “eliminat[ing] the causes of certain substantial obstructions to the free flow of commerce.” 29 U.S.C. 151.

114

Indeed, it seems difficult, at least, to square the April 2020 final rule's requiring elections in

all

cases no matter the severity of the employer's unfair labor practices with the Supreme Court's approval in

Gissel

of the Board's practice of

withholding

an election and issuing a bargaining order when the employer has committed serious unfair labor practice conduct disruptive of the election machinery and where the Board concludes that “the possibility of erasing the effects of [the employer's] past [unfair labor] practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through [union authorization] cards would, on balance, be better protected by a bargaining order . . . .”

NLRB

Gissel Packing Co.,

395 U.S. 575, 591-592, 610-611, 614-615 (1969).

In sum, we are inclined to believe, subject to comments, that the Board's historical blocking charge policy better protects employee free choice than the April 2020 amendments. Accordingly, we propose to permit regional directors once again to

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