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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-16535

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 1, 2024
- **Citation:** 89 FR 62952

## Text

NATIONAL LABOR RELATIONS BOARD
29 CFR Part 103
RIN 3142-AA22
Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships

AGENCY:

National Labor Relations Board.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This rule is effective September 30, 2024.

FOR FURTHER INFORMATION CONTACT:

Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-2917 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Introduction & Overview of the Rulemaking

As set forth more fully below, on April 1, 2020, the Board made various amendments to its rules and regulations governing blocking charges, the voluntary-recognition bar doctrine, and proof of majority support for labor organizations representing employees in the construction industry. See
Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships,
85 FR 18366 (April 1, 2020) (“the April 2020 rule”).

First, the April 2020 rule substantially eliminated the Board's long-established blocking charge policy, under which regional directors had authority to delay processing election petitions in the face of pending unfair labor practice charges alleging conduct that would interfere with employee free choice in an election or conduct that is inherently inconsistent with the election petition itself. Under the April 2020 rule, regional directors generally were required for the first time since the Act was declared constitutional to conduct an election even when an unfair labor practice charge and blocking request had been filed. 85 FR 18370, 18375. Moreover, under the April 2020 rule, regional directors generally were further required to immediately open and count the ballots, except in a limited subset of cases where the ballots would be impounded for a maximum of 60 days (unless a complaint issues within 60 days of the election). 85 FR 18369-18370, 18376.
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1
However, as discussed more fully below, the April 2020 rule did not disturb the authority of regional directors to dismiss a representation petition, subject to reinstatement, under the Board's long-standing practice of “merit-determination dismissals.” See
Rieth-Riley Construction Co., Inc.,
371 NLRB No. 109 (2022).

Second, the April 2020 rule made changes to the voluntary-recognition bar doctrine, which encourages collective bargaining and promotes industrial stability by allowing a union—after being voluntarily and lawfully recognized by an employer—to represent employees for a certain period of time without being subject to challenge. The April 2020 rule abandoned
Lamons Gasket Co.,
357 NLRB 934 (2011), and returned to the approach taken previously by the Board in
Dana Corp.,
351 NLRB 434 (2007). Under the April 2020 rule, neither an employer's voluntary recognition of a union, nor the first collective-bargaining agreement executed by the parties after recognition, bars the processing of an election petition, unless: (1) the employer or the union notifies the Board's Regional Office that recognition has been granted; (2) the employer posts a notice “informing employees that recognition has been granted and that they have a right to file a petition during a 45-day `window period' beginning on the date the notice is posted”; (3) the employer distributes the notice electronically to employees, if electronic communication is customary; and (4) 45 days from the posting date pass without a properly supported election petition being filed. 85 FR 18370.

Third, the April 2020 rule made changes to the
Staunton Fuel & Material,
335 NLRB 717 (2001), doctrine, which defined the minimum requirements for what must be stated in a written recognition agreement or contract clause in order for it to serve as sufficient evidence that a union representing employees in the construction industry has attained 9(a) status, and overruled the Board's decision in
Casale Industries,
311 NLRB 951 (1993), providing that the Board would not entertain a claim that a union lacked 9(a) status when it was initially granted recognition by a construction employer if more than 6 months had elapsed. 85 FR 18369-18370, 18391.
2

2
Sec. 8(f) of the Act uses the term “engaged primarily in the building and construction industry.” 29 U.S.C. 158(f). Throughout this rule, for convenience, and without any intent to define or alter the accepted scope of the term, we use the shorthand “construction industry” and “construction employer.”

The April 2020 rule became effective on July 31, 2020. See
Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships,
85 FR 20156 (April 10, 2020) (delaying effective date from June 1, 2020 to July 31, 2020).

On November 4, 2022, the Board issued a Notice of Proposed Rulemaking proposing to rescind and replace the three amendments to its rules and regulations made by the April 2020 rule. See
Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships,
87 FR 66890 (November 4, 2022). The Board set an initial comment period of 60 days, with 14 additional days allotted for reply comments. 87 FR 66890. Thereafter the Board extended these deadlines by thirty days. See
Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships,
87 FR 73705 (December 1, 2022). The comments are summarized and addressed in detail below.

The effect of the instant final rule, which adopts the NPRM proposals with several modifications, discussed below, is to return the law in each of those areas to that which existed prior to the adoption of the April 2020 rule, including by rescinding and replacing the portions of the final rule that addressed the blocking charge policy and voluntary-recognition bar doctrine and rescinding the portion of the final rule that addressed proof of majority support for labor organizations representing employees in the construction industry. More

specifically, under the instant rule, regional directors once again have authority to delay an election when a party to the representation proceeding requests that its unfair labor practice charge block an election, provided the request is supported by an adequate offer of proof, the party agrees to promptly make its witnesses available, and no exception is applicable. The final rule restores the Board's prior applicable law regarding the blocking charge policy. For the sake of clarity, the final rule codifies the basic contours of the historical blocking charge policy, as well as the pre-April 2020 requirements contained in 29 CFR 103.20 in full.
3

The final rule rescinds current Section 103.21 and codifies the traditional voluntary-recognition bar, as refined in
Lamons Gasket
to define the reasonable period for collective bargaining that sets the duration of the bar. Lastly, the final rule rescinds current Section 103.22 in toto and returns to the Board's previously effective caselaw precedent, such as
Staunton Fuel
and
Casale Industries,
governing the application of the voluntary recognition bar and contract bar in the construction industry. After carefully considering the comments on the NPRM and the views of the April 2020 Board, we conclude that these changes to the April 2020 final rule will better protect employees' statutory right of free choice on questions concerning representation, further promote industrial stability, and more effectively encourage the practice and procedure of collective bargaining.
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3
Accordingly, the Board expects that the General Counsel will restore the provisions addressing blocking charges contained in the NLRB Casehandling Manual (Part Two), Representation Proceedings to those that existed prior to April 2020 rule.

4
The Board's intention is that the actions taken in this final rule be treated as separate and severable. In the Board's view, set forth more extensively below, the 2020 rule fails to fully promote the Act's policies. The Board's rescissions of the portions of the 2020 rule that address the blocking charge policy and the voluntary-recognition bar doctrine are intended to be independent of its promulgation of the final rule text addressing these subjects. If all or portions of the final rule text promulgated here were deemed invalid, the Board would nevertheless adhere to its decision to rescind the 2020 rule's provisions addressing the blocking charge policy and the voluntary-recognition bar doctrine. In that event, the Board's view is that the historical blocking charge policy, which was developed through adjudication, would again be applied and developed consistent with the precedent that was extant before the 2020 rule was promulgated, unless and until the policy were revised through adjudication. Likewise, the Board's view is that the voluntary-recognition bar would revert to a caselaw doctrine, reflected in the controlling decision that preceded the 2020 rule,
Lamons Gasket,
supra, 357 NLRB 934, insofar as permissible, subject to change through adjudication.

II. Substantive Background

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

As discussed more fully below, federal labor law recognizes that employees may seek representation for the purpose of bargaining collectively with their employer through either a Board election or by demonstrating majority support for representation. See,
e.g., United Mine Workers
v.
Arkansas Oak Flooring Co.,
351 U.S. 62, 72 fn. 8 (1956). Voluntary recognition predates the Act, and an employer's voluntary recognition of a majority union “remains `a favored element of national labor policy.' ”
NLRB
v.
Creative Food Design Ltd.,
852 F.2d 1295, 1299 (D.C. Cir. 1988) (citation omitted). An employer is free to voluntarily recognize a union as the designated majority representative of a unit of its employees without insisting on the union's proving its majority status in an election. And, “once the employer recognizes the Union . . . the employer is bound by that recognition and may no longer seek an election.” Id. at 1297 (citations omitted). Nevertheless, when employers, employees, and labor organizations are unable to agree on whether the employer should recognize (or continue to recognize) a labor organization as the representative of a unit of employees for purposes of collective bargaining, Section 9 of the Act gives the Board authority to determine if a “question of representation” exists and, if so, to resolve the question by conducting “an election by secret ballot.” 29 U.S.C. 159(c).

Because the Act calls for freedom of choice by employees as to whether to obtain, or retain, union representation, the Board has long recognized that “[i]n election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.”
General Shoe Corp.,
77 NLRB 124, 127 (1948). A Board-conducted election “can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative.” Id. at 126. Indeed, as the Supreme Court has recognized, it is the “duty of the Board . . . to establish `the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.' ”
NLRB
v.
Savair Mfg. Co.,
414 U.S. 270, 276 (1973) (emphasis added) (citation omitted). By definition, a critical part of protecting employee free choice is ensuring that employees are able to vote in an atmosphere free of coercion, so that the results of the election accurately reflect the employees' true desires concerning representation.
General Shoe Corp.,
77 NLRB at 126-127.

The Supreme Court has repeatedly recognized that “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.”
NLRB
v.
A.J. Tower Co.,
329 U.S. 324, 330 (1946). “The control of the election proceedings, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.”
NLRB
v.
Waterman Steamship Corp.,
309 U.S. 206, 226 (1940); see also
Southern S.S. Co.
v.
NLRB,
316 U.S. 31, 37 (1942).

Although the Act itself contains only one express limitation on the timing of elections,
5

the Board has instituted through adjudication several policies that affect the timing of elections in an effort to further other core goals of the Act. For example, the Board, with court approval, precludes electoral challenges to an incumbent union bargaining representative for the first 3 years of a collective-bargaining agreement (the

contract bar) in the interests of stabilizing existing bargaining relationships, notwithstanding that it delays employees' ability to choose not to be represented or to select a different representative. See
General Cable Corp.,
139 NLRB 1123, 1125 (1962); see also
Terrace Gardens Plaza, Inc.
v.
NLRB,
91 F.3d 222, 227-228 (D.C. Cir. 1996);
Leedom
v.
IBEW, Local Union No. 108, AFL-CIO,
278 F.2d 237, 242 (D.C. Cir. 1960) (noting that “Congress relied on the Board's expertise to harmonize the competing goals of industrial stability and employee freedom of choice to best achieve the ultimate purposes of the Act.”).
6

5
Sec. 9(c)(3) provides that “[n]o election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.” 29 U.S.C. 159(c)(3).

Election petitions filed by labor organizations seeking certification as the collective-bargaining representative of employees are classified as RC petitions. Decertification election petitions filed by an individual employee seeking to oust an incumbent collective-bargaining representative are classified as RD petitions. Petitions for elections filed by employers are classified as RM petitions. Petitions to deauthorize union-security provisions are classified as UD petitions.

6
See generally
Auciello Iron Works, Inc.
v.
NLRB,
517 U.S. 781, 785 (1996) (“The object of the National Labor Relations Act is industrial peace and stability, fostered by collective-bargaining agreements providing for the orderly resolution of labor disputes between workers and employees”).

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

A. Blocking Charge Policy

1. The Board's Historical Blocking Charge Policy; Its Rationale and Application

As the Board acknowledged in the notice of proposed rulemaking that culminated in the April 2020 rule, the blocking charge policy dates back to the early days of the Act. See
Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships,
84 FR 39930, 39931 (Aug. 12, 2019). See also
United States Coal & Coke Co.,
3 NLRB 398, 399 (1937). Indeed, prior to the April 2020 rule, and for more than eight decades, the Board had maintained a policy of generally declining to process an election petition over party objections in the face of pending unfair labor practice charges alleging conduct that, if proven, would interfere with employee free choice in an election, until the merits of those charges could be determined.
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7
See generally
The Developing Labor Law
561-563 (John E. Higgins, Jr., 5th edition 2006); 3d NLRB Ann. Rep. 143 (1938) (“The Board has often provided that an election be held at such time as the Board would thereafter direct in cases where the employer has been found to have engaged in unfair labor practices and the Board has felt that the election should be delayed until there has been sufficient compliance with the Board's order to dissipate the effects of the unfair labor practices and to permit an election uninfluenced by the employer's conduct. Similarly, where charges have been filed alleging that the employer has engaged in unfair labor practices, the Board has frequently postponed the election indefinitely pending the investigation and determination of the charges.”); 13th NLRB Ann. Rep. 34 & fn. 90 (1948) (“Unremedied unfair labor practices constituting coercion of employees are generally regarded by the Board as grounds for vacating an election[.] For this reason, the Board ordinarily declines to conduct an election if unfair labor practice charges are pending or if unfair labor practices previously found by the Board have not yet been remedied[.]”).

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

The rationale for the blocking charge policy was straightforward: it was “premised solely on the [Board's] intention to protect the free choice of employees in the election process.” NLRB Casehandling Manual (Part Two), Representation Proceedings Section 11730 (August 2007) (“Casehandling Manual (August 2007)”). “The Board's policy of holding the petition in abeyance in the face of pending unfair labor practices is designed to preserve the laboratory conditions that the Board requires for all elections and to ensure that a free and fair election can be held in an atmosphere free of any type of coercive behavior.”
Mark Burnett Productions,
349 NLRB 706, 706 (2007).

Prior to the effective date of the April 2020 rule, there were two broad categories of blocking charges. The first, called Type I charges, encompassed charges that alleged conduct that merely interferes with employee free choice. Casehandling Manual Section 11730.1 (August 2007). See also NLRB Casehandling Manual (Part Two), Representation Proceedings Section 11730.1 (January 2017) (“Casehandling Manual (January 2017)”). Examples of Type I charges included allegations of employer threats to retaliate against employees if they vote in favor of union representation or promises of benefits if employees vote against union representation. For many years, the blocking charge policy provided that if the charging party in a pending unfair labor practice case was also a party to a representation proceeding, and the charge alleged conduct that, if proven, would interfere with employee free choice in an election (a Type I charge), were one to be conducted, and no exception was applicable, the charge should be investigated and either dismissed or remedied before the petition was processed. Casehandling Manual Section 11730.2 (August 2007).
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8
As discussed below, under the Board's 2014 rule amending representation case procedures, for a Type I charge to block the processing of a petition required the charging party to both file a request to block accompanied by a sufficient offer of proof and to promptly make its witnesses available. Casehandling Manual Section 11730.2 (January 2017).

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

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

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

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).
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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).

9
For either Type I or II charges, parties had the right to request Board review of regional director determinations to hold petitions in abeyance or to dismiss the petitions altogether. See 29 CFR 102.71(b) (2011); Casehandling Manual Sections 11730.7, 11733.2(b) (August 2007).

However, the mere filing of an unfair labor practice charge did “not automatically cause a petition to be held in abeyance” under the blocking charge policy. Casehandling Manual Sections 11730, 11731 (August 2007). See also Casehandling Manual Sections 11730, 11731 (January 2017);
Veritas Health Services, Inc.
v.
NLRB,
895 F.3d 69, 88 (D.C. Cir. 2018) (noting that pending unfair labor practice charges do not necessarily preclude processing a representation petition). For example, the Board had long declined to hold a petition in abeyance if the pending unfair labor practice charge did not allege conduct that would interfere with employee free choice in an election. See,
e.g., Holt Bros.,
146 NLRB 383, 384 (1964) (rejecting party's request that its charge block an election because even if the charge in question were meritorious, it would not interfere with employee free choice in the election). The Board could also decline to block an immediate election despite a party's request that it do so when the surrounding circumstances suggested that the party was using the filing of charges as a tactic to delay an election without cause. See
Columbia Pictures Corp.,
81 NLRB 1313, 1314-1315 fn. 9 (1949).
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The Board also directed an immediate election, despite pending charges, in order to hold the election within 12 months of the beginning of an economic strike so as not to disenfranchise economic strikers,
American Metal Products Co.,
139 NLRB 601, 604-605 (1962), or in order to prevent harm caused to the economy by a strike resulting from an unresolved question of representation,
New York Shipping Assn.,
107 NLRB 364, 375-376 (1953). The Casehandling Manual set forth other circumstances in which regional directors could decline to block petitions. Casehandling Manual Section 11731 (August 2007).

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

After notice and comment, the Board adopted some 25 amendments to its representation-case procedures in a 2014 final rule, that, among other things, was designed to advance the public interests in free and fair elections and in the prompt resolution of questions concerning representation. See
Representation-Case Procedures,
79 FR 74308, 74308-74310, 74315, 74341, 74345, 74379, 74411 (December 15, 2014) (“the December 2014 rule”). As the Board acknowledged when adopting the April 2020 rule (85 FR at 18376-18377), the Board also made certain modifications to the blocking charge policy as a part of its December 2014 rule revising the Board's representation-case procedures. In particular, in response to allegations that at times incumbent unions may misuse the blocking charge policy by filing meritless charges to delay decertification elections, the Board imposed a requirement that, whenever any party sought to block the processing of an election petition, it must simultaneously file an offer of proof listing the names of witnesses who will testify in support of the charge and a summary of each witness' anticipated testimony and promptly make its witnesses available. 79 FR at 74419; 29 CFR 130.20. The December 2014 rule also provided that if the regional director determined that the party's offer of proof does not describe evidence of conduct that, if proven, would interfere with employee free choice in an election or would be inherently inconsistent with the petition itself, and thus would require that the processing of the petition be held in abeyance absent special circumstances, the regional director would continue to process the petition and conduct the election where appropriate. 79 FR at 74419; 29 CFR 103.20. The Board expressed the view that those amendments would protect employee free choice while helping to remove unnecessary barriers to the expeditious resolution of questions of representation by providing the regional director with the information necessary to assess whether the unfair labor practice charges have sufficient support and involve the kind of violations that warrant blocking an election, or whether the charges are filed simply for purposes of delay. 79 FR at 74419-74420.

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

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

The courts upheld the December 2014 rule. See
Associated Builders & Contractors of Texas, Inc.
v.
NLRB,
826 F.3d 215, 229 (5th Cir. 2016) (noting that the Board “conducted an exhaustive and lengthy review of the issues, evidence, and testimony, responded to contrary arguments, and offered factual and legal support for its final conclusions”);
Chamber of Commerce of the United States of America
v.
NLRB,
118 F. Supp. 3d 171, 220 (D.D.C. 2015) (“[T]he Board engaged in a comprehensive analysis of a multitude of issues relating to the need for and the propriety of the Final Rule, and it directly addressed the commenters' many concerns[.]”). See also
RadNet Mgmt., Inc.
v.
NLRB,
992 F.3d 1114, 1123 (D.C. Cir. 2021) (rejecting arbitrary-and-capricious challenge to 2014 final rule).

Accordingly, under the blocking charge policy as it existed prior to the

effective date of the April 2020 rule, a regional director could not block an election based on the request of a party who had filed an unfair labor practice charge if the party had not first (1) submitted an offer of proof describing evidence that, if proven, would interfere with employee free choice in an election were one to be conducted or conduct that would be inherently inconsistent with the petition itself, (2) listed its witnesses who would testify in support of the charge, and (3) agreed to promptly make its witnesses available. Casehandling Manual Section 11730 (January 2017). Even then, the regional director retained discretion to process the petition if an exception to the blocking charge policy applied. Casehandling Manual Sections 11730, 11730.2, 11730.3, 11730.4, 11731, 11731.1-11731.6 (January 2017).

3. The April 2020 Blocking Charge Amendments

In 2019, the Board issued a Notice of Proposed Rulemaking proposing, in relevant part, to substantially change the blocking charge policy. Under the proposed rule, whenever a party filed unfair labor practice charges that would have blocked processing of the petition under the prior doctrine, the Board would instead conduct the election and impound the ballots (absent dismissal of the representation petition, as noted above at fn. 1). See 84 FR 39930, 39937-39938. If the charge had not been resolved prior to the election, the NPRM proposed that the ballots would remain impounded until the Board made a final determination regarding the charge. 84 FR 39937. The NPRM acknowledged that the ballots would “never be counted” in cases where the Board made a final determination that the charge had merit and that the conduct warranted either dismissing the petition or holding a new election. 84 FR 39938.

The NPRM that led to the April 2020 final rule offered several justifications for the proposed amendments, including the arguments that the Board's historical blocking charge policy impeded employee free choice by delaying elections and that there is a potential for incumbent unions to abuse the blocking charge policy by deliberately filing nonmeritorious unfair labor practice charges in the hopes of delaying decertification elections. See,
e.g.,
84 FR 39931-39933, 39937. The majority prepared appendices and cited them in support of its claims. 84 FR 39933 & fns. 13-14, 39937.

Then-Member McFerran dissented from the 2019 NPRM's proposed changes to the blocking charge policy. In her view, the Board majority offered no valid reasons for substantially changing the blocking charge policy that Boards of differing perspectives had adhered to for more than eight decades. 84 FR 39939-39949. Noting that the majority had implicitly conceded that its proposed vote-and-impound procedure would require regional directors to run—and employees, unions, and employers to participate in—elections conducted under coercive conditions that interfere with employee free choice, the dissent argued that the proposed blocking charge amendments would undermine employee rights and the policies of the Act. 84 FR 39940, 39941, 39943, 39945, 39948, 39949. The dissent further argued that because the proposed amendments would require regional directors to run—and employees, unions, and employers to participate in—elections that would not resolve the question of representation, the proposed amendments would impose unnecessary costs on the parties and the Board. 84 FR 39941, 39945, 39948, 39949. The dissent also pointed out inaccuracies in the data relied on by the majority in support of its proposed changes to the blocking charge policy. 84 FR 39946 fn. 71, 39947 fn. 74.

Then-Member McFerran also prepared an appendix analyzing FY 2016-and FY 2017-filed RD, RC, and RM petitions that were blocked pursuant to the blocking charge policy. 84 FR 39943-39944 & fn. 63; available at
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, Section 1.” 84 FR 39944 & fn. 64 (explaining that in determining whether a petition was blocked by a meritorious charge, the dissent “applied the Office of the General Counsel's long-standing merit definition contained in OM 02-102, available at
https://www.nlrb.gov/guidance/memos-research/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/guidance/memos-research/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.” 84 FR 39945 fn. 69 (“Indeed, my review of the relevant data indicates that approximately 82 percent of the RM petitions filed during FY 2016 and FY 2017 were not blocked, leaving only about 18 percent (18 out of 99) of the RM petitions filed during FY 2016 and FY 2017 as blocked under the policy. See Dissent Appendix, [currently] available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/member-mcferran-dissent-appendix.pdf.
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, 39947 fn. 74.

The majority did not correct the errors before issuing the 2019 NPRM. 84 FR 39930-39939 & fn. 15.
11

11
After issuance of the NPRM, Bloomberg Law analyzed the data cited by the Board Majority in support of the 2019 NPRM and found that the Board Majority's empirical assertions were flawed. See Alex Ebert and Hassan A. Kanu, “Federal Labor Board Used Flawed Data to Back Union Election Rule,”
Bloomberg Law
(Dec. 5, 2019), available at
https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X1NF9E1C000000?bna_news_filter=daily-labor-report
(“[A] Bloomberg Law review of data supporting the rulemaking found dozens of cases in which the board overstated the length of delays attributable to blocking charges over the last three years—overshooting the mark in one instance by more than 12 years, and in another by five years.” Id. “The board's data overcounted delays in more than one-third of cases—55 in all—in which they said blocking charges were filed.”). After publication of the Bloomberg Law article, the Board still did not issue a new NPRM correcting the data.

As noted, on April 1, 2020, the Board issued a final rule substantially eliminating the blocking charge policy. 85 FR 18366.
12

The April 2020 rule differed from the 2019 NPRM. Unlike the 2019 NPRM, which had proposed a vote-and-impound procedure for all cases involving blocking charges until there was a final determination of the merits of the charge, the April 2020 rule adopted a vote and immediately count the ballots procedure for the vast majority of blocking charge cases (including all cases involving Type I blocking charges and some cases involving Type II blocking charges). 85 FR 18366, 18369-18370, 18374, 18399. The April 2020 rule also provided that notwithstanding a request to block based on a pending charge alleging certain specified types of Type II conduct, the Board will impound the ballots for no more than 60 days (unless a complaint issues on the Type II charge within the 60-day period, in which case the ballots will remain impounded pending a final determination by the Board). 85 FR 18369-18370, 18374, 18399. In short, under the April 2020 rule, a blocking charge request normally does not delay an election, and only rarer still delays the count of the ballots. 85 FR 18370, 18375, 18399. Nevertheless, the April 2020 rule “clarifie[d] that the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and a determination of its effect, if any, on the election petition.” 85 FR 18370.

12
Lauren McFerran was no longer serving on the Board when the final rule issued.

The Board adopted the amendments requiring the Board to refrain from delaying virtually all elections involving blocking charges essentially for the reasons contained in the 2019 NPRM. 85 FR 18375-18380, 18393. As for its decision to abandon the proposed vote-and-impound procedure and to substitute the requirement that ballots be immediately opened and counted in all cases involving Type I charges and a subset of Type II charges, the Board stated that it had concluded that it would be “preferable for ballots to be counted immediately after the conclusion of the election . . . with regard to most categories of unfair labor practice charges.” 85 FR 18380. The final rule agreed with a commenter that:

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

85 FR 18380.

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

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

85 FR 18380.

As for the errors in the NPRM pointed out by then-Member McFerran in her dissent to the 2019 NPRM and in the Bloomberg law article, supra fn. 11, the Board stated in the final rule:

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

85 FR 18377 (footnote omitted).

The April 2020 blocking charge amendments became effective on July 31, 2020. See 85 FR 20156.

B. The Voluntary-Recognition Bar

1. The Historical Development of the Voluntary-Recognition Bar

The NPRM carefully examined the historical development of the voluntary-recognition bar, culminating in the adoption of the April 2020 final rule and the Board's experience under that rule. 87 FR 66895-66898. We briefly summarize that discussion here.

Voluntary recognition of unions by employers, based on the union's majority support among employees, is firmly grounded in the provisions and policies of the National Labor Relations Act. The explicit policies of the Act, expressed in Section 1, are to “encourage[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of . . . designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.” 29 U.S.C. 151. The Act expressly endorses “practices fundamental to the
friendly adjustment
of industrial disputes arising out of differences as to wages, hours, or other working conditions.” Id. (emphasis added). Section 8(a)(5) of the Act accordingly requires an employer “to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).” 29 U.S.C. 158(a)(5). Section 9(a), in turn, refers to “[r]epresentatives

designated
or selected . . . by the majority of the employees” in an appropriate unit. 29 U.S.C. 159(a) (emphasis added). Finally, Section 9(c)(1)(A)(i) provides that employees seeking union representation may file an election petition with the Board if they allege “that their employer
declines to recognize
their representative.” 29 U.S.C. 159(c)(1)(A)(i) (emphasis added).

Thus, as the Supreme Court has observed, an employer may lawfully choose to recognize a union as the representative of its employees, based on a showing that a majority of employees have designated the union, as opposed to insisting on a Board-conducted representation election.
13

Once an employer voluntarily recognizes a majority-supported union, the union becomes the exclusive bargaining representative of employees, and the employer has a duty to bargain with it.
14

The Act does not impose any procedural restrictions on voluntary recognition beyond the requirement that the union have majority support.
15

Nor does the Act suggest in any way that a lawfully recognized union lacks the same full authority to represent workers as a Board-certified union. Both are the exclusive representative of employees with whom the employer must bargain.
16

13

NLRB
v.
Gissel Packing Co.,
395 U.S. 575, 595-597 (1969);
United Mine Workers,
351 U.S. at 72 fn. 8.

14
See,
e.g., Brown & Connolly, Inc.,
237 NLRB 271, 275 (1978), enfd. 593 F.2d 1373 (1st Cir. 1979).

15
If the union lacks majority support, measured by the number of employees in the bargaining unit, then the employer's voluntary recognition violates Sec. 8(a)(2) of the Act, which makes it an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”
International Ladies' Garment Workers' Union
v.
NLRB (Bernhard-Altmann),
366 U.S. 731, 733 fn. 2, 738 (1961). Notably, to be certified by the Board through an election, a union need only win a majority of
voting employees,
regardless of the size of the bargaining unit.
RCA Mfg. Co.,
2 NLRB 159, 177-178 (1936).

16
To be sure, a union that has been certified by the Board as the result of an election enjoys certain specific protections and privileges—related to protecting their representative status, including from challenges by rival unions—that are not extended to voluntarily recognized unions. Thus, Sec. 9(c)(3) of the Act, in providing that another Board election may not be held for twelve months after a valid election, effectively insulates a certified union from a rival's challenge for that period. In addition, the Act confers on certified unions: (1) protection against recognitional picketing by rival unions under Sec. 8(b)(4)(C); (2) the right to engage in certain secondary and recognitional activity under Sec. 8(b)(4)(B) and 7(A); and (3) in certain circumstances, a defense to allegations of unlawful jurisdictional picketing under Sec. 8(b)(4)(D).

No other provision of the Act treats certified unions and recognized unions differently, and certainly not with respect to their role as bona fide representatives of a bargaining unit. Reading into the Act any broader Congressional intent to treat recognized unions less favorably would be unwarranted. See
United Mine Workers,
supra, 351 U.S. at 73 (addressing statutory consequences of union's failure to comply with certain since-repealed requirements and observing that the “very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from noncompliance”).

In 1966, the Board instituted the voluntary-recognition bar doctrine, temporarily insulating a recognized union from challenge to its representative status for a reasonable period for collective bargaining and so protecting the newly formed bargaining relationship.
17

The principle that a rightfully established bargaining relationship must be given a “fair chance to succeed” before being tested had already been recognized by the Supreme Court,
18

which had also endorsed the Board's adoption of a certification bar, insulating a Board-certified union from challenge for one year.
19

The voluntary-recognition bar doctrine was modeled on existing bar doctrines protecting not only bargaining relationships established by Board certification of a union following an election, but also relationships established by a Board order in an unfair labor practice case or by an unfair labor practice settlement.
20

17

Keller Plastics Eastern, Inc.,
157 NLRB 583 (1966) (establishing voluntary-recognition bar for unfair labor practice cases);
Universal Gear Service Corp.,
157 NLRB 1169 (1966) (applying voluntary-recognition bar in unfair labor practice case), enfd. 394 F.2d 396 (6th Cir. 1968);
Sound Contractors Assn.,
162 NLRB 364 (1966) (establishing voluntary-recognition bar for representation cases).

18

Franks Bros. Co.
v.
NLRB,
321 U.S. 702, 705 (1944) (upholding bargaining order against employer, despite union's loss of majority support, and observing that “bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed”).

19

Brooks
v.
NLRB,
348 U.S. 96, 100 (1954) (upholding certification bar and endorsing principle that “[a] union should be given ample time for carrying out its mandate on behalf of its members, and should not be under exigent pressure to produce hot-house results or be turned out”).

20

Keller Plastics,
supra, 157 NLRB at 586-587. The
Keller Plastics
Board observed:

[L]ike situations involving certifications, Board orders, and settlement agreements, the parties must be afforded a reasonable time to bargain and to execute the contracts, resulting from such bargaining. Such negotiations can succeed, however, and the policies of the Act can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time.

Id. at 587.

The Board's voluntary-recognition bar doctrine became well established over the next 40 years.
21

It was upheld by every federal court of appeals presented with the issue on review, as reflected in decisions from the District of Columbia, Second, Third, Sixth, Seventh, and Ninth Circuits.
22

In 1988, for example, the Court of Appeals for the District of Columbia Circuit explained that whatever advantages an election may have to determine employee support for a union, “an employer's voluntary recognition of a majority union also remains `a favored element of national labor policy.' ”
23

21
For cases applying the voluntary-recognition bar during this period, see,
e.g., Universal Gear Service Corp.,
supra, 157 NLRB 1169;
Montgomery Ward & Co.,
162 NLRB 294 (1966), enfd. 399 F.2d 409 (7th Cir. 1968);
Blue Valley Machine & Mfg. Co.,
180 NLRB 298 (1969), enfd. in relevant part 436 F.2d 649 (8th Cir. 1971);
Broad Street Hospital & Medical Center,
182 NLRB 302 (1970), enfd. 452 F.2d 302 (3d Cir. 1971);
Timbalier Towing Co.,
208 NLRB 613 (1974);
Whitemarsh Nursing Center,
209 NLRB 873 (1974);
Rockwell International Corp.,
220 NLRB 1262 (1975);
Brown & Connolly, Inc.,
supra, 237 NLRB 271;
Ford Center for the Performing Arts,
328 NLRB 1 (1999);
MGM Grand Hotel, Inc.,
329 NLRB 464 (1999); and
Seattle Mariners,
335 NLRB 563 (2001).

22
See,
e.g., Exxel/Atmos, Inc.
v.
NLRB,
28 F.3d 1243, 1247-1248 (D.C. Cir. 1994);
NLRB
v.
Cayuga Crushed Stone, Inc.,
474 F.2d 1380, 1383-1384 (2d Cir. 1973);
NLRB
v.
Frick Co.,
423 F.2d 1327, 1332 (3d Cir. 1970);
NLRB
v.
San Clemente Publishing Corp.,
408 F.2d 367, 368 (9th Cir. 1969);
NLRB
v.
Montgomery Ward & Co.,
399 F.2d 409, 411-413 (7th Cir. 1968);
NLRB
v.
Universal Gear Service Corp.,
394 F.2d 396, 398 (6th Cir. 1968).

23

NLRB
v.
Creative Food Design Ltd.,
852 F.2d 1295, 1299 (D.C. Cir. 1988) (quoting
NLRB
v.
Broadmoor Lumber Co.,
578 F.2d 238, 241 (9th Cir. 1978)).

In 2007, however, the decision of a divided Board in
Dana Corp.,
supra, 351 NLRB 434, undercut the doctrine.
Dana
imposed new preconditions for application of the voluntary-recognition bar, introducing a notice-and-election procedure. Under that procedure, after voluntarily recognizing a union, employers were required to post a notice informing employees of their right to file a decertification-election petition, or to support a rival union's representation petition, within 45 days. A petition supported by at least 30 percent of bargaining-unit employees would be processed by the Board, leading to an election. In other words, no allegation or evidence that the recognized union lacked majority support, whether at the time it was recognized or thereafter, was required. Only if no election petition were filed within the 45-day period following the notice posting would the voluntary-recognition bar apply.

The
Dana
Board majority acknowledged that voluntary recognition was “undisputedly lawful” under the Act
24

and that “[s]everal courts of appeals ha[d] endorsed the [existing] recognition-bar doctrine.”
25

But it asserted that “[t]here is good reason to question whether [union-authorization] card signings [used to

demonstrate a union's majority support] accurately reflect employees' true choice concerning union representation.”
26

The
Dana
Board accordingly justified the new notice-and-election procedure by concluding that the “immediate post[-]recognition imposition of an election bar does not give sufficient weight to the protection of the statutory rights of affected employees to exercise their choice on collective bargaining representation through the preferred method of a Board-conducted election.”
27

24
351 NLRB at 436.

25
Id. at 441.

26
Id. at 439.

27
Id. at 434.

Four years later, in
Lamons Gasket,
decided in 2011, the Board reversed the
Dana
decision, abandoned its novel notice-and-election procedure, and reinstated the traditional voluntary-recognition bar with one significant modification. For the first time, the Board defined the reasonable period for bargaining that established the length of the voluntary-recognition bar. It fixed the period at no less than six months, but no more than one year, and incorporated the multifactor test used by the Board to determine the analogous period when an employer has been ordered to bargain with a union.
28

28
357 NLRB at 748 & fn. 34 (citing
Lee Lumber & Building Material Corp.,
334 NLRB 399 (2001), enfd.
310 F.3d 209 (D.C. Cir. 2002)
).

The
Lamons Gasket
Board carefully refuted the rationale of the
Dana
decision. It observed that, as demonstrated by the Act's provisions, Congress had endorsed the practice of voluntary recognition and had not subordinated it to the election process as a means for employees to exercise free choice concerning union representation.
29

It pointed to the Board's administrative experience under the
Dana
notice-and-election procedure, observing that experience refuted the
Dana
Board's skepticism that voluntarily recognized unions actually had majority support among employees: in only 1.2 percent of the cases in which a
Dana
notice was requested did employees ultimately decertify a voluntarily recognized union through an election.
30

It characterized the
Dana
notice-and-election procedure as inviting employees to reconsider their choice to be represented, which inappropriately suggested “that the Board considers their choice . . . suspect.”
31

It explained that the voluntary-recognition bar doctrine was consistent with the Board's other bar doctrines, all of which “share the same animating principle: that a newly created bargaining relationship should be given a reasonable chance to succeed before being subject to challenge.”
32

Finally, the
Lamons Gasket
Board pointed out that by creating a period of uncertainty about the union's representative status, the
Dana
notice-and-election procedure unnecessarily interfered with the bargaining process and made successful bargaining less likely.
33

29
Id. at 740-742.

30
Id. at 742.

31
Id. at 744.

32
Id. That principle was especially applicable in the case of bargaining relationships established voluntarily, the Board noted, because the Act not only explicitly promotes collective bargaining, but also encourages workplace cooperation, without government intervention, to avoid labor disputes. Id. at 746 (citing, inter alia,
H.K. Porter Co.
v.
NLRB,
397 U.S. 99, 103 (1970)) (“The object of th[e] Act was not to allow governmental regulation of the terms and conditions of employment, but rather to insure that employers and their employees could work together to establish mutually satisfactory conditions.”).

33
Id. at 747.

2. The April 2020 Amendments to the Voluntary-Recognition Bar

Lamons Gasket
remained Board law for nine years
34

until it was overruled by the Board's 2020 rule, which essentially reinstated and codified the
Dana
notice-and-election procedure as Section 103.21 of the Board's Rules and Regulations, 29 CFR 103.21. Under the 2020 rule, neither the employer's voluntary recognition of a union, nor the first collective-bargaining agreement executed by the parties after recognition, will bar the processing of an election petition, unless: (1) the employer or the union notifies the Board's Regional Office that recognition has been granted; (2) the employer posts a prescribed notice of recognition “informing employees that recognition has been granted and that they have a right to file a petition during a 45-day `window period' beginning on the date the notice is posted”; (3) the employer distributes the notice electronically to employees, if electronic communication is customary; and (4) 45 days from the posting date pass without a properly supported election petition being filed.

34
During that period, no judicial decision had cast doubt on
Lamons Gasket
or questioned the long-established, judicially approved voluntary-recognition bar.

The Board's justification for the 2020 rule adhered closely to the rationale of the
Dana
decision. The Board described elections as the statutorily preferred method for resolving questions concerning representation, citing Section 9(c)(3) of the Act (which prohibits a new election for the year following a valid election) and the specific statutory advantages granted only to Board-certified unions.
35

It noted that the Board did not supervise the recognition process and rejected the notion that the Act's unfair labor practice provisions were sufficient to address coercive conduct related to voluntary recognition.
36

Elections had the advantage of “present[ing] a clear picture of employee voter preference at a single moment,” the Board claimed. The reinstituted
Dana
notice-and-election procedure, the Board added, did not restrict or limit voluntary recognition or the bargaining obligations that follow from recognition. According to the Board, the new rule was also supported by the possibility that a recognized union would reach a collective-bargaining agreement during the bar period, triggering the separate, long-established contract-bar doctrine and extending the period during which the union's representative status could not be challenged.
37

These arguments, first advanced in
Dana,
had been persuasively addressed by the
Lamons Gasket
decision, which the 2020 rule overruled.

35
85 FR 18381.

36
Id.

37
Id.

In overruling
Lamons Gasket,
the 2020 rule Board acknowledged the administrative experience under the
Dana
notice-and-election procedure (only 4.65 percent of
Dana
notices resulted in election petitions, and employees decertified voluntarily recognized unions in only 1.2 percent of cases in which a
Dana
notice was requested), but rejected the view that the
Dana
procedure had been revealed as unnecessary.
38

Instead, the Board focused on the fact that when a
Dana
election
was
held, the union was decertified about one-quarter of the time, and declined to infer—from the more than 95 percent of
Dana
notice cases in which
no
election petition was filed—that voluntarily recognized unions typically have majority support.
39

There was no evidence, the Board observed in turn, that the
Dana
procedure had discouraged voluntary recognition or discouraged or delayed collective bargaining.
40

In the Board's view, the cost to recognized unions of diverting resources from bargaining to campaigning was outweighed by the benefit of permitting employees to vote in an election.
41

38
Id. at 18383.

39
Id.

40
Id. at 18384.

41
Id. at 18385.

3. The 2022 Proposed Rule

In the NPRM, the Board explained that it “propose[d] to rescind the current § 103.21 of the Board's Rules and

Regulations, providing for the processing of election petitions following voluntary recognition, and to replace it with a new rule that codifies the traditional voluntary-recognition bar as refined in
Lamons Gasket.
”
42

The Board stated its preliminary view that “restoring the voluntary-recognition bar, in its more traditional form . . . better serves the policies of the National Labor Relations Act, respecting—indeed, vindicating—employee free choice, while encouraging collective bargaining and preserving stability in labor relations.”
43

42
87 FR 66909. The proposed rule was limited to the representation-case context; the Board invited comment on whether the final rule should extend to unfair labor practices cases as well,
e.g.,
case where an employer is alleged to have violated Sec. 8(a)(5) by withdrawing recognition from a union, before a reasonable period for bargaining has elapsed. Id. The Board also specifically invited comment on whether it should adhere to the Board's decision in
Smith's Food,
supra, 320 NLRB 844, reaffirmed in
Lamons Gasket,
which governs situations in which a rival union files an election petition following the employer's voluntary recognition of another union. 87 FR 66910. Finally, the Board invited comment on the reasonable period for bargaining defined in the proposed rule and the effect of Sec. 103.21 on the collective-bargaining process. Id.

43
Id.

In explaining its preliminary support for rescission of the 2020 rule and codification of
Lamons Gasket,
the Board observed that experience under existing Section 103.21 “seems to show that voluntary recognition almost always reflects employee free choice accurately.”
44

If Section 103.21 were premised on suspicion of voluntary recognition, in turn, it would be “in obvious tension” with the Act itself and with the Supreme Court's
Gissel
decision, which permit lawful—and enforceable—bargaining relationships to be established without a Board election.
45

The Board noted, among other things, that: (1) several federal appellate courts had endorsed the voluntary-recognition bar, while none had rejected it; and (2) the 2020 Board had argued neither that the voluntary-recognition bar was irrational or inconsistent with the Act, nor that the current notice-and-election procedure was compelled by the Act.
46

The Board invoked the traditional, judicially-approved rationale for the recognition-bar doctrine: that, like other bar doctrines, it served to promote collective bargaining by protecting a bargaining relationship until it had a fair chance to succeed.
47

The Board expressed its initial view that the existing notice-and-election procedure “has a significant potential to interfere with effective collective bargaining” by subjecting a recognized union to challenges to its status as it sought to bargain or to administer a first collective-bargaining agreement.
48

44
Id.

45
Id. at 66910.

46
Id. at 66909-66910.

47
Id. at 66910. As noted previously, the Board specifically invited public comment on how the final rule should define a reasonable period for collective bargaining, establishing the duration of the voluntary-recognition bar. Id.

48
Id.

The Board also observed that the current rule permits such a challenge without evidence that the recognized union—which was required to show majority support in the bargaining-unit as a whole—had not been freely chosen and without a showing that it had since lost majority support in the unit.
49

Indeed, the union could lose its representative status based on an election decided by a majority of voting employees that might comprise a minority of unit employees.
50

That process thus tended to undermine, not promote, employee free choice, in the Board's preliminary view.
51

49
Id.

50
Id.

51
Id.

Finally, the Board addressed its experience under the notice-and-election procedure restored by Section 103.21. It expressed the preliminary view that this “experience provides no evidence that voluntary recognition is suspect” and thus that the current rule would seem to have a reasonable tendency both to “undermine employee free choice (as reflected in the lawful designation of the voluntarily recognized union) and to interfere with effective collective bargaining.”
52

Examining the relevant data, the Board suggested it showed “that the number of instances in which the notices have resulted in the filing of a petition or holding an election is vanishingly small—and the cases where the voluntarily recognized union was displaced to be almost nothing.”
53

This tentative conclusion, the Board observed, was entirely consistent with the relevant data developed under the original
Dana
notice-and-election procedure.
54

The Board explained why, in line with the
Lamons Gasket
decision, it was inclined to disagree with the 2020 Board's dismissal of the data under
Dana.
55

In any case, the Board observed, the “data offer no affirmative suggestion that voluntary recognition is suspect as a means of ascertaining employee choice.”
56

52
Id. at 66911. The Board “invite[d] commenters to submit additional empirical evidence to inform our views on this subject.” Id.

53
Id. The Board observed that “only 0.4 percent of cases (1 out of 260 included cases) resulted in a petition being filed, and 0.4 percent resulted in a union's loss of representative status.” Id. In the NPRM, the Board provided a quarter-by-quarter description of the administrative data from the inception of the 2020 rule through June 30, 2022. Id. at 66898. For this period, 260 requests for notices following voluntary recognition were filed with the Board. Id. In those cases, one election petition was subsequently filed, and no elections were held. In the one case where a petition was filed, the union disclaimed interest after its filing. Id. Thus, only 0.4 percent of recognition-notice requests resulted in election petitions and 0 percent of notices resulted in actual elections. If we count the union's disclaimer as equivalent to a decertification following an election loss, then employees opted not to retain the voluntarily recognized union in only 0.4 percent of the total cases in which recognition notices were requested. Id.

54
Id. at 66911.

55
Id. at 66911-66912.

56
Id. at 66912.

In the interest of transparency, we provide in quarterly detail the administrative data made available since the NPRM issued, which is consistent with prior data cited in the NPRM and in the
Lamons Gasket
decision.
57

We have placed this new data in the administrative record, but we do not rely on it as a basis for the final rule. We also provide a consolidated tally of all experience based on data practicably available from the inception of the 2020 rule until the issuance of this final rule.
58

57
Since the issuance of the NPRM, NLRB FOIA data has been migrated to a new website. The new location for the previously listed data from the NPRM is:
https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155,
under the following file names: 2024-NLFO-00812-VR Cases Received Calendar Year 2020.xlsx; 2024-NLFO-00812-VR Cases Received Calendar Year 2021.xlsx; 2024-NLFO-00812-VR Cases Received Calendar Year 2022.xlsx. Note that, although the files are organized by calendar year, the files include tabs that contain the quarterly (or other incrementation) data under which the data was analyzed in the NPRM.

58
The administrative data show as follows:

For the period from July 1, 2022, through September 30, 2022, administrative data shows 54 voluntary recognition notice requests in NLRB regions. None resulted in a petition being filed. However, in one case a petition was withdrawn under unknown circumstances.

For the period from October 1, 2022 through December 31, 2022, there were 52 notice requests. In two instances decertification petitions were filed. In one of these, the union disclaimed interest and in the other the union prevailed 14-8 in an election.

For the period from January 1, 2023 through March 31, 2023, there were 39 notice requests. In one instance a petition was dismissed and the notice pulled because of the union's lack of cards and in another the matter was closed because of the union's lack of cooperation.

For the period from April 1, 2023 through June 30, 2023, 92 notice requests occurred. In one case a decertification petition was dismissed for lack of a showing of interest. In another, the recognized union apparently stepped aside to allow another union to process its petition.

During the period from July 1, 2023 through September 30, 2023, there were 51 notice requests and no petitions filed. Two notice requests were

apparently withdrawn, but no additional detail was provided.

For the period from October 1, 2023 through December 31, 2023, the administrative data shows that 69 notices were requested and no petitions were filed.

For the period from January 1, 2024 through March 31 2024, the administrative data shows that 59 notices were requested and no petitions were filed.

We discount the three instances where the notice request was withdrawn and/or the notice matter was closed (given the lack of information as to why this occurred in each case), conservatively construe the disclaimer case and the case where the matter was closed because the union appeared to lack cards as cases where the notice posting resulted in a change in representative status, and count the cases of a union victory and a decertification petitioner's lack of sufficient signatures as cases where the notice posting failed to effect a change in status.

Thus, we have the following totals: 413 notice requests, possibly leading to a change in representative status in 2 cases,
i.e.,
less than one percent (0.5%), of the total number.

The data is publicly available at the following URL:
https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155,
under the following files (which, for 2022 and 2023, are internally organized by tabs corresponding to each calendar quarter): 2024-NLFO-00812-VR Cases Received Calendar Year 2022.xlsx; 2024-NLFO-00812-VR Cases Received Calendar Year 2023.xlsx; 2024-NLFO-01446-final-VR cases received 1-1-2024 thru 3-31-2024.xlsx.

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

1. The Board's Historical Treatment of 9(a) Recognition in the Construction Industry

As discussed in greater detail in the NPRM, in response to the unique characteristics of the construction industry, Congress amended the Act in 1959 to adopt Section 8(f), which provides a limited exception to the Act's Section 9(a) requirement that a union must have majority support among the employees in an appropriate unit to be recognized as the exclusive collective-bargaining representative. Section 8(f) permits a construction employer and a union to enter into a prehire agreement establishing the union as the exclusive collective-bargaining representative, even where the union does not have the support of a majority of the construction employer's employees under Section 9(a).

In the seminal case of
John Deklewa & Sons,
the Board set forth a framework for applying Section 8(f) to further the dual Congressional objectives that prompted its enactment: “attempt[ing] to lend stability to the construction industry while fully protecting employee free choice principles.” 282 NLRB 1375, 1388 (1987), enfd. sub nom.
Iron Workers Local 3
v.
NLRB,
843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).

As recounted in the NPRM, the
Deklewa
Board was mindful of a critical principle underlying Section 8(f): unions representing employees in the construction industry should not be treated less favorably than unions in other industries, including with regard to permitting a construction employer to be able to voluntarily recognize a union with majority support as its employees' 9(a) representative. Id. at 1387 fn. 53. Unions with majority support may choose to seek 9(a) recognition because, unlike where there is only an 8(f) relationship, it would allow them to enjoy the full panoply of rights and obligations available to unions serving as the exclusive collective-bargaining representative of employees in all other industries, including the irrebuttable presumption of majority support during the first three years of the contract and a rebuttable presumption of majority support at other times such as at the contract's expiration. Id. at 1385, 1387. Consequently, the Board in
Deklewa
adopted a rebuttable presumption that a collective-bargaining relationship in the construction industry is established under Section 8(f), but provided that a union asserting 9(a) status could rebut that presumption. Id. at 1385 fn. 41. For the 8(f) relationship to become a 9(a) relationship, a union—like unions representing employees in nonconstruction industries—must demonstrate a “clear showing of majority support” from the unit employees. Id. at 1385-1387 & fn. 53. Thus, both within the construction industry and outside it, establishing a bargaining relationship under Section 9(a) requires a proffered showing of majority support for the union.

Because Section 8(f) uniquely permits, in the construction industry, voluntary recognition in the absence of majority support, the Board has sought to avoid uncertainty over whether a grant of recognition is pursuant to Section 8(f) or 9(a) by requiring that 9(a) recognition in the construction industry be supported by positive evidence acknowledging a union's 9(a) status, such as agreed-upon language in a collective-bargaining agreement.
J & R Tile, Inc.,
291 NLRB 1034, 1036 (1988) (“[A]bsent a Board-conducted election, the Board will require positive evidence that the union sought and the employer extended recognition to a union as the 9(a) representative of its employees before concluding that the relationship between the parties is 9(a) and not 8(f).”); see also
Golden West Electric,
307 NLRB 1494, 1495 (1992) (finding positive evidence of a 9(a) relationship where the parties' voluntary recognition agreement unequivocally stated that the union claimed it represented a majority of employees and the employer acknowledged this was so, despite conflicting evidence as to whether the employer saw the union's authorization cards).

In
Staunton Fuel & Material, Inc.,
supra, the Board defined the minimum requirements for what must be stated in a written recognition agreement or a contract clause in a collective-bargaining agreement for it to suffice as evidence of a union having attained 9(a) status. 335 NLRB at 719-720. The Board in
Staunton Fuel,
following the approach of the Tenth Circuit, found that “[a] recognition agreement or contract provision will be independently sufficient to establish a union's 9(a) representation status where the language unequivocally indicates that (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 9(a) bargaining representative; and (3) the employer's recognition was based on the union's having shown, or having offered to show, evidence of its majority support.” Id. at 719-720 (citing
NLRB
v.
Triple C Maintenance, Inc.,
219 F.3d 1147, 1154 (10th Cir. 2000), and
NLRB
v.
Oklahoma Installation Co.,
219 F.3d 1160 (10th Cir. 2000)). Outside of the construction industry, where there is no 8(f) recognition, no similar evidentiary formality is needed for voluntary recognition because there is no need to distinguish presumptive 8(f) recognition from 9(a) majority recognition.

Significantly, the contract language attesting to a construction employer's 9(a) recognition of a union neither itself bestows 9(a) status nor substitutes for a union showing or offering to show evidence of its majority support. It does, however, provide a contemporaneous, written memorialization that a union had majority support at the time of the initial 9(a) recognition. Relying on the contract language is much preferable to trying to ascertain years in the future, should the union's 9(a) status later be challenged, whether the purported majority support had existed at the inception of the 9(a) relationship—in some cases many years before a dispute over a union's status has arisen—when evidence may no longer be easily available as witnesses and documents may disappear over time. Instead, the Board and the parties can look to the language adopted as a part of the parties' agreement to confirm that majority support existed when the 9(a) relationship was initially established.

Moreover, the Board in
Staunton Fuel
recognized that contract language can

only serve as evidence of a union's 9(a) status if it is true. Because contract language alone would not necessarily evidence a union's majority support where there are questions about its veracity, the Board in
Staunton Fuel
left open the possibility that an employer could challenge the union's majority support within the 10(b) period. Id. at 720 & fn. 14.
Staunton Fuel
did not alter the Board's longstanding practice of considering all available evidence bearing on the nature of the parties' bargaining relationship where the contract language alone is not conclusive of whether the parties intended to establish a 9(a) rather than an 8(f) relationship. Id. at 720 fn. 15.

As the District of Columbia Circuit has recognized, if other evidence casts doubt on the assertion that the union enjoyed majority support at the time the employer purportedly granted 9(a) recognition, the contract language necessarily fails to satisfy its intended purpose and cannot be relied upon to demonstrate 9(a) status. For instance, in
Nova Plumbing, Inc.
v.
NLRB,
the District of Columbia Circuit reasoned that language in a collective bargaining “cannot be dispositive at least where, as here, the record contains strong indications that the parties had only a section 8(f) relationship.” 330 F.3d 531, 537 (D.C. Cir. 2003). The court pointed to strong evidence in the record that contradicted the contract language. Id. at 533. Subsequently, in
M & M Backhoe Service, Inc.
v.
NLRB,
the District of Columbia Circuit distinguished
Nova Plumbing
to uphold language in the parties' agreement establishing that the union was the 9(a) representative where there was evidence that the union actually had majority support, even if the employer never requested to see it. 469 F.3d 1047, 1050 (D.C. Cir. 2006).

Six years after
M & M Backhoe,
in
Allied Mechanical Services, Inc.
v.
NLRB,
the District of Columbia Circuit quoted the
Nova Plumbing
court but, in doing so, added emphasis to specify that the contract language cannot be dispositive of a union's 9(a) status in situations where the record contains contrary evidence. 668 F.3d 758, 766 (2012). More recently, in
Colorado Fire Sprinkler, Inc.
v.
NLRB,
the District of Columbia Circuit rejected the union's claim of 9(a) recognition where the union relied solely on demonstrably false contract language stating that the employer had “confirmed that a clear majority” of the employees had designated it as their bargaining representative, even though not a single employee had been hired at the time the parties initially executed their agreement containing that language. 891 F.3d 1031, 1040-1041 (D.C. Cir. 2018). The court concluded that the Board had improperly “blink[ed] away record evidence undermining the credibility or meaningfulness of the recognition clauses” and “ma[de] demonstrably untrustworthy contractual language the be-all and end-all of Section 9(a) status.” Id. at 1041.

In
Enright Seeding, Inc.,
the Board noted that neither
Nova Plumbing
nor
Colorado Fire Sprinkler
involved situations where the court rejected the union's claim of 9(a) status based solely on contract language because in both cases other evidence existed calling into question the union's majority status. 371 NLRB No. 127, slip op. at 4 fn. 18 (2022). However, responding to both court decisions, the Board clarified that “contractual language can only serve as evidence of a union's 9(a) majority representation if it is true.” Id. at 5. “If other evidence casts doubt on the assertion that the union enjoyed majority support at the time the employer purportedly granted 9(a) recognition, then the contract language alone is insufficient to demonstrate the union's 9(a) status.” Id. at 3-4.

As the Board noted in the NPRM, where there has been unlawful 9(a) recognition of a minority union,
Staunton Fuel
does not change longstanding Board precedent that an employer—regardless of whether a construction employer or a nonconstruction employer—engages in “unlawful support.” See
Bernhard-Altmann,
366 U.S. at 738 (“The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of [Section 8(a)(2)], because the union so favored is given `a marked advantage over any other in securing the adherence of employees.' ”) (quoting
NLRB
v.
Pennsylvania Greyhound Lines,
303 U.S. 261, 267 (1938)). Even if done in good faith, an employer violates Section 8(a)(2) and (1) by extending 9(a) recognition to a union that does not enjoy majority support, and the union's acceptance of such recognition in these circumstances violates Section 8(b)(1)(A). See
Joseph Weinstein Electric Corp.,
152 NLRB 25, 39 (1965) (finding a construction employer's 9(a) recognition of and entering into an agreement with a union that does not enjoy majority support unlawful under Section 8(a)(2) and (1) and 8(b)(1)(A)).

Because an employer voluntarily recognizing a union and entering into a collective-bargaining agreement creates a contract bar of up to 3 years, no question of representation can be raised during that time. Thus, an employee or a rival union that seeks to challenge the propriety of the recognition generally cannot do so in a representation proceeding; rather, that allegation must be investigated and adjudicated in an unfair labor practice proceeding. If the Board finds that the employer entered into an agreement with a union that was a minority representative, the Board will remedy the violation by ordering the employer to cease recognizing the union and to repudiate the collective-bargaining agreement. See,
e.g., Bear Creek Construction Co.,
135 NLRB 1285, 1286-1287 (1962) (ordering a construction employer that provided unlawful assistance to a union in obtaining membership applications and checkoff authorization cards to cease and desist from recognizing the union as its employees' collective-bargaining representative and giving effect to the parties' agreement).

With this safeguard against employer and union collusion in place,
Staunton Fuel
promotes critical federal labor law policies, including protecting employee free choice while fostering stability in collective-bargaining relationships. It also prevents construction employers from evading their duties under bargaining relationships that they entered into voluntarily and challenging an initial grant of 9(a) recognition from years earlier, since evidence confirming the union's majority support may no longer be available. After all, memories fade and the witnesses and documents pertinent to the initial 9(a) recognition disappear over time. Thus,
Staunton Fuel
furthers the policies of the Act and those set forth in
Deklewa.

As recounted in the NPRM, six years after issuing
Deklewa,
the Board in
Casale Industries
fashioned a limitations period for challenging an initial grant of 9(a) recognition by relying on the same basic tenet from
Deklewa
discussed above—that unions representing construction-industry employees should be treated no less favorably than those representing nonconstruction-industry employees. The Board explicitly incorporated into the representation arena the teachings of the Supreme Court in
Local Lodge No. 1424, International Association of Machinists, AFL-CIO (Bryan Manufacturing Co.)
v.
NLRB,
362 U.S. 411, 419 (1960), barring a challenge to a union's majority support if more than 6 months had elapsed from when it was initially granted recognition. 311 NLRB 951, 953 (1993).

The Court in
Bryan Manufacturing
based its decision on not only the statutory language of Section 10(b) of the Act but also the practical need for a time restriction on anyone—employers, unions, and employees—

from challenging a union's initial recognition. 362 U.S. at 416-417. As the Court acknowledged, quoting the legislative history from the Congress that enacted it, the 6-month limitations period under Section 10(b) is essential “to bar litigation over past events `after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused,' . . . and of course to stabilize existing bargaining relationships.” Id. at 419.

The
Casale
Board concluded that the same interests acknowledged by the Court in
Bryan Manufacturing
should prevail in construction-industry representation cases: “[P]arties in nonconstruction industries, who have established and maintained a stable Section 9 relationship, are entitled to protection against a tardy attempt to disrupt their relationship. Parties in the construction industry are entitled to no less protection.” 311 NLRB at 953 (citing
Deklewa,
282 NLRB at 1387 fn. 53); see also
NLRB
v.
Triple A Fire Protection, Inc.,
136 F.3d 727, 737 (11th Cir. 1998), cert. denied 525 U.S. 1067 (1999).

2. The April 2020 Amendments to 9(a) Recognition in the Construction Industry

In the April 2020 rule, the Board adopted the proposed language from its August 12, 2019 NPRM to overrule
Staunton Fuel,
regarding the purported sufficiency of contract language alone to establish a 9(a) bargaining relationship. The April 2020 rule required, in the representation context, that parties retain additional positive evidence, beyond the parties' contract language, of the union's majority support at the time of its initial 9(a) recognition if they seek to rely on either the Board's voluntary recognition bar or contract bar in response to a challenge to the union's presumption of majority support. Moreover, under the April 2020 rule, a regional director must process a representation petition, even if a construction employer had provided unlawful assistance to a union by granting it 9(a) recognition despite the union's lack of majority support. The election would be held but, because of the unremedied unfair labor practices by the construction employer having granted and the union having accepted unlawful assistance, there would not be the laboratory conditions necessary to ascertain employees' uncoerced sentiments towards the union.

Moreover, even though the August 12, 2019 NPRM made no mention whatsoever of altering the bedrock principle from
Bryan Manufacturing,
reiterated in
Casale,
that a challenge cannot be made to a union's initial recognition by a construction employer after 6 months had elapsed, the Board's April 2020 rule stated in the preamble that it was overruling
Casale
“to the extent that it is inconsistent with the instant rule” and that “we overrule
Casale'
s holding that the Board will not entertain a claim that majority status was lacking at the time of recognition where a construction-industry employer extends 9(a) recognition to a union and 6 months elapse without a petition.” 85 FR 18391. The practical effect of the Board's unanticipated overruling of
Casale
in the April 2020 rule was to require a construction employer and a union to retain any and all evidence of the union's initial majority support indefinitely because—no matter how much time had passed—a party would never be time-barred from challenging the union's 9(a) status by asserting that the union lacked majority support when it was initially granted 9(a) recognition.

3. The 2022 Proposed Rule

In the Board's November 4, 2022 NPRM, the Board proposed to rescind Section 103.22 in toto and to have the Board's previously effective caselaw precedent, such as
Staunton Fuel, Casale,
and other cases pertaining to the application of the voluntary recognition bar and contract bar in the construction industry govern 9(a) recognition in the construction industry. The Board stated in the NPRM that it preliminarily believed that this change may be required because Section 103.22 is premised both on overruling
Casale
and on revoking the limitations period for challenging voluntary recognition in the construction industry, neither of which were disclosed anywhere in the August 12, 2019 NPRM as steps under consideration by the Board. In the absence of the required notice in the August 12, 2019 NPRM, stakeholders and members of the public had no reason to submit comments on these critical related issues. As a result, the Board expressed its concern in the November 4, 2022 NPRM that the lack of public notice—and therefore a lack of commentary—may have affected the Board's ultimate decision to enact Section 103.22, especially in light of Section 103.22's resultant imposition of an onerous and unreasonable recordkeeping requirement on construction employers and unions.

III. Procedural Background

A. Pending Litigation Challenging the April 2020 Rule

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

On August 11, 2020, the NLRB filed a motion to transfer
AFL-CIO II
to the United States Court of Appeals for the District of Columbia Circuit, arguing that the district court lacked subject-matter jurisdiction. The AFL-CIO opposed the transfer. The NLRB previously advanced similar threshold jurisdictional arguments in
AFL-CIO
v.
NLRB
(“
AFL-CIO I
”) (D.D.C. Case No. 20-cv-675 (KBJ)), which, at the time, was pending decision by the District of Columbia Circuit in another case (Case No. 20-5223), concerning changes to the Board's representation case procedures that the Board promulgated on December 18, 2019. On October 23, 2020, the district court in
AFL-CIO II
ordered a temporary stay pending resolution of the parties' cross-appeals of
AFL-CIO I,
where the same jurisdictional issue would be decided. On January 17, 2023, the D.C. Circuit rejected the argument that district courts lack subject-matter jurisdiction over challenges to Board rules that are exclusively concerned with representation elections.
AFL-CIO
v.
NLRB,
57 F.4th 1023, 1027, 1032-1034 (D.C. Cir. 2023). On January 31, 2023, pursuant to the parties' joint motion,
AFL-CIO II
was further stayed. Within 14 days of the issuance of the final rule or by September 28, 2023 (whichever occurs sooner), the parties were required to file a joint status report advising whether any disputes remain. On September 26, 2023, the parties jointly moved for a further stay of the litigation through March 31, 2024. Following the parties' April 1, 2024 joint status report, on April 18, 2024, United States District Judge Beryl A. Howell extended the stay of the litigation until fourteen days after issuance of this final rule, or until October 14, 2024, whichever occurs sooner.

B. Rulemaking Petitions Seeking Rescission of the April 2020 Rule

Meanwhile, on November 16, 2021, the AFL-CIO and North America's Building Trades Unions (“NABTU”)

filed a joint petition for rulemaking (“2021 petition”) requesting that the Board rescind each of the amendments made in the April 1, 2020 final rule. The 2021 petition urged the Board to: (1) rescind Section 103.20, arguing that the Board violated the Administrative Procedure Act in two respects (by presenting erroneous data in the NPRM and failing to correct those errors in the final rule, and by adopting a final rule that was not a logical outgrowth of the proposed rule) and additionally arguing, as a policy matter, that the changes to the blocking charge policy were ill-conceived; (2) rescind Section 103.21, alleging that the Board had violated the Administrative Procedure Act by failing to respond to the AFL-CIO's comment that the rule violated the Board's duty of neutrality with respect to employees' choice concerning union representation; and (3) rescind Section 103.22, because the NPRM had not proposed overruling
Casale
and did not advise the public that it was contemplating overruling
Casale
and thus failed to provide the public with an opportunity to be heard on such a fundamental modification to collective-bargaining relationships in the construction industry.

On April 7, 2022, UNITE HERE International Union (“UNITE HERE”) filed a petition (“2022 petition”) for rulemaking specifically requesting the Board to rescind Section 103.21 of the April 2020 rule, which allows the Board to process decertification petitions received within 45 days of an employer's voluntary recognition of a union as its employees' exclusive bargaining representative. UNITE HERE's 2022 petition also expressed its support for the 2021 rulemaking petition filed by AFL-CIO and NABTU regarding the other amendments contained in the April 2020 rule.

C. The Notice of Proposed Rulemaking

As noted, on November 4, 2022, the Board issued a Notice of Proposed Rulemaking proposing to rescind the three amendments to its rules and regulations made by the April 2020 rule and to replace two of the amendments with different regulatory language. See
Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships,
87 FR 66890 (November 4, 2022). The NPRM set forth the Board's preliminary view that the Board's historical blocking charge policy, as amended by the December 2014 rule, better serves the Act's policies than the April 2020 blocking charge amendments, and therefore proposed to rescind the April 2020 blocking charge amendments and return to the pre-April 2020 blocking charge policy regulatory language. 87 FR 66891, 66902-66909. The NPRM also set forth the Board's preliminary view that the voluntary-recognition bar as articulated in
Lamons Gasket
better serves the policies of the National Labor Relations Act than did the April 2020 rule, and therefore proposed to rescind the April 2020 amendments governing the filing and processing of petitions for a Board-conducted representation election following an employer's voluntary recognition of a union as the majority-supported collective-bargaining representative of the employer's employees, and to codify pre-April 2020 rule case law in this area. 87 FR 66890-66891, 66909-66912. The NPRM also set forth the Board's preliminary view that rescission of Section 103.22 of the April 2020 rule governing Section 9(a) recognition in the construction industry was required because that section was premised on overruling
Casale,
but revoking the limitations period for challenging voluntary recognition in the construction industry was not mentioned anywhere in the 2019 NPRM as being under consideration by the Board, and because the previously effective case law would better serve the policies of the Act. 87 FR 66891, 66912-66914. The NPRM proposed that the previously effective case-law precedent would govern Section 9(a) recognition in the construction industry, such as
Staunton Fuel, Casale,
and other cases pertaining to the application of the voluntary-recognition and contract bars. 87 FR 66912.

After carefully considering the comments, which are summarized and addressed in detail below, as well as the views expressed by the April 2020 Board, we have decided, for the reasons set forth below, to rescind the 2020 amendments and to adopt the proposed amendments to the blocking charge policy and voluntary-recognition bar doctrine regulatory language, with certain modifications described further below.

IV. Statutory Authority To Engage In This Rulemaking

Section 6 of the NLRA, 29 U.S.C. 156, provides that “[t]he Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by subchapter II of chapter 5 of Title 5 [the Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this [Act].”
59

These provisions include Sections 1, 7, 8, and 9 of the Act, 29 U.S.C. 151, 157, 158, and 159, respectively discussed in relevant part in Section II.A., B., and C., above. The amendments made by the instant rule implicate these provisions of the Act, and Section 6 grants the Board the authority to promulgate rules that carry out those provisions. In addition, Section 9(c), 29 U.S.C. 159(c)(1), specifically contemplates rules governing representation-case procedures, stating that elections will be held “in accordance with such regulations as may be prescribed by the Board.” The Supreme Court unanimously held in
American Hospital Association
v.
NLRB,
499 U.S. 606, 609-610 (1991), that the Act authorizes the Board to adopt both substantive and procedural rules governing representation-case proceedings. The Board interprets Sections 6 and 9 as authorizing the instant rulemaking proceeding.

59
Sec. 6 of the Act refers to the Board's authority to “rescind” rules, while Sec. 553 of the Administrative Procedure Act refers to the “repeal” of rules. See also 5 U.S.C. 551(5) (“ `[R]ule making' means agency process for formulating, amending, or repealing a rule”). For purposes of the instant rule, we treat these terms as interchangeable.

V. The Amendments in This Rulemaking

A. Rescission of the April 1, 2020 Blocking Charge Amendments and Return to Pre-April 2020 Blocking Charge Policy

1. Comment Overview

The Board received a number of comments from interested organizations, a member of Congress, labor unions, and individuals regarding its proposal to rescind the changes made by the April 2020 rule to the Board's blocking charge policy. We have also considered the views of our dissenting colleague.

Comments in favor of the proposed rule make both process-oriented and substantive arguments. Some commenters argue that the Board should rescind the April 2020 rule because of its serious procedural flaws. They cite, inter alia, the April 2020 Board's failure to correct the faulty data contained in the 2019 NPRM that led to the April 2020 rule and the April 2020 rule's adoption of amendments that were not a logical outgrowth of the NPRM, both of which commenters claim impaired the integrity of the rulemaking process (and the public's ability to intelligently evaluate and comment on the proposed rule), and rendered the final rule arbitrary and capricious.
60

At least one

comment points out that the April 2020 Board's failure to correct the faulty data contained in its NPRM has infected this rulemaking because commenters on the instant NPRM continue to rely on that faulty data.
61

The same commenter also charges that the April 2020 Board failed to respond to substantive well-supported comments.
62

60
See,
e.g.,
comments of The American Federation of Labor & Congress of Industrial Organizations (“AFL-CIO”) and North America's

Building Trades Unions (“NABTU”) (collectively “AFL-CIO/NABTU”); AFL-CIO/NABTU reply comments; National Nurses United (“NNU”); International Union of Operating Engineers (“IUOE”); Service Employees International Union (“SEIU”).

61
See reply comments of AFL-CIO/NABTU.

62
See comments of AFL-CIO/NABTU.

As for the substance, many comments in favor of the proposed rule argue that returning to the Board's historical blocking charge policy, as amended by the December 2014 rule, is appropriate because it better protects employee free choice by enabling regional directors to shield employees from having to vote under coercive conditions.
63

Commenters claim that the April 2020 rule constitutes “a betrayal” of the Board's statutory responsibility to ensure free and fair elections and “an abdication” of the Board's responsibility to preserve laboratory conditions because the April 2020 Rule requires regional directors to conduct elections under coercive conditions.
64

Some commenters relatedly argue that the April 2020 rule must be rescinded because it allows for such absurd results as requiring the Board to conduct an election notwithstanding overwhelming evidence of egregious unfair labor practices that would necessitate setting aside any election that was held, and which can lead to petitioners withdrawing their petitions.
65

63
See comments of American Federation of State, County and Municipal Employees (“AFSCME”); AFL-CIO/NABTU; General Counsel Jennifer A. Abruzzo (“GC Abruzzo”); Brotherhood of Railroad Signalmen (“Railroad Signalmen”); Center for American Progress (“CAP”); Economic Policy Institute (“EPI”); NNU; joint comment filed by the Los Angeles County Federation of Labor, AFL-CIO, International Brotherhood of Teamsters Locals 848, 572, 396, and 63 and UNITE HERE Local 11 (collectively the “LA Federation”); SEIU; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (“UA”); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC (“USW”).

64
See comments of EPI; LA Federation; NNU; SEIU.

65
See comments of SEIU; AFL-CIO/NABTU; LA Federation.

Some commenters also argue that the April 2020 rule wastes governmental and party resources by requiring regional directors to conduct, and the parties and employees to participate in, elections that will be set aside on account of the coercive conditions, and that holding an election under those coercive circumstances further taints any rerun election.
66

At least one comment notes that the blocking charge policy was publicly endorsed by the Agency's regional directors, the Board officials who are charged with administering the policy in the first instance.
67

66
See comments of AFL-CIO/NABTU (initial and reply); AFSCME; EPI; GC Abruzzo; LA Federation; NNU; SEIU; UA; USW. In the view of these commenters, simply holding a rerun election does not fully and completely remedy the holding of an election in which employees were forced to cast their votes on the question concerning representation in an atmosphere of coercion. The commenters explain that this is so because there is a substantial risk that the tainted election will compound the effects of the unfair labor practices: an employee who voted against union representation under the influence of the employer's unlawful conduct is unlikely to reconsider the issue and change their vote in the rerun election. Commenters such as UA support this by citing academic research finding that decisionmakers “who have expressly committed to a position on an issue are often reluctant to change that position when asked to make that decision again,” a phenomenon known as status quo bias. Moreover, according to the AFL-CIO/NABTU, which agrees that it is psychologically difficult for employees to change their votes even if the ballots are impounded, “[t]he tainted votes that the 2020 Rules require regional directors to conduct affect a second election . . . all the more so when the ballots are opened and counted” as they are in the vast majority of cases under the April 2020 rule. The AFL-CIO/NABTU comment points to studies showing the impact (on voter turnout and choice) of disclosing early returns and exit poll results while the polls remain open in political elections. NNU claims that this taints future rerun elections by inaccurately depicting the bargaining unit's support for the union and which can deter employees from choosing to vote in a rerun election.

67
See comments of GC Abruzzo.

Many commenters in favor of the proposed rule also argue that the April 2020 Board failed to demonstrate a need or reasoned basis for its amendments. For example, some comments note that the April 2020 Board mischaracterized the blocking charge policy by suggesting that unfair labor practice charges automatically blocked elections.
68

Commenters further note that the December 2014 rule adopted certain provisions that enable regional directors to swiftly dispose of nonmeritorious blocking requests that could delay elections, and that, as the April 2020 Board acknowledged, the number of blocked elections declined after the December 2014 rule went into effect.
69

68
See comments of AFL-CIO/NABTU; SEIU.

69
See comments of AFL-CIO/NABTU; AFSCME; GC Abruzzo; LA Federation; SEIU; UA.

Commenters further note that the April 2020 Board did not deny that the majority of decertification petitions—as well as the majority of employer-filed RM petitions and initial organizing RC petitions—are never blocked and that the merit rate for blocking charges was substantially higher than the merit rate for unfair labor practice charges generally.
70

They also point out that the filing of meritorious blocking charges by definition provides no support for the April 2020 Board's decision to substantially eliminate the blocking charge policy.
71

And some comments argue that “the 2020 majority made no effort whatsoever to separate well-founded blocking charges from baseless blocking charges or, in other words, merited delay from unmerited delay.”
72

In fact, commenters further claim that the April 2020 Board failed to substantiate its repeated claim that unions knowingly file meritless charges to delay their ouster in the decertification context.
73

Some commenters argue that the April 2020 Board's concern—that the blocking charge policy robs the election petition of momentum by depriving employees of a prompt election—ignores that the momentum may be the product of unfair labor practices.
74

These commenters further argue that concerns about a petition's momentum cannot justify the April 2020 Board's decision to eliminate the ability of regional directors to delay elections in the initial organizing context, because petitioners may obtain a prompt election if they so desire under the blocking charge policy notwithstanding their filing of unfair labor practice charges.
75

70
See comments of AFL-CIO/NABTU; GC Abruzzo; LA Federation; SEIU.

71
See AFL-CIO/NABTU; LA Federation; SEIU.

72
Comments of AFL-CIO/NABTU. See also comments of SEIU.

73
See comments of AFL-CIO/NABTU; SEIU.

74
See comments of AFL-CIO/NABTU; GC Abruzzo; NNU; SEIU.

75
See id.

Commenters in favor of the NPRM also argue that, although the April 2020 rule results in elections taking place sooner, the April 2020 rule does not necessarily expedite the effectuation of employees' choice. They note that the April 2020 rule expressly provides that the certification of the results of the election is delayed until the merits of the charge are determined. Accordingly, in their view, the April 2020 rule simply shifts the adjudication of unfair labor practices from before the election until after the election.
76

At least one commenter relatedly argues that the April 2020 rule ignores the frustration that employees feel in not having their votes effectuated until the merits of the charge are determined. This commenter claims that the blocking charge policy makes it more likely that the election that is held will in fact count, by

enabling regional directors to delay elections until the merits of a pending charge alleging misconduct are determined.
77

76
See comments of AFL-CIO/NABTU; LA Federation; USW.

77
See comments of USW.

Still other commenters argue that the April 2020 rule's requirement that the Board conduct elections in virtually all cases does not comport with the Supreme Court's holding in
Gissel
and makes it harder to obtain a remedial bargaining order, particularly in the context of Section 10(j) litigation.
78

78
See comments of GC Abruzzo; NNU.

On the other hand, both our dissenting colleague and commenters opposed to the proposed rule urge the Board to adhere to the April 2020 rule's blocking charge provisions. Because the pre-April 2020 blocking charge policy delayed elections, commenters claim that the policy interferes with employees' Section 7 rights and/or is antidemocratic and interferes with employees' constitutional rights of free assembly and association.
79

Some commenters also claim the blocking charge policy is racist,
80

can impose a collective-bargaining representative on employees without the employees having the chance to vote for representation in the first place,
81

and infringes on workers' alleged “statutory right to hold decertification elections at any time outside of 12 months following a previous NLRB-supervised election.”
82

Other commenters claim that by denying employees a prompt vote, the policy unfairly punishes employees for the misconduct of their employer and ignores their desires.
83

Commenters additionally argue that the blocking charge policy not only makes it harder for employees to leave a union but forces them to pay dues to the union they wish to decertify after the collective-bargaining agreement expires.
84

At least one commenter argues that because the workforce can turn over during the period of time while the merits of the blocking charge are being determined, the blocking charge policy can disenfranchise employees and undermine the goal of confining the pool of eventual voters to those employed at the time the question concerning representation arises.
85

Our dissenting colleague also advances a similar argument.

79
See,
e.g.,
comments of Associated Builders and Contractors (“ABC”); Virginia Foxx, Chairwoman, Committee on Education and the Workforce (“Chairwoman Foxx”); U.S. Chamber of Commerce (“Chamber”); the Coalition for a Democratic Workplace (“CDW”); HR Policy Association (“HRPA”); National Right to Work Legal Defense Foundation (“NRTWLDF”); Marvin Graham (“Graham”); Rachel Greszler (“Greszler”); John Weber (“Weber”); Julius Scaccia (“Scaccia”); David L. Chaump (“Chaump”); Trent Bryden (“Bryden”); Jennifer Christiano (“Christiano”); Clark Coleman (“Coleman”); William Fedewa (“Fedewa”); Pierre Giani (“Giani”); Sam Gompers (“Gompers”); Leonard Mead (“Mead”); Kenneth Morris (“Morris”); Anonymous 143; Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76. Scaccia appears to suggest that that the Board should outline a specific time frame for elections similar to the regular election cycles in the political arena.

80
See comments of Bryden.

81
See,
e.g.,
comments of Chaump.

82
See,
e.g.,
comments of Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76; Paul Andrews; Kenneth Bailey; Donald Barefoot; Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth Chase; John Churchill; Marvin Graham; Annette Craig; Julie D'Alessandro; Richard Damico; Daniel De La O; John-G Donovan; Edward Farrow; William Fedewa; R.E. Fox; John Gaither; Rachel Hughes; Gary Kirkland; Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner; George Zolnoski.

83
See,
e.g.,
comments of ABC; NRTWLDF; Anonymous 143; Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76; Paul Andrews; Kenneth Bailey; Donald Barefoot; Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth Chase; John Churchill; Graham; Annette Craig; Julie D'Alessandro; Richard Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E. Fox; John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland; Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner; George Zolnoski.

Our dissenting colleague makes a slightly different version of this argument, contending that “a prompt opportunity for employees to vote in a Board election
itself
safeguards employee free choice.”

84
See comments of Chairwoman Foxx; Chamber; NRTWLDF; Scaccia.

85
See,
e.g.,
comments of CDW.

Some commenters go so far as to suggest that the blocking charge policy can disenfranchise the entire unit by preventing unit employees from
ever
exercising their right to vote against union representation.
86

Some commenters, along with our dissenting colleague, further argue that the policy disenfranchises employees based on a mere administrative determination made by a regional director, rather than by the Board itself following an unfair labor practice hearing, and that regional director practice varied widely resulting in substantial inconsistency in application of the blocking charge policy.
87

86
See comments of CDW; HRPA; NRTWLDF.

87
See,
e.g.,
comments of CDW; HRPA. On the other hand, the NRTWLDF comments suggest that there was no variation; in its experience, regional directors invariably and automatically blocked elections immediately upon the filing of
any
union-filed unfair labor practice charge. See comments of NRTWLDF.

Commenters offer additional arguments against returning to the pre-April 2020 blocking charge policy, including claims that it rendered illusory the ability of employers to file RM petitions, that it unjustifiably treated decertification petitioners worse than petitioning unions in an initial organizing context by only allowing unions to proceed to an election, and that the April 2020 rule better accords with Section 8(a)(2), which forbids an employer to grant recognition as an exclusive bargaining representative to a union that represents a minority of bargaining-unit employees.
88

Both our dissenting colleague and some commenters additionally argue that judicial criticism of the blocking charge policy counsels against returning to it.
89

88
See comments of CDW; NRTWLDF reply comments; Paul Andrews; Anonymous 143; Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76; Kenneth Bailey; Donald Barefoot; Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth Chase; John Churchill; Marvin Graham; Annette Craig; Julie D'Alessandro; Richard Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E. Fox; John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland; Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner; George Zolnoski.

Our dissenting colleague also takes the view that the historical blocking charge policy rendered the RM petition safe harbor under
Levitz
illusory and that it treated decertification petitioners less favorably than unions in an initial organizing context

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-16535. Public record. Not legal advice.