# 84 FR 39930: Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-17105

## Section

- **Citation:** 84 FR 39930
- **Heading:** Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 84 / 84 FR 39930

## Text

NATIONAL LABOR RELATIONS BOARD 29 CFR Part 103 RIN 3142-AA16 Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships AGENCY:
National Labor Relations Board

ACTION:
Notice of proposed rulemaking; request for comments.

SUMMARY:
As part of its ongoing efforts to more effectively administer the National Labor Relations Act (the Act or the NLRA) and to further the purposes of the Act, the National Labor Relations Board (the Board) proposes to amend its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election while unfair labor practice charges are pending or following an employer's voluntary recognition of a union as the majority-supported collective-bargaining representative of the employer's employees. The Board also proposes an amendment redefining the evidence required to prove that an employer and labor organization in the construction industry have established a voluntary majority-supported collective-bargaining relationship. The Board believes, subject to comments, that the proposed amendments will better protect employees' statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a Board-conducted secret ballot election.

DATES:
Comments regarding this proposed rule must be received by the Board on or before October 11, 2019. Comments replying to comments submitted during the initial comment period must be received by the Board on or before October 25, 2019. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted.

ADDRESSES:

Internet—Federal eRulemaking Portal. Electronic comments may be submitted through http://www.regulations.gov
11, 2019. Comments replying to comments submitted during the initial comment period must be received by the Board on or before October 25, 2019. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted.

ADDRESSES:

Internet—Federal eRulemaking Portal. Electronic comments may be submitted through http://www.regulations.gov.
Delivery—Comments should be sent by mail or hand delivery to: Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. Because of security precautions, the Board continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. The Board encourages electronic filing. It is not necessary to send comments if they have been filed electronically with regulations.gov . If you send comments, the Board recommends that you confirm receipt of your delivered comments by contacting (202) 273-1940 (this is not a toll-free number). Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD).
Only comments submitted through http://www.regulations.gov, hand delivered, or mailed will be accepted; ex parte communications received by the Board will be made part of the rulemaking record and will be treated as comments only insofar as appropriate. Comments will be available for public inspection at http://www.regulations.gov and during normal business hours (8:30 a.m. to 5 p.m. EST) at the above address.
The Board will post, as soon as practicable, all comments received on http://www.regulations.gov without making any changes to the comments, including any personal information provided. The website http://www.regulations.gov is the Federal eRulemaking portal, and all comments posted there are available and accessible to the public. The Board requests that comments include full citations or internet links to any authority relied upon
ticable, all comments received on http://www.regulations.gov without making any changes to the comments, including any personal information provided. The website http://www.regulations.gov is the Federal eRulemaking portal, and all comments posted there are available and accessible to the public. The Board requests that comments include full citations or internet links to any authority relied upon. The Board cautions commenters not to include personal information such as Social Security numbers, personal addresses, telephone numbers, and email addresses in their comments, as such submitted information will become viewable by the public via the http://www.regulations.gov website. It is the commenter's responsibility to safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's email address unless the commenter chooses to include that information as part of his or her comment.
FOR FURTHER INFORMATION CONTACT:
Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:
The National Labor Relations Board is proposing three amendments to its current rules and regulations governing the filing and processing of petitions relating to a labor organization's exclusive representation of employees for purposes of collective bargaining with their employer. The first amendment would modify the Board's election blocking charge policy—not currently set forth in the rules and regulations—by establishing a vote and impound procedure for processing representation petitions when a party has requested blocking the election based on a pending unfair labor practice charge
e representation of employees for purposes of collective bargaining with their employer. The first amendment would modify the Board's election blocking charge policy—not currently set forth in the rules and regulations—by establishing a vote and impound procedure for processing representation petitions when a party has requested blocking the election based on a pending unfair labor practice charge. The second amendment would modify the current recognition bar policy—also not currently set forth in the rules and regulations—by reestablishing a notice requirement and 45-day open period for filing an election petition following an employer's voluntary recognition of a labor organization as employees' majority-supported exclusive collective-bargaining representative under Section 9(a) of the Act. The third amendment would overrule current Board law—also not currently set forth in the rules and regulations—holding that contract language, standing alone, can establish the existence of a Section 9(a) majority-based bargaining relationship for parties in the construction industry, rather than a relationship under Section 8(f), the second proviso of which prohibits any election bar. To prove the establishment of a Section 9(a) relationship in the construction industry and the existence of a contract bar to an election, the proposed amendment would require extrinsic evidence, in the form of employee signatures on union authorization cards or a petition, that recognition was based on a contemporaneous showing of majority employee support
iso of which prohibits any election bar. To prove the establishment of a Section 9(a) relationship in the construction industry and the existence of a contract bar to an election, the proposed amendment would require extrinsic evidence, in the form of employee signatures on union authorization cards or a petition, that recognition was based on a contemporaneous showing of majority employee support.
The Board believes, subject to comments, that the current blocking charge policy, the immediate imposition of a voluntary recognition election bar, and the establishment of a Section 9(a) relationship in the construction industry based solely on contract recognition language constitute an overbroad and inappropriate limitation on the ability of employees to exercise their fundamental statutory right to the timely resolution of questions concerning representation through the preferred means of a Board-conducted secret ballot election.
I. Background
Section 9(c) of the Act provides that the Board “shall direct an election by secret ballot” if the Board finds that a question of representation exists. The Supreme Court has repeatedly recognized that Congress granted the Board wide discretion under the Act to ensure that employees are freely and fairly able to choose whether to have a bargaining representative. E.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940). In NLRB v. A.J. Tower Co., the Court stated that “the Board must act so as to give effect to the principle of majority rule set forth in [Section] 9(a), a rule that `is sanctioned by our governmental practices, by business procedure, and by the whole philosophy of democratic institutions.' ” 329 U.S. 324, 331 (1946) (quoting S. Rep. No. 74-573, at 13). The Court continued, “It is within this democratic framework that the Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.” Id
ned by our governmental practices, by business procedure, and by the whole philosophy of democratic institutions.' ” 329 U.S. 324, 331 (1946) (quoting S. Rep. No. 74-573, at 13). The Court continued, “It is within this democratic framework that the Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.” Id.
Representation case procedures are set forth in the statute, in Board regulations, and in Board caselaw. In addition, the Board's General Counsel has prepared a non-binding Casehandling Manual describing representation case procedures in detail. 1 The Act itself contains only one express limitation on the timing of otherwise valid election petitions. Section 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.” The Board instituted through adjudication a parallel limitation precluding, with limited exceptions, an electoral challenge to a union's representative status for one year from the date of a certification based on an employee majority vote for exclusive representation in a valid Board election. The Supreme Court approved this certification year election bar in Brooks v. NLRB, 348 U.S. 96 (1954).
1 NLRB Casehandling Manual (Part Two) Representation Proceedings.
The proposed rulemaking does not implicate either the statutory election year bar or the certification year bar. As fully described below, however, the Board has also created through adjudication several additional discretionary bars to the timely processing of a validly supported election petition, 2 three of which—the blocking charge policy, the voluntary recognition election bar policy, and the contract bar—are the subject of this proposed rulemaking proceeding
tion year bar or the certification year bar. As fully described below, however, the Board has also created through adjudication several additional discretionary bars to the timely processing of a validly supported election petition, 2 three of which—the blocking charge policy, the voluntary recognition election bar policy, and the contract bar—are the subject of this proposed rulemaking proceeding. 3
2 In Board terminology, representation election petitions filed by labor organizations are classified as RC petitions and those filed by employers are RM petitions; decertification petitions filed by an individual employee are classified as RD petitions.
3 Other discretionary election bar policies established through adjudication, all of which preclude electoral challenges to an incumbent union bargaining representative for some period of time, include the contract bar, General Cable Corp., 139 NLRB 1123, 1125 (1962) (precluding election for up to first 3 years of contract term); the affirmative remedial bargaining order bar, Lee Lumber & Building Material Corp., 334 NLRB 399, 402 (2001) (precluding election for at least six months and up to one year from the first bargaining session following Board finding of unlawful refusal to bargain and issuance of bargaining-order remedy), enfd. 310 F.3d 209 (D.C. Cir. 2002); the successor bar, UGL-UNICCO Service Co., 357 NLRB 801 (2011) (precluding election for at least six months and up to one year from the first post-succession bargaining session); and the settlement bar, Poole Foundry & Machine Co., 95 NLRB 34, 36 (1950) (precluding election for a reasonable period of time following settlement of certain unfair labor practice charges), enfd. 192 F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952). The proposed rule modifying current law with respect to proof of majority-based recognition in the construction industry necessarily involves the issue of when a contract bar will apply
Co., 95 NLRB 34, 36 (1950) (precluding election for a reasonable period of time following settlement of certain unfair labor practice charges), enfd. 192 F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952). The proposed rule modifying current law with respect to proof of majority-based recognition in the construction industry necessarily involves the issue of when a contract bar will apply. Otherwise, this proposed rulemaking is not intended to address other election bar policies. The Board may choose to address one or more of these policies in future proceedings.
A. Blocking Charge Policy
The blocking charge policy dates from shortly after the Act went into effect. See United States Coal & Coke Co., 3 NLRB 398 (1937). A product of adjudication, 4 the policy permits a party—almost invariably a union and most often in response to an RD petition—to block an election indefinitely by filing unfair labor practice charges that allegedly create doubt as to the validity of the election petition or as to the ability of employees to make a free and fair choice concerning representation while the charges remain unresolved. This policy can preclude holding the petitioned-for election for months, or even years, if at all. See, e.g., Cablevision Systems Corp., 367 NLRB No. 59 (2018) (blocking charge followed by Regional Director's misapplication of settlement bar doctrine delayed processing until December 19, 2018, of valid RD petition filed on October 16, 2014; employee petitioner thereafter withdrew petition).
4 Except for certain evidentiary requirements, discussed below, that are set forth in Section 103.20 of the Board's Rules and Regulations, the current blocking charge policy is not codified. A detailed description of the policy appears in the non-binding NLRB Casehandling Manual (Part Two) Representation, Sections 11730 to 11734
ctober 16, 2014; employee petitioner thereafter withdrew petition).
4 Except for certain evidentiary requirements, discussed below, that are set forth in Section 103.20 of the Board's Rules and Regulations, the current blocking charge policy is not codified. A detailed description of the policy appears in the non-binding NLRB Casehandling Manual (Part Two) Representation, Sections 11730 to 11734. In brief, the policy affords regional directors administrative discretion to hold election petitions in abeyance or to dismiss them based on the request of a charging party alleging either unfair labor practice conduct that “only interferes with employee free choice” (a Type I charge) or conduct that “not only interferes with employee free choice but also is inherently inconsistent with the petition itself” (a Type II charge). Section 11730.1.
Statistical studies indicate that the blocking charge delay in Cablevision is not an anomaly. It is instead representative of a systemic problem in blocking charge cases, which have been identified as the likely cause of what has been characterized as “the long tail” of delay in the Board's processing of representation cases. 5 In a study conducted by Professor Samuel Estreicher of petitions processed to elections in 2008, statistics provided to him by the Board indicated that the filing of blocking charges substantially increased the median processing time to an election. 6 Specifically, the study showed that “in 284 of the 2,024 petitions that proceeded to election in 2008, allegations of employer violations triggered the filing of a `blocking charge' by a labor organization, delaying the holding of the election, The median for this subset was 139 days compared to thirty-eight days overall [for unblocked cases].” Id. at 370.
5 See John-Paul Ferguson, The Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999-2004, 62 Indus. & Lab. Rel. Rev. 3, 10 fn. 9 (Oct. 2008)
ployer violations triggered the filing of a `blocking charge' by a labor organization, delaying the holding of the election, The median for this subset was 139 days compared to thirty-eight days overall [for unblocked cases].” Id. at 370.
5 See John-Paul Ferguson, The Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999-2004, 62 Indus. & Lab. Rel. Rev. 3, 10 fn. 9 (Oct. 2008). The Ferguson study of Board representation case statistics for this 5-year period indicated that elections in 95% of cases were held within 75 days of the filing of a petition. “The tail, however, is quite long; the maximum delay before election recorded in the data is 1,705 days.” Id.
6 Samuel Estreicher, Improving the Administration of the National Labor Relations Act Without Statutory Change, 5 FIU L. Rev. 361, 369-370 (2010). The Estreicher study focused only on those cases actually processed to an election in 2008. An earlier review of Board representation case statistics from 1977 indicated that, as in the recent Cablevision case, more than half of the RD petitions filed with the Board never resulted in an election. William Krupman and Gregory Rasin, Decertification: Removing the Shroud, 30 Lab. L.J. 231, 231 (1979). The authors suggested two explanations for this result: “First, many unions faced with the prospect of losing a decertification election choose to withdraw rather than risk defeat. Second, many petitions are `blocked' from further processing as a result of unfair labor practice charges filed by the union.” Id. at 231-232.
The adverse impact on employee RD petitions resulting from the Board's blocking charge policy, and the potential for abuse and manipulation of that policy by incumbent unions seeking to avoid a challenge to their representative status, have drawn criticism from courts of appeals on several occasions. See Pacemaker Corp v. NLRB, 260 F.2d 880, 882 (7th Cir. 1958) (“The practice adopted by the Board is subject to abuse as is shown in the instant case
ng from the Board's blocking charge policy, and the potential for abuse and manipulation of that policy by incumbent unions seeking to avoid a challenge to their representative status, have drawn criticism from courts of appeals on several occasions. See Pacemaker Corp v. NLRB, 260 F.2d 880, 882 (7th Cir. 1958) (“The practice adopted by the Board is subject to abuse as is shown in the instant case. After due notice both parties proceeded with the representation hearing. Possibly for some reasons of strategy near the close of the hearing, the [u]nion asked for an adjournment. Thereafter it filed a second amended charge of unfair labor practice. By such strategy the [u]nion was able to and did stall and postpone indefinitely the representation hearing.”); NLRB v. Minute Maid Corp., NLRB v. Midtown Service Co., 425 F.2d 665, 672 (2d Cir. 1970) (“[If] the charges were filed by the union, adherence to the [blocking charge] policy in the present case would permit the union, as the beneficiary of the [e]mployer's misconduct, merely by filing charges to achieve an indefinite stalemate designed to perpetuate the union in power. If, on the other hand, the charges were filed by others claiming improper conduct on the part of the [e]mployer, we believe that the risk of another election (which might be required if the union prevailed but the charges against the Employer were later upheld) is preferable to a three-year delay.”); Templeton v. Dixie Color Printing Co., 444 F.2d 1064, 1069 (5th Cir. 1971) (“The short of the matter is that the Board has refused to take any notice of the petition filed by appellees and by interposing an arbitrary blocking charge practice, applicable generally to employers, has held it in abeyance for over 3 years. As a consequence, the appellees have been deprived during all this time of their statutory right to a representative `of their own choosing' to bargain collectively for them, 29 U.S.C. 157, despite the fact that the employees have not been charged with any wrongdoing
d by interposing an arbitrary blocking charge practice, applicable generally to employers, has held it in abeyance for over 3 years. As a consequence, the appellees have been deprived during all this time of their statutory right to a representative `of their own choosing' to bargain collectively for them, 29 U.S.C. 157, despite the fact that the employees have not been charged with any wrongdoing. Such practice and result are intolerable under the Act and cannot be countenanced.”); NLRB v. Hart Beverage Co., 445 F.2d 415, 420 (8th Cir. 1971) (“[I]t appears clearly inferable to us that one of the purposes of the [u]nion in filing the unfair practices charge was to abort [r]espondent's petition for an election, if indeed, that was not its only purpose.”).
The potential for delay is the same when employees, instead of filing an RD petition, have expressed to their employer a desire to decertify an incumbent union representative. In that circumstance, the blocking charge policy can prevent the employer from being able to seek a timely Board-conducted election to resolve the question concerning representation raised by evidence of good-faith uncertainty as to the union's continuing majority support. Thus, the supposed “safe harbor” of filing an RM election petition that the Board majority referenced in Levitz Furniture Co. of the Pacific, 333 NLRB 717, 726 (2001), as an alternative to the option of withdrawing recognition (which the employer selects at its peril) is often illusory. As Judge Henderson stated in her concurring opinion in Scomas of Sausalito, LLC v. NLRB, it is no “cure-all” for an employer with a good-faith doubt about a union's majority status to simply seek an election because “[a] union can and often does file a ULP charge—a `blocking charge'—`to forestall or delay the election.' ” 849 F.3d 1147, 1159 (D.C. Cir. 2017) (quoting from Member Hurtgen's concurring opinion in Levitz, 333 NLRB at 732)
rring opinion in Scomas of Sausalito, LLC v. NLRB, it is no “cure-all” for an employer with a good-faith doubt about a union's majority status to simply seek an election because “[a] union can and often does file a ULP charge—a `blocking charge'—`to forestall or delay the election.' ” 849 F.3d 1147, 1159 (D.C. Cir. 2017) (quoting from Member Hurtgen's concurring opinion in Levitz, 333 NLRB at 732).
Concerns have also been raised about the Agency's regional directors not applying the blocking charge policy consistently, thereby creating uncertainty and confusion about when, if ever, parties can expect an election to occur. See Zev J. Eigen & Sandro Garofalo, Less Is More: A Case for Structural Reform of the National Labor Relations Board , 98 Minn. L. Rev. 1879, 1896-1897 (2014) (“Regional directors have wide discretion in allowing elections to be blocked, and this sometimes results in the delay of an election for months and in some cases for years—especially when the union resorts to the tactic of filing consecutive unmeritorious charges over a long period of time. This is contrary to the central policy of the Act, which is to allow employees to freely choose their bargaining representative, or to choose not to be represented at all.”).
In 2014, the Board engaged in a broad notice-and-comment rulemaking review of the then-current rules governing the representation election process. In the Notice of Proposed Rulemaking (NPRM) issued on February 6, 2014, a Board majority proposed numerous specific changes to that process. 79 FR 7318. The overarching purpose of these proposed changes was “to better insure `that employees' votes may be recorded accurately, efficiently and speedily' and to further `the Act's policy of expeditiously resolving questions concerning representation.' ” 7 Many, if not most, of the proposed changes focused on shortening the time between the filing of a union's RC petition for initial certification as an exclusive bargaining representative and the date of an election
insure `that employees' votes may be recorded accurately, efficiently and speedily' and to further `the Act's policy of expeditiously resolving questions concerning representation.' ” 7 Many, if not most, of the proposed changes focused on shortening the time between the filing of a union's RC petition for initial certification as an exclusive bargaining representative and the date of an election. With relatively few variations, the final Election Rule published on December 15, 2014, adopted 25 changes proposed in the NPRM. 79 FR 74308 (2014). The final Election Rule went into effect on April 14, 2015.
7 79 FR 7323, quoting from NLRB v. A.J. Tower Co., 329 U.S. at 331, and Northeastern University, 261 NLRB 1001, 1002 (1982).
The 2014 NPRM included a “Request for Comment Regarding Blocking Charges” that did not propose a change in the current blocking charge policy but invited public comment on whether any of nine possible changes should be made as part of a final rule or through means other than amendment of the Board's rules. 8 Extensive commentary was received both in favor of retaining the existing policy and of revising or abandoning the policy. The final Election Rule, however, made only minimal revisions in this respect. The majority incorporated, in new Section 103.20, provisions requiring that a party requesting the blocking of an election based on an unfair labor practice charge make a simultaneous offer of proof, provide a witness list, and promptly make those witnesses available. These revisions were viewed as facilitating the General Counsel's existing practice of conducting expedited investigations in blocking charge cases. The majority declined to make any other changes in the existing policy, expressing the view that the policy was critical to protecting employees' exercise of free choice, 9 and that “[i]t advances no policy of the Act for the agency to conduct an election unless employees can vote without unlawful interference.” 10
8 79 FR 7334-7335.
9 79 FR at 74418-74420, 74428-74429
n blocking charge cases. The majority declined to make any other changes in the existing policy, expressing the view that the policy was critical to protecting employees' exercise of free choice, 9 and that “[i]t advances no policy of the Act for the agency to conduct an election unless employees can vote without unlawful interference.” 10
8 79 FR 7334-7335.
9 79 FR at 74418-74420, 74428-74429.
10 79 FR 74429.
Dissenting Board Members Miscimarra and Johnson criticized the majority's failure to make more significant revisions in the blocking charge policy, contrasting the majority's concern with impact on employee free choice of election delays in initial representation RC elections with a perceived willingness to accept prolonged delay in blocking charge cases that predominantly involve RD or RM petitions challenging an incumbent union's continuing representative status. In the dissenters' opinion, it was incumbent on the Board to undertake more substantial reform of a policy that was responsible for a major part of the “long tail” of cases where an election was delayed for more than 100 days beyond the average petition processing time. 11
11 See discussion at 79 FR 74455-74456. The dissenters advocated “a 3-year trial period in which petitions will be routinely processed and elections conducted in Type I blocking charge cases, with the votes thereafter impounded, even in cases where a regional director finds that there is probable cause to believe an unfair labor practice was committed that would require the processing of the petition to be held in abeyance under current policy.” 79 FR 74456.
A 2015 review of the Election Rule by Professor Jeffrey M. Hirsch excepted the majority's treatment of the blocking charge policy from a generally favorable analysis of the rule revisions
egional director finds that there is probable cause to believe an unfair labor practice was committed that would require the processing of the petition to be held in abeyance under current policy.” 79 FR 74456.
A 2015 review of the Election Rule by Professor Jeffrey M. Hirsch excepted the majority's treatment of the blocking charge policy from a generally favorable analysis of the rule revisions. Noting the persistent problems with delay and abuse, Professor Hirsch observed that “[t]he Board's new rules indirectly affected the blocking charge policy by requiring parties to file an offer of proof to support a request for a stay, but that requirement is unlikely to change much, if anything. Instead, the Board should have explored new rules such as lowering the presumption that favors staying elections in most circumstances or setting a cap on the length of stays, either of which might have satisfied the blocking charge policy's main purpose while reducing abuse.” 12
12 Jeffrey M. Hirsch, NLRB Elections: Ambush or Anticlimax?, 64 Emory L.J. 1647, 1664 (2015).
Statistics provided by the General Counsel for years postdating the 2015 implementation of the Final Rule confirm Professor Hirsch's observation that the rule did not change much. 13 Those statistics do indicate a drop in the number of blocked cases that have been processed to an election for Fiscal Years (FY) 2016, 2017, and 2018, possibly indicating that the new evidentiary requirements have facilitated quick elimination of obviously baseless blocking charges. On the other hand, the statistics indicate the same or greater disparity between blocked and unblocked cases in petition-to-election processing time, when compared to the 2008 statistics analyzed in the Estreicher study. 14 Even more concerning is the information that on December 31, 2018, there were 118 blocked petitions pending; those cases had been pending for an average of 893 days; and the oldest case had been pending for 4,491 days, i.e., more than 12 years. 15 See Majority Appendix B
blocked cases in petition-to-election processing time, when compared to the 2008 statistics analyzed in the Estreicher study. 14 Even more concerning is the information that on December 31, 2018, there were 118 blocked petitions pending; those cases had been pending for an average of 893 days; and the oldest case had been pending for 4,491 days, i.e., more than 12 years. 15 See Majority Appendix B.
13 See Majority Appendix B, available at https://www.nlrb.gov.
14 See Majority Appendix A, available at https://www.nlrb.gov. The median number of days from petition to election from 2016 through 2018 was 23 days in unblocked cases. The median number of days from petition to election in the same period for blocked cases ranged from 122 to 145 days.
15 We note that our dissenting colleague takes a different view of the breadth of the current blocking charge policy's impact, based on her preliminary review of statistics provided to us and her by the General Counsel. However, she acknowledges that in FY 2016 and FY 2017, about 20 percent of decertification petitions filed were blocked. She views this number as either inconsequentially slight or justifiable on policy grounds. That is her opinion. We welcome the opinions of others, including their statistical analyses, in comments responsive to the NPRM.
On December 12, 2017, the Board issued a Request for Information that generally invited the public to respond with information about whether the 2014 Election Rule should be retained without change, retained with modifications, or rescinded. 82 FR 58783. Relatively few responders addressed the change made with respect to requirements of proof in support of a blocking charge request. A number of responders, however, used this occasion to ask the Board to rescind or substantially modify the blocking charge policy. The reasons articulated for rescinding the policy are essentially the same as those offered in response to the 2014 NPRM
ed. 82 FR 58783. Relatively few responders addressed the change made with respect to requirements of proof in support of a blocking charge request. A number of responders, however, used this occasion to ask the Board to rescind or substantially modify the blocking charge policy. The reasons articulated for rescinding the policy are essentially the same as those offered in response to the 2014 NPRM. Among commenters that proposed revision of the blocking charge policy rather than complete rescission, the Board's General Counsel has proposed that the Board adopt a vote-and-impound procedure whereby an election would be held regardless of whether a blocking charge and blocking request are pending. If the merits of the charge have not been resolved prior to the election, the ballots would be impounded.
B. The Voluntary Recognition Bar
Longstanding precedent holds that a “Board election is not the only method by which an employer may satisfy itself as to the union's majority status [under Section 9(a) of the Act].” United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 72 fn. 8 (1956). Voluntary recognition agreements based on a union's showing of majority support are undisputedly lawful. NLRB v. Gissel Packing Co., 395 U.S. 575, 595-600 (1969). However, it was not until Keller Plastics Eastern, Inc., 157 NLRB 583 (1966), that the Board addressed the issue of whether a Section 9(a) bargaining relationship established by voluntary recognition can be disrupted by the recognized union's subsequent loss of majority status. Although the union in Keller Plastics had lost majority support by the time the parties executed a contract little more than 3 weeks after voluntary recognition, the Board rejected the General Counsel's claim that the employer was violating the Act by continuing to recognize a nonmajority union as the employees' representative
disrupted by the recognized union's subsequent loss of majority status. Although the union in Keller Plastics had lost majority support by the time the parties executed a contract little more than 3 weeks after voluntary recognition, the Board rejected the General Counsel's claim that the employer was violating the Act by continuing to recognize a nonmajority union as the employees' representative. The Board reasoned that “like 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 586. Soon thereafter, the Board extended this recognition bar policy to representation cases and held that an employer's voluntary recognition of a union would immediately bar the filing of an election petition for a reasonable amount of time following recognition. Sound Contractors, 162 NLRB 364 (1966).
From 1966 until 2007, the Board tailored the duration of the immediate recognition bar to the circumstances of each case, stating that what constitutes a reasonable period of time “does not depend upon either the passage of time or the number of calendar days on which the parties met. Rather, the issue turns on what transpired during those meetings and what was accomplished therein.” Brennan's Cadillac, Inc., 231 NLRB 225, 226 (1977). In some cases, a few months of bargaining were deemed enough to give the recognized union a fair chance to succeed, whereas in other cases substantially more time was deemed warranted
f time or the number of calendar days on which the parties met. Rather, the issue turns on what transpired during those meetings and what was accomplished therein.” Brennan's Cadillac, Inc., 231 NLRB 225, 226 (1977). In some cases, a few months of bargaining were deemed enough to give the recognized union a fair chance to succeed, whereas in other cases substantially more time was deemed warranted. Compare Brennan's Cadillac (employer entitled to withdraw recognition after 4 months) with MGM Grand Hotel, 329 NLRB 464, 466 (1999) (more than 11 months was reasonable considering the large size of the unit, the complexity of the bargaining structure and issues, the parties' frequent meetings and diligent efforts, and the substantial progress made).
In Dana Corp., 351 NLRB 434 (2007), a Board majority reviewed the development of the immediate recognition bar policy and concluded “that the current recognition bar policy should be modified to provide greater protection for employees' statutory right of free choice and to give proper effect to the court- and Board-recognized statutory preference for resolving questions concerning representation through a Board secret-ballot election.” Id. at 437. 16
16 The 2007 Dana decision followed a decision granting review, consolidating two cases, and inviting briefing by the parties and amici on the voluntary recognition bar issue. Dana Corp., 341 NLRB 1283 (2004). In response, the Board received 24 amicus briefs, including one from the Board's General Counsel, in addition to briefs on review and reply briefs from the parties. Dana Corp., 351 NLRB at 434 fn. 2
2007 Dana decision followed a decision granting review, consolidating two cases, and inviting briefing by the parties and amici on the voluntary recognition bar issue. Dana Corp., 341 NLRB 1283 (2004). In response, the Board received 24 amicus briefs, including one from the Board's General Counsel, in addition to briefs on review and reply briefs from the parties. Dana Corp., 351 NLRB at 434 fn. 2.
Drawing on the General Counsel's suggestion in his amicus brief of a modified voluntary recognition election bar, the Dana majority held that “[t]here will be no bar to an election following a grant of voluntary recognition unless (a) affected unit employees receive adequate notice of the recognition and of their opportunity to file a Board election petition within 45 days, and (b) 45 days pass from the date of notice without the filing of a validly-supported petition. These rules apply notwithstanding the execution of a collective-bargaining agreement 17
17 351 NLRB at 441. The recognition bar modifications did not affect the obligation of an employer to bargain with the recognized union during the post-recognition open period, even if a decertification or rival petition was filed. Id. at 442.
The Dana majority emphasized “the greater reliability of Board elections” as a principal reason for the announced modification, In this respect, while a majority card showing has been recognized as a reliable basis for the establishment of a Section 9(a) bargaining relationship, authorization cards are “admittedly inferior to the election process.” 18 Several reasons were offered in support of this conclusion
ority emphasized “the greater reliability of Board elections” as a principal reason for the announced modification, In this respect, while a majority card showing has been recognized as a reliable basis for the establishment of a Section 9(a) bargaining relationship, authorization cards are “admittedly inferior to the election process.” 18 Several reasons were offered in support of this conclusion. “First, unlike votes cast in privacy by secret Board election ballots, card signings are public actions, susceptible to group pressure exerted at the moment of choice.” 19 This is in contrast to a secret ballot vote cast in the “laboratory conditions” of a Board election, held “under the watchful eye of a neutral Board agent and observers from the parties,” 20 and free from immediate observation, persuasion, or coercion by opposing parties or their supporters. “Second, union card-solicitation campaigns have been accompanied by misinformation or a lack of information about employees' representational options.” 21 Particularly in circumstances where voluntary recognition is preceded by an employer entering into a neutrality agreement with the union, including an agreement to provide union access for organizational purposes, employees may not understand they even have an electoral option or an alternative to representation by the organizing union. “Third, like a political election, a Board election presents a clear picture of employee voter preference at a single moment. On the other hand, card signings take place over a protracted period of time.” 22 A statistical study cited in several briefs and by the Dana majority indicated a significant disparity between union card showings of support obtained over a period of time and ensuing Board election results. 23 Lastly, the Board election process provides for a post-election review of impermissible electioneering and other objectionable conduct that may result in Board invalidation of the election results and the conduct of a second election
nd by the Dana majority indicated a significant disparity between union card showings of support obtained over a period of time and ensuing Board election results. 23 Lastly, the Board election process provides for a post-election review of impermissible electioneering and other objectionable conduct that may result in Board invalidation of the election results and the conduct of a second election. “There are no guarantees of comparable safeguards in the voluntary recognition process.” 24
18 NLRB v. Gissel Packing Co., 395 U.S. at 603.
19 Dana Corp., 351 NLRB at 438.
20 Id. at 439.
21 Id.
22 Id.
23 Id., citing McCulloch, A Tale of Two Cities: Or Law in Action, Proceedings of ABA Section of Labor Relations Law 14, 17 (1962).
24 Id.
In Lamons Gasket Company, 357 NLRB 739 (2011), 25 a new Board majority overruled Dana Corp. and reinstated the immediate voluntary recognition election bar. The majority emphasized the validity of voluntary recognition as a basis for establishing a Section 9(a) majority-based recognition. Further, citing Board statistical evidence that employees had decertified the voluntarily recognized union in only 1.2 percent of the total cases in which a Dana notice was requested, 26 the majority concluded that the Dana modifications to the voluntary recognition bar were unnecessary and that the Dana majority's concerns about the reliability of voluntary recognition as an accurate indicator of employee choice were unfounded. The Lamons Gasket majority criticized the Dana notice procedure as compromising Board neutrality by “suggest[ing] to employees that the Board considers their choice to be represented suspect and signal[ing] to employees that their choice should be reconsidered.” Id. at 744
majority's concerns about the reliability of voluntary recognition as an accurate indicator of employee choice were unfounded. The Lamons Gasket majority criticized the Dana notice procedure as compromising Board neutrality by “suggest[ing] to employees that the Board considers their choice to be represented suspect and signal[ing] to employees that their choice should be reconsidered.” Id. at 744. The majority opinion also defended the voluntary recognition bar as consistent with other election bars that are based on a policy of assuring that “ `a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.' ” Id. (quoting Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944)). The majority viewed the Dana 45-day open period as contrary to this policy by creating a period of post-recognition uncertainty during which an employer has little incentive to bargain, even though technically required to do so. Id. at 747. Finally, having determined to return to the immediate recognition bar policy, the Lamons Gasket majority applied its holding retroactively and, based on the Board's decision in Lee Lumber & Building Material Corp., 334 NLRB at 399, the majority defined the reasonable period of time during which a voluntary recognition would bar an election as no less than six months after the date of the parties' first bargaining session and no more than one year after that date. Id. at 748.
25 Similar to the Dana proceeding, the 2011 Lamons Gasket decision followed a decision granting review, consolidating two cases, and inviting briefing by the parties and amici on the voluntary recognition bar issue. Rite Aid Store #6473, 355 NLRB 763 (2010). In response, the Board received 17 amicus briefs, in addition to briefs on review and reply briefs from the parties. Lamons Gasket, 357 NLRB at 740 fn.1.
26 “As of May 13, 2011, the Board had received 1,333 requests for Dana notices
ng review, consolidating two cases, and inviting briefing by the parties and amici on the voluntary recognition bar issue. Rite Aid Store #6473, 355 NLRB 763 (2010). In response, the Board received 17 amicus briefs, in addition to briefs on review and reply briefs from the parties. Lamons Gasket, 357 NLRB at 740 fn.1.
26 “As of May 13, 2011, the Board had received 1,333 requests for Dana notices. In those cases, 102 election petitions were subsequently filed and 62 elections were held. In 17 of those elections, the employees voted against continued representation by the voluntarily recognized union, including 2 instances in which a petitioning union was selected over the recognized union and 1 instance in which the petition was withdrawn after objections were filed. Thus, employees decertified the voluntarily recognized union under the Dana procedures in only 1.2 percent of the total cases in which Dana notices were requested.” Id. at 742.
Member Hayes dissented in Lamons Gasket, 27 arguing that Dana was correctly decided for the policy reasons stated there, most importantly the statutory preference for a secret ballot Board election to resolve questions of representation under Section 9 of the Act. He noted that the Lamons Gasket majority's efforts to secure empirical evidence of Dana 's shortcomings by inviting briefs from the parties and amici “yielded a goose egg.” 28 Consequently, the only meaningful empirical evidence came from the Board's own election statistics. In this regard, he disagreed with the majority's view that the minimal number of elections held and votes cast against the recognized union proved the Dana modifications were unnecessary. In his view, the statistics showed that in one of every four elections held, an employee majority voted against representation by the incumbent recognized union
ence came from the Board's own election statistics. In this regard, he disagreed with the majority's view that the minimal number of elections held and votes cast against the recognized union proved the Dana modifications were unnecessary. In his view, the statistics showed that in one of every four elections held, an employee majority voted against representation by the incumbent recognized union. While that 25-percent rejection rate was below the recent annual rejection rate for all decertification elections, it was nevertheless substantial and supported retention of a notice requirement and brief open period. 29
27 Id. at 748-754.
28 Id. at 750 (“Only five respondents sought to overturn Dana, and only two of them supported their arguments for doing so with the barest of anecdotal evidence.”) (footnotes omitted).
29 Id. at 751.
At least since Lamons Gasket, the imposition of the immediate recognition bar, followed by the execution of a collective-bargaining agreement, can preclude the possibility of conducting a Board election contesting the initial non-electoral recognition of a union as a majority-supported exclusive bargaining representative for as many as four years. The 2014 Election Rule did not include substantive discussion of the reimposition of the immediate voluntary recognition election bar in Lamons Gasket. A few respondents to the 2017 Request for Information contended that the Board should eliminate this and other discretionary election bars, or in the alternative, Dana notice and open period requirements.
C. Proof of Majority-Based Recognition Under Section 9(a) in the Construction Industry
In 1959, Congress enacted Section 8(f) of the Act to address unique characteristics of employment and bargaining practices in the construction industry
mation contended that the Board should eliminate this and other discretionary election bars, or in the alternative, Dana notice and open period requirements.
C. Proof of Majority-Based Recognition Under Section 9(a) in the Construction Industry
In 1959, Congress enacted Section 8(f) of the Act to address unique characteristics of employment and bargaining practices in the construction industry. Section 8(f) permits an employer and labor organization in the construction industry to establish a collective-bargaining relationship in the absence of majority support, an exception to the majority-based requirements for establishing a collective-bargaining relationship under Section 9(a). While the impetus for this exception to majoritarian principles stemmed primarily from the fact that construction industry employers often executed pre-hire agreements with a labor organization in order to assure a reliable, cost-certain source of labor referred from a union hiring hall for a specific job, the exception applies as well to voluntary recognition and collective-bargaining agreements executed by a construction industry employer that has employees. However, the second proviso to Section 8(f) states that any agreement that is lawful only because of that section's nonmajority exception cannot bar a petition for a Board election. Accordingly, there cannot be a contract bar or voluntary recognition bar to an election among employees covered by an 8(f) agreement.
Board precedent has varied with respect to the test of whether a bargaining relationship and a collective-bargaining agreement in the construction industry are governed by Section 9(a) majoritarian principles or by Section 8(f) and its exception to those principles. In 1971, the Board adopted a “conversion doctrine,” under which a bargaining relationship initially established under Section 8(f) could convert into a 9(a) relationship by means other than a Board election or majority-based voluntary recognition. See R. J
ent in the construction industry are governed by Section 9(a) majoritarian principles or by Section 8(f) and its exception to those principles. In 1971, the Board adopted a “conversion doctrine,” under which a bargaining relationship initially established under Section 8(f) could convert into a 9(a) relationship by means other than a Board election or majority-based voluntary recognition. See R. J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom. Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973); Ruttmann Construction Co., 191 NLRB 701 (1971). As subsequently described in John Deklewa & Sons, 282 NLRB 1375, 1378 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3rd Cir. 1988), R.J. Smith and Ruttmann viewed a Section 8(f) agreement as “ `a preliminary step that contemplates further action for the development of a full bargaining relationship' ” (quoting from Ruttmann, 191 NLRB at 702). This preliminary 8(f) relationship/agreement could convert to a 9(a) relationship/agreement, within a few days or years later, if the union could show that it had achieved majority support among bargaining-unit employees during a contract term. “The achievement of majority support required no notice, no simultaneous union claim of majority, and no assent by the employer to complete the conversion process.” Id. Proof of majority support sufficient to trigger conversion included “the presence of an enforced union-security clause, actual union membership of a majority of unit employees, as well as referrals from an exclusive hiring hall.” Id. The duration and scope of the post-conversion contract's applicability under Section 9(a) would vary, depending upon the scope of the appropriate unit (single or multiemployer) and the employer's hiring practices (project-by-project or permanent and stable workforce). Id. at 1379
ause, actual union membership of a majority of unit employees, as well as referrals from an exclusive hiring hall.” Id. The duration and scope of the post-conversion contract's applicability under Section 9(a) would vary, depending upon the scope of the appropriate unit (single or multiemployer) and the employer's hiring practices (project-by-project or permanent and stable workforce). Id. at 1379.
The Deklewa Board made fundamental changes in the law governing construction industry bargaining relationships and set forth new principles that are relevant to this rulemaking. First, it repudiated the conversion doctrine as inconsistent with statutory policy and Congressional intent expressed through the second proviso to Section 8(f) “that an 8(f) agreement may not act as a bar to, inter alia, decertification or rival union petitions.” Id. at 1382. Contrary to this intent, the “extraordinary” conversion of an original 8(f) agreement into a 9(a) agreement raised “an absolute bar to employees' efforts to reject or to change their collective-bargaining representative,” depriving them of the “meaningful and readily available escape hatch” assured by the second proviso. Id. Second, the Board held that 8(f) contracts and relationships are enforceable through Section 8(a)(5) and Section 8(b)(3) of the Act, but only for as long as the contract remains in effect. Upon expiration of the contract, “either party may repudiate the relationship.” Id. at 1386. Further, inasmuch as Section 8(f) permits an election at any time during the contract term, “[a] vote to reject the signatory union will void the 8(f) agreement and will terminate the 8(f) relationship. In that event, the Board will prohibit the parties from reestablishing the 8(f) relationship covering unit employees for a 1-year period.” Id. Third, the Board presumed that collective-bargaining agreements in the construction industry are governed by Section 8(f), so that “a party asserting the existence of a 9(a) relationship bears the burden of proving it.” Id
l terminate the 8(f) relationship. In that event, the Board will prohibit the parties from reestablishing the 8(f) relationship covering unit employees for a 1-year period.” Id. Third, the Board presumed that collective-bargaining agreements in the construction industry are governed by Section 8(f), so that “a party asserting the existence of a 9(a) relationship bears the burden of proving it.” Id. at 1385 fn. 41. Finally, stating that “nothing in this opinion is meant to suggest that unions have less favored status with respect to construction industry employers than they possess with respect to those outside the construction industry,” the Board affirmed that a construction industry union could achieve 9(a) status through “voluntary recognition accorded . . . by the employer of a stable workforce where that recognition is based on a clear showing of majority support among the union employees, e.g., a valid card majority.” Id at 1387 fn. 53.
Deklewa's presumption of 8(f) status for construction industry relationships did not preclude the possibility that a relationship undisputedly begun under Section 8(f) could become a 9(a) relationship upon the execution of a subsequent agreement. In cases applying Deklewa, however, the Board repeatedly stated the requirement, both for initial and subsequent agreements, that in order to prove a 9(a) relationship, a union would have to show “ `its express demand for, and an employer's voluntary grant of, recognition to the union as bargaining representative based on a contemporaneous showing of union support among a majority of employees in an appropriate unit.' ” Brannan Sand & Gravel Co., 289 NLRB 977, 979-980 (1988) (quoting American Thoro-Clean, Ltd., 283 NLRB 1107, 1108-1109 (1987))
9(a) relationship, a union would have to show “ `its express demand for, and an employer's voluntary grant of, recognition to the union as bargaining representative based on a contemporaneous showing of union support among a majority of employees in an appropriate unit.' ” Brannan Sand & Gravel Co., 289 NLRB 977, 979-980 (1988) (quoting American Thoro-Clean, Ltd., 283 NLRB 1107, 1108-1109 (1987)). Further, in J & R Tile, 291 NLRB 1034, 1036 (1988), the Board held that, to establish voluntary recognition, there must be “positive evidence that a union unequivocally demanded recognition as the employees' 9(a) representative and that the employer unequivocally accepted it as such.” 30
30 Golden West Electric, 307 NLRB 1494, 1495 (1992) (citing J & R Tile, supra). In an Advice Memorandum issued after J & R Tile, the General Counsel noted record evidence that the employer in that case “clearly knew that a majority of his employees belonged to the union, since he had previously been an employee and a member of the union. However, the Board found that in the absence of positive evidence indicating that the union sought, and the employer thereafter granted, recognition as the 9(a) representative, the employer's knowledge of the union's majority status was insufficient to take the relationship out of Section 8(f).” In re Frank W. Schaefer, Inc., Case 9-CA-25539, 1989 WL 241614.
In Staunton Fuel & Material, Inc., 335 NLRB 717, 719-720 (2001), the Board for the first time held that a construction industry union could prove 9(a) recognition on the basis of contract language alone without any other “positive evidence” of a contemporaneous showing of majority support
take the relationship out of Section 8(f).” In re Frank W. Schaefer, Inc., Case 9-CA-25539, 1989 WL 241614.
In Staunton Fuel & Material, Inc., 335 NLRB 717, 719-720 (2001), the Board for the first time held that a construction industry union could prove 9(a) recognition on the basis of contract language alone without any other “positive evidence” of a contemporaneous showing of majority support. Relying on two recent decisions by the United States Court of 31 the Board held that language in a contract was independently sufficient to prove a 9(a) relationship “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 720. The Board found that this contract-based approach “properly balances Section 9(a)'s emphasis on employee choice with Section 8(f)'s recognition of the practical realities of the construction industry.” Id. at 719. Additionally, the Board stated that under the Staunton Fuel test, “[c]onstruction unions and employers will be able to establish 9(a) bargaining relationships easily and unmistakably where they seek to do so.”
31 NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147 (10th Cir. 2000), and NLRB v. Oklahoma Installation Co., 219 F.3d 1160 (10th Cir. 2000).
On review of a subsequent Board case applying Staunton Fuel, the United States Court of Appeals for the District of Columbia Circuit sharply disagreed with the Board's analysis. 32 Relying heavily on the majoritarian principles emphasized by the Supreme Court in Int'l Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961), the D.C
. Oklahoma Installation Co., 219 F.3d 1160 (10th Cir. 2000).
On review of a subsequent Board case applying Staunton Fuel, the United States Court of Appeals for the District of Columbia Circuit sharply disagreed with the Board's analysis. 32 Relying heavily on the majoritarian principles emphasized by the Supreme Court in Int'l Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961), the D.C. Circuit stated that “[t]he proposition that contract language standing alone can establish the existence of a section 9(a) relationship runs roughshod over the principles established in Garment Workers, for it completely fails to account for employee rights under sections 7 and 8(f). An agreement between an employer and union is void and unenforceable, Garment Workers holds, if it purports to recognize a union that actually lacks majority support as the employees' exclusive representative. While section 8(f) creates a limited exception to this rule for pre-hire agreements in the construction industry, the statute explicitly preserves employee rights to petition for decertification or for a change in bargaining representative under such contracts. 29 U.S.C. 158(f). The Board's ruling that contract language alone can establish the existence of a section 9(a) relationship—and thus trigger the three-year `contract bar' against election petitions by employees and other parties—creates an opportunity for construction companies and unions to circumvent both section 8(f) protections and Garment Workers' holding by colluding at the expense of employees and rival unions. By focusing exclusively on employer and union intent, the Board has neglected its fundamental obligation to protect employee section 7 rights, opening the door to even more egregious violations than the good faith mistake at issue in Garment Workers. ” 330 F.3d at 536-537.
32 Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), granting review and denying enforcement of Nova Plumbing, Inc., 336 NLRB 633 (2001)
y on employer and union intent, the Board has neglected its fundamental obligation to protect employee section 7 rights, opening the door to even more egregious violations than the good faith mistake at issue in Garment Workers. ” 330 F.3d at 536-537.
32 Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), granting review and denying enforcement of Nova Plumbing, Inc., 336 NLRB 633 (2001).
Notwithstanding the court's criticism in Nova Plumbing, and that of a dissenting Board member subsequently agreeing with the court, 33 the Board has adhered to Staunton Fuel' s holding that certain contract language, standing alone, can establish an 9(a) relationship in the construction industry. The D.C. Circuit has adhered as well to the contrary view. In Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031 (2018), the court granted review and vacated a Board order premised on the finding that a bargaining relationship founded under Section 8(f) became a 9(a) relationship solely as a consequence of recognition language in a successor bargaining agreement executed by the parties. The court reemphasized its position in Nova Plumbing that the Staunton Fuel test could not be squared either with Garment Workers' majoritarian principles or with the employee free choice principles represented by Section 8(f)'s second proviso. It also focused more sharply on the centrality of employee free choice in determining when a Section 9(a) relationship has been established. The court observed that “[t]he raison d'être of the National Labor Relations Act's protections for union representation is to vindicate the employees' right to engage in collective activity and to empower employees to freely choose their own labor representatives.” 34 Further, the court emphasized that “[t]he unusual Section 8(f) exception is meant not to cede all employee choice to the employer or union, but to provide employees in the inconstant and fluid construction and building industries some opportunity for collective representation. . .
right to engage in collective activity and to empower employees to freely choose their own labor representatives.” 34 Further, the court emphasized that “[t]he unusual Section 8(f) exception is meant not to cede all employee choice to the employer or union, but to provide employees in the inconstant and fluid construction and building industries some opportunity for collective representation. . . . [I]t is not meant to force the employees' choices any further than the statutory scheme allows.” 35 Accordingly, “[b]ecause the statutory objective is to ensure that only unions chosen by a majority of employees enjoy Section 9(a)'s enhanced protections, the Board must faithfully police the presumption of Section 8(f) status and the strict burden of proof to overcome it. Specifically, the Board must demand clear evidence that the employees—not the union and not the employer—have independently chosen to transition away from a Section 8(f) pre-hire arrangement by affirmatively choosing a union as their Section 9(a) representative.” 36 Pursuant to that strict evidentiary standard, the court found that it would not do for the Board to rely under Staunton Fuel solely on contract language “indicating that the employer's recognition was based on the union's having shown, or having offered to show, an evidentiary basis of its majority support.” 37 Such reliance “would reduce the requirement of affirmative employee support to a word game controlled entirely by the union and employer. Which is precisely what the law forbids.” 38
33 King's Fire Protection, Inc., 362 NLRB 1056, 1058-1063 (2015) (Member Miscimarra, dissenting).
34 Id. at 1038 (emphasis in original).
35 Id. at 1039.
36 Id.
37 Staunton Fuel, 335 NLRB at 717.
38 Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d at 1040.
II
tive employee support to a word game controlled entirely by the union and employer. Which is precisely what the law forbids.” 38
33 King's Fire Protection, Inc., 362 NLRB 1056, 1058-1063 (2015) (Member Miscimarra, dissenting).
34 Id. at 1038 (emphasis in original).
35 Id. at 1039.
36 Id.
37 Staunton Fuel, 335 NLRB at 717.
38 Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d at 1040.
II. Statutory Authority and Desirability of Rulemaking
Section 6 of the Act 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], such rules and regulations as may be necessary to carry out the provisions of this Act.” The Board interprets Section 6 as authorizing the proposed rules and invites comments on this issue. Although the Board historically has made most substantive policy determinations through case adjudication, the Board has, with Supreme Court approval, engaged in substantive rulemaking. American Hospital Assn. v. NLRB, 499 U.S. 606 (1991) (upholding Board's rulemaking on appropriate bargaining units in the healthcare industry); see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (“[T]he choice between rulemaking and adjudication lies in the first instance within the Board's discretion.”).
The Board finds that informal notice-and-comment rulemaking with respect to the election bar policies at issue here is desirable for three important reasons.
First, rulemaking presents the opportunity to solicit broad public comment on, and to address in a single proceeding, three related election bar issues that would not likely arise in the adjudication of a single case. By engaging in rulemaking after receiving public comment on the issues
Second, rulemaking does not depend on the participation and argument by parties in a specific case, and it cannot be mooted by developments in a pending case
licit broad public comment on, and to address in a single proceeding, three related election bar issues that would not likely arise in the adjudication of a single case. By engaging in rulemaking after receiving public comment on the issues
Second, rulemaking does not depend on the participation and argument by parties in a specific case, and it cannot be mooted by developments in a pending case. For example, in Loshaw Thermal Technology, LLC, Case 05-CA-158650, the Board recently sought public input on the issue of what proof should be required to establish a majority-supported Section 9(a) bargaining relationship in the construction industry by issuing a notice and invitation to file briefs. 2018 WL 4357198 (September 11, 2018). The Charging Party Union in that case thereafter filed a request to withdraw its charge. The Board granted the request by unpublished order issued on December 14, 2018, 2018 WL 6616458, thus precluding the possibility of addressing the issue presented through adjudication until such unforeseen time as it might be raised in a new case.
Third, by establishing the new election bar standards in the Board's Rules & Regulations, employers, unions, and employees will be able to plan their affairs free of the uncertainty that the legal regime may change on a moment's notice (and possibly retroactively) through the adjudication process. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 777 (1969) (“The rule-making procedure performs important functions. It gives notice to an entire segment of society of those controls or regimentation that is forthcoming.”) (Douglas, J., dissenting).
III. The Proposed Rule Amendments
Substitution of a Vote and Impound Procedure for Current Blocking Charge Policy
The Board is inclined to believe, subject to comments, that the current blocking charge policy impedes, rather than protects, employee free choice
It gives notice to an entire segment of society of those controls or regimentation that is forthcoming.”) (Douglas, J., dissenting).
III. The Proposed Rule Amendments
Substitution of a Vote and Impound Procedure for Current Blocking Charge Policy
The Board is inclined to believe, subject to comments, that the current blocking charge policy impedes, rather than protects, employee free choice. In a significant number of cases, the policy denies employees the right to have their votes, in a Board-conducted election on questions concerning representation, “recorded accurately, efficiently, and speedily.” 39 In particular, statistical evidence over several decades of Board elections undisputedly shows that the blocking charge policy causes substantial delays in the conduct of elections in which employees seek the opportunity to freely express their choice with respect to whether they wish to continue being represented by their incumbent union.
39 NLRB v. A.J. Tower Co., 329 U.S. at 331.
As the United States Court of Appeals for the D.C. Circuit has stated, “a decertification bar, whatever its duration, also prevents employees from exercising their right to dislodge the union however their sentiments about it may change. Decertification bars thus touch at the very heart of employees' rights under the National Labor Relations Act.” 40 Although the court made this observation when criticizing the Board's rote issuance of a remedial affirmative bargaining order for an employer's unlawful withdrawal of recognition from an incumbent union, it applies with equal force to the effect of a rote application of the current blocking charge policy on RD petitions, as well as RM petitions and rival union RC petitions seeking an electoral referendum on an incumbent union's continuing majority support.
40 Caterair International v. NLRB, 22 F.3d 1114, 1122 (1994)
er for an employer's unlawful withdrawal of recognition from an incumbent union, it applies with equal force to the effect of a rote application of the current blocking charge policy on RD petitions, as well as RM petitions and rival union RC petitions seeking an electoral referendum on an incumbent union's continuing majority support.
40 Caterair International v. NLRB, 22 F.3d 1114, 1122 (1994).
The breadth of the current blocking charge policy and the significant length of delay in processing these otherwise valid election petitions raise several serious concerns. First, employees who support those petitions are just as adversely affected by delay as employees who support a union's initial petition to become an exclusive bargaining representative. Delay robs the petition effort of momentum and, if an election is delayed for months or years—as is often the case when elections are blocked—many of the employees ultimately voting on the issue of representation may not even be the same as those in the workforce when the petition was filed. Second, the blocking charge policy rests on a presumption that an unlitigated and unproven allegation of any of a broad range of unfair labor practices justifies indefinite delay because of a discretionary administrative determination of the potential impact of the alleged misconduct on employees' ability to cast a free and uncoerced vote on the question of representation. This presumption goes well beyond the presumption underlying the Board's affirmative remedial bargaining order policy of barring an election for a reasonable period of time until the lingering effects of certain proven and more narrowly defined unfair labor practices can be abated
t of the alleged misconduct on employees' ability to cast a free and uncoerced vote on the question of representation. This presumption goes well beyond the presumption underlying the Board's affirmative remedial bargaining order policy of barring an election for a reasonable period of time until the lingering effects of certain proven and more narrowly defined unfair labor practices can be abated. 41 Third, as the dissenters to the Election Rule observed, the current policy of holding petitions in abeyance for certain pre-petition Type I blocking charges “represents an anomalous situation in which some conduct that would not be found to interfere with employee free choice if alleged in objections, because it occurs outside the critical election period, would nevertheless be the basis for substantially delaying holding any election at all.” 42
41 Even that remedial presumption of taint is not without its critics. See Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1463 (D.C. Cir. 1997) (Sentelle, J., concurring) (“To presume that employees are such fools and sheep that they have lost all power of free choice based on the acts of their employer, bespeaks the same sort of elitist Big Brotherism that underlies the imposition of the invalid bargaining order in this case.”).
42 79 FR 74456, citing Ideal Electric Mfg. Co., 134 NLRB 1275 (1961) (to be found objectionable, alleged conduct must occur during critical period between petition and election dates).
For the foregoing reasons, and in light of the various criticisms voiced by courts, academicians, commenters to the 2014 NPRM, dissenters to the 2014 Final Rule, and responders to the 2017 Request for Information, the Board believes, subject to comments, that the current blocking charge policy should not be maintained
onduct must occur during critical period between petition and election dates).
For the foregoing reasons, and in light of the various criticisms voiced by courts, academicians, commenters to the 2014 NPRM, dissenters to the 2014 Final Rule, and responders to the 2017 Request for Information, the Board believes, subject to comments, that the current blocking charge policy should not be maintained. Although the 2014 Election Rule addition of Section 103.20 made some effort to address concerns about unmeritorious charges needlessly delaying Board-conducted elections, the Board is inclined, subject to comments, to institute more substantial measures to protect employee free choice and ensure that employees are able to realize their right to have their votes “recorded accurately, efficiently, and speedily.” 43
43 NLRB v. A.J. Tower Co., 329 U.S. at 331. As indicated in fn. 4 above, the Board disagrees with observations by both the majority and dissent in their respective discussions of the 2014 Election Rule that the blocking charge policy was incorporated into or embedded in that rule. Sec. 103.20 incorporates only certain evidentiary procedures to be applied to blocking charges. Although the majority clearly endorsed the current blocking charge policy, determination of whether and when a blocking charge policy should apply is not addressed in the 2014 Election Rule. It remains a product of adjudication outside the Board's Rules, details of which are summarized in the General Counsel's nonbinding Casehandling Manual.
Having preliminarily reviewed numerous suggestions for revision or elimination of this policy, the Board proposes to adopt the vote and impound procedure suggested by the General Counsel in response to the 2017 Request for Information. Under this new policy, as set forth in an amended Section 103.20 of the Rules, regional directors will continue to process a representation petition and will conduct an election even when an unfair labor practice charge and blocking request have been filed
y, the Board proposes to adopt the vote and impound procedure suggested by the General Counsel in response to the 2017 Request for Information. Under this new policy, as set forth in an amended Section 103.20 of the Rules, regional directors will continue to process a representation petition and will conduct an election even when an unfair labor practice charge and blocking request have been filed. If the charge has not been resolved prior to the election, the ballots will remain impounded until the Board makes a final determination regarding the charge. As further explained by the General Counsel: “Adoption of a vote-and-impound protocol while the region investigates a charge would allow for balloting when 44
44 General Counsel's April 18, 2018 response to the Board's Request for Information regarding the 2014 Election Rule, p. 2, available for viewing on the Board's public website at https://www.nlrb.gov/reports-guidance/public-notices/request-information/submissions.
The Board believes, subject to comment, that the proposed vote-and-impound rule best satisfies the goal of protecting employee free choice in cases where, under existing policy, the election would be blocked by assuring that petitions will be processed to an election in the same timely manner as in unblocked petition cases. The concern for protection of that choice from coercion by unfair labor practices will still be met by holding the counting of ballots and certification of results until a final determination has been made as to the merits of the unfair labor practice allegations and the effects on the election of any violations found to have been committed.
Modification To Current Immediate Voluntary Recognition Bar
The Board proposes, subject to comments, to overrule Lamons Gasket, to reinstate the Dana notice and open period procedures following voluntary recognition under Section 9(a), and to incorporate those procedures in the Rules as a new Section 103.21(a)
ions and the effects on the election of any violations found to have been committed.
Modification To Current Immediate Voluntary Recognition Bar
The Board proposes, subject to comments, to overrule Lamons Gasket, to reinstate the Dana notice and open period procedures following voluntary recognition under Section 9(a), and to incorporate those procedures in the Rules as a new Section 103.21(a). This modification to the current immediate voluntary recognition bar is not intended to and should not have the effect of discouraging parties from entering into collective-bargaining relationships and agreements through the undisputedly valid procedure of voluntary recognition based on a contemporaneous showing of majority support. However, the Board believes, subject to comments, that the justifications expressed in the Dana Board majority and Lamons Gasket dissenting opinions for the limited post-recognition notice and open period requirements are more persuasive than those expressed by the Lamons Gasket Board majority in support of an immediate voluntary recognition bar.
It is undisputed that “secret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.” NLRB v. Gissel Packing Co., 395 U.S. at 602. Although voluntary recognition is a valid method of obtaining recognition, authorization cards used in a card-check recognition process are “admittedly inferior to the election process.” Id. at 603. The Board believes that the Lamons Gasket majority failed to accept this distinction or the several reasons, summarized above, articulated by the Dana majority supporting it. Further, the Board believes that the Lamons Gasket majority failed to address at all the cumulative effect of an immediate recognition bar and a subsequent contract bar that would apply if parties execute a collective-bargaining agreement during the six-month to one-year reasonable bargaining period following the first bargaining session following voluntary recognition
Dana majority supporting it. Further, the Board believes that the Lamons Gasket majority failed to address at all the cumulative effect of an immediate recognition bar and a subsequent contract bar that would apply if parties execute a collective-bargaining agreement during the six-month to one-year reasonable bargaining period following the first bargaining session following voluntary recognition. In this circumstance, employees denied an initial opportunity to vote in a secret-ballot Board election on the question of representation could be denied that opportunity for as many as four years. 45
45 Indeed, because the reasonable period for bargaining runs from the date of the first bargaining session following voluntary recognition, and because parties often need time following voluntary recognition to formulate their positions before they meet and bargain, the combination of immediate voluntary recognition bar followed by contract bar could deny employees a vote on the question of representation for more than four years.
The Board also believes, in agreement with the Lamons Gasket dissent, that the Board election statistics cited by the Lamons Gasket majority with respect to the limited number of elections held under Dana procedures support, rather than detract from, the need for a notice and brief open period following voluntary recognition. “In sum, here is what we really know from the Dana experience: (1) Dana has served the intended purpose of assuring employee free choice in those cases where the choice made in the preferred Board electoral process contradicted the showing on which voluntary recognition was granted; (2) in those cases where the recognized union's majority status was affirmed in a Dana election, the union gained the additional benefits of 9(a) certification, including a 1-year bar to further electoral challenge; (3) there is no substantial evidence that Dana has had any discernible impact on the number of union voluntary recognition campaigns, or on the success rate of such campaigns; an
nted; (2) in those cases where the recognized union's majority status was affirmed in a Dana election, the union gained the additional benefits of 9(a) certification, including a 1-year bar to further electoral challenge; (3) there is no substantial evidence that Dana has had any discernible impact on the number of union voluntary recognition campaigns, or on the success rate of such campaigns; and (4) there is no substantial evidence that Dana has had any discernible impact on the negotiation of bargaining agreements during the open period or on the rate at which agreements are reached after voluntary recognition.” 46
46 Lamons Gasket, 357 NLRB at 751.
In conclusion, the Board believes, subject to comments, that it is necessary and appropriate to modify the current voluntary recognition bar doctrine by reestablishing through rulemaking a post-recognition period in which employees and rival unions are permitted to file an election petition before the imposition of an election bar. This modification does not diminish the role that voluntary recognition plays in the creation of bargaining relationships but ensures that employee free choice has not been impaired by a process that is less reliable than Board elections.
Modified Requirements for Proof of Section 9(a) Relationships in the Construction Industry
The Board proposes, subject to comments, to overrule Staunton Fuel, to adopt the D.C. Circuit's position that contract language alone cannot create a 9(a) bargaining relationship in the construction industry, and to incorporate the requirement of extrinsic proof of contemporaneous majority support in a new Section 103.21(b) of the Board's Rules. The Board believes that several reasons support this change. First, as emphasized by the D.C
to overrule Staunton Fuel, to adopt the D.C. Circuit's position that contract language alone cannot create a 9(a) bargaining relationship in the construction industry, and to incorporate the requirement of extrinsic proof of contemporaneous majority support in a new Section 103.21(b) of the Board's Rules. The Board believes that several reasons support this change. First, as emphasized by the D.C. Circuit opinion in Colorado Fire Sprinkler, the Staunton Fuel test literally permits an employer and union to “paper over” the Deklewa presumption that collective-bargaining relationships in the construction industry are governed by Section 8(f), under the second proviso to which a Board election cannot be barred at any time. Second, the Staunton Fuel test goes one step beyond the problems described above with respect to the current voluntary recognition election bar. At least under the recognition bar policy as applied outside the construction industry, there is undisputed proof of employee majority support, through union authorization cards or a pro-union petition, when the union and employer enter into a bargaining relationship. Under Staunton Fuel, an initial bargaining relationship Staunton Fuel is similar to the flawed “conversion doctrine” that Deklewa repudiated. Finally, and most importantly, the Board believes, subject to comments, that the repeated criticisms voiced by the D.C. Circuit raise a legitimate concern that the current Staunton Fuel test conflicts with statutory majoritarian principles and represents an impermissible restriction on employee free choice, particularly in light of the protections intended by the second proviso of Section 8(f)
ed. Finally, and most importantly, the Board believes, subject to comments, that the repeated criticisms voiced by the D.C. Circuit raise a legitimate concern that the current Staunton Fuel test conflicts with statutory majoritarian principles and represents an impermissible restriction on employee free choice, particularly in light of the protections intended by the second proviso of Section 8(f).
The Board believes, subject to comments, that the proposed rule requiring positive evidence, apart from contract language, that a union unequivocally demanded recognition as the Section 9(a) exclusive bargaining representative of employees in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit, will restore the protections of employee free choice in the construction industry that Congress intended, that Deklewa sought to secure, and that the D.C. Circuit insists must be restored.
IV. Response to the Dissent
Here, in a nutshell, is our colleague's dissent: She likes the present state of law on the issues raised, particularly because it accords with the views of a prior Board majority that had no hesitation about overruling numerous Board precedents on their own initiative on issues where the results were not to their liking. 47 She has chastised the current Board on innumerable occasions for failing to seek public input prior to overruling precedent, yet she claims we have no right to seek that input on the three issues for which we here seek broad comment. She contends, quite incorrectly, that the well-established standard for determining whether rulemaking is reasoned or arbitrary should be applied at the beginning of the process, prior to the issuance of an NPRM, rather than in judicial review of the end result of the process, after issuance of a Final Rule based on results from the notice-and-comment process
for which we here seek broad comment. She contends, quite incorrectly, that the well-established standard for determining whether rulemaking is reasoned or arbitrary should be applied at the beginning of the process, prior to the issuance of an NPRM, rather than in judicial review of the end result of the process, after issuance of a Final Rule based on results from the notice-and-comment process. Moreover, she treats each proposal we make in the NPRM as sui generis, lacking any basis in the prior academic, judicial, or internal Board criticisms that we have cited, which she either ignores or summarily rejects.
47 In addition to Lamons Gasket, supra, see United States Postal Service, 364 NLRB No. 116 (2016); E.I. Du Pont de Nemours, 364 NLRB No. 113 (2016); Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016); Trustees of Columbia University, 364 NLRB No. 90 (2016): Miller & Anderson, Inc., 364 NLRB No. 39 (2016); Graymont PA, Inc., 364 NLRB No. 37 (2016); Loomis Armored US, Inc., 364 NLRB No. 23 (2016); Guardsmark, LLC, 363 NLRB No. 103 (2016); Lincoln Lutheran of Racine, 362 NLRB 1655 (2015); Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015); Piedmont Gardens, 362 NLRB 1135 (2015); Babcock & Wilcox Construction Co., Inc., 361 NLRB 1127 (2014); Purple Communications, Inc., 361 NLRB 1050 (2014); Pressroom Cleaners, 361 NLRB 643 (2014); FedEx Home Delivery, 361 NLRB 610 (2014); and UGL-UNICCO Service Co., 357 NLRB 801 (2011). The 2014 Election Rule also overruled precedent previously established in case adjudication.
We need go no further in discussing the details of the dissent, other than to note that we already have her predetermined opinion about the proposals, regardless of what comments or further analysis may ensue.
V
FedEx Home Delivery, 361 NLRB 610 (2014); and UGL-UNICCO Service Co., 357 NLRB 801 (2011). The 2014 Election Rule also overruled precedent previously established in case adjudication.
We need go no further in discussing the details of the dissent, other than to note that we already have her predetermined opinion about the proposals, regardless of what comments or further analysis may ensue.
V. Dissenting View of Member Lauren McFerran
The majority today presents a wide-ranging proposal to radically remake three longstanding Board policies via rulemaking: (1) The blocking charge doctrine, which protects employee free choice by permitting the Board to delay a union-representation election in the face of unfair labor practice allegations; (2) the voluntary recognition bar doctrine, which encourages collective bargaining and promotes industrial stability by allowing a union—after being voluntarily recognized by an employer—to represent employees for a certain period without being subject to challenge; and (3) the Staunton Fuel doctrine, which both preserves and encourages collective-bargaining relationships by permitting a union in the construction industry to establish its majority status by pointing to certain language in its collective-bargaining agreement with the employer. Each of the majority's proposed changes would make it harder for employees to get, or to keep, union representation. It is common knowledge that the Board's limited resources are severely taxed by undertaking a rulemaking process, instead of deciding cases already waiting for Board action. 48 And while rulemaking can potentially be a useful tool in appropriate circumstances, 49 the Board should not undertake this arduous process without proper justification. Finally, of course, the rules it adopts should actually further the goals of the National Labor Relations Act, not undermine them.
48 See, e.g., Jeffrey M. Hirsch, Defending the NLRB: Improving the Agency's Success in the Federal Courts of Appeals, 5 FIU L. Rev
ally be a useful tool in appropriate circumstances, 49 the Board should not undertake this arduous process without proper justification. Finally, of course, the rules it adopts should actually further the goals of the National Labor Relations Act, not undermine them.
48 See, e.g., Jeffrey M. Hirsch, Defending the NLRB: Improving the Agency's Success in the Federal Courts of Appeals, 5 FIU L. Rev. 437, 457 (2010) (explaining that rulemaking at the Board would consume significant resources, especially “given that the NLRB is banned from hiring economic analysts”).
49 For example, in my dissent in The Boeing Company, 365 NLRB No. 154, slip op. at 43 (2017) (dissenting opinion), I suggested that the Board should have considered formulating model rules rather than using adjudication to making sweeping categorical determinations about the lawfulness of rules not presented in the case at hand.
The impetus for the majority's project is difficult to discern. Certainly, today's proposal—though purporting to address representation case procedures—is not responsive to the Board's 2014 Election Rule, which included only modest revisions to the Board's blocking charge policy and did not implicate the other two issues raised here. Tellingly, only a very small number of responses to the Board's 2017 Request for Information regarding election regulations even touched on the subjects of this Notice. Nor are there rulemaking petitions pending on any of these issues. Indeed, it appears that this initiative—which pieces together three seemingly unconnected proposals—exists primarily as a vehicle for the majority to alter precedents that have not presented themselves for the Board's attention in the normal course of adjudication (or at least not as quickly as the majority would like)
this Notice. Nor are there rulemaking petitions pending on any of these issues. Indeed, it appears that this initiative—which pieces together three seemingly unconnected proposals—exists primarily as a vehicle for the majority to alter precedents that have not presented themselves for the Board's attention in the normal course of adjudication (or at least not as quickly as the majority would like). 50
50 Notably, in Loshaw Thermal Technology, LLC, 05-CA-158650, the Board requested public briefing on one of the issues presented here—namely, whether Section 9(a) bargaining relationships in the construction industry may be established by contract language alone. That request for briefing was suspended and ultimately rescinded after the charging party union withdrew the underlying unfair labor practice charge. The Board has not been presented with another case addressing the issue.
More questionable than the proposal's origin, however, is the majority's thin justification for revisiting the law. Quite simply, the majority cannot change the law in these three areas just because it wants to. As the Supreme Court has long recognized, “A `settled course of [agency] behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress.' ” Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41-42 (1983) (quoting Atchison, v. Wichita Bd. of Trade, 412 U.S. 800, 807 (1973). It follows, therefore, that when an agency seeks to change its policy—particularly long-settled policy—the agency must provide a “reasoned explanation” for why it is changing the policy and “must show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-515 (2009). Such an explanation must address the agency's reasons for “ ‘disregarding facts and circumstances . . . that underlay . . . the prior policy.' ” 51
51 Encino Motorcars, LLC v
d policy—the agency must provide a “reasoned explanation” for why it is changing the policy and “must show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-515 (2009). Such an explanation must address the agency's reasons for “ ‘disregarding facts and circumstances . . . that underlay . . . the prior policy.' ” 51
51 Encino Motorcars, LLC v. Navarro, —U.S.—,136 S. Ct. 2117 at 2126 (2016), quoting FCC, 556 U.S. at 515-516.
The majority's proposal, at least at this stage of the proceedings, fails to meet even minimal standards of reasoned decisionmaking. The proposal relies on faulty premises, fails to ask critical questions, and fails to analyze the relevant data and agency experience.
First, the majority proposes to eliminate the Board's blocking charge policy—an 80-year old doctrine under which the Board may decline to process election petitions over party objections when there are pending unfair labor practice charges that would potentially taint the election environment. In its place, the majority would implement a vote-and-impound procedure that would require regional directors to process all election petitions and hold elections no matter how serious the pending unfair labor practice charges and no matter how powerful the indicia of their merit. The admitted result of the new policy would be to require regional directors to run—and employees, unions, and employers to participate in—elections conducted under coercive conditions that interfere with employee free choice.
Unfortunately, it does not appear that the majority has done any of the rigorous analytical work that should be involved in pursuing such a dramatic change in Board law. My colleagues have not asked critical questions about blocked petitions, and they have failed to analyze relevant, available data about how the blocking charge policy works in practice and the effect of the proposed vote-and-impound procedure if adopted
not appear that the majority has done any of the rigorous analytical work that should be involved in pursuing such a dramatic change in Board law. My colleagues have not asked critical questions about blocked petitions, and they have failed to analyze relevant, available data about how the blocking charge policy works in practice and the effect of the proposed vote-and-impound procedure if adopted. The result is an unjustified policy change that would unacceptably undermine employee free choice and the policies of the Act.
Second, the majority proposes to radically alter the Board's voluntary recognition bar doctrine, which currently provides that an employer's voluntary recognition of a union insulates the union from an election challenge for a reasonable period of time, to permit collective bargaining. Instead, the majority would reinstate the Board's discredited and short-lived Dana approach, establishing a 45-day “window period” after voluntary recognition during which employees may file a decertification petition supported by a 30-percent showing of interest. Here, the majority again seeks to upend a well-established Board doctrine—supported by over 50 years of caselaw—without presenting any new policy justifications, legal grounds, or evidentiary support on the side of its position. In its place, the majority would implement an approach that the Board had previously repudiated in a carefully-considered, evidence-based decision. The result of the majority's proposal is contrary to the policies of the Act—discouraging the establishment of stable collective bargaining relationships by creating unnecessary procedural hurdles undermining a union that has already lawfully secured recognition. 52
52 This is not the first time the current majority has made changes—or signaled its intent to make changes—the primary effect of which is to make it easier to oust lawfully-recognized unions. See, e.g., Silvan Industries, 367 NLRB No
hment of stable collective bargaining relationships by creating unnecessary procedural hurdles undermining a union that has already lawfully secured recognition. 52
52 This is not the first time the current majority has made changes—or signaled its intent to make changes—the primary effect of which is to make it easier to oust lawfully-recognized unions. See, e.g., Silvan Industries, 367 NLRB No. 28 (2018) (undermining the Board's contract bar doctrine); see also Bay at North Ridge Health and Rehabilitation Center, LLC, 18-RD-208565 (Feb. 14, 2018) and Apple Bus Co., 19-RD-203378 (Dec. 14, 2017) (noting current majority members' disagreement with the successor bar doctrine).
Finally, the majority proposes to discard the 18-year-old Staunton Fuel doctrine and instead adopt a rule providing that, in the construction industry, neither voluntary recognition of the union by the employer nor a collective-bargaining agreement between the parties will bar election petitions filed under Section 9(c) or 9(e) of the Act “absent positive evidence” (as detailed in the rule) that the collective-bargaining relationship was established under the majority-support requirement of Section 9(a) of the Act. As I will explain, the majority's proposal—which runs counter to well-established Board law in unfair labor practice cases—purports to solve a non-existent problem, while failing adequately to acknowledge the actual problem that Staunton Fuel was intended to address.
Almost everything about today's initiative—from the lack of justification for rulemaking, to the near-random grouping of unrelated topics, to the poorly conceptualized proposals—seems arbitrary. Moreover, all of the majority's proposals, if implemented, would run contrary to the stated goals of the Act, which is intended to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of . .
—from the lack of justification for rulemaking, to the near-random grouping of unrelated topics, to the poorly conceptualized proposals—seems arbitrary. Moreover, all of the majority's proposals, if implemented, would run contrary to the stated goals of the Act, which is intended to “encourag[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” (in the words of Section 1). For all of these reasons, I dissent from the majority's decision to issue the notice of proposed rulemaking (NPRM).
A. Blocking Charge Policy
It is a foundational principle of United States labor law that when a petition is filed with the Board seeking an election to enable employees to decide whether they wish to be represented by a union, the Board's paramount role in overseeing the process is to protect employee free choice. 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.
There is general agreement that, under ordinary circumstances, the Board should conduct elections expeditiously. However, as anyone remotely familiar with the history of the National Labor Relations Act is aware, Board volumes are filled with cases describing unlawful conduct that interferes with the ability of employees to make a free choice about union representation in an election. Accordingly, for more than 80 years, the Board has maintained a “blocking charge policy” whereby the Board may (at least temporarily) decline to process election petitions over party objections when there are pending unfair labor practice charges alleging conduct that would interfere with employee free choice until the merits of those charges are resolved
about union representation in an election. Accordingly, for more than 80 years, the Board has maintained a “blocking charge policy” whereby the Board may (at least temporarily) decline to process election petitions over party objections when there are pending unfair labor practice charges alleging conduct that would interfere with employee free choice until the merits of those charges are resolved.
In cases where the charges prove meritorious and there has been conduct that would interfere with employee free choice in an election, the blocking charge policy protects employee free choice by delaying the election until those unfair labor practices have been remedied and employees can register a free and untrammeled choice for or against union representation. At the same time, the blocking charge policy also respects the rights of employees in the subset of cases where the charges are subsequently found to lack merit, because the policy provides for regional directors to resume processing those petitions to elections.
Today, the majority abruptly proposes to jettison the blocking charge policy adhered to by Boards of differing perspectives for more than 8 decades. The majority proposes to replace the all petitions to elections—no matter how serious the pending unfair labor practice charges, and even if a regional director and an administrative law judge have determined those charges to have merit—unless there has been a “final determination by the Board” itself. In other words, as my colleagues implicitly concede, the proposed vote-and-impound procedure will require regional directors to run—and employees, unions, and employers to participate in—elections conducted under coercive conditions that interfere with employee free choice. This would be a shocking abdication of the Board's statutory duties
ere has been a “final determination by the Board” itself. In other words, as my colleagues implicitly concede, the proposed vote-and-impound procedure will require regional directors to run—and employees, unions, and employers to participate in—elections conducted under coercive conditions that interfere with employee free choice. This would be a shocking abdication of the Board's statutory duties.
As currently drafted and justified, the majority's proposal to replace the blocking charge policy with a vote-and-impound procedure reflects a failure to engage in the sort of reasoned decision-making demanded of the Board and other administrative agencies. My colleagues have not laid even the basic foundation for a rulemaking supported by substantial evidence. They have assumed the existence of a problem and rushed to a solution without doing any of the rigorous analytical work that should be involved in the rulemaking process. They have not asked critical questions about blocked petitions, and they have failed to analyze relevant, available data about how the blocking charge policy has worked in practice and how the proposed vote-and-impound procedure would work if adopted.
Not surprisingly, from this flawed process a flawed proposal has emerged. The Board's experience and data shows that the predictable outcome of the majority's proposal would be to require regional directors to run, and employees, unions, and employers to participate in, an unacceptably high proportion of elections conducted under coercive conditions, undermining employee rights and the policies of the Act, while imposing unnecessary costs on the parties and the Board.
1.
Section 7 of the Act grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection[.]” 29 U.S.C. 157
Act, while imposing unnecessary costs on the parties and the Board.
1.
Section 7 of the Act grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection[.]” 29 U.S.C. 157. The most commonly travelled route for employees to union representation is through the Board's election processes. Indeed, it has been said—and the majority repeats today—that a secret-ballot election is the Board's preferred route, because a secret-ballot election conducted under the Board's safeguards is normally the most reliable means of determining whether employees truly desire union representation.
Section 7 also grants employees the right to refrain from union activity, and previously represented employees may become unrepresented in a variety of ways. For example, when presented with evidence that an incumbent union no longer has majority backing, an employer sometimes may withdraw recognition from the union and refuse to bargain. See Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 361 (1998). However, a secret-ballot election conducted under the Board's safeguards is also the “preferred” means of determining whether employees truly desire to rid themselves of their incumbent representative. See, e.g., Scomas of Sausalito, LLC v. NLRB, 849 F.3d 1147, 1152 (D.C. Cir. 2017) (quoting Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723, 725-727 (2001) (“ Levitz” )). 53
53 The Act permits employees to petition for an election to decertify an incumbent collective-bargaining representative. 29 U.S.C. 159(c)(1)(A)(ii). And employers who doubt the majority support of incumbent unions may themselves petition for elections at an appropriate time as well. See Levitz, 333 NLRB at 720-721 & n.24
ure Co. of the Pacific, 333 NLRB 717, 723, 725-727 (2001) (“ Levitz” )). 53
53 The Act permits employees to petition for an election to decertify an incumbent collective-bargaining representative. 29 U.S.C. 159(c)(1)(A)(ii). And employers who doubt the majority support of incumbent unions may themselves petition for elections at an appropriate time as well. See Levitz, 333 NLRB at 720-721 & n.24.
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, 126-127 (1948) (a Board conducted election “can serve its true purpose only if the surrounding conditions enable employees to resister a free and untrammeled choice for or against a bargaining representative.”). 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).
Since the earliest days of the Act, the Board has had a policy—commonly referred to as the blocking charge policy—of generally declining to process a petition to an election over party objections when unfair labor practice charges allege conduct that, if proven, would interfere with employee free choice in an election. 54 The rationale for the blocking charge policy is straightforward: It is “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 (2017)
ctions when unfair labor practice charges allege conduct that, if proven, would interfere with employee free choice in an election. 54 The rationale for the blocking charge policy is straightforward: It is “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 (2017). “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). Indeed, the ability of regional directors to hold petitions in abeyance when unfair labor practice charges allege conduct that would interfere with employee free choice is one of the safeguards that renders Board-conducted elections the preferred means of determining whether employees wish to obtain, or retain, union representation.
54 See United States Coal & Coke Co., 3 NLRB 398, 399 (1937). See generally, The Developing Labor Law 561-63 (John E. Higgins, Jr., ed., 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
th 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[.]”).
It is important to understand that, contrary to the majority's suggestion, the mere filing of an unfair labor practice charge does not automatically cause a petition to be held in abeyance under the blocking charge policy. Casehandling Manual Sections 11730, 11731. 55 Indeed, a regional director may Columbia Pictures Corp., 81 NLRB 1313, 1314-1315 fn. 9 (1949). 56
55 See 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 has long declined to hold a petition in abeyance if the pending unfair labor practice charge does 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)
eclined to hold a petition in abeyance if the pending unfair labor practice charge does 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).
56 The Board has also directed an immediate election, despite pending charges, in order to hold the election within 12 months of the beginning of an economic strike so as not to disenfranchise economic strikers, American Metal Products Co., 139 NLRB 601, 604-605 (1962), or in order to prevent harm caused to the economy by a strike resulting from an unresolved question of representation, New York Shipping Association, 107 NLRB 364, 375-376 (1953). The Casehandling Manual sets forth other circumstances when regional directors may decline to block petitions. Casehandling Manual Section 11731.
Blocking charges fall into two broad categories. The first, called Type I charges, encompasses charges that allege conduct that merely interferes with employee free choice. Casehandling Manual at Section 11730.1. Examples of Type I charges include 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. Under the policy, when (1) a party to the representation case requests that its unfair labor practice charge block processing the petition, (2) the charge alleges conduct that, if proven, would interfere with employee free choice in an election were one to be conducted and is accompanied by a sufficient offer of proof, and (3) the charging party promptly makes it witnesses available, the charge should be investigated and either dismissed, withdrawn, or remedied before the petition is processed to an election (unless, of course, an exception is applicable). Id. at Sections 11730; 11730.2; 11733.1
e with employee free choice in an election were one to be conducted and is accompanied by a sufficient offer of proof, and (3) the charging party promptly makes it witnesses available, the charge should be investigated and either dismissed, withdrawn, or remedied before the petition is processed to an election (unless, of course, an exception is applicable). Id. at Sections 11730; 11730.2; 11733.1.
If upon completion of the investigation of the charge, the regional director determines that the charge lacks merit and should be dismissed absent withdrawal, the regional director resumes processing the petition and conducts an election where appropriate. Id. at Section 11732. If the regional director determines that the Type I charge has merit, the director refrains from conducting an election until the charged party has taken all the remedial action required by the settlement agreement, administrative law judge's decision, Board order, or court judgment. Id. at Sections 11730.2; 11734.
The second broad category of blocking charges, called Type II charges, encompasses charges that allege conduct that not only interferes with employee free choice, but that also is inherently inconsistent with the petition itself. Id. at Section 11730.1. Such charges may block a related petition during the investigation of the charges, because a determination of the merit of the charges may also result in the dismissal of the petition. Id. at Section 11730.3. Examples of Type II charges include allegations that an employer's representative was directly involved in the initiation of a decertification petition, or allegations of an employer's refusal to bargain, for which the remedy is an affirmative bargaining order. Ibid.
If the regional director determines that the Type II charge has merit, then the director may dismiss the petition, subject to a request for reinstatement by the petitioner after final disposition of the unfair labor practice case
lved in the initiation of a decertification petition, or allegations of an employer's refusal to bargain, for which the remedy is an affirmative bargaining order. Ibid.
If the regional director determines that the Type II charge has merit, then the director may dismiss the petition, subject to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-17105. Check the current official text before relying on it. Not legal advice.