As many of you are aware, the National Labor Relations Board (the “NLRB”) published a notice of proposed rulemaking back in November, 2022 (the “Proposed Rule”).  The notice announces a plan to roll back the following three policies established by the earlier administrations: the so-called “blocking charge” policy; the voluntary-recognition bar; and Section 8(f) of the National Labor Relations Act (the “NLRA”) relating to agreements applicable to workers in the construction industry.  A ruling is expected sometime after the expiration of the February 2, 2023 comment period deadline.  We explain the three key proposed changes below.

Part One of the Proposed Rule: Blocking Charge

First, the Proposed Rule seeks to reinstate the NLRB’s “blocking charge” policy.  Currently, if a party to an election files an unfair labor practice charge while an election is pending, the election is held irrespective of the charge.  Under the Proposed Rule, if a party files an unfair labor practice charge, a regional director may delay the election if the conduct alleged threatens to interfere with employee free choice.

The NLRB states this will conserve resources and avoid reelections, but such blocking has the potential to delay elections and can mean employees may move on before they have an opportunity to vote.

Part Two of the Proposed Rule: Traditional Voluntary Recognition

The second part of the Proposed Rule would eliminate the 2020 voluntary recognition bar.  Currently, under the 2020 rule, if a union proffers signed cards from a majority of the proposed bargaining unit, the voluntary recognition will not bar the processing of an election petition unless: (1) the employer and union notifies the NLRB’s Regional Office of the recognition; (2) the employer posts a prescribed notice of recognition to inform employees and notify them of the 45-day window period beginning on the date the notice is posted; (3) the employer distributes electronic notices to employees; and (4) no election petition is filed in the 45-day window.  The Proposed Rule would do away with these requirements.  Under the Proposed Rule, once voluntary recognition is granted to a union, the union then becomes the exclusive collective bargaining representative of the employees.

Immediate voluntary recognition means that employees who are unaware of a union’s organizing no longer have a right to notice of the voluntary recognition or time to challenge it. Under this approach, employees and unions may be unable to facilitate secret-ballot elections to determine whether the union has majority support following an extension of voluntary recognition.

Part Three of the Proposed Rule: Construction Industry Recognition

Most industries require that union recognition be supported by certification following a secret ballot election or by voluntary recognition based on signatures from a majority of employees.  The construction industry is different.  Until 2020, under Section 8(f) of the NLRA, an employer and a labor organization could establish a collective bargaining relationship without proof of majority support.  The 2020 rule changed this, requiring majority support of employees before union recognition.  The Proposed Rule would overturn the 2020 requirement and reinstate the possibility of binding recognition through the language in a collective bargaining agreement.  It also would re-impose the 6-month limitation period for challenging the employer’s recognition.

Implementing this recognition could counteract uncertainty and unpredictability in construction-industry labor relations created by the 2020 rule. However, concerns exists that the construction industry recognition allows employees to convert a Section 8(f) bargaining relationship without evidence that there is majority support of the union.

Construction contractors should keep a close eye on the Proposed Rule.  If adopted, they should take appropriate steps to ensure they understand its impact on labor relations moving forward.  Of course, each situation is different.  Consultation with competent and experienced counsel is recommended.