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Latest Trump NLRB Rulemaking Push Focuses on Union Elections (1)

Aug. 9, 2019, 12:46 PMUpdated: Aug. 9, 2019, 8:07 PM

The federal labor board has proposed changing three of its rules for bringing in or kicking out unions as workers’ exclusive bargaining representatives.

In plans made public Aug. 9, the National Labor Relations Board will use administrative rulemaking to reshape its “blocking charge” policy to prevent unions from stopping decertification votes by accusing employers of election interference. Under the board’s proposal, votes would proceed but the ballots would be impounded pending the resolution of charges.

The NLRB’s proposed rule also would amend the “voluntary recognition bar,” which currently makes workers wait at least six months before they can file decertification petitions to oust unions that employers had voluntarily recognized as their exclusive bargaining agents.

The board’s proposal also calls for overturning precedent on what a union must do to show that a pre-hire arrangement with a construction company has become a full bargaining relationship. Construction companies can withdraw from a pre-hire agreement with a union once the agreement expires, but they can’t walk away from a union with full bargaining rights unless the union loses majority support.

The proposal to change those three policies marks another major step in the Trump labor board’s attempts to use formal notice-and-comment rulemaking to shape labor law. The board has rarely used rulemaking to establish rules; instead, it’s acted through decisions in individual cases.

The NLRB already is developing its joint employer regulation about when two business entities share liability for a group of contracted or franchised workers. The agency is reviewing nearly 30,000 public comments it received on its joint employer proposal.

More rulemaking proposals could be in the offing. The board announced in May its intention to issue rules on the employment status of college student workers and access to employers’ private property.

Protecting Choice, GOP Majority Says

The board’s three Republican members favor the new rulemaking proposal, while the sole Democratic member opposes it.

NLRB Chairman John Ring said safeguarding the freedom of employees to choose whether to unionize is among the agency’s most important responsibilities.

“We believe that the changes we propose today further the goal of protecting this vital freedom,” Ring said in a statement.

Democratic member Lauren McFerran said the board’s proposal doesn’t meet minimal standards for reasoned rulemaking, relying on faulty premises and failing to analyze data or agency experience.

The GOP majority rejected McFerran’s arguments in a brief, sharply worded response that accused her of prejudging the issues “regardless of what comments or further analysis may ensue.”

The majority’s unusually short and dismissive response to the dissent signals its “very palpable frustration” with McFerran delaying the board’s progress on both rulemaking and case decisions, said Mark Kisicki, an attorney with management-side firm Ogletree Deakins Nash Smoak & Stewart. Kisicki said that based on that response, he expects Ring to implement deadlines on McFerran in order to speed things up.

Formal publication of the proposed rule in the Federal Register on Aug. 12 will kick off a 60-day comment period.

Blocking Charge

The change to the blocking charge policy, which pauses elections when unions or employers file unfair labor practice charges, is the most significant part of the NLRB’s proposed rule, labor law observers said.

“Blocking charge is the one area that unions take advantage of the rules to gum up the works,” said Jeffrey Hirsch, a law professor at the University of North Carolina who has written about the policy. “I’ve supported addressing it as part of a larger set of reforms. The NLRB’s approach to elections is tilted against unions, so just addressing blocking charge isn’t particularly fair.”

The policy should be changed because it can cause indefinite delay, the board said. The proposal would let those elections happen and then impound the vote until there’s a final determination on the charges.

That proposal “represents a compromise” because it would take a union’s accusations seriously and allow the agency to investigate them while the ballots are in the box, said Steven Bernstein, co-chair of labor relations at the employer-side firm Fisher & Phillips.

But the Republican members’ vote-and-impound proposal would undermine worker rights and force them to participate in elections under coercive conditions, McFerran said.

Recognition Bar

The current voluntary recognition bar, the board says, can delay a vote to challenge a union’s majority support by as many as four years. The proposed rule would require employers to tell their workers that they’ve voluntarily recognized a union. It also would create a 45-day window to ask for a decertification election following the voluntary recognition.

The proposal would repeal the NLRB’s Obama-era ruling in Lamons Gasket, which created the current recognition bar, and reinstate the notice requirement and window period from its 2007 decision in Dana Corp.

But McFerran said the proposal would discourage establishing bargaining relationships by voluntary recognition.

“The proposed rule is obviously meant to make it harder for unions,” said Nathan Ring, a union attorney at the Urban Law Firm.

Recognition in Construction Industry

In its 2001 decision Staunton Fuel & Material, the NLRB set forth how a union in the construction industry can go from a pre-hire agreement with an employer to a full bargaining relationship. The union must prove that it got recognition from the employer and it demonstrated—or just offered to demonstrate—to the employer that it had majority support from workers, according to the ruling.

But the Staunton Fuel standard merits revision because it can allow an employer and a union to establish a full bargaining relationship based on contract language alone, the board said. The proposal would require actual evidence of majority employee support.

The GOP majority’s proposal, however, will disrupt the labor-management balance in the construction industry, McFerran said.

(Updated with additional reporting.)

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Martha Mueller Neff at; Jay-Anne B. Casuga at