NLRB Makes Voting Out Unions Easier

By Allen Smith, J.D.
April 2, 2020 - HSHRM

​The National Labor Relations Board (NLRB) issued a final rule March 31 that will make it easier for unionized workers who are dissatisfied with their unions to vote them out. The rule is scheduled to take effect May 31, 60 days after it appeared in the Federal Register on April 1.

The final rule "definitely creates more opportunities for decertification efforts by employees," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. Employees, not employers, are the ones who express their dissatisfaction with unions through decertification elections, he explained.

If at least 30 percent of employees in the bargaining unit sign a petition that states they no longer want to be represented by their union, the NLRB will conduct a decertification election to determine if most workers hold the same view.

Prior to the final rule, a union could delay a decertification election by filing "blocking charges" claiming that the employer has committed an unfair labor practice under the National Labor Relations Act (NLRA). Blocking charges were filed leading up to most decertification elections, Pryzbylski said.

By contrast, said Charlie Morgan, an attorney with Alston & Bird in Atlanta, an employer has no similar method of blocking a regular union election.

Blocking Charges Reined In

Under the final rule, filing blocking charges with the NLRB will not delay an election, but it may delay the vote count or results certification. Ballots will be counted or impounded, depending on the nature of the blocking charges, until the charges are resolved.

The final rule requires impoundment only when unfair labor practice charges allege the following:

• NLRA violations that challenge the circumstances surrounding the petition to decertify or the showing of interest submitted in support of the petition.
• An employer has dominated a union in violation of the NLRA and seeks to end a bargaining relationship.

These are "egregious circumstances" when impounding the vote would be necessary, Pryzbylski said. If the NLRB has issued a complaint within 60 days of the election, the ballot box is sealed, and the votes aren't counted until a determination is made that there was no unlawful conduct. If there was unlawful conduct, the election might be held again, he noted.

If an egregious-circumstances charge is withdrawn or dismissed at any time prior to expiration of the 60-day post-election period, or if the period ends without the board issuing a complaint, then the ballots will be promptly opened and counted, the NLRB said.

The final rule further provides that the 60-day period will not be extended, even if more than one charge of unfair labor practices are filed serially.

For all other types of unfair labor practice charges, the final rule—unlike the proposed rule—provides that the ballots will be opened and counted at the conclusion of the election, rather than temporarily impounded.

Other Changes

The final rule also modifies voluntary-recognition requirements:

• It revises the voluntary-recognition bar, which prevents employees from filing a decertification petition for a "reasonable period" after an employer voluntarily recognizes a union. A reasonable period could last six months to a year after voluntary recognition, plus an additional three years if the employer and union enter a collective bargaining agreement, Pryzbylski said. Now, for the voluntary recognition bar to apply, the employer would have to notify bargaining unit employees that it voluntarily recognizes the union and give workers a 45-day window to file a decertification petition.
• It limits the voluntary-recognition bar in the construction industry, where special rules apply. Many construction projects are short term; a construction employer and a union, therefore, can enter an agreement before a worksite is staffed. But union recognition can be withdrawn when the collective bargaining agreement ends, unless the union gains majority support. The employer can voluntarily agree in a subsequent collective bargaining agreement that the union has gained majority support. Under the final rule, proof that most employees support the union cannot be based solely on contract language.

Prior to this final rule, unions would put language into many construction bargaining contracts to try to make them more like regular collective bargaining agreements and harder to exit. They would try to use that language to convert the contracts into agreements that required decertification to end union representation, Pryzbylski said.

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