Labor Board Proposes Bringing Back ‘Blocking Charge’ Policy (2)

The National Labor Relations Board proposed reviving a policy of suspending elections to eject unions when unfair labor practices are alleged, which the board effectively eliminated near the end of the Trump administration.

In addition to bringing back the “blocking charge” policy, the proposed rule that the NLRB’s Democratic majority issued Thursday would roll back two other changes that an all-Republican board made in March 2020 to its framework for how workers choose whether to be represented by unions.

The proposal, scheduled to be published in Friday’s Federal Register, calls for eliminating the 45-day window to challenge an employer’s voluntary recognition of a labor union. Doing so would fully restore the bar that prohibits decertification petitions for six months after voluntary recognition.

The NLRB’s rulemaking plan would also rescind amendments that made it easier to challenge a construction industry union’s bargaining relationship with a company.

The proposal to undo a regulation finalized a little more than two years ago underscores the accelerated policy flip-flop—known in labor law circles as “policy oscillation"—depending on which party controls the NLRB.

“The Board believes, subject to comments, that these proposed changes will better protect workers’ ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining,” Chair Lauren McFerran (D) said in a statement.

The Republican board members said the Democratic majority’s proposal to rescind the 2020 rule would reverse the gains to employee free choice that it allowed.

Coercion Shield

The blocking charge policy, which goes back more than eight decades, is designed to shield workers from voting in an atmosphere corrupted by coercion, the NLRB said in its notice of rulemaking. No court has ever invalidated the policy, despite disagreements over its application in individual cases, the board said.

Opponents of the policy say that it allows unions to file frivolous charges to delay decertification votes.

Instead of putting decertification elections on hold because of pending unfair labor practices, the 2020 change called for either counting or impounding ballots depending on the type of allegation, then certifying the election results after the charges are resolved.

The NLRB’s proposal to reinstate the blocking charge policy said the benefits of preventing a vote under the taint of unlawful conduct outweighs the delay that can result from pausing an election due to charges that lack merit.

The 2020 rule relied on flawed data—including errors uncovered by a 2019 Bloomberg Law analysis—that wasn’t corrected in the final rule, the board added.

Stability a Goal

Thursday’s proposal argued that fully restoring the bar on petitions to oust voluntarily recognized unions allows new collective bargaining relationships to function without challenge, giving them a fair chance to succeed.

The Trump board’s rule changing the voluntary recognition bar seems to invite challenges, according to the rulemaking plan. Beyond imposing the 45-day window for decertification petitions, it also requires employers to tell workers they can seek to oust the union or support a rival union’s petition.

The 2020 rule also invited instability by altering how the NLRB handles an aspect of unionization that’s unique to the construction industry. The rule reworked how unions can convert their pre-hire agreements—which allow employers and unions to negotiate without majority support from workers—to a more traditional collective bargaining relationship premised on majority support.

“Relationships ideally characterized by stability are instead plagued by continued uncertainty over whether the parties’ relationship will be challenged in the future—potentially for decades,” the board said in its proposal.

Lawsuit Dead?

The NLRB’s rulemaking on the three election-related policies appears certain to obviate the AFL-CIO’s legal challenge to the Trump-era rule.

The AFL-CIO’s lawsuit has already been on hold for more than a year pending a ruling on a related jurisdictional issue that was first raised in the labor federation’s bid to block a broader set of changes to the NLRB’s election procedures.

The court will likely freeze that litigation in light of the new rulemaking plan.

That move would mirror the pause to the Service Employee International Union’s challenge to the Trump board’s rule for determining when companies share liability that a court granted shortly after the NLRB announced its joint employer rulemaking.