New NLRB rules | NLRB restores pro-union representation rules

The National Labor Relations Board (NLRB) is restoring policies that make it easier for unions to achieve or retain recognition. The Fair Choice-Employee Voice Final Rule rescinds portions of the 2020 regulations issued by the Trump administration board and returns to the prior regulations and processes for union recognition.

The final rule will take effect on September 30, 2024, and apply only to cases that are filed after the effective date.

The final rule applies to charges of unfair practices during elections, voluntary recognition and union recognition in the construction industry:

Blocking charges: The new final rule restores a regional director’s authority to delay holding an election if they determine any alleged unfair labor conduct is sufficiently serious to interfere with employee free choice and taint the vote. This authority also extends to decertification elections. Under the current rule, an election can move forward, but ballots are not counted until a determination is made on whether the unfair labor charges (i.e., blocking charges) affected the vote. Unions may use such charges to delay an election while they work to convince more workers to vote in support of the union.

Elections after voluntary recognition: Under the current rule, after an employer has voluntarily recognized a union without holding a secret ballot vote or demanding evidence of majority support, employees have a mandatory 45-day period to demand an election challenging that recognition. The final rule restores a bar prohibiting employees from calling for a decertification election following voluntary recognition for a reasonable time, defined as meaning from six months to a year.

Construction industry requirements: The final rule also eliminates two provisions set by the 2020 rule for union recognition in the construction industry. Because of the transitory nature of employment in the industry, employers may recognize construction industry unions without a showing of majority support among the workers. First, the final rule restored the six-month limitation period during which recognition of a construction industry union could be challenged. It also restored the right to establish recognition by including certain language in the written agreement between the union and the employer.