Biden’s National Labor Relations Board Proposed Rule Would Re-Impose Onerous Restrictions on Workers

Biden’s National Labor Relations Board (NLRB) is attempting to re-impose onerous restrictions on workers by overturning the Election Protection Rule.

The Election Protection Rule is a 2020 provision that helps protect rank-and-file workers’ statutory right to hold votes to remove unwanted union officials.

According to NLRB, at the time the provision was passed, “The Board believes that these amendments better protect employees’ statutory right of free choice on questions concerning representation. The amendments, proposed by the Board on August 12, 2019 and as modified in the final rule, include:”

Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to anemployer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.

But in November, Biden’s NLRB announced it was initiating rulemaking to rescind the rule.

The National Right to Work Foundation responded to the proposed change:

The Foundation’s comments explain that, if the Election Protection Rule is tossed, union officials will again be able to exploit often-unproven allegations of employer behavior to cancel employee-requested union decertification votes. Prior to the 2020 reforms, union officials could often stall a decertification vote for months or even years by filing so-called “blocking charges.”

The 2020 Election Protection Rule overturned the “blocking charge” policy, so workers now are allowed in most cases to cast ballots in a decertification vote before the NLRB deals with any allegations surrounding the election. If the Rule is jettisoned, workers would be blocked from even voting, let alone having their votes counted, any time union officials conjure up claims of workplace malfeasance.

“The bottom line is this: the former blocking charge policy incentivized [union officials] to file meritless or even frivolous unfair labor practice charges because they know the election will be delayed,” the comments say.

Foundation staff attorneys have provided legal assistance to many workers faced with “blocking charges.” Notably, the Foundation assisted a group of Alaskan bus drivers who were freed in December 2019 from an unpopular Teamsters union after three years of attempts to remove it. One employee in that situation commented to the NLRB shortly before the adoption of the Election Protection Rule that the NLRB’s continued blocking of the election based on the Teamsters’ unfair labor practice charges was “the most unfair and anti-democratic event” with which he had ever been involved.

Abuse-Prone “Card Check” Drives Likely to Become Irrebuttable

The Biden NLRB’s slated elimination of the Election Protection Rule will also block workers from filing for secret-ballot decertification elections to challenge so-called “card check” drives. A “card check” is a process in which union officials claim majority support among employees in a workplace based solely on authorization cards signed by employees and submitted by union officials, bypassing the election process entirely. The cards’ indication of true majority status is dubious as union agents may collect them directly from workers and often use threatening or intimidating tactics to do so.

The Election Protection Rule added a check to the misnamed “voluntary recognition bar,” a non-statutory policy that blocked workers from filing for a secret-ballot decertification election for a year after a union was installed via “card check.” The Election Protection Rule instead provided workers the ability to challenge a “card check” by petitioning for a secret-ballot vote, a theory first espoused in the Foundation-won 2007 Dana Corp. NLRB decision. If the Election Protection Rule is scrapped, the “voluntary recognition bar” would return.

Barring worker-submitted union decertification petitions “only shields what may well be a minority union from challenge” and “destroys employees’ [statutory] rights,” the comments assert.

The National Right to Work Legal Defense Foundation, established in 1968, is a nonprofit, charitable organization. Its mission is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.

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