On Feb. 2, ABC submitted comments to the National Labor Relations Board opposing its proposed rule on Representation-Case Procedures, which addresses election-blocking charges, voluntary recognition and construction industry bargaining relationships. The proposal would rescind the ABC-supported 2020 NLRB final rule, which is intended to “better protect employees’ statutory right of free choice on questions concerning representation.”

“ABC strongly opposes the NLRB’s proposed rescission of the three 2020 representation rules in the NPRM,” ABC wrote in the comments. “In particular, ABC is concerned that the proposed rule returns to the precedent set by the Staunton Fuel decision, which purported to permit contract language alone to create a Section 9(a) bargaining relationship in the construction industry, notwithstanding the plain language of Section 8(f) preventing such agreements from acting as bars to employee election petitions. Courts have repeatedly rejected the NLRB’s holding in Staunton Fuel, requiring instead that a Section 9(a) relationship can only be established upon a showing of actual evidence of union-majority status contemporaneous with the agreement. The NLRB’s proposed rule is inconsistent with this judicial authority and with longstanding principles of majority status under Section 9(a). ABC also opposes the NLRB’s proposed change to the blocking charge policies. ABC believes that the proposed return to the Board’s defective blocking charge policies impedes, rather than protects, employee free choice. Finally, ABC opposes the NLRB’s proposed modification to the immediate voluntary recognition bar.”

ABC also signed on to the Coalition for a Democratic Workplace’s comment letter along with 12 other employer organizations. The CDW argued that the proposed rulemaking would “negatively affect the Board’s representation case jurisprudence, undermine the agency’s statutory goals and reputation, diminish employee free choice, and upset the balance of countervailing interests.”

Background:

The NLRB published the proposed rulemaking on Nov. 4, 2022, and on Nov. 22, the ABC-led CDW requested a 30-day extension to the comment deadline. On Nov. 29, the NLRB extended the deadline to Feb. 2, 2023.

The proposed rule has three parts, each rescinding specific parts of the 2020 rule, including:

• Bringing back the “blocking charge” policy, which halts union representation or decertification elections if the union alleges the employer committed unfair labor practices until those charges are resolved;
• Eliminating the 45-day window that allows workers to challenge union representation via a secret ballot election if the employer voluntarily recognizes the union based on signed authorization cards; and
• Rescinding amendments that required unions in the construction industry to maintain proof of majority support if they want an exclusive collective bargaining relationship that is resistant to challenge.

Continue to monitor Newsline for any further updates on the NLRB proposed rule.