On July 26, the National Labor Relations Board issued its misnamed Fair Choice-Employee Voice final rule, which rescinds the ABC-supported 2020 Election Protection final rule, jeopardizing employees’ right of free choice in representational matters and disrupting the Board’s current representation processes. The 2020 final rule was intended to “better protect employees’ statutory right of free choice on questions concerning representation.”

Immediately following the issuance of the final rule, the Coalition for a Democratic Workplace issued the following statement attributed to Kristen Swearingen, ABC vice president of legislative & political affairs and CDW chair:

“The Board’s final rule eliminates commonsense measures that protect workers’ right to decide for themselves if they want union representation in the workplace. The rule forces employees into unions they may not want and makes it more difficult for employees to decertify unions that no longer have support from the workforce. These policies undermine employee free choice, and Congress and/or the courts should move to nullify them.”

The new rule makes three key policy changes: It rescinds and replaces the provisions of the 2020 final rule that address the “blocking charge” policy and voluntary-recognition bar doctrine and rescinds the portion of the final rule that addresses proof of majority support for labor organizations representing employees in the construction industry.

Specifically, the rule returns to the blocking charge policy that halts union representation or decertification elections if the union alleges the employer committed unfair labor practices until those charges are resolved; eliminates the 45-day window that allows workers to demand a secret ballot election if the employer voluntarily recognizes the union based on signed authorization cards; and rescinds amendments that require unions in the construction industry to maintain proof of majority support if they want an exclusive collective bargaining relationship that is resistant to challenge.

The effective date of the new rule is Sept. 30, 2024, and will only be applied to cases filed after the effective date.

Board members David Prouty and Gwynne Wilcox joined Chair Lauren McFerran in issuing the final rule. Member Marvin Kaplan dissented. Read ABC’s 2023 comments opposing the proposed rule. ABC also joined comments submitted by the ABC-led CDW.

NLRB Chair Lauren McFerran stated, “Today’s rule restores the Board’s prior law, including longstanding principles that ensure a fair process for workers to choose whether they want representation, and provide a better foundation to allow collective bargaining relationships to thrive.”

Continue to monitor Newsline for any future updates.