As foreshadowed by the National Labor Relations Board’s (the “Board”) Spring 2022 rulemaking agenda (discussed in our prior post here), Chair Lauren McFerran, Member Gwynne A. Wilcox, and Member David M. Prouty published a Notice of Proposed Rulemaking (“NPRM”) on Friday, November 4, 2022, proposing to rescind a final rule that the Board issued in April 2020 (“the 2020 Rule”), codified at 29 C.F.R. 103.20–22.

The 2020 Rule modified representation elections in three main ways (discussed in our prior post here): (1) replacing the so-called blocking-charge policy with a vote-and-impound procedure, (2) reinstating Dana Corp. challenges to voluntary recognition, and (3) requiring “positive evidence” of majority support for voluntary recognition in the construction industry.

The changes proposed to these three important representation issues are discussed in greater detail below.  Now that the NPRM has been formally issued, the public has 60 days—i.e., until January 3, 2023—to submit comments before the NPRM is implemented.

Proposal #1: Reinstate The Blocking-Charge Policy

The Board proposes to reinstate the blocking-charge policy, as most recently reflected in a 2014 rule, which would enable a party to block an election indefinitely by filing an unfair labor practice (“ULP”) charge. In practice, this policy often allows an incumbent union to use a ULP charge to delay a decertification election.

By comparison, under the 2020 Rule, elections proceed as scheduled—even if a ULP is pending— and the votes are counted unless the charge challenges the circumstances around (or showing of interest supporting) the petition or alleges the employer dominated the union to disestablish a bargaining relationship—in such cases, the votes are impounded (i.e., not counted).

Proposal #2: Reinstate The Immediate Voluntary-Recognition Bar As It Existed Under Lamons Gasket

The Board next proposes to return to voluntary-recognition bar law and jurisprudence, as it existed under Lamons Gasket, Co., 357 NLRB 739 (2011), a decision in which the Board overruled Dana Corp., 351 NLRB 434 (2007), and established that an employer’s voluntary recognition of a union immediately barred the filing of an election petition for between 6 months to one year after the parties’ first bargaining session.

The still-operative 2020 Rule reinstated Dana Corp. challenges to voluntary recognition, under which employees receive 45 days to petition for a Board-conducted, secret-ballot election after their employer gives notice of voluntarily recognizing a union under NLRA Section 9(a).

Proposal #3: Rescind Requirement Of Unions In Construction Industry To Show Affirmative Evidence Of Majority Support To Convert 8(f) To 9(a) Relationship

 The Board proposes to rescind the 2020 Rule’s requirements for establishing a voluntary-recognition bargaining relationship in the construction industry—and return to the Board’s application of the voluntary-recognition and contract bars in the construction industry, per Staunton Fuel & Material, 335 NLRB 717 (2001) and Casale Industries, 311 NLRB 951 (1993).

In the construction industry, NLRA Section 8(f) allows employers and unions to form a collective bargaining relationship through what are often called “pre-hire” agreements, even absent the support of a majority of employees.  8(f) relationships last as long as the term of the contract, unless the parties agree to extend.  All other employer/union relationships, which are formed pursuant to NLRA Section 9(a), last indefinitely, even after the CBA term expires, unless the union no longer maintains majority support of the workforce.

Under Staunton Fuel, a union could convert a Section 8(f) agreement with a construction industry employer to a “full” Section 9(a) agreement through contract language alone—e.g., that the agreement was subject to Section 9(a) and/or that the union has majority support of the employees.  Accordingly, before the 2020 Rule took effect, many construction-industry unions insisted on including such language to maintain their foothold in the relationship. And until the 2020 Rule overruled Casale Industries, the Board would not entertain a claim challenging a construction-industry union’s majority-support if an election petition had not been filed within 6 months of the employer’s voluntary recognition under 9(a).

As always, we will keep you updated on any further developments.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.