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On August 12, 2019, the National Labor Relations Board (NLRB) will publish a notice of proposed rulemaking (NPRM) with regard to certain of its election and recognition policies. The issuance of this NPRM is likely the first step in an ongoing overhaul of the agency’s representation case rules that were the subject of substantial and controversial revision by the Obama Board. According to the Board, the proposed amendments are designed to “better protect employees’ statutory right of free choice on questions concerning representation.” The NPRM proposes three policy changes that are significant, although somewhat limited in scope.

First, the proposed rule would change the Board’s current “blocking charge” policy. Under the current rubric, a scheduled NLRB election may be postponed if the union files an unfair labor practice charge that, if sustained, might affect the election results. Unions have often successfully used the current blocking charge policy to indefinitely postpone a Board-supervised decertification vote. Under the new rule, the election would proceed as scheduled, however, the ballots would be impounded pending resolution of the charge and its likely impact.

Second, the new rule would reinstate the Board’s so-called “Dana” policy that provides employees with notice, and a 45-day “disapproval window” in cases in which a union and employer agree to voluntary recognition. The Dana policy, which was adopted to minimize the reach of so-called “top down” organizing efforts in which employees had no vote prior to recognition of the union, was abandoned by the Obama Board.

Lastly, the proposed rule would require actual, contemporaneous proof of majority status before a Section 8(f) contract could be turned into a 9(a) agreement. In the construction industry, Section 8(f) of the National Labor Relations Act (NLRA) permits employers and unions to enter into collective bargaining agreements (CBAs) before the union achieves majority status. Either party may unilaterally terminate the relationship at the end of the contract. By contrast, an agreement under Section 9(a) of the Act is based on majority status, and the relationship may not be unilaterally terminated when the contract ends. The proposed rule would require actual evidence of majority status and eliminate any confusion as to whether the conversion can be achieved by any alternative method.

The proposed changes will not be finalized until after the Board reviews comments submitted by the public, including unions, employers, and other interested parties. The 60-day comment period will end on October 11, 2019. We will continue to track and report on these important developments and their broader implications for the business community on the Ogletree Deakins Traditional Labor Relations blog. For a more in-depth discussion of these and other issues, please join us at our Labor Law Solutions seminar in Nashville, Tennessee, December 4–6, 2019.


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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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