A new rule from the National Labor Relations Board that is set to go into effect on Monday will make it more difficult for employers to decertify unions.
The rule reverses a Trump-era one and restores “three key policies that provide workers with a fair opportunity to decide whether they want union representation in the workplace and a process that respects workers’ choices: the blocking charge policy, voluntary recognition of a union, and construction industry bargaining relationships,” the NLRB said.
Under the existing rule, the NLRB would permit a union election to go forward even if an unfair labor practice claim, or ULP, was filed while a union election petition was pending; the ballots would be impounded until the ULP was resolved. As of Sept. 30, according to attorneys at law firm Stevens & Lee, the NLRB has the authority to indefinitely block an election from occurring if a ULP is filed.
“This change gives unions a tactical means by which to indefinitely delay representation and decertification elections that could ultimately go against them. It also means that employee ballots cast in a secret ballot election could remain unresolved for an indefinite period of time, thereby subjecting the will of the participants to a potentially protracted administrative process,” stated attorneys at law firm Fisher Phillips.
In other words, according to Fisher Phillips, union members no longer will have the ability to cast their votes while an issue is fresh in their minds. Further, according to the law firm, the new rule extends the decertification period.
“Under the board’s new regulation, if an employer voluntarily recognizes a union, the union will now be protected from decertification challenges for six months,” the attorneys said. Under the old rule, unions had only 45 days of protection.
The net effect of the new NLRB rule, according to Fisher Phillips, is that it “potentially marginalizes the right of employees to make a free and fair choice concerning their representation.”
