Submitted via regulations.gov

Roxanne Rothschild
Executive Secretary
National Labor Relations Board
1015 Half Street, SE
Washington, D.C. 20570

Re: Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships (RIN 3142–AA22)

Dear Ms. Rothschild,

The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers, and assesses policies with respect to how well they further those goals.

EPI supports the National Labor Relations Board’s (NLRB/Board) proposed rulemaking regarding three long-standing Board policies: the blocking charge doctrine, the voluntary recognition bar doctrine, and the Staunton Fuel doctrine. The proposed rule seeks to rescind rules related to these policies adopted by the Trump Board in majority in 2020. The 2020 amendments each made it more difficult for workers to gain or keep union representation. The current proposal would restore the Board’s prior law and will protect workers’ rights to a union election free from employer coercion and collective bargaining. 

First, the rule proposes rescinding the April 2020 rule that substantially eliminated the Board’s long-established blocking charge policy. For more than 80 years the blocking charge doctrine has served as a critical tool in ensuring that elections are free from employer coercion. The blocking charge policy allows the Board to decline to process election petitions in cases where an unfair labor practice (ULP) charge alleges conduct that would interfere with employee free choice. The Board delays the election until the ULP has been remedied and employees can decide freely and fairly whether they want union representation.

In spite of the long-standing importance of the blocking charge doctrine in protecting the sanctity of the election process, the Board Majority largely eliminated the protection in its 2020 rule. Under this rule, the Board no longer blocks any election petition because of pending ULP charges—no matter how serious. By requiring regional directors to move forward with elections where serious ULP charges have been filed—and found to have merit by an administrative law judge—the Board Majority advanced a rigged election system. The proposal was a betrayal of the Board’s statutory responsibility to ensure free and fair elections. 

The current proposal would restore the Board’s long-established “blocking charge” policy as most recently reflected in a 2014 rule. Under that approach, when unfair labor practice charges are filed while an election petition is pending, a Regional Director may delay the election if the conduct alleged threatens to interfere with employee free choice. The proposed rule promotes employee free choice and conserves the Board’s resources, and those of the parties, by ensuring that the Board does not conduct elections—that might well have to be re-run—in a tainted environment. Most importantly, it reinstitutes a critical tool for the Board in its chief responsibility in overseeing the election process of protecting employee free choice. The Supreme Court has recognized it is the “duty of the Board…to establish ‘the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.’”1 We strongly support the proposal to rescind the 2020 and restore “blocking charge” policy. 

Second, the rule proposes rescinding the April 2020 rule that made changes to the voluntary recognition bar doctrine which encourages collective bargaining and promotes industrial stability by allowing a union—after being voluntarily and lawfully recognized by an employer—to represent employees for a certain period of time without being subject to challenge. For more than 60 years, the Board barred the filing of election petitions for a reasonable period of time after voluntary recognition to ensure that recognized unions had a fair chance at bargaining their first contract.2 In 2007, the Board decided in Dana Corp., 351 NLRB 434 (2007), to remove the bar on election petitions and allow individuals to file a decertification petition 45 days after the union was voluntary recognized. This decision was reversed in 2011 under Lamon Gasket Company, 357 NLRB 739 (2011), which reinstated the immediate bar on election petitions. The Lamon Gasket decision also defined the criteria of a “reasonable period of time” to be no less than six months and no more than a year after the parties’ first bargaining session, ensuring that meaningful bargaining can ensue.3 The 2020 rule reinstated Dana by re-establishing that employees and rival unions may file a decertification petition as early as 45 days after a union receives voluntary recognition. Further, the 2020 rule also instructs employers to post an official Board notice informing employees of their right to seek a decertification petition once the 45 days have passed.4

The proposed rule would restore the voluntary bar doctrine which helps safeguard employees’ free choice. The data demonstrate that voluntary recognition accurately reflects employees’ choice to elect union representation. Statistical evidence shows that very few employees have “buyer’s remorse” when they vote for representation. In Lamon Gasket, the Board Majority found that during the first four years of the Dana procedures, only 1.2% of voluntarily recognized unions were decertified.5 The proposed rule would ensure that workers that want union representation are able to be represented for a reasonable period of time without being subject to challenge.

Finally, the proposed rule would return to the Board’s prior approach to voluntary recognition in the construction industry, rescinding the 2020 rule which overturned precedent on this issue. In the construction industry, when an employer has agreed to a collective bargaining agreement that, by its terms, demonstrates that the parties’ bargaining relationship is governed by Section 9(a) of the NLRA, the employer may not treat the relationship as governed by Section 8(f) of the NLRA; the employer is therefore prohibited from unilaterally withdrawing recognition from the union when the collective bargaining agreement expires.6 This is known as the Staunton Fuel doctrine. By rescinding the 2020 rule on voluntary recognition in the construction industry the Board is reinstituting the approach established by case law.

Conclusion

EPI supports the NLRB’s proposed rulemaking regarding three long-standing Board policies: the blocking charge doctrine, the voluntary recognition bar doctrine, and the Staunton Fuel doctrine. The three distinct proposals would each return to the law to what existed before the flawed 2020 rulemaking which made it more difficult for workers to gain or keep union representation. We urge the NLRB to adopt this rulemaking and ensure that workers receive the full protections guaranteed them under the nation’s fundamental labor law.

Sincerely,

Celine McNicholas
Director of Policy | General Counsel
Economic Policy Institute

1. NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973).

2. Keller Plastics Eastern, Inc. 157 NLRB 583 (1966).

3. See Lamon Gasket, 357 NLRB at 748.

4. It should be noted that in 2014 the U.S. Court of Appeals for the District of Columbia Circuit invalidated a previously proposed rulemaking by the NLRB that would have required private-sector employers to post notice of employee rights in the workplace. See National Labor Relations Board, “The NLRB’s Notice Posting Rule” (press release), January 6, 2014.

5. See Lamon Gasket, 357 NLRB at 742.

6. Staunton Fuel & Material, Inc., 335 NLRB 717 (2001).