HR Policy Weighs in on NLRB Union Decertification Rule

By Greg Hoff posted 03-03-2023 00:00


The Association filed comments urging the NLRB to rethink its proposed rule on union decertification, arguing  the rule would restrict employee choice. The proposed rule would allow unions to block employee petitions to vote on continued union representation with unproven unfair labor practice allegations. 

Background: The Board’s proposed rule would rescind previous rulemaking undertaken by the Trump Board and reinstitute the “blocking charge policy,” under which unions can delay and ultimately nix employee efforts to vote them out by simply filing unfair labor practice charges against the employer. Such allegations do not have to be proven to suspend employee petitions to vote out the union. The Board’s proposed rule would also prohibit union election petitions for up to a year after a union gains voluntary recognition from an employer. 

Restricting employee choice: In our comments, the Association argued that reviving the blocking charge policy inhibits employee choice and effectively disenfranchises employees who are guaranteed under the National Labor Relations Act to decide on representation. Under the proposed rule, a majority of employees who wish to vote out an incumbent union can be delayed – and effectively prevented – by that same union simply filing unfair labor practices against the employer, regardless of the merit of such charges. 

Such a policy also incentivizes unions to file such charges. It removes the choice of representation from the hands of employees and places it in the hands of Board Regional Directors, who have considerable discretion in whether to block petitions on the basis of unfair labor practice allegations. 

Our comments also pushed back against arguments made by the Board’s General Counsel and argued that the Board and its General Counsel were substituting union interests for employee choice. Specifically, we noted the contradictions evident between the General Counsel’s advocacy for union recognition solely on the basis of a showing of majority support among employees and her simultaneous advocacy for prohibiting employers from withdrawing recognition on the very same basis. 

PRO Act reintroduced: Meanwhile, a bipartisan group of House and Senate members reintroduced the PRO Act in both chambers of Congress. The bill would radically rewrite federal labor laws in favor of union interests, including a provision that would codify union recognition solely on the basis of union authorization cards signed by a majority of employees – something that, as mentioned above, is being vigorously advocated for by the Board’s General Counsel. 

Outlook: The Board’s proposal would make it exceedingly difficult for employees to vote out a union, and is likely to be finalized before the end of the year. The PRO Act is likely to gain significant support in the Democratic-majority Senate, but is unlikely to pass out of that chamber or the Republican-controlled House. Nevertheless, pieces of the PRO Act may be implemented in a variety of other ways, including through federal contractor requirements, as provisions in larger spending bills, or through NLRB decision making.