UPDATE: Oct. 4, 2019: The National Labor Relations Board has extended the public comment period for its proposed election rule to Dec. 10. Remarks made in response to other comments must be submitted by Dec. 24. At press time, the board had received 11 online comments; that number excludes remarks delivered by hand or mail.
- The National Labor Relations Board (NLRB) has published a Notice of Proposed Rulemaking regarding a rule change for bringing in or removing unions from the workforce. In its filing in the Federal Register, the NLRB cited the National Labor Relations Acts (NLRA) and the intent to "protect employees' statutory right of free choice" on unionization as reasons for the rulemaking.
- The proposed changes include replacing the current "blocking charge" policy with a "vote-and-impound" procedure. This would allow union elections to continue even when a charge of unlawful conduct, including union election interference, is made against the employer. Votes cast would be impounded if the charge is not cleared prior to the election, the filing said.
- The rulemaking also reinstates the 45-day period of time to file for union decertification after an employer voluntary recognizes a union. This rule concerning the "voluntary recognition bar" would overturn an Obama-era decision that gave between six months and one year for this period. The proposed rule also requires "positive evidence, apart from contract language," of majority employee support for Section 9(a) recognition in the construction industry. The proposals are open for comment until Oct. 11.
At the end of 2018, NLRB Chairman John Ring suggested that the NLRB may soon craft a number of regulations. One examined precedent, commonly referred to as the "public spaces exception," was overturned in a recent decision by the NLRB. Previously, precedent allowed union reps who were not employees to have access to a company's public areas to promote union membership "so long as their actions weren't disruptive." New precedent set under UPMC states that businesses do not have to allow facilities to be used by non-employees for any promotional activities — one of a few pro-business decisions made so far under the Ring-led NLRB.
Generally, employees covered by the NLRA have certain rights to join together to improve their wages and working conditions, with or without a union. According to the NLRB, employees have the right to attempt to form a union where none currently exists, or to decertify a union that has lost the support of employees.
Examples of NLRA-protected employee rights include:
- Forming, or attempting to form, a union in the workplace.
- Joining a union, whether or not the union is recognized by the employer.
- Assisting a union in organizing employees.
- Refusing to do any or all of the above.
- The right to be fairly represented by a union.
Even non-unionized employees have rights under the NLRA, including the right to engage in protected concerted activity. The NLRB says this happens "when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment." In her dissent to this most recent proposed rulemaking, NLRB Member Lauren McFerran noted that these changes could undermine the NLRA, rather than uphold its protections.
"Each of the majority's proposed changes would make it harder for employees to get, or to keep, union representation," she wrote. "[The] rules it adopts should actually further the goals of the National Labor Relations Act, not undermine them."