The National Labor Relations Board has issued a notice of proposed rulemaking that could make it more difficult for employees to end union representation at their workplace. Issued on Nov. 3, 2022, the Board’s proposed rule, which is ironically called the “Fair Choice and Employee Voice” rule, would turn the proverbial clocks back to before 2020 and allow unions to block decertification petitions – employee-filed petitions that request an election to end the union’s right to represent them – by filing unfair labor practice charges against the employer.

The Board’s proposed rule contends that reinstating the “blocking-charge” policy would delay elections where the employer’s alleged conduct “threatens to interfere with employee free choice.” On paper, this sounds justifiable. For example, if an employer threatens employees with discharge unless they file a decertification petition, then the Board’s proposed rule would block that petition from proceeding until after the Board has remedied the employer’s unlawful threats.

However, in practice, unions have historically used the Board’s blocking-charge policy as a sword, not a shield. Prior to 2020, to delay decertification and maintain their hold over employees, unions repeatedly filed unsubstantiated unfair labor practice charges. Regional Directors tasked with investigating those charges then delayed processing decertification petitions to complete their investigations. When the Regional Director found no merit to the unions’ charges, the union simply filed more to continue the delay. Lather, rinse, repeat. As noted by the Board’s 2020 rule that initially ended its blocking-charge policy, “courts of appeals ha[d] criticized the blocking-charge policy’s adverse impacts on employee [decertification] petitions, as well as the potential for abuse and manipulation of that policy by incumbent unions seeking to avoid a challenge to their representative status.” By reinstating its blocking-charge policy, the Board once again invites these delay tactics. The Board’s proposed “Fair Choice and Employee Voice” rule is a thinly veiled attempt to elevate union choices and voices, not those of employees.

In addition to reinstating its blocking-charge policy, the Board’s proposed rule makes other changes. For example, the proposed rule would bar decertification elections “until a reasonable period for collective-bargaining has passed” for unions that an employer has voluntarily recognized, restore a six-month limitation period for election petitions challenging a construction industry employer’s voluntary recognition of a union, and permit the Board to find that a construction employer’s voluntary recognition requires heightened bargaining obligations, above and beyond those common to the industry, based on the contract language contained in the voluntary recognition agreement. 

The deadline for filing comments to the Board’s proposed rule is January 3, 2023. Any employer that wishes to file public comments on this matter or has concerns about the proposed rule’s impact on its employees should consult with their legal counsel.