Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Corporate newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (April 8, 2020, 3:40 PM EDT) -- Because of the coronavirus pandemic, the National Labor Relations Board won't implement a new rule letting contested union votes go ahead and making it easier for workers to remove certain unions until July 31, the board said Wednesday, just more than a week after finalizing the rule for an early June rollout.
The board said it is pushing back the effective date for the first plank of a revision to its internal election procedures by 60 days due to "the ongoing national emergency caused by the coronavirus." The rule revamps the board's handling of "blocking charges" that pause elections when a union accuses the employer of foul play, and the "recognition bar," which blocks workers from voting out unions for a time after their employer accepts the union without demanding a vote.
"The board has determined that a delayed effective date is required to allow the board's employees and stakeholders to focus on continuity of their operations during the national emergency concerning the coronavirus pandemic during the next several months, rather than on implementing and understanding the board's new rule," it said in a Federal Register notice announcing the delay.
The delay comes eight days after the board released the final version of a revision to its rules governing "representation" cases, which refers to efforts to remove or join a union. The rule is part of a broader effort the board began in 2017 to tweak its union election process.
The changes were set to take effect June 1, but such a swift rollout is "impracticable, unnecessary and contrary to the public interest" during the pandemic, the board said. A delay will let employers and unions focus resources on their response to the coronavirus and not on digesting a new rule, it said.
The rule has three parts: revisions to the blocking charge policy, revisions to the voluntary bar policy and a change to organizing rules specific to the construction industry that will make it easier for workers to remove unions in certain circumstances.
Under the blocking charge change, the board will let disputed elections go through rather than pause a vote when a union accuses an employer of interfering with workers' organizing efforts. The board will not enforce the vote until after an official has resolved the union's complaint, however.
The rule also nixes a 2011 board decision called Lamons Gasket, which said workers can't oust voluntarily recognized unions from recognition until six to 12 months after they start negotiating a collective bargaining agreement with an employer. The new rule gives workers 45 days to petition for a vote and, if the recognition goes unchallenged or workers vote to unionize, blocks removal votes for "a reasonable period of time."
The new rule also eases union removal in the construction industry, which is governed by its own provision of the National Labor Relations Act. Under NLRA Section 8(f), a construction company and a union can negotiate work terms without first undergoing a representation election, although workers can freely vote the union out. Workers can also vote to unionize through the traditional path, which blocks removal votes during the term of an active contract.
In a 2001 decision called Staunton Fuel, the board said unions in Section 8(f) relationships are protected by the so-called contract bar if their contract indicates the majority of workers support the union. The new rule undoes that decision, making Section 8(f) unions offer "positive evidence" of majority backing, such as signatures of support from most unit members, for an active contract to bar a removal vote.
Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, which helps workers petition to remove their unions, called the delay "wholly unwarranted" in an emailed statement.
"With the NLRB now proceeding with representation elections on a case-by-case basis, there is absolutely no reason the board cannot allow the legal principles set out in the final rule to go into effect as soon as possible," he said.
--Additional reporting by Vin Gurrieri. Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
