NLRB Issues New Fair Choice Final Rule
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APPLIES TO All Employers |
EFFECTIVE September 30, 2024 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion
The National Labor Relations Board (NLRB) has issued its “Fair Choice-Employee Voice” Final Rule impacting union representation procedures for blocking charges, the voluntary recognition bar, and the construction industry’s collective bargaining relationships. The Final Rule was published in the Federal Register on August 1, 2024, and will go into effect on September 30, 2024.
Blocking Charges. Under the Final Rule, if a party to an election files an unfair labor practice charge while an election petition is pending, an NLRB regional director may delay the election if the regional director finds that the alleged conduct, if proven, would interfere with employee free choice. Previously, if a party to an election (typically, a labor organization) filed an unfair labor practice charge while an election was pending, the election was held as scheduled, irrespective of a pending charge.
Voluntary Recognition. The Final Rule also reinstates the pre-April 2020 NLRB policy, lengthening the window within which employees and competing unions could file an election petition challenging a voluntary recognition to a “reasonable period” following recognition. The Board defines a reasonable period as at least six months from the parties’ first bargaining session. That window can extend to no more than one year from the parties’ first bargaining session. Under the prior April 2020 rule, the window was limited to a 45-day period following recognition.
Construction Industry. The Final Rule also returns to the pre-April 2020 NLRB policy on employer recognition of unions in the construction industry. Specifically, the Final Rule dispenses the requirement of majority employee support and reinstates the possibility of binding recognition through collective bargaining agreement language. It also reimposes a six-month limitations period for challenging the employer’s recognition, thereby restraining employees’ ability to conduct an election or challenge union representation, even with a majority vote, based on the contractual recognition language.
In light of the recent Supreme Court decision to overturn Chevron deference, this Final Rule will likely face litigation challenges and it is unclear how courts will interpret the NLRB’s authority. However, in the interim, employers should be prepared for the outlined changes until a final decision is made.
Action Items
- Review Board election procedures and union representation proceedings with legal counsel for compliance.
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