NLRB Clears Way for Unions to Avoid Decertification

The Board issued a final rule that once again allows unions to block employee petitions to vote on continued union representation by filing unproven unfair labor practice allegations (so called “block charges”). The final rule makes it exceedingly difficult for unions to be decertified even where a clear majority of employees seek to vote them out. 

Background: The Board originally proposed the rule in 2022, aiming to rescind previous rulemaking undertaken by the Trump Board and reinstitute the “block 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. 

Restricting employee choice: The Association filed comments in opposition to the proposed rule, arguing 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. 

But wait, there’s more: The final rule also nixes a Trump-Board rule allowing employees 45 days to demand a representation election where an employer has voluntarily recognized a union and reinstates a prohibition on other election petitions for at least six months after voluntary recognition.

NLRB hypocrisy on employee choice: The final rule – ironically enough named the “Fair Choice-Employee Voice” Final Rule – essentially substitutes union interests for employee voice. Moreover, the rule is glaringly hypocritical, given the contradictions evident between the Board’s new Cemex approach allowing union recognition solely on the basis of a showing of majority support amongst employees and its simultaneous position in this final rule prohibiting employers from withdrawing recognition on the very same basis. There is no clearer formulation of the Board and its General Counsel’s priorities than its adoption of these two fundamentally contradictory positions, each for the benefit of unions and unions alone. 

NLRB nominations move forward: The Senate HELP Committee voted 11-10 along partisan lines to advance the nominations of current Chair Lauren McFerran (D) and Josh Ditelberg (R) to a full Senate vote. A successful re-nomination of Chair McFerran would give Democrats a majority at the Board through 2026, regardless of the outcome of November’s elections. Her re-nomination is not guaranteed, however, despite the slim Democratic majority in the Senate. 

Employer takeaways: There is no need for more to be said about where the Board lies on unions, employees, and employers. Regarding decertification, employers must take care to ensure that there is no appearance of interference with or encouragement of employees’ choice to vote out a union, although employers are allowed to direct employees in the right direction to file decertification petitions if approached.