Fair Choice – Employee Voice

The National Labor Relations Board proposes to revise its election rules to restore three key areas that would improve employee voice in the workplace. The Fair Choice – Employee Voice rule would promote free and fair elections, encourage voluntary recognition, and restore recognition standards in the construction industry by returning to long-standing Board precedent that existed prior to the adoption of the prior final rule on April 1, 2020.

The proposed rule would return to the Board’s 2014 rule on “blocking charges” before an election. This would restore a Regional Director’s authority to delay an election if the conduct of unfair labor practices is sufficiently serious to interfere with employee free choice. The Fair Choice – Employee Voice rule would reverse the 2020 rule requiring Regional Directors to run elections even when serious charges have been alleged.

Secondly, the Board’s 2020 rule required a 45-day posting period before a voluntarily recognized union could be certified. The proposed rule removes the posting period and allows for immediate voluntary recognition, restoring the Board’s 56-year-old voluntary recognition bar. NLRB data shows that, with 260 requests for voluntary recognition notices filed since the 2020 rule, only one election petition was subsequently filed. Thus, in over 99% of notice cases, employees affirmed their choice to be represented by a union and without an election.

Finally, the proposed rule grants parity between unions in the construction industry with other unions. Because of the transitional nature of the construction industry, construction unions do not have the same protections as workers in other unions under Section 8(f) of the National Labor Relations Act, including barring challenges to the validity of the union’s initial recognition after more than six months have elapsed. Under the proposed rule, the parties’ contract language must unequivocally state that the construction employer granted the union Section 9(a) recognition so there could be no doubt if a party wants to challenge its lawfulness. Further, a challenge to the union’s majority status during the term of the agreement, either through a petition or a charge, must be filed within six months.

The Notice of Proposed Rulemaking (NPRM) for this rule was published in the Federal Register on November 4, 2022.  Additional details are provided in the press release here.  The full NPRM can be found here.

Comments may be submitted through http://regulations.gov or by mail or hand delivery to Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. The rulemaking docket RIN is 3142-AA22. Comments must be submitted by 11:59 pm on January 3, 2023 in order to be considered. Responsive comments will be due to be submitted no later than 11:59 pm on January 17, 2023.

* The Board has extended the comment period for 30 days. Comments must now be received on or before February 2, 2023, and reply comments to initial comments must be received on or before March 1, 2023.

Press Release: NLRB Extends Time for Submitting Comments on the Proposed Fair Choice and Employee Voice Rule