NLRB Issues Fair Choice–Employee Voice Final Rule

Today, the Board issued its Fair Choice–Employee Voice Final Rule, restoring three key policies that provide workers with a fair opportunity to decide whether they want union representation in the workplace and a process that respects workers’ choices: the blocking charge policy, voluntary recognition of a union, and construction industry bargaining relationships.  The Final Rule returns to the Board’s pre-2020 practice on blocking charges before an election, restoring a Regional Director’s authority to delay an election if unfair labor practice conduct is sufficiently serious to interfere with employee free choice. Today’s rule reverses the Board’s 2020 rule requiring Regional Directors to run elections in an election environment tainted by unfair labor practices.

Secondly, today’s rule supports workers’ and employers’ ability to establish a bargaining relationship through voluntary recognition.  It removes the 2020 rule’s requirement that when an employer chooses to voluntarily recognize a union that represents a majority of its workers, the parties provide for a mandatory 45-day period to allow the opportunity for a minority of workers to demand an election questioning that choice.  The rule also restores the Board’s 56-year-old voluntary recognition bar, respecting the bargaining relationship that the parties have voluntarily chosen. 

Finally, the Fair Choice – Employee Voice rule grants parity between unions in the construction industry and other unions. Because of the transitory nature of work in the construction industry, construction-worker unions that are recognized under Section 8(f) of the National Labor Relations Act do not have the same protections as non-construction unions.  The new rules allow construction-worker unions to more readily establish the same protections as other unions, providing a more stable foundation for collective bargaining. 

“Today’s rule restores the Board’s prior law, including longstanding principles that ensure a fair process for workers to choose whether they want representation, and provide a better foundation to allow collective bargaining relationships to thrive,” said Chairman Lauren McFerran. 

The Notice of Proposed Rulemaking was published by the Federal Register on November 3, 2022 and the comment period for initial comments was open until February 2, 2023. The Board received a variety of comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is September 30th, and the rule will only be applied to cases filed after the effective date.

Members Prouty and Wilcox joined Chairman McFerran in issuing the Final Rule. Member Kaplan dissented.