April 22, 2020 Labor Blog; Christine K. D. Belcaid NLRB COVID-19 Update

NLRB Postpones Implementation of Rule Revamping Union Election Procedures

On April 1, 2020, the NLRB published a final rule making amendments to its rules and regulations governing union election procedures. Below is a description of the amendments to the election rules:

Changes to Blocking Charge Policy

A major criticism of the current election rules has been the ability of (mostly) the petitioning union to block, sometimes for months or years, an election based on the filing of charges alleging that the employer committed unfair labor practices.

The final rule eliminates the ability of a party to block an election merely by filing charges.  Despite a pending ULP charge, the election will proceed as scheduled, and the votes will either be impounded (not counted) or counted, depending on the nature of the alleged unfair labor practice.

Reinstating Dana Corp. Challenges to Voluntary Recognition

The Board’s final rule overrules Lamons Gasket, Co., 357 NLRB 739 (2011) and reinstated Dana Corp., 351 NLRB 434 (2007), providing that where an employer voluntarily recognizes a union under NLRA Section 9(a), it must post a notice to its employees reflecting the same, and employees may challenge such recognition if they petition for a secret-ballot election within 45 days thereafter.  If no petition is filed during the 45-day notice period, the voluntary recognition bar would operate for “a reasonable period of time” afterwards.

Changes for Construction Industry Employers Regarding Conversion of Section 8(f) Agreement

In the construction industry, NLRA Section 8(f) allows employers and unions to form a collective bargaining relationship through “pre-hire” agreements, even without evidence of support of a majority of employees.  Section 8(f) relationships last as long as the term of the contract, unless the parties agree to extend.  All other employer/union relationships, which are formed pursuant to Section 9(a), last indefinitely, even after the CBA term expires, unless the union no longer maintains majority support of the workforce.

Under Staunton Fuel, 335 NLRB 717 (2001), a union could convert a Section 8(f) agreement with a construction industry employer to Section 9(a) agreement through contract language alone.

The Board’s final rule overrules Staunton, and conditions Section 9(a) status on “positive evidence” that the union demanded recognition, which was accepted by the employer and supported by a majority of the employees.

Changes to Quickie Election Rule

The new rule makes several important changes which are favorable to employers:

  • Employers will now have five business days, rather than two calendar days, to post and distribute the Notice of Petition for Election.
  • The pre-election hearing will be scheduled 14 business days from the service of the notice of hearing – a large difference from the current requirement of eight calendar days.
    Employers will now have eight business days to file and serve their Statements of Position, up from the current seven calendar days.
  • The parties’ right to file post-hearing briefs has been reinstated.
  • Regional Directors will generally be prohibited from scheduling an election less than 20 business days from the date the NLRB directs an election, absent mutual consent of the parties.
    Regional Directors will have greater ability to extend deadlines for “good cause” showings.
  • Employers will have five business days to file the Voter List after approval of the Stipulated Election Agreement or the Decision and Direction of Election, up from the current two business days.

On April 8. 2020, the NLRB announced that the new effective date for the final rule making the three amendments to its union elections rules is July 31, 2020 instead of May 31, 2020 due to the national emergency caused by COVID-19. The NLRB had already postponed implementation of the newly modified election procedures from April 16, 2020 to “facilitate the resolution of legal challenges.”

NLRB Resumes Representation Elections After Only Two-Week Moratorium

Despite urging from management-side labor attorneys, union leaders, and worker advocates, after just a two-week moratorium at the end of March through April 3, 2020, the NLRB resumed conducting representation elections– not necessarily just by mail ballot - during the COVID-19 national crisis. The Board’s announcement grants discretion to the Regional Directors on how to conduct the elections. Given the COVID-19 stay at home orders, social distancing regulations, and closing of non-essential businesses, it seems likely Regional Directors will order mail ballot elections in most situations, but it is in their discretion.

Board Chairman John Ring stated: “Conducting representation elections is core to the NLRB’s mission, and ensuring elections are carried out safely and effectively is one of our primary responsibilities. Two weeks ago, when the Board made the difficult decision to suspend elections, the developing situation made it impossible to ensure the safety of our employees or the public. With many regional offices closed and most employees teleworking, the Board was not confident that any type of election could be run effectively. Based on these concerns, the Board determined that a two-week suspension would provide the General Counsel, who is delegated authority to supervise the regional offices, which conduct elections on the Board’s behalf, the opportunity to fully review the logistics of the election procedures in light of the unprecedented situation. The General Counsel now has advised that appropriate measures are available to permit elections to resume in a safe and effective manner, which will be determined by the Regional Directors. We appreciate the patience and understanding of all NLRB stakeholders during this challenging time.”

NLRB General Counsel Issues Guidance on Crisis Bargaining: Memorandum GC-20-04

On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC 20-04 entitled, “Case Summaries Pertaining to the Duty to Bargain in Emergency Situations.” In the Memo, Robb explains:

The Coronavirus pandemic has prompted many questions regarding the rights and obligations of both employers and labor organizations, particularly in light of responsive measures taken to contain the virus. Sometimes these measures have been taken out of prudence; other times they have been required by state, local or federal orders.

Regardless of the reason for any given response to the spread of the virus, many parties are considering the impact on the duty to bargain. Although we are in an unprecedented situation, I wish to make the public aware of several cases in which the Board considered the duty to bargain during emergencies. These include public emergencies as well as emergencies unique to a particular employer. Accordingly, the following case summaries are divided into those two categories. It is my hope that these summaries prove useful to those considering this issue during these challenging times.

The Memo may be accessed at https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.

NLRB Ruling Shows Risks of Curbing Health Workers’ Speech

On March 30, 2020, the NLRB ordered a Maine hospital to rehire an employee it fired for writing a critical letter to her newspaper’s editor, at a time when nurses throughout the country have stated their hospitals are trying to limit what information they provide to the media. The Board explained that health care facility employees are protected by Section 7 of the NLRA when “they use a letter to the editor or another [third]-party channel to protest deficiencies in staffing levels or other working conditions that have an effect on patient care.” Maine Coast Regional health Facilities, 369 NLRB No. 51 (March 30, 2020).

Information on Operating Status of Each NLRB Office

Information on the operating status of each NLRB Office may be found at: https://www.nlrb.gov/field-office-status.

Categories: Labor Law Blog