Biden NLRB seeks to reinstate “blocking charge” policy, voluntary recognition rules, and Section 9(a) recognition

In November 2022, President Biden’s appointees at the National Labor Relations Board (NLRB) proposed the Fair Choice and Employee Voice rule to reestablish the “blocking charge” policy for private sector employees, and other changes related to recognition. Former president Donald Trump’s NLRB appointees changed the blocking charge policy in 2020. Before the 2020 change, the rules had been in place since the 1930s.

The proposed new rules will primarily revert the law back to the pre-Trump standards on three things related to union recognition in the private sector.

First, the Board will place any election petition on hold if an unfair labor practice (ULP) has been filed that concerns an interference with employees’ free choice in the election.

Second, if an employer voluntarily recognizes a union based on a showing of employees’ majority support, challenges to that union will be barred until after a reasonable time for collective bargaining has passed—without the need for a 45-day posting period. Once a first contract is entered into, it will create the same contract bar as any other contract.

Finally, in the construction industry, the rule would allow detailed language in a collective bargaining agreement (CBA), along with an offer or actual showing of majority support, to serve as evidence of 9(a) voluntary recognition.

Public comments on the rule closed February 3, 2023. For more information regarding these and other new laws, please contact your labor law counsel.

By Michael Braud