AGENCY:

National Labor Relations Board.

ACTION:

Notice of proposed rulemaking; request for comments.

SUMMARY:

As part of its ongoing efforts to more effectively administer the National Labor Relations Act (the Act or the NLRA) and to further the purposes of the Act, the National Labor Relations Board (the Board) proposes to rescind and replace amendments that the Board made in April 2020 to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election while unfair labor practice charges are pending, and following an employer's voluntary recognition of a union as the majority-supported collective-bargaining representative of the employer's employees. The Board also proposes to rescind an amendment governing the filing and processing of petitions for a Board-conducted representation election in the construction industry. The Board believes, subject to comments, that these proposed changes will better protect employees' statutory right to freely choose whether to be represented by a labor organization, promote industrial peace, and encourage the practice and procedure of collective bargaining.

DATES:

Comments regarding this proposed rule must be received by the Board on or before January 3, 2023. Comments replying to comments submitted during the initial comment period must be received by the Board on or before January 17, 2023. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted.

ADDRESSES:

Internet —Federal eRulemaking Portal. Electronic comments may be submitted through http://www.regulations.gov. Follow the instructions for submitting comments.

Delivery —Comments may be submitted by mail or hand delivery to: Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001.

FOR FURTHER INFORMATION CONTACT:

Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Submission of Comments

Because of security precautions, the Board continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. It is not necessary to mail comments if they have been filed electronically with regulations.gov. If you mail comments, the Board recommends that you confirm receipt of your delivered comments by contacting (202) 273-1940 (this is not a toll-free number). Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD). Because of precautions in place due to COVID-19, the Board recommends that comments be submitted electronically or by mail rather than by hand delivery. If you feel you must hand deliver comments to the Board, hand delivery will be accepted by appointment only. Please call (202) 273-1940 to arrange for hand delivery of comments. Please note that there may be a delay in the electronic posting of hand-delivered and mail comments due to the needs for safe handling and manual scanning of the comments. The Board strongly encourages electronic filing over mail or hand delivery of comments.

Only comments submitted through http://www.regulations.gov, hand-delivery, or mail will be accepted; ex parte communications received by the Board will be made part of the rulemaking record and will be treated as comments only insofar as appropriate. Comments will be available for public inspection at http://www.regulations.gov and during normal business hours (8:30 a.m. to 5 p.m. ET) at the above address.

The Board will post, as soon as practicable, all comments received on http://www.regulations.gov without making any changes to the comments, including any personal information provided. The website http://www.regulations.gov is the Federal eRulemaking portal, and all comments posted there are available and accessible to the public. The Board requests that comments include full citations or internet links to any authority relied upon. The Board cautions commenters not to include personal information such as Social Security numbers, personal addresses, telephone numbers, and email addresses in their comments, as such submitted information will become viewable by the public via the http://www.regulations.gov website. It is the commenter's responsibility to safeguard their information. Comments submitted through http://www.regulations.gov will not include the commenter's email address unless the commenter chooses to include that information as part of their comment.

II. Summary of 2020 Rule

As described more fully below, the Board is proposing to rescind and replace the amendments to its rules and regulations adopted in 2020 governing blocking charges and the voluntary-recognition bar doctrine and to rescind the amendment governing proof of majority support for labor organizations representing employees in the construction industry. See Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships, 85 FR 18366 (April 1, 2020).

First, the April 2020 final rule substantially eliminated the Board's long-established blocking charge policy, under which regional directors had authority to delay processing election petitions in the face of pending unfair labor practice charges alleging conduct that would interfere with employee free choice in an election or conduct that is inherently inconsistent with the election petition itself. Under the final rule, regional directors generally are now required to conduct an election even when an unfair labor practice charge and blocking request have been filed. 85 FR 18370, 18375. Moreover, under the final rule, regional directors generally are further required to immediately open and count the ballots, except in a limited subset of cases where the ballots will be impounded for a maximum of 60 days (unless a complaint issues within 60 days of the election). 85 FR 18369-18370, 18376.^[1]

Second, the April 2020 final rule made changes to the voluntary-recognition bar doctrine, which encourages collective bargaining and promotes industrial stability by allowing a union—after being voluntarily and lawfully recognized by an employer—to represent employees for a certain period of time without being subject to challenge. The final rule abandoned Lamons Gasket Co., 357 NLRB 934 (2011), and returned to the approach taken previously by the Board in Dana Corp., 351 NLRB 434 (2007). Under the final rule, neither an employer's voluntary recognition of a union, nor the first collective-bargaining agreement executed by the parties after recognition, will bar the processing of an election petition, unless: (1) the employer or the union notifies the Board's Regional Office that recognition has been granted; (2) the employer posts a notice “informing employees that recognition has been granted and that they have a right to file a petition during a 45-day `window period' beginning on the date the notice is posted”; (3) the employer distributes the notice electronically to employees, if electronic communication is customary; and (4) 45 days from the posting date pass without a properly supported election petition being filed. 85 FR 18370.

Third, the April 2020 final rule made changes to the Staunton Fuel & Material, 335 NLRB 717 (2001), doctrine, which defined the minimum requirements for what must be stated in a written recognition agreement or contract clause in order for it to serve as sufficient evidence that a union representing employees in the construction industry has attained 9(a) status, and overruled the Board's decision in Casale Industries, 311 NLRB 951 (1993), providing that the Board would not entertain a claim that a union lacked 9(a) status when it was initially granted recognition by a construction employer if more than 6 months had elapsed. 85 FR 18369-18370.^[2]

The effect of the instant proposed amendments would be to return the law in each of those areas to that which existed prior to the adoption of the April 1, 2020 final rule, including by rescinding and replacing the portions of the final rule that addressed the blocking charge policy and voluntary-recognition bar doctrine and rescinding the portion of the final rule that addressed proof of majority support for labor organizations representing employees in the construction industry. The Board believes, subject to comments, that these proposed changes to the April 2020 final rule will better protect employees' statutory right of free choice on questions concerning representation, further promote industrial stability, and more effectively encourage the practice and procedure of collective bargaining.^[3]

III. Background

Section 1 of the Act sets forth Congressional findings that the denial by some employers of the right of employees to organize and bargain collectively leads to industrial strife that adversely affects commerce. Congress has declared it to be the policy of the United States to mitigate or eliminate those adverse effects by “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U.S.C. 151. Further, section 7 of the Act grants employees the right “to bargain collectively through representatives of their own choosing . . . .” 29 U.S.C. 157.

As discussed more fully below, Federal labor law recognizes that employees may seek representation for the purpose of bargaining collectively with their employer through either a Board election or by demonstrating majority support for representation. See, e.g., United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 72 fn. 8 (1956). Voluntary recognition predates the Act, and an employer's voluntary recognition of a majority union “remains `a favored element of national labor policy.' ” NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1299 (D.C. Cir. 1988) (citation omitted). An employer is free to voluntarily recognize a union as the designated majority representative of a unit of its employees without insisting on the union's proving its majority status in an election. And, “once the employer recognizes the Union . . . the employer is bound by that recognition and may no longer seek an election.” Id. at 1297 (citations omitted). Nevertheless, when employers, employees, and labor organizations are unable to agree on whether the employer should recognize (or continue to recognize) a labor organization as the representative of a unit of employees for purposes of collective bargaining, section 9 of the Act gives the Board authority to determine if a “question of representation” exists and, if so, to resolve the question by conducting “an election by secret ballot.” 29 U.S.C. 159(c).

Because the Act calls for freedom of choice by employees as to whether to obtain, or retain, union representation, the Board has long recognized that “[i]n election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.” General Shoe Corp., 77 NLRB 124, 127 (1948). A Board-conducted election “can serve its true purpose only if the surrounding conditions enable employees to resister a free and untrammeled choice for or against a bargaining representative.” Id. at 126. Indeed, as the Supreme Court has recognized, it is the “duty of the Board . . . to establish `the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.' ” NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973) (emphasis added) (citation omitted). By definition, a critical part of protecting employee free choice is ensuring that employees are able to vote in an atmosphere free of coercion, so that the results of the election accurately reflect the employees' true desires concerning representation. General Shoe Corp., 77 NLRB at 126-127.

The Supreme Court has repeatedly recognized that “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). “The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.” NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940); see also Southern S.S. Co. v. NLRB, 316 U.S. 31, 37 (1942).

Although the Act itself contains only one express limitation on the timing of elections,^[4] the Board has instituted through adjudication several policies that affect the timing of elections in an effort to further other core goals of the Act. For example, the Board, with court approval, precludes electoral challenges to an incumbent union bargaining representative for the first 3 years of a collective-bargaining agreement (the contract bar) in the interests of stabilizing existing bargaining relationships, notwithstanding that it delays employees' ability to choose not to be represented or to select a different representative. See General Cable Corp., 139 NLRB 1123, 1125 (1962); see also Terrace Gardens Plaza, Inc. v. NLRB, 91 F.3d 222, 227-228 (D.C. Cir. 1996); Leedom v. IBEW Local Union No. 108, AFL-CIO, 278 F.2d 237, 242 (D.C. Cir. 1960) (noting that “Congress relied on the Board's expertise to harmonize the competing goals of industrial stability and employee freedom of choice to best achieve the ultimate purposes of the Act.”).^[5]

The subject of this rulemaking proceeding concerns three other policies that the Board originally created through adjudication to protect employee free choice in elections and to effectuate the Act's policies favoring stable bargaining relationships: the blocking charge policy; the voluntary-recognition bar doctrine; and the policy governing 9(a) recognition in the construction industry. The Board's April 2020 final rule radically altered each of those policies.

A. Blocking Charge Policy

1. The Board's Historical Blocking Charge Policy

As the Board acknowledged in the notice of proposed rulemaking that culminated in the April 2020 final rule, see 84 FR 39930, 39931, the blocking charge policy dates back to the early days of the Act. See United States Coal & Coke Co., 3 NLRB 398, 399 (1937). Indeed, prior to the April 2020 final rule, and for more than eight decades, the Board had maintained a policy of generally declining to process an election petition over party objections in the face of pending unfair labor practice charges alleging conduct that, if proven, would interfere with employee free choice in an election, until the merits of those charges could be determined.^[6]

The rationale for the blocking charge policy was straightforward: it was “premised solely on the [Board's] intention to protect the free choice of employees in the election process.” NLRB Casehandling Manual (Part Two), Representation Proceedings Section 11730 (August 2007) (“Casehandling Manual (August 2007)”). “The Board's policy of holding the petition in abeyance in the face of pending unfair labor practices is designed to preserve the laboratory conditions that the Board requires for all elections and to ensure that a free and fair election can be held in an atmosphere free of any type of coercive behavior.” Mark Burnett Productions, 349 NLRB 706, 706 (2007).

Prior to the effective date of the April 2020 amendments, there were two broad categories of blocking charges. The first, called Type I charges, encompassed charges that alleged conduct that merely interferes with employee free choice. Casehandling Manual Section 11730.1 (August 2007). See also NLRB Casehandling Manual (Part Two), Representation Proceedings Section 11730.1 (January 2017) (“Casehandling Manual (January 2017)”). Examples of Type I charges included allegations of employer threats to retaliate against employees if they vote in favor of union representation or promises of benefits if employees vote against union representation. For many years, the blocking charge policy provided that if the charging party in a pending unfair labor practice case was also a party to a petition, and the charge alleged conduct that, if proven, would interfere with employee free choice in an election (a Type I charge), were one to be conducted, and no exception was applicable, the charge should be investigated and either dismissed or remedied before the petition was processed. Casehandling Manual Section 11730.2 (August 2007).^[7]

The policy further provided that if upon completion of the investigation of the charge, the regional director determined that the Type I charge had merit and that a complaint should issue absent settlement, the regional director was to refrain from conducting an election until the charged party took all the remedial action required by the settlement agreement, administrative law judge's decision, Board order, or court judgment. Casehandling Manual Sections 11730.2; 11733, 11734 (August 2007). On the other hand, if upon completion of the investigation of the charge, the regional director determined that the charge lacked merit and should be dismissed absent withdrawal, the regional director was to resume processing the petition and conduct an election where appropriate. Casehandling Manual Sections 11730.2; 11732 (August 2007).

In short, in cases where the Type I charges proved meritorious and there had been conduct that would interfere with employee free choice in an election, the blocking charge policy delayed the election until those unfair labor practices had been remedied and employees could register a free and untrammeled choice for or against a representative. As for the subset of cases where the charges were subsequently found to lack merit, the policy provided for regional directors to resume processing those petitions to elections.

The second broad category of blocking charges, called Type II charges, encompassed charges that alleged conduct that not only interferes with employee free choice, but that is also inherently inconsistent with the petition itself. Casehandling Manual Sections 11730.1, 11730.3 (August 2007). Under the policy, such charges could block a related petition during the investigation of the charges, because a determination of the merit of the charges could also result in the dismissal of the petition. Casehandling Manual Section 11730.3 (August 2007). Examples of Type II charges included allegations that a labor organization's showing of interest was obtained through threats or force, allegations that an employer's representatives were directly involved in the initiation of a decertification petition, and allegations of an employer's refusal to bargain, for which the remedy is an affirmative bargaining order. Casehandling Manual Sections 11730.3(a), (b) (August 2007). For many years, the blocking charge policy provided that regardless of whether the Type II charges were filed by a party to the petition or by a nonparty, and regardless of whether a request to proceed was filed, the charge should be investigated before the petition was processed unless an exception applied. Casehandling Manual Sections 11730.3, 11731, 11731.1(c) (August 2007).

The blocking charge policy further provided that if the regional director determined that the Type II charge had merit, then the regional director could dismiss the petition, subject to a request for reinstatement by the petitioner after final disposition of the unfair labor practice case. A petition was subject to reinstatement if the allegations in the unfair labor practice case which caused the petition to be dismissed were ultimately found to be without merit. Casehandling Manual Section 11733.2. (August 2007).^[8] On the other hand, if the director determined that the Type II charge lacked merit, the director was to resume processing the petition and to conduct the election where appropriate. Casehandling Manual Section 11732 (August 2007).

However, the mere filing of an unfair labor practice charge did “not automatically cause a petition to be held in abeyance” under the blocking charge policy. Casehandling Manual Sections 11730, 11731 (August 2007). See also Casehandling Manual Sections 11730, 11731 (January 2017); Veritas Health Services, Inc. v. NLRB, 895 F.3d 69, 88 (D.C. Cir. 2018) (noting that pending unfair labor practice charges do not necessarily preclude processing a representation petition). For example, the Board had long declined to hold a petition in abeyance if the pending unfair labor practice charge did not allege conduct that would interfere with employee free choice in an election. See, e.g., Holt Bros., 146 NLRB 383, 384 (1964) (rejecting party's request that its charge block an election because even if the charge in question were meritorious, it would not interfere with employee free choice in the election). The Board could also decline to block an immediate election despite a party's request that it do so when the surrounding circumstances suggested that the party was using the filing of charges as a tactic to delay an election without cause. See Columbia Pictures Corp., 81 NLRB 1313, 1314-1315 fn. 9 (1949).^[9]

2. The Blocking Charge Policy and the Board's 2014 Final Rule Amending Representation Case Procedures

After notice and comment, the Board adopted some 25 amendments to its representation-case procedures in a 2014 final rule, that, among other things, was designed to advance the public interests in free and fair elections and in the prompt resolution of questions concerning representation. See Representation-Case Procedures,79 FR 74308, 74308-74310, 74315, 74341, 74345, 74379, 74411 (December 15, 2014). As the Board acknowledged when adopting the April 2020 final rule (85 FR 18376-18377), the Board also made certain modifications to the blocking charge policy as a part of its 2014 final rule revising the Board's representation-case procedures. In particular, in response to allegations that at times incumbent unions may misuse the blocking charge policy by filing meritless charges to delay decertification elections, the Board imposed a requirement that, whenever any party sought to block the processing of an election petition, it must simultaneously file an offer of proof listing the names of witnesses who will testify in support of the charge and a summary of each witness' anticipated testimony and promptly make its witnesses available. 79 FR 74419; 29 CFR 130.20. The 2014 final rule also provided that if the regional director determined that the party's offer of proof does not describe evidence of conduct that, if proven, would interfere with employee free choice in an election or would be inherently inconsistent with the petition itself, and thus would require that the processing of the petition be held in abeyance absent special circumstances, the regional director would continue to process the petition and conduct the election where appropriate. 79 FR 74419; 29 CFR 103.20. The Board expressed the view that those amendments would protect employee free choice while helping to remove unnecessary barriers to the expeditious resolution of questions of representation by providing the regional director with the information necessary to assess whether the unfair labor practice charges have sufficient support and involve the kind of violations that warrant blocking an election, or whether the charges are filed simply for purposes of delay. 79 FR 74418-74420.

Two Board members dissented from the 2014 final rule. With respect to the blocking charge policy, the dissenting Board members did not propose any changes to the blocking charge policy with respect to Type II charges. However, the two dissenting members advocated a 3-year trial period under which the Board would hold elections—and thereafter impound the ballots—notwithstanding the presence of a request to block (supported by an adequate offer of proof) based on a Type I charge. 79 FR 74456.

The Board majority rejected the dissenters' proposal to conduct elections in all cases involving Type I charges. The 2014 final rule explained that the dissenting Board Members had not identified any compelling reason to abandon a policy continuously applied since 1937. 79 FR 74418-74420, 74429 (“Unfair labor practice charges that warrant blocking an election involve conduct that is inconsistent with a free and fair election: It advances no policy of the Act for the agency to conduct an election unless employees can vote without unlawful interference.”).

The courts upheld the 2014 final rule. See Associated Builders and Contractors of Texas, Inc. v. NLRB, 826 F.3d 215, 229 (5th Cir. 2016) (noting that the Board “conducted an exhaustive and lengthy review of the issues, evidence, and testimony, responded to contrary arguments, and offered factual and legal support for its final conclusions”); Chamber of Commerce of the United States of America v. NLRB, 118 F. Supp. 3d 171, 220 (D.D.C. 2015) (“[T]he Board engaged in a comprehensive analysis of a multitude of issues relating to the need for and the propriety of the Final Rule, and it directly addressed the commenters' many concerns[.]”). See also RadNet Mgmt, Inc. v. NLRB, 992 F.3d 1114, 1123 (D.C. Cir. 2021) (rejecting arbitrary-and-capricious challenge to 2014 final rule).

Accordingly, under the blocking charge policy as it existed prior to the effective date of the April 2020 amendments, a regional director could not block an election based on the request of a party who had filed an unfair labor practice charge if the party had not first (1) submitted an offer of proof describing evidence that, if proven, would interfere with employee free choice in an election were one to be conducted or conduct that would be inherently inconsistent with the petition itself, (2) listed its witnesses who would testify in support of the charge, and (3) agreed to promptly make its witnesses available. Casehandling Manual Section 11730 (January 2017). Even then, the regional director retained discretion to process the petition if an exception to the blocking charge policy applied. Casehandling Manual Sections 11730, 11730.2, 11730.3, 11730.4, 11731, 11731.1-11731.6 (January 2017).

3. The April 2020 Blocking Charge Amendments

In 2019, the Board issued a Notice of Proposed Rulemaking proposing, in relevant part, to substantially change the blocking charge policy. Under the proposed rule, whenever a party filed unfair labor practice charges that would have blocked processing of the petition under prior doctrine, the Board would instead conduct the election and impound the ballots (absent dismissal of the representation petition, as noted above at fn. 1). See Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships,84 FR 39930, 39930, 39937-39938 (August 12, 2019). If the charge had not been resolved prior to the election, the NPRM proposed that the ballots would remain impounded until the Board made a final determination regarding the charge. 84 FR 39937. The NPRM acknowledged that the ballots would “never be counted” in cases where the Board made a final determination that the charge had merit and that the conduct warranted either dismissing the petition or holding a new election. 84 FR 39938.

The NPRM offered several justifications for the proposed amendments, including the arguments that the Board's historical blocking charge policy impeded employee free choice by delaying elections and that there is a potential for incumbent unions to abuse the blocking charge policy by deliberately filing nonmeritorious unfair labor practice charges in the hopes of delaying decertification elections. See, e.g.,84 FR 39931-39933, 39937. The majority prepared appendices and cited them in support of its claims. 84 FR 39933 & fns. 13-14, 39937.

Then-Member McFerran dissented from the NPRM's proposed changes to the blocking charge policy. In her view, the Board majority offered no valid reasons for substantially changing the blocking charge policy that Boards of differing perspectives had adhered to for more than eight decades. 84 FR 39939-39949. Noting that the majority had implicitly conceded that its proposed vote-and-impound procedure would require regional directors to run—and employees, unions, and employers to participate in—elections conducted under coercive conditions that interfere with employee free choice, the dissent argued that the proposed blocking charge amendments would undermine employee rights and the policies of the Act. 84 FR 39940, 39941, 39943, 39945, 39948, 39949. The dissent further argued that because the proposed amendments would require regional directors to run—and employees, unions, and employers to participate in—elections that would not resolve the question of representation, the proposed amendments would impose unnecessary costs on the parties and the Board. 84 FR 39941, 39945, 39948, 39949. The dissent also pointed out inaccuracies in the data relied on by the majority in support of its proposed changes to the blocking charge policy.^[10]

The majority did not correct the errors before issuing the NPRM. 84 FR 39930-39939 & fn. 15.^[11] As noted, on April 1, 2020, the Board issued a final rule substantially eliminating the blocking charge policy.^[12] 85 FR 18366. The final rule differed from the NPRM. Unlike the NPRM, which had proposed a vote and impound procedure for all cases involving blocking charges until there was a final determination of the merits of the charge, the final rule adopted a vote and immediately count the ballots procedure for the vast majority of blocking charge cases (including all cases involving Type I blocking charges and some cases involving Type II blocking charges). 85 FR 18366, 18369-18370, 18374. The final rule also provided that notwithstanding a request to block based on a pending charge alleging certain specified types of Type II conduct, the Board will impound the ballots for no more than 60 days (unless a complaint issues on the Type II charge within the 60-day period, in which case the ballots will be remain impounded pending a final determination by the Board). 85 FR 18369-18370, 18374. In short, under the April 2020 final rule, a blocking charge request will never delay any election, and will only rarely delay the count of the ballots. 85 FR 18370, 18375. Nevertheless, the final rule “clarifie[d] that the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and a determination of its effect, if any, on the election petition.” 85 FR 18370.

The Board adopted the amendments requiring the Board to refrain from delaying any election involving blocking charges essentially for the reasons contained in the NPRM. 85 FR 18375-18380, 18393. As for its decision to abandon the proposed vote-and-impound procedure and to substitute the requirement that ballots be immediately opened and counted in all cases involving Type I charges and a subset of Type II charges, the Board stated that it had concluded that it would be “preferable for ballots to be counted immediately after the conclusion of the election . . . with regard to most categories of unfair labor practice charges.” 85 FR 18380. The final rule agreed with a commenter that:

[I]mpoundment of ballots does not fully ameliorate the problems with the current blocking charge policy because impoundment fails to decrease a union's incentive to delay its decertification by filing meritless blocking charges; makes it more difficult for parties to settle blocking charges, as they would not know the results of the election during their settlement discussions; and further frustrates and confuses employees waiting, possibly for an extended post-election period, to learn the results of the election.

85 FR 18380.

As noted, however, the Board chose to adopt a vote-and-impound-for-60-days-procedure (with impoundment to last longer if a complaint issued within 60 days of the election) for certain types of Type II unfair labor practice charges. The Board stated in this regard:

At the same time, however, some types of unfair labor practice charges speak to the very legitimacy of the election process in such a way that warrants different treatment—specifically, those that allege violations of section 8(a)(1) and 8(a)(2) or section 8(b)(1)(A) of the Act and that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition, and those that allege that an employer has dominated a union in violation of section 8(a)(2) and that seek to disestablish a bargaining relationship. We believe that in cases involving those types of charges, it is more appropriate to impound the ballots than to promptly count them. Nevertheless, in order to avoid a situation where employees are unaware of the election results indefinitely, we believe it is appropriate to set an outer limit on how long ballots will be impounded. Accordingly, the final rule provides that the impoundment will last for only up to 60 days from the conclusion of the election if the charge has not been withdrawn or dismissed prior to the conclusion of the election, in order to give the General Counsel time to make a merit determination regarding the unfair labor practice charge.

85 FR 18380.

As for the errors in the NPRM pointed out by then-Member McFerran in her dissent to the NPRM and in the Bloomberg law article, supra fn. 11, the Board stated in the final rule that we also acknowledge the claims in the dissent to the NPRM and by some commenters that there were errors in some of the data that the NPRM majority cited to support the proposed rule and that these errors led to exaggeration both of the number of cases delayed and the length of delay involved. Even accepting those claims as accurate, the remaining undisputed statistics substantiate the continuing existence of a systemic delay that supports our policy choice to modify the current blocking-charge procedure that does not, and need not, depend on statistical analysis. As the AFL-CIO candidly acknowledges, “[b]locking elections delays elections. That is undeniably true and requires no `statistical evidence' to demonstrate.” We agree. Furthermore, anecdotal evidence of lengthy blocking charge delays in some cases, and judicial expressions of concern about this, remain among the several persuasive reasons supporting a change that will assure the timely conduct of elections without sacrificing protections against election interference. 85 FR 18377 (footnote omitted).

The April 2020 amendments became effective on July 31, 2020. See 85 FR 20156 (Apr. 10, 2020).

B. The Voluntary-Recognition Bar

1. Historical Development of the Voluntary-Recognition Bar

Since before the NLRA was passed, employers have sometimes chosen to voluntarily recognize labor unions as the collective-bargaining representatives of their employers, and the Act itself clearly contemplated that the practice of voluntary recognition would continue.^[13] While the statute provides for Board-conducted representation elections, with winning unions certified by the Board, the Act does not make such elections the only route to union representation under the statute, as the Supreme Court has explained.^[14]

Rather, section 8(a)(5) of the Act requires an employer “to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).” 29 U.S.C. 158(a)(5). Section 9(a), in turn, refers to “[r]epresentatives designated or selected . . . by the majority of the employees” in an appropriate unit.^[15] Section 9(c)(1)(A), meanwhile, provides for Board-conducted elections when employees seek union representation and file a petition with the Board “alleging . . . that their employer declines to recognize their representative as . . . defined in section 9(a).” 29 U.S.C. 159(c)(1)(A) (emphasis added). When an employer does not “decline[ ] to recognize” the designated union, there is no obvious statutory “question of representation” under section 9(c) to be resolved by a Board election. A union that has been certified by the Board after winning an election enjoys certain statutory privileges and protections that a voluntarily recognized union does not. Most important, section 9(c)(3) of the Act, in providing that another Board election may not be held for twelve months after a valid election, effectively insulates a certified union from an electoral challenge to its representative status for that one-year period.^[16]

To be lawful, voluntary recognition pursuant to section 9(a) of the Act must be based on the union's majority support among employees.^[17] Such support is often demonstrated by having employees sign cards authorizing the union to represent them in collective bargaining, although the Board recognizes other mechanisms as well.^[18] Traditional Board law reflects that under the Act, “[o]nce voluntary recognition has been granted to a majority union, the [u]nion becomes exclusive collective-bargaining representative of the employees.” ^[19] In short, as the Supreme Court has recognized, voluntary recognition is not simply permitted under the Act; it establishes a bargaining relationship between union and employer that must be honored.^[20] So long as employees have freely chosen the union to represent them, voluntary recognition clearly promotes the statutory policy of “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of . . . designation of representatives of their own choosing.” ^[21]

In 1966, a unanimous Board in Keller Plastics,^[22] an unfair labor practice case, added the voluntary-recognition bar to its previously established bar doctrines, which temporarily insulate a union from challenges to its status as exclusive bargaining representative. The Keller Plastics Board rejected a claim that an employer had unlawfully reached a collective-bargaining agreement with a union that had since lost the majority support it enjoyed when it was voluntarily recognized by the employer. The Board held that in cases involving voluntary recognition of a union—as in cases where a bargaining relationship was established by a Board certification, by a Board order in an unfair labor practice case, or by an unfair labor practice settlement—“the parties must be afforded a reasonable time to bargain and to execute the contracts resulting from such bargaining” because “negotiations can succeed . . . and the policies of the Act can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time.” ^[23] Following Keller Plastics, the Board quickly and unanimously held in Sound Contractors,^[24] also decided in 1966, that the voluntary-recognition bar applied in representation cases as well as in unfair labor practice cases, barring election petitions that challenged a voluntarily recognized union's representative status during a reasonable period for bargaining.

2. Dana Corp. and Lamons Gasket

For more than 40 years, the Board consistently applied the voluntary-recognition bar as articulated in Keller Plastics.^[25] In 2007, however, a divided Board, citing the increased use of voluntary-recognition agreements to establish collective-bargaining relationships, re-examined Board doctrine and adopted a different approach. In Dana Corp.,^[26] the Board established a novel election procedure in voluntary-recognition cases, through adjudication and not rulemaking. It held that no election bar would be imposed after an employer's “card-based recognition” of a union, nor would a contract bar be imposed on contracts executed with a voluntarily recognized union, unless:

(1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed.

351 NLRB at 434 (footnote omitted). The Dana Board asserted a need to “provide greater protection for employee free choice,” id. at 438, and cited two principal reasons for establishing the new procedure. First, it concluded that Board-conducted elections were more reliable than union-authorization cards in determining employee free choice. Id. at 438-440. Second, it found that the rationale for the other election bars established by the Board was “far less persuasive” in the context of voluntary recognition. Id. at 440-441. Nevertheless, the Dana Board properly acknowledged that “[s]everal courts of appeals ha[d] endorsed the current recognition-bar doctrine,” while citing no contrary decisions. Id. at 441 & fn. 31 (collecting cases from District of Columbia Circuit and Second, Third, Sixth, Seventh, and Ninth Circuits). The dissenting Board members in Dana rejected both of the principal reasons offered by the majority for the new procedure. They argued that the voluntary-recognition bar served the same purposes as other election bars in giving a bargaining relationship a fair chance to succeed, particularly given that negotiations for a first contract were involved. Id. at 446. The dissenters also pointed out that there was no empirical evidence that the use of authorization cards was a less reliable indicator of employee free choice than an election. Id. at 448.

Four years later, in 2011, the Dana decision was overruled by a divided Board in Lamons Gasket,^[27] which rejected the Dana procedure and restored the voluntary-recognition bar and for the first time defined benchmarks for measuring the reasonable bargaining period covered by the bar. The Board defined “a reasonable period of bargaining, during which the recognition bar will apply, to be no less than 6 months after the parties' first bargaining session and no more than 1 year.” 357 NLRB at 748. “In determining whether a reasonable period has elapsed in a given case,” the Board held that it would apply the multifactor test of Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), and would “impose the burden of proof on the General Counsel to show that further bargaining should be required.” 357 NLRB at 748 (footnote omitted). As noted by the Lamons Gasket Board, the Lee Lumber test considers “(1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues being negotiated and of the parties' bargaining processes; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse.” Lee Lumber, supra, 334 NLRB at 402.

In overruling Dana, the Lamons Gasket Board made three principal arguments. First, it argued that empirical data from the period in which the Dana procedure was in effect refuted the claim that voluntary recognition did not accurately reflect employee free choice: “employees decertified the voluntarily recognized union under the Dana procedures in only 1.2 percent of the total cases in which Dana notices were requested.” 357 NLRB at 742 (footnote omitted). Second, the Board contended that the Dana notice, “understood in context,” inappropriately compromised the Board's neutrality by “suggest[ing] to employees that the Board considers their choice to be represented suspect and signals to employees that their choice should be reconsidered through the filing of a petition.” Id. at 744. Third, the Board argued that the voluntary-recognition bar, in protecting a newly established bargaining relationship, promoted the same statutory policies advanced by its other bar doctrines. Id. Thus, voluntary recognition reflected the Act's approval of a “system of private ordering” in labor relations in which collective bargaining was to be encouraged and labor disputes avoided. Id. at 746. Voluntary recognition was consistent with employee free choice because it required a showing of majority support among all employees in the bargaining unit, not merely a majority of voters (as in a Board election), and because the Act's unfair labor practice provisions enabled improper recognition to be redressed. Id. at 746-747. In the view of the Lamons Gasket Board, the Dana procedure simply served to create uncertainty around the new bargaining relationship and to interfere unnecessarily in the bargaining process. Id. at 747. The dissenting Board member rejected each of these arguments, contending (among other things) that the same empirical evidence relied on by the majority in fact supported the rationale of Dana. Id. at 748-754.

3. The April 2020 Amendments

In 2019, as part of its larger rulemaking culminating in the April 1, 2020 final rule discussed herein, the Board proposed, subject to public comment, to overrule Lamons Gasket and to reinstate the Dana procedure.^[28] As support for the proposed rule, the Board cited the views of the Dana Board and the dissenting Board member in Lamons Gasket. No intervening judicial decisions had questioned Lamons Gasket or its restoration of the longstanding voluntary-recognition bar, nor had a petition for rulemaking addressing the issue been filed with the Board. Then-Member McFerran dissented.^[29]

On April 1, 2020, following a public comment period, the Board adopted a final rule that essentially codified the Dana procedure.^[30] The new rule (“Processing of petitions filed after voluntary recognition”) appears as § 103.21 in the Board's Rules and Regulations, 29 CFR 103.21. Under the rule, neither the employer's voluntary recognition of a union, nor the first collective-bargaining agreement executed by the parties after recognition, will bar the processing of an election petition, unless: (1) the employer or the union notifies the Board's Regional Office that recognition has been granted; (2) the employer posts a prescribed notice of recognition “informing employees that recognition has been granted and that they have a right to file a petition during a 45-day `window period' beginning on the date the notice is posted”; (3) the employer distributes the notice electronically to employees, if electronic communication is customary; and (4) 45 days from the posting date pass without a properly supported election petition being filed. The Board noted that it did “not rely on any data, or analysis of data, other than that discussed in Dana and in Lamons Gasket, which [it had] fully considered.” ^[31]

In explaining the reasons for the new rule, the Board essentially repeated the rationale of the Dana decision, advancing arguments that had been rebutted by the Lamons Gasket decision.^[32] Thus, the Board characterized Board elections as the “Act's preferred method for resolving questions of representation,” citing the Act's election-year bar (under section 9(c)(3), after a valid Board election is held, another election may not be directed for one year) and the specific statutory protections granted only to a Board-certified union.^[33] The Board asserted that “secret-ballot elections are better than voluntary recognition at protecting employees' [s]ection 7 freedom to choose, or not choose, a bargaining representative.” ^[34] It noted that the Board “does not supervise voluntary recognitions” and rejected the notion that the Act's unfair labor practice provisions were sufficient to address coercive conduct related to voluntary recognition.^[35] A Board election was deemed superior to voluntary recognition because “it presents a clear picture of employee voter preference at a single moment.” ^[36] Rejecting criticism of the proposed rule, the Board insisted that it does not “restrict the lawful voluntary establishment of majority-supported bargaining relationships, nor does it limit the immediate statutory rights and responsibilities that ensue upon commencement of those relationships.” ^[37] According to the Board, the rule was also supported by the need to protect employees' ability to challenge the union's majority status from the possibility that voluntary recognition immediately triggering an election bar might be followed by a collective-bargaining agreement, which would trigger its own, separate bar.^[38]

The Board also addressed experience under the Dana procedure, as described in the Lamons Gasket decision, by echoing the arguments of the dissenting Board member in Lamons Gasket .^[39] It acknowledged that “only 7.65 percent of Dana notice requests resulted in election petitions, only 4.65 percent of Dana notices resulted in actual elections, and employees decertified the voluntarily recognized union in only 1.2 percent of the total cases in which Dana notices were requested.” ^[40] In expressing the view that “the fact that only a small percentage of all Dana notices resulted in ending continued representation by the voluntarily recognized union does not mean that the post-recognition open period procedure was unnecessary and should not be restored,” the Board pointed to the fact that in the (rare) instances where a Dana election was held, the union was decertified about one-quarter of the time.^[41] As for the overwhelming majority of cases where no Dana election was held, the Board asserted that it knew “nothing about the reliability of the proof of majority support that underlay recognition in each of these cases,” nor “why no petition was filed.” ^[42] In turn, the Board cited the absence of evidence that the Dana procedure had produced negative effects, such as discouraging voluntary recognition or discouraging or delaying collective bargaining.^[43] The Board acknowledged the possibility that the “existence of a pending election petition will cause unions to spend more time campaigning or working on election-related matters rather than doing substantive work on behalf of employees,” but concluded “that this is a reasonable trade-off for protecting employees' ability to express their views in a secret-ballot election.” ^[44]

The new election procedure established by the Board's rule went into effect on June 1, 2020. In response to a series of Freedom of Information Act requests, the Board has compiled and disclosed data that reflects its experience under the rule.^[45] That experience has been entirely consistent with the Board's experience under the Dana procedure, during the 2007-2011 period. The new data, which has been assembled incrementally by the Board's FOIA officer in response to successive information requests, show as follows.^[46] First, for the calendar year 2020, the data show that 32 requests for voluntary recognition notices were filed with the Board. In those cases, no election petitions were filed.^[47] For the period from January 1, 2021 through June 30, 2021, the data shows that 39 requests for notices were filed, and no subsequent petitions were filed. For the period from July 1, 2021 through September 30, 2021, 31 requests for notices were filed. One decertification petition was subsequently filed, after which the union disclaimed interest. For the period from October 1, 2021 through December 31, 2021, 53 requests were filed, and no subsequent petitions were filed. For the period from January 1, 2022 through March 31, 2022, the data shows that 51 requests for notices were filed, and no subsequent petitions were filed. For the period from April 1, 2022 through June 30, 2022, the data shows that 54 requests for notices were filed, and no subsequent petitions were filed. As a whole, then, the data thus far show that since the effective date of § 103.21, 260 requests for recognition notices were filed with the Board. In those cases, one election petition was subsequently filed, and no elections were held—although the union in the one case where a petition was filed disclaimed interest after its filing. Thus, only 0.4 percent of recognition notice requests resulted in election petitions, 0 percent of notices resulted in actual elections, and (if we count the disclaimer as an effective proxy for the de-selection of the union in the sole case where a petition was filed), employees opted not to retain the voluntarily recognized union in only 0.4 percent of the total cases in which recognition notices were requested. In over 99 percent of notice cases, employees appear to have affirmed their choice to be represented by a union.

As we explain below, the Board's preliminary view, subject to comments, is that the voluntary-recognition bar as articulated in Lamons Gasket better serves the policies of the National Labor Relations Act than does the current rule.

C. Section 9(a) Recognition in the Construction Industry

1. Overview

In the construction industry, employees often work for their employer for only a relatively brief period until the completion of a discrete project, at which time they may have begun working on a new project for a different employer.^[48] This sporadic and temporary feature of much construction-industry work complicates a union's effort to demonstrate majority support among employees whose time with any one employer may be fleeting. At the same time, the widespread use of the project bid process means that construction employers need to know their labor costs, and thus, the terms of a collective-bargaining agreement, even before they hire their first employee.^[49] The employer has to be able to forecast its labor costs to submit a contract bid and have available a pool of skilled craft workers ready for quick referral.^[50]

Consequently, construction employers and unions frequently negotiate and enter into prehire collective-bargaining agreements.^[51] For the length of these agreements, even before it hires any employees, the construction employer recognizes the union as the bargaining representative of the employer's eventual employees and the employer is guaranteed precise labor costs pursuant to the agreement and, in the event of a union hiring hall, a source of skilled craft workers.^[52]

In 1959, responsive to these unique construction-industry practices, Congress amended the Act,^[53] adopting section 8(f),^[54] which permitted a limited alternative in the building and construction industry to the Act's existing section 9(a) requirement that a union have majority support to obtain exclusive collective-bargaining representative status.^[55] By declaring that “[i]t shall not be an unfair labor practice” to do so, section 8(f) sanctions the construction-industry practice of a construction employer and a union entering into a prehire agreement even where the union has not established its majority support among any bargaining unit of the employer's employees under section 9(a).^[56]

For more than 35 years, the Board's decision in John Deklewa & Sons has governed how the Board has handled these 8(f) agreements and the interplay with a construction employer's 9(a) recognition of a union in instances where the union does have the support of a majority of the bargaining unit employees. Under John Deklewa & Sons, the Board adopted a rebuttable presumption that a collective-bargaining relationship in the construction industry was established under section 8(f), with the burden of proving that the relationship instead falls under section 9(a) placed on the party so asserting.^[57]

The distinction is important because, unlike where there is only an 8(f) relationship, a union recognized as the 9(a) representative enjoys the full panoply of rights and obligations available to unions in all other industries as the exclusive collective-bargaining representative under section 9(a).^[58] This includes the irrebuttable presumption of majority support during the term of the contract and a rebuttable presumption of majority support at other times, including at the contract's expiration.^[59] In practice, under the Board's contract-bar rules, 9(a) recognition bars the filing of a representation petition challenging the union's majority status during the “reasonable period” of an agreement (up to 3 years) outside of the “window period” and imposes an obligation on the employer to continue to recognize and bargain with the union even after the parties' agreement has expired.^[60] By contrast, as the Board explained in John Deklewa & Sons, there is no contract or recognition bar where there is only an 8(f) relationship: “the 8(f) union enjoys no presumption of majority status on the contract's expiration and cannot picket or strike to compel renewal of an expired agreement or require bargaining for a successor agreement. At no time does it enjoy a presumption of majority status, rebuttable or otherwise, and its status as the employees' representative is subject to challenge at any time.” ^[61]

Nonetheless, nothing in section 8(f) prevents a union representing employees in the construction industry from overcoming the 8(f) presumption and obtaining the same 9(a) recognition (and the attendant benefits) as any other union. Thus, under John Deklewa & Sons, the Board provided for unions representing employees in the construction industry to obtain 9(a) recognition by demonstrating—similar to unions representing employees in nonconstruction industries—a “clear showing of majority support” from the unit employees, assayed either through a Board representation election or the construction employer voluntarily recognizing that a majority of unit employees had designated the union as its collective-bargaining representative.^[62]

Additionally, because section 8(f) uniquely permits voluntary recognition in the construction industry in the absence of majority support, where a construction employer voluntarily recognizes a union, in order to avoid the uncertainty of whether the recognition is pursuant to section 8(f) or 9(a), there must be unambiguous evidence that the construction employer's recognition was pursuant to section 9(a) instead of 8(f). In considering whether there was unambiguous evidence of section 9(a) recognition, the Board has looked to positive evidence, including contract language, of the union having made an unequivocal demand for 9(a) recognition and the employer having unequivocally granted it.^[63]

In Staunton Fuel & Material, Inc., the Board defined the minimum requirements for what must be stated in a written recognition agreement or contract clause in order for it to serve as sufficient evidence of the union having attained 9(a) status.^[64] The Board, following the approach taken by the Tenth Circuit in NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147 (10th Cir. 2000) and NLRB v. Oklahoma Installation Co. 219 F.3d 1160 (10th Cir. 2000), found that “[a] recognition agreement or contract provision will be independently sufficient to establish a union's 9(a) representation status where the language unequivocally indicates that (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 9(a) bargaining representative; and (3) the employer's recognition was based on the union's having shown, or having offered to show, evidence of its majority support.” ^[65]

Significantly, this contract language does not substitute for the union showing or offering to show evidence of its majority support; it does, however, provide a contemporaneous, written memorialization that the union had majority support at the time of the 9(a) recognition. While holding that contract language can be independently dispositive of a 9(a) relationship, the Board in Staunton Fuel left open the issue of whether an employer could challenge the union's majority support within the 10(b) period where the contractual language the employer had agreed to unequivocally stated that the union made a showing of majority support.^[66] As the D.C. Circuit has held, if other evidence casts doubt on the assertion that the union enjoyed majority support at the time the employer purportedly granted 9(a) recognition, then the contract language necessarily fails to satisfy its intended purpose.

Thus, in Nova Plumbing, Inc. v. NLRB, the D.C. Circuit held that language in the collective-bargaining agreement between a construction employer and a union could not establish a 9(a) relationship.^[67] The court pointed to strong evidence in the record that contradicted the contractual language.^[68] In particular, senior employees who had been longtime union members opposed the union representing them with this employer, for instance a meeting between the senior employees and union representatives turned “extremely hostile,” and the employer's field superintendents and other foremen “encountered resistance” as they informed other employees about having to join the union.^[69] The court reasoned that language in the collective-bargaining agreement “cannot be dispositive at least where, as here, the record contains strong indications that the parties had only a section 8(f) relationship.” ^[70] Subsequently, in M & M Backhoe Service, Inc. v. NLRB, the D.C. Circuit distinguished Nova Plumbing to uphold the language in the parties' agreement establishing that the union was the 9(a) representative where there was evidence that the union actually had majority support, even if the employer never requested to see it.^[71] Six years after M & M Backhoe, in Allied Mechanical Services, Inc. v. NLRB, the D.C. Circuit quoted the Nova Plumbing court but, in doing so, added emphasis to indicate that contract language cannot be dispositive of a union's 9(a) status where the record contains contrary evidence.^[72]

More recently, the D.C. Circuit in Colorado Fire Sprinkler, Inc. v. NLRB rejected the union's claim of 9(a) recognition where the union relied solely on demonstrably false contract language stating that the employer had “confirmed that a clear majority” of the employees had designated it as their bargaining representative, even though not a single employee had been hired at the time the parties initially executed their agreement containing that language.^[73] The court noted that “actual evidence that a majority of employees have thrown their support to the union must exist and, in Board proceedings, that evidence must be reflected in the administrative record.” ^[74] The court recognized that the only evidence of the union's majority support that could be pointed to in the record was the “demonstrably false” contract language.^[75] In fact, as the court pointed out, “[t]ellingly, at no point in the administrative record did the [u]nion even explain, let alone proffer, what evidence it claimed to have collected” to support its assertion that a majority of employees had designated it as their bargaining representative.^[76] The court concluded that the Board had improperly “blink[ed] away record evidence undermining the credibility or meaningfulness of the recognition clauses” and “ma[de] demonstrably untrustworthy contractual language the be-all and end-all of [s]ection 9(a) status.” ^[77] Construction industry employers and unions—like those in all other industries—cannot have created a 9(a) relationship where the union did not enjoy majority support, regardless of whether they agree to a contractual provision falsely attesting to the union's majority support.^[78]

2. The 6-Month Limitations Period for Challenging a Union's 9(a) Recognition in the Construction Industry

Importantly, in John Deklewa & Sons, despite the greater statutory leeway granted to construction employers and unions to enter into section 8(f) collective-bargaining relationships, the Board recognized that unions seeking section 9(a) representation do not “have less favored status with respect to construction industry employers than they possess with respect to those outside the construction industry.” ^[79]

Six years after issuing John Deklewa & Sons, the Board in Casale Industries  ^[80] relied on this basic tenet from John Deklewa & Sons —that unions representing construction-industry employees should be treated no less favorably than those representing nonconstruction-industry employees—to explicitly incorporate into the representation arena the teachings of the Supreme Court in Local Lodge No. 1424, International Association of Machinists, AFL-CIO (Bryan Manufacturing Co.) v. NLRB. In Bryan Manufacturing, the Supreme Court held that if an employer recognizes a union as the section 9(a) representative and more than 6 months elapse, the Board will not entertain a claim that the union lacked majority status when it was initially granted recognition.^[81]

In Bryan Manufacturing, more than 6 months after the parties had executed a collective-bargaining agreement, unfair labor practice charges were filed contesting the parties' enforcement of the union-security clause in the contract on the grounds that the union indisputably lacked majority support at the time the parties executed their agreement.^[82] Nonetheless, the Court reversed the Board and dismissed the complaint because, under section 10(b)'s 6-month limitations period, the complaint was premised on the allegedly unlawful recognition of the union, which occurred more than 6 months prior to the filing of the charge.^[83] The Court based its decision on not only the statutory language but also the practical need for a time restriction on challenges to a union's initial recognition.^[84] As the Court acknowledged, quoting the legislative history from the Congress that enacted it, the 6-month limitations period under section 10(b) is essential “to bar litigation over past events `after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused,' . . . and of course to stabilize existing bargaining relationships.” ^[85]

Relying on Bryan Manufacturing, in Casale, the Board reiterated that, in nonconstruction industries, the Board will not entertain a claim that a union lacked majority status at the time of recognition if more than 6 months have elapsed because “a contrary rule would mean that longstanding relationships would be vulnerable to attack, and stability in labor relations would be undermined.” ^[86] The Board stated succinctly that these interests should prevail in construction industry representation cases: “These same principles would be applicable in the construction industry . . . . [P]arties in nonconstruction industries, who have established and maintained a stable [s]ection 9 relationship, are entitled to protection against a tardy attempt to disrupt their relationship. Parties in the construction industry are entitled to no less protection.” ^[87]

3. The Board's 2019 NPRM on 9(a) Recognition in the Construction Industry

On August 12, 2019, the Board issued an NPRM seeking public comments on its proposal, among other things, to modify the manner in which construction employers may acknowledge a union's 9(a) status.

The Board proposed in its 2019 NPRM to overrule Staunton Fuel, regarding the sufficiency of contract language alone to establish a 9(a) bargaining relationship.^[88] The Board contended that overruling Staunton Fuel would be in accordance with the D.C. Circuit decision in Colorado Fire Sprinkler and that it would be most consistent with statutory majoritarian principles and protecting employee free choice.^[89] The Board reasoned that the proposed rule was necessary to prevent a union, without having any extrinsic proof of its majority support, from barring the processing of an election petition filed by an employee or a rival union for up to three years based solely on language in the union's collective-bargaining agreement with a construction employer.^[90]

Under the rule proposed in the 2019 NPRM, the Board would require, in the representation context, the parties to retain additional positive evidence of the union's 9(a) majority support beyond the parties' contract language. Specifically, if a representation petition is filed, and the parties are unable to present positive evidence of the union having made a contemporaneous showing of support from a majority of unit employees at the time initial recognition was granted, the parties would be unable to rely on the Board's customary voluntary-recognition and contract bars. The regional director would be required to process the representation petition, even if it would destabilize the collective-bargaining relationship.^[91] Moreover, if the employer had granted the union 9(a) recognition at a time when it did not enjoy majority support, the Board would be processing a representation petition at a time when the employer had provided the union unlawful assistance under section 8(a)(2) and (1) so that laboratory conditions may not exist to ascertain employees' true sentiment towards the union.^[92]

While the NPRM indicated that the Board sought to overrule Staunton Fuel, the Board's NPRM made no mention whatsoever of altering the bedrock principle from Bryan Manufacturing, reiterated in Casale— which was itself a representation case involving an election petition—that a challenge cannot be made to a union's initial recognition by a construction employer after 6 months had elapsed. Indeed, no mention was made of section 10(b), or that a modification to the Board's limitations period for challenging a union's initial recognition of 9(a) majority status was in any way being contemplated by the Board. Accordingly, under the language and reasoning of the Board's NPRM, and in accordance with Casale, even if a construction employer and/or a union were unable to present positive evidence of the union's initial 9(a) recognition, a representation petition challenging the union's 9(a) recognition that was based on unequivocal written 9(a) recognition could not be processed if more than 6 months had elapsed from the union's initial 9(a) recognition.

4. The 2020 Final Rule

On April 1, 2020, following a public comment period, the Board promulgated its final rule adopting the proposed language from its NPRM but also stating in the preamble to the rule that it was overruling Casale “to the extent that it is inconsistent with the instant rule.” ^[93] The Board proceeded by stating that “we overrule Casale' s holding that the Board will not entertain a claim that majority status was lacking at the time of recognition where a construction-industry employer extends 9(a) recognition to a union and 6 months elapse without a petition.” ^[94] The Board asserted that the DC and Fourth Circuits, and some former Board Members, had expressed doubts regarding section 10(b)'s applicability to challenges to a construction-industry union's purported 9(a) status.^[95] The Board claimed that “the Casale Board failed to recognize that employees and rival unions will likely presume that a construction-industry employer and union entered an 8(f) collective-bargaining agreement . . . . Thus, it is highly unlikely that [employees and rival unions] will file a petition challenging the union's status within 6 months of recognition.” ^[96] The Board also stated that, “most significantly, [the Board finds that] Casale' s requirement that an election petition be filed within 6 months to challenge a purported 9(a) recognition in the construction industry improperly discounts the importance of protecting employee free choice . . . .” ^[97]

The practical effect of the Board's unanticipated overruling of Casale in the final rule—an action not mentioned, much less considered by the Board in the NPRM—was to require that a union and employer be prepared to prove evidence of the union's initial majority support—forever. Under the final rule, a challenge could be made to a construction employer's initial recognition of a union many years into the future at a time when it would be fundamentally unreasonable to expect the construction employer or the union to have maintained contemporaneous evidence of the union's majority support. Under the rule, there is no limit to the amount of time that may have passed since the initial recognition, but parties would be required to produce proof of the initial majority support in order for the Board to reject a challenge to even a longstanding employer-union 9(a) relationship.

D. Pending Litigation Challenging the 2020 Final Rule

On July 15, 2020, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the Baltimore-DC Metro Building and Construction Trades Council sued the NLRB (D.D.C. No. 20-cv-1909) (“AFL-CIO II”), alleging that the entirety of the April 2020 Rule was invalid because, among other things, it is arbitrary, capricious, an abuse of discretion, and in violation of the NLRA.

On August 11, 2020, the NLRB filed a motion to transfer AFL-CIO II to the United States Court of Appeals for the District of Columbia Circuit, arguing that the district court lacks subject matter jurisdiction. The AFL-CIO opposed the transfer. The NLRB previously advanced similar threshold jurisdictional arguments in AFL-CIO v. NLRB (“ AFL-CIO I”) (D.D.C. Case No. 20-cv-675 (KBJ)), which is currently pending decision by the D.C. Circuit (Case No. 20-5223), concerning changes to the Board's representation case procedures that the Board promulgated on December 18, 2019. On October 23, 2020, the district court in AFL-CIO II ordered a temporary stay pending resolution of the parties' cross-appeals of AFL-CIO I, where the same jurisdictional issue will be decided. On May 14, 2021, the D.C. Circuit held oral argument in AFL-CIO I. Once the D.C. Circuit issues its decision, the AFL-CIO II parties must file a joint status report within 14 days proposing a schedule for further proceedings. That litigation remains pending.

E. Rulemaking Petitions Seeking Rescission of the April 1, 2020 Rule

On November 16, 2021, the AFL-CIO and North America's Building Trades Unions (“NABTU”) filed a joint petition for rulemaking (“2021 petition”) requesting that the Board rescind each of the amendments made in the April 1, 2020 final rule. The 2021 petition urged the Board to: (1) rescind § 103.20, arguing that the Board violated the Administrative Procedure Act in two respects (by presenting erroneous data in the NPRM and failing to correct those errors in the final rule, and by adopting a final rule that was not a logical outgrowth of the proposed rule) and additionally arguing, as a policy matter, that the changes to the blocking charge policy were ill-conceived; (2) rescind § 103.21, alleging that the Board had violated the Administrative Procedure Act by failing to respond to the AFL-CIO's comment that the rule violated the Board's duty of neutrality with respect to employees' choice concerning union representation; and (3) rescind § 103.22, because the NPRM had not proposed overruling Casale and did not advise the public that it was contemplating overruling Casale and thus failed to provide the public with an opportunity to be heard on such a fundamental modification to collective-bargaining relationships in the construction industry.

On April 7, 2022, UNITE HERE International Union (“UNITE HERE”) filed a petition (“2022 petition”) for rulemaking specifically requesting the Board to rescind § 103.21. The 2022 petition expressed its support for the 2021 petition but listed additional policy arguments favoring a return to the Board's prior voluntary-recognition bar doctrine.^[98]

III. Statutory Authority

Section 6 of the NLRA, 29 U.S.C. 156, provides that “[t]he Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by subchapter II of chapter 5 of Title 5 [the Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this [Act].” ^[99] The Supreme Court unanimously held in American Hospital Association v. NLRB, 499 U.S. 606, 609-610 (1991), that the Act authorizes the Board to adopt both substantive and procedural rules governing representation case proceedings. The Board interprets section 6 as authorizing the proposed amendments to its existing rules.

IV. The Proposed Rule Amendments

A. Rescission of the April 1, 2020 Blocking Charge Amendments

As set forth above, the Board developed the blocking charge policy through adjudication more than eight decades ago. And, for the more than eight decades that the Board adhered to the policy, the blocking charge policy enabled the Board to fulfill one of its core obligations: to preserve laboratory conditions for ascertaining employee choice during Board-conducted elections. In addition, the policy advanced the interests of potential voters by shielding them from voting in an atmosphere tainted by coercion. Reviewing courts have approved the Board's historical blocking charge policy. See, e.g., Bishop v. NLRB, 502 F.2d 1024, 1028-1029, 1032 (5th Cir. 1974) (distinguishing Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (5th Cir. 1971), and Surratt v. NLRB, 463 F.2d 378 (5th Cir. 1972), as involving a “high degree of arbitrariness” in application of the blocking-charge policy). No court has ever held the policy invalid, despite occasional disagreements between the Board and the courts over the application of the policy in particular cases. For the reasons that follow, we are inclined to believe, subject to comments, that the pre-April 2020 blocking charge policy better balances the Board's interests in protecting employee free choice, preserving laboratory conditions in Board-conducted elections, and resolving questions concerning representation expeditiously.

Before explaining why we are inclined to believe, subject to comments, that the pre-April 2020 blocking charge policy better balances the Board's interests than the April 2020 final rule, we note that the rulemaking process that the Board followed in adopting the April 2020 rule was flawed in its treatment of Board election data. As discussed above and as the parties that filed the 2021 rulemaking petition also noted, 2021 Petition at 2-12, the NPRM contained flawed data that was never corrected in the final rule.

In adopting the final rule, the Board contended that any errors did not matter because the blocking charge policy by definition delays the conduct of elections, and its conclusion—that its amendments to the blocking charge policy better protect employees' statutory right of free choice on questions concerning representation—constituted a “policy choice . . . that . . . does not . . . depend on statistical analysis.” 85 FR 18366, 18377. We do not dispute that in rulemaking, the Board may be free to make a policy choice that does not primarily rely on either statistical data or particular facts about the operation of the prior rule.^[100] Nevertheless, we are concerned that the Board's failure to correct errors in the data presented in the NPRM might well have harmed the rulemaking process.^[101]

More importantly, turning to the merits of the April 2020 final rule, the Board is inclined to believe, subject to comments, that returning to the Board's pre-April 2020 blocking charge policy would best serve the policies of the Act. Permitting regional directors to generally decline to process an election petition at the request of a party who has filed a charge alleging conduct that would interfere with employee free choice or conduct that is inherently inconsistent with the petition (and who has simultaneously filed an adequate offer of proof and agreed to promptly make its witnesses available), until the merits of the charge can be determined, better protects employee free choice than the April 2020 amendments that require regional directors to conduct elections in all cases no matter how serious the unfair labor practice charges and no matter how powerful the indicia of their merit. Accordingly, we propose to amend the wording of 29 CFR 103.20 to conform to the wording of that section as it existed prior to the April 2020 final rule.^[102] In all other respects, the Board's prior applicable law regarding the blocking charge policy, which was developed through adjudication, would be restored.

Although we agree with the April 2020 Board that, under ordinary circumstances, the Board should conduct elections expeditiously, there can also be no denying—and the April 2020 Board did not deny—that the Board has regularly confronted cases involving unlawful conduct that either interferes with the ability of employees to make a free choice about union representation in an election or is inherently inconsistent with the petition itself. The Board is inclined to believe, subject to comments, that it would undermine employee rights, and would run counter to the Board's duty to conduct elections in circumstances in which employees may freely choose whether to be represented by a union, if the Board were to require regional directors to conduct, and employees to vote in, a coercive atmosphere. But, as the April 2020 Board acknowledged in adopting the final rule, the 2020 blocking charge amendments require the Board to do precisely that. In particular, the April 2020 Board acknowledged that the results of the elections must be set aside and rerun elections ordered when the Type I charges are found to have merit and to have impacted the election. The April 2020 Board further acknowledged that the ballots cast in cases involving certain types of Type II charges will either not be honored (if the ballots had been counted) or will “never be counted” (if they were impounded because a complaint, which issued within 60 days of the election, is found to have merit). Thus, it cannot be denied that under the April 2020 amendments, regional directors will be required to run—and employees, unions, and employers will be required to participate in—elections conducted under coercive conditions. 85 FR 18370, 18378-18380. Subject to comments, we are also inclined to believe that because the April 2020 final rule requires regional directors to run—and employees, unions, and employers to participate in—elections that will not resolve the question of representation because they were conducted under coercive circumstances, the proposed amendments run the risk of imposing unnecessary costs on the parties and the Board. Subject to comments, we are also inclined to believe that the Board's position in the April 2020 rulemaking—that nothing is more important under the Act and its policies than having employees vote without delay in every case (even though it means they will be required to vote in elections under coercive conditions)—cannot be squared with the Board's responsibility to provide laboratory conditions for ascertaining employee choice during Board-conducted elections. Put simply, we are inclined to disagree with the April 2020 Board's conclusion that it is inappropriate to delay an initial election to shield employees from having to vote under coercive circumstances.

Subject to comments, we also question the April 2020 Board's premise that its amendment requiring elections to be held in all cases involving requests to block is necessary to preserve employee free choice because the blocking charge policy deprives employees of free choice in those cases where petitions are blocked by nonmeritorious charges. While we recognize that blocking elections based on nonmeritorious charges may result in some delay, our preliminary position, subject to comments, is that the benefits of not allowing elections to proceed under the clouds of an unfair labor practice far outweigh any such delay. We are inclined to believe that the Board's blocking charge policy as it existed prior to the effective date of the April 2020 final rule best preserved employee free choice in representation cases in which petitions are blocked because of concurrent unfair labor practice charges. We note that because the historical blocking charge policy provided for the regional director to resume processing the representation petition to an election if a charge were ultimately determined to lack merit, employees in those cases would be afforded the opportunity to vote whether they wish to be represented, and thus employee free choice was preserved. However, unlike the April 2020 rule amendments, the Board's historical blocking charge policy also protects employee free choice in cases involving meritorious charges by suspending the processing of the election petition until the unfair labor practices are remedied. By shielding employees from having to vote under coercive conditions, the historical blocking charge policy would seem to be more compatible with the policies of the Act and the Board's responsibility to provide laboratory conditions for ascertaining employee choice during Board-conducted elections. In short, we are inclined to believe, subject to comments, that it is the 80-year-old blocking charge policy, not the April 2020 final rule amendments requiring elections in all cases involving requests to block, that best protects employee free choice in the election process. 84 FR 39945.^[103]

In proposing to return to the Board's historical blocking charge policy, we further note that the April 2020 Board pointed to nothing that had changed in the representation case arena during the eight decades that the blocking charge policy had been in existence that justified making their sea change in the law. Prior to the adoption of the April 2020 final rule, Congress had not amended the Act in such a way as to call the blocking charge policy into question. No court had invalidated the policy. To the contrary, the courts had recognized that the salutary reasons for the blocking charge policy “do not long elude comprehension,” and that the policy had “long-since [been] legitimized by experience.” Bishop v. NLRB, 502 F.2d 1024, 1028, 1032 (5th Cir. 1974).^[104] And, significantly, the Agency's regional directors—the officials who are charged with administering the policy in the first instance, and whose opinions were explicitly sought and received by the Board—had publicly endorsed the policy.^[105]

Subject to comments, we also question the reasons offered by the Board in adopting the April 2020 amendments and eliminating the historical blocking charge policy.

First, the April 2020 Board repeatedly emphasized the obvious: that the blocking charge policy causes delays in conducting elections. From this, the Board argued that the blocking charge policy impedes employee free choice. 85 FR 18366, 18367, 18372-18373, 18375-18380, 18393. However, as then-Member McFerran pointed out in her dissent to the proposed amendments, the Board's conclusion does not necessarily follow from its premise. 84 FR 39943. To the contrary, we are inclined to believe that the blocking charge policy better protects employee free choice notwithstanding the delay that the policy necessarily entails. As the Board has previously observed, “it is immaterial that elections may be delayed or prevented by blocking charges, because when charges have merit, elections should be [delayed or] prevented.” Levitz, 333 NLRB at 728 fn. 57 (emphasis in original). We thus are inclined to agree with the observation of the December 2014 Board, when it codified the decades-old blocking charge policy, that “[i]t advances no policy of the Act for the agency to conduct an election unless employees can vote without unlawful interference.” 79 FR 74429. If the circumstances surrounding an election interfere with employee free choice, then, contrary to the April 2020 final rule, it does not seem “efficient” to permit employees to cast ballots “speedily” because the ballots cast in such an election cannot be deemed to “accurately” reflect employees' true, undistorted desires. 85 FR 18367, 18380, 18393. That is why, as the April 2020 Board acknowledged, elections conducted under coercive circumstances under its amendments will not actually resolve the question of representation.^[106]

Second, the Board complained that there is a potential for incumbent unions to abuse the blocking charge policy by deliberately filing nonmeritorious unfair labor practice charges in the hopes of delaying decertification elections. 85 FR 18367, 18376, 18377, 18379-18380, 18393. But, as then-Member McFerran pointed out in her dissent to the proposed rule, the prior Board majority made no effort to determine how often decertification petitions are blocked by meritorious charges, as compared to nonmeritorious charges, or how much delay is attributable to nonmeritorious charges (which still may well have been filed in good faith, and not for purposes of obstruction). 84 FR 39943. Nor did the final rule. In short, there has been no showing that it was the norm for unions to file frivolous blocking charges to postpone elections in RD or RM cases. And, as noted, the NPRM dissent's analysis of the pre-Covid data would seem to undercut the April 2020 Board's unsupported concern, as it appears to show that an overwhelming majority of the decertification petitions and employer filed RM petitions are never blocked, and that even in the minority of instances when decertification petitions and RM petitions are blocked, most of these petitions are blocked by meritorious charges.^[107] Moreover, subject to comments, we are inclined to believe that the regulatory provisions adopted in 2014—requiring the party that seeks to block the election to (1) simultaneously file an offer of proof providing the names of its witnesses who will testify in support of the charge and a summary of each witness' anticipated testimony, and (2) promptly make the witnesses available to the regional director—constitute a disincentive to file frivolous charges and provide powerful tools to regional directors to promptly dispose of any frivolous charges that are filed. See Associated Builders and Contractors of Texas, Inc. v. NLRB, 826 F.3d 215, 228 (5th Cir. 2016) (citing amended § 103.20's offer of proof requirement and concluding that the Board “considered the delays caused by blocking charges, and modified current policy in accordance with those considerations.”).

Further, compared to the countless examples of cases where employers engage in coercive behavior—such as instigating decertification petitions, committing unfair labor practices that inevitably cause disaffection from incumbent unions, and engaging in unfair labor practices after a decertification petition is filed—in an effort to oust incumbent unions, or engage in coercive behavior to sway employee votes in the context of initial organizing campaigns, the final rule cited the same few isolated cases that the NPRM had cited to support the April 2020 Board's claim of judicial concern about the blocking charge policy's effect on employee free choice. 85 FR 18367,18376; 84 FR 39931-39932. Subject to comments, we are inclined to believe that those cases do not constitute persuasive authority for eliminating the blocking charge policy, for the same reasons the dissenting Board member articulated in her dissent to the NPRM.^[108]

Third, the April 2020 Board found fault with the blocking charge policy because it permits a mere discretionary “administrative determination” as to the merits of unfair labor practice charges to delay employees' ability to vote whether they wish to obtain, or retain, union representation. 85 FR 18367, 18377, 18393. Subject to comments, we are inclined to believe that that does not constitute a persuasive reason to retain the April 2020 amendments. As the dissent to the NPRM pointed out, the Board ignored that regional directors and the General Counsel make all sorts of administrative determinations that impact the ability of employees to obtain an election or to retain union representation. 84 FR 39944. For example, employees, unions, and employers are denied an election if the regional director makes an administrative determination that the petitioner lacks an adequate showing of interest. See 79 FR 74391, 74421 (the adequacy of the showing of interest is a matter for administrative determination and is nonlitigable). Regional directors may also deny employer and union requests for second elections based on an administrative determination that no misconduct occurred or that any misconduct that occurred did not interfere with employee free choice. See 79 FR 74412, 74416 (parties have no entitlement to a post-election hearing on election objections or determinative challenges, and regional directors have discretion to dispose of such matters administratively).^[109] Indeed, the Board's skepticism toward regional director administrative determinations in this context is in considerable tension with Congress' decision to authorize regional directors to administratively decide when elections should be conducted in the first place and when the results of elections should be certified in section 3(b) of the Act. See also 79 FR 74332-74334 (observing that Congress expressed confidence in the regional directors' abilities when it enacted section 3(b)).

Fourth, the April 2020 Board complained that employees who support decertification petitions are adversely affected by blocking charges because delay robs the petition effort of momentum and thereby threatens employee free choice. 85 FR 18367, 18393. We are inclined to believe, subject to comments, that this justification for the April 2020 amendments misapprehends the core statutory concerns underlying the blocking charge policy. As then-Member McFerran noted in her dissent to the NPRM, if a party has committed unremedied unfair labor practices that interfere with employee free choice, then elections in those contexts will not accurately reflect the employees' unimpeded desires and therefore should not be conducted. 84 FR 39944. Indeed, the momentum that the final rule seeks to preserve may be entirely illegitimate, as in cases where the employer unlawfully initiates the decertification petition, or the momentum may be infected by unlawful conduct, as in cases where after a decertification petition is filed, the employer promises to reward employees who vote against continued representation or threatens adverse consequences for employees who continue to support the incumbent union.^[110]

The April 2020 Board also criticized the blocking charge policy as creating “an anomalous situation” whereby conduct (if alleged in election objections) that cannot be found to interfere with employee free choice because it occurred pre-petition, see Ideal Electric, 134 NLRB 1275 (1961), can nevertheless be the basis for delaying or denying an election. 85 FR 18367, 18393. We question whether this constitutes a persuasive reason not to return to the blocking charge policy as it existed prior to the effective date of the April 2020 amendments. Ideal Electric does not preclude the Board from considering pre-petition misconduct as a basis for setting aside an election. As the Board has explained, “ Ideal Electric notwithstanding, the Board will consider prepetition conduct that is sufficiently serious to have affected the results of the election.” Harborside Healthcare, Inc., 343 NLRB 906, 912 fn. 21 (2004). Accord Madison Square Garden CT., LLC, 350 NLRB 117, 122 (2007). Further, as the April 2020 Board implicitly conceded, under its final rule, it is equally the case that ballots will “never be counted” in some cases based on serious pre-petition misconduct, such as where the employer instigates the petition and where a complaint issues within 60 days of the election. 85 FR 18378, 18380 (even if the ballots are counted under the April 2020 final rule because the complaint on the Type II charge issues more than 60 days after the election, the ballots will be thrown out if the Board ultimately decides that the charge has merit). Moreover, under the pre-April 2020 blocking charge policy, regional directors had discretion to reject blocking requests and proceed straight to an election when they concluded that, under the circumstances, employees would be able to exercise free choice notwithstanding a pending unfair labor practice charge (because, for example, the charge merely alleged minor and isolated pre-petition unfair labor practice conduct).^[111]

The April 2020 Board also justified its amendments to the blocking charge policy by claiming that regional directors had not been applying the blocking charge policy consistently. 85 FR 18367, 18379, 18393. However, after reviewing the final rule, we question whether that justification is persuasive. The final rule did not offer any specific evidence demonstrating any significant differences in how regions were actually applying the blocking charge policy as it existed at the time. Moreover, because the pre-April 2020 blocking charge policy entitled parties to file requests for Board review of regional director decisions to block elections based on either Type I or Type II charges, we believe that the Board had the ability to correct any erroneous blocking determinations made by regional directors. See 29 CFR 102.71 (2011); Casehandling Manual Sections 11730.7, 11733.2(b) (January 2017). Accordingly, we are inclined to believe that a return to the blocking charge policy as it existed prior to the effective date of the amendments would not create a widespread problem where petitions that would normally be blocked in some regions would normally be processed to election in other regions.

The April 2020 Board also faulted the blocking charge policy because a possible result of delaying elections is that employees who were in the workforce when the petition was filed might not be in the workforce when the election is ultimately held following disposition of the blocking charge, thereby disenfranchising those employees. 85 FR 18367, 18378, 18393. Subject to comments, we question whether this justification for eliminating the historical blocking charge policy is persuasive. Unless the Board were to conduct elections the day the election petition is filed, the possibility of employee turnover is unavoidable. Indeed, even in the absence of any unfair labor practice charges being filed prior to the election, those eligible to vote are not those employed in the unit at the time the petition is filed. Rather, the employees who are eligible to vote in the election are those employees who were employed during the payroll period for eligibility and who remain employed as of the election. In directed election cases, this means that only employees employed in the unit during the payroll period immediately preceding the date the decision and direction issues—and who remain employed as of the election—are eligible. Casehandling Manual Section 11312.1 (August 2007). In the stipulated election context, the payroll period for eligibility is normally the last payroll period ending before the regional director's approval of the agreement. Casehandling Manual Sections 11086.3, 11312.1 (August 2007).

Subject to comments, we are inclined to believe that it serves no valid purpose to conduct elections in which employees cannot exercise free choice, even though delaying the election until employees can vote in a noncoercive atmosphere might mean that some employees who were present at the time the petition was filed are no longer employed at the time a free and fair election is held. As for the subset of cases where the charges are nonmeritorious, we question whether it is “unjust” to bar employees from voting who were employed at the time of the petition filing, but who are no longer employed when the regional director resumes processing the petition. As noted, the same rule applies in cases where no unfair labor practice charges are ever filed. Thus, employees who were employed as of the filing of the petition, but who are no longer employed as of the time of the election, are not eligible to vote. Certainly, there is nothing in the blocking charge policy that compels any employee to leave their place of employment during the period when the petition is held in abeyance pending a determination of the merits of the charge. The April 2020 Board does not explain why employees who are no longer in the workforce should be given a say in determining whether current employees should be represented for purposes of collective bargaining with their employer.^[112]

We additionally note that the April 2020 amendments do not entirely eliminate the risk that employees who end up voting in a valid election ( i.e., an election whose results are certified) will not be those who were employed at the time of the petition filing. To repeat, the April 2020 final rule recognizes that the Board should set aside the initial election and, in certain circumstances, conduct a rerun election in cases where the charges are meritorious. And just as was the case prior to the April 2020 amendments, the eligibility period for rerun elections after that final rule is the payroll period preceding the date of issuance of the notice of rerun election, not the payroll period preceding the date of the original decision and direction of election (or approval of the stipulated election agreement), and certainly not the date of the petition filing. See Casehandling Manual Sections 11436, 11452.2 (August 2007); Casehandling Manual Sections 11436, 11452.2 (September 2020). Some risk of disenfranchisement is unavoidable in this context, but the risk of disenfranchisement caused by holding an election under nonlaboratory conditions may well outweigh that risk under the 2020 final rule.

The final rule also appeared to suggest that the blocking charge policy impeded settlement and that the policy should therefore be eliminated to promote settlement of blocking charges. 85 FR 18380. We confess that we are not entirely certain that we understand the Board's cryptic statements in this regard. To the extent that the April 2020 Board adopted the amendments because it believed they would promote settlement (by enabling the parties to know the results of the election during their settlement discussions), we question whether that belief is a reason to refrain from restoring the Board's historical blocking charge policy. The blocking charge policy advances core statutory interests—promoting employee free choice regarding whether to be represented by a labor organization for purposes of collective bargaining. We are inclined to believe that, even assuming for purposes of argument that the April 2020 final rule promotes settlement of charges, the worthy administrative goal of promoting settlement of unfair labor practice charges should not trump the fundamental statutory policy of protecting the right of employees to freely choose whether to be represented for purposes of collective bargaining by labor organizations.

In any event, we note that the April 2020 Board did not explain why parties would in fact be more likely to settle a charge under the April 2020 amendments (which provide for the holding of an election in all cases) than they would be to settle if the same charge were instead holding up an election and preventing employees from voting (under the pre-April 2020 blocking charge policy). And we question whether that is the case. Indeed, we suspect that the April 2020 Board thought that settled charges should not be deemed meritorious in part because it believed that at least some employers thought that it was worth settling blocking charges under the historical blocking charge regime that they otherwise would not have settled just so that their employees could vote “sooner” to possibly rid themselves of their representative in a decertification election. However, as noted, under the April 2020 amendments, employees will be permitted to vote even if the employer does not settle a pending charge against it before the election. Nor is it clear why the April 2020 final rule would encourage a union (that is seeking to delay its ouster) to settle its unfair labor practice charge after the election. As noted, under the April 2020 amendments, the certification of results is withheld until there is final disposition of the charge and its impact on the election by the Board. 85 FR 18370, 18377, 18399. In other words, under the April 2020 final rule, the outcome of the representation case still must await the outcome of the unfair labor practice case (even though an election has been held), the same result that obtained under the Board's historical blocking charge policy. And it takes the same amount of time to determine the merits of the charge whether that determination is made before an election is conducted (as under the Board's historical blocking charge policy) or whether that determination is made after the election (as is the case under the April 2020 amendments).

We also question the April 2020 Board's apparent view that once the results of the election are known, the unfair-labor-practice-charge-settlement discussions are simplified because the parties' strategic considerations related to the election are removed from consideration. 85 FR 18380. Thus, although under the April 2020 amendments, an election will be held in all cases, it seems that parties will still have to consider the representation case as part of their settlement negotiations regarding the unfair labor practice charge(s). Because, as the April 2020 Board noted (85 FR 18377), a “settled charge” cannot be deemed meritorious unless it has been admitted by the charged party, a settled charge cannot result in a rerun election (or dismissal of the petition) unless the charged party agrees to a rerun election as part of the settlement agreement or admits that it violated the Act as part of the settlement. Thus, the party seeking to set aside the election results will need to address the representation case as part of its settlement discussions regarding the unfair labor practice charge(s) it filed. (In other words, the charging party will want the charged party as part of the settlement to agree to a rerun election or to admit that it violated the Act.) Indeed, knowledge of the provisional election outcome may perversely incentivize cases not to settle where a party deems that vote tally so valuable to its interests that it makes it efficient to litigate a long-shot legal theory in the unfair labor practice case.

Finally, the final rule asserted that there is no reason to delay elections when charges allege conduct that would interfere with employee free choice because the Board can always conduct a rerun election if the charge is ultimately found meritorious (or issue an affirmative bargaining order in cases involving the limited subset of Type II charges). 85 FR 18378, 18380. Subject to comments, we are inclined to disagree. Indeed, we are inclined to believe that, by requiring the Board to conduct elections under coercive circumstances, the April 2020 amendments contravene the Board's responsibility to conduct free and fair elections and undermines the Act's policy of protecting employee free choice in the election process. We also are inclined to believe, subject to comments, that by forcing employees to go to elections that will not count, the April 2020 final rule additionally threatens to create a sense among the employees that attempting to exercise their section 7 rights is futile, while risking imposing unnecessary costs on the parties and the Board. Moreover, by requiring the Board to conduct elections that will have to be rerun, the April 2020 final rule would seem to threaten industrial peace.

Subject to comments, we are inclined to believe that the April 2020 amendments do not put the unit employees in the position that most closely approximates the position they would have been in had no party committed unfair labor practices interfering with employee free choice. Had no party committed unfair labor practices, employees would not be voting in an atmosphere of coercion. But employees seemingly have to vote in an atmosphere of coercion under the April 2020 amendments, because the April 2020 final rule requires regional directors to conduct elections in all cases where there are concurrent unfair labor practice charges and further requires the opening and counting of the ballots in the vast majority of such cases. Accordingly, when a rerun election is conducted after the charged party takes all the action required by the Board order or settlement agreement, the union will have to convince each employee who voted against it under coercive conditions to switch their vote, something the union normally would not have had to do under the blocking charge policy because the regional director would not have held an election until the unfair labor practice conduct was remedied. And, as the Board previously concluded in its 2014 rule, 79 FR 74418-74419, there is a substantial risk that the tainted election will compound the effects of the unfair labor practices, because employees who voted against union representation under the influence of the employer's coercion are unlikely to change their votes in the rerun election. See NLRB v. Savair Mfg. Co., 414 U.S. 270, 277-78 (1973). The union will also have to convince employees that it is worth voting for the union—and to risk incurring the wrath of their employer—even though employees will know that the union already lost the earlier election, something the union normally would not have had to do under the blocking charge policy because the regional director would not have held an election until the unfair labor practice was remedied.^[113] It certainly cannot be counted as a statutory success if a union chooses not to seek a rerun election after losing an election conducted under coercive conditions that interfered with employee free choice. Thus, we are inclined to believe, subject to comments, that it is the historical blocking charge policy, rather than the April 2020 amendments, that puts the unit employees in a position that more closely approximates what would have happened had no party committed unfair labor practices and best protects employee free choice.

We are also inclined to believe that the April 2020 final rule creates perverse incentives for employers to commit unfair labor practices. By requiring the Board to conduct elections in most cases where Type I or Type II unfair labor practice conduct has occurred, the final rule creates a perverse incentive for unscrupulous employers to commit unfair labor practices because the predictable results will be: (1) to force unions to expend resources in connection with elections that will not reflect the uninhibited desires of the employees; and (2) to create a sense among employees that seeking to exercise their section 7 rights is futile.^[114] This possibility may well induce unions to forego the Board's electoral machinery in favor of recognitional picketing and other forms of economic pressure, thereby exacerbating industrial strife and contravening the statutory policy favoring “eliminat[ing] the causes of certain substantial obstructions to the free flow of commerce.” 29 U.S.C. 151.

In sum, we are inclined to believe, subject to comments, that the Board's historical blocking charge policy better protects employee free choice than the April 2020 amendments. Accordingly, we propose to permit regional directors once again to generally decline to process election petitions at the request of a party who has filed an unfair labor charge alleging conduct that would interfere with employee free choice in an election or that is inherently inconsistent with the petition itself and which is supported by an offer of proof listing the names of the witnesses who will testify in support of the charge and a summary of each witness's anticipated testimony, until the merits of the charge can be determined.

B. Rescission of Rule Providing for Processing of Election Petitions Following Voluntary Recognition; Voluntary-Recognition Bar to Processing of Election Petitions

The Board, subject to comments on all aspects of the proposed rule, proposes to rescind the current § 103.21 of the Board's Rules and Regulations, providing for the processing of election petitions following voluntary recognition, and to replace it with a new rule that codifies the traditional voluntary-recognition bar as refined in Lamons Gasket Co., 357 NLRB 739 (2011), which the Board overruled in adopting § 103.21.^[115]

The proposed rule, like current § 103.21, is limited to the representation-case context. It does not subject an employer to unfair labor practice liability under section 8(a)(5) of the Act for withdrawing recognition from a voluntarily recognized union before a reasonable period for bargaining has elapsed. See, e.g., Brown & Connolly, Inc., 237 NLRB 271, 275 (1978), enfd. 593 F.2d 1373 (1st Cir. 1979). The Board invites public comment on whether it should adopt as part of the Board's Rules and Regulations a parallel rule to apply in the unfair labor practice context, prohibiting an employer—which otherwise would be privileged to withdraw recognition based on the union's loss of majority support—from withdrawing recognition from a voluntarily recognized union, before a reasonable period for collective bargaining has elapsed.

The Board's preliminary view is that restoring the voluntary-recognition bar, in its more traditional form, as well as the traditional contract bar in cases of voluntary recognition, better serves the policies of the National Labor Relations Act, respecting—indeed, vindicating—employee free choice, while encouraging collective bargaining and preserving stability in labor relations.^[116] Experience under § 103.21, meanwhile, seems to show that voluntary recognition almost always reflects employee free choice accurately. This was the experience under Dana as well. Thus, the Board is concerned that § 103.21 imposes requirements that burden collective bargaining without producing commensurate benefits in vindicating employee free choice of bargaining representatives. Such a disproportionate waste of party and Board resources cannot be justified by reference to Federal labor policy, which favors voluntary recognition.^[117]

We believe, subject to comments, that restoration of the voluntary-recognition bar as proposed in this document is fully consistent with the statutory language and would better effectuate the purpose and policies of the Act. Several Federal appellate courts have endorsed the voluntary-recognition bar, deferring to the Board's understanding of the Act and its application of the Act's policies.^[118] No court of appeals has rejected the voluntary-recognition bar. Neither the Dana Board nor the Board that promulgated § 103.21 argued that the traditional voluntary-recognition bar was irrational or inconsistent with the Act. Nor did the Board at either time argue that the election procedure established in Dana, and then reestablished in § 103.21, was somehow compelled by the Act.^[119] While the Board's approach to the voluntary-recognition bar has varied, the Board consistently has viewed the issue as presenting a policy choice for the Board to make, and this, of course, is how the Federal courts have seen it for decades. Similarly, applying contract-bar principles has long been recognized as promoting stability in the bargaining relationships between employers and unions.^[120]

In proposing to restore the traditional voluntary-recognition bar, subject to comments, we give weight to the rationale for the bar that the Board, with judicial approval, has advanced and adhered to in the past: that the new collective-bargaining relationship established through voluntary recognition—just like bargaining relationships established through other lawful means and protected by related Board bar doctrines—“must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,” in the Supreme Court's words,^[121] in order to promote the Act's goals of encouraging the practice and procedure of collective bargaining. We specifically invite comment on the reasonable period for bargaining defined in the proposed rule. In our initial view, the current rule tends to undermine (a) the stability vital for the parties to successfully negotiate a first contract, as the employer may question whether its negotiating partner may be out of the picture in a matter of weeks, and (b) the stability needed to fairly administer an executed collective-bargaining agreement without the shadow of a possible challenge to the union's status by making the contract bar contingent on the notice procedure.

In proposing to return to the voluntary-recognition bar that existed under the Board's Lamons Gasket decision, we note that the Board in Lamons Gasket provided, in accordance with its decision in Smith's Food & Drug Center, 320 NLRB 844 (1996), that “voluntary recognition of one union will not bar a petition by a competing union if the competing union was actively organizing the employees and had a 30-percent showing of interest at the time of recognition.” 357 NLRB at 745 fn. 22. Because of the importance of stability to newly-established collective-bargaining relationships, we invite public comment on whether the Board should continue to process, consistent with Smith's Food, a representation petition filed by a competing union that had a 30-percent showing of interest at the time of recognition or bar the processing of such a petition so as to not delay until after a Board election the employer's recognition of the employees' designation of their collective-bargaining representative.

We are further inclined to believe that § 103.21 rejects the premise that newly established bargaining relationships must be given a fair chance to succeed in the context of voluntary recognition. In the name of promoting employee free choice, the rule permits a union's representative status to be challenged by an election petition immediately after the union has been voluntarily recognized. Indeed, the rule arguably invites such a challenge, by requiring employers, as a precondition to receiving the benefit of the recognition and contract bars, to post a notice to employees informing them of their right to file an election petition with the Board. In no other context does the Board require that employees be given notice of their right to change their minds about a recent exercise of statutory rights.^[122] Section 103.21 suggests to employees that the Board considers their choice to be represented suspect and signals to employees that their choice should be reconsidered through the filing of a petition.^[123]

It does so absent any basis to conclude that the union was not, in fact, freely chosen by employees to represent them. To proceed to an election, employees opposed to the union need not allege, much less establish, that the union lacked lawful majority support at the time it was voluntarily recognized. Nor are employees required to present evidence demonstrating that a majority of bargaining-unit employees no longer support the recently recognized union. Rather, a showing that a minority of unit employees (as few as 30 percent) desire an election is enough. An election, in turn, is decided by a majority of voting employees, who may comprise a minority of unit employees. Subject to comments, the Board's preliminary view is that § 103.21 actually undermines employee free choice by failing to fully respect the lawful designation of the voluntary-recognized union by a majority of bargaining-unit employees.^[124]

To be sure, § 103.21 acknowledges that the employer still has a duty to bargain with the voluntarily recognized union. But collective bargaining during the 45-day window period for petitions established by § 103.21 will necessarily proceed (or not) under the cloud cast by the possibility of a challenge to the union's status, which (if successful) would vitiate any agreement reached. And if an election petition is filed, then bargaining will proceed under the same cloud until the election is held. In such a situation, it seems reasonable to conclude that instead of being “given ample time for carrying out its mandate on behalf of its members,” a union will be “under exigent pressure to produce hot-house results or be turned out”—a concern cited by the Supreme Court in upholding the Board's rule that the status of a newly-certified union may not be challenged for one year.^[125] That concern would seem to apply with equal force in the context of voluntary recognition, as the Federal courts have recognized.^[126] The Board's tentative view—in agreement with the Lamons Gasket Board, but subject to comments—is that § 103.21 thus has a significant potential to interfere with effective collective bargaining.^[127] Insofar as § 103.21 might be premised on the view that voluntary recognition based on union-authorization cards is inherently suspect, it would be in obvious tension with the provisions of the Act reflecting Congress's determination that a lawful—and, indeed, statutorily enforceable—collective-bargaining relationship may be established without a Board election.^[128] Indeed, in holding that the Board, under certain circumstances, may compel an employer to recognize and bargain with a union whose majority support was demonstrated by authorization cards, the Supreme Court has flatly rejected arguments that union-authorization cards cannot reliably reflect employee free choice—and has noted a “union's right to rely on cards as a freely interchangeable substitute for elections where there has been no election interference.” ^[129]

Finally, this proposal to return to the traditional voluntary-recognition bar, as refined in Lamons Gasket, is consistent with the Board's preliminary view of the experience to date under § 103.21. That experience provides no evidence that voluntary recognition is suspect (as discussed above) and thus there is nothing to outweigh the reasonable tendency of the current rule to undermine employee free choice (as reflected in the lawful designation of the voluntarily recognized union) and to interfere with effective collective bargaining. Rejecting the Dana election procedure, the Lamons Gasket Board pointed to the tiny fraction of cases in which, following voluntary recognition of a union, employees ultimately rejected the union in a Board election. According to the Board in Lamons Gasket, the data showed that the “proof of majority support that underlay the voluntary recognition [of unions] during the [ Dana period] was a highly reliable measure of employee sentiment,” contrary to the assumption of the Dana Board.^[130] Insofar as § 103.21 might be premised on any empirical showing of the rate at which employees reject the union following the posting of the notice prescribed in the current rule, it, too, would seem to lack substantial empirical support.

But in restoring the Dana election procedure by adopting § 103.21, the Board did not clearly endorse or reject the premise on which the procedure was originally based. The Board's position arguably was grounded not in administrative experience, but rather in a particular interpretation of the Act, independent of that experience—and so not falsifiable by empirical evidence.^[131] Subject to comments, we doubt that the Act's provision for Board elections as one means (but not the exclusive means) for determining employee free choice, coupled with the implicit statutory preference for Board elections (insofar as certain benefits are conferred only on certified unions), were enough to justify restoring the Dana procedure, given substantial evidence that permitting an election soon after voluntary recognition almost never results in employees making a different choice. Indeed, in adopting § 103.21, the Board acknowledged that “data from the post- Dana period indicates that recognized unions will not often have to jump through the procedural `hoop' of an election, and those that do will far more often emerge with a reaffirmation of their majority support . . . .” ^[132] Put differently, the evidence seems strongly to suggest that the Dana procedure is an empty exercise at best, and one which imposes pointless burdens on parties and the Board—or at least that it is not something that would justify the current rule's departure from policies favoring voluntary recognition and encouraging stability in such bargaining relationships. We invite commenters to submit additional empirical evidence to inform our views on this subject.

As noted earlier, the experience under § 103.21 has been entirely consistent with the experience under Dana. To date, the current rule has resulted in scant instances of employees actually filing a petition and almost no instances of employees rejecting the voluntarily recognized union. Thus, only 0.4 percent of cases (1 out of 260 included cases) resulted in a petition being filed, and 0.4 percent resulted in a union's loss of representative status. Both data sets show that the number of instances in which the notices have resulted in the filing of a petition or holding an election is vanishingly small—and the cases where the voluntarily recognized union was displaced to be almost nothing. It seems illuminating that the post-§ 103.21 data show no significant change from the post- Dana data, suggesting that the low rate of election-petition filing and employee rejection of the voluntarily recognized union is consistent over time. Our preliminary view, accordingly, is that just as the Board's administrative experience under the Dana election procedure refuted the rationale offered in Dana (as the Lamons Gasket Board explained), so, too, does the experience under § 103.21 demonstrate that there was no reason to doubt that voluntarily recognized unions actually enjoy majority support.

In proposing and adopting § 103.21, however, the Board viewed the empirical evidence examined in Lamons Gasket very differently. In the notice of proposed rulemaking for § 103.21, the Board found that the post- Dana “election statistics . . . support, rather than detract from, the need for a notice and brief open period following voluntary recognition.” ^[133] The Board reiterated this surprising conclusion in the preamble to the final rule and delineated reasons why it deemed the data with respect to elections actually conducted under Dana to support § 103.21.

[T]he [post- Dana] statistics showed that (1) Dana served the intended purpose of assuring employee free choice in those cases where the choice made in the preferred Board electoral process contradicted the showing on which voluntary recognition was granted; (2) in those cases where the recognized union's majority status was affirmed in a Dana election, the union gained the additional benefits of [s]ection 9(a) certification, including a 1-year bar to further electoral challenge, (3) there was no substantial evidence that Dana had any discernible impact on the number of union voluntary-recognition campaigns, or on the success rate of such campaigns, and (4) there was no substantial evidence that Dana had any discernible impact on the negotiation of bargaining agreements during the open period or on the rate at which agreements were reached after voluntary recognition.

85 FR 18368.^[134]

Preliminarily, we see nothing in the data that would support, let alone compel, discarding long-standing policies that support voluntary recognition in favor of the current rule. As to the first assertion, subject to comments, we are inclined to agree with the Lamons Gasket Board that an election loss by the recognized union does not affirmatively suggest that at the time it was recognized, the union lacked majority support. The election, rather, would seem just as likely, if not more so, to be a referendum on the union's accomplishments in bargaining during the brief period after recognition and the result, a consequence, too, of the pre-election campaign. Other post-recognition factors, such as employee turnover or simply a change of employee sentiment, might also be at play. The Board's bar doctrines involving new collective-bargaining relationships, of course, are based on the premise that unions should not be subjected to challenge before a reasonable period for bargaining has elapsed. Section 103.21, in contrast, does not contemplate such a period. On our preliminary view, then, even in the tiny fraction of total voluntary-recognition cases where a recognized union ultimately was ousted, the result says nothing about employee free choice as reflected in the union's original designation by a majority of bargaining-unit employees.

The relevance of the Board's second assertion—pointing out that when unions prevailed in a Dana election, they consequently gained the benefits of a Board certification—is not clear. The suggestion apparently is that the burden imposed on the union in requiring it to defend its status is mitigated or even outweighed. But unions and the employees who support them have always been free to choose to seek a Board election and the benefits of certification. When they seek and gain voluntary recognition from the employer instead—as the Act indisputably permits them to do—the Board presumably should respect that lawful expression of free choice.

The Board also suggested that, notwithstanding the low percentage of cases in which the recognized union was ousted after a Dana notice was requested, employees should still be given the option of an election (and informed of that right) because the data still leave substantial ambiguity regarding the validity of voluntary recognition based on majority support.^[135] However, this claim—essentially that every instance of voluntary recognition remains open to doubt concerning employees' true sentiments, even after notice-requests have been made, unless an election occurs—cannot be squared with the notices in Dana and § 103.21 itself. The rule's necessary premise, like that of Dana, is that voluntary recognition is not presumptively invalid, and that the notice—by giving employees an option for an election which they may choose or not choose to exercise—merely provides additional assurances before further challenges to the union's status are (temporarily) foreclosed. But, as the language of the § 103.21 and Dana notices indicate, by not filing a petition, employees effectively have chosen to reaffirm their original choice to be represented by the union.^[136] In any event, any ambiguity that might exist cannot be said to support the current rule, as the data offer no affirmative suggestion that voluntary recognition is suspect as a means of ascertaining employee choice.

Finally, for essentially the same reasons, we question the degree to which the Board focused on the very few cases where an election was held and the union was ousted. The Board observed that “the fact that only a small percentage of all Dana notices resulted in ending continued representation by the voluntarily recognized union does not mean that the post-recognition open period procedure was unnecessary and should not be restored,” because in “1 out of every 4 Dana elections a majority of employees voted to reject continued representation by a voluntarily recognized union.” ^[137] Again, our preliminary view is that the Board was fundamentally mistaken in suggesting that employees' choice not to seek an election after voluntary recognition is of little or no consequence. As stated previously, the notice in Dana and that prescribed by § 103.21 make clear that if employees do not seek a Board election, then they have assented to the validity of the voluntary recognition. We question, then, whether it is reasonable to discount cases where employees have declined to seek an election.

In sum, for the reasons offered here, the Board proposes to adopt a rule that effectively rescinds current § 103.21 of the Board's Rules and Regulations and to replace the existing rule with a new rule that codifies the Board's traditional voluntary-recognition bar, as refined and articulated in the Lamons Gasket decision. The Board again invites public comment on any and all of the issues and matters specifically identified here, as well as on any other issues or matters relevant to the proposed rule.

C. Rescission of § 103.22 of the Board's Rules and Regulations

The Board proposes, subject to comments, to rescind § 103.22 of the Board's Rules and Regulations promulgated on April 1, 2020. Once rescinded, the previously effective case-law precedent would govern section 9(a) recognition in the construction industry, such as Staunton Fuel, Casale, and other cases pertaining to the application of the voluntary-recognition and contract bars in the construction industry.

The Board believes that this change is required because § 103.22 is premised on overruling Casale and revoking the limitations period for challenging voluntary recognition in the construction industry, which was not mentioned anywhere in the NPRM as being under consideration by the Board. Without having provided the required notice, stakeholders and members of the public had no reason to submit comments on this critical issue, which may have affected the Board's decision to ultimately enact § 103.22.^[138]

In the absence of prior public comments on this critical issue, we are concerned that the overruling of Casale pursuant to § 103.22 may create an onerous and unreasonable recordkeeping requirement on construction employers and unions.^[139] Where a construction employer chooses to voluntarily recognize a union as the majority representative of its employees, the overruling of Casale requires the parties to retain and preserve—indefinitely—extrinsic evidence of a union's showing of majority support at the time when recognition was initially granted.^[140] If, at some point years into the future, a party seeks to challenge the union's continued presumption of majority support by filing a representation petition during the duration of a collective-bargaining agreement, in light of the overruling of Casale pursuant to § 103.22, the parties will lose the benefit of the Board's longstanding contract-bar rules unless they can successfully show that they continued to retain and preserve that initial showing of majority support.

Notably, pursuant to § 103.22, this burden is borne only by construction employers and unions—a situation that the Board foreswore in John Deklewa & Sons when it took the practical but moderate step of requiring construction employers and unions to specify the 9(a) basis for the recognition in written contracts. Nonetheless, as the Board there observed, a construction employer's voluntary recognition of a union based on a showing of majority support among employees was not to be treated less favorably than if granted by a nonconstruction employer, including barring challenges to the validity of the union's initial recognition after more than 6 months had elapsed.^[141]

The current Board is inclined to believe that its contract-bar rules are too critical for promoting stability in labor relations—particularly in the construction industry—to allow them to be subject to needless gamesmanship if a construction employer and union unintentionally fail to adhere to this uniquely burdensome and perpetual recordkeeping requirement. Aware of the Board's contract bar, parties enter into collective-bargaining agreements pursuant to section 9(a) with the expectation that doing so will provide finality as to employees' terms and conditions of employment for a defined time period.^[142] This stability is an important benefit of collective-bargaining for employers, unions, and employees alike.^[143] However, in light of the overruling of Casale pursuant to § 103.22, even successor collective-bargaining agreements are not protected from challenge by the contract bar because a party could still contest a construction employer's initial 9(a) recognition of the union.

The Board is inclined to believe that the overruling of Casale pursuant to § 103.22 unjustifiably injects uncertainty and unpredictability into construction-industry labor relations. It makes construction-industry collective-bargaining agreements subject to challenge at any time. Paradoxically, and perversely, it makes the longest lasting collective-bargaining relationships the least stable. The parties' extrinsic evidence of the union's contemporaneous showing of majority support is more likely to become lost or forgotten as more years have elapsed. Collective-bargaining relationships in the construction industry can last for decades. It could be 20 years after an initial grant of voluntary recognition that a petition is filed at a time when the parties' agreement—but for § 103.22—would have barred it from being processed.^[144] Relationships ideally characterized by stability are instead plagued by continued uncertainty over whether the parties' relationship will be challenged in the future—potentially for decades.

The Board also is inclined to believe that the problems with overruling Casale pursuant to § 103.22 are compounded by requiring parties to litigate what may be very old evidence of the union's initial 9(a) recognition in a representation proceeding—a forum that is not designed for that task. If a party challenges the validity or authenticity of the extrinsic evidence, especially because it may be any number of years old, this will have to occur at the preelection representation hearing. In contrast to an unfair labor practice proceeding, the representation hearing is nonadversarial and does not offer the evidentiary and procedural safeguards that should exist for reviewing that type of evidence, such as applying evidentiary rules or making credibility determinations.^[145] Importantly, even if the parties had retained and preserved contemporaneous evidence of the union's initial majority status, it is only going to be so probative of whether the union in fact had majority support. It is not uncommon for parties to dispute the validity of a signed authorization card. The overruling of Casale could mean that the Board may have to assess the authenticity of cards that could be any number of years old where signers—especially in the construction-industry where employee turnover is known to be frequent—have long ago left the workplace.^[146] As the Supreme Court recognized in Bryan Manufacturing, it is imprudent to permit parties to litigate a union's initial recognition outside of the 10(b) period—whether in a preelection representation proceeding or in an unfair labor practice hearing—“after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused.” ^[147]

The Board is also inclined to believe that the procedures in place prior to the overruling of Casale pursuant to § 103.22 appropriately granted regional directors discretion to determine whether the evidence adequately showed where the union had been properly granted 9(a) recognition.^[148] This is particularly true in the context of a representation case where regional directors could determine whether the union had actually obtained 9(a) status so that a collective-bargaining agreement between the parties would serve as a contract bar to the processing of a petition.^[149] Of course, even if the regional director were to find that a contract bar existed, a party is not foreclosed from challenging the union's continued presumption of majority support forever. The absolute longest a party would have to wait before filing a representation petition under the Board's contract-bar rules would be 3 years.^[150] But in the absence of Casale, and without the evidence of the union's contemporaneous majority support, a collective-bargaining agreement and the union's very recognition could be challenged at any time. It could even be challenged when the processing of a representation petition would entrench employee coercion instead of ameliorating it. If a construction employer and union attempt to masquerade an 8(f) relationship as a lawful 9(a) recognition, § 103.22 attempts to rectify that unlawful 8(a)(2) and 8(b)(1)(A) conduct through a representation petition. But that is not the right medicine for the ailment. Under the Board's statutory framework, unlawful conduct is to be remedied through unfair labor practice proceedings with the attendant evidentiary and procedural safeguards. Moreover, a construction employer found to have violated the law will be ordered to cease and desist from recognizing the union as its employees' collective-bargaining representative and from giving effect to any agreement. An election may thus be a poor method for accurately gauging employee support when it occurs while employees are being unlawfully represented by a purported 9(a) bargaining representative.

Moreover, a filed petition may even have nothing to do with employee free choice. A construction employer that had voluntarily entered into a contract with a union could, at any time during the life of that contract, decide that it does not like the terms that it had agreed to or the collective-bargaining relationship altogether and file an RM petition, hoping to defeat the Board's standard contract bar merely because the union failed to retain and preserve indefinitely the extrinsic evidence from its initial 9(a) recognition.

In overruling Casale pursuant to § 103.22, the 2020 Board perplexingly speculated that this was necessary because parties would presume that a construction employer and union only entered into an 8(f) agreement and, therefore, would not know to file a petition within the first 6 months to challenge a union's 9(a) recognition.^[151] This Board is inclined to disagree. Although the Board in John Deklewa & Sons adopted a rebuttable presumption that a collective-bargaining relationship in the construction industry was established under section 8(f), the Board also explicitly recognized that a union representing construction employees could obtain 9(a) status. Employees and rival unions who wish to challenge an incumbent union during the duration of a contract must know whether the construction employer has recognized the union as the 9(a) representative. And indeed, this is exactly why the unambiguous 9(a) recognition language in the parties' agreement is so important.

Under the law that existed prior to § 103.22, the parties' contract language had to unequivocally state that the construction employer granted the union 9(a) recognition so there could be no doubt if a party wanted to challenge its lawfulness. An employee will know immediately upon cursory review of the contract—after all, the 9(a) recognition must be stated using unequivocal language—whether the employer has recognized the union as the majority section 9(a) representative. In the same way that the collective-bargaining agreement grants the employees certain rights that they may want to know about, it also imposes obligations. One of those obligations under Casale is that, if the agreement unequivocally states that the union has 9(a) status, 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 6 months. The Casale Board understood this to be necessary so that unions representing employees in the construction industry are not treated less favorably than nonconstruction unions. But the Casale Board, like the Supreme Court in Bryan Manufacturing, also recognized the need for a defined limitations period because the evidence as to whether the union had majority status at the time of the initial recognition becomes increasingly unreliable as more time passes.^[152]

The Board is inclined to believe that § 103.22 should be rescinded in toto. In promulgating § 103.22, the Board clearly recognized—albeit after the issuance of its NPRM—that it had to overrule Casale. In the preamble to § 103.22, the Board acknowledged that § 103.22 is inconsistent with Casale. We presume that the Board would not have enacted § 103.22 without also overruling Casale. The Board stated in the preamble that “most significant[ ]” to its reason for enacting § 103.22 is that requiring an election petition to be filed within 6 months from the initial recognition discounts the importance of employee free choice. In reaching that conclusion, however, the Board did not solicit comments from stakeholders and the public about the effects of overruling Casale because the Board did not propose such a monumental modification in its NPRM. The Board failed to give stakeholders and the public the opportunity to comment on—and for the Board to consider—the deleterious and destabilizing impact on collective-bargaining relationships in the construction industry by potentially allowing collective-bargaining agreements to be challenged at any time.

Furthermore, the Board is inclined to believe that the unique nature of section 8(f) and the highly fact-specific circumstances under which parties in the construction industry seek to establish a 9(a) relationship make adjudication—rather than rulemaking—a better method for developing and, when necessary, reconsidering on a case-by-case basis the rules that govern how parties in the construction industry demonstrate a union's 9(a) status. The Board welcomes comments on the suitability of adjudication versus rulemaking in this area.

Accordingly, the Board is inclined to believe, subject to comments, that the overruling of Casale and the adoption of § 103.22 does not further the policies and purposes of the Act and should be rescinded.

V. Conclusion

Our dissenting colleagues were part of the Board that issued the April 2020 final rule at a time when the Board consisted of a three-member quorum without any dissenting views.^[153] Our dissenting colleagues express many of the same criticisms of the Board's prior blocking-charge policy, voluntary-recognition bar doctrine, and standards for determining whether construction-industry bargaining relationships are governed by section 8(f) or 9(a) that they expressed in the 2020 final rule. We have expressed our preliminary view that the Act's purposes of promoting stable collective bargaining and employee free choice in Board elections are better served by the Board's traditional standards than by the approaches taken in the 2020 final rule.

The Board welcomes public comment on all aspects of its proposed rule. We look forward to receiving and reviewing the public's comments and, afterward, considering these issues afresh with the good-faith participation of all members of the Board.

VI. Dissenting View of Members Kaplan and Ring

Two-and-a-half years ago, the Board issued a final rule (“the 2020 Rule”) that made three well-advised changes to our rules and regulations.^[154] As discussed in greater detail below, the amendments modified the Board's blocking-charge policy to eliminate the primary cause of delay in the conduct of representation elections; overruled Lamons Gasket  ^[155] and reinstated the framework the Board adopted in Dana Corp.^[156] to afford employees an opportunity to file a petition for a secret-ballot election ^[157] following their employer's voluntary recognition of a labor organization; and specified the proof of majority support necessary to demonstrate that a bargaining relationship in the construction industry, presumed to have been established under section 8(f) of the Act, has instead been established through voluntary recognition under section 9(a) of the Act.^[158] The 2020 Rule, known as the “Election Protection Rule,” was designed to “better protect employees' statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a Board-conducted secret-ballot election.” 85 FR 18366. In our considered judgment, the 2020 Rule has been a hard-won success. As with the final rule on joint-employer status under the Act, achieving this success required the expenditure of considerable Agency resources to thoroughly consider, analyze, and respond to numerous public comments.

Today, however, with their Notice of Proposed Rulemaking (“NPRM”), the majority sets in motion a project to do it all over again with the express aim of reversing all the progress made just two years ago. Our colleagues point to no changed circumstances as justification for the about-face. To the contrary, this NPRM is simply the product of a new Board majority's disagreement with the 2020 Rule, which they propose to rescind not because they must, but because they can. One unfortunate consequence of this change is needless policy oscillation that tends to upset the settled expectations of the Agency's stakeholders. Worse, the rule our colleagues propose would be clearly inferior to the 2020 Rule, inasmuch as the proposed rule would undermine the very policy of employee free choice on which the 2020 Rule is predicated. Claiming themselves to be the true advocates of employee free choice, our colleagues would reverse all the employee free choice protections embodied in the 2020 Rule. We cannot countenance the majority's unjustified policy reversals and therefore must respectfully dissent. After supplying some general background on Board representation law, we discuss and respond to each of these policy reversals in turn.

A. General Background

Section 9(c) of the Act provides that the Board “shall direct an election by secret ballot” if the Board finds that a question of representation exists. The Supreme Court has repeatedly recognized that Congress granted the Board wide discretion under the Act to ensure that employees are able freely and fairly to choose whether to be represented by a labor organization and, if so, which one. E.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969). The Court has observed that “[t]he control of the election proceedings, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.” NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940). Importantly, in NLRB v. A.J. Tower Co., the Court stated that “the Board must act so as to give effect to the principle of majority rule set forth in [section] 9(a), a rule that `is sanctioned by our governmental practices, by business procedure, and by the whole philosophy of democratic institutions.' ” 329 U.S. 324, 331 (1946) (quoting S. Rep. No. 74-573, at 13). “It is within this democratic framework,” the Court continued, “that the Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.” Id.

Representation-case procedures are set forth in the Act and in the Board's regulations and caselaw. In addition, the Board's General Counsel maintains a non-binding Casehandling Manual describing representation-case procedures in detail.^[159] The Act itself contains only one express limitation on the timing of otherwise valid election petitions. Section 9(c)(3) provides that “[n]o election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.” The Board instituted through adjudication a parallel limitation precluding, with limited exceptions, an electoral challenge to a union's representative status for one year from the date the union is certified following its selection by a majority of employees in an appropriate bargaining unit in a valid Board election. The Supreme Court approved this certification-year bar in Brooks v. NLRB, 348 U.S. 96 (1954). Through adjudication, the Board also created several additional discretionary bars to the timely processing of a properly supported election petition, including the “blocking charges” bar, the voluntary-recognition bar, and the contract bar. Concerned that these additional election bars were unreasonably interfering with employees' statutorily protected rights, the Board refined each one in the 2020 Rule. As further discussed below, the proposed rule imprudently seeks to reverse each of these refinements, at the expense of employee free choice.^[160]

B. Discussion

1. The Blocking-Charge Policy

For decades, the Board's blocking-charge policy was exploited to frustrate the timely exercise by employees of their right to vote—most often, when they sought to vote whether to decertify their incumbent bargaining representative in a secret-ballot election. The policy enabled this by permitting unions to block the processing of a pending decertification petition by filing an unfair labor practice charge, regardless of whether the charge was meritorious. The 2020 Rule modified the blocking-charge policy to facilitate the timely exercise of employees' electoral rights, while at the same time ensuring that no election results can or will be certified where unfair labor practices have interfered with the free exercise of those rights. Today, the majority proposes undoing these changes and resurrecting the pre-2020 Rule blocking-charge policy. While unions will be pleased, employees who have become dissatisfied with their incumbent representative predictably will not—and it is employees to whom the Act gives rights.

a. Background

The blocking-charge policy dates from shortly after the Act went into effect. See United States Coal & Coke Co., 3 NLRB 398 (1937). A product of adjudication,^[161] the policy permits a party—almost invariably a union and most often in response to an RD petition—to block an election indefinitely by filing unfair labor practice charges that allegedly create doubt as to the validity of the election petition or the ability of employees to make a free and fair choice concerning representation while the charges remain unresolved. Under this policy, petitioned-for elections can be blocked for months, or even years—and the election may never be held at all. See, e.g., Cablevision Systems Corp., 367 NLRB No. 59 (2018) (blocking charge followed by regional director's misapplication of settlement-bar doctrine delayed processing until December 19, 2018, of valid RD petition filed on October 16, 2014; employee petitioner thereafter withdrew petition).

The adverse impact on employee RD (and employer RM) petitions resulting from the Board's blocking-charge policy, and the potential for abuse and manipulation of that policy by incumbent unions seeking to avoid a challenge to their representative status, have drawn criticism from numerous courts of appeals. See NLRB v. Hart Beverage Co., 445 F.2d 415, 420 (8th Cir. 1971) (“[I]t appears clearly inferable to us that one of the purposes of the [u]nion in filing the unfair practices charge was to abort [r]espondent's petition for an election, if indeed, that was not its only purpose.”); Templeton v. Dixie Color Printing Co., 444 F.2d 1064, 1069 (5th Cir. 1971) (“The short of the matter is that the Board has refused to take any notice of the petition filed by appellees and by interposing an arbitrary blocking[-]charge practice, applicable generally to employers, has held it in abeyance for over 3 years. As a consequence, the appellees have been deprived during all this time of their statutory right to a representative `of their own choosing' to bargain collectively for them, 29 U.S.C. 157, despite the fact that the employees have not been charged with any wrongdoing. Such practice and result are intolerable under the Act and cannot be countenanced.”); NLRB v. Midtown Service Co., 425 F.2d 665, 672 (2d Cir. 1970) (“If . . . the charges were filed by the union, adherence to the [blocking-charge] policy in the present case would permit the union, as the beneficiary of the [e]mployer's misconduct, merely by filing charges to achieve an indefinite stalemate designed to perpetuate the union in power. If, on the other hand, the charges were filed by others claiming improper conduct on the part of the [e]mployer, we believe that the risk of another election (which might be required if the union prevailed but the charges against the [e]mployer were later upheld) is preferable to a three-year delay.”); NLRB v. Minute Maid Corp., 283 F.2d 705, 710 (5th Cir. 1960) (“Nor is the Board relieved of its duty to consider and act upon an application for decertification for the sole reason that an unproved charge of an unfair practice has been made against the employer. To hold otherwise would put the union in a position where it could effectively thwart the statutory provisions permitting a decertification when a majority is no longer represented.”); Pacemaker Corp v. NLRB, 260 F.2d 880, 882 (7th Cir. 1958) (“The practice adopted by the Board is subject to abuse as is shown in the instant case. After due notice both parties proceeded with the representation hearing. Possibly for some reasons of strategy near the close of the hearing, the [u]nion asked for an adjournment. Thereafter it filed a second amended charge of unfair labor practice. By such strategy the [u]nion was able to and did stall and postpone indefinitely the representation hearing.”).

The potential for delay is the same when employees, instead of filing an RD petition, have expressed to their employer a desire to decertify an incumbent union representative. In that circumstance, the blocking-charge policy can prevent the employer from obtaining a timely Board-conducted election to resolve the question concerning representation raised by evidence that creates good-faith uncertainty as to the union's continuing majority support. Accordingly, the supposed “safe harbor” of filing an RM election petition that the Board majority referenced in Levitz Furniture Co. of the Pacific, 333 NLRB 717, 726 (2001), as an alternative to the option of withdrawing recognition (which the employer selects at its peril) is often illusory. As Judge Henderson stated in her concurring opinion in Scomas of Sausalito, LLC v. NLRB, it is no “cure-all” for an employer with a good-faith doubt about a union's majority status to simply seek an election because “[a] union can and often does file a ULP charge—a `blocking charge'—`to forestall or delay the election.' ” 849 F.3d 1147, 1159 (D.C. Cir. 2017) (quoting from Member Hurtgen's concurring opinion in Levitz, 333 NLRB at 732).

Additionally, concerns have been raised about the Board's regional directors applying the blocking-charge policy inconsistently, thereby creating uncertainty and confusion about when, if ever, parties can expect an election to occur. See Zev J. Eigen & Sandro Garofalo, Less Is More: A Case for Structural Reform of the National Labor Relations Board, 98 Minn. L. Rev. 1879, 1896-1897 (2014) (“Regional directors have wide discretion in allowing elections to be blocked, and this sometimes results in the delay of an election for months and in some cases for years—especially when the union resorts to the tactic of filing consecutive unmeritorious charges over a long period of time. This is contrary to the central policy of the Act, which is to allow employees to freely choose their bargaining representative, or to choose not to be represented at all.”).

In 2014, the Board engaged in a broad notice-and-comment rulemaking review of the then-current rules governing the representation-election process. Many, if not most, of the changes that were proposed in the February 6, 2014 notice of proposed rulemaking ^[162] were focused on shortening the time between the filing of a union's RC election petition and the date of the election. The final Election Rule, which adopted 25 of the proposed changes, issued on December 15, 2014, and went into effect the following April. 79 FR 74308 (2014).

Of particular relevance here, the 2014 NPRM included a “Request for Comment Regarding Blocking Charges.” The Board did not propose changing the then-current blocking-charge policy, but it invited public comment on whether any of nine possible changes should be made, either as part of a final rule or through means other than amendment of the Board's rules.^[163] Extensive commentary was received both in favor of retaining the existing policy and of revising or abandoning it. The final Election Rule, however, made only minimal revisions in this respect. The 2014 Board majority incorporated, in new § 103.20 of the Board's Rules and Regulations, provisions requiring that a party requesting the blocking of an election based on an unfair labor practice charge make a simultaneous offer of proof, provide a witness list, and promptly make those witnesses available to the regional director. These revisions were viewed as facilitating the General Counsel's existing practice of conducting expedited investigations in blocking-charge cases. The 2014 majority declined to make any other changes in the existing policy, expressing the view that the policy was critical to protecting employees' exercise of free choice,^[164] and asserting that “[i]t advances no policy of the Act for the agency to conduct an election unless employees can vote without unlawful interference.” ^[165] By contrast, dissenting Board Members Miscimarra and Johnson criticized the 2014 majority's failure to make more significant revisions to the blocking-charge policy, contrasting the majority's concern with the impact on employee free choice of election delays in initial-representation RC elections with a perceived willingness to accept prolonged delay in blocking-charge cases, which predominantly involve RD or RM petitions challenging an incumbent union's continuing representative status.

A 2015 review of the final Election Rule by Professor Jeffrey M. Hirsch excepted the majority's treatment of the blocking-charge policy from a generally favorable analysis of the rule revisions. Noting the persistent problems with delay and abuse, Professor Hirsch observed that “[t]he Board's new rules indirectly affected the blocking charge policy by requiring parties to file an offer of proof to support a request for a stay, but that requirement is unlikely to change much, if anything. Instead, the Board should have explored new rules such as lowering the presumption that favors staying elections in most circumstances or setting a cap on the length of stays, either of which might have satisfied the blocking charge policy's main purpose while reducing abuse.” ^[166]

b. The 2020 Rule's Modifications to the Blocking-Charge Policy

To address the concerns with the blocking-charge policy discussed above, and to safeguard employee free choice, the 2020 Rule provided that an unfair labor practice charge would no longer delay the conduct of an election, and it set forth the following rules.

Where an unfair labor practice charge, filed by the party that is requesting to block the election, alleges (1) violations of section 8(a)(1) and 8(a)(2) or section 8(b)(1)(A) of the Act that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition, or (2) that an employer has dominated a union in violation of section 8(a)(2) and seeks to disestablish a bargaining relationship, the election will be held and the ballots will be impounded for up to 60 days from the conclusion of the election. If a complaint issues with respect to the charge at any time prior to expiration of that 60-day period, the ballots will continue to be impounded until there is a final determination regarding the complaint allegation and its effect, if any, on the election petition. If the charge is withdrawn or dismissed at any time prior to expiration of that 60-day period, or if the 60-day period ends without a complaint issuing, the ballots will be promptly opened and counted. The 2020 Rule further provides that the 60-day period will not be extended, even if more than one unfair labor practice charge is filed serially.

For all other types of unfair labor practice charges, the 2020 Rule provided that the ballots will be promptly opened and counted at the conclusion of the election, rather than temporarily impounded. Finally, for all types of charges upon which a blocking-charge request is based, the 2020 Rule clarified that the certification of results (including, where appropriate, a certification of representative) will not issue until there is a final disposition of the charge and a determination of its effect, if any, on the election petition.^[167] 85 FR 18369-18370, 18399.

c. Critique of the Majority's Proposed Readoption of the Pre-2020 Rule Blocking-Charge Policy

Demonstrating little concern for the previous abuse of the Board's blocking-charge policy and the inadequacy of the offer-of-proof requirements imposed by the 2014 final Election Rule, our colleagues would simply reverse all that was accomplished in the 2020 Rule and return the Board to what they refer to as the “historical” blocking-charge policy as modified by the Election Rule. Our colleagues ostensibly regard the blocking-charge policy's decades-long endurance as a sufficient justification to resurrect the policy without modification irrespective of its glaring deficiencies. But in stressing the “historical” nature of the blocking-charge policy, the majority largely dismisses the similarly historical abuse of that policy, which also goes back decades. That the “historical” blocking-charge policy persisted for decades hardly signifies that it was wise or just. Board policy and precedent, however historical, need not bind us forever when wrong. As the late Supreme Court Justice Oliver Wendell Holmes, Jr. said: “If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified.”  ^[168] Regarding the blocking-charge policy, scrutiny and revision were clearly justified.

However well intentioned, the historical blocking-charge policy stifled the exercise by employees of their fundamental right, guaranteed by the Act, to choose whether to be represented by a labor organization and, if so, which one. As the 2020 Rule appropriately concluded, the blocking-charge policy “encourage[d] . . . gamesmanship, allowing unions to dictate the timing of an election for maximum advantage in all elections presenting a test of representative status,” regardless of the type of petition (RD, RC, or RM) filed.^[169] 85 FR 18376 & fn. 81. Moreover, the 2020 Rule appropriately concluded that the blocking-charge policy “denie[d] employees supporting a petition the right to have a timely election based on charges the merits of which remain to be seen, and many of which will turn out to have been meritless.” Id. at 18377. In the meantime, during the extended delay caused by a blocking charge, any momentum in support of a valid petition may be lost, and the employee complement may substantially turn over.^[170] Id. at 18367, 18374. Thus, in a very practical sense, “employees who support [RD or RM] petitions are just as adversely affected by delay as employees who support a union's initial petition to become an exclusive bargaining representative.” ^[171] 84 FR 39930, 39937 (2019).

Contrary to the majority, there is nothing improper in recognizing the drawbacks of the blocking-charge policy and making changes to eliminate them. The Board in the 2020 Rule did precisely that. The proposed rule would undo this necessary progress, elevating history over substance. Illustrative of this point is our colleagues' heavy reliance on the Fifth Circuit's positive perceptions of the historical policy nearly fifty years ago.^[172] However, other circuit-court cases from that time and much earlier recognized the problems addressed in the 2020 Rule. Indeed, the 2020 Rule observed that “courts of appeals have criticized the blocking charge policy's adverse impacts on employee RD petitions, as well as the potential for abuse and manipulation of that policy by incumbent unions seeking to avoid a challenge to their representative status.” 85 FR 18367 (citing NLRB v. Hart Beverage Co., 445 F.2d at 420; Templeton v. Dixie Color Printing Co., 444 F.2d at 1069; NLRB v. Midtown Serv. Co., 425 F.2d at 672; NLRB v. Minute Maid Corp., 283 F.2d at 710; Pacemaker Corp. v. NLRB, 260 F.2d at 882).

In plotting a return to the “historical” blocking-charge policy, the majority stresses their view that this policy “enabled the Board to fulfill one of its core obligations: to preserve laboratory conditions for ascertaining employee choice during Board-conducted elections.” Our colleagues claim that “it would undermine employee rights, and would run counter to the Board's duty to conduct elections in circumstances in which employees may freely choose whether to be represented by a union, if the Board were to require regional directors to conduct, and employees to vote in, a coercive atmosphere.” They add that by “shielding employees from having to vote under coercive conditions, the historical blocking charge policy would seem to be more compatible with the policies of the Act and the Board's responsibility to provide laboratory conditions for ascertaining employee choice during Board-conducted elections.” In other words, our colleagues view the mere act of conducting an election—in the face of unlitigated and unproven accusations ^[173] —as injurious to employee free choice. This supposed imperative of “shielding employees” from voting at all in what the majority deems a “coercive atmosphere”—even though the 2020 Rule guarantees that any coerced electoral result will not be given legal effect—runs like a leitmotif through the majority's justification for the proposed rule. We disagree that the mere possibility that a choice may be compromised justifies blocking employees from exercising their right to make that choice altogether.

We fully recognize, as has the Supreme Court, that it is the “duty of the Board . . . to establish the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973) (internal quotation marks omitted). In this connection, the Board has long held that “[a]n election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative.” General Shoe Corp., 77 NLRB 124, 126 (1948). To that end, “[i]n election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.” Id. at 127. It does not follow, however, that where it has merely been alleged —not found—that an employer has engaged in conduct that might affect the freedom of an electoral choice, the answer is to prevent employees from making any choice at all. To begin with, the Board in General Shoe emphasized that it had “sparingly” exercised its power to “set an election aside and direct[ ] a new one,” saving that remedy for election misconduct “so glaring that it is almost certain to have impaired employees' freedom of choice.” Id. at 126 (emphasis added). Board law is therefore clear that employees are to be afforded the opportunity in an election to make a “free and untrammeled choice ”of bargaining representative, with “choice” being the operative word.

Collectively choosing to select or reject a bargaining representative through the Board's electoral processes necessarily entails voting in an election that is eventually certified and given legal effect. Under the General Shoe standard, the Board will set aside an election— i.e., deny it legal effect—where employees were denied the opportunity to make a free and uncoerced choice. See id. Without an uncoerced and therefore legally valid vote, there can be no effective choice of bargaining representative. In such circumstances, the question of representation raised by the election petition is preliminarily answered but not resolved.^[174] Assuming unfair labor practice charges filed during the pendency of an election petition are subsequently determined to be meritorious, if the election result is not given legal effect—and the 2020 Rule ensures it will not be—then employees' right to make a free and uncoerced choice has not been abridged. In contrast to the 2020 Rule, the proposed rule would indefinitely block employees from registering any choice at all based on charges that have not been (and may never be) found meritorious and that may even have been filed merely to delay an election in hopes of preserving the union's representative status.

The majority's claim that the potential for employees to vote in a “coercive atmosphere” necessarily inhibits employee free choice overlooks the fact that under their proposal, employees may be deprived of the opportunity to register any choice at all. The majority “recognize[s] that blocking elections based on nonmeritorious charges may result in some delay,” but asserts that “the benefits of not allowing elections to proceed under the clouds of an unfair labor practice far outweigh any such delay.” In other words, the majority believes that because some unfair labor practice charges prove meritorious and that where this is the case, an election, if allowed to proceed, would be conducted under unfair labor practice “clouds,” every election should be blocked whenever a properly supported blocking charge is filed, even though this means that elections will be blocked when there is not a cloud in the sky. This is rather like saying that all baseball games should be delayed indefinitely because some games, if played, would be called on account of rain. We believe the game should proceed unless and until clouds actually gather and rain actually falls—or to drop the simile, we would adhere to the 2020 Rule, permitting elections to proceed and intervening to set aside the results if and when an unfair labor practice charge proves meritorious. Without ascribing motives to our colleagues, we cannot avoid observing that their preferred approach does make it easier for incumbent unions bent on self-preservation to frustrate the will of the majority. Safeguarding employees' access to the ballot box remains a compelling reason why the amendments to the blocking-charge policy made in the 2020 Rule were (and still are) necessary.

Further, as the 2020 Rule appropriately recognized, “the concerns raised about the harm that employees would suffer by voting in an election that is later set aside are overstated and can be addressed by the prophylactic post-election procedures of certification stays and, in some cases, impounding ballots, set forth in the [2020 Rule].” 85 FR 18378. The effectiveness of these procedures cannot be attacked without calling into question decades of Board decisions. For nearly the entirety of the Act's existence, the Board has set aside elections based on meritorious objections and has ordered second elections. See, e.g., Paragon Rubber Co., 7 NLRB 965, 966 (1938). In many of those cases, the objectionable conduct was an unfair labor practice. Based on the Board's extensive experience in handling election objections, it defies reason to suggest that employee free choice in a second election will invariably be affected by a union's prior election loss set aside based on unfair labor practices. That has not been the case in many rerun elections where employees have voted for union representation in a second or even third election.^[175] 85 FR 18378. We therefore disagree with our colleagues that the mere filing of an unfair labor practice charge alleging conduct that, if proven, would create a “coercive atmosphere” as a matter of law imposes a “duty” on the Board not to conduct an election. On the contrary, as noted above, the Board has a duty “to resolve questions of representation by holding elections, and that duty is not discharged where the Board does not process a representation petition, especially where there is no legitimate basis for delaying an election.” Id. If the union loses the election and the allegation proves meritorious, the election results are set aside. Thus, any potential “coercive atmosphere” is fully dealt with under the Board's existing representation rules, including the procedures set forth in the 2020 Rule.^[176]

The majority additionally claims that “opening and counting ballots submitted under coercive circumstances, yet refusing to certify the results, will, at best, confuse employees and, at worst, actively mislead them by conveying a materially false impression of union support.” But unions will be highly motivated to explain to employees why election results have not been certified and should be disregarded. The reason is easy to understand; apparently our colleagues have less faith in employees' intelligence than we do. Moreover, despite a regional director's investigatory determination of merit, the relevant charge may well turn out to have been meritless after a full adjudication before the Board, meaning that the ballots for that case would not have been “submitted under coercive circumstances.” See 85 FR 18377. Similarly, where a regional director's investigation results in a relevant charge's dismissal, employee ballots in such a case plainly would not have been “submitted under coercive circumstances,” and it is entirely appropriate that employees promptly learn the election results in that case. Additionally, our colleagues discount the benefit to employees (and to their confidence in the Board's processes) of promptly learning the results of an election in which they voted. Where a statutory question of representation exists, employees should be entitled to a prompt answer to that question, even where unfair labor practice charges later deemed meritorious delay the final resolution of the question.

Rejecting the 2020 Rule's concern with safeguarding employee free choice by conducting elections in the face of meritless unfair labor practice charges, the majority rather audaciously asserts that the historical blocking-charge policy “best preserved employee free choice in representation cases in which petitions are blocked because of concurrent unfair labor practice charges,” even though some employees might never get to vote due to a blocked petition. See, e.g., Geodis Logistics, LLC, 371 NLRB No. 102 (2022) (blocking charge delayed elections for four years; employee petitioner no longer employed in unit); Cablevision Systems Corp., 367 NLRB No. 59 (2018) (blocking charge followed by regional director's misapplication of settlement-bar doctrine delayed processing until December 19, 2018, of valid RD petition filed on October 16, 2014; employee petitioner thereafter withdrew petition). Indeed, the passage of time while a charge is blocked, and the attendant turnover in the workforce of employees opposed to a particular union, inures to the benefit of unions attempting to preserve their representative status, at the expense of employee choice. The majority dismisses the 2020 Rule's concern for such employees by pointing out the obvious fact that some turnover is “unavoidable” over the days and weeks between a petition's filing and the election. In doing so, our colleagues discount the potential for blocking charges to cause years of delay, during which extensive employee turnover is all too likely.

Taking the debate from the obvious to the absurd, the majority faults the 2020 Rule for failing to “explain why employees who are no longer in the workforce should be given a say in determining whether current employees should be represented during the period when the petition is held in abeyance pending a determination of the merits of the charge.” Of course, this argument misses the point entirely. The point is not that former employees should get a say in current employees' electoral choice. Rather, to the extent practicable, employees employed at the time a petition is filed should get the opportunity to promptly express a choice of representative. The majority, by contrast, would rather assist unions facing possible ouster by facilitating election delay while the union waits for its opponents to head for the exits and works to rebuild support among the undecideds. They criticize the 2020 Rule for “prioritiz[ing] speedy elections over employee free choice in order to maximize the likelihood that those employed at the time of the petition filing will be able to vote in an election,” but their criticism rests on a false dichotomy between “speedy elections” and “employee free choice.” It's not an either/or, but a both/and. The 2020 Rule facilitates prompt elections and safeguards employee free choice, for all the reasons we have explained. Moreover, a prompt opportunity for employees to vote in a Board election itself safeguards employee free choice.^[177] See NLRB v. A.J. Tower Co., 329 U.S. at 331 (observing that “within [the] democratic framework” of section 9(c) of the Act, “the Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily” (emphasis added)). Finally, the majority asserts that employee turnover will necessarily occur in the event an unfair labor practice charge proves meritorious and a rerun election is directed. But that result is acceptable where a charge has merit. The goal should be to limit employee turnover resulting from blocking petitions for extended periods based on any and every unproven and potentially meritless allegation of employer conduct that could interfere with employee free choice or taint the petition.

Next, the majority makes the fantastical claim that the 2020 Rule's modification of the blocking-charge policy to permit elections to be conducted despite pending unfair labor practice charges somehow “creates a perverse incentive for unscrupulous employers to commit unfair labor practices” because, in our colleagues' estimation, the “predicable results” of such unlawful conduct will be (1) the expenditure of unions' resources on elections that “will not reflect the uninhibited desires of the employees,” and (2) “a sense among employees that seeking to exercise their [s]ection 7 rights is futile.” This fallacious parade of horribles leads nowhere. It defies reason that employers would deliberately expose their businesses to unfair labor practice litigation and liability, and the financial consequences thereof, merely to compel unions to expend resources on an election that the union might well win. In any event, such employers would themselves presumably have to commit resources to an election. Additionally, we reject the premise that holding an election (but not immediately certifying the results) in the face of pertinent unfair labor practice charges necessarily imbues employees with a sense of futility regarding the exercise of their section 7 rights—rights that include being able to cast a vote for or against representation in a Board-supervised, secret-ballot election. Indeed, the majority completely discounts the futility that a decertification petitioner and other supporters of that petition must feel when forced to wait for years to vote in an election, assuming they are ever afforded the opportunity to do so. Lastly, the majority effectively presumes an abuse of process that is not known to have occurred, which stands in stark contrast to the recognized abuse of the Board's processes by unions seeking to preserve their representative status—an abuse that, according to our colleagues, does not merit curative action unless it is shown to be “the norm.”

Finally, our colleagues state that they are “concerned” with claimed errors in certain data considered in the notice of proposed rulemaking preceding the 2020 Rule. The Board appropriately responded to these concerns in the 2020 Rule as follows: “Even accepting those claims as accurate, the remaining undisputed statistics substantiate the continuing existence of a systemic delay that supports our policy choice to modify the current blocking-charge procedure that does not, and need not, depend on statistical analysis.” 85 FR 18377. Further, the Board, quoting the AFL-CIO's comment, observed that “[b]locking elections delays elections. That is undeniably true and requires no `statistical evidence' to demonstrate.” Id. Finally, the Board reiterated that “anecdotal evidence of lengthy blocking charge delays in some cases, and judicial expressions of concern about this, remain among the several persuasive reasons supporting a change that will assure the timely conduct of elections without sacrificing protections against election interference.” Id. We agree. As the majority acknowledges, the Board is “free to make a policy choice that does not primarily rely . . . on statistical data” and “may make policy decisions for which the data does not provide the answer.” The Board did so in the 2020 Rule—and now, at the unfortunate expense of the gains in safeguarding employee free choice made there, the majority claims the right to do so in this NPRM.

For all the reasons set forth above, the 2020 Rule's modifications to the Board's blocking-charge policy were prompted by real and serious abuses, and they successfully addressed those abuses. Those modifications should be retained. Instead, the majority proposes rescinding them. We cannot join them in taking this step and therefore, we dissent.

2. The Voluntary-Recognition Bar

When it comes to ascertaining whether a union enjoys majority support, a Board-conducted election is superior to union-authorization cards for several reasons, not least of which is that in the former, employees vote by secret ballot, whereas an employee presented with a card for signature makes an observable choice and is therefore susceptible to group pressure. For this reason and others, discussed below, the 2020 Rule reinstated a framework, previously adopted through adjudication, that provides employees a limited window period, following their employer's card-based voluntary recognition of a union as their bargaining representative, within which to petition for a secret-ballot election, and during which the start of the voluntary-recognition election bar is paused until that window closes without a petition being filed. We believe this aspect of the 2020 Rule appropriately balances the sometimes-competing policies of labor-relations stability and employee free choice. Our colleagues propose throwing out this valuable framework. Because their proposal strikes the wrong balance, at the expense of employee free choice, we dissent.

a. Background

Longstanding precedent holds that a “Board election is not the only method by which an employer may satisfy itself as to the union's majority status [under section 9(a) of the Act].” United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 72 fn. 8 (1956). Voluntary-recognition agreements based on a union's showing of majority support are undisputedly lawful. NLRB v. Gissel Packing Co., 395 U.S. at 595-600. However, it was not until Keller Plastics Eastern, Inc., 157 NLRB 583 (1966), that the Board addressed the issue of whether a section 9(a) bargaining relationship established by voluntary recognition can be disrupted by the recognized union's subsequent loss of majority status. Although the union in Keller Plastics had lost majority support by the time the parties executed a contract little more than three weeks after voluntary recognition, the Board rejected the General Counsel's claim that the employer was violating the Act by continuing to recognize a nonmajority union as the employees' representative. The Board reasoned that “like situations involving certifications, Board orders, and settlement agreements, the parties must be afforded a reasonable time to bargain and to execute the contracts resulting from such bargaining. Such negotiations can succeed, however, and the policies of the Act can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time.” Id. at 586. Shortly thereafter, the Board extended this recognition-bar policy to representation cases and held that an employer's voluntary recognition of a union would immediately bar the filing of an election petition for a reasonable amount of time following recognition. Sound Contractors, 162 NLRB 364 (1966).

From 1966 until 2007, the Board tailored the duration of the immediate recognition bar to the circumstances of each case, stating that what constitutes a reasonable period of time “does not depend upon either the passage of time or the number of calendar days on which the parties met. Rather, the issue turns on what transpired during those meetings and what was accomplished therein.” Brennan's Cadillac, Inc., 231 NLRB 225, 226 (1977). In some cases, a few months of bargaining were deemed enough to give the recognized union a fair chance to succeed, whereas in other cases substantially more time was deemed warranted. Compare Brennan's Cadillac (finding employer entitled to withdraw recognition after 4 months), with MGM Grand Hotel, 329 NLRB 464, 466 (1999) (finding a bar period of more than 11 months was reasonable considering the large size of the unit, the complexity of the bargaining structure and issues, the parties' frequent meetings and diligent efforts, and the substantial progress made in negotiations).

In Dana Corp., 351 NLRB 434 (2007), a Board majority reviewed the development of the immediate recognition-bar policy and concluded that it “should be modified to provide greater protection for employees' statutory right of free choice and to give proper effect to the court- and Board-recognized statutory preference for resolving questions concerning representation through a Board secret-ballot election.” Id. at 437.^[178]

Drawing on the General Counsel's suggestion in his amicus brief of a modified voluntary-recognition election bar, the Dana majority held that “[t]here will be no bar to an election following a grant of voluntary recognition unless (a) affected unit employees receive adequate notice of the recognition and of their opportunity to file a Board election petition within 45 days, and (b) 45 days pass from the date of notice without the filing of a validly-supported petition. These rules apply notwithstanding the execution of a collective-bargaining agreement following voluntary recognition. In other words, if the notice and window-period requirements have not been met, any [post-recognition] contract will not bar an election.” 351 NLRB at 441. The recognition-bar modifications did not affect the obligation of an employer to bargain with the recognized union during the post-recognition open period, even if a decertification or rival petition was filed. Id. at 442.

The Dana majority emphasized “the greater reliability of Board elections” as a principal reason for the announced modification. Dana Corp., 351 NLRB at 438. In this respect, while a majority card showing has been recognized as a reliable basis for the establishment of a section 9(a) bargaining relationship, authorization cards—as the Supreme Court has found—are “admittedly inferior to the election process.” NLRB v. Gissel Packing Co., 395 U.S. at 603. Several reasons were offered in support of this conclusion. “First, unlike votes cast in privacy by secret Board election ballots, card signings are public actions, susceptible to group pressure exerted at the moment of choice.” Dana Corp., 351 NLRB at 438. This is in contrast to a secret-ballot vote cast in the “laboratory conditions” of a Board election, held “under the watchful eye of a neutral Board agent and observers from the parties,” ^[179] and free from immediate observation, persuasion, or coercion by opposing parties or their supporters. “Second, union card-solicitation campaigns have been accompanied by misinformation or a lack of information about employees' representational options.” Id. Particularly in circumstances where voluntary recognition is preceded by an employer entering into a neutrality agreement with the union, which may include an agreement to provide the union access to the workplace for organizational purposes, employees may not understand they even have an electoral option or an alternative to representation by the organizing union. Id. “Third, like a political election, a Board election presents a clear picture of employee voter preference at a single moment. On the other hand, card signings take place over a protracted period of time.” Id. A statistical study cited in several briefs and by the Dana majority indicated a significant disparity between union card showings of support obtained over a period of time and ensuing Board election results. Id. (citing McCulloch, A Tale of Two Cities: Or Law in Action, Proceedings of ABA Section of Labor Relations Law 14, 17 (1962)). Lastly, the Board election process provides for post-election review of impermissible electioneering and other objectionable conduct, which may result in the Board invalidating the election results and conducting a second election. Id. at 439. “There are no guarantees of comparable safeguards in the voluntary recognition process.” Id.

In Lamons Gasket Company, 357 NLRB 739 (2011),^[180] a new Board majority overruled Dana Corp. and reinstated the immediate voluntary-recognition election bar. The Lamons Gasket majority emphasized the validity of voluntary recognition as a basis for establishing a section 9(a) majority-based recognition. Further, citing Board statistical evidence that employees had decertified the voluntarily recognized union in only 1.2 percent of the total cases in which a Dana notice was requested,^[181] the majority concluded that Dana' s modifications to the voluntary-recognition bar were unnecessary and that the Dana majority's concerns about the reliability of voluntary recognition as an accurate indicator of employee choice were unfounded. The Lamons Gasket majority criticized the Dana notice procedure as compromising Board neutrality by “suggest[ing] to employees that the Board considers their choice to be represented suspect and signal[ing] to employees that their choice should be reconsidered.” Id. at 744. The majority opinion also defended the voluntary-recognition bar as consistent with other election bars that are based on a policy of assuring that “ `a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.' ” Id. (quoting Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944)). The majority viewed the Dana 45-day open period as contrary to this policy by creating a period of post-recognition uncertainty during which an employer has little incentive to bargain, even though technically required to do so. Id. at 747. Finally, having determined that a return to the immediate recognition-bar policy was warranted, the Lamons Gasket majority applied its holding retroactively. In addition, based on the Board's decision in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002), the majority defined the reasonable period of time during which a voluntary recognition would bar an election as no less than six months and no more than one year from the date of the parties' first bargaining session. Lamons Gasket, supra at 748.^[182]

Then-Member Hayes dissented in Lamons Gasket,^[183] arguing that Dana was correctly decided for the policy reasons stated there, most importantly the statutory preference for a secret-ballot Board election to resolve questions of representation under section 9 of the Act. He noted that the Lamons Gasket majority's efforts to secure empirical evidence of Dana' s shortcomings by inviting briefs from the parties and amici “yielded a goose egg.” Id. at 750 (“Only five respondents sought to overturn Dana, and only two of them supported their arguments for doing so with the barest of anecdotal evidence.”) (footnotes omitted). Consequently, the only meaningful empirical evidence came from the Board's own election statistics. In this regard, Member Hayes disagreed with the majority's view that the number of elections held and votes cast against the recognized union proved the Dana modifications were unnecessary. He pointed out that the statistics showed that in one of every four elections held, an employee majority voted against representation by the incumbent recognized union. While that 25-percent rejection rate was below the recent annual rejection rate for all decertification elections, it was nevertheless substantial and supported retention of a notice requirement and brief open period. Id. at 751.

Under Lamons Gasket, the imposition of the immediate recognition bar, followed by the execution of a collective-bargaining agreement resulting in a contract bar,^[184] can preclude the possibility of conducting a Board election contesting the initial non-electoral recognition of a union as employees' exclusive bargaining representative for as many as four years. Indeed, because under Lamons Gasket the recognition-bar period begins to run only when the parties first meet to bargain, which may be months after recognition is granted, a secret-ballot election may be barred for more than four years.

b. The 2020 Rule's Modifications to the Voluntary-Recognition Bar

The 2020 Rule largely reinstated the Dana notice period, including the 45-day open period during which a valid election petition may be filed challenging an employer's voluntary recognition of a labor organization. However, in response to certain comments, the Board modified the Dana framework in several respects. First, the Dana notice period applies only to voluntary recognition extended on or after the effective date of the 2020 Rule and to the first collective-bargaining agreement reached after such voluntary recognition. Second, the 2020 Rule clarified that the employer “and/or” labor organization must notify the Regional Office that recognition has been granted. Third, in contrast to the 2019 proposed rule, the 2020 Rule specified where the notice should be posted ( i.e., “in conspicuous places, including all places where notices to employees are customarily posted”), eliminated the 2019 proposed rule's specific reference to the right to file “a decertification or rival-union petition” and instead referred generally to “a petition,” added a requirement that an employer distribute the notice to unit employees electronically if the employer customarily communicated with its employees by such means, and set forth the wording of the notice. 85 FR 18370, 18399-18400.

c. Critique of the Majority's Proposed Return to the Immediate Voluntary-Recognition Bar

The majority proposes to rescind current § 103.21 of the Board's Rules and Regulations—adopted in the 2020 Rule—and return, purportedly, the Board's recognition-bar jurisprudence to the law as it existed under Lamons Gasket, supra, i.e., an immediate recognition bar that lasts a minimum of six months and a maximum of one year, not from the date recognition is granted, but from the date of the parties' first bargaining session—followed, of course, by a contract bar of up to three years if the parties execute a collective-bargaining agreement.^[185] Our colleagues' reasons for doing so contain few surprises. Predictably, they refuse to acknowledge the 2020 Rule's essential contribution to the statutory policy of safeguarding employee free choice, claiming instead that the Lamons Gasket rule allowing no opportunity for a Board-supervised election immediately following a voluntary recognition better serves the freedom of employees to choose their representatives. For reasons explained below, our colleagues err in proposing this counterproductive change.

Initially, based on the Board's statistical data discussed above from the years Dana was in effect, as well as similar post-2020 Rule data, the majority asserts that these data “seem[ ] to show that voluntary recognition almost always reflects employee free choice accurately,” such that the 2020 Rule “imposes requirements that burden collective bargaining without producing commensurate benefits in vindicating employee free choice of bargaining representatives.” The majority continues that “[s]uch a disproportionate waste of party and Board resources cannot be justified by reference to Federal labor policy, which favors voluntary recognition.” There is much to unpack in these noticeably slanted assertions.

Regarding the majority's supposedly data-driven argument that the 2020 Rule fails to “vindicat[e] employee free choice” inasmuch as successful electoral overrides of voluntary recognition appear rare, our colleagues fail to say how many electorally overturned voluntary recognitions it would take to warrant retaining the modified Dana framework. Might a five percent override rate do so in our colleagues' view? How about ten percent? The majority's position begs the question of how many employees must be effectively disenfranchised and saddled with a bargaining representative lacking majority support before they will leave the current framework alone.

Employees should have the right to test the validity of a voluntary recognition. The Board need not and should not accept possibly unsupported voluntary recognitions at any frequency, particularly considering that a simple procedure to prevent them is available and already in place. In any event, the data showing infrequent overrides of voluntary recognitions cut both ways. Thus, not only do the data show a legally significant error rate, but the majority's characterization of this rate as low suggests that the Dana framework undermines neither the voluntary-recognition process nor the statutory policies the majority discusses as supporting it ( e.g., “encouraging collective bargaining and preserving stability in labor relations”). Additionally, we agree with the view expressed in the 2020 Rule that the Dana framework “serve[s] its intended purpose of assuring employee free choice in all . . . cases at the outset of a bargaining relationship based on voluntary recognition, rather than 1 to 4 years or more later,” and that “giving employees an opportunity to exercise free choice in a Board-supervised election without having to wait years to do so is . . . solidly based on and justified by . . . policy grounds.” 85 FR 18383.^[186] Indeed, the majority acknowledges that “the Board's approach to the voluntary-recognition bar has varied, [and] the Board [and the Federal courts] consistently [have] viewed the issue as presenting a policy choice for the Board to make.”

Moreover, the majority distorts the 2020 Rule to claim that the Dana framework is a “waste of party and Board resources [that] cannot be justified by reference to [F]ederal labor policy, which favors voluntary recognition.” Our colleagues miss the mark. Even as the 2020 Rule clearly acknowledged that “voluntary recognition and voluntary-recognition agreements are lawful,” ^[187] both the NLRA and the courts have made plain that a Board-supervised election is “the Act's preferred method for resolving questions of representation.” Id. Thus, “the election-year bar and the greater statutory protections accorded to a Board-certified bargaining representative implicitly reflect congressional intent to encourage the use of Board elections as the preferred means for resolving questions concerning representation.” Id. Indeed, our colleagues concede “the implicit statutory preference for Board elections (insofar as certain benefits are conferred only on certified unions).” Additionally, both the Board and the courts have long recognized that secret-ballot elections are superior to voluntary recognition at protecting employees' section 7 freedom to choose, or not choose, a bargaining representative.^[188] See, e.g., Linden Lumber Div. v. NLRB, 419 U.S. 301, 304 (1974); NLRB v. Gissel Packing Co., 395 U.S. at 602; Transp. Mgmt. Servs. v. NLRB, 275 F.3d 112, 114 (D.C. Cir. 2002); NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 1380, 1383 (2d Cir. 1973); Levitz Furniture Co. of the Pacific, 333 NLRB at 727; Underground Service Alert, 315 NLRB 958, 960 (1994). As the United States Supreme Court has stated, “secret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.” NLRB v. Gissel Packing Co., 395 U.S. at 602. Although voluntary recognition is a valid method of obtaining recognition, authorization cards used in a card-check recognition process are “admittedly inferior to the election process.” Id. at 603.^[189]

The majority further claims that the notice requirement “invites” the filing of an election petition and that the language of the required notice itself “indicate[s] [that], by not filing a petition, employees effectively have chosen to reaffirm their original choice to be represented by the union” and “make[s] clear that if employees do not seek a Board election, then they have assented to the validity of the voluntary recognition.” ^[190]

Contrary to our colleagues, we find no fault in requiring notice to employees that their employer has recognized a particular union and informing them of their right to test that union's support—or to support a different union with the requisite showing of interest—through the statutorily-preferred method of a Board-supervised election. Further, the notice language of the 2020 Rule (§ 103.21 of the Board's Rules and Regulations) clearly informs employees of their right to seek an election for a variety of purposes, not simply to obtain a decertification election. On this point—and contrary, moreover, to the majority's claim that the notice requirement “invites” employees to file a petition—the notice language clearly states that the Board “does not endorse any choice about whether employees should keep the recognized union, file a petition to certify the recognized union, file a petition to decertify the recognized union, or support or oppose a representation petition filed by another union.” 85 FR 18400. The 2020 Rule also states that it “does not encourage, much less guarantee, the filing of a petition.” Id. at 18384. The message is plain: file a petition, don't file a petition, file any one of a variety of petitions—it's all the same to us. Finally, regarding the majority's claim that, by failing to file an election petition within the 45-day window, employees “effectively have chosen to reaffirm their original choice to be represented by the union” and “assented to the validity of the voluntary recognition,” our colleagues plainly misapprehend the 2020 Rule's required notice language. The notice merely explains that absent an election petition's filing within the 45-day window period, “the Union's status as the unit employees' exclusive bargaining representative will be insulated from challenge” pursuant to the recognition bar (and also pursuant to the contract bar if a contract is agreed to during the insulated period). Id. An employee's failure to challenge the validity of a voluntary recognition by filing a petition is not tantamount to “assenting to the validity” of that voluntary recognition. The notice does not indicate that “silence is acceptance,” as can occur under certain circumstances in contract law. It merely informs employees of the legal effect, under longstanding law, of voluntary recognition—a legal effect temporarily delayed to afford employees an opportunity to avail themselves of the Board's electoral processes, should they wish to do so. Thus, the choice not to file a petition is more akin to a waiver of the legal right to challenge the union's exclusive-representative status for “a reasonable period of time” under the recognition bar, and up to three more years in the case of the contract bar. See id. The majority's assertions otherwise are aimed at validating their reliance on data apparently demonstrating a low incidence of electoral overrides of voluntary recognitions as compared to the total number of voluntary recognition notices requested over certain time periods.

Finally, the majority claims that the 2020 Rule “undisputedly rejects the premise that newly established bargaining relationships must be given a fair chance to succeed in the context of voluntary recognition,” contrary to the central rationale underlying other Board bar doctrines that protect new bargaining relationships. As a result, our colleagues claim, the 2020 Rule undermines the labor-relations stability necessary to negotiate and administer collective-bargaining agreements between parties to new bargaining relationships established through voluntary recognition. But the 2020 Rule's 45-day window, which the majority claims is rarely used in any event, hardly rejects the premise that new bargaining relationships must have an opportunity to succeed. After the window closes without a petition being filed, the recognition bar takes effect. Further, if, as the majority claims, “voluntary recognition almost always reflects employee free choice accurately,” it is difficult to ascertain how the 2020 Rule “undermines the stability” of bargaining relationships. The majority cannot have it both ways. If § 103.21's voluntary-recognition notice procedure affects relatively few bargaining relationships established through voluntary recognition, then the benefit to employee free choice of retaining that procedure clearly outweighs any modest burden caused by a few employees deciding to vindicate their statutory rights through the preferred method of a Board election.^[191] Moreover, as the 2020 Rule observed, there was “no evidence in the record for this rulemaking that Dana had any meaningful impact on the negotiation of bargaining agreements during the open period or on the rate at which agreements were reached after voluntary recognition.” Id. at 18384.^[192]

3. Proof of Majority-Based Recognition Under Section 9(a) in the Construction Industry

Under section 9 of the Act, employees choose union representation. However, under extant Board precedent applicable to unfair labor practice cases— Staunton Fuel & Material, 335 NLRB 717 (2001)—unions and employers in the construction industry can install a union as the section 9(a) representative of the employer's employees through contract language alone, regardless of whether those employees have chosen it as such, and indeed, even if the employer has no employees at all when it enters into that contract.^[193] The 2020 Rule overruled Staunton Fuel for representation-case purposes, and the majority now proposes to reinstate it. Nobody can be in suspense as to whether that proposal will be adopted in a final rule, since the majority just reaffirmed Staunton Fuel for unfair-labor-practice-case purposes.^[194] Readers of the proposed rule will search in vain, however, for a full-throated endorsement of Staunton Fuel. Our colleagues largely walk away from Staunton Fuel, focusing instead on its procedural sidekick, Casale Industries.^[195] The reason is not far to seek: the Court of Appeals for the District of Columbia Circuit has rejected Staunton Fuel, repeatedly and emphatically.^[196] We agree with the D.C. Circuit's criticisms of that decision, and we would retain this aspect of the 2020 Rule as well.

a. Background

In 1959, Congress enacted section 8(f) of the Act to address unique characteristics of employment and bargaining practices in the construction industry. Section 8(f) permits an employer and labor organization in the construction industry to establish a collective-bargaining relationship in the absence of majority support, an exception to the majority-based requirements for establishing a collective-bargaining relationship under section 9(a). While the impetus for this exception to majoritarian principles stemmed primarily from the fact that construction-industry employers often executed pre-hire agreements with labor organizations in order to assure a reliable, cost-certain source of labor referred from a union hiring hall for a specific job, the exception applies as well to voluntary recognition and collective-bargaining agreements executed by a construction-industry employer that has a stable cohort of employees. However, the second proviso to section 8(f) states that any agreement that is lawful only because of that section's nonmajority exception cannot bar a petition for a Board election. Accordingly, there cannot be a contract bar or voluntary-recognition bar to an election among employees covered by an 8(f) agreement.

Board precedent has evolved with respect to the standard for determining whether a bargaining relationship and a collective-bargaining agreement in the construction industry are governed by section 9(a) majoritarian principles or by section 8(f) and its exception to those principles. In 1971, the Board adopted a “conversion doctrine,” under which a bargaining relationship initially established under section 8(f) could convert into a 9(a) relationship by means other than a Board election or majority-based voluntary recognition. See R.J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom. Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973); Ruttmann Construction Co., 191 NLRB 701 (1971). As subsequently described in John Deklewa & Sons, 282 NLRB 1375, 1378 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), R.J. Smith and Ruttmann viewed a section 8(f) agreement as “ `a preliminary step that contemplates further action for the development of a full bargaining relationship' ” (quoting from Ruttmann, 191 NLRB at 702). This preliminary 8(f) relationship/agreement could convert to a 9(a) relationship/agreement, within a few days or years later, if the union could show that it had achieved majority support among bargaining-unit employees during a contract term. “The achievement of majority support required no notice, no simultaneous union claim of majority, and no assent by the employer to complete the conversion process.” Id. Proof of majority support sufficient to trigger conversion included “the presence of an enforced union-security clause, actual union membership of a majority of unit employees, as well as referrals from an exclusive hiring hall.” Id. The duration and scope of the post-conversion contract's applicability under section 9(a) would vary, depending upon the scope of the appropriate unit (single or multiemployer) and the employer's hiring practices (project-by-project or permanent and stable workforce). Id. at 1379.

The Deklewa Board made fundamental changes in the law governing construction-industry bargaining relationships and set forth new principles that are relevant to the 2020 Rule. First, it repudiated the conversion doctrine as inconsistent with statutory policy and Congressional intent expressed through the second proviso to section 8(f) “that an 8(f) agreement may not act as a bar to, inter alia, decertification or rival union petitions.” Id. at 1382. Contrary to this intent, the “extraordinary” conversion of an original 8(f) agreement into a 9(a) agreement raised “an absolute bar to employees' efforts to reject or to change their collective-bargaining representative,” depriving them of the “meaningful and readily available escape hatch” assured by the second proviso. Id. Second, the Board held that 8(f) contracts and relationships are enforceable through section 8(a)(5) and section 8(b)(3) of the Act, but only for as long as the contract remains in effect. Upon expiration of the contract, “either party may repudiate the relationship.” Id. at 1386. Further, inasmuch as section 8(f) permits an election at any time during the contract term, “[a] vote to reject the signatory union will void the 8(f) agreement and will terminate the 8(f) relationship. In that event, the Board will prohibit the parties from reestablishing the 8(f) relationship covering unit employees for a 1-year period.” Id. Third, the Board presumed that collective-bargaining agreements in the construction industry are governed by section 8(f), so that “a party asserting the existence of a 9(a) relationship bears the burden of proving it.” Id. at 1385 fn. 41. Finally, stating that “nothing in this opinion is meant to suggest that unions have less favored status with respect to construction industry employers than they possess with respect to those outside the construction industry,” the Board affirmed that a construction-industry union could achieve 9(a) status through “voluntary recognition accorded . . . by the employer of a stable workforce where that recognition is based on a clear showing of majority support among the union employees, e.g., a valid card majority.” Id. at 1387 fn. 53.

The Deklewa Board's presumption of 8(f) status for construction-industry relationships did not preclude the possibility that a relationship undisputedly begun under section 8(f) could become a 9(a) relationship upon the execution of a subsequent agreement. In cases applying Deklewa, however, the Board repeatedly stated the requirement, both for initial and subsequent agreements, that in order to prove a 9(a) relationship, a union would have to show “ `its express demand for, and an employer's voluntary grant of, recognition to the union as bargaining representative based on a contemporaneous showing of union support among a majority of employees in an appropriate unit.' ” Brannan Sand & Gravel Co., 289 NLRB 977, 979-980 (1988) (quoting American Thoro-Clean, Ltd., 283 NLRB 1107, 1108-1109 (1987)). Further, in J & R Tile, 291 NLRB 1034, 1036 (1988), the Board held that, to establish voluntary recognition, there must be “positive evidence that a union unequivocally demanded recognition as the employees' 9(a) representative and that the employer unequivocally accepted it as such.” Golden West Electric, 307 NLRB 1494, 1495 (1992) (citing J & R Tile, supra).^[197]

However, in Staunton Fuel & Material, 335 NLRB at 719-720, the Board, for the first time, held that a union could prove 9(a) recognition by a construction-industry employer on the basis of contract language alone without any other “positive evidence” of a contemporaneous showing of majority support. Relying on two recent decisions by the United States Court of Appeals for the Tenth Circuit,^[198] the Board held that language in a contract is independently sufficient to prove a 9(a) relationship “where the language unequivocally indicates that (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 9(a) bargaining representative; and (3) the employer's recognition was based on the union's having shown, or having offered to show, evidence of its majority support.” Id. at 720. The Board found that this contract-based approach “properly balances [s]ection 9(a)'s emphasis on employee choice with [s]ection 8(f)'s recognition of the practical realities of the construction industry.” Id. at 719. Additionally, the Board stated that under the Staunton Fuel test, “[c]onstruction unions and employers will be able to establish 9(a) bargaining relationships easily and unmistakably where they seek to do so.” Id.

On review of a subsequent Board case applying Staunton Fuel, the United States Court of Appeals for the District of Columbia Circuit sharply disagreed with the Board's analysis. Nova Plumbing, Inc. v. NLRB, 330 F.3d at 531, granting review and denying enforcement of Nova Plumbing, Inc., 336 NLRB 633 (2001). Relying heavily on the majoritarian principles emphasized by the Supreme Court in Int'l Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961), the D.C. Circuit stated that “[t]he proposition that contract language standing alone can establish the existence of a section 9(a) relationship runs roughshod over the principles established in Garment Workers, for it completely fails to account for employee rights under sections 7 and 8(f). An agreement between an employer and union is void and unenforceable, Garment Workers holds, if it purports to recognize a union that actually lacks majority support as the employees' exclusive representative. While section 8(f) creates a limited exception to this rule for pre-hire agreements in the construction industry, the statute explicitly preserves employee rights to petition for decertification or for a change in bargaining representative under such contracts. 29 U.S.C. 158(f). The Board's ruling that contract language alone can establish the existence of a section 9(a) relationship—and thus trigger the three-year `contract bar' against election petitions by employees and other parties—creates an opportunity for construction companies and unions to circumvent both section 8(f) protections and Garment Workers' holding by colluding at the expense of employees and rival unions. By focusing exclusively on employer and union intent, the Board has neglected its fundamental obligation to protect employee section 7 rights, opening the door to even more egregious violations than the good faith mistake at issue in Garment Workers.” 330 F.3d at 536-537.

Notwithstanding the court's criticism in Nova Plumbing, until the 2020 Rule the Board had adhered to Staunton Fuel' s holding that certain contract language, standing alone, can establish a 9(a) relationship in the construction industry. Indeed, as noted above, the current majority has recently reaffirmed that holding. See Enright Seeding, Inc., 371 NLRB No. 127 (2022).^[199]

The D.C. Circuit, for its part, has adhered to the contrary view. In Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031 (2018), the court granted review and vacated a Board order premised on the finding that a bargaining relationship founded under section 8(f) became a 9(a) relationship solely because of recognition language in a successor bargaining agreement executed by the parties. The court reemphasized its position in Nova Plumbing that the Staunton Fuel test could not be squared either with Garment Workers' majoritarian principles or with the employee free choice principles represented by section 8(f)'s second proviso. It also focused more sharply on the centrality of employee free choice in determining when a section 9(a) relationship has been established. The court observed that “[t]he raison d'être of the National Labor Relations Act's protections for union representation is to vindicate the employees' right to engage in collective activity and to empower employees to freely choose their own labor representatives.” Id. at 1038. Further, the court emphasized that “[t]he unusual [s]ection 8(f) exception is meant not to cede all employee choice to the employer or union, but to provide employees in the inconstant and fluid construction and building industries some opportunity for collective representation. . . . [I]t is not meant to force the employees' choices any further than the statutory scheme allows.” Id. at 1039. Accordingly, “[b]ecause the statutory objective is to ensure that only unions chosen by a majority of employees enjoy [s]ection 9(a)'s enhanced protections, the Board must faithfully police the presumption of [s]ection 8(f) status and the strict burden of proof to overcome it. Specifically, the Board must demand clear evidence that the employees—not the union and not the employer—have independently chosen to transition away from a [s]ection 8(f) pre-hire arrangement by affirmatively choosing a union as their [s]ection 9(a) representative.” Id. Pursuant to that strict evidentiary standard, the court found that it would not do for the Board to rely under Staunton Fuel solely on contract language indicating that “ `the employer's recognition was based on the union's having shown, or having offered to show, an evidentiary basis of its majority support.' ” Id. at 1040 (quoting Staunton Fuel, 335 NLRB at 717). Such reliance “would reduce the requirement of affirmative employee support to a word game controlled entirely by the union and employer. Which is precisely what the law forbids.” Id.

b. The 2020 Rule's Modified Requirements for Proof of Section 9(a) Bargaining Relationships in the Construction Industry

The 2020 Rule requires positive evidence that the union unequivocally demanded recognition as the 9(a) majority-supported exclusive bargaining representative of employees in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit. The Rule also clarifies that collective-bargaining agreement language, standing alone, will not be sufficient to provide the required showing that a majority of unit employees covered by a presumptive 8(f) bargaining relationship have freely chosen the union to be their 9(a) representative. These modifications apply only to voluntary recognition extended on or after the effective date of the 2020 Rule and to any collective-bargaining agreement entered into on or after the date of voluntary recognition extended on or after the effective date of the Rule. Finally, in adopting these modifications, the 2020 Rule overruled Casale Industries  ^[200] in relevant part, “declin[ing] to adopt a [s]ection 10(b) 6-month limitation on challenging a construction-industry union's majority status by filing a petition for a Board election.” 85 FR 18370, 18390-18391, 18400.

c. Critique of the Majority's Proposal To Rescind § 103.22

The majority proposes to fully rescind § 103.22 of the Board's Rules and Regulations, which encompasses all the 2020 Rule's modified requirements for proving a section 9(a) bargaining relationship in the construction industry. The result would be the effective reinstatement of the ill-conceived Board precedents of Staunton Fuel and Casale Industries for purposes of applying the voluntary-recognition and contract bars in the construction industry. Our colleagues' reasons for doing so, discussed below, lack merit and do not warrant revisiting the sound policy of the 2020 Rule.

Principally, the majority complains that the 2020 Rule's overruling of Casale Industries “[i]n the absence of prior public comments . . . may create an onerous and unreasonable recordkeeping requirement on construction employers and unions . . . to retain and preserve—indefinitely—extrinsic evidence of a union's showing of majority support at the time when recognition was initially granted.” First of all, our colleagues are mistaken when they claim that the decision to overrule Casale Industries in relevant part was undertaken “in the absence of prior public comments.” In fact, this issue was squarely raised in public comments requesting that the Board “incorporate [in the final rule] a [s]ection 10(b) 6-month limitation for challenging a construction-industry union's majority status.” 85 FR 18390-18391. The Board thoroughly considered the commenters' request and responded with a detailed and persuasive explanation of why it declined to incorporate such a limitations period in the 2020 Rule. Id. at 18391. Thus, section 10(b) applies only to unfair labor practices, whereas the 2020 Rule “addresses only representation proceedings— i.e., whether an election petition is barred because a construction-industry employer and union formed a 9(a) rather than an 8(f) collective-bargaining relationship.” Id. “[O]nly if the parties formed a 9(a) relationship could there be an unfair labor practice that would trigger [s]ection 10(b)'s 6-month limitation.” Id.^[201] Accordingly, as the 2020 Rule explained, Casale Industries erroneously “begs the question by assuming the very 9(a) status that ought to be the object of inquiry.” Id. The Board also appropriately concluded in the 2020 Rule that such a limitations period in this context “improperly discounts the importance of protecting employee free choice.” Id.^[202] Further, the District of Columbia and Fourth Circuits have expressed doubts regarding the limitations period adopted in Casale Industries. See Nova Plumbing, 330 F.3d at 539; American Automatic Sprinkler Systems v. NLRB, 163 F.3d 209, 218 fn. 6 (4th Cir. 1998). Finally, regarding the supposedly “onerous . . . recordkeeping requirement,” the Board reasonably concluded, and we agree, that although the 2020 Rule “will incentivize unions to keep a record of majority-employee union support[,] . . . such a minor administrative inconvenience [is not] a sufficient reason to permit employers and unions to circumvent employees' rights.” 85 FR 18392.^[203]

At bottom, the legal presumption of 8(f) status in the construction industry follows from the protections afforded under the second proviso to section 8(f), which provides that an extant 8(f) agreement “shall not be a bar to a petition” for an election under either section 9(c) or 9(e) of the Act. However, once the 8(f) presumption is rebutted and a 9(a) relationship is recognized, the voluntary recognition bar and/or the contract bar may operate to bar election petitions in appropriate circumstances. In other words, a valid 9(a) recognition causes employees to forfeit their rights to invoke the Board's power to resolve a question of representation during the bar period. Just as a party—or a Federal court acting sua sponte—may at any time during litigation challenge the court's subject-matter jurisdiction inasmuch as such jurisdiction implicates the court's power to hear the claim (Fed. R. Civ. Pro. 12(h)(3)), we conclude that a party should be free to file an election petition challenging a construction-industry employer's claimed 9(a) recognition of an incumbent union—and thereby demand contemporaneous positive evidence of majority support—inasmuch as a default 8(f) relationship potentially masquerading as a lawful 9(a) relationship implicates the Board's power to resolve a valid question of representation.

B. Conclusion

For all these reasons, we respectfully dissent from this Notice of Proposed Rulemaking to rescind and replace the 2020 Rule. We would leave the 2020 Rule in place and are confident that it will be upheld as valid in the courts. Of course, given that a second round of rulemaking will proceed, we shall consider with open minds all public comments, any developments brought to our attention, and the considered views of our colleagues.

VII. Regulatory Procedures

The Regulatory Flexibility Act

A. Initial Regulatory Flexibility Analysis

The Regulatory Flexibility Act of 1980 (“RFA”), 5 U.S.C. 601, et seq., ensures that agencies “review draft rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the [RFA].” ^[204] It requires agencies promulgating proposed rules to prepare an Initial Regulatory Flexibility Analysis (“IRFA”) and to develop alternatives wherever possible, when drafting regulations that will have a significant impact on a substantial number of small entities.^[205] However, an agency is not required to prepare an IRFA for a proposed rule if the agency head certifies that, if promulgated, the rule will not have a significant economic impact on a substantial number of small entities.^[206] The RFA does not define either “significant economic impact” or “substantial number of small entities.” ^[207]  Additionally, “[i]n the absence of statutory specificity, what is `significant' will vary depending on the economics of the industry or sector to be regulated. The agency is in the best position to gauge the small entity impacts of its regulations.” ^[208]

Although the Board believes that it is unlikely that the proposed rule will have a significant economic impact on a substantial number of small entities, it seeks public input on this hypothesis and has prepared an IFRA to provide the public the fullest opportunity to comment on the proposed rule.^[209] An IRFA describes why an action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities.^[210]

1. Description of the Reasons Why Action by the Agency Is Being Considered and Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule

Detailed descriptions of this proposed rule, its purpose, objectives, and legal basis are contained earlier in the SUMMARY and SUPPLEMENTAL INFORMATION sections and are not repeated here. In brief, the proposed rule aims to better protect the statutory rights of employees to express their views regarding representation by rescinding the Board's 2020 changes to the blocking charge policy, the voluntary recognition bar doctrine, and the use of contract language to serve as sufficient evidence of majority-supported voluntary recognition under section 9(a) in representation cases in the construction industry.

2. Description of, and Where Feasible, an Estimate of the Number of Small Entites to Which the Proposed Rule Will Apply

To evaluate the impact of the proposed rule, the Board first identified the universe of small entities that could be impacted by reinstating the blocking charge policy, the voluntary recognition bar doctrine, and the use of contract language to serve as sufficient evidence of voluntary recognition under section 9(a) in representation cases in the construction industry.

a. Blocking Charge and Voluntary Recognition Bar Changes

The changes to the blocking charge policy and voluntary recognition bar doctrine will apply to all entities covered by the National Labor Relations Act (“NLRA” or “the Act”). According to the United States Census Bureau, there were 6,102,412 business firms with employees in 2019.^[211] Of those, the Census Bureau estimates that about 6,081,544 were firms with fewer than 500 employees.^[212] While this proposed rule does not apply to employers that do not meet the Board's jurisdictional requirements, the Board does not have the data to determine the number of excluded entities.^[213] Accordingly, the Board assumes for purposes of this analysis that all of the 6,081,544 small business firms could be impacted by the proposed rule.

The changes to the blocking charge policy and voluntary recognition bar doctrine will also impact labor unions as organizations representing or seeking to represent employees. Labor unions, as defined by the NLRA, are entities “in which employees participate and which exist for the purpose . . . of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” ^[214] The Small Business Administration's (“SBA”) small business standard for “Labor Unions and Similar Labor Organizations” (NAICS #813930) is $14.5 million in annual receipts.^[215] In 2017, there were 13,137 labor unions in the U.S.^[216] Of these, 12,875 (98% of total) are definitely small businesses according to SBA standards because their receipts are below $10 million.^[217] And, 89 additional unions have annual receipts between $10 million and $14,999,999.^[218] Since the Board cannot determine how many of those 89 labor union firms fall below the $14.5 million annual receipt threshold, it will assume that all 89 are small businesses as defined by the SBA. Therefore, for the purposes of this IRFA, the Board assumes that 12,964 labor unions (98.7% of total) are small businesses that could be impacted by the proposed rule.

The number of small entities likely to be specially impacted by the proposed rule, however, is much lower. First, the blocking charge policy will only be applied as a matter of law under certain circumstances in a Board proceeding—namely when a party to a representation proceeding files an unfair labor practice charge alleging conduct that could result in setting aside the election or dismissing the petition. This occurs only in a small percentage of the Board's cases. For example, between July 31, 2018 and July 30, 2020, the last two-year period during which the original blocking charge policy was in effect, there were 162 requests that an unfair labor practice charge block an election ( i.e., an average of 81 per year). Assuming each request involved a distinct employer and labor organization, the Board's blocking charge policy affected an average of 162 entities per year, which is only .000026% of the 6,081,544 small entities that could be subject to the Board's jurisdiction.^[219]

Second, the number of small entities likely to be specially impacted by the voluntary recognition bar doctrine is also low. Since the modified voluntary recognition bar became effective on July 31, 2020, the Board has tracked the number of requests for notices used to inform employees that a voluntary recognition had taken place and of their right to file a petition for an election. On average, the Board has received 130 requests per year for those notices. Assuming each request was made by a distinct employer and involved at least one distinct labor union, only 260 entities of any size were affected. Even assuming all 260 of those entities met the SBA's definition of small business, they would account for only .000042% of the 6,081,544 small entities that could be subject to the Board's jurisdiction.

b. Restoration of the Use of Contract Language To Serve as Sufficient Evidence of 9(a) Recognition in Representation Cases in the Construction Industry

The Board believes that restoring the use of contract language to serve as sufficient evidence of majority-supported voluntary recognition under section 9(a) in representation cases in the construction industry is only relevant to employers engaged primarily in the building and construction industry and labor unions of which building and construction employees are members. The need to differentiate between voluntary recognition under section 8(f) of the Act versus section 9(a) is unique to entities engaged in the building and construction industry because section 8(f) applies solely to those entities. Of the 701,477 building and construction-industry employers classified under the NAICS Section 23 Construction,^[220] between 688,291 and 691,614 fall under the SBA “small business” standard for classifications in the NAICS Construction sector.^[221] The Department of Labor's Office of Labor-Management Standards (OLMS) provides a searchable database of union annual financial reports.^[222] However, OLMS does not identify unions by industry, e.g., construction. Accordingly, the Board does not have the means to determine a precise number of unions of which building and construction employees are members. In its 2019 IRFA, the Board identified 3,929 labor unions primarily operating in the building and construction industry that met the SBA “small business” standard of annual receipts of less than $7.5 million.^[223] Although unions that do not primarily operate in the building and construction industry could still be subject to the proposed rule if they seek to represent employees engaged in the building and construction industry, comments received in response to the 2019 IRFA did not reveal that the Board failed to consider any additional small labor unions, including those representing employees engaged in the building and construction industry, or any other categories of small entities that would likely take special interest in a change in the standard for using contract language to prove majority-supported voluntary recognition.^[224] Therefore, at this time, the Board assumes that this portion of the proposed rule could only affect 695,543 of the 6,081,544 small entities that could be subject to the Board's jurisdiction.

The Board is also unable to determine how many of those 691,614 small building and construction-industry employers elect to enter voluntarily into a 9(a) bargaining relationship with a labor union and use language in a collective-bargaining agreement to serve as evidence of the labor union's 9(a) status. However, to the extent it is an indicator of the number of building and construction-industry employers that enter into a 9(a) bargaining relationship with a small labor union, the number of cases that involve a question of whether a relationship is governed by section 8(f) or 9(a) is very small relative to the total number of building and construction industry employers and unions. As the Board noted in its 2019 IRFA, between October 1, 2015 and September 30, 2017, only two cases required the Board to determine whether a collective-bargaining agreement was governed by 8(f) or 9(a).^[225] Since October 1, 2017, the issue has only come before the Board once.^[226]

3. Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule

The RFA requires an agency to determine the amount of “reporting, recordkeeping and other compliance requirements” imposed on small entities.^[227] The Court of Appeals for the District of Columbia Circuit has explained that this provision requires an agency to consider direct burdens that compliance with a new regulation will likely impose on small entities.^[228]

We believe that the proposed rule imposes no capital costs for equipment needed to meet the regulatory requirements; no direct costs of modifying existing processes and procedures to comply with the proposed rule; no lost sales and profits directly resulting from the proposed rule; no changes in market competition as a direct result of the proposed rule and its impact on small entities or specific submarkets of small entities; no extra costs associated with the payment of taxes or fees associated with the proposed rule; and no direct costs of hiring employees dedicated to compliance with regulatory requirements.^[229] Instead, the proposed rule should help small entities conserve resources that they might otherwise expend by participating in an election under the current rules that would be blocked under the proposed rule or by engaging in a representation case proceeding that would have otherwise been barred by a voluntary recognition. And, the proposed rule removes the information collection, recordkeeping, and reporting requirements that the 2020 Rule imposed on small entities. Accordingly, for the purposes of the IRFA, and subject to comments, the Board assumes that the only direct cost to small entities will be reviewing the rule.

To become generally familiar with the proposed reversions to the traditional blocking charge policy and voluntary recognition bar doctrine, we estimate that a human resources or labor relations specialist at a small employer may take at most ninety minutes to read the text of the rule and the supplementary information published in the Federal Register and to consult with an attorney.^[230] We estimate that an attorney would bill the employer for a one hour consult.^[231] Using the Bureau of Labor Statistics' estimated wage and benefit costs, we have assessed these costs to be between $171.04 and $177.44.^[232]

For the limited number of small employers and unions representing employees in the construction industry that will endeavor to become generally familiar with all three changes to the rule—including the portion of the rule that restores the use of contract language to serve as sufficient evidence of majority-supported voluntary recognition under section 9(a) in representation cases in the construction industry—we estimate that a human resources or labor relations specialist may take at most two hours to read all three changes and the supplementary information published in the Federal Register and to consult with an attorney. We estimate that an attorney would only bill the employer for a one-hour consult.^[233] Thus, the Board has assessed labor costs for small employers and unions representing employees in the construction industry to be between $194.84 and $203.38.^[234]

The Board is not inclined to find the costs of reviewing and understanding the rule to be significant within the meaning of the RFA. In making this finding, one important indicator is the cost of compliance in relation to the revenue of the entity or the percentage of profits affected.^[235] Other criteria to be considered are whether the rule will cause long-term insolvency ( i.e., regulatory costs that may reduce the ability of the firm to make future capital investment, thereby severely harming its competitive ability, particularly against larger firms) and whether the cost of the proposed regulation will eliminate more than 10 percent of the businesses' profits, exceed one percent of the gross revenues of the entities in a particular sector, or exceed five percent of the labor costs of the entities in the sector.^[236] The minimal cost to read and understand the rule will not generate any such significant economic impacts.

Because the direct compliance costs do not exceed $203.38 for any one entity, the Board has no reason to believe that the cost of compliance is significant when compared to the revenue or profits of any entity. However, the Board welcomes input from the public regarding its calculations, initial conclusions, or additional direct costs of compliance not identified by the Board.

4. An Identification, to the Extent Practicable, of All Relevant Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule

The Board has not identified any Federal rules that conflict with the proposed rule. It welcomes comments that suggest any potential conflicts not noted in this section.

5. Description of Any Significant Alternatives to the Proposed Rule Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities

Pursuant to 5 U.S.C. 603(c), agencies are directed to look at “any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.” Specifically, agencies must consider establishing different compliance or reporting requirements or timetables for small entities, simplifying compliance and reporting for small entities, using performance rather than design standards, and exempting small entities from any part of the rule.^[237] The SBA has described this step as “[t]he keystone of the IRFA,” because “[a]nalyzing alternatives establishes a process for the agency to evaluate proposals that achieve the regulatory goals efficiently and effectively without unduly burdening small entities, erecting barriers to competition, or stifling innovation.” ^[238] The Board considered two primary alternatives to the proposed rule.

First, the Board considered taking no action. Inaction would leave in place the revised blocking charge policy, which we preliminarily believe, subject to comments, requires regional directors to conduct elections under potentially coercive conditions, and the modified voluntary recognition bar, which we preliminarily believe unfairly signals to employees that the Board views with suspicion their choices regarding representation and could hinder first contract bargaining. Additionally, inaction would place a unique burden on construction employers and unions to retain indefinitely proof of a union's showing of majority support. However, for the reasons stated in sections I through III above, the Board finds it desirable to revisit these policies. Consequently, the Board rejects maintaining the status quo.

Second, the Board considered creating exemptions for certain small entities. This was rejected as impractical, considering that exemptions for small entities would substantially undermine the purposes of the proposed rule because such a large percentage of employers and unions would be exempt under the SBA definition of “small business.” Also, if a large employer entered into a bargaining relationship with a small labor union, both entities would be exempted, further undermining these much-needed policy shifts. Additionally, because the Board considers the proposed rules to better protect employees' statutory rights, an exemption would adversely affect employees at all small entities. If small entities were exempt from the restored, historical blocking charge policy, a large swath of employees covered by the Act would be required to participate in elections held under coercive conditions. If small entities were exempt from the restored voluntary recognition bar, those employers and labor unions would have additional requirements for reporting and notice-posting. And, if small entities were exempt from the return to the use of contract language to serve as sufficient evidence of a 9(a) relationship in representation cases in the construction industry, they would be required to retain evidence of a union's majority status indefinitely. Further, it seems unlikely that drawing this distinction would be a permissible interpretation of the relevant statutory provisions.

Moreover, given the very small quantifiable cost of compliance, it is possible that the burden on a small business of determining whether it falls within a particular exempt category might exceed the burden of compliance. Congress gave the Board very broad jurisdiction, with no suggestion that it wanted to limit coverage of any part of the Act to only larger employers.^[239] As the Supreme Court has noted, “[t]he [NLRA] is [F]ederal legislation, administered by a national agency, intended to solve a national problem on a national scale.” ^[240] As such, exempting or creating an exception for small entities is contrary to the objectives of this rulemaking and of the NLRA.

Because no alternatives considered will accomplish the objectives of this proposed rule while minimizing costs on small businesses, the Board believes that proceeding with this rulemaking is the best regulatory course of action. The Board welcomes public comment on any facet of this IRFA, including alternatives that it has failed to consider.

Paperwork Reduction Act

The NLRB is an agency within the meaning of the Paperwork Reduction Act (PRA). 44 U.S.C. 3502(1) and (5). The PRA creates rules for agencies when they solicit a “collection of information,” 44 U.S.C. 3507, which is defined as “the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format.” 44 U.S.C. 3502(3)(A). The PRA only applies when such collections are “conducted or sponsored by those agencies.” 5 CFR 1320.4(a).

The proposed rules do not involve a collection of information within the meaning of the PRA. Even if the proposed rules were construed to require disclosures of information to the NLRB, third parties, or the public, such disclosures would only occur in the course of the Board's administrative proceedings. For example, a party could file an unfair labor practice charge and request that the charge block the processing of a representation proceeding. Or, a party could raise in a representation proceeding that an employer has already voluntarily recognized a particular union. However, the PRA provides that collections of information related to “an administrative action or investigation involving an agency against specific individuals or entities” are exempt from coverage. 44 U.S.C. 3518(c)(1)(B)(ii). A representation proceeding under section 9 of the Act, as well as an investigation into an unfair labor practice under section 10 of the Act, are administrative actions covered by this exemption. The Board's decisions in these proceedings are binding on and thereby alter the legal rights of the parties to the proceedings and thus are sufficiently “against” the specific parties to trigger this exemption.^[241]

For the foregoing reasons, the proposed rules do not contain information collection requirements that require approval by the Office of Management and Budget under the PRA.

List of Subjects in 29 CFR Part 103

• Colleges and universities
• Election procedures
• Health facilities
• Jurisdictional standards
• Labor management relations
• Music
• Remedial Orders
• Sports

Text of the Proposed Rule

For the reasons discussed in the preamble, the Board proposes to amend 29 CFR part 103 as follows:

PART 103—OTHER RULES

1. The authority citation for part 103 continues to read as follows:

Authority: 29 U.S.C. 156, in accordance with the procedure set forth in 5 U.S.C. 553.

2. Revise § 103.20 to read as follows:

3. Revise § 103.21 to read as follows:

4. Remove § 103.22.

Footnotes