Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships
| Citation | 85 FR 18366 |
| Record Number | 2020-06470 |
| Published date | 01 April 2020 |
| Section | Rules and Regulations |
| Court | National Labor Relations Board |
Federal Register, Volume 85 Issue 63 (Wednesday, April 1, 2020)
[Federal Register Volume 85, Number 63 (Wednesday, April 1, 2020)]
[Rules and Regulations]
[Pages 18366-18400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06470]
[[Page 18365]]
Vol. 85
Wednesday,
No. 63
April 1, 2020
Part IIINational Labor Relations Board-----------------------------------------------------------------------29 CFR Part 103-----------------------------------------------------------------------Representation--Case Procedures: Election Bars; Proof of Majority
Support in Construction-Industry Collective-Bargaining Relationships;
Final Rule
Federal Register / Vol. 85 , No. 63 / Wednesday, April 1, 2020 /
Rules and Regulations
[[Page 18366]]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 103
RIN 3142-AA16
Representation--Case Procedures: Election Bars; Proof of Majority
Support in Construction-Industry Collective-Bargaining Relationships
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: As part of 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 or
the NLRB) hereby makes three amendments to its rules and regulations
governing the filing and processing of petitions for a Board-conducted
representation election and proof of majority support in construction-
industry collective-bargaining relationships. The amendments effect
changes in current procedures that have not previously been
incorporated in the Board's rules. The Board believes that the
amendments made in this final rule will 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.
DATES: This rule will be effective on June 1, 2020.
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. Background
A. The Act
The NLRA sets forth a number of rights and responsibilities that
apply to employers, employees, and labor organizations representing
employees, in furtherance of the Act's overarching goals of protecting
employees' right to designate or select ``representatives of their own
choosing,'' or to refrain from doing so; \1\ ensuring that, except in
situations covered by Section 8(f) of the Act, exclusive
representatives are ``designated or selected for the purposes of
collective bargaining by the majority of employees'' in an appropriate
bargaining unit; \2\ and promoting labor-relations stability.\3\ As
discussed further below, Section 8(f) allows ``an employer engaged
primarily in the building and construction industry to make an
agreement covering'' certain employees ``with a labor organization of
which building and construction employees are members,'' even if it has
not been established that the labor organization represents a majority
of the employees that it represents.\4\ In addition, while it is well
established that the Act permits voluntary recognition of labor
organizations, the Act also requires the Board--when the necessary
prerequisites are met--to direct and conduct secret-ballot elections
and certify the results thereof.\5\
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\1\ Sec. 7 of the Act, 29 U.S.C. 157.
\2\ Sec. 9(a) of the Act, 29 U.S.C. 159(a).
\3\ Sec. 1 of the Act, 29 U.S.C. 151.
\4\ Sec. 8(f) of the Act, 29 U.S.C. 158(f).
\5\ Sec. 9(c)(1)(B) of the Act, 29 U.S.C. 159(c)(1)(B); Sec.
9(e) of the Act, 29 U.S.C. 159(e).
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B. Notice of Proposed Rulemaking (NPRM)
On August 12, 2019, the Board issued the NPRM. The Board set an
initial comment period of 60 days, with 14 additional days allotted for
reply comments. Thereafter, the Board extended these deadlines twice:
First for 60 days, and then for an additional 30 days. Various aspects
of the NPRM are summarized below.
1. Summary of the Proposed Rule
In the NPRM, the Board proposed to make three amendments to its
current practices. The first amendment, Sec. 103.20, proposed to
modify the Board's current practices that permit a party to block an
election based on pending unfair labor practice charges. The proposed
amendment provided that a blocking charge would not delay the conduct
of the election and that the ballots would be impounded until there is
a final determination regarding the charge and its effect, if any, on
the election petition or the fairness of the election.
The second amendment, Sec. 103.21(a), proposed to modify the
Board's existing procedures providing for an immediate election bar
following an employer's voluntary recognition of a union as the
majority-supported collective-bargaining representative of the
employer's employees. The proposed amendment provided for a post-
recognition open period of 45 days within which election petitions
could be filed and processed.
The third amendment, Sec. 103.22(b), proposed to redefine the
evidence required to prove that an employer and a labor organization in
the construction industry have established a voluntary majority-
supported collective-bargaining relationship that could bar an
election. Under the Board's current practice, certain contract
language, standing alone, is sufficient to prove such a relationship.
The proposed amendment would require positive evidence that the union
unequivocally demanded recognition as the 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.
2. Reasons for Rulemaking
In the NPRM, the Board acknowledged that it historically has made
most substantive policy determinations through case adjudication, but
stated that it interpreted section 6 of the Act, 29 U.S.C. 156, as
authorizing the Board to engage in this informal notice-and-comment
rulemaking. In addition, the Board found that using such rulemaking in
this context was desirable because (1) it would enable the Board to
solicit broad public comment on, and to address in a single proceeding,
three related election-bar issues that would not likely arise in the
adjudication of a single case; (2) rulemaking does not depend on the
participation and argument of parties in a specific case, and it cannot
be mooted by developments in a pending case; and (3) by establishing
the new standards in its Rules and Regulations, the Board would enable
employers, unions, and employees to plan their affairs free from the
uncertainty that the legal regime may change on a moment's notice (and
possibly retroactively) through the adjudication process.
3. Reasons for Proposed Changes to Blocking-Charge Policy
As discussed in greater detail in the NPRM, through adjudication
the Board created the blocking-charge policy, which permits a party to
block an election indefinitely by filing unfair labor practice charges
that allegedly create doubt as to the validity of an election petition
or the ability of employees to make a free and fair choice concerning
representation while the charges remain unresolved. This policy can
preclude holding the petitioned-for election for months or even years,
if at all. See, e.g., Cablevision Systems Corp., Case 29-RD-138839,
https://www.nlrb.gov/case/29-RD-138839 (as
[[Page 18367]]
noted by 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
decertification (RD) petition filed on October 16, 2014; employee
petitioner thereafter withdrew petition).
As the Board noted, and as discussed further in Section III.E.
below, 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. See NLRB v. Hart
Beverage Co., 445 F.2d 415, 420 (8th Cir. 1971); Templeton v. Dixie
Color Printing Co., 444 F.2d 1064, 1069 (5th Cir. 1971); NLRB v.
Midtown Serv. Co., 425 F.2d 665, 672 (2d Cir. 1970); NLRB v. Minute
Maid Corp., 283 F.2d 705, 710 (5th Cir. 1960); Pacemaker Corp. v. NLRB,
260 F.2d 880, 882 (7th Cir. 1958).
The potential for delay is the same when employees, instead of
filing an RD petition, have otherwise expressed to their employer a
desire to decertify an incumbent union representative. In that
circumstance, the blocking-charge policy can prevent the employer from
being able to seek a timely Board-conducted election to resolve the
question concerning representation raised by evidence of good-faith
uncertainty as to the union's continuing majority support. Thus, the
supposed ``safe harbor'' of filing an employer (RM) 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.
Additionally, concerns have been raised about the Board's regional
directors not applying the blocking-charge policy consistently, 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).
The Board stated that it was inclined to believe, subject to
comments, that the blocking-charge policy impedes, rather than
protects, employee free choice. In a significant number of cases, the
policy denies employees the right to have their votes, in a Board-
conducted election on questions concerning representation, ``recorded
accurately, efficiently and speedily.'' NLRB v. A.J. Tower Co., 329
U.S. 324, 331 (1946). Unnecessary delay robs an election-petition
effort of momentum, and many of the employees ultimately voting on the
issue of representation may not even be the same as those who were in
the workforce when the petition was filed. Additionally, the Board
stated, the blocking-charge policy rests on a presumption that even an
unlitigated and unproven allegation of any one of a broad range of
unfair labor practices justifies indefinite delay because of a
discretionary administrative determination regarding the potential
impact of the alleged misconduct on employees' ability to cast a free
and uncoerced vote on the question of representation. Moreover, the
current policy of holding petitions in abeyance for certain pre-
petition ``Type I'' blocking charges \6\ ``represents an anomalous
situation in which some conduct that would not be found to interfere
with employee free choice if alleged in objections [to an election],
because it occurs outside the critical election period, would
nevertheless be the basis for substantially delaying holding any
election at all.'' Representation--Case Procedures, 79 FR 74308, 74456
(Dec. 15, 2014) (2015 Election Rule) (Dissenting Views of Members
Miscimarra and Johnson) (citing Ideal Electric Mfg. Co., 134 NLRB 1275
(1961)).
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\6\ Type I blocking charges are charges that allege conduct that
interferes with employee free choice (but does not call into
question the validity of the election petition itself). See NLRB
Casehandling Manual (Part Two) Representation Proceedings Sec.
11730.2 (Jan. 2017).
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For these reasons, in the NPRM the Board proposed, subject to
comments, to eliminate the current blocking-charge policy and to adopt
a ``vote-and-impound'' procedure. Under that proposed procedure,
regional directors would continue to process a representation petition
and would conduct an election even when an unfair labor practice charge
and blocking request have been filed. If the charge has not been
resolved prior to the election, the Board proposed, the ballots would
remain impounded until the Board makes a final determination regarding
the charge.\7\
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\7\ We note that nothing in the proposed rule purported to alter
the existing requirements in 29 CFR 103.20 that only a party to the
representation proceeding may file the request to block the election
process; only unfair labor practice charges filed by that party may
be the subject of a request to block; that party must file a written
offer of proof as well as the names of witnesses who will testify in
support of the charge and a summary of each witness's anticipated
testimony; and that party must promptly make available to the
regional director the witnesses identified in the offer of proof. As
noted further below, the final rule also does not affect any of
those existing requirements.
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4. Reasons for Proposed Changes to Voluntary-Recognition Bar
As discussed in greater detail in the NPRM, employers may
voluntarily recognize unions based on a union's showing of majority
support; a Board election is not required. NLRB v. Gissel Packing Co.,
395 U.S. 575, 595-600 (1969); United Mine Workers of America v.
Arkansas Oak Flooring Co., 351 U.S. 62, 72 fn. 8 (1956). Over time, the
Board developed a rule that an employer's voluntary recognition of a
union would immediately bar the filing of an election petition for a
reasonable period of time following recognition. See Sound Contractors
Assn., 162 NLRB 364 (1966). Then, if the parties reached a collective-
bargaining agreement during that reasonable period, the Board's
contract-bar doctrine would continue to bar election petitions for the
duration of the agreement, up to a maximum limit of 3 years. See
General Cable Corp., 139 NLRB 1123, 1125 (1962).
In Dana Corp., 351 NLRB 434 (2007), a Board majority found that the
existing immediate voluntary-recognition-bar policy ``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.
Thus, the Dana majority held that voluntary recognition would not bar
an election unless (a) affected bargaining-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. Id.
at 441. The Board further stated that, ``if the notice and window-
period requirements have not been met, any postrecognition contract
will not bar an election.'' Id.
Then, in Lamons Gasket Co., 357 NLRB 739 (2011), a new Board
majority overruled Dana Corp. and reinstated the immediate voluntary-
recognition election bar. Additionally, the Board defined the
reasonable period of time during which a voluntary recognition would
bar an election as no less than 6 months after the date of the parties'
first bargaining session and no more than 1 year after that date. Id.
at 748.
As the NPRM noted, ``[a]t least since Lamons Gasket, the imposition
of the immediate recognition bar, followed by the execution of a
collective-bargaining agreement, can preclude the possibility of
conducting a Board election contesting the initial non-electoral
recognition of a union as a majority-
[[Page 18368]]
supported exclusive bargaining representative for as many as four
years.'' 84 FR at 39934 (August 12, 2019). In response to a 2017 Board
Request for Information, some respondents contended that the Board
should eliminate the voluntary-recognition bar or, in the alternative,
should reinstate the Dana notice and open-period requirements.
In the NPRM, the Board proposed, subject to comments, to overrule
Lamons Gasket and to reinstate the Dana notice and open-period
procedures following voluntary recognition under Section 9(a). In this
connection, the Board cited the justifications set forth by the Dana
Board majority and the dissenting Member in Lamons Gasket. As the Board
stated, while voluntary recognition is undisputedly lawful, secret-
ballot elections are the preferred method of ascertaining whether a
union has majority-employee support. See NLRB v. Gissel Packing Co.,
395 U.S. at 602. The Board further noted that, in conjunction with the
contract bar, an immediate recognition bar could deny employees an
initial opportunity to vote in a secret-ballot Board election for as
many as 4 years--or even longer, because the reasonable period for
bargaining runs from the date of the first bargaining session, which,
to be lawful, must come after voluntary recognition.
The Board also stated that the Board election statistics cited in
Lamons Gasket supported, rather than detracted from, the need for a
notice and brief open period following voluntary recognition. In this
connection, quoting the Lamons Gasket dissent, the Board stated that
the 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 Section 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.
Thus, the Board concluded, subject to comments, that it was
necessary and appropriate to modify the Board's current recognition-bar
policy--not currently set forth in the rules and regulations--by
reestablishing a notice requirement and 45-day open period for filing
an election petition following an employer's voluntary recognition of a
labor organization as employees' majority-supported exclusive
collective-bargaining representative under Section 9(a) of the Act.
Along with the other changes in this rule, the Board stated that it
believed, subject to comments, that the immediate imposition of a
voluntary-recognition bar is an overbroad and inappropriate limitation
on the employees' ability to exercise their fundamental statutory right
to the timely resolution of questions concerning representation through
the preferred means of a Board-conducted election.
5. Reasons for Proposed Changes to Policy Regarding Proof of Majority-
Based Recognition Under Section 9(a) in the Construction Industry
As discussed in greater detail in the NPRM, based on the unique
characteristics of the construction industry, Congress created an
exception to the majoritarian principles that govern collective-
bargaining relationships in other industries. Thus, as noted above,
Section 8(f) of the Act permits a construction-industry employer and
labor organization to establish a collective-bargaining relationship in
the absence of support from a majority of employees. However, unlike
collective-bargaining relationships governed by Section 9(a), the
second proviso to Section 8(f) provides that any agreement that is
lawful only because of 8(f)'s nonmajority exception cannot bar a
petition for a Board election. Accordingly, there cannot be a contract
bar or a voluntary-recognition bar to an election among employees
covered by an 8(f) agreement.
As recounted in the NPRM, the Board has used various tests over the
years to determine whether a bargaining relationship or collective-
bargaining agreement in the construction industry is governed by
Section 9(a) majoritarian principles or by Section 8(f) and its
exceptions to those principles. Beginning 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 a majority-based voluntary
recognition. See Ruttmann Construction, 191 NLRB 701 (1971); R. J.
Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom.
Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (DC Cir. 1973).
Conversion to a 9(a) relationship and agreement would occur if the
union could show that it had achieved the support of a majority of
bargaining-unit employees during a contract term. However, as the Board
later recognized, ``[t]he achievement of majority support required no
notice, no simultaneous union claim of majority, and no assent by the
employer to complete the conversion process''; rather, ``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'' were sufficient proof to trigger conversion. John Deklewa
& Sons, 282 NLRB 1375, 1378 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
In John Deklewa & Sons, the Board repudiated the conversion
doctrine as inconsistent with statutory policy and congressional intent
expressed through Section 8(f)'s second proviso. Id. at 1382. According
to the Board in Deklewa, conversion of an 8(f) agreement into a 9(a)
agreement raises ``an absolute bar to employees' efforts to reject or
to change their collective-bargaining representative,'' contrary to the
second proviso of Section 8(f). Id. In addition, the Board adopted a
presumption that construction-industry contracts are governed by
Section 8(f), so that ``the party asserting the existence of a 9(a)
relationship'' bears the burden of proving it. Id. at 1385 fn. 41.
Noting, however, that ``nothing in [its] opinion [was] meant to suggest
that unions have less favored status with respect to construction[-
]industry employers,'' the Board also affirmed that a 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 unit employees, e.g., a
valid card majority.'' Id. at 1387 fn. 53.
Thereafter, the Board repeatedly stated 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 showing of support for the union
among a majority of employees in an appropriate unit.'' Brannan Sand &
Gravel Co., 289 NLRB 977, 979-980 (1988) (quoting American Thoro-Clean,
283 NLRB 1107, 1108-1109 (1987)). And in J & R Tile, the Board held
that, to establish voluntary recognition, there must be ``positive
evidence'' that ``the union
[[Page 18369]]
unequivocally demanded recognition as the employees' 9(a)
representative and that the employer unequivocally accepted it as
such.'' 291 NLRB 1034, 1036 (1988).
Subsequently, however, the Board held in Staunton Fuel & Material
that a construction-industry union could prove 9(a) status based on
contract language alone, without any other ``positive evidence'' of a
contemporaneous showing of majority support. 335 NLRB 717, 719-720
(2001). Citing two decisions from the United States Court of Appeals
for the Tenth Circuit,\8\ the Board explained that contract language
would be 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.'' 335 NLRB at 720. Finding that its contract-
based approach ``properly balance[d] Section 9(a)'s emphasis on
employee choice with Section 8(f)'s recognition of the practical
realities of the construction industry,'' the Board stated that its
test would allow ``[c]onstruction unions and employers . . . to
establish 9(a) bargaining relationships easily and unmistakably where
they seek to do so.'' Id. at 719.
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\8\ NLRB v. Oklahoma Installation Co., 219 F.3d 1160 (10th Cir.
2000); NLRB v. Triple C Maint., Inc., 219 F.3d 1147 (10th Cir.
2000).
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However, the United States Court of Appeals for the District of
Columbia Circuit has sharply disagreed with the Board's holding in
Staunton Fuel. In Nova Plumbing, Inc. v. NLRB, 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 [International Ladies' Garment
Workers' Union v. NLRB, 366 U.S. 731 (1961) (Garment Workers)], for it
completely fails to account for employee rights under sections 7 and
8(f).'' 330 F.3d 531, 536-537 (DC Cir. 2003), granting review and
denying enforcement of Nova Plumbing, Inc., 336 NLRB 633 (2001).
According to the court, under Garment Workers ``[a]n agreement between
an employer and union is void and unenforceable . . . if it purports to
recognize a union that actually lacks majority support as the
employees' exclusive representative.'' Id. at 537. The court further
stated that, ``[w]hile 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.'' Id.
``By focusing exclusively on employer and union intent,'' the court
stated, the Board's test allowed employers and unions to ``collud[e] at
the expense of employees and rival unions,'' betraying the Board's
``fundamental obligation to protect employee section 7 rights.'' Id.
The court returned to this theme in Colorado Fire Sprinkler, Inc.
v. NLRB, 891 F.3d 1031 (DC Cir. 2018).\9\ There, the court--focusing
closely on the centrality of employee free choice in determining when a
Section 9(a) relationship has been established--stated that ``[t]he
raison d'[ecirc]tre of the . . . 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 (emphasis in original). The court
observed that Section 8(f) ``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 1038-1039. Accordingly, the court held that ``the Board must
faithfully police the presumption of Section 8(f) status and the strict
burden of proof to overcome it'' by ``demand[ing] clear evidence that
the employees--not the union and not the employer--have independently
chosen to transition away from a Section 8(f) pre-hire arrangement by
affirmatively choosing a union as their Section 9(a) representative.''
Id. at 1039. Applying this evidentiary standard, the court rejected the
Board's reliance solely on contract language in finding a 9(a)
relationship, stating that 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.
at 1040.
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\9\ Granting review and denying enforcement of Colorado Fire
Sprinkler, Inc., 364 NLRB No. 55 (2016).
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In the interest of restoring protection of employee free choice in
the construction industry, the NPRM proposed to overrule Staunton Fuel,
to adopt the D.C. Circuit's position that contract language alone
cannot create a 9(a) bargaining relationship in that industry, and to
therefore require positive evidence of majority union employee support
before a collective-bargaining agreement or voluntary recognition
between employers and unions would bar a petition to an election. For
support, the NPRM stated that (1) as the D.C. Circuit recognized,
Staunton Fuel permits an employer and union to ``paper over'' the
presumption that construction-industry relationships are governed by
Section 8(f); (2) under Staunton Fuel, the contract bar would prevent
employees and rival unions from filing a Board election petition to
challenge the union's representative status for the duration of the
contract up to 3 years, even though there was never any extrinsic proof
that a majority of employees supported the union; (3) the
``conversion'' permitted under Staunton Fuel is similar to the flawed
``conversion doctrine'' that the Deklewa Board repudiated; and (4) the
D.C. Circuit raised a legitimate concern that Staunton Fuel conflicts
with statutory majoritarian principles and represents an impermissible
restriction on employee free choice, particularly in light of the
protections intended by Section 8(f)'s second proviso.
II. Summary of Changes to the Proposed Rule
In response to the comments received, the final rule changes the
proposed rule with respect to all three policy areas discussed.
A. Blocking-Charge Policy
For the reasons discussed in further detail in Section III.E.
below, the final rule does not retain the proposed rule's vote-and-
impound procedure in all cases. Rather, it requires impoundment only
for cases where the unfair labor practice charge, filed by the party
that is requesting to block the election process, 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. For those categories
of charges, the final rule--unlike the proposed rule--provides that the
ballots shall be impounded for up to 60 days from the conclusion of the
election if the charge has not been withdrawn or dismissed, or if a
complaint has not issued, prior to the conclusion of the election. If a
complaint issues with respect to the charge at any time prior to
expiration of that 60-day post-election period, then the ballots shall
continue to be
[[Page 18370]]
impounded until there is a final determination regarding the charge 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, then
the ballots shall be promptly opened and counted. The final 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 final
rule--unlike the proposed rule--provides 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 final rule clarifies 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.\10\ The final rule also makes some minor, non-substantive
changes to the title of the proposed rule.
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\10\ As noted previously, nothing in the final rule alters the
existing requirements that only a party to the representation
proceeding may file the request to block the election process; only
unfair labor practice charges filed by that party may be the subject
of a request to block; that party must file a written offer of proof
as well as the names of witnesses who will testify in support of the
charge and a summary of each witness's anticipated testimony; and
that party must promptly make available to the regional director the
witnesses identified in the offer of proof.
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In short, under the final rule, the filing of a blocking-charge
request will not delay the conduct of an election but may delay the
vote count or certification of results. The regional director shall
continue to process the petition and conduct the election.
B. Voluntary-Recognition Bar
For the reasons discussed in Section III.F. below, upon
consideration of all of the comments received, we have decided to adopt
the proposed rule in substantial part. However, in response to certain
comments, we have modified the rule to clarify that it shall apply only
to an employer's voluntary recognition on or after the effective date
of the rule, and to the first collective-bargaining agreement reached
after such voluntary recognition. Additionally, the final rule
clarifies that the employer ``and/or'' (rather than ``and'') the labor
organization must notify the Regional Office that recognition has been
granted. The final rule also specifies where the notice should be
posted (``in conspicuous places, including all places where notices to
employees are customarily posted''); eliminates the proposed rule's
specific reference to the right to file ``a decertification or rival-
union petition'' and instead refers generally to ``a petition''; adds a
requirement that an employer distribute the notice to unit employees
electronically if the employer customarily communicates with its
employees by such means; and sets forth the wording of the notice. The
final rule also makes some minor, non-substantive changes to the title
and other wording of the proposed rule.
C. Proof of Majority-Based Recognition in the Construction Industry
For clarity purposes, we have removed the amendment regarding proof
of majority-based voluntary recognition in the construction industry
from Sec. 103.21 of the proposed rule and have placed it in its own
section, Final Rule (Rule) Sec. 103.22. In addition, for the reasons
discussed in Section III.G. below, we have decided upon consideration
of comments received to adopt the proposed rule with one modification:
This portion of the final rule shall apply only to voluntary
recognition extended on or after the effective date of the 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. The final rule also makes some minor, non-substantive changes to
the wording of the proposed rule.\11\
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\11\ In accordance with the discrete character of the matters
addressed by each of the amendments listed, the Board hereby
concludes that it would adopt each of these amendments individually,
or in any combination, regardless of whether any of the other
amendments were made. For this reason, the amendments are severable.
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III. Summary of Comments and Responses to Comments
The Board received more than 80 comments from interested
organizations, labor unions, members of Congress, academics, and other
individuals. We have carefully reviewed and considered these comments,
as discussed below.
A. Propriety of Rulemaking
One commenter contends that we have failed to adequately justify
departing from the Board's longstanding practice of proceeding by
adjudication.\12\ However, Congress has delegated general rulemaking
authority to the Board. Specifically, Section 6 of the NLRA, 29 U.S.C.
156, provides that the Board ``shall have authority from time to time
to make, amend, and rescind, in the manner prescribed by [the
Administrative Procedure Act (APA)], such rules and regulations as may
be necessary to carry out the provisions of [the NLRA].'' Although the
Board historically has made most substantive policy determinations
through case adjudication, it has, with Supreme Court approval, engaged
in substantive rulemaking. American Hosp. Ass'n v. NLRB, 499 U.S. 606
(1991) (upholding Board's rulemaking on appropriate bargaining units in
the healthcare industry). In this regard, the Supreme Court has
expressly stated that ``the choice between rulemaking and adjudication
lies in the first instance within the Board's discretion.'' NLRB v.
Bell Aerospace Co., 416 U.S. 267, 294 (1974).
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\12\ Comment of AFL-CIO.
---------------------------------------------------------------------------
Further, Section 6 authorizes the final rule as necessary to carry
out Sections 1, 7, 8, and 9 of the Act, 29 U.S.C. 151, 157, 158, and
159, respectively, discussed in relevant part in Section I.A. above.
The Board's election policies implicate each of these provisions of the
Act, and Section 6 grants the Board the authority to promulgate rules
that carry out those provisions.
As discussed in Section I.B.2. above, in the NPRM the Board
expressed its preliminary belief that rulemaking in this area of the
law is desirable for several reasons. After carefully considering more
than 80 comments, we continue to believe that rulemaking, rather than
adjudication, is the better method to revise and clarify the matters of
broad application at issue in this rule.
First, the Board has repeatedly engaged in rulemaking to amend its
representation-case procedures over the years as part of a continuing
effort to improve the process and to eliminate unnecessary delays. It
has only rarely utilized the APA's notice-and-comment rulemaking
procedures when doing so. Most often, the Board has simply implemented
procedural changes in a final rule without prior notice or request for
public comment. It did so most recently in December 2019. See
Representation-Case Procedures, 84 FR 69524 (Dec. 18, 2019) (2019
Election Rule). However, a few years earlier, the Board engaged in a
notice-and-comment rulemaking process that resulted in a final rule
making widespread revisions in prior representation-case procedures.
See 79 FR 74307 (December 15, 2014).\13\
[[Page 18371]]
Further, as here, some of the procedures addressed in that rulemaking
process were originally established in adjudication.
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\13\ See also comment of AFL-CIO in support of the Board's 2015
Election Rule. 79 FR at 74314 (``[T]he American Federation of Labor
and Congress of Industrial Organizations (AFL-CIO) states that
`[t]he NLRB has specific and express statutory authority to engage
in rule-making to regulate its election process.''').
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Second, the Board has been well served by public comment on the
issues presented in response to the NPRM in this proceeding. The Board
received numerous helpful comments from a wide variety of sources, many
with considerable legal expertise and/or a great deal of relevant
experience. Having considered these comments, we have refined the final
rule in several ways, outlined above in Sections II.A. through II.C.
and discussed more fully below in Sections III.E. through III.G. It is
likely that we would not have received as much input had we addressed
these issues through adjudication rather than rulemaking. Rulemaking
has given interested persons a way to provide input through the
convenient comment process, and participation was not limited, as in
the adjudicatory setting, to legal briefs filed by the parties and
amici.
Third, as discussed in the NPRM, rulemaking has allowed us to
address these issues without depending on the participation and
argument of parties in a specific case, and without allowing the
developments of a pending case to ``moot'' the issues. One commenter
challenges this notion, arguing that the Board can avoid mootness by
refusing to allow parties to withdraw cases or concede issues in
adjudication.\14\ That commenter also contends that the existence of
live controversies involving particular parties demonstrates that an
issue is important to labor-management relations and merits Board
resolution via adjudication.\15\
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\14\ Comment of AFL-CIO (citing, e.g., 800 River Road Operating
Co. d/b/a Care One at New Milford, 368 NLRB No. 60 (2019)).
\15\ Comment of AFL-CIO.
---------------------------------------------------------------------------
As discussed in greater detail in the NPRM, developments in
specific cases have mooted some of the very issues covered by this
rulemaking. See 84 FR at 39937 (citing Loshaw Thermal Technology, LLC,
Case 05-CA-158650). As the commenter suggests, the Board has the
discretion to refuse to allow parties to withdraw cases or to concede
issues in a particular case. However, the existence of live
controversies in adjudication of an issue does not mean that we lack
the discretion to choose rulemaking as the means to address that issue.
In addition, as discussed in the NPRM, this particular rulemaking has
allowed us to address, in a single proceeding, three related election-
bar issues that have not arisen--and likely would not arise--in the
adjudication of a single case.
Fourth, as discussed in the NPRM, establishing the new standards in
the Board's Rules and Regulations will enable employers, unions, and
employees to plan their affairs with greater certainty that significant
changes to these areas of the law will not be made, and retroactively
applied, in adjudication of a case to which they are not parties and
about which they may be unaware. NLRB v. Wyman-Gordon Co., 394 U.S.
759, 777 (1969) (Douglas, J., dissenting) (``The rule-making procedure
performs important functions. It gives notice to an entire segment of
society of those controls or regimentation that is forthcoming.'').
Specifically, rulemaking enables the Board to provide the regulated
community greater certainty beforehand, as the Supreme Court has
instructed that we should do. First Nat'l Maint. Corp. v. NLRB, 452
U.S. 666, 679 (1981).
The same commenter also claims that the Board's recent increased
use of rulemaking rather than waiting for actual controversies to arise
threatens to open the floodgates of policy oscillation. The claim is
purely speculative, and runs counter to the general perception that
rulemaking should diminish policy oscillation because it is harder to
change policy through rulemaking than through adjudication.\16\ The
commenter also contends that the Board fails to explain why rulemaking
is appropriate here when the Board is not using it in numerous other
areas, and that many of the stated reasons for proceeding through
rulemaking in this context would apply in other contexts as well.\17\
However, even if rulemaking is appropriate in other areas, that does
not require us to use rulemaking in all areas where it would be
appropriate, let alone all at once. Cf. Mobil Oil Expl. & Producing Se.
Inc. v. United Distrib. Cos., 498 U.S. 211, 231 (1991) (``[A]n agency
need not solve every problem before it in the same proceeding.'');
Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety
Admin., 429 F.3d 1136, 1147 (D.C. Cir. 2005) (``Agencies surely may, in
appropriate circumstances, address problems incrementally.''). And, as
stated above, ``the choice between rulemaking and adjudication lies in
the first instance within the Board's discretion.'' NLRB v. Bell
Aerospace Co., 416 U.S. at 294. Thus, this comment does not demonstrate
that rulemaking is inappropriate here.
---------------------------------------------------------------------------
\16\ See, e.g., Samuel Estreicher, Policy Oscillation at the
Labor Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163 (1985).
\17\ Comment of AFL-CIO.
---------------------------------------------------------------------------
In sum, we continue to believe that use of the rulemaking process
here is an appropriate exercise of the Board's discretion and will be
beneficial in ways that adjudication cannot be.
B. Board Members' Alleged Closed-Mindedness and Motives
Some commenters allege that the current Board Members have not
shown an open mind and willingness to revise the wording proposed in
the NPRM in light of public input because each Member previously has
expressed a desire to revise the policies under consideration.\18\ For
the reasons that follow, we reject these contentions. We assure the
public that each participating
[[Page 18372]]
Board Member has approached this rulemaking with an open mind.
---------------------------------------------------------------------------
\18\ Comment of AFL-CIO (citing Pinnacle Foods Group, LLC., Case
14-RD-226626, 2019 WL 656304, at *1 fn. 1 (Feb. 4, 2019) (Chairman
Ring and Member Kaplan); United Food & Commercial Workers, Local No.
951, Case 07-RD-228723, 2019 WL 1879483, at *1 fn.1 (April 25, 2019)
(Chairman Ring and Member Emanuel); Heavy Materials, LLC., Case 12-
RM-231582, 2019 WL 2353690, at *1 fn.1 (May 30, 2019) (Members
Kaplan and Emanuel); G.F. Paterson Foods, LLC, Case 22-RD-210352,
2018 WL 509465, at *1 fn.1 (Jan. 19, 2018) (Members Kaplan and
Emanuel); Leggett & Platt, Inc., Case 09-RD-200329, 2018 WL 509463,
at *1 fn.1 (Jan. 19, 2018) (Member Kaplan); Calportland Arizona
Materials Division, Case 28-RD-206696, 2018 WL 571496, at *1 fn.1
(Jan. 24, 2018) (Members Kaplan and Emanuel); Covanta Essex Co.,
Case 22-RD-199469, 2018 WL 654848, at *1 fn.1 (Jan. 30, 2018)
(Members Kaplan and Emanuel); Wismettac Asian Foods, Inc., Case 21-
RC-204759, 2018 WL 774103, at *1 n.1 (Feb. 6, 2018) (Member Kaplan);
Apple Bus Co., Case 19-RD-216636, 2018 WL 3703490, at *1 fn.1 (May
9, 2018) (Members Kaplan and Emanuel); Kloeckner Metals Corp., Case
15-RD-217981, 2018 WL 2287088, at *1 fn.1 (May 17, 2018) (Members
Kaplan and Emanuel); Bemis N.A., Case 18-RD-209021, 2018 WL 2440794,
at *1 fn.1 (May 29, 2018) (Member Emanuel); Janus Youth Programs,
Inc., Case 19-RM-216426, 2018 WL 2461411, at *1 fn.1 (May 31, 2018);
Arh Mary Breckinridge Health Services, Inc., Case 09-RD-217672, 2018
WL 3238969, at *1 fn.1 (June 29, 2018) (Chairman Ring and Member
Kaplan); American Medical Response, Case 10-RC-208221, 2018 WL
3456223, at *1 fn.1 (July 17, 2018) (Chairman Ring and Member
Emanuel); Apple Bus Co., Case 19-RD-216636, 2018 WL 3703490, at *1
fn.1 (Aug. 2, 2018) (Chairman Ring and Member Kaplan); Columbia
Sussex, Case 19-RD-223516, 2018 WL 4382911, at *1 fn.1 (Sept. 12,
2018) (Chairman Ring and Member Kaplan); Westrock Services, Inc.,
Case 10-RD-195447, 2017 WL 4925475, at *1 fn.1 (Oct. 27, 2017)
(Members Kaplan and Emanuel); ADT Security Services, Case 18-RD-
206831, 2017 WL 6554381, at *1 fn.1 (Dec. 20, 2017) (Members Kaplan
and Emanuel). See also Comment of United Food and Commercial Workers
International Union, AFL-CIO (UFCW) (citing L&L Fabrication, Case
16-RD-232491, 2019 WL 1800677, at *1 fn. 1 (April 22, 2019)
(Chairman Ring and Member Emanuel); Embassy Suites by Hilton,
Seattle Downtown Pioneer Square, Case 19-RD-223236, 2019 WL 656277,
at *1 fn. 1 (Jan. 15, 2019) (Chairman Ring and Member Kaplan); Heavy
Materials, LLC, supra; Pinnacle Foods Group, LLC, supra; Loshaw
Thermal Technology, LLC, Case 05-CA-158650, 2018 WL 4357198
(soliciting briefs addressing proposed changes to the Sec. 8(f)-to-
9(a) conversion doctrine)).
---------------------------------------------------------------------------
``[A]n individual should be disqualified from rulemaking only when
there has been a clear and convincing showing'' that the official ``has
an unalterably closed mind on matters critical to the disposition of
the proceeding.'' Air Transp. Ass'n of America, Inc. v. NMB, 663 F.3d
476, 487 (D.C. Cir. 2011) (quoting C & W Fish Co. v. Fox, 931 F.2d
1556, 1564 (D.C. Cir. 1991)). Moreover, ``[a]n administrative official
is presumed to be objective and `capable of judging a particular
controversy fairly on the basis of its own circumstances.' ''
Steelworkers v. Marshall, 647 F.2d 1189, 1208 (D.C. Cir. 1980) (quoting
United States v. Morgan, 313 U.S. 409, 421 (1941)). Further,
``[w]hether the official is engaged in adjudication or rulemaking,''
the fact that he or she ``has taken a public position, or has expressed
strong views, or holds an underlying philosophy with respect to an
issue in dispute cannot overcome that presumption.'' Id. That
presumption also is not overcome ``when the official's alleged
predisposition derives from [his or] her participation in earlier
proceedings on the same issue.'' Id. at 1209. Expanding on the latter
point, the D.C. Circuit has explained that ``[t]o disqualify
administrators because of opinions they expressed or developed in
earlier proceedings would mean that `experience acquired from their
work . . . would be a handicap instead of an advantage.' '' Id.
(quoting FTC v. Cement Inst., 333 U.S. 683, 702 (1948)). More recently,
the D.C. Circuit has similarly emphasized that it would ``eviscerate
the proper evolution of policymaking were we to disqualify every
administrator who has opinions on the correct course of his agency's
future actions.'' Air Transp. Ass'n of America, Inc., 663 F.3d at 488
(quoting C & W Fish Co., 931 F.2d at 1565).
Accordingly, the fact that the Board Members previously have
expressed views on the subjects of this rulemaking is insufficient to
demonstrate that they have engaged in this rulemaking with unalterably
closed minds. See Air Transp. Ass'n of America, Inc., 663 F.3d at 487-
488; Steelworkers, 647 F.2d at 1208-1209. Indeed, after considering all
of the submitted comments, we have revised the proposed rule in various
respects. This in itself demonstrates that the Members did not engage
in this endeavor with unalterably closed minds.
One commenter contends that although the Board's stated goal is to
protect employees' rights, in many recent cases the Board has sought to
destabilize bargaining relationships and to allow employers to
undermine unions, often under the guise of protecting employee
choice.\19\ We do not agree that either this rule or the cited, recent
cases demonstrate an intention to destabilize bargaining relationships
or to allow employers to undermine unions. Nor do we believe that
either this rule or the cited cases are likely to have those effects.
Accordingly, we disagree with this comment.
---------------------------------------------------------------------------
\19\ Comment of UFCW (citing Mike-Sell's Potato Chip Co., 368
NLRB No. 145 (2019); Valley Hospital Medical Center, Inc. d/b/a
Valley Hospital Medical Center, 368 NLRB No. 139 (2019); MV
Transportation, Inc., 368 NLRB No. 66 (2019); Johnson Controls,
Inc., 368 NLRB No. 20 (2019); Metalcraft of Mayville, Inc., 367 NLRB
No. 116 (2019); Raytheon Network Centric Systems, Inc., 365 NLRB No.
161 (2017)).
---------------------------------------------------------------------------
Other commenters contend that here and in other areas, the Board is
using rulemaking simply to reverse precedent that it does not like.\20\
However, like case adjudication, rulemaking involves reasoned decision-
making, conducted within the constraints of the APA and subject to
judicial review. As demonstrated here and below, we have carefully
considered all comments with an open mind, and we believe that the
final rule we have formulated represents our reasoned determination
regarding the appropriate standards for furthering the various policies
discussed herein, including--and especially--protecting employee free
choice.
---------------------------------------------------------------------------
\20\ Comments of AFL-CIO; UFCW.
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C. Alleged Procedural Errors
One commenter claims that the Board committed procedural errors in
two ways. First, the commenter claims that the Board majority did not
provide the dissenting Member adequate time to prepare her dissent,
citing her statement that she had not been given sufficient time to
review all of the relevant data in the appendices to the NPRM.\21\
Second, the commenter claims that the Board did not provide interested
parties adequate time to prepare their comments on the proposed
rule.\22\ Specifically, the commenter notes that the Board denied its
third motion for an additional 30 days to file comments, despite the
fact that the commenter still had six Freedom of Information Act (FOIA)
requests pending before the Board.\23\ According to the commenter, the
documents that it has sought are essential to evaluate both the
empirical foundation of the proposed rule and the integrity of the
rulemaking process.\24\
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\21\ Comment of AFL-CIO (citing 84 FR at 39947 fn. 74). See also
Comment of Senator Patty Murray.
\22\ Comment of AFL-CIO.
\23\ Comment of AFL-CIO. As the commenter acknowledges, the
Board provided responsive documents to its other FOIA requests
before the extended comment period closed.
\24\ Comment of AFL-CIO.
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As an initial matter, we reject the unsubstantiated claim of the
dissenting Member that she lacked adequate time to prepare her
dissent.\25\ Moreover, the Board has previously stated that it ``does
not believe that it is required, either by law or agency practice, to
delay the adoption and publication of a final rule in order to
accommodate a dissenting Member. Nothing in the APA compels that course
of action, nor does the National Labor Relations Act demand it. Neither
do the Board's rules, statements of procedure, internal operating
procedures, or traditional practices, which do not address the internal
process of rulemaking, compel such action.'' Representation--Case
Procedure, 76 FR 80138, 80146 (Dec. 22, 2011) (footnotes omitted).
There is no reason that this observation should not apply with equal
force to issuance of an NPRM. In any event, however, we assure the
public that Member McFerran was provided sufficient time to prepare her
dissent.
---------------------------------------------------------------------------
\25\ Accord Air Trans. Ass'n of America, Inc. v. NMB, 663 F.3d
at 487-488 (court denied challenge to National Mediation Board's
rule based on majority's action providing dissenter only 24 hours to
consider and prepare dissent, which she did).
---------------------------------------------------------------------------
Further, the evidence that Member McFerran stated she lacked
sufficient time to address was the supplemental Board data cited in
reference to a prior non-Board study and expressions of concern by two
respected academics about the adverse impact of the blocking-charge
policy. See 84 FR at 39933, 39947. Some of the same data is at issue in
the cited items sought in the commenter's FOIA request.\26\ As
discussed in Section III.E. below, even accepting that some of the data
that the NPRM cited is flawed, we continue to believe that the record
supports finding a systemic problem of unacceptable election delays
resulting from the
[[Page 18373]]
blocking-charge policy.\27\ We also note that Member McFerran was able
to prepare a comprehensive ``preliminary'' review of blocking-charge
information for Fiscal Years 2016 and 2017 independent of the data
relied on by the majority or provided to the public in the past. 84 FR
at 39943-39944. Likewise, during the comment period, Professor John-
Paul Ferguson prepared an extensive review of data provided to the AFL-
CIO that was appended to its comment. Yet another review critical of
the Board majority's analysis in the NPRM was prepared by Bloomberg Law
and cited by commenters in opposition to the proposed blocking-charge
rule.\28\ Consequently, there is no basis for finding that the
dissenting Board Member was prejudiced by the alleged lack of time to
review the data originally cited or that, with respect to its FOIA
requests 2, 5, or 13, the commenter was prejudiced by the denial of its
request for an extension of time.\29\
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\26\ The commenter's Request #2 seeks ``[a]ny document that
contains or evidences any analysis of the impact of the adoption of
29 CFR 103.20 on the number of blocking charges, the time needed to
process blocking charges, the delay caused by blocking charges, or
any other case processing outcomes.'' AFL-CIO's Aug. 29, 2019 FOIA
Request at 2. The commenter's Request #5 seeks ``[a]ny document
containing or evidencing any explanation of any decision to
aggregate multiple blocking periods (even when they ran or are
running concurrently) in producing the table in Appendix A [sic] to
the NPRM.'' Id. And the commenter's Request #13 seeks ``[a]ny
documents containing or evidencing a comparison of the disposition
of unfair labor practice charges filed by unions accompanied by or
followed by requests to block an election and the disposition of
unfair labor practice charges filed by unions not accompanied or
followed by such a request.'' Id. at 3.
\27\ As the AFL-CIO concedes: ``Blocking elections delays
elections. That is undeniably true and requires no `statistical
evidence' to demonstrate.'' Comment of AFL-CIO at 5.
\28\ See Alex Ebert and Hassan A. Kanu, Federal Labor Board Used
Flawed Data to Back Union Election Rule, Bloomberg Law (Dec. 5,
2019), https://news.bloomberglaw.com/daily-labor-report/federal-labor-board-used-flawed-data-to-back-union-election-rule-1.
\29\ We emphasize that our response to this comment only
addresses the argument that the failure to provide remaining
requested documents was prejudicial to the commenter's ability to
evaluate the rulemaking process. We express no opinion concerning
whether any of the requested information is disclosable under FOIA.
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The commenter also requested ``[a]ny analysis of the effect or
impact of Dana Corp., 351 NLRB 434 (2007), other than those contained
in the opinions in Lamons Gasket, 357 NLRB 739 (2011).'' AFL-CIO's Aug.
29, 2019 FOIA Request at 3 (Request #19). However, in issuing the
final-rule amendment regarding the voluntary-recognition bar, we do not
rely on any data, or analysis of data, other than that discussed in
Dana and in Lamons Gasket, which we have fully considered. In these
circumstances, we find no basis for concluding that the commenter was
prejudiced by the denial of its request for an extension of time with
regard to this FOIA request.
Further, the commenter requested ``[a]ny documents containing or
evidencing any statement by any Board member concerning the validity,
wisdom or soundness of the Board's blocking[-]charge policy; Lamons
Gasket Co., 357 NLRB 739 (2011); Dana Corp., 351 NLRB 434 (2007); or
conversion of 8(f) to 9(a) relationships.'' AFL-CIO's Aug. 29, 2019
FOIA Request at 4 (Request #22). According to the commenter, the
requested documents are relevant to the Board Members' alleged
``predisposition and bias'' and their ability ``to fairly evaluate
comments as required by the APA.'' \30\ As discussed in Section III.B.
above, however, the mere fact that Board Members previously have
expressed opinions regarding these matters does not provide a basis for
concluding that they have approached these issues with closed minds.
That would be the case under applicable precedent even if we were
issuing a final rule identical to the proposed rule, but it is even
more clearly the case given that we have modified the proposed rule in
response to comments. Therefore, there is no basis for finding that the
commenter was prejudiced by not receiving this requested information
before the end of the comment period.
---------------------------------------------------------------------------
\30\ Comment of AFL-CIO.
---------------------------------------------------------------------------
Finally, one of the commenter's FOIA requests was for ``[a]ny
document containing or evidencing any limitations of the time allowed
Member McFerran to prepare her dissent to the NPRM, any limitations on
the access allowed Member McFerran to case processing information or
data she deemed necessary to prepare her dissent, or any limitations on
access to NLRB or General Counsel staff she deemed necessary to prepare
her dissent.'' AFL-CIO's Aug. 29, 2019 FOIA Request at 3 (Request #21).
As discussed above, however, we reject any suggestion that Member
McFerran had inadequate time to prepare her dissent. We likewise reject
the unfounded suggestion that there was any limitation on her ability
to access necessary resources to prepare that dissent.
Inasmuch as there is neither statutory authority nor binding Board
practice requiring that a dissenting member has the right to any amount
of time to prepare a dissent, the material question here is simply
whether the commenters have had sufficient time to provide their
comments. Preliminarily, the APA provides no minimum comment period,
and many agencies, including the Board in past rulemaking proceedings,
have afforded comment periods of only 30 days. Agencies have discretion
to provide still shorter periods and are simply ``encouraged to provide
an appropriate explanation for doing so.'' Admin. Conference of the
U.S., Recommendation 2011-2, Rulemaking Comments, 76 FR 48791 (Aug. 9,
2011).
As noted previously, the NPRM, which issued on August 12, 2019, set
an initial comment period of 60 days, with 14 additional days allotted
for reply comments. Although the APA does not require a reply period,
the Board provided it to give itself the best opportunity to gain all
information necessary to make an informed decision. Then, the Board
extended the comment and reply periods twice, for 90 additional days.
In sum, the Board has accepted comments on 3 proposed amendments to its
representation-case procedures for a total of 164 days.\31\ We believe
that the more than 80 comments submitted and the depth of analysis that
many of them provide, including the comment and reply from the AFL-CIO,
are a testament to the adequacy of the comment period. As such, we do
not believe that this commenter was prejudiced by the fact that, at the
closing of the extended comment period, the Board had not yet provided
all documents responsive to its broad FOIA request.
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\31\ We note that in a prior rulemaking of far greater scope,
involving 25 proposed amendments to a wide range of representation-
case procedures, the Board found that acceptance of comments on
these proposals for a total of 141 days, and 4 days of public
hearings, was adequate. See 79 FR at 74311.
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Accordingly, we reject the commenter's claims regarding alleged
procedural errors.
D. Matters Outside the Scope of This Rulemaking
Several commenters propose that we take various other actions,\32\
but because those actions are outside the scope of this rulemaking, we
decline to take them.\33\
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\32\ See Comments of Center on National Labor Policy, Inc.
(CNLP) (suggesting raising the Board's jurisdictional standards);
Anonymous (suggesting that the Board address the unfair labor
practice investigation process); National Federation of Independent
Business (NFIB) (suggesting proposing particular legislation to
Congress); Coalition for a Democratic Workplace (CDW) (suggesting
rulemaking to rescind and revise the Board's 2015 Election Rule).
\33\ However, with regard to the recommendation to rescind and
revise the Board's 2015 Election Rule, we note that we already have
revised that Rule in certain respects. See 2019 Election Rule, 84 FR
69524.
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E. Final-Rule Amendment Regarding Blocking-Charge Policy
The Board received numerous comments on the amendment concerning
the blocking-charge policy. We have carefully reviewed and considered
these comments, as discussed below.
1. Comments in Favor of, and Comments Opposed to, Changing the
Blocking-Charge Policy by Eliminating the Practice of Delaying
Elections
As stated above, the NPRM proposed that the current blocking-charge
policy be revised to provide that a request to block would no longer
delay the processing of an otherwise valid
[[Page 18374]]
petition and the timely conduct of an election. Under the proposed
rule, if the blocking charge is still pending upon conclusion of the
election, ballots would be impounded and not counted until there is a
final determination regarding the charge and its effect, if any, on the
election petition or fairness of the election.
Not surprisingly, the commenters on the blocking-charge policy tend
to fall into two sharply divided groups. Commenters in the first group
support the proposed modification and urge the Board to require regions
to process representation petitions despite a request to block based on
a pending unfair labor practice charge. One commenter cites the mandate
in Section 9(c) of the Act that, ``[i]f the Board finds . . . that . .
. a question of representation exists, it shall direct an election by
secret ballot and shall certify the results thereof.'' \34\ According
to this commenter, the blocking-charge policy is an administrative
fiction that the Board has used to evade its statutory
responsibility.\35\ A second commenter suggests that the blocking-
charge policy is contrary to Section 8(a)(2) of the Act, 29 U.S.C.
158(a)(2), because it permits unions to serve as employees'
representative where a majority of the employees do not support union
representation.\36\ And another commenter notes that, under the Act,
the Board may not defer representation proceedings to the General
Counsel, which is allegedly what occurs when the processing of
elections depends on whether the General Counsel issues a
complaint.\37\
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\34\ Comment of CNLP (quoting 29 U.S.C. 159(c)).
\35\ Id.
\36\ Comment of CDW.
\37\ Comment of CNLP.
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Several commenters cite the adverse impact on employees when they
are forced to wait indefinitely to vote in a representation
election.\38\ In this regard, commenters assert that delaying the
election punishes employees for the misconduct alleged in an unfair
labor practice charge, even if they had no role in that alleged
misconduct.\39\ Commenters also contend that an indefinite delay in an
election affects employees' vote when the election is finally held. For
instance, it causes some employees to perceive the Board and its
processes as futile.\40\ Further, the election's delay denies employees
the opportunity to vote while the issues surrounding the petition
effort for an election are fresh in their minds.\41\ Commenters also
echo the concern expressed in the NPRM about turnover in the workforce
during the delay caused by a blocking charge, with the result that
employees who supported the petition may not be the ones who vote on
the representation issue when the election is finally held.\42\ One
commenter notes the adverse effect of blocking-charge delays on
construction-industry employees working under a Section 8(f)
agreement--a majority of whom may never have supported the union
representative--who seek to decertify the union through a Board
election.\43\ One employee commenter notes his own frustration that,
for years, he was unable to vote in an election to remove an incumbent
union as his bargaining representative because the union filed unfair
labor practice charges.\44\ Meanwhile, a union local commenter
expresses support for modifying the blocking-charge policy because of
how important it is for employees to express their choice on union
representation without delays to create a more level playing field in
the organizing process.\45\
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\38\ Comments of Council on Labor Law Equality (COLLE);
Representatives Virginia Foxx and Tim Walberg; General Counsel Peter
Robb (GC Robb); CNLP; CDW; Chamber of Commerce (the Chamber).
\39\ Comments of Associated Builders and Contractors (ABC);
National Right to Work Legal Defense Foundation, Inc. (NRWLDF).
\40\ Comments of CDW; COLLE.
\41\ Comment of GC Robb.
\42\ Comment of COLLE; CDW.
\43\ Comment of CNLP.
\44\ Comment of Donald JJohnson.
\45\ Comment of International Brotherhood of Electrical Workers
Local 304 (Local 304).
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Some commenters argue that employers, too, are harmed when
meritless unfair labor practice charges block an election. One
commenter notes that, as the Board acknowledged in the NPRM, blocking
charges can deprive employers of the supposed ``safe harbor'' in filing
an RM election petition that the Board majority referenced in Levitz
Furniture Co. of the Pacific, 333 NLRB at 726, as an alternative to the
option of withdrawing recognition (which the employer selects at its
peril).\46\ Another commenter notes the adverse effect on an employer
signatory to a construction-industry collective-bargaining agreement
negotiated under Section 8(f) by a union without majority support.
Although an election petition can be filed at any time during the
contract term, a blocking charge can indefinitely postpone an election
that could result in decertification of the union and voiding the
contract.\47\ One commenter also states that when meritless unfair
labor charges are filed to delay an election, the Board must needlessly
waste its resources in conducting a pointless investigation, and
employers are forced to expend limited funds in defending against such
allegations.\48\
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\46\ Comment of CDW.
\47\ Comment of CNLP.
\48\ Comment of NRWLDF.
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Several commenters assert the current blocking-charge policy is too
often used as an attempt to rig the rules.\49\ One commenter notes that
blocking charges overwhelmingly affect decertification elections, and
that those elections are delayed the longest.\50\ Another commenter
compares the current policy to an incumbent U.S. officeholder being
able to decide when and under what circumstances to submit to a future
election.\51\ According to some commenters, this is because a union,
aware of a lack of employee support, may simply choose to file an
unfair labor practice charge to forestall an election, potentially for
as long as necessary until it believes it can prevail.\52\ In addition
to receiving a temporary delay, the union may hope that, by chance, a
regional director's investigation may discover evidence of other
conduct that becomes the basis for issuing a complaint that delays the
election even longer.\53\ One commenter claims that the passage of
time, employee turnover, and other changed circumstances may give the
union the chance of hanging on as employees, exasperated by their
inability to obtain an election, decide to leave.\54\ Additionally, one
commenter contends, the union continues to represent the employees
indefinitely and may use that time to pressure them into voting for it,
if an election ever does occur.\55\ According to one commenter,
employee free choice eventually turns into employees having no choice
at all because the union effectively gets to decide whether an election
is held--and the union will always pick its own survival over the
preference of unit employees.\56\ Thus, one commenter notes, the
current policy leads to an undemocratic charade that forces employees
to endure a prolonged, if not futile, wait before being able to
exercise their right to express their free choice as to whether to be
represented.\57\
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\49\ Comments of GC Robb; NRWLDF; the Chamber.
\50\ Comment of CDW.
\51\ Comment of COLLE.
\52\ Comments of COLLE; Representatives Foxx and Walberg;
NRWLDF.
\53\ Comment of NRWLDF.
\54\ Comment of CDW.
\55\ Comment of the Chamber.
\56\ Comment of NRWLDF.
\57\ Comment of Representatives Foxx and Walberg.
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The group of commenters opposed to change in the current blocking-
charge
[[Page 18375]]
policy focus on situations where an allegedly meritorious unfair labor
practice charge taints a representation petition or otherwise spoils
laboratory conditions for conducting an election, thereby preventing
employees from making a truly free choice as to union representation.
Some of those commenters argue that it would be inconsistent with
Section 9(c) of the Act for a regional director to process a
representation petition in those circumstances because the regional
director would not have ``reasonable cause to believe'' that a question
of representation exists--a prerequisite to an election under Section
9(c).\58\ One commenter claims that a meritorious unfair labor practice
charge alleging that an employer unlawfully instigated or supported a
petition to displace an incumbent union precludes a question of
representation because, in those circumstances, the employer has
improperly circumvented Congress's intent--set forth in Section
9(c)(1)--to allow employers to file only RM petitions.\59\ That same
commenter also states that a meritorious unfair labor practice charge
alleging that an employer violated Section 8(a)(5) by ceasing to
recognize and bargain with the incumbent union precludes a question of
representation because displacing the union through an election would
be inconsistent with the Board's obligation to remediate the Section
8(a)(5) violation with a bargaining order.\60\ Finally, the commenter
states that a meritorious unfair labor practice charge against an
employer that caused the union's loss of majority support precludes a
question of representation because the required showing of interest
would be supported by coerced evidence.\61\ Relatedly, another
commenter states that, where certain unlawful conduct has been
committed, conducting elections would be a betrayal of the Board's
statutory responsibility.\62\
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\58\ Comments of AFL-CIO; Workers United, SEIU; Communication
Workers of America, AFL-CIO (CWA).
\59\ Comment of Workers United.
\60\ Id.
\61\ Id.
\62\ Comment of Economic Policy Institute (EPI). Another
commenter contends that processing a representation petition where
there is an unfair labor practice allegation that previously would
have blocked an election would violate the First and Fourteenth
Amendments to, and the Take Care Clause of, the U.S. Constitution,
and that it also raises separation-of-powers concerns. See Comment
of National Nurses United (NNU) (citing Thomas v. Collins, 323 U.S.
516 (1945)). This commenter does not explain its argument, and the
cited decision does not support the commenter's claim. Thus, we
reject this claim as unsupported.
---------------------------------------------------------------------------
Several commenters assert various ways in which holding an election
in spite of a blocking-charge request would harm employees voting in
the election. In this connection, commenters contend that, after
employees have been coerced to vote against the union in an initial
election that has been set aside based on conduct subject to the
blocking charge, the union will be forced to convince them to change
their minds in a rerun election.\63\ One commenter states generally
that pollsters and statisticians who study cognitive biases have shown
the long-term effect of coercive behavior.\64\ Another commenter
asserts that it is unfair to hold an election while employees do not
know whether the unfair labor practice charge has merit.\65\
Additionally, several commenters express concerns that having employees
vote in elections that are set aside will engender a belief that
exercising rights under the Act is futile, or that Board elections are
somehow fixed.\66\ Other commenters contend that holding an election
while the unfair labor practice charge is pending creates an impression
that the charge necessarily lacks merit, based on the belief that the
Board would not spend the time, money, and other resources on an
initial election if it believes that it might need to hold a rerun
election.\67\ Another commenter states that the Supreme Court
recognized in NLRB v. Gissel Packing Co., 395 U.S. at 575, that
employees cannot ``freely determine whether they desire a
representative'' where the employer has committed unfair labor
practices that undermined the union's support and impeded the holding
of a free and fair election.\68\ Some commenters complain that the
proposed rule provides for holding an election even if an employer has
engaged in egregious misconduct, such as threatening to shoot any
employee voting for union representation.\69\
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\63\ Comments of SEIU; AFL-CIO; Kimberly Holdiman; NNU; United
Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO (UA);
American Federation of Teachers, AFL-CIO (AFT); CWA; Utility Workers
of America, AFL-CIO (UWUA).
\64\ Comment of International Union of Operating Engineers
(IUOE).
\65\ Comment of Jay Youngdahl.
\66\ Comments of SEIU; UFCW; UA; LIUNA Mid-Atlantic Regional
Organizing Coalition (LIUNA MAROC).
\67\ Comments of CWA; Senator Murray.
\68\ Comment of International Brotherhood of Electrical Workers,
AFL-CIO, CLC (IBEW).
\69\ Comments of SEIU; IUOE; Michigan Regional Council of
Engineers and Millwrights (MRCC); Senator Murray.
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Commenters also assert that it would be an arbitrary waste of
agency and party resources to conduct elections that will have to be
invalidated, such as where the employer indisputably assisted with or
actually solicited petition signatures.\70\ And other commenters argue
that conducting an election will not serve any purpose because a union
would not be certified or decertified any sooner. Votes will remain
impounded until resolution of the pending blocking-charge
allegations.\71\
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\70\ Comments of AFL-CIO; NNU; UFCW; UA; IBEW; AFT; Senator
Murray; American Federation of State, County and Municipal Employees
(AFSCME); EPI.
\71\ Comments of AFL-CIO; Youngdahl; LIUNA MAROC.
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Several commenters also assert that the proposed modification of
blocking-charge policy is not supported by empirical data under the
current policy that would be relevant to a determination of how many
blocking charges were meritorious.\72\ Commenters also criticize
inaccuracies in statistics cited by the Board majority in the NPRM with
respect to the number of cases where petitions have been blocked and
the length of time they were blocked under the current policy.\73\ Some
commenters state that the Board has failed to consider statistics
showing that evidentiary requirements implemented in the 2015 Election
Rule have sufficiently addressed any concerns about the current
blocking-charge policy.\74\ Finally, some commenters contend that the
Board's concern about election delay resulting from the blocking-charge
policy is inconsistent with the election delays that will result when
the 2019 Election Rule takes effect.\75\
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\72\ Comments of AFL-CIO; IUOE; LIUNA MAROC; Senator Murray;
SEIU; UA; UFCW.
\73\ Comments of AFL-CIO; AFT; IBEW; MRCC; SEIU; UA; UFCW.
\74\ Comments of AFSCME; AFL-CIO; CWA; IBEW; Youngdahl; UFCW;
Professor Alexia Kulwiec.
\75\ Comments of AFT; EPI; SEIU, Local 32BJ (Local 32BJ); UFCW;
UWUA; Professor Kulwiec.
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Having thoroughly considered the foregoing comments, we agree with
those who contend that the current blocking-charge policy must be
modified to provide for the timely processing of an otherwise valid
petition, at least to the point of conducting an election. We remain of
the view expressed in the NPRM that this approach ``best satisfies the
goal of protecting employee free choice . . . by assuring that
petitions will be processed to an election in the same timely manner as
in unblocked[-]petition cases.'' 84 FR at 39938. Accordingly, the
final-rule amendment provides that a blocking-charge request will no
longer delay the conduct of an election in any case. As discussed in
the following
[[Page 18376]]
section, however, we also agree with comments suggesting that the vote-
and-impound procedure proposed in the NPRM need only apply to a limited
class of charges and that in all other cases votes should be counted
upon conclusion of the voting.
Initially, we disagree with the contention, advanced by several
commenters opposing the proposed rule, that the Board lacks the
statutory authority to direct elections in the face of some, or even
all, blocking charges. Section 9(c)(1) provides that the Board ``shall
direct an election'' if it finds that ``a question of representation
exists.'' It makes no reference to the effect of a pending unfair labor
practice charge on an otherwise valid election petition. Similarly, the
Board's current election rules, implemented in 2015, state that ``[a]
question of representation exists if a proper petition has been filed
concerning a unit in which an individual or labor organization has been
certified or is being currently recognized by the employer as the
bargaining representative.'' 29 CFR 102.64(a).\76\ Consistent with this
definition, the existence of a question concerning representation is
not per se affected by the pendency of a charge alleging conduct that,
if proven, would interfere with employee free choice in the election.
If it were, then the Board would lack the discretion to direct an
election if such charges were pending, regardless of whether a request
to block has been made--a position wholly at odds with the Board's
longstanding procedures, which allow elections to take place despite
the pendency of charges in certain circumstances, even Type II
charges.\77\ Indeed, longstanding Board procedures permit the
processing of a petition and conduct of an election at the discretion
of the charging party who files an unfair labor practice charge or at
the discretion of the regional director upon consideration of whether
circumstances permit an election in spite of pending charges.\78\
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\76\ The Board's 2019 Election Rule revisions to its existing
election rules relevantly state: ``A question of representation
exists if a proper petition has been filed concerning a unit
appropriate for the purpose of collective bargaining or concerning a
unit in which an individual or labor organization has been certified
or is being currently recognized by the employer as the bargaining
representative.'' 84 FR 69524, at 69593 (December 18, 2019) (to be
codified at 29 CFR 102.64(a)). The minor differences between the
2015 and 2019 rules do not affect our analysis of the issues
presented here.
\77\ Type II Blocking Charges are charges that affect the
petition or showing of interest, that condition or preclude a
question concerning representation, or that taint an incumbent
union's subsequent loss of majority support. NLRB Casehandling
Manual (Part 2) Representation Proceedings Sec. 11730.3 (Jan. 2017).
\78\ See NLRB Casehandling Manual (Part 2) Representation
Proceedings Sec. 11731.2, .5, and .6. We note that our final-rule
amendment of blocking-charge policy does not alter current law
requiring that allegations that the individual filing a
decertification petition is a supervisor raise jurisdictional issues
that must be resolved in the representation case before an election
may be directed. See Modern Hard Chrome Service Co., 124 NLRB 1235,
1236-1237 (1959).
---------------------------------------------------------------------------
Turning to the fundamental issue whether any of the unproven unfair
labor practice charges currently described as Type I and II charges in
the Board's Casehandling Manual (Part 2) Representation Proceedings
should be allowed to block the immediate processing of a petition and
conduct of an election, we agree with the commenters who contend that,
in some cases, meritless unfair labor practice charges are filed to
prevent employees from exercising their right to vote. As some
commenters note, ending the policy of blocking elections reduces the
incentives for filing meritless unfair labor practice charges and the
uncertainty as to whether employees would ever have the opportunity to
vote.\79\ At the very least, as one commenter noted, it would prompt
unions to think twice before filing meritless unfair labor practice
charges because they would not be able to unnecessarily deprive
employees of their right to express their free choice.\80\
---------------------------------------------------------------------------
\79\ Comments of CDW; the Chamber.
\80\ Comment of the Chamber.
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Further, as discussed in the NPRM, several federal appellate courts
have expressed concerns about the impact of meritless unfair labor
practice charges blocking elections. See NLRB v. Hart Beverage Co., 445
F.2d at 420 (``[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
at 1069 (``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 at 672 (``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 at 710
(``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 at 882 (``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.'').
We believe that it would be inappropriate for the Board to continue
to disregard these valid concerns that the current blocking-charge
policy encourages such gamesmanship, allowing unions to dictate the
timing of an election for maximum advantage in all elections presenting
a test of representative status.\81\ The Board has long been aware of
the potential--and actuality--of such gamesmanship and has taken
certain measures to discourage it. Section 11730 of the Board's current
Casehandling Manual for representation proceedings states that ``it
should be recognized that the policy is not intended to be misused by a
party as a tactic to delay the resolution of a question concerning
representation raised by a petition.'' Further, while declining to
modify the blocking-charge
[[Page 18377]]
policy in the 2015 Election Rule, the Board did state that it was
``sensitive to the allegation that at times, incumbent unions may abuse
the policy by filing meritless charges in order to delay
decertification elections,'' \82\ and it sought to address that issue
by including a provision in Sec. 103.20 of the Board's Rules and
Regulations requiring that a charging party that files a blocking
request must simultaneously provide an offer of proof with names of
witnesses and a summary of their anticipated testimony.
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\81\ As comments make clear, the discretionary ability of a
union to affect the timing of an election through a blocking charge
exists not only for decertification election (RD) and
deauthorization (UD) petitions filed by individual employees, but
also for representation-election petitions filed by a union (RC) or
employer (RM).
\82\ 79 FR at 74419.
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We agree that this new evidentiary requirement would likely
facilitate the quick elimination of obviously meritless charges and
blocking requests based on them, and thereby permit processing of some
petitions with minimal delay. We also accept as plausible the
contention by some commenters that the requirement may be partly
responsible for a decline in blocked petitions since implementation of
the 2015 Election Rule.\83\ But even assuming the decline is, to some
extent, attributable to the offer-of-proof requirement, we nevertheless
find that this decline alone does not justify adherence to the current
blocking-charge policy. A regional director typically acts on a
blocking-charge request soon after the request is made, if not on the
same day, and a charge that appears facially sufficient based on an
offer of proof may yet be dismissed as meritless after full
investigation or may ultimately be withdrawn. Meanwhile, under the
current policy, an election is delayed until that happens.
---------------------------------------------------------------------------
\83\ The statistical summary from Professor John-Paul Ferguson
appended to the Comment of AFL-CIO shows a decline but proves no
certain basis for inferring the cause of decline.
---------------------------------------------------------------------------
Further, our concerns and those expressed by commenters about the
current policy extend to meritorious charges as well. Proponents of the
current policy take a broad view of what constitutes a meritorious
blocking charge. They would include any charge under investigation by
the regional director that is not facially meritless and alleges
conduct that could reasonably affect the election results or the
validity of the election petition. Necessarily, then, they would
include any charge on which a regional director decides to issue a
complaint, regardless of whether a violation of the Act would
ultimately be proven. Based on comments supportive of the dissent's
statistical survey in the NPRM, they would also define as meritorious
any blocking charge that resulted in a settlement, without inquiry into
the terms of the settlement agreement.\84\ In other words, they view
any charge of conduct potentially affecting the validity of a petition
or the outcome of an election as presumptively meritorious, for
purposes of blocking an election, until it is dismissed or withdrawn.
This view stands in sharp contrast to the Board's, for which a charge
is not meritorious unless admitted or so found in litigation. Thus,
from the Board's perspective, the current blocking-charge practice
denies 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. Moreover, even
assuming that some commenters are correct that for every meritless
charge there are two ``meritorious'' charges that have appropriately
blocked an election,\85\ this does not justify the very real
consequences that employees experience when unfair labor practice
charges indefinitely delay their ability to vote.
---------------------------------------------------------------------------
\84\ See List of FY 2016 and FY 2017 Petitions Blocked Pursuant
to Blocking Charge Policy in Dissent Appendix, https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/member-mcferran-dissent-appendix.pdf (last visited Mar. 23, 2020).
\85\ Comments of Workers United; AFL-CIO; IUOE; UFCW; Senator
Murray.
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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.\86\ 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.
---------------------------------------------------------------------------
\86\ Comments of Workers United; AFL-CIO; IBEW; AFT; UA; UFCW;
MRCC.
---------------------------------------------------------------------------
For instance, in Cablevision Systems Corp., 367 NLRB No. 59,
employees were forced to wait years for a regional director to process
a decertification petition because of a blocking charge--so long, in
fact, that the employee who filed the petition ultimately withdrew it
and the employees were denied the right to vote. That case was by no
means an anomaly. In ADT Security Services, No. 18-RD-206831, 2017 WL
6554381 (Dec. 20, 2017), the petitioner filed a decertification
petition after personally gathering the required showing of interest.
The union filed a blocking charge falsely alleging employer
involvement. Although the union eventually withdrew its frivolous
charge, it succeeded in blocking an election for several months.\87\
Likewise, in Arizona Public Service Co., No. 28-RD-194724, 2017 WL
2794208 (June 27, 2017), the petitioner filed a decertification
petition with the required showing of interest. The union filed a
blocking charge alleging employer involvement. The union eventually
withdrew the charge and lost the subsequent election but was successful
in delaying its ouster for nearly 3 months.\88\ Additionally, in
Pinnacle Foods Group, LLC, No. 14-RD-226626, 2019 WL 656304 (Feb. 2,
2019), the petitioner filed a decertification petition supported by the
requisite showing of interest. The union filed a charge alleging
employer involvement and the employer's failure to meet its bargaining
obligations. The region immediately blocked the petition without
seeking any input from the employer or the petitioner. Although the
region eventually issued a complaint on relatively minor violations of
the Act, it dismissed the allegations of employer involvement in
soliciting support for the decertification petition. Under the
blocking-charge policy, the regional director declined to process the
decertification petition, even though it was filed 18 months after the
union's certification and 12 months after the parties began
bargaining--but only days after the decertification petition was filed,
suggesting that its primary purpose was merely to forestall the
decertification election.\89\ Then, one commenter asserts, there is the
case of the employees at Apple Bus Co. in Soldotna, Alaska, who were
forced to wait years for a decertification election because of blocking
charges until the union ultimately disclaimed interest in continuing
representation.\90\
---------------------------------------------------------------------------
\87\ See Comment of NRWLDF.
\88\ See id.
\89\ Id.
\90\ Id. (citing Apple Bus Co., Case 19-RD-216636, 2019 WL
7584368 (Nov. 18, 2019)).
---------------------------------------------------------------------------
Cases such as these demonstrate how a blocking charge can postpone
an election, even for years, seriously
[[Page 18378]]
harming the interests of employees who wanted it. Although some
commenters assert that blocking charges are not to blame for the
unacceptably lengthy delay of elections in certain cases,\91\ it is
undisputed that blocking charges delay elections. In this regard, it
takes time for the General Counsel to investigate a charge and, on
occasion, to litigate a complaint based on the charge.\92\ We believe
that it is our obligation to prevent this needless delay of employees'
exercise of their right to express their free choice regarding union
representation in a timely held election.
---------------------------------------------------------------------------
\91\ Comments of AFL-CIO; UA.
\92\ Comment of CDW.
---------------------------------------------------------------------------
Additionally, we believe that 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 final rule. We also note that from
the Board's earliest years, it has set aside the results of 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
our extensive experience in handling election objections, we reject the
notion that employee free choice in a second election will invariably
be affected by a prior election loss set aside based on unfair labor
practices. That has not been the case in many rerun elections where
employees vote for union representation in a second or even third
election. In fact, contrary to the suggestion of some commenters, we
believe that when the Board orders a second election based on unfair
labor practices committed during the critical pre-election period, that
sends a positive signal to employees that the Board will protect their
free choice when the results of an actual election require doing so. In
addition, the Board holds rerun elections only at an appropriate time
after the original election is set aside--i.e., after the effects of
the unlawful or objectionable conduct have dissipated.\93\ We also note
that nothing in the Supreme Court's Gissel decision suggests the
inevitability of lingering effects preventing a fair rerun election,
much less that an election should be delayed or preempted prior to any
finding in adjudication that unfair labor practices have actually been
committed. To the contrary, that decision makes clear the Court's
implicit view that typically, fair elections can be held after an
employer has undisputedly committed unfair labor practices. A rerun
election remains the norm after a first election has been set aside
based on such misconduct. The extraordinary alternative of imposing an
affirmative bargaining order is warranted only when standard remedies
stand no or only a slight chance of ameliorating the lingering effects
of adjudicated serious unfair labor practices.\94\
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\93\ One commenter's claim that a federal district court in
Amirault v. Shaughnessy, No. H-84-113, 1984 WL 49161, at *4 (D.
Conn. Feb. 8, 1984), issued a temporary restraining order to halt a
union-affiliation election under the Labor Management Reporting and
Disclosure Act (LMRDA) because of what it speculated would be the
harmful effect of that election on any subsequent election has no
bearing on the issue here. That case not only is inapposite based on
its facts--which involved the effect of union-affiliation opponents
being denied the opportunity under the LMRDA to present their views
before the holding of a special convention vote--but it also was
reversed by the court of appeals, reported at 794 F.2d 676 (2d Cir.
1984) (table). See Reply Comment of AFL-CIO.
\94\ See NLRB v. Gissel Packing Co., supra, 395 U.S. at 610-616.
---------------------------------------------------------------------------
One commenter notes that, if an election is held but votes are
impounded, the workforce may change by the time the election results
are certified.\95\ As discussed below, our final-rule amendment retains
the proposed vote-and-impound procedure for only a limited category of
cases, but certification will in any event be postponed for some period
of time if a blocking charge is still pending when an election
concludes. In any event, the commenter's observation misses the
critical point that our concern is with the harmful effects on employee
free choice of election delay, rather than with any post-election delay
until a certification of results or representative issues. For various
reasons previously stated, blocking charges should neither prevent the
timely processing of an otherwise valid petition nor preclude those
employees who support it from participating in a timely-conducted
election. Considering these factors, we disagree with one commenter's
argument that we should maintain the status quo--and its attendant,
unnecessary delay in employees' exercise of free choice--because that
delay ``is a small price to pay.'' \96\ We find instead that it is far
too great a price for employees to pay.
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\95\ Comment of AFSCME.
\96\ Comment of Youngdahl.
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As stated above, several commenters allege that our expressed
concern about election delay resulting from the current blocking-charge
policy is inconsistent with the 2019 Election Rule.\97\ They claim that
we cannot seriously be concerned about preventing unnecessary delays in
the election process because we provided in that rulemaking for pre-
election review of unit-scope and voter-eligibility issues. Implicit in
this argument is an assumption that the changes made by that final rule
institutionalized ``unnecessary'' delays. We could not disagree more.
As stated in response to the dissent to that rule, the amendments made
there were based on the belief that ``the expedited processes
implemented in 2014 at every step of the election process . . .
unnecessarily sacrificed prior elements of Board election procedure
that better assured a final electoral result that is fundamentally
fairer and still provides for the conduct of an election within a
reasonable period of time from the filing of a petition.'' 84 FR at
69577. In contrast, the changes that the final rule here makes in the
blocking-charge policy do address unnecessary delay in the conduct of
an election without sacrificing safeguards against unfair labor
practice charges that might affect the election results. Further, in at
least some cases, the delay involved in blocking an election has been
months or years, far exceeding the additional days or weeks added to
the election processing timeframe by the 2019 Election Rule.
---------------------------------------------------------------------------
\97\ Comments of SEIU; EPI; Local 32BJ.
---------------------------------------------------------------------------
Some commenters assert that eliminating the policy of blocking
elections based on pending charges may force the Board to expend
additional resources in holding second elections that would not be
necessary if initial elections are delayed. We do not consider this to
be a waste by any means, and any consequential costs are worth the
benefits secured. Preliminarily, it is clearly not the case that unfair
labor practices alleged in a charge, even if meritorious, will
invariably result in a vote against union representation. If the union
prevails despite those unfair labor practices, there will be no second
election. In any event, one of the principal duties of the Board is 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.\98\ As the General Counsel has stated, ``any burden on the
Regions in conducting elections where the ballots may never be counted
is outweighed by the critical benefit of ensuring employee free
choice.''\99\
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\98\ Comment of CDW.
\99\ Comment of GC Robb.
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[[Page 18379]]
For the foregoing reasons (and those discussed in the NPRM), we
continue to believe that revising the blocking-charge policy to end the
practice of delaying an election represents a more appropriately
balanced approach to the issue of how to treat election petitions when
relevant unfair labor practice charges are pending. It ensures that
employees are able to express their preference for or against union
representation in a timely held Board election, while maintaining
effective means for addressing election interference. This is an
outcome that we believe we can, and should, guarantee for every
employee covered under the Act, while at the same time imposing minimal
burden on the parties to an election and, just as importantly, the
employees who vote in those elections.
2. Comments Regarding Other Alternatives
Several commenters contend that there are adequate existing
alternatives that make it unnecessary to abolish the blocking-charge
policy.
Some commenters observe that regional directors already have
discretion to decide to process a petition despite a pending unfair
labor practice charge.\100\ One commenter states that variation in the
exercise of such discretion is to be expected as a consequence of what
the commenter characterizes as a law-enforcement context of a
prosecutorial determination of merit in the blocking charge.\101\
Commenters suggest that, as an alternative to proceeding to an election
but impounding the ballots (or delaying the certification), the Board
could grant greater discretion to regional directors.\102\
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\100\ Comments of SEIU; Professor Kulwiec.
\101\ Comment of IUOE.
\102\ See, e.g., Comments of IUOE; CWA.
---------------------------------------------------------------------------
However, one commenter contends that currently, some regional
directors reflexively block elections in cases where unfair labor
practice charges are filed, even when the underlying offer of proof is
weak and the charges are patently frivolous, minor, and/or false.\103\
And one commenter asserts that regional directors act arbitrarily in
determining which types of charges should block an election by, for
instance, largely ignoring the election-related effects of unfair labor
practices committed by unions.\104\ Further, one commenter notes the
substantial inconsistency that already exists across regions, and
argues that the opportunity to vote in a timely-conducted election
should not depend on employees' geographic locations.\105\
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\103\ Comment of NRWLDF.
\104\ Id.
\105\ Comment of CDW.
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As reflected in these comments, and as discussed in the NPRM,
concerns have been raised about regional directors not applying the
current blocking-charge policy consistently, 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 at 1896-1897 (``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.'').
We do not believe that granting broader discretion to regional
directors is a preferable alternative to eliminating altogether the
policy of blocking an election based on an unfair labor practice
charge. As one commenter notes, the Board is entrusted with setting
national labor policy, and it would better fulfill that duty by
creating a uniform election schedule, notwithstanding any pending
unfair labor practice charges, than by giving regional directors even
more discretion to decide whether employees should have a timely
opportunity to vote in an election.\106\ As another commenter states,
the more that employees are left in the dark as to when--much less
whether--they will be able to vote, the further deprived they are of
laboratory conditions.\107\
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\106\ Comment of the Chamber.
\107\ Comment of COLLE.
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It is because of this need for uniformity that we also decline to
create an exception, as proposed by one of the commenters, to continue
to allow an election to be blocked when it is the petitioner who files
the unfair labor practice charge.\108\ Doing so would preserve the
opportunity for a petitioner to manipulate the timing of the election
for maximum advantage. If a petition is filed presenting a question of
representation, we believe the election should proceed regardless of
who files the petition, although certification may be delayed while the
unfair labor practice charge is resolved.
---------------------------------------------------------------------------
\108\ Comment of AFL-CIO.
---------------------------------------------------------------------------
Other commenters suggest that the expedited evidentiary requirement
for blocking charge requests adopted in the 2015 Election Rule is a
sufficient alternative to the proposed change. In this connection, some
commenters claim that the Board has not fully studied the effects of
that Rule, or that we should maintain the status quo for an indefinite
length of time because of that Rule.\109\ We reject those claims. As
one commenter suggests, at least some meritless unfair labor practice
charges are still being filed, notwithstanding the 2015 Election Rule's
requirement of a submission of a perfunctory offer of proof.\110\ In
any event, as previously discussed, the offer-of-proof requirement is
likely to result in prompt dismissal or withdrawal of only the most
obviously meritless charges. Beyond that, as also discussed, we find
that the better policy protective of employee free choice is to
eliminate blocking elections based on any pending unfair labor practice
charges, even those that may ultimately be found to have merit.
However, the final rule preserves the evidentiary requirements created
by the 2015 Election Rule.
---------------------------------------------------------------------------
\109\ Comments of SEIU; Professor Kulwiec; AFL-CIO; CWA; AFSCME;
IBEW.
\110\ Comment of CDW.
---------------------------------------------------------------------------
Finally, to the extent that the Board's recent decision in Johnson
Controls, Inc., 368 NLRB No. 20 (2019), addresses our concern about the
post-contract presumption of union majority support in the face of
contrary evidence, as one commenter suggests,\111\ that decision is not
a sufficient alternative to ending the blocking-charge policy. Even
under Johnson Controls, anticipatory withdrawals based upon evidence of
employee disaffection could still be as ineffective as the RM-petition
``safe harbor'' because a union could still file a charge blocking
employees from getting to vote in an election, while the employer may
feel compelled to retain the employees' existing terms and conditions
of employment out of concern that it may otherwise be engaging in
objectionable conduct.
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\111\ Comment of UFCW.
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3. Modifications to the Proposed Rule and Arguments Regarding
Settlements
Some commenters argue that a vote-and-impound procedure for all
unfair labor practice charges, as proposed in the NPRM, would not
provide the expected salutary effect that would come from a charging
party--fully aware of the results of the election--knowing that it was
acting either with
[[Page 18380]]
the support of or in the teeth of employees' wishes.\112\ In
particular, as one commenter notes, impoundment 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.\113\
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\112\ Comments of ABC; NRWLDF.
\113\ Comment of NRWLDF.
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After considering those arguments, we agree with commenters who
state that it would be preferable for ballots to be counted immediately
after the conclusion of the election, but holding the certification of
the election results in abeyance pending the resolution of the unfair
labor practice charge.\114\ Accordingly, the final rule makes that
change with regard to most categories of unfair labor practice charges.
---------------------------------------------------------------------------
\114\ Comment of the Chamber.
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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.\115\ We
believe that this 60-day period will reasonably provide sufficient time
for the General Counsel to investigate the charge and assess its merits
without substantially affecting employees' interests in knowing the
electoral outcome.\116\ Additionally, the final rule specifies that, if
a complaint issues with respect to the charge during the 60-day period,
then the ballots shall continue to be impounded until there is a final
determination regarding the charge and its effects, if any, on the
election petition. If the charge is found to have merit in a final
Board determination, we will set aside the election and either order a
second election or issue an affirmative bargaining order, depending on
the nature of the violation or violations found to have been committed.
If the charge is withdrawn or dismissed at any time during the 60-day
impoundment period, or if the 60-day period ends without a complaint
issuing, then the ballots shall be promptly opened and counted. The
final rule also specifies that, if unfair labor practice charges are
filed serially, the 60-day period will not be extended.
---------------------------------------------------------------------------
\115\ To the extent that some commenters suggest that we could
impose an outer limit on the duration of the General Counsel's
unfair labor practice investigation, we reject those suggestions as
beyond our authority. The Board retains the authority to determine
the timing of a representation election and disclosure of the
results of that election during the investigation of an unfair labor
practice charge, but the General Counsel has independent authority
under Sec. 3(d) of the Act to investigate the charge, without any
limitation on the length of that investigation. See Comments of AFL-
CIO; CWA.
\116\ We note that the NLRB's 2019 Performance and
Accountability Report states that in fiscal year 2019, the Agency's
regional offices processed unfair labor practice charges from filing
to disposition in a median of 74 days. NLRB, FY 2019 Performance and
Accountability Report 7, https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1674/nlrb-par-2019-design-508.pdf (last
visited Mar. 23, 2020). Moreover, we would expect that
investigations of charges triggering the vote-and-impound procedure
could be given priority and conducted expeditiously. These
considerations further support our conclusion that a 60-day limit on
the duration of ballot impoundment represents a reasonable
limitation on employees' interest in learning the outcome of the
vote.
---------------------------------------------------------------------------
In our view, these two different procedures--a vote-and-count
procedure for most categories of charges, and a vote-and-impound
procedure for some limited categories of charges--best accommodate the
various concerns that the commenters have raised while protecting the
rights that we are obligated to safeguard. For that reason, we reject
the assertion of some commenters that we have not attempted to balance,
or even quantify, the burden and the benefit in adopting these revised
procedures.\117\
---------------------------------------------------------------------------
\117\ Comments of AFL-CIO; UFCW.
---------------------------------------------------------------------------
Finally, we note that we received some comments regarding the
proposed rule's effects on settlements.\118\ However, the NPRM
expressly stated that the Board does not intend this rulemaking to
address other election-bar policies, including the settlement bar. 84
FR at 39931 fn. 3. Thus, the rule, by its terms, applies to requests to
block an election with an unfair labor practice charge, and it does not
apply where a party seeks to interpose a settlement agreement as a bar
to an election. Further, the types of settlements, and the
circumstances in which they can be reached, are myriad. For all of
these reasons, this rule does not address the effect of settlements or
disturb the Board's case law addressing the effects of various types of
settlements. Any possible changes in the law on those issues are left
for other proceedings. Cf. Mobil Oil Expl. & Producing Se. Inc., 498
U.S. at 231 (``[A]n agency need not solve every problem before it in
the same proceeding.''); Advocates for Highway & Auto Safety, 429 F.3d
at 1147 (``Agencies surely may, in appropriate circumstances, address
problems incrementally.''). We note that, under existing procedures
that this rule does not disturb, a party that files a request for
review of a decision and direction of election prior to the election
may request extraordinary relief in the form of, among other things,
impoundment of some or all of the ballots. See 29 CFR 102.67(j). Thus,
there is an existing mechanism that allows a request to keep the
ballots impounded in appropriate circumstances.
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\118\ Comments of SEIU; AFL-CIO; Local 32BJ.
---------------------------------------------------------------------------
F. Final-Rule Amendment Regarding Voluntary-Recognition Election Bar
The Board also received numerous comments on the proposed amendment
concerning the current immediate voluntary-recognition bar. We have
carefully reviewed and considered these comments, as discussed below.
1. Comments About Voluntary Recognition Relative to Board Elections
Two commenters state that voluntary recognition is ``favored,''
quoting NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th Cir.
1978).\119\ In addition, one commenter asserts that the Act does not
create separate bargaining obligations or ``different systems of
private ordering'' for unions based on whether they achieved their
status through voluntary recognition or certification.\120\ Further,
several commenters note that voluntary recognition predated the Act,
and that the Act created the election process only as a means of
resolving questions of
[[Page 18381]]
representation when the parties could not resolve them privately.\121\
---------------------------------------------------------------------------
\119\ Comments of Local 32BJ; AFSCME.
\120\ Comment of UFCW.
\121\ Comments of IUOE; AFL-CIO; EPI; IBEW; St. Louis-Kansas
City Carpenters Regional Council.
---------------------------------------------------------------------------
It is well established that voluntary recognition and voluntary-
recognition agreements are lawful. NLRB v. Gissel Packing Co., 395 U.S.
at 595-600; United Mine Workers of America v. Arkansas Oak Flooring
Co., 351 U.S. at 72 fn. 8. However, as several commenters note,\122\ it
also is well established that Board elections are the Act's preferred
method for resolving questions of representation.
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\122\ Comments of GC Robb; CDW; Representatives Foxx and
Walberg; NRWLDF; CNLP.
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As an initial matter, the Act itself implicitly supports this
principle. As some commenters note, unlike the election bar, the
voluntary-recognition bar is not in the Act; it is a Board-created
doctrine.\123\ Further, the 1947 Taft-Hartley amendments to Section 9
of the Act limited Board certification of exclusive collective-
bargaining representatives--and the benefits that result from
certification \124\--to unions that prevail in a Board election. While
the Act's text does not state an explicit preference for Board
elections, 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.
---------------------------------------------------------------------------
\123\ Comments of NRWLDF; COLLE; CDW.
\124\ Those benefits include a 12-month bar to election
petitions under Sec. 9(c)(3) as well as to withdrawal of
recognition; protection against recognitional picketing by rival
unions under Sec. 8(b)(4)(C); the right to engage in certain
secondary and recognitional activity under Sec. 8(b)(4)(B) and 7(A);
and, in certain circumstances, a defense to allegations of unlawful
jurisdictional picketing under Sec. 8(b)(4)(D).
---------------------------------------------------------------------------
Additionally, both the Board and the courts have long recognized
that secret-ballot elections are better than voluntary recognition at
protecting employees' Section 7 freedom to choose, or not choose, a
bargaining representative. 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.
As several commenters note, the Board takes prophylactic measures
to ensure a free and fair ballot in elections that it conducts (e.g.,
requiring posting election notices at least 3 days beforehand).\125\
Further, as some commenters note, because the Board does not supervise
voluntary recognitions, it generally cannot know whether an employer-
recognized union has the uncoerced support of a majority of
employees.\126\ Unlike votes cast in private during Board-conducted
secret-ballot elections, card signings are public actions, susceptible
to group pressure exerted at the moment of choice. Even if such
pressure is not unlawfully coercive, it warrants consideration in
determining the reliability of an employee's choice. As several
commenters note, employees may sign cards because they are susceptible
to peer pressure or do not want to appear nonconformist or
antagonistic.\127\ See, e.g., NLRB v. Village IX, Inc., 723 F.2d 1360,
1371 (7th Cir. 1983) (``Workers sometimes sign union authorization
cards not because they intend to vote for the union in the election but
to avoid offending the person who asks them to sign, often a fellow
worker, or simply to get the person off their back, since signing
commits the worker to nothing (except that if enough workers sign, the
employer may decide to recognize the union without an election).''). Of
course, as several commenters also note, signatures on authorization
cards may be the result not merely of peer pressure, but of threats,
intimidation, coercion, harassment, or other conduct that falls far
short of the ``laboratory conditions'' the Board seeks to ensure during
elections.\128\ Absent an electoral option, the only way for an
employee to address this conduct would be to file an unfair labor
practice charge, with the prospect of an extended investigation and
litigation period to follow, during which the challenged bargaining
relationship would continue.
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\125\ E.g., Comment of COLLE.
\126\ E.g., Comments of NRWLDF; CDW.
\127\ Comments of COLLE; CDW; GC Robb; the Chamber.
\128\ Comments of NRWLDF; GC Robb; Representatives Foxx and
Walberg; the Chamber. See also Reply Comment of CNLP.
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Further, as some commenters note, employees often sign cards due to
misunderstandings, misrepresentations, or lack of information about the
consequences of unionization.\129\ Moreover, as one commenter notes, a
card check often is accompanied by formal or informal employer
neutrality, which may effectively deprive employees of any exposure to
information or argument that might cause them to decline
representation.\130\
---------------------------------------------------------------------------
\129\ Comments of NRWLDF; the Chamber.
\130\ Comment of CDW.
---------------------------------------------------------------------------
Some commenters claim that there is no evidence to support these
contentions.\131\ Relatedly, one commenter claims that workers do not
obtain more accurate information during Board election campaigns than
they do during voluntary-recognition efforts.\132\ However, the
``uninhibited, robust, and wide-open debate'' characteristic of a
Board-conducted election better fulfills the national labor policy that
Congress has established. See Chamber of Commerce of U.S. v. Brown, 554
U.S. 60, 68 (2008) (NLRA preempted state law restricting use of state
funds to assist, promote, or deter union organizing).
---------------------------------------------------------------------------
\131\ Comments of IUOE; Local 32BJ.
\132\ Comment of Local 32BJ.
---------------------------------------------------------------------------
Another advantage of a Board election is that it presents a clear
picture of employee voter preference at a single moment. As some
commenters note,\133\ elections provide a ``snapshot in time'' while
card signings may take place over a period of time, during which
employee sentiment can change. See, e.g., Johnson Controls, Inc., 368
NLRB No. 20 (six employees signed union authorization cards shortly
after signing decertification petition); Alliant Food Service, 335 NLRB
695 (2001) (16 employees who signed cards for 1 union subsequently
signed cards for another union).
---------------------------------------------------------------------------
\133\ Comments of CDW; GC Robb.
---------------------------------------------------------------------------
According to one commenter, the fact that an election takes place
at a single moment disenfranchises employees who are absent on the day
of an election.\134\ But, as the General Counsel notes, some employees
may be completely unaware of an organizing effort prior to a voluntary
recognition because a union needs signatures from only a majority of
the unit.\135\ It is not unreasonable to conclude that if a union knows
or suspects which employees may be inclined to support it, the union
may target those employees to sign cards while avoiding employees
perceived to be less sympathetic to the union's efforts. In contrast,
all unit employees receive advance notice of the opportunity to vote in
a Board-conducted representation election. In
[[Page 18382]]
agreement with the General Counsel, we believe that employees who would
otherwise be left in the dark regarding a voluntary-recognition drive
should have the opportunity to campaign and vote against representation
or in favor of a different union \136\--even if that means that
employees who are absent on the day of the election (for which they
receive advance notice) are unable to vote.\137\
---------------------------------------------------------------------------
\134\ Comment of Local 32BJ.
\135\ Comment of GC Robb.
\136\ Id.
\137\ Moreover, as noted in NLRB Casehandling Manual (Part 2)
Representation Proceedings Sec. 11302 (Jan. 2017), election-
scheduling details ``are ordinarily based upon the parties'
voluntary meeting of the minds (with the regional director's
approval), as reflected in an election agreement.'' In the event the
regional director has to determine this matter, the manual provides
that ``[w]here there is a choice, the regional director should avoid
scheduling the election on dates on which all or part of the
facility will be closed, on which past experience indicates that the
rate of absenteeism will be high, or on days that many persons will
be away from the facility on company business or on vacation.'' In
either event, the procedures aim to minimize as much as possible the
disenfranchisement of employees because they are absent on election
day.
---------------------------------------------------------------------------
Some commenters contend that laboratory conditions are sometimes
destroyed during election campaigns \138\ and that pressure from
employers or other employees can occur during such campaigns.\139\ We
agree. However, the Board's election process provides for post-election
review of unlawful and other objectionable conduct, and such review may
result in the invalidation of the election results and the conduct of a
rerun election. There are no guarantees of comparable safeguards in the
voluntary-recognition process. This is a meaningful distinction that
supports previous court and Board decisions that Board-conducted
elections are preferable to voluntary recognition.
---------------------------------------------------------------------------
\138\ Reply Comment of IBEW.
\139\ Comments of Local 32BJ; UA.
---------------------------------------------------------------------------
One commenter states that the proposed changes to the blocking-
charge policy are inconsistent with the rationale stated here--i.e.,
that conditions attendant to Board elections make such elections
preferable to voluntary recognition.\140\ We disagree. As previously
stated, our revision of the blocking-charge policy is intended to
protect the right of employees to a timely election. The outcome of
that election may still be invalidated by the ultimate resolution of
the merits of the blocking charge and its effects on employee free
choice, but the timely conduct of the election is entirely consistent
with the concept that a secret-ballot Board election is the preferred
method for determining whether a union has majority support. Further,
nothing in our final-rule amendments precludes the filing of a blocking
charge with respect to an election petition filed after voluntary
recognition. The same ``laboratory conditions'' standard will apply to
the conduct of that election, and the same consequences will ensue if
the blocking charge is ultimately found to have merit.
---------------------------------------------------------------------------
\140\ Comment of SEIU.
---------------------------------------------------------------------------
Relatedly, some commenters argue that Johnson Controls, supra,
undercuts the rationale that a Board election is the preferred means of
determining majority support, insofar as ``the non-electoral showing of
lack of majority support there is no more reliable than the non-
electoral showing of majority support addressed in'' the rule
here.\141\ We disagree. In Johnson Controls, the Board held that proof
of an incumbent union's actual loss of majority support, if received by
an employer within 90 days prior to contract expiration, conclusively
rebuts the union's presumptive continuing majority status when the
contract expires. 368 NLRB No. 20, slip op. at 2. However, the Board
also held that, in those circumstances, the union may attempt to
reestablish that status by filing a Board election petition within 45
days from the date the employer gives notice of an anticipatory
withdrawal of recognition. Id. Consequently, Johnson Controls
established a process parallel to the one we adopt here in the final-
rule amendment. That is, after a bargaining relationship has been
established or repudiated on the basis of a non-Board showing of
majority-employee support for this action, employees will still have an
immediate limited opportunity for a referendum on that action in a
Board-supervised private-ballot election. For that matter, our final
amendment of the voluntary-recognition bar provides greater protection
to a continuing bargaining relationship than Johnson Controls does for
majority-based withdrawal of recognition. If no petition is filed
within the post-recognition period permitted under the rule, the
recognition and contract-bar rules will take effect, potentially
postponing any electoral challenge for years. In contrast, even if no
petition is filed during the Johnson Controls open period following
anticipatory repudiation, a petition can be filed at any time after
expiration of the parties' final contract.
---------------------------------------------------------------------------
\141\ Comments of SEIU; NNU.
---------------------------------------------------------------------------
One commenter contends that the purported preference for Board
elections conflicts with the Board's December 14, 2017 Request for
Information (RFI) on the 2015 Election Rule, 82 FR 58783, inasmuch as
the RFI was allegedly an attempt to weaken the 2015 Election Rule,
which made it possible for employees to vote in a ``timelier
manner.\142\ We disagree with this comment. Nothing in the RFI, which
had no effect on the validity of procedures established by the 2015
Election Rule, or in the amendments to those procedures set forth in
the Board's 2019 Election Rule, which were founded on independent
reasons stated therein, undercut the statutory, judicial, and agency
preference for Board elections.
---------------------------------------------------------------------------
\142\ Comment of EPI.
---------------------------------------------------------------------------
Additionally, some commenters contend that the rule discriminates
against voluntary recognition, contrary to various provisions of
Section 1 of the Act (``encouraging practices fundamental to the
friendly adjustment of industrial disputes''; protecting ``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''; preventing ``industrial strife or unrest'';
and ``encouraging the practice and procedure of collective
bargaining'').\143\ One commenter also asserts that the rule is
contrary to Section 8(a)(5) and Section 9(a) of the Act insofar as it
``would place bargaining relationships formed by voluntary recognition
at a disadvantage from their inception.'' \144\
---------------------------------------------------------------------------
\143\ Comments of AFL-CIO; EPI; UFCW.
\144\ Comment of UFCW.
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On the contrary, the final-rule amendment here does not
discriminate against or in any way 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. The amendment simply provides
for a limited post-recognition opportunity for employees to exercise
their statutory right of free choice through the preferred means of a
Board election as to whether that relationship should continue without
the possibility of further challenge for a substantial period of time.
In this regard, several commenters correctly note that, currently, the
immediate voluntary-recognition bar and the contract bar, together, can
block employees' right to an election for 4 years (assuming a 3-year
contract)--or even longer if the parties do not begin bargaining right
away, as the voluntary-recognition bar period begins not at
recognition, but when the parties start bargaining.\145\ Given this
fact, we believe that the immediate post-recognition imposition
[[Page 18383]]
of an election bar does not sufficiently protect affected employees'
statutory right to exercise their choice on collective-bargaining
representation through the preferred method of a Board-conducted
election. This consideration provides considerable support for the
proposed rule.
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\145\ Comments of NRWLDF; CDW; GC Robb.
---------------------------------------------------------------------------
Further, several commenters contend that voluntary recognition is
arguably more democratic than a Board election because it requires a
majority of all eligible employees, not just a majority of those who
vote in an election.\146\ We do not dispute that voluntary recognition
must always be based on an absolute majority of bargaining-unit
employees, while the result of a Board election will be based on the
choice of a majority of unit employees who actually vote. We disagree,
however, that this makes voluntary recognition more democratic than a
Board election. The conditions under which a choice is expressed, and
the safeguards surrounding it, are as much as part of the democratic
process as the number of those who register a choice. A secret-ballot
election, overseen by a neutral federal agency with the power to
prevent or remedy any objectionable conduct affecting the election,
provides a far greater assurance of a truly democratic outcome than
does the voluntary-recognition process.
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\146\ Comments of AFT; SEIU; UFCW; St. Louis-Kansas City
Carpenters Regional Council; Professor Kulwiec.
---------------------------------------------------------------------------
2. Comments Alleging That the Rule is Arbitrary
Some commenters assert that requiring notices only in the context
of voluntary recognition is arbitrary: Notices are not required when an
employer withdraws recognition from a certified union, or when a one-
year election bar expires; non-union employers are not required to post
notices to employees about how to obtain Board recognition of a union;
and 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.\147\
---------------------------------------------------------------------------
\147\ Comments of UA; IBEW; AFSCME; SEIU; AFL-CIO; NNU.
---------------------------------------------------------------------------
It may or may not be true that notices should be required in some
of these other contexts. But the rule is not arbitrary merely because
it does not address those other contexts. Cf. Mobil Oil Expl. &
Producing Se. Inc., 498 U.S. at 231 (``[A]n agency need not solve every
problem before it in the same proceeding.''); Advocates for Highway &
Auto Safety, 429 F.3d at 1147 (``Agencies surely may, in appropriate
circumstances, address problems incrementally.''). And we decline to
decide, in the context of this rulemaking, that postings should be
required in contexts outside the scope of this rule. Accordingly, we
reject these comments.
Relatedly, one commenter states that there is no window period for
reconsideration and an election petition when an employer lawfully
withdraws recognition based on a showing of actual loss of majority
support, or after a union loses an election and wants a re-vote just in
case employees have changed their minds.\148\ We disagree. As stated
above, when an employer lawfully withdraws recognition based on a
petition or cards showing an actual lack of majority support, employees
do have an opportunity for reconsideration and an election: They can
immediately file an election petition if they can garner the supporting
30 percent showing of interest for one. And after a union loses an
election, the Act itself bars another election for 1 year precisely
because employees have already voted in a Board election. This does not
mean that the Board should decline to allow employees, in a voluntary-
recognition situation where employees have not voted in a Board
election, to have a limited period of time to petition for an election
where they can express their views by secret ballot.
---------------------------------------------------------------------------
\148\ Comment of AFSCME.
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3. Comments Regarding Post-Dana Experience
Several commenters assert that data from the post-Dana period do
not support the proposed rule because they show that workers requested
an election in only a small percentage of cases, and workers voted
against the incumbent union in only a fraction of those cases.\149\ As
discussed in Lamons Gasket, as of May 13, 2011, the Board had received
1,333 requests for Dana notices. 357 NLRB at 742. In those cases, 102
election petitions were subsequently filed, and 62 elections were held.
Id. In 17 of those elections, the employees voted against continued
representation by the voluntarily recognized union, including 2
instances in which a petitioning union was selected over the recognized
union and 1 instance in which the petition was withdrawn after
objections were filed. Id. Thus, 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.
---------------------------------------------------------------------------
\149\ Comments of Workers United; IUOE; AFL-CIO; NNU; EPI; UFCW;
UA; IBEW; Local 32BJ; AFSCME; St. Louis-Kansas City Carpenters
Regional Council.
---------------------------------------------------------------------------
On the other hand, in the elections that were held under Dana,
employees voted against continued representation by the voluntarily
recognized union approximately 25 percent of the time. Id. at 751
(Member Hayes, dissenting). According to one commenter, this reversal
rate shows that voluntary recognition is not a reliable indicator of
majority-employee support.\150\
---------------------------------------------------------------------------
\150\ Comment of NRWLDF.
---------------------------------------------------------------------------
In our view, 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 fact that in
about 1 out of every 4 Dana elections a majority of employees voted to
reject continued representation by a voluntarily recognized union is
far from meaningless. Neither is the fact that Dana elections were held
in only a small percentage of cases where the required notice of
voluntary recognition and the right to petition for an election was
given. In our view, Dana served its intended purpose of assuring
employee free choice in all of those cases at the outset of a
bargaining relationship based on voluntary recognition, rather than 1
to 4 years or more later. Some commenters speculate that we could
expect to see the same percentage of reversed outcomes after Board-
conducted elections if the statutory election bar did not exist to
temporarily bar second elections,\151\ or that the reversal rate could
represent something like ``buyer's remorse'' rather than the
unreliability of authorization cards.\152\ Even were there evidence to
support such speculation, we nonetheless believe that giving employees
an opportunity to exercise free choice in a Board-supervised election
without having to wait years to do so is still solidly based on and
justified by the policy grounds already stated.
---------------------------------------------------------------------------
\151\ Comments of Local 32BJ; AFL-CIO.
\152\ Comment of Local 32BJ.
---------------------------------------------------------------------------
Further, as for the 1231 cases in which Dana notices were requested
but no petitions were filed, we know nothing about the reasons for that
outcome. Specifically, we know nothing about the reliability of the
proof of majority support that underlay recognition in each of these
cases, nor do we know why no petition was filed. What we do know is
that the employers and unions who voluntarily entered into bargaining
relationships during Dana's effective period complied with the
[[Page 18384]]
notice requirement in impressive numbers and, as a consequence, we can
be confident that affected employees were adequately informed of their
opportunity to file for an election. In sum, Dana imposed no apparent
material hardship and provided the intended benefits of notice and
opportunity to exercise important statutory rights.
One commenter asserts that between Fiscal Year 2012 and Fiscal Year
2019, unlawful-recognition charges made up only about 1.6 percent of
total unfair labor practice charges, and the commenter claims that the
percentage should have been higher if the Board's animating concerns
were founded.\153\ Relatedly, another commenter asserts that post-
Lamons Gasket, only a small percentage of unlawful-recognition charges
resulted in a Board order, and that, if the overruling of Dana had
truly undermined free choice, there should have been an increase in
such charges.\154\ However, the breakdown of unfair labor practice
charges and the reasons for not issuing a Board order can reflect any
number of factors, and they do not necessarily indicate that a majority
of employees actually support voluntary recognition. These comments are
founded on the mistaken premise that the Dana procedure and its
proposed reinstatement in this rulemaking are primarily intended to
address unlawful voluntary recognition. To the contrary, the provision
for notice and limited opportunity to petition for a Board election are
intended to protect the preferred electoral mechanism from immediate
and prolonged foreclosure by any voluntary recognition, lawful or
otherwise. Ensuring employee free choice is a central purpose of the
Act, and that purpose is furthered by the Dana procedure regardless of
whether employees ultimately choose to continue their existing
representation.
---------------------------------------------------------------------------
\153\ Comment of UFCW.
\154\ Comment of SEIU.
---------------------------------------------------------------------------
4. Comments Predicting That the Rule Will Have Negative Effects
Some commenters claim that the rule will discourage voluntary
recognition.\155\ However, employers and unions agree to voluntary
recognition for any number of reasons, economic and otherwise, that the
rule will not affect. See James J. Brudney, Neutrality Agreements and
Card Check Recognition: Prospects for Changing Paradigms, 90 Iowa L.
Rev. 819, 832-841 (2005) (setting forth various reasons for neutrality
and card-check agreements). Further, there is no evidence that, under
Dana, voluntary recognition was less frequent. In fact, as discussed
above, only 7.65 percent of Dana notice requests resulted in election
petitions--and approximately three-quarters of those resulted in a
continuation of the bargaining relationship, with the additional
benefits of Board certification. As one commenter notes,\156\ this
includes a protected 1-year period for negotiation of a collective-
bargaining agreement,\157\ as opposed to the reasonable period of time
for bargaining after voluntary recognition, a period that could be as
little as 6 months.
---------------------------------------------------------------------------
\155\ Comments of LIUNA MAROC; Local 304; SEIU.
\156\ Comment of COLLE.
\157\ See Brooks v. NLRB, 348 U.S. 96 (1954).
---------------------------------------------------------------------------
Other commenters argue that the rule will discourage or delay
collective bargaining. In this regard, one commenter asserts that the
rule ``invites'' employees to file election petitions and that this
will delay collective bargaining and representation.\158\ Other
commenters assert that parties, especially smaller entities, will be
less likely to waste limited resources engaging in bargaining that
could be for naught.\159\ Further, according to several commenters,
because a collective-bargaining agreement reached within 45 days would
not bar a petition, parties will be more likely to delay bargaining, or
at least ``serious'' bargaining--thereby undermining the policies
behind both the voluntary-recognition bar (enabling parties to begin
bargaining without interruption) and the contract bar (achieving a
reasonable balance between industrial stability and employee choice of
representative).\160\ Moreover, several commenters argue that the delay
in full representation will frustrate the exercise of Section 7 rights
and send employees a message of futility or cause them to be
disillusioned with the union's representation, particularly given that
the delay would occur when employees have not yet realized the benefits
of collective bargaining.\161\
---------------------------------------------------------------------------
\158\ Comment of IBEW.
\159\ Comments of IBEW; SEIU.
\160\ Comments of AFSCME; Local 32BJ; UWUA; Senator Murray;
IUOE; AFL-CIO; UFCW.
\161\ Comments of IBEW; Local 32BJ; SEIU; Professor Kulwiec;
AFL-CIO; NNU; UFCW; CWA; AFSCME; St. Louis-Kansas City Carpenters
Regional Council.
---------------------------------------------------------------------------
As an initial matter, the final rule does not affect established
precedent holding that an employer's obligation to bargain with the
union attaches immediately upon voluntary recognition. During the 45-
day notice-posting period, the union can begin representing employees,
processing their grievances, and bargaining on their behalf for a first
contract. Even if a decertification or rival union petition is filed
during the 45-day window period, that will not require or permit the
employer to withdraw from bargaining or to refrain from executing a
contract with the incumbent union. See Dresser Industries, Inc., 264
NLRB 1088, 1089 (1982); RCA del Caribe, Inc., 262 NLRB 963, 965 (1982).
If the union is decertified after a contract has been signed, the
contract would lose effect. Wayne County Neighborhood Legal Services,
333 NLRB 146, 148 fn.10 (2001); RCA del Caribe, 262 NLRB at 966;
Consolidated Fiberglass Products, 242 NLRB 10 (1979). On the other
hand, as noted above, if the union prevails in a post-recognition
election, it will have the benefit of an extended one-year period for
contract negotiations, during which, absent unusual circumstances, its
majority status cannot be challenged.
We also do not agree that the rule ``invites'' employees to file
petitions for elections. The rule does not encourage, much less
guarantee, the filing of a petition. An employer and a union are both
free during the window period to express their views about the
perceived benefits of a collective-bargaining relationship. If an
employer believes that voluntary recognition is advantageous, it would
not necessarily decline to recognize a union simply because there is
some risk that a petition will be filed. Similarly, if a union has
obtained a solid card majority and has been voluntarily recognized on
that basis, it should not be deterred from promptly engaging in
meaningful bargaining simply because of the risk of losing that
majority in an election. For that matter, in many voluntary-recognition
situations, recognition and the execution of a first collective-
bargaining agreement occur simultaneously. Although some commenters
cite anecdotal evidence that Dana procedures occasionally delayed
bargaining,\162\ there is 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.
---------------------------------------------------------------------------
\162\ Comments of AFL-CIO; Local 32BJ.
---------------------------------------------------------------------------
Some commenters claim 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.\163\ This may be true in some
[[Page 18385]]
situations. However, we believe that this is a reasonable trade-off for
protecting employees' ability to express their views in a secret-ballot
election. Moreover, we fail to see the bargaining disadvantage to a
recognized union that can solidify, and perhaps expand, its base of
support during the post-recognition open period.
---------------------------------------------------------------------------
\163\ Comments of Local 32BJ; CWA.
---------------------------------------------------------------------------
One commenter notes that the rule does not contain any mechanism
that requires employers to post the notice, raising the possibility
that an employer will willfully fail to post the notice and that an
agreement reached could later be upended.\164\ According to this
commenter, this may cause employers, in negotiations, to leverage their
compliance with the notice-posting requirement against the union in an
attempt to extract more generous substantive contract terms.\165\ While
this scenario is possible, we have no basis to believe that it will
occur, or if it does, that it would not be subject to a unfair labor
practice allegation.
---------------------------------------------------------------------------
\164\ Comment of Senator Murray.
\165\ Id.
---------------------------------------------------------------------------
One commenter contends that the rule would interfere in collective
bargaining in another way. Specifically, this commenter claims,
management often asks unions to agree not to discuss the details of
ongoing negotiations or share drafts of either party's proposals with
workers who are not involved in negotiations.\166\ According to this
commenter, unions will therefore often face a dilemma if
decertification efforts gain support based upon rumors about the
negotiating process--specifically, should they allow the rumors to go
unchallenged, or respond to them and risk compromising the
negotiations? \167\ Whatever the likelihood that this would occur, we
do not see why a lawfully recognized union would be bound to comply
with any nondisclosure request that would interfere with its
obligations to represent the unit employees during a post-recognition
election campaign.
---------------------------------------------------------------------------
\166\ Comment of Local 32BJ.
\167\ Id.
---------------------------------------------------------------------------
Several commenters argue that the rule will undercut industrial
stability. For example, some commenters assert that the rule will
disrupt longstanding and/or stable collective-bargaining relationships
by encouraging election campaigns, which can involve heated
rhetoric.\168\ Another commenter states that the rule will require
unions to jump through procedural hoops before they can achieve
industrial stability, ``without basically any concomitant benefit to
employees.'' \169\ First, the final rule here does not apply to
longstanding collective-bargaining relationships. At most, in the
absence of compliance with notice requirements after initial voluntary
recognition, it applies to a post-recognition period extending no
longer than the first collective-bargaining agreement. Second, we think
it is unlikely that parties who have voluntarily entered into a
mutually advantageous collective-bargaining relationship will engage in
heated rhetoric in an ensuing election campaign, but if that does
happen it is part of the free exchange of views that the Act protects.
Third, 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 and the greater protection of a
Board certification. The benefit to employees, as frequently stated
here, is the assurance of their statutory right of free choice by
providing them the limited opportunity to test a recognized union's
majority support through the preferred means of a Board election.
---------------------------------------------------------------------------
\168\ Comments of IBEW; AFSCME.
\169\ Comment of Plumbers and Pipe Fitters.
---------------------------------------------------------------------------
One commenter asserts that, when a company acquires another
business, voluntary-recognition agreements help employers and workers
by not creating extra concerns during this period of transition; in
essence, these agreements help ensure workplace stability at a critical
time.\170\ But, as discussed above, we do not believe that the rule
will materially discourage voluntary-recognition agreements. The final
rule also does not disturb existing legal principles governing the
obligations of a successor employer.
---------------------------------------------------------------------------
\170\ Comment of CWA.
---------------------------------------------------------------------------
In addition, one commenter contends that the rule will invite local
managers to reverse a national decision to grant voluntary recognition
by unlawfully assisting a Dana petition, and further contends that this
did happen once.\171\ There is no basis in the record for finding that
this would occur on more than rare occasions, let alone for believing
that it would escape detection through the Board's unfair labor
practice processes if and when it does occur. It is always the case
that bad actors may seek to subvert the Board's representation
procedures through unlawful or otherwise objectionable conduct.
Remedies exist to address such misconduct, and the bad acts of a few
are no reason not to make those procedures more widely available.
---------------------------------------------------------------------------
\171\ Comment of Local 32BJ.
---------------------------------------------------------------------------
One commenter claims that the concomitant change to the immediate
contract-bar rule will disturb parties' settled understandings of their
rights and invalidate the private bargaining process that the Act is
intended to promote.\172\ We believe that the modification is a
necessary part of the voluntary-recognition-bar modification, with both
modifications striking a more appropriate balance between labor-
relations stability and employee free choice. Further, the contract-bar
modification should incentivize parties to post a notice in order to
avoid having the results of their negotiations subsequently
invalidated.
---------------------------------------------------------------------------
\172\ Comment of UFCW.
---------------------------------------------------------------------------
5. Comments Regarding Availability of Other Alternatives
Several commenters argue that there are other alternatives and that
their availability undercuts the need for the proposed rule, or that
other alternatives are superior to the proposed rule. In particular,
some commenters assert that employees may file unfair labor practice
charges if they believe that voluntary recognition is not based on
majority support or is based on coerced support, while non-petitioner
employees may not file election-related challenges and objections to
Board elections.\173\ Further, several commenters note that employees
have 6 months to file unfair labor practice charges, while parties have
only 7 days to file objections after an election.\174\ We do not
believe that the availability of unfair labor practice proceedings to
challenge the validity of voluntary recognition undercuts the rule. As
one commenter notes, unfair labor practice proceedings generally take
longer than representation proceedings,\175\ and the General Counsel
has unlimited discretion to decline to issue a complaint--and can
settle the matter with the parties, without Board or court review--thus
making it possible that the Board would never adjudicate employees'
claims.\176\ In any event, the commenters' entire premise is misguided.
The Board's unfair labor practice processes are not an alternative to
the final-rule amendment. The former, as relevant here, provide a means
to challenge the legal validity of a voluntary recognition. As
previously indicated, the purpose of the final-rule amendment is not to
provide a means to challenge the legal validity of voluntary
recognition. It is to provide a limited window of time for a referendum
on that recognition through the preferred
[[Page 18386]]
means and with the numerous advantages of a Board-supervised private-
ballot election. Thus, the existing availability of the unfair labor
practice process is not a substitute for the rule.
---------------------------------------------------------------------------
\173\ Comments of AFL-CIO; IBEW; Local 32BJ; SEIU; IUOE; St.
Louis-Kansas City Carpenters Regional Council.
\174\ Comments of AFL-CIO; Local 32BJ; St. Louis-Kansas City
Carpenters Regional Council.
\175\ Comment of CNLP.
\176\ Id.
---------------------------------------------------------------------------
Further, one commenter asserts that the rule is overbroad because
it encompasses voluntary recognition based on non-Board secret-ballot
elections.\177\ According to that commenter, private agencies such as
the American Arbitration Association can ensure the integrity of
elections, and private election agreements often provide for post-
election procedures that parallel the Board's.\178\ Another commenter
contends that for successful voluntary recognitions, employers and
unions have agreed to a process and a set of rules, and have met the
voluntary-recognition requirements in a format that a third party or
neutral can confirm and verify--and that it would be federal-government
overreach for the Board to interfere with these arrangements.\179\
---------------------------------------------------------------------------
\177\ Comment of AFL-CIO.
\178\ Id.
\179\ Comment of James T. Springfield.
---------------------------------------------------------------------------
However, another commenter contends that arbitrators merely count
cards against a list of employees and do not know how the cards were
obtained.\180\ In any event, regardless of what agreements employers
and unions reach on these types of matters, we believe that there is
significant value in allowing employees an opportunity to petition for
a Board-conducted election. If they do not choose that option or do not
garner sufficient support for an election petition, then nothing in
this rule would interfere with the parties' alternative arrangements.
Alternatively, if their petition does achieve the necessary support,
the resulting Board election is at worst merely duplicative of the
parties' private arrangements, and it offers a prevailing union all the
advantages of Board certification.
---------------------------------------------------------------------------
\180\ Comment of NRWLDF.
---------------------------------------------------------------------------
Another commenter notes that employees have the option to petition
for an election during an open period between contracts.\181\ However,
as discussed previously, the recognition bar and the contract bar,
together, can last up to 4 years--longer, if there is a gap between
recognition and bargaining. In our view, that is an unacceptable burden
on employees' ability to file an election petition following voluntary
recognition.
---------------------------------------------------------------------------
\181\ Comment of IBEW.
---------------------------------------------------------------------------
One commenter notes that cards signed as a result of deliberate
misrepresentations regarding the purpose of the card are invalid for
purposes of proving the union's majority status.\182\ But the
possibility of cards being invalidated would necessarily involve unfair
labor practice litigation challenging majority status. This does not
constitute a sufficient alternative to a secret-ballot election.
---------------------------------------------------------------------------
\182\ Comment of Local 32BJ.
---------------------------------------------------------------------------
Moreover, one commenter contends that the NPRM failed to explain
why the benefits of certification are insufficient to satisfy the
Board's expressed preference for elections.\183\ This comment assumes
that employees are aware of the electoral option and that their vote
for union representation would confer certain additional benefits on
the representative and the bargaining relationship thus established,
but they nevertheless consent to the alternative establishment of a
bargaining relationship based on voluntary recognition. We question
whether employees are aware of the benefits of certification and have
consciously elected to forego them in favor of the voluntary-
recognition process. Even if this is so, it does not persuade us that
this majority choice should immediately foreclose the possibility of a
limited post-recognition opportunity for employees to test or confirm
the recognized union's majority status by the preferred means of a
Board election.
---------------------------------------------------------------------------
\183\ Comment of AFL-CIO.
---------------------------------------------------------------------------
6. Comments Providing General Critiques of the Proposed Rule
Some commenters assert that the proposed notice-posting policy is
contrary to the Board's role as a neutral.\184\ We disagree. The rule
is merely an attempt to provide for greater protection of employee free
choice in selection of a representative; it has no effect on what that
choice will be. Moreover, as discussed further in Section III.F.7.
below, we have modified the text of the proposed rule, to provide that
the Dana notice will more neutrally reflect the different options that
are available to employees.
---------------------------------------------------------------------------
\184\ Comments of IBEW; Senator Murray; NNU; St. Louis-Kansas
City Carpenters Regional Council.
---------------------------------------------------------------------------
Another commenter contends that the rule presumes that freely
entered, arms-length contracts are innately suspect, contrary to
longstanding jurisprudence.\185\ The rule does not rest on this
presumption; it merely gives employees a chance, for a limited period,
to file a petition for an election to confirm whether such contracts
were validly entered.
---------------------------------------------------------------------------
\185\ Comment of Joel Dillard.
---------------------------------------------------------------------------
Additionally, several commenters assert that, because only 30
percent of employees are needed to support a showing of interest, the
rule gives employers and a minority of employees the chance to marshal
support for ousting the union.\186\ According to some commenters, the
many (albeit ultimately unsuccessful) petitions filed under Dana show
that even in cases where a majority of voting employees ultimately
favor representation, an anti-union minority is encouraged to keep
resisting the majority's will.\187\ According to one commenter, just as
the Act does not contemplate an election rerun absent objectionable
conduct, it also does not contemplate a ``do-over'' organizing period
simply because a minority of employees are unhappy.\188\
---------------------------------------------------------------------------
\186\ Comments of SEIU; EPI; IUOE; UFCW; AFSCME.
\187\ Comment of Local 32BJ.
\188\ Comment of IUOE.
---------------------------------------------------------------------------
However, as discussed previously, under Dana the Board received
only 102 election petitions relative to 1,333 requests for notices over
a period of several years. We do not believe that this indicates that a
minority of employees repeatedly resist the majority's will by filing
petitions. And in any event, we believe that it is important to give
all employees an opportunity--a narrow and limited opportunity--to
express their free choice by petitioning for an election.
Further, some commenters contend that the rule will waste
government and party resources by requiring unnecessary elections.\189\
As an initial matter, as noted previously, the data under Dana show
that, over a period of several years, only 62 elections were held--not
a tremendously high number. In any event, we do not consider the
elections ``unnecessary,'' regardless of whether they confirm continued
representation. We believe that securing employee free choice is worth
the commitment of resources. And we note again that in approximately 25
percent of those elections, employees voted to oust the recognized
union.
---------------------------------------------------------------------------
\189\ Comments of AFSCME; NNU; UFCW; CWA.
---------------------------------------------------------------------------
One commenter contends that the NPRM failed to comply with the APA
because it did not contain the text of the contemplated notice to
employees--and that, without that text, it is impossible to provide
meaningful comments.\190\ However, in the NPRM, the Board explicitly
proposed ``to reinstate the Dana notice.'' 84 FR at 39938. The key
contents of the Dana notice were well established in that
decision,\191\ and
[[Page 18387]]
there is no basis for finding that the commenter was precluded from
providing meaningful comments merely because the NPRM did not quote the
Dana notice in its entirety.\192\
---------------------------------------------------------------------------
\190\ Comment of IBEW.
\191\ Specifically, in Dana, the Board held that the notice
should clearly state that (1) the employer (on a specified date)
recognized the union as the employees' exclusive bargaining
representative based on evidence indicating that a majority of
employees in a described bargaining unit desire its representation;
(2) all employees, including those who previously signed cards in
support of the recognized union, have the Sec. 7 right to be
represented by a union of their choice or by no union at all; (3)
within 45 days from the date of the notice, a decertification
petition supported by 30 percent or more of the unit employees may
be filed with the NLRB for a secret-ballot election to determine
whether or not the unit employees wish to be represented by the
union, or 30 percent or more of the unit employees can support
another union's filing of a petition to represent them; (4) any
properly supported petition filed within the 45-day period will be
processed according to the Board's normal procedures; and (5) if no
petition is filed within the 45 days from the date of this notice,
then the recognized union's status as the unit employees' exclusive
majority bargaining representative will not be subject to challenge
for a reasonable period of time following the expiration of the 45-
day window period, to permit the union and the employer an
opportunity to negotiate a collective-bargaining agreement. 351 NLRB
at 443.
\192\ We note that, as discussed further below--consistent with
recommendations from two commenters--the final rule makes some
modifications with respect to required elements in tbe new post-
recognition notice that differ from the requirements for a Dana
notice. There also is no basis for finding that commenters
reasonably could not have known to submit comments regarding what
the notices should, or should not, include. In fact, some commenters
did exactly that, and we have responded positively to those
comments, as discussed below.
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In addition, one commenter argues that the Board has failed to
consider alternatives like shortening the length of the recognition-bar
period.\193\ However, we do not believe that this alternative would be
sufficient to achieve the goals that we have discussed herein and in
the NPRM. Further, it arguably would detract from the labor-relations
stability that so many commenters discuss and that we seek to balance
with employee free choice. Accordingly, we reject that proffered
alternative.
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\193\ Comment of UFCW.
---------------------------------------------------------------------------
Further, one commenter contends that the NPRM leaves open the
possibility of further changes in the law with respect to other
discretionary election-bar policies; this highlights both the arbitrary
character of the items chosen for resolution here and the Board's
failure to achieve its stated goal of ensuring predictability; and, by
creating uncertainty about the status of these related doctrines, the
Board undermines the bargaining process in other contexts.\194\
However, for the reasons stated in Sections III.A. and III.F.2. above,
we are not required to make changes to all related doctrines in this
current rulemaking. Further, all legal doctrines are subject to change,
whether through rulemaking or adjudication, so the mere mention of
possible future changes does not create additional uncertainty that
undermines the bargaining process. As the Board itself stated in
defense of what it described as ``targeted'' amendments to
representation procedures in the 2015 Election Rule: ``Of course, an
administrative agency, like a legislative body, is not required to
address all procedural or substantive problems at the same time. It
need not `choose between attacking every aspect of a problem or not
attacking the problem at all.' Dandridge v. Williams, 397 U.S. 471, 487
(1970). Rather, the Board `may select one phase of one field and apply
a remedy there, neglecting the others.' FCC v. Beach Commc'ns, 508 U.S.
307, 316 (1993) (quoting Williamson v. Lee Optical of Okla., Inc., 348
U.S. 483, 489 (1955)). `[T]he reform may take one step at a time.'
Id.'' 79 FR at 74318 (footnote omitted).
---------------------------------------------------------------------------
\194\ Id.
---------------------------------------------------------------------------
For the above reasons, we find that these comments do not support
abandoning the proposed rule.\195\
---------------------------------------------------------------------------
\195\ In its voluntary-recognition arguments, one commenter
refers back to one of its blocking-charge arguments, specifically,
that the rule would violate the First and Fourteenth Amendments to,
and the Take Care Clause of, the U.S. Constitution, and that it also
raises separation-of-powers concerns. See Comment of NNU (citing
Thomas v. Collins, 323 U.S. 516). Once again, this commenter does
not explain its argument, and the cited decision does not support
the commenter's claim. Thus, we reject this claim as unsupported.
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7. Comments Suggesting Changes to the Proposed Rule
The General Counsel recommends that we extend the notice period
from 45 days to 1 year.\196\ Another commenter supports this
recommendation, stating that it would better protect employee free
choice because employees, especially those in larger units or units
that span multiple locations, need more time to organize to collect a
decertification petition; and individual employees often need longer
because they do not have ready access to paid organizers or to counsel
who can guide them through the Board's election process and the legal
rules for collecting petition signatures.\197\ In contrast, a different
commenter opposes such an extension, claiming that it is draconian;
would threaten lawful, voluntary, nascent collective-bargaining
relationships by permitting either a minority of employees or a rival
union to file a petition during that period; would not promote
collective bargaining and industrial peace; would run contrary to
congressional intent that elections be conducted only where employers
refuse to voluntarily recognize the union; and would thwart the
expressed desire of a majority of workers.\198\
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\196\ Comment of GC Robb.
\197\ Reply Comment of NRWLDF.
\198\ Reply Comment of IBEW.
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Consistent with certain commenters' comments, we believe that the
45-day notice period strikes a reasonable balance between employee free
choice and other interests--such as labor-relations stability and
preserving lawful, voluntary recognitions--and ensures that both
employers and unions have the benefit of the recognition bar for a
reasonable period of time following the close of the window period when
no petition is filed.\199\ Additionally, a 45-day period is consistent
with the period established in Johnson Controls for union petitions
following notice of anticipatory withdrawal of recognition. See 368
NLRB No. 20. Further, as one commenter states, because employers would
be responsible for posting and maintaining the Board-provided notice
``throughout this period,'' extending the notice period to 1 year would
make additional challenges to compliance more likely.\200\ Accordingly,
we decline to adopt the recommended change.
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\199\ Comments of COLLE; the Chamber; CDW.
\200\ Reply Comment of AFL-CIO.
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The General Counsel also recommends that, at the end of his
proposed 1-year period of notice posting, the Board should have
discretion to continue to dismiss petitions ``based on the facts and
circumstances of the case,'' or to impose a recognition bar ``if
circumstances so warrant.'' \201\ Other commenters disagree with this
recommendation.\202\ As one commenter notes, the General Counsel
provides no insight into what ``circumstances [would] warrant
insulating the collective-bargaining relationship for a limited period
of time.'' \203\ We agree. In addition to the fact that we have
rejected the proposal to extend the posting period to 1 year, we also
do not believe that there is sufficient clarity as to how this proposed
change would apply. Accordingly, we decline to adopt this suggested
alternative.
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\201\ Comment of GC Robb.
\202\ Reply Comment of NRWLDF; Reply Comment of AFL-CIO.
\203\ Reply Comment of AFL-CIO.
---------------------------------------------------------------------------
Additionally, the General Counsel recommends that we modify the
proposed amendment so that agreements entered into after the parties'
first collective-bargaining agreement would enjoy bar status,
regardless of whether the suggested 1-
[[Page 18388]]
year notice was posted.\204\ We agree. Even if there is no election bar
for the first contract executed in the absence of compliance with the
notice requirements of the amendment, we do not see the need to
continue an unrestricted open period for filing petitions during the
term of any successor agreement. In this connection, we note that
current contract-bar rules created in adjudication permit the filing of
petitions during established periods prior to the end of any contract
with a term of 3 years or less. See, e.g., Johnson Controls, Inc., 368
NLRB No. 20, slip op. at 8 fn. 45 (discussing open periods for filing
petitions in healthcare and nonhealthcare industries). In addition,
there is no election bar after the third year of a contract with a
longer effective term, nor is there any bar following contract
expiration and prior to the effective date of a successor agreement.
Under these circumstances, we believe that extant open-period rules
provide a sufficient opportunity for employees and rival unions to file
petitions and, thus, that it is unnecessary to require a notice posting
and another open period upon execution of any successor collective-
bargaining agreement. Accordingly, we clarify the rule to specify that
a voluntary recognition entered into on or after the effective date of
this rule, and ``the first'' collective-bargaining agreement entered
into on or after the date of such voluntary recognition, will not bar
the processing of an election petition if the requirements of the rule
are not met.
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\204\ Comment of GC Robb.
---------------------------------------------------------------------------
The General Counsel also recommends that the final rule specify the
content of the notice and that the text of the notice should include
several items. First, the General Counsel asserts that the rule should
include all of the applicable items from the Dana notice. Second, the
General Counsel contends that the rule should include information
regarding how the contract bar operates during and after the window
period and, in particular, should notify employees that they may file a
petition within the window period even if the employer and union have
already reached a collective-bargaining agreement, and that if they do
not challenge the union's status by filing a petition and the parties
subsequently reach a collective-bargaining agreement, an election
cannot be held for the duration of the collective-bargaining agreement,
up to 3 years. Third, the General Counsel argues that the notice should
include a more balanced description of employee rights and an
affirmation of the Board's neutrality, as the Dana notice has been
criticized as being too one-sided in its description of employee
rights, and therefore susceptible to the impression that the Board is
urging employees to reconsider their selection of the new union. To
give a more complete explanation of employee rights and to reinforce
the Board's neutrality, the General Counsel suggests that the notice
should be updated to include the following language:
Federal law gives employees the right to form, join, or assist a
union and to choose not to engage in these protected activities.
An employer may lawfully recognize a union based on evidence
indicating that a majority of employees in an appropriate bargaining
unit desire its representation.
Once an employer recognizes a union as the employees' exclusive
bargaining representative, the employer has an obligation to bargain
with the union in good faith in an attempt to reach a collective-
bargaining agreement. That obligation is not delayed or otherwise
impacted by this notice.
The National Labor Relations Board is an agency of the United
States Government and does not endorse any choice about whether
employees should keep the current union, file a decertification
petition, or support or oppose a representation petition filed by
another union.\205\
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\205\ Comment of GC Robb.
The AFL-CIO proposes further revisions, specifically, that the
following, italicized words be added to the General Counsel's proposed
---------------------------------------------------------------------------
revisions:
An employer may lawfully recognize a union based on evidence
(such as signed authorization cards) indicating that a majority of
employees in an appropriate unit desire its representation, even
absent an election supervised by the National Labor Relations Board.
The National Labor Relations Board is an agency of the United
States Government and does not endorse any choice about whether
employees should keep the current union, file a petition to certify
the current union, file a decertification petition, or support or
oppose a representation petition filed by another union.\206\
---------------------------------------------------------------------------
\206\ Reply Comment of AFL-CIO.
We agree that the notice should contain the additions suggested by both
the General Counsel and the AFL-CIO. As the General Counsel notes, such
wording gives employees a more complete picture of their rights and
emphasizes the Board's neutrality in these matters. We also agree that
the text of the final rule should include the wording of the notice. We
have modified the text of the final rule, Sec. 103.21 accordingly. In
addition, consistent with the additions to the notice set forth above,
we modify the text of the final rule, Sec. 103.21 to require employers
to post a notice informing employees of their right to file ``a
petition''--not ``a decertification or rival union petition.''
The General Counsel also argues that, in addition to notice-
posting, the Board should require employers to distribute individual
notices to employees via a second method of the employers'
choosing,\207\ and another commenter supports this recommendation.\208\
We believe that it is appropriate for the final rule to mirror the
requirements that apply to petitions for elections. Accordingly,
consistent with the 2019 Election Rule that is scheduled to take effect
in Spring of 2020,\209\ the instant final rule specifies that the
employer shall post the notice ``in conspicuous places, including all
places where notices to employees are customarily posted,'' and shall
also distribute it ``electronically to employees in the petitioned-for
unit, if the employer customarily communicates with its employees
electronically.''
---------------------------------------------------------------------------
\207\ Comment of GC Robb.
\208\ Reply Comment of NRWLDF.
\209\ See 84 FR at 69591.
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G. Final-Rule Amendment Regarding Proof of Majority-Based Recognition
in the Construction Industry
The Board received numerous comments on the proposal to redefine
the evidence required to prove that a construction-industry employer
and labor organization have established a majority-based collective-
bargaining relationship under Section 9(a) of the Act. We have
carefully reviewed and considered these comments, as discussed below.
1. Comments Regarding Board and Court Precedent
Many commenters support the requirement that positive evidence is
needed to prove that a union demanded recognition as the exclusive
bargaining representative and that the employer granted it based on a
demonstration of majority support. More specifically, the commenters
contend that the rule will restore the protection of employee free
choice that Congress intended to ensure when it enacted Section
8(f).\210\ We agree.
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\210\ Comments of COLLE; Associated General Contractors of
America (AGC); GC Robb; NRWLDF; Miller & Long Company, Inc. (M&L);
the Chamber; ABC; NFIB.
---------------------------------------------------------------------------
The Deklewa Board properly struck a balance between employee free
choice and stability in bargaining relationships, consistent with the
congressional intent expressed in Section 8(f). As discussed in Section
I.B.5. above, Section 8(f) permits construction-industry unions
[[Page 18389]]
and employers to enter collective-bargaining relationships absent
employee majority support, but such relationships do not bar election
petitions. The Deklewa Board adopted a presumption that bargaining
relationships in the construction industry are governed by Section
8(f), and it made 8(f) agreements enforceable for their term. Moreover,
the Board abolished the flawed conversion doctrine and held that 8(f)
relationships could develop into 9(a) relationships only through Board
election or voluntary recognition--and, in the latter case, only
``where that recognition is based on a clear showing of majority
support among the unit employees.'' 282 NLRB at 1387 fn. 53.
The Board's current Staunton Fuel standard, which requires only
contract language to establish a 9(a) relationship, is contrary to
these fundamental principles. See King's Fire Protection, Inc., 362
NLRB 1056, 1063 fn. 24 (2015) (Member Miscimarra, dissenting in part)
(observing that the Staunton Fuel standard ``is even more troubling
than the conversion doctrine that the Board abandoned in Deklewa''
because, ``[u]nder [Staunton Fuel], mere words are sufficient to cause
`pre-hire' recognition to convert to Sec[tion] 9(a) status, even where
. . . there has been no showing of actual employee majority support'').
By requiring positive evidence of employee majority support to
establish a 9(a) relationship, the instant rule will restore the proper
balance of interests--employee free choice on one hand, labor-relations
stability on the other--intended by Congress and safeguarded in
Deklewa.
In addition, many commenters note that the D.C. Circuit repeatedly
has rejected the Staunton Fuel test, and they urge the Board to adopt
the court's position that contract language alone cannot create a 9(a)
bargaining relationship.\211\ As discussed in Section I.B.5. above, in
Nova Plumbing and Colorado Fire Sprinkler, the D.C. Circuit criticized
the Board's reliance solely on contract language, finding it
inconsistent with the majoritarian principles set forth by the Supreme
Court in Garment Workers. Colorado Fire Sprinkler, 891 F.3d at 1038-
1039; Nova Plumbing, 330 F.3d at 536-537. See also M & M Backhoe Serv.,
Inc. v. NLRB, 469 F.3d 1047, 1050 (D.C. Cir. 2006) (explaining that ``a
union seeking to convert its section 8(f) relationship to a section
9(a) relationship may either petition for a representation election or
demand recognition from the employer by providing proof of majority
support,'' and finding a 9(a) relationship based on signed
authorization cards).
---------------------------------------------------------------------------
\211\ Comments of COLLE; AGC; GC Robb; the Chamber; ABC; CDW.
---------------------------------------------------------------------------
As the court explained, ``while an employer and a union can get
together to create a Section 8(f) pre-hire agreement, only the
employees, through majority choice, can confer Section 9(a) status on a
union.'' Colorado Fire Sprinkler, 891 F.3d at 1040 (emphasis in
original). Thus, in order ``to rebut the presumption of Section 8(f)
status, 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.'' Id. As some
commenters note, the court's rejection of the Board's reliance solely
on contract language is a strong reason to support the instant rule, as
every Board decision can be reviewed by the D.C. Circuit. 29 U.S.C.
160(f).
On the other hand, other commenters argue that the proposed rule is
not appropriate because the NPRM incorrectly interpreted Staunton Fuel
and the D.C. Circuit's decisions.\212\ Specifically, they argue that
the court stated that contract language and intent are relevant
factors, so those factors should be determinative where countervailing
evidence is weak or nonexistent. Some commenters also rely on the D.C.
Circuit's decision in Allied Mechanical Services, Inc. v. NLRB, 668
F.3d 758 (DC Cir. 2012).
---------------------------------------------------------------------------
\212\ Comments of AFL-CIO; Road Sprinkler Fitters Local Union
No. 669 (Local 669); IBEW; IUOE; North America's Building Trades
Unions (NABTU); UA.
---------------------------------------------------------------------------
Contrary to the commenters, the court has ``held that `contract
language' and `intent' of the union and company alone generally cannot
overcome the Section 8(f) presumption'' because allowing them to do so
``runs roughshod over the principles of employee choice established in
Supreme Court precedent.'' Colorado Fire Sprinkler, 891 F.3d at 1039
(internal quotations omitted). Further, although the court has
indicated that contract language and intent ``certainly'' are not
determinative factors when ``the record contains strong indications
that the parties had only a section 8(f) relationship,'' id., its
decisions do not compel the inverse proposition--i.e., that contract
language and intent are determinative where record evidence of 8(f)
status is weak. Such a proposition disregards that under Deklewa,
bargaining relationships in the construction industry are presumed to
be governed by Section 8(f), and therefore no evidence is required to
establish 8(f) status. In any event, the court clearly has not
foreclosed requiring positive evidence demonstrating majority support
in all cases. And as we have explained, requiring such evidence would
effectuate the Act's purposes by protecting employee free choice,
accomplish the congressional intent expressed in Section 8(f), and
conform to the majoritarian principles set forth by the Supreme Court
in Garment Workers. In addition, Allied Mechanical does not support the
commenters' position. In Allied Mechanical, the court found that a
construction-industry union established 9(a) status by requesting
recognition based on signed authorization cards and by entering a
settlement agreement that contained an affirmative bargaining order
predicated on its previous majority support. 668 F.3d at 768-769. Thus,
the union did not solely rely on contract language to demonstrate its
9(a) status.
Moreover, we also note that, in pre-Staunton Fuel cases, the United
States Courts of Appeals for the First and Fourth Circuits also
required a contemporaneous showing of majority support to establish a
9(a) relationship. American Automatic Sprinkler Sys., Inc. v. NLRB, 163
F.3d 209, 221-222 (4th Cir. 1998) (``The Board's willingness to credit
the employer's voluntary recognition absent any contemporaneous showing
of majority support would reduce this time-honored alternative to
Board-certified election to a hollow form which, though providing the
contracting parties stability and repose, would offer scant protection
of the employee free choice that is a central aim of the Act.''), cert.
denied 528 U.S. 821 (1999); NLRB v. Goodless Elec. Co., 124 F.3d 322,
324, 330 (1st Cir. 1997) (``Voluntary recognition requires the union's
unequivocal demand for, and the employer's unequivocal grant of,
voluntary recognition as the employees' collective[-]bargaining
representative based on the union's contemporaneous showing of
majority[-]employee support.''). Further, the United States Court of
Appeals for the Eighth Circuit relied on both contract language and
additional evidence in finding that a construction-industry union
established 9(a) status in NLRB v. American Firestop Solutions, Inc.,
673 F.3d 766, 770-771 (8th Cir. 2012).
In sum, we find that Board and court precedent fully support
requiring positive evidence demonstrating majority-employee union
support to establish a 9(a) relationship in the construction industry.
[[Page 18390]]
2. Comments Regarding Employee Free Choice
As many commenters contend, requiring positive evidence of
majority-employee union support will also better effectuate the
purposes of the Act.\213\ The current Staunton Fuel standard undermines
employees' Section 7 rights by effectively reintroducing the conversion
doctrine that the Deklewa Board repudiated and by subjecting employees
to the contract bar precluding elections for several years, even where
there has never been any extrinsic proof that a majority of the
employees support the union.\214\ As the commenters point out, the
protection of employees' Section 7 free-choice rights is a central
purpose of the Act, and the rule would protect those rights. Further,
as another commenter notes, the rule will also provide greater
stability in the construction industry by clarifying the requirements
to create 9(a) relationships.\215\
---------------------------------------------------------------------------
\213\ Comments of Representatives Foxx and Walberg; CNLP; COLLE;
AGC; NRWLDF; the Chamber; ABC; NFIB; CDW. See also Reply Comment of
CNLP.
\214\ We also note that the Staunton Fuel standard gives rise to
a post-contract presumption of continuing majority support absent
positive evidence that the union has ever enjoyed such support.
\215\ Comment of Mechanical Contractors Association of America
(MCAA).
---------------------------------------------------------------------------
3. Comments Regarding Collusion
Several commenters contend that the Board's current standard turns
a blind eye to union and employer collusion in the construction
industry, trampling employee free choice.\216\ We agree. By allowing
unions and employers to enter into 9(a) relationships based on contract
language alone, employees' rights can be usurped with a stroke of a
pen. Further, as the commenters point out, this is not mere speculation
but has been demonstrated in several Board decisions in which parties
falsified majority support. See, e.g., Colorado Fire Sprinkler, Inc.,
364 NLRB No. 55, slip op. at 5 (Member Miscimarra, dissenting) (noting
that parties signed agreement recognizing 9(a) status before single
employee hired); King's Fire Protection, Inc., 362 NLRB at 1059 (Member
Miscimarra, dissenting in part) (same); Triple C Maintenance, 327 NLRB
42, 42 fn. 1 (1998) (pre-Staunton Fuel, finding 9(a) relationship based
on recognition clause even though no employees when relationship
began), enfd. 219 F.3d 1147 (10th Cir. 2000); Oklahoma Installation
Co., 325 NLRB 741, 741-742, 745 (1998) (same), enf. denied 219 F.3d
1160 (10th Cir. 2000).
---------------------------------------------------------------------------
\216\ Comments of M&L; GC Robb; NRWLDF; the Chamber.
---------------------------------------------------------------------------
Thus, Staunton Fuel has effectively permitted construction-industry
unions and employers to collude at the expense of employees. For these
reasons, we disagree with other commenters' contention that there is
little evidence that the 9(a) process is being abused or that Staunton
Fuel has negatively affected employee free choice.\217\
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\217\ Comments of LIUNA MAROC; IUOE; UA.
---------------------------------------------------------------------------
4. Comments Regarding Definition of Positive Evidence
Some commenters request that we define what ``positive evidence''
is sufficient to demonstrate majority-employee union support.\218\ One
commenter contends that the Board should permit authorization cards,
dues-checkoff cards, membership applications, or any other evidentiary
means to establish majority status, consistent with 9(a) recognition in
other industries.\219\ Another commenter notes that the preamble to the
NPRM referred to extrinsic evidence in the form of employee signatures
on authorization cards or a petition, but the text of the proposed rule
did not.\220\
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\218\ See, e.g., Comment of Local 669.
\219\ Id.
\220\ Comment of AGC.
---------------------------------------------------------------------------
Although we find it unnecessary to modify the proposed rule's
wording in this regard, we clarify that this rule is not intended to
change the current standards regarding the forms of evidence that are
acceptable to demonstrate majority support. In Deklewa, the Board
stated that it did ``not mean to suggest that the normal presumptions
would not flow from voluntary recognition accorded to a union by the
employer of a stable work force where that recognition is based on a
clear showing of majority support among the unit employees, e g., a
valid card majority.'' 282 NLRB at 1387 fn. 53 (citing Island
Construction Co., 135 NLRB 13 (1962)). ``That is,'' the Board
continued, Deklewa was not ``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.''
Id. The instant rule is not intended to change that principle.
Accordingly, the same contemporaneous showing of majority support that
would suffice to establish that employees wish to be represented by a
labor organization in collective bargaining with their employer under
Section 9(a) in non-construction industries will also suffice to
establish recognition under Section 9(a) in construction-industry
bargaining relationships. It is well established that signed
authorization cards or petitions from a majority of bargaining-unit
employees is adequate proof, as is the result of a private election
conducted under the auspices of a neutral party pursuant to a voluntary
pre-recognition or neutrality agreement. There is less certainty in
Board precedent whether other extrinsic evidence, such as that
mentioned by Local 669, would be sufficient to prove majority
support.\221\ Accordingly, we leave any further development of these
evidentiary standards to future proceedings. Cf. Mobil Oil Expl. &
Producing Se. Inc., 498 U.S. at 231 (``[A]n agency need not solve every
problem before it in the same proceeding.''); Advocates for Highway &
Auto Safety, 429 F.3d at 1147 (``Agencies surely may, in appropriate
circumstances, address problems incrementally.'').
---------------------------------------------------------------------------
\221\ See discussion of evidentiary factors in Deklewa, 282 NLRB
at 1383-1384.
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5. Comments Regarding Prospective Application
Some commenters argue that the Board should apply the rule only to
construction-industry bargaining relationships entered into on or after
the date the rule goes into effect.\222\ We agree, and we have modified
the regulatory text to specify that the rule applies only prospectively
to a voluntary recognition extended on or after the effective date of
the 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. Relatedly, two commenters question how the
rule will affect successor agreements.\223\ We clarify that, if the
successor agreement is reached by parties that entered into a voluntary
9(a) recognition agreement before the effective date of the rule, then
the rule will not apply to that agreement. Further, once parties prove
a 9(a) relationship under the rule, they will not be required to
reestablish their 9(a) status for successor agreements.
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\222\ Comments of IUOE; LlUNA MAROC.
\223\ Comments of MCAA; LIUNA MAROC.
---------------------------------------------------------------------------
6. Comments Regarding Section 10(b) of the Act
Some commenters urge the Board to incorporate a Section 10(b) 6-
month limitation for challenging a construction-industry union's
majority status.\224\ In Casale Industries, the Board held that it
would ``not entertain a claim that majority status was lacking at the
[[Page 18391]]
time of recognition'' where ``a construction[-]industry employer
extends 9(a) recognition to a union, and 6 months elapse without a
charge or petition.'' 311 NLRB 951, 953 (1993). The D.C. and Fourth
Circuits have expressed doubts regarding that aspect of Casale, while
the Tenth and Eleventh Circuits have upheld the Board's position.
Compare Nova Plumbing, 330 F.3d at 539, and American Automatic
Sprinkler Systems, 163 F.3d 209, 218 fn. 6 (4th Cir. 1998), with Triple
C Maintenance, 219 F.3d 1147, 1156-1159 (10th Cir. 2000), and NLRB v.
Triple A Fire Protection, 136 F.3d 727, 736-737 (11th Cir. 1998). Some
former Board Members also have disagreed with that aspect of Casale.
See King's Fire Protection, Inc., 362 NLRB at 1062 (Member Miscimarra,
dissenting in part); Saylor's Inc., 338 NLRB 330, 332-333 fn. 9 (2002)
(Member Cowen, dissenting); Triple A Fire Protection, 312 NLRB 1088,
1089 fn. 3 (1993) (Member Devaney, concurring). Cf. Painters (Northern
California Drywall Assn.), 326 NLRB 1074, 1074 fn. 1 (1998) (Member
Brame finding it unnecessary to pass on validity of Casale).
---------------------------------------------------------------------------
\224\ Comments of NABTU; Local 669. See also Reply Comment of
Local 669.
---------------------------------------------------------------------------
For several reasons, we decline to adopt a Section 10(b) 6-month
limitation on challenging a construction-industry union's majority
status by filing a petition for a Board election, and we overrule
Casale to the extent that it is inconsistent with the instant rule.
Specifically, 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.
As an initial matter, we note that Section 10(b) applies only to
unfair labor practices and that this aspect of the 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.
Further, we agree with the doubts expressed by the D.C. and Fourth
Circuits, and by some former Board Members, regarding Section 10(b)'s
applicability to challenges to a construction-industry union's
purported 9(a) status. Nova Plumbing, 330 F.3d at 539; American
Automatic Sprinkler Sys., 163 F.3d at 218 fn. 6; King's Fire
Protection, Inc., 362 NLRB at 1062 (Member Miscimarra, dissenting in
part); Saylor's, 338 NLRB at 332-333 fn. 9; Triple A Fire Protection,
312 NLRB at 1089 fn. 3. It is not unlawful for a construction-industry
employer and union to establish an 8(f) relationship without majority-
employee union support. Thus, the issue is whether the parties formed
an 8(f) or a 9(a) relationship, and only if the parties formed a 9(a)
relationship could there be an unfair labor practice that would trigger
Section 10(b)'s 6-month limitation. See also Brannan Sand & Gravel Co.,
289 NLRB at 982 (predating Casale; nothing ``precludes inquiry into the
establishment of construction[-]industry bargaining relationships
outside the 10(b) period'' because ``[g]oing back to the beginning of
the parties' relationship . . . simply seeks to determine the majority
or nonmajority[-]based nature of the current relationship and does not
involve a determination that any conduct was unlawful''). In other
words, Casale begs the question by assuming the very 9(a) status that
ought to be the object of inquiry.
In addition, we find that the Board's pertinent reasoning in Casale
was flawed. See King's Fire Protection, Inc., 362 NLRB at 1062-1063
(Member Miscimarra, dissenting in part). For decades, the Board had
held that in other industries, Section 10(b) barred untimely
allegations that an employer unlawfully extended 9(a) recognition to a
minority union. North Bros. Ford, Inc., 220 NLRB 1021, 1021-1022 (1975)
(citing Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411
(1960)). In Casale, the Board stated that ``[p]arties in the
construction industry are entitled to no less protection.'' 311 NLRB at
953. However, 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, which is
virtually certain to have a term longer than 6 months. Thus, it is
highly unlikely that they will file a petition challenging the union's
status within 6 months of recognition.
Finally, and most significantly, we find 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 as
recognized by Congress in enacting Section 8(f) and by the Board and
the Supreme Court in deciding Deklewa and Garment Workers,
respectively. Garment Workers, 366 U.S. at 737-741; King's Fire
Protection, Inc., 362 NLRB at 1062 (Member Miscimarra, dissenting in
part); John Deklewa & Sons, 282 NLRB at 1378.
Therefore, we overrule Casale in relevant part and will evaluate a
construction-industry union's purported 9(a) recognition at any time
that an election petition is filed.
7. Comments Regarding Filing Unfair Labor Practice Charges
Some commenters argue that the rule is unnecessary because it is
already unlawful for any labor organization to enter into a 9(a)
collective-bargaining agreement with any employer absent majority
support.\225\ They correctly point out that an employer violates the
Act by granting Section 9(a) recognition to a union that does not enjoy
majority status, and that a union similarly violates the Act by
accepting such recognition when it does not represent a majority of
employees. The remedy in such situations is to order the parties to
cease recognition of the union as employees' collective-bargaining
representative and to cease maintaining or giving effect to the
collective-bargaining agreement.
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\225\ Comments of NABTU; Professor Kulwiec; Senator Murray;
Local 669; Springfield. See also Reply Comments of NABTU; Local 669.
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The commenters fail to recognize that, until there is a Board
decision finding merit to such unfair labor practice allegations, any
election petition remains barred. Moreover, when a decision issues
finding merit in such allegations, the remedy does not include an
election. There is no remedy of a Board election in an unfair labor
practice case finding that an employer and union entered into a Section
9(a) collective-bargaining agreement when the union did not enjoy
majority support. By requiring positive evidence that a construction-
industry union demanded 9(a) recognition and that the employer granted
such recognition based on a contemporaneous showing of majority-
employee support, the rule better protects employee free choice in a
representation proceeding.\226\
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\226\ We note that the rule applies to the question of whether
an election petition is barred in a representation proceeding and
does not directly implicate unfair labor practice rules.
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8. Comments Regarding Effects on Certain Bargaining Relationships
Some commenters argue that the rule will adversely affect older
bargaining relationships in the construction industry and/or small
construction-industry unions.\227\ They argue that the longer a
bargaining relationship lasts, the more difficult it will be for a
union to produce positive evidence of majority support when the demand
for recognition could have occurred years or even decades prior.
Therefore, those bargaining relationships would become
[[Page 18392]]
less stable due to the passage of time. Relatedly, these commenters
contend that the rule imposes an onerous new recordkeeping requirement
and that small local unions would lack the resources to retain records
of employee support.
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\227\ Comments of NABTU; AFL-CIO; IUOE; CWA; Professor Kulwiec;
Local 304; MRCC; AFT. See also Reply Comment of Local 669.
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As explained above, the rule will apply only prospectively to an
employer's voluntary recognition extended on or after the effective
date of the 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. Thus, the rule will not affect or
destabilize longstanding bargaining relationships in the construction
industry. Further, although we acknowledge that the rule will
incentivize unions to keep a record of majority-employee union support
moving forward, we do not consider such a minor administrative
inconvenience a sufficient reason to permit employers and unions to
circumvent employees' rights.
9. Comments Regarding Frequency of Section 9(a) Agreements in the
Construction Industry
Some commenters argue that the rule is not appropriate because the
issue of whether a construction-industry employer recognized or entered
into a petition-barring agreement with a union as the 9(a)
representative of its employees occurs very infrequently.\228\ However,
what matters here is the statutory right, not how often it is
implicated. The Act protects employees' free choice to select their
9(a) bargaining representative. As one commenter notes, even though the
rule may affect a small number of cases, that does not mean that there
are not good reasons to adopt it.\229\
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\228\ Comments of Professor Kulwiec; EPI; IUOE; MRCC; LIUNA
MAROC.
\229\ Comment of NRWLDF.
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10. Comments Regarding Issues in Representation Proceedings
Other commenters raise concerns regarding the Board's ability to
rule on parol evidence in representation-case proceedings, which are
non-adversarial and do not allow credibility determinations.\230\
However, in cases where there are authentication issues, the Board
expects that the process will be similar to that followed in an
administrative investigation of a showing of interest: the Region will
examine the signatures and handwriting comparators to determine whether
a majority of unit employees supported the union at the time of
recognition. Thus, these concerns are unwarranted.
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\230\ Comments of NABTU; IUOE. See also Reply Comment of NABTU.
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11. Comments Regarding Contract Law
One commenter asserts that contract language alone should be
sufficient to demonstrate majority status because principles of
contract construction hold parties to their obligations, including
contract wording stating that a union has majority support.\231\
Relatedly, other commenters argue that the instant rule is contrary to
the rules of contract law because it would require extrinsic evidence
regardless of how clear the contract language is.\232\ However,
construction-industry employers and unions may enter a 9(a)
relationship only where a majority of employees support the union.
Thus, contract language alone is insufficient where a majority of
employees never supported the union. Further, requiring positive
evidence of majority support, even where contract language initially
appears clear, is necessary to ensure that unions and employers do not
collude, thereby protecting employee free choice consistent with the
congressional intent expressed in Section 8(f) and with the
majoritarian principles discussed by the Supreme Court in Garment
Workers, 366 U.S. at 737.
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\231\ Comment of Professor Kulwiec.
\232\ Comment of Senator Murray; CWA.
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12. Comments Regarding Adequacy of Justification for Rule
Several commenters argue that the Board failed to adequately
justify the proposed rule, asserting that the Board failed to offer
evidence in support, analyze relevant data, or consider contrary
arguments.\233\ We disagree. The Board has fully justified the rule
based on available evidence and relevant data, including prior Board
precedent in Deklewa and its progeny, negative reception by the D.C.
Circuit in Nova Plumbing and Colorado Fire Sprinkler, and the rights
protected by the Act, particularly employees' right of free choice in
selecting (or refraining from selecting) a 9(a) representative.
Further, we have fully considered and addressed all contrary arguments,
as demonstrated by our responses in this rulemaking.
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\233\ Comments of AFL-CIO; NABTU; EPI; United Brotherhood of
Carpenters and Joiners of America; UA. See also Reply Comment of
NABTU.
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13. Comments Suggesting Modifications to the Rule
Some commenters suggest modifications to the rule.
First, some commenters propose that the rule should not apply to RM
petitions.\234\ However, it is well established that an 8(f)
relationship will not bar an RM petition. See John Deklewa & Sons, 282
NLRB at 1385 fn. 42. Thus, it is appropriate to require the party
seeking to establish 9(a) status to present positive evidence of a
contemporaneous showing of majority support, and we reject the
commenters' proposal.
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\234\ Comments of LIUNA MAROC; NABTU.
---------------------------------------------------------------------------
Second, some commenters contend that the issue of whether contract
language alone can establish 9(a) status has implications beyond
elections--i.e., to unfair labor practice proceedings--and that the
Board should address those contexts.\235\ However, this request is
beyond the scope of the rule, which only addresses representation
proceedings. Thus, we deny the request. We will address any unfair
labor practice issues as they arise in future, appropriate proceedings.
Cf. Mobil Oil Expl. & Producing Se. Inc., 498 U.S. at 231 (``[A]n
agency need not solve every problem before it in the same
proceeding.''); Advocates for Highway & Auto Safety, 429 F.3d at 1147
(``Agencies surely may, in appropriate circumstances, address problems
incrementally.'').
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\235\ Comments of AGC; Senator Murray; IUOE.
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Third, one commenter proposes to prohibit automatic renewal of 8(f)
agreements.\236\ But our concern here is to remove obstructions to
Section 8(f)'s second proviso, and automatic renewal of 8(f) agreements
does not obstruct that proviso because employees and rival unions are
free to file election petitions at any time an 8(f) agreement is in
effect, as the Board made clear in Deklewa. Accordingly, we reject this
proposal.
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\236\ Comment of M&L.
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Fourth, one commenter proposes that we require a contemporaneous
showing of majority support in all industries because collective-
bargaining relationships in other industries are also lawful only if
the union had majority support at the time of recognition or Board
election.\237\ However, the construction industry is unique in allowing
voluntary recognition of unions that are supported by a minority of
employees or by no employees at all,\238\ and this rule is intended to
address issues, unique to that industry, that arise when assessing
whether a relationship is properly treated as a 9(a), rather than 8(f),
relationship. Thus, we reject the commenter's proposal. Relatedly, the
same commenter requests that we specify that 9(a) recognition can
[[Page 18393]]
only occur if an employer employs a substantial and representative
complement of employees. We note that the final rule does not disturb
established precedent on this point.
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\237\ Comment of CNLP.
\238\ An employer in the construction industry may recognize a
union as the 8(f) bargaining representative of employees it has yet
to hire. Indeed, an 8(f) agreement is often referred to as a ``pre-
hire'' agreement.
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Finally, we reject one commenter's argument that a 9(a)
relationship should be created only through a Board election.\239\ This
argument is contrary to well-established precedent permitting voluntary
recognition. It is also at odds with language in the Act itself. See
Section 9(a), 29 U.S.C. 159(a) (referring to representatives
``designated or selected'' for the purposes of collective bargaining);
Section 9(c), 29 U.S.C. 159(c) (providing for a Board-conducted
election based on a petition stating, in relevant part, that the
employer ``declines to recognize'' a labor organization as employees'
9(a) representative).
---------------------------------------------------------------------------
\239\ Comment of NFIB.
---------------------------------------------------------------------------
14. Comments Requesting Clarifications
Some commenters seek clarifications regarding the rule.
Two commenters question whether employers must review evidence of
majority-employee union support at the time of recognition.\240\ This
rule only requires the party seeking to establish 9(a) status to
provide evidence demonstrating that a majority of unit employees
supported the union at the time of recognition; the rule does not also
require parties to show that the employer reviewed the evidence at that
time.
---------------------------------------------------------------------------
\240\ Comments of NABTU; UA.
---------------------------------------------------------------------------
Another commenter seeks clarification regarding whether 9(a)
relationships created before the effective date of the rule will
automatically revert to 8(f) relationships.\241\ As explained, the rule
will apply only prospectively to an employer's voluntary recognition
extended on or after the effective date of the 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. Thus, the rule will not disrupt longstanding 9(a) relationships.
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\241\ Comment of AGC.
---------------------------------------------------------------------------
Two commenters ask whether the new voluntary-recognition window
period, discussed in Sec. 103.21(a) of the final rule, will apply to
9(a) bargaining relationships in the construction industry.\242\
Although we do not believe it is necessary to modify the wording of the
final rule in this regard, the answer is yes--the window period
applies, along with the other requirements of Sec. 103.21(a).
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\242\ Comments of the Chamber; Senator Murray.
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Finally, one commenter questions how the rule will affect multi-
employer bargaining units, me-too agreements, jobsite-only agreements,
and voter eligibility.\243\ These questions are fact dependent, and we
believe that they are more properly addressed as they arise in future,
appropriate proceedings.
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\243\ Comment of MCAA.
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IV. Justification for the Final Rule
For all of the reasons set forth above and in the NPRM, we believe
that all of the aspects of the final rule further the Act's overarching
goals of protecting employees' free, informed choice in designating or
selecting their representatives, while also promoting industrial
stability and collective bargaining and ensuring that unions claiming
Section 9(a) representative status have the requisite majority-employee
support. Accordingly, we find it appropriate to issue this final rule.
V. Other Statutory Requirements
A. The Regulatory Flexibility Act
Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (RFA), 5 U.S.C.
601-612, requires an agency promulgating a final rule to prepare a
final regulatory flexibility analysis when the regulation will have a
significant impact on a substantial number of small entities. An agency
is not required to prepare a final regulatory flexibility analysis if
the agency head certifies that the rule will not have a significant
economic impact on a substantial number of small entities. 5 U.S.C.
605(b). In the NPRM, although the Board believed that this rule would
not have a significant economic impact on a substantial number of small
entities, the Board issued its Initial Regulatory Flexibility Analysis
(IRFA) to provide the public the fullest opportunity to comment on the
proposed rule. See 84 FR at 39953. The Board solicited comments from
the public that would shed light on potential compliance costs that may
result from the rule and that the Board had not identified or
anticipated.
The RFA does not define either ``significant economic impact'' or
``substantial number of small entities.'' \244\[thinsp]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.'' \245\
---------------------------------------------------------------------------
\244\ 5 U.S.C. 601.
\245\ Small Business Administration Office of Advocacy, A Guide
for Government Agencies: How to Comply with the Regulatory
Flexibility Act 18 (Aug. 2018), https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf (last visited Mar.
23, 2020).
---------------------------------------------------------------------------
We anticipate that the rule will impose low costs of compliance on
small entities, related to reviewing and understanding the substantive
changes to the blocking-charge policy, voluntary-recognition-bar
doctrine, and modified requirements for proof of majority-based
voluntary recognition under Section 9(a) in the construction industry.
There may also be a low cost for a small entity to prepare, post, and
distribute a notice of voluntary recognition under the modified
voluntary-recognition bar. In addition, there may be an unknown cost
for small entities to participate in elections that might not have
occurred but for the final rule and a de minimis cost for small labor
unions representing employees in the building and construction trades
to retain proof of their majority support.
1. Statement of the Need for, and Objectives of, the Rule
Detailed descriptions of this final rule, its purpose, objectives,
and the legal basis are contained earlier in the summary and
supplementary information sections. In brief, the final rule includes
three provisions that are necessary to accomplish the objective of
better protecting the statutory rights of employees to express their
views regarding representation. First, the final rule modifies the
current blocking-charge policy and implements two new procedures to
process representation petitions where a party files or has filed an
unfair labor practice charge--a vote-and-impound procedure or a vote-
and-count procedure. Next, the final rule modifies the voluntary-
recognition-bar doctrine by providing employees and rival unions with a
45-day window period in which to file an election petition after an
employer voluntarily recognizes a union based on demonstrated majority
support. Lastly, the final rule modifies the requirements for proof of
majority-based voluntary recognition under Section 9(a) in the building
and construction industry by eliminating the possibility of
establishing Section 9(a) status based solely on contract language
drafted by the employer and/or union. Thus, the final rule assists the
Board in its fundamental obligation to protect employee free choice and
Section 7 rights.
[[Page 18394]]
2. Statement of the Significant Issues Raised by the Public Comments in
Response to the Initial Regulatory Flexibility Analysis, a Statement of
the Assessment of the Agency of Such Issues, and a Statement of any
Changes Made in the Proposed Rule as a Result of Such Comments
a. Response to Comments Concerning Estimated Compliance Costs of the
Rule
Several commenters criticized the Board's quantification of costs
associated with each of the three changes. Generally, the AFL-CIO
asserts that the Board's definition of an economic impact is
underinclusive, its analysis was limited to easily quantifiable costs,
and it failed to attempt to quantify other costs by assessing Board
data.
Regarding the blocking-charge policy-modification, the AFL-CIO
accuses the Board of incorrectly professing an inability to quantify
the cost of participating in additional elections. It asserts that the
Board has awarded such costs as a remedy in unfair labor practice cases
and, therefore, could quantify such costs in the IRFA. Further, it
claims that the Board could have used the same method used to quantify
the cost of learning about the rule to quantify the cost of holding an
election, i.e., specifying the personnel that would participate in an
election, their wage rate, and a projection of hours spent on an
election, or could have used election costs awarded in past
arbitrations.
Regarding the modification to the voluntary-recognition bar, the
International Brotherhood of Electrical Workers asserts that the Board
failed to assess the cost of ``delayed bargaining and disruption of
bargaining relationships that would be caused by the proposed notice
posting requirement.'' However, no data or further information was
provided.
Both the AFL-CIO and the International Brotherhood of Electrical
Workers generally fault the Board for failing to analyze certain costs
associated with the change in the evidence necessary to prove a
majority-based bargaining relationship in the construction industry and
to thus block an election petition. According to the International
Brotherhood of Electrical Workers, the Board further failed to analyze
the cost of the disruption to established collective-bargaining
relationships in the construction industry that would occur because of
the rule.
Respectfully, those commenters do not raise direct economic impacts
under the RFA. The RFA does not require a regulatory agency to consider
speculative and wholly discretionary responses to the rule, or the
indirect impact on every stratum of the economy. What the statute
requires is that the agency consider the direct burden that compliance
with a new regulation will likely impose on small entities. See Mid-Tex
Elec. Coop., Inc. v. FERC, 773 F.2d 327, 342 (DC Cir. 1985) (``[I]t is
clear that Congress envisioned that the relevant `economic impact' was
the impact of compliance with the proposed rule on regulated small
entities''); accord White Eagle Coop. Ass'n v. Conner, 553 F.3d 467,
478 (7th Cir. 2009); Colorado State Banking Bd. v. Resolution Trust
Corp., 926 F.2d 931, 948 (10th Cir. 1991).
This construction of the RFA, requiring agencies to consider only
direct compliance costs, finds support in the text of that Act. Section
603(a) of the RFA states that if an IRFA is required, the IRFA ``shall
describe the impact of the proposed rule on small entities.'' 5 U.S.C.
603(a). Although the term ``impact'' is undefined, its meaning can be
gleaned from Section 603(b), which recites the required elements of an
IRFA. One such element is ``a description of the projected reporting,
recordkeeping and other compliance requirements of the proposed rule,
including an estimate of the classes of small entities which will be
subject to the requirement and the type of professional skills
necessary for preparation of the report or record.'' 5 U.S.C.
603(b)(4). Section 604 further corroborates the Board's conclusion, as
it contains an identical list of requirements for a final regulatory
flexibility analysis (if one is required). 5 U.S.C. 604(b)(4).
Additional support for confining the regulatory analysis to direct
compliance costs is found in an authoritative guide published by the
Office of Advocacy of the United States Small Business Administration
(SBA). In that guide--A Guide for Government Agencies: How to Comply
with the Regulatory Flexibility Act (SBA Guide) (Aug. 2018), https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf-the SBA explains that ``other compliance requirements'' under
section 603 include things such as capital costs for equipment, costs
of modifying existing processes and procedures, lost sales and profits,
changes in market competition, extra costs associated with the payment
of taxes or fees, and hiring employees. SBA Guide at 37. These are all
direct, compliance-based costs.
In the IRFA, we noted that the only identifiable compliance costs
imposed by the proposed rule related to reviewing and understanding the
substantive changes and the minimal cost associated with the posting of
a notice of voluntary recognition. 84 FR at 39956. Otherwise, there
will be no ``reporting, recordkeeping and other compliance
requirements'' for small entities. See 5 U.S.C. 603(b)(4) & 604(b)(4).
The same is true of the final rule, except to the extent that the final
rule requires electronic distribution of notices to employees where an
employer customarily communicates with employees electronically--at
most, a minimal additional cost.
Consistent with these principles, the Board rejects the view that
it must analyze the indirect and speculative costs of delayed
bargaining or the disruption of bargaining relationships. The D.C.
Circuit has firmly rejected the notion that a regulating agency must
analyze every indirect and remote economic impact. See Mid-Tex Elec.
Coop., Inc., 773 F.2d at 343 (``Congress did not intend to require that
every agency consider every indirect effect that any regulation might
have on small businesses in any stratum of the national economy.'').
``[R]equir[ing] an agency to assess the impact on all of the nation's
small businesses possibly affected by a rule would be to convert every
rulemaking process into a massive exercise in economic modeling, an
approach we have already rejected.'' Cement Kiln Recycling Coal. v.
EPA, 255 F.3d 855, 869 (D.C. Cir. 2001) (citing Mid-Tex Elec. Coop.,
Inc., 773 F.2d at 343).
Notwithstanding the indirect nature of the potential impacts raised
by these comments, we also disagree with the notion that the rule will
upset existing collective-bargaining relationships. We specifically
note that the final rule regarding the requirement of proof to
demonstrate majority-based 9(a) status in the construction industry has
been clarified to reflect that it will apply only to voluntary
recognitions extended on or after the effective date of this 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 this rule. Thus, established bargaining relationships will not be
disrupted. Further, we believe that the rule will promote 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. Labor-management stability will be promoted
when employees' rights are respected.
[[Page 18395]]
Furthermore, while the Board recognized the possibility that small
employers and unions may have to prepare for and participate in
elections that may not have occurred but for the rule, such a cost is
also speculative. Even if such a cost could be quantified, given how
relatively infrequently the issues in this rule arise in Board
proceedings, the cost would not affect a substantial number of small
entities. As we explain below, the rule would annually impact only 744
out of approximately 6 million small entities. See Section V.A.4. The
Board has neither a method to accurately determine the number of
elections that may occur as a result of the rule nor a method to
quantify the cost of participating in an election. In the cases cited
by the AFL-CIO where the Board has awarded elections costs as an
extraordinary remedy, the aggrieved party requested costs associated
with an election that had already occurred, Texas Super Foods, 303 NLRB
209 (1991), or costs associated with ``a prolonged attempt at
organization, requiring extraordinary expenditures,'' J. P. Stevens &
Co., 244 NLRB 407, 458 (1979), but neither decision stated the amount
awarded.\246\ The unknown cost of each of those elections was unique to
those particular elections, as are the costs associated with all
elections. The commenters do not appear to appreciate the number of
variables that may come into play when attempting to quantify the cost
of an election, such as the size of the petitioned-for unit, number of
facilities, geographic location, or strength of opposition or
favorability to union organization. Simply put, any attempt to quantify
this cost would be incredibly speculative.
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\246\ The arbitration decision cited by the AFL-CIO, Yale-New
Haven Hospital, Arbitration Proceedings Before Margaret M. Kern
(Oct. 23, 2007), includes an award of organizing expenses for the
union, but there, too, the union calculated and submitted the
expenses. Moreover, neither the employer nor the union are within
the SBA's small entity size standard. See fns. 250 & 254.
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b. Response to Comments Concerning Economic Impact on Small Labor
Unions
The International Brotherhood of Electrical Workers and the AFL-CIO
criticize the Board's IRFA analysis for failing to adequately
acknowledge and assess the potential impact of the rule on small labor
unions, particularly local labor unions. Neither commenter has
identified a specific ``impact'' that the IRFA did not address or that
is not addressed in this Section. In reviewing the comments on the
IRFA, we find no other compliance costs to small labor unions, other
than the very low cost relating to reviewing and understanding the rule
(and, in some cases, a de minimis cost to retain records relating to
proof of majority status), and no evidence presented shows that any
additional indirect cost to small labor unions would constitute a
significant impact.
c. Response to Comments Concerning Recordkeeping Requirements
The Board's IRFA stated that there may be a recordkeeping cost
imposed on small construction-industry labor unions, relating to the
retention of positive evidence that they demanded recognition as the
majority-supported collective-bargaining representative of employees in
the building and construction industries and that the employer granted
such recognition. See 84 FR at 39956. One commenter speculates that the
rule will create an onerous new recordkeeping requirement under which a
union is required to maintain records indicating its majority support
in perpetuity.\247\ Another commenter further speculates that small
local labor unions lack the sophisticated record-retention systems that
would be necessary under the rule.\248\ And still another commenter
asserts that the rule will require unions to expend funds to retain the
evidence of majority support.\249\ No commenter has identified any such
complex or sophisticated recordkeeping requirement.
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\247\ Comment of LIUNA MAROC.
\248\ Comment of Professor Kulwiec.
\249\ Comment of AFL-CIO.
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The RFA defines a ``recordkeeping requirement'' as ``a requirement
imposed by an agency on persons to maintain specified records,'' 5
U.S.C. 601(8), and the rule directly imposes no such requirement but we
acknowledge the very high likelihood that small construction industry
labor unions will choose to do so. Under this rule, however, there is
no reason for a small labor organization to implement a record-
retention system that is more sophisticated than their normal-course-
of-business records retention. In any event, beyond familiarization
costs, the Board finds that the rule imposes only a de minimis
additional cost for recordkeeping, and no comment presents empirical
evidence to the contrary.
d. Response to Comment Concerning Public Outreach
The AFL-CIO argues that the Board failed to conduct sufficient
outreach to small businesses, including small local unions, that will
be impacted by the rule. Most of the issues addressed by this rule have
been the subject of a robust public debate for several years. And in
conjunction with the official publication of the NPRM, the Board worked
to widely publicize the proposed rule. Upon issuance, the Board
published the NPRM and facts sheets on its website. See NLRB, Election
Protection Rule, https://www.nlrb.gov/about-nlrb/what-we-do/national-labor-relations-board-rulemaking/election-protection-rule (last visited
Mar. 23, 2020). On August 9, 2019, the Board issued a press release,
which was published on its website and distributed by email to
subscribers, notifying the public of the proposed rule. See NLRB Office
of Public Affairs, NLRB Proposes Rulemaking to Protect Employee Free
Choice (Aug. 9, 2019) https://www.nlrb.gov/news-outreach/news-story/nlrb-proposes-rulemaking-protect-employee-free-choice (last visited
Mar. 23, 2020). The press release was also shared on social media
through the Board's official Twitter and Facebook accounts. The Board
Members themselves have also discussed the proposed rule at various
public speaking engagements, including the annual meeting of the Labor
and Employment Law Section of the American Bar Association. Given the
foregoing efforts and the many comments the Board received in response
to the NPRM, we believe the public has been well informed, the pros and
cons of the rule have been thoroughly examined, and the impact of the
rule on the full range of small business entities governed by it have
been brought into sharp focus by individuals, businesses, labor unions,
and industry trade groups.
3. Response of the Agency to Any Comments Filed by the Chief Counsel
for Advocacy of the Small Business Administration in Response to the
Proposed Rule, and a Detailed Statement of any Change Made to the
Proposed Rule in the Final Rule as a Result of the Comments
The Chief Counsel of Advocacy of the Small Business Administration
did not file any comments in response to the proposed rule.
4. Description of and an Estimate of the Number of Small Entities to
Which the Rule Will Apply
To evaluate the impact of the final rule, the Board first
identified the universe of small entities that could be impacted by
changes to the blocking-charge and voluntary-recognition-bar policies,
as well as by elimination of the
[[Page 18396]]
contract language basis for 8(f) to 9(a) conversion in the construction
industry.
a. Blocking-Charge and Voluntary-Recognition-Bar Changes
The changes to the blocking-charge and voluntary-recognition-bar
policies 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 5,954,684 businesses with employees in
2016.\250\ Of those, 5,934,985 were small businesses with fewer than
500 employees.\251\ Although this final rule would apply only to
employers who meet the Board's jurisdictional requirements, the Board
does not have the means to calculate the number of excluded entities
(nor was data received on this particular issue).\252\ Accordingly, the
Board assumes for purposes of this analysis that the rule could impact
the great majority of the 5,934,985 small businesses.
---------------------------------------------------------------------------
\250\ See U.S. Department of Commerce, Bureau of Census, 2016
Statistics of U.S. Businesses (SUSB) Annual Data Tables by
Establishment Industry (Dec. 2018), https://www.census.gov/data/tables/2016/econ/susb/2016-susb-annual.html (from downloaded Excel
Table titled ``U.S., 6-digit NAICS'').
\251\ Id. The Census Bureau does not specifically define ``small
business'' but does break down its data into firms with fewer than
500 employees and those with 500 or more employees. Consequently,
the 500-employee threshold is commonly used to describe the universe
of small employers. For defining small businesses among specific
industries, the standards are defined by the North American Industry
Classification System (NAICS).
\252\ Pursuant to 29 U.S.C. 152(6) and (7), the Board has
statutory jurisdiction over private-sector employers whose activity
in interstate commerce exceeds a minimal level. NLRB v. Fainblatt,
306 U.S. 601, 606-607 (1939). To this end, the Board has adopted
monetary standards for the assertion of jurisdiction that are based
on the volume and character of the business of the employer. In
general, the Board asserts jurisdiction over employers in the retail
business industry if they have a gross annual volume of business of
$500,000 or more. Carolina Supplies & Cement Co., 122 NLRB 88
(1959). But shopping-center and office-building retailers have a
lower threshold of $100,000 per year. Carol Management Corp., 133
NLRB 1126 (1961). The Board asserts jurisdiction over non-retailers
generally where the value of goods and services purchased from
entities in other states is at least $50,000. Siemons Mailing
Service, 122 NLRB 81 (1959). The following employers are excluded
from the NLRB's jurisdiction by statute:
Federal, state and local governments, including public schools,
libraries, and parks, Federal Reserve banks, and wholly-owned
government corporations. 29 U.S.C. 152(2).
Employers that employ only agricultural laborers, those engaged
in farming operations that cultivate or harvest agricultural
commodities or prepare commodities for delivery. 29 U.S.C. 152 (3).
Employers subject to the Railway Labor Act, such as interstate
railroads and airlines. 29 U.S.C. 152(2).
---------------------------------------------------------------------------
These two changes will also impact all 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.'' \253\ The SBA's ``small
business'' standard for ``Labor Unions and Similar Labor
Organizations'' is $8 million in annual receipts.\254\ In 2012, there
were 13,740 labor unions in the U.S.\255\ Of these labor unions, 11,245
had receipts of less than $1,000,000; 2,022 labor unions had receipts
between $1,000,000 and $4,999,999; and 141 had receipts between
$5,000,000 and $7,499,999. In aggregate, 13,408 labor unions (97.6% of
total) are small businesses according to SBA standards.
---------------------------------------------------------------------------
\253\ 29 U.S.C. 152(5).
\254\ See 13 CFR 121.201.
\255\ The Census Bureau only provides data about receipts in
years ending in 2 or 7. The 2017 data have not been published, so
the 2012 data are the most recent available information regarding
receipts. See U.S. Department of Commerce, Bureau of Census, 2012
SUSB Annual Data Tables by Establishment Industry, https://www2.census.gov/programs-surveys/susb/tables/2012/us_6digitnaics_r_2012.xlsx (Classification #813930--Labor Unions and
Similar Labor Organizations) (last visited Mar. 23, 2020).
---------------------------------------------------------------------------
The blocking-charge policy change will be applied as a matter of
law only under certain circumstances in a Board proceeding, namely,
when a party to a representation proceeding files an unfair labor
practice charge and requests a delay in the count of ballots or the
certification of results after an election. Therefore, the frequency
with which the prior blocking-charge policy arose is indicative of the
number of small entities most directly impacted by the final rule. For
example, in Fiscal Year 2018, 1,408 petitions were filed and proceeded
to an election, and only 4 of those petitions were subject to a
blocking charge. Thus, the current blocking-charge policy directly
impacted 3.125% of petitions filed in Fiscal Year 2018, parties to
which would only constitute a de minimis number of all small entities
under the Board's jurisdiction.
Similarly, the number of small entities expected to be most
directly impacted by the modified voluntary recognition bar doctrine is
also low. When the modified voluntary recognition bar was previously in
effect, the Board tracked the number of requests for Dana notices,
which were used to inform employees that a voluntary recognition had
taken place and of their right to file a petition for an election.
Those notices are similar to the notices that would be required under
this final rule. From September 29, 2007, to May 13, 2011, the Board
received 1,333 requests for Dana notices, which is an average of 372
requests per year.\256\ Assuming each request was made by a distinct
employer and involved at least one distinct labor organization,
approximately 744 entities of various sizes were impacted each year
that the modified voluntary-recognition bar was in effect.\257\ Thus,
given our historic filing data, these numbers are very small relative
to the number of small employers and unions subject to the NLRA and
generally impacted by this change.
---------------------------------------------------------------------------
\256\ Lamons Gasket, 357 NLRB at 742.
\257\ Dana Corp., 351 NLRB at 441-442 (establishing a 45-day
``window period'' after voluntary recognition during which employees
could file an election petition supported by a 30-percent showing of
interest seeking decertification or representation by an alternative
union).
---------------------------------------------------------------------------
Throughout the IRFA, the Board requested comments or data that
might improve its analysis, 84 FR at 39954, 39957, but no additional
data was received regarding the number of small entities and unions to
which this change will apply.
b. Elimination of Contract Language Basis for Proving Majority-Based
Recognition in the Construction Industry
The Board believes that the proposed elimination of the contract-
language basis for proving majority-supported voluntary recognition is
relevant only to construction-industry small employers and labor unions
because Section 8(f) of the Act applies solely to such entities engaged
in the building and construction industries. These construction-
industry employers are classified under the NAICS Sector 23
Construction.\258\ Of the 640,951
[[Page 18397]]
employers included in those NAICS definitions, 633,135 are small
employers that fall under the SBA ``small business'' standard for
classifications in the NAICS Construction sector.\259\ In the NPRM, the
Board identified 3,929 small labor unions primarily operating in the
building and construction trades that fall under the SBA ``small
business'' standard for the NAICS classification ``Labor Unions and
Similar Labor Organizations'' of annual receipts of less than $7.5
million.\260\ In the IRFA, the Board requested comments or data that
might improve its analysis regarding the number of construction-
industry labor unions affected by the proposed rule, see 84 FR at
39955, but we did not receive any additional data regarding the number
of small labor unions to which the rule will apply.
---------------------------------------------------------------------------
\258\ These NAICS construction-industry classifications include
the following codes: 236115: New Single-Family Housing Construction
(except For-Sale Builders); 236116: New Multifamily Housing
Construction (except For-Sale Builders); 236117: New Housing For-
Sale Builders; 236118: Residential Remodelers; 236210: Industrial
Building Construction; 236220: Commercial and Institutional Building
Construction; 237110: Water and Sewer Line and Related Structures
Construction; 237120: Oil and Gas Pipeline and Related Structures
Construction; 237130: Power and Communication Line and Related
Structures Construction; 237210: Land Subdivision; 237310: Highway,
Street, and Bridge Construction; 237990: Other Heavy and Civil
Engineering Construction; 238110: Poured Concrete Foundation and
Structure Contractors; 238120: Structural Steel and Precast Concrete
Contractors; 238130: Framing Contractors; 238140: Masonry
Contractors; 238150: Glass and Glazing Contractors; 238160: Roofing
Contractors; 238170: Siding Contractors; 238190: Other Foundation,
Structure, and Building Exterior Contractors; 238210: Electrical
Contractors and Other Wiring Installation Contractors; 238220:
Plumbing, Heating, and Air-Conditioning Contractors; 238290: Other
Building Equipment Contractors; 238310: Drywall and Insulation
Contractors; 238320: Painting and Wall Covering Contractors; 238330:
Flooring Contractors; 238340: Tile and Terrazzo Contractors; 238350:
Finish Carpentry Contractors; 238390: Other Building Finishing
Contractors; 238910: Site Preparation Contractors; 238990: All Other
Specialty Trade Contractors. See U.S. Department of Commerce, Bureau
of Census, 2012 SUSB Annual Data Tables by Establishment Industry,
https://www2.census.gov/programs-surveys/susb/tables/2012/us_6digitnaics_r_2012.xlsx (last visited Mar. 23, 2020).
\259\ NAICS codes 236115-237130 and 237310-237990 have a small-
business threshold of $39.5 million in annual receipts; NAICS code
237210 has a threshold of $30 million in annual receipts; and NAICS
codes 238110-238990 have a threshold of $16.5 million in annual
receipts. See 13 CFR 121.201.
\260\ See 84 FR at 39955.
---------------------------------------------------------------------------
It is unknown how many of those small construction-industry
employers elect to enter into a 9(a) bargaining relationship with a
small labor union based on language in a collective-bargaining
agreement. However, again, 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 construction-industry employers
and unions. For example, only one case was filed in Fiscal Year 2017
where the Board ultimately had to determine whether a collective-
bargaining agreement was governed by Section 8(f) or 9(a).\261\ In
Fiscal Year 2016, no cases required the Board to determine whether a
collective-bargaining agreement was governed by 8(f) or 9(a). One case
was filed in Fiscal Year 2015 that came before the Board with the 8(f)
or 9(a) collective-bargaining agreement issue.\262\
---------------------------------------------------------------------------
\261\ See AFP Specialties, Inc., Case 07-RD-187706, 2017 WL
2212112, at *1 fn.1 (May 18, 2017).
\262\ See Loshaw Thermal Technology, LLC, Case 05-CA-158650,
2018 WL 4357198.
---------------------------------------------------------------------------
The historic filing data thus suggests that construction-industry
employers and labor unions will only be most directly impacted in a
small number of instances relative to the number of those types of
small entities identified above.
5. Description of the Projected Reporting, Recordkeeping, and other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities Which will be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
The RFA requires agencies to consider the direct burden that
compliance with a new regulation will likely impose on small
entities.\263\ Thus, the RFA requires the Board to determine the amount
of ``reporting, recordkeeping and other compliance requirements''
imposed on small entities. In providing its final regulatory
flexibility analysis, an agency may provide either a quantifiable or
numerical description of the effects of a rule or alternatives to the
rule, or ``more general descriptive statements if quantification is not
practicable or reliable.'' \264\
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\263\ See Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d at 342
(``[I]t is clear that Congress envisioned that the relevant
`economic impact' was the impact of compliance with the proposed
rule on regulated small entities.'').
\264\ See 5 U.S.C. 603(b)(4), 604(a)(4).
---------------------------------------------------------------------------
We conclude that the final rule imposes no capital costs for
equipment needed to meet the regulatory requirements; no lost sales and
profits resulting from the proposed rule; no changes in market
competition as a result of the proposed rule and its impact on small
entities or specific submarkets of small entities; and no costs of
hiring employees dedicated to compliance with regulatory requirements.
Small entities may incur some costs from reviewing the rule in
order to understand the substantive changes. To become generally
familiar with the new vote-and-impound or vote-and-count procedures and
the modified voluntary-recognition bar, we estimate that a human-
resources specialist at a small employer or labor union may take at
most 90 minutes to read the rule. It is also possible that a small
employer or labor union may wish to consult with an attorney, which we
estimate will require 1 hour. Using the Bureau of Labor Statistics'
estimated wage and benefit costs, the Board has assessed these labor
costs to be $164.51.\265\ The costs associated with the portion of the
rule that eliminates the contract-language basis for establishing
voluntary recognition under Section 9(a) are limited to small employers
and unions in the construction industry. To become generally familiar
with that change, in addition to the first two changes, we estimate
that a human-resources specialist at a small employer or union in the
construction industry may take at most 2 hours to read the entire rule.
Consultation with an attorney may take an additional 15 minutes, or 75
minutes to consult with an attorney regarding the entire rule. Thus,
the Board has assessed labor costs for small employers and unions in
the construction industry to be $211.25.
---------------------------------------------------------------------------
\265\ For wage figures, see May 2018 National Occupancy
Employment and Wage Estimates, found at https://www.bls.gov/oes/current/oes_nat.htm (last visited Mar. 23, 2020). The Board has been
administratively informed that BLS estimates that fringe benefits
are approximately equal to 40 percent of hourly wages. Thus, to
calculate total average hourly earnings, BLS multiplies average
hourly wages by 1.4. In May 2018, average hourly wages for a Human
Resources Specialist (BLS #13-1071) were $32.11. The same figure for
a lawyer (BLS #23-1011) was $69.34. Accordingly, the Board
multiplied each of those wage figures by 1.4 and added them to
arrive at its estimate. In the IRFA, we estimated these costs using
May 2017 National Occupancy Employment and Wage Estimates.
---------------------------------------------------------------------------
a. Costs Associated With Establishment of Vote and Impound or Vote-and-
Count Procedures
Although we do not foresee any additional compliance costs related
to eliminating the blocking-charge policy, this policy change would
cause some elections to occur sooner, and in some cases would lead to
elections that previously would not have occurred. Arguably, the time
compression of holding an election under the Board's typical election
timeline may create additional costs for small businesses that do not
have in-house legal departments or ready access to outside labor
attorneys or consultants, and that consequently need to pay to obtain
such assistance. Conversely, because the Board's current blocking-
charge policy appears susceptible to manipulation and abuse, the
elimination of that policy may result in fewer unfair labor practice
charges filed with the intent to forestall employees from exercising
their right to vote. This would reduce some costs for small employers
by eliminating the need to hire a labor attorney to defend against such
charges. It could also create additional costs for small labor unions
that have to prepare for an election that may have otherwise been
postponed or that may subsequently be set aside. In the IRFA, the Board
requested comments or data that might improve its analysis regarding
the estimated cost for preparing and participating in elections, see 84
FR at 39956, but--other than the AFL-CIO's comment referenced above--we
received no additional data regarding the average cost for preparing
for or participating in a Board election.
[[Page 18398]]
The Board believes that any costs from participating in quicker
elections or elections that would have not otherwise occurred are
limited to very few employers, comparing the limited number of Board
proceedings where an unfair labor practice charge has been filed
contemporaneously with an election petition with the high number of
employers that are subject to the Board's jurisdiction.
b. Costs Associated With Modification of the Voluntary-Recognition Bar
In a case in which an employer voluntarily recognizes a union, we
estimate that the employer will spend an estimated 1 hour and 45
minutes to comply with the rule. This includes: 30 minutes for the
employer (or union) to notify the local regional office of the Board in
writing of the grant of voluntary recognition by submitting a copy of
the recognition agreement; 60 minutes to open the notice sent from the
Board, insert certain information specific to the parties to the
voluntary recognition, post the notice physically and electronically
(depending on where and how the employer customarily posts notices to
employees), and distribute it electronically (if the employer
customarily communicates with employees electronically); and 15 minutes
to complete the certification-of-posting form to be returned to the
Region at the close of the notice-posting period. We assume that these
activities will be performed by a human-resources specialist for a
total cost of about $78.66.
The Board's modified voluntary-recognition bar will cause elections
to be held in a small number of cases in which the election petition
previously would have been dismissed, increasing costs for both
employers and unions. As stated previously, in the IRFA, the Board
requested comments or data that might improve its analysis regarding
the estimated cost for preparing for and participating in elections,
including those after a grant of voluntary recognition, see 84 FR at
39956, but we received no additional data, other than the AFL-CIO's
comment referenced above.
c. Costs Associated With Elimination of Contract-Language Basis for
Proving Majority-Based Recognition in the Construction Industry
Under current Board law, a construction-industry employer and union
can write into their collective-bargaining agreement that the union
showed or offered to show evidence of majority support and, in
combination with certain other contractual language, have the
bargaining relationship be governed under Section 9(a) as opposed to a
presumed 8(f) bargaining relationship. As described above, the final
rule eliminates the contract-language basis for establishing a 9(a)
bargaining relationship and thereby barring a petition in a
representation proceeding. However, the rule continues to allow two
other methods to establish a 9(a) bargaining relationship: a Board-
certified election and voluntary recognition based on demonstrated
majority support. In the handful of cases where an election petition is
filed involving one of the approximately 6 million small entities in
the United States, both the construction industry employer and labor
union would incur the cost of participating in an election. As noted
above, we are unable to quantify the cost of preparing for or
participating in a Board election. In cases where a construction-
industry employer voluntarily recognizes a union based on demonstrated
majority support, the union may incur an additional de minimis cost
related to the retention of the evidence of majority support, e.g.,
signed union authorization cards, for a longer period of time if it can
no longer rely on contractual language. No data or comments were
received relating to such costs, other than those comments described
above.
d. Overall Costs
We do not find the estimated $164.51 cost to small employers and
unions in order to review and understand the petition-processing
procedures and the modified voluntary recognition bar, or the estimated
$78.66 cost for an employer to comply with the notice requirements of
the modified recognition bar, to be significant within the meaning of
the RFA. We find the same with regard to the estimated cost of $211.25
for small employers and unions in the construction industry to review
and understand the elimination of the contract-language basis for
establishing voluntary recognition under Section 9(a), in addition to
the first two changes. In making these findings, one important
indicator is the cost of compliance in relation to the revenue of the
entity or the percentage of profits affected. Other criteria to be
considered are the following:
--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;
--Whether the cost of the proposed regulation will (a) eliminate more
than 10 percent of the businesses' profits; (b) exceed one percent of
the gross revenues of the entities in a particular sector, or (c)
exceed five percent of the labor costs of the entities in the sector.
The minimal cost to read and understand the rule, $164.51 or
$211.25, will not generate any such significant economic impacts, nor
will the minimal cost, $289.91 for employers to comply with the
modified recognition-bar notice posting.
6. Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each one of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities was Rejected
Pursuant to 5 U.S.C. 604(a)(6), agencies are directed to examine
``why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.'' In the IRFA, the Board requested comments identifying any
other issues and alternatives that it had not considered. See 84 FR at
39957.
Many comments suggested that the Board withdraw the proposed rule
and leave in place the current blocking-charge policy, voluntary-
recognition bar, and requirement of proof to show majority-based
recognition in the construction industry. We considered and rejected
these alternatives for the reasons stated above. Consequently, we
reject maintaining the status quo.
The AFL-CIO suggests several alternatives to the proposed
modification to the blocking-charge policy, including expedited
investigation of possible blocking charges, periodic review of charges
that are blocking an election, instructing regional directors to make
fuller use of their existing discretion to not block elections,
expanding exceptions in the blocking-charge policy, or limiting the
application of the new rule to charges not filed by the
petitioner.\266\ We have discussed, and rejected, these alternatives
for the reasons discussed in Section III.E. above.
---------------------------------------------------------------------------
\266\ CWA similarly stresses the existing discretion afforded to
regional directors as to whether to process a petition and conduct
an election if a charge and request to block an election has been
filed.
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[[Page 18399]]
In the NPRM, the Board considered exempting certain small entities.
See 84 FR at 39957. We received no comments on this potential
alternative and again reject this exemption as impractical because such
a large percentage of employers and unions would be exempt under the
SBA definitions, thereby substantially undermining the purpose of the
final rule. Additionally, given the very small quantifiable cost of
compliance, it is possible that the burden on a small business of
determining whether it fell 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. As the Supreme Court has
noted, ``[t]he [NLRA] is federal legislation, administered by a
national agency, intended to solve a national problem on a national
scale.'' NLRB v. Hearst Publ'ns, 322 U.S. 111, 123 (1944). As such,
this alternative is contrary to the objectives of this rulemaking and
of the NLRA.
None of the alternatives considered would adequately accomplish the
primary objective of issuing this rule--protection of employee free
choice--while minimizing costs on small businesses. Accordingly, we
believe that promulgating this final rule is the best regulatory course
of action.
B. Paperwork Reduction Act
In the NPRM, the Board explained that the proposed rule would not
impose any information-collection requirements and accordingly, the
proposed rule is not subject to the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq. See 84 FR at 39957. We have not received any
substantive comments relevant to the Board's analysis of its
obligations under the PRA.
C. Congressional Review Act
The three provisions of the final rule are substantive, and the
Board will submit this rule and required accompanying information to
the Senate, the House of Representatives, and the Comptroller General
as required by the Small Business Regulatory Enforcement Fairness Act,
Subtitle E (the Congressional Review Act or CRA), 5 U.S.C. 801-808.
Pursuant to the Congressional Review Act, the Office of Information and
Regulatory Affairs designated this rule as a major rule. Accordingly,
the rule will become effective June 1, 2020.
VI. Final Rule
For the reasons set forth in the preamble, the National Labor
Relations Board amends part 103 of title 29 of the Code of Federal
Regulations as follows.
List of Subjects in 29 CFR Part 103
Jurisdictional standards, Election procedures, Appropriate
bargaining units, Joint Employers, Remedial Orders.
PART 103--OTHER RULES
0
1. The authority citation for part 103 continues to read:
Authority: 29 U.S.C. 156, in accordance with the procedure set
forth in 5 U.S.C. 553.
0
2. Revise Sec. 103.20 to read as follows:
Sec. 103.20 Election procedures and blocking charges.
(a) Whenever any party to a representation proceeding files an
unfair labor practice charge together with a request that the charge
block the election process, or whenever any party to a representation
proceeding requests that its previously filed unfair labor practice
charge block the election process, the party shall simultaneously file,
but not serve on any other party, a written offer of proof in support
of the charge. The offer of proof shall provide the names of the
witnesses who will testify in support of the charge and a summary of
each witness's anticipated testimony. The party seeking to block the
election process shall also promptly make available to the regional
director the witnesses identified in its offer of proof.
(b) If charges are filed alleging violations other than those
described in paragraph (c) of this section, the ballots will be
promptly opened and counted at the conclusion of the election.
(c) If charges are filed 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, or a charge is filed that alleges
an employer has dominated a union in violation of section 8(a)(2) and
seeks to disestablish a bargaining relationship, the regional director
shall impound the ballots for 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. If a complaint issues with respect to the
charge at any point prior to expiration of that 60-day post-election
period, then the ballots shall continue to be impounded until there is
a final determination regarding the charge and its effect, if any, on
the election petition. If the charge is withdrawn or dismissed at any
time during that 60-day period, or if the 60-day period ends without a
complaint issuing, then the ballots shall be promptly opened and
counted. The 60-day period will not be extended, even if more than one
unfair labor practice charge is filed serially.
(d) For all charges described in paragraphs (b) or (c) of this
section, 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.
0
3. Add Sec. 103.21 to read as follows:
Sec. 103.21 Processing of petitions filed after voluntary
recognition.
(a) An employer's voluntary recognition of a labor organization as
exclusive bargaining representative of an appropriate unit of the
employer's employees under section 9(a) of the Act, and the first
collective-bargaining agreement executed by the parties on or after the
date of such voluntary recognition, will not bar the processing of an
election petition unless:
(1) The employer and/or the labor organization notifies the
Regional Office that recognition has been granted;
(2) The employer posts, in conspicuous places, including all places
where notices to employees are customarily posted, a notice of
recognition (provided by the Regional Office) 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 described in paragraph
(a)(2) of this section electronically to employees in the petitioned-
for unit, if the employer customarily communicates with its employees
electronically; and
(4) 45 days from the posting date pass without a properly supported
petition being filed.
(5) The notice described in paragraph (a)(2) of this section shall
state as follows:
Federal law gives employees the right to form, join, or assist a
union and to choose not to engage in these protected activities.
An employer may lawfully recognize a union based on evidence
(such as signed authorization cards) indicating that a majority of
employees in an appropriate bargaining unit desire its
representation, without an election supervised by the National Labor
Relations Board.
Once an employer recognizes a union as the employees' exclusive
bargaining representative, the employer has an obligation to bargain
with the union in good
[[Page 18400]]
faith in an attempt to reach a collective-bargaining agreement, and
that obligation is not delayed or otherwise impacted by this notice.
The National Labor Relations Board is an agency of the United
States Government and 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.
[Employer] on [date] recognized [Union] as the employees'
exclusive bargaining representative based on evidence indicating
that a majority of employees in [described bargaining unit] desire
its representation.
All employees, including those who previously signed cards in
support of [Union], have the right to be represented by a union of
their choice or by no union at all.
Within 45 days from the date of this notice, a petition
supported by 30 percent or more of the unit employees may be filed
with the National Labor Relations Board for a secret-ballot election
to determine whether or not the unit employees wish to be
represented by [Union], or 30 percent or more of the unit employees
can support another union's filing of a petition to represent them.
Any properly supported petition filed within the 45-day window
period will be processed according to the National Labor Relations
Board's normal procedures.
A petition may be filed within the 45-day window period even if
[Employer] and [Union] have already reached a collective-bargaining
agreement.
If no petition is filed within the 45-day window period, the
Union's status as the unit employees' exclusive bargaining
representative will be insulated from challenge for a reasonable
period of time, and if [Employer] and [Union] reach a collective-
bargaining agreement during that insulated reasonable period, an
election cannot be held for the duration of that collective-
bargaining agreement, up to 3 years.
(b) This section shall be applicable to an employer's voluntary
recognition on or after the effective date of this rule.
0
4. Add Sec. 103.22 to read as follows:
Sec. 103.22 Proof of majority-based bargaining relationship between
employer and labor organization in the construction industry.
(a) A voluntary recognition or collective-bargaining agreement
between an employer primarily engaged in the building and construction
industry and a labor organization will not bar any election petition
filed pursuant to section 9(c) or 9(e) of the Act absent positive
evidence that the union unequivocally demanded recognition as the
section 9(a) 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. Collective-bargaining
agreement language, standing alone, will not be sufficient to provide
the showing of majority support.
(b) This section shall be applicable to an employer's voluntary
recognition extended on or after the effective date of this 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
this rule.
Dated: March 24, 2020.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2020-06470 Filed 3-31-20; 8:45 am]
BILLING CODE 7545-01-P
