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The National Labor Relations Board (NLRB) continues its efforts to rescind anti-union rules adopted by the Trump-era Board. In proposed rules published on November 4, 2022, the Biden-Board seeks to undo rules adopted in 2020 and return to the pre-2020 policies, making it more difficult to remove a union with the following three changes:

  1. reinstating a "blocking-charge" policy that would allow union-filed unfair labor practice charges to delay a decertification vote while the charge is pending,
  2. extending the "voluntary recognition" bar, which bars challenges to voluntary, lawful employer recognition of a union for at least six months and no more than one year (the Trump-era rule provided a 45-day window after voluntary recognition in which an election petition could be filed),
  3. making it simpler for unions in the construction industry to convert section 8(f) pre-hire agreements (that do not require majority support) to section 9(a) collective bargaining agreements (which do require majority support), by contract terms that acknowledge majority support without requiring any proof of such support.
Actions to take now

While these rule changes have only been proposed and not enacted yet, construction employers should review proposed 8(f) agreements with particular care, and not agree to proposed language which references Section 9(a) of the National Labor Relations Act (NLRA).

Comments or objections to proposed rules

The proposed rules are accessible here. Interested parties have until January 3, 2023 to comment on the proposed rules. Employers with questions about the proposed rules and how they might affect their relationships with unions in the future should reach out to a member of Miller Nash’s labor relations team.

The legal issues impacting workplaces are ever changing (Employment Law in Motion!) and since publication, new or additional information not referenced in this blog post may be available.

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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