U.S. labor board moves to nix Trump-era union election rule

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S. REUTERS/Andrew Kelly
  • Rule helped anti-union workers dissolve their unions
  • Unions blocked from delaying decertification votes
  • Agency says rule interferes with free choice

(Reuters) - The U.S. National Labor Relations Board on Thursday proposed rolling back a Trump-era rule that makes it easier for workers to dissolve their unions, saying it could interfere with the right of employees to make free, informed decisions on union representation.

The Democrat-led board in a proposal published in the Federal Register said the 2020 rule, which was heavily criticized by unions, forced workers to vote in elections to certify or dissolve unions even after they had been subjected to illegal labor practices.

The 2020 rule barred NLRB staff from temporarily blocking elections while a related case alleging illegal labor practices was being litigated.

Unions had for decades routinely filed so-called “blocking charges” to put off decertification votes and elections that they believed they would lose. Employers could also file blocking charges, but the tactic was much more commonly used by unions.

The 2020 rule instead created a procedure in which an election would be held, but ballots would be impounded until the board resolved any pending litigation.

The proposal will be formally published on Friday, beginning a 60-day public comment period.

NLRB Chair Lauren McFerran in a statement said the proposed changes "would better protect workers' ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining."

But Mark Mix, president of the National Right to Work Legal Defense Foundation, which helps workers bring decertification petitions against unions, said it would have the opposite effect.

"Reversing the election protection rule will mean more workers trapped in forced union ranks they oppose," Mix said in a statement.

The board in the proposal also said the rule had been based on flawed data that the agency failed to correct even after it was made aware of the issues. Data cited in the 2020 rule included inflated assessments of how long elections had been blocked on average and did not distinguish between elections that were blocked pending litigation and those delayed for other reasons, the NLRB said.

Thursday's proposal would also rescind a provision of the 2020 rule related to cases in which employers voluntarily recognize unions.

Previously, workers could not seek to hold a decertification election for two years after their employer recognized a union. Under the Trump-era rule, they can file an election petition up to 45 days before an employer officially recognizes a union.

The board has said that it also plans to revisit a separate Trump-era rule that made a series of procedural changes to the union election process, which were widely seen as favoring employers over unions.

Major unions including the AFL-CIO and North America’s Building Trades Unions had filed petitions urging the NLRB to rescind the rule eliminating blocking charges.

The AFL-CIO also filed a lawsuit in 2020 claiming the rule conflicted with federal labor law and the NLRB had failed to follow the proper administrative procedures in adopting it. The case in Washington, D.C., federal court has been stayed pending new rules from the board.

Read more:

NLRB adopts rules making it easier for workers to reject unions

Unions find loophole in labor board's Trump-era election rules

AFL-CIO mounts challenge to NLRB rule eliminating 'blocking charges' by unions

U.S. labor board eyeing changes to Trump-era union election rules

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.