On November 4, 2022, the NLRB published a Notice of Proposed Rulemaking (“NPRM”) inviting public comment on a proposal that would rescind and replace the current “Fair Choice and Employee Voice” rule which was adopted by the prior Board-majority on April 1, 2020. Three distinct policies regarding election-blocking charges, voluntary recognition, and construction industry bargaining relationships are under consideration. The Board’s stated intent is to return the law in each of these three areas to that which existed prior to the April 1, 2020 rule.
First, the new rule would resurrect the Board’s “blocking charge” policy. Under the current rule, a scheduled representation election will not be delayed on the basis of pending unfair labor practice charges. Instead, the election will proceed as planned and the Regional Director will either count or impound the ballots and certification will remain pending until resolution of the unfair labor practices. According to the NLRB, the proposed rule will:
[R]eturn to the Board’s long-established “blocking charge” policy as most recently reflected in a 2014 rule. Under that approach, when unfair labor practice charges are filed while an election petition is pending, a Regional Director may delay the election if the conduct alleged threatens to interfere with employee free choice.
Second, the new...
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