8/2/24: NLRB Finalizes Its Fair Choice & Employee Voice Final Rule

August 2, 2024

By Iesha Comia & Joshua Waugh

On July 26, 2024, the National Labor Relations Board (NLRB) finalized its “Fair Choice-Employee Voice Final Rule.” The Final Rule changes three procedures: the blocking charge policy, voluntary recognition, and Section 8(f) and 9(a) relationships in the construction industry.

Blocking Charge Changes

Effective September 30, 2024, an NLRB Regional Director may delay an election if an unfair labor practice charge is filed and the alleged conduct interferes with employee free choice in the pending petition.

This rule changes a Regional Director’s authority in an election environment where there are alleged unfair labor practices. Prior to the rule change, if unfair labor practices interfered with an employee’s free choice, Regional Directors were required to run elections but could have impounded the ballots immediately after, meaning the vote was not tallied.

Now, a Regional Director has the authority to delay an election when unfair labor practices are sufficiently serious to interfere with employee free choice.

Key takeaways from the reinstated blocking charge policy, which will apply to all petitions filed after September 30, 2024:

• Parties can file unfair labor practice charges to automatically block representation and decertification elections.

• Parties alleging an unfair labor practice must be able to provide adequate proof and agree to make witnesses available. 

• Regional Directors have the authority to delay the processing of an election petition at the request of the party who filed the unfair labor practice charge.

Voluntary Recognition Changes

The NLRB’s updated rules reinstate the voluntary recognition bar, meaning no party will be able to petition for a new election for a reasonable amount of time after an employer voluntarily recognizes a union. Additionally, employees were previously able to challenge their employer’s voluntary recognition by filing a petition within 45 days of recognition, but that route is also removed in the updated rules. Moving forward, it will be much more difficult to contest an employer’s voluntary recognition of a union.

Construction Industry Changes

The final rule will also impact voluntary recognition and contracts specific to the construction industry. Come September 30, 2024, the Final Rule will re-establish a six-month limitations period on election petitions challenging a construction employer’s 9(a) voluntary recognition of a union. Contract language may also be sufficient to serve as evidence of 9(a) recognition of a union, so construction industry employers operating under Section 8(f) will have to exercise increased caution in negotiating contract language after the rule takes effect.

For questions on the National Labor Relations Act or labor law compliance, contact Joshua Waugh at 503-276-2138 or jwaugh@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.