NLRB issues ‘Fair Choice-Employee Voice’ final rule

The National Labor Relations Board (NLRB) issued its Fair Choice–Employee Voice Final Rule in late July, restoring three policies that the agency says provide workers with a “fair opportunity” to decide whether they want union representation in the workplace and a process that respects their choices.

The policies deal with blocking charges, voluntary recognition of a union, and construction industry bargaining relationships.

The final rule returns to the Board’s pre-2020 practice on blocking charges before an election, restoring a regional director’s authority to delay an election if unfair labor practice conduct is sufficiently serious to interfere with employee free choice. The final rule reverses the 2020 rule, which the Board said in a press release could require regional directors to run elections in an election environment tainted by unfair labor practices.

The rule supports workers’ and employers’ ability to establish a bargaining relationship through voluntary recognition. It removes the 2020 rule’s requirement that when an employer chooses to voluntarily recognize a union that represents a majority of its workers, the parties must provide for a mandatory 45-day period to allow a minority of workers to demand an election questioning that choice.

The rule also restores the Board’s 56-year-old voluntary recognition bar, respecting the bargaining relationship that the parties have voluntarily chosen.

Finally, the rule grants parity between unions in the construction industry and other unions. Due to the transitory nature of work in the construction industry, construction-worker unions that are recognized under Section 8(f) of the National Labor Relations Act do not have the same protections as non-construction unions. The new rule allows construction-worker unions to more readily establish the same protections as other unions, providing a more stable foundation for collective bargaining.

The rule “restores the Board’s prior law, including longstanding principles that ensure a fair process for workers to choose whether they want representation, and provide a better foundation to allow collective bargaining relationships to thrive,” said NLRB Chairman Lauren McFerran.
The Notice of Proposed Rulemaking was published  in the Federal Register on November 3, 2022, and the comment period for initial comments was open until February 2, 2023. The new rule goes into effect September 30, 2024, and it will only be applied to cases filed after the effective date.