Over the course of only a few weeks, the Nationwide Labor Relations Board (NLRB or Board) continued its ongoing dismantling of long-standing precedent and rollback of Trump-era procedural guidelines. First, on July 26, 2024, the Board launched the “Honest Alternative – Worker Voice” Closing Rule, reversing three amendments the Board made in April 2020 to its Guidelines and Laws. Then, on August 22, 2024, the Board issued a break up resolution in Metro Well being, Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024) during which a Board majority ended its observe of accepting consent orders to resolve unfair labor observe complaints.
The Honest Alternative – Worker Voice Closing Rule
On July 26, 2024, the Board issued its “Honest Alternative – Worker Voice” Closing Rule, rescinding the Trump Board’s April 2020 amendments to the NLRB’s Guidelines and Laws and restoring the next three insurance policies these amendments had themselves modified.
- Blocking Cost Coverage. The Board’s Closing Rule restores the prior coverage granting NLRB Regional Administrators the authority to “delay an election when a celebration to the illustration continuing requests that its unfair labor observe cost block an election, supplied the request is supported by an enough provide of proof, the celebration agrees to promptly make its witnesses accessible, and no exception is relevant.” Underneath the prior 2020 coverage, the Board approved two procedures for dealing with elections accompanied by blocking expenses and requests: “vote-and-count” and “vote-and-impound.” Underneath both process, and in distinction to the brand new Honest Alternative – Worker Voice Closing Rule, elections have been permitted to proceed and, relying on the character of the pending expenses, the ballots would both be instantly counted or impounded till the Board made a remaining willpower relating to these expenses. The 2020 rule was meant to forestall unions from utilizing unfair labor observe expenses to forestall elections they believed they could in any other case lose from being held, and as a substitute directed that workers be allowed to vote in Board-conducted secret-ballot elections, with the result of the vote to be decided as soon as the fees have been resolved. In altering the coverage again as soon as once more, the NLRB has given unions the inexperienced gentle to as soon as once more use the blocking cost coverage as a strategic software to govern the electoral course of, notably in union decertification elections.
- Voluntary Recognition Bar. This coverage change removes the 2020 rule’s institution of a 45-day open interval for a minority of staff to file an election petition following an employer’s voluntary recognition of a union. The amended rule returns the Board’s coverage to the usual set forth in Lamons Gasket Co., 357 NLRB 934 (2011), which prohibits workers from difficult the acknowledged union’s consultant standing for at the very least six months however no multiple 12 months, considerably advantaging newly acknowledged unions whereas proscribing the rights of workers to vote in Board-conducted elections (the Board’s most well-liked technique for permitting workers to train their selection on illustration).
- Part 9(a) Recognition within the Development Trade. The Board’s remaining coverage change reinstates the doctrine articulated in Staunton Gas & Materials, 335 NLRB 717 (2001), which governs the minimal necessities for attaining Part 9(a) consultant standing primarily based on a written recognition settlement or contract clause in a collective-bargaining settlement within the building business. This modification undoes the Board’s prior coverage of requiring proof of majority worker help earlier than establishing a Part 9(a) relationship. With the Honest Alternative – Worker Voice Closing Rule, unions representing workers within the building business will now have the ability to show Part 9(a) recognition primarily based on contract language alone—with out another proof of a contemporaneous exhibiting of majority help—and, as a consequence, such recognition will set off the up-to-three-year contract bar interval prohibiting the processing of election petitions filed by workers and different events.
The efficient date of the “Honest Alternative – Worker Voice” Closing Rule is September 30, 2024.
So Lengthy, Consent Orders
For greater than 50 years, the NLRB has permitted a celebration in opposition to which an unfair labor observe criticism has issued (the respondent) to resolve that criticism, even when each the celebration submitting the cost (the charging celebration) and the NLRB’s Normal Counsel, who acts because the prosecutor on that cost, object to the settlement. Though sometimes used, these “consent orders” enable for decision of litigation when a respondent is keen to successfully concede a violation and provide affirmative reduction, although that reduction could also be lower than the charging celebration and Normal Counsel might be able to receive as a treatment by way of efficiently litigating the violations alleged within the criticism.
In Hospital Metropolitano, the Normal Counsel challenged an administrative regulation choose’s order approving a consent order primarily based on the respondent’s proposed phrases, which have been rejected by each the Normal Counsel and the charging celebration. The Normal Counsel’s request seemingly introduced the Board with two choices: (1) consider the authorized consent order underneath the “reasonableness” normal articulated in a Trump-era NLRB resolution known as UPMC and its subsidiary, UPMC Presbyterian Shadyside, 365 NLRB 1418 (2017), thereby sustaining the established order (and really possible ensuing within the denial of the Normal Counsel’s request for a particular enchantment); or (2) overturn UPMC, reinstating the usual set forth in Postal Service, 364 NLRB 1704 (2016), an earlier resolution underneath which the Board is not going to approve a consent order until it supplies a “full treatment” for the alleged unfair labor practices.
The Board, dissatisfied with each choices, elected to finish the observe of accepting consent orders altogether, closing the curtain on a observe courting again to 1971. 4 justifications undergirded the Board’s resolution: (1) the Board’s Guidelines and Laws not solely prohibit administrative regulation judges from “modify[ing] instances,” however they’re additionally silent on the propriety of accepting consent orders; (2) even when consent orders have been in line with the Board’s Guidelines and Laws, returning to Postal Service’s “full treatment” normal is impractical and would possible end in important expenditures of the Board’s restricted sources; (3) the elimination of consent orders correctly respects the Normal Counsel’s function underneath the Nationwide Labor Relations Act (“NLRA”), which grants the Normal Counsel remaining authority over the prosecution of unfair labor observe complaints earlier than the Board; and (4) no coverage of the NLRA helps the approval of consent orders, explaining that consent orders unnecessarily delay the litigation of the underlying unfair labor observe and, provided that neither the Normal Counsel or the charging celebration has accepted the consent order, approving such an order does little to facilitate industrial peace.
The Board was cautious nevertheless to reaffirm its longstanding observe of accepting settlement agreements between a respondent and the Normal Counsel and/or a charging celebration – and thus the place at the very least one different celebration is keen to compromise on the phrases proposed – instead of reaching a remaining adjudication of the unfair labor observe.
Our group will proceed to watch these and different NLRB developments. In case you have any questions or want steerage on the ever-changing labor regulation panorama, please contact your Squire Patton Boggs legal professional.