NLRB Seeks to Make Decertifying Unions Harder

The National Labor Relations Board plans to change the law regarding what it does when a union files an unfair labor practice charge after employees file a petition to decertify the union. The public comment period for this change expired last week. This new process will likely take effect soon.

Currently, if a party to an election (typically, a union) files an unfair labor practice charge while an election is pending, the election is held as scheduled. The Board impounds the ballots while determining if the charge had merit. If no merit, the ballots are counted. If potentially there was merit to the charge, the NLRB files a complaint against the offending party (usually the employer) and does not count the ballots until after resolution of the charge. Sometimes the unlawful conduct warrants holding a rerun election.

Under the anticipated new law, if a party to an election files an unfair labor practice charge while an election petition is pending, the NLRB Regional Director may delay the election “if the conduct alleged threatens to interfere with employee free choice.” In the past, the party filing the blocking charge had the power to allow the vote to continue as scheduled; not anymore. Going forward, there will not be an election until the unfair labor practice charge is resolved.

Unions can, and will, strategically file blocking charges to delay decertification elections they are likely to lose. The filing of the charge automatically stops the election for an undetermined amount of time. This provides the union with the opportunity to try to flip employees from voting for decertification to voting against it.

Given the NLRB’s current resource and staffing shortage, the investigation time for the pending unfair labor practices could be extensive. Time spent answering the complaint, having a hearing, filing post-hearing briefs, waiting for an Administrative Law Judge’s ruling, and then appeals from the ruling add to this already extensive delay.

Election delays could stretch several years. Delaying the vote means the employees most involved in the decertification process may move on to other employment. They would have voted to decertify the union, but they left the company during the pendency of the blocking charge.

I see this happen a lot – employees who are dissatisfied with their union representation are virtually powerless to do anything about it. Rather than continue to work under a union contract, abide by union rules, or pay union dues, they simply find work somewhere else. Companies lose their institutional knowledge and skill. Employers are forced to backfill their positions. The union stays in place. Rinse. Repeat.

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Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.

Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege. 

Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.

You can reach Matt via email at 

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