As businesses continue to face unprecedented challenges during the current pandemic, labor organizations are still active among workforces. While high-profile issues involving major companies hit the news earlier this week, employers across many sectors are seeing COVID-19 related union representation and organizing activity. Concerns about workplace safety, benefits and job security are all factors that can have a significant impact on employee opinions about union representation.
Several recent developments in this area are of importance for all employers:
NLRB to Resume Representation Elections. In response to the pandemic, the NLRB recently suspended the holding of union representation elections. However, the NLRB made clear this week that the suspension will be lifted and the agency will resume conducting elections on April 6. The method and schedule of such elections, including the potential for increased use of mail ballots, remains to be determined on a case-by-case basis.
CARES Act: Union Security and Neutrality Agreements. The CARES Act, a nearly 900-page law providing multiple forms of relief relating to the Coronavirus, provides businesses with several opportunities for economic assistance. Under Section 4003 of the CARES Act, the Treasury Secretary is empowered to create a loan facility for employers of 500-10,000 employees. To qualify for such loans, a business must certify that it is compliant with several criteria, including the following: “the recipient will not abrogate existing collective bargaining agreements for the term of the loan and 2 years after completing repayment of the loan; and that the recipient will remain neutral in any union organizing effort for the term of the loan.” The requirements for not abrogating existing labor contracts and to remain neutral in any union organizing effort will have a significant impact on a union’s ability to organize employees as well as maintain its status among currently represented employees. Prior to applying for a loan under the CARES Act, employers are well-advised to determine if monies are being sought pursuant to Section 4003 of the CARES Act and, if so, to evaluate the impact of these requirements on operations.
In the midst of the pandemic, the NLRB has also recently published final rules that will further impact union representation issues.
Blocking Charge Policy: Unfair labor practice charges will no longer block the holding of an election. In place of the blocking policy, the NLRB will now conduct elections during the pendency of an unfair labor practice charge and determine on a case-by-case basis whether ballots cast in such elections should be immediately counted or impounded. The certification of results will not issue until there is a final disposition of the charge and a determination of the effect of the charge, if any, on the election petition. The rule change (reflected in Section 103.20 of the Board’s rules), is significant for employees. Particularly in the context of decertification, the old blocking policy has at times caused employees see their right to vote be delayed in excess of a year while a blocking charge was processed by the NLRB. In such cases under the new rule, employees would be able to timely cast their votes with final election results dependent on the outcome of the unfair labor practice charge.
Voluntary Recognition Bar: At times, an employer may choose to voluntarily recognize a union rather than go through the more traditional election process. The NLRB’s new voluntary recognition rule re-establishes the standard set forth in Dana Corp. Specifically, in order for a voluntary recognition to bar an election petition from a rival union, and to have a labor contract with a voluntarily recognized union act as a bar to petitions, unit employees must be given notice of the voluntary recognition and provided a 45-day period within which to file an election petition. Further, either the employer or the voluntarily recognized union must notify the applicable NLRB Regional Office of the recognition. The new rule on voluntary recognition is found in Section 103.21 of the Board’s rules.
Construction Industry Recognition: Under the new rule, found in Section 103.22 of the Board’s rules, evidence of a Section 9(a) relationship sufficient to bar a petition must be based on “positive evidence of majority employee support.” Contract language alone that provides for recognition of the union will no longer be sufficient to establish a Section 9(a) representation status that would bar a rival petition.
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