Fair Choice – Employee Voice

The National Labor Relations Board has revised its election rules to restore three key areas that will improve employee voice in the workplace. The Fair Choice – Employee Voice final rule will promote free and fair elections, facilitate voluntary recognition, and restore recognition standards in the construction industry by returning to long-standing Board precedent that existed prior to the adoption of the prior final rule on April 1, 2020.

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. Today’s rule reverses the Board’s 2020 rule requiring Regional Directors to run elections in an election environment tainted by unfair labor practices.

Secondly, today’s 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 provide for a mandatory 45-day period to allow the opportunity for 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 Fair Choice – Employee Voice rule grants parity between unions in the construction industry and other unions. Because of 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 rules allow construction-worker unions to more readily establish the same protections as other unions, providing a more stable foundation for collective bargaining. 

The Notice of Proposed Rulemaking (NPRM) for this rule was published in the Federal Register on November 4, 2022.  Additional details are provided in the press release here. The full NPRM can be found here.  Comments were received regarding the NPRM from November 4, 2022 through February 2, 2023, and reply comments were received through March 1, 2023. The Board received a variety of comments that it reviewed and considered in drafting the Final Rule.