[Federal Register Volume 87, Number 213 (Friday, November 4, 2022)]
[Proposed Rules]
[Pages 66890-66933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23823]



[[Page 66889]]

Vol. 87

Friday,

No. 213

November 4, 2022

Part III





 National Labor Relations Board





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29 CFR Part 103





Representation--Case Procedures: Election Bars; Proof of Majority 
Support in Construction Industry Collective-Bargaining Relationships; 
Proposed Rule

  Federal Register / Vol. 87 , No. 213 / Friday, November 4, 2022 / 
Proposed Rules  

[[Page 66890]]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 103

RIN 3142-AA22


Representation--Case Procedures: Election Bars; Proof of Majority 
Support in Construction Industry Collective-Bargaining Relationships

AGENCY: National Labor Relations Board.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: As part of its ongoing efforts to more effectively administer 
the National Labor Relations Act (the Act or the NLRA) and to further 
the purposes of the Act, the National Labor Relations Board (the Board) 
proposes to rescind and replace amendments that the Board made in April 
2020 to its rules and regulations governing the filing and processing 
of petitions for a Board-conducted representation election while unfair 
labor practice charges are pending, and following an employer's 
voluntary recognition of a union as the majority-supported collective-
bargaining representative of the employer's employees. The Board also 
proposes to rescind an amendment governing the filing and processing of 
petitions for a Board-conducted representation election in the 
construction industry. The Board believes, subject to comments, that 
these proposed changes will better protect employees' statutory right 
to freely choose whether to be represented by a labor organization, 
promote industrial peace, and encourage the practice and procedure of 
collective bargaining.

DATES: Comments regarding this proposed rule must be received by the 
Board on or before January 3, 2023. Comments replying to comments 
submitted during the initial comment period must be received by the 
Board on or before January 17, 2023. Reply comments should be limited 
to replying to comments previously filed by other parties. No late 
comments will be accepted.

ADDRESSES: 
    Internet--Federal eRulemaking Portal. Electronic comments may be 
submitted through http://www.regulations.gov. Follow the instructions 
for submitting comments.
    Delivery--Comments may be submitted by mail or hand delivery to: 
Roxanne L. Rothschild, Executive Secretary, National Labor Relations 
Board, 1015 Half Street SE, Washington, DC 20570-0001.

FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive 
Secretary, National Labor Relations Board, 1015 Half Street SE, 
Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free 
number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Submission of Comments

    Because of security precautions, the Board continues to experience 
delays in U.S. mail delivery. You should take this into consideration 
when preparing to meet the deadline for submitting comments. It is not 
necessary to mail comments if they have been filed electronically with 
regulations.gov. If you mail comments, the Board recommends that you 
confirm receipt of your delivered comments by contacting (202) 273-1940 
(this is not a toll-free number). Individuals with hearing impairments 
may call 1-866-315-6572 (TTY/TDD). Because of precautions in place due 
to COVID-19, the Board recommends that comments be submitted 
electronically or by mail rather than by hand delivery. If you feel you 
must hand deliver comments to the Board, hand delivery will be accepted 
by appointment only. Please call (202) 273-1940 to arrange for hand 
delivery of comments. Please note that there may be a delay in the 
electronic posting of hand-delivered and mail comments due to the needs 
for safe handling and manual scanning of the comments. The Board 
strongly encourages electronic filing over mail or hand delivery of 
comments.
    Only comments submitted through http://www.regulations.gov, hand-
delivery, or mail will be accepted; ex parte communications received by 
the Board will be made part of the rulemaking record and will be 
treated as comments only insofar as appropriate. Comments will be 
available for public inspection at http://www.regulations.gov and 
during normal business hours (8:30 a.m. to 5 p.m. ET) at the above 
address.
    The Board will post, as soon as practicable, all comments received 
on http://www.regulations.gov without making any changes to the 
comments, including any personal information provided. The website 
http://www.regulations.gov is the Federal eRulemaking portal, and all 
comments posted there are available and accessible to the public. The 
Board requests that comments include full citations or internet links 
to any authority relied upon. The Board cautions commenters not to 
include personal information such as Social Security numbers, personal 
addresses, telephone numbers, and email addresses in their comments, as 
such submitted information will become viewable by the public via the 
http://www.regulations.gov website. It is the commenter's 
responsibility to safeguard their information. Comments submitted 
through http://www.regulations.gov will not include the commenter's 
email address unless the commenter chooses to include that information 
as part of their comment.

II. Summary of 2020 Rule

    As described more fully below, the Board is proposing to rescind 
and replace the amendments to its rules and regulations adopted in 2020 
governing blocking charges and the voluntary-recognition bar doctrine 
and to rescind the amendment governing proof of majority support for 
labor organizations representing employees in the construction 
industry. See Representation--Case Procedures: Election Bars; Proof of 
Majority Support in Construction-Industry Collective-Bargaining 
Relationships, 85 FR 18366 (April 1, 2020).
    First, the April 2020 final rule substantially eliminated the 
Board's long-established blocking charge policy, under which regional 
directors had authority to delay processing election petitions in the 
face of pending unfair labor practice charges alleging conduct that 
would interfere with employee free choice in an election or conduct 
that is inherently inconsistent with the election petition itself. 
Under the final rule, regional directors generally are now required to 
conduct an election even when an unfair labor practice charge and 
blocking request have been filed. 85 FR 18370, 18375. Moreover, under 
the final rule, regional directors generally are further required to 
immediately open and count the ballots, except in a limited subset of 
cases where the ballots will be impounded for a maximum of 60 days 
(unless a complaint issues within 60 days of the election). 85 FR 
18369-18370, 18376.\1\
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    \1\ However, the April 2020 final rule did not disturb the 
authority of regional directors to dismiss a representation 
petition, subject to reinstatement, under the Board's long-standing 
practice of ``merit-determination dismissals.'' See Rieth-Riley 
Construction Co., Inc., 371 NLRB No. 109 (2022).
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    Second, the April 2020 final rule made changes to the voluntary-
recognition bar doctrine, which encourages collective bargaining and 
promotes industrial stability by allowing a union--after being 
voluntarily and lawfully recognized by an employer--to represent 
employees for a certain period of time without being subject to 
challenge. The final rule abandoned Lamons Gasket Co., 357

[[Page 66891]]

NLRB 934 (2011), and returned to the approach taken previously by the 
Board in Dana Corp., 351 NLRB 434 (2007). Under the final rule, neither 
an employer's voluntary recognition of a union, nor the first 
collective-bargaining agreement executed by the parties after 
recognition, will bar the processing of an election petition, unless: 
(1) the employer or the union notifies the Board's Regional Office that 
recognition has been granted; (2) the employer posts a notice 
``informing employees that recognition has been granted and that they 
have a right to file a petition during a 45-day `window period' 
beginning on the date the notice is posted''; (3) the employer 
distributes the notice electronically to employees, if electronic 
communication is customary; and (4) 45 days from the posting date pass 
without a properly supported election petition being filed. 85 FR 
18370.
    Third, the April 2020 final rule made changes to the Staunton Fuel 
& Material, 335 NLRB 717 (2001), doctrine, which defined the minimum 
requirements for what must be stated in a written recognition agreement 
or contract clause in order for it to serve as sufficient evidence that 
a union representing employees in the construction industry has 
attained 9(a) status, and overruled the Board's decision in Casale 
Industries, 311 NLRB 951 (1993), providing that the Board would not 
entertain a claim that a union lacked 9(a) status when it was initially 
granted recognition by a construction employer if more than 6 months 
had elapsed. 85 FR 18369-18370.\2\
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    \2\ Sec. 8(f) of the Act uses the term ``engaged primarily in 
the building and construction industry.'' 29 U.S.C. 158(f). 
Throughout this NPRM, for convenience, and without any intent to 
define or alter the accepted scope of the term, we use the shorthand 
``construction industry'' and ``construction employer.''
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    The effect of the instant proposed amendments would be to return 
the law in each of those areas to that which existed prior to the 
adoption of the April 1, 2020 final rule, including by rescinding and 
replacing the portions of the final rule that addressed the blocking 
charge policy and voluntary-recognition bar doctrine and rescinding the 
portion of the final rule that addressed proof of majority support for 
labor organizations representing employees in the construction 
industry. The Board believes, subject to comments, that these proposed 
changes to the April 2020 final rule will better protect employees' 
statutory right of free choice on questions concerning representation, 
further promote industrial stability, and more effectively encourage 
the practice and procedure of collective bargaining.\3\
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    \3\ Upon consideration of the comments received regarding each 
of the proposed changes in this NPRM to the April 2020 final rule, 
the Board may elect to issue a single final rule or separate final 
rules covering each or any of the proposed amendments. We invite 
comments as to any advantages or disadvantages of issuing a single 
final rule versus separate final rules.
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III. Background

    Section 1 of the Act sets forth Congressional findings that the 
denial by some employers of the right of employees to organize and 
bargain collectively leads to industrial strife that adversely affects 
commerce. Congress has declared it to be the policy of the United 
States to mitigate or eliminate those adverse effects by ``encouraging 
the practice and procedure of collective bargaining and by protecting 
the exercise by workers of full freedom of association, self-
organization, and designation of representatives of their own choosing, 
for the purpose of negotiating the terms and conditions of their 
employment or other mutual aid or protection.'' 29 U.S.C. 151. Further, 
section 7 of the Act grants employees the right ``to bargain 
collectively through representatives of their own choosing . . . .'' 29 
U.S.C. 157.
    As discussed more fully below, Federal labor law recognizes that 
employees may seek representation for the purpose of bargaining 
collectively with their employer through either a Board election or by 
demonstrating majority support for representation. See, e.g., United 
Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 72 fn. 8 
(1956). Voluntary recognition predates the Act, and an employer's 
voluntary recognition of a majority union ``remains `a favored element 
of national labor policy.' '' NLRB v. Creative Food Design Ltd., 852 
F.2d 1295, 1299 (D.C. Cir. 1988) (citation omitted). An employer is 
free to voluntarily recognize a union as the designated majority 
representative of a unit of its employees without insisting on the 
union's proving its majority status in an election. And, ``once the 
employer recognizes the Union . . . the employer is bound by that 
recognition and may no longer seek an election.'' Id. at 1297 
(citations omitted). Nevertheless, when employers, employees, and labor 
organizations are unable to agree on whether the employer should 
recognize (or continue to recognize) a labor organization as the 
representative of a unit of employees for purposes of collective 
bargaining, section 9 of the Act gives the Board authority to determine 
if a ``question of representation'' exists and, if so, to resolve the 
question by conducting ``an election by secret ballot.'' 29 U.S.C. 
159(c).
    Because the Act calls for freedom of choice by employees as to 
whether to obtain, or retain, union representation, the Board has long 
recognized that ``[i]n election proceedings, it is the Board's function 
to provide a laboratory in which an experiment may be conducted, under 
conditions as nearly ideal as possible, to determine the uninhibited 
desires of the employees.'' General Shoe Corp., 77 NLRB 124, 127 
(1948). A Board-conducted election ``can serve its true purpose only if 
the surrounding conditions enable employees to resister a free and 
untrammeled choice for or against a bargaining representative.'' Id. at 
126. Indeed, as the Supreme Court has recognized, it is the ``duty of 
the Board . . . to establish `the procedure and safeguards necessary to 
insure the fair and free choice of bargaining representatives by 
employees.' '' NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973) 
(emphasis added) (citation omitted). By definition, a critical part of 
protecting employee free choice is ensuring that employees are able to 
vote in an atmosphere free of coercion, so that the results of the 
election accurately reflect the employees' true desires concerning 
representation. General Shoe Corp., 77 NLRB at 126-127.
    The Supreme Court has repeatedly recognized that ``Congress has 
entrusted the Board with a wide degree of discretion in establishing 
the procedure and safeguards necessary to insure the fair and free 
choice of bargaining representatives by employees.'' NLRB v. A.J. Tower 
Co., 329 U.S. 324, 330 (1946). ``The control of the election 
proceeding, and the determination of the steps necessary to conduct 
that election fairly were matters which Congress entrusted to the Board 
alone.'' NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940); see 
also Southern S.S. Co. v. NLRB, 316 U.S. 31, 37 (1942).
    Although the Act itself contains only one express limitation on the 
timing of elections,\4\ the Board has instituted

[[Page 66892]]

through adjudication several policies that affect the timing of 
elections in an effort to further other core goals of the Act. For 
example, the Board, with court approval, precludes electoral challenges 
to an incumbent union bargaining representative for the first 3 years 
of a collective-bargaining agreement (the contract bar) in the 
interests of stabilizing existing bargaining relationships, 
notwithstanding that it delays employees' ability to choose not to be 
represented or to select a different representative. See General Cable 
Corp., 139 NLRB 1123, 1125 (1962); see also Terrace Gardens Plaza, Inc. 
v. NLRB, 91 F.3d 222, 227-228 (D.C. Cir. 1996); Leedom v. IBEW Local 
Union No. 108, AFL-CIO, 278 F.2d 237, 242 (D.C. Cir. 1960) (noting that 
``Congress relied on the Board's expertise to harmonize the competing 
goals of industrial stability and employee freedom of choice to best 
achieve the ultimate purposes of the Act.'').\5\
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    \4\ Sec. 9(c)(3) provides that ``[n]o election shall be directed 
in any bargaining unit or any subdivision within which, in the 
preceding twelve-month period, a valid election shall have been 
held.'' 29 U.S.C. 159(c)(3).
    Election petitions filed by labor organizations seeking 
certification as the collective-bargaining representative of 
employees are classified as RC petitions. Decertification election 
petitions filed by an individual employee seeking to oust an 
incumbent collective-bargaining representative are classified as RD 
petitions. Petitions for elections filed by employers are classified 
as RM petitions.
    \5\ See generally Auciello Iron Works, Inc. v. NLRB, 517 U.S. 
781, 785 (1996) (``The object of the National Labor Relations Act is 
industrial peace and stability, fostered by collective-bargaining 
agreements providing for the orderly resolution of labor disputes 
between workers and employees'').
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    The subject of this rulemaking proceeding concerns three other 
policies that the Board originally created through adjudication to 
protect employee free choice in elections and to effectuate the Act's 
policies favoring stable bargaining relationships: the blocking charge 
policy; the voluntary-recognition bar doctrine; and the policy 
governing 9(a) recognition in the construction industry. The Board's 
April 2020 final rule radically altered each of those policies.

A. Blocking Charge Policy

1. The Board's Historical Blocking Charge Policy
    As the Board acknowledged in the notice of proposed rulemaking that 
culminated in the April 2020 final rule, see 84 FR 39930, 39931, the 
blocking charge policy dates back to the early days of the Act. See 
United States Coal & Coke Co., 3 NLRB 398, 399 (1937). Indeed, prior to 
the April 2020 final rule, and for more than eight decades, the Board 
had maintained a policy of generally declining to process an election 
petition over party objections in the face of pending unfair labor 
practice charges alleging conduct that, if proven, would interfere with 
employee free choice in an election, until the merits of those charges 
could be determined.\6\
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    \6\ See generally The Developing Labor Law 561-63 (John E. 
Higgins, Jr., 5th edition 2006); 3d NLRB Ann. Rep. 143 (1938) (``The 
Board has often provided that an election be held at such time as 
the Board would thereafter direct in cases where the employer has 
been found to have engaged in unfair labor practices and the Board 
has felt that the election should be delayed until there has been 
sufficient compliance with the Board's order to dissipate the 
effects of the unfair labor practices and to permit an election 
uninfluenced by the employer's conduct. Similarly, where charges 
have been filed alleging that the employer has engaged in unfair 
labor practices, the Board has frequently postponed the election 
indefinitely pending the investigation and determination of the 
charges.''); 13th NLRB Ann. Rep. 34 & fn. 90 (1948) (``Unremedied 
unfair labor practices constituting coercion of employees are 
generally regarded by the Board as grounds for vacating an 
election[.] For this reason, the Board ordinarily declines to 
conduct an election if unfair labor practice charges are pending or 
if unfair labor practices previously found by the Board have not yet 
been remedied[.]'').
    Throughout this NPRM, in discussing the blocking charge policy 
as it existed prior to the April 2020 rule, we often cite to 
editions of the Developing Labor Law and the NLRB Casehandling 
Manual that were in effect before the enactment of the 2014 rule 
amending representation case procedures and the subsequent enactment 
of the 2020 rule. This reference to sources that have been 
supplemented since those rules is intentional and intended to 
demonstrate the manner in which the blocking charge policy was 
interpreted and applied during the course of its long history before 
those rules.
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    The rationale for the blocking charge policy was straightforward: 
it was ``premised solely on the [Board's] intention to protect the free 
choice of employees in the election process.'' NLRB Casehandling Manual 
(Part Two), Representation Proceedings Section 11730 (August 2007) 
(``Casehandling Manual (August 2007)''). ``The Board's policy of 
holding the petition in abeyance in the face of pending unfair labor 
practices is designed to preserve the laboratory conditions that the 
Board requires for all elections and to ensure that a free and fair 
election can be held in an atmosphere free of any type of coercive 
behavior.'' Mark Burnett Productions, 349 NLRB 706, 706 (2007).
    Prior to the effective date of the April 2020 amendments, there 
were two broad categories of blocking charges. The first, called Type I 
charges, encompassed charges that alleged conduct that merely 
interferes with employee free choice. Casehandling Manual Section 
11730.1 (August 2007). See also NLRB Casehandling Manual (Part Two), 
Representation Proceedings Section 11730.1 (January 2017) 
(``Casehandling Manual (January 2017)''). Examples of Type I charges 
included allegations of employer threats to retaliate against employees 
if they vote in favor of union representation or promises of benefits 
if employees vote against union representation. For many years, the 
blocking charge policy provided that if the charging party in a pending 
unfair labor practice case was also a party to a petition, and the 
charge alleged conduct that, if proven, would interfere with employee 
free choice in an election (a Type I charge), were one to be conducted, 
and no exception was applicable, the charge should be investigated and 
either dismissed or remedied before the petition was processed. 
Casehandling Manual Section 11730.2 (August 2007).\7\
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    \7\ As discussed below, under the Board's 2014 rule amending 
representation case procedures, for a Type I charge to block the 
processing of a petition, the charging party needed to have both 
filed a request to block accompanied by a sufficient offer of proof 
and to have promptly made its witnesses available. Casehandling 
Manual Section 11730.2 (January 2017).
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    The policy further provided that if upon completion of the 
investigation of the charge, the regional director determined that the 
Type I charge had merit and that a complaint should issue absent 
settlement, the regional director was to refrain from conducting an 
election until the charged party took all the remedial action required 
by the settlement agreement, administrative law judge's decision, Board 
order, or court judgment. Casehandling Manual Sections 11730.2; 11733, 
11734 (August 2007). On the other hand, if upon completion of the 
investigation of the charge, the regional director determined that the 
charge lacked merit and should be dismissed absent withdrawal, the 
regional director was to resume processing the petition and conduct an 
election where appropriate. Casehandling Manual Sections 11730.2; 11732 
(August 2007).
    In short, in cases where the Type I charges proved meritorious and 
there had been conduct that would interfere with employee free choice 
in an election, the blocking charge policy delayed the election until 
those unfair labor practices had been remedied and employees could 
register a free and untrammeled choice for or against a representative. 
As for the subset of cases where the charges were subsequently found to 
lack merit, the policy provided for regional directors to resume 
processing those petitions to elections.
    The second broad category of blocking charges, called Type II 
charges, encompassed charges that alleged conduct that not only 
interferes with employee free choice, but that is also inherently 
inconsistent with the petition itself. Casehandling Manual Sections 
11730.1, 11730.3 (August 2007). Under the policy, such charges could 
block a related petition during the investigation of the charges, 
because a determination of the merit of the charges could also result 
in the dismissal of the petition. Casehandling Manual Section 11730.3 
(August 2007). Examples of Type II charges included allegations that a 
labor

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organization's showing of interest was obtained through threats or 
force, allegations that an employer's representatives were directly 
involved in the initiation of a decertification petition, and 
allegations of an employer's refusal to bargain, for which the remedy 
is an affirmative bargaining order. Casehandling Manual Sections 
11730.3(a), (b) (August 2007). For many years, the blocking charge 
policy provided that regardless of whether the Type II charges were 
filed by a party to the petition or by a nonparty, and regardless of 
whether a request to proceed was filed, the charge should be 
investigated before the petition was processed unless an exception 
applied. Casehandling Manual Sections 11730.3, 11731, 11731.1(c) 
(August 2007).
    The blocking charge policy further provided that if the regional 
director determined that the Type II charge had merit, then the 
regional director could dismiss the petition, subject to a request for 
reinstatement by the petitioner after final disposition of the unfair 
labor practice case. A petition was subject to reinstatement if the 
allegations in the unfair labor practice case which caused the petition 
to be dismissed were ultimately found to be without merit. Casehandling 
Manual Section 11733.2. (August 2007).\8\ On the other hand, if the 
director determined that the Type II charge lacked merit, the director 
was to resume processing the petition and to conduct the election where 
appropriate. Casehandling Manual Section 11732 (August 2007).
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    \8\ For either Type I or II charges, parties had the right to 
request Board review of regional director determinations to hold 
petitions in abeyance or to dismiss the petitions altogether. See 29 
CFR 102.71(b) (2011); Casehandling Manual Sections 11730.7, 
11733.2(b) (August 2007).
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    However, the mere filing of an unfair labor practice charge did 
``not automatically cause a petition to be held in abeyance'' under the 
blocking charge policy. Casehandling Manual Sections 11730, 11731 
(August 2007). See also Casehandling Manual Sections 11730, 11731 
(January 2017); Veritas Health Services, Inc. v. NLRB, 895 F.3d 69, 88 
(D.C. Cir. 2018) (noting that pending unfair labor practice charges do 
not necessarily preclude processing a representation petition). For 
example, the Board had long declined to hold a petition in abeyance if 
the pending unfair labor practice charge did not allege conduct that 
would interfere with employee free choice in an election. See, e.g., 
Holt Bros., 146 NLRB 383, 384 (1964) (rejecting party's request that 
its charge block an election because even if the charge in question 
were meritorious, it would not interfere with employee free choice in 
the election). The Board could also decline to block an immediate 
election despite a party's request that it do so when the surrounding 
circumstances suggested that the party was using the filing of charges 
as a tactic to delay an election without cause. See Columbia Pictures 
Corp., 81 NLRB 1313, 1314-1315 fn. 9 (1949).\9\
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    \9\ The Board also directed an immediate election, despite 
pending charges, in order to hold the election within 12 months of 
the beginning of an economic strike so as not to disenfranchise 
economic strikers, American Metal Products Co., 139 NLRB 601, 604-
605 (1962), or in order to prevent harm caused to the economy by a 
strike resulting from an unresolved question of representation, New 
York Shipping Association, 107 NLRB 364, 375-376 (1953). The 
Casehandling Manual set forth other circumstances in which regional 
directors could decline to block petitions. Casehandling Manual 
Section 11731 (August 2007).
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2. The Blocking Charge Policy and the Board's 2014 Final Rule Amending 
Representation Case Procedures
    After notice and comment, the Board adopted some 25 amendments to 
its representation-case procedures in a 2014 final rule, that, among 
other things, was designed to advance the public interests in free and 
fair elections and in the prompt resolution of questions concerning 
representation. See Representation-Case Procedures, 79 FR 74308, 74308-
74310, 74315, 74341, 74345, 74379, 74411 (December 15, 2014). As the 
Board acknowledged when adopting the April 2020 final rule (85 FR 
18376-18377), the Board also made certain modifications to the blocking 
charge policy as a part of its 2014 final rule revising the Board's 
representation-case procedures. In particular, in response to 
allegations that at times incumbent unions may misuse the blocking 
charge policy by filing meritless charges to delay decertification 
elections, the Board imposed a requirement that, whenever any party 
sought to block the processing of an election petition, it must 
simultaneously file an offer of proof listing the names of witnesses 
who will testify in support of the charge and a summary of each 
witness' anticipated testimony and promptly make its witnesses 
available. 79 FR 74419; 29 CFR 130.20. The 2014 final rule also 
provided that if the regional director determined that the party's 
offer of proof does not describe evidence of conduct that, if proven, 
would interfere with employee free choice in an election or would be 
inherently inconsistent with the petition itself, and thus would 
require that the processing of the petition be held in abeyance absent 
special circumstances, the regional director would continue to process 
the petition and conduct the election where appropriate. 79 FR 74419; 
29 CFR 103.20. The Board expressed the view that those amendments would 
protect employee free choice while helping to remove unnecessary 
barriers to the expeditious resolution of questions of representation 
by providing the regional director with the information necessary to 
assess whether the unfair labor practice charges have sufficient 
support and involve the kind of violations that warrant blocking an 
election, or whether the charges are filed simply for purposes of 
delay. 79 FR 74418-74420.
    Two Board members dissented from the 2014 final rule. With respect 
to the blocking charge policy, the dissenting Board members did not 
propose any changes to the blocking charge policy with respect to Type 
II charges. However, the two dissenting members advocated a 3-year 
trial period under which the Board would hold elections--and thereafter 
impound the ballots--notwithstanding the presence of a request to block 
(supported by an adequate offer of proof) based on a Type I charge. 79 
FR 74456.
    The Board majority rejected the dissenters' proposal to conduct 
elections in all cases involving Type I charges. The 2014 final rule 
explained that the dissenting Board Members had not identified any 
compelling reason to abandon a policy continuously applied since 1937. 
79 FR 74418-74420, 74429 (``Unfair labor practice charges that warrant 
blocking an election involve conduct that is inconsistent with a free 
and fair election: It advances no policy of the Act for the agency to 
conduct an election unless employees can vote without unlawful 
interference.'').
    The courts upheld the 2014 final rule. See Associated Builders and 
Contractors of Texas, Inc. v. NLRB, 826 F.3d 215, 229 (5th Cir. 2016) 
(noting that the Board ``conducted an exhaustive and lengthy review of 
the issues, evidence, and testimony, responded to contrary arguments, 
and offered factual and legal support for its final conclusions''); 
Chamber of Commerce of the United States of America v. NLRB, 118 F. 
Supp. 3d 171, 220 (D.D.C. 2015) (``[T]he Board engaged in a 
comprehensive analysis of a multitude of issues relating to the need 
for and the propriety of the Final Rule, and it directly addressed the 
commenters' many concerns[.]''). See also RadNet Mgmt, Inc. v. NLRB, 
992 F.3d 1114, 1123 (D.C. Cir. 2021) (rejecting arbitrary-and-
capricious challenge to 2014 final rule).
    Accordingly, under the blocking charge policy as it existed prior 
to the effective date of the April 2020

[[Page 66894]]

amendments, a regional director could not block an election based on 
the request of a party who had filed an unfair labor practice charge if 
the party had not first (1) submitted an offer of proof describing 
evidence that, if proven, would interfere with employee free choice in 
an election were one to be conducted or conduct that would be 
inherently inconsistent with the petition itself, (2) listed its 
witnesses who would testify in support of the charge, and (3) agreed to 
promptly make its witnesses available. Casehandling Manual Section 
11730 (January 2017). Even then, the regional director retained 
discretion to process the petition if an exception to the blocking 
charge policy applied. Casehandling Manual Sections 11730, 11730.2, 
11730.3, 11730.4, 11731, 11731.1-11731.6 (January 2017).
3. The April 2020 Blocking Charge Amendments
    In 2019, the Board issued a Notice of Proposed Rulemaking 
proposing, in relevant part, to substantially change the blocking 
charge policy. Under the proposed rule, whenever a party filed unfair 
labor practice charges that would have blocked processing of the 
petition under prior doctrine, the Board would instead conduct the 
election and impound the ballots (absent dismissal of the 
representation petition, as noted above at fn. 1). See Representation-
Case Procedures: Election Bars; Proof of Majority Support in 
Construction Industry Collective-Bargaining Relationships, 84 FR 39930, 
39930, 39937-39938 (August 12, 2019). If the charge had not been 
resolved prior to the election, the NPRM proposed that the ballots 
would remain impounded until the Board made a final determination 
regarding the charge. 84 FR 39937. The NPRM acknowledged that the 
ballots would ``never be counted'' in cases where the Board made a 
final determination that the charge had merit and that the conduct 
warranted either dismissing the petition or holding a new election. 84 
FR 39938.
    The NPRM offered several justifications for the proposed 
amendments, including the arguments that the Board's historical 
blocking charge policy impeded employee free choice by delaying 
elections and that there is a potential for incumbent unions to abuse 
the blocking charge policy by deliberately filing nonmeritorious unfair 
labor practice charges in the hopes of delaying decertification 
elections. See, e.g., 84 FR 39931-39933, 39937. The majority prepared 
appendices and cited them in support of its claims. 84 FR 39933 & fns. 
13-14, 39937.
    Then-Member McFerran dissented from the NPRM's proposed changes to 
the blocking charge policy. In her view, the Board majority offered no 
valid reasons for substantially changing the blocking charge policy 
that Boards of differing perspectives had adhered to for more than 
eight decades. 84 FR 39939-39949. Noting that the majority had 
implicitly conceded that its proposed vote-and-impound procedure would 
require regional directors to run--and employees, unions, and employers 
to participate in--elections conducted under coercive conditions that 
interfere with employee free choice, the dissent argued that the 
proposed blocking charge amendments would undermine employee rights and 
the policies of the Act. 84 FR 39940, 39941, 39943, 39945, 39948, 
39949. The dissent further argued that because the proposed amendments 
would require regional directors to run--and employees, unions, and 
employers to participate in--elections that would not resolve the 
question of representation, the proposed amendments would impose 
unnecessary costs on the parties and the Board. 84 FR 39941, 39945, 
39948, 39949. The dissent also pointed out inaccuracies in the data 
relied on by the majority in support of its proposed changes to the 
blocking charge policy.\10\
---------------------------------------------------------------------------

    \10\ Then-Member McFerran also prepared an appendix analyzing FY 
2016-and FY 2017-filed RD, RC, and RM petitions that were blocked 
pursuant to the blocking charge policy. 84 FR 39943 & fn. 63; 
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/member-mcferran-dissent-appendix.pdf. Then-Member McFerran 
explained in her dissent that her review of the relevant data for 
Fiscal Years 2016 and 2017 indicated that ``the overwhelming 
majority of decertification petitions are never blocked.'' 84 FR 
39943-39944 and Dissent Appendix (``Approximately 80 percent of the 
decertification petitions filed in FY 2016 and FY 2017 were not 
impacted by the blocking charge policy because only about 20 percent 
(131 out of 641) of the decertification petitions filed in FY 2016 
and FY 2017 were blocked as a result of the policy.''). The dissent 
further explained that ``[e]ven in the minority of instances when 
decertification petitions are blocked, most of these petitions are 
blocked by meritorious charges. Approximately 66% (86 out of 131) of 
the decertification petitions that were blocked in FY 2016 and FY 
2017 were blocked by meritorious charges. See Dissent Appendix, 
[s]ection 1.'' 84 FR 39944 & fn. 64 (explaining that in determining 
whether a petition was blocked by a meritorious charge, the dissent 
``applied the Office of the General Counsel's long-standing merit 
definition contained in OM 02-102 available at https://www.nlrb.gov/news-publications/nlrb-memoranda/operations-management-memos. 
Accordingly, a petition was deemed blocked by a meritorious charge 
if the petition was blocked by a charge that resulted in a 
complaint, a pre-complaint Board settlement, a pre-complaint 
adjusted withdrawal, or a pre-complaint adjusted dismissal. Id. at 
p.4.''). The dissent additionally noted that the Board Chairman and 
General Counsel in office as of the issuance of the NPRM ``used the 
same merit definition in their Strategic Plan for FY 2019-FY 2022. 
See, e.g., Strategic Plan p. 5, attached to GC Memorandum 19-02, 
available at https://www.nlrb.gov/news-publications/nlrb-memoranda/
general-counsel-memos.'' 84 FR 39944 fn. 64.
    Based on her analysis of the relevant data, then-Member McFerran 
also pointed out that ``the overwhelming majority of RM petitions 
are never blocked, and that even in the minority of instances when 
RM petitions are blocked, most of these petitions are blocked by 
meritorious charges. See Dissent Appendix, sec. 1.'' 84 FR 39945 fn. 
69 (``Indeed, my review of the relevant data indicates that 
approximately 82 percent of the RM petitions filed during FY 2016 
and FY 2017 were not blocked, leaving only about 18 percent (18 out 
of 99) of the RM petitions filed during FY 2016 and FY 2017 as 
blocked under the policy. See Dissent Appendix, available at https://www.nlrb.gov. And most pointedly, nearly 89 percent (16 out of 18) 
of the RM petitions blocked during FY 2016 and FY 2017 were blocked 
by meritorious charges. See Dissent Appendix, sec. 1.''). 84 FR 
39945 fn. 69.
    The dissent also pointed out numerous errors in the majority's 
appendices, noting for example that the majority had artificially 
inflated the length of time periods that their cited cases were 
blocked, apparently by ``inappropriately aggregat[ing] multiple 
blocking periods for the same case, even when those periods run 
concurrently [. . . which . . . ] has the rather bizarre effect of 
listing a case such as Piedmont Gardens, Grand Lake Gardens, 32-RC-
087995, as having been blocked for more than 12 years--an impossibly 
high estimate considering that the case was less than 7 years old as 
of December 31, 2018 (with a petition-filing date of August 24, 
2012). See Majority Appendix B Tab 4.'' 84 FR 39946 fn. 71. The 
dissent also pointed out that the majority had artificially inflated 
the number of ``blocked petitions pending'' by including in its list 
cases that had not been blocked due to the blocking charge policy. 
84 FR 39946 fn. 71, fn. 74.
---------------------------------------------------------------------------

    The majority did not correct the errors before issuing the NPRM. 84 
FR 39930-39939 & fn. 15.\11\ As noted, on April 1, 2020, the Board 
issued a final rule substantially eliminating the blocking charge 
policy.\12\ 85 FR 18366. The final rule differed from the NPRM. Unlike 
the NPRM, which had proposed a vote and impound procedure for all cases 
involving blocking charges until there was a final determination of the 
merits of the charge, the final rule adopted a vote and immediately 
count the ballots procedure for the vast majority of blocking charge 
cases (including all cases involving Type I blocking charges and some 
cases involving Type II blocking charges). 85 FR 18366, 18369-18370, 
18374. The final rule also provided that notwithstanding a request to 
block based on a pending charge alleging certain specified types of 
Type

[[Page 66895]]

II conduct, the Board will impound the ballots for no more than 60 days 
(unless a complaint issues on the Type II charge within the 60-day 
period, in which case the ballots will be remain impounded pending a 
final determination by the Board). 85 FR 18369-18370, 18374. In short, 
under the April 2020 final rule, a blocking charge request will never 
delay any election, and will only rarely delay the count of the 
ballots. 85 FR 18370, 18375. Nevertheless, the final rule ``clarifie[d] 
that the certification of results (including, where appropriate, a 
certification of representative) shall not issue until there is a final 
disposition of the charge and a determination of its effect, if any, on 
the election petition.'' 85 FR 18370.
---------------------------------------------------------------------------

    \11\ In addition to then-Member McFerran's analysis of the data 
in her dissent, on December 5, 2019, Bloomberg Law published an 
article entitled, ``Federal Labor Board Used Flawed Data to Back 
Union Election Rule.'' Alex Ebert and Hassan A. Kanu, ``Federal 
Labor Board Used Flawed Data to Back Union Election Rule,'' 
Bloomberg Law (Dec. 5, 2019). The article reported on the results of 
a Bloomberg Law analysis, which found that the NPRM used flawed data 
in support of the proposed blocking charge amendments. Id. After 
publication of the Bloomberg Law article, the Board still did not 
issue a new NPRM correcting the data.
    \12\ Lauren McFerran was no longer serving on the Board when the 
final rule issued.
---------------------------------------------------------------------------

    The Board adopted the amendments requiring the Board to refrain 
from delaying any election involving blocking charges essentially for 
the reasons contained in the NPRM. 85 FR 18375-18380, 18393. As for its 
decision to abandon the proposed vote-and-impound procedure and to 
substitute the requirement that ballots be immediately opened and 
counted in all cases involving Type I charges and a subset of Type II 
charges, the Board stated that it had concluded that it would be 
``preferable for ballots to be counted immediately after the conclusion 
of the election . . . with regard to most categories of unfair labor 
practice charges.'' 85 FR 18380. The final rule agreed with a commenter 
that:

    [I]mpoundment of ballots does not fully ameliorate the problems 
with the current blocking charge policy because impoundment fails to 
decrease a union's incentive to delay its decertification by filing 
meritless blocking charges; makes it more difficult for parties to 
settle blocking charges, as they would not know the results of the 
election during their settlement discussions; and further frustrates 
and confuses employees waiting, possibly for an extended post-
election period, to learn the results of the election.

85 FR 18380.
    As noted, however, the Board chose to adopt a vote-and-impound-for-
60-days-procedure (with impoundment to last longer if a complaint 
issued within 60 days of the election) for certain types of Type II 
unfair labor practice charges. The Board stated in this regard:

    At the same time, however, some types of unfair labor practice 
charges speak to the very legitimacy of the election process in such 
a way that warrants different treatment--specifically, those that 
allege violations of section 8(a)(1) and 8(a)(2) or section 
8(b)(1)(A) of the Act and that challenge the circumstances 
surrounding the petition or the showing of interest submitted in 
support of the petition, and those that allege that an employer has 
dominated a union in violation of section 8(a)(2) and that seek to 
disestablish a bargaining relationship. We believe that in cases 
involving those types of charges, it is more appropriate to impound 
the ballots than to promptly count them. Nevertheless, in order to 
avoid a situation where employees are unaware of the election 
results indefinitely, we believe it is appropriate to set an outer 
limit on how long ballots will be impounded. Accordingly, the final 
rule provides that the impoundment will last for only up to 60 days 
from the conclusion of the election if the charge has not been 
withdrawn or dismissed prior to the conclusion of the election, in 
order to give the General Counsel time to make a merit determination 
regarding the unfair labor practice charge.

85 FR 18380.
    As for the errors in the NPRM pointed out by then-Member McFerran 
in her dissent to the NPRM and in the Bloomberg law article, supra fn. 
11, the Board stated in the final rule that we also acknowledge the 
claims in the dissent to the NPRM and by some commenters that there 
were errors in some of the data that the NPRM majority cited to support 
the proposed rule and that these errors led to exaggeration both of the 
number of cases delayed and the length of delay involved. Even 
accepting those claims as accurate, the remaining undisputed statistics 
substantiate the continuing existence of a systemic delay that supports 
our policy choice to modify the current blocking-charge procedure that 
does not, and need not, depend on statistical analysis. As the AFL-CIO 
candidly acknowledges, ``[b]locking elections delays elections. That is 
undeniably true and requires no `statistical evidence' to 
demonstrate.'' We agree. Furthermore, anecdotal evidence of lengthy 
blocking charge delays in some cases, and judicial expressions of 
concern about this, remain among the several persuasive reasons 
supporting a change that will assure the timely conduct of elections 
without sacrificing protections against election interference. 85 FR 
18377 (footnote omitted).
    The April 2020 amendments became effective on July 31, 2020. See 85 
FR 20156 (Apr. 10, 2020).

B. The Voluntary-Recognition Bar

1. Historical Development of the Voluntary-Recognition Bar

    Since before the NLRA was passed, employers have sometimes chosen 
to voluntarily recognize labor unions as the collective-bargaining 
representatives of their employers, and the Act itself clearly 
contemplated that the practice of voluntary recognition would 
continue.\13\ While the statute provides for Board-conducted 
representation elections, with winning unions certified by the Board, 
the Act does not make such elections the only route to union 
representation under the statute, as the Supreme Court has 
explained.\14\
---------------------------------------------------------------------------

    \13\ Citing the Supreme Court, the Board has previously pointed 
out that ``[v]oluntary recognition itself predates the National 
Labor Relations Act and is undisputedly lawful under it.'' Dana 
Corp., 351 NLRB 434, 436 (2007) (footnote omitted) (citing NLRB v. 
Gissel Packing Co., 395 U.S. 575, 595-600 (1969)). As the Dana Board 
observed, ``voluntary recognition has been embedded in [s]ection 
9(a) from the Act's inception.'' 351 NLRB at 438. See also Lamons 
Gasket Co., 357 NLRB 739, 741 (2011) (``Congress was well aware of 
the practice of voluntary recognition when it adopted the Act in 
1935, because the practice long predated the Act.'') (citing H.R. 
Rep. No. 74-969, at 4 (1935), reprinted in 2 Legislative History of 
the National Labor Relations Act 1935, at 2914 (1949)) (an election 
is appropriate ``[w]hen an employee organization has built up its 
membership to a point where it is entitled to be recognized . . . 
and the employer refuses to accord such recognition'').
    \14\ See United Mine Workers of America v. Arkansas Oak Flooring 
Co., 351 U.S. 62, 72 fn. 8 (1956) (``A Board election is not the 
only method by which an employer may satisfy itself as to the 
union's majority status.''). There, the Supreme Court observed that 
an employer was free to voluntarily recognize a labor union that did 
not comply with certain statutory requirements and that could not be 
certified by the Board as the result of an election. Id. at 71, 74-
75.
---------------------------------------------------------------------------

    Rather, section 8(a)(5) of the Act requires an employer ``to 
bargain collectively with the representatives of his employees, subject 
to the provisions of section 9(a).'' 29 U.S.C. 158(a)(5). Section 9(a), 
in turn, refers to ``[r]epresentatives designated or selected . . . by 
the majority of the employees'' in an appropriate unit.\15\ Section 
9(c)(1)(A), meanwhile, provides for Board-conducted elections when 
employees seek union representation and file a petition with the Board 
``alleging . . . that their employer declines to recognize their 
representative as . . . defined in section 9(a).'' 29 U.S.C. 
159(c)(1)(A) (emphasis added). When an employer does not ``decline[ ] 
to recognize'' the designated union, there is no obvious statutory 
``question of representation'' under section 9(c) to be resolved by a 
Board election. A union that has been certified by the Board after 
winning an election enjoys certain statutory privileges and protections 
that a voluntarily recognized union does not. Most important, section 
9(c)(3) of the Act, in providing that another Board election may not be 
held for twelve months after a valid election,

[[Page 66896]]

effectively insulates a certified union from an electoral challenge to 
its representative status for that one-year period.\16\
---------------------------------------------------------------------------

    \15\ 29 U.S.C. 159(a) (emphasis added). See Gissel Packing Co., 
supra, 395 U.S. at 596-598. Sec. 9(a) provides in relevant part that 
representatives designated or selected for the purposes of 
collective bargaining by the majority of the employees in a unit 
appropriate for such purposes, shall be the exclusive 
representatives of all the employees in such unit for the purposes 
of collective bargaining in respect to rates of pay, wages, hours of 
employment, or other conditions of employment.
    \16\ 29 U.S.C. 159(c)(3) (``No election shall be directed in any 
bargaining unit or any subdivision within which, in the preceding 
twelve-month period, a valid election shall have been held.''). The 
other statutory advantages of certification are (1) protection 
against recognitional picketing by rival unions under sec. 
8(b)(4)(C); (2) the right to engage in certain secondary and 
recognitional activity under sec. 8(b)(4)(B) and 7(A); and (3) in 
certain circumstances, a defense to allegations of unlawful 
jurisdictional picketing under sec. 8(b)(4)(D). See Lamons Gasket 
Co., supra, 357 NLRB at 748 & fn. 35; 85 FR 18381 fn. 124.
---------------------------------------------------------------------------

    To be lawful, voluntary recognition pursuant to section 9(a) of the 
Act must be based on the union's majority support among employees.\17\ 
Such support is often demonstrated by having employees sign cards 
authorizing the union to represent them in collective bargaining, 
although the Board recognizes other mechanisms as well.\18\ Traditional 
Board law reflects that under the Act, ``[o]nce voluntary recognition 
has been granted to a majority union, the [u]nion becomes exclusive 
collective-bargaining representative of the employees.'' \19\ In short, 
as the Supreme Court has recognized, voluntary recognition is not 
simply permitted under the Act; it establishes a bargaining 
relationship between union and employer that must be honored.\20\ So 
long as employees have freely chosen the union to represent them, 
voluntary recognition clearly promotes the statutory policy of 
``encouraging the practice and procedure of collective bargaining and 
by protecting the exercise by workers of full freedom of . . . 
designation of representatives of their own choosing.'' \21\
---------------------------------------------------------------------------

    \17\ Int'l Ladies' Garment Workers' Union v. NLRB (Bernhard-
Altmann), 366 U.S. 731, 738 (1961) (employer violated sec. 8(a)(2) 
of Act by recognizing and bargaining with union that lacked majority 
support). See, e.g., Alliant Foodservice, Inc., 335 NLRB 695, 695 
(2001) (employer violated sec. 8(a)(2) by recognizing union that did 
not legitimately represent majority of employees in bargaining unit, 
and union violated sec. 8(b)(1)(A) by accepting recognition).
    \18\ See Lamons Gasket, supra, 357 NLRB at 741 (citing 
authorization cards, employee statements, and secret-ballot 
elections conducted by private third parties).
    \19\ Brown & Connolly, Inc., 237 NLRB 271, 275 (1978), enfd. 593 
F.2d 1373 (1st Cir. 1979).
    \20\ See Gissel Packing Co., supra, 395 U.S. at 596 (``Since 
Sec.  9(a) . . . refers to the representative as the one `designated 
or selected' by a majority of the employees without specifying 
precisely how that representative is to be chosen, it was early 
recognized that an employer had a duty to bargain whenever the union 
representative presented `convincing evidence of majority support.' 
'').
    \21\ National Labor Relations Act, sec. 1, 29 U.S.C. 151.
---------------------------------------------------------------------------

    In 1966, a unanimous Board in Keller Plastics,\22\ an unfair labor 
practice case, added the voluntary-recognition bar to its previously 
established bar doctrines, which temporarily insulate a union from 
challenges to its status as exclusive bargaining representative. The 
Keller Plastics Board rejected a claim that an employer had unlawfully 
reached a collective-bargaining agreement with a union that had since 
lost the majority support it enjoyed when it was voluntarily recognized 
by the employer. The Board held that in cases involving voluntary 
recognition of a union--as in cases where a bargaining relationship was 
established by a Board certification, by a Board order in an unfair 
labor practice case, or by an unfair labor practice settlement--``the 
parties must be afforded a reasonable time to bargain and to execute 
the contracts resulting from such bargaining'' because ``negotiations 
can succeed . . . and the policies of the Act can thereby be 
effectuated, only if the parties can normally rely on the continuing 
representative status of the lawfully recognized union for a reasonable 
period of time.'' \23\ Following Keller Plastics, the Board quickly and 
unanimously held in Sound Contractors,\24\ also decided in 1966, that 
the voluntary-recognition bar applied in representation cases as well 
as in unfair labor practice cases, barring election petitions that 
challenged a voluntarily recognized union's representative status 
during a reasonable period for bargaining.
---------------------------------------------------------------------------

    \22\ Keller Plastics Eastern, Inc., 157 NLRB 583 (1966).
    \23\ 157 NLRB at 587. Among the precedent cited as support for 
this rule was the Supreme Court's 1944 decision in Franks Bros. Co. 
v. NLRB, 321 U.S. 702 (1944). There, the Court upheld the Board's 
bargaining order against an employer that had unlawfully refused to 
bargain with a majority union, which then lost majority support. 
Rejecting the argument that the bargaining order was unfair to 
employees who opposed the union, the Court observed that the order 
only temporarily insulated the union from challenge and that a 
``bargaining relationship once rightfully established must be 
permitted to exist and function for a reasonable period in which it 
can be given a fair chance to succeed.'' 321 U.S. at 705.
    \24\ Sound Contractors Assn., 162 NLRB 364, 365 & fn. 5 (1966) 
(permitting representation petition to be processed because union 
seeking to bar petition had not been voluntarily recognized by 
employer).
---------------------------------------------------------------------------

2. Dana Corp. and Lamons Gasket
    For more than 40 years, the Board consistently applied the 
voluntary-recognition bar as articulated in Keller Plastics.\25\ In 
2007, however, a divided Board, citing the increased use of voluntary-
recognition agreements to establish collective-bargaining 
relationships, re-examined Board doctrine and adopted a different 
approach. In Dana Corp.,\26\ the Board established a novel election 
procedure in voluntary-recognition cases, through adjudication and not 
rulemaking. It held that no election bar would be imposed after an 
employer's ``card-based recognition'' of a union, nor would a contract 
bar be imposed on contracts executed with a voluntarily recognized 
union, unless:
---------------------------------------------------------------------------

    \25\ Collective-bargaining agreements have also long been 
subject to a contract-bar period of up to three years, insulating 
the union from challenges to majority status during that period. See 
General Cable Corp., 139 NLRB 1123, 1125 (1962).
    \26\ Dana Corp., 351 NLRB 434 (2007).

    (1) employees in the bargaining unit receive notice of the 
recognition and of their right, within 45 days of the notice, to 
file a decertification petition or to support the filing of a 
petition by a rival union, and (2) 45 days pass from the date of 
notice without the filing of a valid petition. If a valid petition 
supported by 30 percent or more of the unit employees is filed 
---------------------------------------------------------------------------
within 45 days of the notice, the petition will be processed.

    351 NLRB at 434 (footnote omitted). The Dana Board asserted a need 
to ``provide greater protection for employee free choice,'' id. at 438, 
and cited two principal reasons for establishing the new procedure. 
First, it concluded that Board-conducted elections were more reliable 
than union-authorization cards in determining employee free choice. Id. 
at 438-440. Second, it found that the rationale for the other election 
bars established by the Board was ``far less persuasive'' in the 
context of voluntary recognition. Id. at 440-441. Nevertheless, the 
Dana Board properly acknowledged that ``[s]everal courts of appeals 
ha[d] endorsed the current recognition-bar doctrine,'' while citing no 
contrary decisions. Id. at 441 & fn. 31 (collecting cases from District 
of Columbia Circuit and Second, Third, Sixth, Seventh, and Ninth 
Circuits). The dissenting Board members in Dana rejected both of the 
principal reasons offered by the majority for the new procedure. They 
argued that the voluntary-recognition bar served the same purposes as 
other election bars in giving a bargaining relationship a fair chance 
to succeed, particularly given that negotiations for a first contract 
were involved. Id. at 446. The dissenters also pointed out that there 
was no empirical evidence that the use of authorization cards was a 
less reliable indicator of employee free choice than an election. Id. 
at 448.
    Four years later, in 2011, the Dana decision was overruled by a 
divided Board in Lamons Gasket,\27\ which rejected the Dana procedure 
and restored the voluntary-recognition bar

[[Page 66897]]

and for the first time defined benchmarks for measuring the reasonable 
bargaining period covered by the bar. The Board defined ``a reasonable 
period of bargaining, during which the recognition bar will apply, to 
be no less than 6 months after the parties' first bargaining session 
and no more than 1 year.'' 357 NLRB at 748. ``In determining whether a 
reasonable period has elapsed in a given case,'' the Board held that it 
would apply the multifactor test of Lee Lumber & Building Material 
Corp., 334 NLRB 399 (2001), and would ``impose the burden of proof on 
the General Counsel to show that further bargaining should be 
required.'' 357 NLRB at 748 (footnote omitted). As noted by the Lamons 
Gasket Board, the Lee Lumber test considers ``(1) whether the parties 
are bargaining for an initial contract; (2) the complexity of the 
issues being negotiated and of the parties' bargaining processes; (3) 
the amount of time elapsed since bargaining commenced and the number of 
bargaining sessions; (4) the amount of progress made in negotiations 
and how near the parties are to concluding an agreement; and (5) 
whether the parties are at impasse.'' Lee Lumber, supra, 334 NLRB at 
402.
---------------------------------------------------------------------------

    \27\ Lamons Gasket Co., supra, 357 NLRB at 739.
---------------------------------------------------------------------------

    In overruling Dana, the Lamons Gasket Board made three principal 
arguments. First, it argued that empirical data from the period in 
which the Dana procedure was in effect refuted the claim that voluntary 
recognition did not accurately reflect employee free choice: 
``employees decertified the voluntarily recognized union under the Dana 
procedures in only 1.2 percent of the total cases in which Dana notices 
were requested.'' 357 NLRB at 742 (footnote omitted). Second, the Board 
contended that the Dana notice, ``understood in context,'' 
inappropriately compromised the Board's neutrality by ``suggest[ing] to 
employees that the Board considers their choice to be represented 
suspect and signals to employees that their choice should be 
reconsidered through the filing of a petition.'' Id. at 744. Third, the 
Board argued that the voluntary-recognition bar, in protecting a newly 
established bargaining relationship, promoted the same statutory 
policies advanced by its other bar doctrines. Id. Thus, voluntary 
recognition reflected the Act's approval of a ``system of private 
ordering'' in labor relations in which collective bargaining was to be 
encouraged and labor disputes avoided. Id. at 746. Voluntary 
recognition was consistent with employee free choice because it 
required a showing of majority support among all employees in the 
bargaining unit, not merely a majority of voters (as in a Board 
election), and because the Act's unfair labor practice provisions 
enabled improper recognition to be redressed. Id. at 746-747. In the 
view of the Lamons Gasket Board, the Dana procedure simply served to 
create uncertainty around the new bargaining relationship and to 
interfere unnecessarily in the bargaining process. Id. at 747. The 
dissenting Board member rejected each of these arguments, contending 
(among other things) that the same empirical evidence relied on by the 
majority in fact supported the rationale of Dana. Id. at 748-754.
3. The April 2020 Amendments
    In 2019, as part of its larger rulemaking culminating in the April 
1, 2020 final rule discussed herein, the Board proposed, subject to 
public comment, to overrule Lamons Gasket and to reinstate the Dana 
procedure.\28\ As support for the proposed rule, the Board cited the 
views of the Dana Board and the dissenting Board member in Lamons 
Gasket. No intervening judicial decisions had questioned Lamons Gasket 
or its restoration of the longstanding voluntary-recognition bar, nor 
had a petition for rulemaking addressing the issue been filed with the 
Board. Then-Member McFerran dissented.\29\
---------------------------------------------------------------------------

    \28\ NLRB, Representation Case Procedures: Election Bars; Proof 
of Majority Support in Construction Industry Collective-Bargaining 
Relationships, Notice of Proposed Rulemaking, 84 FR 39930, 39938, 
39958 (Aug. 12, 2019).
    \29\ Id. at 39949-39951.
---------------------------------------------------------------------------

    On April 1, 2020, following a public comment period, the Board 
adopted a final rule that essentially codified the Dana procedure.\30\ 
The new rule (``Processing of petitions filed after voluntary 
recognition'') appears as Sec.  103.21 in the Board's Rules and 
Regulations, 29 CFR 103.21. Under the rule, neither the employer's 
voluntary recognition of a union, nor the first collective-bargaining 
agreement executed by the parties after recognition, will bar the 
processing of an election petition, unless: (1) the employer or the 
union notifies the Board's Regional Office that recognition has been 
granted; (2) the employer posts a prescribed notice of recognition 
``informing employees that recognition has been granted and that they 
have a right to file a petition during a 45-day `window period' 
beginning on the date the notice is posted''; (3) the employer 
distributes the notice electronically to employees, if electronic 
communication is customary; and (4) 45 days from the posting date pass 
without a properly supported election petition being filed. The Board 
noted that it did ``not rely on any data, or analysis of data, other 
than that discussed in Dana and in Lamons Gasket, which [it had] fully 
considered.'' \31\
---------------------------------------------------------------------------

    \30\ NLRB, Representation Case Procedures: Election Bars; Proof 
of Majority Support in Construction Industry Collective-Bargaining 
Relationships, Final Rule, 85 FR 18366, 18367-18368, 18370, 18380-
18388, 18399-183400 (April 1, 2020). At the time the final rule was 
adopted, the Board member who had dissented from the proposed rule 
(then-Member McFerran) was not serving on the Board.
    \31\ 85 FR 18373.
---------------------------------------------------------------------------

    In explaining the reasons for the new rule, the Board essentially 
repeated the rationale of the Dana decision, advancing arguments that 
had been rebutted by the Lamons Gasket decision.\32\ Thus, the Board 
characterized Board elections as the ``Act's preferred method for 
resolving questions of representation,'' citing the Act's election-year 
bar (under section 9(c)(3), after a valid Board election is held, 
another election may not be directed for one year) and the specific 
statutory protections granted only to a Board-certified union.\33\ The 
Board asserted that ``secret-ballot elections are better than voluntary 
recognition at protecting employees' [s]ection 7 freedom to choose, or 
not choose, a bargaining representative.'' \34\ It noted that the Board 
``does not supervise voluntary recognitions'' and rejected the notion 
that the Act's unfair labor practice provisions were sufficient to 
address coercive conduct related to voluntary recognition.\35\ A Board 
election was deemed superior to voluntary recognition because ``it 
presents a clear picture of employee voter preference at a single 
moment.'' \36\ Rejecting criticism of the proposed rule, the Board 
insisted that it does not ``restrict the lawful voluntary establishment 
of majority-supported bargaining relationships, nor does it limit the 
immediate statutory rights and responsibilities that ensue upon 
commencement of those relationships.'' \37\ According to the Board, the 
rule was also supported by the need to protect employees' ability to 
challenge the union's majority status from the possibility that 
voluntary recognition immediately triggering an election bar might be 
followed by a

[[Page 66898]]

collective-bargaining agreement, which would trigger its own, separate 
bar.\38\
---------------------------------------------------------------------------

    \32\ 85 FR 18380-18388.
    \33\ Id. at 18381.
    \34\ Id.
    \35\ Id.
    \36\ Id.
    \37\ Id. at 18382.
    \38\ Id. at 18382-18383.
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    The Board also addressed experience under the Dana procedure, as 
described in the Lamons Gasket decision, by echoing the arguments of 
the dissenting Board member in Lamons Gasket.\39\ It acknowledged that 
``only 7.65 percent of Dana notice requests resulted in election 
petitions, only 4.65 percent of Dana notices resulted in actual 
elections, and employees decertified the voluntarily recognized union 
in only 1.2 percent of the total cases in which Dana notices were 
requested.'' \40\ In expressing the view that ``the fact that only a 
small percentage of all Dana notices resulted in ending continued 
representation by the voluntarily recognized union does not mean that 
the post-recognition open period procedure was unnecessary and should 
not be restored,'' the Board pointed to the fact that in the (rare) 
instances where a Dana election was held, the union was decertified 
about one-quarter of the time.\41\ As for the overwhelming majority of 
cases where no Dana election was held, the Board asserted that it knew 
``nothing about the reliability of the proof of majority support that 
underlay recognition in each of these cases,'' nor ``why no petition 
was filed.'' \42\ In turn, the Board cited the absence of evidence that 
the Dana procedure had produced negative effects, such as discouraging 
voluntary recognition or discouraging or delaying collective 
bargaining.\43\ The Board acknowledged the possibility that the 
``existence of a pending election petition will cause unions to spend 
more time campaigning or working on election-related matters rather 
than doing substantive work on behalf of employees,'' but concluded 
``that this is a reasonable trade-off for protecting employees' ability 
to express their views in a secret-ballot election.'' \44\
---------------------------------------------------------------------------

    \39\ Id. at 18383-18384.
    \40\ Id. at 18383.
    \41\ Id.
    \42\ Id.
    \43\ Id. at 18384.
    \44\ Id. at 18385.
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    The new election procedure established by the Board's rule went 
into effect on June 1, 2020. In response to a series of Freedom of 
Information Act requests, the Board has compiled and disclosed data 
that reflects its experience under the rule.\45\ That experience has 
been entirely consistent with the Board's experience under the Dana 
procedure, during the 2007-2011 period. The new data, which has been 
assembled incrementally by the Board's FOIA officer in response to 
successive information requests, show as follows.\46\ First, for the 
calendar year 2020, the data show that 32 requests for voluntary 
recognition notices were filed with the Board. In those cases, no 
election petitions were filed.\47\ For the period from January 1, 2021 
through June 30, 2021, the data shows that 39 requests for notices were 
filed, and no subsequent petitions were filed. For the period from July 
1, 2021 through September 30, 2021, 31 requests for notices were filed. 
One decertification petition was subsequently filed, after which the 
union disclaimed interest. For the period from October 1, 2021 through 
December 31, 2021, 53 requests were filed, and no subsequent petitions 
were filed. For the period from January 1, 2022 through March 31, 2022, 
the data shows that 51 requests for notices were filed, and no 
subsequent petitions were filed. For the period from April 1, 2022 
through June 30, 2022, the data shows that 54 requests for notices were 
filed, and no subsequent petitions were filed. As a whole, then, the 
data thus far show that since the effective date of Sec.  103.21, 260 
requests for recognition notices were filed with the Board. In those 
cases, one election petition was subsequently filed, and no elections 
were held--although the union in the one case where a petition was 
filed disclaimed interest after its filing. Thus, only 0.4 percent of 
recognition notice requests resulted in election petitions, 0 percent 
of notices resulted in actual elections, and (if we count the 
disclaimer as an effective proxy for the de-selection of the union in 
the sole case where a petition was filed), employees opted not to 
retain the voluntarily recognized union in only 0.4 percent of the 
total cases in which recognition notices were requested. In over 99 
percent of notice cases, employees appear to have affirmed their choice 
to be represented by a union.
---------------------------------------------------------------------------

    \45\ The data cited here can be found at https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-000944&type=request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2021-001133&type=request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000090&type=Request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000354&type=Request; https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-000844&type=Request; and https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=NLRB-2022-001456&type=Request.
    \46\ In a few instances, the FOIA compilations show that a 
petition was filed, but further inquiry shows that the petition was 
an RC petition filed prior to voluntary recognition and later 
withdrawn. Those cases have not been counted as examples of cases 
where a subsequent petition was filed. In six cases, the FOIA 
spreadsheets indicate that a petition was filed, but follow-up 
research in the Board's recordkeeping system discloses no such 
petition, thus suggesting that the registry of a petition was in 
error. Those cases also have not been counted as examples of cases 
where a subsequent petition was filed. A few cases (none of which 
involved petitions) appear duplicative and have only been counted 
once. One case, in which a notice was requested but no pertinent 
information was supplied even after it was requested, has also not 
been counted in the analysis of petitions filed in response to 
voluntary recognition notice requests.
    In yet another case, which has not been counted in this 
analysis, voluntary recognition was, according to the FOIA 
compilations, extended after the filing of a petition, but case 
records suggest that in fact the union won an election and no 
voluntary recognition was involved.
    \47\ However, in one case, after an initial faulty notice 
posting, the union subsequently disclaimed interest for unknown 
reasons. No petition was filed. Given the ambiguity, this case has 
not been counted in our analysis at all.
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    As we explain below, the Board's preliminary view, subject to 
comments, is that the voluntary-recognition bar as articulated in 
Lamons Gasket better serves the policies of the National Labor 
Relations Act than does the current rule.

C. Section 9(a) Recognition in the Construction Industry

1. Overview
    In the construction industry, employees often work for their 
employer for only a relatively brief period until the completion of a 
discrete project, at which time they may have begun working on a new 
project for a different employer.\48\ This sporadic and temporary 
feature of much construction-industry work complicates a union's effort 
to demonstrate majority support among employees whose time with any one 
employer may be fleeting. At the same time, the widespread use of the 
project bid process means that construction employers need to know 
their labor costs, and thus, the terms of a collective-bargaining 
agreement, even before they hire their first employee.\49\ The employer 
has to be able to forecast its labor costs to submit a contract bid and 
have available a pool of skilled craft workers ready for quick 
referral.\50\
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    \48\ John Deklewa & Sons, 282 NLRB 1375, 1380 (1987) (quoting S. 
Rep. No. 86-187, reprinted in 1 NLRB, Legislative History of the 
Labor-Management Reporting and Disclosure Act of 1959 (Leg. Hist.), 
at 423, and H. Rep. No. 86-741, reprinted in 1 NLRB, Leg. Hist., at 
777-778), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 
(3d Cir. 1988).
    \49\ Id. (quoting S. Rep. No. 86-187, reprinted in 1 NLRB, Leg. 
Hist., at 424).
    \50\ Id.
---------------------------------------------------------------------------

    Consequently, construction employers and unions frequently 
negotiate and enter into prehire collective-bargaining

[[Page 66899]]

agreements.\51\ For the length of these agreements, even before it 
hires any employees, the construction employer recognizes the union as 
the bargaining representative of the employer's eventual employees and 
the employer is guaranteed precise labor costs pursuant to the 
agreement and, in the event of a union hiring hall, a source of skilled 
craft workers.\52\
---------------------------------------------------------------------------

    \51\ Id.
    \52\ Id. at 1385.
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    In 1959, responsive to these unique construction-industry 
practices, Congress amended the Act,\53\ adopting section 8(f),\54\ 
which permitted a limited alternative in the building and construction 
industry to the Act's existing section 9(a) requirement that a union 
have majority support to obtain exclusive collective-bargaining 
representative status.\55\ By declaring that ``[i]t shall not be an 
unfair labor practice'' to do so, section 8(f) sanctions the 
construction-industry practice of a construction employer and a union 
entering into a prehire agreement even where the union has not 
established its majority support among any bargaining unit of the 
employer's employees under section 9(a).\56\
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    \53\ The Landrum-Griffin Act of 1959, Public Law 86-257, 73 
Stat. 541, amending 29 U.S.C. 151-169.
    \54\ Sec. 8(f), 29 U.S.C. 158(f).
    \55\ John Deklewa & Sons, 282 NLRB at 1380.
    \56\ Id.
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    For more than 35 years, the Board's decision in John Deklewa & Sons 
has governed how the Board has handled these 8(f) agreements and the 
interplay with a construction employer's 9(a) recognition of a union in 
instances where the union does have the support of a majority of the 
bargaining unit employees. Under John Deklewa & Sons, the Board adopted 
a rebuttable presumption that a collective-bargaining relationship in 
the construction industry was established under section 8(f), with the 
burden of proving that the relationship instead falls under section 
9(a) placed on the party so asserting.\57\
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    \57\ The Board in John Deklewa & Sons abandoned the ``conversion 
doctrine,'' adopted in 1971, 16 years before it issued John Deklewa 
& Sons, in which a bargaining relationship initially established 
under section 8(f) could convert into a 9(a) relationship by means 
other than a Board election or majority-based voluntary recognition. 
Id. at 1377. The ``conversion doctrine'' was premised on an 8(f) 
agreement being a ``preliminary step that contemplates further 
action for the development of a full bargaining relationship.'' Id. 
at 1378 (quoting Ruttmann Construction Co., 191 NLRB 701, 702 
(1971)). As such, the 8(f) agreement could be repudiated at any time 
by any party but also permitted the signatory union to convert the 
8(f) agreement into a 9(a) relationship/agreement based on its 
majority support during a relevant period, even though ``[t]he 
achievement of majority support required no notice, no simultaneous 
union claim of majority, and no assent by the employer to complete 
the conversion process.'' Id. In contrast, under John Deklewa & 
Sons, the parties to an 8(f) agreement cannot unilaterally repudiate 
the agreement until it expires or the unit employees vote to reject 
or change their representative. Id. at 1387.
---------------------------------------------------------------------------

    The distinction is important because, unlike where there is only an 
8(f) relationship, a union recognized as the 9(a) representative enjoys 
the full panoply of rights and obligations available to unions in all 
other industries as the exclusive collective-bargaining representative 
under section 9(a).\58\ This includes the irrebuttable presumption of 
majority support during the term of the contract and a rebuttable 
presumption of majority support at other times, including at the 
contract's expiration.\59\ In practice, under the Board's contract-bar 
rules, 9(a) recognition bars the filing of a representation petition 
challenging the union's majority status during the ``reasonable 
period'' of an agreement (up to 3 years) outside of the ``window 
period'' and imposes an obligation on the employer to continue to 
recognize and bargain with the union even after the parties' agreement 
has expired.\60\ By contrast, as the Board explained in John Deklewa & 
Sons, there is no contract or recognition bar where there is only an 
8(f) relationship: ``the 8(f) union enjoys no presumption of majority 
status on the contract's expiration and cannot picket or strike to 
compel renewal of an expired agreement or require bargaining for a 
successor agreement. At no time does it enjoy a presumption of majority 
status, rebuttable or otherwise, and its status as the employees' 
representative is subject to challenge at any time.'' \61\
---------------------------------------------------------------------------

    \58\ Id. at 1385.
    \59\ Id. at 1387.
    \60\ See Mountaire Farms, Inc., 370 NLRB No. 110, slip op. at 1 
(2021) (``During this `contract bar' period, the Board will dismiss 
all representation petitions unless they are filed during the 30-day 
period that begins 90 days and ends 60 days before the agreement 
expires. In other words, there is a 30-day period--customarily known 
as the `window period'--during which a petition may be properly 
filed while the agreement is still in effect.'') (internal citation 
omitted); MSR Industrial Services, LLC, 363 NLRB 1, 2 (2015) (``When 
relationships in the construction industry are governed by section 
9(a), the employer cannot change terms and conditions of employment 
unilaterally upon contract expiration, and it must continue to 
recognize and bargain with the union after the contract expires.''). 
See also sec. 8(f), 29 U.S.C. 158(f) (recognizing that an 8(f) 
agreement ``shall not be a bar to a petition filed pursuant to 
section 9(c) or 9(e)'').
    \61\ 282 NLRB at 1387.
---------------------------------------------------------------------------

    Nonetheless, nothing in section 8(f) prevents a union representing 
employees in the construction industry from overcoming the 8(f) 
presumption and obtaining the same 9(a) recognition (and the attendant 
benefits) as any other union. Thus, under John Deklewa & Sons, the 
Board provided for unions representing employees in the construction 
industry to obtain 9(a) recognition by demonstrating--similar to unions 
representing employees in nonconstruction industries--a ``clear showing 
of majority support'' from the unit employees, assayed either through a 
Board representation election or the construction employer voluntarily 
recognizing that a majority of unit employees had designated the union 
as its collective-bargaining representative.\62\
---------------------------------------------------------------------------

    \62\ Id. at 1385-1387 & fn. 53.
---------------------------------------------------------------------------

    Additionally, because section 8(f) uniquely permits voluntary 
recognition in the construction industry in the absence of majority 
support, where a construction employer voluntarily recognizes a union, 
in order to avoid the uncertainty of whether the recognition is 
pursuant to section 8(f) or 9(a), there must be unambiguous evidence 
that the construction employer's recognition was pursuant to section 
9(a) instead of 8(f). In considering whether there was unambiguous 
evidence of section 9(a) recognition, the Board has looked to positive 
evidence, including contract language, of the union having made an 
unequivocal demand for 9(a) recognition and the employer having 
unequivocally granted it.\63\
---------------------------------------------------------------------------

    \63\ J & R Tile, Inc., 291 NLRB 1034, 1036 (1988) (``[A]bsent a 
Board-conducted election, the Board will require positive evidence 
that the union sought and the employer extended recognition to a 
union as the 9(a) representative of its employees before concluding 
that the relationship between the parties is 9(a) and not 8(f).''); 
see also Golden West Electric, 307 NLRB 1494, 1495 (1992) (finding 
positive evidence of a union's demand for and a construction 
employer's grant of 9(a) recognition where the parties' voluntary-
recognition agreement unequivocally stated that the union claimed it 
represented a majority of employees and the employer acknowledged 
this was so). This avoids the Board having to determine whether the 
union enjoyed majority support at some point in the past--in some 
cases many years before a dispute over the union's status has 
arisen--if a construction employer attempts to escape a longstanding 
bargaining relationship unilaterally, claiming that the relationship 
was always an 8(f) relationship. The Board (and the parties) can 
rely on the specific written language in the parties' agreement to 
confirm their mutual acknowledgment that a showing of majority 
support existed when the relationship was established as opposed to 
years in the future when evidence may no longer be easily available 
(as witnesses and documents may disappear over time).
---------------------------------------------------------------------------

    In Staunton Fuel & Material, Inc., the Board defined the minimum 
requirements for what must be stated in a written recognition agreement 
or contract clause in order for it to serve as sufficient evidence of 
the union having attained 9(a) status.\64\ The Board, following the 
approach taken by the Tenth Circuit in NLRB v. Triple C Maintenance, 
Inc., 219 F.3d 1147 (10th

[[Page 66900]]

Cir. 2000) and NLRB v. Oklahoma Installation Co. 219 F.3d 1160 (10th 
Cir. 2000), found that ``[a] recognition agreement or contract 
provision will be independently sufficient to establish a union's 9(a) 
representation status where the language unequivocally indicates that 
(1) the union requested recognition as the majority or 9(a) 
representative of the unit employees; (2) the employer recognized the 
union as the majority or 9(a) bargaining representative; and (3) the 
employer's recognition was based on the union's having shown, or having 
offered to show, evidence of its majority support.'' \65\
---------------------------------------------------------------------------

    \64\ 335 NLRB 717, 719-720 (2001).
    \65\ Id. at 719-720.
---------------------------------------------------------------------------

    Significantly, this contract language does not substitute for the 
union showing or offering to show evidence of its majority support; it 
does, however, provide a contemporaneous, written memorialization that 
the union had majority support at the time of the 9(a) recognition. 
While holding that contract language can be independently dispositive 
of a 9(a) relationship, the Board in Staunton Fuel left open the issue 
of whether an employer could challenge the union's majority support 
within the 10(b) period where the contractual language the employer had 
agreed to unequivocally stated that the union made a showing of 
majority support.\66\ As the D.C. Circuit has held, if other evidence 
casts doubt on the assertion that the union enjoyed majority support at 
the time the employer purportedly granted 9(a) recognition, then the 
contract language necessarily fails to satisfy its intended purpose.
---------------------------------------------------------------------------

    \66\ Id. at 720 fn. 14.
---------------------------------------------------------------------------

    Thus, in Nova Plumbing, Inc. v. NLRB, the D.C. Circuit held that 
language in the collective-bargaining agreement between a construction 
employer and a union could not establish a 9(a) relationship.\67\ The 
court pointed to strong evidence in the record that contradicted the 
contractual language.\68\ In particular, senior employees who had been 
longtime union members opposed the union representing them with this 
employer, for instance a meeting between the senior employees and union 
representatives turned ``extremely hostile,'' and the employer's field 
superintendents and other foremen ``encountered resistance'' as they 
informed other employees about having to join the union.\69\ The court 
reasoned that language in the collective-bargaining agreement ``cannot 
be dispositive at least where, as here, the record contains strong 
indications that the parties had only a section 8(f) relationship.'' 
\70\ Subsequently, in M & M Backhoe Service, Inc. v. NLRB, the D.C. 
Circuit distinguished Nova Plumbing to uphold the language in the 
parties' agreement establishing that the union was the 9(a) 
representative where there was evidence that the union actually had 
majority support, even if the employer never requested to see it.\71\ 
Six years after M & M Backhoe, in Allied Mechanical Services, Inc. v. 
NLRB, the D.C. Circuit quoted the Nova Plumbing court but, in doing so, 
added emphasis to indicate that contract language cannot be dispositive 
of a union's 9(a) status where the record contains contrary 
evidence.\72\
---------------------------------------------------------------------------

    \67\ 330 F.3d 531, 537-538 (D.C. Cir. 2003).
    \68\ Id. at 533.
    \69\ Id. at 537.
    \70\ Id.
    \71\ 469 F.3d 1047, 1050 (D.C. Cir. 2006) (``This case is like 
Nova Plumbing in the following respects: the union offered to prove 
to the employer that it had majority support; and the employer 
recognized the union without examining the union's proof. But there 
is a critical difference. Unlike Nova Plumbing, in which there was 
no evidence that the union actually had majority support, here the 
record shows--as the Board found--that a majority of employees 
voluntarily signed union authorization cards signifying their 
support of [the union].'').
    \72\ 668 F.3d 758, 766 (2012) (``Standing alone . . . contract 
language and intent cannot be dispositive at least where . . . the 
record contains strong indications that the parties had only a 
section 8(f) relationship.'') (quoting Nova Plumbing, 330 F.3d at 
537) (emphasis added in Allied Mechanical Services).
---------------------------------------------------------------------------

    More recently, the D.C. Circuit in Colorado Fire Sprinkler, Inc. v. 
NLRB rejected the union's claim of 9(a) recognition where the union 
relied solely on demonstrably false contract language stating that the 
employer had ``confirmed that a clear majority'' of the employees had 
designated it as their bargaining representative, even though not a 
single employee had been hired at the time the parties initially 
executed their agreement containing that language.\73\ The court noted 
that ``actual evidence that a majority of employees have thrown their 
support to the union must exist and, in Board proceedings, that 
evidence must be reflected in the administrative record.'' \74\ The 
court recognized that the only evidence of the union's majority support 
that could be pointed to in the record was the ``demonstrably false'' 
contract language.\75\ In fact, as the court pointed out, 
``[t]ellingly, at no point in the administrative record did the [u]nion 
even explain, let alone proffer, what evidence it claimed to have 
collected'' to support its assertion that a majority of employees had 
designated it as their bargaining representative.\76\ The court 
concluded that the Board had improperly ``blink[ed] away record 
evidence undermining the credibility or meaningfulness of the 
recognition clauses'' and ``ma[de] demonstrably untrustworthy 
contractual language the be-all and end-all of [s]ection 9(a) status.'' 
\77\ Construction industry employers and unions--like those in all 
other industries--cannot have created a 9(a) relationship where the 
union did not enjoy majority support, regardless of whether they agree 
to a contractual provision falsely attesting to the union's majority 
support.\78\
---------------------------------------------------------------------------

    \73\ 891 F.3d 1031, 1036 (D.C. Cir. 2018).
    \74\ Id. at 1040.
    \75\ Id.
    \76\ Id. at 1041.
    \77\ Id.
    \78\ More recently, relying on the D.C. Circuit decision in 
Colorado Fire Sprinkler, the Board in Enright Seeding, Inc. noted 
that ``contractual language can only serve as evidence of a union's 
9(a) majority representation if it is true.'' 371 NLRB No. 127, slip 
op. at 5 (emphasis added). Furthermore, the Board explained that 
``[c]ontract language alone is insufficient to demonstrate the 
union's 9(a) status if other evidence casts doubt on the assertion 
that the union enjoyed majority support at the time the employer 
purportedly granted 9(a) recognition.'' Id., slip op. at 6. An 
application for enforcement of the Board's decision in Enright 
Seeding is currently pending in the Eighth Circuit.
---------------------------------------------------------------------------

2. The 6-Month Limitations Period for Challenging a Union's 9(a) 
Recognition in the Construction Industry
    Importantly, in John Deklewa & Sons, despite the greater statutory 
leeway granted to construction employers and unions to enter into 
section 8(f) collective-bargaining relationships, the Board recognized 
that unions seeking section 9(a) representation do not ``have less 
favored status with respect to construction industry employers than 
they possess with respect to those outside the construction industry.'' 
\79\
---------------------------------------------------------------------------

    \79\ John Deklewa & Sons, 282 NLRB at 1387 fn. 53. Just as 
importantly, employees working for construction employers are 
entitled to the same rights and opportunities for their union to 
obtain 9(a) status through voluntary recognition as employees in 
nonconstruction industries.
---------------------------------------------------------------------------

    Six years after issuing John Deklewa & Sons, the Board in Casale 
Industries \80\ relied on this basic tenet from John Deklewa & Sons--
that unions representing construction-industry employees should be 
treated no less favorably than those representing nonconstruction-
industry employees--to explicitly incorporate into the representation 
arena the teachings of the Supreme Court in Local Lodge No. 1424, 
International Association of Machinists, AFL-CIO (Bryan Manufacturing 
Co.) v. NLRB. In Bryan Manufacturing, the Supreme Court held that if an 
employer recognizes a union as the section 9(a) representative and more 
than 6 months

[[Page 66901]]

elapse, the Board will not entertain a claim that the union lacked 
majority status when it was initially granted recognition.\81\
---------------------------------------------------------------------------

    \80\ Casale Industries, 311 NLRB 951, 953 (1993).
    \81\ 362 U.S. 411, 419 (1960); see also North Bros. Ford, 220 
NLRB 1021, 1021 (1975).
---------------------------------------------------------------------------

    In Bryan Manufacturing, more than 6 months after the parties had 
executed a collective-bargaining agreement, unfair labor practice 
charges were filed contesting the parties' enforcement of the union-
security clause in the contract on the grounds that the union 
indisputably lacked majority support at the time the parties executed 
their agreement.\82\ Nonetheless, the Court reversed the Board and 
dismissed the complaint because, under section 10(b)'s 6-month 
limitations period, the complaint was premised on the allegedly 
unlawful recognition of the union, which occurred more than 6 months 
prior to the filing of the charge.\83\ The Court based its decision on 
not only the statutory language but also the practical need for a time 
restriction on challenges to a union's initial recognition.\84\ As the 
Court acknowledged, quoting the legislative history from the Congress 
that enacted it, the 6-month limitations period under section 10(b) is 
essential ``to bar litigation over past events `after records have been 
destroyed, witnesses have gone elsewhere, and recollections of the 
events in question have become dim and confused,' . . . and of course 
to stabilize existing bargaining relationships.'' \85\
---------------------------------------------------------------------------

    \82\ 362 U.S. at 412.
    \83\ Id. at 416-417.
    \84\ Id. at 419.
    \85\ Id.
---------------------------------------------------------------------------

    Relying on Bryan Manufacturing, in Casale, the Board reiterated 
that, in nonconstruction industries, the Board will not entertain a 
claim that a union lacked majority status at the time of recognition if 
more than 6 months have elapsed because ``a contrary rule would mean 
that longstanding relationships would be vulnerable to attack, and 
stability in labor relations would be undermined.'' \86\ The Board 
stated succinctly that these interests should prevail in construction 
industry representation cases: ``These same principles would be 
applicable in the construction industry . . . . [P]arties in 
nonconstruction industries, who have established and maintained a 
stable [s]ection 9 relationship, are entitled to protection against a 
tardy attempt to disrupt their relationship. Parties in the 
construction industry are entitled to no less protection.'' \87\
---------------------------------------------------------------------------

    \86\ Casale, 311 NLRB at 953 (citing Bryan Manufacturing Co., 
362 U.S. at 411).
    \87\ Id. (citing John Deklewa & Sons, 282 NLRB at 1387 fn. 53).
---------------------------------------------------------------------------

3. The Board's 2019 NPRM on 9(a) Recognition in the Construction 
Industry
    On August 12, 2019, the Board issued an NPRM seeking public 
comments on its proposal, among other things, to modify the manner in 
which construction employers may acknowledge a union's 9(a) status.
    The Board proposed in its 2019 NPRM to overrule Staunton Fuel, 
regarding the sufficiency of contract language alone to establish a 
9(a) bargaining relationship.\88\ The Board contended that overruling 
Staunton Fuel would be in accordance with the D.C. Circuit decision in 
Colorado Fire Sprinkler and that it would be most consistent with 
statutory majoritarian principles and protecting employee free 
choice.\89\ The Board reasoned that the proposed rule was necessary to 
prevent a union, without having any extrinsic proof of its majority 
support, from barring the processing of an election petition filed by 
an employee or a rival union for up to three years based solely on 
language in the union's collective-bargaining agreement with a 
construction employer.\90\
---------------------------------------------------------------------------

    \88\ 84 FR 39938-39939.
    \89\ Id.
    \90\ Id.
---------------------------------------------------------------------------

    Under the rule proposed in the 2019 NPRM, the Board would require, 
in the representation context, the parties to retain additional 
positive evidence of the union's 9(a) majority support beyond the 
parties' contract language. Specifically, if a representation petition 
is filed, and the parties are unable to present positive evidence of 
the union having made a contemporaneous showing of support from a 
majority of unit employees at the time initial recognition was granted, 
the parties would be unable to rely on the Board's customary voluntary-
recognition and contract bars. The regional director would be required 
to process the representation petition, even if it would destabilize 
the collective-bargaining relationship.\91\ Moreover, if the employer 
had granted the union 9(a) recognition at a time when it did not enjoy 
majority support, the Board would be processing a representation 
petition at a time when the employer had provided the union unlawful 
assistance under section 8(a)(2) and (1) so that laboratory conditions 
may not exist to ascertain employees' true sentiment towards the 
union.\92\
---------------------------------------------------------------------------

    \91\ See General Cable Corp., 139 NLRB 1123, 1125 (1962) 
(finding the delay as to when employees are able to exercise their 
free choice in an election ``fully warranted when viewed in the 
light of countervailing considerations, including the necessity to 
introduce insofar as our contract-bar rules may do so, a greater 
measure of stability of labor relations into our industrial 
communities as a whole to help stabilize in turn our present 
American economy'').
    \92\ See Joseph Weinstein Electric Corp., 152 NLRB 25, 39 (1965) 
(a construction employer's 9(a) recognition of and entering into an 
agreement with a union that does not enjoy majority support is 
unlawful under sec. 8(a)(2) and (1) and 8(b)(1)(A)); Bear Creek 
Construction Co., 135 NLRB 1285, 1286-1287 (1962) (a construction 
employer provided unlawful assistance under sec. 8(a)(2) to a union 
in obtaining membership applications and checkoff authorization 
cards and, therefore, was ordered to cease and desist from 
recognizing the union as its employees' collective-bargaining 
representative and giving effect to the parties' agreement); see 
also General Shoe Corp., 77 NLRB 124, 126 (1948) (``An election can 
serve its true purpose only if the surrounding conditions enable 
employees to register a free and untrammeled choice for or against a 
bargaining representative.'').
---------------------------------------------------------------------------

    While the NPRM indicated that the Board sought to overrule Staunton 
Fuel, the Board's NPRM made no mention whatsoever of altering the 
bedrock principle from Bryan Manufacturing, reiterated in Casale--which 
was itself a representation case involving an election petition--that a 
challenge cannot be made to a union's initial recognition by a 
construction employer after 6 months had elapsed. Indeed, no mention 
was made of section 10(b), or that a modification to the Board's 
limitations period for challenging a union's initial recognition of 
9(a) majority status was in any way being contemplated by the Board. 
Accordingly, under the language and reasoning of the Board's NPRM, and 
in accordance with Casale, even if a construction employer and/or a 
union were unable to present positive evidence of the union's initial 
9(a) recognition, a representation petition challenging the union's 
9(a) recognition that was based on unequivocal written 9(a) recognition 
could not be processed if more than 6 months had elapsed from the 
union's initial 9(a) recognition.
4. The 2020 Final Rule
    On April 1, 2020, following a public comment period, the Board 
promulgated its final rule adopting the proposed language from its NPRM 
but also stating in the preamble to the rule that it was overruling 
Casale ``to the extent that it is inconsistent with the instant rule.'' 
\93\ The Board proceeded by stating that ``we overrule Casale's holding 
that the Board will not entertain a claim that majority status was 
lacking at the time of recognition where a construction-industry 
employer extends 9(a)

[[Page 66902]]

recognition to a union and 6 months elapse without a petition.'' \94\ 
The Board asserted that the DC and Fourth Circuits, and some former 
Board Members, had expressed doubts regarding section 10(b)'s 
applicability to challenges to a construction-industry union's 
purported 9(a) status.\95\ The Board claimed that ``the Casale Board 
failed to recognize that employees and rival unions will likely presume 
that a construction-industry employer and union entered an 8(f) 
collective-bargaining agreement . . . . Thus, it is highly unlikely 
that [employees and rival unions] will file a petition challenging the 
union's status within 6 months of recognition.'' \96\ The Board also 
stated that, ``most significantly, [the Board finds that] Casale's 
requirement that an election petition be filed within 6 months to 
challenge a purported 9(a) recognition in the construction industry 
improperly discounts the importance of protecting employee free choice 
. . . .'' \97\
---------------------------------------------------------------------------

    \93\ 85 FR 18391.
    \94\ Id.
    \95\ Id.
    \96\ Id.
    \97\ Id.
---------------------------------------------------------------------------

    The practical effect of the Board's unanticipated overruling of 
Casale in the final rule--an action not mentioned, much less considered 
by the Board in the NPRM--was to require that a union and employer be 
prepared to prove evidence of the union's initial majority support--
forever. Under the final rule, a challenge could be made to a 
construction employer's initial recognition of a union many years into 
the future at a time when it would be fundamentally unreasonable to 
expect the construction employer or the union to have maintained 
contemporaneous evidence of the union's majority support. Under the 
rule, there is no limit to the amount of time that may have passed 
since the initial recognition, but parties would be required to produce 
proof of the initial majority support in order for the Board to reject 
a challenge to even a longstanding employer-union 9(a) relationship.

D. Pending Litigation Challenging the 2020 Final Rule

    On July 15, 2020, the American Federation of Labor and Congress of 
Industrial Organizations (AFL-CIO) and the Baltimore-DC Metro Building 
and Construction Trades Council sued the NLRB (D.D.C. No. 20-cv-1909) 
(``AFL-CIO II''), alleging that the entirety of the April 2020 Rule was 
invalid because, among other things, it is arbitrary, capricious, an 
abuse of discretion, and in violation of the NLRA.
    On August 11, 2020, the NLRB filed a motion to transfer AFL-CIO II 
to the United States Court of Appeals for the District of Columbia 
Circuit, arguing that the district court lacks subject matter 
jurisdiction. The AFL-CIO opposed the transfer. The NLRB previously 
advanced similar threshold jurisdictional arguments in AFL-CIO v. NLRB 
(``AFL-CIO I'') (D.D.C. Case No. 20-cv-675 (KBJ)), which is currently 
pending decision by the D.C. Circuit (Case No. 20-5223), concerning 
changes to the Board's representation case procedures that the Board 
promulgated on December 18, 2019. On October 23, 2020, the district 
court in AFL-CIO II ordered a temporary stay pending resolution of the 
parties' cross-appeals of AFL-CIO I, where the same jurisdictional 
issue will be decided. On May 14, 2021, the D.C. Circuit held oral 
argument in AFL-CIO I. Once the D.C. Circuit issues its decision, the 
AFL-CIO II parties must file a joint status report within 14 days 
proposing a schedule for further proceedings. That litigation remains 
pending.

E. Rulemaking Petitions Seeking Rescission of the April 1, 2020 Rule

    On November 16, 2021, the AFL-CIO and North America's Building 
Trades Unions (``NABTU'') filed a joint petition for rulemaking (``2021 
petition'') requesting that the Board rescind each of the amendments 
made in the April 1, 2020 final rule. The 2021 petition urged the Board 
to: (1) rescind Sec.  103.20, arguing that the Board violated the 
Administrative Procedure Act in two respects (by presenting erroneous 
data in the NPRM and failing to correct those errors in the final rule, 
and by adopting a final rule that was not a logical outgrowth of the 
proposed rule) and additionally arguing, as a policy matter, that the 
changes to the blocking charge policy were ill-conceived; (2) rescind 
Sec.  103.21, alleging that the Board had violated the Administrative 
Procedure Act by failing to respond to the AFL-CIO's comment that the 
rule violated the Board's duty of neutrality with respect to employees' 
choice concerning union representation; and (3) rescind Sec.  103.22, 
because the NPRM had not proposed overruling Casale and did not advise 
the public that it was contemplating overruling Casale and thus failed 
to provide the public with an opportunity to be heard on such a 
fundamental modification to collective-bargaining relationships in the 
construction industry.
    On April 7, 2022, UNITE HERE International Union (``UNITE HERE'') 
filed a petition (``2022 petition'') for rulemaking specifically 
requesting the Board to rescind Sec.  103.21. The 2022 petition 
expressed its support for the 2021 petition but listed additional 
policy arguments favoring a return to the Board's prior voluntary-
recognition bar doctrine.\98\
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    \98\ The 2021 and 2022 petitions for rulemaking will be part of 
the administrative record for this rulemaking.
---------------------------------------------------------------------------

III. Statutory Authority

    Section 6 of the NLRA, 29 U.S.C. 156, provides that ``[t]he Board 
shall have authority from time to time to make, amend, and rescind, in 
the manner prescribed by subchapter II of chapter 5 of Title 5 [the 
Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations 
as may be necessary to carry out the provisions of this [Act].'' \99\ 
The Supreme Court unanimously held in American Hospital Association v. 
NLRB, 499 U.S. 606, 609-610 (1991), that the Act authorizes the Board 
to adopt both substantive and procedural rules governing representation 
case proceedings. The Board interprets section 6 as authorizing the 
proposed amendments to its existing rules.
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    \99\ Sec. 6 of the Act refers to the Board's authority to 
``rescind'' rules, while sec. 553 of the Administrative Procedure 
Act refers to the ``repeal'' of rules. See also 5 U.S.C. 551(5) (`` 
`[R]ule making' means agency process for formulating, amending, or 
repealing a rule''). For purposes of this NPRM, we treat these terms 
as interchangeable.
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IV. The Proposed Rule Amendments

A. Rescission of the April 1, 2020 Blocking Charge Amendments

    As set forth above, the Board developed the blocking charge policy 
through adjudication more than eight decades ago. And, for the more 
than eight decades that the Board adhered to the policy, the blocking 
charge policy enabled the Board to fulfill one of its core obligations: 
to preserve laboratory conditions for ascertaining employee choice 
during Board-conducted elections. In addition, the policy advanced the 
interests of potential voters by shielding them from voting in an 
atmosphere tainted by coercion. Reviewing courts have approved the 
Board's historical blocking charge policy. See, e.g., Bishop v. NLRB, 
502 F.2d 1024, 1028-1029, 1032 (5th Cir. 1974) (distinguishing 
Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (5th Cir. 1971), 
and Surratt v. NLRB, 463 F.2d 378 (5th Cir. 1972), as involving a 
``high degree of arbitrariness'' in application of the blocking-charge 
policy). No court has ever held the policy invalid, despite occasional 
disagreements between the Board and

[[Page 66903]]

the courts over the application of the policy in particular cases. For 
the reasons that follow, we are inclined to believe, subject to 
comments, that the pre-April 2020 blocking charge policy better 
balances the Board's interests in protecting employee free choice, 
preserving laboratory conditions in Board-conducted elections, and 
resolving questions concerning representation expeditiously.
    Before explaining why we are inclined to believe, subject to 
comments, that the pre-April 2020 blocking charge policy better 
balances the Board's interests than the April 2020 final rule, we note 
that the rulemaking process that the Board followed in adopting the 
April 2020 rule was flawed in its treatment of Board election data. As 
discussed above and as the parties that filed the 2021 rulemaking 
petition also noted, 2021 Petition at 2-12, the NPRM contained flawed 
data that was never corrected in the final rule.
    In adopting the final rule, the Board contended that any errors did 
not matter because the blocking charge policy by definition delays the 
conduct of elections, and its conclusion--that its amendments to the 
blocking charge policy better protect employees' statutory right of 
free choice on questions concerning representation--constituted a 
``policy choice . . . that . . . does not . . . depend on statistical 
analysis.'' 85 FR 18366, 18377. We do not dispute that in rulemaking, 
the Board may be free to make a policy choice that does not primarily 
rely on either statistical data or particular facts about the operation 
of the prior rule.\100\ Nevertheless, we are concerned that the Board's 
failure to correct errors in the data presented in the NPRM might well 
have harmed the rulemaking process.\101\
---------------------------------------------------------------------------

    \100\ While we acknowledge the Supreme Court's teaching that 
relevant data must be examined in the course of rulemaking, Motor 
Vehicle Mfrs. Assn. v. State Farm Mutual Automobile Ins. Co., 463 
U.S. 29, 43 (1983), it remains true that the Agency may make policy 
decisions for which the data does not provide the answer.
    \101\ Cf. American Relay Radio League v. FCC, 524 F.3d 227, 237 
(D.C. Cir. 2008) (``[S]tudies upon which an agency relies in 
promulgating a rule must be made available during the rulemaking in 
order to afford interested persons meaningful notice and an 
opportunity for comment.''); Portland Cement Association v. 
Ruckelshaus, 486 F.2d 375, 392-393 (D.C. Cir. 1973) (relying on 
inaccurate data is a ``critical defect'' in an agency's 
decisionmaking during a rulemaking proceeding).
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    More importantly, turning to the merits of the April 2020 final 
rule, the Board is inclined to believe, subject to comments, that 
returning to the Board's pre-April 2020 blocking charge policy would 
best serve the policies of the Act. Permitting regional directors to 
generally decline to process an election petition at the request of a 
party who has filed a charge alleging conduct that would interfere with 
employee free choice or conduct that is inherently inconsistent with 
the petition (and who has simultaneously filed an adequate offer of 
proof and agreed to promptly make its witnesses available), until the 
merits of the charge can be determined, better protects employee free 
choice than the April 2020 amendments that require regional directors 
to conduct elections in all cases no matter how serious the unfair 
labor practice charges and no matter how powerful the indicia of their 
merit. Accordingly, we propose to amend the wording of 29 CFR 103.20 to 
conform to the wording of that section as it existed prior to the April 
2020 final rule.\102\ In all other respects, the Board's prior 
applicable law regarding the blocking charge policy, which was 
developed through adjudication, would be restored.
---------------------------------------------------------------------------

    \102\ See 29 CFR 103.20 (Dec. 15, 2014) (requiring that a party 
filing a request to block must simultaneously file an adequate offer 
of poof and promptly make its witnesses available, and further 
providing that ``[i]f the regional director determines that the 
party's offer of proof does not describe evidence that, if proven, 
would interfere with employee free choice in an election or would be 
inherently inconsistent with the petition itself, and thus would 
require that the processing of the petition be held in abeyance 
absent special circumstances, the regional director shall continue 
to process the petition and conduct the election where 
appropriate.'').
---------------------------------------------------------------------------

    Although we agree with the April 2020 Board that, under ordinary 
circumstances, the Board should conduct elections expeditiously, there 
can also be no denying--and the April 2020 Board did not deny--that the 
Board has regularly confronted cases involving unlawful conduct that 
either interferes with the ability of employees to make a free choice 
about union representation in an election or is inherently inconsistent 
with the petition itself. The Board is inclined to believe, subject to 
comments, that it would undermine employee rights, and would run 
counter to the Board's duty to conduct elections in circumstances in 
which employees may freely choose whether to be represented by a union, 
if the Board were to require regional directors to conduct, and 
employees to vote in, a coercive atmosphere. But, as the April 2020 
Board acknowledged in adopting the final rule, the 2020 blocking charge 
amendments require the Board to do precisely that. In particular, the 
April 2020 Board acknowledged that the results of the elections must be 
set aside and rerun elections ordered when the Type I charges are found 
to have merit and to have impacted the election. The April 2020 Board 
further acknowledged that the ballots cast in cases involving certain 
types of Type II charges will either not be honored (if the ballots had 
been counted) or will ``never be counted'' (if they were impounded 
because a complaint, which issued within 60 days of the election, is 
found to have merit). Thus, it cannot be denied that under the April 
2020 amendments, regional directors will be required to run--and 
employees, unions, and employers will be required to participate in--
elections conducted under coercive conditions. 85 FR 18370, 18378-
18380. Subject to comments, we are also inclined to believe that 
because the April 2020 final rule requires regional directors to run--
and employees, unions, and employers to participate in--elections that 
will not resolve the question of representation because they were 
conducted under coercive circumstances, the proposed amendments run the 
risk of imposing unnecessary costs on the parties and the Board. 
Subject to comments, we are also inclined to believe that the Board's 
position in the April 2020 rulemaking--that nothing is more important 
under the Act and its policies than having employees vote without delay 
in every case (even though it means they will be required to vote in 
elections under coercive conditions)--cannot be squared with the 
Board's responsibility to provide laboratory conditions for 
ascertaining employee choice during Board-conducted elections. Put 
simply, we are inclined to disagree with the April 2020 Board's 
conclusion that it is inappropriate to delay an initial election to 
shield employees from having to vote under coercive circumstances.
    Subject to comments, we also question the April 2020 Board's 
premise that its amendment requiring elections to be held in all cases 
involving requests to block is necessary to preserve employee free 
choice because the blocking charge policy deprives employees of free 
choice in those cases where petitions are blocked by nonmeritorious 
charges. While we recognize that blocking elections based on 
nonmeritorious charges may result in some delay, our preliminary 
position, subject to comments, is that the benefits of not allowing 
elections to proceed under the clouds of an unfair labor practice far 
outweigh any such delay. We are inclined to believe that the Board's 
blocking charge policy as it existed prior to the effective date of the 
April 2020 final rule best preserved employee free choice in 
representation cases in which petitions are blocked because of 
concurrent unfair labor practice charges. We note that because

[[Page 66904]]

the historical blocking charge policy provided for the regional 
director to resume processing the representation petition to an 
election if a charge were ultimately determined to lack merit, 
employees in those cases would be afforded the opportunity to vote 
whether they wish to be represented, and thus employee free choice was 
preserved. However, unlike the April 2020 rule amendments, the Board's 
historical blocking charge policy also protects employee free choice in 
cases involving meritorious charges by suspending the processing of the 
election petition until the unfair labor practices are remedied. By 
shielding employees from having to vote under coercive conditions, the 
historical blocking charge policy would seem to be more compatible with 
the policies of the Act and the Board's responsibility to provide 
laboratory conditions for ascertaining employee choice during Board-
conducted elections. In short, we are inclined to believe, subject to 
comments, that it is the 80-year-old blocking charge policy, not the 
April 2020 final rule amendments requiring elections in all cases 
involving requests to block, that best protects employee free choice in 
the election process. 84 FR 39945.\103\
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    \103\ Subject to comments, we question the suggestion of the 
April 2020 Board that the Board's historical blocking charge policy 
can prevent employees from ever obtaining an election if they 
continue to desire an election after the merits of the charge are 
determined. 85 FR 18366, 18377. As shown, if the petition was held 
in abeyance because of a Type I charge, the regional director 
resumed processing the petition once the charge was ultimately found 
to lack merit or the unfair labor practice conduct was remedied. 
Casehandling Manual Sections 11732, 11733.1, 11734 (August 2007). 
If, on the other hand, the petition was dismissed because of a Type 
II charge, it was subject to reinstatement if the charge was found 
nonmeritorious. Id. at section 11733.2. And, as the courts had 
recognized, even if the petition was dismissed because of a 
meritorious Type II blocking charge, employees could, if they so 
choose, file a new petition after the unfair labor practice conduct 
that caused the petition to be dismissed is remedied. See Bishop v. 
NLRB, 502 F.2d 1024, 1028-1029 (5th Cir. 1974) (``If the employees' 
dissatisfaction with the certified union should continue even after 
the union has had an opportunity to operate free from the employer's 
unfair labor practices, the employees may at that later date submit 
another decertification petition.''); see also Albertson's Inc. v. 
NLRB, 161 F.3d 1231, 1239 (10th Cir. 1998) (``[A]ny harm to 
employees seeking decertification resulting from the blocking of the 
petition is slight in that employees are free to file a new petition 
so long as it is circulated and signed in an environment free of 
unfair labor practices.''). Moreover, even if the petitioner 
withdrew their petition, another employee was free to file a new 
petition. To be sure, as the April 2020 Board noted, 85 FR 18377, a 
blocked decertification petition may never proceed to an election if 
the incumbent union disclaims interest in representing the unit. 
However, there plainly is no need to hold a decertification election 
to afford employees the opportunity to oust the incumbent union if 
that union has voluntarily withdrawn from the scene.
    We also question the final rule's complaint, 85 FR 18367, 18379, 
that the pre-April 2020 blocking charge policy renders illusory the 
possibility of employer-filed (``RM'') election petitions. Under 
that policy if an RM petition is blocked, the regional director 
resumes processing it once the unfair labor practice charges are 
remedied or the charges are determined to lack merit. Moreover, as 
noted, then-Member McFerran's analysis of the relevant data 
indicated that the overwhelming majority of RM petitions are never 
blocked, and that even in the minority of instances when RM 
petitions are blocked, most of these petitions are blocked by 
meritorious charges.
---------------------------------------------------------------------------

    In proposing to return to the Board's historical blocking charge 
policy, we further note that the April 2020 Board pointed to nothing 
that had changed in the representation case arena during the eight 
decades that the blocking charge policy had been in existence that 
justified making their sea change in the law. Prior to the adoption of 
the April 2020 final rule, Congress had not amended the Act in such a 
way as to call the blocking charge policy into question. No court had 
invalidated the policy. To the contrary, the courts had recognized that 
the salutary reasons for the blocking charge policy ``do not long elude 
comprehension,'' and that the policy had ``long-since [been] 
legitimized by experience.'' Bishop v. NLRB, 502 F.2d 1024, 1028, 1032 
(5th Cir. 1974).\104\ And, significantly, the Agency's regional 
directors--the officials who are charged with administering the policy 
in the first instance, and whose opinions were explicitly sought and 
received by the Board--had publicly endorsed the policy.\105\
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    \104\ Accord Blanco v. NLRB, 641 F.Supp. 415, 417-418, 419 
(D.D.C. 1986) (rejecting claim that sec. 9 imposes on the Board a 
mandatory duty to proceed to an election whenever a petition is 
filed notwithstanding the pendency of unfair labor practice charges 
alleging conduct that would interfere with employee free choice in 
an election, and holding that the use of the blocking charge rule 
was ``in accord with the Board's policy to preserve the `laboratory 
conditions' necessary to permit employees to cast their ballots 
freely and without restraint or coercion.''); see also Remington 
Lodging & Hospitality, LLC v. Ahearn, 749 F.Supp.2d 951, 960-961 (D. 
Alaska 2010) (``[W]here a petition to decertify the union is related 
to the ULP charges, the `blocking charge rule' prioritizes the 
agency's consideration of the ULP charges to ensure that any 
decertification proceedings are handled in an uncoerced 
environment.''). As the Fifth Circuit explained in Bishop, 502 F.2d 
at 1028-1029 (citations omitted), ``it would be particularly 
anomalous, and disruptive of industrial peace, to allow the 
employer's [unfair labor practices] to dissipate the union's 
strength, and then to require a new election which `would not be 
likely to demonstrate the employees' true, undistorted desires,' 
since employee disaffection with the union in such cases is in all 
likelihood prompted by [the situation resulting from the unfair 
labor practices].
    ``If the employer has in fact committed unfair labor practices 
and has thereby succeeded in undermining union sentiment, it would 
surely controvert the spirit of the Act to allow the employer to 
profit by his own wrongdoing. In the absence of the `blocking 
charge' rule, many of the NLRB's sanctions against employers who are 
guilty of misconduct would lose all meaning. Nothing would be more 
pitiful than a bargaining order where there is no longer a union 
with which to bargain.
    ``Nor is the situation necessarily different where the 
decertification petition is submitted by employees instead of the 
employer or a rival union. Where a majority of the employees in a 
unit genuinely desire to rid themselves of the certified union, this 
desire may well be the result of the employer's unfair labor 
practices. In such a case, the employer's conduct may have so 
affected employee attitudes as to make a fair election impossible.
    ``If the employees' dissatisfaction with the certified union 
should continue even after the union has had an opportunity to 
operate free from the employer's unfair labor practices, the 
employees may at that later date submit another decertification 
petition.''
    \105\ See April 13, 2018 Regional Director Committee's Response 
and Comments to the Board's Request for Information on the 
Representation-Case Procedures, at 1 (reporting that directors ``do 
not see a need to change'' blocking charge Sec.  103.20).
---------------------------------------------------------------------------

    Subject to comments, we also question the reasons offered by the 
Board in adopting the April 2020 amendments and eliminating the 
historical blocking charge policy.
    First, the April 2020 Board repeatedly emphasized the obvious: that 
the blocking charge policy causes delays in conducting elections. From 
this, the Board argued that the blocking charge policy impedes employee 
free choice. 85 FR 18366, 18367, 18372-18373, 18375-18380, 18393. 
However, as then-Member McFerran pointed out in her dissent to the 
proposed amendments, the Board's conclusion does not necessarily follow 
from its premise. 84 FR 39943. To the contrary, we are inclined to 
believe that the blocking charge policy better protects employee free 
choice notwithstanding the delay that the policy necessarily entails. 
As the Board has previously observed, ``it is immaterial that elections 
may be delayed or prevented by blocking charges, because when charges 
have merit, elections should be [delayed or] prevented.'' Levitz, 333 
NLRB at 728 fn. 57 (emphasis in original). We thus are inclined to 
agree with the observation of the December 2014 Board, when it codified 
the decades-old blocking charge policy, that ``[i]t advances no policy 
of the Act for the agency to conduct an election unless employees can 
vote without unlawful interference.'' 79 FR 74429. If the circumstances 
surrounding an election interfere with employee free choice, then, 
contrary to the April 2020 final rule, it does not seem ``efficient'' 
to permit employees to cast ballots ``speedily'' because the ballots 
cast in such an election cannot be deemed to ``accurately'' reflect 
employees' true, undistorted desires. 85 FR 18367,

[[Page 66905]]

18380, 18393. That is why, as the April 2020 Board acknowledged, 
elections conducted under coercive circumstances under its amendments 
will not actually resolve the question of representation.\106\
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    \106\ The April 2020 Board made the claim that employees would 
be less ``frustrate[d]'' or ``confuse[d]'' under its amendments, 85 
FR 18380, which provide that, although the ballots will be promptly 
opened and counted in the vast majority of cases, the results of the 
election will nevertheless not be certified until there has been a 
final disposition of the charge and a determination of its effects 
on the petition by the Board. 85 FR 18370. We reject this 
speculative proposition. We are inclined to believe, subject to 
comments, that opening and counting ballots submitted under coercive 
circumstances, yet refusing to certify the results, will, at best, 
confuse employees and, at worst, actively mislead them by conveying 
a materially false impression of union support. Moreover, it takes 
the same amount of time to determine the merits of the charge, 
whether that determination is made before an election is conducted 
(as under the Board's historical blocking charge policy) or whether 
that determination is made after the election (as is the case under 
the April 2020 amendments). In short, just as was the case under the 
Board's historical blocking charge policy, the question of 
representation cannot be resolved under the April 2020 final rule 
until the merits of the charge have been determined. In any event, 
the final rule also did not address the frustration that might well 
be felt by employees who, under the April 2020 final rule, will be 
required to vote under coercive circumstances.
---------------------------------------------------------------------------

    Second, the Board complained that there is a potential for 
incumbent unions to abuse the blocking charge policy by deliberately 
filing nonmeritorious unfair labor practice charges in the hopes of 
delaying decertification elections. 85 FR 18367, 18376, 18377, 18379-
18380, 18393. But, as then-Member McFerran pointed out in her dissent 
to the proposed rule, the prior Board majority made no effort to 
determine how often decertification petitions are blocked by 
meritorious charges, as compared to nonmeritorious charges, or how much 
delay is attributable to nonmeritorious charges (which still may well 
have been filed in good faith, and not for purposes of obstruction). 84 
FR 39943. Nor did the final rule. In short, there has been no showing 
that it was the norm for unions to file frivolous blocking charges to 
postpone elections in RD or RM cases. And, as noted, the NPRM dissent's 
analysis of the pre-Covid data would seem to undercut the April 2020 
Board's unsupported concern, as it appears to show that an overwhelming 
majority of the decertification petitions and employer filed RM 
petitions are never blocked, and that even in the minority of instances 
when decertification petitions and RM petitions are blocked, most of 
these petitions are blocked by meritorious charges.\107\ Moreover, 
subject to comments, we are inclined to believe that the regulatory 
provisions adopted in 2014--requiring the party that seeks to block the 
election to (1) simultaneously file an offer of proof providing the 
names of its witnesses who will testify in support of the charge and a 
summary of each witness' anticipated testimony, and (2) promptly make 
the witnesses available to the regional director--constitute a 
disincentive to file frivolous charges and provide powerful tools to 
regional directors to promptly dispose of any frivolous charges that 
are filed. See Associated Builders and Contractors of Texas, Inc. v. 
NLRB, 826 F.3d 215, 228 (5th Cir. 2016) (citing amended Sec.  103.20's 
offer of proof requirement and concluding that the Board ``considered 
the delays caused by blocking charges, and modified current policy in 
accordance with those considerations.'').
---------------------------------------------------------------------------

    \107\ Moreover, the NPRM dissent's analysis seemed to show that 
the merit rates for blocking charges filed in the RD and RM 
contexts--66 percent and 89 percent respectively--were substantially 
higher than the merit rate for all unfair labor practice charges, 
which in FYs 2016 and 2017 merely ranged from 37.1% to 38.6%. 84 FR 
39944 & fn. 64, 39945 fn. 69 (and materials cited therein). 
Ultimately, however, just as the April 2020 Board decided to 
substantially eliminate the blocking charge policy based on a policy 
choice that does not depend on statistical analysis, we propose to 
return to the judicially approved, historical blocking charge policy 
based on a policy choice that the historical blocking charge policy 
better enables the Board to fulfill its function in election 
proceedings of providing a laboratory in which an experiment may be 
conducted, under conditions as nearly ideal as possible, to 
determine the uninhibited desires of employees.
---------------------------------------------------------------------------

    Further, compared to the countless examples of cases where 
employers engage in coercive behavior--such as instigating 
decertification petitions, committing unfair labor practices that 
inevitably cause disaffection from incumbent unions, and engaging in 
unfair labor practices after a decertification petition is filed--in an 
effort to oust incumbent unions, or engage in coercive behavior to sway 
employee votes in the context of initial organizing campaigns, the 
final rule cited the same few isolated cases that the NPRM had cited to 
support the April 2020 Board's claim of judicial concern about the 
blocking charge policy's effect on employee free choice. 85 FR 
18367,18376; 84 FR 39931-39932. Subject to comments, we are inclined to 
believe that those cases do not constitute persuasive authority for 
eliminating the blocking charge policy, for the same reasons the 
dissenting Board member articulated in her dissent to the NPRM.\108\
---------------------------------------------------------------------------

    \108\ As mentioned above, although the Board's application of 
the blocking charge policy in a particular case had occasionally 
been criticized, no court had ever denied enforcement to a Board 
decision based upon a generalized rejection of that policy. 84 FR 
39943.
---------------------------------------------------------------------------

    Third, the April 2020 Board found fault with the blocking charge 
policy because it permits a mere discretionary ``administrative 
determination'' as to the merits of unfair labor practice charges to 
delay employees' ability to vote whether they wish to obtain, or 
retain, union representation. 85 FR 18367, 18377, 18393. Subject to 
comments, we are inclined to believe that that does not constitute a 
persuasive reason to retain the April 2020 amendments. As the dissent 
to the NPRM pointed out, the Board ignored that regional directors and 
the General Counsel make all sorts of administrative determinations 
that impact the ability of employees to obtain an election or to retain 
union representation. 84 FR 39944. For example, employees, unions, and 
employers are denied an election if the regional director makes an 
administrative determination that the petitioner lacks an adequate 
showing of interest. See 79 FR 74391, 74421 (the adequacy of the 
showing of interest is a matter for administrative determination and is 
nonlitigable). Regional directors may also deny employer and union 
requests for second elections based on an administrative determination 
that no misconduct occurred or that any misconduct that occurred did 
not interfere with employee free choice. See 79 FR 74412, 74416 
(parties have no entitlement to a post-election hearing on election 
objections or determinative challenges, and regional directors have 
discretion to dispose of such matters administratively).\109\ Indeed, 
the Board's skepticism toward regional director administrative 
determinations in this context is in considerable tension with 
Congress' decision to authorize regional directors to administratively 
decide when elections should be conducted in

[[Page 66906]]

the first place and when the results of elections should be certified 
in section 3(b) of the Act. See also 79 FR 74332-74334 (observing that 
Congress expressed confidence in the regional directors' abilities when 
it enacted section 3(b)).
---------------------------------------------------------------------------

    \109\ The D.C. Circuit's decision in Allied Mechanical Services, 
Inc. v. NLRB, 668 F.3d 758, 761, 771, 773 (D.C. Cir. 2012) provides 
further support for the notion that the April 2020 Board's distrust 
of administrative determinations is not well founded. There, the 
court rejected claims that an administrative settlement of a Gissel 
complaint--that is, a settlement agreement approved by a regional 
director requiring the company to bargain with the union as the 
unit's exclusive representative--was insufficient to demonstrate 
that a union had sec. 9(a) status. Id. at 770-771. In doing so, the 
court relied on a longstanding presumption that the actions of 
administrative officials are fair and regular. Id. (citing cases). 
The court reasoned, moreover, that it would be ``unlikely--and even 
illogical--to suppose that the Board's General Counsel would have 
asserted that a majority of [the Company's] unit employees had 
designated the Union as their representative through authorization 
cards, and that a Gissel bargaining order was necessary to remedy 
the Company's unfair labor practices, without first investigating 
the Union's claim of majority status and satisfying itself that a 
Gissel bargaining order was appropriate.'' Id. at 771.
---------------------------------------------------------------------------

    Fourth, the April 2020 Board complained that employees who support 
decertification petitions are adversely affected by blocking charges 
because delay robs the petition effort of momentum and thereby 
threatens employee free choice. 85 FR 18367, 18393. We are inclined to 
believe, subject to comments, that this justification for the April 
2020 amendments misapprehends the core statutory concerns underlying 
the blocking charge policy. As then-Member McFerran noted in her 
dissent to the NPRM, if a party has committed unremedied unfair labor 
practices that interfere with employee free choice, then elections in 
those contexts will not accurately reflect the employees' unimpeded 
desires and therefore should not be conducted. 84 FR 39944. Indeed, the 
momentum that the final rule seeks to preserve may be entirely 
illegitimate, as in cases where the employer unlawfully initiates the 
decertification petition, or the momentum may be infected by unlawful 
conduct, as in cases where after a decertification petition is filed, 
the employer promises to reward employees who vote against continued 
representation or threatens adverse consequences for employees who 
continue to support the incumbent union.\110\
---------------------------------------------------------------------------

    \110\ Subject to comments, we question whether the Board was 
justified in adopting its amendments because they allow the 
balloting to occur when the parties' respective arguments are 
``fresh in the mind[s] of unit employees.'' 84 FR 39937-39938, 85 FR 
18393. Under the Board's historical blocking charge policy, 
balloting also occurred when the parties' respective arguments were 
``fresh in the minds'' of unit employees, because parties had an 
opportunity to campaign after the regional director resumed 
processing a petition (once either the unfair labor practice conduct 
was remedied or the director determined that the charge lacked 
merit). Subject to comments, we are inclined to believe that all the 
April 2020 final rule ensures is that balloting will occur when the 
unremedied coercive conduct is fresh in the minds of unit employees, 
undermining the Act's policy of protecting employee free choice in 
the election process and contravening the Board's duty to conduct 
fair elections.
    We also question whether the Board was justified in adopting the 
April 2020 amendments because they eliminate the ability of either 
party to control the pre-election narrative as to whether the Board 
has found probable cause that the employer has committed unfair 
labor practices. 84 FR 39938, 85 FR 18393. As then-Member McFerran 
pointed out in her dissent to the NPRM, under the Board's historical 
blocking charge policy, neither the Board nor the regional director 
notified unit employees that the petition was being held in abeyance 
because there was ``probable cause'' to believe that a party had 
committed unfair labor practices. 84 FR 39946 fn. 70. To be sure, 
under the Board's historical blocking charge policy, a party was 
free to tell unit employees that the regional director had blocked 
action on the petition because a party stood accused of committing 
unfair labor practices, and the charged party was free to tell the 
unit employees that it was innocent of any wrongdoing and that the 
charging party was responsible for the delaying the employees' 
opportunity to vote. But, under the April 2020 final rule, parties 
are similarly free to inform unit employees, in advance of the 
election in the vast majority of cases, that although employees will 
be permitted to vote, the results of the election will not be 
certified until a final determination is made as to the merits of 
the unfair labor practice charge(s) alleging that a party has 
engaged in conduct that interferes with employee free choice (or 
that the regional director will impound the ballots cast in the 
election for at least 60 days--rather than immediately opening and 
counting the ballots following the election--because a party stands 
accused of committing unfair labor practices concerning the 
legitimacy of the petition itself). The charged party, meanwhile, 
will be free to inform unit employees that it is innocent of any 
wrongdoing and that the charging party is responsible for the delay 
in the certification of the results or the opening and counting the 
ballots.
---------------------------------------------------------------------------

    The April 2020 Board also criticized the blocking charge policy as 
creating ``an anomalous situation'' whereby conduct (if alleged in 
election objections) that cannot be found to interfere with employee 
free choice because it occurred pre-petition, see Ideal Electric, 134 
NLRB 1275 (1961), can nevertheless be the basis for delaying or denying 
an election. 85 FR 18367, 18393. We question whether this constitutes a 
persuasive reason not to return to the blocking charge policy as it 
existed prior to the effective date of the April 2020 amendments. Ideal 
Electric does not preclude the Board from considering pre-petition 
misconduct as a basis for setting aside an election. As the Board has 
explained, ``Ideal Electric notwithstanding, the Board will consider 
prepetition conduct that is sufficiently serious to have affected the 
results of the election.'' Harborside Healthcare, Inc., 343 NLRB 906, 
912 fn. 21 (2004). Accord Madison Square Garden CT., LLC, 350 NLRB 117, 
122 (2007). Further, as the April 2020 Board implicitly conceded, under 
its final rule, it is equally the case that ballots will ``never be 
counted'' in some cases based on serious pre-petition misconduct, such 
as where the employer instigates the petition and where a complaint 
issues within 60 days of the election. 85 FR 18378, 18380 (even if the 
ballots are counted under the April 2020 final rule because the 
complaint on the Type II charge issues more than 60 days after the 
election, the ballots will be thrown out if the Board ultimately 
decides that the charge has merit). Moreover, under the pre-April 2020 
blocking charge policy, regional directors had discretion to reject 
blocking requests and proceed straight to an election when they 
concluded that, under the circumstances, employees would be able to 
exercise free choice notwithstanding a pending unfair labor practice 
charge (because, for example, the charge merely alleged minor and 
isolated pre-petition unfair labor practice conduct).\111\
---------------------------------------------------------------------------

    \111\ See Casehandling Manual Section 11731.2 (January 2017) 
(``There may be situations where, in the presence of a request to 
block (Secs. 11731.1(a)), the regional director is of the opinion 
that the employees could under the circumstances, exercise their 
free choice in an election and that the R case should proceed 
notwithstanding the existence of a concurrent Type I or Type II 
unfair labor practice case. In such circumstances, the regional 
director should deny the request to block.'').
---------------------------------------------------------------------------

    The April 2020 Board also justified its amendments to the blocking 
charge policy by claiming that regional directors had not been applying 
the blocking charge policy consistently. 85 FR 18367, 18379, 18393. 
However, after reviewing the final rule, we question whether that 
justification is persuasive. The final rule did not offer any specific 
evidence demonstrating any significant differences in how regions were 
actually applying the blocking charge policy as it existed at the time. 
Moreover, because the pre-April 2020 blocking charge policy entitled 
parties to file requests for Board review of regional director 
decisions to block elections based on either Type I or Type II charges, 
we believe that the Board had the ability to correct any erroneous 
blocking determinations made by regional directors. See 29 CFR 102.71 
(2011); Casehandling Manual Sections 11730.7, 11733.2(b) (January 
2017). Accordingly, we are inclined to believe that a return to the 
blocking charge policy as it existed prior to the effective date of the 
amendments would not create a widespread problem where petitions that 
would normally be blocked in some regions would normally be processed 
to election in other regions.
    The April 2020 Board also faulted the blocking charge policy 
because a possible result of delaying elections is that employees who 
were in the workforce when the petition was filed might not be in the 
workforce when the election is ultimately held following disposition of 
the blocking charge, thereby disenfranchising those employees. 85 FR 
18367, 18378, 18393. Subject to comments, we question whether this 
justification for eliminating the historical blocking charge policy is 
persuasive. Unless the Board were to conduct elections the day the 
election petition is filed, the possibility of employee turnover is 
unavoidable. Indeed, even in the absence of any unfair labor practice 
charges being filed

[[Page 66907]]

prior to the election, those eligible to vote are not those employed in 
the unit at the time the petition is filed. Rather, the employees who 
are eligible to vote in the election are those employees who were 
employed during the payroll period for eligibility and who remain 
employed as of the election. In directed election cases, this means 
that only employees employed in the unit during the payroll period 
immediately preceding the date the decision and direction issues--and 
who remain employed as of the election--are eligible. Casehandling 
Manual Section 11312.1 (August 2007). In the stipulated election 
context, the payroll period for eligibility is normally the last 
payroll period ending before the regional director's approval of the 
agreement. Casehandling Manual Sections 11086.3, 11312.1 (August 2007).
    Subject to comments, we are inclined to believe that it serves no 
valid purpose to conduct elections in which employees cannot exercise 
free choice, even though delaying the election until employees can vote 
in a noncoercive atmosphere might mean that some employees who were 
present at the time the petition was filed are no longer employed at 
the time a free and fair election is held. As for the subset of cases 
where the charges are nonmeritorious, we question whether it is 
``unjust'' to bar employees from voting who were employed at the time 
of the petition filing, but who are no longer employed when the 
regional director resumes processing the petition. As noted, the same 
rule applies in cases where no unfair labor practice charges are ever 
filed. Thus, employees who were employed as of the filing of the 
petition, but who are no longer employed as of the time of the 
election, are not eligible to vote. Certainly, there is nothing in the 
blocking charge policy that compels any employee to leave their place 
of employment during the period when the petition is held in abeyance 
pending a determination of the merits of the charge. The April 2020 
Board does not explain why employees who are no longer in the workforce 
should be given a say in determining whether current employees should 
be represented for purposes of collective bargaining with their 
employer.\112\
---------------------------------------------------------------------------

    \112\ Subject to comments, we are also inclined to believe that 
the April 2020 Board's view--that it should prioritize speedy 
elections over employee free choice in order to maximize the 
likelihood that those employed at the time of the petition filing 
will be able to vote in an election--is undermined by the same 
Board's adoption of the 2019 Representation-Case Procedures Rule 
that delayed the period of time between the filing of the petition 
and the holding of the election (thereby potentially 
disenfranchising those employed when the petition was filed) in 
cases where there have been no unfair labor practice charges of any 
kind filed, let alone those alleging conduct that would interfere 
with employee free choice. See Representation-Case Procedures, 84 FR 
69524, 69524-69525, 69560-69563, 69566-69569, 69572-69579, 69580-
69585 (Dec. 18, 2019) (noting that the Board's December 2019 rule 
delays the period between the filing of the petition and the 
election in directed election cases by, for example, delaying the 
opening of the pre-election hearing by two weeks--beyond any Board's 
processing time in more than two decades--while simultaneously 
making such hearings easier to postpone, entitling parties to file 
briefs in all cases a week after the close of the pre-election 
hearing (with additional extensions of up to 2 weeks) even when the 
regional director concludes that briefing would be unhelpful, 
entitling parties to litigate matters that are not relevant to the 
statutory purpose of the pre-election hearing and requiring regional 
directors to decide matters that need not be decided to determine 
whether a question of representation exists that should be resolved 
by an election; and instituting a 20-business day waiting period 
between the direction of election and the election itself to allow 
the Board to rule on interlocutory appeals that are rarely filed 
prior to the election, almost never result in reversals before the 
election, and in any event could be mooted by election results).
---------------------------------------------------------------------------

    We additionally note that the April 2020 amendments do not entirely 
eliminate the risk that employees who end up voting in a valid election 
(i.e., an election whose results are certified) will not be those who 
were employed at the time of the petition filing. To repeat, the April 
2020 final rule recognizes that the Board should set aside the initial 
election and, in certain circumstances, conduct a rerun election in 
cases where the charges are meritorious. And just as was the case prior 
to the April 2020 amendments, the eligibility period for rerun 
elections after that final rule is the payroll period preceding the 
date of issuance of the notice of rerun election, not the payroll 
period preceding the date of the original decision and direction of 
election (or approval of the stipulated election agreement), and 
certainly not the date of the petition filing. See Casehandling Manual 
Sections 11436, 11452.2 (August 2007); Casehandling Manual Sections 
11436, 11452.2 (September 2020). Some risk of disenfranchisement is 
unavoidable in this context, but the risk of disenfranchisement caused 
by holding an election under nonlaboratory conditions may well outweigh 
that risk under the 2020 final rule.
    The final rule also appeared to suggest that the blocking charge 
policy impeded settlement and that the policy should therefore be 
eliminated to promote settlement of blocking charges. 85 FR 18380. We 
confess that we are not entirely certain that we understand the Board's 
cryptic statements in this regard. To the extent that the April 2020 
Board adopted the amendments because it believed they would promote 
settlement (by enabling the parties to know the results of the election 
during their settlement discussions), we question whether that belief 
is a reason to refrain from restoring the Board's historical blocking 
charge policy. The blocking charge policy advances core statutory 
interests--promoting employee free choice regarding whether to be 
represented by a labor organization for purposes of collective 
bargaining. We are inclined to believe that, even assuming for purposes 
of argument that the April 2020 final rule promotes settlement of 
charges, the worthy administrative goal of promoting settlement of 
unfair labor practice charges should not trump the fundamental 
statutory policy of protecting the right of employees to freely choose 
whether to be represented for purposes of collective bargaining by 
labor organizations.
    In any event, we note that the April 2020 Board did not explain why 
parties would in fact be more likely to settle a charge under the April 
2020 amendments (which provide for the holding of an election in all 
cases) than they would be to settle if the same charge were instead 
holding up an election and preventing employees from voting (under the 
pre-April 2020 blocking charge policy). And we question whether that is 
the case. Indeed, we suspect that the April 2020 Board thought that 
settled charges should not be deemed meritorious in part because it 
believed that at least some employers thought that it was worth 
settling blocking charges under the historical blocking charge regime 
that they otherwise would not have settled just so that their employees 
could vote ``sooner'' to possibly rid themselves of their 
representative in a decertification election. However, as noted, under 
the April 2020 amendments, employees will be permitted to vote even if 
the employer does not settle a pending charge against it before the 
election. Nor is it clear why the April 2020 final rule would encourage 
a union (that is seeking to delay its ouster) to settle its unfair 
labor practice charge after the election. As noted, under the April 
2020 amendments, the certification of results is withheld until there 
is final disposition of the charge and its impact on the election by 
the Board. 85 FR 18370, 18377, 18399. In other words, under the April 
2020 final rule, the outcome of the representation case still must 
await the outcome of the unfair labor practice case (even though an 
election has been held), the same result that obtained under the 
Board's historical blocking charge policy. And it

[[Page 66908]]

takes the same amount of time to determine the merits of the charge 
whether that determination is made before an election is conducted (as 
under the Board's historical blocking charge policy) or whether that 
determination is made after the election (as is the case under the 
April 2020 amendments).
    We also question the April 2020 Board's apparent view that once the 
results of the election are known, the unfair-labor-practice-charge-
settlement discussions are simplified because the parties' strategic 
considerations related to the election are removed from consideration. 
85 FR 18380. Thus, although under the April 2020 amendments, an 
election will be held in all cases, it seems that parties will still 
have to consider the representation case as part of their settlement 
negotiations regarding the unfair labor practice charge(s). Because, as 
the April 2020 Board noted (85 FR 18377), a ``settled charge'' cannot 
be deemed meritorious unless it has been admitted by the charged party, 
a settled charge cannot result in a rerun election (or dismissal of the 
petition) unless the charged party agrees to a rerun election as part 
of the settlement agreement or admits that it violated the Act as part 
of the settlement. Thus, the party seeking to set aside the election 
results will need to address the representation case as part of its 
settlement discussions regarding the unfair labor practice charge(s) it 
filed. (In other words, the charging party will want the charged party 
as part of the settlement to agree to a rerun election or to admit that 
it violated the Act.) Indeed, knowledge of the provisional election 
outcome may perversely incentivize cases not to settle where a party 
deems that vote tally so valuable to its interests that it makes it 
efficient to litigate a long-shot legal theory in the unfair labor 
practice case.
    Finally, the final rule asserted that there is no reason to delay 
elections when charges allege conduct that would interfere with 
employee free choice because the Board can always conduct a rerun 
election if the charge is ultimately found meritorious (or issue an 
affirmative bargaining order in cases involving the limited subset of 
Type II charges). 85 FR 18378, 18380. Subject to comments, we are 
inclined to disagree. Indeed, we are inclined to believe that, by 
requiring the Board to conduct elections under coercive circumstances, 
the April 2020 amendments contravene the Board's responsibility to 
conduct free and fair elections and undermines the Act's policy of 
protecting employee free choice in the election process. We also are 
inclined to believe, subject to comments, that by forcing employees to 
go to elections that will not count, the April 2020 final rule 
additionally threatens to create a sense among the employees that 
attempting to exercise their section 7 rights is futile, while risking 
imposing unnecessary costs on the parties and the Board. Moreover, by 
requiring the Board to conduct elections that will have to be rerun, 
the April 2020 final rule would seem to threaten industrial peace.
    Subject to comments, we are inclined to believe that the April 2020 
amendments do not put the unit employees in the position that most 
closely approximates the position they would have been in had no party 
committed unfair labor practices interfering with employee free choice. 
Had no party committed unfair labor practices, employees would not be 
voting in an atmosphere of coercion. But employees seemingly have to 
vote in an atmosphere of coercion under the April 2020 amendments, 
because the April 2020 final rule requires regional directors to 
conduct elections in all cases where there are concurrent unfair labor 
practice charges and further requires the opening and counting of the 
ballots in the vast majority of such cases. Accordingly, when a rerun 
election is conducted after the charged party takes all the action 
required by the Board order or settlement agreement, the union will 
have to convince each employee who voted against it under coercive 
conditions to switch their vote, something the union normally would not 
have had to do under the blocking charge policy because the regional 
director would not have held an election until the unfair labor 
practice conduct was remedied. And, as the Board previously concluded 
in its 2014 rule, 79 FR 74418-74419, there is a substantial risk that 
the tainted election will compound the effects of the unfair labor 
practices, because employees who voted against union representation 
under the influence of the employer's coercion are unlikely to change 
their votes in the rerun election. See NLRB v. Savair Mfg. Co., 414 
U.S. 270, 277-78 (1973). The union will also have to convince employees 
that it is worth voting for the union--and to risk incurring the wrath 
of their employer--even though employees will know that the union 
already lost the earlier election, something the union normally would 
not have had to do under the blocking charge policy because the 
regional director would not have held an election until the unfair 
labor practice was remedied.\113\ It certainly cannot be counted as a 
statutory success if a union chooses not to seek a rerun election after 
losing an election conducted under coercive conditions that interfered 
with employee free choice. Thus, we are inclined to believe, subject to 
comments, that it is the historical blocking charge policy, rather than 
the April 2020 amendments, that puts the unit employees in a position 
that more closely approximates what would have happened had no party 
committed unfair labor practices and best protects employee free 
choice.
---------------------------------------------------------------------------

    \113\ We note that the April 2020 final rule implicitly conceded 
the validity of these concerns in two primary respects. First, the 
rule acknowledged that the harm employees will suffer by voting in 
an election that will later be set aside can be addressed ``in some 
cases'' by impounding the ballots. 85 FR 18378, 18380. Second, the 
rule apparently relied on a premise that the immediate opening and 
counting of the ballots in the vast majority of cases provides a 
disincentive for unions to file charges seeking to block the 
election because tallying the ballots reveals to employees that the 
union is acting against their wishes. 85 FR 18379-18390. Thus, under 
this premise, if the union has lost the election that was conducted 
despite the pendency of charges alleging coercive conduct, that 
circumstance will (or is at least very likely to) have a meaningful 
effect on employees' perception of the union.
---------------------------------------------------------------------------

    We are also inclined to believe that the April 2020 final rule 
creates perverse incentives for employers to commit unfair labor 
practices. By requiring the Board to conduct elections in most cases 
where Type I or Type II unfair labor practice conduct has occurred, the 
final rule creates a perverse incentive for unscrupulous employers to 
commit unfair labor practices because the predictable results will be: 
(1) to force unions to expend resources in connection with elections 
that will not reflect the uninhibited desires of the employees; and (2) 
to create a sense among employees that seeking to exercise their 
section 7 rights is futile.\114\ This possibility may well induce 
unions to forego the Board's electoral machinery in favor of 
recognitional picketing and other forms of economic pressure, thereby 
exacerbating industrial strife and

[[Page 66909]]

contravening the statutory policy favoring ``eliminat[ing] the causes 
of certain substantial obstructions to the free flow of commerce.'' 29 
U.S.C. 151.
---------------------------------------------------------------------------

    \114\ Indeed, it seems difficult, at least, to square the April 
2020 final rule's requiring elections in all cases no matter the 
severity of the employer's unfair labor practices with the Supreme 
Court's approval in Gissel of the Board's practice of withholding an 
election and issuing a bargaining order when the employer has 
committed serious unfair labor practice conduct disruptive of the 
election machinery and where the Board concludes that ``the 
possibility of erasing the effects of [the employer's] past [unfair 
labor] practices and of ensuring a fair election . . . by the use of 
traditional remedies, though present, is slight and that employee 
sentiment once expressed through [union authorization] cards would, 
on balance, be better protected by a bargaining order . . . .'' NLRB 
v. Gissel Packing Co., 395 U.S. 575, 591-592, 610-611, 614-615 
(1969).
---------------------------------------------------------------------------

    In sum, we are inclined to believe, subject to comments, that the 
Board's historical blocking charge policy better protects employee free 
choice than the April 2020 amendments. Accordingly, we propose to 
permit regional directors once again to generally decline to process 
election petitions at the request of a party who has filed an unfair 
labor charge alleging conduct that would interfere with employee free 
choice in an election or that is inherently inconsistent with the 
petition itself and which is supported by an offer of proof listing the 
names of the witnesses who will testify in support of the charge and a 
summary of each witness's anticipated testimony, until the merits of 
the charge can be determined.

B. Rescission of Rule Providing for Processing of Election Petitions 
Following Voluntary Recognition; Voluntary-Recognition Bar to 
Processing of Election Petitions

    The Board, subject to comments on all aspects of the proposed rule, 
proposes to rescind the current Sec.  103.21 of the Board's Rules and 
Regulations, providing for the processing of election petitions 
following voluntary recognition, and to replace it with a new rule that 
codifies the traditional voluntary-recognition bar as refined in Lamons 
Gasket Co., 357 NLRB 739 (2011), which the Board overruled in adopting 
Sec.  103.21.\115\
---------------------------------------------------------------------------

    \115\ Concerning the appropriateness of bargaining units in this 
context, in Central General Hospital, 223 NLRB 110, 111 fn. 10 
(1976), the Board stated: ``As in the contract bar area, e.g., 
Airborne Freight Corporation, 142 NLRB 873, 874-875 (1963), a 
recognition agreement constitutes a bar only if the unit involved 
meets the requisite standard of appropriateness.'' Thus, under the 
proposed rule, the recognition bar applies where the recognized unit 
is an appropriate one. However, as Central General Hospital 
suggests, this requirement incorporates the long-standing principle 
that the appropriateness of the unit depends on the context, and the 
question of whether a voluntarily recognized unit is appropriate may 
turn on considerations deemed relevant in this particular setting, 
or in an analogous context, such as contract or successor bar, 
rather than those that obtain in the case of an initial 
determination made by the Board following a representation petition. 
Id. at 111-112 (``[T]he resulting unit is sufficiently appropriate 
for the recognition agreement to operate as a bar'') (emphasis 
added). See also NLRB v. Cardox Div. of Chemetron Corp., 699 F.2d 
148, 156 (3d Cir. 1983) (``[I]n a voluntary recognition case, 
section 9(b) requires only that the Board make a determination that 
the unit agreed upon by the parties is not inconsistent with the 
National Labor Relations Act and past Board policy.''); Airborne 
Freight Corp., supra 142 NLRB at 874-875 (``[T]he voluntary grouping 
of the two clericals with the operating employees, a number of whom 
regularly perform clerical functions, is insufficient to render the 
contractual agreement inherently inappropriate and remove the 
agreement as a bar'').
---------------------------------------------------------------------------

    The proposed rule, like current Sec.  103.21, is limited to the 
representation-case context. It does not subject an employer to unfair 
labor practice liability under section 8(a)(5) of the Act for 
withdrawing recognition from a voluntarily recognized union before a 
reasonable period for bargaining has elapsed. See, e.g., Brown & 
Connolly, Inc., 237 NLRB 271, 275 (1978), enfd. 593 F.2d 1373 (1st Cir. 
1979). The Board invites public comment on whether it should adopt as 
part of the Board's Rules and Regulations a parallel rule to apply in 
the unfair labor practice context, prohibiting an employer--which 
otherwise would be privileged to withdraw recognition based on the 
union's loss of majority support--from withdrawing recognition from a 
voluntarily recognized union, before a reasonable period for collective 
bargaining has elapsed.
    The Board's preliminary view is that restoring the voluntary-
recognition bar, in its more traditional form, as well as the 
traditional contract bar in cases of voluntary recognition, better 
serves the policies of the National Labor Relations Act, respecting--
indeed, vindicating--employee free choice, while encouraging collective 
bargaining and preserving stability in labor relations.\116\ Experience 
under Sec.  103.21, meanwhile, seems to show that voluntary recognition 
almost always reflects employee free choice accurately. This was the 
experience under Dana as well. Thus, the Board is concerned that Sec.  
103.21 imposes requirements that burden collective bargaining without 
producing commensurate benefits in vindicating employee free choice of 
bargaining representatives. Such a disproportionate waste of party and 
Board resources cannot be justified by reference to Federal labor 
policy, which favors voluntary recognition.\117\
---------------------------------------------------------------------------

    \116\ With the rescission of the current rule and the rejection 
of the rationales for treating voluntarily-recognized unions 
substantially differently for the purposes of challenges to a 
union's status, the Board's contract-bar doctrine--which generally 
insulates a union, regardless of the means by which it established 
its majority status, from challenges during the term of a 
collective-bargaining agreement--will be restored in the case of 
contracts executed with voluntarily-recognized unions to the same 
extent it has applied historically (typically, if certain criteria 
are met, for a period not to exceed 3 years). See Lamons Gasket Co., 
supra, 357 NLRB at 745 fn. 22.
    \117\ In affirming the Board's application of the traditional 
voluntary-recognition bar, the District of Columbia Circuit, for 
example, has explained that whatever advantages an election may have 
over the use of authorization cards to determine employee support 
for a union, ``an employer's voluntary recognition of a majority 
union also remains `a favored element of national labor policy.' '' 
NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1299 (D.C. Cir. 
1988) (quoting NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th 
Cir. 1978)). Other circuits have characterized voluntary recognition 
precisely the same way. See, e.g., NLRB v. Winco Petroleum Co., 668 
F.2d 973, 981 (8th Cir. 1982); NLRB v. Lyon & Ryan Ford, Inc., 647 
F.2d 745, 750 (7th Cir. 1981).
---------------------------------------------------------------------------

    We believe, subject to comments, that restoration of the voluntary-
recognition bar as proposed in this document is fully consistent with 
the statutory language and would better effectuate the purpose and 
policies of the Act. Several Federal appellate courts have endorsed the 
voluntary-recognition bar, deferring to the Board's understanding of 
the Act and its application of the Act's policies.\118\ No court of 
appeals has rejected the voluntary-recognition bar. Neither the Dana 
Board nor the Board that promulgated Sec.  103.21 argued that the 
traditional voluntary-recognition bar was irrational or inconsistent 
with the Act. Nor did the Board at either time argue that the election 
procedure established in Dana, and then reestablished in Sec.  103.21, 
was somehow compelled by the Act.\119\ While the Board's approach to 
the voluntary-recognition bar has varied, the Board consistently has 
viewed the issue as presenting a policy choice for the Board to make, 
and this, of course, is how the Federal courts have seen it for 
decades. Similarly, applying contract-bar principles has long been 
recognized as promoting stability in the bargaining relationships 
between employers and unions.\120\
---------------------------------------------------------------------------

    \118\ See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1247-
1248 (D.C. Cir. 1994); Royal Coach Lines, Inc. v. NLRB, 838 F.2d 47, 
51-52 (2d Cir. 1988); NLRB v. Lyon & Ryan Ford, Inc., supra, 647 
F.2d at 750-751; NLRB v. Broadmoor Lumber Co., supra, 578 F.2d at 
241; Toltec Metals, Inc. v. NLRB, 490 F.2d 1122, 1125-1126 (3d Cir. 
1974); NLRB v. San Clemente Publishing Corp., 408 F.2d 367, 368 (9th 
Cir. 1969); NLRB v. Montgomery Ward & Co., 399 F.2d 409, 411-413 
(7th Cir. 1968); NLRB v. Universal Gear Service Corp., 394 F.2d 396, 
397-398 (6th Cir. 1968).
    \119\ See United Mine Workers of America v. Arkansas Oak 
Flooring Co., supra, 351 U.S at 73 (explaining that union's failure 
to comply with certain statutory provisions, which prevented union 
from being certified by Board, did not prevent union from being 
voluntarily recognized by employer: ``The very specificity of the 
advantages to be gained [by compliance with statutory provisions] 
and the express provision for the loss of these advantages imply 
that no consequences other than those so listed shall result from 
noncompliance.''). The statutory benefits conferred only on 
certified unions are discussed above at fn. 16 and the accompanying 
text.
    \120\ See, e.g., General Cable Corp., 139 NLRB 1123, 1125 
(1962).
---------------------------------------------------------------------------

    In proposing to restore the traditional voluntary-recognition bar, 
subject to comments, we give weight to the rationale for the bar that 
the Board, with judicial approval, has advanced and adhered to in the 
past: that the new

[[Page 66910]]

collective-bargaining relationship established through voluntary 
recognition--just like bargaining relationships established through 
other lawful means and protected by related Board bar doctrines--``must 
be permitted to exist and function for a reasonable period in which it 
can be given a fair chance to succeed,'' in the Supreme Court's 
words,\121\ in order to promote the Act's goals of encouraging the 
practice and procedure of collective bargaining. We specifically invite 
comment on the reasonable period for bargaining defined in the proposed 
rule. In our initial view, the current rule tends to undermine (a) the 
stability vital for the parties to successfully negotiate a first 
contract, as the employer may question whether its negotiating partner 
may be out of the picture in a matter of weeks, and (b) the stability 
needed to fairly administer an executed collective-bargaining agreement 
without the shadow of a possible challenge to the union's status by 
making the contract bar contingent on the notice procedure.
---------------------------------------------------------------------------

    \121\ Franks Bros. Co. v. NLRB, supra, 321 U.S. at 705. See 
Lamons Gasket, supra, 357 NLRB at 739-740, 744-745.
---------------------------------------------------------------------------

    In proposing to return to the voluntary-recognition bar that 
existed under the Board's Lamons Gasket decision, we note that the 
Board in Lamons Gasket provided, in accordance with its decision in 
Smith's Food & Drug Center, 320 NLRB 844 (1996), that ``voluntary 
recognition of one union will not bar a petition by a competing union 
if the competing union was actively organizing the employees and had a 
30-percent showing of interest at the time of recognition.'' 357 NLRB 
at 745 fn. 22. Because of the importance of stability to newly-
established collective-bargaining relationships, we invite public 
comment on whether the Board should continue to process, consistent 
with Smith's Food, a representation petition filed by a competing union 
that had a 30-percent showing of interest at the time of recognition or 
bar the processing of such a petition so as to not delay until after a 
Board election the employer's recognition of the employees' designation 
of their collective-bargaining representative.
    We are further inclined to believe that Sec.  103.21 rejects the 
premise that newly established bargaining relationships must be given a 
fair chance to succeed in the context of voluntary recognition. In the 
name of promoting employee free choice, the rule permits a union's 
representative status to be challenged by an election petition 
immediately after the union has been voluntarily recognized. Indeed, 
the rule arguably invites such a challenge, by requiring employers, as 
a precondition to receiving the benefit of the recognition and contract 
bars, to post a notice to employees informing them of their right to 
file an election petition with the Board. In no other context does the 
Board require that employees be given notice of their right to change 
their minds about a recent exercise of statutory rights.\122\ Section 
103.21 suggests to employees that the Board considers their choice to 
be represented suspect and signals to employees that their choice 
should be reconsidered through the filing of a petition.\123\
---------------------------------------------------------------------------

    \122\ Lamons Gasket, supra, 357 NLRB at 743.
    \123\ Id. at 744.
---------------------------------------------------------------------------

    It does so absent any basis to conclude that the union was not, in 
fact, freely chosen by employees to represent them. To proceed to an 
election, employees opposed to the union need not allege, much less 
establish, that the union lacked lawful majority support at the time it 
was voluntarily recognized. Nor are employees required to present 
evidence demonstrating that a majority of bargaining-unit employees no 
longer support the recently recognized union. Rather, a showing that a 
minority of unit employees (as few as 30 percent) desire an election is 
enough. An election, in turn, is decided by a majority of voting 
employees, who may comprise a minority of unit employees. Subject to 
comments, the Board's preliminary view is that Sec.  103.21 actually 
undermines employee free choice by failing to fully respect the lawful 
designation of the voluntary-recognized union by a majority of 
bargaining-unit employees.\124\
---------------------------------------------------------------------------

    \124\ See Lamons Gasket, supra, 357 NLRB at 746 (observing that 
``a more demanding standard is imposed on voluntary recognition than 
on certification following a Board-supervised election'' and citing 
authority).
---------------------------------------------------------------------------

    To be sure, Sec.  103.21 acknowledges that the employer still has a 
duty to bargain with the voluntarily recognized union. But collective 
bargaining during the 45-day window period for petitions established by 
Sec.  103.21 will necessarily proceed (or not) under the cloud cast by 
the possibility of a challenge to the union's status, which (if 
successful) would vitiate any agreement reached. And if an election 
petition is filed, then bargaining will proceed under the same cloud 
until the election is held. In such a situation, it seems reasonable to 
conclude that instead of being ``given ample time for carrying out its 
mandate on behalf of its members,'' a union will be ``under exigent 
pressure to produce hot-house results or be turned out''--a concern 
cited by the Supreme Court in upholding the Board's rule that the 
status of a newly-certified union may not be challenged for one 
year.\125\ That concern would seem to apply with equal force in the 
context of voluntary recognition, as the Federal courts have 
recognized.\126\ The Board's tentative view--in agreement with the 
Lamons Gasket Board, but subject to comments--is that Sec.  103.21 thus 
has a significant potential to interfere with effective collective 
bargaining.\127\ Insofar as Sec.  103.21 might be premised on the view 
that voluntary recognition based on union-authorization cards is 
inherently suspect, it would be in obvious tension with the provisions 
of the Act reflecting Congress's determination that a lawful--and, 
indeed, statutorily enforceable--collective-bargaining relationship may 
be established without a Board election.\128\ Indeed, in holding that 
the Board, under certain circumstances, may compel an employer to 
recognize and bargain with a union whose majority support was 
demonstrated by authorization cards, the Supreme Court has flatly 
rejected arguments that union-authorization cards cannot reliably 
reflect employee free choice--and has noted a ``union's right to rely 
on cards as a freely interchangeable substitute for elections where 
there has been no election interference.'' \129\
---------------------------------------------------------------------------

    \125\ Brooks v. NLRB, 348 U.S. 96, 100 (1954).
    \126\ See, e.g., NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 
1380, 1383-1384 (2d Cir. 1973). The Second Circuit there noted with 
approval the ``general Board policy of protecting valid[l]y 
established bargaining relationships during their embryonic stage.'' 
Id. at 1384 fn. 5.
    \127\ In adopting Sec.  103.21, the Board pointed to the absence 
of more than anecdotal evidence that the election procedure 
previously established by the Dana decision did, in fact, discourage 
or delay collective bargaining. 85 FR 18384. Nonetheless, the Board 
did acknowledge the possibility that the ``existence of a pending 
election petition will cause unions to spend more time campaigning 
or working on election-related matters rather than doing substantive 
work on behalf of employees,'' but expressed the view that ``this is 
a reasonable trade-off for protecting employees' ability to express 
their views in a secret-ballot election.'' Id. at 18384-18385. The 
Lamons Gasket Board, in contrast, cited the Dana experience of 
unions that filed amicus briefs with the Board, as well as the game-
theoretical model of collective bargaining presented by amicus 
Professor Kenneth Dau-Schmidt. Lamons Gasket, supra, 357 NLRB at 747 
& fn. 30. We invite public comment on the effect of Sec.  103.21 on 
collective-bargaining negotiations.
    \128\ As explained, sec. 8(a)(5) of the Act requires an employer 
``to bargain collectively with the representatives of his employees, 
subject to the provisions of section 9(a),'' 29 U.S.C. 158(a)(5), 
and sec. 9(a), in turn, refers to ``[r]epresentatives designated or 
selected . . . by the majority of the employees'' in an appropriate 
unit. 29 U.S.C. 159(a) (emphasis added). See Gissel Packing Co., 
supra, 395 U.S. at 596-598.
    \129\ See Gissel Packing Co., supra, 395 U.S. at 601-604. The 
Gissel Court noted that in the case before it, ``a union's right to 
rely on cards as a freely interchangeable substitute for elections 
where there has been no election interference [was] not put in 
issue''; rather, the Court was only required to ``decide whether the 
cards are reliable enough to support a bargaining order where a fair 
election probably could not have been held, or where an election 
that was held was in fact set aside.'' 395 U.S. at 601 fn. 18.

---------------------------------------------------------------------------

[[Page 66911]]

    Finally, this proposal to return to the traditional voluntary-
recognition bar, as refined in Lamons Gasket, is consistent with the 
Board's preliminary view of the experience to date under Sec.  103.21. 
That experience provides no evidence that voluntary recognition is 
suspect (as discussed above) and thus there is nothing to outweigh the 
reasonable tendency of the current rule to undermine employee free 
choice (as reflected in the lawful designation of the voluntarily 
recognized union) and to interfere with effective collective 
bargaining. Rejecting the Dana election procedure, the Lamons Gasket 
Board pointed to the tiny fraction of cases in which, following 
voluntary recognition of a union, employees ultimately rejected the 
union in a Board election. According to the Board in Lamons Gasket, the 
data showed that the ``proof of majority support that underlay the 
voluntary recognition [of unions] during the [Dana period] was a highly 
reliable measure of employee sentiment,'' contrary to the assumption of 
the Dana Board.\130\ Insofar as Sec.  103.21 might be premised on any 
empirical showing of the rate at which employees reject the union 
following the posting of the notice prescribed in the current rule, it, 
too, would seem to lack substantial empirical support.
---------------------------------------------------------------------------

    \130\ Lamons Gasket, supra, 357 NLRB at 742.
---------------------------------------------------------------------------

    But in restoring the Dana election procedure by adopting Sec.  
103.21, the Board did not clearly endorse or reject the premise on 
which the procedure was originally based. The Board's position arguably 
was grounded not in administrative experience, but rather in a 
particular interpretation of the Act, independent of that experience--
and so not falsifiable by empirical evidence.\131\ Subject to comments, 
we doubt that the Act's provision for Board elections as one means (but 
not the exclusive means) for determining employee free choice, coupled 
with the implicit statutory preference for Board elections (insofar as 
certain benefits are conferred only on certified unions), were enough 
to justify restoring the Dana procedure, given substantial evidence 
that permitting an election soon after voluntary recognition almost 
never results in employees making a different choice. Indeed, in 
adopting Sec.  103.21, the Board acknowledged that ``data from the 
post-Dana period indicates that recognized unions will not often have 
to jump through the procedural `hoop' of an election, and those that do 
will far more often emerge with a reaffirmation of their majority 
support . . . .'' \132\ Put differently, the evidence seems strongly to 
suggest that the Dana procedure is an empty exercise at best, and one 
which imposes pointless burdens on parties and the Board--or at least 
that it is not something that would justify the current rule's 
departure from policies favoring voluntary recognition and encouraging 
stability in such bargaining relationships. We invite commenters to 
submit additional empirical evidence to inform our views on this 
subject.
---------------------------------------------------------------------------

    \131\ See 85 FR 18383 (notwithstanding commenter's assertions 
regarding data, rule ``solidly based on and justified by the policy 
grounds already stated'').
    \132\ 85 FR 18385.
---------------------------------------------------------------------------

    As noted earlier, the experience under Sec.  103.21 has been 
entirely consistent with the experience under Dana. To date, the 
current rule has resulted in scant instances of employees actually 
filing a petition and almost no instances of employees rejecting the 
voluntarily recognized union. Thus, only 0.4 percent of cases (1 out of 
260 included cases) resulted in a petition being filed, and 0.4 percent 
resulted in a union's loss of representative status. Both data sets 
show that the number of instances in which the notices have resulted in 
the filing of a petition or holding an election is vanishingly small--
and the cases where the voluntarily recognized union was displaced to 
be almost nothing. It seems illuminating that the post-Sec.  103.21 
data show no significant change from the post-Dana data, suggesting 
that the low rate of election-petition filing and employee rejection of 
the voluntarily recognized union is consistent over time. Our 
preliminary view, accordingly, is that just as the Board's 
administrative experience under the Dana election procedure refuted the 
rationale offered in Dana (as the Lamons Gasket Board explained), so, 
too, does the experience under Sec.  103.21 demonstrate that there was 
no reason to doubt that voluntarily recognized unions actually enjoy 
majority support.
    In proposing and adopting Sec.  103.21, however, the Board viewed 
the empirical evidence examined in Lamons Gasket very differently. In 
the notice of proposed rulemaking for Sec.  103.21, the Board found 
that the post-Dana ``election statistics . . . support, rather than 
detract from, the need for a notice and brief open period following 
voluntary recognition.'' \133\ The Board reiterated this surprising 
conclusion in the preamble to the final rule and delineated reasons why 
it deemed the data with respect to elections actually conducted under 
Dana to support Sec.  103.21.
---------------------------------------------------------------------------

    \133\ 84 FR 39938.

    [T]he [post-Dana] statistics showed that (1) Dana served the 
intended purpose of assuring employee free choice in those cases 
where the choice made in the preferred Board electoral process 
contradicted the showing on which voluntary recognition was granted; 
(2) in those cases where the recognized union's majority status was 
affirmed in a Dana election, the union gained the additional 
benefits of [s]ection 9(a) certification, including a 1-year bar to 
further electoral challenge, (3) there was no substantial evidence 
that Dana had any discernible impact on the number of union 
voluntary-recognition campaigns, or on the success rate of such 
campaigns, and (4) there was no substantial evidence that Dana had 
any discernible impact on the negotiation of bargaining agreements 
during the open period or on the rate at which agreements were 
---------------------------------------------------------------------------
reached after voluntary recognition.

85 FR 18368.\134\
---------------------------------------------------------------------------

    \134\ Reasons (3) and (4) pertain only to the absence of 
evidence of select negative consequences of the rule. As explained 
previously, we will consider additional data on these questions; 
moreover, we will also consider the probable, reasonable 
consequences in the absence of sufficient data pointing in either 
direction.
---------------------------------------------------------------------------

    Preliminarily, we see nothing in the data that would support, let 
alone compel, discarding long-standing policies that support voluntary 
recognition in favor of the current rule. As to the first assertion, 
subject to comments, we are inclined to agree with the Lamons Gasket 
Board that an election loss by the recognized union does not 
affirmatively suggest that at the time it was recognized, the union 
lacked majority support. The election, rather, would seem just as 
likely, if not more so, to be a referendum on the union's 
accomplishments in bargaining during the brief period after recognition 
and the result, a consequence, too, of the pre-election campaign. Other 
post-recognition factors, such as employee turnover or simply a change 
of employee sentiment, might also be at play. The Board's bar doctrines 
involving new collective-bargaining relationships, of course, are based 
on the premise that unions should not be subjected to challenge before 
a reasonable period for bargaining has elapsed. Section 103.21, in 
contrast, does not contemplate such a period. On our preliminary view, 
then, even in the tiny fraction of total voluntary-recognition cases 
where a recognized union ultimately was ousted, the result says nothing 
about employee free choice as reflected in the union's original 
designation by a majority of bargaining-unit employees.
    The relevance of the Board's second assertion--pointing out that 
when

[[Page 66912]]

unions prevailed in a Dana election, they consequently gained the 
benefits of a Board certification--is not clear. The suggestion 
apparently is that the burden imposed on the union in requiring it to 
defend its status is mitigated or even outweighed. But unions and the 
employees who support them have always been free to choose to seek a 
Board election and the benefits of certification. When they seek and 
gain voluntary recognition from the employer instead--as the Act 
indisputably permits them to do--the Board presumably should respect 
that lawful expression of free choice.
    The Board also suggested that, notwithstanding the low percentage 
of cases in which the recognized union was ousted after a Dana notice 
was requested, employees should still be given the option of an 
election (and informed of that right) because the data still leave 
substantial ambiguity regarding the validity of voluntary recognition 
based on majority support.\135\ However, this claim--essentially that 
every instance of voluntary recognition remains open to doubt 
concerning employees' true sentiments, even after notice-requests have 
been made, unless an election occurs--cannot be squared with the 
notices in Dana and Sec.  103.21 itself. The rule's necessary premise, 
like that of Dana, is that voluntary recognition is not presumptively 
invalid, and that the notice--by giving employees an option for an 
election which they may choose or not choose to exercise--merely 
provides additional assurances before further challenges to the union's 
status are (temporarily) foreclosed. But, as the language of the Sec.  
103.21 and Dana notices indicate, by not filing a petition, employees 
effectively have chosen to reaffirm their original choice to be 
represented by the union.\136\ In any event, any ambiguity that might 
exist cannot be said to support the current rule, as the data offer no 
affirmative suggestion that voluntary recognition is suspect as a means 
of ascertaining employee choice.
---------------------------------------------------------------------------

    \135\ The Board observed that ``as for the . . . cases in which 
Dana notices were requested but no petitions were filed, we know 
nothing about the reasons for that outcome. Specifically, we know 
nothing about the reliability of the proof of majority support that 
underlay recognition in each of these cases, nor do we know why no 
petition was filed.'' 85 FR 18383.
    \136\ The Sec.  103.21 notice provides in relevant part: ``If no 
petition is filed within the 45-day window period, the Union's 
status as the unit employees' exclusive bargaining representative 
will be insulated from challenge for a reasonable period of time, 
and if [Employer] and [Union] reach a collective-bargaining 
agreement during that insulated reasonable period, an election 
cannot be held for the duration of that collective-bargaining 
agreement, up to 3 years.'' The Dana notice included a similar 
provision. 351 NLRB at 443.
---------------------------------------------------------------------------

    Finally, for essentially the same reasons, we question the degree 
to which the Board focused on the very few cases where an election was 
held and the union was ousted. The Board observed that ``the fact that 
only a small percentage of all Dana notices resulted in ending 
continued representation by the voluntarily recognized union does not 
mean that the post-recognition open period procedure was unnecessary 
and should not be restored,'' because in ``1 out of every 4 Dana 
elections a majority of employees voted to reject continued 
representation by a voluntarily recognized union.'' \137\ Again, our 
preliminary view is that the Board was fundamentally mistaken in 
suggesting that employees' choice not to seek an election after 
voluntary recognition is of little or no consequence. As stated 
previously, the notice in Dana and that prescribed by Sec.  103.21 make 
clear that if employees do not seek a Board election, then they have 
assented to the validity of the voluntary recognition. We question, 
then, whether it is reasonable to discount cases where employees have 
declined to seek an election.
---------------------------------------------------------------------------

    \137\ 85 FR 18383.
---------------------------------------------------------------------------

    In sum, for the reasons offered here, the Board proposes to adopt a 
rule that effectively rescinds current Sec.  103.21 of the Board's 
Rules and Regulations and to replace the existing rule with a new rule 
that codifies the Board's traditional voluntary-recognition bar, as 
refined and articulated in the Lamons Gasket decision. The Board again 
invites public comment on any and all of the issues and matters 
specifically identified here, as well as on any other issues or matters 
relevant to the proposed rule.

C. Rescission of Sec.  103.22 of the Board's Rules and Regulations

    The Board proposes, subject to comments, to rescind Sec.  103.22 of 
the Board's Rules and Regulations promulgated on April 1, 2020. Once 
rescinded, the previously effective case-law precedent would govern 
section 9(a) recognition in the construction industry, such as Staunton 
Fuel, Casale, and other cases pertaining to the application of the 
voluntary-recognition and contract bars in the construction industry.
    The Board believes that this change is required because Sec.  
103.22 is premised on overruling Casale and revoking the limitations 
period for challenging voluntary recognition in the construction 
industry, which was not mentioned anywhere in the NPRM as being under 
consideration by the Board. Without having provided the required 
notice, stakeholders and members of the public had no reason to submit 
comments on this critical issue, which may have affected the Board's 
decision to ultimately enact Sec.  103.22.\138\
---------------------------------------------------------------------------

    \138\ As our dissenting colleagues recognize, the only reference 
to this issue in public comments to the 2019 NPRM was by two parties 
who advocated for the Board to codify Casale into its rules, not to 
abandon it altogether. In fact, there was no party that advocated 
for abandoning Casale, and no party would have known from the 2019 
NPRM that doing so was intended. In an earlier Notice and Invitation 
to File Briefs, the same Board majority that issued the 2020 final 
rule solicited briefs on not only whether the Board should adhere, 
modify, or overrule Staunton Fuel but also, ``[i]f Staunton Fuel is 
modified or overruled, should the Board adhere to, modify, or 
overrule Casale Industries, and, if either of the latter, how?'' 
Notice and Invitation to File Briefs, Loshaw Thermal Technology, 
LLC, 05-CA-15860 (Sept. 11, 2018). The language about adhering, 
modifying, or overruling Casale was conspicuously absent from the 
2019 NPRM.
---------------------------------------------------------------------------

    In the absence of prior public comments on this critical issue, we 
are concerned that the overruling of Casale pursuant to Sec.  103.22 
may create an onerous and unreasonable recordkeeping requirement on 
construction employers and unions.\139\ Where a construction employer 
chooses to voluntarily recognize a union as the majority representative 
of its employees, the overruling of Casale requires the parties to 
retain and preserve--indefinitely--extrinsic evidence of a union's 
showing of majority support at the time when recognition was initially 
granted.\140\ If, at some point years into

[[Page 66913]]

the future, a party seeks to challenge the union's continued 
presumption of majority support by filing a representation petition 
during the duration of a collective-bargaining agreement, in light of 
the overruling of Casale pursuant to Sec.  103.22, the parties will 
lose the benefit of the Board's longstanding contract-bar rules unless 
they can successfully show that they continued to retain and preserve 
that initial showing of majority support.
---------------------------------------------------------------------------

    \139\ In analyzing the recordkeeping costs of Sec.  103.22 under 
the Regulatory Flexibility Act, the April 2020 Board concluded that 
it may impose a de minimis additional cost on small construction 
industry labor unions for recordkeeping but that ``there is no 
reason for a small labor organization to implement a record-
retention system that is more sophisticated than their normal-
course-of-business records retention.'' 85 FR 18395. However, as the 
April 2020 final rule acknowledges, Sec.  103.22 imposes a 
completely new recordkeeping requirement on construction employers 
and unions of all sizes. We see no reason to assume that their 
current records retention processes are adequate for the task 
imposed on them by Sec.  103.22. Nonetheless, we welcome comments on 
this issue.
    \140\ It seems unlikely, as a practical matter, that anything 
but contemporaneous evidence of majority support from the time of 
recognition could satisfy the standard set out in Sec.  103.22. In 
the preamble to the final rule, although the Board declined to 
define ``positive evidence,'' the Board stated that ``the same 
contemporaneous showing of majority support that would suffice to 
establish that employees wish to be represented by a labor 
organization in collective bargaining with their employer under 
section 9(a) in non-construction industries will also suffice to 
establish recognition under section 9(a) in construction-industry 
bargaining relationships.'' 85 FR 18390. Thus, it appears that the 
Board contemplated that the ``positive evidence'' the parties are 
required to retain pursuant to Sec.  103.22 is the contemporaneous 
showing of majority support. And indeed, even under Staunton Fuel, 
the union's 9(a) recognition had to be based on it having shown or 
offered to show evidence of its majority support. 335 NLRB at 720. 
Because the final rule deemed the parties' written memorialization 
of that showing of support in their contract as always insufficient 
on its own to prove majority support, the positive evidence that the 
final rule requires the parties to retain is presumably the union's 
contemporaneous showing of its majority support to demonstrate the 
veracity of that contractual language.
---------------------------------------------------------------------------

    Notably, pursuant to Sec.  103.22, this burden is borne only by 
construction employers and unions--a situation that the Board foreswore 
in John Deklewa & Sons when it took the practical but moderate step of 
requiring construction employers and unions to specify the 9(a) basis 
for the recognition in written contracts. Nonetheless, as the Board 
there observed, a construction employer's voluntary recognition of a 
union based on a showing of majority support among employees was not to 
be treated less favorably than if granted by a nonconstruction 
employer, including barring challenges to the validity of the union's 
initial recognition after more than 6 months had elapsed.\141\
---------------------------------------------------------------------------

    \141\ John Deklewa & Sons, 282 NLRB at 1387 fn. 53.
---------------------------------------------------------------------------

    The current Board is inclined to believe that its contract-bar 
rules are too critical for promoting stability in labor relations--
particularly in the construction industry--to allow them to be subject 
to needless gamesmanship if a construction employer and union 
unintentionally fail to adhere to this uniquely burdensome and 
perpetual recordkeeping requirement. Aware of the Board's contract bar, 
parties enter into collective-bargaining agreements pursuant to section 
9(a) with the expectation that doing so will provide finality as to 
employees' terms and conditions of employment for a defined time 
period.\142\ This stability is an important benefit of collective-
bargaining for employers, unions, and employees alike.\143\ However, in 
light of the overruling of Casale pursuant to Sec.  103.22, even 
successor collective-bargaining agreements are not protected from 
challenge by the contract bar because a party could still contest a 
construction employer's initial 9(a) recognition of the union.
---------------------------------------------------------------------------

    \142\ See Appalachian Shale Products Co., 121 NLRB 1160, 1163 
(1958) (finding a contract bar only exists where an agreement 
contains substantial terms and conditions of employment because 
``real stability in industrial relations can only be achieved where 
the contract undertakes to chart with adequate precision the course 
of the bargaining relationship, and the parties can look to the 
actual terms and conditions of their contract for guidance in their 
day-to-day problems'').
    \143\ See General Cable Corp., 139 NLRB at 1125.
---------------------------------------------------------------------------

    The Board is inclined to believe that the overruling of Casale 
pursuant to Sec.  103.22 unjustifiably injects uncertainty and 
unpredictability into construction-industry labor relations. It makes 
construction-industry collective-bargaining agreements subject to 
challenge at any time. Paradoxically, and perversely, it makes the 
longest lasting collective-bargaining relationships the least stable. 
The parties' extrinsic evidence of the union's contemporaneous showing 
of majority support is more likely to become lost or forgotten as more 
years have elapsed. Collective-bargaining relationships in the 
construction industry can last for decades. It could be 20 years after 
an initial grant of voluntary recognition that a petition is filed at a 
time when the parties' agreement--but for Sec.  103.22--would have 
barred it from being processed.\144\ Relationships ideally 
characterized by stability are instead plagued by continued uncertainty 
over whether the parties' relationship will be challenged in the 
future--potentially for decades.
---------------------------------------------------------------------------

    \144\ For instance, the employer in John Deklewa & Sons had 
recognized the union for 23 years before repudiating the parties' 
agreement and withdrawing recognition. Id. at 1376. Although the 
April 2020 final rule is to be applied prospectively only, it could 
still cause significant disruption to longstanding collective-
bargaining relationships 20 years into the future for collective-
bargaining relationships first formed after April 2020.
---------------------------------------------------------------------------

    The Board also is inclined to believe that the problems with 
overruling Casale pursuant to Sec.  103.22 are compounded by requiring 
parties to litigate what may be very old evidence of the union's 
initial 9(a) recognition in a representation proceeding--a forum that 
is not designed for that task. If a party challenges the validity or 
authenticity of the extrinsic evidence, especially because it may be 
any number of years old, this will have to occur at the preelection 
representation hearing. In contrast to an unfair labor practice 
proceeding, the representation hearing is nonadversarial and does not 
offer the evidentiary and procedural safeguards that should exist for 
reviewing that type of evidence, such as applying evidentiary rules or 
making credibility determinations.\145\ Importantly, even if the 
parties had retained and preserved contemporaneous evidence of the 
union's initial majority status, it is only going to be so probative of 
whether the union in fact had majority support. It is not uncommon for 
parties to dispute the validity of a signed authorization card. The 
overruling of Casale could mean that the Board may have to assess the 
authenticity of cards that could be any number of years old where 
signers--especially in the construction-industry where employee 
turnover is known to be frequent--have long ago left the 
workplace.\146\ As the Supreme Court recognized in Bryan Manufacturing, 
it is imprudent to permit parties to litigate a union's initial 
recognition outside of the 10(b) period--whether in a preelection 
representation proceeding or in an unfair labor practice hearing--
``after records have been destroyed, witnesses have gone elsewhere, and 
recollections of the events in question have become dim and confused.'' 
\147\
---------------------------------------------------------------------------

    \145\ See Paragon Products Corp., 134 NLRB at 665 
(representation ``proceedings are investigatory in character and do 
not afford a satisfactory means for determining matters which are 
more properly the subject of adversary proceedings with their 
accompanying safeguards.''). Compare Board's Rules and Regulations 
Sec.  102.39 (``The [unfair labor practice] hearing will, so far as 
practicable, be conducted in accordance with the rules of evidence 
applicable in the district courts of the United States . . . .''), 
with Board's Rules and Regulations Sec.  102.66(a) (``The rules of 
evidence prevailing in courts of law or equity shall not be 
controlling'' at a representation hearing); see also Marian Manor 
for the Aged & Infirm, Inc., 333 NLRB 1084, 1084 (2001) (``[A] 
preelection hearing is investigatory in nature and credibility 
resolutions are not made.'').
    \146\ See John Deklewa & Sons, 282 NLRB at 1380 (``Another, 
important characteristic of the industry was sporadic employment 
relationships. In construction, an employee or group of employees 
`typically works for many employers and for none of them 
continuously. Jobs are frequently of short duration, depending on 
various stages of construction.' '') (quoting S. Rep. No. 86-187, 
reprinted in 1 NLRB, Leg. Hist., at 423).
    \147\ See Bryan Manufacturing, 362 U.S. at 419 (quoting H.R. 
Rep. No. 80-245, at 40).
---------------------------------------------------------------------------

    The Board is also inclined to believe that the procedures in place 
prior to the overruling of Casale pursuant to Sec.  103.22 
appropriately granted regional directors discretion to determine 
whether the evidence adequately showed where the union had been 
properly granted 9(a) recognition.\148\ This is particularly true in 
the context of a representation case where regional directors could 
determine whether the union had actually obtained 9(a) status so that a 
collective-bargaining agreement between the parties would serve as a 
contract bar to the processing of a petition.\149\ Of course, even if 
the

[[Page 66914]]

regional director were to find that a contract bar existed, a party is 
not foreclosed from challenging the union's continued presumption of 
majority support forever. The absolute longest a party would have to 
wait before filing a representation petition under the Board's 
contract-bar rules would be 3 years.\150\ But in the absence of Casale, 
and without the evidence of the union's contemporaneous majority 
support, a collective-bargaining agreement and the union's very 
recognition could be challenged at any time. It could even be 
challenged when the processing of a representation petition would 
entrench employee coercion instead of ameliorating it. If a 
construction employer and union attempt to masquerade an 8(f) 
relationship as a lawful 9(a) recognition, Sec.  103.22 attempts to 
rectify that unlawful 8(a)(2) and 8(b)(1)(A) conduct through a 
representation petition. But that is not the right medicine for the 
ailment. Under the Board's statutory framework, unlawful conduct is to 
be remedied through unfair labor practice proceedings with the 
attendant evidentiary and procedural safeguards. Moreover, a 
construction employer found to have violated the law will be ordered to 
cease and desist from recognizing the union as its employees' 
collective-bargaining representative and from giving effect to any 
agreement. An election may thus be a poor method for accurately gauging 
employee support when it occurs while employees are being unlawfully 
represented by a purported 9(a) bargaining representative.
---------------------------------------------------------------------------

    \148\ See Golden West Electric, 307 NLRB at 1495 (acting 
regional director properly administratively dismissed representation 
petition under the contract bar after finding the parties' 
relationship governed under sec. 9(a)).
    \149\ See G.M.S. Excavators, Inc., Case No. 18-RD-125379, slip 
op. 14-16 (Jun. 3, 2014) (regional director found that a union was 
not the 9(a) representative and processed a decertification petition 
where the agreement stated that the union represented employees but 
not that the union had the support or the authorization of a 
majority of the employees).
    \150\ See Mountaire Farms, Inc., 370 NLRB No. 110, slip op. at 1 
(``Under the Board's current application of the contract-bar 
doctrine, a valid collective-bargaining agreement ordinarily is a 
bar to a representation petition during the term of the agreement, 
but for no longer than 3 years.'').
---------------------------------------------------------------------------

    Moreover, a filed petition may even have nothing to do with 
employee free choice. A construction employer that had voluntarily 
entered into a contract with a union could, at any time during the life 
of that contract, decide that it does not like the terms that it had 
agreed to or the collective-bargaining relationship altogether and file 
an RM petition, hoping to defeat the Board's standard contract bar 
merely because the union failed to retain and preserve indefinitely the 
extrinsic evidence from its initial 9(a) recognition.
    In overruling Casale pursuant to Sec.  103.22, the 2020 Board 
perplexingly speculated that this was necessary because parties would 
presume that a construction employer and union only entered into an 
8(f) agreement and, therefore, would not know to file a petition within 
the first 6 months to challenge a union's 9(a) recognition.\151\ This 
Board is inclined to disagree. Although the Board in John Deklewa & 
Sons adopted a rebuttable presumption that a collective-bargaining 
relationship in the construction industry was established under section 
8(f), the Board also explicitly recognized that a union representing 
construction employees could obtain 9(a) status. Employees and rival 
unions who wish to challenge an incumbent union during the duration of 
a contract must know whether the construction employer has recognized 
the union as the 9(a) representative. And indeed, this is exactly why 
the unambiguous 9(a) recognition language in the parties' agreement is 
so important.
---------------------------------------------------------------------------

    \151\ 85 FR 18391.
---------------------------------------------------------------------------

    Under the law that existed prior to Sec.  103.22, the parties' 
contract language had to unequivocally state that the construction 
employer granted the union 9(a) recognition so there could be no doubt 
if a party wanted to challenge its lawfulness. An employee will know 
immediately upon cursory review of the contract--after all, the 9(a) 
recognition must be stated using unequivocal language--whether the 
employer has recognized the union as the majority section 9(a) 
representative. In the same way that the collective-bargaining 
agreement grants the employees certain rights that they may want to 
know about, it also imposes obligations. One of those obligations under 
Casale is that, if the agreement unequivocally states that the union 
has 9(a) status, a challenge to the union's majority status during the 
term of the agreement, either through a petition or a charge, must be 
filed within 6 months. The Casale Board understood this to be necessary 
so that unions representing employees in the construction industry are 
not treated less favorably than nonconstruction unions. But the Casale 
Board, like the Supreme Court in Bryan Manufacturing, also recognized 
the need for a defined limitations period because the evidence as to 
whether the union had majority status at the time of the initial 
recognition becomes increasingly unreliable as more time passes.\152\
---------------------------------------------------------------------------

    \152\ In the preamble to Sec.  103.22, the Board stated that 
courts had expressed doubts regarding sec. 10(b)'s applicability to 
challenges to a construction-industry union's purported 9(a) status. 
See American Automatic Sprinkler Systems, 163 F.3d 209, 218 fn. 6 
(4th Cir. 1998). However, other courts have expressly approved it. 
See Triple C Maintenance, 219 F.3d 1147, 1156-1159 (10th Cir. 2000); 
NLRB v. Triple A Fire Protection, 136 F.3d 727, 736-737 (11th Cir. 
1998); see also Sheet Metal Workers' Intern. Assn. Local 19 v. Herre 
Bros., Inc., 201 F.3d 231, 241 (3d Cir. 1999). Notably, the D.C. 
Circuit has explicitly declined to decide this issue because the 
Board, in a case where the limitations period was raised, had not 
relied on sec. 10(b) as a basis for finding that the union's 9(a) 
status could not be challenged. Nova Plumbing, 330 F.3d at 539.
---------------------------------------------------------------------------

    The Board is inclined to believe that Sec.  103.22 should be 
rescinded in toto. In promulgating Sec.  103.22, the Board clearly 
recognized--albeit after the issuance of its NPRM--that it had to 
overrule Casale. In the preamble to Sec.  103.22, the Board 
acknowledged that Sec.  103.22 is inconsistent with Casale. We presume 
that the Board would not have enacted Sec.  103.22 without also 
overruling Casale. The Board stated in the preamble that ``most 
significant[ ]'' to its reason for enacting Sec.  103.22 is that 
requiring an election petition to be filed within 6 months from the 
initial recognition discounts the importance of employee free choice. 
In reaching that conclusion, however, the Board did not solicit 
comments from stakeholders and the public about the effects of 
overruling Casale because the Board did not propose such a monumental 
modification in its NPRM. The Board failed to give stakeholders and the 
public the opportunity to comment on--and for the Board to consider--
the deleterious and destabilizing impact on collective-bargaining 
relationships in the construction industry by potentially allowing 
collective-bargaining agreements to be challenged at any time.
    Furthermore, the Board is inclined to believe that the unique 
nature of section 8(f) and the highly fact-specific circumstances under 
which parties in the construction industry seek to establish a 9(a) 
relationship make adjudication--rather than rulemaking--a better method 
for developing and, when necessary, reconsidering on a case-by-case 
basis the rules that govern how parties in the construction industry 
demonstrate a union's 9(a) status. The Board welcomes comments on the 
suitability of adjudication versus rulemaking in this area.
    Accordingly, the Board is inclined to believe, subject to comments, 
that the overruling of Casale and the adoption of Sec.  103.22 does not 
further the policies and purposes of the Act and should be rescinded.

V. Conclusion

    Our dissenting colleagues were part of the Board that issued the 
April 2020 final rule at a time when the Board consisted of a three-
member quorum without any dissenting views.\153\ Our

[[Page 66915]]

dissenting colleagues express many of the same criticisms of the 
Board's prior blocking-charge policy, voluntary-recognition bar 
doctrine, and standards for determining whether construction-industry 
bargaining relationships are governed by section 8(f) or 9(a) that they 
expressed in the 2020 final rule. We have expressed our preliminary 
view that the Act's purposes of promoting stable collective bargaining 
and employee free choice in Board elections are better served by the 
Board's traditional standards than by the approaches taken in the 2020 
final rule.
---------------------------------------------------------------------------

    \153\ As mentioned above, then-Member McFerran dissented from 
the 2019 NPRM that resulted in the 2020 final rule before her prior 
term expired on December 19, 2019. She was reappointed August 10, 
2020, after the publication of the 2020 Rule.
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    The Board welcomes public comment on all aspects of its proposed 
rule. We look forward to receiving and reviewing the public's comments 
and, afterward, considering these issues afresh with the good-faith 
participation of all members of the Board.

VI. Dissenting View of Members Kaplan and Ring

    Two-and-a-half years ago, the Board issued a final rule (``the 2020 
Rule'') that made three well-advised changes to our rules and 
regulations.\154\ As discussed in greater detail below, the amendments 
modified the Board's blocking-charge policy to eliminate the primary 
cause of delay in the conduct of representation elections; overruled 
Lamons Gasket \155\ and reinstated the framework the Board adopted in 
Dana Corp.\156\ to afford employees an opportunity to file a petition 
for a secret-ballot election \157\ following their employer's voluntary 
recognition of a labor organization; and specified the proof of 
majority support necessary to demonstrate that a bargaining 
relationship in the construction industry, presumed to have been 
established under section 8(f) of the Act, has instead been established 
through voluntary recognition under section 9(a) of the Act.\158\ The 
2020 Rule, known as the ``Election Protection Rule,'' was designed to 
``better protect employees' statutory right of free choice on questions 
concerning representation by removing unnecessary barriers to the fair 
and expeditious resolution of such questions through the preferred 
means of a Board-conducted secret-ballot election.'' 85 FR 18366. In 
our considered judgment, the 2020 Rule has been a hard-won success. As 
with the final rule on joint-employer status under the Act, achieving 
this success required the expenditure of considerable Agency resources 
to thoroughly consider, analyze, and respond to numerous public 
comments.
---------------------------------------------------------------------------

    \154\ Representation-Case Procedures: Election Bars; Proof of 
Majority Support in Construction-Industry Collective-Bargaining 
Relationships, 85 FR 18366 (Apr. 1, 2020) (codified at 29 CFR 103.20 
et seq.).
    \155\ 357 NLRB 934 (2011).
    \156\ 351 NLRB 434 (2007).
    \157\ In Board parlance, representation-election petitions filed 
by labor organizations are classified as RC petitions and those 
filed by employers are RM petitions; decertification petitions filed 
by an individual employee are called RD petitions.
    \158\ Sec. 8(f) of the Act refers to ``an employer engaged 
primarily in the building and construction industry.'' 29 U.S.C. 
158(f). In the interest of simplicity, throughout this dissent we 
use the shorthand ``construction industry'' and ``construction 
employer.''
---------------------------------------------------------------------------

    Today, however, with their Notice of Proposed Rulemaking 
(``NPRM''), the majority sets in motion a project to do it all over 
again with the express aim of reversing all the progress made just two 
years ago. Our colleagues point to no changed circumstances as 
justification for the about-face. To the contrary, this NPRM is simply 
the product of a new Board majority's disagreement with the 2020 Rule, 
which they propose to rescind not because they must, but because they 
can. One unfortunate consequence of this change is needless policy 
oscillation that tends to upset the settled expectations of the 
Agency's stakeholders. Worse, the rule our colleagues propose would be 
clearly inferior to the 2020 Rule, inasmuch as the proposed rule would 
undermine the very policy of employee free choice on which the 2020 
Rule is predicated. Claiming themselves to be the true advocates of 
employee free choice, our colleagues would reverse all the employee 
free choice protections embodied in the 2020 Rule. We cannot 
countenance the majority's unjustified policy reversals and therefore 
must respectfully dissent. After supplying some general background on 
Board representation law, we discuss and respond to each of these 
policy reversals in turn.

A. General Background

    Section 9(c) of the Act provides that the Board ``shall direct an 
election by secret ballot'' if the Board finds that a question of 
representation exists. The Supreme Court has repeatedly recognized that 
Congress granted the Board wide discretion under the Act to ensure that 
employees are able freely and fairly to choose whether to be 
represented by a labor organization and, if so, which one. E.g., NLRB 
v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969). The Court has observed 
that ``[t]he control of the election proceedings, and the determination 
of the steps necessary to conduct that election fairly were matters 
which Congress entrusted to the Board alone.'' NLRB v. Waterman S.S. 
Corp., 309 U.S. 206, 226 (1940). Importantly, in NLRB v. A.J. Tower 
Co., the Court stated that ``the Board must act so as to give effect to 
the principle of majority rule set forth in [section] 9(a), a rule that 
`is sanctioned by our governmental practices, by business procedure, 
and by the whole philosophy of democratic institutions.' '' 329 U.S. 
324, 331 (1946) (quoting S. Rep. No. 74-573, at 13). ``It is within 
this democratic framework,'' the Court continued, ``that the Board must 
adopt policies and promulgate rules and regulations in order that 
employees' votes may be recorded accurately, efficiently and 
speedily.'' Id.
    Representation-case procedures are set forth in the Act and in the 
Board's regulations and caselaw. In addition, the Board's General 
Counsel maintains a non-binding Casehandling Manual describing 
representation-case procedures in detail.\159\ The Act itself contains 
only one express limitation on the timing of otherwise valid election 
petitions. Section 9(c)(3) provides that ``[n]o election shall be 
directed in any bargaining unit or any subdivision within which, in the 
preceding twelve-month period, a valid election shall have been held.'' 
The Board instituted through adjudication a parallel limitation 
precluding, with limited exceptions, an electoral challenge to a 
union's representative status for one year from the date the union is 
certified following its selection by a majority of employees in an 
appropriate bargaining unit in a valid Board election. The Supreme 
Court approved this certification-year bar in Brooks v. NLRB, 348 U.S. 
96 (1954). Through adjudication, the Board also created several 
additional discretionary bars to the timely processing of a properly 
supported election petition, including the ``blocking charges'' bar, 
the voluntary-recognition bar, and the contract bar. Concerned that 
these additional election bars were unreasonably interfering with 
employees' statutorily protected rights, the Board refined each one in 
the 2020 Rule. As further discussed below, the proposed rule 
imprudently seeks to reverse each of these refinements, at the expense 
of employee free choice.\160\
---------------------------------------------------------------------------

    \159\ NLRB Casehandling Manual (Part Two) Representation 
Proceedings.
    \160\ The 2020 Rule also revised the standard of proof required 
to establish a 9(a) bargaining relationship in the construction 
industry, again to protect employee free choice. As with the 
election bars, the proposed rule would also undermine the 2020 
Rule's protections.

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[[Page 66916]]

B. Discussion

1. The Blocking-Charge Policy
    For decades, the Board's blocking-charge policy was exploited to 
frustrate the timely exercise by employees of their right to vote--most 
often, when they sought to vote whether to decertify their incumbent 
bargaining representative in a secret-ballot election. The policy 
enabled this by permitting unions to block the processing of a pending 
decertification petition by filing an unfair labor practice charge, 
regardless of whether the charge was meritorious. The 2020 Rule 
modified the blocking-charge policy to facilitate the timely exercise 
of employees' electoral rights, while at the same time ensuring that no 
election results can or will be certified where unfair labor practices 
have interfered with the free exercise of those rights. Today, the 
majority proposes undoing these changes and resurrecting the pre-2020 
Rule blocking-charge policy. While unions will be pleased, employees 
who have become dissatisfied with their incumbent representative 
predictably will not--and it is employees to whom the Act gives rights.
a. Background
    The blocking-charge policy dates from shortly after the Act went 
into effect. See United States Coal & Coke Co., 3 NLRB 398 (1937). A 
product of adjudication,\161\ the policy permits a party--almost 
invariably a union and most often in response to an RD petition--to 
block an election indefinitely by filing unfair labor practice charges 
that allegedly create doubt as to the validity of the election petition 
or the ability of employees to make a free and fair choice concerning 
representation while the charges remain unresolved. Under this policy, 
petitioned-for elections can be blocked for months, or even years--and 
the election may never be held at all. See, e.g., Cablevision Systems 
Corp., 367 NLRB No. 59 (2018) (blocking charge followed by regional 
director's misapplication of settlement-bar doctrine delayed processing 
until December 19, 2018, of valid RD petition filed on October 16, 
2014; employee petitioner thereafter withdrew petition).
---------------------------------------------------------------------------

    \161\ Except for certain evidentiary requirements, discussed 
below, that are set forth in Sec.  103.20 of the Board's Rules and 
Regulations, the pre-2020 Rule blocking-charge policy was not 
codified. A detailed description of the prior version of the policy 
appears in the non-binding NLRB Casehandling Manual (Part Two) 
Representation, Sec. 11730-11734 (August 2007). In brief, the policy 
afforded regional directors discretion to hold election petitions in 
abeyance or to dismiss them based on the request of a charging party 
alleging either unfair labor practice conduct that ``interferes with 
employee free choice'' (a Type I charge) or conduct that ``not only 
interferes with employee free choice but also is inherently 
inconsistent with the petition itself'' (a Type II charge). Sec. 
11730.1.
---------------------------------------------------------------------------

    The adverse impact on employee RD (and employer RM) petitions 
resulting from the Board's blocking-charge policy, and the potential 
for abuse and manipulation of that policy by incumbent unions seeking 
to avoid a challenge to their representative status, have drawn 
criticism from numerous courts of appeals. See NLRB v. Hart Beverage 
Co., 445 F.2d 415, 420 (8th Cir. 1971) (``[I]t appears clearly 
inferable to us that one of the purposes of the [u]nion in filing the 
unfair practices charge was to abort [r]espondent's petition for an 
election, if indeed, that was not its only purpose.''); Templeton v. 
Dixie Color Printing Co., 444 F.2d 1064, 1069 (5th Cir. 1971) (``The 
short of the matter is that the Board has refused to take any notice of 
the petition filed by appellees and by interposing an arbitrary 
blocking[-]charge practice, applicable generally to employers, has held 
it in abeyance for over 3 years. As a consequence, the appellees have 
been deprived during all this time of their statutory right to a 
representative `of their own choosing' to bargain collectively for 
them, 29 U.S.C. 157, despite the fact that the employees have not been 
charged with any wrongdoing. Such practice and result are intolerable 
under the Act and cannot be countenanced.''); NLRB v. Midtown Service 
Co., 425 F.2d 665, 672 (2d Cir. 1970) (``If . . . the charges were 
filed by the union, adherence to the [blocking-charge] policy in the 
present case would permit the union, as the beneficiary of the 
[e]mployer's misconduct, merely by filing charges to achieve an 
indefinite stalemate designed to perpetuate the union in power. If, on 
the other hand, the charges were filed by others claiming improper 
conduct on the part of the [e]mployer, we believe that the risk of 
another election (which might be required if the union prevailed but 
the charges against the [e]mployer were later upheld) is preferable to 
a three-year delay.''); NLRB v. Minute Maid Corp., 283 F.2d 705, 710 
(5th Cir. 1960) (``Nor is the Board relieved of its duty to consider 
and act upon an application for decertification for the sole reason 
that an unproved charge of an unfair practice has been made against the 
employer. To hold otherwise would put the union in a position where it 
could effectively thwart the statutory provisions permitting a 
decertification when a majority is no longer represented.''); Pacemaker 
Corp v. NLRB, 260 F.2d 880, 882 (7th Cir. 1958) (``The practice adopted 
by the Board is subject to abuse as is shown in the instant case. After 
due notice both parties proceeded with the representation hearing. 
Possibly for some reasons of strategy near the close of the hearing, 
the [u]nion asked for an adjournment. Thereafter it filed a second 
amended charge of unfair labor practice. By such strategy the [u]nion 
was able to and did stall and postpone indefinitely the representation 
hearing.'').
    The potential for delay is the same when employees, instead of 
filing an RD petition, have expressed to their employer a desire to 
decertify an incumbent union representative. In that circumstance, the 
blocking-charge policy can prevent the employer from obtaining a timely 
Board-conducted election to resolve the question concerning 
representation raised by evidence that creates good-faith uncertainty 
as to the union's continuing majority support. Accordingly, the 
supposed ``safe harbor'' of filing an RM election petition that the 
Board majority referenced in Levitz Furniture Co. of the Pacific, 333 
NLRB 717, 726 (2001), as an alternative to the option of withdrawing 
recognition (which the employer selects at its peril) is often 
illusory. As Judge Henderson stated in her concurring opinion in Scomas 
of Sausalito, LLC v. NLRB, it is no ``cure-all'' for an employer with a 
good-faith doubt about a union's majority status to simply seek an 
election because ``[a] union can and often does file a ULP charge--a 
`blocking charge'--`to forestall or delay the election.' '' 849 F.3d 
1147, 1159 (D.C. Cir. 2017) (quoting from Member Hurtgen's concurring 
opinion in Levitz, 333 NLRB at 732).
    Additionally, concerns have been raised about the Board's regional 
directors applying the blocking-charge policy inconsistently, thereby 
creating uncertainty and confusion about when, if ever, parties can 
expect an election to occur. See Zev J. Eigen & Sandro Garofalo, Less 
Is More: A Case for Structural Reform of the National Labor Relations 
Board, 98 Minn. L. Rev. 1879, 1896-1897 (2014) (``Regional directors 
have wide discretion in allowing elections to be blocked, and this 
sometimes results in the delay of an election for months and in some 
cases for years--especially when the union resorts to the tactic of 
filing consecutive unmeritorious charges over a long period of time. 
This is contrary to the central policy of the Act, which is to allow 
employees to freely choose their bargaining representative, or to 
choose not to be represented at all.'').

[[Page 66917]]

    In 2014, the Board engaged in a broad notice-and-comment rulemaking 
review of the then-current rules governing the representation-election 
process. Many, if not most, of the changes that were proposed in the 
February 6, 2014 notice of proposed rulemaking \162\ were focused on 
shortening the time between the filing of a union's RC election 
petition and the date of the election. The final Election Rule, which 
adopted 25 of the proposed changes, issued on December 15, 2014, and 
went into effect the following April. 79 FR 74308 (2014).
---------------------------------------------------------------------------

    \162\ Representation-Case Procedures, 79 FR 7318.
---------------------------------------------------------------------------

    Of particular relevance here, the 2014 NPRM included a ``Request 
for Comment Regarding Blocking Charges.'' The Board did not propose 
changing the then-current blocking-charge policy, but it invited public 
comment on whether any of nine possible changes should be made, either 
as part of a final rule or through means other than amendment of the 
Board's rules.\163\ Extensive commentary was received both in favor of 
retaining the existing policy and of revising or abandoning it. The 
final Election Rule, however, made only minimal revisions in this 
respect. The 2014 Board majority incorporated, in new Sec.  103.20 of 
the Board's Rules and Regulations, provisions requiring that a party 
requesting the blocking of an election based on an unfair labor 
practice charge make a simultaneous offer of proof, provide a witness 
list, and promptly make those witnesses available to the regional 
director. These revisions were viewed as facilitating the General 
Counsel's existing practice of conducting expedited investigations in 
blocking-charge cases. The 2014 majority declined to make any other 
changes in the existing policy, expressing the view that the policy was 
critical to protecting employees' exercise of free choice,\164\ and 
asserting that ``[i]t advances no policy of the Act for the agency to 
conduct an election unless employees can vote without unlawful 
interference.'' \165\ By contrast, dissenting Board Members Miscimarra 
and Johnson criticized the 2014 majority's failure to make more 
significant revisions to the blocking-charge policy, contrasting the 
majority's concern with the impact on employee free choice of election 
delays in initial-representation RC elections with a perceived 
willingness to accept prolonged delay in blocking-charge cases, which 
predominantly involve RD or RM petitions challenging an incumbent 
union's continuing representative status.
---------------------------------------------------------------------------

    \163\ 79 FR 7334-7335.
    \164\ 79 FR 74418-74420, 74428-74429.
    \165\ 79 FR 74429.
---------------------------------------------------------------------------

    A 2015 review of the final Election Rule by Professor Jeffrey M. 
Hirsch excepted the majority's treatment of the blocking-charge policy 
from a generally favorable analysis of the rule revisions. Noting the 
persistent problems with delay and abuse, Professor Hirsch observed 
that ``[t]he Board's new rules indirectly affected the blocking charge 
policy by requiring parties to file an offer of proof to support a 
request for a stay, but that requirement is unlikely to change much, if 
anything. Instead, the Board should have explored new rules such as 
lowering the presumption that favors staying elections in most 
circumstances or setting a cap on the length of stays, either of which 
might have satisfied the blocking charge policy's main purpose while 
reducing abuse.'' \166\
---------------------------------------------------------------------------

    \166\ Jeffrey M. Hirsch, NLRB Elections: Ambush or Anticlimax?, 
64 Emory L.J. 1647, 1664 (2015).
---------------------------------------------------------------------------

b. The 2020 Rule's Modifications to the Blocking-Charge Policy
    To address the concerns with the blocking-charge policy discussed 
above, and to safeguard employee free choice, the 2020 Rule provided 
that an unfair labor practice charge would no longer delay the conduct 
of an election, and it set forth the following rules.
    Where an unfair labor practice charge, filed by the party that is 
requesting to block the election, alleges (1) violations of section 
8(a)(1) and 8(a)(2) or section 8(b)(1)(A) of the Act that challenge the 
circumstances surrounding the petition or the showing of interest 
submitted in support of the petition, or (2) that an employer has 
dominated a union in violation of section 8(a)(2) and seeks to 
disestablish a bargaining relationship, the election will be held and 
the ballots will be impounded for up to 60 days from the conclusion of 
the election. If a complaint issues with respect to the charge at any 
time prior to expiration of that 60-day period, the ballots will 
continue to be impounded until there is a final determination regarding 
the complaint allegation and its effect, if any, on the election 
petition. If the charge is withdrawn or dismissed at any time prior to 
expiration of that 60-day period, or if the 60-day period ends without 
a complaint issuing, the ballots will be promptly opened and counted. 
The 2020 Rule further provides that the 60-day period will not be 
extended, even if more than one unfair labor practice charge is filed 
serially.
    For all other types of unfair labor practice charges, the 2020 Rule 
provided that the ballots will be promptly opened and counted at the 
conclusion of the election, rather than temporarily impounded. Finally, 
for all types of charges upon which a blocking-charge request is based, 
the 2020 Rule clarified that the certification of results (including, 
where appropriate, a certification of representative) will not issue 
until there is a final disposition of the charge and a determination of 
its effect, if any, on the election petition.\167\ 85 FR 18369-18370, 
18399.
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    \167\ Nothing in the 2020 Rule altered the existing requirements 
that only a party to the representation proceeding may file the 
request to block the election process; only unfair labor practice 
charges filed by that party may be the subject of a request to 
block; that party must file a written offer of proof as well as the 
names of witnesses who will testify in support of the charge and a 
summary of each witness's anticipated testimony; and that party must 
promptly make available to the regional director the witnesses 
identified in the offer of proof.
    Citing Rieth-Riley Construction Co., Inc., 371 NLRB No. 109 
(2022), the majority observes that the 2020 Rule ``did not disturb 
the authority of regional directors to dismiss a representation 
petition, subject to reinstatement, under the Board's long-standing 
practice of `merit-determination dismissals.' '' Although we stated 
our agreement there that regional directors retain this authority 
``at least where . . . the regional director has found merit to 
unfair labor practice charges and issued a complaint before the 
petition was filed,'' we were forced to dissent because, inter alia, 
our colleagues erroneously affirmed merit dismissals in the face of 
extraordinary delay and a failure to hold a ``causal nexus'' 
hearing. See Rieth-Riley, supra, slip op. at 8-13 (Members Kaplan 
and Ring, dissenting).
---------------------------------------------------------------------------

    c. Critique of the Majority's Proposed Readoption of the Pre-2020 
Rule Blocking-Charge Policy
    Demonstrating little concern for the previous abuse of the Board's 
blocking-charge policy and the inadequacy of the offer-of-proof 
requirements imposed by the 2014 final Election Rule, our colleagues 
would simply reverse all that was accomplished in the 2020 Rule and 
return the Board to what they refer to as the ``historical'' blocking-
charge policy as modified by the Election Rule. Our colleagues 
ostensibly regard the blocking-charge policy's decades-long endurance 
as a sufficient justification to resurrect the policy without 
modification irrespective of its glaring deficiencies. But in stressing 
the ``historical'' nature of the blocking-charge policy, the majority 
largely dismisses the similarly historical abuse of that policy, which 
also goes back decades. That the ``historical'' blocking-charge policy 
persisted for decades hardly signifies that it was wise or just. Board 
policy and precedent, however historical, need not bind us forever when 
wrong. As the late Supreme Court Justice Oliver Wendell Holmes, Jr. 
said: ``If truth were not often suggested by error, if old implements 
could not be adjusted to new uses, human progress

[[Page 66918]]

would be slow. But scrutiny and revision are justified.'' \168\ 
Regarding the blocking-charge policy, scrutiny and revision were 
clearly justified.
---------------------------------------------------------------------------

    \168\ Oliver Wendell Holmes, Jr., The Common Law 37 (1881).
---------------------------------------------------------------------------

    However well intentioned, the historical blocking-charge policy 
stifled the exercise by employees of their fundamental right, 
guaranteed by the Act, to choose whether to be represented by a labor 
organization and, if so, which one. As the 2020 Rule appropriately 
concluded, the blocking-charge policy ``encourage[d] . . . 
gamesmanship, allowing unions to dictate the timing of an election for 
maximum advantage in all elections presenting a test of representative 
status,'' regardless of the type of petition (RD, RC, or RM) 
filed.\169\ 85 FR 18376 & fn. 81. Moreover, the 2020 Rule appropriately 
concluded that the blocking-charge policy ``denie[d] employees 
supporting a petition the right to have a timely election based on 
charges the merits of which remain to be seen, and many of which will 
turn out to have been meritless.'' Id. at 18377. In the meantime, 
during the extended delay caused by a blocking charge, any momentum in 
support of a valid petition may be lost, and the employee complement 
may substantially turn over.\170\ Id. at 18367, 18374. Thus, in a very 
practical sense, ``employees who support [RD or RM] petitions are just 
as adversely affected by delay as employees who support a union's 
initial petition to become an exclusive bargaining representative.'' 
\171\ 84 FR 39930, 39937 (2019).
---------------------------------------------------------------------------

    \169\ The Board has long been aware of this gamesmanship. Thus, 
Section 11730 of the Board's August 2007 Casehandling Manual for 
representation proceedings states that ``it should be recognized 
that the policy is not intended to be misused by a party as a tactic 
to delay the resolution of a question concerning representation 
raised by a petition.'' Further, the 2014 final Election Rule stated 
that the Board was ``sensitive to the allegation that at times, 
incumbent unions may abuse the policy by filing meritless charges in 
order to delay decertification elections,'' and it sought to address 
that issue by adding the offer-of-proof evidentiary requirements in 
Sec.  103.20 (currently Sec.  103.20(a)) of the Board's Rules and 
Regulations. However, Sec.  103.20(a), standing alone, was not 
adequate to the task of ending gamesmanship through blocking 
charges. We agree with Professor Hirsch's observation that the mere 
offer-of-proof requirement--which the 2020 Rule left undisturbed and 
which the majority apparently believes is, standing alone, 
sufficient to address the threats to employee free choice posed by 
abuse and manipulation--would be ``unlikely to change much, if 
anything.'' See 64 Emory L.J. at 1664. The majority's reliance on 
Associated Builders and Contractors of Texas, Inc. v. NLRB, 826 F.3d 
215, 228 (5th Cir. 2016), as supporting the original Sec.  103.20 is 
misplaced. There, the court did not substantively endorse the 2014 
Election Rule's decidedly modest changes to the blocking-charge 
policy. It merely rejected a facial challenge to the Election Rule 
based on the plaintiffs' failure to carry their ``high burden'' of 
demonstrating either that the Board lacked authority to promulgate 
the rule or that the rule was arbitrary and capricious under the 
Administrative Procedure Act. Id. at 229.
    Significantly, the majority largely downplays and dismisses the 
gamesmanship problem, claiming that ``there has been no showing that 
it was the norm for unions to file frivolous blocking charges to 
postpone elections in RD or RM cases.'' But the majority's claim 
begs the question of exactly how much union abuse of the blocking-
charge policy they would find sufficient to justify taking action to 
prevent it. Our colleagues' suggestion that there is insufficient 
evidence that frivolous blocking charges are ``the norm'' would seem 
to presage the majority's tolerance of a very substantial burden on 
employee free choice before even acknowledging, let alone 
redressing, this harm.
    \170\ The majority cautions that ``the momentum that the [2020 
Rule] seeks to preserve may be entirely illegitimate, as in cases 
where the employer unlawfully initiates the decertification 
petition, or the momentum may be infected by unlawful conduct.'' But 
if the momentum truly is ``illegitimate'' under the hypothetical 
circumstances the majority describes, then the Board will not 
certify the election results. If, however, the momentum is in fact 
legitimate, the 2020 Rule appropriately protects it.
    \171\ As the 2020 Rule recognized, the potential for the 
blocking-charge policy to delay elections also exists ``when 
employees, instead of filing an RD petition, have otherwise 
expressed to their employer a desire to decertify an incumbent union 
representative'' and the employer files an RM petition seeking a 
timely election. Id. at 18367. Consequently, the purported ``safe 
harbor'' afforded employers uncertain of a union's ongoing majority 
support--filing an RM petition rather than withdrawing recognition 
(a perilous option)--is often illusory. See Levitz Furniture Co. of 
the Pacific, supra.
---------------------------------------------------------------------------

    Contrary to the majority, there is nothing improper in recognizing 
the drawbacks of the blocking-charge policy and making changes to 
eliminate them. The Board in the 2020 Rule did precisely that. The 
proposed rule would undo this necessary progress, elevating history 
over substance. Illustrative of this point is our colleagues' heavy 
reliance on the Fifth Circuit's positive perceptions of the historical 
policy nearly fifty years ago.\172\ However, other circuit-court cases 
from that time and much earlier recognized the problems addressed in 
the 2020 Rule. Indeed, the 2020 Rule observed that ``courts of appeals 
have criticized the blocking charge policy's adverse impacts on 
employee RD petitions, as well as the potential for abuse and 
manipulation of that policy by incumbent unions seeking to avoid a 
challenge to their representative status.'' 85 FR 18367 (citing NLRB v. 
Hart Beverage Co., 445 F.2d at 420; Templeton v. Dixie Color Printing 
Co., 444 F.2d at 1069; NLRB v. Midtown Serv. Co., 425 F.2d at 672; NLRB 
v. Minute Maid Corp., 283 F.2d at 710; Pacemaker Corp. v. NLRB, 260 
F.2d at 882).
---------------------------------------------------------------------------

    \172\ See generally Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 
1974).
---------------------------------------------------------------------------

    In plotting a return to the ``historical'' blocking-charge policy, 
the majority stresses their view that this policy ``enabled the Board 
to fulfill one of its core obligations: to preserve laboratory 
conditions for ascertaining employee choice during Board-conducted 
elections.'' Our colleagues claim that ``it would undermine employee 
rights, and would run counter to the Board's duty to conduct elections 
in circumstances in which employees may freely choose whether to be 
represented by a union, if the Board were to require regional directors 
to conduct, and employees to vote in, a coercive atmosphere.'' They add 
that by ``shielding employees from having to vote under coercive 
conditions, the historical blocking charge policy would seem to be more 
compatible with the policies of the Act and the Board's responsibility 
to provide laboratory conditions for ascertaining employee choice 
during Board-conducted elections.'' In other words, our colleagues view 
the mere act of conducting an election--in the face of unlitigated and 
unproven accusations \173\--as injurious to employee free choice. This 
supposed imperative of ``shielding employees'' from voting at all in 
what the majority deems a ``coercive atmosphere''--even though the 2020 
Rule guarantees that any coerced electoral result will not be given 
legal effect--runs like a leitmotif through the majority's 
justification for the proposed rule. We disagree that the mere 
possibility that a choice may be compromised justifies blocking 
employees from exercising their right to make that choice altogether.
---------------------------------------------------------------------------

    \173\ The majority faults the 2020 Rule for its purported 
``skepticism toward regional director administrative determinations 
in this context,'' which they claim is ``in considerable tension 
with Congress' decision to authorize regional directors to 
administratively decide when elections should be conducted in the 
first place and when the results of elections should be certified in 
[s]ection 3(b) of the Act.'' Our colleagues miss the point. 
Initially, it warrants mention that section 3(b) authorizes the 
Board to delegate this authority to regional directors, subject to 
Board review. The Board has done so, and we have no quarrel with 
that delegation. At issue here is whether the Board should block 
employees from voting in a Board-supervised election based on an 
initial administrative determination that has not been fully 
adjudicated. In our considered view, employee free choice is best 
served by the 2020 Rule's procedures permitting employees to vote, 
and then relying on the relevant administrative determinations to 
decide whether and when ballots should be impounded (in certain 
types of cases) or certifications issued. Additionally, promptly 
holding elections helps prevent employees from mistakenly inferring 
that unproven unfair labor practice allegations necessarily have 
merit.
---------------------------------------------------------------------------

    We fully recognize, as has the Supreme Court, that it is the ``duty 
of the Board . . . to establish the procedure and safeguards necessary 
to insure the fair and free choice of bargaining representatives by

[[Page 66919]]

employees.'' NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973) 
(internal quotation marks omitted). In this connection, the Board has 
long held that ``[a]n election can serve its true purpose only if the 
surrounding conditions enable employees to register a free and 
untrammeled choice for or against a bargaining representative.'' 
General Shoe Corp., 77 NLRB 124, 126 (1948). To that end, ``[i]n 
election proceedings, it is the Board's function to provide a 
laboratory in which an experiment may be conducted, under conditions as 
nearly ideal as possible, to determine the uninhibited desires of the 
employees.'' Id. at 127. It does not follow, however, that where it has 
merely been alleged--not found--that an employer has engaged in conduct 
that might affect the freedom of an electoral choice, the answer is to 
prevent employees from making any choice at all. To begin with, the 
Board in General Shoe emphasized that it had ``sparingly'' exercised 
its power to ``set an election aside and direct[ ] a new one,'' saving 
that remedy for election misconduct ``so glaring that it is almost 
certain to have impaired employees' freedom of choice.'' Id. at 126 
(emphasis added). Board law is therefore clear that employees are to be 
afforded the opportunity in an election to make a ``free and 
untrammeled choice ''of bargaining representative, with ``choice'' 
being the operative word.
    Collectively choosing to select or reject a bargaining 
representative through the Board's electoral processes necessarily 
entails voting in an election that is eventually certified and given 
legal effect. Under the General Shoe standard, the Board will set aside 
an election--i.e., deny it legal effect--where employees were denied 
the opportunity to make a free and uncoerced choice. See id. Without an 
uncoerced and therefore legally valid vote, there can be no effective 
choice of bargaining representative. In such circumstances, the 
question of representation raised by the election petition is 
preliminarily answered but not resolved.\174\ Assuming unfair labor 
practice charges filed during the pendency of an election petition are 
subsequently determined to be meritorious, if the election result is 
not given legal effect--and the 2020 Rule ensures it will not be--then 
employees' right to make a free and uncoerced choice has not been 
abridged. In contrast to the 2020 Rule, the proposed rule would 
indefinitely block employees from registering any choice at all based 
on charges that have not been (and may never be) found meritorious and 
that may even have been filed merely to delay an election in hopes of 
preserving the union's representative status.
---------------------------------------------------------------------------

    \174\ Our colleagues fault the 2020 Rule for requiring the 
conduct of certain ``elections that will not resolve the question of 
representation because they were conducted under coercive 
circumstances, . . . [thereby] run[ning] the risk of imposing 
unnecessary costs on the parties and the Board.'' In agreement with 
the 2020 Rule, we consider ``any consequential costs [to be] worth 
the benefits secured'' of safeguarding employee free choice by 
conducting petitioned-for elections. 85 FR 18378. Indeed, ``one of 
the principal duties of the Board is to resolve questions of 
representation by holding elections, and that duty is not discharged 
where the Board does not process a representation petition, 
especially where there is no legitimate basis for delaying an 
election.'' Id. In any event, ``it is clearly not the case that 
unfair labor practices alleged in a charge, even if meritorious, 
will invariably result in a vote against union representation. If 
the union prevails despite those unfair labor practices, there will 
be no second election.'' Id.
    Moreover, conducting elections and, in most cases under the 2020 
Rule, promptly counting the ballots is likely to facilitate 
settlement of the relevant unfair labor practice charges, thereby 
leading to cost savings for the parties and the Board. Contrary to 
the majority's claim that the 2020 Rule permits ``the worthy 
administrative goal of promoting settlement'' to ``trump the 
fundamental statutory policy'' of employee free choice, the 2020 
Rule actually promotes both the statutory policy of employee free 
choice and the administrative goal of promoting settlement. The 
majority's false dichotomy between these policy aims distorts the 
2020 Rule. The majority also speculates that ``knowledge of the 
provisional election outcome may perversely incentivize cases not to 
settle where a party deems that vote tally so valuable to its 
interests that it makes it efficient to litigate a long-shot legal 
theory in the unfair labor practice case.'' This is nonsense. There 
is no reason to presume that a party would press forward with a 
dubious legal theory in an unfair labor practice case--and assume 
the resulting litigation costs--merely to keep alive the equally 
dubious hope of obtaining a certification of favorable provisional 
election results. Hope may spring eternal, but a fool's hope is an 
unsound litigation strategy.
---------------------------------------------------------------------------

    The majority's claim that the potential for employees to vote in a 
``coercive atmosphere'' necessarily inhibits employee free choice 
overlooks the fact that under their proposal, employees may be deprived 
of the opportunity to register any choice at all. The majority 
``recognize[s] that blocking elections based on nonmeritorious charges 
may result in some delay,'' but asserts that ``the benefits of not 
allowing elections to proceed under the clouds of an unfair labor 
practice far outweigh any such delay.'' In other words, the majority 
believes that because some unfair labor practice charges prove 
meritorious and that where this is the case, an election, if allowed to 
proceed, would be conducted under unfair labor practice ``clouds,'' 
every election should be blocked whenever a properly supported blocking 
charge is filed, even though this means that elections will be blocked 
when there is not a cloud in the sky. This is rather like saying that 
all baseball games should be delayed indefinitely because some games, 
if played, would be called on account of rain. We believe the game 
should proceed unless and until clouds actually gather and rain 
actually falls--or to drop the simile, we would adhere to the 2020 
Rule, permitting elections to proceed and intervening to set aside the 
results if and when an unfair labor practice charge proves meritorious. 
Without ascribing motives to our colleagues, we cannot avoid observing 
that their preferred approach does make it easier for incumbent unions 
bent on self-preservation to frustrate the will of the majority. 
Safeguarding employees' access to the ballot box remains a compelling 
reason why the amendments to the blocking-charge policy made in the 
2020 Rule were (and still are) necessary.
    Further, as the 2020 Rule appropriately recognized, ``the concerns 
raised about the harm that employees would suffer by voting in an 
election that is later set aside are overstated and can be addressed by 
the prophylactic post-election procedures of certification stays and, 
in some cases, impounding ballots, set forth in the [2020 Rule].'' 85 
FR 18378. The effectiveness of these procedures cannot be attacked 
without calling into question decades of Board decisions. For nearly 
the entirety of the Act's existence, the Board has set aside elections 
based on meritorious objections and has ordered second elections. See, 
e.g., Paragon Rubber Co., 7 NLRB 965, 966 (1938). In many of those 
cases, the objectionable conduct was an unfair labor practice. Based on 
the Board's extensive experience in handling election objections, it 
defies reason to suggest that employee free choice in a second election 
will invariably be affected by a union's prior election loss set aside 
based on unfair labor practices. That has not been the case in many 
rerun elections where employees have voted for union representation in 
a second or even third election.\175\ 85 FR 18378. We therefore 
disagree with our colleagues that the mere filing of an unfair labor 
practice charge alleging conduct that, if proven, would create a 
``coercive atmosphere''

[[Page 66920]]

as a matter of law imposes a ``duty'' on the Board not to conduct an 
election. On the contrary, as noted above, the Board has a duty ``to 
resolve questions of representation by holding elections, and that duty 
is not discharged where the Board does not process a representation 
petition, especially where there is no legitimate basis for delaying an 
election.'' Id. If the union loses the election and the allegation 
proves meritorious, the election results are set aside. Thus, any 
potential ``coercive atmosphere'' is fully dealt with under the Board's 
existing representation rules, including the procedures set forth in 
the 2020 Rule.\176\
---------------------------------------------------------------------------

    \175\ The majority overstates the risk of employees refusing to 
vote for the union in a rerun election after the union's loss in an 
initial election held ``under coercive conditions'' occasioned by a 
meritorious unfair labor practice. Employees voting in second (or 
third) elections under noncoercive conditions, i.e., after the 
unfair labor practices were fully remedied, have repeatedly 
demonstrated a willingness to consider union representation. In 
addition, given the Board's experience in successfully conducting 
rerun elections, there is no basis for our colleagues' assumption 
that doing so consistent with the 2020 Rule will ``threaten 
industrial peace.'' By their logic, any rerun election could 
threaten industrial peace.
    \176\ The Board also remains free to redress the harm from 
certain serious unfair labor practices by issuing a general 
bargaining order. See generally NLRB v. Gissel Packing Co., 395 U.S. 
575 (1969). Our colleagues claim to have discovered an incongruity 
between the 2020 Rule ``requiring elections in all cases no matter 
the severity of the employer's unfair labor practices [and] the 
Supreme Court's approval in Gissel of the Board's practice of 
withholding an election and issuing a bargaining order'' in certain 
serious cases. No such incongruity exists because, pursuant to the 
2020 Rule, elections conducted under coercive conditions based on 
relevant meritorious unfair labor practices paired with a request to 
block will not be given legal effect and can be rerun or, where 
circumstances warrant, replaced with an affirmative bargaining order 
consistent with Gissel. See 85 FR 18380 (``If the charge is found to 
have merit in a final Board determination, we will set aside the 
election and either order a second election or issue an affirmative 
bargaining order, depending on the nature of the violation or 
violations found to have been committed.'').
---------------------------------------------------------------------------

    The majority additionally claims that ``opening and counting 
ballots submitted under coercive circumstances, yet refusing to certify 
the results, will, at best, confuse employees and, at worst, actively 
mislead them by conveying a materially false impression of union 
support.'' But unions will be highly motivated to explain to employees 
why election results have not been certified and should be disregarded. 
The reason is easy to understand; apparently our colleagues have less 
faith in employees' intelligence than we do. Moreover, despite a 
regional director's investigatory determination of merit, the relevant 
charge may well turn out to have been meritless after a full 
adjudication before the Board, meaning that the ballots for that case 
would not have been ``submitted under coercive circumstances.'' See 85 
FR 18377. Similarly, where a regional director's investigation results 
in a relevant charge's dismissal, employee ballots in such a case 
plainly would not have been ``submitted under coercive circumstances,'' 
and it is entirely appropriate that employees promptly learn the 
election results in that case. Additionally, our colleagues discount 
the benefit to employees (and to their confidence in the Board's 
processes) of promptly learning the results of an election in which 
they voted. Where a statutory question of representation exists, 
employees should be entitled to a prompt answer to that question, even 
where unfair labor practice charges later deemed meritorious delay the 
final resolution of the question.
    Rejecting the 2020 Rule's concern with safeguarding employee free 
choice by conducting elections in the face of meritless unfair labor 
practice charges, the majority rather audaciously asserts that the 
historical blocking-charge policy ``best preserved employee free choice 
in representation cases in which petitions are blocked because of 
concurrent unfair labor practice charges,'' even though some employees 
might never get to vote due to a blocked petition. See, e.g., Geodis 
Logistics, LLC, 371 NLRB No. 102 (2022) (blocking charge delayed 
elections for four years; employee petitioner no longer employed in 
unit); Cablevision Systems Corp., 367 NLRB No. 59 (2018) (blocking 
charge followed by regional director's misapplication of settlement-bar 
doctrine delayed processing until December 19, 2018, of valid RD 
petition filed on October 16, 2014; employee petitioner thereafter 
withdrew petition). Indeed, the passage of time while a charge is 
blocked, and the attendant turnover in the workforce of employees 
opposed to a particular union, inures to the benefit of unions 
attempting to preserve their representative status, at the expense of 
employee choice. The majority dismisses the 2020 Rule's concern for 
such employees by pointing out the obvious fact that some turnover is 
``unavoidable'' over the days and weeks between a petition's filing and 
the election. In doing so, our colleagues discount the potential for 
blocking charges to cause years of delay, during which extensive 
employee turnover is all too likely.
    Taking the debate from the obvious to the absurd, the majority 
faults the 2020 Rule for failing to ``explain why employees who are no 
longer in the workforce should be given a say in determining whether 
current employees should be represented during the period when the 
petition is held in abeyance pending a determination of the merits of 
the charge.'' Of course, this argument misses the point entirely. The 
point is not that former employees should get a say in current 
employees' electoral choice. Rather, to the extent practicable, 
employees employed at the time a petition is filed should get the 
opportunity to promptly express a choice of representative. The 
majority, by contrast, would rather assist unions facing possible 
ouster by facilitating election delay while the union waits for its 
opponents to head for the exits and works to rebuild support among the 
undecideds. They criticize the 2020 Rule for ``prioritiz[ing] speedy 
elections over employee free choice in order to maximize the likelihood 
that those employed at the time of the petition filing will be able to 
vote in an election,'' but their criticism rests on a false dichotomy 
between ``speedy elections'' and ``employee free choice.'' It's not an 
either/or, but a both/and. The 2020 Rule facilitates prompt elections 
and safeguards employee free choice, for all the reasons we have 
explained. Moreover, a prompt opportunity for employees to vote in a 
Board election itself safeguards employee free choice.\177\ See NLRB v. 
A.J. Tower Co., 329 U.S. at 331 (observing that ``within [the] 
democratic framework'' of section 9(c) of the Act, ``the Board must 
adopt policies and promulgate rules and regulations in order that 
employees' votes may be recorded accurately, efficiently and speedily'' 
(emphasis added)). Finally, the majority asserts that employee turnover 
will necessarily occur in the event an unfair labor practice charge 
proves meritorious and a rerun election is directed. But that result is 
acceptable where a charge has merit. The goal should be to limit 
employee turnover resulting from blocking petitions for extended 
periods based on any and every unproven and potentially meritless 
allegation of employer conduct that could interfere with employee free 
choice or taint the petition.
---------------------------------------------------------------------------

    \177\ The majority invites us to re-litigate the reasonable 
amendments made to the Board's representation procedures through a 
prior 2019 rulemaking. See Representation-Case Procedures, 84 FR 
69524 (Dec. 18, 2019). We decline this invitation. The unrelated 
2019 rulemaking sought to balance the complementary aims of 
electoral efficiency, transparency, and accuracy. Insofar as our 
colleagues would juxtapose an extension of the critical period by a 
few weeks by operation of the 2019 amendments with their proposal 
here to restore the blocking charge policy's ability to halt the 
critical period and delay an election for years, this is a 
comparison of incommensurables.
---------------------------------------------------------------------------

    Next, the majority makes the fantastical claim that the 2020 Rule's 
modification of the blocking-charge policy to permit elections to be 
conducted despite pending unfair labor practice charges somehow 
``creates a perverse incentive for unscrupulous employers to commit 
unfair labor practices'' because, in our colleagues' estimation, the 
``predicable results'' of such unlawful conduct will be (1) the 
expenditure of unions' resources on

[[Page 66921]]

elections that ``will not reflect the uninhibited desires of the 
employees,'' and (2) ``a sense among employees that seeking to exercise 
their [s]ection 7 rights is futile.'' This fallacious parade of 
horribles leads nowhere. It defies reason that employers would 
deliberately expose their businesses to unfair labor practice 
litigation and liability, and the financial consequences thereof, 
merely to compel unions to expend resources on an election that the 
union might well win. In any event, such employers would themselves 
presumably have to commit resources to an election. Additionally, we 
reject the premise that holding an election (but not immediately 
certifying the results) in the face of pertinent unfair labor practice 
charges necessarily imbues employees with a sense of futility regarding 
the exercise of their section 7 rights--rights that include being able 
to cast a vote for or against representation in a Board-supervised, 
secret-ballot election. Indeed, the majority completely discounts the 
futility that a decertification petitioner and other supporters of that 
petition must feel when forced to wait for years to vote in an 
election, assuming they are ever afforded the opportunity to do so. 
Lastly, the majority effectively presumes an abuse of process that is 
not known to have occurred, which stands in stark contrast to the 
recognized abuse of the Board's processes by unions seeking to preserve 
their representative status--an abuse that, according to our 
colleagues, does not merit curative action unless it is shown to be 
``the norm.''
    Finally, our colleagues state that they are ``concerned'' with 
claimed errors in certain data considered in the notice of proposed 
rulemaking preceding the 2020 Rule. The Board appropriately responded 
to these concerns in the 2020 Rule as follows: ``Even accepting those 
claims as accurate, the remaining undisputed statistics substantiate 
the continuing existence of a systemic delay that supports our policy 
choice to modify the current blocking-charge procedure that does not, 
and need not, depend on statistical analysis.'' 85 FR 18377. Further, 
the Board, quoting the AFL-CIO's comment, observed that ``[b]locking 
elections delays elections. That is undeniably true and requires no 
`statistical evidence' to demonstrate.'' Id. Finally, the Board 
reiterated that ``anecdotal evidence of lengthy blocking charge delays 
in some cases, and judicial expressions of concern about this, remain 
among the several persuasive reasons supporting a change that will 
assure the timely conduct of elections without sacrificing protections 
against election interference.'' Id. We agree. As the majority 
acknowledges, the Board is ``free to make a policy choice that does not 
primarily rely . . . on statistical data'' and ``may make policy 
decisions for which the data does not provide the answer.'' The Board 
did so in the 2020 Rule--and now, at the unfortunate expense of the 
gains in safeguarding employee free choice made there, the majority 
claims the right to do so in this NPRM.
    For all the reasons set forth above, the 2020 Rule's modifications 
to the Board's blocking-charge policy were prompted by real and serious 
abuses, and they successfully addressed those abuses. Those 
modifications should be retained. Instead, the majority proposes 
rescinding them. We cannot join them in taking this step and therefore, 
we dissent.
2. The Voluntary-Recognition Bar
    When it comes to ascertaining whether a union enjoys majority 
support, a Board-conducted election is superior to union-authorization 
cards for several reasons, not least of which is that in the former, 
employees vote by secret ballot, whereas an employee presented with a 
card for signature makes an observable choice and is therefore 
susceptible to group pressure. For this reason and others, discussed 
below, the 2020 Rule reinstated a framework, previously adopted through 
adjudication, that provides employees a limited window period, 
following their employer's card-based voluntary recognition of a union 
as their bargaining representative, within which to petition for a 
secret-ballot election, and during which the start of the voluntary-
recognition election bar is paused until that window closes without a 
petition being filed. We believe this aspect of the 2020 Rule 
appropriately balances the sometimes-competing policies of labor-
relations stability and employee free choice. Our colleagues propose 
throwing out this valuable framework. Because their proposal strikes 
the wrong balance, at the expense of employee free choice, we dissent.
a. Background
    Longstanding precedent holds that a ``Board election is not the 
only method by which an employer may satisfy itself as to the union's 
majority status [under section 9(a) of the Act].'' United Mine Workers 
v. Arkansas Flooring Co., 351 U.S. 62, 72 fn. 8 (1956). Voluntary-
recognition agreements based on a union's showing of majority support 
are undisputedly lawful. NLRB v. Gissel Packing Co., 395 U.S. at 595-
600. However, it was not until Keller Plastics Eastern, Inc., 157 NLRB 
583 (1966), that the Board addressed the issue of whether a section 
9(a) bargaining relationship established by voluntary recognition can 
be disrupted by the recognized union's subsequent loss of majority 
status. Although the union in Keller Plastics had lost majority support 
by the time the parties executed a contract little more than three 
weeks after voluntary recognition, the Board rejected the General 
Counsel's claim that the employer was violating the Act by continuing 
to recognize a nonmajority union as the employees' representative. The 
Board reasoned that ``like situations involving certifications, Board 
orders, and settlement agreements, the parties must be afforded a 
reasonable time to bargain and to execute the contracts resulting from 
such bargaining. Such negotiations can succeed, however, and the 
policies of the Act can thereby be effectuated, only if the parties can 
normally rely on the continuing representative status of the lawfully 
recognized union for a reasonable period of time.'' Id. at 586. Shortly 
thereafter, the Board extended this recognition-bar policy to 
representation cases and held that an employer's voluntary recognition 
of a union would immediately bar the filing of an election petition for 
a reasonable amount of time following recognition. Sound Contractors, 
162 NLRB 364 (1966).
    From 1966 until 2007, the Board tailored the duration of the 
immediate recognition bar to the circumstances of each case, stating 
that what constitutes a reasonable period of time ``does not depend 
upon either the passage of time or the number of calendar days on which 
the parties met. Rather, the issue turns on what transpired during 
those meetings and what was accomplished therein.'' Brennan's Cadillac, 
Inc., 231 NLRB 225, 226 (1977). In some cases, a few months of 
bargaining were deemed enough to give the recognized union a fair 
chance to succeed, whereas in other cases substantially more time was 
deemed warranted. Compare Brennan's Cadillac (finding employer entitled 
to withdraw recognition after 4 months), with MGM Grand Hotel, 329 NLRB 
464, 466 (1999) (finding a bar period of more than 11 months was 
reasonable considering the large size of the unit, the complexity of 
the bargaining structure and issues, the parties' frequent meetings and 
diligent efforts, and the substantial progress made in negotiations).
    In Dana Corp., 351 NLRB 434 (2007), a Board majority reviewed the 
development of the immediate

[[Page 66922]]

recognition-bar policy and concluded that it ``should be modified to 
provide greater protection for employees' statutory right of free 
choice and to give proper effect to the court- and Board-recognized 
statutory preference for resolving questions concerning representation 
through a Board secret-ballot election.'' Id. at 437.\178\
---------------------------------------------------------------------------

    \178\ The 2007 Dana decision followed a decision granting 
review, consolidating two cases, and inviting briefing by the 
parties and amici on the voluntary recognition-bar issue. Dana 
Corp., 341 NLRB 1283 (2004). In response, the Board received 24 
amicus briefs, including one from the Board's General Counsel, in 
addition to briefs on review and reply briefs from the parties. Dana 
Corp., 351 NLRB at 434 fn. 2.
---------------------------------------------------------------------------

    Drawing on the General Counsel's suggestion in his amicus brief of 
a modified voluntary-recognition election bar, the Dana majority held 
that ``[t]here will be no bar to an election following a grant of 
voluntary recognition unless (a) affected unit employees receive 
adequate notice of the recognition and of their opportunity to file a 
Board election petition within 45 days, and (b) 45 days pass from the 
date of notice without the filing of a validly-supported petition. 
These rules apply notwithstanding the execution of a collective-
bargaining agreement following voluntary recognition. In other words, 
if the notice and window-period requirements have not been met, any 
[post-recognition] contract will not bar an election.'' 351 NLRB at 
441. The recognition-bar modifications did not affect the obligation of 
an employer to bargain with the recognized union during the post-
recognition open period, even if a decertification or rival petition 
was filed. Id. at 442.
    The Dana majority emphasized ``the greater reliability of Board 
elections'' as a principal reason for the announced modification. Dana 
Corp., 351 NLRB at 438. In this respect, while a majority card showing 
has been recognized as a reliable basis for the establishment of a 
section 9(a) bargaining relationship, authorization cards--as the 
Supreme Court has found--are ``admittedly inferior to the election 
process.'' NLRB v. Gissel Packing Co., 395 U.S. at 603. Several reasons 
were offered in support of this conclusion. ``First, unlike votes cast 
in privacy by secret Board election ballots, card signings are public 
actions, susceptible to group pressure exerted at the moment of 
choice.'' Dana Corp., 351 NLRB at 438. This is in contrast to a secret-
ballot vote cast in the ``laboratory conditions'' of a Board election, 
held ``under the watchful eye of a neutral Board agent and observers 
from the parties,'' \179\ and free from immediate observation, 
persuasion, or coercion by opposing parties or their supporters. 
``Second, union card-solicitation campaigns have been accompanied by 
misinformation or a lack of information about employees' 
representational options.'' Id. Particularly in circumstances where 
voluntary recognition is preceded by an employer entering into a 
neutrality agreement with the union, which may include an agreement to 
provide the union access to the workplace for organizational purposes, 
employees may not understand they even have an electoral option or an 
alternative to representation by the organizing union. Id. ``Third, 
like a political election, a Board election presents a clear picture of 
employee voter preference at a single moment. On the other hand, card 
signings take place over a protracted period of time.'' Id. A 
statistical study cited in several briefs and by the Dana majority 
indicated a significant disparity between union card showings of 
support obtained over a period of time and ensuing Board election 
results. Id. (citing McCulloch, A Tale of Two Cities: Or Law in Action, 
Proceedings of ABA Section of Labor Relations Law 14, 17 (1962)). 
Lastly, the Board election process provides for post-election review of 
impermissible electioneering and other objectionable conduct, which may 
result in the Board invalidating the election results and conducting a 
second election. Id. at 439. ``There are no guarantees of comparable 
safeguards in the voluntary recognition process.'' Id.
---------------------------------------------------------------------------

    \179\ Id. at 439.
---------------------------------------------------------------------------

    In Lamons Gasket Company, 357 NLRB 739 (2011),\180\ a new Board 
majority overruled Dana Corp. and reinstated the immediate voluntary-
recognition election bar. The Lamons Gasket majority emphasized the 
validity of voluntary recognition as a basis for establishing a section 
9(a) majority-based recognition. Further, citing Board statistical 
evidence that employees had decertified the voluntarily recognized 
union in only 1.2 percent of the total cases in which a Dana notice was 
requested,\181\ the majority concluded that Dana's modifications to the 
voluntary-recognition bar were unnecessary and that the Dana majority's 
concerns about the reliability of voluntary recognition as an accurate 
indicator of employee choice were unfounded. The Lamons Gasket majority 
criticized the Dana notice procedure as compromising Board neutrality 
by ``suggest[ing] to employees that the Board considers their choice to 
be represented suspect and signal[ing] to employees that their choice 
should be reconsidered.'' Id. at 744. The majority opinion also 
defended the voluntary-recognition bar as consistent with other 
election bars that are based on a policy of assuring that `` `a 
bargaining relationship once rightfully established must be permitted 
to exist and function for a reasonable period in which it can be given 
a fair chance to succeed.' '' Id. (quoting Franks Bros. Co. v. NLRB, 
321 U.S. 702, 705 (1944)). The majority viewed the Dana 45-day open 
period as contrary to this policy by creating a period of post-
recognition uncertainty during which an employer has little incentive 
to bargain, even though technically required to do so. Id. at 747. 
Finally, having determined that a return to the immediate recognition-
bar policy was warranted, the Lamons Gasket majority applied its 
holding retroactively. In addition, based on the Board's decision in 
Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), enfd. 310 
F.3d 209 (D.C. Cir. 2002), the majority defined the reasonable period 
of time during which a voluntary recognition would bar an election as 
no less than six months and no more than one year from the date of the 
parties' first bargaining session. Lamons Gasket, supra at 748.\182\
---------------------------------------------------------------------------

    \180\ Similar to the Dana proceeding, the 2011 Lamons Gasket 
decision followed a decision granting review, consolidating two 
cases, and inviting briefing by the parties and amici on the 
voluntary-recognition-bar issue. Rite Aid Store #6473, 355 NLRB 763 
(2010). In response, the Board received 17 amicus briefs, in 
addition to briefs on review and reply briefs from the parties. 
Lamons Gasket, 357 NLRB at 740 fn. 1.
    \181\ ``As of May 13, 2011, the Board had received 1,333 
requests for Dana notices. In those cases, 102 election petitions 
were subsequently filed and 62 elections were held. In 17 of those 
elections, the employees voted against continued representation by 
the voluntarily recognized union, including 2 instances in which a 
petitioning union was selected over the recognized union and 1 
instance in which the petition was withdrawn after objections were 
filed. Thus, employees decertified the voluntarily recognized union 
under the Dana procedures in only 1.2 percent of the total cases in 
which Dana notices were requested.'' Id. at 742.
    \182\ Under Lamons Gasket, the recognition bar takes effect 
immediately, but the reasonable period for bargaining does not begin 
to run until the parties' first bargaining session. Accordingly, the 
bar period may well continue for more than one year from the date 
recognition is extended--longer than the certification-year bar 
following a union election win, which runs from the date the union 
is certified (assuming the employer does not unlawfully refuse to 
bargain with the certified union).
---------------------------------------------------------------------------

    Then-Member Hayes dissented in Lamons Gasket,\183\ arguing that 
Dana was correctly decided for the policy reasons stated there, most 
importantly the statutory preference for a secret-ballot Board election 
to resolve questions of representation under

[[Page 66923]]

section 9 of the Act. He noted that the Lamons Gasket majority's 
efforts to secure empirical evidence of Dana's shortcomings by inviting 
briefs from the parties and amici ``yielded a goose egg.'' Id. at 750 
(``Only five respondents sought to overturn Dana, and only two of them 
supported their arguments for doing so with the barest of anecdotal 
evidence.'') (footnotes omitted). Consequently, the only meaningful 
empirical evidence came from the Board's own election statistics. In 
this regard, Member Hayes disagreed with the majority's view that the 
number of elections held and votes cast against the recognized union 
proved the Dana modifications were unnecessary. He pointed out that the 
statistics showed that in one of every four elections held, an employee 
majority voted against representation by the incumbent recognized 
union. While that 25-percent rejection rate was below the recent annual 
rejection rate for all decertification elections, it was nevertheless 
substantial and supported retention of a notice requirement and brief 
open period. Id. at 751.
---------------------------------------------------------------------------

    \183\ Id. at 748-754.
---------------------------------------------------------------------------

    Under Lamons Gasket, the imposition of the immediate recognition 
bar, followed by the execution of a collective-bargaining agreement 
resulting in a contract bar,\184\ can preclude the possibility of 
conducting a Board election contesting the initial non-electoral 
recognition of a union as employees' exclusive bargaining 
representative for as many as four years. Indeed, because under Lamons 
Gasket the recognition-bar period begins to run only when the parties 
first meet to bargain, which may be months after recognition is 
granted, a secret-ballot election may be barred for more than four 
years.
---------------------------------------------------------------------------

    \184\ Collective-bargaining agreements may bar the processing of 
an election petition for a period of up to three years, insulating a 
union from challenges to its majority status during that period. See 
General Cable Corp., 139 NLRB 1123, 1125 (1962).
---------------------------------------------------------------------------

b. The 2020 Rule's Modifications to the Voluntary-Recognition Bar
    The 2020 Rule largely reinstated the Dana notice period, including 
the 45-day open period during which a valid election petition may be 
filed challenging an employer's voluntary recognition of a labor 
organization. However, in response to certain comments, the Board 
modified the Dana framework in several respects. First, the Dana notice 
period applies only to voluntary recognition extended on or after the 
effective date of the 2020 Rule and to the first collective-bargaining 
agreement reached after such voluntary recognition. Second, the 2020 
Rule clarified that the employer ``and/or'' labor organization must 
notify the Regional Office that recognition has been granted. Third, in 
contrast to the 2019 proposed rule, the 2020 Rule specified where the 
notice should be posted (i.e., ``in conspicuous places, including all 
places where notices to employees are customarily posted''), eliminated 
the 2019 proposed rule's specific reference to the right to file ``a 
decertification or rival-union petition'' and instead referred 
generally to ``a petition,'' added a requirement that an employer 
distribute the notice to unit employees electronically if the employer 
customarily communicated with its employees by such means, and set 
forth the wording of the notice. 85 FR 18370, 18399-18400.
c. Critique of the Majority's Proposed Return to the Immediate 
Voluntary-Recognition Bar
    The majority proposes to rescind current Sec.  103.21 of the 
Board's Rules and Regulations--adopted in the 2020 Rule--and return, 
purportedly, the Board's recognition-bar jurisprudence to the law as it 
existed under Lamons Gasket, supra, i.e., an immediate recognition bar 
that lasts a minimum of six months and a maximum of one year, not from 
the date recognition is granted, but from the date of the parties' 
first bargaining session--followed, of course, by a contract bar of up 
to three years if the parties execute a collective-bargaining 
agreement.\185\ Our colleagues' reasons for doing so contain few 
surprises. Predictably, they refuse to acknowledge the 2020 Rule's 
essential contribution to the statutory policy of safeguarding employee 
free choice, claiming instead that the Lamons Gasket rule allowing no 
opportunity for a Board-supervised election immediately following a 
voluntary recognition better serves the freedom of employees to choose 
their representatives. For reasons explained below, our colleagues err 
in proposing this counterproductive change.
---------------------------------------------------------------------------

    \185\ We say ``purportedly'' because the majority appears 
willing to go further than the Lamons Gasket Board in restricting 
employee free choice. The Board there provided, in accordance with 
Smith's Food & Drug Center, 320 NLRB 844 (1996), that ``voluntary 
recognition of one union will not bar a petition by a competing 
union if the competing union was actively organizing the employees 
and had a 30-percent showing of interest at the time of 
recognition.'' 357 NLRB at 745 fn. 22. Citing ``the importance of 
stability to newly-established collective-bargaining 
relationships,'' the majority seeks public comment regarding 
``whether the Board should continue to process, consistent with 
Smith's Food, a representation petition filed by a competing union 
that had a 30-percent showing of interest at the time of recognition 
or bar the processing of such a petition.''
    Additionally, the majority takes the unnecessary step of seeking 
public comment on whether the Board ``should adopt as part of the 
Board's Rules and Regulations a parallel rule to apply in the unfair 
labor practice context, prohibiting an employer--which otherwise 
would be privileged to withdraw recognition based on the union's 
loss of majority support--from withdrawing recognition from a 
voluntarily-recognized union, before a reasonable period for 
collective bargaining has elapsed.'' To do so would reach beyond 
representation law and have nothing to do with protecting elections, 
contrary to the very name our colleagues have adopted for their 
proposed rulemaking. In a different context--regarding Board 
precedent, discussed below, that permits a sec. 9(a) bargaining 
relationship in the construction industry to be created based on 
contract language alone--the 2020 Rule majority, of which we were 
members, refrained from reaching beyond representation-law limits. 
Apparently, our colleagues do not share our sense of restraint. 
Nevertheless, because the majority does not presently propose 
codifying Keller Plastics, supra, we need not consider the merits of 
this issue now.
---------------------------------------------------------------------------

    Initially, based on the Board's statistical data discussed above 
from the years Dana was in effect, as well as similar post-2020 Rule 
data, the majority asserts that these data ``seem[ ] to show that 
voluntary recognition almost always reflects employee free choice 
accurately,'' such that the 2020 Rule ``imposes requirements that 
burden collective bargaining without producing commensurate benefits in 
vindicating employee free choice of bargaining representatives.'' The 
majority continues that ``[s]uch a disproportionate waste of party and 
Board resources cannot be justified by reference to Federal labor 
policy, which favors voluntary recognition.'' There is much to unpack 
in these noticeably slanted assertions.
    Regarding the majority's supposedly data-driven argument that the 
2020 Rule fails to ``vindicat[e] employee free choice'' inasmuch as 
successful electoral overrides of voluntary recognition appear rare, 
our colleagues fail to say how many electorally overturned voluntary 
recognitions it would take to warrant retaining the modified Dana 
framework. Might a five percent override rate do so in our colleagues' 
view? How about ten percent? The majority's position begs the question 
of how many employees must be effectively disenfranchised and saddled 
with a bargaining representative lacking majority support before they 
will leave the current framework alone.
    Employees should have the right to test the validity of a voluntary 
recognition. The Board need not and should not accept possibly 
unsupported voluntary recognitions at any frequency, particularly 
considering that a simple procedure to prevent them is available and 
already in place. In any event, the data showing infrequent overrides 
of voluntary recognitions cut both ways.

[[Page 66924]]

Thus, not only do the data show a legally significant error rate, but 
the majority's characterization of this rate as low suggests that the 
Dana framework undermines neither the voluntary-recognition process nor 
the statutory policies the majority discusses as supporting it (e.g., 
``encouraging collective bargaining and preserving stability in labor 
relations''). Additionally, we agree with the view expressed in the 
2020 Rule that the Dana framework ``serve[s] its intended purpose of 
assuring employee free choice in all . . . cases at the outset of a 
bargaining relationship based on voluntary recognition, rather than 1 
to 4 years or more later,'' and that ``giving employees an opportunity 
to exercise free choice in a Board-supervised election without having 
to wait years to do so is . . . solidly based on and justified by . . . 
policy grounds.'' 85 FR 18383.\186\ Indeed, the majority acknowledges 
that ``the Board's approach to the voluntary-recognition bar has 
varied, [and] the Board [and the Federal courts] consistently [have] 
viewed the issue as presenting a policy choice for the Board to make.''
---------------------------------------------------------------------------

    \186\ We disagree with our colleagues' suggestion that due to 
early bargaining accomplishments, pre-election campaigning, or 
employee turnover, ``an election loss by the recognized union does 
not affirmatively suggest that at the time it was recognized, the 
union lacked majority support.'' Even accepting, arguendo, the 
majority's premise, the collection of authorization cards is 
similarly asynchronous, yet the majority does not question whether, 
at the moment of a union's demand for recognition, all employees who 
signed cards still (or ever did) support the employer's recognition 
of the union as their exclusive bargaining representative. The 
possibility that employees who sign authorization cards (or, for 
that matter, disaffection petitions) will change their minds is very 
real and has been the cause of some dispute between the Board and 
reviewing courts. See, e.g., Johnson Controls, Inc., 368 NLRB No. 20 
(2019) (discussing employees who sign both a disaffection petition 
and authorization card); Struthurs-Dunn, Inc., 228 NLRB 49, 49 
(1977) (holding authorization card not effectively revoked until 
union notified of revocation), enf. denied 574 F.2d 796 (3d Cir. 
1978).
    But in any event, our colleagues miss the point here. The Dana 
framework readopted (with modifications) in the 2020 Rule is not 
designed to cast doubt on the validity of voluntary recognition, but 
to afford employees the opportunity to test the union's majority 
support--and the validity of the resulting voluntary recognition--
through the statutorily-preferred method of a Board-supervised 
election. The election process allows a test of majority support at 
a given moment in time, whereas authorization cards may be gathered 
over weeks or months without regard to whether the card signers 
continue to support the union by the time a demand for recognition 
is made (unless the card signers affirmatively requested the return 
of their signed cards).
---------------------------------------------------------------------------

    Moreover, the majority distorts the 2020 Rule to claim that the 
Dana framework is a ``waste of party and Board resources [that] cannot 
be justified by reference to [F]ederal labor policy, which favors 
voluntary recognition.'' Our colleagues miss the mark. Even as the 2020 
Rule clearly acknowledged that ``voluntary recognition and voluntary-
recognition agreements are lawful,'' \187\ both the NLRA and the courts 
have made plain that a Board-supervised election is ``the Act's 
preferred method for resolving questions of representation.'' Id. Thus, 
``the election-year bar and the greater statutory protections accorded 
to a Board-certified bargaining representative implicitly reflect 
congressional intent to encourage the use of Board elections as the 
preferred means for resolving questions concerning representation.'' 
Id. Indeed, our colleagues concede ``the implicit statutory preference 
for Board elections (insofar as certain benefits are conferred only on 
certified unions).'' Additionally, both the Board and the courts have 
long recognized that secret-ballot elections are superior to voluntary 
recognition at protecting employees' section 7 freedom to choose, or 
not choose, a bargaining representative.\188\ See, e.g., Linden Lumber 
Div. v. NLRB, 419 U.S. 301, 304 (1974); NLRB v. Gissel Packing Co., 395 
U.S. at 602; Transp. Mgmt. Servs. v. NLRB, 275 F.3d 112, 114 (D.C. Cir. 
2002); NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 1380, 1383 (2d Cir. 
1973); Levitz Furniture Co. of the Pacific, 333 NLRB at 727; 
Underground Service Alert, 315 NLRB 958, 960 (1994). As the United 
States Supreme Court has stated, ``secret elections are generally the 
most satisfactory--indeed the preferred--method of ascertaining whether 
a union has majority support.'' NLRB v. Gissel Packing Co., 395 U.S. at 
602. Although voluntary recognition is a valid method of obtaining 
recognition, authorization cards used in a card-check recognition 
process are ``admittedly inferior to the election process.'' Id. at 
603.\189\
---------------------------------------------------------------------------

    \187\ Id. at 18381 and cases cited.
    \188\ 85 FR 18381.
    \189\ Despite citing Gissel for the proposition that union-
authorization cards constitute ``a freely interchangeable substitute 
for elections where there has been no election interference,'' the 
majority concedes, as it must, that the Court did not reach this 
issue but found only that the cards were sufficiently reliable 
``where a fair election probably could not have been held, or where 
an election that was held was in fact set aside.'' Id. at 601 fn. 
18.
---------------------------------------------------------------------------

    The majority further claims that the notice requirement ``invites'' 
the filing of an election petition and that the language of the 
required notice itself ``indicate[s] [that], by not filing a petition, 
employees effectively have chosen to reaffirm their original choice to 
be represented by the union'' and ``make[s] clear that if employees do 
not seek a Board election, then they have assented to the validity of 
the voluntary recognition.'' \190\
---------------------------------------------------------------------------

    \190\ In making these claims, the majority relies on the 
following language from the notice: ``If no petition is filed within 
the 45-day window period, the Union's status as the unit employees' 
exclusive bargaining representative will be insulated from challenge 
for a reasonable period of time, and if [Employer] and [Union] reach 
a collective-bargaining agreement during that insulated reasonable 
period, an election cannot be held for the duration of that 
collective-bargaining agreement, up to 3 years.''
---------------------------------------------------------------------------

    Contrary to our colleagues, we find no fault in requiring notice to 
employees that their employer has recognized a particular union and 
informing them of their right to test that union's support--or to 
support a different union with the requisite showing of interest--
through the statutorily-preferred method of a Board-supervised 
election. Further, the notice language of the 2020 Rule (Sec.  103.21 
of the Board's Rules and Regulations) clearly informs employees of 
their right to seek an election for a variety of purposes, not simply 
to obtain a decertification election. On this point--and contrary, 
moreover, to the majority's claim that the notice requirement 
``invites'' employees to file a petition--the notice language clearly 
states that the Board ``does not endorse any choice about whether 
employees should keep the recognized union, file a petition to certify 
the recognized union, file a petition to decertify the recognized 
union, or support or oppose a representation petition filed by another 
union.'' 85 FR 18400. The 2020 Rule also states that it ``does not 
encourage, much less guarantee, the filing of a petition.'' Id. at 
18384. The message is plain: file a petition, don't file a petition, 
file any one of a variety of petitions--it's all the same to us. 
Finally, regarding the majority's claim that, by failing to file an 
election petition within the 45-day window, employees ``effectively 
have chosen to reaffirm their original choice to be represented by the 
union'' and ``assented to the validity of the voluntary recognition,'' 
our colleagues plainly misapprehend the 2020 Rule's required notice 
language. The notice merely explains that absent an election petition's 
filing within the 45-day window period, ``the Union's status as the 
unit employees' exclusive bargaining representative will be insulated 
from challenge'' pursuant to the recognition bar (and also pursuant to 
the contract bar if a contract is agreed to during the insulated 
period). Id. An employee's failure to challenge the validity of a 
voluntary recognition by filing a petition is not tantamount to 
``assenting to the validity'' of that voluntary recognition. The notice 
does

[[Page 66925]]

not indicate that ``silence is acceptance,'' as can occur under certain 
circumstances in contract law. It merely informs employees of the legal 
effect, under longstanding law, of voluntary recognition--a legal 
effect temporarily delayed to afford employees an opportunity to avail 
themselves of the Board's electoral processes, should they wish to do 
so. Thus, the choice not to file a petition is more akin to a waiver of 
the legal right to challenge the union's exclusive-representative 
status for ``a reasonable period of time'' under the recognition bar, 
and up to three more years in the case of the contract bar. See id. The 
majority's assertions otherwise are aimed at validating their reliance 
on data apparently demonstrating a low incidence of electoral overrides 
of voluntary recognitions as compared to the total number of voluntary 
recognition notices requested over certain time periods.
    Finally, the majority claims that the 2020 Rule ``undisputedly 
rejects the premise that newly established bargaining relationships 
must be given a fair chance to succeed in the context of voluntary 
recognition,'' contrary to the central rationale underlying other Board 
bar doctrines that protect new bargaining relationships. As a result, 
our colleagues claim, the 2020 Rule undermines the labor-relations 
stability necessary to negotiate and administer collective-bargaining 
agreements between parties to new bargaining relationships established 
through voluntary recognition. But the 2020 Rule's 45-day window, which 
the majority claims is rarely used in any event, hardly rejects the 
premise that new bargaining relationships must have an opportunity to 
succeed. After the window closes without a petition being filed, the 
recognition bar takes effect. Further, if, as the majority claims, 
``voluntary recognition almost always reflects employee free choice 
accurately,'' it is difficult to ascertain how the 2020 Rule 
``undermines the stability'' of bargaining relationships. The majority 
cannot have it both ways. If Sec.  103.21's voluntary-recognition 
notice procedure affects relatively few bargaining relationships 
established through voluntary recognition, then the benefit to employee 
free choice of retaining that procedure clearly outweighs any modest 
burden caused by a few employees deciding to vindicate their statutory 
rights through the preferred method of a Board election.\191\ Moreover, 
as the 2020 Rule observed, there was ``no evidence in the record for 
this rulemaking that Dana had any meaningful impact on the negotiation 
of bargaining agreements during the open period or on the rate at which 
agreements were reached after voluntary recognition.'' Id. at 
18384.\192\
---------------------------------------------------------------------------

    \191\ Relatedly, to the extent that a pending election petition 
might ``cause unions to spend more time campaigning or working on 
election-related matters rather than doing substantive work on 
behalf of employees,'' this is ``a reasonable trade-off for 
protecting employees' ability to express their views in a secret-
ballot election.'' 85 FR 18384-18385.
    \192\ Implicitly acknowledging this dearth of evidence, the 
majority ``invite[s] public comment on the effect of Sec.  103.21 on 
collective-bargaining negotiations.''
---------------------------------------------------------------------------

3. Proof of Majority-Based Recognition Under Section 9(a) in the 
Construction Industry
    Under section 9 of the Act, employees choose union representation. 
However, under extant Board precedent applicable to unfair labor 
practice cases-- Staunton Fuel & Material, 335 NLRB 717 (2001)--unions 
and employers in the construction industry can install a union as the 
section 9(a) representative of the employer's employees through 
contract language alone, regardless of whether those employees have 
chosen it as such, and indeed, even if the employer has no employees at 
all when it enters into that contract.\193\ The 2020 Rule overruled 
Staunton Fuel for representation-case purposes, and the majority now 
proposes to reinstate it. Nobody can be in suspense as to whether that 
proposal will be adopted in a final rule, since the majority just 
reaffirmed Staunton Fuel for unfair-labor-practice-case purposes.\194\ 
Readers of the proposed rule will search in vain, however, for a full-
throated endorsement of Staunton Fuel. Our colleagues largely walk away 
from Staunton Fuel, focusing instead on its procedural sidekick, Casale 
Industries.\195\ The reason is not far to seek: the Court of Appeals 
for the District of Columbia Circuit has rejected Staunton Fuel, 
repeatedly and emphatically.\196\ We agree with the D.C. Circuit's 
criticisms of that decision, and we would retain this aspect of the 
2020 Rule as well.
---------------------------------------------------------------------------

    \193\ See Enright Seeding, Inc., 371 NLRB No. 127, slip op. at 
11 & fn. 8 (2022) (Member Ring, dissenting) (citing cases).
    \194\ Enright Seeding, supra.
    \195\ 311 NLRB 951 (1993).
    \196\ See Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 
2003); Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031, 1038 
(D.C. Cir. 2018).
---------------------------------------------------------------------------

a. Background
    In 1959, Congress enacted section 8(f) of the Act to address unique 
characteristics of employment and bargaining practices in the 
construction industry. Section 8(f) permits an employer and labor 
organization in the construction industry to establish a collective-
bargaining relationship in the absence of majority support, an 
exception to the majority-based requirements for establishing a 
collective-bargaining relationship under section 9(a). While the 
impetus for this exception to majoritarian principles stemmed primarily 
from the fact that construction-industry employers often executed pre-
hire agreements with labor organizations in order to assure a reliable, 
cost-certain source of labor referred from a union hiring hall for a 
specific job, the exception applies as well to voluntary recognition 
and collective-bargaining agreements executed by a construction-
industry employer that has a stable cohort of employees. However, the 
second proviso to section 8(f) states that any agreement that is lawful 
only because of that section's nonmajority exception cannot bar a 
petition for a Board election. Accordingly, there cannot be a contract 
bar or voluntary-recognition bar to an election among employees covered 
by an 8(f) agreement.
    Board precedent has evolved with respect to the standard for 
determining whether a bargaining relationship and a collective-
bargaining agreement in the construction industry are governed by 
section 9(a) majoritarian principles or by section 8(f) and its 
exception to those principles. In 1971, the Board adopted a 
``conversion doctrine,'' under which a bargaining relationship 
initially established under section 8(f) could convert into a 9(a) 
relationship by means other than a Board election or majority-based 
voluntary recognition. See R.J. Smith Construction Co., 191 NLRB 693 
(1971), enf. denied sub nom. Operating Engineers Local 150 v. NLRB, 480 
F.2d 1186 (D.C. Cir. 1973); Ruttmann Construction Co., 191 NLRB 701 
(1971). As subsequently described in John Deklewa & Sons, 282 NLRB 
1375, 1378 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 
F.2d 770 (3d Cir. 1988), R.J. Smith and Ruttmann viewed a section 8(f) 
agreement as `` `a preliminary step that contemplates further action 
for the development of a full bargaining relationship' '' (quoting from 
Ruttmann, 191 NLRB at 702). This preliminary 8(f) relationship/
agreement could convert to a 9(a) relationship/agreement, within a few 
days or years later, if the union could show that it had achieved 
majority support among bargaining-unit employees during a contract 
term. ``The achievement of majority support required no notice, no 
simultaneous union claim of majority, and no assent by the employer to

[[Page 66926]]

complete the conversion process.'' Id. Proof of majority support 
sufficient to trigger conversion included ``the presence of an enforced 
union-security clause, actual union membership of a majority of unit 
employees, as well as referrals from an exclusive hiring hall.'' Id. 
The duration and scope of the post-conversion contract's applicability 
under section 9(a) would vary, depending upon the scope of the 
appropriate unit (single or multiemployer) and the employer's hiring 
practices (project-by-project or permanent and stable workforce). Id. 
at 1379.
    The Deklewa Board made fundamental changes in the law governing 
construction-industry bargaining relationships and set forth new 
principles that are relevant to the 2020 Rule. First, it repudiated the 
conversion doctrine as inconsistent with statutory policy and 
Congressional intent expressed through the second proviso to section 
8(f) ``that an 8(f) agreement may not act as a bar to, inter alia, 
decertification or rival union petitions.'' Id. at 1382. Contrary to 
this intent, the ``extraordinary'' conversion of an original 8(f) 
agreement into a 9(a) agreement raised ``an absolute bar to employees' 
efforts to reject or to change their collective-bargaining 
representative,'' depriving them of the ``meaningful and readily 
available escape hatch'' assured by the second proviso. Id. Second, the 
Board held that 8(f) contracts and relationships are enforceable 
through section 8(a)(5) and section 8(b)(3) of the Act, but only for as 
long as the contract remains in effect. Upon expiration of the 
contract, ``either party may repudiate the relationship.'' Id. at 1386. 
Further, inasmuch as section 8(f) permits an election at any time 
during the contract term, ``[a] vote to reject the signatory union will 
void the 8(f) agreement and will terminate the 8(f) relationship. In 
that event, the Board will prohibit the parties from reestablishing the 
8(f) relationship covering unit employees for a 1-year period.'' Id. 
Third, the Board presumed that collective-bargaining agreements in the 
construction industry are governed by section 8(f), so that ``a party 
asserting the existence of a 9(a) relationship bears the burden of 
proving it.'' Id. at 1385 fn. 41. Finally, stating that ``nothing in 
this opinion is meant to suggest that unions have less favored status 
with respect to construction industry employers than they possess with 
respect to those outside the construction industry,'' the Board 
affirmed that a construction-industry union could achieve 9(a) status 
through ``voluntary recognition accorded . . . by the employer of a 
stable workforce where that recognition is based on a clear showing of 
majority support among the union employees, e.g., a valid card 
majority.'' Id. at 1387 fn. 53.
    The Deklewa Board's presumption of 8(f) status for construction-
industry relationships did not preclude the possibility that a 
relationship undisputedly begun under section 8(f) could become a 9(a) 
relationship upon the execution of a subsequent agreement. In cases 
applying Deklewa, however, the Board repeatedly stated the requirement, 
both for initial and subsequent agreements, that in order to prove a 
9(a) relationship, a union would have to show `` `its express demand 
for, and an employer's voluntary grant of, recognition to the union as 
bargaining representative based on a contemporaneous showing of union 
support among a majority of employees in an appropriate unit.' '' 
Brannan Sand & Gravel Co., 289 NLRB 977, 979-980 (1988) (quoting 
American Thoro-Clean, Ltd., 283 NLRB 1107, 1108-1109 (1987)). Further, 
in J & R Tile, 291 NLRB 1034, 1036 (1988), the Board held that, to 
establish voluntary recognition, there must be ``positive evidence that 
a union unequivocally demanded recognition as the employees' 9(a) 
representative and that the employer unequivocally accepted it as 
such.'' Golden West Electric, 307 NLRB 1494, 1495 (1992) (citing J & R 
Tile, supra).\197\
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    \197\ In an Advice Memorandum issued after J & R Tile, the 
Board's General Counsel noted record evidence that the employer in 
that case ``clearly knew that a majority of his employees belonged 
to the union, since he had previously been an employee and a member 
of the union. However, the Board found that in the absence of 
positive evidence indicating that the union sought, and the employer 
thereafter granted, recognition as the 9(a) representative, the 
employer's knowledge of the union's majority status was insufficient 
to take the relationship out of [s]ection 8(f).'' In re Frank W. 
Schaefer, Inc., Case 9-CA-25539, 1989 WL 241614.
---------------------------------------------------------------------------

    However, in Staunton Fuel & Material, 335 NLRB at 719-720, the 
Board, for the first time, held that a union could prove 9(a) 
recognition by a construction-industry employer on the basis of 
contract language alone without any other ``positive evidence'' of a 
contemporaneous showing of majority support. Relying on two recent 
decisions by the United States Court of Appeals for the Tenth 
Circuit,\198\ the Board held that language in a contract is 
independently sufficient to prove a 9(a) relationship ``where the 
language unequivocally indicates that (1) the union requested 
recognition as the majority or 9(a) representative of the unit 
employees; (2) the employer recognized the union as the majority or 
9(a) bargaining representative; and (3) the employer's recognition was 
based on the union's having shown, or having offered to show, evidence 
of its majority support.'' Id. at 720. The Board found that this 
contract-based approach ``properly balances [s]ection 9(a)'s emphasis 
on employee choice with [s]ection 8(f)'s recognition of the practical 
realities of the construction industry.'' Id. at 719. Additionally, the 
Board stated that under the Staunton Fuel test, ``[c]onstruction unions 
and employers will be able to establish 9(a) bargaining relationships 
easily and unmistakably where they seek to do so.'' Id.
---------------------------------------------------------------------------

    \198\ NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147 (10th 
Cir. 2000); NLRB v. Oklahoma Installation Co., 219 F.3d 1160 (10th 
Cir. 2000).
---------------------------------------------------------------------------

    On review of a subsequent Board case applying Staunton Fuel, the 
United States Court of Appeals for the District of Columbia Circuit 
sharply disagreed with the Board's analysis. Nova Plumbing, Inc. v. 
NLRB, 330 F.3d at 531, granting review and denying enforcement of Nova 
Plumbing, Inc., 336 NLRB 633 (2001). Relying heavily on the 
majoritarian principles emphasized by the Supreme Court in Int'l 
Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961), the D.C. 
Circuit stated that ``[t]he proposition that contract language standing 
alone can establish the existence of a section 9(a) relationship runs 
roughshod over the principles established in Garment Workers, for it 
completely fails to account for employee rights under sections 7 and 
8(f). An agreement between an employer and union is void and 
unenforceable, Garment Workers holds, if it purports to recognize a 
union that actually lacks majority support as the employees' exclusive 
representative. While section 8(f) creates a limited exception to this 
rule for pre-hire agreements in the construction industry, the statute 
explicitly preserves employee rights to petition for decertification or 
for a change in bargaining representative under such contracts. 29 
U.S.C. 158(f). The Board's ruling that contract language alone can 
establish the existence of a section 9(a) relationship--and thus 
trigger the three-year `contract bar' against election petitions by 
employees and other parties--creates an opportunity for construction 
companies and unions to circumvent both section 8(f) protections and 
Garment Workers' holding by colluding at the expense of employees and 
rival unions. By focusing exclusively on employer and union intent, the 
Board has neglected its fundamental obligation to protect employee 
section 7 rights, opening the

[[Page 66927]]

door to even more egregious violations than the good faith mistake at 
issue in Garment Workers.'' 330 F.3d at 536-537.
    Notwithstanding the court's criticism in Nova Plumbing, until the 
2020 Rule the Board had adhered to Staunton Fuel's holding that certain 
contract language, standing alone, can establish a 9(a) relationship in 
the construction industry. Indeed, as noted above, the current majority 
has recently reaffirmed that holding. See Enright Seeding, Inc., 371 
NLRB No. 127 (2022).\199\
---------------------------------------------------------------------------

    \199\ Member Ring relevantly dissented, explaining that Staunton 
Fuel was wrongly decided and should be overruled for the reasons 
stated in the 2020 Rule and here. Enright Seeding, Inc., 371 NLRB 
No. 127, slip op. at 8-14. As Member Ring observed, the Board 
should, at the least, commit to resolving its long-running and 
irreconcilable disagreement with the D.C. Circuit by seeking Supreme 
Court review when that court inevitably denies enforcement of the 
decision in that case. We hope the majority will do so as part of 
this rulemaking, once they follow through with their ill-advised 
proposal to rescind Sec.  103.22.
---------------------------------------------------------------------------

    The D.C. Circuit, for its part, has adhered to the contrary view. 
In Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031 (2018), the 
court granted review and vacated a Board order premised on the finding 
that a bargaining relationship founded under section 8(f) became a 9(a) 
relationship solely because of recognition language in a successor 
bargaining agreement executed by the parties. The court reemphasized 
its position in Nova Plumbing that the Staunton Fuel test could not be 
squared either with Garment Workers' majoritarian principles or with 
the employee free choice principles represented by section 8(f)'s 
second proviso. It also focused more sharply on the centrality of 
employee free choice in determining when a section 9(a) relationship 
has been established. The court observed that ``[t]he raison 
d'[ecirc]tre of the National Labor Relations Act's protections for 
union representation is to vindicate the employees' right to engage in 
collective activity and to empower employees to freely choose their own 
labor representatives.'' Id. at 1038. Further, the court emphasized 
that ``[t]he unusual [s]ection 8(f) exception is meant not to cede all 
employee choice to the employer or union, but to provide employees in 
the inconstant and fluid construction and building industries some 
opportunity for collective representation. . . . [I]t is not meant to 
force the employees' choices any further than the statutory scheme 
allows.'' Id. at 1039. Accordingly, ``[b]ecause the statutory objective 
is to ensure that only unions chosen by a majority of employees enjoy 
[s]ection 9(a)'s enhanced protections, the Board must faithfully police 
the presumption of [s]ection 8(f) status and the strict burden of proof 
to overcome it. Specifically, the Board must demand clear evidence that 
the employees--not the union and not the employer--have independently 
chosen to transition away from a [s]ection 8(f) pre-hire arrangement by 
affirmatively choosing a union as their [s]ection 9(a) 
representative.'' Id. Pursuant to that strict evidentiary standard, the 
court found that it would not do for the Board to rely under Staunton 
Fuel solely on contract language indicating that `` `the employer's 
recognition was based on the union's having shown, or having offered to 
show, an evidentiary basis of its majority support.' '' Id. at 1040 
(quoting Staunton Fuel, 335 NLRB at 717). Such reliance ``would reduce 
the requirement of affirmative employee support to a word game 
controlled entirely by the union and employer. Which is precisely what 
the law forbids.'' Id.
b. The 2020 Rule's Modified Requirements for Proof of Section 9(a) 
Bargaining Relationships in the Construction Industry
    The 2020 Rule requires positive evidence that the union 
unequivocally demanded recognition as the 9(a) majority-supported 
exclusive bargaining representative of employees in an appropriate 
bargaining unit, and that the employer unequivocally accepted it as 
such, based on a contemporaneous showing of support from a majority of 
employees in an appropriate unit. The Rule also clarifies that 
collective-bargaining agreement language, standing alone, will not be 
sufficient to provide the required showing that a majority of unit 
employees covered by a presumptive 8(f) bargaining relationship have 
freely chosen the union to be their 9(a) representative. These 
modifications apply only to voluntary recognition extended on or after 
the effective date of the 2020 Rule and to any collective-bargaining 
agreement entered into on or after the date of voluntary recognition 
extended on or after the effective date of the Rule. Finally, in 
adopting these modifications, the 2020 Rule overruled Casale Industries 
\200\ in relevant part, ``declin[ing] to adopt a [s]ection 10(b) 6-
month limitation on challenging a construction-industry union's 
majority status by filing a petition for a Board election.'' 85 FR 
18370, 18390-18391, 18400.
---------------------------------------------------------------------------

    \200\ 311 NLRB at 953 (holding that the Board would ``not 
entertain a claim that majority status was lacking at the time of 
recognition'' where ``a construction[-]industry employer extends 
9(a) recognition to a union, and 6 months elapse without a charge or 
petition'').
---------------------------------------------------------------------------

c. Critique of the Majority's Proposal To Rescind Sec.  103.22
    The majority proposes to fully rescind Sec.  103.22 of the Board's 
Rules and Regulations, which encompasses all the 2020 Rule's modified 
requirements for proving a section 9(a) bargaining relationship in the 
construction industry. The result would be the effective reinstatement 
of the ill-conceived Board precedents of Staunton Fuel and Casale 
Industries for purposes of applying the voluntary-recognition and 
contract bars in the construction industry. Our colleagues' reasons for 
doing so, discussed below, lack merit and do not warrant revisiting the 
sound policy of the 2020 Rule.
    Principally, the majority complains that the 2020 Rule's overruling 
of Casale Industries ``[i]n the absence of prior public comments . . . 
may create an onerous and unreasonable recordkeeping requirement on 
construction employers and unions . . . to retain and preserve--
indefinitely--extrinsic evidence of a union's showing of majority 
support at the time when recognition was initially granted.'' First of 
all, our colleagues are mistaken when they claim that the decision to 
overrule Casale Industries in relevant part was undertaken ``in the 
absence of prior public comments.'' In fact, this issue was squarely 
raised in public comments requesting that the Board ``incorporate [in 
the final rule] a [s]ection 10(b) 6-month limitation for challenging a 
construction-industry union's majority status.'' 85 FR 18390-18391. The 
Board thoroughly considered the commenters' request and responded with 
a detailed and persuasive explanation of why it declined to incorporate 
such a limitations period in the 2020 Rule. Id. at 18391. Thus, section 
10(b) applies only to unfair labor practices, whereas the 2020 Rule 
``addresses only representation proceedings--i.e., whether an election 
petition is barred because a construction-industry employer and union 
formed a 9(a) rather than an 8(f) collective-bargaining relationship.'' 
Id. ``[O]nly if the parties formed a 9(a) relationship could there be 
an unfair labor practice that would trigger [s]ection 10(b)'s 6-month 
limitation.'' Id.\201\ Accordingly, as the

[[Page 66928]]

2020 Rule explained, Casale Industries erroneously ``begs the question 
by assuming the very 9(a) status that ought to be the object of 
inquiry.'' Id. The Board also appropriately concluded in the 2020 Rule 
that such a limitations period in this context ``improperly discounts 
the importance of protecting employee free choice.'' Id.\202\ Further, 
the District of Columbia and Fourth Circuits have expressed doubts 
regarding the limitations period adopted in Casale Industries. See Nova 
Plumbing, 330 F.3d at 539; American Automatic Sprinkler Systems v. 
NLRB, 163 F.3d 209, 218 fn. 6 (4th Cir. 1998). Finally, regarding the 
supposedly ``onerous . . . recordkeeping requirement,'' the Board 
reasonably concluded, and we agree, that although the 2020 Rule ``will 
incentivize unions to keep a record of majority-employee union 
support[,] . . . such a minor administrative inconvenience [is not] a 
sufficient reason to permit employers and unions to circumvent 
employees' rights.'' 85 FR 18392.\203\
---------------------------------------------------------------------------

    \201\ See also Brannan Sand & Gravel Co., 289 NLRB at 982 
(predating Casale Industries, and holding that nothing ``precludes 
inquiry into the establishment of construction[-]industry bargaining 
relationships outside the 10(b) period'' because ``[g]oing back to 
the beginning of the parties' relationship . . . simply seeks to 
determine the majority or nonmajority[-]based nature of the current 
relationship and does not involve a determination that any conduct 
was unlawful'').
    \202\ The majority rejects the 2020 Rule's concern that 
``employees and rival unions will likely presume that a 
construction-industry employer and union entered an 8(f) collective-
bargaining agreement'' with a term longer than six months, meaning 
that it is ``highly unlikely that they will file a petition 
challenging the union's status within 6 months of recognition.'' See 
85 FR 18391. According to our colleagues, ``[e]mployees and rival 
unions who wish to challenge an incumbent union during the duration 
of a contract must know whether the construction employer has 
recognized the union as the 9(a) representative'' based on ``the 
unambiguous 9(a) recognition language in the parties' agreement'' 
despite the clear legal presumption in favor of an 8(f) bargaining 
relationship. It strikes us as unreasonable to infer that employees 
and rival unions would effectively presume the opposite of the legal 
default relationship in the construction industry. In contrast to 
our colleagues in the majority, not every employee and rival union 
will necessarily take at face value the word of the parties to a 
collective-bargaining agreement with a purported 9(a) recognition 
clause. See Nova Plumbing, 330 F.3d at 537 (observing that 
``construction companies and unions [could] circumvent both section 
8(f) protections and Garment Workers' holding by colluding at the 
expense of employees and rival unions'').
    Moreover, the majority suggests that in situations where an 
employer and union could not prove majority support contemporaneous 
with a voluntary recognition, ``the Board would be processing a 
representation petition at a time when the employer had provided the 
union unlawful assistance under Sec[.] 8(a)(2) and (1) so that 
laboratory conditions may not exist to ascertain employees' true 
sentiment towards the union.'' But the 2020 Rule applies to the 
determination of whether to process a petition in the representation 
context, not to the hypothetical adjudication of unalleged unfair 
labor practices. In any event, the scenario the majority posits 
would go entirely undiscovered under the proposed rule given that 
our colleagues would simply take the parties' word for it that they 
had established a valid 9(a) relationship. Besides, it is rather 
rich of our colleagues to express concern about potential unlawful 
assistance under sec. 8(a)(2), when Staunton Fuel, which they 
propose to reinstate, is an open invitation to construction-industry 
employers and unions to form 9(a) bargaining relationships without 
regard to the will of the majority of the employer's employees, with 
the predictable result that the parties to those relationships will 
routinely be in violation of sec. 8(a)(2) and 8(b)(1)(A)--and, if 
their contract includes union security, of section 8(a)(3) and 
8(b)(2) as well. See Dairyland USA Corp., 347 NLRB 310, 312-313 
(2006).
    The majority further claims that where ``a construction employer 
and union attempt to masquerade an 8(f) relationship as a lawful 
9(a) recognition, Sec[.] 103.22 attempts to rectify that unlawful 
8(a)(2) and 8(b)(1)(A) conduct through a representation petition'' 
when the ``right medicine for the ailment'' is an unfair labor 
practice proceeding and appropriate cease-and-desist remedial 
relief. Our colleagues miss the mark once again. Sec. 103.22 does 
not attempt to remedy unfair labor practices with a representation 
petition and Board-supervised election. Again, the 2020 Rule does 
not apply to unfair labor practices. Rather, the 2020 Rule protects 
employee free choice to seek a Board election upon a proper showing 
of interest where no lawful sec. 9(a) relationship has been formed. 
Any attendant unfair labor practices--which, again, would typically 
go undiscovered under the majority's proposal--are subject to 
appropriate unfair labor practice proceedings and remedies under 
current law.
    \203\ The majority claims that such a need for recordkeeping in 
the absence of a limitations period will destabilize longstanding 
collective-bargaining relationships by permitting employers to 
challenge decades-old voluntary recognitions for which there may be 
no available supporting evidence of majority status contemporaneous 
with the sec. 9(a) recognition. This claim is belied by the language 
of the 2020 Rule itself, which makes clear that its evidentiary 
requirements for majority-based recognition in the construction 
industry apply only prospectively. The majority's related claim that 
the recordkeeping requirement ``could still cause significant 
disruption to longstanding collective-bargaining relationships 20 
years into the future for collective-bargaining relationships first 
formed after April 2020'' ignores the obvious fact that parties 
forming bargaining relationships after the effective date of the 
2020 Rule will have been on notice of the need to retain the 
relevant records. Under the circumstances, any ``disruption'' would 
be self-inflicted.
    Further, we reject our colleagues' suggestion that the absence 
of a limitations period and any resulting recordkeeping so burdens 
parties in the construction industry as to be inconsistent with the 
Deklewa Board's assurance that construction-industry parties do not 
enjoy a ``less favored status'' relative to non-construction-
industry parties. See Deklewa, 282 NLRB at 1387 fn. 53. The 2020 
Rule does not treat construction-industry parties differently: 
voluntary recognitions both outside and within the construction 
industry must be based on a showing of majority support. But even if 
it did, evidence supporting this showing is particularly crucial 
where a party claims that an 8(f) relationship has become a 9(a) 
relationship. See Colorado Fire Sprinkler, 891 F.3d at 1039 
(observing that ``[b]ecause the statutory objective is to ensure 
that only unions chosen by a majority of employees enjoy Sec[.] 
9(a)'s enhanced protections, the Board must faithfully police the 
presumption of Sec[.] 8(f) status and the strict burden of proof to 
overcome it'').
    We also find it ironic that our colleagues baselessly speculate 
about the ``needless gamesmanship'' with the Board's contract-bar 
rules that will supposedly result when parties fail to keep adequate 
records, notwithstanding (1) the majority's proposal in this 
rulemaking to return to the ``historical'' blocking-charge policy, 
the gamesmanship under which is well known and has been acknowledged 
by the Board, and (2) the D.C. Circuit's concern that ``construction 
companies and unions [could] circumvent both section 8(f) 
protections and Garment Workers' holding by colluding at the expense 
of employees and rival unions.'' Nova Plumbing, 330 F.3d at 537.
---------------------------------------------------------------------------

    At bottom, the legal presumption of 8(f) status in the construction 
industry follows from the protections afforded under the second proviso 
to section 8(f), which provides that an extant 8(f) agreement ``shall 
not be a bar to a petition'' for an election under either section 9(c) 
or 9(e) of the Act. However, once the 8(f) presumption is rebutted and 
a 9(a) relationship is recognized, the voluntary recognition bar and/or 
the contract bar may operate to bar election petitions in appropriate 
circumstances. In other words, a valid 9(a) recognition causes 
employees to forfeit their rights to invoke the Board's power to 
resolve a question of representation during the bar period. Just as a 
party--or a Federal court acting sua sponte--may at any time during 
litigation challenge the court's subject-matter jurisdiction inasmuch 
as such jurisdiction implicates the court's power to hear the claim 
(Fed. R. Civ. Pro. 12(h)(3)), we conclude that a party should be free 
to file an election petition challenging a construction-industry 
employer's claimed 9(a) recognition of an incumbent union--and thereby 
demand contemporaneous positive evidence of majority support--inasmuch 
as a default 8(f) relationship potentially masquerading as a lawful 
9(a) relationship implicates the Board's power to resolve a valid 
question of representation.

B. Conclusion

    For all these reasons, we respectfully dissent from this Notice of 
Proposed Rulemaking to rescind and replace the 2020 Rule. We would 
leave the 2020 Rule in place and are confident that it will be upheld 
as valid in the courts. Of course, given that a second round of 
rulemaking will proceed, we shall consider with open minds all public 
comments, any developments brought to our attention, and the considered 
views of our colleagues.

VII. Regulatory Procedures

The Regulatory Flexibility Act

A. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601, et 
seq., ensures that agencies ``review draft rules to assess and take 
appropriate account of the potential impact on small businesses, small 
governmental

[[Page 66929]]

jurisdictions, and small organizations, as provided by the [RFA].'' 
\204\ It requires agencies promulgating proposed rules to prepare an 
Initial Regulatory Flexibility Analysis (``IRFA'') and to develop 
alternatives wherever possible, when drafting regulations that will 
have a significant impact on a substantial number of small 
entities.\205\ However, an agency is not required to prepare an IRFA 
for a proposed rule if the agency head certifies that, if promulgated, 
the rule will not have a significant economic impact on a substantial 
number of small entities.\206\ The RFA does not define either 
``significant economic impact'' or ``substantial number of small 
entities.'' \207\ Additionally, ``[i]n the absence of statutory 
specificity, what is `significant' will vary depending on the economics 
of the industry or sector to be regulated. The agency is in the best 
position to gauge the small entity impacts of its regulations.'' \208\
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    \204\ E.O. 13272, sec. 1, 67 FR 53461 (``Proper Consideration of 
Small Entities in Agency Rulemaking'').
    \205\ Under the RFA, the term ``small entity'' has the same 
meaning as ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' 5 U.S.C. 601(6).
    \206\ 5 U.S.C. 605(b).
    \207\ 5 U.S.C. 601.
    \208\ Small Business Administration Office of Advocacy, ``A 
Guide for Government Agencies: How to Comply with the Regulatory 
Flexibility Act'' (``SBA Guide'') at 18, https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf.
---------------------------------------------------------------------------

    Although the Board believes that it is unlikely that the proposed 
rule will have a significant economic impact on a substantial number of 
small entities, it seeks public input on this hypothesis and has 
prepared an IFRA to provide the public the fullest opportunity to 
comment on the proposed rule.\209\ An IRFA describes why an action is 
being proposed; the objectives and legal basis for the proposed rule; 
the number of small entities to which the proposed rule would apply; 
any projected reporting, recordkeeping, or other compliance 
requirements of the proposed rule; any overlapping, duplicative, or 
conflicting Federal rules; and any significant alternatives to the 
proposed rule that would accomplish the stated objectives, consistent 
with applicable statutes, and that would minimize any significant 
adverse economic impacts of the proposed rule on small entities.\210\
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    \209\ After a review of the comments, the Board may elect to 
certify that the rule will not have a significant economic impact on 
a substantial number of small entities in the publication of the 
final rule. 5 U.S.C. 605(b).
    \210\ 5 U.S.C. 603(b).
---------------------------------------------------------------------------

1. Description of the Reasons Why Action by the Agency Is Being 
Considered and Succinct Statement of the Objectives of, and Legal Basis 
for, the Proposed Rule
    Detailed descriptions of this proposed rule, its purpose, 
objectives, and legal basis are contained earlier in the SUMMARY and 
SUPPLEMENTAL INFORMATION sections and are not repeated here. In brief, 
the proposed rule aims to better protect the statutory rights of 
employees to express their views regarding representation by rescinding 
the Board's 2020 changes to the blocking charge policy, the voluntary 
recognition bar doctrine, and the use of contract language to serve as 
sufficient evidence of majority-supported voluntary recognition under 
section 9(a) in representation cases in the construction industry.
2. Description of, and Where Feasible, an Estimate of the Number of 
Small Entites to Which the Proposed Rule Will Apply
    To evaluate the impact of the proposed rule, the Board first 
identified the universe of small entities that could be impacted by 
reinstating the blocking charge policy, the voluntary recognition bar 
doctrine, and the use of contract language to serve as sufficient 
evidence of voluntary recognition under section 9(a) in representation 
cases in the construction industry.
a. Blocking Charge and Voluntary Recognition Bar Changes
    The changes to the blocking charge policy and voluntary recognition 
bar doctrine will apply to all entities covered by the National Labor 
Relations Act (``NLRA'' or ``the Act''). According to the United States 
Census Bureau, there were 6,102,412 business firms with employees in 
2019.\211\ Of those, the Census Bureau estimates that about 6,081,544 
were firms with fewer than 500 employees.\212\ While this proposed rule 
does not apply to employers that do not meet the Board's jurisdictional 
requirements, the Board does not have the data to determine the number 
of excluded entities.\213\ Accordingly, the Board assumes for purposes 
of this analysis that all of the 6,081,544 small business firms could 
be impacted by the proposed rule.
---------------------------------------------------------------------------

    \211\ U.S. Department of Commerce, Bureau of Census, 2019 
Statistics of U.S. Businesses (``SUSB'') Annual Data Tables by 
Establishment Industry, Data by Enterprise Employment Size, https://www.census.gov/data/tables/2019/econ/susb/2019-susb-annual.html 
(from downloaded Excel Table entitled ``U.S. & States, 6-digit 
NAICS'' found at https://www2.census.gov/programs-surveys/susb/tables/2019/us_state_6digitnaics_2019.xlsx). ``Establishments'' 
refer to single location entities--an individual ``firm'' can have 
one or more establishments in its network. The Board has used firm 
level data for this IRFA. Census Bureau definitions of 
``establishment'' and ``firm'' can be found at https://www.census.gov/programs-surveys/susb/about/glossary.html.
    \212\ The Census Bureau does not specifically define ``small 
business'' but does break down its data into firms with 500 or more 
employees and those with fewer than 500 employees. See U.S. 
Department of Commerce, Bureau of Census, 2019 SUSB Annual Data 
Tables by Establishment Industry, Data by Enterprise Employment 
Size, https://www.census.gov/data/tables/2019/econ/susb/2019-susb-annual.html (from downloaded Excel Table entitled ``U.S. & States, 
6-digit NAICS'' found at https://www2.census.gov/programs-surveys/susb/tables/2019/us_state_6digitnaics_2019.xlsx). Consequently, the 
500-employee threshold is commonly used to describe the universe of 
small employers. For defining small businesses among specific 
industries, the standards are defined by the North American Industry 
Classification System (NAICS).
    \213\ Pursuant to 29 U.S.C. 152(6) and (7), the Board has 
statutory jurisdiction over private sector employers whose activity 
in interstate commerce exceeds a minimal level. NLRB v. Fainblatt, 
306 U.S. 601, 606-07 (1939). To this end, the Board has adopted 
monetary standards for the assertion of jurisdiction that are based 
on the volume and character of the business of the employer. In 
general, the Board asserts jurisdiction over employers in the retail 
business industry if they have a gross annual volume of business of 
$500,000 or more. Carolina Supplies & Cement Co., 122 NLRB 88 
(1959). But shopping center and office building retailers have a 
lower threshold of $100,000 per year. Carol Management Corp., 133 
NLRB 1126 (1961). The Board asserts jurisdiction over non-retailers 
generally where the value of goods and services purchased from 
entities in other states is at least $50,000. Siemons Mailing 
Service, 122 NLRB 81 (1959).
    The following employers are excluded from the NLRB's 
jurisdiction by statute: (1) Federal, State and local governments, 
including public schools, libraries, and parks, Federal Reserve 
banks, and wholly-owned government corporations, 29 U.S.C. 152(2); 
(2) employers that employ only agricultural laborers, those engaged 
in farming operations that cultivate or harvest agricultural 
commodities, or prepare commodities for delivery, 29 U.S.C. 153(3); 
and (3) employers subject to the Railway Labor Act, such as 
interstate railroads and airlines, 29 U.S.C. 152(2).
---------------------------------------------------------------------------

    The changes to the blocking charge policy and voluntary recognition 
bar doctrine will also impact labor unions as organizations 
representing or seeking to represent employees. Labor unions, as 
defined by the NLRA, are entities ``in which employees participate and 
which exist for the purpose . . . of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay, hours of employment, 
or conditions of work.'' \214\ The Small Business Administration's 
(``SBA'') small business standard for ``Labor Unions and Similar Labor 
Organizations'' (NAICS #813930) is $14.5 million in annual 
receipts.\215\ In 2017, there were 13,137 labor unions in the U.S.\216\ 
Of

[[Page 66930]]

these, 12,875 (98% of total) are definitely small businesses according 
to SBA standards because their receipts are below $10 million.\217\ 
And, 89 additional unions have annual receipts between $10 million and 
$14,999,999.\218\ Since the Board cannot determine how many of those 89 
labor union firms fall below the $14.5 million annual receipt 
threshold, it will assume that all 89 are small businesses as defined 
by the SBA. Therefore, for the purposes of this IRFA, the Board assumes 
that 12,964 labor unions (98.7% of total) are small businesses that 
could be impacted by the proposed rule.
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    \214\ 29 U.S.C. 152(5).
    \215\ 13 CFR 121.201.
    \216\ The Census Bureau only provides data about receipts in 
years ending in 2 or 7. The 2022 data has not been published, so the 
2017 data is the most recent available information regarding 
receipts. See U.S. Department of Commerce, Bureau of Census, 2017 
SUSB Annual Data Tables by Establishment Industry, Data by 
Enterprise Receipts Size, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html (from downloaded Excel Table 
entitled ``U.S., 6-digit NAICS'' found at https://www2.census.gov/programs-surveys/susb/tables/2017/us_6digitnaics_rcptsize_2017.xlsx 
(Classification #813930--Labor Unions and Similar Labor 
Organizations).
    \217\ Id.
    \218\ See id.
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    The number of small entities likely to be specially impacted by the 
proposed rule, however, is much lower. First, the blocking charge 
policy will only be applied as a matter of law under certain 
circumstances in a Board proceeding--namely when a party to a 
representation proceeding files an unfair labor practice charge 
alleging conduct that could result in setting aside the election or 
dismissing the petition. This occurs only in a small percentage of the 
Board's cases. For example, between July 31, 2018 and July 30, 2020, 
the last two-year period during which the original blocking charge 
policy was in effect, there were 162 requests that an unfair labor 
practice charge block an election (i.e., an average of 81 per year). 
Assuming each request involved a distinct employer and labor 
organization, the Board's blocking charge policy affected an average of 
162 entities per year, which is only .000026% of the 6,081,544 small 
entities that could be subject to the Board's jurisdiction.\219\
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    \219\ Under the current rule regarding blocking charges, which 
has been effective since July 31, 2020, there were 3,867 petitions 
filed and 66 requests that unfair labor practice charges block an 
election, which means only 132 entities of the 6,081,544 small 
entities (.000021%) that could be subject to the Board's 
jurisdiction have been affected by the policy.
---------------------------------------------------------------------------

    Second, the number of small entities likely to be specially 
impacted by the voluntary recognition bar doctrine is also low. Since 
the modified voluntary recognition bar became effective on July 31, 
2020, the Board has tracked the number of requests for notices used to 
inform employees that a voluntary recognition had taken place and of 
their right to file a petition for an election. On average, the Board 
has received 130 requests per year for those notices. Assuming each 
request was made by a distinct employer and involved at least one 
distinct labor union, only 260 entities of any size were affected. Even 
assuming all 260 of those entities met the SBA's definition of small 
business, they would account for only .000042% of the 6,081,544 small 
entities that could be subject to the Board's jurisdiction.
b. Restoration of the Use of Contract Language To Serve as Sufficient 
Evidence of 9(a) Recognition in Representation Cases in the 
Construction Industry
    The Board believes that restoring the use of contract language to 
serve as sufficient evidence of majority-supported voluntary 
recognition under section 9(a) in representation cases in the 
construction industry is only relevant to employers engaged primarily 
in the building and construction industry and labor unions of which 
building and construction employees are members. The need to 
differentiate between voluntary recognition under section 8(f) of the 
Act versus section 9(a) is unique to entities engaged in the building 
and construction industry because section 8(f) applies solely to those 
entities. Of the 701,477 building and construction-industry employers 
classified under the NAICS Section 23 Construction,\220\ between 
688,291 and 691,614 fall under the SBA ``small business'' standard for 
classifications in the NAICS Construction sector.\221\ The Department 
of Labor's Office of Labor-Management Standards (OLMS) provides a 
searchable database of union annual financial reports.\222\ However, 
OLMS does not identify unions by industry, e.g., construction. 
Accordingly, the Board does not have the means to determine a precise 
number of unions of which building and construction employees are 
members. In its 2019 IRFA, the Board identified 3,929 labor unions 
primarily operating in the building and construction industry that met 
the SBA ``small business'' standard of annual receipts of less than 
$7.5 million.\223\ Although unions that do not primarily operate in the 
building and construction industry could still be subject to the 
proposed rule if they seek to represent employees engaged in the 
building and construction industry, comments received in response to 
the 2019 IRFA did not reveal that the Board failed to consider any 
additional small labor unions, including those representing employees 
engaged in the building and construction industry, or any other

[[Page 66931]]

categories of small entities that would likely take special interest in 
a change in the standard for using contract language to prove majority-
supported voluntary recognition.\224\ Therefore, at this time, the 
Board assumes that this portion of the proposed rule could only affect 
695,543 of the 6,081,544 small entities that could be subject to the 
Board's jurisdiction.
---------------------------------------------------------------------------

    \220\ 13 CFR 121.201. These NAICS construction-industry 
classifications include the following codes, 236115: New Single-
Family Housing Construction; 236116: New Multifamily Housing 
Construction; 236117: New Housing For-Sale Builders; 236118: 
Residential Remodelers; 236210: Industrial Building Construction; 
236220: Commercial and Institutional Building Construction; 237110: 
Water and Sewer Line and Related Structures Construction; 237120: 
Oil and Gas Pipeline and Related Structures Construction; 237130: 
Power and Communication Line and Related Structures Construction; 
237210: Land Subdivision; 237310: Highway, Street, and Bridge 
Construction; 237990: Other Heavy and Civil Engineering 
Construction; 238110: Poured Concrete Foundation and Structure 
Contractors; 238120: Structural Steel and Precast Concrete 
Contractors; 238130: Framing Contractors; 238140: Masonry 
Contractors; 238150: Glass and Glazing Contractors; 238160: Roofing 
Contractors; 238170: Siding Contractors; 238190: Other Foundation, 
Structure, and Building Exterior Contractors; 238210: Electrical 
Contractors and Other Wiring Installation Contractors; 238220: 
Plumbing, Heating, and Air-Conditioning Contractors; 238290: Other 
Building Equipment Contractors; 238310: Drywall and Insulation 
Contractors; 238320: Painting and Wall Covering Contractors; 238330: 
Flooring Contractors; 238340: Tile and Terrazzo Contractors; 238350: 
Finish Carpentry Contractors; 238390: Other Building Finishing 
Contractors; 238910: Site Preparation Contractors; 238990: All Other 
Specialty Trade Contractors. See U.S. Department of Commerce, Bureau 
of Census, 2019 SUSB Annual Data Tables by Establishment Industry, 
https://www2.census.gov/programs-surveys/susb/tables/2019/us_state_6digitnaics_2019.xlsx.
    \221\ The Board could not determine a definitive number of 
construction-industry firms that are small businesses because the 
small business thresholds for the relevant NAICS codes are not 
wholly compatible with the manner in which the Census Bureau reports 
the annual receipts of firms. For example, the small business 
threshold is $16.5 million in annual receipts for NAICS codes 
238110-238990 and $19.5 million in annual receipts for NAICS code 
238290. But the Census Bureau groups together all firms with annual 
receipts between $15 million and $19,999,999. And, for NAICS codes 
236115-237130 and 237310-237990, the small business threshold is 
$39.5 million in annual receipts, but the Census Bureau groups 
together firms with annual receipts between $35 million and 
$39,999,999. See 13 CFR 121.201; U.S. Department of Commerce, Bureau 
of Census, 2017 SUSB Annual Data Tables by Establishment Industry, 
Data by Enterprise Receipts Size, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html (from downloaded Excel 
Table entitled ``U.S., 6-digit NAICS'' found at https://www2.census.gov/programs-surveys/susb/tables/2017/us_6digitnaics_rcptsize_2017.xlsx (Classification #813930--Labor 
Unions and Similar Labor Organizations).
    \222\ U.S. Department of Labor, Office of Labor-Management 
Standards, Online Public Disclosure Room, Download Yearly Data, 
Union Reports, Yearly Data Download for 2022, https://olmsapps.dol.gov/olpdr/?_ga=2.218681689.137533490.1665060520-1600335935.1665060520#Union%20Reports/Yearly%20Data%20Download/.
    \223\ 84 FR 39955 & fn. 136. The small business threshold for 
labor unions has since increased to include entities with annual 
receipts of less than $14.5 million. 13 CFR 121.201.
    \224\ The Board has identified the following unions as primarily 
operating in the building and construction industry: The 
International Union of Bricklayers and Allied Craftworkers; Building 
and Construction Trades Department; International Association of 
Bridge, Structural, Ornamental & Reinforcing Iron Workers; Operative 
Plasterers' and Cement Masons' International Association; Laborers' 
International Union; The United Brotherhood of Carpenters and 
Joiners of America; International Union of Operating Engineers; 
International Union of Journeymen and Allied Trades; International 
Association of Sheet Metal, Air, Rail, and Transportation Workers; 
International Union of Painters and Allied Trades; International 
Brotherhood of Electrical Workers; United Association of Journeymen 
Plumbers; United Union of Roofers, Waterproofers and Allied Workers; 
United Building Trades; International Association of Heat and Frost 
Insulators and Allied Workers; and International Association of Tool 
Craftsmen. See U.S. Department of Labor, Office of Labor-Management 
Standards, Online Public Disclosure Room, Download Yearly Data for 
2012, https://olms.dol-esa.gov/olpdr/GetYearlyFileServlet?report=8H58. Input from the public is still 
welcome as to any labor union not listed that would be affected by 
the proposed rule.
---------------------------------------------------------------------------

    The Board is also unable to determine how many of those 691,614 
small building and construction-industry employers elect to enter 
voluntarily into a 9(a) bargaining relationship with a labor union and 
use language in a collective-bargaining agreement to serve as evidence 
of the labor union's 9(a) status. However, to the extent it is an 
indicator of the number of building and construction-industry employers 
that enter into a 9(a) bargaining relationship with a small labor 
union, the number of cases that involve a question of whether a 
relationship is governed by section 8(f) or 9(a) is very small relative 
to the total number of building and construction industry employers and 
unions. As the Board noted in its 2019 IRFA, between October 1, 2015 
and September 30, 2017, only two cases required the Board to determine 
whether a collective-bargaining agreement was governed by 8(f) or 
9(a).\225\ Since October 1, 2017, the issue has only come before the 
Board once.\226\
---------------------------------------------------------------------------

    \225\ 84 FR 39955.
    \226\ Enright Seeding, Inc, 371 NLRB No. 127 (2022).
---------------------------------------------------------------------------

3. Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule
    The RFA requires an agency to determine the amount of ``reporting, 
recordkeeping and other compliance requirements'' imposed on small 
entities.\227\ The Court of Appeals for the District of Columbia 
Circuit has explained that this provision requires an agency to 
consider direct burdens that compliance with a new regulation will 
likely impose on small entities.\228\
---------------------------------------------------------------------------

    \227\ See 5 U.S.C. 603(b)(4), 604(a)(4).
    \228\ See Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. 
Cir. 1985) (``[I]t is clear that Congress envisioned that the 
relevant `economic impact' was the impact of compliance with the 
proposed rule on regulated small entities.'').
---------------------------------------------------------------------------

    We believe that the proposed rule imposes no capital costs for 
equipment needed to meet the regulatory requirements; no direct costs 
of modifying existing processes and procedures to comply with the 
proposed rule; no lost sales and profits directly resulting from the 
proposed rule; no changes in market competition as a direct result of 
the proposed rule and its impact on small entities or specific 
submarkets of small entities; no extra costs associated with the 
payment of taxes or fees associated with the proposed rule; and no 
direct costs of hiring employees dedicated to compliance with 
regulatory requirements.\229\ Instead, the proposed rule should help 
small entities conserve resources that they might otherwise expend by 
participating in an election under the current rules that would be 
blocked under the proposed rule or by engaging in a representation case 
proceeding that would have otherwise been barred by a voluntary 
recognition. And, the proposed rule removes the information collection, 
recordkeeping, and reporting requirements that the 2020 Rule imposed on 
small entities. Accordingly, for the purposes of the IRFA, and subject 
to comments, the Board assumes that the only direct cost to small 
entities will be reviewing the rule.
---------------------------------------------------------------------------

    \229\ See SBA Guide at 37.
---------------------------------------------------------------------------

    To become generally familiar with the proposed reversions to the 
traditional blocking charge policy and voluntary recognition bar 
doctrine, we estimate that a human resources or labor relations 
specialist at a small employer may take at most ninety minutes to read 
the text of the rule and the supplementary information published in the 
Federal Register and to consult with an attorney.\230\ We estimate that 
an attorney would bill the employer for a one hour consult.\231\ Using 
the Bureau of Labor Statistics' estimated wage and benefit costs, we 
have assessed these costs to be between $171.04 and $177.44.\232\
---------------------------------------------------------------------------

    \230\ Data from the Bureau of Labor Statistics indicates that 
employers are more likely to have a human resources specialist (BLS 
#13-1071) than to have a labor relations specialist (BLS#13-1075). 
Compare Occupational Employment and Wages, May 2021, 13-1075 Labor 
Relations Specialists, found at https://www.bls.gov/oes/current/oes131075.htm, with Occupational Employment and Wages, May 2021, 13-
1071 Human Resources Specialists, found at https://www.bls.gov/oes/current/oes131071.htm.
    \231\ The Board based its preliminary estimates of how much time 
it will take to review the proposed rule and consult with an 
attorney on the fact that the proposed rule returns to the pre-2020 
rule standard, which most employers, human resources and labor 
relations specialists, and labor relations attorneys are already 
knowledgeable about if relevant to their businesses.
    \232\ For wage figures, see May 2021 National Occupancy 
Employment and Wage Estimates, found at https://www.bls.gov/oes/current/oes_nat.htm. The Board has been administratively informed 
that BLS estimates that fringe benefits are approximately equal to 
40 percent of hourly wages. Thus, to calculate total average hourly 
earnings, BLS multiplies average hourly wages by 1.4. In May 2021, 
average hourly wages for labor relations specialists were $37.05 and 
for human resources specialists were $34. The same figure for a 
lawyer (BLS # 23-1011) is $71.17. Accordingly, the Board multiplied 
each of those wage figures by 1.4 and added them to arrive at its 
estimate.
---------------------------------------------------------------------------

    For the limited number of small employers and unions representing 
employees in the construction industry that will endeavor to become 
generally familiar with all three changes to the rule--including the 
portion of the rule that restores the use of contract language to serve 
as sufficient evidence of majority-supported voluntary recognition 
under section 9(a) in representation cases in the construction 
industry--we estimate that a human resources or labor relations 
specialist may take at most two hours to read all three changes and the 
supplementary information published in the Federal Register and to 
consult with an attorney. We estimate that an attorney would only bill 
the employer for a one-hour consult.\233\ Thus, the Board has assessed 
labor costs for small employers and unions representing employees in 
the construction industry to be between $194.84 and $203.38.\234\
---------------------------------------------------------------------------

    \233\ The Board estimates that a labor relations attorney would 
require one hour to consult with a small employer or labor union 
about all three rule changes.
    \234\ See fn. 232.
---------------------------------------------------------------------------

    The Board is not inclined to find the costs of reviewing and 
understanding the rule to be significant within the meaning of the RFA. 
In making this finding, one important indicator is the cost of 
compliance in relation to the revenue of the entity or the percentage 
of profits affected.\235\ Other criteria to be considered are whether 
the rule will cause long-term insolvency (i.e., regulatory costs that 
may reduce the ability of the firm to make future capital investment, 
thereby severely harming its

[[Page 66932]]

competitive ability, particularly against larger firms) and whether the 
cost of the proposed regulation will eliminate more than 10 percent of 
the businesses' profits, exceed one percent of the gross revenues of 
the entities in a particular sector, or exceed five percent of the 
labor costs of the entities in the sector.\236\ The minimal cost to 
read and understand the rule will not generate any such significant 
economic impacts.
---------------------------------------------------------------------------

    \235\ See SBA Guide at 18.
    \236\ Id. at 19.
---------------------------------------------------------------------------

    Because the direct compliance costs do not exceed $203.38 for any 
one entity, the Board has no reason to believe that the cost of 
compliance is significant when compared to the revenue or profits of 
any entity. However, the Board welcomes input from the public regarding 
its calculations, initial conclusions, or additional direct costs of 
compliance not identified by the Board.
4. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules Which May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    The Board has not identified any Federal rules that conflict with 
the proposed rule. It welcomes comments that suggest any potential 
conflicts not noted in this section.
5. Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    Pursuant to 5 U.S.C. 603(c), agencies are directed to look at ``any 
significant alternatives to the proposed rule which accomplish the 
stated objectives of applicable statutes and which minimize any 
significant economic impact of the proposed rule on small entities.'' 
Specifically, agencies must consider establishing different compliance 
or reporting requirements or timetables for small entities, simplifying 
compliance and reporting for small entities, using performance rather 
than design standards, and exempting small entities from any part of 
the rule.\237\ The SBA has described this step as ``[t]he keystone of 
the IRFA,'' because ``[a]nalyzing alternatives establishes a process 
for the agency to evaluate proposals that achieve the regulatory goals 
efficiently and effectively without unduly burdening small entities, 
erecting barriers to competition, or stifling innovation.'' \238\ The 
Board considered two primary alternatives to the proposed rule.
---------------------------------------------------------------------------

    \237\ 5 U.S.C. 603(c).
    \238\ Id. at 37.
---------------------------------------------------------------------------

    First, the Board considered taking no action. Inaction would leave 
in place the revised blocking charge policy, which we preliminarily 
believe, subject to comments, requires regional directors to conduct 
elections under potentially coercive conditions, and the modified 
voluntary recognition bar, which we preliminarily believe unfairly 
signals to employees that the Board views with suspicion their choices 
regarding representation and could hinder first contract bargaining. 
Additionally, inaction would place a unique burden on construction 
employers and unions to retain indefinitely proof of a union's showing 
of majority support. However, for the reasons stated in sections I 
through III above, the Board finds it desirable to revisit these 
policies. Consequently, the Board rejects maintaining the status quo.
    Second, the Board considered creating exemptions for certain small 
entities. This was rejected as impractical, considering that exemptions 
for small entities would substantially undermine the purposes of the 
proposed rule because such a large percentage of employers and unions 
would be exempt under the SBA definition of ``small business.'' Also, 
if a large employer entered into a bargaining relationship with a small 
labor union, both entities would be exempted, further undermining these 
much-needed policy shifts. Additionally, because the Board considers 
the proposed rules to better protect employees' statutory rights, an 
exemption would adversely affect employees at all small entities. If 
small entities were exempt from the restored, historical blocking 
charge policy, a large swath of employees covered by the Act would be 
required to participate in elections held under coercive conditions. If 
small entities were exempt from the restored voluntary recognition bar, 
those employers and labor unions would have additional requirements for 
reporting and notice-posting. And, if small entities were exempt from 
the return to the use of contract language to serve as sufficient 
evidence of a 9(a) relationship in representation cases in the 
construction industry, they would be required to retain evidence of a 
union's majority status indefinitely. Further, it seems unlikely that 
drawing this distinction would be a permissible interpretation of the 
relevant statutory provisions.
    Moreover, given the very small quantifiable cost of compliance, it 
is possible that the burden on a small business of determining whether 
it falls within a particular exempt category might exceed the burden of 
compliance. Congress gave the Board very broad jurisdiction, with no 
suggestion that it wanted to limit coverage of any part of the Act to 
only larger employers.\239\ As the Supreme Court has noted, ``[t]he 
[NLRA] is [F]ederal legislation, administered by a national agency, 
intended to solve a national problem on a national scale.'' \240\ As 
such, exempting or creating an exception for small entities is contrary 
to the objectives of this rulemaking and of the NLRA.
---------------------------------------------------------------------------

    \239\ However, there are standards that prevent the Board from 
asserting authority over entities that fall below certain 
jurisdictional thresholds. This means that extremely small entities 
outside of the Board's jurisdiction will not be affected by the 
proposed rule. See 29 CFR 104.204.
    \240\ NLRB v. Nat. Gas Util. Dist. of Hawkins Cty., 402 U.S. 
600, 603-04 (1971) (quotation omitted).
---------------------------------------------------------------------------

    Because no alternatives considered will accomplish the objectives 
of this proposed rule while minimizing costs on small businesses, the 
Board believes that proceeding with this rulemaking is the best 
regulatory course of action. The Board welcomes public comment on any 
facet of this IRFA, including alternatives that it has failed to 
consider.

Paperwork Reduction Act

    The NLRB is an agency within the meaning of the Paperwork Reduction 
Act (PRA). 44 U.S.C. 3502(1) and (5). The PRA creates rules for 
agencies when they solicit a ``collection of information,'' 44 U.S.C. 
3507, which is defined as ``the obtaining, causing to be obtained, 
soliciting, or requiring the disclosure to third parties or the public, 
of facts or opinions by or for an agency, regardless of form or 
format.'' 44 U.S.C. 3502(3)(A). The PRA only applies when such 
collections are ``conducted or sponsored by those agencies.'' 5 CFR 
1320.4(a).
    The proposed rules do not involve a collection of information 
within the meaning of the PRA. Even if the proposed rules were 
construed to require disclosures of information to the NLRB, third 
parties, or the public, such disclosures would only occur in the course 
of the Board's administrative proceedings. For example, a party could 
file an unfair labor practice charge and request that the charge block 
the processing of a representation proceeding. Or, a party could raise 
in a representation proceeding that an employer has already voluntarily 
recognized a particular union. However, the PRA provides that 
collections of information related to ``an administrative action or 
investigation involving an agency against specific

[[Page 66933]]

individuals or entities'' are exempt from coverage. 44 U.S.C. 
3518(c)(1)(B)(ii). A representation proceeding under section 9 of the 
Act, as well as an investigation into an unfair labor practice under 
section 10 of the Act, are administrative actions covered by this 
exemption. The Board's decisions in these proceedings are binding on 
and thereby alter the legal rights of the parties to the proceedings 
and thus are sufficiently ``against'' the specific parties to trigger 
this exemption.\241\
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    \241\ Legislative history indicates Congress wrote this 
exception to broadly cover many types of administrative action, not 
just those involving ``agency proceedings of a prosecutorial 
nature.'' See S. REP. 96-930 at 56, as reprinted in 1980 
U.S.C.C.A.N. 6241, 6296. For the reasons more fully explained by the 
Board in prior rulemaking, 79 FR 74307, 74468-69 (2015), 
representation proceedings, although not qualifying as adjudications 
governed by the Administrative Procedure Act, 5 U.S.C. 552b(c)(1), 
are nonetheless exempt from the PRA under 44 U.S.C. 
3518(c)(1)(B)(ii).
---------------------------------------------------------------------------

    For the foregoing reasons, the proposed rules do not contain 
information collection requirements that require approval by the Office 
of Management and Budget under the PRA.

List of Subjects in 29 CFR Part 103

    Colleges and universities, Election procedures, Health facilities, 
Jurisdictional standards, Labor management relations, Music, Remedial 
Orders, Sports.

Text of the Proposed Rule

    For the reasons discussed in the preamble, the Board proposes to 
amend 29 CFR part 103 as follows:

PART 103--OTHER RULES

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 29 U.S.C. 156, in accordance with the procedure set 
forth in 5 U.S.C. 553.

0
2. Revise Sec.  103.20 to read as follows:


Sec.  103.20   Election procedures and blocking charges; filing of 
blocking charges; simultaneous filing of offer of proof; prompt 
furnishing of witnesses.

    Whenever any party to a representation proceeding files an unfair 
labor practice charge together with a request that it block the 
processing of the petition to the election, or whenever any party to a 
representation proceeding requests that its previously filed unfair 
labor practice charge block the further processing of a petition, the 
party shall simultaneously file, but not serve on any other party, a 
written offer of proof in support of the charge. The offer of proof 
shall provide the names of the witnesses who will testify in support of 
the charge and a summary of each witness's anticipated testimony. The 
party seeking to block the processing of a petition shall also promptly 
make available to the regional director the witnesses identified in its 
offer of proof. If the regional director determines that the party's 
offer of proof does not describe evidence that, if proven, would 
interfere with employee free choice in an election or would be 
inherently inconsistent with the petition itself, and thus would 
require that the processing of the petition be held in abeyance absent 
special circumstances, the regional director shall continue to process 
the petition and conduct the election where appropriate.
0
3. Revise Sec.  103.21 to read as follows:


Sec.  103.21   Voluntary-recognition bar to processing of election 
petitions.

    (a) An employer's voluntary recognition of a labor organization as 
exclusive bargaining representative of a unit of the employer's 
employees, based on a showing of the union's majority status, bars the 
processing of an election petition for a reasonable period of time for 
collective bargaining between the employer and the labor organization.
    (b) A reasonable period of time for collective bargaining, during 
which the voluntary-recognition bar will apply, is defined as no less 
than 6 months after the parties' first bargaining session and no more 
than 1 year after that date.
    (c) In determining whether a reasonable period of time for 
collective bargaining has elapsed in a given case, the following 
factors will be considered:
    (1) Whether the parties are bargaining for an initial collective-
bargaining agreement;
    (2) The complexity of the issues being negotiated and of the 
parties' bargaining processes;
    (3) The amount of time elapsed since bargaining commenced and the 
number of bargaining sessions;
    (4) The amount of progress made in negotiations and how near the 
parties are to concluding an agreement; and
    (5) Whether the parties are at impasse.
    (d) In each case where a reasonable period of time is at issue, the 
burden of proof is on the proponent of the voluntary-recognition bar to 
show that further bargaining should be required before an election 
petition may be processed.
    (e) This section shall be applicable to an employer's voluntary 
recognition of a labor organization on or after [EFFECTIVE DATE OF 
FINAL RULE].


Sec.  103.22   [Removed]

0
4. Remove Sec.  103.22.

    Dated: October 28, 2022.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2022-23823 Filed 11-3-22; 8:45 am]
BILLING CODE 7545-01-P