[Federal Register Volume 89, Number 148 (Thursday, August 1, 2024)]
[Rules and Regulations]
[Pages 62952-63027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16535]



[[Page 62951]]

Vol. 89

Thursday,

No. 148

August 1, 2024

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; 
Final Rule

  Federal Register / Vol. 89 , No. 148 / Thursday, August 1, 2024 / 
Rules and Regulations  

[[Page 62952]]


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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: Final rule.

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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) 
hereby rescinds and replaces the amendments 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 
rescinds an amendment governing the filing and processing of petitions 
for a Board-conducted representation election in the construction 
industry. The Board believes that the amendments made in this final 
rule 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: This rule is effective September 30, 2024.

FOR FURTHER INFORMATION CONTACT: Roxanne Rothschild, Executive 
Secretary, National Labor Relations Board, 1015 Half Street SE, 
Washington, DC 20570-0001, (202) 273-2917 (this is not a toll-free 
number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Introduction & Overview of the Rulemaking

    As set forth more fully below, on April 1, 2020, the Board made 
various amendments to its rules and regulations governing blocking 
charges, the voluntary-recognition bar doctrine, and 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) (``the April 2020 
rule'').
    First, the April 2020 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 
April 2020 rule, regional directors generally were required for the 
first time since the Act was declared constitutional to conduct an 
election even when an unfair labor practice charge and blocking request 
had been filed. 85 FR 18370, 18375. Moreover, under the April 2020 
rule, regional directors generally were further required to immediately 
open and count the ballots, except in a limited subset of cases where 
the ballots would 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, as discussed more fully below, the April 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.'' See 
Rieth-Riley Construction Co., Inc., 371 NLRB No. 109 (2022).
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    Second, the April 2020 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 April 2020 rule abandoned Lamons Gasket Co., 357 NLRB 
934 (2011), and returned to the approach taken previously by the Board 
in Dana Corp., 351 NLRB 434 (2007). Under the April 2020 rule, neither 
an employer's voluntary recognition of a union, nor the first 
collective-bargaining agreement executed by the parties after 
recognition, bars 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 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, 18391.\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 rule, 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 April 2020 rule became effective on July 31, 2020. See 
Representation--Case Procedures: Election Bars; Proof of Majority 
Support in Construction-Industry Collective-Bargaining Relationships, 
85 FR 20156 (April 10, 2020) (delaying effective date from June 1, 2020 
to July 31, 2020).
    On November 4, 2022, the Board issued a Notice of Proposed 
Rulemaking proposing to rescind and replace the three amendments to its 
rules and regulations made by the April 2020 rule. See Representation--
Case Procedures: Election Bars; Proof of Majority Support in 
Construction-Industry Collective-Bargaining Relationships, 87 FR 66890 
(November 4, 2022). The Board set an initial comment period of 60 days, 
with 14 additional days allotted for reply comments. 87 FR 66890. 
Thereafter the Board extended these deadlines by thirty days. See 
Representation--Case Procedures: Election Bars; Proof of Majority 
Support in Construction Industry Collective-Bargaining Relationships, 
87 FR 73705 (December 1, 2022). The comments are summarized and 
addressed in detail below.
    The effect of the instant final rule, which adopts the NPRM 
proposals with several modifications, discussed below, is to return the 
law in each of those areas to that which existed prior to the adoption 
of the April 2020 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. More

[[Page 62953]]

specifically, under the instant rule, regional directors once again 
have authority to delay an election when a party to the representation 
proceeding requests that its unfair labor practice charge block an 
election, provided the request is supported by an adequate offer of 
proof, the party agrees to promptly make its witnesses available, and 
no exception is applicable. The final rule restores the Board's prior 
applicable law regarding the blocking charge policy. For the sake of 
clarity, the final rule codifies the basic contours of the historical 
blocking charge policy, as well as the pre-April 2020 requirements 
contained in 29 CFR 103.20 in full.\3\ The final rule rescinds current 
Section 103.21 and codifies the traditional voluntary-recognition bar, 
as refined in Lamons Gasket to define the reasonable period for 
collective bargaining that sets the duration of the bar. Lastly, the 
final rule rescinds current Section 103.22 in toto and returns to the 
Board's previously effective caselaw precedent, such as Staunton Fuel 
and Casale Industries, governing the application of the voluntary 
recognition bar and contract bar in the construction industry. After 
carefully considering the comments on the NPRM and the views of the 
April 2020 Board, we conclude that these 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.\4\
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    \3\ Accordingly, the Board expects that the General Counsel will 
restore the provisions addressing blocking charges contained in the 
NLRB Casehandling Manual (Part Two), Representation Proceedings to 
those that existed prior to April 2020 rule.
    \4\ The Board's intention is that the actions taken in this 
final rule be treated as separate and severable. In the Board's 
view, set forth more extensively below, the 2020 rule fails to fully 
promote the Act's policies. The Board's rescissions of the portions 
of the 2020 rule that address the blocking charge policy and the 
voluntary-recognition bar doctrine are intended to be independent of 
its promulgation of the final rule text addressing these subjects. 
If all or portions of the final rule text promulgated here were 
deemed invalid, the Board would nevertheless adhere to its decision 
to rescind the 2020 rule's provisions addressing the blocking charge 
policy and the voluntary-recognition bar doctrine. In that event, 
the Board's view is that the historical blocking charge policy, 
which was developed through adjudication, would again be applied and 
developed consistent with the precedent that was extant before the 
2020 rule was promulgated, unless and until the policy were revised 
through adjudication. Likewise, the Board's view is that the 
voluntary-recognition bar would revert to a caselaw doctrine, 
reflected in the controlling decision that preceded the 2020 rule, 
Lamons Gasket, supra, 357 NLRB 934, insofar as permissible, subject 
to change through adjudication.
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II. Substantive 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 register 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 
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 Steamship 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,\5\ the Board has instituted 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

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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.'').\6\
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    \5\ 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. Petitions to deauthorize union-security provisions 
are classified as UD petitions.
    \6\ 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 rule radically altered each of those policies, and the 
instant rule restores the status quo ante.

A. Blocking Charge Policy

1. The Board's Historical Blocking Charge Policy; Its Rationale and 
Application
    As the Board acknowledged in the notice of proposed rulemaking that 
culminated in the April 2020 rule, the blocking charge policy dates 
back to the early days of the Act. See Representation--Case Procedures: 
Election Bars; Proof of Majority Support in Construction Industry 
Collective-Bargaining Relationships, 84 FR 39930, 39931 (Aug. 12, 
2019). See also United States Coal & Coke Co., 3 NLRB 398, 399 (1937). 
Indeed, prior to the April 2020 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.\7\
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    \7\ See generally The Developing Labor Law 561-563 (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 the instant rule, in discussing the blocking charge 
policy as it existed prior to the April 2020 rule, we often cite to 
older editions of the Developing Labor Law and to versions of 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 April 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 rule, 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 representation proceeding, 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).\8\
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    \8\ 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 required the charging party to both file a 
request to block accompanied by a sufficient offer of proof and to 
promptly make 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. 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 organization's showing of interest was obtained through threats 
or force, allegations that an employer's

[[Page 62955]]

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).\9\ 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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    \9\ 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).\10\
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    \10\ 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 Assn., 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 December 2014 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) (``the 
December 2014 rule''). As the Board acknowledged when adopting the 
April 2020 rule (85 FR at 18376-18377), the Board also made certain 
modifications to the blocking charge policy as a part of its December 
2014 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 at 74419; 29 CFR 130.20. The December 2014 
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 
at 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 at 74419-74420.
    Two Board members dissented from the December 2014 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 at 74456.
    The Board majority rejected the dissenters' proposal to conduct 
elections in all cases involving Type I charges. The December 2014 rule 
explained that the dissenting Board Members had not identified any 
compelling reason to abandon a policy continuously applied since 1937. 
79 FR at 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 December 2014 rule. See Associated Builders & 
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

[[Page 62956]]

effective date of the April 2020 rule, 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 the 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 84 FR 39930, 
39937-39938. 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 that led to the April 2020 final rule 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 2019 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. 84 FR 39946 fn. 71, 39947 fn. 74.
    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 39943-39944 & fn. 63; available at 
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, Section 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/guidance/memos-research/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/guidance/memos-research/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.'' 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, 
[currently] available at https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/member-mcferran-dissent-appendix.pdf. 
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

[[Page 62957]]

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, 39947 fn. 74.
    The majority did not correct the errors before issuing the 2019 
NPRM. 84 FR 39930-39939 & fn. 15.\11\
---------------------------------------------------------------------------

    \11\ After issuance of the NPRM, Bloomberg Law analyzed the data 
cited by the Board Majority in support of the 2019 NPRM and found 
that the Board Majority's empirical assertions were flawed. See Alex 
Ebert and Hassan A. Kanu, ``Federal Labor Board Used Flawed Data to 
Back Union Election Rule,'' Bloomberg Law (Dec. 5, 2019), available 
at https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X1NF9E1C000000?bna_news_filter=daily-labor-report (``[A] Bloomberg 
Law review of data supporting the rulemaking found dozens of cases 
in which the board overstated the length of delays attributable to 
blocking charges over the last three years--overshooting the mark in 
one instance by more than 12 years, and in another by five years.'' 
Id. ``The board's data overcounted delays in more than one-third of 
cases--55 in all--in which they said blocking charges were 
filed.''). After publication of the Bloomberg Law article, the Board 
still did not issue a new NPRM correcting the data.
---------------------------------------------------------------------------

    As noted, on April 1, 2020, the Board issued a final rule 
substantially eliminating the blocking charge policy. 85 FR 18366.\12\ 
The April 2020 rule differed from the 2019 NPRM. Unlike the 2019 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 April 2020 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, 
18399. The April 2020 rule also provided that notwithstanding a request 
to block based on a pending charge alleging certain specified types of 
Type 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 remain impounded pending a final 
determination by the Board). 85 FR 18369-18370, 18374, 18399. In short, 
under the April 2020 rule, a blocking charge request normally does not 
delay an election, and only rarer still delays the count of the 
ballots. 85 FR 18370, 18375, 18399. Nevertheless, the April 2020 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.
---------------------------------------------------------------------------

    \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 virtually all elections involving blocking charges 
essentially for the reasons contained in the 2019 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 2019 NPRM and in the Bloomberg law article, supra 
fn. 11, the Board stated in the final rule:

    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 blocking charge amendments became effective on July 
31, 2020. See 85 FR 20156.

B. The Voluntary-Recognition Bar

1. The Historical Development of the Voluntary-Recognition Bar
    The NPRM carefully examined the historical development of the 
voluntary-recognition bar, culminating in the adoption of the April 
2020 final rule and the Board's experience under that rule. 87 FR 
66895-66898. We briefly summarize that discussion here.
    Voluntary recognition of unions by employers, based on the union's 
majority support among employees, is firmly grounded in the provisions 
and policies of the National Labor Relations Act. The explicit policies 
of the Act, expressed in Section 1, are to ``encourage[e] the practice 
and procedure of collective bargaining'' and to ``protect[ ] the 
exercise by workers of . . . designation of representatives of their 
own choosing, for the purpose of negotiating the terms and conditions 
of their employment.'' 29 U.S.C. 151. The Act expressly endorses 
``practices fundamental to the friendly adjustment of industrial 
disputes arising out of differences as to wages, hours, or other 
working conditions.'' Id. (emphasis added). Section 8(a)(5) of the Act 
accordingly 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

[[Page 62958]]

designated or selected . . . by the majority of the employees'' in an 
appropriate unit. 29 U.S.C. 159(a) (emphasis added). Finally, Section 
9(c)(1)(A)(i) provides that employees seeking union representation may 
file an election petition with the Board if they allege ``that their 
employer declines to recognize their representative.'' 29 U.S.C. 
159(c)(1)(A)(i) (emphasis added).
    Thus, as the Supreme Court has observed, an employer may lawfully 
choose to recognize a union as the representative of its employees, 
based on a showing that a majority of employees have designated the 
union, as opposed to insisting on a Board-conducted representation 
election.\13\ Once an employer voluntarily recognizes a majority-
supported union, the union becomes the exclusive bargaining 
representative of employees, and the employer has a duty to bargain 
with it.\14\ The Act does not impose any procedural restrictions on 
voluntary recognition beyond the requirement that the union have 
majority support.\15\ Nor does the Act suggest in any way that a 
lawfully recognized union lacks the same full authority to represent 
workers as a Board-certified union. Both are the exclusive 
representative of employees with whom the employer must bargain.\16\
---------------------------------------------------------------------------

    \13\ NLRB v. Gissel Packing Co., 395 U.S. 575, 595-597 (1969); 
United Mine Workers, 351 U.S. at 72 fn. 8.
    \14\ See, e.g., Brown & Connolly, Inc., 237 NLRB 271, 275 
(1978), enfd. 593 F.2d 1373 (1st Cir. 1979).
    \15\ If the union lacks majority support, measured by the number 
of employees in the bargaining unit, then the employer's voluntary 
recognition violates Sec. 8(a)(2) of the Act, which makes it an 
unfair labor practice for an employer ``to dominate or interfere 
with the formation or administration of any labor organization or 
contribute financial or other support to it.'' International Ladies' 
Garment Workers' Union v. NLRB (Bernhard-Altmann), 366 U.S. 731, 733 
fn. 2, 738 (1961). Notably, to be certified by the Board through an 
election, a union need only win a majority of voting employees, 
regardless of the size of the bargaining unit. RCA Mfg. Co., 2 NLRB 
159, 177-178 (1936).
    \16\ To be sure, a union that has been certified by the Board as 
the result of an election enjoys certain specific protections and 
privileges--related to protecting their representative status, 
including from challenges by rival unions--that are not extended to 
voluntarily recognized unions. Thus, Sec. 9(c)(3) of the Act, in 
providing that another Board election may not be held for twelve 
months after a valid election, effectively insulates a certified 
union from a rival's challenge for that period. In addition, the Act 
confers on certified unions: (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).
    No other provision of the Act treats certified unions and 
recognized unions differently, and certainly not with respect to 
their role as bona fide representatives of a bargaining unit. 
Reading into the Act any broader Congressional intent to treat 
recognized unions less favorably would be unwarranted. See United 
Mine Workers, supra, 351 U.S. at 73 (addressing statutory 
consequences of union's failure to comply with certain since-
repealed requirements and observing that the ``very specificity of 
the advantages to be gained and the express provision for the loss 
of these advantages imply that no consequences other than those so 
listed shall result from noncompliance'').
---------------------------------------------------------------------------

    In 1966, the Board instituted the voluntary-recognition bar 
doctrine, temporarily insulating a recognized union from challenge to 
its representative status for a reasonable period for collective 
bargaining and so protecting the newly formed bargaining 
relationship.\17\ The principle that a rightfully established 
bargaining relationship must be given a ``fair chance to succeed'' 
before being tested had already been recognized by the Supreme 
Court,\18\ which had also endorsed the Board's adoption of a 
certification bar, insulating a Board-certified union from challenge 
for one year.\19\ The voluntary-recognition bar doctrine was modeled on 
existing bar doctrines protecting not only bargaining relationships 
established by Board certification of a union following an election, 
but also relationships established by a Board order in an unfair labor 
practice case or by an unfair labor practice settlement.\20\
---------------------------------------------------------------------------

    \17\ Keller Plastics Eastern, Inc., 157 NLRB 583 (1966) 
(establishing voluntary-recognition bar for unfair labor practice 
cases); Universal Gear Service Corp., 157 NLRB 1169 (1966) (applying 
voluntary-recognition bar in unfair labor practice case), enfd. 394 
F.2d 396 (6th Cir. 1968); Sound Contractors Assn., 162 NLRB 364 
(1966) (establishing voluntary-recognition bar for representation 
cases).
    \18\ Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944) 
(upholding bargaining order against employer, despite union's loss 
of majority support, and observing that ``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'').
    \19\ Brooks v. NLRB, 348 U.S. 96, 100 (1954) (upholding 
certification bar and endorsing principle that ``[a] union should be 
given ample time for carrying out its mandate on behalf of its 
members, and should not be under exigent pressure to produce hot-
house results or be turned out'').
    \20\ Keller Plastics, supra, 157 NLRB at 586-587. The Keller 
Plastics Board observed:
    [L]ike 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 587.
---------------------------------------------------------------------------

    The Board's voluntary-recognition bar doctrine became well 
established over the next 40 years.\21\ It was upheld by every federal 
court of appeals presented with the issue on review, as reflected in 
decisions from the District of Columbia, Second, Third, Sixth, Seventh, 
and Ninth Circuits.\22\ In 1988, for example, the Court of Appeals for 
the District of Columbia Circuit explained that whatever advantages an 
election may have 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.' '' \23\
---------------------------------------------------------------------------

    \21\ For cases applying the voluntary-recognition bar during 
this period, see, e.g., Universal Gear Service Corp., supra, 157 
NLRB 1169; Montgomery Ward & Co., 162 NLRB 294 (1966), enfd. 399 
F.2d 409 (7th Cir. 1968); Blue Valley Machine & Mfg. Co., 180 NLRB 
298 (1969), enfd. in relevant part 436 F.2d 649 (8th Cir. 1971); 
Broad Street Hospital & Medical Center, 182 NLRB 302 (1970), enfd. 
452 F.2d 302 (3d Cir. 1971); Timbalier Towing Co., 208 NLRB 613 
(1974); Whitemarsh Nursing Center, 209 NLRB 873 (1974); Rockwell 
International Corp., 220 NLRB 1262 (1975); Brown & Connolly, Inc., 
supra, 237 NLRB 271; Ford Center for the Performing Arts, 328 NLRB 1 
(1999); MGM Grand Hotel, Inc., 329 NLRB 464 (1999); and Seattle 
Mariners, 335 NLRB 563 (2001).
    \22\ See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1247-
1248 (D.C. Cir. 1994); NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 
1380, 1383-1384 (2d Cir. 1973); NLRB v. Frick Co., 423 F.2d 1327, 
1332 (3d Cir. 1970); 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, 398 (6th Cir. 1968).
    \23\ 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)).
---------------------------------------------------------------------------

    In 2007, however, the decision of a divided Board in Dana Corp., 
supra, 351 NLRB 434, undercut the doctrine. Dana imposed new 
preconditions for application of the voluntary-recognition bar, 
introducing a notice-and-election procedure. Under that procedure, 
after voluntarily recognizing a union, employers were required to post 
a notice informing employees of their right to file a decertification-
election petition, or to support a rival union's representation 
petition, within 45 days. A petition supported by at least 30 percent 
of bargaining-unit employees would be processed by the Board, leading 
to an election. In other words, no allegation or evidence that the 
recognized union lacked majority support, whether at the time it was 
recognized or thereafter, was required. Only if no election petition 
were filed within the 45-day period following the notice posting would 
the voluntary-recognition bar apply.
    The Dana Board majority acknowledged that voluntary recognition was 
``undisputedly lawful'' under the Act \24\ and that ``[s]everal courts 
of appeals ha[d] endorsed the [existing] recognition-bar doctrine.'' 
\25\ But it asserted that ``[t]here is good reason to question whether 
[union-authorization] card signings [used to

[[Page 62959]]

demonstrate a union's majority support] accurately reflect employees' 
true choice concerning union representation.'' \26\ The Dana Board 
accordingly justified the new notice-and-election procedure by 
concluding that the ``immediate post[-]recognition imposition of an 
election bar does not give sufficient weight to the protection of the 
statutory rights of affected employees to exercise their choice on 
collective bargaining representation through the preferred method of a 
Board-conducted election.'' \27\
---------------------------------------------------------------------------

    \24\ 351 NLRB at 436.
    \25\ Id. at 441.
    \26\ Id. at 439.
    \27\ Id. at 434.
---------------------------------------------------------------------------

    Four years later, in Lamons Gasket, decided in 2011, the Board 
reversed the Dana decision, abandoned its novel notice-and-election 
procedure, and reinstated the traditional voluntary-recognition bar 
with one significant modification. For the first time, the Board 
defined the reasonable period for bargaining that established the 
length of the voluntary-recognition bar. It fixed the period at no less 
than six months, but no more than one year, and incorporated the 
multifactor test used by the Board to determine the analogous period 
when an employer has been ordered to bargain with a union.\28\
---------------------------------------------------------------------------

    \28\ 357 NLRB at 748 & fn. 34 (citing Lee Lumber & Building 
Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 
2002)).
---------------------------------------------------------------------------

    The Lamons Gasket Board carefully refuted the rationale of the Dana 
decision. It observed that, as demonstrated by the Act's provisions, 
Congress had endorsed the practice of voluntary recognition and had not 
subordinated it to the election process as a means for employees to 
exercise free choice concerning union representation.\29\ It pointed to 
the Board's administrative experience under the Dana notice-and-
election procedure, observing that experience refuted the Dana Board's 
skepticism that voluntarily recognized unions actually had majority 
support among employees: in only 1.2 percent of the cases in which a 
Dana notice was requested did employees ultimately decertify a 
voluntarily recognized union through an election.\30\ It characterized 
the Dana notice-and-election procedure as inviting employees to 
reconsider their choice to be represented, which inappropriately 
suggested ``that the Board considers their choice . . . suspect.'' \31\ 
It explained that the voluntary-recognition bar doctrine was consistent 
with the Board's other bar doctrines, all of which ``share the same 
animating principle: that a newly created bargaining relationship 
should be given a reasonable chance to succeed before being subject to 
challenge.'' \32\ Finally, the Lamons Gasket Board pointed out that by 
creating a period of uncertainty about the union's representative 
status, the Dana notice-and-election procedure unnecessarily interfered 
with the bargaining process and made successful bargaining less 
likely.\33\
---------------------------------------------------------------------------

    \29\ Id. at 740-742.
    \30\ Id. at 742.
    \31\ Id. at 744.
    \32\ Id. That principle was especially applicable in the case of 
bargaining relationships established voluntarily, the Board noted, 
because the Act not only explicitly promotes collective bargaining, 
but also encourages workplace cooperation, without government 
intervention, to avoid labor disputes. Id. at 746 (citing, inter 
alia, H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970)) (``The 
object of th[e] Act was not to allow governmental regulation of the 
terms and conditions of employment, but rather to insure that 
employers and their employees could work together to establish 
mutually satisfactory conditions.'').
    \33\ Id. at 747.
---------------------------------------------------------------------------

2. The April 2020 Amendments to the Voluntary-Recognition Bar
    Lamons Gasket remained Board law for nine years \34\ until it was 
overruled by the Board's 2020 rule, which essentially reinstated and 
codified the Dana notice-and-election procedure as Section 103.21 of 
the Board's Rules and Regulations, 29 CFR 103.21. Under the 2020 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.
---------------------------------------------------------------------------

    \34\ During that period, no judicial decision had cast doubt on 
Lamons Gasket or questioned the long-established, judicially 
approved voluntary-recognition bar.
---------------------------------------------------------------------------

    The Board's justification for the 2020 rule adhered closely to the 
rationale of the Dana decision. The Board described elections as the 
statutorily preferred method for resolving questions concerning 
representation, citing Section 9(c)(3) of the Act (which prohibits a 
new election for the year following a valid election) and the specific 
statutory advantages granted only to Board-certified unions.\35\ It 
noted that the Board did not supervise the recognition process and 
rejected the notion that the Act's unfair labor practice provisions 
were sufficient to address coercive conduct related to voluntary 
recognition.\36\ Elections had the advantage of ``present[ing] a clear 
picture of employee voter preference at a single moment,'' the Board 
claimed. The reinstituted Dana notice-and-election procedure, the Board 
added, did not restrict or limit voluntary recognition or the 
bargaining obligations that follow from recognition. According to the 
Board, the new rule was also supported by the possibility that a 
recognized union would reach a collective-bargaining agreement during 
the bar period, triggering the separate, long-established contract-bar 
doctrine and extending the period during which the union's 
representative status could not be challenged.\37\ These arguments, 
first advanced in Dana, had been persuasively addressed by the Lamons 
Gasket decision, which the 2020 rule overruled.
---------------------------------------------------------------------------

    \35\ 85 FR 18381.
    \36\ Id.
    \37\ Id.
---------------------------------------------------------------------------

    In overruling Lamons Gasket, the 2020 rule Board acknowledged the 
administrative experience under the Dana notice-and-election procedure 
(only 4.65 percent of Dana notices resulted in election petitions, and 
employees decertified voluntarily recognized unions in only 1.2 percent 
of cases in which a Dana notice was requested), but rejected the view 
that the Dana procedure had been revealed as unnecessary.\38\ Instead, 
the Board focused on the fact that when a Dana election was held, the 
union was decertified about one-quarter of the time, and declined to 
infer--from the more than 95 percent of Dana notice cases in which no 
election petition was filed--that voluntarily recognized unions 
typically have majority support.\39\ There was no evidence, the Board 
observed in turn, that the Dana procedure had discouraged voluntary 
recognition or discouraged or delayed collective bargaining.\40\ In the 
Board's view, the cost to recognized unions of diverting resources from 
bargaining to campaigning was outweighed by the benefit of permitting 
employees to vote in an election.\41\
---------------------------------------------------------------------------

    \38\ Id. at 18383.
    \39\ Id.
    \40\ Id. at 18384.
    \41\ Id. at 18385.
---------------------------------------------------------------------------

3. The 2022 Proposed Rule
    In the NPRM, the Board explained that it ``propose[d] to rescind 
the current Sec.  103.21 of the Board's Rules and

[[Page 62960]]

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.'' \42\ The Board stated its preliminary view that ``restoring 
the voluntary-recognition bar, in its more traditional form . . . 
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.'' \43\
---------------------------------------------------------------------------

    \42\ 87 FR 66909. The proposed rule was limited to the 
representation-case context; the Board invited comment on whether 
the final rule should extend to unfair labor practices cases as 
well, e.g., case where an employer is alleged to have violated Sec. 
8(a)(5) by withdrawing recognition from a union, before a reasonable 
period for bargaining has elapsed. Id. The Board also specifically 
invited comment on whether it should adhere to the Board's decision 
in Smith's Food, supra, 320 NLRB 844, reaffirmed in Lamons Gasket, 
which governs situations in which a rival union files an election 
petition following the employer's voluntary recognition of another 
union. 87 FR 66910. Finally, the Board invited comment on the 
reasonable period for bargaining defined in the proposed rule and 
the effect of Sec. 103.21 on the collective-bargaining process. Id.
    \43\ Id.
---------------------------------------------------------------------------

    In explaining its preliminary support for rescission of the 2020 
rule and codification of Lamons Gasket, the Board observed that 
experience under existing Section 103.21 ``seems to show that voluntary 
recognition almost always reflects employee free choice accurately.'' 
\44\ If Section 103.21 were premised on suspicion of voluntary 
recognition, in turn, it would be ``in obvious tension'' with the Act 
itself and with the Supreme Court's Gissel decision, which permit 
lawful--and enforceable--bargaining relationships to be established 
without a Board election.\45\ The Board noted, among other things, 
that: (1) several federal appellate courts had endorsed the voluntary-
recognition bar, while none had rejected it; and (2) the 2020 Board had 
argued neither that the voluntary-recognition bar was irrational or 
inconsistent with the Act, nor that the current notice-and-election 
procedure was compelled by the Act.\46\ The Board invoked the 
traditional, judicially-approved rationale for the recognition-bar 
doctrine: that, like other bar doctrines, it served to promote 
collective bargaining by protecting a bargaining relationship until it 
had a fair chance to succeed.\47\ The Board expressed its initial view 
that the existing notice-and-election procedure ``has a significant 
potential to interfere with effective collective bargaining'' by 
subjecting a recognized union to challenges to its status as it sought 
to bargain or to administer a first collective-bargaining 
agreement.\48\
---------------------------------------------------------------------------

    \44\ Id.
    \45\ Id. at 66910.
    \46\ Id. at 66909-66910.
    \47\ Id. at 66910. As noted previously, the Board specifically 
invited public comment on how the final rule should define a 
reasonable period for collective bargaining, establishing the 
duration of the voluntary-recognition bar. Id.
    \48\ Id.
---------------------------------------------------------------------------

    The Board also observed that the current rule permits such a 
challenge without evidence that the recognized union--which was 
required to show majority support in the bargaining-unit as a whole--
had not been freely chosen and without a showing that it had since lost 
majority support in the unit.\49\ Indeed, the union could lose its 
representative status based on an election decided by a majority of 
voting employees that might comprise a minority of unit employees.\50\ 
That process thus tended to undermine, not promote, employee free 
choice, in the Board's preliminary view.\51\
---------------------------------------------------------------------------

    \49\ Id.
    \50\ Id.
    \51\ Id.
---------------------------------------------------------------------------

    Finally, the Board addressed its experience under the notice-and-
election procedure restored by Section 103.21. It expressed the 
preliminary view that this ``experience provides no evidence that 
voluntary recognition is suspect'' and thus that the current rule would 
seem to have a reasonable tendency both to ``undermine employee free 
choice (as reflected in the lawful designation of the voluntarily 
recognized union) and to interfere with effective collective 
bargaining.'' \52\ Examining the relevant data, the Board suggested it 
showed ``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.'' \53\ This tentative conclusion, 
the Board observed, was entirely consistent with the relevant data 
developed under the original Dana notice-and-election procedure.\54\ 
The Board explained why, in line with the Lamons Gasket decision, it 
was inclined to disagree with the 2020 Board's dismissal of the data 
under Dana.\55\ In any case, the Board observed, the ``data offer no 
affirmative suggestion that voluntary recognition is suspect as a means 
of ascertaining employee choice.'' \56\
---------------------------------------------------------------------------

    \52\ Id. at 66911. The Board ``invite[d] commenters to submit 
additional empirical evidence to inform our views on this subject.'' 
Id.
    \53\ Id. The Board observed that ``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.'' 
Id. In the NPRM, the Board provided a quarter-by-quarter description 
of the administrative data from the inception of the 2020 rule 
through June 30, 2022. Id. at 66898. For this period, 260 requests 
for notices following voluntary recognition were filed with the 
Board. Id. In those cases, one election petition was subsequently 
filed, and no elections were held. In the one case where a petition 
was filed, the union disclaimed interest after its filing. Id. Thus, 
only 0.4 percent of recognition-notice requests resulted in election 
petitions and 0 percent of notices resulted in actual elections. If 
we count the union's disclaimer as equivalent to a decertification 
following an election loss, then employees opted not to retain the 
voluntarily recognized union in only 0.4 percent of the total cases 
in which recognition notices were requested. Id.
    \54\ Id. at 66911.
    \55\ Id. at 66911-66912.
    \56\ Id. at 66912.
---------------------------------------------------------------------------

    In the interest of transparency, we provide in quarterly detail the 
administrative data made available since the NPRM issued, which is 
consistent with prior data cited in the NPRM and in the Lamons Gasket 
decision.\57\ We have placed this new data in the administrative 
record, but we do not rely on it as a basis for the final rule. We also 
provide a consolidated tally of all experience based on data 
practicably available from the inception of the 2020 rule until the 
issuance of this final rule.\58\
---------------------------------------------------------------------------

    \57\ Since the issuance of the NPRM, NLRB FOIA data has been 
migrated to a new website. The new location for the previously 
listed data from the NPRM is: https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155, under the following file 
names: 2024-NLFO-00812-VR Cases Received Calendar Year 2020.xlsx; 
2024-NLFO-00812-VR Cases Received Calendar Year 2021.xlsx; 2024-
NLFO-00812-VR Cases Received Calendar Year 2022.xlsx. Note that, 
although the files are organized by calendar year, the files include 
tabs that contain the quarterly (or other incrementation) data under 
which the data was analyzed in the NPRM.
    \58\ The administrative data show as follows:
    For the period from July 1, 2022, through September 30, 2022, 
administrative data shows 54 voluntary recognition notice requests 
in NLRB regions. None resulted in a petition being filed. However, 
in one case a petition was withdrawn under unknown circumstances.
    For the period from October 1, 2022 through December 31, 2022, 
there were 52 notice requests. In two instances decertification 
petitions were filed. In one of these, the union disclaimed interest 
and in the other the union prevailed 14-8 in an election.
    For the period from January 1, 2023 through March 31, 2023, 
there were 39 notice requests. In one instance a petition was 
dismissed and the notice pulled because of the union's lack of cards 
and in another the matter was closed because of the union's lack of 
cooperation.
    For the period from April 1, 2023 through June 30, 2023, 92 
notice requests occurred. In one case a decertification petition was 
dismissed for lack of a showing of interest. In another, the 
recognized union apparently stepped aside to allow another union to 
process its petition.
    During the period from July 1, 2023 through September 30, 2023, 
there were 51 notice requests and no petitions filed. Two notice 
requests were apparently withdrawn, but no additional detail was 
provided.
    For the period from October 1, 2023 through December 31, 2023, 
the administrative data shows that 69 notices were requested and no 
petitions were filed.
    For the period from January 1, 2024 through March 31 2024, the 
administrative data shows that 59 notices were requested and no 
petitions were filed.
    We discount the three instances where the notice request was 
withdrawn and/or the notice matter was closed (given the lack of 
information as to why this occurred in each case), conservatively 
construe the disclaimer case and the case where the matter was 
closed because the union appeared to lack cards as cases where the 
notice posting resulted in a change in representative status, and 
count the cases of a union victory and a decertification 
petitioner's lack of sufficient signatures as cases where the notice 
posting failed to effect a change in status.
    Thus, we have the following totals: 413 notice requests, 
possibly leading to a change in representative status in 2 cases, 
i.e., less than one percent (0.5%), of the total number.
    The data is publicly available at the following URL: https://www.securerelease.us/public-reading-room/agency/1509aa51-5edc-4d54-af75-f29074bde82c/component/794f2cd1-e0e1-466d-bb26-919fe5283155, 
under the following files (which, for 2022 and 2023, are internally 
organized by tabs corresponding to each calendar quarter): 2024-
NLFO-00812-VR Cases Received Calendar Year 2022.xlsx; 2024-NLFO-
00812-VR Cases Received Calendar Year 2023.xlsx; 2024-NLFO-01446-
final-VR cases received 1-1-2024 thru 3-31-2024.xlsx.

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[[Page 62961]]

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

1. The Board's Historical Treatment of 9(a) Recognition in the 
Construction Industry
    As discussed in greater detail in the NPRM, in response to the 
unique characteristics of the construction industry, Congress amended 
the Act in 1959 to adopt Section 8(f), which provides a limited 
exception to the Act's Section 9(a) requirement that a union must have 
majority support among the employees in an appropriate unit to be 
recognized as the exclusive collective-bargaining representative. 
Section 8(f) permits a construction employer and a union to enter into 
a prehire agreement establishing the union as the exclusive collective-
bargaining representative, even where the union does not have the 
support of a majority of the construction employer's employees under 
Section 9(a).
    In the seminal case of John Deklewa & Sons, the Board set forth a 
framework for applying Section 8(f) to further the dual Congressional 
objectives that prompted its enactment: ``attempt[ing] to lend 
stability to the construction industry while fully protecting employee 
free choice principles.'' 282 NLRB 1375, 1388 (1987), enfd. sub nom. 
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 
488 U.S. 889 (1988).
    As recounted in the NPRM, the Deklewa Board was mindful of a 
critical principle underlying Section 8(f): unions representing 
employees in the construction industry should not be treated less 
favorably than unions in other industries, including with regard to 
permitting a construction employer to be able to voluntarily recognize 
a union with majority support as its employees' 9(a) representative. 
Id. at 1387 fn. 53. Unions with majority support may choose to seek 
9(a) recognition because, unlike where there is only an 8(f) 
relationship, it would allow them to enjoy the full panoply of rights 
and obligations available to unions serving as the exclusive 
collective-bargaining representative of employees in all other 
industries, including the irrebuttable presumption of majority support 
during the first three years of the contract and a rebuttable 
presumption of majority support at other times such as at the 
contract's expiration. Id. at 1385, 1387. Consequently, the Board in 
Deklewa adopted a rebuttable presumption that a collective-bargaining 
relationship in the construction industry is established under Section 
8(f), but provided that a union asserting 9(a) status could rebut that 
presumption. Id. at 1385 fn. 41. For the 8(f) relationship to become a 
9(a) relationship, a union--like unions representing employees in 
nonconstruction industries--must demonstrate a ``clear showing of 
majority support'' from the unit employees. Id. at 1385-1387 & fn. 53. 
Thus, both within the construction industry and outside it, 
establishing a bargaining relationship under Section 9(a) requires a 
proffered showing of majority support for the union.
    Because Section 8(f) uniquely permits, in the construction 
industry, voluntary recognition in the absence of majority support, the 
Board has sought to avoid uncertainty over whether a grant of 
recognition is pursuant to Section 8(f) or 9(a) by requiring that 9(a) 
recognition in the construction industry be supported by positive 
evidence acknowledging a union's 9(a) status, such as agreed-upon 
language in a collective-bargaining agreement. 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 9(a) 
relationship 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, despite 
conflicting evidence as to whether the employer saw the union's 
authorization cards).
    In Staunton Fuel & Material, Inc., supra, the Board defined the 
minimum requirements for what must be stated in a written recognition 
agreement or a contract clause in a collective-bargaining agreement for 
it to suffice as evidence of a union having attained 9(a) status. 335 
NLRB at 719-720. The Board in Staunton Fuel, following the approach of 
the Tenth Circuit, 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.'' Id. at 719-720 
(citing NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147, 1154 (10th 
Cir. 2000), and NLRB v. Oklahoma Installation Co., 219 F.3d 1160 (10th 
Cir. 2000)). Outside of the construction industry, where there is no 
8(f) recognition, no similar evidentiary formality is needed for 
voluntary recognition because there is no need to distinguish 
presumptive 8(f) recognition from 9(a) majority recognition.
    Significantly, the contract language attesting to a construction 
employer's 9(a) recognition of a union neither itself bestows 9(a) 
status nor substitutes for a union showing or offering to show evidence 
of its majority support. It does, however, provide a contemporaneous, 
written memorialization that a union had majority support at the time 
of the initial 9(a) recognition. Relying on the contract language is 
much preferable to trying to ascertain years in the future, should the 
union's 9(a) status later be challenged, whether the purported majority 
support had existed at the inception of the 9(a) relationship--in some 
cases many years before a dispute over a union's status has arisen--
when evidence may no longer be easily available as witnesses and 
documents may disappear over time. Instead, the Board and the parties 
can look to the language adopted as a part of the parties' agreement to 
confirm that majority support existed when the 9(a) relationship was 
initially established.
    Moreover, the Board in Staunton Fuel recognized that contract 
language can

[[Page 62962]]

only serve as evidence of a union's 9(a) status if it is true. Because 
contract language alone would not necessarily evidence a union's 
majority support where there are questions about its veracity, the 
Board in Staunton Fuel left open the possibility that an employer could 
challenge the union's majority support within the 10(b) period. Id. at 
720 & fn. 14. Staunton Fuel did not alter the Board's longstanding 
practice of considering all available evidence bearing on the nature of 
the parties' bargaining relationship where the contract language alone 
is not conclusive of whether the parties intended to establish a 9(a) 
rather than an 8(f) relationship. Id. at 720 fn. 15.
    As the District of Columbia Circuit has recognized, if other 
evidence casts doubt on the assertion that the union enjoyed majority 
support at the time the employer purportedly granted 9(a) recognition, 
the contract language necessarily fails to satisfy its intended purpose 
and cannot be relied upon to demonstrate 9(a) status. For instance, in 
Nova Plumbing, Inc. v. NLRB, the District of Columbia Circuit reasoned 
that language in a collective bargaining ``cannot be dispositive at 
least where, as here, the record contains strong indications that the 
parties had only a section 8(f) relationship.'' 330 F.3d 531, 537 (D.C. 
Cir. 2003). The court pointed to strong evidence in the record that 
contradicted the contract language. Id. at 533. Subsequently, in M & M 
Backhoe Service, Inc. v. NLRB, the District of Columbia Circuit 
distinguished Nova Plumbing to uphold 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. 469 F.3d 1047, 1050 (D.C. 
Cir. 2006).
    Six years after M & M Backhoe, in Allied Mechanical Services, Inc. 
v. NLRB, the District of Columbia Circuit quoted the Nova Plumbing 
court but, in doing so, added emphasis to specify that the contract 
language cannot be dispositive of a union's 9(a) status in situations 
where the record contains contrary evidence. 668 F.3d 758, 766 (2012). 
More recently, in Colorado Fire Sprinkler, Inc. v. NLRB, the District 
of Columbia Circuit 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. 
891 F.3d 1031, 1040-1041 (D.C. Cir. 2018). 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 Section 9(a) status.'' Id. at 1041.
    In Enright Seeding, Inc., the Board noted that neither Nova 
Plumbing nor Colorado Fire Sprinkler involved situations where the 
court rejected the union's claim of 9(a) status based solely on 
contract language because in both cases other evidence existed calling 
into question the union's majority status. 371 NLRB No. 127, slip op. 
at 4 fn. 18 (2022). However, responding to both court decisions, the 
Board clarified that ``contractual language can only serve as evidence 
of a union's 9(a) majority representation if it is true.'' Id. at 5. 
``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 alone is insufficient to 
demonstrate the union's 9(a) status.'' Id. at 3-4.
    As the Board noted in the NPRM, where there has been unlawful 9(a) 
recognition of a minority union, Staunton Fuel does not change 
longstanding Board precedent that an employer--regardless of whether a 
construction employer or a nonconstruction employer--engages in 
``unlawful support.'' See Bernhard-Altmann, 366 U.S. at 738 (``The law 
has long been settled that a grant of exclusive recognition to a 
minority union constitutes unlawful support in violation of [Section 
8(a)(2)], because the union so favored is given `a marked advantage 
over any other in securing the adherence of employees.' '') (quoting 
NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 267 (1938)). Even 
if done in good faith, an employer violates Section 8(a)(2) and (1) by 
extending 9(a) recognition to a union that does not enjoy majority 
support, and the union's acceptance of such recognition in these 
circumstances violates Section 8(b)(1)(A). See Joseph Weinstein 
Electric Corp., 152 NLRB 25, 39 (1965) (finding a construction 
employer's 9(a) recognition of and entering into an agreement with a 
union that does not enjoy majority support unlawful under Section 
8(a)(2) and (1) and 8(b)(1)(A)).
    Because an employer voluntarily recognizing a union and entering 
into a collective-bargaining agreement creates a contract bar of up to 
3 years, no question of representation can be raised during that time. 
Thus, an employee or a rival union that seeks to challenge the 
propriety of the recognition generally cannot do so in a representation 
proceeding; rather, that allegation must be investigated and 
adjudicated in an unfair labor practice proceeding. If the Board finds 
that the employer entered into an agreement with a union that was a 
minority representative, the Board will remedy the violation by 
ordering the employer to cease recognizing the union and to repudiate 
the collective-bargaining agreement. See, e.g., Bear Creek Construction 
Co., 135 NLRB 1285, 1286-1287 (1962) (ordering a construction employer 
that provided unlawful assistance to a union in obtaining membership 
applications and checkoff authorization cards to cease and desist from 
recognizing the union as its employees' collective-bargaining 
representative and giving effect to the parties' agreement).
    With this safeguard against employer and union collusion in place, 
Staunton Fuel promotes critical federal labor law policies, including 
protecting employee free choice while fostering stability in 
collective-bargaining relationships. It also prevents construction 
employers from evading their duties under bargaining relationships that 
they entered into voluntarily and challenging an initial grant of 9(a) 
recognition from years earlier, since evidence confirming the union's 
majority support may no longer be available. After all, memories fade 
and the witnesses and documents pertinent to the initial 9(a) 
recognition disappear over time. Thus, Staunton Fuel furthers the 
policies of the Act and those set forth in Deklewa.
    As recounted in the NPRM, six years after issuing Deklewa, the 
Board in Casale Industries fashioned a limitations period for 
challenging an initial grant of 9(a) recognition by relying on the same 
basic tenet from Deklewa discussed above--that unions representing 
construction-industry employees should be treated no less favorably 
than those representing nonconstruction-industry employees. The Board 
explicitly incorporated 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, 362 U.S. 411, 
419 (1960), barring a challenge to a union's majority support if more 
than 6 months had elapsed from when it was initially granted 
recognition. 311 NLRB 951, 953 (1993).
    The Court in Bryan Manufacturing based its decision on not only the 
statutory language of Section 10(b) of the Act but also the practical 
need for a time restriction on anyone--employers, unions, and 
employees--

[[Page 62963]]

from challenging a union's initial recognition. 362 U.S. at 416-417. 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.'' Id. at 419.
    The Casale Board concluded that the same interests acknowledged by 
the Court in Bryan Manufacturing should prevail in construction-
industry representation cases: ``[P]arties in nonconstruction 
industries, who have established and maintained a stable Section 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.'' 311 NLRB at 953 (citing Deklewa, 282 
NLRB at 1387 fn. 53); see also NLRB v. Triple A Fire Protection, Inc., 
136 F.3d 727, 737 (11th Cir. 1998), cert. denied 525 U.S. 1067 (1999).
2. The April 2020 Amendments to 9(a) Recognition in the Construction 
Industry
    In the April 2020 rule, the Board adopted the proposed language 
from its August 12, 2019 NPRM to overrule Staunton Fuel, regarding the 
purported sufficiency of contract language alone to establish a 9(a) 
bargaining relationship. The April 2020 rule required, in the 
representation context, that parties retain additional positive 
evidence, beyond the parties' contract language, of the union's 
majority support at the time of its initial 9(a) recognition if they 
seek to rely on either the Board's voluntary recognition bar or 
contract bar in response to a challenge to the union's presumption of 
majority support. Moreover, under the April 2020 rule, a regional 
director must process a representation petition, even if a construction 
employer had provided unlawful assistance to a union by granting it 
9(a) recognition despite the union's lack of majority support. The 
election would be held but, because of the unremedied unfair labor 
practices by the construction employer having granted and the union 
having accepted unlawful assistance, there would not be the laboratory 
conditions necessary to ascertain employees' uncoerced sentiments 
towards the union.
    Moreover, even though the August 12, 2019 NPRM made no mention 
whatsoever of altering the bedrock principle from Bryan Manufacturing, 
reiterated in Casale, that a challenge cannot be made to a union's 
initial recognition by a construction employer after 6 months had 
elapsed, the Board's April 2020 rule stated in the preamble that it was 
overruling Casale ``to the extent that it is inconsistent with the 
instant rule'' and 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) 
recognition to a union and 6 months elapse without a petition.'' 85 FR 
18391. The practical effect of the Board's unanticipated overruling of 
Casale in the April 2020 rule was to require a construction employer 
and a union to retain any and all evidence of the union's initial 
majority support indefinitely because--no matter how much time had 
passed--a party would never be time-barred from challenging the union's 
9(a) status by asserting that the union lacked majority support when it 
was initially granted 9(a) recognition.
3. The 2022 Proposed Rule
    In the Board's November 4, 2022 NPRM, the Board proposed to rescind 
Section 103.22 in toto and to have the Board's previously effective 
caselaw precedent, such as Staunton Fuel, Casale, and other cases 
pertaining to the application of the voluntary recognition bar and 
contract bar in the construction industry govern 9(a) recognition in 
the construction industry. The Board stated in the NPRM that it 
preliminarily believed that this change may be required because Section 
103.22 is premised both on overruling Casale and on revoking the 
limitations period for challenging voluntary recognition in the 
construction industry, neither of which were disclosed anywhere in the 
August 12, 2019 NPRM as steps under consideration by the Board. In the 
absence of the required notice in the August 12, 2019 NPRM, 
stakeholders and members of the public had no reason to submit comments 
on these critical related issues. As a result, the Board expressed its 
concern in the November 4, 2022 NPRM that the lack of public notice--
and therefore a lack of commentary--may have affected the Board's 
ultimate decision to enact Section 103.22, especially in light of 
Section 103.22's resultant imposition of an onerous and unreasonable 
recordkeeping requirement on construction employers and unions.

III. Procedural Background

A. Pending Litigation Challenging the April 2020 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 lacked 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, at the time, 
was pending decision by the District of Columbia Circuit in another 
case (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 would be decided. On 
January 17, 2023, the D.C. Circuit rejected the argument that district 
courts lack subject-matter jurisdiction over challenges to Board rules 
that are exclusively concerned with representation elections. AFL-CIO 
v. NLRB, 57 F.4th 1023, 1027, 1032-1034 (D.C. Cir. 2023). On January 
31, 2023, pursuant to the parties' joint motion, AFL-CIO II was further 
stayed. Within 14 days of the issuance of the final rule or by 
September 28, 2023 (whichever occurs sooner), the parties were required 
to file a joint status report advising whether any disputes remain. On 
September 26, 2023, the parties jointly moved for a further stay of the 
litigation through March 31, 2024. Following the parties' April 1, 2024 
joint status report, on April 18, 2024, United States District Judge 
Beryl A. Howell extended the stay of the litigation until fourteen days 
after issuance of this final rule, or until October 14, 2024, whichever 
occurs sooner.

B. Rulemaking Petitions Seeking Rescission of the April 2020 Rule

    Meanwhile, on November 16, 2021, the AFL-CIO and North America's 
Building Trades Unions (``NABTU'')

[[Page 62964]]

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 Section 
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 Section 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 Section 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 Section 103.21 of the April 2020 rule, 
which allows the Board to process decertification petitions received 
within 45 days of an employer's voluntary recognition of a union as its 
employees' exclusive bargaining representative. UNITE HERE's 2022 
petition also expressed its support for the 2021 rulemaking petition 
filed by AFL-CIO and NABTU regarding the other amendments contained in 
the April 2020 rule.

C. The Notice of Proposed Rulemaking

    As noted, on November 4, 2022, the Board issued a Notice of 
Proposed Rulemaking proposing to rescind the three amendments to its 
rules and regulations made by the April 2020 rule and to replace two of 
the amendments with different regulatory language. See Representation--
Case Procedures: Election Bars; Proof of Majority Support in 
Construction-Industry Collective-Bargaining Relationships, 87 FR 66890 
(November 4, 2022). The NPRM set forth the Board's preliminary view 
that the Board's historical blocking charge policy, as amended by the 
December 2014 rule, better serves the Act's policies than the April 
2020 blocking charge amendments, and therefore proposed to rescind the 
April 2020 blocking charge amendments and return to the pre-April 2020 
blocking charge policy regulatory language. 87 FR 66891, 66902-66909. 
The NPRM also set forth the Board's preliminary view that the 
voluntary-recognition bar as articulated in Lamons Gasket better serves 
the policies of the National Labor Relations Act than did the April 
2020 rule, and therefore proposed to rescind the April 2020 amendments 
governing the filing and processing of petitions for a Board-conducted 
representation election following an employer's voluntary recognition 
of a union as the majority-supported collective-bargaining 
representative of the employer's employees, and to codify pre-April 
2020 rule case law in this area. 87 FR 66890-66891, 66909-66912. The 
NPRM also set forth the Board's preliminary view that rescission of 
Section 103.22 of the April 2020 rule governing Section 9(a) 
recognition in the construction industry was required because that 
section was premised on overruling Casale, but revoking the limitations 
period for challenging voluntary recognition in the construction 
industry was not mentioned anywhere in the 2019 NPRM as being under 
consideration by the Board, and because the previously effective case 
law would better serve the policies of the Act. 87 FR 66891, 66912-
66914. The NPRM proposed that 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. 87 FR 
66912.
    After carefully considering the comments, which are summarized and 
addressed in detail below, as well as the views expressed by the April 
2020 Board, we have decided, for the reasons set forth below, to 
rescind the 2020 amendments and to adopt the proposed amendments to the 
blocking charge policy and voluntary-recognition bar doctrine 
regulatory language, with certain modifications described further 
below.

IV. Statutory Authority To Engage In This Rulemaking

    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].'' \59\ 
These provisions include Sections 1, 7, 8, and 9 of the Act, 29 U.S.C. 
151, 157, 158, and 159, respectively discussed in relevant part in 
Section II.A., B., and C., above. The amendments made by the instant 
rule implicate these provisions of the Act, and Section 6 grants the 
Board the authority to promulgate rules that carry out those 
provisions. In addition, Section 9(c), 29 U.S.C. 159(c)(1), 
specifically contemplates rules governing representation-case 
procedures, stating that elections will be held ``in accordance with 
such regulations as may be prescribed by the Board.'' 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 Sections 6 and 9 as authorizing the 
instant rulemaking proceeding.
---------------------------------------------------------------------------

    \59\ 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 the instant rule, we treat 
these terms as interchangeable.
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V. The Amendments in This Rulemaking

A. Rescission of the April 1, 2020 Blocking Charge Amendments and 
Return to Pre-April 2020 Blocking Charge Policy

1. Comment Overview
    The Board received a number of comments from interested 
organizations, a member of Congress, labor unions, and individuals 
regarding its proposal to rescind the changes made by the April 2020 
rule to the Board's blocking charge policy. We have also considered the 
views of our dissenting colleague.
    Comments in favor of the proposed rule make both process-oriented 
and substantive arguments. Some commenters argue that the Board should 
rescind the April 2020 rule because of its serious procedural flaws. 
They cite, inter alia, the April 2020 Board's failure to correct the 
faulty data contained in the 2019 NPRM that led to the April 2020 rule 
and the April 2020 rule's adoption of amendments that were not a 
logical outgrowth of the NPRM, both of which commenters claim impaired 
the integrity of the rulemaking process (and the public's ability to 
intelligently evaluate and comment on the proposed rule), and rendered 
the final rule arbitrary and capricious.\60\ At least one

[[Page 62965]]

comment points out that the April 2020 Board's failure to correct the 
faulty data contained in its NPRM has infected this rulemaking because 
commenters on the instant NPRM continue to rely on that faulty 
data.\61\ The same commenter also charges that the April 2020 Board 
failed to respond to substantive well-supported comments.\62\
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    \60\ See, e.g., comments of The American Federation of Labor & 
Congress of Industrial Organizations (``AFL-CIO'') and North 
America's Building Trades Unions (``NABTU'') (collectively ``AFL-
CIO/NABTU''); AFL-CIO/NABTU reply comments; National Nurses United 
(``NNU''); International Union of Operating Engineers (``IUOE''); 
Service Employees International Union (``SEIU'').
    \61\ See reply comments of AFL-CIO/NABTU.
    \62\ See comments of AFL-CIO/NABTU.
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    As for the substance, many comments in favor of the proposed rule 
argue that returning to the Board's historical blocking charge policy, 
as amended by the December 2014 rule, is appropriate because it better 
protects employee free choice by enabling regional directors to shield 
employees from having to vote under coercive conditions.\63\ Commenters 
claim that the April 2020 rule constitutes ``a betrayal'' of the 
Board's statutory responsibility to ensure free and fair elections and 
``an abdication'' of the Board's responsibility to preserve laboratory 
conditions because the April 2020 Rule requires regional directors to 
conduct elections under coercive conditions.\64\ Some commenters 
relatedly argue that the April 2020 rule must be rescinded because it 
allows for such absurd results as requiring the Board to conduct an 
election notwithstanding overwhelming evidence of egregious unfair 
labor practices that would necessitate setting aside any election that 
was held, and which can lead to petitioners withdrawing their 
petitions.\65\
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    \63\ See comments of American Federation of State, County and 
Municipal Employees (``AFSCME''); AFL-CIO/NABTU; General Counsel 
Jennifer A. Abruzzo (``GC Abruzzo''); Brotherhood of Railroad 
Signalmen (``Railroad Signalmen''); Center for American Progress 
(``CAP''); Economic Policy Institute (``EPI''); NNU; joint comment 
filed by the Los Angeles County Federation of Labor, AFL-CIO, 
International Brotherhood of Teamsters Locals 848, 572, 396, and 63 
and UNITE HERE Local 11 (collectively the ``LA Federation''); SEIU; 
United Association of Journeymen and Apprentices of the Plumbing and 
Pipe Fitting Industry of the United States and Canada, AFL-CIO 
(``UA''); United Steel, Paper and Forestry, Rubber, Manufacturing, 
Energy, Allied Industrial and Service Workers International Union, 
AFL-CIO/CLC (``USW'').
    \64\ See comments of EPI; LA Federation; NNU; SEIU.
    \65\ See comments of SEIU; AFL-CIO/NABTU; LA Federation.
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    Some commenters also argue that the April 2020 rule wastes 
governmental and party resources by requiring regional directors to 
conduct, and the parties and employees to participate in, elections 
that will be set aside on account of the coercive conditions, and that 
holding an election under those coercive circumstances further taints 
any rerun election.\66\ At least one comment notes that the blocking 
charge policy was publicly endorsed by the Agency's regional directors, 
the Board officials who are charged with administering the policy in 
the first instance.\67\
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    \66\ See comments of AFL-CIO/NABTU (initial and reply); AFSCME; 
EPI; GC Abruzzo; LA Federation; NNU; SEIU; UA; USW. In the view of 
these commenters, simply holding a rerun election does not fully and 
completely remedy the holding of an election in which employees were 
forced to cast their votes on the question concerning representation 
in an atmosphere of coercion. The commenters explain that this is so 
because there is a substantial risk that the tainted election will 
compound the effects of the unfair labor practices: an employee who 
voted against union representation under the influence of the 
employer's unlawful conduct is unlikely to reconsider the issue and 
change their vote in the rerun election. Commenters such as UA 
support this by citing academic research finding that decisionmakers 
``who have expressly committed to a position on an issue are often 
reluctant to change that position when asked to make that decision 
again,'' a phenomenon known as status quo bias. Moreover, according 
to the AFL-CIO/NABTU, which agrees that it is psychologically 
difficult for employees to change their votes even if the ballots 
are impounded, ``[t]he tainted votes that the 2020 Rules require 
regional directors to conduct affect a second election . . . all the 
more so when the ballots are opened and counted'' as they are in the 
vast majority of cases under the April 2020 rule. The AFL-CIO/NABTU 
comment points to studies showing the impact (on voter turnout and 
choice) of disclosing early returns and exit poll results while the 
polls remain open in political elections. NNU claims that this 
taints future rerun elections by inaccurately depicting the 
bargaining unit's support for the union and which can deter 
employees from choosing to vote in a rerun election.
    \67\ See comments of GC Abruzzo.
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    Many commenters in favor of the proposed rule also argue that the 
April 2020 Board failed to demonstrate a need or reasoned basis for its 
amendments. For example, some comments note that the April 2020 Board 
mischaracterized the blocking charge policy by suggesting that unfair 
labor practice charges automatically blocked elections.\68\ Commenters 
further note that the December 2014 rule adopted certain provisions 
that enable regional directors to swiftly dispose of nonmeritorious 
blocking requests that could delay elections, and that, as the April 
2020 Board acknowledged, the number of blocked elections declined after 
the December 2014 rule went into effect.\69\
---------------------------------------------------------------------------

    \68\ See comments of AFL-CIO/NABTU; SEIU.
    \69\ See comments of AFL-CIO/NABTU; AFSCME; GC Abruzzo; LA 
Federation; SEIU; UA.
---------------------------------------------------------------------------

    Commenters further note that the April 2020 Board did not deny that 
the majority of decertification petitions--as well as the majority of 
employer-filed RM petitions and initial organizing RC petitions--are 
never blocked and that the merit rate for blocking charges was 
substantially higher than the merit rate for unfair labor practice 
charges generally.\70\ They also point out that the filing of 
meritorious blocking charges by definition provides no support for the 
April 2020 Board's decision to substantially eliminate the blocking 
charge policy.\71\ And some comments argue that ``the 2020 majority 
made no effort whatsoever to separate well-founded blocking charges 
from baseless blocking charges or, in other words, merited delay from 
unmerited delay.'' \72\ In fact, commenters further claim that the 
April 2020 Board failed to substantiate its repeated claim that unions 
knowingly file meritless charges to delay their ouster in the 
decertification context.\73\ Some commenters argue that the April 2020 
Board's concern--that the blocking charge policy robs the election 
petition of momentum by depriving employees of a prompt election--
ignores that the momentum may be the product of unfair labor 
practices.\74\ These commenters further argue that concerns about a 
petition's momentum cannot justify the April 2020 Board's decision to 
eliminate the ability of regional directors to delay elections in the 
initial organizing context, because petitioners may obtain a prompt 
election if they so desire under the blocking charge policy 
notwithstanding their filing of unfair labor practice charges.\75\
---------------------------------------------------------------------------

    \70\ See comments of AFL-CIO/NABTU; GC Abruzzo; LA Federation; 
SEIU.
    \71\ See AFL-CIO/NABTU; LA Federation; SEIU.
    \72\ Comments of AFL-CIO/NABTU. See also comments of SEIU.
    \73\ See comments of AFL-CIO/NABTU; SEIU.
    \74\ See comments of AFL-CIO/NABTU; GC Abruzzo; NNU; SEIU.
    \75\ See id.
---------------------------------------------------------------------------

    Commenters in favor of the NPRM also argue that, although the April 
2020 rule results in elections taking place sooner, the April 2020 rule 
does not necessarily expedite the effectuation of employees' choice. 
They note that the April 2020 rule expressly provides that the 
certification of the results of the election is delayed until the 
merits of the charge are determined. Accordingly, in their view, the 
April 2020 rule simply shifts the adjudication of unfair labor 
practices from before the election until after the election.\76\ At 
least one commenter relatedly argues that the April 2020 rule ignores 
the frustration that employees feel in not having their votes 
effectuated until the merits of the charge are determined. This 
commenter claims that the blocking charge policy makes it more likely 
that the election that is held will in fact count, by

[[Page 62966]]

enabling regional directors to delay elections until the merits of a 
pending charge alleging misconduct are determined.\77\
---------------------------------------------------------------------------

    \76\ See comments of AFL-CIO/NABTU; LA Federation; USW.
    \77\ See comments of USW.
---------------------------------------------------------------------------

    Still other commenters argue that the April 2020 rule's requirement 
that the Board conduct elections in virtually all cases does not 
comport with the Supreme Court's holding in Gissel and makes it harder 
to obtain a remedial bargaining order, particularly in the context of 
Section 10(j) litigation.\78\
---------------------------------------------------------------------------

    \78\ See comments of GC Abruzzo; NNU.
---------------------------------------------------------------------------

    On the other hand, both our dissenting colleague and commenters 
opposed to the proposed rule urge the Board to adhere to the April 2020 
rule's blocking charge provisions. Because the pre-April 2020 blocking 
charge policy delayed elections, commenters claim that the policy 
interferes with employees' Section 7 rights and/or is antidemocratic 
and interferes with employees' constitutional rights of free assembly 
and association.\79\ Some commenters also claim the blocking charge 
policy is racist,\80\ can impose a collective-bargaining representative 
on employees without the employees having the chance to vote for 
representation in the first place,\81\ and infringes on workers' 
alleged ``statutory right to hold decertification elections at any time 
outside of 12 months following a previous NLRB-supervised election.'' 
\82\ Other commenters claim that by denying employees a prompt vote, 
the policy unfairly punishes employees for the misconduct of their 
employer and ignores their desires.\83\ Commenters additionally argue 
that the blocking charge policy not only makes it harder for employees 
to leave a union but forces them to pay dues to the union they wish to 
decertify after the collective-bargaining agreement expires.\84\ At 
least one commenter argues that because the workforce can turn over 
during the period of time while the merits of the blocking charge are 
being determined, the blocking charge policy can disenfranchise 
employees and undermine the goal of confining the pool of eventual 
voters to those employed at the time the question concerning 
representation arises.\85\ Our dissenting colleague also advances a 
similar argument.
---------------------------------------------------------------------------

    \79\ See, e.g., comments of Associated Builders and Contractors 
(``ABC''); Virginia Foxx, Chairwoman, Committee on Education and the 
Workforce (``Chairwoman Foxx''); U.S. Chamber of Commerce 
(``Chamber''); the Coalition for a Democratic Workplace (``CDW''); 
HR Policy Association (``HRPA''); National Right to Work Legal 
Defense Foundation (``NRTWLDF''); Marvin Graham (``Graham''); Rachel 
Greszler (``Greszler''); John Weber (``Weber''); Julius Scaccia 
(``Scaccia''); David L. Chaump (``Chaump''); Trent Bryden 
(``Bryden''); Jennifer Christiano (``Christiano''); Clark Coleman 
(``Coleman''); William Fedewa (``Fedewa''); Pierre Giani 
(``Giani''); Sam Gompers (``Gompers''); Leonard Mead (``Mead''); 
Kenneth Morris (``Morris''); Anonymous 143; Anonymous 83; Anonymous 
106; Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76. 
Scaccia appears to suggest that that the Board should outline a 
specific time frame for elections similar to the regular election 
cycles in the political arena.
    \80\ See comments of Bryden.
    \81\ See, e.g., comments of Chaump.
    \82\ See, e.g., comments of Anonymous 83; Anonymous 106; 
Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76; Paul 
Andrews; Kenneth Bailey; Donald Barefoot; Barry Barkley; Kathleen 
Brown; Howard Butz; Dawn Castle; Kenneth Chase; John Churchill; 
Marvin Graham; Annette Craig; Julie D'Alessandro; Richard Damico; 
Daniel De La O; John-G Donovan; Edward Farrow; William Fedewa; R.E. 
Fox; John Gaither; Rachel Hughes; Gary Kirkland; Alan Goldberg; 
Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah Hurd; 
Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred 
Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles 
Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert; 
Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John 
Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine 
Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner; 
George Zolnoski.
    \83\ See, e.g., comments of ABC; NRTWLDF; Anonymous 143; 
Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 
152; Anonymous 76; Paul Andrews; Kenneth Bailey; Donald Barefoot; 
Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth 
Chase; John Churchill; Graham; Annette Craig; Julie D'Alessandro; 
Richard Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E. 
Fox; John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland; 
Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; 
Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck 
Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip 
Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin 
McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park; 
James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen 
Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart; 
Elizabeth Turner; George Zolnoski.
    Our dissenting colleague makes a slightly different version of 
this argument, contending that ``a prompt opportunity for employees 
to vote in a Board election itself safeguards employee free 
choice.''
    \84\ See comments of Chairwoman Foxx; Chamber; NRTWLDF; Scaccia.
    \85\ See, e.g., comments of CDW.
---------------------------------------------------------------------------

    Some commenters go so far as to suggest that the blocking charge 
policy can disenfranchise the entire unit by preventing unit employees 
from ever exercising their right to vote against union 
representation.\86\ Some commenters, along with our dissenting 
colleague, further argue that the policy disenfranchises employees 
based on a mere administrative determination made by a regional 
director, rather than by the Board itself following an unfair labor 
practice hearing, and that regional director practice varied widely 
resulting in substantial inconsistency in application of the blocking 
charge policy.\87\
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    \86\ See comments of CDW; HRPA; NRTWLDF.
    \87\ See, e.g., comments of CDW; HRPA. On the other hand, the 
NRTWLDF comments suggest that there was no variation; in its 
experience, regional directors invariably and automatically blocked 
elections immediately upon the filing of any union-filed unfair 
labor practice charge. See comments of NRTWLDF.
---------------------------------------------------------------------------

    Commenters offer additional arguments against returning to the pre-
April 2020 blocking charge policy, including claims that it rendered 
illusory the ability of employers to file RM petitions, that it 
unjustifiably treated decertification petitioners worse than 
petitioning unions in an initial organizing context by only allowing 
unions to proceed to an election, and that the April 2020 rule better 
accords with Section 8(a)(2), which forbids an employer to grant 
recognition as an exclusive bargaining representative to a union that 
represents a minority of bargaining-unit employees.\88\ Both our 
dissenting colleague and some commenters additionally argue that 
judicial criticism of the blocking charge policy counsels against 
returning to it.\89\
---------------------------------------------------------------------------

    \88\ See comments of CDW; NRTWLDF reply comments; Paul Andrews; 
Anonymous 143; Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 
123; Anonymous 152; Anonymous 76; Kenneth Bailey; Donald Barefoot; 
Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth 
Chase; John Churchill; Marvin Graham; Annette Craig; Julie 
D'Alessandro; Richard Damico; Daniel De La O; John-G Donovan; Edward 
Farrow; R.E. Fox; John Gaither; Allan Gardiner; Rachel Hughes; Gary 
Kirkland; Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta 
Howard; Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck 
Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip 
Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin 
McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park; 
James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen 
Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart; 
Elizabeth Turner; George Zolnoski.
    Our dissenting colleague also takes the view that the historical 
blocking charge policy rendered the RM petition safe harbor under 
Levitz illusory and that it treated decertification petitioners less 
favorably than unions in an initial organizing context.
    \89\ See comments of ABC; CDW; Chamber; NRTWLDF.
---------------------------------------------------------------------------

    Our dissenting colleague, along with many commenters opposed to the 
proposal, also argue that because the blocking charge policy can 
substantially delay elections based on mere allegations of unfair labor 
practices, the policy incentivizes the filing of meritless or frivolous 
charges, particularly in the decertification context where employees 
are seeking to rid themselves of their incumbent union 
representative.\90\ At least one commenter argues that although the

[[Page 62967]]

NPRM complained about the April 2020 rule imposing unnecessary costs on 
the parties and the Agency by requiring the Agency to conduct elections 
that will not count, the NPRM ignored that the blocking charge policy 
imposes unnecessary costs on the parties and the Agency by 
incentivizing parties to file nonmeritorious unfair labor practice 
charges that have to be investigated.\91\
---------------------------------------------------------------------------

    \90\ See, e.g., comments of ABC; CDW; Chairwoman Foxx; Chamber; 
Christiano; Graham; HRPA; NRTWLDF; Scaccia.
    \91\ See comments of NRTWLDF.
---------------------------------------------------------------------------

    Both our dissenting colleague and many commenters argue that there 
is no need to return to the pre-April 2020 blocking charge policy to 
protect employee rights even in cases where the concurrent charges are 
meritorious. Thus, they note that the April 2020 rule withholds the 
certification of the results of an election until the merits of the 
concurrent unfair labor pace charges are determined, thereby allowing 
for a rerun election (or a bargaining order) if the Board finds, after 
an unfair labor practice hearing, that a party has in fact committed 
unfair labor practices that interfered with the election that was 
conducted notwithstanding the pendency of the unfair labor practice 
charge.\92\ Both our dissenting colleague and at least one commenter 
argue that there is no need to return to the Board's historical 
blocking charge policy to protect employee free choice, because the 
Board's recent decision in Rieth-Riley Construction Co., supra, 371 
NLRB No. 109, permits regional directors to dismiss petitions rather 
than conduct elections in the face of concurrent unfair labor practice 
charges when they believe that employer conduct has interfered with 
laboratory conditions.\93\
---------------------------------------------------------------------------

    \92\ See, e.g., comments of CDW; Chairwoman Foxx; Chamber; 
NRTWLDF (initial and reply). At least one commenter relatedly 
attacks then-Member McFerran's analysis of blocking charge data in 
the dissent to the 2019 NPRM that led to the April 2020 rule by 
claiming that she should not have deemed charges meritorious if they 
resulted in a settlement. See comments of NRTWLDF.
    \93\ See comments of NRTWLDF (initial and reply).
---------------------------------------------------------------------------

    Some commenters complain that the NPRM contained no data analyzing 
the effect of the April 2020 amendments, that the April 2020 rule has 
succeeded in its goal of permitting employees to vote promptly without 
interfering with the employees' Section 7 rights to register a free and 
untrammeled choice for or against union representation, and that absent 
proof of a spike in the number of elections being set aside under the 
April 2020 amendments, it would be unreasonable for the Board to 
rescind the April 2020 amendments.\94\ According to some commenters, 
the Board would be engaging in needless policy oscillation if it 
rescinds the April 2020 rule, which would threaten the legitimacy of 
the Agency.\95\
---------------------------------------------------------------------------

    \94\ See comments of CDW; NRTWLDF (initial and reply).
    \95\ See comments of CDW; Chamber.
    Our dissenting colleague similarly criticizes the majority's 
decision to rescind the April 2020 rule on the grounds that doing so 
may spur policy oscillation and disserve the Agency's stakeholders. 
We address this argument in greater detail in Section VII, below.
---------------------------------------------------------------------------

    At least one commenter argues that if the Board decides to 
reinstate the pre-April 2020 blocking charge policy, it should include 
a provision allowing decertification petitioners to intervene as full 
parties in blocking charge litigation to protect and effectuate their 
statutory right to an election.\96\
---------------------------------------------------------------------------

    \96\ See comments of NRTWLDF.
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2. Explanations for Adoption of NPRM Proposal To Return to the Pre-
April 2020 Blocking Charge Policy; Responses to Blocking Charge 
Comments
    Having carefully considered the comments, the views of the April 
2020 Board, and the views of our dissenting colleague, we have 
determined, consistent with the NPRM, that returning to the Board's 
historical blocking charge policy, as modified by the December 2014 
rule, represents a better balance of the Board's statutory interests in 
protecting employee free choice, preserving laboratory conditions in 
Board-conducted elections, and resolving questions concerning 
representation expeditiously than does the April 2020 rule, which at 
times requires regional directors to conduct elections under coercive 
circumstances. 87 FR 66903. The final rule restores and codifies the 
historical blocking charge policy, as modified by the December 2014 
rule. Under the final rule, we shall once again permit regional 
directors to delay the processing of an election petition at the 
request of a party who has filed a charge alleging conduct that would 
interfere with employee free choice in an election or conduct that is 
inherently inconsistent with the petition itself--provided that the 
party simultaneously files an adequate offer of proof and agrees to 
promptly make its witnesses available, and provided no exception is 
applicable--until the merits of the charge can be determined.
    We agree with the views of the commenters who oppose the NPRM (and 
with the April 2020 Board and our dissenting colleague) that, under 
ordinary circumstances, the Board should conduct elections 
expeditiously. Nevertheless, 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. In our 
considered judgment, the April 2020 rule runs counter to the policies 
of the National Labor Relations Act by requiring regional directors to 
conduct, and employees to vote in, elections in a coercive atmosphere 
that interferes with employee free choice. Many comments agree.\97\ We 
note in this regard that the April 2020 Board itself acknowledged that 
the April 2020 rule does at times require regional directors to conduct 
elections in coercive circumstances that interfere with employee free 
choice, over the objections of charging parties who are parties to the 
representation proceeding. 85 FR 18370 & fn. 10, 18378-18380. Thus, the 
April 2020 Board acknowledged that under its rule, the regional 
director shall continue to process the petition and conduct the 
election despite the filing of a blocking request and 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 affected the 
election. 85 FR 18370, 18378-18380. 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 
an unfair labor practice complaint issued within 60 days of the 
election) if the unfair labor practice charges are found to have merit. 
85 FR 18369-18370, 18378-18380.
---------------------------------------------------------------------------

    \97\ See, e.g., comments of AFL-CIO/NABTU; AFSCME; CAP; EPI; GC 
Abruzzo; LA Federation; NNU; Railroad Signalmen; SEIU; UA; USW.
---------------------------------------------------------------------------

    We also note that several of the commenters who oppose the proposed 
rule implicitly acknowledge this as well; thus, for example, the HRPA 
states that it ``does not imply that all such [blocking] charges are 
meritless.'' \98\ In short, it cannot be denied that under the April 
2020 amendments, regional directors are required to run--and employees, 
unions, and employers are required to participate in--some elections 
conducted under coercive conditions that interfere with employee free 
choice. 85 FR 18370, 18378-18380. And because the April 2020 rule 
requires regional directors to run--and employees, unions, and 
employers to participate in--some elections that will not resolve the 
question of representation, the April 2020 rule

[[Page 62968]]

imposes unnecessary costs on the parties and the Board. We also 
conclude, in agreement with several commenters,\99\ that the April 2020 
rule's position--that nothing is more important under the Act and its 
policies than having employees vote without delay in virtually 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. See General Shoe 
Corp., 77 NLRB at 127 (``In 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.''); Mark Burnett Productions, 
349 NLRB at 706 (``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.'').
---------------------------------------------------------------------------

    \98\ See also comments of CDW, Chairwoman Foxx, Chamber, and 
NRTWLDF, acknowledging that under the April 2020 rule, the Board can 
order a rerun election in those cases where elections were conducted 
under coercive circumstances over the objections of the charging 
party.
    \99\ See, e.g., comments of EPI; LA Federation; NNU; SEIU.
---------------------------------------------------------------------------

    The April 2020 rule also creates perverse incentives for employers 
to commit unfair labor practices. By requiring the Board to conduct 
elections in all cases where Type I unfair labor practice conduct has 
occurred and many cases where Type II unfair labor practice conduct has 
occurred, the 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 free choice of the employees; 
and (2) to create a sense among employees that seeking to exercise 
their Section 7 rights is futile. This possibility may well induce 
unions to forego the Board's electoral machinery in favor of 
recognitional picketing and other forms of economic pressure, 
potentially exacerbating industrial strife and risking contravening the 
statutory policy favoring ``eliminat[ing] the causes of certain 
substantial obstructions to the free flow of commerce.'' 29 U.S.C. 
151.\100\
---------------------------------------------------------------------------

    \100\ Commenters such as NNU share this concern.
---------------------------------------------------------------------------

    It is not surprising that although the Board's application of the 
blocking charge policy in a particular case had occasionally been 
criticized, no court invalidated the policy itself during the more than 
eight decades that it had been in effect. 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).\101\ We find further support for our 
decision to return to the pre-April 2020 blocking charge policy in the 
fact that the April 2020 Board had jettisoned that policy even though 
the Agency's regional directors--the career officials who are charged 
with administering the policy in the first instance--had publicly 
endorsed the policy. 87 FR 66904 & fn. 105.
---------------------------------------------------------------------------

    \101\ 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.
    Our dissenting colleague criticizes our ``heavy reliance on the 
Fifth Circuit's positive perceptions of the historical policy fifty 
years ago.'' We find this criticism puzzling. Bishop remains good 
law. In addition, the language quoted above persuasively articulates 
the policy justifications militating in favor of our decision to 
return to the historical blocking charge policy.
---------------------------------------------------------------------------

    We also agree with the comments filed by AFL-CIO/NABTU, LA 
Federation, and USW that argue that, although the April 2020 rule 
certainly results in many elections being held more promptly in the 
face of concurrent unfair labor practice charges than they would have 
been held under the pre-April 2020 blocking charge policy, the April 
2020 rule does not necessarily result in the employees' choice being 
effectuated in a significantly shorter period of time. This is so 
because, as the April 2020 Board conceded, the certification of the 
results of the election conducted under such circumstances must still 
await a determination of the merits of the unfair labor practice 
charge.\102\ And it takes the same amount of time to determine the 
merits of an unfair labor practice charge whether the charge is 
investigated before the election or after the election. For example, 
under the April 2020 rule, the results of a promptly held 
decertification election are set aside if the charge is ultimately 
found to be meritorious. Then, a new election is conducted after the 
unfair labor practice is remedied. Only then can employees' choice 
actually be effectuated. The situation is thus the same as under the 
pre-April 2020 blocking charge policy, when a meritorious charge 
blocked the election until the unfair labor practice was remedied. As 
for cases involving nonmeritorious charges, even under the April 2020 
rule, the incumbent union will not actually be decertified until the 
charge is ultimately determined to lack merit--despite the employees 
having voted in the decertification election.\103\ Moreover, it stands 
to reason that the representation proceedings that were blocked the 
longest under the pre-April 2020 blocking charge policy were those 
cases litigated before administrative law judges, then the Board, and 
then the courts of appeals, rather than the cases

[[Page 62969]]

involving nonmeritorious charges that can be weeded out 
administratively at the regional level. The same is true under the 
April 2020 rule. In short, the actual resolution of the question of 
representation can take a substantial period of time under the April 
2020 rule, even though an election was promptly held.
---------------------------------------------------------------------------

    \102\ See 85 FR 18370 (``Finally, for all types of charges upon 
which a blocking-charge request is based, the final rule clarifies 
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.''); 29 CFR 103.20(d) (April 1, 
2020) (``For all charges described in paragraphs (b) or (c) of this 
section, 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.'').
    \103\ The same is true in elections held in the context of an 
initial organizing campaign. Elections will be set aside if the 
charges that are subject of requests to block are meritorious, and 
the results of the elections will not be certified until the charges 
that are subject of requests to block are determined to be 
nonmeritorious.
---------------------------------------------------------------------------

    For the reasons set forth below, the arguments of the April 2020 
Board and the commenters opposing the NPRM do not persuade us that we 
should continue to adhere to the April 2020 rule.
a. Comments Regarding the Effect of Delay on the Petition's Momentum 
and the Pre-Election Narrative
    Like the April 2020 Board, our dissenting colleague and many 
commenters opposed to the NPRM emphasize the obvious: that the blocking 
charge policy causes delays in conducting elections. From this, they 
argue that the blocking charge policy impedes employee free 
choice.\104\ However, the conclusion of the April 2020 Board, our 
colleague, and the commenters does not necessarily follow from their 
premise. To the contrary, we 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 Furniture Co. of the Pacific, 333 NLRB 717, 728 
fn. 57 (2001) (emphasis in original). We thus agree with the 
observation of the December 2014 Board 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. After all, if the 
circumstances surrounding an election interfere with employee free 
choice, then, contrary to the April 2020 rule, it plainly is not 
``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, 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, provided the charging 
party files election objections (or a request to block). 85 FR 18370, 
18378-18380.
---------------------------------------------------------------------------

    \104\ See 85 FR 18366, 18367, 18372-18373, 18375-18380, 18393. 
See also, e.g., comments of ABC; CDW; Chairwoman Foxx; Chamber; 
HRPA; NRTWLDF; Graham; Greszler; Weber; Scaccia; Bryden; Christiano; 
Giani; Morris; Anonymous 143; Anonymous 83; Anonymous 106; Anonymous 
113; Anonymous 123; Anonymous 152; Anonymous 76.
---------------------------------------------------------------------------

    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, 18379, 18393 (finding it 
appropriate to issue the April 2020 Rule ``[f]or all the reasons set 
forth . . . [in the April 2020 preamble] and in the NPRM[.]''). See 
also 84 FR 39937. Our dissenting colleague reiterates this view. 
However, 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 2019 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' true desires and therefore should not 
be conducted. 84 FR 39944. Indeed, the momentum that the April 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, 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. Notwithstanding the impact of delay on the 
decertification petition's momentum, we think the delay is justified to 
safeguard employee free choice.\105\
---------------------------------------------------------------------------

    \105\ We also find unpersuasive the April 2020 Board's claim 
that its amendments are superior to the pre-April 2020 blocking 
charge policy because the April 2020 rule allows the balloting to 
occur when the parties' respective arguments are ``fresh in the 
mind[s] of unit employees.'' 84 FR 39937-39938, 85 FR at 18379, 
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). Thus, all the April 2020 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 disagree with the April 2020 Board's view that its 
amendments 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 18379, 18393. As then-Member McFerran pointed out in her 
dissent to the 2019 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 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 suggested that employees would be less 
frustrated or confused under its amendments--which provide that 
elections will be held with the ballots being promptly opened and 
counted in the vast majority of cases involving requests to block, 
notwithstanding that the results of the election will nevertheless 
not be certified until there has been a final disposition of the 
unfair labor practice charge and a determination of its effects on 
the petition by the Board--than they would be under the pre-April 
2020 blocking charge policy, which delays the election itself until 
the merits of the charge are determined. 85 FR 18367, 18370, 18379-
18380, 18393. See also 84 FR 39937-39938. We reject that speculative 
proposition. Permitting employees to vote and opening and counting 
ballots, yet delaying the certification of the results, might very 
well equally frustrate employees who must await the outcome of the 
Board's investigation of the charge to learn whether the results of 
the election will be certified and, at worst, actively mislead them 
by conveying a materially false impression of the level of union 
support. 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 rule until the merits of the charge 
have been determined. In any event, the April 2020 rule also did not 
address the frustration that is felt by employees who, under the 
April 2020 rule, are required to vote under coercive circumstances. 
See comments of GC Abruzzo; LA Federation; NNU; SEIU; UA.
---------------------------------------------------------------------------

    We also note that the April 2020 rule applies to petitions filed in 
initial organizing campaigns, not just to petitions filed in the 
decertification context. The April 2020 Board's concern about the 
blocking charge policy's negatively impacting a petition's momentum has 
little persuasive force where blocking charges are filed by a 
petitioning union in the initial organizing context. Because the final 
rule restores the December 2014 rule's

[[Page 62970]]

changes to the historical blocking charge policy, an election cannot be 
delayed on the basis of a concurrent charge filed by a union unless the 
union requests that its charge block the petition. 29 CFR 103.20 (Dec. 
15, 2014); Casehandling Manual Section 11730 (January 2017).\106\ In 
other words, a petitioner in the initial organizing context can indeed 
obtain a prompt election notwithstanding its unfair labor practice 
charge. On the other hand, if the petitioner requests that its charge 
delay the election, then the petitioner obviously believes that the 
employer's unfair labor practices have already halted the petition's 
momentum. In short, the April 2020 Board's concern cannot justify 
depriving regional directors of the authority to delay elections in the 
initial organizing context at the request of petitioners.\107\
---------------------------------------------------------------------------

    \106\ Similarly, as commenters such as AFL-CIO/NABTU and NNU 
note, under the pre-December 2014 blocking charge policy, a union in 
an organizing context could request to proceed to an election 
notwithstanding its charge.
    \107\ Of course, if an employer files a charge against a 
petitioning union with an adequately supported request to block, 
then the election in the initial organizing context may indeed by 
delayed. But, just as is the case with regard to blocking charges 
filed in the decertification context, we think the delay here is 
justified to protect employee free choice.
---------------------------------------------------------------------------

b. Comments Regarding Rieth-Riley and the Availability of a Rerun 
Election
    Both our dissenting colleague and many comments filed in opposition 
to the NPRM also argue that there is no need to return to the pre-April 
2020 blocking charge policy to protect employee rights even when 
meritorious unfair labor practice charges have been filed prior to an 
election. We disagree. We are not persuaded by the NRTWLDF's comments 
that there is no need to return to the Board's pre-April 2020 blocking 
charge policy because the Board's recent decision in Rieth-Riley 
Construction Co., 371 NLRB No. 109 (2022), permits regional directors 
to dismiss petitions rather than conduct elections in the face of 
concurrent unfair labor practice charges ``when they believe employer 
conduct has interfered with laboratory conditions.'' \108\ To begin, we 
find the argument to be a non sequitur; as the Board noted in Rieth-
Riley, the merit-determination dismissal process was itself merely an 
``aspect of the blocking charge policy.'' Id., slip op. at 1. The 
Casehandling Manuals in effect prior to both the 2014 Rule and the 2020 
Rule explicitly set forth merit-determination dismissals as part of the 
blocking charge policy. See, e.g., Casehandling Manual Sections 
11730.1, 11730.2, 11730.3 (August 2007) (noting that Type II blocking 
charges may cause a petition to be dismissed after a determination as 
to their merit, whereas Type I charges result in petition being held in 
abeyance until the charge is dismissed or remedied); Casehandling 
Manual Sections 11730.1, 11730.2, 11730.3 (January 2017) (same). In 
short, the instant rule simply restores the status quo that existed 
prior to the April 2020 rule (i.e., it maintains the merit-
determination dismissal procedure while also restoring the other 
aspects of the blocking charge policy, which for example permit 
regional directors to hold petitions in abeyance based on Type I 
charges).
---------------------------------------------------------------------------

    \108\ Our dissenting colleague takes a similar position, arguing 
that Rieth-Riley ``undermines the justification for returning to'' 
the historical blocking charge policy.
---------------------------------------------------------------------------

    In any event, we conclude that Rieth-Riley's merit-determination 
dismissal procedure alone does not adequately protect employee rights. 
To begin, the merit-determination dismissal procedure does not permit a 
regional director to dismiss a petition rather than conduct an election 
whenever the director finds merit to charges alleging conduct that 
would interfere with laboratory conditions. Rather, as the Board's 
decision in Rieth-Riley makes clear, and as the NRTWLDF recognizes 
elsewhere in its comments, the merit-determination dismissal procedure 
is available ``only with respect to a Type II charge,'' i.e., a charge 
alleging conduct that if proven is ``inherently inconsistent with the 
petition.'' 371 NLRB No. 109, slip op. at 3. Thus, the merit-
determination dismissal procedure is not available in cases involving 
Type I charges that allege conduct that would merely interfere with 
employee free choice in an election were one to be held, and this is 
true even if the director has found merit to the Type I charge. Indeed, 
under the current legal regime, regional directors are required to 
conduct elections and open and count the ballots in cases where Type I 
charges are pending, even if the regional director has found merit to 
the charges. In other words, regional directors are required to conduct 
elections in the initial organizing context even if the regional 
director has found merit to a charge alleging, for example, that an 
employer has promised benefits if its employees vote against union 
representation and has threatened to close the plant if the employees 
vote in favor of union representation. Regional Directors are also 
required to conduct decertification elections even if, for example, a 
regional director has found merit to a charge alleging that after the 
filing of the decertification petition, the employer promised employees 
benefits if they vote against the incumbent union and threatened 
adverse consequences if they vote for continued representation. And 
this is so, as the comments filed by SEIU and AFL-CIO/NABTU note, even 
if the employer admits engaging in the unlawful conduct. Thus, 
notwithstanding the Board's decision in Rieth-Riley, regional directors 
currently are required to conduct elections even when the employer has 
committed Type I unfair labor practices that interfere with employee 
free choice and destroy laboratory conditions.
    Moreover, in our view, and contrary to our dissenting colleague's 
position, the merit-determination dismissal procedure does not even 
adequately protect employee rights in all cases where Type II charges 
have been filed. Thus, as the Board unanimously held in Rieth-Riley, 
the merit-determination dismissal procedure is available only when 
there has been a determination by the Regional Director that the Type 
II charge has merit. 371 NLRB No. 109, slip op. at 3 (merit-
determination dismissals ``hinge on [the Regional Director's] 
determination . . . that [the Type II] unfair labor practice charge has 
merit''). Thus, as the AFL-CIO/NABTU point out in their reply comment, 
where the regional director has not had sufficient time to investigate 
the charge and make a merit determination, the merit-determination 
dismissal procedure is not available even for Type II charges, and the 
regional director is required to run an election.
    Many commenters \109\ also agree with the April 2020 Board (85 FR 
18378-18380) that there is no need for the blocking charge policy 
because the Board may always throw out the results of the first 
election and conduct a rerun election if the Board finds, after an 
unfair labor practice hearing, that a party has in fact committed 
unfair labor practices that interfered with the election that was 
conducted notwithstanding the pendency of the unfair labor practice 
charge(s). They posit that a rerun election fully protects employee 
free choice. They reason that, because the second election will not be 
conducted until the employer has complied with the Board's traditional 
remedies for the unfair labor practice conduct found to have interfered 
with employee free choice, employees will be able to exercise free 
choice for or against union representation when the rerun election is 
held.\110\
---------------------------------------------------------------------------

    \109\ See, e.g., comments of CDW; Chairwoman Foxx; Chamber; 
NRTWLDF.
    \110\ Our dissenting colleague similarly argues that because 
``the Board's traditional remedies are perfectly capable of 
dissipating the coercive effects of unfair labor practices so as to 
permit a free and fair election in all but extreme cases,'' the 
majority should not ``assume that the Board's traditional remedies 
for pertinent unfair labor practices will necessarily be inadequate 
to ensure a fair rerun election in those cases where an initial 
election was held but later set aside under the 2020 Rule.''

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

[[Page 62971]]

    We are not persuaded by these comments. To begin, during the more 
than eight decades that the blocking charge policy was in effect, the 
Board never viewed its authority to rerun elections as obviating the 
need for the policy. This is not surprising. The Board is tasked with 
ensuring free and fair elections, and the Board's goal is to conduct 
elections under conditions as nearly ideal as possible. We undermine 
that goal when we require employees to vote under coercive 
circumstances that interfere with free choice.\111\
---------------------------------------------------------------------------

    \111\ It also bears mentioning that, as discussed in greater 
detail below, the Board lacks authority to conduct a rerun election 
in the absence of election objections (or a request to block), which 
may not be filed or may be withdrawn even if the election was/is 
scheduled to be conducted under coercive circumstances. Thus, the 
commenters and our dissenting colleague ignore the real possibility 
that the only election that is conducted under the April 2020 rule 
will be the election conducted under coercive circumstances.
---------------------------------------------------------------------------

    Moreover, in our considered policy judgment, a return to the pre-
April 2020 status quo better protects employee rights by putting the 
unit employees in a position that more closely approximates the 
position that the unit employees would have been in had no party 
committed unfair labor practices interfering with employee free choice, 
than the position employees are put in under the April 2020 rule. Had 
no party committed unfair labor practices, employees would not be 
forced to vote in an atmosphere of coercion. However, as the 2020 Board 
conceded (85 FR 18378, 18379, 18380), its amendments, by definition, 
sometimes require employees to vote under coercive circumstances by 
requiring the regional director to conduct elections over the 
objections of the charging party in virtually all cases involving 
pending unfair labor practice charges. This means that when a rerun 
election is conducted after the charged party takes all the remedial 
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 December 2014 rule (79 FR 74418-74419) and as several commenters 
note,\112\ 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 may well be unlikely to change their votes in the 
rerun election even if they vote in the second election. See Savair 
Mfg. Co., 414 U.S. at 277-278. To make matters even worse, the April 
2020 rule's additional requirement that the ballots be immediately 
opened and counted following the election (except in a very limited 
subset of cases) means that, following a loss, the union will also have 
to convince employees (including those employees who voted in favor of 
the union in the first election) that it is worth voting for the 
union--and to risk incurring retaliation from their employer--even 
though employees will know that the union already lost the earlier 
election. This is something the union normally would not have had to do 
under the pre-April 2020 blocking charge policy, because the regional 
director would not have held an election until the unfair labor 
practice was remedied. Put simply, when the Board sets aside an 
election because of employer unfair labor practice conduct, it does not 
erase the memory of that election outcome and the illegalities that led 
to it being set aside; after all, the posting of the remedial notice 
reminds employees of those illegalities.\113\
---------------------------------------------------------------------------

    \112\ See, e.g., comments of AFL-CIO; LA Federation; NNU; UA.
    \113\ The NRTWLDF's reply comment questions any reliance on 
Savair, supra. It notes that employees will have voted by secret 
ballot election in the first election (that ends up getting set 
aside because of the unlawful conduct) and will again vote by secret 
ballot in the rerun election. However, because the ballots cast in 
the first election conducted under coercive circumstances are in 
fact opened and tallied in the vast majority of cases under the 
April 2020 rule, the employees do in fact know how a majority of 
their colleagues have voted before the second election. It is 
insufficient to argue, as our dissenting colleague does, that 
``opening and counting ballots reveals only collective union 
sentiment at a moment in time, not individual union sentiments.'' In 
every case, employees obviously know how they themselves voted in 
the first election.
---------------------------------------------------------------------------

    Indeed, we find it significant that the April 2020 rule itself 
implicitly conceded that employees and the union they seek to represent 
them are in fact harmed when the employees are required to vote under 
coercive circumstances, even though the first election will not count 
and they will be permitted to vote in a second election if a request to 
block or objections are filed. Thus, the April 2020 Board 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. Moreover, the rule expressly justified requiring 
that the ballots be opened and counted in all cases involving Type I 
misconduct and many cases involving Type II misconduct on the ground 
that keeping the ballots secret would fail to provide an adequate 
disincentive for unions to file blocking charges in the context of a 
decertification election. 85 FR 18379-18380. The April 2020 Board 
relied on the premise that the immediate opening and counting of the 
ballots in the vast majority of cases provides a disincentive for 
unions to file meritless charges seeking to block the election because 
tallying the ballots reveals to employees that the union is acting 
against their wishes. 85 FR 18379-18380. Thus, under April 2020 rule's 
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 further note that the position of commenters critical of the 
proposed rule--that elections should be held in virtually all cases (no 
matter the severity of the employers' unfair labor practices) because 
of the availability of a rerun election--is difficult to square with 
the Supreme Court's approval in Gissel of the Board's practice of 
withholding an election or rerun 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 (or a fair rerun) 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 . . . . '' Gissel Packing Co., 395 U.S. at 591-592, 
610-611, 614-615.\114\ As the Court explained,
---------------------------------------------------------------------------

    \114\ See comments of NNU.

    If the Board could enter only a cease-and-desist order and 
direct an election or a rerun [election] . . . where an employer has 
committed independent unfair labor practices which have made the 
holding of a fair election unlikely or which have in fact undermined 
a union's majority and caused an election to be set aside . . . it 
would in effect be rewarding the employer and allowing him `to 
profit from [his] own wrongful refusal to bargain,' . . . while at 
the

[[Page 62972]]

same time severely curtailing the employees' right freely to 
determine whether they desire a representative. The employer could 
continue to delay or disrupt the election processes and put off 
indefinitely his obligation to bargain; and any election held under 
these circumstances would not be likely to demonstrate the 
---------------------------------------------------------------------------
employees' true, undistorted desires.

Id. at 610-611. And this applies equally in the decertification 
context. See Bishop, 502 F.2d at 1029 (``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.'').\115\
---------------------------------------------------------------------------

    \115\ The April 2020 Board itself acknowledged that its rule in 
some cases requires the regional director to hold an election, 
notwithstanding that following the election the Board will set it 
aside and issue a Gissel bargaining order--rather than conduct a 
rerun election--because a fair rerun election cannot be held. 85 FR 
18380. Our dissenting colleague similarly acknowledges that the 
Board also may need to ``redress the harm from certain serious 
unfair labor practices by issuing a general bargaining order.'' In 
our view, no valid statutory purpose is served by requiring the 
Board to conduct an election in such circumstances. Moreover, 
requiring the Board to conduct elections in such circumstances 
plainly wastes party and agency resources.
    Long after the close of the comment period, the Board issued its 
decision in Cemex Construction Materials, Pacific, LLC, holding in 
part that an employer violates Sec. 8(a)(5) and (1) by refusing to 
recognize, upon request, a union that has been designated as the 
Sec. 9(a) representative by the majority of employees in an 
appropriate unit unless the employer promptly files a petition 
pursuant to Sec. 9(c)(1)(B) of the Act (an RM petition) to test the 
union's majority status or the appropriateness of the unit, assuming 
that the union has not already filed an RC petition pursuant to Sec. 
9(c)(1)(A). 372 NLRB No. 130, slip op. at 25-26 & fn. 141 (2023), 
rev. pending, Case 23-2302 (9th Cir.). Cemex also held, however, 
that ``if the employer commits an unfair labor practice that 
requires setting aside the election, the petition (whether filed by 
the employer or the union) will be dismissed, and the employer will 
be subject to a remedial bargaining order.'' Id. slip op. at 26-27 
(an employer ``may not insist on an election, by refusing to 
recognize and bargain with the designated majority representative, 
and then violate the Act in a way that prevents employees from 
exercising free choice in a timely way.''). Thus, ``if the Board 
finds that an employer has committed unfair labor practices that 
frustrate a free, fair, and timely election, the Board will dismiss 
the election petition and issue a bargaining order, based on 
employees' prior, proper designation of a representative for the 
purpose of collective bargaining pursuant to Sec[.] 9(a) of the 
Act.'' Id. slip op. at 28-29.
    No commenter has requested the Board to reopen the comment 
period for the purpose of addressing Cemex. We would reject any 
suggestion that Cemex eliminates the need for the Board to return to 
the pre-April 2020 blocking charge policy. To be sure, both Cemex 
and the Board's pre-April 2020 blocking charge policy are designed 
to protect the Sec. 7 rights of employees to freely choose whether 
to be represented for purposes of collective bargaining and the 
integrity of the Board's election process by shielding employees 
from having to vote, and the Board from having to conduct elections, 
under coercive circumstances. See Cemex, 372 NLRB No. 130, slip op. 
at 27-28, 34 fn. 179 (because the ``new standard will more 
effectively disincentivize employers from committing unfair labor 
practices prior to an election . . . , this standard will advance 
the Board's interest in `provid[ing] a laboratory in which an 
experiment may be conducted, under conditions as nearly ideal as 
possible, to determine the uninhibited desires of the employees.' . 
. . Similar concerns about the importance of `provid[ing] a 
laboratory in which an experiment may be conducted, under conditions 
as nearly ideal as possible, to determine the uninhibited desires of 
the employees,' . . . prompted the Board to issue a notice of 
proposed rulemaking to solicit public input on the desirability of 
restoring its historical blocking charge policy. See 
Representation--Case Procedures: Election Bars; Proof of Majority 
Support in Construction Industry Collective-Bargaining 
Relationships, 87 [FR] 66890, 66902-66903 (Nov. 4, 2022).'') 
(internal citations omitted). However, by definition, Cemex only 
applies where the Union can establish that majority support by 
authorization cards or other means and where the Union has demanded 
recognition on the basis of that majority support. By contrast, a 
union may petition for an election based merely on a 30 percent 
showing of interest. See Casehandling Manual Section 11023.1 (August 
2007). Thus, in some cases where a union has petitioned for an 
election and the employer has committed unfair labor practices that 
would interfere with employee free choice in an election were one to 
be held (or where an employer that has filed an RM petition commits 
unfair labor practices that interfere with employee free choice), a 
Cemex bargaining order will not be available.
    We further note that, as the Board acknowledged in Cemex, 
``[m]any unions may prefer pursuing certification following a Board 
election[--rather than invoking Cemex--] as certification confers 
certain benefits on unions. These include: Sec. 9(c)(3)'s 1-year 
nonrebuttable presumption of majority status; Sec. 8(b)(4)(C)'s 
prohibition against recognitional picketing by rival unions; Sec. 
8(b)(4)(D)'s exception to restrictions on coercive action to protect 
work jurisdiction; and Sec. 8(b)(7)'s exception from restrictions on 
recognitional and organizational picketing. See also Gissel, 395 
U.S. at 598-599 & fn. 14 (1969) (``A certified union has the benefit 
of numerous special privileges which are not accorded unions 
recognized voluntarily or under a bargaining order[.]''). Cemex, 372 
NLRB No. 130, slip op. at 25 fn. 140.
    In our considered policy judgment, restoration of the pre-April 
2020 blocking charge policy provides a measure of protection to 
employees and unions that would prefer Board certification as well 
as to the unit employees in those cases where unions have petitioned 
for an election with an adequate showing of interest (but one that 
falls of short of a majority) or without demanding recognition from 
the employer. And for the reasons explained at length above, the 
pre-April 2020 blocking charge policy also provides a measure of 
protection to unit employees in the context of decertification 
elections (and employer-filed RM petitions).
---------------------------------------------------------------------------

    For similar reasons, we reject the NRTWLDF's contention in its 
comments that it would be internally inconsistent for the Board to 
conclude in this rulemaking that employee free choice is not adequately 
protected via the rerun election process.\116\ The Board has 
historically deemed it appropriate, outside the Gissel bargaining order 
and blocking charge contexts, to conduct a rerun election following a 
finding of objectionable misconduct after the employer has fully 
complied with the Board's traditional remedies for the unfair labor 
practice conduct found to have interfered with employee free choice. 
However, the fact that under the Board's limited remedial authority the 
Board can (absent a showing of a card majority) only conduct a second 
election after the unfair labor practice conduct--that interfered with 
the initial election--has been remedied certainly does not mean that 
requiring employees to vote under coercive conditions and then giving 
them a second chance to vote puts the employees and the labor 
organization at issue in the position that most closely approximates 
the position they would have occupied had no party committed unfair 
labor practices.
---------------------------------------------------------------------------

    \116\ See comments of NRTWLDF. As noted above, our dissenting 
colleague also points to the availability of a rerun election as a 
basis for preferring the April 2020 rule.
---------------------------------------------------------------------------

c. Comments Regarding the Pre-April 2020 Blocking Charge Policy's 
Reliance on Mere Administrative Determinations Made by Regional 
Directors and Alleged Inconsistent Application of That Policy
    Both the dissenters to the 2022 NPRM and the April 2020 Board also 
found fault with the pre-April 2020 blocking charge policy because it 
permitted 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, 
especially since there is always the possibility that the Board could 
ultimately conclude, contrary to the regional director, that the charge 
lacks merit. 87 FR 66918 fn.173; 85 FR at 18367, 18377, 18393).\117\ 
Our

[[Page 62973]]

dissenting colleague reiterates this position. In our view, this 
argument does not constitute a persuasive reason for declining to 
return to the pre-April 2020 blocking charge policy. To begin, we find 
the criticism internally inconsistent. The NPRM dissenters were part of 
a unanimous Board holding that the April 2020 rule did not do away with 
the merit-determination dismissal procedure. See Rieth-Riley, supra, 
371 NLRB No. 109, slip op. at 1, 3, 8. Thus, even under the April 2020 
rule, a petition could be dismissed--thereby blocking an election--
based on a mere ``administrative determination'' by the regional 
director that a complaint should issue so long as the complaint 
concerned a Type II charge, notwithstanding that the Board could 
ultimately conclude, contrary to the regional director, that the charge 
lacked merit. No reasoned explanation has been offered for deferring to 
the regional director's administrative determination as to the merits 
of those kinds of Type II charges, but not to the regional director's 
administrative determination concerning the merits of other kinds of 
unfair labor practice charges that would warrant setting aside an 
election or dismissing a petition. Indeed, under the statutory scheme, 
it is the regional directors, on behalf of the General Counsel, who 
make the initial determination as to the merits of all unfair labor 
practice charges. And of course, as the December 2014 Board noted (79 
FR 74334), the courts have recognized that regional directors have 
expertise in deciding what constitutes objectionable conduct--i.e., 
conduct that would interfere with employee free choice in an election. 
See, e.g., NLRB v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 
1991), cert. denied, 504 U.S. 955 (1992).
---------------------------------------------------------------------------

    \117\ Some comments echo this concern. See, e.g., comments of 
CDW; HRPA. Many comments similarly complain that union officials 
should not be allowed to delay or block workers' right to hold 
decertification votes using ``unproven `blocking charges.' '' See, 
e.g., comments filed by Paul Andrews; Anonymous 143; Anonymous 83; 
Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 152; 
Anonymous 76; Kenneth Bailey; Donald Barefoot; Barry Barkley; 
Kathleen Brown; Howard Butz; Dawn Castle; Kenneth Chase; John 
Churchill; Marvin Graham; Annette Craig; Julie D'Alessandro; Richard 
Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E. Fox; 
John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland; Alan 
Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah 
Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred 
Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles 
Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert; 
Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John 
Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine 
Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner; 
George Zolnoski.
---------------------------------------------------------------------------

    The District of Columbia Circuit's decision in Allied Mechanical 
Services, Inc. v. NLRB, supra, 668 F.3d at 761, 771, 773, provides 
further support for the notion that the April 2020 Board's distrust of 
regional directors' 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 Section 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 thus reasoned:

    It is therefore 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.\118\
---------------------------------------------------------------------------

    \118\ Although it opposes returning to the pre-April 2020 
blocking charge policy, the NRTWLDF argues that if a decertification 
election is to be blocked, that block ``should at least be based on 
a Regional Director's formal merit determination, not mere 
allegations made by a self-interested union attempting to delay or 
prevent its potential ouster.'' Our dissenting colleague similarly 
attempts to minimize the role of the offer-of-proof requirement, 
arguing that ``the reliance on offers of proof and witness 
availability requirements alone are insufficient to curb known union 
abuse of blocking charges.'' Of course, these arguments ignore that 
a petition is not blocked based on ``mere allegations'' of unlawful 
conduct. Rather, as shown, under the pre-April 2020 blocking charge 
policy to which we return, a request to block based on an unfair 
labor practice charge must be supported by an adequate offer of 
proof, filed simultaneously with the blocking request, providing the 
names of the witnesses who will testify in support of the charge and 
a summary of each witness's anticipated testimony. 29 CFR 103.20 
(Dec. 15, 2014). Moreover, the policy to which we return specifies 
that the regional director should continue to process the petition 
and conduct the election where appropriate--notwithstanding the 
blocking request--if the 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. 29 CFR 103.20 (Dec. 15, 2014). We expect regional 
directors to adhere to these requirements. In other words, an offer 
of proof is insufficient if, for example, it merely states in 
conclusory fashion that a named witness will testify about alleged 
but unspecified unlawful employer assistance to the decertification 
petitioner; specifics regarding the assistance must be provided in 
the offer of proof. In any event, we decline the suggestion of the 
commenter and our dissenting colleague that we should deprive 
regional directors of the authority to delay elections based on 
unfair labor practice charges supported by adequate offers of proof 
unless the regional director has made a formal merit determination. 
Although there is no prehearing discovery in unfair labor practice 
proceedings, regional investigations of unfair labor practice 
charges are not perfunctory affairs; they involve several steps, 
including the taking of affidavits of the charging party's 
witnesses, attempts to obtain corroborating evidence, the 
solicitation of the position of the alleged wrongdoer, including 
obtaining affidavits from the charged party's witnesses if the 
charged party agrees to make its witnesses available in a timely 
manner, and legal research. See, e.g., NLRB Casehandling Manual 
(Part 1) Unfair Labor Practice Proceedings, Sections 10052.3, 
10052.5, 10052.8, 10054.2, 10054.3, 10054.4, 10054.8, 10058.2, 
10060, 10064 (February 2023); NLRB, FY 2022 Performance and 
Accountability Report 26, available at https://www.nlrb.gov/reports/agency-performance/performance-and-accountability (last visited 
September 28, 2023) (noting that in FY 2022 only 41.2 percent of 
unfair labor practice charges were found to have merit by the 
regional directors). Thus, it obviously takes some time before a 
regional director can make a formal merit determination regarding an 
unfair labor practice charge. In FY 2022, the average time between 
charge filing and regional disposition was 84.4 days. See GC 
MEMORANDUM 23-06, p. 2, available at https://www.nlrb.gov/guidance/memos-research/general-counsel-memos. We believe that where parties 
have filed sufficient offers of proof in support of their blocking 
requests and no exceptions are applicable, regional directors should 
have the authority to delay elections, notwithstanding they have not 
had sufficient time to make formal merit determinations. Adoption of 
the commenter's suggestion would require regional directors to 
conduct elections in circumstances where conduct has occurred that 
has a tendency to interfere with employee free choice, or which is 
inherently inconsistent with the petition itself, simply because the 
regional director was not yet able to make the requisite merit 
determination. This would undermine employee free choice and 
contravene the Board's duty to conduct elections under conditions as 
nearly ideal as possible.
---------------------------------------------------------------------------

    Moreover, as then-Member McFerran pointed out in her dissent to the 
2019 NPRM, this criticism ignores 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). Indeed, the 
April 2020 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 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)).\119\
---------------------------------------------------------------------------

    \119\ Nor did the April 2020 amendments do away with the Board's 
longstanding practice of permitting regional directors to set aside 
elections based on their administrative approval of an informal 
settlement agreement providing for a rerun election (but containing 
a nonadmissions clause), even though there has been no posthearing 
finding by the Board of merit to the charge.
    And despite criticizing the pre-April 2020 blocking charge 
policy for permitting a mere administrative determination to delay 
employees' ability to go to the polls to resolve their 
representational status, the April 2020 Board did not explain why it 
left unchanged Board law permitting an employer to withdraw 
recognition from an incumbent union that had won a Board-conducted 
election based merely on the General Counsel's administrative 
determination that a majority of the unit no longer desire union 
representation. And that administrative determination--unlike the 
administrative determination to hold a petition in abeyance under 
the blocking charge policy--is not even reviewable by the Board, 
because the General Counsel has unreviewable discretion to decline 
to issue a complaint challenging an employer's unilateral withdrawal 
of recognition from an incumbent union. See NLRB v. United Food & 
Commercial Workers Union, Local 23, AFL-CIO, 484 U.S 112, 118-119 
(1987) (a charging party may appeal a regional director's dismissal 
of an unfair labor practice charge to the General Counsel, but not 
to the Board); Williams v. NLRB, 105 F.3d 787, 790-791 fn. 3 (2d 
Cir. 1996) (`` `General Counsel's prosecutorial decisions are not 
subject to review by the Board,' '' and courts may not pass judgment 
on the merits of a matter never put in issue or passed upon by the 
Board) (citation omitted).

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

[[Page 62974]]

    Our dissenting colleague and some commenters \120\ also invoke the 
April 2020 Board's complaint (85 FR 18367, 18379, 18393) that regional 
directors had not applied the blocking charge policy consistently. 
However, after reviewing the comments and the April 2020 rule, we do 
not find that justification persuasive. The April 2020 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. Nor do the commenters. In any event, because 
parties were entitled to file requests for Board review of regional 
director decisions to block elections based on either Type I or Type II 
charges when the pre-April 2020 blocking charge policy was in effect, 
we believe that the Board has the ability to correct any erroneous 
blocking determinations made by regional directors. See 29 CFR 
102.71(b) (2011); Casehandling Manual Sections 11730.7, 11733.2(b) 
(January 2017). Accordingly, we do not believe that a return to the 
blocking charge policy as it existed prior to the April 2020 rule will 
create a widespread problem where petitions that would normally be 
blocked in some regions would normally be processed to election in 
other regions.
---------------------------------------------------------------------------

    \120\ See, e.g., comments of CDW; HRPA.
---------------------------------------------------------------------------

d. Comments That the Pre-April 2020 Blocking Charge Policy Deprives 
Employees of the Ability To Vote and Renders Illusory RM Petitions; 
That This Rulemaking Is Intended To Protect the Institutional Interests 
of Labor Organizations Rather Than Employee Free Choice; and That the 
Pre-April 2020 Blocking Charge Policy Punishes Employees for the 
Misconduct of Others
    We also reject the premise of many commenters, our dissenting 
colleague, and the April 2020 Board that the April 2020 rule's 
amendment requiring elections to be held in virtually all cases 
involving requests to block is necessary to preserve employee free 
choice in those cases where petitions would have been blocked by 
nonmeritorious charges under the pre-April 2020 blocking charge policy. 
While we recognize that the pre-April 2020 blocking charge policy can 
delay elections pending the investigation of the merits of the blocking 
charges, we believe that the benefits of permitting regional directors 
to block elections--where they are presented with blocking requests 
that are supported by adequate offers of proof and where they conclude 
that no exceptions are applicable--outweigh any such delay. In our 
considered policy judgment, the Board's blocking charge policy as it 
existed prior to the effective date of the April 2020 rule best 
preserves employee free choice in representation cases. We note that 
because the historical blocking charge policy provided for the regional 
director to resume processing the representation petition to an 
election if the blocking charge was found to lack merit, employees in 
those cases would be afforded the opportunity to vote whether they wish 
to be represented, thus preserving employee free choice.\121\ However, 
unlike the April 2020 rule, 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 strikes us as 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, it is the Board's historical blocking charge 
policy to which we return, not the April 2020 rule requiring elections 
in virtually all cases involving requests to block, that best protects 
employee free choice in the election process.\122\
---------------------------------------------------------------------------

    \121\ As discussed more below, Sec. 103.20(f) and (g) of the 
final rule aims to provide guidance regarding the circumstances 
under which it will be appropriate for a regional director to resume 
processing a petition.
    \122\ Scaccia appears to suggest that that the Board should 
outline a specific time frame for elections similar to the regular 
election cycles in the political arena. However, the Board has no 
authority to conduct an election in the absence of an appropriately 
filed petition raising a question of representation. See Sec. 9(c) 
of the Act (29 U.S.C. 159(c)). Moreover, during the Act's long 
history, neither Congress nor the Board has seen fit to impose a 
mandatory timeline for the scheduling of elections. We agree with 
the views of the December 2014 Board that regional directors should 
continue to hold elections as soon as practicable in the 
circumstances of each case. Thus, ``[w]here there is no need to 
wait, the election should proceed; where there is a need to wait, 
the election should not proceed.'' 79 FR 74422, 74429. Suffice it to 
say that for the reasons explained at length in this preamble, we 
believe there is a need to wait when adequately supported blocking 
charge requests are filed and no exceptions are applicable.
---------------------------------------------------------------------------

    We reject as simply incorrect the suggestion of some commenters 
\123\ and the April 2020 Board (85 FR 18366-18367, 18377) 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. 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., Sections 11732; 11733.2. Moreover, as noted below, 
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 was remedied.
---------------------------------------------------------------------------

    \123\ See, e.g., comments of HRPA; NRTWLDF.
---------------------------------------------------------------------------

    We find unpersuasive the suggestion of some commenters and the 
April 2020 Board \124\ that the desires of the unit employes to 
decertify a union can be thwarted because, during the time it takes to 
litigate the merits of the unfair labor practice charge that resulted 
in the representation petition being held in abeyance or being 
dismissed, the decertification petitioner may leave the unit or become 
so discouraged by the delay that they give up and request to withdraw 
the petition. The commenters and the April 2020 Board simply ignore 
that if the decertification petitioner

[[Page 62975]]

ceases to be employed in the unit, the Board will continue to process 
the petition upon the request of the employees who remain in the unit. 
See Northwestern Photo Engraving Co., 106 NLRB 1067, 1067 fn. 1 (1953) 
(denying union's request that decertification petition be dismissed 
because of death of decertification petitioner where unit employees 
requested that Board proceed with the processing of the petition). Cf. 
Tyson Fresh Meats, Inc., 343 NLRB 1335, 1335 & fn. 3 (2004) (rejecting 
argument that employer's objections to a decertification election won 
by the union should be dismissed because decertification petitioner was 
promoted out of the unit to a supervisory position after filing the 
petition because where a petitioner becomes a supervisor after the 
filing of a petition, the process is not abated, as the petitioner is 
only a representative of the employees who are interested in a vote on 
continuing representation) (internal quotation marks omitted); 
Weyerhaeuser Timber Co., 93 NLRB 842, 843-844 (1951) (denying the 
union's request to dismiss the decertification petition on the ground 
that the petitioner was promoted to supervisory position because 
``[t]he employees of the Employer, who are currently being represented 
by the Union, are principally involved rather than the Petitioner. To 
dismiss the petition herein would be to their prejudice, not the 
Petitioner.''). Indeed, HRPA's comment cites a recent case where 
another employee was substituted for the original decertification 
petitioner who had left the unit. See Geodis Logistics, LLC, 371 NLRB 
No. 102, slip op. at 1 fn. 1 (2022) (Board grants motion to substitute 
a different individual as the petitioner in the decertification cases 
after original decertification petitioner left the unit). Similarly, if 
the other unit employees who supported the decertification petition 
object to a decertification petitioner's request to withdraw the 
petition, the Board rejects the withdrawal request and continues 
processing the decertification petition. See Saginaw Hardware Co., 108 
NLRB 955, 957 (1954) (rejecting decertification petitioner's request to 
withdraw petition where other unit employees objected and had not 
authorized the petitioner to withdraw the decertification petition). 
And it goes without saying that another employee is free to file a new 
petition. This was the law that was in effect prior to the April 2020 
rule, and it remains the law after the effective date of the instant 
rule.\125\
---------------------------------------------------------------------------

    \124\ See 85 FR 18366-18367, 18377; comments of CDW; HRPA; 
NRTWLDF.
    \125\ 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, 502 F.2d at 1028-1029 (``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.''). 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 disclaimed interest.
    We also disagree with the April 2020 Board's claim (85 FR 18367, 
18379), echoed by our dissenting colleague, along with commenters 
such as CDW, that the pre-April 2020 blocking charge policy renders 
illusory the possibility of employer-filed (``RM'') election 
petitions. Under that policy, which we reaffirm and codify in Sec. 
103.20(f) and (g) of the final rule we promulgate, 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 were never blocked, and that even in the 
minority of instances when RM petitions are blocked, most of these 
petitions are blocked by meritorious charges.
---------------------------------------------------------------------------

    Accordingly, we also categorically deny the suggestion of some 
commenters \126\ that the proposal to return to the pre-April 2020 
blocking charge policy demonstrates that the Board is uninterested in 
protecting the rights of employees who wish to rid themselves of their 
collective-bargaining representatives, and that our desire to conduct 
free and fair elections is illusory. We likewise disagree with the 
contention made by many commenters that the blocking charge policy 
wrongfully punishes employees for the misconduct of their 
employers.\127\ Put simply, as we have explained at length, the 
blocking charge policy is designed to protect employees' right to 
exercise a free and untrammeled choice for or against union 
representation.
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    \126\ See, e.g., comments of Chairwoman Foxx; Chamber; HRPA; 
NRTWLDF; ``Interested Party.''
    \127\ See, e.g., comments of ABC; NRTWLDF; Anonymous 143; 
Anonymous 83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 
152; Anonymous 76; Paul Andrews; Kenneth Bailey; Donald Barefoot; 
Barry Barkley; Kathleen Brown; Howard Butz; Dawn Castle; Kenneth 
Chase; John Churchill; Graham; Annette Craig; Julie D'Alessandro; 
Richard Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E. 
Fox; John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland; 
Alan Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; 
Deborah Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck 
Kirkhuff; Fred Lambing; Mark Larsen; Terrence Linderman; Philip 
Martin; Charles Maurhoff; Mike Mayo; Daniel McCormack; Kevin 
McLaughlin; Tim Modert; Gwen Myers; Mike O'Donnell; Richard Park; 
James Pearce; John Raudabaugh; Saul Raw; Craig Root; Mary Ellen 
Rozmus; Lorraine Schukar; Randy Schultz; Dane Smith; Kathy Stewart; 
Elizabeth Turner; George Zolnoski.
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e. Comments Regarding the Possibility of Employee Turnover Pending the 
Investigation of The Merits of the Blocking Charge
    Our dissenting colleague, CDW, and the April 2020 Board (85 FR 
18367, 18378, 18393) also fault the pre-April 2020 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. We do not find this argument a persuasive reason to adhere 
to the April 2020 rule. 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 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); Casehandling Manual Section 11312.1 (September 2020). 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); Casehandling Manual Sections 11086.3; 11312.1 
(September 2020).
    In our considered policy judgment, it serves no valid purpose to 
conduct elections over the objections of charging parties in the face 
of unremedied unfair labor practices that interfere with employee free 
choice, even though delaying the election until the unfair labor 
practices are remedied might mean that some employees who were in the 
workforce at the time the petition was filed are no longer employed at 
the time the election is held. As for the subset of cases where the 
charges are nonmeritorious, we do not believe that it is unjust to bar 
employees from voting who were employed at the time of the

[[Page 62976]]

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. 
And this is true equally in the decertification context and in the 
context of initial organizing campaigns. 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.
    We also find it significant that the April 2020 rule did not 
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. The April 2020 rule 
recognized that the Board should set aside the initial election and, in 
certain circumstances, conduct a rerun election in cases where the 
charges that were the subject of a request to block are meritorious. 
And just as was the case prior to the April 2020 rule, the eligibility 
period for rerun elections under the April 2020 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). Put simply, this means 
that, under the April 2020 rule, employees who vote in the election 
that counts--i.e., the election whose results are certified--sometimes 
will not be the employees who were in the unit when the petition was 
filed. Yet, despite its professed concerns about employee turnover, the 
April 2020 Board was willing to countenance this result; indeed, like 
so many of the commenters opposed to the NPRM, the April 2020 Board 
took the position that a rerun election constitutes an adequate remedy 
notwithstanding the possibility of turnover. Some risk of 
disenfranchisement is thus unavoidable in this context. However, in our 
considered policy judgment, the costs of the delay (including the risk 
that employees who voluntarily choose to leave the unit while the 
merits of the unfair labor practice charge are determined will not have 
the opportunity to vote in an eventual election) do not outweigh the 
benefits of enabling regional directors to avoid having to force 
employees to vote under coercive circumstances when there are 
concurrent charges supported by an adequate offer of proof and a 
request to block.
f. Comments Regarding Section 8(a)(2), the First Amendment, Compulsory 
Dues Obligations Following Expiration of Collective-Bargaining 
Agreements, and the Alleged Statutory Right to a Decertification 
Election 12 Months After a Prior NLRB-Supervised Election
    Nor do we agree with those commenters that argue that we should 
adhere to the April 2020 rule because it better accords with the 
considerations underlying Section 8(a)(2) of the Act than the pre-April 
2020 blocking charge policy.\128\ According to CDW, because the 
blocking charge policy delays decertification elections for the 
duration of the ``administrative processes'' (including the 
investigation into the merits of the concurrent unfair labor practice 
charge(s)), it ``runs directly counter to the policy considerations 
underlying Section 8(a)(2)'s prohibition on recognition of minority 
unions'' because the lawfully recognized union ``may have long since 
lost the support of a majority of employees.'' \129\
---------------------------------------------------------------------------

    \128\ See, e.g., comments of CDW; NRTWLDF.
    \129\ See Bernhard-Altmann, supra, 366 U.S. at 738 (``[A] grant 
of exclusive recognition to a minority union constitutes unlawful 
support in violation of . . . [S]ec[.] [8(a)(2)], because the union 
so favored is given `a marked advantage over any other in securing 
the adherence of employees.' '') (quoting Pennsylvania Greyhound 
Lines, 303 U.S. at 267).
---------------------------------------------------------------------------

    However, these comments ignore that the blocking charge policy 
applies equally to petitions filed in initial organizing campaigns, 
where, by definition, there is no incumbent union serving as the 
representative of the unit employees. Thus, the commenters' concerns 
about the blocking charge policy insulating an entrenched minority 
union from being ousted in the decertification context cannot justify 
denying regional directors the ability to delay elections in the 
initial organizing context when there are pending unfair labor practice 
charges and blocking requests alleging conduct that would interfere 
with employee free choice in an election were one to be held.
    Nor do the commenters explain why their concern about the blocking 
charge policy's effect in the decertification context should prevent a 
regional director from delaying an election sought by a rival union 
with whom the employer might prefer to deal (over the incumbent union) 
and which the employer has unlawfully assisted in obtaining a showing 
of interest in support of the petition, when the incumbent union has 
filed a request to block supported by an adequate offer of proof. See 
CHM Section 11730.3(a) (August 2007) (noting that Section 8(a)(2) 
charges alleging that employer representatives assisted in the showing 
of interest obtained by a labor organization may justify dismissal of 
the petition).
    As for the delay that results from application of the blocking 
charge policy in the context of decertification petitions where there 
admittedly is a currently certified (or voluntarily recognized) 
representative, we note that, by definition, the incumbent union would 
not have been certified by the Board (or recognized by the employer) 
prior to the filing of the decertification petition unless the union 
had previously won a Board-conducted election (or the employer had 
satisfied itself that the union enjoyed majority support when it 
recognized the union). We further note that because a decertification 
petition need only be supported by 30 percent of the unit, the mere 
filing of a decertification petition does not by itself demonstrate 
that the incumbent union lacks majority support. See Allied Industrial 
Workers, AFL-CIO Local Union 289 v. NLRB, 476 F.2d 868, 881 (D.C. Cir. 
1973) (``The naked showing that a decertification petition has been 
filed, with no indication of the number of signatories . . . , is an 
insufficient basis'' for doubting the union's majority status ``since 
it establishes no more than that the petition was supported by the 
requisite 30% `showing of interest.' '') (citation omitted); Bryan 
Memorial Hospital v. NLRB, 814 F.2d 1259, 1262 (8th Cir. 1987). The 
commenters do not explain how requiring employees to await the outcome 
of the investigation into the merits of an unfair labor practice charge 
alleging conduct that would interfere with employee free choice or 
which is inconsistent with the petition itself runs afoul of Section 
8(a)(2) where there has not even been a purported showing that the 
incumbent union in fact has lost its majority support. Moreover, even 
if the decertification petition purportedly was signed by a majority of 
the unit employees, the petition itself may have been tainted by unfair 
labor practices, thereby casting doubt on whether the petition 
demonstrates the uncoerced sentiments of a majority of the unit 
employees. And the results of the decertification election cannot be 
said to

[[Page 62977]]

represent the uncoerced views of a majority if the election was 
conducted under coercive circumstances that postdate the showing of 
interest. As for decertification elections delayed by nonmeritorious 
charges, we repeat that the regional director resumes processing the 
petition if the charge lacks merit. In short, we see no fundamental 
inconsistency between the blocking charge policy and Section 8(a)(2); 
both advance the goals of protecting employee free choice in the 
selection and retention of collective-bargaining representatives and 
shielding the employees' choice from unlawful interference by the 
employer.
    Finally, as several commenters that support the proposed rule 
note,\130\ even though the April 2020 rule permits employees to vote 
sooner, the employees' choice is not necessarily effectuated any 
sooner--in the sense of the incumbent union actually being 
decertified--because the certification of the results of the election 
must await the determination of the merits of the unfair labor practice 
charge, and it takes the same amount of time to investigate the charge 
whether it is investigated before the election (under the pre-April 
2020 policy to which we return) or after the election (as under the 
April 2020 rule). For all these reasons, we do not believe that we 
should decline to return to the blocking charge policy on Section 
8(a)(2) policy grounds.
---------------------------------------------------------------------------

    \130\ See comments of AFL-CIO/NABTU; GC Reply; LA Federation; 
USW.
---------------------------------------------------------------------------

    Insofar as certain commenters raise First Amendment concerns about 
the blocking charge policy delaying employees' ability to oust a union 
because they would prefer not to be union members,\131\ we note that 
under the Act, employees need not join a union or remain members of a 
union and may resign their union membership at any time.\132\ Even 
assuming for the sake of argument that the First Amendment applies at 
all to private-sector agency-shop arrangements, the commenters cite no 
authority for the proposition that the First Amendment is violated if 
an election is delayed during the investigation of unfair labor 
practice charges alleging conduct that would interfere with employee 
free choice or that is inconsistent with the petition itself.\133\
---------------------------------------------------------------------------

    \131\ See, e.g., comments of Weber, Scaccia, and Chaump. We note 
in passing that certain commenters, such as Scaccia, a New York 
State employee, and Chaump, a public school teacher in Pennsylvania, 
will not be directly affected by the instant rule because the Board 
lacks jurisdiction over public employees. 29 U.S.C. 152(2).
    \132\ See Pattern Makers' League of North America, AFL-CIO v. 
NLRB, 473 U.S. 95, 99-108 (1985) (employees may resign membership in 
a union at any time); NLRB v. General Motors Corp., 373 U.S. 734, 
742 (1963) (`` `Membership' as a condition of employment is whittled 
down to its financial core.''). Except in States where union-
security clauses are prohibited by state law, as Sec. 14(b) of the 
Act authorizes, however, nonmember employees may be subject to the 
requirements of such clauses. See, e.g., Marquez v. Screen Actors 
Guild, Inc., 525 U.S. 33, 36-37, 46 (1998) (Sec. 8(a)(3) of the Act 
``incorporates an employee's right not to `join' the union (except 
by paying fees and dues) for ``representational activities'').
    \133\ See Blanco, 641 F. Supp. at 419 (rejecting the contention 
that application of the historical blocking charge policy deprived 
the plaintiff of his First Amendment rights).
---------------------------------------------------------------------------

    Nor are we persuaded by the comments that argue that we should 
refrain from returning to the Board's historical blocking charge policy 
because that policy punishes employees by forcing them to pay dues to 
the union they wish to decertify after the collective-bargaining 
agreement containing the union-security clause expires.\134\ Thus, even 
in a state where union-security clauses are lawful, once the 
collective-bargaining agreement containing the union-security clause 
has expired, nonmember employees who do not wish to financially support 
the incumbent union can avoid having to pay any dues to the incumbent 
union simply by revoking their dues-checkoff authorizations pursuant to 
Section 302(c)(4) of the Taft-Hartley Act. After all, ``[u]nion-
security clauses do not survive contract expiration because the proviso 
to Section 8(a)(3) of the Act limits such provisions to the term of the 
contracts containing them,'' and even if employees have voluntarily 
authorized dues checkoff, their authorizations ``are revocable at the 
employee's option'' after contract expiration, consistent with the 
terms of such authorizations. Valley Hospital II, 371 NLRB No. 160, 
slip op. at 9 fn. 23 & 10 fn. 31.\135\
---------------------------------------------------------------------------

    \134\ See, e.g., comments of Chairwoman Foxx; Chamber; NRTWLDF; 
Scaccia. At least one commenter relies on the Board's decision in 
WKYC-TV, Inc., 359 NLRB No. 30 (2012), in support of her claim 
regarding compulsory dues payments following expiration of a 
collective-bargaining agreement containing a dues-checkoff 
obligation. At the time that case was decided, the composition of 
the Board included two persons whose appointments were subsequently 
held to be constitutionally invalid in NLRB v. Noel Canning, 537 
U.S. 513 (2014). In Lincoln Lutheran of Racine, 362 NLRB 1655 
(2015), decided thereafter by a valid Board majority, the Board held 
that an employer's obligation to check off union dues continues 
after expiration of a collective-bargaining agreement that contains 
a dues-checkoff provision. In Valley Hospital Medical Center, Inc., 
368 NLRB No. 139, slip. op. at 1 (2019) (``Valley Hospital I''), the 
Board overruled Lincoln Lutheran of Racine, but, following a remand 
from the United States Court of Appeals for the Ninth Circuit, the 
Board reversed Valley Hospital I and ``reinstate[d]'' Lincoln 
Lutheran's holding. See Valley Hospital Medical Center, Inc. d/b/a 
Valley Hospital Medical Center, 371 NLRB No. 160, slip op. at 1-3 & 
fn. 1 (2022) (``Valley Hospital II''), enfd. 93 F.4th 1120 (9th Cir. 
2024). Valley Hospital II found Lincoln Lutheran's decision 
``thoughtful and well reasoned,'' and adopted its reasoning. Id. 
slip op. at 1-2, 9. Accordingly, our discussion of this issue will 
reference Valley Hospital II, rather than WKYC-TV, as cited in the 
comment.
    \135\ We likewise reject as lacking in merit commenter Chaump's 
unexplained claim that the proposed return to the blocking charge 
policy would ``stifle competition in labor relations by forcing 
union representation onto all employees, without the employees 
having the chance to vote for representation in the first place.'' 
As discussed above, federal labor law has long recognized, even 
prior to the adoption of the blocking charge policy, that employees 
may obtain representation for purposes of collective bargaining 
without first voting in a Board-conducted election. We further note, 
as was also discussed previously, that the Supreme Court has held 
that the Board has the authority to order an employer to bargain 
with a union when the employer has committed serious unfair labor 
practice conduct disruptive of the election machinery and where the 
Board concludes that previously expressed employee sentiment would 
be better protected by a bargaining order. See Gissel Packing, 395 
U.S. at 591-592, 610-611, 614-615. See also Cemex, supra, 372 NLRB 
No. 130, slip op. at 24 (discussing the Supreme Court's decision in 
Gissel). To the extent Chaump contends that the other rule 
provisions have that effect, the argument is addressed elsewhere. We 
likewise reject as lacking in merit Bryden's unexplained claim that 
limiting voting windows is ``racist.''
---------------------------------------------------------------------------

    Many commenters opposed to the proposed rule argue that the pre-
April 2020 blocking charge policy infringes on workers' ``statutory 
right to hold decertification elections at any time outside of 12 
months following a previous NLRB-supervised election.'' \136\ We 
disagree. Those comments cite no authority for such a supposed 
statutory right, and the courts have repeatedly upheld Board doctrines 
that can prevent the holding of decertification elections or the 
withdrawal of recognition more than 12 months after a valid NLRB-
supervised election. See, e.g., Auciello Iron Works, Inc., supra, 517 
U.S. at 786-787 (union is entitled to a conclusive presumption of 
majority status during the term of a collective-bargaining agreement of 
three years or less). See also Veritas Health Services, Inc. v. NLRB, 
supra, 895 F.3d at 80-82 (``[T]here are certain times when a union's 
presumption of majority

[[Page 62978]]

support is irrebuttable, such that any refusal to recognize and deal 
with a duly elected union--with or without a decertification petition--
will violate the Act.''); Bryant & Stratton Business Institute, Inc. v. 
NLRB, 140 F.3d 169, 174, 186-187 (2d Cir. 1998) (upholding Board's 
finding that employer's April 1996 withdrawal of recognition was 
unlawful because employer withdrew recognition prior to the expiration 
of the extension of the certification year that the Board ordered to 
remedy employer's bargaining violations during the 12-month period 
following the union's November 1989 certification); NLRB v. Commerce 
Co., 328 F.2d 600, 601 (5th Cir. 1964) (``[I]n view of the undisputed 
evidence as to earlier failure to bargain, we think the board's action, 
in making the order dismissing the decertification petition and 
granting the union an additional six months beyond the certification 
year in which to bargain, was reasonable and proper.''), cert. denied. 
379 U.S. 817 (1964). Cf. Mar-Jac Poultry Co., Inc., 136 NLRB 785, 787 
(1962) (dismissing election petition filed by employer more than 12 
months after the union was certified but before the employer had 
bargained for 12 months; ``to permit the Employer now to obtain an 
election would be to allow it to take advantage of its own failure to 
carry out its statutory [bargaining] obligation, contrary to the very 
reasons for the establishment of the rule that a certification requires 
bargaining for at least 1 year.''); Lamar Hotel, 137 NLRB 1271, 1271-
1273 (1962) (dismissing decertification petition filed more than 12 
months after union's certification because the employer had ceased 
bargaining for approximately the last six months of that 12-month 
period). It is thus not surprising that no court had ever invalidated 
the blocking charge policy in the more than eight decades of its 
existence, and that even the 2020 Board did not claim that the blocking 
charge policy violated the Act. Moreover, as previously discussed, even 
under the April 2020 rule, regional directors were empowered to dismiss 
petitions--and thereby block elections--more than 12 months after a 
previous election under the merit-determination dismissal 
procedure.\137\
---------------------------------------------------------------------------

    \136\ See, e.g., comments of Anonymous 83; Anonymous 106; 
Anonymous 113; Anonymous 123; Anonymous 152; Anonymous 76; Paul 
Andrews; Kenneth Bailey; Donald Barefoot; Barry Barkley; Kathleen 
Brown; Howard Butz; Dawn Castle; Kenneth Chase; John Churchill; 
Marvin Graham; Annette Craig; Julie D'Alessandro; Richard Damico; 
Daniel De La O; John-G Donovan; Edward Farrow; William Fedewa; R.E. 
Fox; John Gaither; Rachel Hughes; Gary Kirkland; Alan Goldberg; 
Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah Hurd; 
Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred 
Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles 
Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert; 
Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John 
Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine 
Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner; 
George Zolnoski.
    \137\ For related reasons, we also reject the suggestion of the 
NRTWLDF that if the Board decides to reinstate the pre-April 2020 
blocking charge policy, we should include a provision allowing 
decertification petitioners to intervene as full parties in all 
blocking charge litigation to protect and effectuate their statutory 
right to an election. See comments of NRTWLDF.
    ``Sec. 10(b) of the Act expressly provides that intervention in 
unfair labor practice proceedings is discretionary with the Board, 
and not a matter of right.'' DirectSat USA, LLC, 366 NLRB No. 141, 
slip op. at 2 (2018) (citing Medi-Center of America, 301 NLRB 680, 
680 fn. 1 (1991)), review denied, 925 F.3d 1272 (D.C. Cir. 2019). 
Thus, Sec. 10(b) of the Act provides, ``[i]n the discretion of the 
member, agent, or agency conducting the hearing or the Board, any 
other person may be allowed to intervene in the said proceeding and 
to present testimony.''). The Board's Rules and Regulations likewise 
make intervention discretionary and not a matter of right. See 29 
CFR 102.29 (``Any person desiring to intervene in any proceeding 
must file a motion in writing or, if made at the hearing, may move 
orally on the record, stating the grounds upon which such person 
claims an interest . . . . The Regional Director or the 
Administrative Law Judge, as the case may be, may, by order, permit 
intervention in person, or by counsel or other representative, to 
such extent and upon such terms as may be deemed proper.''). 
Moreover, as a case cited by the commenter implicitly recognizes, in 
some cases, a decertification petitioner has no right to an election 
when it files the decertification petition and can have nothing 
relevant to contribute to an unfair labor practice proceeding 
because its petition is legally foreclosed. See Veritas Health 
Services, Inc., supra, 895 F.3d at 87 (even assuming a 
decertification petition was signed by a majority of the unit 
employees, any loss of majority support for the Union would not have 
been actionable during the still-pending extended certification 
year); id. at 89 (concurring opinion) (while urging the Board to 
establish substantive criteria governing intervention, concurring 
opinion notes that the Board's failure to do so is ultimately 
without consequence in this particular case because [the employee's] 
claims on intervention pertain to a legally foreclosed 
decertification petition). Allowing decertification petitioners to 
intervene in such cases, with all the rights that such participation 
extends, can only serve to hinder and delay the prompt decision of 
the controversy. The commenter also implicitly concedes that in 
other cases, the decertification petitioner's interests sometimes 
will be adequately represented by the employer. See comments of 
NRTWLDF (contending that it ``is not always the case'' that the 
employer has the same interest as the petitioner'' in the 
representation case) (emphasis added). Cf. Semi-Steel Casting Co. of 
St. Louis v. NLRB, 160 F.2d 388, 393 (8th Cir. 1947) (``Insofar as 
intervention was sought by the employees for the purpose of making 
the same defense as that made by the company, they were not only not 
necessary parties, but their presence could only serve to hinder and 
delay the prompt decision of the controversy.''). Accordingly, we 
decline to grant decertification petitioners a categorical 
entitlement to intervene as full parties in all blocking charge 
litigation. Rather, consistent with the statute and the extant 
regulations, motions to intervene made by decertification 
petitioners should be decided on a case-by-case basis.
    The NRTWLDF also asserts that the Board has held that 
decertification petitioners are not entitled to even get information 
regarding the blocking charge litigation. We are unaware of any 
Board holding precluding Agency personnel from responding to 
requests for nonprivileged information about the status of pending 
unfair labor practice charges. We expect regional offices to 
disclose publicly available information in response to requests by 
decertification petitioners about the status of blocking charges 
just as they would respond to inquiries about the status of other 
charges.
---------------------------------------------------------------------------

g. Comments That the Pre-April 2020 Blocking Charge Policy Incentivizes 
the Filing of Meritless or Frivolous Charges
    Many commenters who oppose the NPRM argue that because the blocking 
charge policy can substantially delay elections based on mere 
allegations of unfair labor practices, the policy incentivizes the 
filing of meritless or frivolous charges, particularly in the 
decertification context where employees are seeking to rid themselves 
of union representation.\138\ The April 2020 Board made the same 
argument to justify its decision to jettison the blocking charge 
policy. 85 FR 18367, 18376, 18377, 18379-18380, 18393. Our dissenting 
colleague also defends the April 2020 rule on this basis, arguing that 
the majority ``largely downplays and dismisses the gamesmanship 
problem.''
---------------------------------------------------------------------------

    \138\ See, e.g., comments of ABC, CDW; Chairwoman Foxx; Chamber; 
Graham; HRPA; NRTWLDF; Scaccia.
---------------------------------------------------------------------------

    That argument, unsupported by evidence, does not persuade us that 
we should decline to return to the pre-April 2020 blocking charge 
policy. Put simply, there has been no factual demonstration that it was 
the norm for unions to file nonmeritorious blocking charges--let alone 
to file frivolous charges--in order to delay elections in RD or RM 
cases when the historical blocking charge policy was in effect. Indeed, 
as then-Member McFerran pointed out in her 2019 NPRM dissent, the 
Board's 2019 NPRM made no effort to determine how often decertification 
petitions were blocked by meritorious charges, as compared 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 
Board do so when it issued the April 2020 rule. And nor do the 
commenters or our dissenting colleague who oppose returning to the pre-
April 2020 blocking charge policy. As noted, the analysis of the pre-
Covid data contained in then-Member McFerran's 2019 NPRM dissent would 
seem to undercut the unsupported concerns of many of the commenters, 
our colleague, and the April 2020 Board, as it shows that an 
overwhelming majority of the decertification petitions and employer-
filed RM petitions were never blocked, and that even in the minority of 
instances when decertification petitions and RM petitions were blocked, 
most of these petitions were blocked by meritorious charges.\139\ Even 
if we were

[[Page 62979]]

to accept the 2019 NPRM majority's flawed data as accurate, it too 
confirms that the majority of petitions were not blocked. See 2019 NPRM 
Majority Appendix A, currently available at https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-7583/majority-appendix-reformatted.pdf. Thus, there simply has been no showing that it was the 
norm for decertification petitions to be blocked when the pre-April 
2020 blocking charge policy was in effect, let alone that that it was 
the norm for the petitions to be blocked by meritless or frivolous 
charges.\140\
---------------------------------------------------------------------------

    \139\ See 84 FR 39943-39945 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.''); Dissent Appendix, Section 1.'' 84 FR 
39943-39944 & fn. 64 (``[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, 
Section 1.''); 84 FR 39945 fn. 69 (``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. . . . 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.''). 
Moreover, 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). In claiming that then-Member McFerran should not 
have deemed charges meritorious if they resulted in a settlement, 
the NRTWLDF ignores that, as shown previously, in determining 
whether a petition was blocked by a meritorious charge, then-Member 
McFerran ``applied the Office of the General Counsel's long-standing 
merit definition contained in OM 02-102'' available at https://www.nlrb.gov/guidance/memos-research/operations-management-memos, 
and that the Board Chairman and General Counsel in office when both 
the 2019 NPRM and the April 2020 rule issued ``used the same merit 
definition in their Strategic Plan for FY 2019-FY 2022.'' See, e.g., 
Strategic Plan pp. 2, 5, attached to GC Memorandum 19-02, available 
at https://www.nlrb.gov/guidance/memos-research/general-counsel-memos. 84 FR 39944 fn. 64 (emphasis added).
    \140\ Our colleague argues that our ``suggestion that there is 
insufficient evidence that nonmeritorious or frivolous blocking 
charges are `the norm''' depends on our willingness to tolerate ``a 
very substantial burden on employee free choice before even 
acknowledging, let alone redressing, this harm.'' For the reasons 
set forth above, we respectfully disagree with our colleague's view 
that the historical blocking charge policy requires tolerating a 
``burden'' on employee free choice. Instead, it is the Board's 
obligation to minimize the burden on employees of participating in 
elections conducted under coercive circumstances.
---------------------------------------------------------------------------

    Moreover, we believe that the regulatory provisions included in the 
December 2014 rule--requiring the party that seeks to block the 
election to (1) simultaneously file a written offer of proof providing 
the names of its witnesses who will testify in support of the charge 
and a summary of each witness's anticipated testimony, and (2) promptly 
make the witnesses available to the regional director--operate to 
disincentivize the filing of frivolous charges and provide powerful 
tools to regional directors to promptly dispose of any nonmeritorious 
blocking requests that are filed. As a further safeguard, under the 
2014 rule, if a regional director determined that a party's offer of 
proof did not describe evidence that, if proven, would interfere with 
employee free choice in an election or would be inherently inconsistent 
with the petition itself, the regional director would continue 
processing the petition and conduct the election where appropriate. See 
Associated Builders & Contractors of Texas, Inc., supra, 826 F.3d at 
228 (citing amended Sec.  103.20's offer of proof requirement (29 CFR 
103.20 (Dec. 15, 2014) and concluding that the Board ``considered the 
delays caused by blocking charges, and modified current policy in 
accordance with those considerations''). Indeed, the April 2020 Board 
itself conceded that this new evidentiary requirement would likely 
facilitate the quick elimination of obviously meritless charges and 
blocking requests based on them, and thereby permit processing of some 
petitions with minimal delay. 85 FR 18377.\141\
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    \141\ Our dissenting colleague expresses doubt that the offer-
of-proof and witness availability requirements will successfully 
filter out nonmeritorious charges, arguing that those aspects of the 
pre-April 2020 blocking charge policy are not ``sufficient, standing 
alone, to curb any abuse of the blocking charge policy.'' Instead, 
our colleague contends that the Board should have considered ``the 
use of durational limits for blocking charges'' or other reform 
alternatives. Because we respectfully disagree with our colleague's 
assessment of the efficacy of the offer-of-proof and witness 
availability requirements of the pre-April 2020 blocking charge 
policy, we do not see a need to explore other reform alternatives. 
As more extensively discussed above, see supra fn. 119, these 
requirements are not perfunctory, and we expect regional directors 
to apply them appropriately when assessing blocking requests.
---------------------------------------------------------------------------

    Ultimately, 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 have decided to return to the 
judicially approved, pre-April 2020 blocking charge policy based on a 
policy choice that the historical blocking charge policy, as amended by 
the December 2014 rule, 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.
h. Comments That the April 2020 Rule Has Not Caused a Spike in the 
Number of Elections Being Set Aside
    The NRTWLDF also claims that the number of elections set aside did 
not significantly increase after promulgation of the April 2020 final 
rule, thereby demonstrating (in its view) that the historical blocking 
charge policy served only to incentivize the filing of nonmeritorious 
unfair labor practice charges. Its premise appears to be that if 
employees have been forced to vote under coercive conditions under the 
April 2020 rule, the Board would have ordered rerun elections (or 
dismissed petitions) in those cases, and, since no commenter cites 
evidence that the number of rerun elections/dismissed petitions has 
significantly spiked, this demonstrates that any would-be blocking 
charges would have been nonmeritorious. Thus, it claims that the April 
2020 rule has succeeded in its goal of permitting employees to vote 
promptly without interfering with the employees' Section 7 rights to 
make a free choice for or against union representation. The NRTWLDF 
states in this regard that it is aware of only three instances in the 
first two years following the April 2020 rule of an election being held 
without resolving the question of representation. The NRTWLDF argues 
that in the absence of evidence proving a spike in the number of rerun 
elections (or dismissed petitions), the Board lacks a reasoned 
explanation for returning to the historical blocking charge policy that 
by definition delays elections.
    To be sure, the April 2020 rule by design has the effect of fewer 
blocked elections, thereby enabling employees to vote sooner than they 
could have under the Board's historical blocking charge policy (though, 
as the April 2020 Board and the NRTWLDF concede, the results of those 
elections cannot be certified until merits of the unfair labor practice 
charges are determined). However, we are not persuaded by the argument 
that we should refrain from returning to the pre-April 2020 blocking 
charge policy in the absence of evidence that the number of elections 
set aside has significantly increased since the April 2020 rule was 
implemented in the throes of the Covid 19-pandemic. The commenter 
ignores that, under the April 2020 rule, elections are being set aside 
because of charges alleging pre-election unfair labor practice conduct, 
just as the April 2020 Board conceded would be the case. As an initial 
matter, we disagree with the NRTWLDF's suggestion that there are ``only 
three instances in two years of an election being held without 
resolving the question of representation.'' The NRTWLDF's count is 
admittedly limited to merit-determination dismissal cases. However, as 
we have previously explained, the merit-determination dismissal 
procedure, by its own terms, is applicable to only a small subset of 
representation cases involving concurrent unfair labor practice 
charges.
    The NRTWLDF's figures also fail to take into account cases where 
the

[[Page 62980]]

General Counsel has sought a Gissel bargaining order to remedy unlawful 
conduct adversely affecting an election. See, e.g., List Industries, 
Inc., Cases 13-CA-278248 et al. & 13-RC-278226; Spike Enterprise, Inc., 
Cases 14-CA-281652, 13-CA-282513, 13-RC-281169; I.N.S.A., Inc., Cases 
01-CA-290558 et al. & 01-RC-288998; IBN Construction Corp., Cases 22-
CA-277455, 22-RC-274819; Starbucks Corp., Cases 03-CA-285671 et al. & 
03-RC-282127. The NRTWLDF's figures also fail to take into account 
cases where elections were set aside pursuant to party agreement.\142\
---------------------------------------------------------------------------

    \142\ See, e.g., Hussmann Services Corp., Cases 27-CA-270714 et 
al. & 27-RC-271418 (after regional director issued October 13, 2021 
order consolidating objections with unfair labor practice complaint, 
parties settled charges and agreed to set aside election and to a 
rerun election).
---------------------------------------------------------------------------

    In any event, in focusing on the absence of a spike in the number 
of elections set aside, we believe that the commenter misses a key 
point. Put simply, the fact that an election is not set aside does not 
mean that employees were able to exercise a free and untrammeled choice 
in the election that was held. The Board generally lacks authority to 
set aside the results of an election and to conduct a rerun election on 
its own initiative in a case that does not involve commingled 
determinative challenges, absent a party's filing election objections 
(or a request to block).\143\ In addition, not all unions will opt to 
seek a rerun election. In our considered policy judgment, it cannot be 
counted as a statutory success if a union chooses not to seek a rerun 
election after being forced to participate in an election conducted 
under coercive conditions that interfere with employee free choice. Nor 
do we consider it a statutory success if a union withdraws its petition 
because it believes that it cannot prevail in an election because of 
employer unfair labor practices.\144\ Accordingly, we are not persuaded 
that we should refrain from returning to the Board's historical 
blocking charge policy absent proof of a significant uptick in rerun 
elections or dismissed petitions following implementation of the April 
2020 rule.\145\
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    \143\ The Board lacks the authority to initiate election 
objections proceedings on its own. See 29 CFR 102.69(a)(8) (July 21, 
2023) (``Within 5 business days after the tally of ballots has been 
prepared, any party may file with the Regional Director objections 
to the conduct of the election or to conduct affecting the results 
of the election. . . .''). Thus, if a party refrains from filing 
election objections and there are no determinative challenges, the 
results of the election generally will be certified even if it was 
conducted under coercive circumstances. See 29 CFR 102.69(b) (July 
21, 2023) (``If no objections are filed within the time set forth in 
paragraph (a)(8) of this section, if the challenged ballots are 
insufficient in number to affect the results of the election, and if 
no runoff election is to be held pursuant to Sec.  102.70, and if no 
request for review filed pursuant to Sec.  102.67(c) is pending, the 
Regional Director shall forthwith issue to the parties a 
certification of the results of the election, including 
certification of representative where appropriate, with the same 
force and effect as if issued by the Board.''). While the April 2020 
rule deferred certification of the results of an election in cases 
where there had been a request to block filed based on a concurrent 
unfair labor practice charge (see 29 CFR 103.20(d)), there was no 
provision in that rule for deferring certification in the absence of 
a request to block (or election objections). Thus, under the April 
2020 rule, absent the filing of election objections or a request to 
block based on unfair labor practice charges, the Board had no 
authority to set aside the results of an election and to direct a 
rerun election that did not involve commingled determinative 
challenges.
    \144\ In some cases, a union may withdraw its petition even 
after filing election objections. See, e.g., Opinion Granting 
Preliminary Injunction in Goonan v. Amerinox Processing, Inc., 2021 
WL 2948052 (D.N.J. July 14, 2021) (after the Board obtained a court 
approved formal settlement agreement providing for a rerun election 
and requiring the employer to cease and desist from its unlawful 
acts and to pay backpay to a number of discharged employes (who had 
declined reinstatement), union withdrew its petition in part because 
of the pandemic and in part ``because the Union believed that 
employees would be unwilling to vote for the Union at that time due 
to Amerinox's prior actions.''); Amerinox Processing, Inc., 371 NLRB 
No. 105, slip op. at 10-12 & fn. 4 (2022), enfd. 2023 WL 2818503 
(D.C. Cir. 2023).
    SEIU's comment similarly raises Lockport Rehab & Health Care 
Center, Cases 03-RC-267061, 03-RC-267049, and 03-CA-269156, as an 
example of why a return to the pre-April 2020 blocking charge policy 
is necessary. SEIU claims that the April 2020 rule forced it to 
proceed to an election on its petitions, filed October 5, 2020, 
despite the employer's commission of numerous pre-election unfair 
labor practices, including two October discharges, threats, and 
surveillance, causing employees to be terrified of losing their 
jobs. SEIU claims that the holding of the November 6, 2020 elections 
``made a mockery of the Board's responsibility to conduct elections 
under `laboratory conditions,' '' and ``ensured that the Lockport 
election proceeded under coercive circumstances,'' and that it 
unsurprisingly lost the vote. While the NRTWLDF notes in its reply 
comment that the SEIU never explicitly states in its comment what 
happened to its petitions, the SEIU comment indicates that its 
organizational coordinator did not believe that a rerun election 
would be a sufficient option because ``[w]orkers lost hope after the 
election. They walked away with the impression that voting in an 
NLRB election doesn't mean much and that the employer still really 
controls the environment no matter what the law says.'' The SEIU 
comment further indicates that the parties subsequently entered into 
a non-Board settlement of the unfair labor practice complaint (that 
issued after the election) providing relief for the discriminatees, 
and a review of the case file indicates that the Regional Director 
approved the Union's request to withdraw the petitions based on the 
non-Board settlement. See March 4, 2021, Complaint And Notice of 
Hearing in Lockport Rehab & Health Care Center, Case No 03-CA-
269156; March 5, 2021 Order Directing Hearing On Objections And 
Order Consolidating Cases and Notice of Hearing in Lockport Rehab & 
Health Care Center, Case Nos. 03-CA-269156, 03-RC-267049, and 03-RC-
267061; June 14, 2021 Order Approving Withdrawal of Charge And 
Petitions And Dismissing The Consolidated Complaint in Lockport 
Rehab & Health Care Center, Case Nos. Case 03-CA-269156, 03-RC-
267049, and 03-RC-267061.
    \145\ For much the same reasons, we reject the related claim of 
the NRTWLDF that it is the pre-April 2020 blocking charge policy--
rather than the April 2020 rule--that imposes unnecessary costs on 
the Board and the parties by incentivizing the filing of meritless 
or frivolous charges. To repeat, the commenter has not shown that it 
was the norm for unions to file meritless or frivolous unfair labor 
practice charges to delay elections under the pre-April 2020 
blocking charge policy or that there have only been three instances 
of elections not resolving the question of representation during the 
first two years following the promulgation of the April 2020 rule. 
The commenter further ignores that the December 2014 rule granted 
regional directors tools to swiftly dispose of nonmeritorious 
charges. More fundamentally, the argument ignores that one of the 
Board's primary functions is to conduct free and fair elections, and 
that duty is not discharged when, as under the April 2020 rule, the 
Board is required to conduct some elections under coercive 
circumstances. The April 2020 rule thus not only imposed unnecessary 
financial costs on the Board and the parties by admittedly requiring 
regional directors to conduct, and the parties and employees to 
participate in, elections that will not count, it undermined a 
fundamental statutory goal of ensuring free choice. In our view, any 
financial burden incurred by the Board and the parties in having to 
investigate (or in being asked to respond to) unfair labor practice 
charges alleging conduct that would interfere with employee free 
choice in an election were one to held or conduct which is 
inconsistent with the petition itself, but which are ultimately 
found to lack merit, is outweighed by the critical benefit of 
ensuring employee free choice. Finally, the commenter does not 
explain why an incumbent union intent on delaying its 
decertification until the last possible moment notwithstanding its 
knowledge that it has lost the support of the unit for reasons 
entirely unrelated to any employer conduct would necessarily be 
deterred from filing an unfair labor practice charge by the April 
2020 rule given that the April 2020 rule itself delayed 
certification of the results of the election until the merits of the 
unfair labor charge are determined. In short, even under the April 
2020 rule, the actual decertification of the incumbent union can be 
delayed by the filing of a nonmeritorious charge even if the 
election is held as promptly as it would have been had no charge 
ever been filed.
---------------------------------------------------------------------------

i. Comments Regarding Judicial Criticism of Blocking Charge Policy
    Both our dissenting colleague and some commenters claim that we 
should refrain from returning to the pre-April 2020 blocking charge 
policy because it was the subject of judicial criticism.\146\ They 
generally cite the same, decades-old cases that the April 2020 Board 
relied on in support of its decision to jettison the blocking charge 
policy. 85 FR 18367, 18376. With due respect, however, those few 
cases--even if we accepted the dubious interpretation of them advanced 
by the prior Board and the commenters--do not persuade us that we 
should decline to return to the pre-April 2020 blocking charge policy.
---------------------------------------------------------------------------

    \146\ See comments of ABC; CDW; Chamber; NRTWLDF. We note that 
many of these arguments were persuasively addressed by then-Member 
McFerran in her 2019 NPRM dissent. See 84 FR 39942-39943.
---------------------------------------------------------------------------

    To begin, it bears repeating that, although the Board's application 
of the blocking charge policy in a particular case had occasionally 
been criticized, no court had invalidated the policy

[[Page 62981]]

itself during the more than eight decades that it was in effect. Two of 
the cases cited by the April 2020 Board to justify jettisoning the 
policy--Templeton v. Dixie Color Printing Co., Inc., 444 F.2d 1064 (5th 
Cir. 1971), and NLRB v. Minute Maid Corp., 283 F.2d 705 (5th Cir. 
1960)--arose several decades ago in the Fifth Circuit, which in fact 
has subsequently and repeatedly approved of the blocking charge policy, 
recognizing that the salutary reasons for the blocking charge policy 
``do not long elude comprehension,'' and that the policy had been 
``legitimized by experience.'' See Bishop, 502 F.2d at 1028-1029, 1032 
(and cases cited therein); Associated Builders & Contractors of Texas, 
Inc., 826 F.3d at 228 fn. 9. Indeed, the Fifth Circuit has taken pains 
to note--``time and again''--that cases such as Templeton do not 
constitute a broad indictment of the blocking charge policy, but merely 
reflect the ``most unusual'' circumstances presented there. See Bishop, 
502 F.2d at 1030-1031.\147\
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    \147\ As noted above, see supra fn. 102, we are puzzled by our 
colleague's effort to minimize the significance of Bishop, which was 
decided after Templeton and Minute Maid. We further observe that 
Bishop, unlike Templeton and Minute Maid, approvingly discussed the 
broader policy underpinnings of the Board's blocking charge policy 
rather criticizing an isolated example of its application.
---------------------------------------------------------------------------

    Similarly, in NLRB v. Midtown Service Co., the Second Circuit 
wholeheartedly endorsed the notion that the Act requires the Board ``to 
insure . . . employees a free and unfettered choice of bargaining 
representatives.'' 425 F.2d 665, 672 (2d Cir. 1970). While the court 
criticized the Board for declining to conduct a rerun election before 
the employer's unfair labor practices were remedied, that was only 
because of the highly unusual circumstances presented there, where the 
employer's unlawful acts were actually designed to support the 
incumbent union against the decertification petition. See id. at 667, 
669, 672 (``If ever there were special circumstances warranting the 
holding of [a rerun] election, they existed here'' because the union 
was the ``beneficiary of the Employer's misconduct,'' and thus the 
union was using the charges to achieve an indefinite stalemate 
``designed to perpetuate [itself] in power.''). Although the court also 
opined that a rerun election should not have been blocked even if the 
charges had been filed by the decertification petitioner, see id., the 
blocking charge policy as it existed prior to the effective date of the 
April 2020 amendments--to which we return--would not have blocked the 
election in such circumstances, because, as shown, a petition was not 
blocked under the pre-April 2020 blocking charge policy unless, among 
other things, the charging party requested that its charge block the 
petition. See 29 CFR 103.20 (Dec. 15, 2014).
    Further, the Seventh Circuit's conclusion many decades ago that the 
union abused the blocking charge policy in Pacemaker Corp. v. NLRB, is 
mystifying. 260 F.2d 880, 882 (7th Cir. 1958). The court appeared to 
blame the union first for seeking an adjournment of the representation 
case hearing so that it could file an amended unfair labor practice 
charge. But the facts as found by the court belie any such conclusion; 
the discharge that was a subject of the amended unfair labor practice 
charge in question occurred after the adjournment, not before. Thus, 
the union could not have filed that amended charge before the hearing. 
260 F.2d at 882. Moreover, the court ultimately agreed with the Board 
that the union's amended charge--alleging that the employer had 
discharged a union supporter--had merit. Id. at 882-883. The court also 
appeared to blame the union for seeking to delay the representation 
proceeding by filing a post-petition amended unfair labor practice 
charge, because the union had chosen to file a petition despite its 
other pre-petition unfair labor practice charges. But such criticism 
was also unwarranted. As the employer itself argued to the 
administrative law judge, while the union would not waive the amended 
unfair labor practice charge, the union was not requesting a delay 
based on the post-petition amended unfair labor practice allegations. 
See Pacemaker Corp., 120 NLRB 987, 995 (1958). In any event, by filing 
a petition despite prepetition misconduct, a union cannot be deemed to 
have waived its right to request that the petition be blocked if the 
employer commits additional unfair labor practices post-petition that 
would interfere with employee free choice.
    Finally, the last case relied on by the April 2020 Board--NLRB v. 
Hart Beverage Co., also decades-old--was not even a blocking charge 
case, but instead arose at a time when an employer had no right to 
decline a union's demand for recognition on the basis of authorization 
cards (and no right to demand that the union seeking Section 9(a) 
status win an election), unless the employer had a good faith doubt of 
the union's majority status. 445 F.2d 415, 417-418 (8th Cir. 1971). It 
was in that context that the union business agent made the statement 
that the court relied on in concluding that the union was not even 
interested in obtaining a free and fair election, and therefore had 
filed the charges to abort the employer's petitioned-for election and 
obtain a bargaining order.\148\ See id. at 417, 420.\149\
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    \148\ For the same reasons, we reject our dissenting colleague's 
effort to invoke Hart Beverage as an example of judicial criticism 
of the historical blocking charge policy.
    \149\ NRTWLDF also cites to a dissenting opinion in an 
unpublished case (T-Mobile USA, Inc. v. NLRB, 717 Fed. Appx. 1, *4-
*5 (D.C. Cir. 2018), but that dissenting opinion contained no 
analysis of the blocking charge policy. As for the NRTWLDF's 
citation to NLRB v. Gebhardt-Vogel Tanning Co., 389 F.2d 71 (7th 
Cir. 1968), the Seventh Circuit did not hold there that the Board 
could not properly decline to process a decertification petition on 
the ground that it was filed during an extension of the 
certification year made necessary by the employer's unlawful refusal 
to furnish information during the original certification year. 
Rather, the court merely concluded that the employer's refusal to 
bargain could not be deemed unlawful because the certification year 
had been improperly extended (since there was no proof that the 
employer had in fact unlawfully refused to furnish the information 
during the original certification year). See id. at 73, 74-76 (court 
assumed that it is a ``sound principle'' that ``where a union is 
deprived of the opportunity to bargain for a substantial portion of 
the certification year through no fault of its own, the Board may 
properly extend the union's right to bargain for an equivalent 
period of time,'' but concluded that ``the Board's finding that 
`Respondent had unlawfully delayed in furnishing wage information 
for a period of 5 months during the certification year' was without 
the requisite evidentiary support.''). It was in that context that 
the court cited the Fifth Circuit's decision in Minute Maid in 
support of the proposition that there is no ``evidentiary value'' in 
an unfair labor practice charge alleging an unlawful refusal to 
furnish information upon which no complaint was issued and which was 
later withdrawn. Id. at 75.
    Nor does our dissenting colleague and CDW's citation to the 
concurring opinion in Scomas of Sausalito, LLC v. NLRB, 849 F.3d 
1147 (D.C. Cir. 2017), persuade us that we should decline to return 
to the pre-April 2020 blocking charge policy. As the court itself 
acknowledged, Scomas was an ``unusual'' case, where an employer 
withdrew recognition from the incumbent union in good faith based on 
a facially valid decertification petition only after verifying that 
the petition signatures demonstrated a loss of majority and where 
the incumbent union actually ``withheld information [from the 
employer] about its restored majority status.'' Id. at 1153, 1156, 
1157. The court further found that the genesis of the employees' 
discontent with the incumbent union was not the employer's conduct 
but an extended period of union neglect, and that ``there is no 
`taint' to `dissipate[ ].' '' Id. at 1157. Obviously, that is not 
the paradigmatic situation when the blocking charge policy is 
invoked. To be sure, the concurring opinion went on to discuss in 
dicta why in its view the employer's option of filing an RM petition 
when it has a good-faith doubt about a union's majority status would 
not necessarily enable the employer to promptly withdraw recognition 
from the union with impunity (because the union potentially could 
file a blocking charge). Id. at 1159. But, as shown and as the GC's 
reply comment points out, even if an election pursuant to an RM 
petition were conducted without delay as under the April 2020 final 
rule, the employer still could not be certain that the results of 
the election would be certified (and the union gone) because, under 
the April 2020 rule, certification of the results of any RM election 
is withheld pending a determination of the merits of any unfair 
labor practice charge that might have been filed. Moreover, as the 
concurring opinion appeared to recognize, even if there were no such 
thing as the blocking charge policy, a union could file objections 
to the results of an election, which would delay certification of 
the results. Id. at 1159. In any event, as discussed above, the pre-
April 2020 blocking charge policy did not render RM petitions 
illusory.

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[[Page 62982]]

j. Comments Regarding Particular Board Cases
    Nor do the isolated Board cases cited by the commenters, our 
dissenting colleague, and the April 2020 Board provide a persuasive 
basis for adhering to the April 2020 rule. We have carefully considered 
these cases. Even if they illustrated that application of the 
traditional blocking-charge policy sometimes led to undesirable 
results, these decisions do not establish some serious, inherent flaw 
in the policy itself. Instead, whatever minimal costs in delay may 
result from the policy are far outweighed by the benefits of allowing 
employees to vote in an election free from interference caused by the 
employer's unfair labor practices.\150\ Given the very long period in 
which the blocking charge policy was in effect, it is striking that 
critics of the policy have so few arguable examples to point to.
---------------------------------------------------------------------------

    \150\ In this regard, we part company from our dissenting 
colleague, who weighs these costs and benefits differently.
---------------------------------------------------------------------------

    For example, CDW, our dissenting colleague, and the April 2020 
Board (85 FR 18366-18367, 18377) point to Cablevision Systems Corp., 
367 NLRB No. 59 (2018), as an example where employees were wrongfully 
forced to wait for years for a regional director to process a 
decertification petition under the pre-April 2020 blocking charge 
policy. As the SEIU points out, however, it cannot fairly be said that 
the petition in Cablevision was delayed by frivolous blocking charges. 
The decertification petition in that case was filed on October 16, 
2014. See Cablevision Systems Corp., 367 NLRB No. 59, slip op. at 1. As 
CDW concedes in its comment, at the time the decertification petition 
was dismissed, the General Counsel had already issued unfair labor 
practice complaints against the employer, and the Regional Director 
relied on the outstanding complaints--alleging, inter alia, surface 
bargaining, unlawful discharges, threats, and unilateral changes--in 
dismissing the petition, while providing that the petition was subject 
to reinstatement if appropriate after the final disposition of the 
charges at issue. See RD Decision to Dismiss, Case 29-RD-138839 (Nov. 
12, 2014). As the Board explained in denying review of the Regional 
Director's dismissal, the Regional Director had previously found merit 
to certain unfair labor practice allegations for which a bargaining 
order and extension of the certification year were being sought. See 
Board Order Denying Review, Case 29-RD-138839 (June 30, 2016) (``Such 
conduct, if proven, would preclude the existence of a question 
concerning representation and therefore the petition is appropriately 
dismissed.''). Thus, even if the decertification petition in that case 
had been filed under the April 2020 rule to which the commenter and the 
NPRM dissenters urge us to adhere, the petition also would have been 
dismissed because, as noted, the April 2020 rule did not eliminate the 
merit-determination dismissal procedure. See Rieth-Riley, 371 NLRB No. 
109, slip op. at 1, 3, 4.\151\
---------------------------------------------------------------------------

    \151\ While, as CDW notes, an administrative law judge 
subsequently found that the surface bargaining allegations lacked 
merit, the judge's dismissal of those allegations were the subject 
of exceptions to the Board. See Board Order Denying Review, Case 29-
RD-138839 (June 30, 2016). Moreover, even if the Board had sustained 
the dismissal of those surface bargaining allegations, 
administrative law judges had found that the Employer had violated 
the Act by discharging unit employees, threatening unit employees, 
coercively polling unit employees, and unilaterally changing unit 
employees' working conditions. See Cablevision Systems Corp., 367 
NLRB No. 59, slip op. at 1-2, 6 (recounting these and other unfair 
labor practice findings made by administrative law judges). 
Accordingly, even if the Board had affirmed the judge's dismissal of 
the surface bargaining allegations, the petition might still have 
been properly dismissed. See Board Order Denying Review, Case 29-RD-
13889 (June 30, 2016) (``Should the surface bargaining allegation 
ultimately be found by the Board to be without merit, the Regional 
Director may consider whether dismissing the petition on other 
grounds may be appropriate based on the remaining unfair labor 
practice allegations found to be meritorious, if any, or whether the 
petition should be reinstated, after final disposition of the unfair 
labor practice charges.''). To be sure, the Board did not ultimately 
pass on the merits of the charges, but this was because the parties 
entered into a non-Board settlement while the charges were pending 
on exceptions before the Board, with the Employer entering into a 
collective-bargaining agreement with the Union and paying the 
discriminatees backpay, and the Union withdrawing its charges. See 
Cablevision Systems Corp., 367 NLRB No. 59, slip op. at 2.
    Nor can it fairly be said that it was the blocking charge policy 
that prevented the employees from ever voting. The Petitioner in 
Cablevision withdrew the decertification petition on January 16, 
2019, even though the Board had previously reinstated the petition 
in its December 19, 2018 Decision on Review and Order, finding that 
the parties' settlement agreement could not justify dismissing the 
petition and preventing the employees from voting during the 
parties' new three-year collective-bargaining agreement resulting 
from the settlement (because the settlement agreement was entered 
into after the petition was filed but prior to any Board 
determination of the merits of the judges' unfair labor practice 
findings, and because the settlement agreement did not contain an 
admission of unlawful conduct on the part of the Employer). See 
Cablevision Systems Corp., 367 NLRB No. 59, slip op. at 1, 4-5; 
Order Approving Withdrawal of Petition and Cancelling Hearing, Case 
29-RD-138839 (Jan. 24, 2019) (approving Petitioner's written request 
to withdraw decertification petition).
---------------------------------------------------------------------------

    HRPA argues that Geodis Logistics, LLC, Case Nos. 15-RD-217294 and 
15-RD-231857, where decertification petitions have been blocked since 
2018, illustrates that the blocking charge policy incentivizes the 
filing of meritless charges, impedes speedy resolution of 
decertification petitions, and places an inappropriate amount of 
authority in the hands of regional directors. Our dissenting colleague 
also cites this case as an example of a situation where ``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.'' However, neither HRPA nor our 
colleague cites any evidence that the petitions to decertify the union 
in Geodis have been blocked by meritless charges, let alone that the 
union filed them knowing them to be meritless.\152\ While there has not 
yet been a Board determination that the charge that initially blocked 
the petitions was meritorious, neither has there been a determination 
by the Board that the charge was meritless. In fact, the Regional 
Director issued an unfair labor practice complaint based on that 
charge.\153\ The Board has yet to

[[Page 62983]]

determine the merits of those complaint allegations, first because of a 
settlement,\154\ and second because, after the settlement agreement was 
revoked, the case was consolidated with numerous additional unfair 
labor practice cases, which are currently pending before an 
administrative law judge.\155\
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    \152\ Mary Alexis Ray filed the original decertification 
petition in Case 15-RD-217294 on March 27, 2018. See Geodis 
Logistics, LLC, 371 NLRB No. 102, slip op. at 1 (2022). On April 17, 
2018, the union filed the original charge in Case 15-CA-218543, and 
it requested that the charge block the petition. As discussed below, 
the Regional Director, on behalf of the Board's General Counsel, 
determined that it was appropriate to issue an unfair labor practice 
complaint based on that charge, which was still pending when the 
petitioner filed another decertification petition in Case 15-RD-
231857 on November 30, 2018. Id., slip op. at 1, 4, 5 (the majority 
opinion mistakenly states that the second petition was filed on 
November 29, 2019).
    \153\ See October 31, 2018 Complaint and Notice of Hearing, Case 
15-CA-218543, alleging, inter alia: that between about February 2018 
and March 2018, Geodis provided more than ministerial assistance to 
employees in helping them remove the union as their collective-
bargaining representative; that between about March 2018 and April 
2018, Geodis told employees that it was losing customers and/or 
clients because of the union, that it was losing business because 
its employees are represented by the union, that it was unable to 
attract new business because of the union, and that its customers 
and/or clients were unwilling to do business with it because its 
employees are represented by the union; that Geodis, although 
generally prohibiting the use of its photocopiers, allowed employees 
to use Respondent's photocopier to produce antiunion materials; and 
that Geodis had transferred its employee Jennifer Smith to a 
position with more onerous working conditions. See also Geodis 
Logistics, LLC, 371 NLRB No. 102, slip op. at 1, 4. As noted, on 
November 30, 2018, the Petitioner filed a second decertification 
petition, Case 15-RD-231857, notwithstanding that the alleged 
unlawful conduct had not been remedied, and the petitions continued 
to be held in abeyance at that time. See id.
    \154\ In October 2019, Case 15-CA-218543 was consolidated with 
four other unfair labor practice cases alleging that Geodis had 
further violated the Act by, inter alia: informing employees that it 
did not recognize the union as the representative of the unit 
employees and that there was no union there; telling employees it 
would be futile to join or support the union; threatening 
unspecified reprisals if they joined or supported the union; 
discharging one employee and warning two other employees. See 
October 9, 2019 Order Further Consolidating Cases, Second 
Consolidated Complaint and Notice of Hearing in Cases 15-CA-218543, 
15-CA-226722, 15-CA-232539, 15-CA-239440, and 15-CA-239492. On 
January 2, 2020, following issuance of the unfair labor practice 
complaints, the Regional Director dismissed both decertification 
petitions. The Board denied the employer's request for review of the 
dismissals, but noted that the decertification petitions were 
subject to reinstatement, if appropriate, after the final 
disposition of the unfair labor practice proceedings, and made the 
Petitioner a party-in-interest to Consolidated Cases 15-CA-218543, 
15-CA-226722, 15-CA-232539 15-CA-239440, and 15-CA-230492 for the 
purpose of receiving notification of the final outcome of those 
cases. See Board Order Denying Review, Cases 15-RD-217294 and 15-RD-
231857 (April 13, 2020).
    The hearing on those charges was scheduled to occur on January 
27, 2020. However, Geodis initially settled the charges, which 
resulted in the cancellation of the unfair labor practice hearing 
that had been scheduled on that complaint. See January 22, 2020 
Conformed Settlement Agreement in Cases 15-CA-218543, 15-CA-226722, 
15-CA-232539, 15-CA-239440 & 15-CA-239492. Under the terms of that 
settlement agreement, which contained a nonadmission clause, Geodis 
agreed to: pay $45,000 to one discriminatee (who waived 
reinstatement); return another discriminatee to her prior position; 
remove all references to the disciplines and discharges of five 
employees; post a Notice to Employees for 60 days promising: (a) not 
to provide more than ministerial assistance in helping employees 
remove the Union; (b) not to allow employees to use Employer 
photocopiers to produce antiunion materials while prohibiting them 
from using the photocopiers for other purposes; (c) not to threaten 
employees with discipline because of their union activities or 
support; (d) not to tell employees that the Employer does not 
recognize the Union, or that there is no union at the Tennessee and 
Mississippi facilities; (e) not to make the other 8(a)(1) statements 
alleged in the original charge in 15-CA-218543 and subsequent 
charges; (f) not to take various actions against employees because 
of their union activity, membership or support; and (g) not to ``in 
any like or related manner'' interfere with employees' Sec. 7 
rights. The settlement agreement also provided for the withdrawal of 
the unfair labor practice complaints.
    \155\ After the settlement agreement in those five cases, the 
Union filed a series of additional charges, which the Regional 
Director determined were meritorious, and the Regional Director 
partially revoked the settlement agreement. Ultimately, on July 27, 
2022, the Regional Director issued an Order Partially Revoking 
Settlement Agreement, Further Consolidating Cases, and Sixth 
Consolidated Complaint and Notice of Hearing in Cases 15-CA-218543, 
15-CA-232539, 15-CA-239440, 15-CA-239492, 15-CA-264345, 15-CA-
265152, 15-CA-270897, 15-CA-274687, 15-CA-282543, 15-CA-285602, 15-
CA-285611, 15-CA-286941, 15-CA-286942, 15-CA-288593, and 15-CA-
292199, involving the charge allegations that had blocked the 
initial decertification petition as well as allegations of unfair 
labor practices that occurred before, during, and after the initial 
notice-posting period in Case 15-CA-218543 (including discrimination 
against union supporters), threats of adverse consequences if 
employees supported the union, and statements of futility. The 
unfair labor practice hearing opened on January 23, 2023, and the 
cases remain pending before an administrative law judge.
    As the HRPA acknowledges in its comment, the Board unanimously 
affirmed the Regional Director's decision not to grant the 
Employer's request to reinstate the decertification petitions, 
noting that the NLRA permits only employees, not employers, to 
request and secure reinstatement of decertification petitions. See 
Geodis Logistics, LLC, 371 NLRB No. 102, slip op. at 2, 4. Although 
the commenter also complains that the employee who filed the 
original decertification petition is no longer employed in the unit, 
the Board granted a motion to substitute a different individual as 
the petitioner in the decertification proceedings. Id. slip op. at 1 
fn. 1. On June 24, 2022, the Regional Director denied the new 
Petitioner's request to reinstate the decertification petitions 
(originally filed by a different individual) based on the January 
22, 2020 settlement agreement, noting that the settlement agreement 
had been partially revoked and that the complaint had been 
reinstated. See Order Denying Petitioner's Request to Reinstate the 
RD Petitions, Cases 15-RD-217294 & 15-RD-231857 (June 24, 2022). On 
December 14, 2022, the Board denied the Petitioner's request for 
review of the Regional Director's denial of her request to reinstate 
the decertification petitions, noting that: (1) a Regional Director 
may properly revoke their approval of a settlement agreement and 
issue a complaint if there has been a failure to comply with the 
settlement agreement or if related post-settlement unfair labor 
practices have been committed; (2) in such a procedural posture, the 
administrative law judge in the unfair labor practice cases (and the 
Board if exceptions are filed) must decide based on record evidence 
whether the settlement was properly revoked and, if so, whether the 
respondent committed the various alleged unfair labor practices, 
both pre-and post-settlement; and (3) the Board cannot decide what 
are essentially unfair labor practice issues in the context of these 
representation cases. The Board further noted that its denial of 
review was ``without prejudice to the Petitioner's reasserting her 
claim, if appropriate after disposition of the unfair labor practice 
proceedings, that the parties' settlement agreement requires 
reinstatement of the petitions under the principles of Truserv 
Corp., 349 NLRB 227 (2007).'' As noted, the unfair labor practice 
cases remain pending before an administrative law judge.
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    Although HRPA also points to Geodis as proof that the blocking 
charge policy ``impedes the speedy resolution of decertification 
petitions,'' it is by no means clear that the question of 
representation would necessarily have been resolved any sooner in that 
case had it arisen under the April 2020 rule. To repeat yet again, the 
April 2020 Board conceded that, although elections would be held in 
virtually all cases under the April 2020 rule, certification of the 
results of the election--i.e., actual resolution of the question of 
representation--would be delayed until final Board determination of the 
merits of the blocking charge(s) and their effect on the petition, 
which has yet to occur in Geodis. Thus, although the unit employees may 
have been permitted to vote sooner under the April 2020 rule, even if 
they chose to decertify the union, that choice may not have been 
effectuated any sooner.\156\
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    \156\ Even if an election had been held notwithstanding the 
charge in Case 15-CA-218543 and the request to block, the election 
results would not have been certified if the charge was found to 
have merit. Moreover, even if that charge had been litigated and 
decided on a standalone basis (notwithstanding the additional 
charges that were filed) and even if a new election had been held 
following a finding of merit to the charge, the results of that new 
election could not have been certified until the Board had 
determined the merits of the subsequent unfair labor practice 
charges that were filed concerning the employer's alleged ongoing 
repeated unlawful conduct (assuming there were additional requests 
to block or election objections).
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    While the commenter also complains that the blocking charge policy 
places an inappropriate amount of authority in the hands of the 
regional director, under the statutory scheme, as we have previously 
explained, it is the regional director, on behalf of the General 
Counsel, who determines, at least initially, if an unfair labor charge 
has merit and warrants issuance of a complaint absent settlement, and 
it is the regional director to whom the Board has long delegated 
authority to determine (subject to a request for review) whether a 
question of representation exists and whether and when to conduct an 
election. The commenter further ignores that even under the April 2020 
rule to which the commenter urges the Board should adhere, a petition 
could be dismissed based on a mere administrative determination by a 
regional director that certain Type II charges had merit. See Rieth 
Riley, 371 NLRB No. 109, slip op. at 1, 3.\157\
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    \157\ While commenters such as the HRPA and NRTWLDF complain 
about the long delay in effectuating employee free choice in the 
decertification context, they ignore that unfair labor practices and 
litigation over objections and determinative challenges can likewise 
delay effectuation of employee free choice (i.e., Board 
certification of a union) in the initial organizing context. Indeed, 
Geodis, the very case highlighted by the HRPA, is itself is an 
example of such delay. When the initial campaign to organize the 
employees (who are the subject of the decertification petitions in 
that case) began in 2009, the employees were employed by Geodis' 
predecessor, Ozburn-Hessey Logistics (OHL). It took some 7 years 
after the initial organizing campaign commenced--and more than 5 
years after the Union won an election--to obtain an enforceable 
order requiring the employees' employer to bargain with the Union. 
See Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d. 210, 212-213, 
214-216, 224-225 (D.C. Cir. 2016). The litigation concerning the 
campaign and its aftermath, which included petitioning federal 
district courts for Sec. 10(j) relief, involved OHL's actions both 
before and after the revised tally of ballots showed that the union 
had won the 2011 election. See Ozburn-Hessey Logistics, LLC, 357 
NLRB 1456 (2011), enfd. 605 Fed. Appx. 1 (D.C. Cir. 2015); Ozburn-
Hessey Logistics, LLC, 357 NLRB 1632 (2011), enfd. 609 Fed. Appx. 
656 (D.C. Cir. 2015); Ozburn-Hessey Logistics, LLC, 359 NLRB 1025 
(2013) (recess appointment case), reaffirmed 361 NLRB 921 (2014); 
Ozburn-Hessey Logistics, LLC 362 NLRB 977 (2015), enfd 833 F.3d 210 
(D.C. Cir. 2016); Ozburn-Hessey Logistics, LLC, 362 NLRB 1532, 1535 
(2015) (including broad ``cease and desist'' language due to 
respondent's grave and repeated violations), enfd. 689 Fed. Appx. 
639 (D.C. Cir. 2016); Ozburn-Hessey Logistics, LLC, 366 NLRB No. 173 
(2018), enfd. 939 F.3d 777 (6th Cir. 2019); Ozburn-Hessey Logistics, 
LLC, 366 NLRB No. 177, slip op. at 1 fn. 3, 13 (2018) (imposing 
extraordinary remedies, including a three-year notice-posting 
period, due to respondent's ``extraordinary record of law 
breaking''), enfd. in part 803 Fed. Appx. 876 (6th Cir. 2020). And, 
as discussed above, Geodis is itself alleged to have committed 
multiple unfair labor practices when it became the unit employees' 
employer.

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[[Page 62984]]

    The NRTWLDF also cites four cases arising under the December 2014 
amendments to the blocking charge policy--and one case predating the 
2014 rule--which it claims demonstrates the policy's shortcomings.\158\ 
Although the NRTWLDF suggests that the cases demonstrate the ability of 
incumbent unions to file patently frivolous, minor, or false charges to 
delay their ouster against the wishes of the unit employees under the 
pre-April 2020 blocking charge policy, NRTWLDF does not demonstrate 
that the charging parties knowingly filed patently frivolous, minor, or 
false charges in those cases. We further note that in Pinnacle Foods 
Group, LLC, Case 14-RD-226626, the Regional Director issued a complaint 
against the employer alleging a failure bargain in good faith (by 
falling to make itself available on reasonable dates, failing to 
provide sufficient time for bargaining during the bargaining sessions 
held, unilaterally changing the lengths of shifts, and unilaterally 
changing the bidding procedures for those shifts). The parties 
subsequently entered into a settlement agreement providing for an 
extension of the certification year. See Pinnacle Foods Group, LLC, 368 
NLRB No. 97, slip op. at 1 (2019). The incumbent union subsequently won 
the decertification election that was conducted. See November 27, 2019 
Certification of Representative, Case 14-RD-226626. We additionally 
note that in Apple Bus, nearly 8 months of the delay can in no sense be 
deemed improper under extant law as the original decertification 
petition (filed on July 31, 2017) in Case 19-RD-203378 was properly 
dismissed under the successor-bar rule. See Board Order Denying Review 
of Regional Director's Decision to Dismiss the Petition, Case 19-RD-
203378 (Dec. 14, 2017). And the new decertification petition that was 
filed on March 15, 2018 in Case 19-RD-216636 was ``held in abeyance on 
the basis of successive settled unfair labor practice charges.'' See 
Board Order Denying Petitioner's Fourth and Fifth Requests for Review 
of Regional Director's determinations to hold petition in abeyance in 
Case 19-RD-216636 (Nov. 18, 2019), before the Union disclaimed interest 
and the decertification petitioner withdrew its petition. See Order 
Approving Withdrawal of Petition, Cancelling Hearing, and Revoking 
Certification, Case 19-RD-216636 (Nov. 27, 2019). Moreover, in the 5 
cited cases, the employees eventually either were able to vote,\159\ or 
the union disclaimed interest in continuing to represent the unit, 
thereby obviating the need for an election.\160\ Accordingly, 
notwithstanding the delay in case processing, the cited cases do not 
persuade us that we should decline to adopt the proposed rule.\161\
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    \158\ See comments of NRTWLDF (citing Scott Brothers Dairy/Chino 
Valley Dairy Products, Case 31-RD-001611; ADT Security Services, 
Case 18-RD-206831 (Dec. 20, 2017); Arizona Public Service Co., Case 
28-RD-194724; Pinnacle Foods Group, LLC, Case 14-RD-226626; Apple 
Bus Co., Cases 19-RD-203378 and 19-RD-216636. The 2020 Board 
referenced these cases as well. 85 FR at 18377.
    \159\ See Tally of Ballots in Scott Brothers Dairy/Chino Valley 
Dairy Products, Case 31-RD-1611 (Aug. 10, 2011); Original Tally of 
Ballots in Arizona Public Service Co., Case 28-RD-194724 (July 6, 
2017) & Rerun Tally of Ballots, Case 28-RD-194724 (Aug. 30, 2017); 
Tally of Ballots in Conagra Brands (successor to Pinnacle Foods 
Group), Case 14-RD-226626 (Nov. 15, 2019).
    \160\ See Order Approving Withdrawal of Petition, Cancelling 
Hearing, and Revoking Certification in Apple Bus Co., Case 19-RD-
216636 (Nov. 27, 2019) (referencing union's disclaimer of interest 
in representing the unit). In another case, the certification of 
representative was revoked and the petition was withdrawn, also 
obviating the need for an election. See ARD Letter Approving 
Petitioner's Withdrawal Request and Revoking Certification of 
Representative, ADT, LLC, Case 18-RD-206831 (Jan. 2, 2018).
    \161\ The NRTWLDF also generally contends that it is very 
difficult for decertification petitioners to file a timely petition 
and to have it processed, and we should therefore not make it any 
more difficult by returning to the pre-April 2020 blocking charge 
policy. For example, it criticizes the Board's longstanding window-
period requirements for filing petitions during the term of a 
collective-bargaining agreement, and the requirement that a 
decertification petition be supported by an adequate showing of 
interest, which must be collected ``on personal time'' and which can 
subject solicitors to ``unwanted attention, threats or worse.''
    Those complaints, which concern matters beyond the scope of this 
rulemaking, do not persuade us that we should refrain from returning 
to the pre-April 2020 blocking charge policy. To repeat, the 
blocking charge policy is not designed to make it more difficult for 
employees to decertify a union. Rather, the policy, which also 
applies outside the decertification context, is designed to protect 
employee free choice. In any event, the commenter ignores that 
petitioners in the initial organizing context face the same or 
analogous difficulties. For example, employees who want to become 
represented by a union cannot file a petition, or have one filed on 
their behalf, without first obtaining an identical 30 percent 
showing of interest, which likewise must be collected on personal 
time. 29 CFR 102.61(a)(7), 102.61(c)(8) (Dec. 18, 2019); 
Casehandling Manual Section 11023.1 (August 2007); Casehandling 
Manual Section 11023.1 (September 2020). And when employees solicit 
support for a petition seeking to have a union represent them, they 
obviously risk incurring the wrath of their employer--which, unlike 
a union, directly controls their livelihood--and the displeasure of 
any antiunion colleagues. Moreover, Sec. 9(c)(3) of the Act 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). 
Accordingly, unions too cannot always file petitions when they would 
like. See NLRB, An Outline Of Law And Procedure in Representation 
Cases Section 10-110 p. 115 (June 2017) (noting that although 
``[t]he prohibition of Section 9(c)(3) does not preclude the 
processing of a petition filed within 60 days before the expiration 
of the statutory period so long as the election resulting from such 
petition is not held within the prohibited time[,] . . . petitions 
filed more than 60 days before the end of the statutory period will 
be dismissed.''). Contrary to the commenter's additional complaint 
about the difficulty decertification petitioners have in determining 
the scope of the unit, a decertification petitioner generally has a 
much easier time in determining the scope of the unit, because a 
decertification election typically must be held in a unit 
coextensive with the certified or recognized unit, see, e.g., Mo's 
West, 283 NLRB 130, 130 (1987), whereas the appropriate unit in 
which to conduct an election in the initial organizing context 
ordinarily has not been determined when the petition is filed. As 
for the commenter's additional argument that a decertification 
petitioner must file an allegedly burdensome prehearing responsive 
statement of position, that requirement applied to all petitioners 
(and not just decertification petitioners) when it was in effect 
(see 29 CFR 102.63(b)(1)(ii); 102.63(b)(2)(iii); 102.63(b)(3)(ii) 
(Dec. 18, 2019), and, in any event, that requirement was recently 
rescinded by the Board in a separate rulemaking. See Representation-
Case Procedures, 88 FR 58076, 58085 (Aug. 25, 2023).
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k. Comments Regarding the Pre-April 2020 Blocking Charge Policy's 
Alleged Unjustified Disparate Treatment of Petitioners
    Both our dissenting colleague and some commenters claim that, in 
contrast to the April 2020 rule, the pre-April 2020 blocking charge 
policy unjustifiably treated petitioners in an initial organizing 
context differently from petitioners in the decertification context, 
and we should therefore decline to return to it. They suggest that 
under the pre-April 2020 blocking charge policy the election would 
always proceed in the initial organizing context if the petitioner 
wanted it to proceed, whereas in the decertification context, the 
election would not necessarily proceed when there was a request to

[[Page 62985]]

block filed by the incumbent union even if the decertification 
petitioner wanted to proceed to an election.\162\
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    \162\ See reply comments of NRTWLDF. See also comments asserting 
that ``[i]n practice, employees and employers cannot `block' a union 
certification election. The same standard should apply to 
decertification elections.'' Paul Andrews; Anonymous #143; Anonymous 
83; Anonymous 106; Anonymous 113; Anonymous 123; Anonymous 152; 
Anonymous 76; Kenneth Bailey; Donald Barefoot; Barry Barkley; 
Kathleen Brown; Howard Butz; Dawn Castle; Kenneth Chase; John 
Churchill; Marvin Graham; Annette Craig; Julie D'Alessandro; Richard 
Damico; Daniel De La O; John-G Donovan; Edward Farrow; R.E. Fox; 
John Gaither; Allan Gardiner; Rachel Hughes; Gary Kirkland; Alan 
Goldberg; Robert Henes; Ron Hinds; Irene Holt; Marta Howard; Deborah 
Hurd; Insignia Design Lrd; Jeffrey Kilgariff; Chuck Kirkhuff; Fred 
Lambing; Mark Larsen; Terrence Linderman; Philip Martin; Charles 
Maurhoff; Mike Mayo; Daniel McCormack; Kevin McLaughlin; Tim Modert; 
Gwen Myers; Mike O'Donnell; Richard Park; James Pearce; John 
Raudabaugh; Saul Raw; Craig Root; Mary Ellen Rozmus; Lorraine 
Schukar; Randy Schultz; Dane Smith; Kathy Stewart; Elizabeth Turner; 
George Zolnoski.
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    We are not persuaded by this argument. To begin, the argument's 
premise--that the pre-April 2020 blocking charge policy did not create 
a level playing field in any respect--ignores that employers were also 
permitted to file requests to block elections sought by unions in the 
initial organizing context. The pre-April 2020 blocking charge policy 
which we codify allowed ``any party to a representation proceeding,'' 
including employers, to file requests to block. 29 CFR 103.20 (Dec. 15, 
2014) (emphasis added). For example, if an employer filed an unfair 
labor practice charge alleging that a petitioning union in an initial 
organizing context threatened to assault employees if they did not vote 
for the union, together with a request to block that was supported by 
an adequate offer of proof, regional directors had authority to block 
the election even if the petitioning union wished to proceed to the 
election. Similarly, decertification petitioners were free to file 
unfair labor practice charges and requests to block based on employer 
or incumbent union misconduct that would interfere with the employees' 
ability to freely vote against continued representation, just as 
petitioning unions could file requests to block in the initial 
organizing context. In short, under the pre-April 2020 blocking charge 
policy which the final rule restores and codifies, petitioners in an 
initial organizing context and in the decertification context could 
both file requests to block and could both face election delays in 
cases where they would prefer to proceed directly to an election as a 
result of blocking charges filed by other parties.
    To be sure, as previously discussed, it was also the case under the 
pre-April 2020 blocking charge policy that a petitioning union in an 
initial organizing context could--by refraining from filing a request 
to block--obtain a prompt election notwithstanding the employer's 
commission of unfair labor practices (such as a threat to retaliate 
against union supporters), whereas a decertification election could be 
delayed over the objections of the decertification petitioner where the 
incumbent union had filed a request to block based on the employer's 
commission of unfair labor practices (such as a threat to retaliate 
against union supporters). But the petitioners occupy very different 
positions in those two contexts. In the latter, the petitioner's goal--
to oust the union--is aided by the alleged unfair labor practice, 
whereas in the former the petitioner's goal is undermined by the 
alleged unfair labor practices. We agree with the December 2014 Board 
that depriving the petitioner in an initial organizing context of the 
ability to proceed to an election if it so chooses in the face of 
employer unfair labor practices designed to keep the union out of its 
establishment would compound the injustice and ``doubly benefit'' the 
employer by allowing the employer to delay the election that seeks the 
certification of a collective-bargaining representative for its 
employees over the objections of that very petitioning union. 79 FR 
74429 fn. 534. By contrast, permitting a decertification petitioner to 
proceed to an election over the objections of the incumbent union where 
an employer has threatened to retaliate against employees who vote in 
favor of continued representation would compound the unfair labor 
practices and benefit the employer and the decertification petitioner. 
Accordingly, we decline the NRTWLDF's suggestions that the Board should 
either eliminate the ability of all petitioners to obtain an immediate 
election where they have filed unfair labor practice charges (but 
nevertheless think they can still prevail) and make them wait until the 
Board makes its own independent determination of the merits of the 
charge, or grant decertification petitioners the ability to obtain an 
immediate election when an incumbent union has filed a charge alleging 
conduct that would interfere with employee free choice or would be 
inherently inconsistent with the petition itself.\163\
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    \163\ We further note that if the Board were to eliminate the 
charging party's ability to proceed to an immediate election until 
the Board makes its own independent determination of the merits of 
charges they file, it would delay elections even more than they are 
delayed under the Board's historical blocking charge policy. 
Moreover, if the Board were to deprive parties of the ability to 
obtain an election until it made its own independent determination 
of the merits of pending charges, it would eliminate the ability of 
parties to settle the unfair labor practice charges that are 
delaying elections, even though such settlements can obviate the 
need for lengthy litigation before an administrative law judge, the 
filing of exceptions to the Board, and appeals to the circuit 
courts. After all, a settlement of unfair labor practice charges, by 
definition, does not constitute an independent Board determination 
of the merits of those charges. To the extent that the NRTWLDF 
claims that it is unfair to permit unions to file objections to 
elections that they lose if they did not file requests to block the 
elections beforehand, we simply disagree. There is no double 
standard here; under the pre-April 2020 blocking charge policy to 
which we return, petitioners in initial organizing cases and 
petitioners in decertification cases both have the option to choose 
to file unfair labor practice charges prior to the election without 
requesting to block the election and then file objections afterwards 
(just as the petitioners in both contexts have the same right to 
file requests to block before the election). The commenter certainly 
does not explain why it interferes with employee free choice for the 
Board to decline to certify the results of an election based on 
meritorious objections that are filed after the election. We 
additionally note that employers, too, may affect the timing of 
elections by filing adequately supported requests to block or, as 
the 2014 Board noted (79 FR 74429 fn. 534), by choosing when to 
settle unfair labor practice charges filed against them.
    For similar reasons, we reject our dissenting colleague's 
suggestion that the Board's 2023 Election Rule demonstrates that the 
Board is treating petitioners in initial organizing cases 
differently than petitioners in decertification cases. See 
Representation-Case Procedures, 88 FR 58076 (2023). The 2023 
Election Rule, like the instant rulemaking, represented an effort to 
balance the Board's duties to ``duty to protect employees' rights by 
fairly, efficiently, and expeditiously resolving questions of 
representation.'' Id. at 58079.
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l. Comments Regarding Alleged Inconsistency Between the Pre-April 2020 
Blocking Charge Policy and Ideal Electric
    The April 2020 Board also criticized the blocking charge policy as 
creating ``an anomalous situation'' whereby conduct that, under Ideal 
Electric, 134 NLRB 1275 (1961), cannot be found to interfere with 
employee free choice if alleged in election objections (because it 
occurred prepetition), nevertheless can be the basis for delaying or 
denying an election. 85 FR at 18367, 18393. That argument does not 
persuade us that we should refrain from returning to the pre-April 2020 
blocking charge policy. Put simply, the supposed anomaly is more 
apparent than real. To begin, Ideal Electric does not preclude the 
Board from considering prepetition 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

[[Page 62986]]

Square Garden CT., LLC, 350 NLRB 117, 122 (2007). And, as noted, a 
unanimous Board held in Rieth-Riley that even under the April 2020 
rule, regional directors remained free to dismiss petitions--and 
thereby block elections--in cases involving certain types of Type II 
prepetition misconduct, at least so long as the regional director 
determines that the Type II charge has merit before dismissing the 
petition. See Rieth-Riley, 371 NLRB No. 109, slip op. at 1, 2, 3, 8 
(majority affirms regional director's dismissal of decertification 
petitions filed on March 10, 2020 and August 7, 2020 based on 
prepetition misconduct that was the subject of prepetition complaints; 
dissent ``agree[s] with the majority that regional directors retain the 
authority to dismiss an election petition, subject to reinstatement, in 
appropriate circumstances, at least where, as here, the regional 
director has found merit to unfair labor practice charges and issued a 
complaint before the petition was filed.'').\164\
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    \164\ Moreover, as the April 2020 Board implicitly conceded, 
under the April 2020 rule, it is equally the case that ballots will 
``never be counted'' in some cases based on serious prepetition 
misconduct, such as where the employer instigates the petition and 
where a complaint issues within 60 days of the election. 85 FR 
18378, 18380, 18399 (even if the ballots are counted under the April 
2020 rule because the complaint on the Type II charge issues more 
than 60 days after the election, the results of the election will be 
set aside if the Board ultimately decides that the charge that was 
the subject of the request to block has merit).
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m. Comments That the Pre-April 2020 Blocking Charge Policy Impeded 
Settlement
    The April 2020 rule also appeared to suggest that the pre-April 
2020 blocking charge policy impeded settlement and that the policy 
should therefore be eliminated to promote settlement of blocking 
charges. 85 FR 18380.\165\ In the NPRM, we noted that we were not 
entirely certain that we understood the prior Board's cryptic 
statements in this regard. 87 FR 66907. We remain of the same view 
after reviewing the comments. To the extent that the April 2020 Board 
adopted the rule because it believed the rule would promote settlement 
(by enabling the parties to know the results of the election during 
their settlement discussions), this does not persuade us that we should 
refrain from restoring the Board's historical blocking charge policy. 
The blocking charge policy advances the core statutory interest of 
promoting employee free choice regarding whether to be represented by a 
labor organization for purposes of collective bargaining. We believe 
that, even assuming for purposes of argument that the April 2020 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.
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    \165\ The April 2020 rule, however, did not ``disturb the 
Board's case law addressing the effects of various types of 
settlements.'' 85 FR 18380. Thus, ``an employer who agrees in a 
settlement agreement to bargain must do so for a reasonable period, 
and a decertification petition filed after such a settlement and 
during that reasonable period must be dismissed.'' Truserv Corp., 
supra, 349 NLRB at 230 (emphasis in original).
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    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 rule (which provides for the holding of an election in virtually 
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.\166\ However, as noted, 
under the April 2020 rule, employees are 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 rule would necessarily 
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 rule, 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, 18378, 18399. In other words, under the April 
2020 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 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 rule).
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    \166\ In a related vein, our dissenting colleague suggests that 
``employers might decide to settle unfair labor practice charges for 
reasons unrelated to their merit,'' noting the prevalence of 
nonadmission language in settlements.
---------------------------------------------------------------------------

    We also reject 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 rule, an election is 
held in virtually all cases, parties still have to consider the 
representation case as part of their settlement negotiations regarding 
the unfair labor practice charge(s). Because, in the view of the April 
2020 Board (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 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. Nor under 
current law can a post-petition settlement result in the petition being 
dismissed unless the charged party admits that it violated the Act as 
part of the settlement or the decertification petitioner agrees to 
withdraw its petition as part of the settlement or the Regional 
Director finds that the petition was instigated by the employer or that 
the employees' showing of interest in support of the petition was 
solicited by the employer. See Cablevision Systems Corp., 367 NLRB No. 
59, slip op. at 3 & fn. 9. 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 to agree to a rerun election or to admit that it violated 
the Act as part of the settlement.\167\ The April 2020 Board offered no 
compelling explanation for why an incumbent union supposedly intent on 
delaying its ouster would not insist on an admission of wrongdoing 
(which would result in dismissal of the petition) or agreement to a new 
election as the price of settlement.
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    \167\ Alternatively, as the Board observed in Truserv Corp., 
unions have an incentive to include decertification petitioners in 
settlement discussions to allow for the possibility that 
decertification petitioners could agree to a settlement that 
provides for dismissal of the petition that was filed before the 
settlement. 349 NLRB at 231, 232 fn. 14.

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[[Page 62987]]

n. Comments That This Rulemaking Constitutes Needless Policy 
Oscillation
    Some commenters, such as CDW and the Chamber, contend that our 
rulemaking constitutes needless policy oscillation that tends to upset 
the settled expectations of the Agency's stakeholders while undermining 
the very policy of employee free choice on which the 2020 rule is 
predicated and that tends to threaten the legitimacy of the Agency. Our 
dissenting colleague also articulates this view. We could not disagree 
more. As shown, it was the April 2020 Board that set aside the Board's 
historical blocking charge policy that had been in effect since the 
early days of the Act and that had adhered to by Boards of differing 
policy perspectives for more than eight decades. The April 2020 Board 
did so without pointing to anything that had changed in the 
representation case arena to justify jettisoning the policy: 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; and 
significantly, the Agency's career regional directors--the officials 
who are charged with administering the policy in the first instance, 
and whose opinions were explicitly sought and received by that Board--
had publicly endorsed the policy. And, for the reasons discussed at 
length in this preamble, we believe that restoring and codifying the 
pre-April 2020 blocking charge policy better protects employee free 
choice and better enables us to conduct elections under conditions as 
nearly ideal as possible, which should serve to heighten the Board's 
legitimacy.
    In sum, we recognize that under the April 2020 rule, elections are 
conducted more speedily than they were conducted under the Board's 
historical blocking charge policy as amended by the December 2014 rule. 
However, a speedy election is not desirable in and of itself if it does 
not reflect the free choice of the unit employees. In our considered 
policy judgment, restoring and codifying the Board's historical 
blocking charge policy, as amended by the 2014 rule, represents a more 
appropriately balanced approach than the April 2020 rule. The policy to 
which we return simply permits regional directors to delay conducting 
an election 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--provided that the charge is supported by an adequate offer of 
proof, the charging party agrees to promptly make its witnesses 
available, and provided no exception is applicable--until the merits of 
the charge can be determined. It cannot be denied that most elections 
were never delayed under the policy to which we return and that many of 
the elections that were delayed by that policy were properly delayed by 
meritorious charges. Further, as we have mentioned repeatedly, even 
though employees are permitted to vote sooner under the April 2020 rule 
when there are concurrent unfair labor practice charges, the employees' 
choice is not necessarily effectuated significantly sooner because the 
certification of the results of the elections conducted under those 
circumstances must still await a determination of the merits of the 
unfair labor practice charge. In our view, the pre-April 2020 blocking 
charge policy better protects employee free choice and better enables 
us to conduct elections under circumstances as nearly ideal as possible 
than adherence to the April 2020 rule. Under the pre-April 2020 
blocking charge policy to which we return, employees are not required 
to vote under coercive conditions over the objections of the charging 
party as they are under the April 2020 rule, and employees are 
permitted to vote if the charges that delay the election are ultimately 
found to be nonmeritorious.\168\
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    \168\ Some commenters argue that we should rescind the portion 
of the April 2020 rule addressing the blocking charge policy because 
the April 2020 Board never corrected the faulty data--including the 
data that artificially inflated the number of petitions blocked as a 
result of the blocking charge policy and the data that grossly 
overstated the period of time that petitions were blocked as a 
result of the blocking charge policy--in the 2019 NPRM that led to 
the April 2020 rule. See comments of AFL-CIO/NABTU (Initial and 
Reply); NNU; SEIU. The NRTWLDF argues in its reply comments that if 
accurate statistical analysis of the prior rule's impact is required 
to survive an APA challenge, then the instant rule ``falls woefully 
short'' because the NPRM did not contain, and the pro-rule 
commenters have not cited evidence establishing that the April 2020 
rule has resulted in a spike in the number of elections being set 
aside (or petitions being dismissed). It also notes that the April 
2020 Board ``made a determination based on policy concerns--rather 
than based on the data--that the rule should be promulgated.'' Reply 
Comments of NRTWLDF.
    To be clear, we find it unnecessary to rely on the inclusion of 
faulty data in the 2019 NPRM that led to the April 2020 rule as a 
basis for adopting the instant rule. Nor do we rely on the AFL-CIO/
NABTU's claims that the April 2020 rule's blocking charge amendments 
were not a logical outgrowth of the 2019 NPRM's proposed blocking 
charge proposal and that the April 2020 Board failed to respond to 
significant comments. See also comments of NNU. In other words, even 
if the 2019 NPRM that led to the April 2020 rule had not contained 
any faulty data (and even if the 2019 NPRM had proposed the blocking 
charge provisions ultimately adopted in the April 2020 rule and the 
April 2020 rule had responded to all significant comments to the 
satisfaction of the commenters), we would still rescind that rule.
    The April 2020 Board ultimately made a policy choice to modify 
the Board's historical blocking charge policy that did not depend on 
statistical analysis (85 FR 18377) and, as explained at length 
above, we likewise have made a policy choice that returning to the 
Board's historical blocking charge policy, as modified by the 
December 2014 rule, better protects employee free choice and better 
enables the Board to conduct elections under laboratory conditions 
than the April 2020 rule. The April 2020 Board conceded that its 
rule would require the Board to conduct at least some elections 
under coercive circumstances. That is undeniably true and requires 
no statistical evidence to demonstrate. As noted, it is also the 
case that elections have been set aside under the April 2020 rule 
because of charges filed by parties to the representation case 
alleging pre-election unfair labor practice conduct--just as the 
April 2020 Board conceded would be the case. The dissenters to the 
NPRM in this rulemaking also conceded, as they had to, that we have 
the authority to return to the pre-April 2020 blocking charge 
policy. 87 FR 66915.
    The Board makes this change, ``conscious'' of its ``change of 
course,'' because ``there are good reasons'' for returning to the 
December 2014 rule's blocking charge provisions and based on those 
reasons, we believe that that rule does a better job of advancing 
the purposes of the Act than the April 2020 rule. See FCC v. Fox 
Television Stations, Inc., 556 U.S. 502, 515 (2009). See also AFL-
CIO v. NLRB, 471 F. Supp. 3d 228, 241 (D.D.C. 2020) (``[T]he Board's 
choice `not to do an empirical study does not make [the agency's 
action] an unreasoned decision' for APA purposes, Chamber of 
Commerce of U.S. v. SEC., 412 F.3d 133, 142, 366 U.S. App. DC 351 
(D.C. Cir. 2005) (emphasis added), and this is especially so given 
that the NLRB specifically explained that its `reasons for revising 
or rescinding some of the 2014 amendments are . . . based on non-
statistical policy choices[.]' ''), affd. in part 57 F.4th 1023 
(D.C. Cir. 2023).
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3. Final Rule Provisions Restoring and Codifying the Historical 
Blocking Charge Policy
    In the NPRM, we proposed to rescind Section 103.20 of the 2020 rule 
and replace it with the same regulatory language that appeared in the 
2014 rule. In effect, the proposed rule sought to return to the Board's 
historical blocking charge policy, as amended by the 2014 rule. For the 
reasons set forth extensively above, we are persuaded that restoring 
the pre-April 2020 blocking charge policy in full is appropriate. 
However, for the sake of clarity, the final rule includes additional 
regulatory language setting forth the basic contours of the historical 
blocking charge policy, as amended by the 2014 rule. Below, we 
summarize these provisions of the final rule. We emphasize that nothing 
in the language below is intended to alter the blocking charge policy 
that was in effect prior to the 2020 rule.
    Section 103.20(a) of the final rule includes the language of the 
first three sentences of proposed Section 103.20. As noted above and in 
the NPRM, these sentences were added to the Board's Rules and 
Regulations by the 2014 rule.

[[Page 62988]]

Section 103.20(a) of the final rule sets forth the 2014 rule's 
requirement that whenever any party to a representation proceeding 
seeks to block the processing of an election petition, that party must 
simultaneously file a written offer of proof listing the names of 
witnesses who will testify in support of the charge and a summary of 
each witness's anticipated testimony and promptly make its witnesses 
available.
    Section 103.20(b) and Section 103.20(c) of the final rule break the 
final sentence of proposed Section 103.20 into separate subsections 
corresponding to Type I and Type II charges, respectively, and make 
explicit what was implicit in the proposed regulatory text. As under 
the 2014 rule, under Section 103.20(b), if a regional director 
determines that a party's offer of proof describes evidence that, if 
proven, would interfere with employee free choice in an election, the 
regional director shall, absent special circumstances,\169\ hold the 
petition in abeyance.\170\ Section 103.20(b) provides that the regional 
director shall notify the parties of the determination to hold the 
petition in abeyance. The requirement that the regional director 
provide notice is consistent with the Casehandling Manuals in effect 
before and after the 2014 rule. See, e.g., Casehandling Manual Section 
11730.7 (August 2007); Casehandling Manual Section 11730.7 (January 
2017). Section 103.20(c) mirrors the language of Section 103.20(b) 
except that it further provides that, in appropriate circumstances, the 
regional director should dismiss the petition subject to reinstatement 
and notify the parties of this determination. Consistent with Rieth-
Riley and longstanding practice predating the 2014 rule, ``the 
appropriate circumstances'' in which the regional director may dismiss 
the petition subject to reinstatement are when the regional director 
has made a determination that certain types of Type II charges have 
merit. See Casehandling Manual Sections 11730.1, 11730.3, 11733, 
11733.2 (August 2007); Rieth-Riley, 371 NLRB No. 109, slip op. at 3 
(merit-determination dismissals ``hinge on [the Regional Director's] 
determination . . . that [the Type II] unfair labor practice charge has 
merit'').
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    \169\ As under the 2014 rule, ``[o]ur use of the term `special 
circumstances' is merely intended to recognize the longstanding 
reality that regional directors have discretion to continue to 
process petitions notwithstanding the pendency of charges that would 
otherwise result in a petition being held in abeyance. In this way, 
regional directors will continue to have discretion to engage in a 
balancing of relative hardships concerning the blocking of an 
election . . . . See Sec[.] 11731.2 of the [August 2007] 
Casehandling Manual.'' 79 FR 74419 fn. 488.
    \170\ This language is also consistent with 2014 rule preamble. 
See id. at 74419-74420 (explaining that 2014 rule amendments ``will 
serve to provide 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 [. . . .] This information will also be 
provided within a time frame that will assist the regional director 
in making a more expeditious decision on whether to hold the 
petition in abeyance.'').
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    As under the 2014 rule, Section 103.20(d) provides that if the 
regional director instead determines that the offer of proof does not 
describe evidence that, if proven, would interfere with employee free 
choice in an election or be inherently inconsistent with the petition 
itself, the regional director will continue to process the petition and 
conduct the election where appropriate.
    Section 103.20(e) of the final rule provides that if, after holding 
a petition in abeyance, the regional director determines that special 
circumstances have arisen or that employee free choice is possible 
notwithstanding the pending unfair labor practice charges, the regional 
director may resume processing the petition. We note that this is 
consistent with longstanding practice and the Board's Casehandling 
Manual. See Casehandling Manual Sections 11730.4, 11731 (August 2007); 
Casehandling Manual Sections 11730.4, 11731 (January 2017).
    Section 103.20(f) of the final rule provides if, upon completion of 
the investigation of the charge, the regional director determines that 
the charge lacks merit and is to be dismissed, absent withdrawal, the 
regional director shall resume processing the petition, provided that 
resumption of processing is otherwise appropriate. Once again, this 
provision is consistent with longstanding practice and the Board's 
Casehandling Manual. See Casehandling Manual Section 11732 (August 
2007). Consistent with existing practice, in certain circumstances, it 
may not otherwise be appropriate to resume processing the petition to 
an election, such as when the petition has been withdrawn or when there 
are additional pending unfair labor practice charges supported by an 
adequate offer of proof and a request to block (unless the director 
determines that special circumstances are present). By definition, this 
section does not apply where a petition has been dismissed following a 
regional director's determination that the Type 2 charge had merit.
    Finally, Section 103.20(g) of the final rule provides that upon 
final disposition of a charge that the regional director initially 
determined had merit, the regional director shall resume processing a 
petition that was held in abeyance due to the pendency of the charge, 
provided that resumption of processing is otherwise appropriate. For 
example, if a petition is being held in abeyance based on an unfair 
labor practice charge that resulted in the issuance of an unfair labor 
practice complaint, the regional director shall resume processing the 
petition when the respondent has taken all the action required by a 
Board order (or when the Board dismisses the complaint following an 
unfair labor practice hearing), provided that resumption of the 
processing is otherwise appropriate. Like the previous sections, this 
provision is consistent with longstanding practice and the Board's 
Casehandling Manual. See Casehandling Manual Sections 11730.2 and 11734 
(August 2007). Consistent with existing practice, in certain 
circumstances, it may not otherwise be appropriate to resume processing 
the petition to an election, such as when the petition has been 
withdrawn or when there are additional pending unfair labor practice 
charges supported by an adequate offer of proof and a request to block 
(unless the regional director determines that special circumstances are 
present). As is the case with Section 103.20(f), Section 103.20(g) does 
not apply when a petition has been dismissed by a regional director 
pursuant to the merit-determination dismissal procedure. Rather, 
consistent with existing practice, if a petition has been dismissed 
because of a Type II charge and there was a provision for reinstatement 
of the dismissed petition on application of the petitioner after final 
disposition of the unfair labor practice case, the petition is subject 
to reinstatement on the petitioner's application only if the 
allegations in the unfair labor practice case, which caused the 
petition to be dismissed, are ultimately found to be without merit. See 
Casehandling Manual Sections 11733.2(a), 11733.2(b) (August 2007).\171\
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    \171\ This section of the final rule does not address the effect 
of settlements or disturb the Board's existing case law addressing 
the effects of various types of settlements.
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    The final rule includes a severability provision to codify the 
Board's view that the paragraphs of Section 103.20 are intended to be 
severable. Paragraph (h) recites that ``[t]he provisions of this 
section are intended to be severable'' and that ``[i]f any paragraph of 
this section is held to be unlawful, the remaining paragraphs of this 
section not deemed unlawful are intended to remain in effect to the 
fullest extent permitted by law.'' In addition, as noted

[[Page 62989]]

above,\172\ in the event that the blocking charge final rule text 
promulgated here is deemed invalid, the Board would nevertheless adhere 
to its decision to rescind the 2020 rule's provisions addressing the 
blocking charge policy. In that event, the Board's view is that the 
historical blocking charge policy, which was developed through 
adjudication and contained in the pre-rulemaking Casehandling Manual, 
would again be applied and developed consistent with the precedent that 
was extant before the 2020 rule was promulgated, unless and until the 
policy were revised through adjudication.\173\ The Board is of the view 
that the rescission of the blocking charge policy is separate and 
severable from the portions of the rule addressing the voluntary-
recognition bar doctrine and the application of the voluntary 
recognition bar and contract bar in the construction industry. The 
blocking charge policy operates independently and autonomously of these 
aspects of Board law.
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    \172\ See supra fn. 4.
    \173\ Prior to the 2014 rule, ``the blocking charge policy [wa]s 
not codified in the [Board's Rules and R]egulations. Rather, it 
[was] the product of adjudication and [was] described in the non-
binding Casehandling Manual[.]'' 79 FR 74418 (``As explained in 
Sec[.] 11730 of the Casehandling Manual, `[t]he Agency has a general 
policy of holding in abeyance the processing of a petition where a 
concurrent unfair labor practice charge is filed by a party to the 
petition and the charge alleges conduct that would interfere with 
employee free choice in an election, were one to be conducted.' '') 
(citations omitted). In our view, that general policy represents a 
better balance of the Board's statutory interests in protecting 
employee free choice, preserving laboratory conditions in Board-
conducted elections, and resolving questions concerning 
representation expeditiously than does the April 2020 rule. By 
contrast, the April 2020 rule at times required regional directors 
to conduct elections under coercive circumstances. Although the 
blocking charge policy as it existed prior to the 2014 rulemaking 
did not require--as this rule does--simultaneous offers of proof and 
prompt witness availability to speed regional directors' 
investigation of blocking charges' merits, we nevertheless view the 
extant policy before the 2014 rulemaking as more faithful to the 
Board's statutory interests than the April 2020 rule.
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B. Rescission of Rule Providing for Processing of Election Petitions 
Following Voluntary Recognition; Voluntary-Recognition Bar to 
Processing of Election Petitions

1. Introduction
    As mentioned above, the November 4, 2022 NPRM proposed (1) to 
rescind Section 103.21 of the Board's Rules and Regulations, adopted in 
April 2020, which modified the Board's voluntary-recognition bar 
doctrine to establish a new notice-and-election procedure; and (2) to 
replace the rescinded provision with a new Section 103.21, essentially 
codifying the voluntary-recognition bar doctrine as reflected in Lamons 
Gasket Co., 357 NLRB 739 (2011), which had been overruled by the 2020 
rule. 87 FR 66909.
    Having carefully considered the public comments received in 
response to the NPRM, the Board has decided to rescind the April 2020 
rule and to adopt a final rule that is identical to the proposed rule, 
but with two additional provisions. One of these provisions, Section 
103.21(e), acknowledges (but does not codify) current caselaw 
addressing application of the voluntary-recognition bar when two or 
more unions are vying to represent employees, as reflected in Smith's 
Food & Drug Centers, 320 NLRB 844 (1996). The other, Section 103.21(g), 
codified the Board's view that the paragraphs of Section 103.21 are 
intended to be severable.\174\ As noted earlier,\175\ these two actions 
(rescission of the 2020 rule and adoption of a new rule) are intended 
to be separate and severable. This portion of the final rule addressing 
voluntary recognition, in turn, is intended to be severable from the 
other portions of the final rule rescinding and replacing the portions 
of 2020 rule that addressed the blocking charge policy and rescinding 
the portion of the 2020 rule that addressed proof of majority support 
for labor organizations representing employees in the construction 
industry. The Board rescinds the 2020 rule because it undermines the 
sound policies reflected in the voluntary-recognition bar, and does so 
independently of any legal challenge to the Board's promulgation of the 
new Section 103.21 codifying Lamons Gasket.\176\ Below, we address the 
historical development of the voluntary-recognition bar, the proposed 
rule and its rationale (which we endorse), the public comments received 
in response to the NPRM, and the final rule adopted here.
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    \174\ Para. (g) recites that ``[t]he provisions of this section 
are intended to be severable'' and that ``[i]f any paragraph of this 
section is held to be unlawful, the remaining paragraphs of this 
section not deemed unlawful are intended to remain in effect to the 
fullest extent permitted by law.''
    \175\ See supra fn. 4.
    \176\ In the event the promulgation of the new rule codifying 
Lamons Gasket does not survive judicial review, the voluntary-
recognition bar would revert to a matter of case-law doctrine, 
subject to revision through adjudication. Because of the rescission 
of the 2020 rule, Lamons Gasket would be the controlling precedent, 
insofar as judicially permitted.
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2. The Final Rule
    As noted, the final rule rescinds current Section 103.21 of the 
Board's Rules and Regulations and replaces it with a new provision, 
which essentially codifies the traditional voluntary-recognition bar as 
modified in Lamons Gasket. The final rule departs from the proposed 
rule only in adding a provision that specifically addresses the 
uncommon situation involving rival unions vying to represent the same 
employees, as presented in Smith's Food, supra. The rescission of the 
current rule and its replacement with a new rule are separate actions 
and are intended to be severable.\177\ In adopting the final rule, the 
Board has given careful consideration to the public comments on the 
proposed rule, which are discussed in detail below, following our 
discussion of the final rule.
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    \177\ As explained below, the Board has concluded that current 
Sec. 103.21 fails adequately to promote the policies of the Act. 
Rescinding that provision permits the Board to better promote those 
policies, whether through new Sec. 103.21 (by codifying Lamons 
Gasket, as the Board prefers) or by returning to adjudication (if 
necessary, should the new regulatory text be struck down) to address 
voluntary-recognition bar issues under Lamons Gasket and its 
progeny, as the Board did before adoption of the 2020 rule. All of 
the reasons that the Board disagrees with current Sec. 103.21 
support the decision to rescind it. The decision to rescind current 
Sec. 103.21 is independent of the decision to adopt new regulatory 
text in the final rule.
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    Rescinding the current rule eliminates the notice-and-election 
procedure first established in the Dana decision, which represented a 
sharp break with the traditional voluntary-recognition bar in place--
with unanimous judicial support--for more than 40 years (from 1966 to 
2007). Dana was unprompted.\178\ As explained, Dana ushered in a new 
and undesirable era of instability in the law surrounding voluntary 
recognition: Dana was reversed after four years by Lamons Gasket 
(decided in 2011), and Lamons Gasket, in turn, was reversed by the 2020 
rule, which restored Dana. For reasons already explained, we believe 
(as did the Lamons Gasket Board) that Dana was a serious misstep. 
Dana's premise--that voluntary recognition is inherently suspect with 
respect to employee free choice--finds no firm support in the Act. To 
the contrary, the Act clearly treats voluntary recognition as a 
legitimate basis for establishing an enforceable bargaining obligation. 
Moreover, the Dana Board's skepticism toward voluntary recognition 
lacked any empirical basis. The Board's experience under Dana showed 
that following voluntary recognition, employees only very rarely sought 
an election (despite being notified of their right to do so) and almost 
never rejected the recognized

[[Page 62990]]

union. Thus, the Board restored the Dana procedure despite new evidence 
(generated by Dana itself) strongly suggesting that the procedure was 
unnecessary to serve its stated purpose of promoting employee free 
choice. Whether or not the 2020 Board's decision to do so was arbitrary 
or capricious (and thus impermissible under the Administrative 
Procedure Act), it was at least questionable as a matter of 
administrative decision-making. In a case involving the Board, the 
Supreme Court has observed that the ``constant process of trial and 
error . . . differentiates perhaps more than anything else the 
administrative from the judicial process.'' \179\ The application of 
the Dana decision from 2007 to 2011 represented a trial of its notice-
and-election procedure, which revealed the Dana Board's error in 
treating voluntary recognition as suspect. We believe that the 2020 
Board erred in failing to correctly acknowledge what the Dana trial 
period had shown.\180\ Not surprisingly, the Board's experience under 
the 2020 rule now has proved to be entirely consistent with that under 
Dana. There is no apparent empirical reason to treat voluntary 
recognition with suspicion.\181\
---------------------------------------------------------------------------

    \178\ The Dana Board did not cite any intervening judicial 
decision questioning the Board's voluntary recognition-bar doctrine 
(there were none).
    \179\ NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) 
(quoting NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 349 
(1953)).
    \180\ In particular, we reject the 2020 Board's view (and the 
view of our dissenting colleague) that the proper focus of the 
Board, in evaluating its experience with the notice-and-election 
procedure, should be on the percentage of cases in which, when an 
election was sought, the union was decertified. In our view, the 
critical fact is that employees very rarely sought an election at 
all and that the cases in which a recognized union was decertified 
represent a miniscule percentage of the cases in which a notice was 
posted following recognition. Even such cases, as we note below, do 
not demonstrate that the recognized union lacked majority support 
when it was lawfully recognized by the employer. Contrary to our 
dissenting colleague, we are not persuaded that we should adhere to 
the 2020 rule because employees rarely sought elections after the 
notice was posted. Retaining the notice-and-election procedure 
entails costs to the Board and to parties, and if those costs are 
not justified by corresponding benefits, the Board is justified in 
modifying its procedures.
    \181\ Experience under Dana and/or under the 2020 rule has shown 
that unions were very rarely decertified after the notice was 
posted. Moreover, the fact that an election following voluntary 
recognition results in the union's defeat does not necessarily 
demonstrate that the union lacked reliable majority support at the 
time of recognition.
    This conclusion follows for two reasons. First, the election 
obviously captures employee sentiment at a later date, when it may 
well have been influenced by intervening events or simply by 
changing minds. Second, as explained, to be lawful, voluntary 
recognition requires majority support among bargaining-unit 
employees as a whole, while an election is determined by a majority 
of voting employees. Thus, under the current notice-and-election 
procedure, a minority of unit employees could oust a union that, 
when recognized, was supported by a majority of unit employees.
---------------------------------------------------------------------------

    Insofar as the rationale for the 2020 rule was based not on 
empirical evidence, but instead on a policy preference, we take a 
different view. The 2020 Board suggested that, whatever the experience 
under Dana had been, the notice-and-election procedure better promoted 
employee free choice--given the asserted superiority of elections over 
voluntary recognition as a means of determining employees' desire to be 
represented or not--and that this benefit was not outweighed by any 
cost to effective collective bargaining. Our dissenting colleague 
reiterates this view. For the reasons already explained and set forth 
below, we do not agree with the 2020 Board's cost-benefit analysis.
    To begin, we see no firm support in the Act for testing a union's 
voluntary recognition by subjecting it to an election as a means of 
promoting employee free choice, especially in the absence of even an 
allegation (much less a showing) that recognition was not based on the 
union's majority support among employees. Section 8(a)(5) of the Act, 
read together with Section 9(a), makes clear that where a union has 
been lawfully recognized by an employer, based on its majority support 
among employees, the union is indisputably the exclusive bargaining 
representative of employees, with precisely the same bargaining rights 
and duties as a union certified by the Board following an 
election.\182\ Whatever privileges and protections the Act grants 
exclusively to certified unions, in this crucial respect--integral to 
the voluntary-recognition bar--recognized unions are no different than 
certified unions. Both types of unions have established their 
representative status legitimately. We are not persuaded that employee 
free choice is genuinely served by subjecting a recognized union to the 
requirement that it demonstrate its majority status again, before it 
has had a chance to prove itself to employees through collective 
bargaining.
---------------------------------------------------------------------------

    \182\ 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). 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).
---------------------------------------------------------------------------

    The current notice-and-election procedure, as explained, permits a 
minority of bargaining-unit employees (as few as 30 percent) to require 
the holding of an election, forcing the union to divert its resources 
from bargaining to campaigning. As part of that election, a minority of 
unit employees may oust the union if they are a majority of voting 
employees. In restoring the Dana procedure, the 2020 Board gave far too 
little weight to the free-choice rights of the employee majority whose 
support made the initial employer recognition of the union lawful. We 
see no compelling reason why the Board should effectively undercut 
their choice.\183\ Indeed, temporarily insulating the recognized union 
from challenge until it has had a reasonable opportunity to bargain 
with the employer promotes informed employee free choice. Once the 
recognition-bar period ends, employees will be able to make their 
decision as to continued representation based on the union's 
performance in bargaining (immediately if no collective-bargaining 
agreement has been reached and, if there is an agreement, following the 
expiration of the contract-bar period).
---------------------------------------------------------------------------

    \183\ The Lamons Gasket Board characterized the Dana notice-and-
election procedure as effectively compromising the Board's 
neutrality by inviting employees to reconsider their choice of the 
union. We need not decide whether a reasonable employee could 
perceive the current notice-and-election procedure this way. Nor do 
we suggest that the Dana Board or the 2020 Board was motivated by 
hostility toward voluntary recognition. Our focus, rather, is on the 
debatable, if not dubious, rationales offered for the creation and 
restoration of the procedure, as well as on the objective tendencies 
and effects of the procedure on employees.
---------------------------------------------------------------------------

    We also disagree with the view of the 2020 Board and our dissenting 
colleague that the notice-and-election procedure does not have a 
reasonable tendency to interfere with effective collective bargaining. 
To be sure, current Section 103.21 does not eliminate the voluntary-
recognition bar altogether. However, it does defer application of the 
bar for at least the minimum period specified by the rule: 45 days 
after the Board notice to employees is posted, assuming no election 
petition is filed. Of course, the rule also creates the possibility 
that the voluntary-recognition bar will never apply (if a petition is 
filed, an election is held, and the union is defeated). This framework 
obviously places the union's status in genuine doubt, as a formal 
matter.\184\ In this way--as Board and

[[Page 62991]]

judicial decisions applying the recognition-bar doctrine and analogous 
bar doctrines observe \185\--the procedure tends to impede bargaining. 
The employer may well be less likely to invest time and effort in 
bargaining if the bargaining process might be terminated soon with the 
union's defeat in an election.\186\ This would especially be true if 
the employer had second thoughts about voluntarily recognizing the 
union and hoped to be relieved of its duty to bargain (as productive 
bargaining could be contrary to the employer's interests).
---------------------------------------------------------------------------

    \184\ Based on the Board's administrative experience with the 
notice-and-election procedure, which shows that unions are almost 
never decertified following notice-posting, it might be argued that 
the procedure does not, in fact, cast doubt on the union's status 
and that employers, unions, and employees understand as much. That 
argument, however, would confirm that the procedure is only a 
formality. In that case, the procedure would seem to serve no clear 
legitimate purpose. Insofar as the notice-and-election procedure is 
an empty exercise, it amounts at best to a waste of the Board's 
resources, as well as those of the employer and the union, even 
apart from the procedure's harm to the collective-bargaining 
process.
    Our dissenting colleague questions whether ``simply posting a 
Dana notice imposes a significant burden on Board resources.'' In 
framing the resource question this way, our colleague omits 
reference to the second part of the procedure, which may require the 
Board to conduct an election. Perhaps anticipating this argument, 
our colleague further argues that any expenditure of agency 
resources is justified, since ``[t]here is hardly a more important 
use of the Board's resources than to protect employees' fundamental 
statutory rights.'' We cannot agree with our colleague's tacit view 
that it better protects employees' fundamental statutory rights to 
maximize the opportunity for a minority of unit employees to 
overcome the prior selection of a union by the majority of 
employees. The statute protects employees' fundamental right ``to 
bargain collectively through representatives of their own 
choosing,'' including through their ``designated or selected'' 
representatives. 29 U.S.C. 157 & 159(a) (emphasis added). In 
addition, and contrary to our dissenting colleague, we find it 
entirely appropriate to consider the waste of party resources in 
deciding that the notice-and-election procedure, on balance, entails 
more costs than benefits.
    \185\ See, e.g., NLRB v. Universal Gear Service Corp., supra, 
394 F.2d at 398 (upholding Board's application of voluntary-
recognition bar; citing Supreme Court's decision in Brooks v. NLRB, 
supra, approving certification-year bar; and endorsing Board's 
statement that ``only if the parties can rely on the continuing 
representative status of the lawfully recognized union, at least for 
a reasonable period of time, can bargaining negotiations succeed and 
the policies of the Act be effectuated'').
    \186\ To be sure, the employer has a statutory duty to bargain 
in good faith with the union from the time it voluntarily recognizes 
the union. The issue, however, is not whether the current notice-
and-election procedure relieves the employer of this duty, but 
whether the procedure creates a situation in which employers might 
reasonably tend to bargain less diligently than they would absent 
the procedure.
---------------------------------------------------------------------------

    The notice-and-election procedure also reasonably tends to 
interfere with effective bargaining from the union's side. Because its 
representative status is at stake, the union may well feel the need to 
divert resources away from bargaining to campaigning. At the same time, 
it may well face or feel pressure to quickly demonstrate good results 
in bargaining to preserve employee support, as recognized by the Board 
and the courts in bar-doctrine cases.\187\ That pressure on the union 
might lessen the chances of agreement and instead lead to conflict with 
the employer--indeed, even to strikes or other workplace disruptions--
that could have been avoided, had there been more time to reach 
compromise. The reasonably likely combined effect of the notice-and-
election procedure on collective bargaining seems clear. It creates 
incentives for employers to move slowly and for unions to move quickly, 
increasing the chances of conflict, not compromise. This is not a good 
way to promote the practice and procedure of collective bargaining, as 
the Act intends.
---------------------------------------------------------------------------

    \187\ See, e.g., NLRB v. Universal Gear Service Corp., supra, 
394 F.2d at 398 (quoting Supreme Court's observation in Brooks v. 
NLRB, supra, that ``[a] union should be given ample time for 
carrying out its mandate on behalf of its members, and should not be 
under exigent pressure to produce hothouse results or be turned 
out'').
---------------------------------------------------------------------------

    We acknowledge that there likely can be no more than anecdotal 
evidence that the notice-and-election procedure, in fact, interferes 
with effective collective bargaining. The Board has no statutory role 
in monitoring the national collective-bargaining process, as opposed to 
adjudicating individual cases involving the duty to bargain if and when 
they come to the Board. Even in a rulemaking proceeding, the Board is 
largely limited by the information presented to it. It seems 
implausible that employers who have bargained less diligently than they 
might have because of the current procedure would advise the Board as 
such and equally implausible that unions who have overreached in 
bargaining to protect their representative status and generated 
avoidable labor disputes would share that information.
    In our view, as explained, the notice-and-election procedure has 
little, if any, demonstrable benefit in promoting employee free choice, 
while imposing administrative costs on the Board and compliance costs 
on employers.\188\ Any potential benefit to employee free choice is (in 
our policy judgment) outweighed by, at least, the potential harm to 
effective collective bargaining, as described. We thus make a different 
policy choice than the 2020 Board, which concluded that the potential 
benefit of the Section 103.21 procedure outweighed any potential harm, 
while essentially treating the Board's administrative experience as 
irrelevant. We similarly disagree with our dissenting colleague's 
assessment of the relative costs and benefits of the Section 103.21 
procedure.
---------------------------------------------------------------------------

    \188\ See supra fn. 185.
---------------------------------------------------------------------------

    Based on that policy choice, the Board's final rule rescinds 
current Section 103.21, which fails to genuinely promote employee free 
choice, threatens to interfere with effective collective bargaining, 
and wastes the Board's administrative resources. The final rule also 
codifies the traditional voluntary-recognition bar, as refined in 
Lamons Gasket, by newly defining the reasonable period for collective 
bargaining that sets the duration of the bar. This separate and 
severable step is intended to provide greater stability in this area of 
labor law than would returning to case-by-case adjudication. As noted, 
the Dana decision (resurrected by the 2020 rule) upset what had been 
well-established Board law for more than 40 years, and then was 
properly overruled by Lamons Gasket.
    Given the federal courts' universal approval of the traditional 
voluntary-recognition bar, in decisions spanning decades, we believe 
that codifying the doctrine is well within the Board's authority to 
interpret the Act and to promulgate rules necessary to carry out its 
provisions, as contemplated by Section 6 of the Act.\189\ As explained, 
the traditional voluntary-recognition bar doctrine appropriately treats 
the newly established bargaining relationship between the recognized 
union and the employer as worthy of initial protection, because it is 
based on a legitimate expression of employee free choice sanctioned by 
the Act and because doing so promotes effective collective bargaining. 
The voluntary-recognition bar insulates the union from challenge, but 
only for a limited time, i.e., a reasonable period for collective 
bargaining, mitigating its impact on employee free choice. The 
refinement made by Lamons Gasket--which defined the reasonable period 
for collective bargaining (setting minimum and maximum lengths while 
incorporating an existing multifactor test for fixing the bar period in 
a particular case)--brings greater clarity and certainty to the 
recognition-bar doctrine, providing better guidance for employees, 
unions, and employers and facilitating its fair and consistent 
application by the Board.
---------------------------------------------------------------------------

    \189\ We are of the same view with respect to the rescission of 
the current rule.
---------------------------------------------------------------------------

    Consistent with Lamons Gasket, we have chosen not to extend the 
final rule to cover unfair labor practice cases (e.g., where it is 
alleged that an employer violated its statutory duty to bargain by 
unilaterally--not on the basis of a Board election or order--
withdrawing recognition from a voluntarily recognized union before a 
reasonable period for bargaining had elapsed). This decision leaves the 
Board free to continue to apply the voluntary-recognition bar in such 
circumstances through adjudication, if and as cases arise, consistent 
with the Board's traditional approach to the issue.\190\ It

[[Page 62992]]

also permits the Board to consider, in future appropriate cases, issues 
related to the propriety of employer unilateral withdrawals of 
recognition more generally and not simply when such a withdrawal 
follows voluntary recognition.
---------------------------------------------------------------------------

    \190\ As explained, the Board first established the voluntary-
recognition bar in an unfair labor practice case in 1966. See Keller 
Plastics Eastern, supra, 157 NLRB 583. See also Universal Gear 
Service Corp., supra, 157 NLRB 1169.
---------------------------------------------------------------------------

    Finally, the Board has decided to acknowledge, but not codify, the 
caselaw rule of Smith's Food, supra, which permits a union to file and 
proceed with a representation petition if, at the time the employer 
voluntarily recognized a rival union, the petitioner union had already 
obtained a sufficient showing of interest to support a petition. This 
approach leaves the law in this area unchanged (as Lamons Gasket did) 
and allows any modifications to it to be made through case-by-case 
adjudication. We believe that this approach, providing flexibility and 
permitting the Board to consider the particular circumstances in which 
the Smith's Food issue arises, is better suited to address this 
uncommon situation.
3. Response to Public Comments on Proposed Rule
    The Board received many public comments addressing the proposed 
rule, and we have considered them carefully. Likewise, we have 
carefully considered the view of our dissenting colleague. The issues 
implicated by the proposed rule are largely familiar to the Board and 
the public, given the recent history of the voluntary-recognition bar. 
These issues were debated in the Board's divided decision in Dana 
(2007), in the Lamons Gasket decision (2011) that overruled Dana, and 
in the rulemaking that culminated in the 2020 rule, which we rescind 
and replace.
    A number of commenters expressed their support for the proposed 
rule and urged the Board to implement the proposal without any 
modifications.\191\ Commenters who opposed the proposed rule largely 
raised arguments that were made by the Board's Dana majority, rejected 
by the Lamons Gasket majority, and then embraced by the 2020 Board. The 
common thread of many comments opposing the new rule and rescission of 
the 2020 rule is the claim that voluntary recognition does not reliably 
reflect majority support for union representation among employees, such 
that the current notice-and-election procedure serves as a necessary 
and appropriate check on voluntary recognition. These comments assert 
the superiority of Board elections over union-authorization cards and 
other recognized, alternative means by which employees may designate a 
union to represent them under the Act. The comments cite various 
features that, in their view, favorably distinguish elections from 
these alternative means of establishing majority support. Our 
dissenting colleague also takes this position.
---------------------------------------------------------------------------

    \191\ See comments of AFL-CIO; AFSCME; CAP; EPI; NNU; SEIU; USW.
---------------------------------------------------------------------------

    We address these comments and the view of our dissenting colleague 
below. As we explain, they do not persuasively come to terms with the 
key points already examined here, which support restoring the 
traditional voluntary-recognition bar: The National Labor Relations Act 
explicitly provides that employees may designate a union to represent 
them by means other than a Board election. Temporarily protecting a new 
bargaining relationship established through voluntary recognition--as 
other new or restored relationships are protected by analogous bar 
doctrines--promotes effective collective bargaining, as the federal 
courts have uniformly recognized. Finally, the Board's experience with 
the notice-and-election procedure, under both Dana and the 2020 rule, 
shows that the procedure is not necessary to preserve employee free 
choice. The Board's experience under Dana and the 2020 rule provides no 
basis for viewing voluntary recognition as less reflective of 
employees' free choice in favor of union representation. Contrary to 
comments opposing the rule, we see no overriding reason to treat 
voluntary recognition as suspect and to preserve current Section 103.21 
as a check on that statutorily sanctioned practice.
    In addition to examining comments and the views of our dissenting 
colleague opposed to the proposed rule, we also consider comments 
addressing three issues on which the NPRM specifically invited comment: 
(1) whether to extend the final rule to cover unfair labor practice 
cases; (2) whether to modify the proposed definition of the reasonable 
period for collective bargaining; and (3) how to address the situation 
presented in Smith's Food, where multiple unions are vying to represent 
the same employees and the employer voluntarily recognizes one union 
when another has sufficient support to seek a Board election.
a. Comments Regarding the Asserted Superiority of Board Elections To 
Effectuate Employee Free Choice
    Our dissenting colleague, along with commenters opposing rescission 
of the 2020 rule and adoption of the proposed rule, contend that the 
process by which voluntarily recognized unions demonstrate their 
majority support is unreliable and/or inferior to the Board's election 
process.\192\ They point to judicial decisions such as Gissel Packing 
Co., supra, 395 U.S. 575, which they assert hold that elections are the 
superior method for determining questions of representation, and to 
Section 9(c)(3) of the Act, which provides that no new Board election 
may be conducted for one year following an election.\193\
---------------------------------------------------------------------------

    \192\ E.g., comments of CDW; Chamber; Chairwoman Virginia Foxx; 
NRTWLDF.
    \193\ Sec. 9(c)(3) recites in relevant part: ``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.'' 29 U.S.C. 159(c)(3).
---------------------------------------------------------------------------

    We see no support for our colleague and the commenters' position in 
the Supreme Court's Gissel decision. If anything, the opposite is true. 
The issue there was whether the Board could order an employer, whose 
serious unfair labor practices had made a fair election unlikely, to 
bargain with a union that had demonstrated its majority support through 
authorization cards. In upholding the Board's authority, the Court 
decisively rejected both the argument that the Act permitted only 
unions chosen in Board election to represent employees \194\ and the 
argument that authorization cards were inherently unreliable to 
establish the union's majority support.\195\
---------------------------------------------------------------------------

    \194\ 395 U.S. at 595-600. Citing the language of Sec. 8(a)(5) 
and Sec. 9(a) of the Act, the Supreme Court observed that it had 
``consistently accepted th[e] interpretation'' of the Act that a 
union was ``not limited to a Board election'' to establish its 
representative status, but rather ``could establish majority status 
by other means,'' including employee-signed authorization cards. Id. 
at 596-597.
    \195\ Id. at 601-605. The Court squarely rejected what it 
identified as the two principal arguments attacking the reliability 
of authorization cards in the context of issuing bargaining orders:
    (1) that, as contrasted with the election procedure, the cards 
cannot accurately reflect an employee's wishes, either because an 
employer has not had a chance to present his views and thus a chance 
to insure that the employee choice was an informed one, or because 
the choice was the result of group pressures and not individual 
decision made in the privacy of a voting booth; and (2) that quite 
apart from the election comparison, the cards are too often obtained 
through misrepresentation and coercion which compound the cards' 
inherent inferiority to the election process.
    Id. at 602 (footnote omitted). The Court observed that 
``[n]either contention is persuasive.'' Id.
---------------------------------------------------------------------------

    To be sure, the Gissel Court observed that ``[t]he Board itself has 
recognized . . . that secret elections are generally the most 
satisfactory--indeed the preferred--method of ascertaining whether a 
union has majority support.'' \196\ This observation must be understood 
in context, however. The

[[Page 62993]]

Court upheld the Board's authority to issue a bargaining order when a 
union had established majority support through alternative means. In 
turn, the Court plainly was not questioning the long-established 
practice of voluntary recognition, where an employer has chosen to 
recognize the union, rather than being ordered by the Board to do so. 
Nothing in the Court's observation suggests that the Board had ever 
treated voluntary recognition as inherently suspect or affirmatively 
disfavored. Indeed, the voluntary-recognition bar was Board law when 
Gissel was decided in 1969, and no federal court has since questioned 
that doctrine, whether based on Gissel or otherwise. Gissel, then, 
provides no persuasive reason for adopting the current notice-and-
election procedure, as the Board did in 2007, or for preserving that 
procedure now.\197\
---------------------------------------------------------------------------

    \196\ Id. at 602 (footnote omitted).
    \197\ As noted above, long after the close of the comment 
period, the Board issued its decision in Cemex Construction 
Materials, Pacific, LLC, supra, 372 NLRB No. 130, holding that an 
employer violates Sec. 8(a)(5) and (1) by refusing to recognize, 
upon request, a union that has been designated as the Sec. 9(a) 
representative by the majority of employees in an appropriate unit 
unless the employer promptly files an RM petition pursuant to Sec. 
9(c)(1)(B) of the Act to test the union's majority status or the 
appropriateness of the unit, assuming that the union has not already 
filed an RC petition pursuant to Sec. 9(c)(1)(A). Id., slip op. at 
25-26 & fn. 141. No commenter has requested the Board to reopen the 
comment period for the purpose of addressing Cemex.
---------------------------------------------------------------------------

    Nor do we see Section 9(c)(3) of the Act as providing such a 
rationale. As the Supreme Court explained in Brooks v. NLRB, supra, 
that statutory provision was added in 1947 to address the fact that a 
union, having lost a Board election, ``could begin at once to agitate 
for a new election.'' \198\ Section 9(c)(3), then, does not speak 
directly to the issue addressed by the Board's bar doctrines, the need 
to temporarily protect new or restored bargaining relationships to 
promote effective collective bargaining. The Board's certification-year 
bar, ordinarily insulating a Board-certified union from challenge for 
one year, pre-dates Section 9(c)(3), and it was upheld by the Court in 
Brooks, which did not rest its decision on that provision, but rather 
on the pro-bargaining rationale offered by the Board.\199\ As we have 
explained, the certification-year bar served as a model for the 
voluntary-recognition bar; the Board adopted the bar and the federal 
courts endorsed the bar after looking to the Court's decision in Brooks 
as support.
---------------------------------------------------------------------------

    \198\ 348 U.S. at 100 (footnote omitted).
    \199\ Id. at 100-102.
---------------------------------------------------------------------------

    Commenters also point to several practical reasons why, in their 
view, union demonstrations of majority support tend to be less reliable 
than Board elections.\200\ For example, the Coalition for a Democratic 
Workforce cites the nonpublic character of union solicitations, the 
potential lack of any involvement by an opposing entity and/or the 
absence of contrary information, the lack of any Board policing of card 
solicitation, and the potentially protracted period over which cards 
are solicited.\201\ The National Right to Work Legal Defense Fund 
points to examples where a union secured a card majority but ultimately 
lost an election even though the employer was bound by a neutrality 
agreement and did not oppose union representation.\202\
---------------------------------------------------------------------------

    \200\ See comments of Chairwoman Foxx; NRTWLDF. Chairwoman Foxx 
specifically points to the potential for union abuses in the 
gathering of signatures and/or documented examples of such abuses. 
We address her comments below.
    \201\ Comments of CDW. Rachel Greszler argues in her comment 
that workplace turnover may make voluntary recognition an invalid 
gauge of employee sentiment, as the employee complement that 
initially chose a union may dramatically change over the bar period. 
See comments of Rachel Greszler. But this observation overlooks the 
fact that employee turnover is a reality of the workplace, whether a 
union wins representation rights through voluntary recognition or an 
election. Thus, although the voters in a Board election may all be 
employed as of that date, any number of those voters could leave 
their employment before a Board certification issues or bargaining 
actually begins, particularly if the Board's certification is 
challenged. Indeed, under Board law, a certified or recognized union 
enjoys a continuing presumption of majority support, conclusive 
during certain periods and rebuttable otherwise, no matter how much 
time has passed. See Levitz Furniture Co. of the Pacific, supra, 333 
NLRB at 720 & fns. 16, 17. See also Fall River Dyeing & Finishing 
Corp. v. NLRB, 482 U.S. 27, 37-39 (1987) (describing the Board's 
presumptions of majority support as serving the Board's permissible 
policy decision to promote stable collective-bargaining 
relationships).
    \202\ Comments of NRTWLDF.
---------------------------------------------------------------------------

    These comments, in our view, fail to justify preserving the current 
notice-and-election procedure. Even assuming that the features of an 
election that distinguish it from certain alternative means of 
demonstrating a union's majority support make an election closer to the 
ideal expression of free choice, this possibility does not mean that 
alternative means of demonstrating majority support are generally 
unreliable or, in particular, insufficiently reliable to support the 
traditional voluntary-recognition bar.\203\ The reasons should be 
clear. First, the Act itself treats alternative means of demonstrating 
majority support as sufficient to establish a union's representative 
status and the employer's corresponding duty to bargain, as confirmed 
by the Supreme Court.\204\ Second, to serve as a basis for the union's 
representative status, these alternative means must demonstrate 
majority support among bargaining-unit employees as a whole--in 
contrast to a Board election, where a union need only win a majority 
among voting employees. Third, the Board's administrative experience 
with the notice-and-election procedure demonstrates that employees 
almost never reject the recognized union; in the overwhelming majority 
of cases, they never seek an election in the first place. As already 
explained,\205\ that a union might lose an election despite having 
earlier been able to demonstrate majority support does not necessarily 
prove that the union lacked majority support to begin with (even 
assuming that it was a majority of bargaining-unit employees who voted 
against the union in the election). Intervening events, or even a 
simple change of mind among a determinative number of employees, may 
well explain the union's election loss.\206\
---------------------------------------------------------------------------

    \203\ See Gissel, 395 U.S. at 602. There, as explained, the 
Supreme Court noted the Board's view that ``secret elections are 
generally the most satisfactory--indeed the preferred--method of 
ascertaining whether a union has majority support,'' but upheld the 
use of authorization cards as the basis for establishing a union's 
majority support and issuing a bargaining order against an employer 
who had committed unfair labor practices interfering with the 
possibility of a free election. Id. at 601-605, 610. The Court cited 
the Board's decision in Aaron Brothers Co. of California, 158 NLRB 
1077 (1966), where the Board observed that ``an election by secret 
ballot is normally a more satisfactory means of determining 
employees' wishes, although authorization cards signed by a majority 
may also evidence their desires.'' 158 NLRB at 1078 (emphasis 
added).
    \204\ See Gissel, 395 U.S. at 602-606.
    \205\ See supra fn. 181 & 182.
    \206\ The Act certainly does not require a voluntarily 
recognized union to demonstrate majority support more than once--
whether through an election or otherwise--before it can achieve 
representative status, any more than it requires a union to win 
multiple elections before being certified, even if such a 
requirement would increase opportunities for employees to exercise 
free choice in some sense.
---------------------------------------------------------------------------

    Some commenters opposed to the proposed rule point to the specific 
privileges and protections granted by the Act to Board-certified 
unions, but not to voluntarily recognized unions, to argue that 
recognized unions are less worthy of temporary insulation from 
challenge and thus that the current notice-and-election procedure is 
appropriate.\207\ We disagree. That the

[[Page 62994]]

Act grants unique benefits to certified unions does not alter the fact 
that the Act permits recognized unions to become the exclusive 
bargaining representative of employees. It is that status which the 
voluntary-recognition bar protects in order to promote effective 
collective bargaining. The Act's pro-bargaining policy applies no 
matter how a bargaining relationship is lawfully established. We reject 
the view that because the Act distinguishes between certified and 
recognized unions in specified and limited ways, the Board should 
broadly disadvantage recognized unions as current Section 103.21 does, 
for no compelling reason.\208\ Such an approach, as we have observed, 
is contrary to the teaching of the Supreme Court.\209\ We do not say, 
however, that certified unions and recognized unions must be treated 
identically in every respect. Thus, the voluntary-recognition bar as 
codified in the final rule is distinct from the existing bar doctrine 
applicable to certified unions. Under the certification-year bar 
doctrine, as noted, the bar period is ordinarily one year, absent 
special circumstances. Pursuant to the final rule adopted, in contrast, 
the reasonable period for bargaining that defines the voluntary-
recognition bar period may be as short as six months and may never be 
longer than one year (measured from the start of bargaining), depending 
on specific factors to be applied case-by-case.\210\
---------------------------------------------------------------------------

    \207\ See, e.g., comments of NRTWLDF. As explained previously, 
these statutory benefits include Sec. 9(c)(3)'s bar on elections for 
a 12-month period; the protection against recognitional picketing by 
rival unions under Sec. 8(b)(4)(C); the right to engage in certain 
secondary and recognitional activity under Sec. 8(b)(4)(B) and 7(A); 
and, in certain circumstances, a defense to allegations of unlawful 
jurisdictional picketing under Sec. 8(b)(4)(D). Neither the proposed 
rule nor the final rule purport to extend these statutory privileges 
and protections to recognized unions, of course.
    \208\ The benefits granted to certified unions should not be 
understood as disadvantages imposed on voluntarily recognized 
unions, but rather as benefits bestowed on unions that obtain 
certification through a Board election. Notably, Board law has long 
permitted a recognized union to file a representation-election 
petition and to become certified by the Board if it wins the 
election. See General Box Co., 82 NLRB 678, 682-683 (1949).
    \209\ See United Mine Workers, supra, 351 U.S. at 73 (the Act's 
specified advantages for a union's compliance with certain statutory 
requirements implied that noncompliance did not result in any 
additional consequences).
    \210\ Because the voluntary-recognition bar is designed to 
facilitate bargaining by temporarily insulating the recognized union 
from challenge, the duration of the bar is based on a reasonable 
period for collective bargaining. That period is logically defined 
as beginning with the parties' first bargaining session. It follows 
that the bar period may extend for more than a year following the 
date of voluntary recognition, if the parties do not begin 
bargaining on the date of recognition. However, it seems reasonable 
to believe that delays in the start of bargaining are unlikely when 
the parties have entered into the bargaining relationship 
voluntarily and presumably both wish to reach a collective-
bargaining agreement promptly. NRTWLDF points out that under Sec. 
9(c)(3), the bar on a new election runs for one year from the date 
of a valid election. See comments of NRTWLDF. That statutory 
provision has no bearing here, however. Looking to the analogous 
certification-year bar, meanwhile, reveals that if the start of 
bargaining is delayed by litigation over the propriety of the 
union's victory, the one-year bar period also does not start to run 
until bargaining actually begins. See Volkswagen Group of America 
Chattanooga Operations, LLC, 367 NLRB No. 138, slip op. at 1 (2019) 
(``Where an employer exercises its right to pursue judicial review 
of a certification, the certification year will begin with the first 
bargaining session held following court enforcement of the Board's 
order.'').
    CDW and NRTWLDF point out that, if a collective-bargaining 
agreement is reached within the voluntary-recognition bar period, 
then the Board's contract-bar doctrine would come into play, adding 
a separate three-year bar on the filing of election petitions. See 
comments of CDW; reply comments of NRTWLDF. The same is true, 
however, if a contract is reached during the certification-year bar 
period. In both situations, of course, collective bargaining has 
succeeded, as the Act envisions. Nonetheless, the contract bar is 
separate from the voluntary-recognition bar and is beyond the scope 
of the current rulemaking.
---------------------------------------------------------------------------

b. Comments Concerning Fraudulent or Coercive Conduct by Unions
    Some commenters opposing the proposed rule argue that voluntary 
recognition is an unreliable indicator of a union's majority support 
because of fraudulent or coercive conduct by unions in obtaining the 
evidence necessary to demonstrate that support. This asserted conduct 
includes union intimidation of employees, harassment, and deception as 
to the nature of the authorization cards or other instruments employees 
are asked to sign to demonstrate support. For example, Representative 
Virginia Foxx, the Chairwoman of the House Committee on Education and 
the Workforce, cites to congressional testimony on union solicitation 
of authorization cards using false pretenses and high-pressure tactics 
to obtain employee signatures.\211\ We are not persuaded by these 
comments that voluntary recognition is inherently suspect or that the 
Board's current notice-and-election procedure is necessary as a check 
to ensure that recognized unions do, in fact, have uncoerced majority 
support.
---------------------------------------------------------------------------

    \211\ Comments of Chairwoman Foxx.
---------------------------------------------------------------------------

    Had Congress believed that voluntary recognition was often tainted 
by union misconduct in securing majority support among employees, the 
Act presumably would not have made it possible for a union to establish 
its representative status through means other than a Board election. As 
we have repeatedly observed, however, the Act explicitly does provide 
for this alternate path. In this respect, commenters' quarrel is less 
with the proposed rule than with the Act itself. In Gissel, the Supreme 
Court not only confirmed the Act's plain meaning, but also rejected the 
argument that union-authorization cards could not properly establish a 
union's majority support. The Court was not persuaded that cards were 
suspect because ``an employee may, in a card drive, succumb to group 
pressures or sign simply to get the union `off his back,''' noting that 
the ``same pressures are likely to be equally present in an election.'' 
\212\ The Court in turn rejected the ``complaint, that [authorization] 
cards are too often obtained through misrepresentation and coercion,'' 
citing the ``Board's present rules for controlling card solicitation,'' 
which the Court ``view[ed] as adequate to the task where the cards 
involved state their purpose clearly and unambiguously on their face.'' 
\213\
---------------------------------------------------------------------------

    \212\ 395 U.S. at 603-604.
    \213\ Id. at 604.
---------------------------------------------------------------------------

    The current notice-and-election procedure applies in all cases of 
voluntary recognition, regardless of whether there is any reason to 
doubt the union's majority support. The procedure does not require even 
an allegation that the union's demonstration of majority support was 
deficient in any respect. Moreover, as we have explained, the procedure 
is unnecessary to serve as a check on the legitimacy of the union's 
majority support. Most obviously, in any particular case, the legality 
of an employer's voluntary recognition of a union is open to challenge 
under the Act's unfair labor practice provisions, as administered by 
the Board. As explained, an employer violates Section 8(a)(2) of the 
Act when it voluntarily recognizes a union that does not, in fact, have 
uncoerced majority support, and the minority union correspondingly 
violates Section 8(b)(1)(A) by accepting recognition if it does not 
enjoy majority support.\214\ The Board has been unequivocal that 
``unlawful conduct involved in the solicitation of the cards, including 
threats, interrogations, surveillance, and promises of benefits . . . . 
supports a reasonable inference that the claimed card majority was 
tainted.'' \215\ Board cases make clear that union misrepresentation of 
the nature of authorization cards and the use of threats to secure card 
signatures are unlawful and that such misrepresentations will 
invalidate the authorization card.\216\ One commenter opposing the 
proposed rule, the HR Policy Association, raises the concern that 
voluntary recognition may be the

[[Page 62995]]

product of improper dealings between a union and an employer.\217\ This 
concern, too, can be redressed in a particular case, through Section 
8(a)(2) of the Act, which (as explained) expressly prohibits an 
employer from ``dominat[ing] or interfer[ing] with the formation or 
administration of any labor organization or contribute financial or 
other support to it.'' 29 U.S.C. 158(a)(2).
---------------------------------------------------------------------------

    \214\ See Lamons Gasket, supra, 357 NLRB at 746-747 (citing 
Bernhard-Altmann, supra, 366 U.S. at 738, and Dairyland USA Corp., 
347 NLRB 310, 313-314 (2006), enfd. 273 Fed. Appx. 40 (2d Cir. 
2008)).
    \215\ Dairyland USA, supra, 347 NLRB at 313.
    \216\ See, e.g., Cumberland Shoe Corp., 144 NLRB 1268, 1268 
(1963) (union authorization card invalid if organizer misrepresents 
the card's nature or purpose), enfd. 351 F.2d 917 (6th Cir. 1965); 
see also Clement Bros., 165 NLRB 698, 699, 707 (1967) (union 
adherents' coercion or misrepresentation in card solicitation may 
violate Sec. 8(b)(1)(A) of the Act and invalidate majority showing), 
enfd. 407 F.2d 1027 (5th Cir. 1969).
    \217\ See comments of HRPA.
---------------------------------------------------------------------------

    One commenter discounts the value of the Act's unfair labor 
practice provisions as a check on union misconduct related to voluntary 
recognition, asserting that filing and pursuing unfair labor practice 
charges with the Board is burdensome on employees, who must depend on 
the General Counsel and the Board's regional offices to investigate a 
charge to determine its merit, issue a complaint, and pursue a case 
before the Board.\218\ This, of course, is the process that Congress 
has established to protect employees' rights under the Act. By 
definition, then, it must be deemed adequate to serve the Act's 
purposes in the current context. The Supreme Court's decision in 
Gissel, in turn, implicitly endorsed the Board's ability to effectively 
administer the Act in all relevant respects. The Act provides ample 
opportunity for employees and their supporters to seek redress for 
union or employer misconduct in connection with the voluntary-
recognition process. As observed in Lamons Gasket, any person may file 
an unfair labor practice charge with the Board, up to six months after 
the alleged union misconduct or the unlawful voluntary recognition of 
the union by the employer.\219\
---------------------------------------------------------------------------

    \218\ See reply comments of NRTWLDF.
    \219\ 357 NLRB at 746-747.
---------------------------------------------------------------------------

    Relatedly, a commenter asserts that filing election objections in a 
representation case is a more effective means of protecting employee 
free choice than an unfair labor practice charge.\220\ We are not 
persuaded by this assertion. For reasons already explained, the Act's 
unfair labor practice provisions are adequate to ensure the integrity 
of voluntary recognition. Congress authorized voluntary recognition as 
a means for unions and employers to establish a bargaining 
relationship, and concomitantly established unfair labor practices to 
prevent conduct that might taint the creation of such a relationship. 
Where a union files an election petition, in contrast, the Board's 
representation-case procedures and standards of election conduct apply 
(in addition to the unfair labor practice provisions of the Act). In 
short, these alternative routes to representation are appropriately 
governed by their own sets of rules. Even if the Act's unfair labor 
practice procedures and standards were somehow inferior to those 
governing representation cases,\221\ that fact would be immaterial 
because the Act does not require unions to invoke the Board's 
representation procedures.
---------------------------------------------------------------------------

    \220\ See reply comments of NRTWLDF.
    \221\ This is not clearly the case, as the Lamons Gasket Board 
pointed out, in part because the representation-case process 
emphasizes speed. 357 NLRB at 747. An election objection must be 
filed with seven days of the tally of ballots, by a party to the 
election, while an employee (or any other person) may file an unfair 
labor practice charge as long as six months after the alleged 
misconduct. Id.
---------------------------------------------------------------------------

c. Comments Regarding the Lack of Parallel Legal Treatment of Voluntary 
Recognition and Withdrawal of Recognition
    Commenter NRTWLDF argues that employers and unions can easily 
establish bargaining relationships through voluntary recognition, while 
employers' efforts to unilaterally withdraw recognition are more 
difficult. This commenter argues that this inequity would be worsened 
by the proposed rule.\222\ NRTWLDF chiefly argues that there are 
complex sets of rules governing employer involvement in any withdrawal 
of recognition solicitations and regarding when and where such evidence 
may be solicited by employees, while voluntary recognition is subject 
to far less scrutiny. Putting aside the issue of whether NRTWLDF has 
accurately characterized Board law, we disagree that voluntary 
recognition and unilateral withdrawals of recognition--despite both 
turning on whether a union has (or continues to have) majority 
support--are equivalent. The Board has never treated them as such. 
Rather, each practice involves its own legal and policy issues under 
the Act, which merit separate consideration. For example, no provision 
of the Act clearly authorizes employers to withdraw recognition from a 
certified or recognized union without an election, nor has unilateral 
withdrawal of recognition ever been deemed a favored element of 
national labor policy. The present rulemaking is thus appropriately 
confined to the issue of voluntary recognition, just as the 2020 
rulemaking was.
---------------------------------------------------------------------------

    \222\ Comments of NRTWLDF.
---------------------------------------------------------------------------

d. Comments Concerning the Impact on Collective Bargaining of the 2020 
Rule
    In response to the Board's invitation, various commenters addressed 
the question of whether and what evidence there was to suggest that the 
2020 rule had negatively affected the ability of voluntarily recognized 
unions and employers to engage in productive collective bargaining by 
subjecting unions to potential challenges to their representative 
status. In Lamons Gasket, the Board had pointed to its own experience 
demonstrating that a notice-posting procedure is likely to delay and 
distort bargaining.\223\ Comments supporting the proposed rule chiefly 
argue that, as a matter of logic and experience, bargaining will be 
harmed; \224\ however, they do not bring significant empirical evidence 
to bear. We take note of some of the burdens commenters have pointed 
to, but for reasons already explained, we believe that recission of the 
2020 rule reflects the better policy choice. Contrary to our dissenting 
colleague's view, we believe that the 2020 rule has a reasonable 
tendency to harm the bargaining process and that, in any case, the 
current notice-and-election procedure does not serve its ostensible 
purpose of promoting employee free choice. The procedure thus has no 
clear benefit that would outweigh its potential for harm.
---------------------------------------------------------------------------

    \223\ 357 NLRB at 747 & fn. 32.
    \224\ See, e.g., comments of AFL-CIO; AFSCME; GC Abruzzo; LA 
Federation; SEIU; USW.
---------------------------------------------------------------------------

    The AFL-CIO suggests that the practical effect of the notice period 
is that employers will delay bargaining until after the 45-day posting 
period prescribed in the 2020 rule.\225\ It also refers to union briefs 
and academic modeling cited in the Lamons Gasket decision, which 
suggest that uncertainty as to the duration of the union's status will 
cause collective bargaining to be less cooperative.\226\ The Los 
Angeles County Federation of Labor points to the experience of UNITE 
HERE Local 11, which--under the 2020 rule--had to divert resources from 
bargaining to defend against a decertification petition (which was 
ultimately unsuccessful). It also points to academic studies and other 
experience suggesting that delays in the consummation of an agreement 
may lead to substantively worse terms.\227\ SEIU also asserts, as a 
logical proposition, that unions and employers will avoid the path of 
voluntary recognition if they believe it is fraught and less likely to 
yield positive collective-bargaining outcomes.\228\ And of course, as 
some commenters observed, there are administrative costs

[[Page 62996]]

imposed on the regions and the parties to request, furnish, and post 
notices.\229\
---------------------------------------------------------------------------

    \225\ See comments of AFL-CIO.
    \226\ See id. (citing 357 NLRB at 747 fn. 30).
    \227\ Comments of LA Federation.
    \228\ Comments of SEIU.
    \229\ Although, as CDW suggests in its comment, see comments of 
CDW, these costs may be small, any small or theoretical harms must 
be balanced against the lack of any meaningful benefits of imposing 
a notice procedure as a prerequisite to the voluntary-recognition 
bar.
---------------------------------------------------------------------------

    These assertions from commenters align with the logical 
expectations of how the 2020 rule's notice-posting requirement tends to 
affect bargaining relationships, as well as the Board's own experience 
as laid out in Lamons Gasket.\230\ It seems fair to conclude, as a 
matter of experience and academic modeling, that the current notice-
and-election procedure has a reasonable tendency to influence the 
trajectory of bargaining. Employers might well refuse to invest the 
same time and effort into bargaining if the bargaining relationship 
might soon be terminated. Unions, in turn, might feel pressure to 
quickly produce positive results in bargaining to avoid losing support 
among employees--making a mutually satisfactory agreement with the 
employer more difficult and increasing the likelihood of labor 
disputes. These concerns, of course, animate the voluntary-recognition 
bar and other bar doctrines, including the certification-year bar 
endorsed by the Supreme Court.\231\
---------------------------------------------------------------------------

    \230\ Lamons Gasket, 357 NLRB at 747 & fn. 32.
    \231\ Id. at 744 (citing Brooks v. NLRB, supra, 348 U.S. at 
100).
---------------------------------------------------------------------------

e. Comments on FOIA Data and Updated FOIA Data Reflecting Experience 
Under 2020 Rule
    Numerous commenters have remarked on the Board data reflecting 
experience under the 2020 rule, produced under FOIA, cited in the NPRM. 
As we explained in the NPRM, after ``the Board's rule went into effect 
on June 1, 2020,'' the Board ``[i]n response to a series of Freedom of 
Information Act requests, . . . has compiled and disclosed data that 
reflects its experience under the rule,'' tabulating employer requests 
for notices under the 2020 rule and whether a petition was subsequently 
filed. 87 FR 66898. Opponents of the proposed rule generally express 
the view that even the slightest indication that employees in some 
cases might not wish to retain a voluntarily recognized union is 
sufficient justification for the 2020 rule's procedure.\232\ 
Supporters, meanwhile, take the view that this data overwhelmingly 
shows there is no need for the 2020 notice-and-election procedure, and 
that the successful track record of voluntary recognition justifies 
treating it as a valid expression of employee choice.
---------------------------------------------------------------------------

    \232\ Commenter CDW argues that if one interprets the data as 
the NPRM does--showing minimal impact on unions' status--then it 
makes no sense to upset the status quo of the 2020 rule because the 
rule has not negatively affected unions' representational status. 
Comments of CDW. As we have explained, given the lack of 
justification for a rule that imposes a needless hurdle to 
bargaining, even potential obstacles to productive bargaining should 
be avoided.
---------------------------------------------------------------------------

    As noted earlier, we believe the Board's experience with the 2020 
rule clearly does not compel the conclusion that the rule is necessary 
to protect employee free choice. In any case, even if the 
administrative data pointed to no firm conclusions about the need for 
the current rule, we would still rescind the rule as a matter of policy 
for the reasons we have explained.
    Many commenters opposed to the rule argue that the current notice-
and-election procedure is justified if it ever results in a recognized 
union being decertified. We disagree, for reasons already explained. 
That a recognized union loses a subsequent election--and this has 
occurred only in a tiny number of cases where the required notice was 
posted (both under Dana and under the current rule)--does not 
demonstrate that the union lacked majority support at the time it was 
recognized. Rather, that result may well be explained by intervening 
events or by a simple change of mind among employees. Recall, too, that 
an election is decided by a majority of voting employees, while lawful 
recognition requires majority support by bargaining unit employees as a 
whole. Of course, even two free and fair elections held in quick 
succession may produce different results if enough voters suddenly 
change their minds, but that is no reason to discard the critical role 
of bargaining stability in the administration of the Act.
f. Comments That the Notice-and-Election Procedure Compromises the 
Board's Neutrality
    Commenter AFL-CIO, joined by other commenters including National 
Nurses United, argues that the notice-posting requirement of current 
Section 103.21 compromises the Board's neutrality because it informs 
employees of their right to reject the recognized union and effectively 
invites them to exercise that right.\233\ These commenters point out 
that in this respect, the Board treats voluntary recognition 
differently. Unless an unfair labor practice has been committed or an 
election has been scheduled, the Board does not currently require that 
employees be advised of their statutory rights with respect to union 
representation. The AFL-CIO, joined by other commenters, further argues 
that the 2020 Board, by not addressing comments raising the neutrality 
issue, violated the Administrative Procedure Act when it adopted 
current Section 103.21.
---------------------------------------------------------------------------

    \233\ Comments of AFL-CIO; NNU.
---------------------------------------------------------------------------

    In rescinding the 2020 rule and replacing it with a new rule, we 
need not and do not rely on these arguments, but rather on the reasons 
already offered here, which we regard as ample justification for this 
rule's steps.\234\ Irrespective of whether the 2020 rule was adopted in 
accordance with the Administrative Procedure Act, we disagree with the 
policy choice reflected by the 2020 rule. We make a different policy 
choice here.
---------------------------------------------------------------------------

    \234\ In this respect, we neither adopt nor reject the reasoning 
of Lamons Gasket. See 357 NLRB at 743-744 (concluding that Dana 
notice-and-election procedure compromised the Board's neutrality).
---------------------------------------------------------------------------

g. Comments Addressing the Definition of the Reasonable Period for 
Bargaining
    Several commenters take issue with the proposed rule's definition 
of the reasonable period for bargaining, which establishes the length 
of the voluntary-recognition bar. As noted, the proposed rule defined 
this reasonable period as ``no less than 6 months after the parties' 
first bargaining session and no more than 1 year after that date,'' and 
provided that, ``[i]n determining whether a reasonable period of time 
for collective bargaining has elapsed in a given case, the following 
factors will be considered: (1) [w]hether the parties are bargaining 
for an initial collective-bargaining agreement; (2) [t]he complexity of 
the issues being negotiated and of the parties' bargaining processes; 
(3) [t]he amount of time elapsed since bargaining commenced and the 
number of bargaining sessions; (4) [t]he amount of progress made in 
negotiations and how near the parties are to concluding an agreement; 
and (5) [w]hether the parties are at impasse.'' 87 FR at 66933.
    NRTWLDF argues that defining the period this way imposes an undue 
burden on employees opposed to union representation, who are likely to 
have difficulty assessing the duration of the period under the 
multifactor approach of the proposed rule.\235\ We are not persuaded by 
this argument. To begin, the final rule (in line with the proposed 
rule) restores the definition first adopted in Lamons Gasket in 2011. 
Before then, Board law did not define the reasonable period for 
collective bargaining at all in the context of voluntary recognition. 
In bringing greater clarity and certainty to the law, then, the final 
rule speaks to the concern of NRTWLDF. Employees

[[Page 62997]]

know, at a minimum, that the recognized union's representative status 
may not be challenged before six months but may be challenged after one 
year. Between those minimum and maximum lengths, the duration of the 
voluntary-recognition bar will necessarily vary from case to case, 
based upon the factors identified.
---------------------------------------------------------------------------

    \235\ Comments of NRTWLDF.
---------------------------------------------------------------------------

    But the alternative to a factor-based approach is to draw a bright 
line fixing the length of the bar that would apply in every case 
(unless the Board maintained its traditional approach of not defining 
the length of the bar at all). We do not believe that a bright-line 
rule would be superior. It would require the Board to treat all cases 
as if they were the same, when it seems clear that each case presents 
particular circumstances justifying a shorter or longer bar period, 
within the minimum and maximum lengths established. We believe that the 
definition of the reasonable period for bargaining that we adopt--
incorporating a standard that already exists in Board law addressing an 
analogous bar period--reflects a sound balance between competing 
considerations of certainty and flexibility.
    We are similarly not persuaded by the General Counsel's comment 
urging the Board to take a different approach to defining the 
reasonable period for bargaining. The General Counsel argues that the 
Board should fix the default reasonable period for bargaining at one 
year (with only limited grounds for extension beyond that). In her 
view, the proposed rule's minimum six-month period is inadequate to 
allow the new bargaining relationship to take root. Instead, according 
to the General Counsel, the reasonable period should mirror that of the 
statutory election bar, given that both voluntary recognition and 
elections are valid means of ascertaining employee free choice. She 
also argues that the multifactor test in the proposed rule could be 
confusing and difficult to administer.\236\
---------------------------------------------------------------------------

    \236\ Comments of GC Abruzzo.
---------------------------------------------------------------------------

    As explained, we believe that the approach adopted in the final 
rule is sound, both with respect to its use of the particular minimum 
and maximum periods and its use of a multifactor test to determine the 
length of the period between those two markers. We agree with the 
General Counsel that both voluntary recognition and Board elections are 
both valid means of establishing a union's right to represent 
employees. However, we do not believe that this fact dictates the 
appropriate length of the bar period. As explained, in a given case, 
the recognition-bar period may appropriately be fixed at one year 
(although not more). But, as suggested, circumstances will vary from 
case to case. Moreover, a bargaining relationship based on voluntary 
recognition is a consensual one, in contrast to a bargaining 
relationship based on an election. The latter relationship is 
effectively imposed by the Act, after the employer has refused to 
recognize the union, after what may have been a contentious election 
campaign, after the union has won the election, and perhaps after the 
employer's legal challenge to the union's certification has failed. It 
seems reasonable to believe, then, that bargaining which proceeds from 
voluntary recognition may be more productive, in a shorter time, than 
bargaining after an election. These circumstances are appropriately 
reflected in the bar period.
h. Comments Regarding Extending the Rule to the Unfair Labor Practice 
Context
    In the NPRM, the Board ``invite[d] 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.'' 87 FR 66909. No 
commenter supported the expansion of the proposed rule to unfair labor 
practice cases.
    In response to the NPRM's invitation, some commenters weighed in on 
this issue. The General Counsel and NRTWLDF both oppose extending the 
scope of the rule to unfair labor practice cases, albeit for different 
reasons.\237\ The General Counsel suggests that the Board, in the 
context of adjudication, should sharply limit the ability of employers 
to unilaterally withdraw recognition from unions in most circumstances, 
instead generally permitting withdrawal only based on the results of a 
Board election in which the incumbent union was defeated. This approach 
would largely obviate the need for a rule provision addressing 
unilateral withdrawals in the context of voluntary recognition.\238\ 
Meanwhile, NRTWLDF opposes extending the rule to unfair labor practice 
cases because, in its view, such an extension would assertedly 
exacerbate the unequal treatment between employer's ability to 
voluntary recognize a union and an employer's ability to withdraw 
recognition. We have already addressed the premise of this point, with 
which we disagree.
---------------------------------------------------------------------------

    \237\ Comments of GC Abruzzo; NRTWLDF.
    \238\ The General Counsel states that:
    [T]he Board should decide this issue via adjudication and, in an 
appropriate case, hold that, absent an incumbent union's disclaimer 
of interest or an agreement between an incumbent union and an 
employer, an employer may lawfully withdraw recognition from its 
employees' Sec[.] 9(a) representative based only on the results of 
an RM or RD election. Indeed, the General Counsel's proposal 
achieves the same result as the Board's suggested rule because, upon 
restoration of the traditional voluntary recognition bar, an RM or 
RD election would not be permitted to proceed until after a 
reasonable period for bargaining has elapsed.
    Comments of GC Abruzzo.
---------------------------------------------------------------------------

    As explained, we have decided not to expand the scope of the 
proposed rule. Thus, while the final rule rescinds current Section 
103.21, it codifies the voluntary-recognition bar only as it applies in 
the representation-case context. The Board is free in a future unfair 
labor practice case to apply the voluntary-recognition bar as 
established through adjudication, consistent with the Board's 
traditional approach to the issue, or to modify the doctrine if and as 
appropriate for the unfair labor practice context. We express no view 
on the General Counsel's position that the Board should limit 
employers' ability to unilaterally withdraw recognition from incumbent 
unions in all circumstances, not simply in the voluntary-recognition 
context.
i. Comments Regarding the Smith's Food Rule (Rival Union's Right To 
File Petition Based on Showing of Interest Pre-Dating Voluntary 
Recognition)
    Only the General Counsel weighed in on the question posed in the 
NPRM of whether the Board should retain or modify the rule set forth in 
Smith's Food, supra, 320 NLRB 844, which held that the voluntary-
recognition bar did not foreclose a rival union's election petition 
where that union had a 30 percent or greater showing of interest pre-
dating the voluntary recognition of another union. The Smith's Food 
approach ``ensure[s] that a union capable of filing a petition at the 
time of recognition is not denied the opportunity for an election 
because it underestimated a competing union's support, or it simply 
arrived at the Board's office a little too late. More importantly, [it] 
does not rigidly impose on employees the fortuitous consequences of the 
union's filing, a matter over which they have no control.'' Smith's 
Food.
    The General Counsel urges that we codify the principle of Smith's 
Food in the final rule, but with modifications. Namely, she asks that 
the Board

[[Page 62998]]

increase the threshold for the rival union's showing of support to 50 
percent and that the Board should only process the rival union's 
petition if it is filed within 14 days of the voluntary recognition.
    Given the paucity of comments on this issue, however, the Board has 
decided to preserve the status quo with respect to Smith's Food and to 
leave the issue for future consideration. Thus, a new provision in the 
final rule provides that the issue will remain one for adjudication, 
leaving Smith's Food in place as precedent, but not codifying the 
holding in that case. In a future case, the Board would remain free 
either to reaffirm Smith's Food or to consider modifying the approach 
reflected in that precedent, whether as the General Counsel proposes or 
in some other manner, in a concrete context where the parties (and any 
amici) can fully argue their positions.

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

1. Explanation for Adoption of NPRM Proposal To Rescind Sec.  103.22
    The Board has decided to rescind in toto Section 103.22. Prior to 
the promulgation of Section 103.22, the Board had long held, through 
adjudication, that unions should not have less favored status with 
respect to construction employers than they possess with employers 
outside of the construction industry.\239\ However, Section 103.22 
imprudently established a hard and fast rule to treat unions 
representing construction employees differently. Although Section 8(f) 
provides an alternative mechanism for a construction employer to 
voluntarily recognize a union, there is no statutory basis to deprive 
unions representing construction employees from utilizing the same 
procedure under Section 9(a) to obtain voluntary recognition--and its 
attendant benefits--that is available to all other unions. Moreover, in 
contrast to bargaining relationships outside of the construction 
industry, Section 103.22 uniquely permits challenges to be raised at 
any time to a construction employer's voluntary recognition of a union 
under Section 9(a), unless the parties have retained and preserved 
contemporaneous evidence of the union's initial majority status that it 
can produce and have satisfactorily authenticated in a representation 
proceeding, potentially decades after the initial 9(a) recognition.
---------------------------------------------------------------------------

    \239\ Casale Industries, 311 NLRB at 953; John Deklewa & Sons, 
282 NLRB at 1387 fn. 53.
---------------------------------------------------------------------------

    Furthermore, the Board recognizes the unique legal issues arising 
from the interplay between Section 8(f) and Section 9(a) and the 
particularly volatile nature of the construction industry. Accordingly, 
in rescinding Section 103.22 in toto, the Board has decided that it 
would not replace it with another rule but that it would resolve future 
issues that arise involving the proper standard for finding voluntary 
9(a) recognition in the construction industry through adjudication. In 
NLRB v. Bell Aerospace Co. Div. of Textron, the Supreme Court 
recognized ``that the Board is not precluded from announcing new 
principles in an adjudicative proceeding and that the choice between 
rulemaking and adjudication lies in the first instance within the 
Board's discretion.'' \240\ The Supreme Court continued that ``[i]t is 
true, of course, that rulemaking would provide the Board with a forum 
for soliciting the informed views of those affected in industry and 
labor before embarking on a new course. But surely the Board has 
discretion to decide that the adjudicative procedures in this case may 
also produce the relevant information necessary to mature and fair 
consideration of the issues.'' \241\
---------------------------------------------------------------------------

    \240\ 416 U.S. 267, 294 (1974).
    \241\ Id. at 295.
---------------------------------------------------------------------------

    The Board recognizes that returning to adjudication to set forth 
the proper standard for assessing whether parties had formed a 9(a) 
bargaining relationship in the construction industry would restore, for 
the moment, the Board's prior decision in Staunton Fuel and Casale 
Industries. To the extent that these decisions are in tension with 
prior decisions of the D.C. Circuit, as asserted by certain commenters, 
the Board has attempted to address and accommodate those concerns 
through its adjudication in Enright Seeding, an unfair labor practice 
case, and will make further refinements to the appropriate standard, as 
necessary, in adjudicating future cases.\242\
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    \242\ Our dissenting colleague questions why the Board did not 
adopt other suggested amendments to Sec. 103.22 in the final rule. 
Because we have decided to return to deciding issues related to Sec. 
9(a) recognition in the construction industry through adjudication, 
we have no occasion in this rulemaking proceeding to entertain other 
proposals for replacing Sec. 103.22 with different regulatory text 
or otherwise modifying pre-Sec 103.22 precedent. Accordingly, we 
leave the further refinement of this area of Board law to case-by-
case development.
---------------------------------------------------------------------------

2. Response to Comments
    The Board received numerous comments on the proposal to rescind 
Section 103.22. In deciding that recission of Section 103.22 in toto is 
appropriate, we have carefully reviewed and considered these comments, 
as discussed below. We have also carefully considered the views of our 
dissenting colleague.
a. Comments Regarding Positive Evidence To Support 9(a) Status
    In determining whether a union has rebutted the construction-
industry presumption of an 8(f) bargaining relationship, commenters 
posited that a written memorialization of 9(a) recognition, as required 
under the Board's decision in Staunton Fuel, is precisely the type of 
positive evidence a union should be able to rely on to support its 9(a) 
status, in accordance with the common law of contracts and 
evidence.\243\ These commenters argued that contract language serves an 
important role in distinguishing between the two types of legally 
distinct labor agreements in the construction industry and demonstrates 
the parties' intent to create a 9(a) relationship at the time of the 
contract's execution, should the union's 9(a) status ever be challenged 
years into the future. We agree that a written memorialization of the 
parties' agreement that a union has proffered the requisite showing to 
support 9(a) status is probative positive evidence and, importantly, 
distinguishes an 8(f) agreement from 9(a) recognition for all 
interested parties.
---------------------------------------------------------------------------

    \243\ Comments of AFL-CIO/NABTU; UA.
---------------------------------------------------------------------------

    One commenter countered that contract language expressing the 
parties' intent to form a 9(a) relationship should not be dispositive 
in demonstrating a union's majority support.\244\ Although we agree 
that intent itself is not dispositive of a union's 9(a) status, we 
recognize that the contract language is not only an expression of 
intent. It is a formal written acknowledgement that the conditions for 
forming the relationship have been satisfied, including that a union 
has proffered the requisite showing of majority support. As discussed 
further below, if the parties falsely made this assertion, an 
employer's grant of 9(a) recognition and a union's acceptance of that 
recognition are both unlawful. Additionally, the contract language is 
an agreement barring an employer from evading its bargaining 
obligations under the Act by falsely asserting that no 9(a) recognition 
had ever been granted.
---------------------------------------------------------------------------

    \244\ Comments of AGC.
---------------------------------------------------------------------------

b. Comments Regarding Contract Language Alone Creating 9(a) Status
    Several commenters posited that Section 103.22 was promulgated 
based on a fundamental mischaracterization of

[[Page 62999]]

the Board's decision in Staunton Fuel.\245\ These commenters contended 
that, although it is true that Staunton Fuel allowed contract language 
to serve as probative positive evidence that voluntary recognition had 
been granted pursuant to Section 9(a), Staunton Fuel does not provide 
for contract language alone to create a 9(a) relationship or allow 
contract language to substitute for a union showing or offering to show 
evidence of its majority support. Indeed, according to these 
commenters, if other evidence casts doubt on the assertion that 
majority support existed at the time of the purported grant of 9(a) 
recognition, the contract language necessarily fails to establish 9(a) 
status and, within the 10(b) period, a party can challenge the basis 
for a union's 9(a) recognition under Staunton Fuel. On the other hand, 
multiple commenters, along with our dissenting colleague, argued that, 
under Staunton Fuel, contract language standing alone does establish 
the existence of a 9(a) relationship.\246\ One commenter described 
Staunton Fuel as allowing fictional proof of majority status to 
substitute for reality.\247\ Other commenters asserted that nothing in 
the statutory language or legislative history suggested that 9(a) 
representation could be granted by a mere statement in a collective-
bargaining agreement, without proof of majority support.\248\ The 
effect of rescission of Section 103.22, according to one commenter, 
would be to create a rebuttable presumption of a 9(a) 
relationship.\249\
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    \245\ Comments of LA Federation; AFL-CIO/NABTU; UA.
    \246\ Comments of AGC; ABC; Chamber; CDW.
    \247\ Comments of ABC.
    \248\ Comments of CDW; NRTWLDF.
    \249\ Comments of AGC.
---------------------------------------------------------------------------

    As noted above, and as the Board stated in its recent decision in 
Enright Seeding, nothing in Staunton Fuel alters the basic premise that 
establishing a bargaining relationship under Section 9(a) requires a 
proffered showing of majority support for a union. 371 NLRB No. 127, 
slip op. at 3. The Board in Enright Seeding further recognized that 
``contractual language may serve as evidence of a union's status as a 
Section 9(a) majority representative only if it is true. 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 alone is insufficient to demonstrate the 
union's 9(a) status.'' Id. at 3-4.
    We agree with those commenters that recognized that Staunton Fuel 
does not provide that contract language alone creates a 9(a) 
relationship. Contract language simply serves as a contemporaneous 
memorialization of 9(a) recognition that can be relied upon in the 
absence of contrary evidence. The commenters suggesting otherwise 
failed to appreciate the distinction between contract language 
supporting a union's assertion of 9(a) status in accordance with 
Staunton Fuel from the argument that is not part of Staunton Fuel--that 
contract language itself establishes a 9(a) relationship.\250\
---------------------------------------------------------------------------

    \250\ Our dissenting colleague states that ``[t]he issue is, and 
has always been, whether contractual language alone is sufficient to 
prove the existence of a 9(a) relationship.'' We agree that, first 
and foremost, the 9(a) relationship depends on and requires that the 
union enjoy majority support among the unit employees, not on the 
parties having drafted certain language into an agreement.
---------------------------------------------------------------------------

c. Comments Regarding Labor Relations Stability and Employee Free 
Choice
    As multiple commenters noted, Section 103.22 denies a construction 
employer, a voluntarily recognized union representing construction 
employees, and the construction employees themselves, from having 
certainty as to the stability of the collective-bargaining relationship 
and does so at the expense of construction employees' free choice as to 
their bargaining representative. One commenter posited that Section 
103.22 was promulgated in response to unfounded fears that voluntary 
recognition in the construction industry is to the detriment of 
employee free choice, as Board case law prior to Section 103.22 already 
provided safeguards to protect employee free choice.\251\ According to 
this commenter, while Section 103.22 does nothing to protect employee 
free choice, the ever-present threat it creates to a union's 
representative status denies these employees the benefit of knowing 
that there would be stability in their bargaining representative and 
their terms and conditions of employment. In the same vein, other 
commenters argued that Section 103.22 actually deprives employees of 
their free choice, because under 103.22 a union that had been properly 
designated as their 9(a) bargaining representative could be challenged 
as lacking majority support at any time.\252\ We agree with these 
commenters that Section 103.22 detrimentally affects both labor 
relations stability and employee free choice.
---------------------------------------------------------------------------

    \251\ Comments of LA Federation.
    \252\ Comments of AFL-CIO/NABTU; UA.
---------------------------------------------------------------------------

    At the same time, other commenters asserted that, prior to Section 
103.22, the Board had placed too much emphasis on labor relations 
stability over employee free choice and, in doing so, unjustly deprived 
employees from being able to provide input into the selection of their 
bargaining representative.\253\ One commenter argued that the Board had 
placed the interests of unions in the contract bar above those of 
employees who seek to rid themselves of a minority union that has never 
been subjected to a vote, particularly because of the potential 
difficulty in filing a decertification petition.\254\ However, we 
believe that these comments not only minimize the Act's important 
policy goal of promoting labor relations stability but also needlessly 
dismiss the harm that Section 103.22 does to employee free choice. As 
discussed further below, the Board already had sufficient safeguards--
independent of Section 103.22--to allow employees at the appropriate 
time to challenge a union's 9(a) status for lacking majority support, 
including by contacting a Board regional office and timely filing a 
decertification petition. Nonetheless, when a majority of construction 
employees in an appropriate unit have designated a union as their 
collective-bargaining representative, those employees should be able to 
enjoy the attendant benefits of 9(a) recognition, including stability 
as to their bargaining representative.
---------------------------------------------------------------------------

    \253\ Comments of AGC; Chamber. Our dissenting colleague 
similarly expresses concern that, by rescinding Sec. 103.22, the 
majority risks allowing construction industry employers and unions 
to enter into ``9(a) bargaining relationships without regard to the 
will of the majority of the employer's employees.''
    \254\ Comments of NRTWLDF.
---------------------------------------------------------------------------

d. Comments Regarding Regional Directors' Assessment of 9(a) Status
    Multiple commenters noted that, prior to Section 103.22, regional 
directors had been afforded discretion to evaluate the evidence in a 
specific case and assess whether a union had successfully rebutted the 
8(f) presumption.\255\ One commenter recognized that, even prior to 
Section 103.22, regional directors did not have to blindly accept the 
contract language but were permitted to assess evidence that calls into 
question whether a union had showed or offered to show its proof of 
majority support.\256\
---------------------------------------------------------------------------

    \255\ Comments of LA Federation; UA.
    \256\ Comments of UA.
---------------------------------------------------------------------------

    We agree with these commenters that, prior to Section 103.22, 
regional directors were appropriately afforded discretion to determine 
whether the presumption of 8(f) recognition in the construction 
industry had been rebutted. Unlike the per se approach of Section 
103.22, which outright prohibits the application of the voluntary

[[Page 63000]]

recognition bar and contract bar rules in the construction industry in 
the absence of what could be very old authorization cards or other 
documents, we believe that the better approach is to afford regional 
directors the discretion to determine whether 9(a) recognition was 
properly granted. As discussed further below, if 9(a) recognition was 
granted despite the union not enjoying majority support, the Board 
already has an effective process to resolve such allegations even 
without Section 103.22.
e. Comments Regarding District of Columbia Circuit Precedent on the Use 
of Contract Language
    Some commenters discussed whether Section 103.22 is required under 
District of Columbia Circuit precedent. One commenter pointed out that 
the District of Columbia Circuit has not directly ruled on whether 
contract language alone is sufficient to support a 9(a) relationship in 
the construction industry in the absence of contrary evidence that 
calls into question the veracity of the contract language.\257\ 
According to this commenter, in both Nova Plumbing and Colorado Fire 
Sprinkler, the court found only that the contract language in the 
specific circumstances of those two cases was insufficient to show that 
the union enjoyed majority status at the time of recognition because in 
both cases other evidence existed that called into question the union's 
majority status. In fact, the District of Columbia Circuit suggested in 
Allied Mechanical Services, albeit in dicta, that contract language 
alone potentially could be sufficient to establish majority support for 
9(a) recognition in the absence of contrary evidence. We therefore 
agree with this commenter.
---------------------------------------------------------------------------

    \257\ Comments of AFL-CIO/NABTU.
---------------------------------------------------------------------------

    As discussed above, the District of Columbia Circuit has recognized 
that contract language cannot support 9(a) recognition where it is 
shown not to be true, such as where the parties claim there was initial 
majority support even before a single employee had been hired. In Nova 
Plumbing, 330 F.3d at 537-538, the District of Columbia Circuit pointed 
to strong evidence in the record that contradicted the contractual 
language. Id. at 533. In particular, the record established that senior 
employees who had been longtime union members opposed the union 
representing them with this employer and also showed that 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. Id. at 537. 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.'' 
Id.
    Subsequently, in Allied Mechanical Services, Inc. v. NLRB, the 
District of Columbia 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. 668 F.3d at 766 (``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).
    Similarly, the District of Columbia Circuit in Colorado Fire 
Sprinkler 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 it was undisputed that not a single employee had been hired at 
the time the parties initially executed their agreement containing that 
language. 891 F.3d at 1036. In fact, as the court pointed out, ``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. Id. at 1041. In the absence of such contrary 
evidence casting doubt on the union's initial majority support, 
however, the District of Columbia Circuit has not challenged the 
Board's reliance on contract language as a written memorialization of 
the parties' acknowledgment that the construction employer had granted 
a union 9(a) recognition.
    On the other hand, some commenters have argued for a much broader 
reading of these District of Columbia Circuit decisions and claimed 
that the Board has ignored the position of the District of Columbia 
Circuit regarding the extent to which contract language can be 
considered in finding 9(a) status and made little discernible effort in 
resolving the conflicting views.\258\ We think this argument is 
meritless. To the extent these commenters assert that the District of 
Columbia Circuit has required a union to show or offer to show evidence 
of majority support to find a 9(a) relationship in the construction 
industry, we do not take issue with that assessment. However, the 
contract language simply serves as contemporaneous evidence of the 
union's support from the time 9(a) recognition was initially granted. 
For that reason, the argument from one commenter that rescinding 
Section 103.22 could violate the Administrative Procedure Act because 
it would be contrary to District of Columbia Circuit decisions is not 
persuasive.\259\ Moreover, in Enright Seeding, the Board clarified that 
``[i]f 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 alone is insufficient to 
demonstrate the union's 9(a) status.'' \260\ To the extent Board law is 
found to not align with court decisions applying Staunton Fuel, the 
Board is able to resolve such concerns through adjudication.
---------------------------------------------------------------------------

    \258\ Comments of ABC; Chamber; CDW. Our dissenting colleague 
adopts a similar reading of District of Columbia Circuit precedent.
    \259\ Reply comments of NRTWLDF.
    \260\ 371 NLRB No. 127, slip op. at 3-4.
---------------------------------------------------------------------------

f. Comments Regarding Unlawful Employer-Union Collusion
    Several commenters posited that Section 103.22 is unnecessary 
because, even before its promulgation, it was already unlawful for a 
construction employer to collude and falsely enter into an agreement 
with a union recognizing it as having majority support and, 
additionally, that an unfair labor practice proceeding is the proper 
forum for resolving whether 9(a) recognition had been improperly 
granted to a union as it contains the proper evidentiary and procedural 
safeguards to litigate the issue.\261\ One commenter noted that, in 
representation proceedings, the Board does not allow extrinsic evidence 
challenging the propriety of a labor agreement or litigation of unfair 
labor practices, including whether a union lacked majority status at 
the time it was recognized as the 9(a) representative.\262\
---------------------------------------------------------------------------

    \261\ Comments of AFL-CIO/NABTU; LA Federation; UA.
    \262\ Comments of AFL-CIO/NABTU.
---------------------------------------------------------------------------

    On the other hand, some commenters claimed that rescission of 
Section 103.22 would give construction employers and unions a green 
light to collude and that there is a long history of backroom deals 
being made with favored unions in disregard of employee

[[Page 63001]]

free choice.\263\ Other commenters asserted that the possibility of an 
unfair labor practice proceeding is not a sufficient process for 
resolving an unlawful grant of 9(a) recognition because no unfair labor 
practice is committed by a construction employer merely granting 9(a) 
recognition if no attempt is made to improperly enforce an 8(f) 
agreement as a 9(a) agreement.\264\ Another commenter suggested that 
restricting litigation of whether 9(a) recognition was improperly 
granted to unfair labor proceedings ignores reality and is written from 
a position of institutional privilege as employees do not have the 
knowledge, inside information, or institutional resources to file an 
unfair labor practice charge.\265\
---------------------------------------------------------------------------

    \263\ Comments of AGC; NRTWLDF. Our dissenting colleague raises 
similar concerns about the possibility of collusion, observing that 
rescinding Sec. 103.22 risks a scenario where parties ``will 
routinely be in violation of Sec. 8(a)(2) and 8(b)(1)(A)--and, if 
their contract includes union security, of Sec[.] 8(a)(3) and 
8(b)(2) as well.''
    \264\ Comments of ABC.
    \265\ Reply comments of NRTWLDF.
---------------------------------------------------------------------------

    Although we are very mindful of the importance of preventing 
unlawful collusion, and the deleterious effect that such collusion can 
have on employees' Section 7 rights, we disagree with our dissenting 
colleague and the commenters who claimed that Section 103.22 serves as 
a reasonable safeguard. Instead, we agree with the commenters that 
asserted that the most appropriate forum for challenging any claims of 
collusion is the same with or without Section 103.22--an unfair labor 
practice proceeding alleging violations of Sections 8(a)(2) and (1) and 
8(b)(1)(A).\266\
---------------------------------------------------------------------------

    \266\ Although unfair labor practice proceedings are available 
for challenging any instances of collusion, whether in the 
construction industry or elsewhere, we do not agree with our 
dissenting colleague's speculation that rescinding Sec. 103.22 will 
increase the likelihood that such unfair labor practices will be 
committed. Our dissenting colleague also claims that Sec. 103.22 
protects employees' right to petition for an election where no 
lawful Sec. 9(a) relationship has been formed. However, we see no 
reason to question the parties' written memorialization of the 
union's 9(a) recognition and majority support in the absence of 
contrary evidence. If such contrary evidence exists to show that the 
union lacked majority support, there is no question that the parties 
violated the Act. In those instances, even in the absence of Sec. 
103.22, an employee and/or rival union will be free to file a timely 
petition and challenge the purported 9(a) recognition. See Casale, 
311 NLRB at 953.
---------------------------------------------------------------------------

    Representation hearings, unlike those for unfair labor practices, 
are nonadversarial and do not offer the evidentiary and procedural 
safeguards, such as applying evidentiary rules or making credibility 
determinations, that should exist for reviewing the type of evidence 
necessary to challenge a construction employer's unlawful grant of 9(a) 
recognition to a union that lacked majority support. Contrary to the 
claim of one commenter,\267\ regardless of whether an 8(f) agreement is 
enforced as a 9(a) agreement, an employer's grant of 9(a) recognition 
and a union's acceptance of it when it does not have majority support--
across all industries, including construction--is an unfair labor 
practice by both the employer and the union. We also disagree with the 
unfounded claim of the commenter that employees are readily able to 
file representation petitions but do not have the expertise to file 
unfair labor practice charges.\268\ The Board's regional offices are 
equipped to help employees with all their business before the Board, 
including the filing of unfair labor practice charges, which the 
regional office will then investigate and, if deemed meritorious, 
litigate on behalf of the charging party.
---------------------------------------------------------------------------

    \267\ Comments of NRTWLDF.
    \268\ Reply comments of NRTWLDF.
---------------------------------------------------------------------------

g. Comments Regarding Application of Section 10(b) 6-Month Limitations 
Period to Challenges to Construction-Industry Bargaining Relationships
    Multiple commenters expressed concerns about Section 103.22's 
removal of a limitations period for challenging a voluntarily 
recognized bargaining relationship in the construction industry, which 
resulted from the Board's overruling of Casale Industries as part of 
the promulgation of Section 103.22.\269\ These commenters referred to 
how construction employers and unions are now required to maintain 
evidence of the union's initial 9(a) recognition for years, even 
decades, even though recollections and documentary evidence would 
reasonably be expected to fade and dissipate over time or otherwise be 
incomplete.\270\ As the General Counsel pointed out, the Board would be 
in the unenviable position of assessing the veracity of evidence long 
after card signers are likely no longer available or accessible.\271\ 
One commenter noted that the removal of a limitations period is 
contrary to deeply held notions of equity in the United States, as 
reflected by statutes of limitations routinely being included in or 
imputed to laws to delineate the period of time within which a cause of 
action must be brought.\272\
---------------------------------------------------------------------------

    \269\ Comments of AFL-CIO/NABTU; GC Abruzzo; LA Federation.
    \270\ Comments of AFL-CIO/NABTU; GC Abruzzo; UA.
    \271\ Comments of GC Abruzzo.
    \272\ Comments of UA.
---------------------------------------------------------------------------

    According to one commenter, Section 103.22 did not need to remove 
the limitations period precisely because the 9(a) recognition must be 
unequivocally provided for in writing, thereby providing employees with 
prompt notice that their union has obtained 9(a) status and that the 
clock has started for pursuing a challenge to that recognition.\273\ 
Another commenter argued that a construction employee would have no 
basis to assume that a labor agreement was entered into pursuant to 
Section 8(f), simply because of the legal presumption of 8(f) status, 
and that the employee should bear the risk of making such an errant 
assumption if it kept them from filing a representation petition within 
the 6-month limitations period.\274\ That commenter further postulated 
that, if a construction employee is sophisticated enough to be aware of 
the presumption of 8(f) recognition in the construction industry, the 
same employee would reasonably understand the importance of filing an 
election petition within the limitations period.
---------------------------------------------------------------------------

    \273\ Comments of LA Federation.
    \274\ Comments of UA.
---------------------------------------------------------------------------

    Similarly, one commenter pointed out that, even if an employee 
fails to file a petition within the initial limitations period, the 
contract bar only lasts for up to 3 years, and the employee could 
always file a petition during the window period if it seeks to 
challenge the union's majority support.\275\ Another commenter averred 
that, in the absence of the Casale limitations period, relationships 
that should be marked by stability are instead strained by uncertainty 
as to whether an employer, for reasons unrelated to employee free 
choice, will attempt to terminate or disrupt the relationship by filing 
an RM petition.\276\ This commenter also noted that, paradoxically, the 
longer the relationship, the more difficult it will be to produce the 
requisite proof of initial majority support making that relationship 
least stable and most vulnerable to challenge, despite the Supreme 
Court's holding in Bryan Manufacturing recognizing the limited period 
during which challenges can be brought to a union's initial grant of 
9(a) recognition.
---------------------------------------------------------------------------

    \275\ Comments of AFL-CIO/NABTU.
    \276\ Id.
---------------------------------------------------------------------------

    On the other hand, both our dissenting colleague and some 
commenters asserted that the Board did not provide an explanation in 
the NPRM for why the recordkeeping requirement under Section 103.22 
that required parties in the construction industry to retain 
indefinitely positive evidence of a union's initial 9(a) recognition is

[[Page 63002]]

onerous or unreasonable.\277\ A commenter and our dissenting colleague 
suggested that Section 103.22 does nothing to imperil unions that truly 
enjoy majority support and that a recordkeeping burden cannot trump 
employees' Section 7 rights.\278\ Our dissenting colleague noted that 
Section 103.22 applied prospectively only. Another commenter noted that 
any recordkeeping burden imposed by Section 103.22 is only relevant if 
a construction employer or union want to be able to insulate a 
voluntary recognition from challenge under the Board's contract bar 
rules.\279\ One commenter cited the Board's recordkeeping requirements 
in other contexts, such as with respect to dues deduction authorization 
cards or union membership forms.\280\ Additionally, a commenter noted 
that no examples were given in the NPRM of where the loss of a 
collective-bargaining relationship had actually occurred since Section 
103.22 was adopted.\281\
---------------------------------------------------------------------------

    \277\ Comments of AGC.
    \278\ Comments of CDW; NRTWLDF.
    \279\ Comments of NRTWLDF.
    \280\ Id.
    \281\ Reply comments of NRTWLDF.
---------------------------------------------------------------------------

    We agree with those commenters who expressed concerns about the 
impact on labor relations stability and employee free choice by not 
having a limitations period on challenges to a union's 9(a) status. It 
is crucial to collective bargaining that parties are guaranteed some 
stability as to their bargaining relationship and know that it cannot 
be challenged at any time. Employees who have designated a union as 
their bargaining representative deserve as much. Our dissenting 
colleague and those commenters who claim that it is not much of a 
burden for a construction employer and union to retain indefinitely 
positive evidence of a union's majority support fail to appreciate the 
likelihood that such evidence could go missing or disappear and that, 
even if retained, may only raise more questions than it answers. 
Although Section 103.22 applied prospectively only, it could still 
cause significant disruption to longstanding collective-bargaining 
relationships years or even decades into the future for collective-
bargaining relationships first formed after April 2020. In addition, 
unlike dues deduction authorization and union membership forms, which 
are only relevant if the employee who signed the form is still working 
for the employer, the evidence of a union's initial 9(a) recognition 
required under Section 103.22 could be based on support from employees 
who have long since stopped working for the employer but would 
nonetheless create a rebuttable presumption of the union's continued 
majority support. It could be practically impossible years later to 
assess the authenticity of any such evidence.
    We reject the claim of one commenter that the retention of the 
evidence of a union's initial 9(a) recognition must not be a burden 
because no examples were given in the NPRM of where the loss of a 
collective-bargaining relationship had occurred.\282\ This commenter 
ignored how the most significant burden imposed by Section 103.22 is 
not in the present but years down the road. Over time, it is inevitable 
that memories will fade and witnesses will disappear. As the Supreme 
Court recognized in Bryan Manufacturing, the Section 10(b) limitations 
period is appropriately applied to voluntary recognitions--including 
those in the construction industry--to promote stability in bargaining 
relations and prevent the Board from being bogged down in evidentiary 
challenges that would ultimately prove impossible to resolve. 
Accordingly, in rescinding Section 103.22, we reinstate the Board's 
previous case law in Casale and its progeny.
---------------------------------------------------------------------------

    \282\ Id.
---------------------------------------------------------------------------

h. Comments Regarding Uniqueness of the Construction Industry
    Multiple commenters had varying perspectives on whether unions 
representing construction employees should be treated the same as other 
unions. Relying on the longstanding principle articulated in Deklewa, 
several commenters argued that unions should not be treated less 
favorably when representing construction employees as opposed to 
employees in other industries.\283\ One commenter pointed to the lack 
of any evidence that Congress intended for unions representing 
construction employees to be uniquely burdened in gaining 9(a) 
status.\284\ This commenter asserted that Staunton Fuel merely sought 
to put these unions on an equal footing as all other unions seeking 
voluntary recognition under Section 9. As another commenter put it, 
until the promulgation of Section 103.22, the Board had long recognized 
that Section 8(f) did not deprive employees in the construction 
industry from having the same opportunity to designate a union as their 
bargaining representative as those who work in other industries.\285\ 
This commenter argued that, as in all other industries, employers in 
the construction industry must be allowed to develop long-lasting 
bargaining relationships with the unions representing their employees 
in order to provide a level of certainty and industrial stability. One 
other commenter asserted that, if the contract bar rules in effect 
prior to Section 103.22, which reflect decades of experience under the 
Act, adequately protect the free choice of employees working in 
nonconstruction industries, they also adequately protect the free 
choice of employees in the construction industry.\286\
---------------------------------------------------------------------------

    \283\ Comments of AFL-CIO/NABTU; LA Federation; UA.
    \284\ Comments of UA.
    \285\ Comments of LA Federation.
    \286\ Comments of AFL-CIO/NABTU.
---------------------------------------------------------------------------

    On the other hand, some commenters stated that unions representing 
employees in the construction industry are unique, as evidenced by the 
very legality of 8(f) agreements.\287\ One commenter noted the 
prevalence of multiemployer bargaining within the construction 
industry.\288\ Another claimed that the realities of the construction 
industry dictated the automatic addition of Staunton Fuel language into 
contracts providing for 9(a) recognition even where the union had not 
obtained majority support.\289\ Several commenters asserted that 
Congress adopted Section 8(f) because of the need for temporary, fluid, 
and short-term employment common in the construction industry where 
proving majority support would be difficult, instead of the permanent, 
stable, and long-term employment relationships that require proof of 
majority support under Section 9(a).\290\ A commenter postulated that, 
if a construction workforce is not temporary, the employment 
relationship is more akin to those in nonconstruction industries and 
the union should have to prove its majority status through the standard 
9(a) process.\291\
---------------------------------------------------------------------------

    \287\ Comments of AGC; NRTWLDF.
    \288\ Comments of AGC.
    \289\ Comments of Chamber.
    \290\ Comments of ABC; CDW; Greszler; reply comments of NRWLDF.
    \291\ Reply comments of NRTWLDF.
---------------------------------------------------------------------------

    As we have explained above, we agree with the principle articulated 
in Deklewa that unions representing construction employees should not 
be treated less favorably with respect to the opportunity to obtain 
voluntary recognition than other unions. There is no indication in the 
statutory text of Section 8(f) or its legislative history to suggest 
that Congress, by granting construction employers and unions an 
alternative path to recognition through

[[Page 63003]]

8(f) agreements, simultaneously intended to deny them from utilizing a 
common method by which unions had obtained recognition--voluntary 
recognition by an employer. Furthermore, the prevalence of 
multiemployer bargaining in the construction industry does not alter 
the legitimate prerogative of a construction employer, even one 
participating in multiemployer bargaining, to voluntarily grant 9(a) 
recognition to a union with majority support.
    On the same note, as discussed above, the mere adoption of contract 
language in an agreement does not confer 9(a) status. Both a 
construction employer and a union that insert language into an 
agreement asserting 9(a) status where a union does not enjoy majority 
support commit violations of the Act. We agree with those commenters 
that contend that the Board's proper response in those circumstances is 
for the violations to be litigated as unfair labor practices, not for 
the Board to destabilize collective-bargaining relationships and 
interfere with employee free choice for those parties that have 
properly abided by the law. To the extent that one commenter is correct 
that the construction industry has relied less on temporary, fluid, and 
short-term employment, there is even more reason for unions 
representing construction employees to enjoy the same rights as all 
other unions in obtaining 9(a) status. Permanent and long-term 
employment relationships benefit the most from the stability that comes 
with the Board's voluntary recognition bar and contract bar rules. 
Where a construction employer has voluntarily granted 9(a) recognition 
to a union or the parties have negotiated a new collective-bargaining 
agreement, it is vital that the parties' bargaining relationship cannot 
be challenged at a moment's notice.
i. Comments Regarding Other Federal Legislative Enactments
    We reject one commenter's argument that we should be guided by how 
other federal legislative enactments might affect the proliferation of 
8(f) agreements.\292\ This commenter posited that the 2021 
Infrastructure Investment and Jobs Act, Public Law 117-58, will require 
more 8(f) agreements to be executed so that contractors can partake in 
federally funded contracts. This commenter claimed that employees 
working under 8(f) agreements will be forced to have a significant 
portion of their wages sacrificed to insolvent construction-industry 
union pension plans because they will not be employed long enough to 
become vested to receive pension benefits and that employers may become 
subject to liability for underfunded multiemployer pension plans. This 
commenter also asserted that special financial assistance afforded to 
multiemployer pension plans and the Pension Benefit Guaranty 
Corporation will affect taxpayers and urged the Board to put this 
rulemaking on hold for an economic analysis of its impact.
---------------------------------------------------------------------------

    \292\ Comments of Greszler.
---------------------------------------------------------------------------

    Our principal concern is with promoting the policies of the Act, 
regardless of the extent to which other federal legislative enactments, 
including the 2021 Infrastructure Investment and Jobs Act, have 
affected or will affect the number of 8(f) agreements. Nonetheless, we 
have not been presented with any evidence that the number of 8(f) 
agreements have risen or that it has had an actual impact on the 
administration of multiemployer pension plans and, therefore, refrain 
from weighing in on the commenter's speculation. In addition, the claim 
that employees working under 8(f) agreements will have their wages 
deducted to make contributions to insolvent construction-industry union 
pension plans and that this will have to be paid for in the future by 
taxpayers is purely conjectural. Moreover, even if these assertions 
were true, they would be true even if Section 103.22 continued in 
effect because, as the commenter notes, these considerations are just 
as relevant if a union is recognized under Section 8(f) as under 
Section 9(a). To the extent the commenter disapproves of 8(f) 
agreements generally, that is an issue for Congress.
j. Comments Regarding the Board's Promulgation of Section 103.22
    One commenter noted that the promulgation of Section 103.22 was 
flawed in its overruling of Casale because nowhere in the 2019 NPRM was 
that case cited or any question raised about the appropriateness of the 
then-existing limitations period, giving commenters no opportunity to 
present their views on this issue.\293\ This commenter argued that the 
decision in the April 2020 rule to overturn Casale was not a logical 
outgrowth of the 2019 NPRM and that, accordingly, the April 2020 rule 
was promulgated in violation of the APA. The commenter also claimed 
that Section 103.22 was not supported by a reasoned analysis because no 
case was cited nor were any examples provided in which employee free 
choice was undermined by the Board applying its pre-Section 103.22 
contract bar rules to an agreement entered into between a construction 
employer and a union recognized as the 9(a) representative.
---------------------------------------------------------------------------

    \293\ Comments of AFL-CIO/NABTU.
---------------------------------------------------------------------------

    We acknowledge that the overruling of Casale was done without 
providing any notice in the 2019 NPRM and that it was not a logical 
outgrowth of the proposed rule that was ultimately promulgated as 
Section 103.22. We agree with the commenter that interested parties had 
no reason to know to provide comments on the possibility of Casale 
being overruled. However, regardless of the propriety of the Board 
overruling Casale as part of the promulgation of Section 103.22 without 
having provided advance notice to the public, we base our decision to 
rescind Section 103.22, and restore Casale, on policy grounds--
specifically, that unions representing construction employees should 
not be treated less favorably than other unions and should not be 
required to maintain indefinitely positive evidence to support the 
initial 9(a) recognition, outside of a written memorialization of a 
construction employer's 9(a) recognition of a union, in the absence of 
contrary evidence of the union's majority support.\294\
---------------------------------------------------------------------------

    \294\ Accordingly, we are unpersuaded by our dissenting 
colleague's view that the 2019 NPRM implicitly raised the 
possibility of Casale being overruled on the grounds that the 
``issue was squarely raised in public comments.'' Even though two 
commenters sua sponte raised Casale in their comments to the 2019 
NPRM, other commenters with relevant insight into the application of 
Casale had no reason to provide comments about the effects of the 
Board overruling Casale because of the content of the 2019 NPRM. 
Nonetheless, we return to Casale for policy reasons.
---------------------------------------------------------------------------

k. Comments Suggesting Modifications to the Proposed Rule
    Multiple commenters proposed modifications to the proposed rule, 
instead of rescinding Section 103.22 in toto. One commenter recommended 
that the Board modify Section 103.22 instead of getting rid of it 
entirely.\295\ This commenter argued that the Board should restore 
Staunton Fuel as applied to timely RM petitions, thereby barring a 
construction employer from challenging its own initial grant of 9(a)

[[Page 63004]]

recognition to a union, but not to timely RD and RC petitions filed by 
a bargaining-unit employee or rival union. The same commenter also 
urged the Board to restore the 6-month limitations period under Casale 
but clarify that it does not begin to run until at least one statutory 
employee is hired or otherwise has constructive notice that the 
employer granted 9(a) recognition to a union without majority 
support.\296\
---------------------------------------------------------------------------

    \295\ Comments of GC Abruzzo. As noted above, see supra fn. 243, 
we reject our dissenting colleague's suggestion that we did not 
sufficiently consider this alternative. To the contrary, we 
recognize the competing considerations raised by these commenters 
and that reevaluating the standard for voluntary 9(a) recognition in 
the construction industry may be prudent in the future. Precisely 
for that reason, we have determined that returning to deciding 
issues in this area of Board law through adjudication is the best 
course. If the Board is presented with a case where revising the 
current standard is found to best effectuate the policies of the 
Act, including both promoting labor relations stability and 
protecting employee free choice, the Board will be able to do so in 
that case.
    \296\ Id.
---------------------------------------------------------------------------

    Another commenter argued that resolving challenges to the initial 
grant of 9(a) recognition in a representation proceeding under Casale 
was unique to the construction industry and that the better rule would 
be to require claims that the union lacked majority status at the time 
it was first recognized to be litigated exclusively in unfair labor 
practice proceedings, as is the case with unions representing employees 
in all other industries.\297\ One commenter suggested expanding Section 
103.22 beyond representation cases to require a union representing 
construction employees to have to provide positive evidence of its 
initial grant of 9(a) recognition in unfair labor practice proceedings 
to justify its presumption of continued majority support, for instance 
in cases where a construction employer is alleged to have a duty to 
bargain with a union upon expiration of the parties' collective-
bargaining agreement.\298\
---------------------------------------------------------------------------

    \297\ Comments of AFL-CIO/NABTU.
    \298\ Comments of AGC.
---------------------------------------------------------------------------

    As explained more fully above, in considering these suggested 
modifications to Section 103.22, we have decided to rescind Section 
103.22 in toto and not to replace it with a new rule regarding the 
application of the voluntary-recognition and contract bars to the 
construction industry. We have concluded that a replacement rule is 
unwarranted. The same policies and practices governing the voluntary-
recognition and contract bars outside of the construction industry 
should apply with equal force to unions representing or seeking to 
represent employees in the construction industry--except for where 
different processes are either required by Section 8(f) or specifically 
provided for in Board case law predating the adoption of Section 
103.22. We continue to rely on the critical principle articulated by 
the Board in Deklewa that, with respect to voluntary recognition, 
``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.'' 
282 NLRB at 1387 fn. 53.
    Rescission of Section 103.22 in toto without replacement also has 
other benefits. As noted above, we agree with the comments asserting 
that regional directors should again be afforded the discretion they 
had prior to Section 103.22 to evaluate whether to process a 
construction industry petition based on the evidence offered by the 
parties. The factual circumstances of a specific case are uniquely 
important to resolving construction industry cases because of the 
special considerations required under Section 8(f), including whether a 
union representing construction employees had successfully demonstrated 
its majority status to rebut the 8(f) presumption. Regional directors 
will return to having that discretion in the absence of a replacement 
rule. Rescission in toto without replacement will also allow the Board 
to use adjudication (rather than further rulemaking) in deciding 
whether to revisit, at some point in the future, the Board's pre-
Section 103.22 construction industry case law, which we reinstate 
through this rulemaking.\299\ Finally, the Board received no comments 
specifically urging the use of rulemaking instead of adjudication to 
set forth and develop its rules for processing construction industry 
petitions.
---------------------------------------------------------------------------

    \299\ Bell Aerospace, 416 U.S. at 294.
---------------------------------------------------------------------------

VI. Response to Dissent

    Our dissenting colleague advances several reasons for declining to 
join the majority in rescinding the April 2020 rule and replacing its 
provisions addressing the blocking charge policy and voluntary-
recognition bar doctrine. Our colleague primarily defends the April 
2020 rule on policy grounds, arguing that it better promotes employee 
free choice than will the final rule. The majority of our colleague's 
arguments are specific to the individual subjects covered by the final 
rule, and we have already addressed and rebutted many of these 
arguments above. The balance of the dissent makes four broader 
arguments. As we explain below, we are unpersuaded that any of these 
arguments provides an adequate justification for retaining the April 
2020 rule or for declining to adopt the final rule we issue now.
    First, our dissenting colleague contends that the majority has 
failed to demonstrate the existence of changed circumstances justifying 
the rescission of the April 2020 rule and replacement of its provisions 
addressing the blocking charge policy and voluntary-recognition bar 
doctrine. Our colleague argues that the final rule is an example of 
``needless policy oscillation that tends to upset the settled 
expectations of the Agency's stakeholders.'' In addition, he argues 
that the majority has failed to ``present any evidence that the 2020 
Rule has infringed on employees' rights'' or that ``the 2020 Rule has 
failed to protect employees' rights as intended.''
    As discussed more extensively above, we strongly disagree with our 
colleague's characterization of the final rule and its justification. 
As an initial matter, we are of the view that it was the April 2020 
rule that initiated a sharp break with existing practice and ushered in 
a new era of instability in the area of representation-case law and 
procedure at issue in this rulemaking proceeding. By restoring the 
Board's historical blocking charge policy, pre-Dana voluntary-
recognition bar doctrine, and firmly established recognition standards 
in the construction industry, the final rule will again bring the 
Board's representation-case procedures in alignment with what had been 
longstanding practices.
    As for our colleague's contention that we are disturbing the 
settled expectations of Agency stakeholders, our review of the 
extensive public comments we received during this rulemaking proceeding 
suggests otherwise. Many commenters expressed significant frustrations 
with the 2020 rule and advanced persuasive policy and legal arguments 
for restoring prior Board law. For the reasons detailed above, we found 
merit in those commenters' views. While we also received numerous 
comments that expressed support for the 2020 rule, we are of the view 
that the final rule, which merely returns to the familiar standards 
that preceded the 2020 rule, will not prove unduly disruptive. In any 
case, as discussed above, we find any costs associated with changing 
course justified by the importance of returning to policies which 
better comport with the Board's statutory obligations. The Board must 
conduct elections under laboratory conditions and give effect to 
employees' free and fair designations of support for their chosen 
bargaining representatives.
    Our dissenting colleague's argument that we present no evidence 
that the 2020 rule infringed on employees' rights or failed to operate 
as intended is incorrect. Although our justification for rescinding the 
2020 rule is ultimately rooted in our judgment that it is inconsistent 
with the policies underlying the Act, we have also highlighted data and 
empirical evidence that support our decision. And despite our 
colleague's critique, both he and the 2020 Board principally defend the 
2020

[[Page 63005]]

rule on policy grounds. In short, our colleague offers no evidence that 
persuades us that we must adhere to the 2020 rule or that we should 
reconsider our decision to adopt the final rule.
    Next, our colleague criticizes the majority's policy justifications 
for the final rule. Our colleague argues that ``[t]he 2020 Rule put 
provisions in place to protect employees' choice of representative and 
their ability to `voice' that choice through the established, preferred 
method of Board-conducted secret-ballot elections'' and that the 
``removal of these protections today is directly at odds with the 
Board's mandate under the NLRA.'' For the reasons advanced above, we 
respectfully disagree with our colleague's suggestion that the April 
2020 rule's provisions represented the best accommodation of the 
Board's statutory interests. Instead, we are of the view that the final 
rule does a better job balancing the Board's obligations to protect 
employee free choice, preserve laboratory conditions in Board-conducted 
elections, and resolve questions of representation fairly and 
expeditiously.
    Relatedly, our colleague criticizes the title of the final rule on 
the basis that ``the 2024 Rule appears to value `fair choice' . . . 
over the essential policy of employee free choice that the 2020 Rule 
was designed to protect.'' Our colleague's argument proves too much. We 
refer to both ``fair choice'' and ``free choice'' throughout the 
preamble to this rule. We use both phrases because we aim to capture 
the multiple, competing statutory interests that the Act requires the 
Board to consider and accommodate when developing its representation-
case procedures. As we have argued, by maintaining such a narrow view 
as to what constitutes employee ``free choice,'' the 2020 rule gave 
short shrift to the Board's equally significant obligations to conduct 
fair elections and protect its election machinery, ensure that 
employees are shielded from coercion, and give effect to valid 
expressions of majority support for bargaining representatives. By 
focusing on ``fair choice'' and ``employee voice,'' we aim to place the 
emphasis where it belongs: on employees' fundamental Section 7 rights 
``to self-organization, to form, join, or assist labor organizations, 
to bargain collectively through representatives of their own choosing'' 
and ``to refrain from'' any of these activities, 29 U.S.C. 157, and on 
the Board's obligation to determine whether 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).
    Finally, our colleague observes that, following the Supreme Court's 
recent decision in Loper Bright Enterprises v. Raimondo,\300\ ``it is 
an open question to what extent reviewing courts must afford deference 
to my colleagues' decision to repeal the 2020 Rule and promulgate a new 
rule in its place.'' We acknowledge our colleague's view that the 
effect of Loper Bright is an ``open question.'' Loper Bright, however, 
did not address or call into question longstanding Supreme Court 
precedent indicating that Congress intended to grant policymaking 
authority to the Board over the kinds of representation-case procedures 
at issue in this rulemaking proceeding.\301\ Thus, for the reasons set 
forth in Section IV above, we believe the final rule is an appropriate 
exercise of the Board's delegated authority grounded in the Board's 
special competence when it comes to matters involving the mechanics of 
representation-case procedure.
---------------------------------------------------------------------------

    \300\ 144 S. Ct. 2244 (2024).
    \301\ See NLRB v. Waterman Steamship Corp., 309 U.S. 206, 226 
(1940) (``The 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.''); see 
also Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 309-310 
(1974) (``In light of the statutory scheme and the practical 
administrative procedural questions involved'' in determining the 
Board's representation-case procedures, the Court has deferred to 
the Board where its policy was not ``arbitrary and capricious or an 
abuse of discretion.''); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 
(1969) (``Congress granted the Board a wide discretion to ensure the 
fair and free choice of bargaining representatives.''); NLRB v. A.J. 
Tower Co., 329 U.S. 324, 330 (1946) (observing the ``wide degree of 
discretion'' that Congress has bestowed the Board ``in establishing 
the procedure and safeguards necessary to insure the fair and free 
choice of bargaining representative by employees'').
---------------------------------------------------------------------------

VII. Dissenting View of Member Kaplan

    Four years ago, the Board issued a final rule (``the 2020 Rule'') 
that made three well-advised changes to our rules and regulations.\302\ 
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 
\303\ and reinstated the framework the Board adopted in Dana Corp.\304\ 
to afford employees an opportunity to file a petition for a secret-
ballot election \305\ 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.\306\ 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 at 18366. In my 
considered judgment, the 2020 Rule has been a hard-won success, one 
which required the expenditure of considerable Agency resources to 
thoroughly consider, analyze, and respond to numerous public comments.
---------------------------------------------------------------------------

    \302\ 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.).
    \303\ 357 NLRB 934 (2011).
    \304\ 351 NLRB 434 (2007).
    \305\ 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.
    \306\ 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 I use 
the shorthand ``construction industry'' and ``construction 
employer.''
---------------------------------------------------------------------------

    With their 2022 Notice of Proposed Rulemaking (``NPRM''),\307\ the 
majority effectively announced their intention to reverse the outcome 
of the intensive rulemaking process that the Board had undertaken just 
two years earlier. And with their final rule (``the 2024 Rule''), my 
colleagues bring this unnecessary and counterproductive plan to 
fruition. In doing so, my colleagues point to no changed circumstances 
as justification for the reversal. To the contrary, the 2024 Rule is 
simply the product of a new Board majority's disagreement with the 2020 
Rule, which they 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.\308\
---------------------------------------------------------------------------

    \307\ See Representation--Case Procedures: Election Bars; Proof 
of Majority Support in Construction-Industry Collective-Bargaining 
Relationships, 87 FR 66890 (November 4, 2022).
    \308\ Several commenters agree. See, e.g., Comments of Coalition 
for a Democratic Workplace and United States Chamber of Commerce.
---------------------------------------------------------------------------

    Worst of all, the rule my colleagues adopt is clearly inferior to 
the 2020 Rule. My colleagues have chosen to title this rulemaking 
``Fair Choice Employee Voice.'' Consistent with its name, the 2024 Rule 
appears to value ``fair choice''--whatever that means--over the 
essential policy of employee free choice that the 2020 Rule was 
designed

[[Page 63006]]

to protect. The majority does not say who gets to decide what 
constitutes a ``fair choice''--my colleagues? labor unions?--or why it 
comes in order of priority before ``employee voice,'' a term that I am 
left to assume is intended as a synonym for employee free choice. 
Indeed, based on the final rule, it appears that the majority's concept 
of ``fair choice'' amounts to little more than coded language for 
prioritizing over employee free choice the actions of unions exercising 
their ``choice'' (1) to remain as exclusive representatives of 
bargaining units by delaying decertification elections indefinitely 
while they rebuild support; (2) to become exclusive bargaining 
representatives by accepting voluntary recognition without affording 
employees the opportunity to test those unions' support in a Board-
conducted election; or (3) to upgrade their Section 8(f) status 
obtained in representing employees in the construction industry by 
becoming Section 9(a) exclusive representatives without ever having to 
reliably prove that a majority of unit employees have chosen them to be 
9(a) rather than 8(f) representatives. In my judgment, the majority's 
apparent conception of ``fair choice'' is hardly fair at all.
    Given that my colleagues pay mere lip service to employee free 
choice, it is hardly a surprise that they have decided to reverse all 
the protections to free choice embodied in the 2020 Rule. I cannot 
countenance the majority's unjustified policy reversals, and, 
therefore, I respectfully dissent. After supplying some general 
background on Board representation law, I will discuss and respond to 
each of my colleagues' proffered rationales justifying their 
abandonment of the 2020 Rule and promulgation of their final rule.
    Finally, I note that, in the wake of the Supreme Court's decision 
in Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024), it is 
an open question to what extent reviewing courts must afford deference 
to my colleagues' decision to repeal the 2020 Rule and promulgate a new 
rule in its place.\309\ I further note, however, that I do not agree 
with my colleagues that the Supreme Court precedent they cite 
establishes that ``Congress intended to grant policymaking authority to 
the Board'' over the issues involved in this rulemaking. None of the 
cases they cite suggest that the Court has afforded the Board ``wide 
discretion'' to enact rules that block employees' ability to exercise 
their fundamental statutory right to decide for themselves whether they 
wish to be represented by a union.\310\
---------------------------------------------------------------------------

    \309\ In Loper Bright, the Court overruled Chevron U.S.A. v. 
Natural Resources Defense Council, 467 U.S. 837 (1984), finding that 
``[c]ourts must exercise their independent judgment'' in determining 
the scope of authority delegated by Congress and ``deciding whether 
an agency has acted within its statutory authority, as the APA 
requires.'' 144 S.Ct. at 2273. Although the D.C. Circuit recently 
found that the Board was entitled to substantial deference for 
adjudicative decisions, that Court had no need to reach the question 
of the degree of deference due when the Board engages in notice-and-
comment rulemaking under the Administrative Procedure Act. See 
Hospital de la Concepcion v. NLRB, __ F.4th __, 2024 WL 3308431 *3 
(D.C. Cir. July 5, 2024).
    \310\ See Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 
301, 309-310 (1974) (finding that the Board's decision finding that 
the respondent did not engage in bad faith bargaining by refusing to 
recognize the union based solely on authorization cards, and finding 
that the union should have instead petitioned for an election, was 
neither ``arbitrary and capricious'' nor an ``abuse of 
discretion''); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969) 
(finding that respondent was required to comply with Board order to 
provide union with names and addresses of employees prior to 
election); NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946) (finding 
that the Board had the discretion to deny an employer's late 
challenge to a voter's ballot); NLRB v. Waterman Steamship Corp., 
309 U.S. 206, 226 (1940) (finding that the Board had the statutory 
authority to require that a respondent ensure that two competing 
unions had equal pre-election access to employees, where it afforded 
such access to one of the unions).
---------------------------------------------------------------------------

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.\311\ 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 2024 Rule imprudently 
reverses each of these refinements, at the expense of employee free 
choice.\312\
---------------------------------------------------------------------------

    \311\ NLRB Casehandling Manual (Part Two) Representation 
Proceedings.
    \312\ 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 2024 Rule eliminates the 2020 Rule's protections.
---------------------------------------------------------------------------

Discussion
I. 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

[[Page 63007]]

will be certified where unfair labor practices have interfered with the 
free exercise of those rights. My colleagues undo these changes and 
resurrect the pre-2020 Rule blocking-charge policy. Although unions 
undoubtedly 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,\313\ 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, 
upon request, petitioned-for elections are initially blocked at the 
time the relevant unfair labor practice charge is filed and may remain 
blocked for months, or years, if the requested election is ever 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).
---------------------------------------------------------------------------

    \313\ 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 nonmeritorious 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.'').
    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 \314\ 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).
---------------------------------------------------------------------------

    \314\ Representation-Case Procedures, 79 FR 7318.
---------------------------------------------------------------------------

    Of particular relevance here, the 2014 NPRM included a ``Request 
for Comment Regarding Blocking Charges.''

[[Page 63008]]

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.\315\ 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 Section 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,\316\ 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.'' \317\ 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.
---------------------------------------------------------------------------

    \315\ 79 FR 7334-7335.
    \316\ 79 FR at 74418-74420, 74428-74429.
    \317\ 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.'' \318\
---------------------------------------------------------------------------

    \318\ 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.\319\ 85 FR at 18369-
18370, 18399.
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    \319\ 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 I stated 
my 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,'' I dissented in that decision because, inter 
alia, my 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 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, my 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. My 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 would be slow. But 
scrutiny and revision are justified.'' \320\ Regarding the blocking-
charge policy, scrutiny and revision were clearly justified.
---------------------------------------------------------------------------

    \320\ 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

[[Page 63009]]

status,'' regardless of the type of petition (RD, RC, or RM) 
filed.\321\ 85 FR at 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.\322\ 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.'' \323\ 84 FR 39930, 39937 (2019).
---------------------------------------------------------------------------

    \321\ The Board has long been aware of this gamesmanship. 
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. I 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 factual 
demonstration that it was the norm for unions to file nonmeritorious 
blocking charges--let alone to file frivolous charges--in order to 
delay elections in RD or RM cases when the historical blocking 
charge policy was in effect.'' 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. Indeed, the majority cites data purporting to show that 
``[a]pproximately 66% (86 out of 131) of the decertification 
petitions that were blocked in FY 2016 and FY 2017 were blocked by 
meritorious charges.'' But if more than one third of decertification 
petitions during that timeframe were blocked by nonmeritorious 
charges, it is difficult to conclude that the ``historical'' 
blocking-charge policy properly protects employees' statutory right 
to decide whether to become represented by, or to continue existing 
representation of, a union. Furthermore, my colleagues' data 
suggests that the percentage of petitions blocked by ``meritorious'' 
charges is overstated. My colleagues define ``meritorious'' charges 
as charges that led the General Counsel to file a complaint. 
However, that definition is misleading because there is no assurance 
those ``meritorious'' actually had merit. Just because a regional 
director issues a complaint does not mean that an employer violated 
the Act; if it did, neither agency administrative law judges nor the 
Board would have much to do. In addition, my colleagues' data assume 
that all settlement agreements, even those with non-admission 
clauses, render the underlying charges ``meritorious.'' See 85 FR at 
18377 (observing that ``a charge is not meritorious unless admitted 
or so found in litigation''). For obvious reasons, including 
litigation costs, employers might decide to settle unfair labor 
practice charges for reasons unrelated to their merit. For these 
reasons, my colleagues' suggestion that there is insufficient 
evidence that nonmeritorious or 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.
    \322\ The majority contends 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.
     Further, the majority rejects the momentum concerns occasioned 
by application of the pre-2020 blocking charge policy ``where 
blocking charges are filed by a petitioning union in the initial 
organizing context'' because under that policy a union has the 
discretion to control the timing of the election by determining 
whether to request a block of its election petition. This 
observation proves too much. Indeed, my colleagues effectively 
highlight the historical power imbalance between union election 
petitioners and individual decertification petitioners pertaining to 
the use of blocking charges. Thus, a union can decide whether it 
prefers to delay an upcoming election or to hold the election, a 
decision that the union will almost certainly make based on its 
polling of bargaining unit employees' union sentiments. 
Decertification petitioners, in contrast, have no such power. In any 
event, blocking charges are overwhelmingly filed to block RD (and 
RM) elections in the decertification context, not RC elections 
petitioned for in the initial organizing context.
    \323\ 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; see also Scomas of Sausalito, LLC v. NLRB, 849 
F.3d at 1159 (Henderson, J., concurring) (observing that ``an 
employer with a good-faith doubt about a union's majority status can 
call for an election, . . . but it is no cure-all [given that a] 
union can and often does file a ULP charge--a blocking charge--to 
forestall or delay the election'') (internal citations and quotation 
marks omitted). By reinstating the pre-2020 blocking charge policy, 
my colleagues create an incentive for employers to withdraw 
recognition rather than file a RM petition vulnerable to a block, 
contrary to the Board's avowed preference for RM elections and its 
creation, in Levitz, of rules to incentivize employers to file RM 
petitions. See Levitz, 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 2024 
rule undoes this necessary progress, elevating history over substance. 
Illustrative of this point is my colleagues' heavy reliance on the 
Fifth Circuit's positive perceptions of the historical policy fifty 
years ago.\324\ 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 at 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).\325\
---------------------------------------------------------------------------

    \324\ See generally Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 
1974).
    \325\ The majority's dismissal of these cases as ``decades old'' 
not only discounts the cases' precedential value, but also 
underlines the folly of the Board's decades-old insistence on 
maintaining the blocking charge policy without necessary reforms. 
The circuit courts' criticisms are just as valid now as when first 
articulated. Incidentally, my colleagues' heavy reliance on Bishop, 
supra, decided in 1974, would itself appear to be a ``decades-old'' 
case. The majority somehow finds this observation ``puzzling,'' so 
let me be more direct: they cannot reasonably dismiss the relevance 
of cases based on age when they principally rely on a case of 
similar vintage (Bishop).
---------------------------------------------------------------------------

    In returning to the ``historical'' blocking-charge policy, the 
majority contends that this policy is necessary to ``provide laboratory 
conditions for ascertaining employee choice during Board-conducted 
elections'' and to ``protect the Sec[tion] 7 rights of employees to 
freely choose whether to be represented [by a union] for purposes of 
collective bargaining . . . by shielding employees from having to vote, 
and the Board from having to conduct elections, under coercive 
circumstances.'' In other words, my colleagues view the mere act of 
conducting an election--in the face of unlitigated and unproven 
accusations \326\--as injurious to

[[Page 63010]]

employee free choice. This supposed imperative of ``shielding 
employees'' from voting at all under what the majority deems ``coercive 
circumstances''--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 final rule. I disagree 
that the mere possibility that a choice may be compromised justifies 
blocking employees from exercising their right to make that choice 
altogether.
---------------------------------------------------------------------------

    \326\ 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 
Section 3(b) of the Act.'' My 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 I 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 is itself premised on nothing more 
than an offer of proof. That initial determination, as the 2020 Rule 
recognized, generally reflects no investigatory finding of merit to 
the unfair labor practice charge, let alone a full adjudication of 
the charge's merits. See 85 FR at 18377 (``A regional director 
typically acts on a blocking-charge request soon after the request 
is made, if not on the same day, and a charge that appears facially 
sufficient based on an offer of proof may yet be dismissed as 
meritless after full investigation or may ultimately be withdrawn. 
Meanwhile, under the [pre-2020 blocking charge] policy, an election 
is delayed until that happens.''). Indeed, the majority acknowledges 
as much in ``declin[ing a commenter's] . . . suggestion that [the 
Board] should deprive regional directors of the authority to delay 
elections based on unfair labor practice charges supported by 
adequate offers of proof unless the regional director has made a 
formal merit determination.'' The majority misfires in asserting 
that my concerns with certain initial administrative determinations 
are ``internally inconsistent'' with the continuing availability of 
administrative merit-determination dismissals of pertinent unfair 
labor practice charges after the 2020 Rule. See Rieth-Riley, supra, 
slip op. at 8, 10-11 (Members Kaplan and Ring, dissenting) (agreeing 
with the majority that merit-determination dismissals continue to be 
available after the 2020 Rule ``at least where . . . the regional 
director has found merit to unfair labor practice charges and issued 
a complaint before the petition was filed,'' and a ``valid causal 
nexus'' has been found between the alleged unfair labor practices 
and employee disaffection in a hearing, as required by Saint Gobain 
Abrasives, Inc., 342 NLRB 434 (2004)). In context, the 2020 Rule 
expressed concern with the occurrence of ``indefinite delay because 
of a discretionary administrative determination regarding the 
potential impact of the alleged misconduct on employees' ability to 
cast a free and uncoerced vote on the question of representation.'' 
85 FR at 18367 (emphasis added). The problem is that the pre-2020 
blocking charge policy stymies employee free choice by permitting an 
election block based on the ``discretionary'' evaluation of a 
charging party's offer of proof regarding the ``potential impact'' 
of misconduct that has been ``alleged'' but not found through either 
an investigation or an adjudication. An administrative determination 
of merit after an investigation carries more weight that an initial 
administrative evaluation of an offer of proof, albeit still less 
weight than a final Board determination on the merits. And, as 
discussed, the reliance on offers of proof and witness availability 
requirements alone are insufficient to curb known union abuse of 
blocking charges. Meanwhile, the majority falsely quotes my position 
as purportedly being skeptical of a regional director's ``mere 
administrative determination,'' as neither the 2020 Rule nor the 
dissent from the 2022 NPRM uses that phrase. It is easy for my 
colleagues to find an ``inconsistency'' when they selectively quote 
and outright misquote the 2020 Rule without regard for context.
    In a similar vein, my colleagues strain to compare an 
administrative determination to issue a complaint in an unfair labor 
practice case with ``Board law permitting an employer to withdraw 
recognition from an incumbent union that had won a Board-conducted 
election based merely on the General Counsel's administrative 
determination that a majority of the unit no longer desire union 
representation.'' The majority compares incommensurables. These two 
types of administrative determinations are not remotely the same, as 
determining whether there is sufficient evidence that an unfair 
labor practice was committed entails a level of complexity and an 
exercise of judgment--as is evident from my colleagues' own 
description of a regional investigation--simply not present in a 
tally of union supporters within a bargaining unit.
    Ultimately, in my 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.
---------------------------------------------------------------------------

    I 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 
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.\327\ Assuming unfair labor

[[Page 63011]]

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 pre-2020 blocking charge 
policy being reinstated will 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.
---------------------------------------------------------------------------

    \327\ My 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 
conditions that interfere with employee free choice,'' which, they 
say, ``imposes unnecessary costs on the parties and the Board.'' 
Consistent with the express language of the 2020 Rule, I consider 
``any consequential costs [to be] worth the benefits secured'' of 
safeguarding employee free choice by conducting petitioned-for 
elections. 85 FR at 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. 
Meanwhile, it warrants consideration that just last year, my 
colleagues essentially reinstated the 2014 Election Rule (79 FR 
74308), which implemented a variety of amendments to the Board's 
representation procedures designed to speed up elections in the 
initial organizing context. Representation-Case Procedures, 88 FR 
58076 (2023). Under the reinstated rules, the filing of a request 
for review of a decision and direction of election is routinely 
postponed until after the election has been held. If, for example, a 
request for review asserts that an election had been directed in an 
inappropriate unit, and the Board agrees, the election would have to 
be run again (unless the union disclaims interest), thereby 
``impos[ing] unnecessary costs.''
     The majority baselessly asserts that the 2020 Rule ``appeared 
to suggest that the pre-April 2020 blocking charge policy impeded 
settlement and that the policy should therefore be eliminated to 
promote settlement of blocking charges.'' (emphasis added). In fact, 
the 2020 Rule merely summarized a single comment as follows: ``[A]s 
one commenter notes, impoundment 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 at 18380 (emphasis added). At no point does 
the 2020 Rule endorse or adopt this commenter's view of settlement. 
Accordingly, my colleagues needlessly spill considerable ink setting 
up and knocking down straw men in this regard.
---------------------------------------------------------------------------

    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 approach, employees may be deprived 
of the opportunity to register any choice at all. The majority 
``recognize[s] that the pre-April 2020 blocking charge policy can delay 
elections,'' including when nonmeritorious charges are filed with a 
request to block, but nevertheless asserts that ``the benefits of 
permitting regional directors to block elections . . . 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 
``coercive conditions,'' every election should be blocked whenever a 
properly supported blocking charge is filed, even though this means 
that elections will be blocked by nonmeritorious charges as well. 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. I believe the game should proceed and would therefore 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. The majority further asserts that the pre-2020 
blocking charge policy ``preserv[es] employee free choice'' by 
eventually permitting employees to vote inasmuch as ``the regional 
director [is] to resume processing the representation petition to an 
election if the blocking charge [is] found to lack merit.'' But this is 
no answer to the very real problem of unions taking unfair advantage of 
the blocking charge policy to file successive charges, thereby creating 
successive blocks that continue to delay employees' ability to exercise 
their Section 7 rights. Without ascribing motives to my colleagues, I 
cannot avoid observing that the pre-2020 blocking charge policy to 
which they return 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.
    Moreover, 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 at 18378. The effectiveness of these procedures cannot be attacked 
without calling into question decades of Board decisions. Yet my 
colleagues do exactly that.\328\ 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.\329\ That has not been the case in many rerun 
elections where employees have voted for union representation in a 
second or even third election.\330\ 85 FR at 18378. I therefore

[[Page 63012]]

disagree with my colleagues that the mere filing of an unfair labor 
practice charge alleging conduct that, if proven, would create a 
``coercive atmosphere'' 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.\331\
---------------------------------------------------------------------------

    \328\ In particular, my colleagues claim that ``when the Board 
sets aside an election because of employer unfair labor practice 
conduct, it does not erase the memory of that election outcome and 
the illegalities that led to it being set aside,'' and, citing NLRB 
v. Savair Mfg. Co., 414 U.S. at 277-278, they further claim that 
``employees who voted against union representation under the 
influence of the employer's coercion may well be unlikely to change 
their votes in the rerun election even if they vote in the second 
election.'' In other words, my colleagues ostensibly believe--at 
least for purposes of this rulemaking--that the Board's unfair labor 
practice remedies are wholly inadequate to the task of restoring the 
necessary laboratory conditions to hold a free and fair rerun 
election where pertinent unfair labor practices caused an initial 
election to be set aside despite eight decades of experience to the 
contrary. Meanwhile, they ignore the reality that votes against 
representation by a particular union may have nothing to do with 
them having been cast ``under coercive conditions'' and everything 
to do with dissatisfaction with the union.
    Compounding the error is the majority's misplaced reliance on 
Savair. There, the Court observed that employees who had signed 
``recognition slips'' amounting to public ``endorsements'' of the 
union in exchange for the union's waiver of initiation fees may 
``feel obliged to carry through on their stated intention to support 
the union.'' Id. In stark contrast to the situation in Savair, the 
majority here posits that individual employees who vote in an 
initial secret ballot election ``may well be unlikely'' to later 
change their votes in a rerun secret ballot election even without 
individual employees' union sentiments ever being revealed (and 
presumably without a union attempting to buy their public 
endorsement). Naturally, opening and counting ballots reveals only 
collective union sentiment at a moment in time, not individual union 
sentiments. The majority seems to similarly misapprehend the nature 
of a secret ballot election in contending that employees who vote in 
the union's favor in a rerun election might ``risk incurring the 
wrath of their employer.'' Again, individual employee sentiments on 
union representation are not revealed during a tally of secret 
ballots.
    \329\ Indeed, longstanding judicial precedent holds that the 
Board's traditional remedies are perfectly capable of dissipating 
the coercive effects of unfair labor practices so as to permit a 
free and fair election in all but extreme cases. See, e.g., Somerset 
Welding & Steel v. NLRB, 987 F.2d 777, 779, 782 (D.C. Cir. 1993) 
(disapproving ``the Board's apparent partiality for bargaining 
orders'' and holding that `` `where a fair rerun election is 
possible, it must be held' '' (quoting Avecor, Inc. v. NLRB, 931 
F.2d 924, 934 (D.C. Cir. 1991)); M.P.C. Plating, Inc. v. NLRB, 912 
F.2d 883, 888 (6th Cir. 1990) (stating that ``the election process 
is the preferred method'' and a bargaining order is warranted only 
in ``extreme cases''); Rapid Manufacturing Co. v. NLRB, 612 F.2d 
144, 151 (3d Cir. 1979) (denying enforcement of bargaining order 
where record failed to show that possibility of ensuring a fair 
election was slight); NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 120 
(1st Cir. 1978) (denying enforcement of bargaining order where 
record did not show that the company would ignore the Board's 
traditional cease-and-desist order); First Lakewood Associates v. 
NLRB, 582 F.2d 416, 424 (7th Cir. 1978) (denying enforcement of 
bargaining order because the impact of the employer's violations 
``will have dissipated prior to the next election, especially if the 
Board's ordinary remedies of a cease and desist order and a posted 
notice intervene''); NLRB v. Ship Shape Maintenance Co., 474 F.2d 
434, 442 (D.C. Cir. 1972) (denying enforcement of bargaining order 
because even though the unfair labor practice ``rendered the 
meaningful holding of that particular election impossible . . . . 
this does not mean that the effects of this unfair labor practice 
were sufficiently pervasive and lingering to warrant a determination 
that a subsequent election could not be held which would be 
reasonably free from the adverse influence of the Company's unlawful 
action''). Accordingly, there is no valid reason for my colleagues 
to assume that the Board's traditional remedies for pertinent unfair 
labor practices will necessarily be inadequate to ensure a fair 
rerun election in those cases where an initial election was held but 
later set aside under the 2020 Rule.
    \330\ 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. For 
instance, in each of the following cases, the employer violated Sec. 
8(a)(1) or Sec. 8(a)(3) and (1), the union lost the initial 
election, and records maintained in the Board's NxGen case-
processing system reveal that the union won the second election: 
Kumho Tires Georgia, 370 NLRB No. 32 (2020); Union Tank Car Co., 369 
NLRB No. 120 (2020); Pacific Coast Sightseeing Tours & Charters, 
Inc., 365 NLRB No. 131 (2017); First Student, Inc., 359 NLRB 1090 
(2013). The union did so even where the employer had committed 
extensive and egregious unfair labor practices. See Kumho Tires 
Georgia (finding that employer repeatedly interrogated employees, 
repeatedly threatened loss of customers, loss of jobs, and plant 
closure, and threatened loss of benefits, transfer of work, and that 
electing the union would be an exercise in futility). Plainly then, 
the Board's traditional remedies are capable of rectifying the harm 
caused to the election process by pertinent unfair labor practices 
such that unions can and do win rerun elections.
    \331\ 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). My colleagues claim to have discovered an incongruity 
between holding ``elections in virtually all cases (no matter the 
severity of the employer's unfair labor practices) because of the 
availability of a rerun election'' and ``the Supreme Court's 
approval in Gissel of the Board's practice of withholding an 
election or rerun election and issuing a bargaining order'' in 
certain cases involving serious unfair labor practices. 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 at 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.''). Importantly, the fact that, in rare 
cases, employee free choice rights may be better protected by a 
bargaining order than by a rerun election does not justify the 
majority's general denial of the right to a prompt election to 
employees filing decertification petitions.
     Finally, my colleagues claim that ``under the Board's limited 
remedial authority the Board can (absent a showing of a card 
majority) only conduct a second election after the unfair labor 
practice conduct--that interfered with the initial election--has 
been remedied certainly does not mean that requiring employees to 
vote under coercive conditions and then giving them a second chance 
to vote puts the employees and the labor organization at issue in 
the position that most closely approximates the position they would 
have occupied had no party committed unfair labor practices.'' The 
majority also claims that ``a return to the pre-April 2020 status 
quo better protects employee rights by putting the unit employees in 
a position that more closely approximates the position that the unit 
employees would have been in had no party committed unfair labor 
practices interfering with employee free choice.'' These claims rest 
on the faulty premise that a rerun election is a remedy. Plainly it 
is not. Whereas the Board orders remedies, it merely directs rerun 
elections after the appropriate remedies have been applied. It is 
not the purpose of a rerun election to put employees in the position 
they would have been in had no unfair practices ever been committed. 
Rather, that remedial purpose is accomplished by the traditional 
remedies the Board orders before the rerun election is directed.
    In this connection, I reject my colleagues' extraordinary claim 
that one such traditional remedy, ``the posting of the remedial 
notice[,] reminds employees of those illegalities.'' This suggestion 
is absurd on its face. Posted remedial notices inform employees that 
a respondent's actions were found to be unlawful and that there were 
consequences for its unlawful actions. Posted remedial notices also 
inform employees that the unlawful actions have been remedied and 
reassures employees that neither those nor ``like or related'' 
unlawful actions will be committed in the future. Both components 
have long been viewed as sufficient to cleanse the atmosphere of the 
effects of the unfair labor practices before directing a rerun 
election. In fact, if my colleagues are actually worried about some 
negative lingering effect of posting remedial notices, I am baffled 
as to why they continue to order them in every case in which the 
Board finds that the Act has been violated. Or, for that matter, why 
they cite no Board decision voicing a similar concern about posting 
remedial notices. The answer, of course, is that my colleagues 
cannot actually be concerned about this.
    Despite my colleagues' suggestions to the contrary, the 2020 
Rule has protected employee free choice in cases of relevant, 
meritorious unfair labor practices through the Board's ordering and 
applying traditional remedies to cleanse the atmosphere from the 
effects of those unfair labor practices and to restore laboratory 
conditions before directing a rerun election. In contrast, the 
majority's return to the ``historical'' blocking charge policy 
better protects the choice of unions to remain in place as the 
exclusive representatives of bargaining units irrespective of unit 
employees' wishes.
---------------------------------------------------------------------------

    Relatedly, the majority denies the reality that the Board's ruling 
in Rieth-Riley Construction Co., 371 NLRB No. 109 (2022)--preserving 
the use by regional directors of merit-determination dismissals of 
election petitions in the face of pertinent unfair labor practices--
undermines the justification for returning to their favored 
``historical'' blocking charge policy. Citing Rieth-Riley, my 
colleagues stress that the merit-determination dismissal process is an 
``aspect of the blocking charge policy'' that applies exclusively to 
Type II charges, i.e., those that are ``inherently inconsistent with 
the petition itself.'' But they fail to acknowledge that even were one 
to generally accept their rationale for returning to the pre-2020 
blocking charge policy--and I do not--there would be no need for that 
policy to be applied to Type II charges given that merit-determination 
dismissals continue to be available alongside the employee free choice 
protections embodied in the 2020 Rule. Indeed, the 2020 Rule already 
provides a vote-and-impound procedure for pertinent unfair labor 
practice charges and accompanying requests to block (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. In these circumstances, the 
election is held and the ballots are be impounded for up to 60 days 
from the conclusion of the election (or if a complaint issues during 
the 60-day period, until there is a final determination regarding the 
complaint allegation and its effect, if any, on the election petition).
    Significantly, there is no indication that the majority has engaged 
in reasoned decision-making by seriously considering alternatives to 
the pre-2020 blocking charge policy. Given the protections afforded by 
the 2020 Rule and merit-determination dismissal procedure taken 
together, as well as the established fact that unions have frequently 
abused the pre-2020 blocking charge policy to indefinitely delay 
decertification elections for both types of petitions, the majority--in 
reinstating that policy--could have modified it to, for instance, 
include durational limits on an election block. Specifically, the 
majority might limit the duration of a Type II charge's block of an 
election to 60 days, with regional directors instructed to accord such 
cases investigative priority, and with the possibility for an extension 
of the block beyond 60 days where the employer refuses to cooperate 
with the Region's investigation. But unfortunately, my colleagues show 
no interest in cabining the duration of a block for any type of 
election petition, or in adopting any other reform alternative for that 
matter. Rather, they assure us that a wholesale return to the pre-2020 
blocking charge policy is necessary and sufficient, even for Type II 
charges, because the regional director may not get around to 
investigating the charge in time to make a merit determination and 
consider dismissal before being required to hold an election under the 
2020 Rule. This is no answer. Again, the majority could modify the pre-
2020 blocking charge policy in some fashion, such as by including 
durational limits, to prevent abuse of the process rather than give

[[Page 63013]]

unions and regional directors carte blanche to indefinitely delay 
elections based on blocking charges. Lastly, as discussed, the majority 
misses the mark in claiming that the offer of proof and witness 
availability requirements--which the 2020 Rule retained--are 
sufficient, standing alone, to curb any abuse of the blocking charge 
policy. Professor Hirsch--who has suggested the use of durational 
limits for blocking charges, among other reform alternatives to curb 
abuse--did not think so,\332\ and neither do I.
---------------------------------------------------------------------------

    \332\ Jeffrey M. Hirsch, NLRB Elections: Ambush or Anticlimax?, 
64 Emory L.J. 1647, 1664 (2015) (observing that ``[t]he Board's new 
[2014] 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.'').
---------------------------------------------------------------------------

    The majority additionally claims that ``opening and counting 
ballots, yet delaying the certification of the results, might . . . 
frustrate employees who must await the outcome of the Board's 
investigation of the charge to learn whether the results of the 
election will be certified and, at worst, actively mislead them by 
conveying a materially false impression of the level of union 
support.'' According to my colleagues, application of the 2020 Rule may 
also cause employees to feel frustration at being ``required to vote 
under coercive circumstances.'' The reason for my colleagues' views is 
easy to understand; apparently, they have less faith in employees' 
intelligence than I do. They can rest assured that unions will be 
highly motivated to explain to employees why election results have not 
been certified and should be disregarded. Moreover, even where a 
regional director makes an 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 ``vote[d] under coercive circumstances.'' See 85 FR 
at 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 ``vote[d] under coercive circumstances,'' 
and it is entirely appropriate that employees promptly learn the 
election results in that case. Additionally, my 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 preserves employee free choice 
in representation cases,'' 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, my colleagues discount the potential for 
blocking charges to cause years of delay, during which extensive 
employee turnover is all too likely.\333\
---------------------------------------------------------------------------

    \333\ As noted above, just last year my colleagues essentially 
reinstated the 2014 Election Rule (79 FR 74308), which implemented a 
variety of amendments to the Board's representation procedures 
designed to speed up elections in the initial organizing context. 
Representation-Case Procedures, 88 FR 58076 (2023). It is striking 
that my colleagues made it a priority to ensure that initial 
representation elections--which unions typically favor--will be held 
days or weeks sooner, but then found it necessary to promulgate 
blocking charge rules that, based on past experience, will have the 
result of delaying decertification elections--which unions typically 
disfavor--for months, if not years.
---------------------------------------------------------------------------

    Taking the debate from the obvious to the absurd, the majority 
faults the 2020 Rule for failing to ``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.'' Of course, this argument misses the point entirely. 
The 2020 Rule is not based on eliminating this risk. Rather, it is 
based, in part, on mitigating the risk of turnover where reasonably 
possible, consistent with ensuring that election results are not 
certified where the Board determines that the employer committed 
pertinent unfair labor practices that affected the outcome. 
Accordingly, 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. Crucially, the 2020 Rule 
facilitates prompt elections while safeguarding employee free choice. 
Indeed, a prompt opportunity for employees to vote in a Board election 
itself safeguards employee free choice. 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.
    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 my colleagues' estimation, the 
``predicable results'' of such unlawful conduct will be (1) the 
expenditure of unions' resources on elections that ``will not reflect 
the free choice of the employees,'' and (2) ``a sense among employees 
that seeking to exercise their Section 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.

[[Page 63014]]

In any event, such employers would themselves presumably have to commit 
resources to an election. Meanwhile, as employers are undoubtedly 
aware, any such gamesmanship would be counterproductive given that, 
under the 2020 Rule, if an employer commits one or more unfair labor 
practices that would require setting aside the election, the results of 
that election would not be certified. In this connection, any rational 
employer will be equally disincentivized from committing unfair labor 
practices under either the 2020 Rule or the pre-2020 blocking-charge 
policy--under the former, because doing so will prevent the results of 
the election from being given effect, and under the latter, because 
doing so will prevent the election from taking place. Accordingly, 
under either scenario, the employer is discouraged from committing 
unfair labor practices. Additionally, I 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 my colleagues, does not merit curative action 
unless it is shown to be ``the norm.''
    Finally, my colleagues discuss 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 at 18377. Further, the 2020 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. I agree. As the majority acknowledges, the 
Board is free to ``make a policy choice that does not depend on 
statistical analysis.'' 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 now.
    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 effectively 
rescinds them. I cannot join them in taking this step.
II. 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. I believe this aspect of the 2020 Rule 
appropriately balances the sometimes-competing policies of labor-
relations stability and employee free choice. My colleagues throw out 
this valuable framework. Because their final rule strikes the wrong 
balance, at the expense of employee free choice, I 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'

[[Page 63015]]

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 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.\334\
---------------------------------------------------------------------------

    \334\ 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,'' \335\ 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.
---------------------------------------------------------------------------

    \335\ Id. at 439.
---------------------------------------------------------------------------

    In Lamons Gasket Company, 357 NLRB 739 (2011),\336\ 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,\337\ 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.\338\
---------------------------------------------------------------------------

    \336\ 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.
    \337\ ``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.
    \338\ 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).

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

[[Page 63016]]

    Then-Member Hayes dissented in Lamons Gasket,\339\ 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 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.
---------------------------------------------------------------------------

    \339\ 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,\340\ 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.
---------------------------------------------------------------------------

    \340\ 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 at 18370, 18399-18400.
C. Critique of the Majority's Return to the Immediate Voluntary-
Recognition Bar
    The majority now rescinds current Section 103.21 of the Board's 
Rules and Regulations--adopted in the 2020 Rule--and returns to (and 
codifies) the Board's recognition-bar jurisprudence 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. 
My 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, my colleagues err in proposing this 
counterproductive change.
    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 ``the Board's administrative 
experience'' shows that ``employees almost never reject the recognized 
union,'' and they characterize the 2020 Rule's notice-and-election 
procedure as ``serv[ing] no clear legitimate purpose'' and as ``a waste 
of the Board's resources, as well as those of the employer and the 
union, even apart from the procedure's harm to the collective-
bargaining process.'' The majority defines this supposed ``harm to the 
collective-bargaining process'' as ``the potential harm to effective 
collective bargaining'' and ``a reasonable tendency to interfere with 
effective collective bargaining.'' Accordingly, my colleagues claim, 
the notice-and-election procedure ``is not necessary to preserve 
employee free choice.'' As I will explain, however, because each of 
these rationales is easily rebutted, my colleagues' reliance on these 
conclusions fails to demonstrate reasoned decision-making.\341\
---------------------------------------------------------------------------

    \341\ In the 2022 notice of proposed rulemaking, the majority 
claimed that the notice requirement of the 2020 Rule ``invites'' the 
filing of an election petition, thereby compromising the Board's 
``neutrality.'' See 87 FR at 66910. Despite acknowledging that 
several commenters continue to advance such arguments, my colleagues 
appear to have largely abandoned them, stating that they ``need not 
and do not rely on these arguments'' and expressly refraining from 
taking a position on the Lamons Gasket Board majority's embrace of 
``neutrality'' arguments.
---------------------------------------------------------------------------

    To begin, there is no merit to the majority's supposedly data-
driven argument that the 2020 Rule ``is not necessary to preserve 
employee free choice'' inasmuch as successful electoral overrides of 
voluntary recognition appear rare. Congress created the Act, as well as 
the Board, in significant part, to protect all employees' statutory 
rights to choose whether to be represented by a particular union, 
irrespective of whether they choose to exercise those rights. In 
contrast, my colleagues' final rule renders conclusive voluntary 
recognitions of unions without the right to a Board-conducted 
election--in which all employees may participate--to test the adequacy 
of union support and thereby ensure employee free choice. Even putting 
aside that fundamental point, my colleagues fail to say how many 
electorally overturned voluntary recognitions it would take to warrant 
retaining the modified Dana notice-and-election framework. Might a five 
percent override rate do so in my colleagues' view? How about ten 
percent? They cannot answer this question because, in reality, all 
employees should have the right to test the validity of a voluntary 
recognition.\342\ The Board need not and

[[Page 63017]]

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.
---------------------------------------------------------------------------

    \342\ My colleagues cite their recent decision in Cemex 
Construction Materials, Pacific, LLC, 372 NLRB No. 130 (2023), the 
holding of which they summarize as follows: ``an employer violates 
Sec. 8(a)(5) and (1) by refusing to recognize, upon request, a union 
that has been designated as the Sec. 9(a) representative by the 
majority of employees in an appropriate unit unless the employer 
promptly files an RM petition pursuant to Sec. 9(c)(1)(B) of the Act 
to test the union's majority status or the appropriateness of the 
unit, assuming that the union has not already filed an RC petition 
pursuant to Sec. 9(c)(1)(A).'' (emphasis added). In other words, my 
colleagues are comfortable compelling an employer to either 
``voluntarily'' recognize a union or file an election petition ``to 
test the union's majority status,'' yet they are decidedly 
uncomfortable with the concept of allowing the employees on whom 
such ``voluntary'' recognition is imposed to themselves file an 
election petition ``to test the union's majority status'' once such 
recognition has been extended. This incongruity in the majority's 
approach to establishing versus preserving an employer's recognition 
of a union is impossible to miss.
---------------------------------------------------------------------------

    In point of fact, the majority's attempt to justify the elimination 
of the employee protections put into effect in the 2020 Rule by 
characterizing the ``error'' rate as low actually undermines their 
position. Certainly, it undermines their concern that the modified Dana 
framework undermines either the voluntary-recognition process or the 
statutory policies the majority discusses as supporting it (e.g., 
``effective collective bargaining'' and ``bargaining stability'' in 
labor relations).\343\ Furthermore, if the modified Dana procedures set 
forth in the 2020 Rule so rarely result in a change in representation, 
one is left to question why the significant amount of resources spent 
on the instant rulemaking was necessary in the first place.\344\
---------------------------------------------------------------------------

    \343\ At least one commenter agrees. See Comment of Coalition 
for a Democratic Workplace. No matter, according to the majority, 
because ``even potential obstacles to productive bargaining should 
be avoided.'' (emphasis added). I happen to think that the Board's 
rulemaking resources would be better spent solving actual, rather 
than ``potential,'' problems. Meanwhile, the majority's suggestion 
that any argument based on a low error rate ``that the procedure 
does not, in fact, cast doubt on the union's status'' somehow 
``would confirm that the procedure is only a formality'' is plainly 
a non sequitur. Contrary to my colleagues, it does not follow from a 
lack of a specific harm being caused by the notice-and-election 
procedure that no benefit from that procedure may obtain. Indeed, as 
noted, the procedure promotes and protects employee free choice by 
allowing employees to test the validity of a particular voluntary 
recognition of a union by an employer to ensure that the recognition 
extended is adequately supported.
    \344\ At least one commenter agrees. See Comment of Coalition 
for a Democratic Workplace.
---------------------------------------------------------------------------

    Additionally, I 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 at 18383.\345\ Indeed, the majority acknowledged in 
its 2022 notice of proposed rulemaking 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.'' 87 FR at 66909. My colleagues 
state that they ``disagree with the policy choice reflected by the 2020 
rule . . . [and] make a different policy choice here.''
---------------------------------------------------------------------------

    \345\ I disagree with my colleagues' suggestion that due to 
``intervening events or . . . changing minds,'' ``the fact that an 
election following voluntary recognition results in the union's 
defeat does not necessarily demonstrate that the union lacked 
reliable majority support at the time of recognition.'' 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, my 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). Likewise, the majority's unrealistic 
hypothetical scenario comparing ``two free and fair elections held 
in quick succession,'' but yielding different results, to testing 
the validity of a voluntary recognition with a subsequent election 
misses the mark. Even accepting the puerile premise of this two-
election hypothetical, my colleagues falsely equate their imagined 
scenario with the real collection of authorization cards. As I have 
explained and the Supreme Court has recognized, a Board-conducted 
election is different from and superior to card collection.
    Finally, my colleagues falsely equate the certification bar to 
the recognition bar, particularly inasmuch under certain 
circumstances, both bars may begin run from the first bargaining 
session. But it must be emphasized that while the recognition bar 
attaches when recognition is extended (typically based on 
authorization cards), 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. Accordingly, the 
recognition bar--coupled with the contract bar--may preclude a 
secret-ballot election for more than four years. In contrast, the 
certification bar arises from the superior Board-conducted election 
process and the bar period ordinarily begins to run when the 
certification issues. Only when the employer commits a technical 
Sec. 8(a)(5) refusal-to-bargain violation to test the certification 
is the start of the bar period delayed until the parties begin 
bargaining. See Volkswagen Group of America Chattanooga Operations, 
LLC, 367 NLRB No. 138, slip op. at 1 (2019). As such, in the 
ordinary case, the recognition bar has the potential to preclude an 
election for longer than does the certification bar under similar 
circumstances.
---------------------------------------------------------------------------

    My colleagues also attempt to justify their action by claiming that 
the modified Dana framework promulgated in the 2020 Rule is a ``a waste 
of the Board's resources, as well as those of the employer and the 
union.'' This assertion is clearly without merit. There is hardly a 
more important use of the Board's resources than to protect employees' 
fundamental statutory rights.\346\ Further, it is not clear how simply 
posting a Dana notice imposes a significant burden on Board resources; 
any purported burden arises only when employees choose to exercise 
their right to confirm that the majority of the unit actually wishes to 
be represented by the voluntarily recognized union.\347\

[[Page 63018]]

Finally, my colleagues' attempt to justify their action by referencing 
union and employer resources is astonishing. The NRLA protects the 
rights of employees, not employers or unions. Any suggestion that the 
Board should place such considerable weight on party resource 
expenditures in rescinding rules that serve to protect employees' 
fundamental statutory rights is inconsistent with congressional intent.
---------------------------------------------------------------------------

    \346\ By contrast, my colleagues seem unbothered by ``wasting'' 
agency resources on remedial measures that have never before been 
deemed necessary by the Board. See, e.g., Noah's Ark Processors, 
LLC, 372 NLRB No. 80, slip op. at 17 (2023) (Member Kaplan, 
dissenting) (pointing out that the majority's novel visitation 
remedy, which in that case required regional personnel from Overland 
Park, Kansas, to travel to Hastings, Nebraska--a 622 mile round-
trip--was a waste of taxpayers' money and an ``unnecessary 
expenditure of Agency resources''), enfd. 98 F.4th 896 (8th Cir. 
2024) (enforcing the Board's novel remedies on procedural grounds 
without reaching their merits).
    \347\ My colleagues quote my position questioning whether 
``simply posting a Dana notice imposes a significant burden on Board 
resources'' before inexplicably and falsely asserting that I ``omit[ 
] reference to the second part of the procedure, which may require 
the Board to conduct an election.'' In fact, the second clause of 
the sentence from which they quote expressly recognizes that ``any 
purported burden arises only when employees choose to exercise their 
right to confirm that the majority of the unit actually wishes to be 
represented by the voluntarily recognized union,'' i.e., when 
employees petition for an election, an occurrence that the majority 
contends is rare in any event.
    Furthermore, my colleagues falsely accuse me of holding the 
``tacit view that it better protects employees' fundamental 
statutory rights to maximize the opportunity for a minority of unit 
employees to overcome the prior selection of a union by the majority 
of employees.'' My colleagues baselessly assume that any election 
testing the validity of a voluntary recognition with the preferred 
method of a Board-conducted election--which again, they say is 
rare--will naturally result in a contrary determination by a 
minority of the bargaining unit. In doing so, they once again call 
into question the Board's time-tested electoral machinery. The 
scenario they describe--a minority of eligible voters determining an 
electoral outcome due to potentially low turnout--could occur in any 
Board-conducted election. Contrary to the majority, this possibility 
inheres in the practice of workplace democracy under the Act and, 
when it occurs, it does not automatically invalidate the results of 
Board elections conducted under laboratory conditions with the 
attendant procedural safeguards.
---------------------------------------------------------------------------

    The 2020 Rule clearly acknowledged that, ``voluntary recognition 
and voluntary-recognition agreements are lawful.\348\ But, as the Rule 
further explained, 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.'' 85 FR at 18381. Therefore, ``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, my colleagues conceded in their notice of proposed 
rulemaking ``the implicit statutory preference for Board elections 
(insofar as certain benefits are conferred only on certified unions),'' 
\349\ a concession they are careful not to make in their final rule. 
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.\350\ 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).
---------------------------------------------------------------------------

    \348\ Id. at 18381 and cases cited.
    \349\ 87 FR at 66911.
    \350\ 85 FR at 18381.
---------------------------------------------------------------------------

    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.\351\ In the end, protecting employee free 
choice, as the 2020 Rule does, is among the Board's core 
responsibilities under the Act, and as such, the notion that doing so 
is ``a waste of the Board's resources'' seriously misapprehends the 
Board's role and how its resources necessarily serve that role.
---------------------------------------------------------------------------

    \351\ Despite claiming that the Supreme Court in Gissel 
generally ``rejected the argument that union-authorization cards 
could not properly establish a union's majority support union-
authorization cards constitute,'' the majority concedes, as it must, 
that the Court's holding pertaining to union-authorization cards 
arose ``in the context of issuing bargaining orders.'' Accordingly, 
the Court did not reach this broader 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.
---------------------------------------------------------------------------

    Finally, my colleagues claim that the 2020 Rule raises the specter 
of ``harm to the collective-bargaining process,'' which they define as 
``the potential harm to effective collective bargaining'' and ``a 
reasonable tendency to interfere with effective collective 
bargaining,'' and which they believe to be inconsistent with the 
principle that ``a rightfully established bargaining relationship must 
be given a fair chance to succeed before being tested,'' which is the 
central rationale underlying other Board bar doctrines that protect new 
bargaining relationships. (emphasis added). As a result, my colleagues 
claim, the 2020 Rule undermines the ``bargaining 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, ``employees almost never 
reject the recognized union,'' it is difficult to ascertain how the 
2020 Rule ``discard[s] the critical role of bargaining stability in the 
administration of the Act.'' The majority cannot have it both ways. If 
Section 103.21's notice-and-election 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.\352\
---------------------------------------------------------------------------

    \352\ 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 at 18384-18385.
---------------------------------------------------------------------------

    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. Implicitly acknowledging this dearth of evidence, the 
majority ``invite[d] public comment on the effect of Section 103.21 on 
collective-bargaining negotiations.'' 87 FR at 66910 fn. 127. 
Unfortunately for my colleagues, supportive commenters were unable to 
supply them with the necessary evidence to support their theory. 
Indeed, they necessarily acknowledge that commenters in support of 
rescinding Section 103.21 ``d[id] not bring significant empirical 
evidence to bear'' on the question of its effect on collective 
bargaining. Instead, the majority reports that these commenters merely 
offer the Board their ``logic and experience'' suggesting that 
``bargaining will be harmed,'' and my colleagues are all too ready to 
take their word for it in making the ``policy choice'' of rescission. 
Consequently, the majority resorts to rank speculation that employers 
``might well refuse to invest the same time and effort into bargaining 
if the bargaining relationship might soon be terminated,'' and that 
unions ``might feel pressure to quickly produce positive results in 
bargaining to avoid losing support among employees--making a mutually 
satisfactory agreement with the employer more difficult and increasing 
the likelihood of labor disputes,'' if the voluntary recognition bar is 
delayed by the 2020 Rule's 45-day window. (emphasis added). Ultimately, 
however, my colleagues ``acknowledge that there likely can be no more 
than anecdotal evidence that the notice-and-election procedure, in 
fact, interferes with effective collective bargaining.'' Accordingly, 
they are content to eliminate the notice-and-election procedure in 
order to eliminate what they describe as the ``the potential harm to 
effective collective bargaining'' because, as they contend, ``even 
potential obstacles to productive bargaining should be avoided.'' 
(emphasis added). In my view, disturbing the status quo and rescinding 
an essential legal provision like Section 103.21 should be based on 
more than imagined harms--i.e., those harms that ``might'' have the 
``potential'' to occur--

[[Page 63019]]

absent any concrete evidence that they have actually occurred in the 
years that the notice-and-election procedure has been in effect.
III. 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.\353\ The 2020 Rule overruled 
Staunton Fuel for representation-case purposes, and the majority now 
reinstates it along with its procedural complement, Casale 
Industries.\354\ This unfortunate result is unsurprising, since the 
majority recently reaffirmed Staunton Fuel for unfair-labor-practice-
case purposes.\355\ Nevertheless, the Court of Appeals for the District 
of Columbia Circuit has rejected Staunton Fuel, repeatedly and 
emphatically.\356\ I agree with the D.C. Circuit's criticisms of that 
decision, and I would retain this aspect of the 2020 Rule as well.
---------------------------------------------------------------------------

    \353\ See Enright Seeding, Inc., 371 NLRB No. 127, slip op. at 
11 & fn. 8 (2022) (Member Ring, dissenting) (citing cases).
    \354\ 311 NLRB 951 (1993).
    \355\ Enright Seeding, supra.
    \356\ 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 
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

[[Page 63020]]

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).\357\
---------------------------------------------------------------------------

    \357\ 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 Section 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,\358\ 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 Section 9(a)'s emphasis on 
employee choice with Section 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.
---------------------------------------------------------------------------

    \358\ 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 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).\359\
---------------------------------------------------------------------------

    \359\ Then-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.
---------------------------------------------------------------------------

    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 Section 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 
Section 9(a)'s enhanced protections, the Board must faithfully police 
the presumption of Section 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 Section 8(f) pre-hire arrangement by 
affirmatively choosing a union as their Section 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

[[Page 63021]]

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 
\360\ in relevant part, ``declin[ing] to adopt a Section 10(b) 6-month 
limitation on challenging a construction-industry union's majority 
status by filing a petition for a Board election.'' 85 FR at 18370, 
18390-18391, 18400.
---------------------------------------------------------------------------

    \360\ 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 Rescission of Section 103.22
    The majority fully rescinds Section 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 is 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. My colleagues' reasons for doing so, 
discussed below, lack merit and do not warrant revisiting the sound 
policy of the 2020 Rule.
    In the 2022 notice of proposed rulemaking, the majority principally 
complained 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.'' 87 FR at 66912. In their final rule, my 
colleagues reiterate their claim that the overruling of Casale was 
effectuated ``without having provided advance notice to the public'' 
such that ``interested parties had no reason to know to provide 
comments on the possibility of Casale being overruled.'' First of all, 
my 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'' and that ``interested parties had no 
reason to know to provide comments'' on this issue. In fact, this issue 
was squarely raised in public comments requesting that the Board 
``incorporate [in the final rule] a Section 10(b) 6-month limitation 
for challenging a construction-industry union's majority status.'' 85 
FR at 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. In the 2020 Rule, the Board explained its reasoning by 
noting that 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 Section 10(b)'s 6-month limitation.'' Id.\361\ 
Accordingly, as the 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.\362\ 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).

[[Page 63022]]

Finally, regarding the supposedly ``onerous . . . recordkeeping 
requirement,'' the Board reasonably concluded, and I 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 at 18392.\363\
---------------------------------------------------------------------------

    \361\ 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'').
    \362\ The majority claims that where an employer and union have 
``falsely made [an] assertion [of the union's majority status], an 
employer's grant of 9(a) recognition and a union's acceptance of 
that recognition are both unlawful,'' and ``the most appropriate 
forum for challenging any claims of collusion is . . . an unfair 
labor practice proceeding alleging violations of Secs. 8(a)(2) and 
(1) and 8(b)(1)(A).'' In this connection, the majority denies that 
Sec. 103.22 is a ``reasonable safeguard'' against collusion. My 
colleagues miss the mark. Sec. 103.22 does not attempt to remedy 
unfair labor practices with a representation petition and Board-
supervised election. 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. 
Crucially, 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 would typically go undiscovered under the 
majority's approach given that my colleagues would simply take the 
parties' word for it that they had established a valid 9(a) 
relationship--are subject to appropriate unfair labor practice 
proceedings and remedies under current law. Meanwhile, the 
majority's reinstatement of Staunton Fuel extends 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).
    Moreover, I share 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 at 18391. In the 
2022 notice of proposed rulemaking, my colleagues contended that 
``[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. 87 FR at 
66914. But it is plainly unreasonable to infer that employees and 
rival unions would effectively presume the opposite of the legal 
default relationship in the construction industry, and, given the 
known risk of collusion in the formation of 9(a) bargaining 
relationships in that industry, the burden of having to act on such 
an unreasonable assumption should not be placed on them. 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'').
    \363\ The majority claims that such a need for recordkeeping in 
the absence of a limitations period ``destabilize[s] collective-
bargaining relationships'' and ``detrimentally affects labor 
relations stability and employee free choice'' by permitting 
employers to ``at any time'' challenge voluntary recognitions for 
which there may be no available supporting evidence of majority 
status contemporaneous with the Sec. 9(a) recognition. But the 
language of the 2020 Rule itself makes clear that its evidentiary 
requirements for majority-based recognition in the construction 
industry apply only prospectively. Accordingly, 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. 
Meanwhile, the majority observes that, under Staunton Fuel, 
``contract language alone'' does not ``create[ ] a 9(a) 
relationship,'' but ``simply serves as a contemporaneous 
memorialization of 9(a) recognition,'' and that commenters opposed 
to their final rule ``failed to appreciate the distinction between'' 
the two concepts. My colleagues' observation is little more than a 
red herring. The issue is, and has always been, whether contractual 
language alone is sufficient to prove the existence of a 9(a) 
relationship, not whether the contract creates the 9(a) 
relationship.
    Further, I reject my 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. They go so 
far as to claim that Sec. 103.22 ``established a hard and fast rule 
to treat unions representing construction employees differently,'' 
and ``deprive[d] unions representing construction employees from 
utilizing the same procedure under Sec[.] 9(a) to obtain voluntary 
recognition--and its attendant benefits--that is available to all 
other unions.'' The majority's rhetoric does not match the reality. 
Indeed, 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'').
    I also find it ironic that my colleagues extol the benefits of 
applying the Board's contract bar rules to contract language 
purporting to memorialize a 9(a) bargaining relationship, namely the 
benefit of precluding ``an employer from evading its bargaining 
obligations under the Act by falsely asserting that no 9(a) 
recognition had ever been granted.'' They maintain this posture 
notwithstanding (1) their return to the ``historical'' blocking 
charge policy, the gamesmanship of which by unions 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.'' See Nova 
Plumbing, 330 F.3d at 537.
---------------------------------------------------------------------------

    Significantly, there is little indication that the majority has 
engaged in reasoned decision-making by seriously considering 
alternatives to rescinding Section 103.22 ``in toto.'' Indeed, my 
colleagues acknowledge that the General Counsel proposed restoring 
Staunton Fuel, but limiting its application to employer RM petitions 
while excepting decertification RD petitions from bargaining unit 
employees and RC petitions from rival unions.\364\ Under this proposal, 
a modified Staunton Fuel rule would bar a construction employer from 
challenging its own initial grant of 9(a) recognition to a union, but 
would not bar timely election petitions filed by unit employees or 
rival unions, as applicable. The General Counsel further proposed 
restoring the 6-month limitations period under Casale with the 
modification that it would not begin to run until at least one 
statutory employee is hired or otherwise has constructive notice that 
the employer granted 9(a) recognition to a union without majority 
support.\365\ Although my view is that Section 103.22 should be 
retained without modification, I am struck by my colleagues' lack of 
meaningful engagement with the General Counsel's proposals, each of 
which is considerably less extreme than the majority's reflexive return 
to the pre-Section 103.22 status quo ``in toto.'' The majority does 
little more than dismiss these and other alternatives as 
``unwarranted'' while citing the generally applicable principle that 
unions do not ``have less favored status with respect to construction 
industry employers than they possess with respect to those outside the 
construction industry.'' (quoting Deklewa, 282 NLRB at 1387 fn. 53).
---------------------------------------------------------------------------

    \364\ Comment of General Counsel Abruzzo.
    \365\ Id.
---------------------------------------------------------------------------

    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.
Conclusion
    As noted at the outset, my colleagues have chosen to title this 
rulemaking ``Fair Choice Employee Voice.'' You have to admire their 
chutzpah. As elucidated at length above, the Rule they are promulgating 
does not in any way serve to protect employee free choice (i.e., 
``employee voice'') and in fact elevates union-driven ``fair choice'' 
interests over the statutory rights of employees. Unions, not 
employees, are protected when the General Counsel indefinitely blocks 
decertification petitions filed by employees seeking an election to 
determine whether a union is still supported by a majority of unit 
employees.\366\ Unions, not employees, are protected by removing any 
chance for employees, who will never have had the chance to vote on 
whether to be represented by a union, to challenge voluntary 
recognition agreements.\367\ And unions, not employees, are protected 
when they are given more latitude to enter into 9(a) relationships 
without providing employees adequate opportunity to challenge that 
change to their representation status. The 2020 Rule put provisions in 
place to protect employees' choice of representative and their ability 
to ``voice'' that choice

[[Page 63023]]

through the established, preferred method of Board-conducted secret-
ballot elections. The removal of these protections is directly at odds 
with the Board's mandate under the NLRA.
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    \366\ According to my colleagues, the 2020 Rule represented ``a 
narrow view as to what constitutes employee `free choice,''' even as 
their conception of ``employee voice'' leaves out the employee free 
choice interests of decertification petitioners entirely.
    \367\ The majority claims that by ``focusing on `fair choice' 
and `employee voice,' [they] aim to place the emphasis where it 
belongs: on employees' fundamental Section 7 rights,'' including by 
resolving any ``question of representation . . . by conducting `an 
election by secret ballot.' '' (quoting 29 U.S.C. 159(c)). Yet my 
colleagues go out of their way to deprive employees on whom a 
voluntary recognition agreement is imposed of the right to pursue 
``an election by secret ballot.'' They effectively do the same to 
construction employees who would challenge the Sec. 9(a) 
representative status of a union who began representing them 
pursuant to Sec. 8(f).
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    Compounding the harm to employees and the Board's other 
stakeholders is the unnecessary and counterproductive policy 
oscillation represented in the 2024 Rule and other recent agency 
actions, such as the majority's two recent final rules rescinding and 
replacing separate, well-reasoned administrative rules defining joint 
employer status under the Act \368\ and revising the Board's 
representation procedures.\369\ Indeed, as noted at the outset, the 
2024 Rule is simply the product of a new Board majority's disagreement 
with the 2020 Rule rather than any changed circumstances that might 
justify such a stark policy reversal. My colleagues cannot, nor do 
they, present any evidence that the 2020 Rule has infringed on 
employees' rights, nor can they present evidence that the 2020 Rule has 
failed to protect employees' rights as intended.
---------------------------------------------------------------------------

    \368\ Standard for Determining Joint Employer Status, 88 FR 
73946 (2023).
    \369\ Representation-Case Procedures, 88 FR 58076 (2023).
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    Just because my colleagues have the power to make the changes 
promulgated in this rule does not establish that they have a reasonable 
basis for doing so under the NLRA. Because I do not believe that they 
do, as well as for the reasons I have discussed above, I respectfully 
dissent.

VIII. Regulatory Procedures

A. The Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
601-612, requires an agency promulgating a final rule to prepare a 
Final Regulatory Flexibility Analysis (FRFA) when the regulation will 
have a significant economic impact on a substantial number of small 
entities. An agency is not required to prepare a FRFA if the Agency 
head certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. 5 U.S.C. 605(b). 
Although the Board believed that this rule would not have a significant 
economic impact on a substantial number of small entities, the Board 
issued an Initial Regulatory Flexibility Analysis (IRFA) with its 
proposed rule to provide the public the fullest opportunity to offer 
feedback. See 87 FR 66929. The Board solicited comments from the public 
that would shed light on potential compliance costs that may result 
from the rule that the Board had not identified or anticipated.
    The RFA does not define either ``significant economic impact'' or 
``substantial number of small entities.'' \370\ 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.'' \371\ After reviewing the comments, the Board 
continues to believe that the only direct cost of compliance with the 
rule is reviewing and understanding the rule. Given that low cost, 
detailed below, the Board certifies that this final rule will not have 
a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \370\ 5 U.S.C. 601.
    \371\ U.S. Small Business Administration (SBA) Office of 
Advocacy, A Guide for Government Agencies: How to Comply with the 
Regulatory Flexibility Act (SBA Guide) 18 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf.
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1. A Description of and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply
    To evaluate the impact of the final 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 building and 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 6,294,604 business firms with employees in 
2021.\372\ Of those, the Census Bureau estimates that about 6,274,916 
were firms with fewer than 500 employees.\373\ While this final 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.\374\ Accordingly, the Board assumes for purposes 
of this analysis that all 6,274,916 small business firms could be 
impacted by the final rule.
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    \372\ U.S. Department of Commerce, Bureau of Census, 2021 
Statistics of U.S. Businesses (``SUSB'') Annual Data Tables by 
Establishment Industry, Data by Enterprise Employment Size, https://www.census.gov/data/tables/2021/econ/susb/2021-susb-annual.html 
(from downloaded Excel Table entitled ``U.S. & States, 6-digit 
NAICS'' found at https://www2.census.gov/programs-surveys/susb/tables/2021/us_state_6digitnaics_2021.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. Census Bureau definitions of ``establishment'' and 
``firm'' can be found at https://www.census.gov/programs-surveys/susb/about/glossary.html.
    \373\ 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, 2021 SUSB Annual Data 
Tables by Establishment Industry, Data by Enterprise Employment 
Size, https://www.census.gov/data/tables/2021/econ/susb/2021-susb-annual.html (from downloaded Excel Table entitled ``U.S. & States, 
6-digit NAICS'' found at https://www2.census.gov/programs-surveys/susb/tables/2021/us_state_6digitnaics_2021.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).
    \374\ 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.'' \375\ The SBA's small business standard for 
``Labor Unions and Similar Labor Organizations'' (NAICS #813930) is $8 
million in annual receipts.\376\ In

[[Page 63024]]

2017, there were 13,137 labor unions in the U.S.\377\ Of these, 12,771 
(97.21% of the total) are definitely small businesses according to SBA 
standards because their receipts are below $7,499,999.\378\ And, 104 
additional unions have annual receipts between $7,499,999 and 
$9,999,999.\379\ Since the Board cannot determine how many of those 104 
labor union firms fall below the $8 million annual receipt threshold, 
it will assume that all 104 are small businesses as defined by the 
SBA.\380\ Therefore, for the purposes of this IRFA, the Board assumes 
that 12,875 labor unions (97.73% of total) are small businesses that 
could be impacted by the final rule.
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    \375\ 29 U.S.C. 152(5).
    \376\ 13 CFR 121.201.
    \377\ The Census Bureau only provides data about receipts in 
years ending in 2 or 7. The 2022 data has not yet 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).
    \378\ Id.
    \379\ See id.
    \380\ The Board could not determine a definitive number of labor 
union firms that are small businesses because the small business 
thresholds for the relevant NAICS code is not wholly compatible with 
the manner in which the Census Bureau reports the annual receipts of 
firms. The small business threshold is $8 million in annual receipts 
for NAICS code 813930 (Labor Unions and Similar Labor 
Organizations), but the Census Bureau groups together all firms with 
annual receipts between $5 million and $7,499,999 and those with 
annual receipts between $7.5 million and $9,999,999. 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).
---------------------------------------------------------------------------

    The number of small entities likely to be directly impacted by the 
final 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 .0026% of the 6,274,916 small entities that could be 
subject to the Board's jurisdiction.\381\
---------------------------------------------------------------------------

    \381\ In the first two years of the current blocking charge 
policy, of the 3,867 petitions filed, there were 66 requests that 
unfair labor practice charges block an election, which means only 
132 entities of the 6,274,916 small entities (.0021%) that could be 
subject to the Board's jurisdiction were affected by the policy.
---------------------------------------------------------------------------

    Similarly, the number of small entities likely to be directly 
impacted by the voluntary recognition bar doctrine is also very 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. During the first two 
years, the Board has received an average of 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 .0041% 
of the 6,274,916 small entities that could be subject to the Board's 
jurisdiction.
    Throughout the IRFA, the Board requested comments or data that 
might improve its analysis, 87 FR 66915, 66932, but no additional data 
was received regarding the number of small entities and unions to which 
this change will apply.
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 building 
and 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 or 
representing members of the building and construction industry because 
Section 8(f) applies solely to those entities. Of the 764,546 building 
and construction-industry employers classified under the NAICS Section 
23 Construction,\382\ approximately 692,911 meet the SBA ``small 
business'' standard for classifications in the NAICS Construction 
sector.\383\ The Department of Labor's Office of Labor-Management 
Standards (OLMS) provides a searchable database of union annual 
financial reports.\384\ 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 and 2022

[[Page 63025]]

IFRAs, the Board identified 3,929 labor unions primarily operating in 
the building and construction industry that met the SBA ``small 
business'' standard.\385\ Although unions that do not primarily operate 
in the building and construction industry could still be subject to the 
final rule if they seek to represent employees engaged in the building 
and construction industry, comments received in response to the 2019 
and 2022 IRFAs 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 
categories of small entities that would likely take special interest in 
a change in the standard for using contract language to serve as 
sufficient evidence of majority-supported voluntary recognition in the 
building and construction industry.\386\ Therefore, at this time, the 
Board assumes that this portion of the final rule could only affect 
696,840 of the 6,274,916 small entities that could be subject to the 
Board's jurisdiction.
---------------------------------------------------------------------------

    \382\ 13 CFR 121.201. These NAICS building and 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, 2021 SUSB Annual Data Tables by Establishment Industry, 
https://www2.census.gov/programs-surveys/susb/tables/2021/us_state_6digitnaics_2021.xlsx.
    \383\ The Board could not determine a definitive number of 
building and 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 $19 million in annual receipts for NAICS codes 
238110-238220, 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 $45 million in annual receipts, but the Census Bureau groups 
together firms with annual receipts between $40 million and 
$49,999,999. 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.
    \384\ U.S. Department of Labor, Office of Labor-Management 
Standards, Online Public Disclosure Room, Download Yearly Data, 
Union Reports, Yearly Data Download, available at https://olmsapps.dol.gov/olpdr/.
    \385\ 84 FR 39955 & fn. 136; 87 FR 66930 & fn. 223. The small 
business threshold for labor unions has since increased to include 
entities with annual receipts of less than $16.5 million. 13 CFR 
121.201.
    \386\ 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.
---------------------------------------------------------------------------

    The Board is also unable to determine how many of those 692,911 
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 and 2022 IRFAs, 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).\387\ Between October 1, 2017, and November 2022, the 
issue only came before the Board once.\388\
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    \387\ 84 FR 39955; 87 FR 66931.
    \388\ Enright Seeding, Inc., 371 NLRB No. 127 (2022).
---------------------------------------------------------------------------

2. Estimate of Economic Impacts on Small Entities
    The RFA requires an agency to determine the amount of ``reporting, 
recordkeeping and other compliance requirements'' imposed on small 
entities.\389\ 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.\390\
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    \389\ See 5 U.S.C. 603(b)(4), 604(a)(4).
    \390\ 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 conclude that the final 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 final 
rule; no lost sales and profits directly resulting from the final rule; 
no changes in market competition as a direct result of the final 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 final rule; and no direct costs of hiring employees 
dedicated to compliance with regulatory requirements.\391\ The Board 
did not receive any comments that identified any direct costs on small 
entities. Moreover, the final rule may 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 final 
rule or by engaging in a representation case proceeding that would have 
otherwise been barred by a voluntary recognition. And, the final rule 
rescinds the information collection, recordkeeping, and reporting 
requirements that the 2020 Rule imposed on small entities. Accordingly, 
the Board asserts that the only direct cost to small entities will be 
reviewing the rule.
---------------------------------------------------------------------------

    \391\ See SBA Guide at 37.
---------------------------------------------------------------------------

    To become generally familiar with the final 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 or union may take at most ninety minutes 
to read the text of the rule and the supplementary information 
published in the Federal Register and potentially to consult with an 
attorney.\392\ We estimate that an attorney would spend one hour 
consulting on the changes.\393\ Using the Bureau of Labor Statistics' 
estimated wage and benefit costs, we have assessed these costs to be 
between $195.57 and $214.31.\394\
---------------------------------------------------------------------------

    \392\ 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 2023, 13-1075 Labor 
Relations Specialists, found at https://www.bls.gov/oes/current/oes131075.htm, with Occupational Employment and Wages, May 2023, 13-
1071 Human Resources Specialists, found at https://www.bls.gov/oes/current/oes131071.htm.
    \393\ The Board based its estimates of how much time it will 
take to review the final rule and consult with an attorney on the 
fact that the final 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 business.
    \394\ For wage figures, see May 2023 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 2023, 
average hourly wages for labor relations specialists were $45.49 and 
for human resources specialists were $36.57. The same figure for a 
lawyer (BLS #23-1011) is $84.84. 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 construction 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 potentially to consult with an attorney. We estimate that 
an attorney would spend one hour consulting on the changes.\395\ Thus, 
the

[[Page 63026]]

Board has assessed labor costs for small employers and unions 
representing employees in the construction industry to be between 
$221.17 and $246.15.\396\
---------------------------------------------------------------------------

    \395\ 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.
    \396\ See fn. 292.
---------------------------------------------------------------------------

    The Board does not 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.\397\ 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 competitive ability, particularly against larger 
firms); and whether the cost of the final 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.\398\ The 
minimal cost to read and understand the rule will not generate any such 
significant economic impacts.
---------------------------------------------------------------------------

    \397\ See SBA Guide at 18.
    \398\ Id. at 19.
---------------------------------------------------------------------------

    Because the direct compliance costs do not exceed $246.15 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. The Board received no comments from the public to the 
contrary. Moreover, the Board did not receive any comments regarding 
its calculations or asserting any additional direct costs of compliance 
on small entities not identified by the Board.

B. The Paperwork Reduction Act

    In the NPRM, the Board explained that the proposed rule would not 
impose any information-collection requirements and accordingly, the 
proposed rule is not subject to the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq. See 87 FR 66932. We have not received any 
substantive comments relevant to the Board's analysis of its 
obligations under the PRA.

C. Congressional Review Act

    The provisions of this rule are substantive. Therefore, the Board 
will submit this rule and required accompanying information to the 
Senate, the House of Representatives, and the Comptroller General as 
required by the Small Business Regulatory Enforcement Fairness Act 
(Congressional Review Act or CRA), 5 U.S.C. 801-808. Pursuant to the 
CRA, the Office of Information and Regulatory Affairs has designated 
this rule as a ``major rule.'' Accordingly, the rule will become 
effective no earlier than 60 days after its publication in the Federal 
Register.

Final Rule

    This rule is published as a final rule.

List of Subjects in 29 CFR Part 103

    Jurisdictional standards, Election procedures, Appropriate 
bargaining units, Joint Employers, Remedial Orders.

    For the reasons set forth in the preamble, the National Labor 
Relations Board amends part 103 of title 29 of the Code of Federal 
Regulations as follows.

PART 103--OTHER RULES

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

    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.

    (a) 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 the 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.
    (b) If the regional director determines that the party's offer of 
proof describes evidence that, if proven, would interfere with employee 
free choice in an election, the regional director shall, absent special 
circumstances, hold the petition in abeyance and notify the parties of 
this determination.
    (c) If the regional director determines that the party's offer of 
proof describes evidence that, if proven, would be inherently 
inconsistent with the petition itself, the regional director shall, 
absent special circumstances, hold the petition in abeyance and notify 
the parties of this determination; in appropriate circumstances, the 
regional director should dismiss the petition subject to reinstatement 
and notify the parties of this determination.
    (d) 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.
    (e) If, after holding a petition in abeyance, the regional director 
determines that special circumstances have arisen or that employee free 
choice is possible notwithstanding the pendency of the unfair labor 
practices, the regional director may resume processing the petition.
    (f) If, upon completion of investigation of the charge, the 
regional director determines that the charge lacks merit and is to be 
dismissed, absent withdrawal, the regional director shall resume 
processing the petition, provided that resumption of processing is 
otherwise appropriate.
    (g) Upon final disposition of a charge that the regional director 
initially determined had merit, the regional director shall resume 
processing a petition that was held in abeyance due to the pendency of 
the charge, provided that resumption of processing is otherwise 
appropriate.
    (h) The provisions of this section are intended to be severable. If 
any paragraph of this section is held to be unlawful, the remaining 
paragraphs of this section not deemed unlawful are intended to remain 
in effect to the fullest extent permitted by law.

0
3. Revise Sec.  103.21 to read as follows:


Sec.  103.21  Processing of petitions filed after voluntary 
recognition.

    (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

[[Page 63027]]

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) Notwithstanding paragraph (a), an employer's voluntary 
recognition of a labor organization as exclusive bargaining 
representative of a unit of the employer's employees will not preclude 
the processing of a petition filed by a competing labor organization 
where authorized by Board precedent.
    (f) This section shall be applicable to an employer's voluntary 
recognition of a labor organization on or after September 30, 2024.
    (g) The provisions of this section are intended to be severable. If 
any paragraph of this section is held to be unlawful, the remaining 
paragraphs of this section not deemed unlawful are intended to remain 
in effect to the fullest extent permitted by law.


Sec.  103.22  [Removed]

0
4. Remove Sec.  103.22.

    Dated: July 23, 2024.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2024-16535 Filed 7-26-24; 8:45 am]
BILLING CODE 7545-01-P