Biden National Labor Relations Board plans to overturn Election Protection Rule, undermining workers’ statutory right to vote whether to remove unpopular unions

Washington, DC (February 3, 2023) – The National Right to Work Legal Defense Foundation has just submitted comments opposing the Biden National Labor Relations Board’s (NLRB) proposed rule to re-impose several onerous restrictions on workers. The rule is designed to, once again, trap private sector workers under the so-called “representation” of a union opposed by a majority of employees in a workplace.

The slated rule changes will overturn the Election Protection Rule, which the NLRB adopted in 2020 after the Foundation advocated for the elimination of several non-statutory policies that union officials often manipulate to avoid being voted out of a workplace by employees. The current comments opposing the changes rely on the Foundation’s unique perspective as the leading organization providing free legal aid to private-sector workers who face obstacles to exercising their right to vote on whether to remove an incumbent union (known as “decertification” elections).

“The Foundation is uniquely situated to comment on and oppose these rules, as its staff attorneys have represented individual decertification petitioners in many of the leading cases in this area of the law,” the comments say. “Foundation lawyers provide pro bono representation in a large percentage of the Board’s current decertification cases. To take just one recent snapshot, Foundation staff attorneys represent approximately 50% of the employees who filed decertification petitions in the month of December 2022.”

Biden NLRB Rule Change Will Let Union Officials Use “Blocking Charges” to Delay Elections

The Foundation’s comments explain that, if the Election Protection Rule is tossed, union officials will again be able to exploit often-unproven allegations of employer behavior to cancel employee-requested union decertification votes. Prior to the 2020 reforms, union officials could often stall a decertification vote for months or even years by filing so-called “blocking charges.”

The 2020 Election Protection Rule overturned the “blocking charge” policy, so workers now are allowed in most cases to cast ballots in a decertification vote before the NLRB deals with any allegations surrounding the election. If the Rule is jettisoned, workers would be blocked from even voting, let alone having their votes counted, any time union officials conjure up claims of workplace malfeasance.

“The bottom line is this: the former blocking charge policy incentivized [union officials] to file meritless or even frivolous unfair labor practice charges because they know the election will be delayed,” the comments say.

Foundation staff attorneys have provided legal assistance to many workers faced with “blocking charges.” Notably, the Foundation assisted a group of Alaskan bus drivers who were freed in December 2019 from an unpopular Teamsters union after three years of attempts to remove it. One employee in that situation commented to the NLRB shortly before the adoption of the Election Protection Rule that the NLRB’s continued blocking of the election based on the Teamsters’ unfair labor practice charges was “the most unfair and anti-democratic event” with which he had ever been involved.

Abuse-Prone “Card Check” Drives Likely to Become Irrebuttable

The Biden NLRB’s slated elimination of the Election Protection Rule will also block workers from filing for secret-ballot decertification elections to challenge so-called “card check” drives. A “card check” is a process in which union officials claim majority support among employees in a workplace based solely on authorization cards signed by employees and submitted by union officials, bypassing the election process entirely. The cards’ indication of true majority status is dubious as union agents may collect them directly from workers and often use threatening or intimidating tactics to do so.

The Election Protection Rule added a check to the misnamed “voluntary recognition bar,” a non-statutory policy that blocked workers from filing for a secret-ballot decertification election for a year after a union was installed via “card check.” The Election Protection Rule instead provided workers the ability to challenge a “card check” by petitioning for a secret-ballot vote, a theory first espoused in the Foundation-won 2007 Dana Corp. NLRB decision. If the Election Protection Rule is scrapped, the “voluntary recognition bar” would return.

Barring worker-submitted union decertification petitions “only shields what may well be a minority union from challenge” and “destroys employees’ [statutory] rights,” the comments assert.

Construction Workers Could Be Unionized with No Evidence of Majority Support

The comments finally warn that, if the Election Protection Rule is removed, construction workers would be exposed to unilateral attempts by union bosses and employers to impose union monopoly power with absolutely no evidence of majority employee support. The comments explain that these arrangements defy federal labor law and lay waste to employee free choice rights: “To cavalierly defer to unproven employer and labor organization assertions concerning employees’ exercise of their rights is akin to a farmer putting two foxes in charge of guarding his henhouse.”

Foundation staff attorneys represented a victim of such a scheme in Colorado Fire Sprinkler, Inc., a case that ended when a U.S. DC Circuit Court of Appeals panel unanimously ruled that the company’s workers were unlawfully unionized despite no evidence of majority employee support for the union.

“The move to eliminate the Election Protection Rule will re-impose arbitrary policies that trample workers’ rights and allow union bosses to maintain power despite the overwhelming opposition of rank-and-file workers,” observed National Right to Work Foundation President Mark Mix. “The Biden NLRB, now stocked with former union lawyers, is putting on full display that its priorities lie with top DC union brass, not rank-and-file American workers.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.