New rule will let union officials bypass secret ballot union vote process entirely or delay decertification votes by months or years

Washington, DC (July 30, 2024) – The Biden-appointed National Labor Relations Board (NLRB) majority recently announced a 3-1 final rule overturning the protections of the Board’s 2020 Election Protection Rule (EPR). The EPR secures workers’ right to have a secret ballot election on whether to remove a union in their workplace in situations where union bosses use coercive tactics to seize or remain in power.

The National Right to Work Legal Defense Foundation submitted comments in 2020 recommending reforms to the NLRB that were later adopted in the EPR. Foundation staff attorneys help workers dissatisfied with union bosses’ “representation” obtain secret ballot votes to “decertify”, or remove, unions in dozens of cases per year.

National Right to Work Foundation Vice President Patrick Semmens issued the following statement on the final rule:

“The Biden-Harris NLRB’s grossly misnamed ‘Fair Choice-Employee Voice’ rule expands union boss power by denying actual workers both a choice and a voice. In overturning the common-sense Election Protection Rule, this Board majority has again abandoned its mandate to be a neutral arbiter of federal labor law in order to assist union organizers in trapping workers in forced-dues union ranks against their will.

“Over the past few years, Foundation staff attorneys have often utilized the 2020 reforms to ensure workers could remove unwanted unions that were opposed by a majority of employees. Under the new anti-election rule, many of those employees would still be trapped in union ranks opposed by a majority of their coworkers – something that is directly contrary to the fundamental premise of the National Labor Relations Act that the NLRB is supposed to enforce.

“Despite this setback for the rights of independent-minded employees, we encourage workers to continue to reach out to the Foundation for free legal aid to explore all their legal options for challenging unwanted union bosses at their workplace.”

Biden NLRB’s Destruction of Key Worker Protections Will Trap Workers in Unwanted Unions

Despite comments from multiple groups and individuals backing the EPR and opposing the rule change, including detailed comments from the National Right to Work Foundation, the Biden-Harris NLRB repealed the protections.

The EPR reformed the NLRB process for dealing with union “blocking charges,” which union bosses often file to prevent rank-and-file employees from exercising their right to vote out a union. Union officials manipulate blocking charges to stop workers’ requested votes from taking place for months or even years by making one or multiple allegations against the employer, many of which are baseless.

The 2020 rule stopped union blocking charges from stalling worker-requested votes, and instead let litigation over the election results occur after workers had gotten an opportunity to cast ballots.

The Election Protection Rule also substantially eliminated the so-called “voluntary recognition bar,” a policy that union officials exploited to block workers from requesting a secret-ballot election after a union is installed through the abuse-prone “card check” process. The 2020 NLRB instead adopted a Foundation-backed process in which workers could submit a petition to hold a secret-ballot vote after a union’s installation by card check, with the secret-ballot election determining whether the union actually had the majority support union officials claimed in their submission of “union cards.”

Additionally, the Election Protection Rule cracked down on schemes in the construction industry where employers and union bosses installed a union in a workplace without first providing any proof of majority union support among the workers. Foundation staff attorneys represented a victim of such a scheme in a case (Colorado Fire Sprinkler, Inc.) that ended when a D.C. Circuit Court of Appeals panel unanimously ruled for the worker, who had been unionized despite no evidence of majority employee support for the union. As the federal court said, “the rule is that employees pick the union; the union does not pick the employees.”

With the elimination of the Election Protection Rule, workers will not only have a much harder path toward getting a vote on whether a union should be ousted, but even if the vote is held, they will likely be kept in the dark about the results of that vote for months or even years if litigation follows union blocking charges. Also, workers forced into union ranks via card check could be barred for years from ever holding a secret-ballot vote to determine the level of union support, as the 6 to 12-month bar following a card check is often combined with other non-statutory bars like the three-year “contract bar.”

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.