Union boss-beholden NLRB to make it easier for union bosses to block workers from exercising right to vote out unpopular unions

Washington, DC (November 3, 2022) – The National Labor Relations Board (NLRB) today announced it was initiating rulemaking to rescind the Board’s Election Protection Rule, a 2020 provision that, among other things, helped protect rank-and-file workers’ statutory right to hold votes to remove unwanted union officials.

National Right to Work Foundation President Mark Mix issued the following statement on the Biden NLRB’s announcement:

“The Biden-appointed NLRB majority – two of whom were union lawyers when nominated for their seats on the Board – is once again protecting union boss power to the detriment of the statutory rights of rank-and-file workers. Make no mistake, reversing the Election Protection Rule will mean more workers trapped in forced union ranks they oppose, and more denials of worker requests for basic secret-ballot votes regarding union status.

“The NLRB’s own statistics indicate that workers are currently seeking to throw out unwanted unions at the highest rate in years. Yet, rather than reflect on why so many workers want nothing to do with union so-called ‘representation,’ the anti-worker response of the Biden Administration and their Big Labor allies is to build a wall to keep workers in unions, or to stop them from even holding votes to oust incumbent union bosses.”

NLRB Seeks to Undermine Right to Vote as Worker Decertification Efforts Increase

The NLRB adopted the Election Protection Rule in 2020 after multiple rounds of comments from Foundation staff attorneys supporting the changes. The rule included reforms to 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.

The 2020 rule stopped union charges from stalling worker-requested votes, and in most cases permitted the immediate release of the vote tally as opposed to ordering ballots to be impounded during litigation over “blocking charges.”

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 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 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 DC 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” would be barred for potentially years from ever holding a secret-ballot vote to determine the level of union support, as the bar following “card check” is often combined with other non-statutory bars like the three-year “contract bar.”

Workers nationwide relied on the Election Protection Rule as they exercised their right to vote out unpopular unions, and the NLRB’s own statistics show a sharp increase in worker decertification efforts. In 2021, the year following the Election Protection Rule’s adoption, Foundation attorneys aided over 7,000 workers at 54 workplaces in exercising their right to hold votes to boot unwanted union officials.

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.