On July 26, 2024, the Biden Administration’s National Labor Relations Board (NLRB) promulgated its “Fair Choice – Employee Voice” final rule.^[1] Its most significant effect is the return of the Blocking Charge Doctrine.^[2] This doctrine gives NLRB regional directors the authority to delay representation or decertification elections if the union alleges that the employer has engaged in an unfair labor practice.^[3] During this delay, the regional director investigates whether these allegations have merit.^[4]

While this practice is nothing new, originally dating back more than eighty years, the NLRB eliminated the Blocking Charge Doctrine in 2020.^[5] Under this 2020 rule, the NLRB would not delay an election because of allegations of unfair labor practices at all, even if found to have merit by an administrative law judge.^[6] The new rule restores the pre-2020 Blocking Charge Doctrine and is a step towards the NLRB better fulfilling its role to establish “the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.”^[7] Previously, employees had no choice but to vote in elections which, through the actions of the employer, may be tainted and unfair.^[8] Now, the NLRB can ensure that these allegations are meritless or otherwise fixed before the election so that employees are able to fairly decide whether they want to be represented by the union.^[9]

Beyond just ensuring fairer elections, which allow unions to better stave off unfair employer influence, this rule in effect gives unions more tools to work with during representation or decertification elections. As critics have pointed out, a blocking charge need not be successful to accomplish the goals of the union.^[10] A union may file a blocking charge with some (perhaps lesser) degree of merit in order to gain more time to campaign before the election date while the regional director investigates the seriousness of the charge.^[11] As these investigations may take as long as a year, a mere charge is a substantial tool in the union’s toolbox.^[12] During the investigation, employers are unable to make changes to the employees’ conditions of employment, including increasing pay or giving bonuses, so as to avoid additional allegations of unfair labor practices.^[13] Giving this power to delay an election to the union thus significantly shifts the balance of power toward collective bargaining.

By shifting power in representation and decertification elections towards unions, these changes increase the likelihood that they will succeed in these elections and give them greater power during negotiations. Increasing the resilience of unions is likely to benefit working- and lower-class people. The U.S. Treasury Department has found that union strength and membership has historically played a significant role in reducing income inequality and that the decline of union membership from 1979 to 2017 has contributed to increased inequality.^[14] Unions typically deliver their members higher wages and better benefits, which help families closer to the poverty line avoid the financial instability that can lead to poverty traps.^[15] Indeed, some studies have found that union density in a state reduces working poverty for both union and non-union households.^[16] While union membership has decreased considerably since its peak in the mid-1970s—from about 30 percent of workers to just 10 percent in 2023—policies like this one which empower unions might stem this decline or even contribute to a resurgence of union membership in the United States.^[17]

^[1] Press Release, Nat’l Lab. Rels. Bd., NLRB Issues Fair Choice–Employee Voice Final Rule (July 26, 2024), https://www.nlrb.gov/news-outreach/news-story/nlrb-issues-fair-choice-employee-voice-final-rule.

^[2] Id.

^[3] Id.

^[4] Louis Cannon & Gerald Bradner, Expert Analysis: Preparing For The NLRB’s New Union Recognition Rule, LAW360 (Aug. 22, 2024), https://plus.lexis.com/api/permalink/454cf0f5-6db5-47f5-afe0-c580ff612725/?context=1530671.

^[5] Celine McNicholas, EPI Comments on NLRB’s Proposed Rulemaking on Fair Choice and Employee Voice, ECON. POL’Y INST. (Feb. 2, 2023), https://www.epi.org/publication/epi-comments-on-nlrbs-proposed-rulemaking-on-fair-choice-and-employee-voice/.

^[6] Id.

^[7] NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973).

^[8] McNicholas, supra note 5.

^[9] Id.

^[10] Cannon & Bradner, supra note 4.

^[11] Id.

^[12] Heather Lanyi et al., The NLRB Implements Its Fair Choice — Employee Voice Final Rule, LAB. & EMP. L. BLOG (Aug. 19, 2024), https://www.laboremploymentlawblog.com/2024/08/articles/national-labor-relations-act/the-nlrb-implements-its-fair-choice-employee-voice-final-rule-effective-september-30-2024/.

^[13] Id.

^[14] U.S. DEPT. OF THE TREASURY, LABOR UNIONS AND THE MIDDLE CLASS 24 (Aug. 2023).

^[15] Id. at 20.

^[16] David Brady et al., When Unionization Disappears: State-Level Unionization and Working Poverty in the United States, 78 AM. SOCIO. REV. 872 (2013).

^[17] Dan Burns, US Union Membership Rate Hits Fresh Record Low in 2023 – Labor Dept, REUTERS, Jan. 23, 2024, https://www.reuters.com/markets/us/us-union-membership-rate-hits-fresh-record-low-2023-labor-dept-2024-01-23/.