Over the course of just a few weeks, the National Labor Relations Board (NLRB or Board) continued its ongoing dismantling of long-standing precedent and rollback of Trump-era procedural rules. First, on July 26, 2024, the Board released the “Fair Choice – Employee Voice” Final Rule, reversing three amendments the Board made in April 2020 to its Rules and Regulations. Then, on August 22, 2024, the Board issued a split decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024) in which a Board majority ended its practice of accepting consent orders to resolve unfair labor practice complaints.

The Fair Choice – Employee Voice Final Rule

On July 26, 2024, the Board issued its “Fair Choice – Employee Voice” Final Rule, rescinding the Trump Board’s April 2020 amendments to the NLRB’s Rules and Regulations and restoring the following three policies those amendments had themselves changed.

• Blocking Charge Policy. The Board’s Final Rule restores the prior policy granting NLRB Regional Directors the 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.” Under the prior 2020 policy, the Board authorized two procedures for handling elections accompanied by blocking charges and requests: “vote-and-count” and “vote-and-impound.” Under either procedure, and in contrast to the new Fair Choice – Employee Voice Final Rule, elections were permitted to proceed and, depending on the nature of the pending charges, the ballots would either be immediately counted or impounded until the Board made a final determination regarding those charges. The 2020 rule was intended to prevent unions from using unfair labor practice charges to prevent elections they believed they may otherwise lose from being held, and instead directed that employees be allowed to vote in Board-conducted secret-ballot elections, with the outcome of the vote to be determined once the charges were resolved. In changing the policy back once again, the NLRB has given unions the green light to once again use the blocking charge policy as a strategic tool to manipulate the electoral process, particularly in union decertification elections.
• Voluntary Recognition Bar. This policy change removes the 2020 rule’s establishment of a 45-day open period for a minority of workers to file an election petition following an employer’s voluntary recognition of a union. The amended rule returns the Board’s policy to the standard set forth in Lamons Gasket Co., 357 NLRB 934 (2011), which prohibits employees from challenging the recognized union’s representative status for at least six months but no more than one year, significantly advantaging newly recognized unions while restricting the rights of employees to vote in Board-conducted elections (the Board’s preferred method for allowing employees to exercise their choice on representation).
• Section 9(a) Recognition in the Construction Industry. The Board’s final policy change reinstates the doctrine articulated in Staunton Fuel & Material, 335 NLRB 717 (2001), which governs the minimum requirements for attaining Section 9(a) representative status based on a written recognition agreement or contract clause in a collective-bargaining agreement in the construction industry. This amendment undoes the Board’s prior policy of requiring proof of majority employee support before establishing a Section 9(a) relationship. With the Fair Choice – Employee Voice Final Rule, unions representing employees in the construction industry will now be able to prove Section 9(a) recognition based on contract language alone—without any other evidence of a contemporaneous showing of majority support—and, as a consequence, such recognition will trigger the up-to-three-year contract bar period prohibiting the processing of election petitions filed by employees and other parties.

The effective date of the “Fair Choice – Employee Voice” Final Rule is September 30, 2024.

So Long, Consent Orders

For more than 50 years, the NLRB has permitted a party against which an unfair labor practice complaint has issued (the respondent) to resolve that complaint, even when both the party filing the charge (the charging party) and the NLRB’s General Counsel, who acts as the prosecutor on that charge, object to the settlement. Although infrequently used, these “consent orders” allow for resolution of litigation when a respondent is willing to effectively concede a violation and offer affirmative relief, even though that relief may be less than the charging party and General Counsel may be able to obtain as a remedy through successfully litigating the violations alleged in the complaint.

In Hospital Metropolitano, the General Counsel challenged an administrative law judge’s order approving a consent order based on the respondent’s proposed terms, which were rejected by both the General Counsel and the charging party. The General Counsel’s request seemingly presented the Board with two options: (1) evaluate the approved consent order under the “reasonableness” standard articulated in a Trump-era NLRB decision called UPMC and its subsidiary, UPMC Presbyterian Shadyside, 365 NLRB 1418 (2017), thereby maintaining the status quo (and very likely resulting in the denial of the General Counsel’s request for a special appeal); or (2) overturn UPMC, reinstating the standard set forth in Postal Service, 364 NLRB 1704 (2016), an earlier decision under which the Board will not approve a consent order unless it provides a “full remedy” for the alleged unfair labor practices. 

The Board, dissatisfied with both options, elected to end the practice of accepting consent orders altogether, closing the curtain on a practice dating back to 1971. Four justifications undergirded the Board’s decision: (1) the Board’s Rules and Regulations not only prohibit administrative law judges from “adjust[ing] cases,” but they are also silent on the propriety of accepting consent orders; (2) even if consent orders were consistent with the Board’s Rules and Regulations, returning to Postal Service’s “full remedy” standard is impractical and would likely result in significant expenditures of the Board’s limited resources; (3) the elimination of consent orders properly respects the General Counsel’s role under the National Labor Relations Act (“NLRA”), which grants the General Counsel final authority over the prosecution of unfair labor practice complaints before the Board; and (4) no policy of the NLRA supports the approval of consent orders, explaining that consent orders unnecessarily delay the litigation of the underlying unfair labor practice and, given that neither the General Counsel or the charging party has accepted the consent order, approving such an order does little to facilitate industrial peace.

The Board was careful however to reaffirm its longstanding practice of accepting settlement agreements between a respondent and the General Counsel and/or a charging party – and thus where at least one other party is willing to compromise on the terms proposed – in place of reaching a final adjudication of the unfair labor practice.