On Tuesday, the National Labor Relations Board published final regulations that make important changes to the way union election campaigns are conducted – and legally challenged by either the union or employer. The most important change involves procedures for dealing with unfair labor practice charges that seek to delay or “block” the election. Depending on the nature of the legal challenge, the election will proceed, but the ballots will be either impounded or counted but impounded pending the outcome of the charge. The election results will not be certified until the unfair labor practice charge is resolved. This rule change could allow more elections, and especially more decertification elections, to proceed in the face of legal challenges.

Also, the new rules overturn an Obama-era NLRB decision that eliminated the traditional notice period and opportunity for employee disapproval of unions that have been voluntarily recognized by the employer. The regulations reinstate the previous 45-day waiting period and disapproval window to provide employees with an opportunity to understand and decide on representation even in the absence of employer objections.

The rules also contain changes to election procedures unique to the construction industry. By codifying board procedures in regulations, the NLRB has made it more difficult for a future board to overturn these positions. Absent legal challenge, the new rules take effect May 21, 2020.