Don’t Block the Vote? Labor Board May Rethink Suspension Policy

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By Lawrence E. Dubé

For many years, the NLRB has suspended, or blocked, union elections and decertification votes when a union charged that an employer violated the National Labor Relations Act.

By delaying votes until unfair labor practice claims are investigated and resolved, the policy is supposed to protect employees from coercion during election contests. Critics contend that unions have exploited board procedures to frustrate or stall employees who want to remove or replace a collective bargaining representative or decertify a union altogether.

Now, a GOP-majority labor board skeptical of the current “blocking charge” policy, combined with several cases on the docket that challenge the standard, means the policy could change very soon.

Labor unions have used blocking charges to stave off decertification elections, in some cases “for years,” Patrick Semmens, vice president for public information of the National Right to Work Legal Defense Foundation, told Bloomberg Law in an email. The tactic “can let a union remain in the workplace collecting dues for years” from workers who overwhelmingly don’t want them there, “which is completely contrary to the stated purpose of the NLRA,” he said.

But Bruce M. Ludwig, who represents unions at Willig, Williams & Davidson in Philadelphia, said the board’s long-standing policy serves an important purpose and shouldn’t be discarded.

2014 Rule Called for Offer-of-Proof

The National Labor Relations Board adopted a rule in 2014 that any party seeking to block an election must support its request with proof that serious unfair labor practices justify such action, Ludwig said. The board, which then had a Democratic majority, declined to limit the use of blocking charges, but the offer-of-proof requirement makes it unlikely that elections will be delayed by “bogus” charges, he told Bloomberg Law.

Unions don’t want to delay NLRB elections, Ludwig said, but they should have the right to file appropriate charges when they’re “heading into a brick wall” of unlawful employer conduct.

Harry I. Johnson, a former Republican NLRB member who now represents employers at Morgan, Lewis & Bockius LLP in Los Angeles, told Bloomberg Law the NLRB should look at its own statistics to see whether the 2014 rule adding the offer-of-proof requirement has reduced the number of blocking charges filed each year.

Johnson, who argued in favor of modifying the board’s current policy, said he doubts there’s been a dramatic drop in the number of blocking charges. If there hasn’t been a significant drop, Johnson said, the board’s policy “would be worth looking at” again.President Donald Trump’s recent appointees to the board have now joined Philip A. Miscimarra, the board’s current chairman who also argued against the rule in 2014, in calling for a review of the policy.

Issue Teed Up on Board’s Docket

An Arizona building materials company may now have laid the foundation for the board to review and reverse course on its blocking charge policy.

In Calportland Co., a worker hoping to decertify the local Teamsters union as the employees’ bargaining agent, asked the board to review a regional director’s decision to suspend his decertification petition.

Calportland employee Tim Maguire is urging the board to use the case to revise its blocking charge policy, arguing that employees have a statutory right to petition for decertification votes, while labor board regional directors don’t have express authority under the NLRA to block such cases.Maguire, represented by an attorney from the National Right to Work Legal Defense Foundation Inc., argued that the 2014 rule adopted changes that placed a priority on speeding union requests for certification elections because it defers the resolution of objections and challenged ballots until after a vote takes place.

“If the Board can rush certification petitions to prompt elections by holding all objections and challenges until afterwards, it can surely do the same for decertification petitions,” Maguire argued. The NLRB should refrain from blocking decertification elections based on Type 1 conduct, the employee suggested.

The agency’s current policy divides unfair labor practice charges into two categories. “Type I” charges allege that an employer or union engaged in an NLRA violation affecting employees’ free choice. “Type II” charges describe conduct that affect employee free choice and are also inherently inconsistent with an election petition.

Blocking Charges Delay Votes

Congress in the NLRA never addressed how to address unfair labor practice charges during a representation election, but the NLRB has maintained its own policy for years.

The agency’s policy dates back to a 1937 NLRB decision in which the board postponed a union representation election because of pending unfair labor practice charges.

A type I violation can include an employer’s interrogation or discharge of an employee, or a union’s threat to a worker. A Type II unfair labor practice is a more serious infraction that might taint an election petition or cause disaffection with an incumbent union, such as an unlawful refusal to bargain with union representatives.

The board’s current policy is that if a regional director finds that a Type I charge has merit, an election should be suspended, but the director can proceed with the election if it appears employees can cast free and uncoerced votes despite the unfair labor practices.When a Type II unfair labor practice case is filed, a vote may be held in abeyance until the unfair labor practice issue is resolved or it may be dismissed, depending on the unfair labor practice alleged.

Although the board’s casehandling manual provides that blocking charges should be investigated quickly, a study of 2008 data by New York University law professor Samuel Estreicher found that NLRB cases affected by blocking charges proceeded to elections in a median of 139 days. By contract, the median for all election cases was 38 days.

That study is frequently cited by critics of the blocking charge policy who would like to see it eliminated or changed.

New Board Majority Questions Approach

Miscimarra, the board’s chairman for just a while longer, has commented in several representation cases that he still favors reconsideration of the blocking charge policy. The board’s newest members, Marvin E. Kaplan (R) and William J. Emanuel (R), joined him in that view in a recent unpublished decision.

In WestRock Services, Inc., the board declined to review a regional director’s administrative dismissal of a decertification petition due to alleged unlawful conduct that might have affected the election proceeding. However, Kaplan said he would consider “revisiting” the blocking charge policy in an appropriate future case.

Emanuel also weighed in against the current policy, expressing the view that an employee’s election petition should generally not be dismissed based on unfair labor practice allegations that are contested and not yet proven.

Positions Staked Out

NRTW attorneys are representing other employees in decertification cases presently before the board, and they’ve made similar arguments in each of the cases.

Unions pushed back in some of those cases. In Valley Hospital Medical Center, a Service Employees International Union local argued that the board has no obligation to reconsider its blocking charge policy. The agency conducted its extensive rulemaking on representation cases only a few years ago and it decided not to change its approach, the union said.In ADT Security Services, an Electrical Workers local argued that the board’s blocking charge policy “is vital to effectuating the Board’s role in representation proceedings: to ensure that employees may freely choose their representative.”The board’s adoption of a requirement for an offer “strikes a reasonable middle ground” by requiring the party seeking to block the petition to submit an initial offer of proof that would allow an NLRB regional director to gauge whether an unfair labor practice, if proven, would interfere with a free election, IBEW Local 110 told the board.

Miscimarra is leaving the board when his term ends Dec. 16, so the Republican majority could choose to act on the blocking charge policy by ruling in a pending case before the chairman leaves the agency. Trump hasn’t yet announced a nominee to replace Miscimarra.

To contact the reporter on this story: Lawrence E. Dubé in Washington, D.C. at ldube@bna.com

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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