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A policy that allows for the halting of a union election if workers cry foul over their employer’s actions in the lead-up to voting could soon be revised by a Republican-majority labor board.
The board’s current policy is to pause a union election if workers or the union file a complaint alleging the employer interfered with the fairness of the election. It also allows for the blocking of an election if a worker seeking to decertify, or disband, a union alleges that the union interfered with the election.
The National Labor Relations Board’s GOP members said in a footnote in a Dec. 20 decision that the policy may be on the chopping block. New Chairman Marvin Kaplan wrote in ADT Security Services that he “would consider revisiting the Board’s blocking charge policy.” William Emanuel, the other new Republican member, said outright that he believes “the policy should be changed.”
The note is a strong indicator that the “blocking charge rule” will be among the major pieces of labor policy to be reversed by the Trump board, which will return to a Republican majority once the President nominates a member to replace former Chairman Philip A. Miscimarra (R). Miscimarra’s term expired Dec. 16.
The ADT decision concerned a petition to decertify an International Brotherhood of Electrical Workers union. Emanuel wrote that an “employee’s petition for an election shouldn’t be dismissed based on contested” allegations of unfair labor practices.
The board issued a series of impactful decisions earlier this month—the last of Miscimarra’s tenure—in an effort to begin reversing what many in the business community have said were excessively pro-union policies under President Barack Obama.
The ADT footnote means blocking rules may be next.
“We’re watching a revolution unfolding in board proceedings, and this signals where the next cannon shot may be fired,” union-side lawyer Michael Rubin of Altshuler Berzon LLP told Bloomberg Law Dec. 20.
It’s still possible that decisions Miscimarra participated in during his last days on the board are tied up in the administrative process and will be issued in the coming weeks. The former chairman has also expressed a desire to change the current policy on holding elections. In any case, the board will return to a 3-2 Republican majority as soon as a third Trump nominee is confirmed.
It’s difficult to determine whether the footnote “signals anything imminent,” Rubin said. “It may simply be them saying ‘while we’re 2-2 everyone can take a breath, digest the extraordinary changes we just imposed in that last week, and we’ll flag for you what’s next once we get a majority,’” Rubin said.
The National Right to Work Legal Defense Foundation has represented a number of employees in their petitions to decertify unions.
Those cases call for a change to the current blocking charge policy, arguing that unions use the rule to file spurious charges to block decertification elections.
The foundation is involved in the ADT litigation, in which Kaplan said he is open to reconsidering the rule in a “future appropriate case.”
Such a case already is pending in Calportland Co. That complaint concerns a Calportland employee who is represented by the NRTW foundation in his efforts to decertify a Teamsters union as the bargaining agent for his workplace.
The case could very well serve as the vehicle to implement the changes Miscimarra and the remaining Republican members have discussed.
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