Unions attempting to block decertification petitions with ULPs is nothing new. They’ve done so for at least eighty years, but the Biden-era NLRB made it easier to do so. And as with many other Board policies, the pendulum has been swinging wildly here, to the detriment of workers.
The first Trump NLRB eliminated the so-called “blocking charge” policy, but the Abruzzo-era Board brought it back, allowing unions to file unproven charges to halt the decertification process. That can lead to an indefinite delay or even a dismissal of the election, which allows unions to buy time to regain a majority and keep taking dues from workers’ paychecks.
Is it time for the pendulum to swing back? Momentum is building.
Workers And A Former NLRB Chair Weigh In
In January, labor attorneys greeted news of an NLRB quorum with predictions of a rulemaking session that would once again make blocking charges a thing of the past. Then the National Right to Work Legal Defense Foundation began showcasing frustrated union members who had filed Requests for Review with the NLRB:
- One manufacturing worker argued that the policy “does not just contravene a clear Congressional command, but also offends the entire structure and purpose of the Act: employee free choice.”
- A group of nurses, whose election was suspended, “point[ed] out that the NLRA does not grant the NLRB the authority to invent rules to stymie worker-requested decertification elections.” One of those nurses further alleged that NLRB regional offices’ acceptance of unfounded union claims violated workers’ due process rights by not allowing for a public hearing or worker review of the charges.
A similar argument is also coming from a former NLRB official who watched this union maneuvering happen. Ex-Chair Marvin Kaplan penned a Bloomberg Law column, in which he wrote, “After participating in more than 900 decisions and multiple rulemakings over eight years as a member and chair of the National Labor Relations Board, one issue still nags me—blocking charges.”
Kaplan wasn’t subtle in calling out the “misuse of the policy by unions seeking to block decertification.” He singled out a case of one workplace where votes were thrown out without a count. In another, workers filed their decertification petition and waited almost a year, only to “overwhelmingly” vote to boot their union when this could have happened much quicker.
He urged the Board to “learn from our mistakes and fix this once and for all” while suggesting multiple reform measures. Meanwhile, the NRTW Legal Defense Foundation is still on the case.
A Rulemaking Petition Has Landed
On June 12, the NRTW Legal Defense Foundation filed a petition for the Board to formally open a rulemaking process to undo the Biden Board’s blocking charge policy. The Foundation didn’t stop there and requested the repeal of several other Abruzzo Board “bars” to decertification that are not based in the NLRA’s statutory authority. The petition further relies on the plain text of the NLRA’s Section 9(a) and 9(c) to make its case for reinstating workers’ free choice regarding union representation.
If the blocking charge policy is rescinded, we can certainly expect it to happen through rulemaking rather than a case decision. The Sixth Circuit’s recent ruling in Brown-Forman v. NLRB reinforces that preference. In doing so, that court found the Abruzzo Board overstepped during its Cemex decision by creating policy through adjudication. That court later denied the Board’s bid, which it made via an en banc petition, to restore its policymaking ability via case decisions. So rulemaking it will be.
Don’t Expect This To Happen Quickly
The NLRB is still digging through its inherited case backlog, and there’s also no guarantee that its current quorum will last. The Senate HELP Committee postponed its consideration of William Macy’s nomination as well as the re-nomination of David Prouty, whose current term ends on Aug. 27. As of now, that hearing has been rescheduled for July 15.
That’s a roundabout way of saying that it could be a while before the NLRB could begin notice-and-comment rulemaking to rescind the current Blocking Charge policy, and then a 60-day comment period would begin. The good news for both workers and employers, though, is that the momentum is in motion to motivate this to happen. Tick tock.
