HRPA Releases Second Quarter NLRB Report as Labor Board Pulls Back on Union Decertifications

By Greg Hoff posted 06-24-2022 15:26


HR Policy’s Quarterly National Labor Relations Board Report includes a deep dive into NLRB General Counsel Abruzzo’s campaigns for card check elections and restrictions on employer mandatory meetings, key takeaways from several significant Board decisions issued this quarter, and a look ahead to upcoming Board decisions and key issues in play. Meanwhile, the Board issued a decision reviving a popular union tactic—so-called “block charges”—to delay or prevent employee efforts to rescind their union representation. 

“Block charges” explained: Under previous Board precedent, Board officials could suspend employee efforts to rescind their union representation on the basis of pending unfair labor practice charges against the employer, until all such charges were fully resolved. As a result, unions faced with a decertification campaign would often file numerous unfair labor practice charges against the employer to prevent employees from voting them out. In 2020, the Trump Board issued a rule under which such votes could still move forward despite pending unfair labor practice charges—Board officials would instead impound vote results until such charges were resolved.

The Board’s decision last week in Rieth-Riley Construction Co., Inc. held that the language of the 2020 rule still allows Board officials to dismiss employee decertification petitions if they unilaterally determine that there is a sufficient connection between any pending unfair labor practice charges against the employer and the employee disaffection with the union underlying the decertification petition. The Board’s decision grants Board officials the sole discretion to determine whether such a connection exists, without the chance for a hearing on the facts. 

Outlook: The Board’s decision invests Board officials with significant authority to forestall employees’ right to decide upon representation, and largely nullifies the Trump Board rule. Per the recently released Spring Regulatory Agenda, the Board will issue a new rule by the end of the year that will likely fully repeal the Trump Board rule and give unions free rein to block employee from voting them out through unfair labor practice charges.