Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 15, 2022, in Rieth-Riley Construction Co., Inc., 371 NLRB No. 109, the National Labor Relations Board reaffirmed that regional directors have authority to dismiss representation and decertification petitions if the regional director determines there is merit to an unfair labor practice charge involving misconduct “that would irrevocably taint the petition and any related election.” This 3-2 decision illustrates a sharp division among Board members regarding the regional director’s discretion to administratively dismiss a timely filed decertification petition without first holding an evidentiary hearing on the impact of pending, but unproven, unfair labor practice allegations.
The Board majority observed that the 2020 Election Protection Rule, which addressed the Board’s blocking-charge policy,1 did not remove regional directors’ authority to issue merit-determination dismissals in appropriate cases. While all five Board members agreed that regional directors retain authority under long-standing Board practice to issue merit-determination dismissals,2 they disagreed as to the process that should be followed to determine when dismissal of a petition is warranted.
The majority’s position is that regional directors can determine, as a matter of law, that meritorious unfair labor practices taint a petition, such that regional directors may administratively dismiss that petition3 without first conducting an evidentiary hearing. The regional director determines such taint by applying the Master Slack4 factors to the charged unfair labor practices.
The standard set forth in Master Slack includes these four factors: (1) the length of time between the unfair labor practices and the filing of the decertification petition; (2) the nature of the violation, including the possibility of a detrimental or lasting effect on employees; (3) the tendency of the violation to cause employee disaffection; and (4) the effect of the unlawful conduct on employees' morale, organizational activities, and membership in the union.
In Rieth-Riley, the regional director initially issued a complaint against Operating Engineers Local 324 in 2018 for notifying certain member-employers of the Michigan Infrastructure and Transportation Association, Inc. (MITA), that it would not negotiate a successor agreement if MITA was their bargaining representative. In 2019, the regional director issued a complaint against Rieth-Riley Construction Co. for unlawfully locking out employees in furtherance of the allegedly unlawful bargaining objective of requiring the union to engage in multiemployer bargaining, a permissive subject of bargaining, and engaging in various unilateral changes to terms and conditions of employment. In that complaint, the regional director sought an affirmative bargaining order as part of the remedy. Shortly thereafter, in 2019, the unit employees went on strike.
A consolidated hearing on the two cases opened on October 21, 2019. The petitioner filed his first decertification petition on March 10, 2020. The regional director ordered the petition held in abeyance based on the Board’s then-effective blocking-charge policy. After that decertification petition was filed, the Board substantially modified its blocking-charge policy in the Election Protection Rule, which became effective on July 31, 2020. On August 7, 2020, the petitioner filed a second decertification petition. At that time, many of the unit employees were still on strike, and the consolidated hearing was still underway and far from being completed. Applying the Election Protection Rule, the acting regional director found that the petition raised a question concerning representation of the unit employees and directed a mail-ballot election. The ballots were mailed on October 13, 2020 and were due in the regional office by November 2, 2020.
Unit employees voted in the decertification election, and the virtual ballot count was scheduled for November 9, 2020. On that same day, however, the regional director administratively dismissed the petitions. Reversing the region's prior determination, the regional director found that a question concerning representation could not be appropriately raised at that time.
To determine whether to dismiss the petitions, the regional director conducted an ex parte administrative investigation into the allegations of the charge against the employer, applied the Master Slack factors and determined that there was a “causal nexus” between the unfair labor practices and employee disaffection for the union, thus tainting the decertification petitions. Despite previously scheduling an election and mailing out ballots, the regional director dismissed the decertification petitions on this basis without a hearing regarding the effect of the unfair labor practices on employee disaffection for the union.
In upholding the regional director’s determination, the Board majority not only affirmed the regional director’s power to dismiss the petition without a hearing, but went further, stating, “[R]egardless of any ‘causal nexus,’ the General Counsel sought an affirmative bargaining order in the complaint, which precludes finding that a question of representation was presented by the petition.”5
In the Board minority’s dissenting opinion, the members relied upon Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004), and argued that the regional director improvidently found a causal nexus between the unfair labor practices and the employees’ decision to file a decertification petition without holding a hearing on the matter, as “an important safeguard in our precedent requires that before dismissing a petition based on an alleged causal nexus, there must be a ‘causal nexus’ hearing as prescribed by Saint Gobain.” The opinion contended that speculating on the causal nexus denies employees their fundamental Section 7 rights and “[s]urely, a hearing and findings are prerequisites to such a denial.”
The Board minority also argued that a merit-determination dismissal based on the fact that the complaint seeks an affirmative bargaining order improperly gives controlling weight to the general counsel’s prosecution of the case while subordinating employees’ Section 7 right to reject or retain a union as their collective-bargaining representative. Under the majority’s approach, the opportunity of employees to hold any subsequent election will be long delayed since it must await final disposition of the unfair labor practice case.6
The split factions on the Board disagree about whether Saint Gobain mandates an evidentiary hearing to determine whether there is a causal nexus between unproven unfair labor practice charges and employee disaffection for a union that resulted in a decertification petition. The decision in Rieth-Riley answers this question in the negative.
The Rieth-Riley decision was issued on June 15, 2022. On June 21, 2022, the NLRB released its spring rulemaking agenda, which announced that the Board will consider revisiting the 2020 Election Protection Rule. While the Board has not publicly connected the Rieth-Riley decision with its rulemaking agenda, the decision may signal an intention to substantially revise the 2020 Election Protection Rule in favor of organized labor.
1 Blocking charges are unfair labor practice charges filed (sometimes repeatedly) by a party to a union representation proceeding that allege conduct that would interfere with employee free choice if the election proceeded. Blocking charges occur most often where a union is facing a decertification petition and is expecting to lose the employee-driven election. In response, it is common for a union to file ULP charges against the employer and then claim that the election cannot go forward until the charge is resolved, because allegedly there is doubt regarding the ability of employees to make a free and fair choice about representation.
2 The “Board generally will dismiss a representation petition, subject to reinstatement, where there is a concurrent unfair labor practice complaint alleging conduct that, if proven, . . . would interfere with employee free choice in an election, and . . . is inherently inconsistent with the petition itself. The Board considers conduct that taints the showing of interest, precludes a question concerning representation, or taints an incumbent union’s subsequent loss of majority support to be inconsistent with the petition.” Rieth-Riley Construction Co., 371 NLRB 109, p. 2, citing Overnite Transportation Co., 333 NLRB 1392, 1392–1393 (2001).
3 Such administrative dismissal is subject to reinstatement if an administrative law judge ultimately dismisses the allegations of the charge.
4 Master Slack Corp., 271 NLRB 78, 84 (1984).
5 371 NLRB No. 109 at 4, 7 (citing Big Three Industries, Inc., 201 NLRB 197 (1973)).
6 The minority was particularly concerned about the specific facts of this case, which include procedural delays in the unfair labor practice case, pending for over 21 months as of the date of the decision.