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NLRB Signals Reversal of Blocking Charge Policy

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Is the National Labor Relations Board’s (NLRB) blocking charge policy in its last days? Perhaps, according to a footnote in its recent decision in ADT Security Services Case 18-RD-206831 (December 20, 2017).

 

Current NLRB policy allows union elections to be paused if employees or the union file a complaint alleging that the employer committed an unfair labor practice. The current policy also permits halting an election if employees seeking decertification or disbanding of a union allege the union interfered with the election. However, in ADT Security Services, new NLRB chairman Marvin Kaplan stated he “would consider revisiting the Board’s blocking charge policy in a future appropriate case.” The other new Republican member, William Emanuel, was more direct, stating “the policy should be changed.” The ADT Security Services decision involved a decertification petition regarding an International Brotherhood of Electrical Workers union.

 

While the footnote in ADT Security Services likely indicates reversal of the vote blocking policy is on the horizon, the current composition of the Board is split evenly (2-2) along party lines, with former chairman Philip Miscimarra’s term having expired on December 16. Once the Board returns to a Republican majority under the Trump administration, we expect this policy to be on the list of policies to be reversed in the coming new year.

 

Joseph Hess

Joseph D. Hess is an associate in the Grand Rapids office of Barnes & Thornburg LLP. He is a member of the Labor and Employment Law Department. Mr. Hess counsels and defends employers and managers across all industries in a wide range of pre-litigation and litigation matters, including discrimination under the Americans with Disabilities Act (ADA), Family Medical and Leave Act (FMLA), Age Discrimination in Employment Act (ADEA), Title VII and state-law counterparts, wage and hour issues under the Fair Labor Standards Act (FLSA), and restrictive covenants. His practice also involves handling traditional labor matters under the National Labor Relations Act (NLRA), including multiple facets of collective bargaining and defending against unfair labor practice charges.

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