Blocking Charges * * * * * * Robert S. Giolito and David A. Kadela. P&P Committee Puerto Rico 2018

Transcription

1 Blocking Charges * * * * * * Robert S. Giolito and David A. Kadela P&P Committee Puerto Rico 2018

2 Presented By Robert S. Giolito Law Office of Robert S. Giolito, P.C. Los Angeles, CA [ ] David A. Kadela Littler Mendelson, P.C. Columbus, OH

3 Is It A Block? Is It A Charge? No, it s...

4 The Blocking Charge Rule! A pending or newly-filed ULP charge may block a petition under certain circumstances.

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6 History Of The Rule A Board policy since 1937, as part of the Board s function of determining whether an election will effectuate the polices of the Act. American Metal Products, 139 NLRB 601 (1962) U.S. Coal & Coke, 3 NLRB 398 (1937) Policy attempts to ensure that violations that interfere with employee choice are remedied before an election is conducted. Traditionally applied by Regional Directors who have discretion not to process a petition in the face of a pending charge if they believe employee free choice is likely to be impaired.

7 History Of The Rule (contd.) Policy now codified in NLRB Rules & Regs., Sec (adopted 2015): Charges will not automatically block a petition. A newly filed blocking charge must simultaneously include a request to block, a written offer of proof containing the names of the witnesses, and a summary of their testimony. The General Counsel requires an expedited investigation of charges that could block an election (CHM 11740).

8 Current Application Of The Blocking Charge Rule (CHM ) The NLRB Casehandling Manual describes two categories of blocking charges: Type 1 charges that allege conduct that only interferes with employee choice. Regional Director may dismiss the petition or require a remedy before further processing. Type 2 charges that allege conduct that not only affects employee choice but also raises issues that preclude a QCR, a/k/a inherently inconsistent charges. Regional Director usually dismisses the petition.

9 Type 2 Charges Type 2 charges have three subtypes (CHM ): 1) ULPs that affect the showing of interest, e.g., Employer instigation or support or Union showing obtained through coercion. Hearst Corp, 281 NLRB 764 (1986) SFO Good-Nite, 357 NLRB 79 (2011)

10 Type 2 Charges (contd.) Type 2 charges have three subtypes (CHM ): 2) ULPs that preclude a QCR, e.g., a general refusal to bargain, or Employer-assistance to a union. Lee Lumber, 322 NLRB 175 (1996) EXCEPTIONS, where challenged conduct postdates the petition, or where the remedy would not affect the bargaining relationship, e.g., an order to produce requested information

11 Type 2 Charges (contd.) Type 2 charges have three subtypes (CHM ): 3) Other ULPs that taint the loss of majority support, where a causal relationship is established between the violation and subsequent employee dissatisfaction. Evaluated under Master Slack, 271 NLRB 78 (1984)

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13 Query Must Regional Directors hold a hearing before dismissing the petition? In St. Gobain Abrasives, 342 NLRB 434 (2004), the Board directed the Regional Directors to conduct an evidentiary hearing on the effect of the ULPs on the unit before speculating as to a causal relationship between the ULPs and the loss of support Regional Directors to apply the Master Slack factors: BUT... Length of time Nature of the illegal acts Tendency of the ULPs to cause employee dissatisfaction Effect of the ULPs on employee morale, activities, and union membership

14 Query (contd.)... St. Gobain did not address situations involving ULPs that are conclusively presumed to interfere with the holding of an election, e.g.: Where the Employer actively encourages decertification. Hearst Corp, 281 NLRB 764 (1986) SFO Good-Nite, 357 NLRB 79 (2011) Where the Employer generally refuses to bargain with an incumbent Union. Lee Lumber, 322 NLRB 175 (1996)

15 Effect Of Settlement Of Blocking Charges Regardless of the type of charge, a settlement of the charge will not dismiss a pending petition unless the petitioner withdraws the petition or the respondent admits liability: Truserve Corp., 349 NLRB 227 (2007)

16 Query Must the Employer admit causation as well as responsibility in order to preclude a St. Gobain hearing?

17 Arguments For And Against Changing The Rule FOR: There is no statutory basis for a blocking charge: See NLRA Sec. 9(e) (upon filing of a petition with a showing of interest the Board shall take a secret ballot of the employees in such unit ) AGAINST: Employers (and unions) are not entitled to an election caused by their unlawful conduct: Franks Bros. v NLRB, 321 U.S. 702 (1944) (election not appropriate remedy where union lost majority after employer s wrongful refusal to bargain) Brooks v. NLRB, 348 U.S. 96 (1954) (employer s refusal to bargain may not be rewarded with the decertification it seeks)

18 Arguments For And Against Changing The Rule (contd.) The Board has discretion to adopt practices that effectuate the policies of the Act: American Metal Products, 139 NLRB 601 (1962)

19 Arguments For And Against Changing Courts have approved the Board s blocking charge policy: The Rule (contd.) Associated Builders and Contractors of Texas, Inc. v. NLRB, 826 F.3d 215, 228 (5 th Cir. 2016) Bishop v. NLRB, 502 F.2d 1024 (5 th Cir. 1974) NLRB v. Big Three Industries, Inc., 497 F.2d 43, (5th Cir. 1974)

20 Arguments For And Against Changing The Rule (contd.) FOR: At least for Type 1 charges, petitions should not be blocked. The Board can utilize post-election objections procedures to safeguard against election fraud or other unlawful activity: See 79 Fed. Register No. 240, pp (Dec. 15, 2014) (Dissenting Views of Members Johnson and Miscimarra) AGAINST: Why should a petitioning or incumbent union proceed to an election in the face of serious ULPs that undermine employee free choice?

21 Arguments For And Against Changing The Rule (contd.) Holding a tainted election results in misimpressions and causes damage beyond that caused by the Employer s ULPs, and that cannot be remedied by conducting a rerun. and why waste Board resources on a contingent election?

22 Arguments For And Against Changing The Rule (contd.) FOR: Double standard! The blocking charge rule mainly applies to decertification elections RCs are rarely blocked and often only as a result of a manufactured charge. AGAINST: Untrue! In any number of RC election campaigns, unions find that employer post-petition ULPs have destroyed their chances of winning an election. In such cases, unions have filed charges requesting the Regional Director to block the petition pending remediation of the ULPs or even pending a determination of the propriety of a Gissel bargaining order.

23 Arguments For And Against Changing The Rule (contd.) FOR: Petitioning employees should not suffer from the Employer s unlawful conduct: The wrongs of the parent should not be visited on the children.... Overnite Transportation, 333 NLRB 1392, 1398 (2001) (Member Hurtgen, dissenting) AGAINST: But the Board is responsible for conducting a free and fair election under all of the circumstances, regardless of who is at fault it advances no policy of the Act to conduct an election unless employees can vote without unlawful interference, no matter who causes it.

24 Arguments For And Against Changing The Rule (contd.) FOR: St. Gobain should be expanded and a hearing held as a precondition to the initial decision to block an election. AGAINST: The Regional Director s initial decision to block a petition is essentially an interim decision pending an expedited investigation whether ULPs preclude the conduct of a fair election and, sometimes, whether ULPs tainted the showing of interest. The current procedures provide adequate procedural safeguards to ensure that the Regional Director makes a fair initial decision.

25 Arguments For And Against Changing The Rule (contd.) Fairness does not always require a hearing: The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances... All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard, to insure that they are given a meaningful opportunity to present their case. Mathews v. Eldridge, 424 US 319 (1976) (no hearing required before terminating disability benefits)

26 Arguments For And Against Changing The Rule (contd.) FOR: Unions file frivolous charges to delay elections. AGAINST: The current procedures adequately protect against abuse. Under Rule , the Regional Director must proceed with the election if the required offer of proof is untimely or inadequate, i.e., if it does not describe evidence that, if proven, would interfere with employee free choice in an election or would be inherently inconsistent with the petition itself. CHM requires that the Region continually monitor whether the charge should be blocking the petition.

27 Statistics The number of RD petitions dismissed has declined by over 40% since Section adopted : 2015: 407 RD petitions; 55 dismissed (13.5%) 2016: 313 RD petitions; 37 dismissed (11.8%) 2017: 328 RD petitions; 28 dismissed (8.2%)? What s this tell us?

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29 This information provided herein is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of any decision or principle of law should be verified by counsel.