As is often the case with the NLRB, footnotes include critical information and signal where the NLRB is heading. And, that is certainly the case with the NLRB’s blocking charge policy. On May 9, 2018, in a footnote to an NLRB Order, Board Members Marvin Kaplan and William Emanuel signaled their intent to reconsider the NLRB’s blocking charge policy.

The blocking charge policy is one of the NLRB’s longest standing rules. In a nutshell, the rule allows the NLRB to place in abeyance election petitions where there are outstanding unfair labor practice (“ULP”) charges pending that, if true, could interfere with the employees’ free choice to vote either for or against a union. However, that is not to say that there have not been modifications to this long-established policy. Under NLRB Rules & Regulations, Section 103.20, any party wishing to block an election petition must now file a request that the petition be blocked, along with a request to block the processing of the petition, and simultaneously file a written offer of proof. The Regional Director will hold the election in abeyance if he/she determines that the allegations, if proven, would interfere with employee free choice and prevent a fair election.

Of course, protecting employee free choice is laudable; however, unions frequently use the blocking charges to delay elections seeking to remove the union as the employees bargaining representative in hopes that employee interest in decertification may fizzle out during the period in which the NLRB evaluates the merits of the ULPs. This can be an effective strategy given that the merits of ULPs frequently turn on the credibility of witnesses, and NLRB regional offices will not make credibility resolutions and will instead set a case for hearing before an NLRB administrative law judge. NLRB proceedings typically take months. Consequently, the filing of charges—even meritless ones—usually buy unions months of additional time collecting dues and trying to sway the minds of their membership or to discourage employees eager to rid themselves of the union by delaying the election process in the hope that those opposed to the union may not participate in the eventual decertification election. This, in turn, may enable a union with only minority support to continue representing employees.

In recognition of this, Board Members Kaplan and Emanuel signaled in a footnote that they intend to revisit the rule in a future case. Emanuel stated he believes that employee petitions should not be dismissed or even held in abeyance based on unproven allegations in unfair labor practice charges that are contested. Further, Emanuel and Kaplan are not alone in their desire to modify or do away with the policy, as NLRB General Counsel Peter Robb has noted that he believes that elections should proceed even in the face of unfair labor practice charges but only uphold the election if the charged party is cleared of all charges. Employee and labor groups oppose any such changes.

Still, the NLRB does not necessarily have to wait for the right case to come up; instead, the NLRB could modify its blocking charge policy through rulemaking. The NLRB did this in 2015 with its election rules (often described as “Quickie Election” rules). Given the NLRB is currently considering whether to revise these election rules, the NLRB could chose to modify its blocking charge policy by this route as well.

Chip Zuver is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department in its Los Angeles office.