Merit-Determination Dismissals Remain Available Under the Election Protection Rule: NLRB | Practical Law

Merit-Determination Dismissals Remain Available Under the Election Protection Rule: NLRB | Practical Law

In Rieth-Riley Construction Co., Inc., the NLRB held that its recently promulgated Election Protection Rule does not foreclose the continuation of merit-determination dismissals as a longstanding, distinct aspect of the NLRB's broader blocking-charge policy.

Merit-Determination Dismissals Remain Available Under the Election Protection Rule: NLRB

by Practical Law Labor & Employment
Published on 21 Jun 2022 • USA (National/Federal)
In Rieth-Riley Construction Co., Inc., the NLRB held that its recently promulgated Election Protection Rule does not foreclose the continuation of merit-determination dismissals as a longstanding, distinct aspect of the NLRB's broader blocking-charge policy.
On June 15, 2022, in Rieth-Riley Construction Co., Inc., the panel (Board) heading the NLRB's judicial and election functions considered the impact of the NLRB's recently promulgated Election Protection Rule (the Rule), which modified certain aspects of the Board's blocking-charge policy relating to holding representation petitions in abeyance, on the continuing viability of merit-determination dismissals (see 29 C.F.R. § 103.20; 85 Fed. Reg. 18366 (Apr. 1, 2020)). Historically, a Regional Director could dismiss a representation petition, subject to reinstatement, on finding merit in an unfair labor practice (ULP) charge concerning misconduct that would irrevocably taint the petition and any related election. The Board unanimously held that the Rule, which was silent on this issue, does not foreclose the continuation of merit-determination dismissals as a longstanding, distinct aspect of the NLRB's broader blocking-charge policy.
A majority of the Board (Chairman McFerran and Members Wilcox and Prouty) concluded further that the Regional Director properly dismissed the representation petition at issue in this case because:
  • Applying Master Slack Corp., the Regional Director found that a causal nexus existed between the employer's alleged unfair labor practices and the employee disaffection underlying the decertification petition (271 N.L.R.B. 78, 84 (1984)). The majority rejected the argument advanced by the dissent (Members Ring and Kaplan) that Board precedent in Saint Gobain Abrasives requires an evidentiary hearing on the impact of the alleged misconduct on employees before a causal nexus determination can be made (342 N.L.R.B. 434 (2004)).
  • Regardless of any causal nexus, the General Counsel's request for an affirmative bargaining order in the complaint precluded a finding that a question of representation was presented by the petition.
Members Kaplan and Ring concurred that a Regional Director may dismiss a representation petition based on a merits determination but concluded that:
  • A merits determination should not have occurred here without a hearing on the underlying ULP complaint to resolve disputed facts.
  • The request for a bargaining order in the complaint, issued over three years ago, could not still be ripe for consideration and should not bear on this ruling.
  • The Board should reinstate the petition on which the election was held and hold it in abeyance, with the ballots remaining impounded rather than being discarded, until the ULP case is resolved.
(371 N.L.R.B. No. 109 (June 15, 2022); see also NLRB News Release: Board Affirms Merit Determination Dismissal Process.)
The Board’s decision in Rieth-Riley confirms that, notwithstanding the changes to other aspects of its blocking-charge policy established by the Rule, merit-determination dismissals will continue to be available in cases in which the Regional Director finds merit in a pending ULP charge that would undisputedly taint any subsequent showing of employee disaffection. The ruling suggests that a Regional Director need not wait for presentation of evidence at a hearing in the ULP case to make a merits-determination dismissal.