formal comments to the Board's proposed rule. - SEIU

V. The Existing Blocking Charge Doctrine Should Not Be Modified
A. Workers should not be forced to vote in a tainted election
SEJU believes that the Board’s current blocking charge doctrine is essentially sound and should
not be radically modified as the proposed rules seek to do. The basic premise of the blocking charge
doctrine—”to protect the free choice of employees in the election process,”
elections—is as sound now as it was when it was adopted.’
111 by avoiding tainted
12 As the Fifth Circuit observed:
The NLRB has employed its “blocking charge” rule since 1937 . . . . to dismiss
decertification petitions during the pendency of unfair labor practice proceedings or while
the effects of prior unfair labor practices remain undissipated. The reasons for this rule
do not long elude comprehension.”
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This fundamental reason, which the proposed regulations do not acknowledge, is that the conduct of a
tainted representation election is an inherently coercive event separate and apart from the unfair labor
practices giving rise to the taint. It is the experience of such an election—much more than the
experience of the vote tally—that leaves a residual weight upon the employees that the Act is designed
to protect. The lesson drilled into these workers is the futility of engaging in the election process at all.
Holding an election regardless of the taint, as the proposed rule seeks to do, only reinforces the
impact of the misconduct. The effects of ULPs will be much harder to dissipate among employees who
were required to commit themselves by the solemn act of voting while unlawfully affected by ULPs.
Reversing a decision after a voter has committed herself is far harder than simply convincing her of a
position afresh. In short, once the tainted election has been held, it is virtually impossible for the union
to have a full and complete remedy in a rerun election.
If the blocking charge doctrine is eliminated, the following scenario would occur with some
frequency: an employer unlawfully assists a decertification petition. The unlawful assistance diminishes
support for the union and leads to a tainted vote tally, showing the union to have minority strength. For
several years, the vote tally remains a public fact, while the unfair labor practice and objections are
litigated through the Court of Appeals. The union would face an enormously difficult time maintaining
its strength, a difficulty aggravated by the elimination of the blocking charge doctrine.
“ Casehandling Manual §11730.
112 United States Coal and Coke Company, 3 NLRB 398 (1937).
113 Bishop v. NLRB, 502 F.2d 1024, 1029 (5th CirJ974) (citations omitted); see also Albcrtson ‘S. Incorporated v. NLRB, 161
F.3d 1231, 1239 (10th Cir. 199$) (“We note that courts have approved the blocking procedure as properly within the NLRB’s
statutory authority to conduct representation elections and have held that a ‘blocking’ decision falls under the NLRB ‘s
authority to oversee representation proceedings”)
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