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

F. The blocking charge policy should not be altered through the rulemaking process
SEIU does not believe that the Board’s blocking charge policy should be altered through the
Rulemaking process. That does not suggest, of course, that the policy and its interpretation should not
be subject to evolution and refinement through the development of case law, O.M. Memoranda, and the
periodic updating of the Casehandling Manual. Indeed, the current doctrine, as developed by case law,
is flexible. The Casehandling Manual stresses that “the policy is not intended to be misused by a party
as a tactic to delay the resolution of a question concerning representation. Numerous exceptions
exist in the doctrine.’
29 The exception allowing the Regional Director to determine that “free choice [is]
possible notwithstanding charge” permits the processing of petitions when appropriate by considering
seven factors.
13° When hearings or elections have been scheduled, the RD has significant discretion to
process the petition, including holding the election and either impounding the ballots or not.’
31
The Board has significantly modified the blocking charge doctrine through decisions. For
example, in Trueserve Corp. ,132 the Board determined that a settlement agreement without an admission
of liability does not bar the processing of a petition. In Saint Gobain Abrasives, Inc.,’
33 the Board
required a hearing to resolve whether there was a nexus between the ULPs and the filing of the petition
before dismissal of the petition. Although SEIU does not agree with these decisions and urges their
reversal, they demonstrate that the Board is fully capable of addressing any perceived problems with the
blocking charge doctrine through case by case determination. Accordingly, any necessary changes, in
order to best preserve flexibility, should continue to refine the blocking charge doctrine through case
law, rather than through amendments to the Rules.
VI. Electronic Signatures Should Not Be Adopted In The Rulemaking Process
The Board, at 76 Fed. Reg. 36819, has invited comments on whether the proposed regulations
should expressly permit or proscribe the use of electronic signatures to support a showing of interest.
We support the use of electronic signatures in this manner and believe would be appropriate in light of
the changes in technology and ways in which workers communicate with one another. However, it is
our view is that the Board has the authority to permit electronic signatures by amending its Rules and
Regulations and Statements of Procedure and does not have to go through the rulemaking process, and
therefore should not do so.
128 Casehandling Manual §11730.
129 Casehandling Manual §11731.
130 Casehandling Manual §1173 1.2.
131 Casehandling Manual §11731.4 & 11731.5.
132
NLRB 227 (2007).
133 342 NLRB 434 (2004).
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