The employer in Wellington Industries, Inc, 359 NLRB No. 18 (2012) was attending to labor issues on a few fronts. First, the Board found the employer committed multiple unfair labor practice charges, including conditioning bargaining on the absence of the union president, and issued a remedial order. Then, when a decertification petition was filed, rather than dismiss the petition, the Regional Director held it in abeyance pending the employer’s compliance with the remedial order. The employer sought a request for review. In denying the request, the Board stated that a request for review was an inappropriate venue to reconsider the Board’s longstanding blocking charge policy. Rather, Chairman Pierce and Board Member Griffin opined the subject would be better addressed as part of the current rulemaking concerning Board representation case procedures that has caused consternation amongst employers for months.
While the Board’s decision is standard, Member Hayes’ dissent was not. Hayes would have granted review and stated it would be appropriate to hold a hearing to “address whether there is a causal relationship between the Employer’s unfair labor practices and the desire of the petitioning employees to deauthorize the Union.” He further stated it was more likely the union’s 750% increase in dues that caused the disaffection than any unfair labor practice charge by the Employer. In a Board era that has employers losing rights in Board settlements, representation issues, social media policies, access to their facilities, and more; to say there must be a causal connection between a union’s conjured unfair labor practices and a delay in a decertification election is a voice of reason that should no longer be blocked by the Board’s own blocking policies. This is an important procedural issue to watch as the Board’s R-case rulemaking develops.