Labor Board Must Fix Blocking Charges to Protect Employee Choice

After participating in more than 900 decisions and multiple rulemakings over eight years as a member and chair of the National Labor Relations Board, one issue still nags me—blocking charges, which hinder employees’ free choice.

These charges allege violations of the National Labor Relations Act and can delay a representation election. They’ve been used for decades to postpone votes for months or years. In practice, they often deprive employees of the rights the act is meant to protect.

It’s a one-way street. When employees sought representation, the NLRB emphasized speed to capture employee sentiment before it dissipated. But when employees sought to remove or test support for an incumbent union, blocking charges made by the union could postpone a vote for years while allegations, valid or not, are investigated, tried, appealed, or supplemented by new charges. That asymmetry is difficult to square with the act’s protection of a two-way street.

Changes in neither 2020 nor 2024 produced a system that reliably safeguards employee free choice. The current NLRB can fix this long-standing problem by closing loopholes, ensuring employees can vote promptly, and taking responsibility for decisions that prevent ballots from being counted.

The act makes clear that employees have the right to self-organize, to form or join labor organizations, or to refrain from joining one. Fundamental to these rights is to determine representation through a secret-ballot election.

For most of the act’s history, however, the NLRB effectively limited that choice by refusing to allow representation elections when a pending unfair labor charge might affect an election’s validity. The board’s career regional directors were given broad discretion to freeze the election process, and the results were predictable: inconsistent application, strategic misuse, and prolonged uncertainty.

There are situations, of course, where serious allegations raise legitimate concerns about whether an election would reflect free choice. But the NLRB’s answer shouldn’t be indefinite delay or procedural workarounds that prevent employees from voting at all.

This policy was criticized by the courts, inconsistently applied by the regions, and used strategically by organized labor to delay, for months or years, employee efforts to choose whether they wanted to be represented by a union. The consequences have had significant impact on employees and employers nationwide.

For example, in a 2010 election at Scott Brothers Dairy, employees waited nearly a year to vote on whether to remain represented because of blocking charges. When ballots were finally allowed and counted after charges were dismissed or withdrawn, workers voted overwhelmingly, 54-20, to end representation.

Recognizing misuse of the policy by unions seeking to block decertification, the NLRB in 2014 required offers of proof and gave regional directors more discretion. The changes didn’t solve the problem.

In 2020, the board tried a different approach. Charges that a party had violated the act no longer put votes on hold. Elections could proceed immediately. Where violations alleged interference of free choice or raised issues about the demand for an election, the ballots could be impounded for 60 days or indefinitely if a complaint is issued.

A loophole quickly swallowed that rule change, too.

While the ink was still drying on that doomed change, regional directors began using a little‑known mechanism—merit-determination dismissals—to dismiss election petitions if their investigation led them to believe a charge had merit. They could do it without a hearing.

In 2024, for instance, drivers at Jonna Corporation saw their votes discarded without ever being counted, based solely on an administrative investigation, without a hearing to determine whether the alleged violations were material.

The 2020 change didn’t resolve blocking charges. It was never given a chance. The 2024 rescission back to pre-2020 standards certainly didn’t set things right. The current standard still fails to protect employee free choice.

The NLRB can learn from our mistakes and fix this once and for all. A new rule should:

End merit‑determination dismissals and other loopholes. Regional directors shouldn’t be able to nullify election petitions through administrative investigations that bypass board‑level review.

Guarantee employees the right to vote immediately. Ballots should be cast when employees file a petition. Postelection remedies can address misconduct without erasing contemporaneous employee choice.

Require board‑level responsibility for impoundment decisions. If ballots are to be impounded, the NLRB, not regional directors, should decide. An injunction‑style standard would ensure impoundment occurs only when the region demonstrates a likelihood of success, irreparable harm, favorable equities, and alignment with the public interest.

Impose timetables for resolution of blocking charges. If the regions must seek NLRB approval to impound ballots, they must do so in a reasonable period of time (for example, 30 to 60 days). The board must prioritize these cases to ensure they don’t linger. It has the authority to do this, as evidenced by its historical quick treatment of Section 10(j) injunctions.

Together, these four reforms would finally align the blocking‑charge process with the act’s core purpose: protecting employees’ right to free choice.

This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Marvin Kaplan is a principal at Jackson Lewis P.C. and is the former chair of the National Labor Relations Board.

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