In a new NLRB decision in Rieth-Riley Construction Co., Inc., 371 NLRB No. 109, the Board ruled that the Board’s current election-procedure rules, adopted in 2020, continue to permit merit-determination dismissals of election petitions, despite changes in the Board’s blocking-charge policy. 

The Board held that when an unfair labor practice charge alleges conduct that would interfere with employee free choice in a representation election, and a Regional Director determines after conducting an administrative investigation that the charge has merit and should be prosecuted, the Regional Director may dismiss a pending election petition.

The Board distinguished merit-determination dismissals from cases in which, prior to the 2020 changes in the rules, a Regional Director could block an election, based on a pending unfair labor practice charge that had not yet been reviewed.

A majority of the Board (Chairman McFerran, Member Wilcox, and Member Prouty) found that in this case, the Regional Director had properly dismissed a decertification petition, after finding merit in unfair labor practice charges.  While agreeing that the merit-determination dismissal procedure remains available to Regional Directors, Members Kaplan and Ring dissented on the grounds that an evidentiary hearing should be required.  

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