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Board Affirms Merit Determination Dismissal Process

Office of Public Affairs

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.  

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.