CPAW Files Formal Petition Demanding the NLRB End the Blocking Charge Loophole for Good

For years, American workers who want out of a union have faced a system rigged against them. The mechanism is called a "blocking charge," and it works exactly as union leadership intends: file a charge, freeze the election, run out the clock. Workers who invoke their legal right to vote are denied that vote, sometimes for months or even years.

On June 12th, Jackson Lewis filed a formal Petition for Rulemaking with the National Labor Relations Board on behalf of the Coalition to Protect American Workers to fix this once and for all.

Now, voices from across the labor policy world are adding to the call. Writing in Bloomberg Law on June 17th, former NLRB Member and Chairman Marvin Kaplan, who participated in more than 900 Board decisions over eight years, offered a clear-eyed assessment of where the blocking charge system has fallen short and exactly how the current Board can fix it. Drawing on nearly a decade of firsthand experience, Kaplan identified the core problem, outlined a workable solution, and called on the current Board to finish the job.

That kind of substantive, experienced guidance from a former NLRB chairman carries real weight. It is also a clear signal to General Counsel Crystal Carey and the current Board that the intellectual foundation is laid, the external pressure is building, and the time to act is now.

How Blocking Charges Impact American Workers

Under current rules, when workers want to hold an election to remove their union, a decertification vote, the union can file an unfair labor practice charge that effectively freezes the entire process. The election doesn't happen. The votes don't get counted. And by the time the legal process grinds to a close, often a year or more later, the workforce has turned over, the petition has gone stale, and the union remains in place without ever facing a vote.

The numbers tell the story. According to data cited in CPAW's rulemaking petition, blocked cases had a median petition-to-election period of 139 days compared to 38 days in unblocked cases. And as of late 2018, 118 blocked petitions were still pending, with an average wait time of 893 days. The oldest had been waiting more than 12 years.

Kaplan was blunt in his Bloomberg Law piece: "These charges have been used to delay elections for months to years, depriving employees of their rights protected by the National Labor Relations Act." He pointed to specific, real-world cases: workers at Scott Brothers Dairy blocked for nearly a year before ultimately voting 54-20 to leave their union. Cablevision employees in Brooklyn who waited nearly four years to remove their union as their representative. In the Jonna Corporation case, in which Kaplan himself dissented while on the Board, workers' votes were thrown out without being counted, and without a hearing to determine whether the alleged violations had any connection to the election at all.

The result, as Kaplan wrote, is "a one-way street." When a union wants workers in, the system moves fast. When workers want out, the system can be weaponized to stop them cold. As he put it, that asymmetry is "difficult to square with the National Labor Relations Act's protection of employee free choice."

The Rulemaking Petition: A Clear Fix

The rulemaking petition, co-signed by Gene Hamilton as Senior Advisor to CPAW, Michael Alcorn of the Institute for the American Worker, and Thomas Beck, former Chairman of the Federal Labor Relations Authority, asks the Board to adopt four straightforward reforms: elections must proceed on schedule regardless of pending charges; regional directors cannot dismiss petitions based on unproven, unadjudicated allegations; any withholding of ballots requires a written Board order under a demanding, injunction-like standard; and the Board must act on any impoundment request within 30 days or the ballots get counted.

The fix doesn't strip the Board of any authority. It places that authority where it belongs: with the Board itself, not with a procedural workaround at the regional level.

"American workers who want a vote deserve a vote," said Gene Hamilton, Senior Advisor to CPAW. "The blocking charge system has been weaponized for too long to deny employees the most basic right in labor law — the right to make their own choice. CPAW is calling on the NLRB to close this loophole permanently and ensure that every worker who invokes the decertification process gets the prompt, fair election the law guarantees them."

The Moment Is Right

With General Counsel Crystal Carey now in office and nominees James Macy and David Prouty awaiting Senate confirmation following a June 10th hearing, the NLRB is on the verge of having its full complement of five members for the first time in years. A fully constituted Board will have the numbers, and the mandate, to take on exactly the kind of durable, nationwide rulemaking CPAW is calling for.

Kaplan himself made the ask directly: "The Board has a chance to learn from our mistakes and issue a new procedure through which employee free choice is ensured." He laid out a clear path: end merit-determination dismissals, guarantee workers the right to vote immediately, and put the Board itself, not regional officials operating inside an administrative black box, in charge of any ballot impoundment decision. Together, he wrote, these changes would "for the first time" truly safeguard workers' right to free choice under the law.

The roadmap is there. The legal authority is there. The voices calling for action are growing louder. Now it's time for the Board to act.

Read CPAW's full Petition for Rulemaking here and Marvin Kaplan's Bloomberg Law op-ed here.