January 2011 - National Labor Relations Board

11731 EXCEPTIONS TO BLOCKING CHARGE POLICYthe allegedly assisted union is certified. Carlson Furniture Industries, 157 NLRB 851(1966). In the event all parties reach an agreement that accomplishes the same purpose asa Board order disestablishing a bargaining relationship, thus removing recognition orcontract bar as an issue from the processing of the petition, the Regional Director mayhonor a waiver from the petitioner modeled on Carlson Furniture.11731.1(c)(2) Withdrawal and Attempted Reinstatement of ChargeA party which requests withdrawal of a refusal-to-bargain charge or of adomination of or assistance to union charge, in order to unblock a R case (in other words,which attempts to accomplish by withdrawal what it cannot accomplish by a request toproceed), should be advised that reinstatement of the charge might not be permitted afteran election. Fernandes Supermarkets, 203 NLRB 568 (1973).11731.2 Exception 2: Free Choice Possible Notwithstanding ChargeThere may be situations where, in the absence of a request to proceed (Secs.11731.1(a) and .1(c)(1)), the Regional Director is of the opinion that the employeescould, under the circumstances, exercise their free choice in an election and that the Rcase should proceed notwithstanding the existence of a concurrent Type I or Type IIunfair labor practice case and the absence of a request to proceed or a waiver.Factors: The following are among the factors to be considered under this section.(a) The character, scope, and timing of the conduct alleged in the charge, and theconduct’s tendency to impair the employees’ free choice(b) The size of the work force relative to the number of employees involved inthe events or affected by the conduct alleged in the charge(c) Whether the employees were bystanders to or the actual targets of the conductalleged in the charge(d) The entitlement and interest of the employees in an expeditious expression oftheir preference regarding representation(e) The relationship of the charging parties to labor organizations involved in therepresentation case(f) The showing of interest, if any, presented in the R case by the charging party(g) The timing of the charge.Also see Sec. 11731.6 for the considerations that apply when a charge is filedbefore a scheduled election.11731.3 Exception 3: Charges Otherwise Appropriate for Deferral Under Collyeror DuboIn situations where the processing of a representation petition is, or may beblocked by unfair labor practice charges that are otherwise appropriate for deferral underCollyer or Dubo, Regional Offices should conduct a complete investigation of theRevised 01/11