January 2011 - National Labor Relations Board

11732 CHARGE FOUND NOT TO HAVE MERIT11732–11733 FINDING AS TO MERIT OF UNFAIR LABOR PRACTICECHARGE11732 Charge Found Not to Have MeritIf, upon completion of investigation of the charge, it is determined that the chargelacks merit and is to be dismissed, absent withdrawal, the Regional Director shouldproceed with the processing of the petition.Where the situation involves a Type I charge (Sec. 11730.2), the RegionalDirector should proceed with the petition as if there were no concurrent charge, eventhough the dismissal of the charge is either pending or on appeal, unless, in his/herdiscretion, he/she concludes that further processing of the petition should await theresults of the appeal.Where the situation involves a Type II charge (Sec. 11730.3) and the dismissedcharge is either pending or on appeal, the Regional Director may await the results of anappeal before processing or dismissing the petition, as appropriate, or he/she may proceedimmediately.If an appeal of the dismissal of the charge is filed with the Office of Appeals, thatoffice should be immediately notified of the pending concurrent petition and its currentstatus. If subsequent to this notification an election is scheduled in the petition, separatenotification of such should be sent to the Office of Appeals. If an election is to beconducted before the Office of Appeals has ruled on the appeal of a Type II charge, theballots ordinarily should be impounded pending a ruling from the Office of Appeals.11733 Charge Found to Have MeritIf, upon completion of investigation of the charge, it is determined that the chargehas merit and that a complaint should issue, absent settlement, the Regional Directorshould determine whether further processing of the petition should be blocked by thecharge or the petition should be dismissed. The parties should be informed accordingly.Sec. 11730.7. For the purposes of that determination, the Regional Director shall acceptthe allegations to be set forth in the complaint as true.11733.1 Blocking of Petition WarrantedIf the Regional Director determines that the petition should be blocked by a TypeI charge, because the impact of the meritorious unfair labor practices would have atendency to interfere with employee free choice in an election, were one to be conducted,he/she should hold the petition in abeyance until disposition of the charge, whereupon theprocessing of the petition may be resumed. Absent unusual circumstances, Exceptions 1through 6 to the foregoing, set forth in Secs. 11731.1 through .6, are equally applicableafter a merit determination has been made in the charge.Revised 01/11