Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—NLRB.: Regional director erred in dismissing decertification petition without administrative investigation, (Sep 3, 2026)

By Ronald Miller, J.D.

The regional director did not conduct an “administrative investigation” focused on the alleged instigation or taint to the showing of interest for a decertification petition.

A divided three-member panel of the NLRB overruled a regional director’s decision to dismiss a decertification petition seeking to oust a union. The Board determined that rather than investigate the complaint allegations that formed the basis of unfair labor practices charges, the regional director merely recited the complaint allegations, without including any express reasoning as to why those claims justified dismissing the petition. Accordingly, the Board granted an employee’s request to review the regional director’s decision dismissing the decertification petition. Member Prouty filed a separate dissenting opinion (McDowell County Commission on Aging, Inc. , 375 N.L.R.B. No. 33 (Sept. 1, 2026)).

The employer provides senior services and in-homecare. Since at least 2021, it has recognized the union as the representative of a unit of service and maintenance employees at its facility. The employer and the union were parties to a collective-bargaining agreement which expired on March 25, 2024.

Decertification effort. In the months following the expiration of the CBA, the union filed unfair labor practice charges in two cases, alleging that the employer provided more than ministerial assistance in connection with a decertification effort and soliciting employees to decertify the union. On June 7, a bargaining-unit employee filed the petition seeking to decertify the union.

The decertification election was held on July 9, 2024. After the election was completed, the regional director impounded the ballots under the terms of the rule then in effect pending issuance of a complaint in the unfair labor practice cases. On January 23, 2025, the employer and the union reached an agreement resolving the unfair labor practice cases, without an admission of wrongdoing by the employer, and requiring dismissal of the decertification petition; the employee was not a party to that agreement.

Dismissal of petition. On February 20, 2025, the regional director dismissed the decertification petition. The decision to dismiss listed as settled allegations “provid[ing] more than ministerial assistance to employees attempting to decertify the Union” and “[soliciting] the decertification of the Union by advising employees to contact an employee engaged in decertification efforts and telling employees to provide that employee with signed papers stating that they no longer wished to be represented by the Union.”

Resuscitation of complaint allegations. The Board determined that the regional director’s dismissal of the decertification petition was in error. According to the Board, the regional director’s decision to dismiss merely recited the complaint allegations that formed the basis of the since-settled ULP charges without including any express reasoning as to why those claims justified dismissing the petition at that juncture.

The regional director’s decision did not state that he had conducted an “administrative investigation” focused on the alleged instigation or taint to the showing of interest in a manner that would have been consistent with the NLRB Casehandling Manual. Rather, the regional director merely stated that “[t]he above-captioned case . . . has been carefully investigated and considered,” that he had investigated the unfair labor practice charge in the cases and that “[t]he investigation of that charge” disclosed conduct requiring the dismissal of the petition.

The Board observed that under Truserv Corp., 349 NLRB 227(2007), “[a] petition will be dismissed on traditional grounds if it is instigated by the employer.” Here, the dismissal letter does not describe the kind of “direct employer involvement” with the petition that is necessary to demonstrate that the showing of interest has been sufficiently tainted to warrant dismissing the petition.

Therefore, even if the regional director was attempting to invoke an exception to Truserv, and to dismiss the petition based on taint to the showing of interest, the conduct that the regional director relied on was not the kind that taints the showing of interest for the purpose of Truserv.

Accordingly, the Board granted the employee’s request to review the regional director’s decision and remanded the case to the regional director to open and count the ballots as soon as is practicable.

Dissent. Member Prouty argued that the majority’s assertion that TruServ bars the dismissal of the petition in this case was contrary to the Board’s articulation of the governing standard in that decision. According to the dissent, the regional director’s administrative finding that the employer “provided more than ministerial aid” in the decertification effort, polled employees regarding their support for the union, and “solicited the decertification of the Union by advising employees to contact an employee engaged in decertification efforts and telling employees to provide that employee with signed papers stating that they no longer wished to be represented by the Union,” brought this case squarely within the exception recognized in TruServ. Member Prouty concluded that the majority’s reading of TruServ is overly expansive and blurs the distinction between dismissal based solely on an employer’s agreement to resolve related unfair labor practice allegations, and dismissal based on an administrative finding that the employer was directly involved in the decertification effort.

The slip opinion is 375 NLRB No. 33.

Attorneys: Joel White (Fox Rothschild) for McDowell County Commission on Aging, Inc. Christian Wilson, (National Right to Work Legal Defense and Education Foundation, Inc.) for John Reeves.

Companies: McDowell County Commission on Aging, Inc.

Cases: Labor OrganizingElections AgencyNews