NLRB Declines to Make It Easier to Withdraw Union Recognition

Allen Smith, J.D. By Allen Smith, J.D. April 29, 2021
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the National Labor Relations Board seal on a tablet

​The National Labor Relations Board (NLRB) decided on April 21 it would retain the contract-bar doctrine, a long-standing policy that makes voting out unions difficult for employees.

The contract-bar doctrine states that once an employer and a union agree to a collective bargaining agreement, the employer, employees or any other union cannot challenge the union's status as a majority representative until either the collective bargaining agreement expires or three years pass, whichever is earlier, noted Josh Nadreau, an attorney with Fisher Phillips in Boston.

Previously, on July 7, 2020, the board issued a notice inviting parties to a case, Mountaire Farms, and other interested organizations to comment on whether the board should rescind the doctrine, retain it as it currently exists or retain it with modifications. In addition to retaining the contract-bar doctrine, the NLRB decided not to modify it at this time.

We've gathered articles on the board's recent decision in Mountaire Farms and on the contract-bar doctrine from SHRM Online and other trusted media outlets.

Doctrine's Purpose

The NLRB created the contract-bar doctrine decades ago, Nadreau said. It is not in the text of the National Labor Relations Act. Originally, the doctrine's stated purpose was to promote labor stability, Nadreau said. "Unfortunately, over the years, it has worked as an impediment to free choice among those bargaining-unit employees who may not have been employed at the time the contract was negotiated, let alone had a hand in negotiating it."

However, AFL-CIO General Counsel Craig Becker defended the doctrine in an interview with The Young Turks, saying that eroding or eliminating it could hurt companies by destabilizing corporate relationships with unions. "One of the arguments in favor of these bars is it gives both sides an incentive to be reasonable … as opposed to feeling you've got to fight to the hilt about everything," Becker said.

(SHRM Online)

NLRB Decision

In Mountaire Farms, a rival union sought to decertify a union. The incumbent union opposed the decertification petition because it was filed outside the 30-day period when an election petition may be considered—typically between the last 60 and 90 days prior to the expiration of the collective bargaining agreement. The regional director processed the petition, finding that the contract-bar doctrine did not apply. The NLRB reversed. But board member William Emanuel dissented, saying the contract-bar period should be reduced to two years and the window period increased to 60 days.

(The National Law Review)

NLRB Chairman's Reaction

Current NLRB Chairman Lauren McFerran tweeted that the board's decision was "essential to serve the [National Labor Relations Act's] goal of promoting stability in labor relations."

(Mondaq)

Others' Reactions

National Right to Work Legal Defense Foundation President Mark Mix said the contract-bar doctrine and other limitations on decertification elections that keep workers "tethered" to unions don't belong in the United States. "The appalling result of this decision is that approximately 800 already-cast votes of Mountaire Farms poultry workers will be destroyed, and the workers whose votes likely would show they oppose the union will all be forced to continue paying union dues or be fired," he said. 

AFL-CIO General Counsel Becker said he was surprised the NLRB didn't alter the contract-bar doctrine and added he was gratified the board didn't disturb settled law that went back decades. The decision may signal that the NLRB values the stability that the contract-bar doctrine creates, he said.

(Bloomberg)

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