NLRB Considers Making It Easier to Withdraw Union Recognition

Allen Smith, J.D. By Allen Smith, J.D. August 18, 2020
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​The National Labor Relations Board (NLRB) is considering scrapping or at least modifying a long-standing policy that makes voting out unions difficult for employees: the contract bar doctrine.

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.

The NLRB created the 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.

Complex Rules Under the Doctrine

Under the doctrine, an election petition that is filed while a union contract is in place will be found untimely and dismissed, unless it is filed within the period between the 60th and 90th day prior to the expiration of the contract, after the contract expires, or after the third anniversary of the contract for any agreement that is longer than three years in duration, said Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C.

Critics argue that the policy either precludes or makes unduly complex the right of employees to get rid of or replace a union that they believe is ineffective or nonrepresentational, he added. "The debate essentially centers on striking the appropriate balance between industrial stability and predictability and employee free choice."

Phillip Wilson, president and general counsel of Labor Relations Institute in Broken Arrow, Okla., said, "Because of the rule, most unions negotiate for a three-year term in their contracts, which means there is only a short 30-day window during each contract term where employees can exercise their right to remove a union they no longer want."

The contract bar doctrine most frequently comes up in the context of decertification elections, where employees seek to vote out unions, noted David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

Michael Hayes, a professor at the University of Baltimore School of Law, told Bloomberg that if the NLRB repealed or substantially diminished the contract bar doctrine, it would put into question multiple statutory provisions enacted since the rule took effect in 1939.

The board is examining the doctrine as part of the Mountaire Farms Inc. case. On July 17, the United Food and Commercial Workers Union Local 27 said it was inappropriate for the board to opine on matters, such as the contract bar doctrine, that exceed the narrow issue presented in the union's request for review in the case. That issue was whether an allegedly unlawful union-security clause would bar an election.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Possible Modifications

Hayes said that possible modifications to the contract bar doctrine include:

  • Eliminating it altogether.
  • Limiting its duration.
  • Increasing the length of the current 30-day window when employees can remove a union.

"At the very least, the contract bar period should be significantly reduced—for example, by limiting it to the first year of an existing collective bargaining agreement," Nadreau said.

Pryzbylski said that reducing the length of time of the bar to apply only to the first year of a collective bargaining agreement "would provide some relationship stability and labor relations certainty, but it would also greatly increase the rights of employees to oust unions with whom they are dissatisfied."

Nadreau added, "If a union has lost majority support, it has no business negotiating an agreement in the first place."

NLRB Seeks Briefs on Doctrine

The board has invited briefs until Sept. 23 from interested parties or "friends of the court" in Mountaire Farms Inc. on whether the board should rescind the doctrine, modify it or retain the policy as is.

The NLRB asked interested parties to address:

  • The formal requirements for according "bar quality" to a contract.
  • The circumstances in which an allegedly unlawful contract clause will prevent a contract from barring an election.
  • The duration of the bar period during which no question of representation can be raised.
  • How changed circumstances during the term of a contract may affect its bar quality.
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