Contract Bar Rule Survives NLRB Challenge
The rule prohibits decertification during a contract
The National Labor Relation Board (NLRB) has decided against continuing with a Trump-era push to get rid of a rule that limits when workers can try to decertify a union.
The rule, known as the “contract bar” prohibits union decertification elections while a collective bargaining agreement is in effect for up to three years. It only allows decertification during a small window at the end of a contract or when the contract has expired. The doctrine has been around since 1939.
The attempt to change the contract bar was fairly late in the process as the NLRB had opened a public comment period on the change in June of 2020 and collected numerous comments from unions and businesses. The decision by the Republican board to not change the rule may also be an indication that, after four years of overreaching changes to labor law, that the board might take a more modest approach until August when Democrats are expected to regain control of the board. Since June of 2020, Democratic member Lauren McFerran has also been named chairwoman of the board, and the extremely anti-union NLRB General Counsel Peter Robb was replaced with the fairer Peter Sung Ohr. After he took over Ohr rescinded a brief that Robb had filed in support of getting rid of the contract bar.
The original challenge to the contract bar came from a worker at Mountaire farms who wanted to decertify the roughly 800-member UFCW local that represented the poultry processing plant in Delaware. The employee was supported in this effort by the Right to Work Legal Defense Foundation. When the case made its way to the board, the NLRB ruled that the contract bar blocked the decertification. This overruled a regional director who wanted to allow the decertification to go forward over an “invalid clause” in the union CBA. This director had actually let a mail-in decertification election begin before the NLRB stepped in and impounded the ballots.
Some longtime observers of the NLRB expressed surprise that the board decided to not make any changes to the contract bar.
“Once the board decided to seek briefs concerning whether it should overturn the contract bar rule, one would think that the board had already given a great deal of consideration to the countervailing policy reasons supporting and opposing the rule,” said former NLRB General Counsel Jerry Hunter, who is now an attorney with the management-side firm Bryan Cave Leighton Paisner.
AFL-CIO General Counsel Craig Becker, who was an NLRB member during the Obama administration, told Bloomberg that he was gratified to see that the board wasn’t willing to disturb a settled law that dates back to the beginning of the NLRB and that this might signal that the board sees value in the stability the contract bar creates.