Employment Law Daily Election petition filed before contract’s effective date not barred by contract-bar rule
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Wednesday, October 31, 2018

Election petition filed before contract’s effective date not barred by contract-bar rule

By Ronald Miller, J.D.

The contract-bar doctrine cannot bar the processing of an employer’s RM petition that was filed before the contract’s effective date, ruled a four-member panel of the NLRB, in a 3-1 decision. Because the employer’s petition was filed at a time when there was no contract in effect, there was no contract to bar the petition. Accordingly, the Board was required to process the petition, giving the employees a Board-conducted election to resolve a question concerning representation. Thus, the Board granted the employer’s request for a review of a regional director’s decision to dismiss the case, and remanded the matter for further appropriate action. Member McFerran filed a dissenting opinion (Silvan Industries, a Division of SPVG, October 26, 2018).

The employer operates a manufacturing facility in Wisconsin. On October 16, 2015, the union was certified as the exclusive bargaining representative of the employer’s production and maintenance employees. After months of bargaining for an initial contract, on October 13, 2016, the parties reached a tentative agreement, subject to ratification by bargaining unit employees, effective from November 7, 2016 through November 13, 2019. On October 15, the union informed the employer that the employees had ratified the proposed contract and the parties agreed to meet in person on October 25 to execute the contract.

Employee petition opposing representation. On October 25, an employee presented the employer with a petition in which employees expressed opposition to continued representation by the union. Believing that the petition raised a good-faith reasonable doubt as to the union’s continuing majority status, the employer filed an RM petition with the Board’s regional office. Shortly thereafter, the employer signed the CBA. On December 19, the regional director dismissed the RM petition without a hearing on the ground that it was filed after the union had accepted the employer’s contract offer. Specifically, the regional director found that the employer was precluded from challenging the union’s majority status under Anciello Iron Works.

In its request for review, the employer asserted that the regional director erred in dismissing the petition. Citing the Board’s 1953 decision in National Broadcasting Co., the employer contended that the parties’ agreement could not bar an election petition filed prior to the agreement’s effective date. It also asserted that nothing in Anciello Iron Works required a different result.

Contract-bar doctrine. To promote stability in collective bargaining and labor relations, the Board, under the contract-bar doctrine, limits the circumstances under which it will process an election petition that is filed during the term of a CBA. On the other hand, delay in resolving an otherwise valid question concerning representation necessarily affects the Section 7 rights of employees who do not support continued union representation. As part of its efforts to appropriately balance these competing considerations, the Board has formulated specific requirements that must be satisfied before it will allow a CBA to bar an election. These requirements include that the CBA be in writing, signed by the parties, and specify its effective date on its face so that employees and outside unions may determine the appropriate time for filing petitions from the face of the agreement itself, without having to resort to parol evidence.

The Board has recognized that the period during which a CBA bars an election runs from its effective date. In this case, the petition was filed on October 25, and the parties’ agreement was not effective until November 7. Accordingly, the petition was timely filed and was not barred by the parties’ agreement. It did not follow from the Board’s 1962 ruling in Montgomery Ward & Co., Inc. that an employer may not file an RM petition before a CBA goes into effect. Here, the contract-bar doctrine did not warrant dismissal of the petition because no contract was in effect when the petition was filed.

No withdrawal of recognition. The Board also recognized that the RM petition here was filed at a time when the employer could not have lawfully withdrawn recognition. However, in this instance, the employer did not withdraw recognition; rather, it engaged in good-faith bargaining as required by the Act, and when it received the employee petition opposing continued union representation, it filed an appropriate petition with the Board. Thus, the standard for determining whether an employer could lawfully withdraw recognition did not apply in this case

Dissent. Member McFerran argued that the Board should not permit an employer to file an election petition challenging a union’s majority status after the employer and union have reached an initial agreement, but before the agreement’s effective date, based on new uncertainty that the union has majority support.

According to McFerran, it was the employer—not the employees or a rival union—that was seeking to challenge the union’s status. Unlike employees seeking to decertify their union, or a rival union seeking to replace it, the employer negotiated and entered into a CBA with the union at a time when its majority status remained unquestioned. The parties had thereby successfully achieved one of the NLRA’s primary goals: reaching an agreement that stabilized their relationship and governed employees’ terms and conditions of employer for the duration of the agreement. Under those circumstances, McFerran argued that it was decisive that the employer had entered into a binding agreement before filing its petition.

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