Labor & Employment Law Daily NLRB to reexamine contract bar doctrine
Tuesday, June 30, 2020

NLRB to reexamine contract bar doctrine

By Wayne D. Garris Jr., J.D.

A poultry plant employee’s bid to oust his current union may topple a longstanding Board precedent that protects unions from being removed by an election for a period after a CBA has been executed.

On June 23, the National Labor Relations Board issued an order granting UFCW Local 27’s request for review of a Regional Director’s decision finding that its CBA with a Delaware processing plant did not act as a bar to an employee’s petition to decertify the union. More importantly, the Board also announced it will conduct a general review of its contract bar doctrine—a Board rule that was created “to balance often competing aims of employee free choice and industrial stability.”

Contract bar doctrine. The contract bar doctrine is a longstanding Board rule that states that that once a contract is executed, no representation elections are permitted in the unit covered in the agreement until it expires—for up to three years. In the underlying case, Mountaire Farms, Inc., an employee filed a petition with the NLRB to decertify UFCW Local 27 as the exclusive bargaining representative of 800 employees at a Delaware poultry processing plant. The union argued that its agreement with the employer barred the petition.

In an April 8, 2020, decision, a Regional Director concluded that the CBA included an unlawful union-security clause because it did not afford nonmember incumbent employees the required 30-day grace period to become union members. Thus, the CBA could not serve as a bar to the petition, and the Regional Director directed an election.

Election delayed by COVID-19. However, on March 19, 2020, because of the COVID-19 pandemic, the Board ordered that all Board-conducted elections be temporarily suspended. The Governor of Delaware then issued a stay-at-home order effective March 24, but the employer’s facility remained open pursuant to President Trump’s Executive Order identifying poultry processing plants as essential businesses that must remain open during the pandemic. On April 1, the Board lifted its suspension on elections, and on June 10, 2020, the Board granted the Union’ Motion for a Mail Ballot Election.

Contract bar doctrine in jeopardy? The Board’s June 23 order stayed the election and said it would issue a notice establishing a schedule for the parties to file briefs on review and inviting amicus briefs. The next day, the Board indicated that because the mail-in ballots were already issued, the election stay would be rescinded, but the ballots would be impounded while the request for review is pending.

The parties respond. UFCW Local 27 has taken to social media to rally support. On June 22, UFCW Local 27’s Twitter account posted photos and video of a rally and caravan intended to show support for the union members whose “Union Security is under attack.” Several Delaware area political figures, including U.S. Senator Chris Coons were in attendance.

Meanwhile, the group representing the employee praised the Board’s decision to reexamine the contract bar rule. “The ‘contract bar’ has for decades allowed union officials to trap workers in a union a majority of them oppose for up to three years merely because the employer and union finalized a contract between themselves,” stated Mark Mix, president of the National Right to Work Legal Defense Foundation, which represents the petitioner, in press release. “We urge the NLRB to swiftly overturn this outrageous non-statutory policy, as it actively undermines the free choice of workers that is supposed to be at the center of federal labor law.”

The case is Mountaire Farms, Inc. and Oscar Cruz Sosa and United Food Commercial Workers Union, Local, No. 05-RD-256888.

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