NLRB Keeps “Contract Bar”

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On April 21, 2021, the National Labor Relations Board (“Board” or “NLRB”) voted to keep in place its long standing rule limiting when workers can try to remove an existing union from the workplace or bring in another – the so-called “contract bar” doctrine.

In June of last year, the Board invited public comment on the contract bar issue and received briefs from unions, employer advocates, lawmakers, and others on the subject.  This week, in a divided ruling, the NLRB concluded that “a sufficiently compelling case has not been made for any particular proposed modification.”

As it continues to stand, the contract bar prohibits the processing of petitions seeking union elections while a collective bargaining agreement is in effect, for up to a maximum of three years. The rule does allow for a window during the 30- to 60-day period prior to contract expiration for the filing of a representation or decertification petition.

The signal that the Board was considering a change to the rule came during the Trump Administration, under then-NLRB Chairman John Ring, with the request for comment.  Since then, President Biden fired NLRB General Counsel Peter Robb and installed Peter Sung Ohr as Acting General Counsel.  AGC Ohr withdrew a brief filed by former GC Robb advocating for a substantial narrowing of the contract bar doctrine.

The case arose from a dispute between a United Food and Commercial Workers Union affiliate and a worker at a Delaware poultry processing plant who sought to decertify the approximately 800-member union at the plant.  The worker is represented by the National Right to Work Foundation, which called the decision “appalling.”

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.”  Board member Ring dissented.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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