May 11, 2021

Volume XI, Number 131


May 10, 2021

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Board Invites Briefs and Signals a Possible Shift in Its Contract Bar Rules

On June 23, the National Labor Relations Board’s (Board or NLRB) issued a decision in Mountaire Farms, Inc., 5-RD-256888 in which the Board granted review of a Regional Director’s decision applying the Board’s contract bar doctrine, finding that the case presented substantial issues warranting the NLRB’s review and announcing its intention to establish a schedule for the filing of briefs on review and inviting amicus briefs.  On July 7, the Board acted on that intention and issued a Notice and Invitation To File Briefs in the case (Notice).

Under extant contract bar rules, dating all the way back to the mid-50s, workers, employers and other unions are barred from raising questions concerning an incumbent union’s representative (QCR) status during the life of a collective bargaining agreement (CBA) unless a QCR, typically in the form of an election petition, is timely raised during the last 60 to 90 days of a CBA’s term (not to exceed three years) or after the CBA has expired and, provided, no signed successor CBA is in place.  Incumbent unions have long and repeatedly relied on the Board’s contract bar rules to preserve their bargaining representative status, precluding workers from exercising their statutory right to vote on the incumbent’s continued representative status and competing unions from challenging their continued majority support.

The Board’s July 7 Notice lists the issues in which the Board is interested and signals the possible abandonment or modification of the Board’s contract bar rules and a major shift in whether and the way the NLRB may entertain election petitions involving incumbent unions in the future. Those issues include the following:

  1. whether the Board should rescind the contract bar doctrine;
  2. whether the Board should retain it as it currently exists; or
  3. whether the Board should retain the doctrine with modifications.

Further as to issue number 3, the Board identified and posed additional questions to be addressed in briefs including:

a. the formal requirements for according bar quality to contract;

b. the circumstances under which an unlawful contract clause would prevent a contract from barring an election (which is the basis of the Regional Director’s decision);

c. the duration of the bar during which no QCR can be raised; and

d. how changed circumstances during the term of a contract including changes in the employer’s operation, organizational changes in the union and/or conduct by and between the parties may affect a contract’s bar quality.

The briefs of the parties are due to be filed with the Board on or by August 6, 2020.  The briefs of amici are due to be filed by September 8.  Click here to see the Notice.  This important decision is expected to issue next year.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 193



About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

James Hays, Legal Specialist, management of labor and employment law

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...

John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the...

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