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:
- whether the Board should rescind the contract bar doctrine;
- whether the Board should retain it as it currently exists; or
- 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.