May 11, 2021

Volume XI, Number 131

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May 11, 2021

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May 10, 2021

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NLRB Upholds Contract-Bar Doctrine in Current Form

On April 21, 2021, the National Labor Relations Board (the “Board”) declined to eliminate or modify its long-standing contract-bar doctrine, which purports to provide stability in the relationship among the employer, a collective bargaining representative, and its employee-members.  The Board previously invited comment on the continued application of the contract-bar doctrine in July 2020.

The contract-bar doctrine prohibits all petitions that could oust an existing union, by employees who are covered by a valid collective-bargaining agreement for three years or the duration of the agreement – whichever is shorter.  The doctrine permits an election petition to be filed by representative employees only during a 30-day “window period,” which is typically between the last 60 and 90 days prior to the expiration of the collective bargaining agreement; after the contract expires; or after the third anniversary of any CBA that is longer than three years.  The final 60-day period of the agreement is considered an “insulated period,” where no election petition may be filed.

The Board undertook a review of the contract-bar doctrine in Mountaire Farms, Inc., 370 NLRB 110 (2021).  In that case, the petitioner rival union sought to decertify a union representing roughly 800 employees.   The incumbent union opposed the decertification petition because it was filed outside of the window period.  The Regional Director nevertheless processed the petition, finding that the contract-bar doctrine did not apply because the contract contained an unlawful union-security clause, thereby exempting it from the contract-bar doctrine’s application.  The union filed a Request for Review with the Board of the Regional Director’s decision.

Upon granting the Request for Review, the Board – in a common practice when the Board is considering overturning long-standing precedent – invited the parties and interested amici to file briefs on whether the Board should retain the contract-bar doctrine in its current form, modify the doctrine, or rescind it entirely.  After reviewing briefs of the parties and 17 amici, the Board reversed the Regional Director’s decision and decided not to modify the contract-bar doctrine “at this time.”  The Board credited the argument that the relevant date for the window period may not always be clear under the current contract-bar doctrine.  However, the Board found that “a sufficiently compelling case has not been made for any particular proposed modification.”

Member William Emanuel would have reduced the contract-bar period to 2 years and increased the window period to 60 days.  According to Member Emanuel, the current contract-bar doctrine prioritizes labor relations stability at the expense of employee free choice.

Board Chair Lauren McFerran agreed that no modifications should be made to the contract-bar doctrine, but found little support for the claim that the window period was unclear.  McFerran noted that she did not take any position as to whether a shorter or longer contract bar period might be appropriate, and stated that she did “not join her colleagues’ observations about the potential problems with current law.”  This could indicate that the Board likely will not consider changing the contract-bar doctrine when constituted with a majority of Democrats later this year.

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© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 113
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About this Author

Steven Porzio Labor & Employment Attorney Proskauer Rose New York, NY
Partner

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing...

212-969-3079
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Associate

Jessica Guarracino is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.

Jessica graduated from Seton Hall University School of Law magna cum laude and Order of the Coif, where she was a Comments Editor of the Seton Hall Law Review and a member of the Interscholastic Moot Court Board.  During law school, Jessica worked as a student attorney in the Impact Litigation Clinic, where she represented indigent clients in the United States Court of Appeals for the Second Circuit, and as an intern to the Honorable Michael...

212-969-3414
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