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NLRB Keeps ‘Contract Bar’ Rule Shielding Unions From Ouster (2)

April 21, 2021, 10:47 PM; Updated: April 22, 2021, 1:02 PM

The National Labor Relations Board decided against modifying or eliminating one of its rules that limits when workers can try to eject an existing union from their workplace.

The board backed off changing its “contract bar” in a decision Wednesday, despite previously inviting public input and receiving briefs from unions, employer advocates, lawmakers, and other commenters.

In its divided ruling, the NLRB said that “a sufficiently compelling case has not been made for any particular proposed modification.”

The contract bar prohibits union decertification elections while a collective bargaining agreement is in effect, for up to three years. That doctrine, which was first recognized in 1939 and modified through the years, also allows such votes during a brief period near the end of the contract’s life.

The decision indicates that the NLRB’s Republican majority—which has been criticized for aggressively changing labor law to benefit employers in the Trump years—may take a more modest approach during the Biden administration.

Since the board signaled that it would change the contract bar with a June invitation for briefs, President Joe Biden fired General Counsel Peter Robb, tapped Peter Sung Ohr as acting general counsel, and named Democratic member Lauren McFerran as chairwoman. The board allowed Ohr to withdraw Robb’s brief that had supported modifying the contract bar.

Attempt to Eject Union

The issue stems from a dispute between a United Food and Commercial Workers Union affiliate and a worker at Mountaire Farms Inc. The worker, represented by the National Right to Work Legal Defense Foundation, sought to decertify the roughly 800-member union at a Delaware poultry processing plant.

The NLRB ruled that the contract bar blocked the decertification bid, reversing a regional director who said the vote should proceed due to an invalid clause in the union contract. A mail-in election had taken place last summer and the ballots were impounded pending the board’s ruling.

Member John Ring, who served as NLRB chairman before McFerran’s elevation, dissented from the ruling.

Foundation President Mark Mix said that the contract bar and other limitations on decertification elections that keep workers “tethered” to unions don’t belong in the United States.

“The appalling result of this decision is that approximately 800 already-cast votes of Mountaire Farms poultry workers will be destroyed, and the workers whose votes likely would show they oppose the union will all be forced to continue paying union dues or be fired,” Mix said.

The UFCW affiliate’s lawyer, Joel Smith of Kahn Smith & Collins, said that the “ruling embraced the very reasonable principle that all parties to a collectively bargained contract, that is, employer, employees and union, should have the right to rely on existing board law.”

UFCW International Vice President Mark Lauritsen said that the ruling ensures the Mountaire Farms workers have the protections afforded to union members. The UFCW represents meatpacking workers who’ve been at high risk during the pandemic, Lauritsen said in a statement.

Big Surprise

Former NLRB General Counsel Jerry Hunter said he was “quite surprised” that the board didn’t change or eliminate the contract bar.

“Once the board decided to seek briefs concerning whether it should overturn the contract bar rule, one would think that the board had already given a great deal of consideration to the countervailing policy reasons supporting and opposing the rule,” said Hunter, an attorney with the management-side firm Bryan Cave Leighton Paisner.

AFL-CIO General Counsel Craig Becker also said he was surprised that the NLRB didn’t touch the contract bar.

Becker, an NLRB member during the Obama administration, said he was gratified that the board wasn’t willing to disturb settled law that went back decades. The decision may signal that the NLRB sees value in the stability that the contract bar creates, he said.

In the ruling, the board said it decided against modifying the rule “at this time,” while adding that arguments about the doctrine not making clear when the window period for a decertification vote opens prior to contract expiration “have considerable force.”

But McFerran disagreed with that point, saying the briefs submitted “offered little support” about the contract bar not being clear about the opening of the window period.

Member William Emanuel also had a different view, saying he would have cut the contract bar period from three to two years and doubled the pre-expiration window period from 30 to 60 days.

The case is Mountaire Farms, N.L.R.B., Case 05-RD-256888, Decision 4/21/21.

(Updated with UFCW official's comment in 13th paragraph. Story originally published April 21.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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