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U.S. Labor Board Reconsiders Legal Obstacle to Ousting Unions

July 7, 2020, 10:10 PM

The federal labor board is seeking public input on whether or not it should modify the “contract bar” doctrine, a labor law precedent that limits the time during which a petition can be filed to oust an existing union from a workplace.

The doctrine bars the filing of a union decertification petition unless it’s submitted within a brief window shortly before the collective bargaining agreement between employer and union expires.

The National Labor Relations Board issued its request for briefing on whether it should “rescind the contract bar doctrine, retain it as it currently exists, or retain the doctrine with modifications,” on Tuesday.

Under President Donald Trump, the NLRB has issued a spate of decisions that make it easier to prevent unionization or oust established unions, arguing that its returning balance to labor law in the wake of an excessively pro-union NLRB during the administration of President Barack Obama.

Its decision to re-examine the contract bar precedent comes at the urging of the National Right to Work Legal Defense Foundation, a conservative group that backs challenges against unions and lobbies for pro-business labor policies.

The NRTW is representing Oscar Cruz Sosa, a worker at Mountaire Farms, Inc. in Delaware who is trying to decertify its 800-member union, a local affiliate of the United Food and Commercial Workers Union.

In 2018, the group asked NLRB leadership to knock down three precedents that make it harder to remove a union, including the contract bar. The board has since moved to eliminate another of the pro-union precedents, known as the successor bar.

In its Tuesday release, the board asked those briefing the issue to “specifically address the following: the formal requirements for according bar quality to a contract, the circumstances in which an allegedly unlawful contract clause will prevent a contract from barring an election, the duration of the bar period during which no question of representation can be raised,” and how the bar may be affected by changed circumstances during the term of the contract, such as changes to the employers’ or unions’ structure and operations.

Litigants’ initial briefs are due by Aug. 6, with amicus submissions due by Sept. 8. The deadline for the parties’ final round of papers is Sept. 22.

The case is Mountaire Farms, Inc., N.L.R.B., No. 05-RD-256888, 6/23/20.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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