The National Labor Relations Board has provided important guidance for employers who deal with unions that may have tenuous employee support.
As many employers know, after a union has been certified as the representative of a group of employees, there are certain legal procedures and doctrines that may allow an employer to cease bargaining with the union if it no longer enjoys majority support, or in certain other circumstances.
For decades, however, the NLRB has maintained several rules or “bars” that limit when a union may be decertified, or when the bargaining obligation can be removed in other circumstances. One of the most consequential “bars” is the “contract bar” doctrine. Under the contract bar doctrine, a union generally may not be decertified, and certain other petitions are barred, while a collective bargaining agreement is effective, for the first three years of that CBA. This can make it significantly more difficult for employees to decertify a union that no longer has support from a majority of a workforce, because it can create a very small window for certain petitions that could cause a union to lose its ability to represent certain employees. (Employers should remember that it is a violation of the NLRA to encourage decertification petitions or to participate in decertification efforts absent certain narrow exceptions.)
During the Trump administration, a prior iteration of the NLRB had indicated that it may remove or modify the contract bar doctrine, and invited interested parties to submit comments on such a decision. That prior iteration of the NLRB did not, however, ultimately change or remove the contract bar doctrine doctrine. Then, earlier this month in Mountaire Farms Inc., the NLRB formally announced that it would retain the contract bar doctrine as it currently stands.
In light of Mountaire Farms, it is extremely unlikely that the contract bar doctrine will be removed or narrowed in the near future or otherwise by the current iteration of the NLRB. That said, unionized employers should continue to monitor this area, especially those whose unions have tenuous support from the employees at issue. There is a real possibility that the current iteration of the NLRB will issue other changes or guidance regarding decertification or legal “bars” to withdrawing recognition from a union, in a manner that could significantly change employers’ rights and obligations.
© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 117