NLRB’s Republican majority leaves contract-bar doctrine intact

Last summer, the National Labor Relations Board asked for public input as to whether it should rescind, modify or simply retain its long-standing contract bar doctrine. The doctrine limits workers from attempting to remove their union while a union contract is in effect, unless they file an election petition within a certain 30-day “window period” shortly before the expiration of the collective bargaining agreement covering their terms and conditions of employment.

Under the board’s contract bar doctrine, a valid collective bargaining agreement is ordinarily a bar to a representation petition filed during the term of the agreement (or during the first three years of an agreement with a term that exceeds three years) unless the petition is filed during the window period. For non-health care employers, the window period is defined as the 30-day period that begins 90 days and ends 60 days before the agreement expires. For collective bargaining agreements involving health care, the 30-day window period for filing a petition begins 120 days and ends 90 days prior to the contract’s expiration date.

If a petition for a representation election is filed outside of the 30-day window while a contract is in effect, the NLRB will dismiss the petition pursuant to the contract bar doctrine. Of course, employees can also file an election petition while no contract is in effect, which often occurs after the collective bargaining agreement has expired. However, if the union and the employer negotiate a new agreement before the expiration date of the current contract — or if the parties sign an extension agreement that keeps the contract in effect until they reach a new agreement that immediately takes effect when the extension expires — workers who fail to file a petition during the window period will have missed their only opportunity to oust their union, and they will be legally precluded from filing another election petition for up to another three years while the new agreement remains in effect.

It should be noted there are certain exceptions to the contract bar doctrine. For example, in order to serve as a bar to an election petition a collective bargaining agreement must have clear effective and expiration dates on its face so that employees can ascertain when the window period will occur. A contract that lacks clear dates will not bar a petition. As another example, a contract that contains an illegal union security clause also will not bar a petition that is filed during its term.

The NLRB’s request for public input regarding whether to change or eliminate the contract bar doctrine stemmed from its consideration of a pending case involving a regional director’s decision to process a decertification petition that was filed outside the window period for timely filing such a petition. Unsurprisingly, the board received 17 amici briefs in addition to the briefs filed by the parties in the underlying case. Many of the arguments advanced in support of modifying the contract bar doctrine focused on the perceived lack of clarity regarding the various window periods — and the resulting frustration for workers attempting to navigate the contract bar rules. Proponents of maintaining the contract bar doctrine argued the doctrine is necessary for stability in labor relations and labor peace.

On April 21, the NLRB finally decided against eliminating or modifying the contract bar doctrine in any way when it issued its decision in Mountaire Farms, Inc., 370 NLRB 110 (2021). While the board recognized the importance of workers having the ability to determine when their window period opens and closes, it ultimately held “a sufficiently compelling case has not been made for any particular proposed modification” at this time. In support of this conclusion, the board’s chairman noted: (1) Any collective bargaining agreement that satisfies the contract bar requirements has clear effective and expiration dates, thereby eliminating any potential confusion in calculating the window period; (2) The NLRB’s regional offices offer workers assistance in identifying their contract’s window periods; and (3) Modifying the doctrine could actually result in even more confusion.

The decision leaves open the possibility the board may address the length of the contract bar in a future case. However, given the certainty the NLRB will have a Democratic majority in the near future, it is doubtful the board will take up this issue again during the current administration. For now, employers, unions, and workers can continue to rely on the NLRB’s traditional contract bar doctrine in evaluating a collective bargaining agreement’s window period for filing a petition to remove an incumbent union. 