Labor Board Says the Contract Bar is Here to Stay

  • Apr 22, 2021
  • NLRB
  • Grant S. Gibeau

In a decision issued yesterday, April 21, 2021, the National Labor Relations Board affirmed that it would continue to follow and enforce the long-established “contract-bar doctrine,” which provides unions with protection from ouster during most of a collective bargaining agreement’s effective period.

The Contract Bar Doctrine

In Mountaire Farms, Inc., the Board previously issued a notice inviting interested parties to file briefs regarding whether the Board should continue to follow the contact bar doctrine, or if it should modify or discontinue the doctrine altogether.

Under the contact bar doctrine, a valid collective bargaining agreement is a bar to a representation petition filed during the term of the agreement, up to a maximum period of three years. For example, employees are unable to file a decertification petition asserting that they no longer wish to be represented by the union while the contact bar is in effect.

As a corollary to the contract bar doctrine, the Mountaire Farms decision additionally discussed an exception known as the “window period,” wherein a decertification petition may be filed during the 30-day “window” that begins 90 days and ends 60 days before an agreement expires, or, in the case of health care employers, during the 30-day window that begins 120 days and ends 90 days prior to contract expiration.

The contract bar has long been criticized by certain workers’ rights groups, including the National Right to Work Legal Defense Foundation, who allege that the doctrine infringes upon employees’ statutory right under the National Labor Relations Act to choose their bargaining representative, causing employees to remain represented by a union which the majority no longer wish to be a part of. Conversely, supporters of the doctrine have argued that the contract bar period provides stability in the relationship between a union and management and promotes industrial peace, both of which have long been noted by the Board as being underlying goals of the NLRA.

Mountaire Farms, Inc.

The Petitioner in Mountaire Farms was a bargaining unit employee who wished to decertify the union as her unit’s exclusive representative, but who filed her decertification petition within the contract bar period but not within the applicable window period. When her decertification petition was dismissed pursuant to the contract bar, she appealed the decision and challenged the doctrine altogether.

Despite inviting briefs regarding the validity of the contract bar doctrine moving forward, the Board held that the contract bar properly barred the employee’s petition and held that neither the window period nor contract bar doctrines should be modified. Interestingly, Board Member William Emanual noted in a footnote that he would have reduced the contract bar period to 2 years and increased the window period to 60 days, although he did not explicitly dissent from the majority opinion, despite stating that his proposed modifications “would strike a more appropriate balance between ‘the statutory goal of promoting labor relations stability’ and the Board’s ‘statutory responsibility to give effect to employees’ wishes concerning representation.’”

Bottom Line

The contract bar doctrine is long-standing and remains the law of the land, despite the Board calling its future into question last year by inviting briefs regarding potential modification. For employers, this recent decision provides a reminder that once a union is certified as the exclusive representative and a collective bargaining agreement is reached, the union is generally here to stay for the duration of the CBA.