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NLRB Upholds Contract Bar and Correctly Applies It, As Argued by KSC

Joel Smith and Chris Ryon, with support from colleagues from the AFL-CIO and United Food and Commercial Workers International Union Legal Department, prevailed on behalf of UFCW Local 27. Despite an invitation, a majority of members of the National Labor Relations Board found no reason to disturb long standing Board precedent on two important representation case policies.  The Board’s April 21, 2021 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.

The Board resolved not to modify or upset the “contract bar” that limits when workers may act to decertify an incumbent union. The Board had invited comments and briefs from unions, employers, and other interested parties. But in the end “a sufficiently compelling case has not been made for any particular proposed modification.” The contract bar prohibits a petition for union decertification during the term of the contract, but no longer than 3 years. That contract bar doctrine dates back to 1939, and the current elements of the contract bar have been settled law since 1962.

In this case, UFCW Local 27 had an agreement with Mountaire Farms, Inc. A worker filed a petition to decertify while the agreement was in effect. The Regional Director read the union security clause language in the contract in a manner that allowed the petition to advance. The Board reversed the Regional Director’s Decision, relying on longstanding precedent, to fine that because the union-security clause is capable of lawful interpretation, the contract does bars the Petition.

The NLRB decision can be found here.

A New Yorker article by Jane Mayer about the plant and labor issues can be found here.

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