National Labor Relations Board and the “Contract Bar” Doctrine

In Mountaire Farms, Inc., the National Labor Relations Board issued a public Notice and Invitation to File Briefs concerning its controversial “contract bar” doctrine. Under that Board-created doctrine, employees are forbidden from decertifying their incumbent union representative for as long as three years, simply because the union and employer have reached a collective bargaining agreement. The text of the NLRA is silent about such a bar limiting employees’ rights. Indeed, the only “bar” Congress established in the NLRA is a one-year “election bar” (no more than one valid election can be held per year), which is a far cry from the Board-created three-year contract bar that disenfranchises employees and locks them in to union representation and possibly into the forced payment of dues as an employment condition,) regardless of their representational preferences.

In the Mountaire Farms case, employee Oscar Cruz Sosa collected a petition from more than 30% of his fellow employees and filed it with the NLRB seeking an election. The United Food & Commercial Workers (UFCW) union responded by asserting that the election was barred by the contract bar, since the petition was filed in year two of a five -year agreement.  However, the Director of NLRB Region 5 held that the compulsory dues clause in the contract was facially unlawful because it lacked a mandatory 30-day grace period, and therefore no contract bar applied. The regional director then scheduled a mail-ballot election, which the UFCW union tried to delay several times.

The UFCW union, wary of potential election results, also filed a Request for Review to the full NLRB, arguing that the compulsory dues clause was valid, and the contract bar applied. In response, Mr. Cruz Sosa, now represented by attorneys from the National Right to Work Foundation, argued that the Board should deny the UFCW union’s Request for Review and affirm the regional director’s decision. Alternatively, Mr. Cruz Sosa argued that if the Board granted the UFCW union’s Request for Review, it should take up the entire contract bar doctrine with a view towards overruling it or significantly shortening it.

On June 23, 2020, the Board granted the Union’s request for review of the regional director’s Decision and Direction of Election, finding that it raised substantial issues warranting review. On July 7, 2020, the Board issued a Notice and Invitation to File Briefs, allowing the public to weigh in on the continuing viability of the contract bar doctrine. National Right to Work attorneys are active in this and many similar cases, as they seek to overrule the many Board-created bars that have been erected and utilized for decades to deny workers their statutory right to oust union representatives they no longer support. These arbitrary blocks and bars make it easy for workers to check in to unions, but very difficult to check out.