Board Holds Contract-Bar Rule does not Bar Employer’s Decertification Petition Filed Before the Contract’s Effective Date

The contract-bar rule prevents employees or rival unions from filing a petition for an election during the term of a collective bargaining agreement.  The bar extends for up to three years, and it also bars employers from challenging a union’s majority status during the entire term of the collective bargaining agreement.

In Silvan Industries,[1] the union and employer reached an agreement on October 13, 2016. The agreement, however, did not go into effect until November 7, 2016. Prior to the effective date, the employer filed a decertification petition. The Board addressed for the first time whether the contract-bar rule prevents an employer from challenging the union’s status after the parties reach an agreement, but before the agreement goes into effect.

In a 3-1 decision, the Republican Board members held that the contract-bar rule does not apply until the agreement goes into effect. The Board unconvincingly claimed that permitting employers (and not just employees) to challenge a union’s status after the employer enters into a contract with a union is necessary to protect “employee free choice.”  As Member McFerran explained in her dissent, this ruling will provide employers with a “strong incentive to seek delayed effective dates” in order to increase the chances for challenging the union’s majority status.

[1]           Silvan Industries, 367 NLRB No. 28, 212 LRRM (BNA) 1765 (Oct. 26, 2018).