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NLRB Decides to Keep Contract-Bar Doctrine As-Is

May 25, 2021

The National Labor Relations Board (“NLRB” or “Board”) has decided to maintain its longstanding contract-bar doctrine, despite AGC-supported signals by the Board that changes would be coming.

The contract-bar doctrine generally precludes a union representation or decertification election during the term of a legitimate 9(a) collective bargaining agreement for up to a three-year term.  During this “contract bar” period, the Board will dismiss representation petitions unless filed during the 30-day period that begins 90 days and ends 60 days before the agreement expires.  Last year, the Board invited interested parties to submit amicus briefs in the Mountaire Farms case to provide input as to whether the Board should rescind the doctrine, retain it as it currently exists, or retain it with modifications.  As previously reported, AGC submitted such a brief jointly with nine other associations in October 2020.  The brief recommends that the Board completely rescind the contract-bar or at least shorten the bar period and lengthen the filing window.

In a decision issued on April 21, the Board upheld the status quo.  While the Board acknowledged that the date on which the filing window opens “may not always be readily ascertainable under the present doctrine,” it found that “a sufficiently compelling case has not been made for any particular proposed modification.”  The decision is somewhat surprising given the Board’s apparent interest in modification and the ongoing Republican majority among Board members.  The Board’s sole Democrat, Chairman Lauren McFerran, disagreed with the notion that the opening and closing dates of the window period can be confusing.  She noted that the NLRB offers assistance to employees in determining the dates and that the current doctrine has been subject to decades of experience and case law.  She further noted that the briefs filed reflect a range of opinion regarding the optimal length of the contract bar and that the Board may wish to address this question in a future proceeding.  Overall, though, her statements indicate that the Biden Board, once fully constituted and controlled by Democrats, is not likely to modify the contract-bar doctrine.

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