[Don’t] Keep the Change: NLRB Declines to Modify its “Contract Bar” Rule

By Paige Alli & Dennis E. Westlind - Bullard Law

April 22, 2021

After receiving requested briefs from employer advocates, unions, lawmakers, and public input, the National Labor Relations Board (“NLRB”) declined to modify its “contract bar” rule in a decision released on Wednesday, April 21. The contract bar rule prohibits union decertification elections for up to three years where there is a current collective bargaining agreement in place. It also allows union decertification votes to occur within a specified timeframe close to the end of the contract.

The NLRB decision to decline to change the contract bar arose from a case where a worker represented by the National Right to Work Legal Defense Foundation aimed to decertify the approximately 800-member union at a poultry processing plant in Delaware. Mountaire Farms, NLRB Case 05-RD-256888. A decertification election took place by mail last summer, but the ballots were held and detained pending a decision by the NLRB on whether to apply the contract bar rule. With the contract bar remaining unchanged, the votes were not counted, and the decertification bid was stopped.

The NLRB’s decline to modify the contract bar came as a surprise to many who expected the NLRB (which currently has a Republican majority) to take the opportunity to make it easier for workers to oust an unfavored union. The NLRB stated it declined to change the contract bar rule “at this time,” while noting the contract bar is not clear regarding timing for a decertification vote prior to contract expiration, leaving the door open to future challenges to the contract bar rule.  

This decision may indicate the board’s Republican majority is shifting their approach under the Biden administration, marking a departure from previous decision trends that benefited employers and disfavored unions. President Biden is expected to appoint new NLRB members later this year, shifting it to a Democratic majority, which brings the likelihood of more pro-union decisions. Bullard will stay on top of these developments and provide alerts as they occur.