Board Invitations Briefs and Alerts a Attainable Shift in Its Contract Bar Guidelines

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On June 23, the National Labor Relations Board (Board or NLRB) issued a decision at Mountaire Farms, Inc., 5-RD-256888, in which the Board approved and approved the review of a regional director's decision using the Board's contract law doctrine, that the case posed major issues justifying the NLRB's review and announced its intention to set a schedule for the submission of review documents and the invitation to Amicus briefs. On July 7, the Board responded to this intention by issuing a notice and a call for submissions in the case (notice).

Under existing contract rules that date back to the mid-1950s, workers, employers, and other unions cannot ask questions about the status of an acting union representative (QCR) during the term of a collective agreement (CBA), unless a QCR, in usually in the form of an election application, is raised in good time within the last 60 to 90 days of the term of office of a CBA (maximum three years) or after the expiry of the CBA, provided that no signed successor to the CBA is available. The acting unions have long and repeatedly relied on the contract law rules of the Board of Directors to maintain their status as negotiators. They have prevented workers from exercising their right to vote on the incumbent's continued representative status, and rival unions cannot question their continued majority support.

The Board of Directors' notice of July 7 lists the issues the Board of Directors is interested in, and indicates that the Board's contract law rules may be abandoned or changed, and how and how the NLRB may propose in the future with current unions, has changed significantly. These issues include the following:

  1. whether the board should withdraw from contract law;
  2. whether the board should keep it as it currently exists; or
  3. whether the board should keep the doctrine with changes.

With regard to Issue 3, the Board identified and asked additional questions that should be addressed in briefs, including:

a. the formal requirements for cash quality compliance with the contract;

b. the circumstances under which an illegal contract clause would prevent a contract from excluding an election (which is the basis for the decision of the Regional Director);

c. the duration of the bar during which no QCR can be raised; and

d. How changed circumstances during the term of the contract, including changes in the operation of the employer, organizational changes in the union and / or the behavior of and between the parties, can affect the quality of a contract.

The parties' written submissions should be submitted to the Board on or by August 6, 2020. Amici's pleadings are to be submitted by September 8. Click here to view the message. This important decision is expected to be made next year.


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