NLRB Addresses Prospective Contracts vs. Election Bar

Published: December 20, 2018

Under the National Labor Relations Act, the National Labor Relations Board (the Board) has jurisdiction over the process by which employees decide whether to select union representation for their workplace. The Board will get involved in response to a petition filed by an employer or union requesting it to conduct a secret ballot election in which the employees vote for or against representation by a particular union. To encourage stability in labor relations and to avoid a merry-go-round on the question of whether employees wish to be represented by a union, the Board has established various rules setting forth the circumstances under which it will or will not conduct an election. The Election Year Bar Rule provides that the Board will not conduct an election in the same bargaining unit within one year of a previous election. The Contract Bar Rule provides that a written, signed collective bargaining agreement with an effective date will prevent the holding of an election for the duration of that agreement or up to three years; whichever time period is shorter.

The Board recently was confronted for the first time in its eighty-three year history with the question of whether a ratified and signed collective bargaining contract, arrived at after almost a year of negotiations and that was not yet in effect because it contained a prospective effective date, operated as a bar to an employer’s petition for an election filed over a year after the date of the first election. or up to three years; whichever time period is shorter.

In this case, the Board was confronted with the tension between the desires for stability in labor relations versus employee free choice, i.e., the right of employees who do not support continuing union representation. The Board resolved this question by returning to its charter – giving priority to the desires of the employees concerning the issue of union representation. In doing so, it held that a ratified, signed collective bargaining agreement would not operate under the Contract Bar Rule to prevent an election before its effective date. Thus, the employer’s petition for election in this case was not barred and would be processed.

This decision has several practical implications. First, in negotiating and administrating a collective bargaining agreement, the employer, for simplicity and efficiency, should insist that the effective date of the contract be the first of the month after ratification and signature. Second, assuming that it has been more than a year since the date of the initial certification election, this opinion provides an escape route for employees who either never wanted union representation or who are dissatisfied with the union’s draft contract or the ratified agreement. Such employees, prior to the contract’s effective date, may provide the employer with evidence that they no longer favor union representation – which evidence would give the employer cause to file a petition for a second election. A delay in a contract’s effective date benefits the employer in that there is less time that it must deal with the union and honor the contract, and it affords both employees and their employer a longer period of time, and a second opportunity, to reject the union.

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