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Last Friday, the National Labor Relations Board (“NLRB”) ruled that employers are permitted to challenge whether unions still have majority support from the bargaining units they seek to represent during the time period when a collective bargaining agreement (“CBA”) is agreed to and the day it actually goes into effect.

Employer Silvan Industries, Inc. (“Silvan”) and union United Association of Plumbers, Steamfitters, and Pipefitters of the United States and Canada (“union”) agreed to a CBA around October 11, 2018 that was set to take effect on November 7, 2018. However, Silvan filed an RM Petition (“Representative Petition”) on October 25, 2018 challenging the Union’s majority support after Silvan received a petition from workers who indicated they were opposed to union representation, which gave Silvan reason to believe that the Union had lost majority support of its bargaining unit’s members even though a CBA had been negotiated and agreed to. An RM Petition generally, is used for an employer to demonstrate to the NLRB that the union has lost the support of a majority of the employees. To do this, the employer files an RM Petition, along with its evidence of proof of the lost support with the NLRB.

Under the NLRB’s “contract-bar” doctrine, generally, the NLRB will dismiss any election petition that is filed during the term of a CBA, with certain exceptions. Here, the NLRB, ruled that RM petitions filed before a contract’s effective date — even though the parties have agreed to a deal — are not subject to the contract-bar rule. The NLRB cited precedent from a 1953 case called National Broadcasting Co., which ruled that a petition filed by a union challenging another union’s exclusive representation of workers in a bargaining unit wasn’t blocked by a CBA since it was filed before the contract’s effective date even though the deal had already been executed. Specifically, the NLRB majority here ruled, “… the employees chose to give their disaffection petition to the employer instead of filing [a decertification] petition themselves. We believe that the cost to employee free choice would be too high were we to deny the employees the opportunity to express their wishes concerning representation in a board-conducted election… on the basis of a contract that had not yet taken effect at the time the petition was filed, simply because they entrusted their petition to the employer instead of filing it with [the regional office] themselves.”

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While the majority noted that this sequence of events was very rare, they thought it was unlikely that employers would take this ruling and use it as a last ditch effort to oust a union. However, the minority disagreed, stating, “It is surely plausible … that an employer reluctant to commit itself to an agreement might seek a delayed effective date in order to increase the possibility that employee disaffection will come to fruition.” It will be interesting to see how employers and unions use this ruling going forward in CBA negotiations when selecting an effective date and whether unions will push for quicker effective dates and employers will seek to delay as much as possible. Please contact The Saqui Law Group with all your labor and employment questions.

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