The Federalist Society just published an article by veteran Foundation staff attorney Glenn Taubman, which demonstrates how Selbyville, DE, Mountaire Farms employee Oscar Cruz Sosa and his coworkers’ effort to vote United Food and Commercial Workers (UFCW) union officials out of their workplace now has the potential to abolish, or at least significantly limit, a longstanding restriction on worker rights at the National Labor Relations Board (NLRB).

Taubman first explains that the restriction, the “contract bar,” exists nowhere in the National Labor Relations Act (NLRA) and arbitrarily stifles the free choice of workers:

“Under that Board-created doctrine, employees are forbidden from decertifying their incumbent union representative for as long as three years, simply because the union and employer have reached a collective bargaining agreement. The text of the NLRA is silent about such a bar limiting employees’ rights. Indeed, the only ‘bar’ Congress established in the NLRA is a one-year ‘election bar’ (no more than one valid election can be held per year), which is a far cry from the Board-created three-year contract bar…”

Taubman goes on to recount how UFCW lawyers kept claiming that the non-statutory “contract bar” should have blocked Cruz and his fellow employees from having the vote they petitioned for, even after a regional NLRB official had ruled against them:

“In the Mountaire Farms case, employee Oscar Cruz Sosa collected a petition from more than 30% of his fellow employees and filed it with the NLRB seeking an election. The United Food & Commercial Workers (UFCW) union responded by asserting that the election was barred by the contract bar, since the petition was filed in year two of a five-year agreement. However, the Director of NLRB Region 5 held that the compulsory dues clause in the contract was facially unlawful because it lacked a mandatory 30-day grace period, and therefore no contract bar applied.”

The union lawyers immediately requested that the NLRB in Washington review this decision and in fact expand the “contract bar” to apply even to their invalid contract. But, as Taubman says, Foundation staff attorneys countered that the NLRB should, if it decided to review the case, consider doing away with or significantly limiting the “contract bar.” And that’s just what the NLRB did:

“Alternatively, Mr. Cruz Sosa argued that if the Board granted the UFCW union’s Request for Review, it should take up the entire contract bar doctrine with a view towards overruling it or significantly shortening it.

“On June 23, 2020, the Board granted the Union’s request for review of the regional director’s Decision and Direction of Election, finding that it raised substantial issues warranting review…On July 7, 2020, the Board issued a Notice and Invitation to File Briefs, allowing the public to weigh in on the continuing viability of the contract bar doctrine.”

Read the whole piece here.

More on the case can be found here and here. Legal documents are available on the NLRB’s case page.

Posted on Jul 22, 2020 in In the News