By:  Alison C. Loomis

Seyfarth Synopsis:  Employers may challenge whether unions still have majority support between the date that agreement on a collective bargaining agreement was reached and the date that the agreement becomes effective.

The Board’s contract-bar doctrine limits the circumstances under which an election petition is processed if the petition is filed during the term of a collective bargaining agreement.  In other words, employers (or rival unions) are “barred” from filing an election petition during the “contract” period.  In Silvan Industries, the Board held that employers are not barred from filing a petition if it is in the time period after an agreement has been reached but before that agreement’s effective date.

On October 13, 2016, the employer and union reached tentative agreement on a contract, which was set to go into effect on November 7, 2016.  On October 15th, the union notified the employer that the bargaining unit employees had ratified the contact, and the parties agreed to meet in person on October 25th to execute the contract.

On October 25th, an employee gave the employer a petition which expressed opposition to the union.  Later that day, the employer filed an RM petition with the NLRB regional office seeking to challenge whether the union still had majority support of the bargaining unit.  Also on that day, as previously planned, the parties executed the contract.

The Regional Director dismissed the petition without a hearing, on the ground that it was filed after the union accepted the employer’s contract offer.

In a 3-1 decision, the Board majority granted the employer’s request for review of the dismissal, agreeing with the employer that the parties’ agreement cannot bar an election petition which was filed prior to the agreement’s effective date.  In so finding, the majority stated that “the Employer filed its [election] petition at a time when there was no contract in effect, which means there was no contract to bar the Employer’s petition.  Accordingly, the Board is required to process the petition, thereby giving employees the election that Congress contemplated when it provided for Board-conducted elections to resolve questions concerning representation.”

The majority noted that the employer filed the petition at a time when it could not have lawfully withdrawn recognition of the union.  Filing the petition in response to its employees’ notification of opposition to the union was good-faith bargaining, “as required by the Act.”

Although the particular timeframe presented in Silvan may be unique, it provides employers with a strategic consideration when approaching the effective date of a collective bargaining agreement.