NLRB Contract-Bar Rule Continues To Confuse

By Douglas Darch and Jenna Neumann (November 30, 2018, 12:51 PM EST) -- Walking a tightrope is a well-worn analogy. The National Labor Relations Board recently demonstrated it is indeed a difficult task as it grappled with determining the parameters of its self-imposed "contract-bar" doctrine. The contract-bar doctrine is a rule created by the NLRB ostensibly to "balance" the expressly stated right of employees to choose union representation embodied in Section 7 of the National Labor Relations Act on the one hand, and the need for stability in labor relations divined by the NLRB on the other. In its simplest form, the contract-bar doctrine provides that once a collective bargaining agreement is executed, election petitions are not permitted for the duration of the agreement, but not to exceed three years. Conducting elections to determine whether employees desire union representation is one of the two primary tasks of the NLRB. Some would argue conducting elections is the NLRB's paramount task. Two decisions issued the last week of October which address when the contract-bar doctrine prohibits an election petition highlight the uncertainty in the doctrine which exists some 80 years after the National Labor Relations Board came into existence....

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