Union lawyers aim to use non-statutory “contract bar” to have workers’ ballots to remove union destroyed and never counted

Washington, DC (August 21, 2020) – Staff attorneys at the National Right to Work Legal Defense Foundation have just filed a brief urging the National Labor Relations Board (NLRB) in Washington, D.C., to overturn its non-statutory “contract bar” policy. That policy allows union bosses to block workers from exercising their right to vote them out of a workplace for up to three years.

The “contract bar” is not provided for in the text of the National Labor Relations Act (NLRA), which the NLRB administers, but is the result of past Board decisions designed to entrench union bosses. The policy overrides workers’ right, explicitly guaranteed by the NLRA, to hold secret ballot elections to “decertify” ―i.e., remove―a union that lacks majority support.

The brief is the latest development in a case filed by Delaware-based Mountaire Farms poultry processing employee Oscar Cruz Sosa in February 2020. Cruz Sosa filed a petition, signed by hundreds of his coworkers, seeking a vote to decertify the United Food and Commercial Workers (UFCW) Local 27 union.

Cruz Sosa also filed federal unfair labor practice charges in April against the UFCW union for illegally seizing dues from his and other employees’ paychecks, and for making an uninvited visit to his house and threatening him after he submitted the petition for a vote to remove the union. He is receiving free legal aid from the Foundation in filing these charges and in defending his and his coworkers’ right to oust the union.

UFCW officials argued after the petition’s filing that the “contract bar” should block Cruz Sosa and his coworkers from even having an election, but the NLRB Regional Director in Baltimore held that the vote should proceed because the union’s contract with Mountaire Farms contains an invalid forced dues clause.

Not content to accept that result and move forward to an election, UFCW union lawyers asked the full NLRB in Washington to review the Regional Director’s decision.

Responding for Cruz Sosa, Foundation staff attorneys urged that the decision allowing a vote should stand, but because the union appealed the decision Foundation attorneys countered that, if the NLRB did decide to review the case, it should reconsider the non-statutory “contract bar” policy.

On June 23, the NLRB in Washington granted the union’s request for a review of the case and also accepted the Foundation attorneys’ argument that the entire “contract bar” doctrine should be reconsidered. The NLRB invited the parties and amici to file briefs. The case should be fully briefed and ready for a decision by early October.

Foundation staff attorneys argue in their latest brief that the “contract bar,” in addition to having no basis in the text of the NLRA, arbitrarily curtails workers’ right under the statute to vote to remove a union that a majority of them oppose. The brief states: “Over many decades the contract bar has trapped countless employees in an unwanted exclusive bargaining relationship and made the union the employees’ master and the employees ‘prisoners of the Union.’ . . . Far from ensuring the NLRA’s neutrality concerning employees’ decision to select a union or be unrepresented, the contract bar entrenches incumbent unions by keeping them in power almost indefinitely.”

The brief also points out that the idea of a “contract bar” was rejected by the NLRB in 1936, shortly after the NLRA was passed, and that the contract bar wrongly shields union officials from accountability when they cannot deliver on the often farfetched assurances union organizers make to gain the support of workers.

The brief emphasizes that the only “bar” explicitly sanctioned by the NLRA is the “election bar,” which immunizes unions from decertification attempts for one year after employees have voted in an NLRB election. In light of that, the brief maintains that, if the NLRB declines to fully eliminate the non-statutory “contract bar,” that bar should be limited to a similar one-year period, and should provide a window for workers to vote quickly after a contract has been executed.

The Board has impounded the ballots from Mountaire workers’ decertification vote, which took place in June and July, pending its decision in the case. If Cruz Sosa and his Foundation staff attorneys prevail before the Board, the workers’ votes will be counted. If the UFCW is successful, the workers’ votes will be destroyed and never tallied.

“Federal labor law, above all else, is supposed to protect the right of workers to freely choose who will be their voice in the workplace. It’s hard to imagine a policy more contrary to that than the ‘contract bar,’” observed National Right to Work Foundation President Mark Mix. “Blocking workers’ right to vote out an unwanted union for up to three years just because union officials and an employer came to a contract between themselves serves no purpose other than to insulate self-interested union bosses from being held accountable by the rank-and-file workers that the union officials claim to represent. You don’t have to look any further than the growing scandal at the United Auto Workers union to see how this works.”

“We hope that the NLRB will eliminate this coercive policy and free not only Cruz Sosa and his coworkers at Mountaire from the government-enforced grip of unwanted union bosses, but countless other employees across the country who face similar situations,” Mix added.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.