NLRB will impound ballots in election to remove UFCW while issue is decided

Washington, DC (June 25, 2020) – In a recently issued order, the National Labor Relations Board (NLRB) announced that it will review its so-called “contract bar” doctrine, which prevents employees from exercising their right to vote an unpopular union out of their workplace for up to three years if union officials and their employer have finalized a monopoly bargaining contract.

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 in favor of union bosses.

This is the latest development in a case by a Delaware-based Mountaire Farms poultry employee, Oscar Cruz Sosa, against the United Food and Commercial Workers (UFCW) Local 27 union. Cruz Sosa submitted a petition for a vote on whether Local 27 should be removed as monopoly bargaining agent in his workplace. The petition was signed by more than the number of workers necessary to trigger such a vote.

Cruz Sosa also filed federal unfair labor practice charges in April against the union for illegally seizing dues from his and other employees’ paychecks, as well as threatening him after he submitted the decertification petition to remove the union. He is receiving free legal representation from the National Right to Work Legal Defense Foundation.

UFCW officials argued after the petition’s filing that the “contract bar” should block Cruz Sosa and his coworkers from even having an election, because the monopoly bargaining agreement between Mountaire and the union had been signed less than three years earlier. The NLRB Regional Director held that the vote should proceed because the union agreement contains an unlawful forced dues clause that mandates workers immediately pay union dues upon hiring or be fired, in violation of a statutory 30-day grace period. Despite the longstanding precedent supporting the Regional Director’s ruling, UFCW union lawyers filed a Request for Review asking the full NLRB to overrule the Regional Director.

Cruz Sosa’s National Right to Work Foundation staff attorneys opposed the union’s efforts to block the vote, and argued that if the Board were to grant the union’s Request for Review it should also reconsider the entire “contract bar” policy, which has no statutory basis in the NLRA. The Foundation’s legal brief noted that the contract bar runs counter to the rights of workers under the NLRA, which explicitly include the right to vote out a union a majority of workers oppose. The brief also notes that the idea of a “contract bar” was rejected by the original NLRB when the NLRA was passed.

Late Tuesday, just hours after the voting process in the decertification election had begun, the NLRB issued its order accepting the Foundation’s argument that the entire “contract bar” doctrine should be reviewed. The order noted “that it is appropriate for the Board to undertake in this case a general review of its contract bar doctrine.”
The Board’s order also stayed the election while the Request for Review was pending, but after Foundation staff attorneys submitted a motion asking the NLRB to modify its order so the vote could proceed with the ballots impounded, the Board issued another order late Wednesday allowing the vote to go forward.

“The ‘contract bar’ has for decades allowed union officials to trap workers in a union a majority of them oppose for up to three years merely because the employer and union finalized a contract between themselves,” commented National Right to Work Foundation President Mark Mix. “We urge the NLRB to swiftly overturn this outrageous non-statutory policy, as it actively undermines the free choice of workers that is supposed to be at the center of federal labor law.”

“The very premise of the NLRB-created contract bar, that union bosses should be insulated from worker decertification efforts, is completely backwards,” added Mix. “Union officials use all types of tactics to get workers into unions but rely on government power to not let them get out.”

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.