What Is Contract Bar Doctrine?
Contract bar doctrine refers to the rule that once a contract is executed, no representation elections are permitted in the unit covered in the agreement.3 min read
2. The Modification of the "Recognition Bar" Doctrine
Contract bar doctrine refers to the rule that once a contract is executed, no representation elections are permitted in the unit covered in the agreement until it expires, per the National Labor Relations Board (NLRB, or “the Board”). The time limit is up to a three-year span.
The rule applies to the following:
- A petition that employees file to decertify
- A petition from another union to provide employee representation
- A petition that an employer files
The doctrine is used to determine if an election can be barred by an existing collective-bargaining contract.
Agreements That Won't Bar Elections
Following are examples of contracts that will not bar an election:
- It is not in writing.
- It isn't signed.
- It hasn't been ratified by the union or the members.
- It has no substantial terms or conditions of employment that are sufficient enough to stabilize the bargaining relationship.
- It may be terminated at any time and for any reason by either party.
- It includes a clearly illegal union-security clause.
- The bargaining unit is inappropriate.
- The union that entered into the agreement no longer exists or isn't able or willing to represent the employees.
- It discriminates on racial grounds.
- It covers union members only.
- The contracting union has internal conflicts at the highest levels, which could result in confusion about the union's identity.
- The employer's operations have substantially changed from the time the contract was executed.
The Modification of the "Recognition Bar" Doctrine
Employers that are faced with the following should be aware of the NLRB's decision that affects practical and legal implications of these arrangements:
- Union demand for voluntary recognition
- Demand to enter into a "card-check"
- Demand to enter into "neutrality"
- Demand to enter into another organizing agreement resulting in voluntary recognition
In a ruling concerning Dana Corp., the Board held that no election bar is to be imposed after employers voluntarily recognize a union unless the following occur:
- Employees in the bargaining unit get official notice of the recognition, along with notice of their right to file a decertification petition within 45 days of receiving the notice or to support a rival union's filing of an election petition; and
- A period of 45 days passes from the notice date with no filing of a validly supported petition.
The Board modified its contract bar doctrine to accommodate the ruling. The modification holds that collective bargaining agreements that are executed on or after the voluntary recognition date will not bar a rival union petition or a decertification unless sufficient notice of recognition is given and 45 days pass with no filing of a valid petition.
In order to implement the notice requirement, the Board requires the union or the employer to promptly provide written notice to its regional office of the voluntary recognition. For a voluntary recognition to serve as an election bar, it must also be in writing, set forth the date of recognition, and describe the unit. The notifying party must include a copy of the written recognition along with the notice to the regional office.
When the regional office receives the notice, the office will send an official NLRB notice to the employer. The employer is responsible for posting it in conspicuous workplace locations during the 45-day period. This alerts employees to the recognition and informs them of their statutory right to have union representation (or not to be represented at all).
It also informs them of their right to either file a decertification petition or to support another union's petition within 45 days of the notice being posted. A minimum of 30 percent of the unit employees are required to support petitions.
If the 45-day window passes with satisfactory notification and no petition filing, the union's majority status will be presumed for a period of time that allows parties to negotiate a collective bargaining agreement.
Employees across various industries have certain rights, which unions work to protect. However, not every workplace allows union formation. If you have any questions or concerns about employee-employer relations, you may want to consult with an expert in the field. He or she can advise you of your rights so that you're able to fully protect them.
If you need help with contract bar doctrine, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.