Employer’s Decertification Petition Valid Despite Signed Collective Bargaining Agreement

In labor law, a “contract bar” generally states that no petition to get rid of a union may be filed during the existence of a valid collective bargaining agreement. Sounds straight forward. There must be an actual contract, signed by both parties.

But what happens if there is a signed, valid contract but the effective dates of the contract are set in the future? Recently, a divided NLRB voted that a petition filed before the effective dates of a collective bargaining agreement, regardless of whether that agreement had been signed, does not bar an employer’s decertification petition. The dates of events in that case are important:

  • October 16, 2015 – The union is certified.
  • October 13, 2016 – The parties reach a tentative agreement.
  • October 15, 2016 – The employees ratify the agreement.  The parties agree to meet on October 25, 2016 to sign the contract.
  • October 25, 2016 – An employee presents the employer with a petition that expresses opposition to continued representation. The employer now has good faith, objective evidence that the union may not represent a majority of the employees. If no collective bargaining agreement, employer can withdraw recognition of the union. The employer then files an RM Petition.  Shortly after filing the petition, the employer signed the collective bargaining agreement to be effective in the future, not on the date of signature.

The collective bargaining agreement, unusually was not in effect until November 7, 2016 and would be effective for three year from that date.

The NLRB reviewed the case law and concluded “time and time again that the period during which a collective bargaining agreement bars and election runs from its effective date.”

The effective dates were only two weeks away from signing. But even a single day in representation bar situation can make a difference. That two week period is the difference between the employees getting a say in union representation now or three years in the future. In the end, the employees’ voices were heard, they got rid of the union.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.