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Recent NLRB Decision Could Impact Union Representation for New Jersey Workers

Labor organizing has helped workers in New Jersey and around the country achieve better pay and improved working conditions for over a century. The National Labor Relations Act (NLRA) of 1935 protects workers’ right to engage in activities related to organizing and collective bargaining. The National Labor Relations Board (NLRB) is charged with certifying labor unions and adjudicating disputes under the NLRA. A decision issued in March 2021 by the NLRB could be of note for those involved in New Jersey employment law matters. The board decided to retain the “contract bar rule,” which limits the time for filing any petition that challenges a union’s status while a collective bargaining agreement (CBA) is in force.

Section 7 of the NLRA protects the rights of workers to “self-organization” and other labor organizing activities. Section 9(a) states that, once a majority of employees in a particular “unit,” have selected representatives for collective bargaining, they are the “exclusive representatives” for the employees in that unit. A union can lose its status as representative through a decertification petition filed with the NLRB. If at least thirty percent of the employees in a unit sign on to a petition to decertify the union, § 9(e) directs the NLRB to conduct a secret-ballot election of all employees to see if they favor decertification.

The contract-bar rule states that a petition to decertify a union cannot be filed during the first three years of a CBA, with two exceptions. First, a petition can be filed at any time if the CBA has a “union security clause” that “clearly” violates § 8(a)(3) of the NLRA. A CBA cannot require all of the employees in a unit to pay union dues unless it gives each employee a thirty-day grace period after their employment begins. A CBA that does not include the thirty-day period could be found invalid.

The second exception allows a decertification petition to be filed during a thirty-day “window period” that begins ninety days and ends sixty days before the end of a CBA. Suppose a CBA’s term ends on November 1, 2021, three years after it took effect. The window period would begin ninety days earlier, on August 3, and end after thirty days, on September 2.

The case before the NLRB earlier this year involved a petition to decertify a union filed in February 2020, one year and two months after a CBA took effect. The CBA will remain in effect until December 2023. The regional NLRB director allowed the petition to move forward, based on a finding that the CBA had an unlawful union-security clause. The union appealed to the NLRB, which decided to consider whether it should revise or rescind the contract-bar rule. It reversed the regional director’s decision, and decided not to modify or rescind the rule.

The NLRB cited two decisions from the 1960s. The first case established that a CBA with a “clearly unlawful” union-security clause is not subject to the contract-bar rule. The second found that a union-security clause that was only “ambiguous” was still subject to the rule. In the present case, the NLRB concluded that the clause in question was ambiguous, not clearly unlawful, and therefore the contract-bar rule still applied.

The knowledgeable and experienced employment lawyers at the Resnick Law Group advocate for workers in New Jersey and New York. We help our clients assert claims under federal and state employment laws. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.

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