United States: Employer's Representation Petition Not Barred By Existence Of Signed Contract, Divided NLRB Rules

As we have noted at times, the human element in labor relations makes for interesting situations. One of the more interesting issues is the timeliness of representation petitions, which, despite the existence of clear rules, can still be disrupted by human action.

A union, an employee or an employer can all file a representation petition with the NLRB. The union's petition is called an "RC" petition, the employee's (when filing they usually are seeking to end union representation) an "RD" petition, and the employer's petition is styled an "RM" petition.

In order to be valid, the representation petition must be filed during what is deemed to be an open period where a question concerning the representation of employees can be decided. The NLRA and NLRB case law contain bars to the filing of a petition,– essentially blackout periods,–during which the filing would not be timely and would result in the dismissal of the petition. One bar is the "election bar" which, according to Section 9(e)(2) of the NLRA prevents an election from being "conducted...in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." Under the election bar, a newly organized union gets a year to negotiate a contract before its status can be challenged. If the union loses the election, the employer is spared the disruption of an election campaign for twelve months.

To make matters more confusing, there is a one-year certification rule, which bars the filing of a petition for one-year following the date of certification of a union, which usually occurs some days after the election.

Another bar is the "contract bar" which, generally, states that no petition may be filed during the existence of a valid collective bargaining agreement. The Board evaluates the existence of a contract in fairly practical terms. There must, for example, be an actual contract that can be ascertained from existing writings. It wouldn't do to accept oral assertions in this regard; the issue is simply too important. The contract also must be signed by both parties. If a signed contract exists, then a number of other rules apply to the different parties. For instance, a valid contract may only bar an employee petition for a period of three years. The rules are different for employer petitions and a valid contract bars the employer from filing a petition for its entire term.

What happens if there is a signed, valid contract but the "effective dates" of the contract are set in the future? Would a representation petition filed after the signatures but before the effective dates be timely?

Recently, a divided NLRB (Ring, Kaplan and Emmanuel) 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 RM petition.

In Silvan Industries, 367 NLRB No. 28 (October 26, 2018) the Board was confronted "with a sequence of events that apparently has never happened before, at least so far as published decisions disclose."

Newly Organized Employer Bargains With Union For One Year

The employer operates a manufacturing facility and a union was successful in a representation election. The dates of events are important to the discussion of what happened next:

  • October 16, 2015 – the union was certified. A new election could not occur before one year from this date.
  • October 13, 2016 – the parties reach a tentative agreement. This date, falling a few days before the end of the year of certification is important. It is very common for parties to reach an agreement at or near the end of the first year of bargaining because the union knows that after the anniversary date it is vulnerable to a new election (or withdrawal of recognition by the employer).
  • October 15, 2016 – the employees ratify the agreement. The parties agree to meet on October 25, 2016 to execute the contract.
  • October 25, 2016 – an employee presents the employer with a petition in which employees expressed opposition to continued representation. The employer now had good faith, objective evidence that the union's majority status was in doubt. Without the existence of the collective bargaining agreement, the employer would have been privileged to withdraw recognition.
    • The employer files an RM petition.
    • Shortly after filing an RM petition, the employer signed the collective bargaining agreement.

The collective bargaining agreement, unusually, had effective dates in the future- from November 7, 2016 to November 3, 2019.

Regional Director Dismisses Petition as Untimely, Employer Appeals

The Regional Director dismissed the RM petition without a hearing, finding that the employer was precluded from challenging the status of the union citing case law holding that an employer may not withdraw recognition once a valid collective bargaining agreement has been reached. Auciello Iron Works, 317 NLRB 364 (1995), enfd. 60 F.3d 24 (1st Cir. 1995), affd. 517 U.S. 781 (1996). In Auciello, the Board held that an employer was precluded from withdrawing recognition from the union upon acceptance of an offer by the union to form a collective bargaining agreement.

The employer appealed the dismissal of its petition to the NLRB.

Divided NLRB Reverses Regional Director, Holds Case Law Supports Timeliness of RM Petition

The Board majority noted first there were competing policy considerations at play in determining the timeliness of a representation petition. The first is to promote stability in collective bargaining by prohibiting the challenge to representation during a valid collective bargaining agreement. The Board noted that "[o]n the other hand, delay in resolving an otherwise-valid question concerning representation affects the Section 7 rights of employees who do not support continued union representation." The Board noted that it had over the years developed several "requirements" that must be met before a collective bargaining agreement can bar an election, including, that it be in writing, signed and specify an effective date on its face.

Analyzing the question before it, the Board reviewed the case law and concluded "time and time again that the period during which a collective-bargaining agreement bars an election runs from the its effective date." The Board noted that it often applies different standards to petitions filed by unions and employees to those filed by employers. For example, the Board recognized that under the case law the employer in this case could not have lawfully withdrawn recognition but held that standard did not apply to the case. The Board addressed Auciello, concluding that "the standard for determining whether an employer could lawfully withdraw recognition does not govern the case." This is because the Board's ruling in Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723 (1996) which held that an employer may file an RM petition in circumstances where it could not lawfully withdraw recognition. The Board held that its "contract-bar doctrine does not warrant dismissal of the petition because no contract was in effect when the petition was filed."

The Board did not see this case as far-reaching in that it had "never happened before" and that "it is destined to occupy a deservedly obscure nook in the Board's representation caselaw."

Dissent Sees Instability With Rule

Member McFerran dissented noting that the rules regarding bars to an election are different for employers because they hold a great deal of power in bargaining. McFerran noted that "were the Board to focus on the effective date of the contract (rather than the date of its formation) when applying the 'contract bar' doctrine in cases like this one, employers would have a strong incentive to seek delayed effective dates, a result just as contrary to the Act's goal of encouraging collective-bargaining agreements (and their stabilizing effects) as a deliberate delay in reaching an agreement in the first place."

McFerran knocked the Board majority even further:

Instead of engaging in a careful analysis of policy and precedent, the majority retreats into empty formalism: because the collective-bargaining agreement had not gone into effect, the contract-bar doctrine does not apply. But why this should be the case, the majority fails to explain in any persuasive way. Policy and precedent actually dictate a different result: ?When an employer enters into a collective-bargaining agreement with a union, even an agreement with a delayed effective date, it should not be permitted immediately to undermine the agreement, by challenging the union's majority status.


This is truly an unusual situation. We are not told why the parties set the effective date of the agreement in the future. One can think of a few innocuous reasons why the dates were set in the future: the employer didn't want to negotiate the next agreement until a period of time that was less busy for its operations, the parties agreed to align the effective dates with upcoming pay increases, etc. There is no indication that the employer knew about the employee's efforts to shed the union, and requested the effective dates be pushed off. The union certainly didn't complain about it either through this proceeding or by filing an unfair labor practice.

Member McFerran noted that 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 from now. The desires of employees are often lost when the Board discusses the policy of stability in labor relations. Although not part of this case, the Board's blocking policy, which allows the blocking of a decertification or representation petition based on the mere allegation that unfair labor practices have been committed, often frustrates any chance for an election for years.

Employer's Representation Petition Not Barred By Existence of Signed Contract, Divided NLRB Rules

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions