Mountaire Farms Inc.

National Labor Relations Board - Unpublished Board Decisions

Jul 7, 2020

05-RD-256888 (N.L.R.B. Jul. 7, 2020)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MOUNTAIRE FARMS, INC.
Employer
and Case 05-RD-256888
OSCAR CRUZ SOSA
Petitioner
and
UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 27, a/w UNITED FOOD AND
COMMERICIAL WORKERS INTERNATIONAL
UNION, AFL-CIO
Union
NOTICE AND INVITATION TO FILE BRIEFS
On June 23, 2020, the Board granted the Union’s request for review of the Regional
Director’s Decision and Direction of Election, finding that it raised substantial issues warranting
review, and indicated that it would establish a schedule for the filing of briefs on review and
inviting amicus briefs.1
The question presented in this case is whether the petition is barred from being processed
at this time by the Board’s contract-bar doctrine, under which the Board will generally decline
to process an election petition that is filed during the term of a collective-bargaining agreement,
for a period of up to three years. Silvan Industries, 367 NLRB No. 28 (2018). The contract-bar
doctrine was developed by the Board “to balance the statutory goal of promoting labor relations
stability against its statutory responsibility to give effect to employees’ wishes concerning
representation.” Id., slip op. at 3. Here, the Petitioner asks the Board to overrule or narrow the
scope of the contract-bar doctrine, claiming that the doctrine impinges on employee free choice.
To aid in the consideration of this issue, the Board now invites the filing of briefs by
parties and interested amici in this case. In addition to the specific contract-bar issue presented
in this case, parties and amici should address, with supporting arguments, whether the Board
should (1) rescind the contract-bar doctrine, (2) retain it as it currently exists, or (3) retain the
doctrine with modifications.
1 In its June 23 order, the Board also stayed the election. On June 24, the Board granted the Employer’s and the
Petitioner’s requests for extraordinary relief and rescinded the stay, while impounding the ballots pending resolution
of the merits of the Union’s request for review and reiterating its intent to issue an order soliciting briefing. On June
29, the Board denied the Union’s motion to reconsider the June 24 order.
With respect to (3), the parties are invited to specifically address the following, in
addition to any other issues raised: the formal requirements for according bar quality to a
contract, the circumstances in which an allegedly unlawful contract clause will prevent a contract
from barring an election, the duration of the bar period during which no question of
representation can be raised (including the operation of the current “window” and “insulated”
periods), and how changed circumstances during the term of a contract (including changes in the
employer’s operation, organizational changes within the labor organization, and conduct by and
between the parties) may affect its bar quality.
Briefs by the parties not exceeding 50 pages in length and conforming to the
requirements of Board Rule 102.67(i) and briefs by amici not exceeding 30 pages shall be filed
with the Board in Washington, D.C., on or before August 6, 2020 and September 8, 2020,
respectively.
The parties may file responsive briefs on or before September 22, 2020, which may not
exceed 25 pages in length. The parties and amici shall file briefs electronically by going to
www.nlrb.gov and clicking on “eFiling.” Parties and amici are reminded to serve all case
participants. A list of case participants may be found at http://www.nlrb.gov/case/05-RD-
256888 under the heading “Participants.” If assistance is needed in E-Filing on the Agency’s
website, please contact the Office of the Executive Secretary at 202-273-1940.
JOHN F. RING, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., July 7, 2020.