In Silvan Industries, 367 NLRB No. 28 (2018), the Board decided that an employer, upon being presented with evidence that creates well-founded uncertainty as to a union’s majority support, may file an election petition despite previously agreeing to a collective bargaining agreement with the union that had not yet taken effect.  This Board decision reviews important principles of labor law applicable to employers in a unique situation wherein the majority status of the union representing its employees is challenged.

Generally, employers may file election petitions with the NLRB (referred to as “RM” petitions) only under certain circumstances.  Unlike employees, who may solicit or poll fellow employees as to union support or lack thereof, employers are usually prevented from doing so and must passively react to information provided by employees.  Thus, where a union already represents its employees, an employer must demonstrate that it has a “reasonable good-faith uncertainty” of majority status by the union.

For example, an employer may base its uncertainty on a petition presented by employees seeking to oust their union.

This is exactly what occurred in Silvan Industries.  In this case, Silvan’s employees were represented by a union, but did not have a collective bargaining agreement in place.  After reaching a tentative agreement with the union that was set to take effect one month later, Silvan management received a petition from an employee that led it to question the union’s majority support.  Silvan immediately filed an RM petition with the Board and continued to recognize the Union and followed the terms of the collective bargaining agreement.

Following a delay of approximately two months, the Board’s Regional Director dismissed the petition.  While there was nothing wrong with the petition or the employer’s good faith uncertainty as to majority support of the employees, the Regional Director found that the petition was barred by the Board’s contract bar doctrine.

The contract bar doctrine prevents any party, including unions, employers, or employees, from filing an election petition while a collective bargaining agreement is in effect for up to three years.  The Regional Director found that the tentative agreement reached between the employer and the union, which had not yet gone into effect, barred the processing of the petition.

The Board reversed the Regional Director’s ruling.  It noted that the contract bar doctrine only prevents the filing of petitions while agreements are in effect and, since the contract between Silvan and the union had not yet taken effect, there was no bar in that situation.  Furthermore, the contract bar rule equally applies to employee decertification petitions seeking to oust unions, something which could have been filed by the employees who presented the petition to Silvan management.  Since the employees could have filed a decertification petition, the there are no valid reasons, in the eyes of the Board, that justified barring the employer from filing the RM petition in this case.  This is especially so where the employer’s other alternative would be to unilaterally withdraw recognition from the union, which is disfavored on policy grounds by the Board and risky for employers since under that circumstance it must be able to prove actual loss of majority status instead of “reasonable good-faith uncertainty.”

In sum, employers faced with evidence of lack of support for unions representing their employees must consider not only whether the grounds for the uncertainty will withstand scrutiny, but also – under certain scenarios – whether the contract bar doctrine will prevent the filing of an RM petition.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.