Labor Board Holds Employers Can Petition for an Election to Determine Whether Union Maintains Majority Status Before Contract's Effective Date - Articles

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Posted by: Greg Grisham on Jan 15, 2019

In Silvan Industries,[i]the National Labor Relations Board (NLRB or Board) considered the question of whether an employer can file an RM Petition[ii] to determine whether an existing union continues to enjoy majority support, despite the existence of a finalized collective bargaining agreement that has not yet become effective.

Fact Summary

The Employer, Silvan Industries, a Division of SPVG (Silvan) operated a plant in Wisconsin. On October 16, 2015, a Union[iii] “was certified as the exclusive collective-bargaining representa­tive of Silvan’s production and maintenance em­ployees.” On October 13, 2016, a tentative agree­ment was reached and Silvan was notified by the Union on October 15 that it had been ratified by the bargaining unit membership. The agreement stated that it was to be effective “from November 7, 2016, through November 3, 2019.” Silvan and the union set a meeting for October 25 to execute the agreement.

However, on October 25, Silvan received a petition “in which employees expressed opposition to continued union representation.”[iv] Silvan viewed the petition as raising “a good-faith reasonable doubt” as to whether the Union continued to represent a majority of unit employees and filed an RM petition with the NLRB regional office that same day. That same day, Silvan and the union signed the agreement. The NLRB’s Regional Director dismissed the RM petition without a hearing because it was filed after the parties had agreed to a contract. Silvan then filed a request for review of the Regional Director’s decision with the Board.

NLRB’s Opinion

The NLRB began its analysis by noting that “the Board will generally decline to process an election petition that is filed during the term of a collective-bargaining agreement” in order to “promote stability in collective bargaining and labor relations.”[v] However, the Board cited a countervailing concern, namelythat a “delay in resolving an otherwise-valid question con­cerning representation necessarily affects the Section 7 rights of employees who do not support continued union representation.”[vi] To balance “these competing considerations,” the Board cited the requirements for applying the “contract bar” to an election petition, specifically “the collec­tive-bargaining agreement [must] be in writing, signed by the parties, and specify its effective date on its face.”[vii] The NLRB then noted that the “contract bar” period “runs from [the agreement’s] effective date.”[viii] Based on the facts presented, the Board found Silvan’s October 25 Petition was not barred by the agreement, since the contract did not become effective until November 7. The Board also found that the standard used to determine whether a withdrawal of recognition from an existing union was legal was not applicable, since Silvan did not withdraw recognition from the union. Rather, the Board found that Silvan “engaged in good-faith bar­gaining as required by the Act, and when itreceived the employee petition opposing continued union representa­tion, the Employer filed an appropriate petition with the Board” which was lawful under the National Labor Relations Act.[ix] In closing, the Board noted that the sequence of events in the case had “never happened before” and downplayed the precedential value of its decision noting “it is destined to occupy a deservedly obscure nook in the Board’s representation case law.”[x] The Board concluded its analysis by reversing the decision of the Regional Director, reinstating the petition, and remanding the case for further action.

Take Aways

The Silvan decision is another example of the stark policy shift that has occurred with the Trump Labor Board. The Board, in balancing stability in collective bargaining and labor relations with employee free choice, opted to weigh the scales in favor of employee free choice. Collective bargaining over initial contracts is often a slow and cumbersome process. The Silvan decision may incentivize employers to delay the bargaining process and push off the effective date of any agreement reached in the hope that disgruntled unit employees come forward to raise doubts of the union’s continued majority status, thus opening the door for the employer to file an RM petition.


*J. Gregory Grisham is Of Counsel in the Memphis Office of Fisher & Phillips, LLP and focuses his practice on the representation of employers in all aspects of labor and employment law. He received his Juris Doctor (with honors) from the University of Memphis, Cecil C. Humphreys School of Law in 1989. Greg may be reached at ggrisham@fisherphillips.com or 901-333-2076.


[i] 367 NLRB No. 28 (2018).

[ii] “An employer may file a petition for an election (RM) under certain circumstances to determine support for a new union or to determine whether there is continuing support for an incumbent union. A majority of votes decides the outcome.” https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/employer-filed-petitions-rm

[iii] United Association of Plumbers, Steamfitters, and Pipefitters of the United States and Canada, Local 400.

[iv] 367 NLRB No. 28 (2018).

[v] Id. at 1-2.

[vi] Id. at 2.

[vii] Id.

[viii] Id. (emphasis supplied).

[ix] Id.

[x] Id. at 3.