NLRB gets involved in union-decertification effort at Mountaire
SELBYVILLE — Ballots that could decertify the union at Mountaire Farms will be sealed until the National Labor Relations Board (NLRB) reviews a legal precedent that protects unions from being ousted in the midst of collective bargaining agreements.
The NLRB’s decision could have a far-reaching impact across the country, specifically with private employers and possibly have some weight in the public sectors, according to Aaron Shapiro, an attorney with Connolly Gallagher.
“The two are not synchronous. The state and federal sectors has their own standards when it comes to labor law and unions, but those labor boards and commissions will be looking for consistent principles to contour their own decisions,” said Shapiro, who focuses on employment law and collective bargaining.
The mail-in election to oust the United Food & Commercial Workers (UFCW) Local 27 was expected to end July 14, but the NLRB ordered ballots sealed until it reviews “contract bar” – a precedent that shields unions from being voted out during their three-year collective bargaining agreement.
The NLRB invited stakeholders during the week of July 6 to file briefs on whether the existing contract bar doctrine should be rescinded, modified, or remain as written. While it may be unusual to look at a long-standing precedent in union law, Shapiro said it was not as surprising as the board under the Trump administration has become much more aggressive at looking at other standards.
Contract bar limits when workers can file petitions to hold an election to vote out unions every three years, to a window of 90 days before the contract expires and ends 60 days before expiration. Thirty percent of workers in the union must sign the petition to trigger a vote, which has already happened in this case.
Looking at the philosophy behind labor law, Shapiro said the idea is to provide a fundamental standard of stability for the employers and employees to work without disruption. To that end, decertification elections could take place every three years to bring in a new union and provide time to adjust and to quiet disgruntled voices in the workplace.
“I don’t think it’s likely that contract bar will be thrown out, but if it were it would be a devastating blow to the unions,” he said. “It would mean there would never be that period of peace, since the union could always be challenged. Maybe employers would be supportive of it, but I could see them not being pleased with constant elections. The burden is on the employer to correct information [names, addresses, shift schedules, etc.] for the election to be held.”
However, Shapiro said it might be possible for the board to shorten the three-year bar, determine what an illegal term for contract bar is, or provide an umbrella clause about when it may or may not apply in the future.
Mountaire plant worker Oscar Cruz Sosa filed a petition earlier this year. He is represented by attorneys with the National Right to Work Foundation (NRWF), a legal advocacy group that represents workers in decertification cases. Cruz Sosa also filed a federal suit against UFCW Local 27 that claims the union is forcing members to pay fees through a contract clause.
The UFCW Local 27 represents about 800 workers at the Selbyville plant, as well as others at Allen Harim in Harbeson and other industries across the state. It is the only Mountaire plant with a union, since it was well-established by the time the poultry processing company bought the facility in 1977.
NRWF President Mark Mix applauded the NLRB’s decision to review contract-bar, urging to be overturned swiftly of the policy that “undermines free choice of workers.”
“For decades, [contract -bar] allowed union officials to trap workers in a union a majority of them oppose for up to three years merely because the employer and union finalized a contract between themselves,” Mix said in a press statement.
Since the COVID-19 pandemic swept the world, the union and Mountaire has been in conflict over worker safety, a situation that has intensified since state officials focused testing efforts at poultry plants. Recently, the union filed a complaint with Occupational Safety and Health Administration (OSHA) following workers’ complaints about breathing difficulty, respiratory infections and chest pain from strong chemicals used at the plant.
Mountaire announced that one worker had tested positive in April, and Delaware Division of Public Health (DPH) spokeswoman Jill Friedel said the state has no plans to release the number of positive cases per poultry sites.
In May, Delaware focused its efforts in Sussex County’s poultry plants and held testing events at plants. As of mid-June, there have been 1,015 cases in which the person who tested positive said they worked in the poultry industry, Friedel said. That number may include Delawareans who worked in Maryland as well as Delaware.
Mountaire Farms President Phillip Plyar said that the company supported its staff though enhanced safety measures to protect workers, like required temperature checks, plexiglass dividers at production lines and relaxed sick leave policy. In addition, Plyar supported the union’s right to hold the election.
“We’re hopeful that our employees will have their voices heard and their votes counted,” he said in a press statement. “Every employee should have a say in whether they want the union to continue to represent them.”
Officials from UFCW Local 27 union did not return repeated calls for comment from the Delaware Business Times this week.
Editor’s Note: This story has been updated with COVID-19 case numbers for the poultry industry.