The National Labor Relations Board has been considering whether to modify or eliminate long-standing precedent referred to as the “Contract Bar.” Presently, the Contract Bar prevents employees from holding a decertification election to remove a Union during the first three years of a collective bargaining agreement.

To help evaluate the future of the Contract Bar, the NLRB invited the public and the General Counsel’s office of the NLRB to submit briefs on the issue. The previous General Counsel for the NLRB—Peter Robb—submitted a brief in which he asserted that the current version of the contract bar interfered with employee free choice since it can denied employees the ability to vote a union out.

As we have covered extensively on this blog, President Biden fired Peter Robb within hours of taking office. He has since replaced Peter Robb with Acting General Counsel Peter Ohr—a career lawyer with the NLRB. Last week, Acting General Counsel Ohr sent a letter to the National Labor Relations Board asking to retract the brief filed by his predecessor and for permission to file a new brief—which would likely take the opposition position. The NLRB determined that Acting General Counsel Ohr could retract his predecessor’s brief but could not file his own as the deadline to submit briefs had passed four months prior.

The NLRB will likely decide this case in the coming months.  We will be sure to follow any decision or developments.