NLRB to review petition to decertify union at Mountaire plant

SELBYVILLE — Efforts by a Mountaire Farms employee to decertify the union at Mountaire’s Selbyville processing plant have reached the National Labor Relations Board.

The Washington, D.C.-based NLRB announced Thursday it will review its so-called “contract bar” doctrine that blocks workers from removing a union they oppose. The action comes in a case brought by Selbyville plant worker Oscar Cruz Sosa against the United Food and Commercial Workers Local 27 union.

Mr. Cruz Sosa petitioned for a vote to decertify the UFCW union in his workplace and urged the NLRB to review the contract bar after UFCW lawyers tried to block his and his co-workers’ right to vote, according to Jacob Comello, spokesman for the nonprofit National Right to Work Legal Defense Foundation.

This contract bar doctrine prevents employees from exercising their right to vote an unpopular union out of their workplace for up to three years if union officials and their employer have finalized a monopoly bargaining contract, Mr. Comello said.

The petition was signed by more than the number of workers necessary to trigger such a vote.

In a statement issued Friday, Mountaire Farms Inc. applauds the recent Nation Labor Relations Board decision that will allow an election to proceed, giving employees at the company’s Selbyville processing plant the chance to vote on whether they want to continue to be represented by the United Food Commercial Workers union.

Employees have already started receiving the mail-in ballots, and they have until July 14 to fill them out and mail them, Mountaire Farms spokeswoman Catherine Bassett said. The NLRB initially suspended the election but agreed this week to allow the election to proceed. The NLRB will impound the ballots until larger issues are ruled on, according to a decision handed down this week by the NLRB.

“The petition was entirely employee-driven and reflects the desire of employees to be given a choice regarding union representation,” said Ms. Bassett.

That was immediately challenged by the union, which has tried to fight this election every step of the way, Mountaire stated in its release. The union fought the in-person election, which was then changed to a mail-in ballot, which will be allowed to proceed.

The decision to hold a mail-in ballot election was handed down by the National Labor Relations Board after the UFCW union appealed an earlier decision that granted an in-person election, according to Ms. Bassett.

“We’re hopeful that our employees will have their voices heard and their votes counted,” said Phillip Plylar, president of Mountaire Farms. “Every employee should have a say in whether they want the union to continue to represent them.”

This development comes after UFCW Local 27 on Monday brought in state and federal elected officials for a rally, urging workers at Mountaire’s Selbyville poultry plant to vote in support of continued union presence at the plant despite what it claimed were alleged attempts to break it up.

Among those who attended the rally were U.S. Sen. Chris Coons, D-Del., Delaware Lt. Gov. Bethany Hall-Long and Attorney General Kathy Jennings.

“We’re here because we have a reason that’s atrocious,” Nelson Hill, assistant to the president of UFCW Local 27, said at the rally. “We’re having an election that begins at Mountaire. After 43 years of representation, two years after signing a collective bargaining agreement, this company, along with the National Right to Work Foundation and Donald Trump’s National Labor Relations Board, has conspired to try to kick us out of the Mountaire plant in Selbyville.”

UFCW represents approximately 1,000 workers at the Selbyville plant, the only facility owned by Mountaire that operates with the UFCW union, which was part of the plant when Mountaire bought the facility in the 1970s, Ms. Bassett said.

UFCW officials argued after the petition’s filing that the contract bar should block Mr. Cruz Sosa and his co-workers from even having an election, because the monopoly bargaining agreement between Mountaire and the union had been signed less than three years earlier.

The contract bar is not provided for in the text of the National Labor Relations Act, which the NLRB administers, but is the result of past board decisions in favor of union bosses, according to the National Right to Work Defense Foundation release.

“The contract bar has for decades 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,” said National Right to Work Foundation president Mark Mix. “We urge the NLRB to swiftly overturn this outrageous non-statutory policy, as it actively undermines the free choice of workers that is supposed to be at the center of federal labor law.

“The very premise of the NLRB-created contract bar, that union bosses should be insulated from worker decertification efforts, is completely backwards,” added Mr. Mix. “Union officials use all types of tactics to get workers into unions but rely on government power to not let them get out.”

According to the National Right to Work release, the NLRB regional director held that the vote should proceed because the union agreement contains an unlawful forced-dues clause that mandates workers immediately pay union dues upon hiring or be fired, in violation of a statutory 30-day grace period. Despite the long-standing precedent supporting the regional director’s ruling, UFCW union lawyers filed a Request for Review asking the full NLRB to overrule the regional director, Mr. Comello said.

Mr. Cruz Sosa’s National Right to Work Foundation staff attorneys opposed the union’s efforts to block the vote and argued that if the board were to grant the union’s Request for Review, it should also reconsider the entire contract bar policy, which has no statutory basis in the NLRA, according to Mr. Comello.

The foundation’s legal brief noted that the contract bar runs counter to the rights of workers under the NLRA, which explicitly include the right to vote out a union a majority of workers oppose. The brief also notes that the idea of a contract bar was rejected by the original NLRB when the NLRA was passed.

Late Tuesday, just hours after the voting process in the decertification election had begun, the NLRB issued its order accepting the foundation’s argument that the entire contract bar doctrine should be reviewed. The order noted “that it is appropriate for the board to undertake in this case a general review of its contract bar doctrine.”

The NLRB’s order also stayed the election while the Request for Review was pending, but after foundation staff attorneys submitted a motion asking the NLRB to modify its order so the vote could proceed with the ballots impounded, the board issued another order late Wednesday allowing the vote to go forward.

In April, Mr. Cruz Sosa filed federal unfair-labor-practice charges against the union for illegally seizing dues from his and other employees’ paychecks, as well as threatening him after he submitted the decertification petition to remove the union, Mr. Comello said. Mr. Cruz Sosa is receiving free legal representation from the National Right to Work Legal Defense Foundation.

The union has been at odds with Mountaire over safety concerns at the Selbyville facility, along with unfair labor practices.

The union recently filed a complaint with the Occupational Safety and Health Administration following plant workers’ complaints about burning eyes, breathing difficulty, respiratory infections and chest pain from strong chemicals used at the plant.

According to UFCW Local 27, more than 200 workers are exposed to these harmful chemicals. These complaints had previously been reported to department supervisors and the medical department. Some workers have had to be sent home because they were made sick due to chemical exposure, the union said.

In addition, at least 41 cases of COVID-19 were reported at the Selbyville facility before the company stopped sharing information on new cases back in April, the union said.

Mountaire company officials have responded via the NLRB to what it calls “baseless” charges by the union of unfair labor practices.

“The safety of our employees has and will continue to be our top priority,” Mr. Plylar said. “We have implemented multiple new safety processes and added protective equipment throughout our facilities. In addition, we announced a temporary pay increase for all hourly workers across the company to help our employees through a difficult period. However, when it was suggested to the union that they consider suspending dues during this time, they declined.”

Since the start of COVID-19, Mountaire began temperature checking at every facility and requires all employees to wear face masks. Employees with bump caps also wear a protective plastic shield. Plexiglass dividers have been installed throughout the production line as well as in the cafeterias to help employees practice social distancing. Tents and picnic tables have been set up outside the plant to allow employees to enjoy breaks outside and away from each other.

Mountaire, in partnership with Beebe Healthcare, also provided employer-sponsored testing of all employees in Millsboro and Selbyville recently.

In addition to all the physical changes, all employees who are sick have been encouraged to stay home. Mountaire Farms introduced a special sick pay program that paid hourly workers five days of sick leave and relaxed the attendance policy so no employee should worry they will lose their job if they’re sick. Thousands of Mountaire employees have taken advantage of this special program, Ms. Bassett said.

In addition, Mountaire provided employees with a special hourly pay increase for the months of April, May and June to thank workers who are coming to work during these stressful times.

“As a critical part of our nation’s food supply, our employees have been working hard to produce the food that feeds our communities,” Mr. Plylar said. “I’m proud of the work they have accomplished and to be a part of this great team.”