Workers at Mooresville brick plant trying to overturn ‘successor bar’ doctrine in decertification fight

Mooresville brick makers unhappy with their union are asking the National Labor Relations Board to override the decision of the regional director and allow them to take a decertification vote.

Kerry Atkins, on behalf of what he claims is a majority of the US Brick workers who are members of Teamsters Local 135, filed a request for review  March 7 with the NLRB arguing the “successor bar” doctrine should not have been applied to this case or should be revised. He asserts the doctrine enables the NLRB to put its “thumb on the scale against employee free choice and in favor of what is clearly a minority union.”

The doctrine holds that a company which becomes the owner of a unionized business is obligated to bargain with the union when the operations remain substantially the same and a majority of the workers are retained. In the Feb. 9 decision, the regional director agreed with the Local 135 that the doctrine applies because US Brick recognized the union and discussed dates to negotiate a collective-bargaining agreement.

Pointing to the National Labor Relations Act, the National Right to Work Foundation, which is representing Atkins, said employees have a statutory right to hold decertification elections.

“The NLRB-invented ‘successor-bar’ is just one example of how the Board neglects its mandate to protect the rights of individual workers, including those opposed to forced union affiliation, just to protect union boss power,” NRWF president Mark Mix said in a press release. “The ‘successor bar’ not only overrides the statutory right of workers to vote out unions they oppose, but does so at the very moment when workers are most likely to reevaluate their union status: the turnover of the old management that perhaps was the reason for unionization in the first place.”

Teamsters Local 135 declined to comment, citing the ongoing litigation. However, it has filed a statement in opposition to the review, saying the petitioners are inviting the NLRB to “undertake a major change to its interpretation” of the labor relations act.

The Mooresville Brick Plant had been part of General Shale Brick, Inc. However, the Indiana operation was sold in the fall of 2021 as part of the divestiture settlement that had been reached with the U.S. Department of Justice so General Shale could acquire Meridian Brick.

Atkins argues the collective bargaining agreement with Local 135 expired at the end of October so the workers were free to move for a decertification vote.

The election petition was filed Dec. 22, 2021, and in January 2022, a “disaffection petition” opposing Local 135’s continued representation was signed by 23 of the 33 bargaining unit employees.

“There is no justifiable policy reason why that contract hiatus’ ‘open period’ should abruptly end because of an asset sale over which the employee had no control, since Local 135 reached no CBA with any employer after October 31, 2021,” Atkins argues in his request for review. “… Indeed, to apply a successor bar here is to privilege Local 135 with an additional and extended ‘insulated period’ it would not have had if General Shale had remained the owner of the Mooresville plant, since the employees were free to decertify any time after the October 31 contract hiatus began.”

US Brick has also filed a request for review. The company echoes many of Atkins’ arguments including the assertion that the successor bar doctrine should not have been applied to this case because a majority of the workers do not support the union.

In its ruling, the regional director found the situation at the Mooresville plant “falls squarely” within the successor-bar doctrine.

The decision noted that both the incoming company president and the union’s business agent communicated before and after the sale. Also both testified that US Brick did recognize Local 135 as the exclusive representative of the unit’s workers.

“The Employer’s and Petitioner’s contention that the successor bar inappropriately favors incumbent unions fails to acknowledge the bargaining relationship between a successor and labor organization, in this case the Employer and Union, is a new and different one from the relationship between the predecessor, in this case General Shale, and union,” the regional director’s decision stated. “… The (NLRB) has well-established conclusive presumptions of majority support, during which the Union’s status as exclusive representative cannot be challenged.”

Local 135 maintains US Brick is the successor since it continued to operate the plant in the same manner as General Shale, using the same employees performing the same duties as they did before the sale.

Moreover, while disputing that a majority of the workers do not support the union, Local 135 states the workers had been represented for at least 22 years so the NLRB has the discretion to give the collective bargaining relationship a chance to succeed.

“(Atkins’ and the employer’s) position, at its core, is essentially that the Board made the wrong policy choice and that free choice should always, and at all times, trump the stability of collective bargaining relationships in the successorship context,” the union argues, noting the National Labor Relations Board took the opposite stance in UGL-UNICCO, supra, 357 NLRB at 808. “Rather, the Board reasoned that promoting stability of collective bargaining relationships by establishing and enforcing a successor bar for a ‘reasonable period of time’ appropriately balanced the competing goals by not unduly burdening free choice.”