By Ryan J. Funk, Faegre Baker Daniels LLP
There are two kinds of relationships an employer might have with a union. Most unionized employers have a “9(a)” relationship (named for that section of the National Labor Relations Act), meaning that they are indefinitely obligated to recognize and bargain with that union as the representative of their employees.
But in the construction industry, there are special rules. A construction employer can enter into an “8(f)” agreement with a union, which obligates it to recognize that union for the duration of the contract, but no longer. After expiration, the parties can choose to enter into a successor 8(f) agreement, but neither side is obligated to do so. If the 9(a) relationship is like marriage, the 8(f) relationship is a summer fling.
One key difference between 9(a) and 8(f) relationships is how they begin. The default rule is that a majority of the employees must actively choose to become represented by a union, usually through an NLRB election or by signing “authorization cards.” This is “workplace democracy” in action. But a construction employer may simply choose to enter into an 8(f) agreement, thereby unionizing its workforce without ever consulting the employees. (The primary reason for this distinction is that a construction industry employer often needs to know if it will be unionized before it bids on a job, when it may not have even hired the employees for that job yet.)
But what if the agreement between a construction industry employer and a union claims to form a 9(a) agreement? Can they contractually agree to have the union indefinitely represent the employees without the employees actively choosing that union? Under current law, yes. If the agreement states that the union offered to show the employer evidence that most of its employees wanted to unionize, they can form a 9(a) relationship—even if in fact no one ever asked the employees what they wanted. Construction employers sometimes inadvertently become indefinitely unionized by signing a document containing this language.
The NLRB is interested in changing this. It is currently considering a case involving a small family insulation business that signed a 9(a) agreement, and in September 2018, it asked the public for amicus briefs about how it should analyze whether that company has a 9(a) relationship with the union. In October, the union that filed that case asked to withdraw it, and the NLRB suspended amicus briefing while it decides whether it will still take that case forward. Regardless of what happens in that case, it shows that the NLRB is seriously considering changing how construction industry employers can become indefinitely unionized.
Construction industry unions and employers are waiting to see if the NLRB reopens briefing on this issue and ultimately changes the legal standards. And if they alter their current strategies to anticipate new legal standards, change may have come already. For example, unions might expand their efforts to get employers to sign 9(a) agreements before any changes take effect, and might tighten the language in those agreements to meet a higher legal standard.
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