The National Labor Relations Board (NLRB or Board) approved a union’s petition for a single representation election covering all of the contractors in a multiemployer group because the contractors indicated their “unequivocal intent” to be bound by group bargaining. The case, Building Contractors Association, involves interesting issues about conversion from 8(f) to 9(a) relationships in the construction industry.[1]
The Carpenters’ District Council of New York City and Vicinity and the Building Contractors Association, the parties involved, had a 30-year history of bargaining together and were signatory to an 8(f) agreement when the case arose. In collective bargaining negotiations, the union proposed language that would convert the 8(f) relationship to a 9(a) relationship, but the parties could not come to agreement on the matter. The association at one point offered to accept the proposed conversion language but only if the union agreed to all of the association’s other proposals, which the union refused to do. Instead, the union filed a petition with the NLRB to represent the carpenters working for all 145 contractors that had delegated bargaining authority to the association and were signatory to the 8(f) agreement. An NLRB regional director found the multiemployer unit appropriate and issued a direction of election. The association sought review by the Board. The Board upheld the regional director’s decision.
According to the Board, the critical question “is whether the members of the Association have clearly indicated their intent to engage in multiemployer bargaining with the Petitioner—whether on an 8(f) or 9(a) basis.” Indeed, the Board found, the association’s membership documents demonstrated that the member contractors authorized the association to bargain on their behalf regardless of whether that bargaining was on an 8(f) or 9(a) basis. The Board noted that the association in 2012 sent to all its members a notice of amendments to its membership agreement that included an explanation of differences between 8(f) and 9(a) bargaining relationships and of the union’s right to seek conversion to 9(a) status through a showing of majority status at any time. The Board also noted that the association did not require consent from its members as a condition of conversion and that the membership agreement’s references to delegation of bargaining authority do not distinguish between 8(f) and 9(a) agreements. In addition, the association already had 9(a) agreements with certain other unions, to which some of the contractors involved here were signatory.
NLRB Member Miscimarra wrote a dissent with several strong arguments against affirming the regional director’s decision. He agreed that the contractors indicated their intent to engage in multiemployer bargaining but only on an 8(f) basis. He also pointed out that the results of a single election of all the contractors’ carpenters together would not reflect whether the union has majority support among the employees of any individual contractor. The regional director took a different position, asserting that this is true of all multiemployer elections, yet elections in multiemployer units have a long history of being appropriate. “Further, such a result is not significant to the current situation because of the nature of the construction industry, where there is no stable work force among the employers and employees often work for multiple employers a year,” he said.
Member Miscimarra also disagreed with the Board’s holding that the regional director appropriately included in the election 16 contractors who currently do not employ any carpenters. The Board found the inclusion consistent with the agency’s long-standing recognition that employee complements of construction employers fluctuate. “Those 16 member-employers designated the Association to bargain on their behalf with the Petitioner, and there is no indication that any of them attempted to withdraw from the 8(f) agreement despite their nonemployment of unit carpenters. As the Regional Director noted, there is no indication that any of the 16 member-employers have permanently ceased carpentry work or will not accept such work in the future.”
Member Miscimarra further disagreed with the Board’s affirmance of the regional director’s inclusion of Carpenter-Foreman and Carpenter-General Foreman classifications in the bargaining unit. The regional director concluded that the association failed to meet its burden of proving that the employees in those classifications are qualify as supervisors under the National Labor Relations Act and, therefore, ineligible to vote. Member Miscimarra stated that he would grant review to further consider the foremen’s supervisory status given language in the parties’ 8(f) agreement indicating that the foremen had authority to hire and fire.
AGC chapters with 8(f) collective bargaining agreements may wish to review their membership agreements, bylaws, assignments of bargaining rights, and any other documents that contain language that, in light of this ruling, could be interpreted as conveying contractors’ intent to be bound as a multiemployer unit on either an 8(f) or a 9(a) basis. Consultation with outside counsel is well-advised. To find an attorney who might be helpful, consult the AGC Labor and Employment Law Council directory at https://www.agc.org/lelc-member-directory.
[1] An employer with an 8(f) agreement may terminate its relationship with the signatory union expiration of the agreement, but an employer with a 9(a) agreement has an ongoing duty to bargain with the union beyond contract expiration. For more information on the differences between 8(f) and 9(a) relationships, visit AGC’s Labor & HR Topical Resources page. After logging in as an AGC member, select the main category “Collective Bargaining” and subcategory “Collective Bargaining Agreements: 8(f) vs. 9(a).”