The National Labor Relations Board (NLRB or the Board) has announced that it is planning to revisit the standard for determining whether and when contract language can convert an 8(f) collective bargaining relationship to a 9(a) relationship in the construction industry, and it is inviting interested parties to submit amicus briefs. AGC of America is considering plans to submit a brief. The deadline for submission is Oct. 26, 2018.
The issue of whether parties to a collective bargaining agreement have a 9(a) or an 8(f) relationship is a significant one. An employer with an 8(f) agreement – which is permitted only in the construction industry – may terminate its relationship with the signatory union upon expiration of the contract, but an employer with a 9(a) agreement has an ongoing duty to bargain with the union beyond contract expiration, unless and until the union is shown to have lost majority support. Also, an 8(f) agreement does not bar a petition for representation by a rival union, while a 9(a) agreement does.
A 9(a) relationship is generally established by either an NLRB-certified election or an employer’s voluntary grant of union recognition based on a contemporaneous showing of union support by a majority of employees in the bargaining unit. However, the NLRB and some courts have held that contract language stating that a union has shown majority support and that the employer has acknowledged that status is sufficient, even when it appears that the union never actually showed evidence of majority support.
The Board currently applies a standard established in the 2001 Staunton Fuel case. Under this standard, the presumption of an 8(f) relationship is overcome where language in the parties’ collective-bargaining agreement unequivocally indicates that the union requested and was granted recognition as the majority or 9(a) representative of the unit employees, based on the union having shown, or having offered to show, evidence of its majority support. The Board also follows the 1993 Casale Industries rule that limits the time for an employer to challenge a union’s 9(a) status to six months from entering into such an agreement.
The Board has now decided to reconsider both the Staunton Fuel and Casale Industries holdings in a pending case called Loshaw Thermal Technology. The Board is specifically seeking briefs that address the following questions:
- Should the Board adhere to, modify, or overrule Staunton Fuel?
- If the Board were to overrule Staunton Fuel, what standard should the Board adopt in its stead? Specifically, what should constitute sufficient evidence to overcome the presumption of a Section 8(f) relationship in the construction industry and establish a Section 9(a) relationship? Even if not dispositive, should contract language be deemed relevant to that determination? Where a union in the construction industry asserts (and the employer disputes) that a 9(a) bargaining relationship has been in existence for a period of time, should the Board’s standard for determining whether the grant of 9(a) recognition validly reflects the wishes of a majority of employees in the bargaining unit be the same as for finding an initial establishment of a 9(a) relationship? If not, how should the standards differ?
- Even if the Board modifies or overrules Staunton Fuel, under Casale Industries contract language alone would continue to be sufficient to establish 9(a) status whenever that status goes unchallenged for 6 months after 9(a) recognition is granted. If Staunton Fuel is modified or overruled, should the Board adhere to, modify, or overrule Casale Industries, and, if either of the latter, how?
AGC is closely reviewing this important matter and considering its approach. Interested members and chapter staff who wish to provide input should contact Denise Gold, AGC’s associate general counsel, at (703) 837-5326 or firstname.lastname@example.org.
For more information about 8(f) vs. 9(a) agreements and the conversion doctrine, visit AGC’s Labor & HR Topical Resources page, and select “Collective Bargaining” as the main category and “Collective Bargaining Agreements: 8(f) vs. 9(a).”