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NLRB Proposes Rule Preventing 9(a) Bargaining Relationship Based on Contract Language Alone

August 23, 2019

The National Labor Relations Board has issued a proposed rule addressing union recognition in the construction industry.  AGC plans to submit comments prior to the October 11, 2019, deadline.

Under its current case law, the Board may find the existence of a 9(a) relationship, rather than an 8(f) relationship, between a union and an employer in the construction industry based solely on language in the parties’ collective bargaining agreement if the language provides that the union requested and was granted employer recognition as the employees’ exclusive bargaining representative based on a showing (or offer to show) evidence that the union has the support of a majority of the employees.  Such a finding is significant because an employer with an 8(f) agreement is legally free to “go open shop” or contract with a rival union following contract expiration, while an employer with a 9(a) agreement has an ongoing duty to recognize and bargain with the union unless and until the union is shown to have lost majority support.  Further, a 9(a) agreement limits the time that the employer has to challenge the union’s status and prevents a representation election for up to three years.

The Board is presently proposing a new regulation that would overturn that case law.  Under the proposed rule, contract language alone would not be sufficient to establish a 9(a) relationship.  Rather, there must be extrinsic proof that “the union unequivocally demanded recognition as the Section 9(a) exclusive bargaining representative of employees in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit.”

In addition to the construction-specific proposal discussed above, the rulemaking includes two proposals affecting employers in all industries.  One seeks to replace the current “blocking charge” policy with a vote-and-impound procedure.  Instead of blocking representation elections while an unfair labor practice charge is pending pursuant to current policy, ballots would be impounded until the charges are resolved.  The other seeks to modify the current “recognition bar” policy by re-establishing a prior notice requirement and a 45-day open period within which to file an election petition following an employer’s voluntary recognition of 9(a) status.

AGC is likely to support the proposed changes but is carefully reviewing the notice of proposed rulemaking to determine particular comments.  Chapter and member representatives who wish to provide input are encouraged to promptly contact Denise Gold, associate general counsel, at denise.gold@agc.org.

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