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AGC Supports NLRB Rulemaking on Representation Case Procedures with Recommended Changes to Rule on Construction Industry Bargaining Relationships

January 9, 2020

On January 8, AGC of America submitted comments on the National Labor Relations Board’s latest proposed rule to modify union representation-case procedures.  Not to be confused with the Board’s “quickie election” rule, which addresses different representation-case procedures, the present rulemaking proposes three changes:  (1) replacing the Board’s current “blocking charge” policy with a vote-and-impound procedure that would allow representation elections to move forward while an unfair labor practice charge is pending; (2) modifying the current “voluntary recognition bar” policy by re-establishing a notice requirement and a 45-day open period within which to file an election petition following an employer’s voluntary recognition of a union under Section 9(a) of the National Labor Relations Act (“NLRA”); and – most relevant to AGC members – (3) preventing the establishment of a Section 9(a) bargaining relationship in the construction industry based on contract language alone. 

Background on the Third Proposal

Collective bargaining relationships in most are governed by Section 9(a), which requires that the union demonstrate that a majority of employees in the unit it seeks to represent supports the representation.  However, an exception exists in the construction industry.  Under Section 8(f) of the NLRA, employers in the construction industry may enter into collective bargaining relationships with a union representing construction workers without any showing of employee support.  Accordingly, collective bargaining relationships in the construction industry may be either 9(a) relationships or 8(f) relationships, depending on how they are established.  The distinction is significant because an employer with an 8(f) relationship is legally free to “go open shop” or to contract with a rival union following contract expiration, while an employer with a 9(a) relationship 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.

Under Board case law, the Board may find the existence of a 9(a) relationship in the construction industry based merely on language in the parties’ collective bargaining agreement stating that the union has shown majority support even when there’s no other evidence that the union actually showed proof of majority support at the time of the recognition.  The Board intends to overturn that case law with the present rulemaking. 

AGC’s Comments

In its comments, AGC expressed support for all three proposals.  With regard to the first two proposals, AGC endorsed comments submitted by the Coalition for a Democratic Workplace.  AGC is an active member of the Coalition and agrees with the Coalition’s various rationales in support of the proposed changes to the blocking charge and voluntary recognition bar policies, including the enhancement of efficiency and employee free choice.

AGC submitted independent comments with regard to the third proposal, the one addressing 9(a) relationships in the construction industry.  The comments express support for the Board’s stated objectives for the proposal, agreeing with the reasoning that recognizing a 9(a) relationship absent evidence of a showing of majority support contemporaneous with the union’s request for recognition runs roughshod over employee rights.  The comments explain, however, that AGC has concerns about the proposed regulatory text and recommend certain changes designed to ensure that the Board’s objectives are fully met, to provide greater clarity to bargaining parties, and to help prevent unnecessary litigation and election petitions. 

The timing for issuance of a final rule is unknown, but it seems likely that the Board will try to complete the rulemaking process before August given the risk that the Board will lose a quorum at that time.  Since December 16, when Member Lauren McFerran’s term expired, the five-member Board has been operating with only three members.  On August 27, Member Marvin Kaplan’s term will expire and the Board will lose a quorum unless new appointments are made and confirmed beforehand.

For more info, contact Denise Gold, associate general counsel, at denise.gold@agc.org or (703) 837-5326.

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