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NLRB's Final Rule on Union Election Policies Leaves Loose Ends on Construction-Industry Conversion Doctrine

April 23, 2020

The National Labor Relations Board (“NLRB” or “Board”) has issued a final rule amending union representation-case procedures.  The rule was published in the Federal Register on April 1, 2020.  The effective date was originally set for June 1, 2020, but has been postponed to July 31, 2020, due to the national emergency caused by the coronavirus.

The final rule, which is largely the same as the proposed rule issued in August 2019, modifies three policies.  Two of those policies apply to employers across private industries, and one exclusively applies to employers in the construction industry.  The first change that applies to all employers replaces the Board’s “blocking charge” policy, which blocks union representation elections while an unfair labor practice charge is pending, with a vote-and-impound procedure, allowing an election to go forward but having ballots impounded until charges are resolved.  The second such change revises the Board’s “recognition bar” policy to establish that an employer’s voluntary grant of union recognition under Section 9(a) of the National Labor Relations Act will bar a representation petition only if employees (a) receive notice that voluntary recognition has been granted and (b) are given at least 45 days to file an election petition.  AGC expressed support for those changes in comments filed in January.

The third change applies only to construction employers, to union contractors in particular.  It addresses the conversion from a Section 8(f) to a Section 9(a) bargaining relationship based on contract language alone.  In its comments on the proposed rule, AGC supported the Board’s stated objective of preventing such a conversion, agreeing that recognizing a 9(a) relationship absent extrinsic evidence of majority support runs roughshod over employee rights.  AGC requested changes to the regulatory text, however, to fully accomplish those objectives.  The proposed regulatory text merely established that contract language alone will not bar an election petition.  AGC sought regulatory language that would establish that contract language, on its own, would not be sufficient to prove the existence of a 9(a) relationship for all purposes.  This would provide clarity to bargaining parties about the scope of their relationship and their obligations upon contract expiration.  

The Board denied AGC’s request, stating that the request was “beyond the scope of the rule” and that the agency would address other issues (unfair labor practice issues in particular) “as they arise in future, appropriate proceedings.”

AGC’s comments also requested clarification about how the rule impacts existing 9(a) relationships that previously converted from 8(f) relationships based on contract language alone.  AGC recommended that the Board take the approach that such relationships would revert to 8(f) relationships upon the effective date of the rule, noting that the parties could choose to remain governed by Section 8(f) or could re-establish a 9(a) relationship through voluntary recognition based on a new showing of majority support or through a new election.

The Board did provide some clarification in the final rule but declined to take the AGC-recommended approach.  The final rule adds language stating that the new policy “is applicable only to an employer’s voluntary recognition extended on or after the effective date of this rule and to any collective bargaining agreement entered into on or after the date of voluntary recognition extended on or after the effective date of this rule.” 

It seems, then, that construction contractors with conversion language in their collective bargaining agreements before July 31 will continue to have 9(a) relationships going forward.  Bargaining parties without such language who are contemplating adoption of it after July 31, however, should tread carefully as the implications of the regulation are not entirely clear.  While the rule clearly establishes that such language alone (without additional evidence of a showing of majority support contemporaneous with the union demanding and the employer granting recognition) will not bar a decertification petition or an election petition from a rival union, it leaves uncertain whether the employer may stop recognizing the union after contract expiration and enter into an 8(f) agreement with a rival union or operate on an open-shop basis. Hopefully, with future litigation, the Board will finish what it started and fully overturn the policy that contract language alone can prove the existence of a 9(a) bargaining relationship. 

For more information on 8(f) vs. 9(a) bargaining relationships and the contract language that can convert a relationship from the former to the latter, visit AGC’s Labor & HR Topical Resources library, choose main category “Collective Bargaining” and subcategory “Collective Bargaining Agreements:  8(f) vs. 9(a).”  You must be logged in as an AGC member to access the resources.

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