AGC Urges NRLB to Back Down on Proposal to Withdraw Certain Representation Case Procedures, Including Special Rule for Union Contractors

AGC recently submitted formal comments to the National Labor Relations Board (“NLRB” or “Board”) on a proposed rule to modify certain union representation case procedures. AGC joined with other employer groups in filing joint comments through the Coalition for a Democratic Workplace (“CDW”) and filed our own supplementary comments focused on construction-industry issues.

The Board’s proposed rule seeks to rescind regulations issued during the Trump Administration and return to the prior status quo. The Trump-era regulations changed three NLRB policies, two of which apply employers across all private industries – the “blocking charge” and “recognition bar” policies – and one which applies only to employers in the construction industry – the effect of contract language granting 9(a) recognition to a union in the construction industry. Prior to the regulations, the “blocking charge” policy blocked representation elections while an unfair labor practice charge is pending. The regulations created a procedure that allows an election to go forward but impounds ballots until charges are resolved. The “recognition bar” policy prevents employees and rival unions from challenging a union’s 9(a) representative status for a “reasonable period of time” following voluntary recognition by an employer. The regulations established a requirement that employees must receive notice that voluntary recognition has been granted must be given at least 45 days to file an election petition in order for the bar to be effective.

Regarding the third policy, the regulation on the chopping block made it more difficult for bargaining parties in the construction industry to convert 8(f) relationships to 9(a) relationships. Outside the construction industry, collective bargaining relationships are governed by Section 9(a) of the National Labor Relations Act, which requires the union to demonstrate that a majority of employees in the unit it seeks to represent supports the representation. For the construction industry, however, the Act provides an exception to this requirement. Section 8(f) allows construction employers to enter into collective bargaining agreements covering construction workers without any showing of employee support and even before workers are hired.  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 contract with a rival union or “go open shop” 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 it prevents an election for up to three years.

Under Board case law, the Board may find that a 9(a) relationship exists in the construction industry based only on language in a collective bargaining agreement stating that the elements of voluntary 9(a) recognition have been met – i.e., that the union requested, and the employer granted, recognition as the exclusive bargaining representative of an appropriate unit of employees based on a contemporaneous showing of, or offer to show, proof of employee majority support – even when there’s no other evidence that the union actually had proof of majority support when recognition was granted. The Trump-era regulation overturned certain cases and established that such language, when newly adopted, does not prevent an election challenging a union’s 9(a) status unless additional evidence beyond contract language shows that the elements of 9(a) recognition were satisfied.

CDW’s comments express opposition to rescission of the regulations. The comments explain how doing so would negatively impact the Board’s representation-case jurisprudence, undermine the Board’s goals and reputation, diminish employee free choice, and upset the balance of countervailing interests. AGC’s independent comments go into greater detail on, and argue for further changes to, the third policy. AGC recommended not only that the Board drop plans to rescind the existing regulation but that it expand the regulation by adopting a clearer, broad policy finding voluntary 9(a) recognition in the construction industry to be effective only when there is positive evidence beyond contract language that the legal elements of such recognition have been met. AGC also pointed out that the Board failed to take into consideration certain realities of construction-industry labor relations, including aspects of multiemployer bargaining and “me-too” agreements, and the lack of employer knowledge of the existence or relevance of contractual language supporting 9(a) status.

The Board’s latest regulatory agenda sets a target date for issuance of a final rule in August 2023.

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