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October 30, 2018

Construction Industry May See Changes to Unionizing Standards

Construction industry employers should keep an eye out for potential changes in how the National Labor Relations Board (NLRB) assesses unionization standards, as it soon may be harder for unions to establish indefinite relationships with construction employers in the absence of formal employee action.

Most unionized employers operate under a 9(a) relationship, named for the section of the National Labor Relations Act that establishes it, meaning that they are indefinitely obligated to recognize and bargain with that union as the representative of their employees.

Construction employers can also enter into another type of relationship with unions, known as an 8(f) agreement. These agreements obligate them to recognize a particular union for the duration of a contract, but no longer.

After expiration, the parties can choose to enter into a successor 8(f) agreement, but neither side is obligated to do so. Look at it this way: If the 9(a) relationship is like marriage, the 8(f) relationship is a summer fling.

Another key difference between 9(a) and 8(f) relationships is how they begin. The default rules that govern 9(a) agreements require that a majority of the employees actively choose union representation through “workplace democracy,” usually through an NLRB election or by signing “authorization cards.”

But an 8(f) agreement allows a construction employer to unionize its workforce without ever consulting the employees. The primary reason for this distinction is that a construction industry employer often needs to know if it will be unionized before bidding on a job, when it may not have even hired the employees for that job yet.

However, in some cases construction employers have inadvertently found themselves indefinitely unionized through contracts that create 9(a) agreements based not on formal action taken by employees but rather on the premise that the union offered to show the employer evidence that most of the employees want to unionize.

NLRB law currently allows this, but it’s not clear for how long. The federal agency is currently considering a case involving a small family insulation business that signed a contract of this nature, and in September 2018, it asked the public for amicus briefs about how it should analyze if a 9(a) relationship exists between that company and the union.

In October, however, the union that filed that case asked for it to be withdrawn, and the NLRB suspended amicus briefing while it decides whether it will still take that case forward. Regardless of what happens in that particular case, it shows that the NLRB is seriously considering changing how construction industry employers can become indefinitely unionized.

In light of these developments, construction industry employers should watch to see if the NLRB decides to reopen amicus briefing for this case and ultimately changes the standards for 9(a) unionization, and if unions begin to make special efforts, such as attempting to get employers to sign 9(a) agreements before any potential changes take effect.

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