The recognition of paragraph 9(a) brings significant benefits to a work organization, and the employer`s obligation to recognize and negotiate with the union continues indefinitely. The employer has no way of unilaterally breaking away from the obligation to negotiate. Workers can attempt to revoke the union at the appropriate time, usually by requesting a vote to revoke certification in the NLRB. However, NLRB rules protect newly formed unions by prohibiting decertification for a certain period of time to negotiate a contract, and then, when an agreement is reached, by extending that protection for up to three more years. The rule in paragraph 9(a) applies to all employers. However, paragraph 8(f) of the NLRA provides an additional option for employers in the construction industry. Many (but certainly not all) employers in the construction industry employ a variable number of workers for intermittent periods. With a high level of work flow, it can be difficult for a union to establish majority support in a separate collective bargaining unit. In addition, in some markets, construction workers who are not otherwise unionized may request access to union hiring rooms as a source of skilled labour.
In 1959, Congress amended the NLRA to allow employers in the construction industry to recognize unions and pass collective agreements without the support of the majority of workers – and without any worker support for the union. In a notice published today in Loshaw Thermal Technology, LLC, 05-CA-158650, the National Labour Relations Board requests the filing of briefing notes on whether it should reconsider the involvement of Staunton Fuel & Material, 335 NLRB 717 (2001). According to Staunton Fuel, this presumption of paragraph 8(f) can only be overcome by the language of the contract and a relationship can be established under paragraph 9(a) – in particular, if the wording of the parties` collective agreement clearly indicates that the union has applied for and obtained recognition as the majority representative or 9(a) of the unitary employees, based on the fact that the union has demonstrated or offered: To show it: proof of its majority support. The Commission is requesting briefings on whether it should comply, amend or cancel Staunton Fuel. In addition, the Commission requests information on Casale Industries, 311 NLRB 951 (1993), which regulates the limitation period for challenging the extension of a construction industry employer`s recognition of paragraph 9(a). According to Casale Industries and its descendants, a union`s status 9(a) cannot be challenged more than six months after the employer has recognized the union as representing 9(a) of the unit. This limitation period applies both if recognition under paragraph 9(a) is considered an unfair labour practice and if the nullity of recognition as a defence to a charge of refusal to negotiate is introduced. Washington, D.C.
– In a notice published today in Loshaw Thermal Technology, LLC, 05-CA-158650, the National Labor Relations Board requests the filing of briefings on whether it should reconsider the involvement of Staunton Fuel & Material, 335 NLRB 717 (2001). Under the National Labour Relations Act, most bargaining relationships are governed by section 9(a) of the Act, which requires the union to have the support of a majority of workers in the bargaining unit. However, in the construction industry, it is assumed that bargaining relationships are governed by paragraph 8(f), which does not require it. According to Staunton Fuel, this presumption in paragraph 8(f) can be overcome and a relationship under paragraph 9(a) can be established only by the language of the contract, especially if the wording of the parties` collective agreement clearly indicates that the union has applied for and received recognition as the majority or 9(a) representative of the unit`s employees. on the ground that the union has presented evidence of its majority support or has offered to demonstrate it. The Commission is requesting briefings on whether it should comply, amend or cancel Staunton Fuel. As in many areas of federal labour law, there are different rules for employers in the construction industry. A key difference is the way employers are unionized. As a general rule, under section 9 (a) of the National Industrial Relations Act, a trade union does not become a collective bargaining partner of employees until a majority of employees support union representation. In other words, workers decided whether they wanted to be represented by a particular union. However, under paragraph 8(f) of the NLRA, employers in the construction industry may choose to unionize without the support of the majority of workers. In fact, employers in the construction industry do not need to have employees at all to sign an “Agreement 8(f).” As a result, these agreements became known as pre-employment contracts.
The court went on to rule that “the `contractual language` and `intent` of the union and the company alone cannot overcome the presumption under Article 8(f) in general, and certainly not if `the record contains solid evidence that the parties had only a relationship under Article 8(f).` Instead, the protocol must indicate clear actions on the part of workers indicating their desire to implement an agreement, e.B sign authorization cards, sign a petition or an informal vote to confirm the majority status of the union. The court clarified that the union must provide evidence of positive actions by workers that indicate majority support. In doing so, the court struck down the commission`s test, which only required the union to provide evidence of support. In summary, the Court noted: “Although an employer and a union may unite to create an agreement prior to Article 8(f), only employees may grant status under Article 9(a) to a trade union by a majority vote. Thus, in order to rebut the presumption of status under paragraph 8(f), there must be factual evidence that a majority of workers supported the union, and in the deliberations of the board, that evidence must be reflected in the administrative records. “The possibility of withdrawing from an 8(f) agreement at the end of an 8(f) agreement obviously offers great benefits to an employer and works to the detriment of the union. As a result, many agreements under paragraph 8(f) contain language that attempts to convert them into paragraph 9(a) agreements by stipulating that the employer agrees that a majority of its employees support the union. Not surprisingly, provisions reflecting these factors have become a common “boilerplate” in construction collective agreements. Many construction bargaining relationships are created through unilateral pre-employment contracts, project employment contracts or consent agreements that contain by reference the full “model contract” of that particular syndicate that includes recognition of paragraph 9(a). Often, employers sign these agreements without receiving or reading the full contracts. In practice, the three-factor detection test described in Staunton Fuel often never takes place. Nevertheless, after the Staunton Fuel rule, the NLRB accepted the wording of the contract as fact without examining whether majority support for employees had actually been demonstrated.
Jackson Lewis P.C more than 950 lawyers, who have focused on labor law since 1958 and operate in major cities across the country, systematically identify and respond to new ways in which labor law overlaps cases. We help employers develop proactive strategies, strong policies and business-focused solutions to cultivate a workforce that works well, is engaged, stable and diverse, and shares our clients` goals to focus on inclusion and respect for each employee`s contribution. For more information, see www.jacksonlewis.com. In Staunton Fuel & Materials, Inc., NLRB 335 717 (2001), NlRB held that the mere declaration in a collective agreement that the employer recognized the union on the basis of a majority of cards (without proof that this actually happened) would constitute sufficient evidence of legal and binding recognition under Article 9(a), thus creating an obstacle to applications for revocation of certificate and unilateral withdrawal of the employer. would be created. The NLRB considered a contract to be sufficient evidence if the agreement states unequivocally: Most private sector collective agreements are subject to section 9(a) of the National Labour Relations Act, and this section generally requires a majority of workers in the bargaining unit to advocate for a union to represent them. .