A pre-hire agreement is when an employer and a union come to an agreement before any workers are hired. This is widely utilized in the construction industry. In essence, the company is unionized before it has employees, which means the employees did not vote a union into their workplace via secret ballot election.
Section 8(f) of the National Labor Relations Act allows employers “engaged primarily” in the construction industry and bona fide labor organization of construction employees to negotiate a collective bargaining agreement pre-hire. The union and the employer can negotiate even though:
- The union’s majority status has not been established;
- A 7-day union shop is created;
- The parties agree that the employer will hire only employees referred by the union; and
- Employees are hired based upon certain objective criteria, including training, seniority, or length of residency.
Employers should be aware that an agreement with a minority union is lawful whether it is executed before or after the presence of a representative complement of employees.
Regarding No. 2 above, Section 8(f) permits a 7-day union-shop agreement, which is different from a 30-day union shop permitted under Section 8(a)(3) of the Act. Seek advice from your labor relations professional before entering into either agreement.
The good news for employees is that they are not without options if they do not want the union. A pre-hire contract will not bar a petition filed to decertify the union or to deauthorize a union-security agreement. However, there are time limits on when each petition can be filed, so make sure you do not file the petition at the wrong time or file one petition when you are supposed to file the other.
Employers that are considering entering into a pre-hire agreement should consult with competent labor counsel to ensure that the company’s interests are fully protected and that the agreement does not run afoul of the Act.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.