NLRB: Employers Can’t Have It Both Ways; You’re Either Union or Not

A construction company had a Section 8(a) collective bargaining agreement with the Carpenters union. Section 8(a) contracts are unique to the construction industry and allow employers to walk away from the contract when it expires. This particular contract was for three years and automatically renewed at the end of its term for another three years unless the employer informed the union, in writing, at least four months before the expiration date that the employer was terminating the agreement. A few dates are critical to this case:

  • October 18, 2011: Company sent a letter to the Union terminating the agreement
  • October 25, 2011: Union said the letter is ineffective because it was not send at least four months before the contract expired
  • February 10, 2012: Contract expiration date
  • April 3, 2012: Company invoked the agreement’s grievance procedure to compel arbitration of court claims filed by the Union for missed dues and fringe benefit payments
  • October 22, 2012: Court granted the Company’s motion to compel arbitration
  • March 23, 2015: Company did not respond to an information request by the Union
  • April 15, 2015: Union filed an unfair labor practice charge over the Company’s refusal to respond to the information request
  • April 25, 2015: Company argued that the unfair labor practice charge was untimely pursuant to Section 10(b) statute of limitations

Case law is clear: to avoid a Section 10(b) statute of limitations claim, the National Labor Relations Act requires a party to file an unfair labor practice charge within six months of the receipt of clear and unequivocal notice of total contract repudiation.

The National Labor Relations Board did not believe that the October 2011 letter terminated the contract because the Company acted inconsistently with the intent to terminate the contract when it filed a motion to compel the union to arbitrate claims in federal court. By invoking arbitration under the contract, it purportedly repudiated months earlier, the Company sent a “conflicting signal” concerning its position on the continuing validity of the contract.

I thought this was a pretty straight forward case. But, initially the administrative law judge found in favor of the Company as did Member Miscimarra in his dissent. Per Miscimarra’s dissent, the Company repudiated the contract and was not obligated to respond to the union’s request for information. Miscimarra found that the Union had clear and unequivocal notice of the Company’s repudiation no later than October 2011. To him, even if the Company’s conduct after a clear and unequivocal repudiation constituted a “conflicting signal” and prevents the six-month Section 10(b) period from running from the date of the repudiation, it was unfair and contrary to sound labor policy to treat the employer’s motion to compel arbitration such as a “conflicting signal.” You go Member Miscimarra!

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Do You Know what Pre-Hire Agreements Are?

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:

  1. The union’s majority status has not been established;
  2. A 7-day union shop is created;
  3. The parties agree that the employer will hire only employees referred by the union; and
  4. 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.