Most collective bargaining agreements in the private sector are governed by Section 9(a) of the National Labor Relations Act Section requiring a majority of employees in the bargaining unit support having a union represent them. If a majority is not in support, the employees are not in a union. In the construction industry, however, CBAs are presumed to be covered by NLRA Section 8(f), not 9(a), which does not require a showing of majority support.
Under Section 8(f), an employer primarily engaged in the construction industry may enter into a collective bargaining relationship with a union before receiving proof of employees’ desire to unionize. Because the union relationship does not depend on the employees’ demonstration of majority support, the law only requires an 8(f) relationship to continue as long as a valid collective bargaining agreement remains in effect.
So how can you tell if it’s an 8(f) or 9(a) bargaining relationship?
In 2001, the NLRB ruled in Staunton Fuel & Material that the parties’ contract language may be sufficient to establish a binding 9(a) bargaining relationship. Under Staunton, a 9(a) relationship may be created by contract language reciting that the employer agrees to recognize the union as the 9(a) representative of its employees after the union having shown, or having offered to show, evidence of majority support.
In September 2018, however, the NLRB invited briefs in Loshaw Thermal Technology, LLC. The outcome of that could have limited the 9(a) relationship to only when employees’ majority support for a union was proven. Three weeks before briefs were due, the union in Loshaw Thermal asked to withdraw its charge – ostensibly for fear it would not only lose the case, but pro-company precedence would be set.
I am seeing a lot of unions preemptively withdrawing charges so as to not allow the Trump NLRB to create caselaw favorable to employers. Consider this is another example of that.
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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.