The OFFICE OF THE GENERAL COUNSEL Division of
Operations-Management issued updated “Casehandling
Instructions for Cases in which the Section 9(a) Status of a
Collective-Bargaining Relationship in the Construction Industry is in Issue” on
February 4, 2014.
The construction industry enjoys a unique collective bargaining
relationship defined as a section 8(f) relationship. An 8(f) relationship is often referred to as
a “Pre-hire” agreement. An employer,
with no employees, may choose to have a union represent its future employees. In this case, a union has not been certified
to represent a majority of the employees.
Additionally, under an 8(f) relationship, the employer and the union may
choose to terminate that relationship upon expiration of the collective bargaining
agreement and have no obligation or duty to bargain a new agreement.
Almost every non-construction industry collective bargaining
relationship is defined as a section 9(a) relationship. That is, the employees have chosen to seek
representation by a union and through a majority vote or show of support, e.g.
card check. Under a 9(a) relationship,
upon expiration of the current collective bargaining agreement, the employer
and the union have a legal obligation, duty, to negotiate a new collective bargaining
agreement.
As we have witnessed over time, here in Philadelphia and
elsewhere, many of the region’s 8(f) collective bargaining relationships have
been converted to 9(a) relationships.
This conversion would have normally taken place during collective bargaining
for a new and or successor collective bargaining agreement between labor and
management and would have occurred through the use of specific collective bargaining
language altering the relationship status.
That is, the agreement now exists as a 9(a) relationship, but the employees
have not chosen or voted for a particular union to represent or negotiate on their
behalf. Some have argued that unionized
construction employers only employ union trade’s people; therefore, it already has
majority support. However, the underlying
legal issue is, in the construction industry, how can a collective bargaining
relationship that began under Section 8(f) be converted into a 9(a) relationship,
which requires that the union be the chosen representative of a majority of the
bargaining unit employees, simply through contractual language alone?
Way back in 2001:
Under the Central Illinois
case, the NLRB ruled that a 9(a) relationship can be created by contractual language
alone if the language unequivocally
states:
(1)
the union requested recognition as the majority or Section 9(a) representative
of the unit employees;
(2)
the employer recognized the union as the employees’ majority or Section 9(a)
representative; and
93)
the employer’s recognition was based on the union’s having shown, or having
offered to show, evidence of majority support.
All of these could take place in the successful conversion
from a 8(f) to a 9(a) conversion, even if the union had never enjoyed majority
status and or support and had never offered to provide proof of majority representation.
Many of our region’s collective bargaining agreements contain language
indicating a past conversion. An example
is below:
“Inasmuch as the Union has demanded recognition from the EMPLOYER
as the exclusive bargaining representative of the Employer’s “employees” under
Section 9(a) of the National Labor Relations Act, and the Union obtained and
showed each
of the Employers listed above signature cards showing that the
Union represents more than 50% of each Employer’s “employees”, and each of the
above Employers is satisfied that the Union represents a majority of its “employees”,
the Employers above hereby recognizes the Union as the exclusive collective
bargaining representative of its “employees’ on all present and future job
sites within the Union’s jurisdiction, unless and until such time as the Union loses
its status as the “employees” exclusive representative as a result of an NLRB
election requested by such employees.”
“The Employers above agree that during the life of this Agreement,
it will not request a NLRB election and expressly waives any right it may have
to do so.”
Moving ahead to 2003:
In Nova Plumbing, v. NLRB,
2003, there was very clear evidence indicating that the union did not have
majority support of the workforce at the time the agreement was signed. As
a result of those findings, the DC Circuit court refused to enforce the Board’s
order. Allowing a 9(a) relationship to exist, which was created by
contractual language alone, where the facts are to the contrary, runs counter
to the principle of majority rule built into the Act.”
Fast forward to 2014:
General Counsel MEMORANDUM OM 14-23, dated February 4, 2014,
issues guidance on how regions are to approach cases involving 9(a) relationship
status which were allegedly created through contractual language using the Central
Illinois test.
These new guidelines are as follows:
“Regions should not affirmatively seek evidence of majority
support where charges are premised on contractual language in a construction
industry collective-bargaining agreement that creates a Section 9(a)
relationship in accordance with Central Illinois. Nor should Regions
affirmatively seek evidence that contradicts the contractual language.
“However, there may be circumstances where, despite
contractual language establishing Section 9(a) status, the Region is presented
with direct evidence that the union
did not actually have majority support at the time the employer extended
Section 9(a) recognition to the union. In those cases, Regions should
investigate whether the union had majority support and submit those cases to
the Division of Advice.”
Construction industry employers considering signing an 8(f),
pre hire agreement which does contain 9(a) language, as many do, should ask at
the time of execution if any “direct evidence” exists supporting the argument
that the union does not, in fact, enjoy the majority support of their bargaining
unit employees. As always, any evidence provided, either for
or against, should be documented and preserved for the lifetime of the
collective bargaining relationship.
Construction industry employers interested in terminating a 9(a)
relationship with a union should always inquire as to whether the union enjoyed
majority support of their employees when the conversion language was originally
adopted; any “direct evidence” to the contrary should be documented and saved.
As there is no duty or obligation to bargain under an 8(f) relationship,
any “direct evidence” indicating that the union did not have majority status at
the time that the language was adopted may change the relationship status of the
current collective bargaining agreement along with the employer’s obligation to bargain
for a new agreement.
Download a copy of OM 14-23
February 4, 2014 here…
Association members interested in receiving assistance and
support during collective bargaining and throughout the terms of your
collective bargaining agreements should direct their Board of Directors to
contact Wayne Gregory at GMCS today, wegregory@gregorymcs.com,
for consultation. Independent
signatories should contact Wayne Gregory at GMCS
directly, wegregory@gregorymcs.com,
for consultation.
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