Parties to 8(f) CBA Need Not Notify FMCS When Terminating Agreement

The National Labor Relations Board (“NLRB” or the “Board”) has held that a construction employer with an 8(f) collective bargaining agreement need not comply with the notice requirements imposed by Section 8(d) of the National Labor Relations Act (the “Act”).

Section 8(d) requires that a party seeking to terminate or modify a collective bargaining agreement provide written notice to the other party to the agreement at least 60 days prior to contract expiration.  It also requires the party to notify the Federal Mediation and Conciliation Service (“FMCS”) and any similar state agency, within 30 days after providing the 60-day notice, of the existence of a related dispute. 

The case arose after construction contractor MSR Industrial Services (“MSR”) decided to terminate its “me-too” agreement binding it to a multiemployer collective bargaining agreement between an Ironworkers local and a contractors association that expired on May 31, 2013.  MSR notified the union in February 2013 of its desire to modify the agreement.  Although a dispute arose, MSR failed to notify the FMCS and counterpart state agency until the contract expiration date.  After that, the company changed the wages and benefits provided to workers previously covered by the agreement without bargaining with the union.

The union argued, and an administrative law judge agreed, that MSR’s unilateral changes to terms and conditions of employment were unlawful due to the company’s failure to comply with the notice requirements of Section (d).  According to them, the company had to wait 60 days from its notice to the FMCS before it could make such changes despite passage of the contract expiration date.  The NLRB reversed the judge’s decision on that issue. 

First, the Board held that the judge erred in failing to assess whether MSR and the union had an 8(f) or a 9(a) relationship.  [An employer with an 8(f) agreement may terminate its relationship with the signatory union expiration of the agreement, but an employer with a 9(a) agreement has an ongoing duty to bargain with the union beyond contract expiration.  For more information on the differences between 8(f) and 9(a) relationships, visit AGC’s Labor & HR Topical Resources page and select the main category “Collective Bargaining” and subcategory “Collective Bargaining Agreements:  8(f) vs. 9(a).”  Membership log-in is required for content access.]  The Board reviewed the record and determined that that the parties had an 8(f) relationship. 

Next, the Board addressed whether an employer with an 8(f) relationship may lawfully make unilateral changes upon contract expiration without giving notice to the FMCS as required by Section 8(d).  The Board found that, while the notice requirements are essential in the 9(a) context, where the bargaining relationship continues after contract expiration, there is no compelling rationale for imposing the notice requirements in an 8(f) context, where the parties have no ongoing obligation to bargain.  In the latter situation, “a key purpose of the 8(d) notice requirements—to assist the parties in settling their differences—is no longer served, and it makes little sense to require the parties to go through the formality of notifying government mediation agencies that they notify government mediation agencies that they intend to terminate their contract,” said the Board.

Accordingly, MSR’s failure to comply with the notice requirements is not a basis for finding that it acted unlawfully when it changed employees’ terms and conditions of employment.  The Board held that MSR had no further bargaining obligation to the union after contract expiration and was privileged to make the changes unilaterally.

MSR Industrial Services, LLC, 363 NLRB No. 1 (8/31/15).

Source: AGC of America