On January 8, 黑料不打烊 of America submitted comments on the National Labor Relations Board鈥檚 latest to modify union representation-case procedures. Not to be confused with the Board鈥檚 鈥渜uickie election鈥 rule, which addresses different representation-case procedures, the present rulemaking proposes three changes: (1) replacing the Board鈥檚 current 鈥渂locking charge鈥 policy with a vote-and-impound procedure that would allow representation elections to move forward while an unfair labor practice charge is pending; (2) modifying the current 鈥渧oluntary recognition bar鈥 policy by re-establishing a notice requirement and a 45-day open period within which to file an election petition following an employer鈥檚 voluntary recognition of a union under Section 9(a) of the National Labor Relations Act (鈥淣LRA鈥); and 鈥 most relevant to 黑料不打烊 members 鈥 (3) preventing the establishment of a Section 9(a) bargaining relationship in the construction industry based on contract language alone.
Background on the Third Proposal
Collective bargaining relationships in most are governed by Section 9(a), which requires that the union demonstrate that a majority of employees in the unit it seeks to represent supports the representation. However, an exception exists in the construction industry. Under Section 8(f) of the NLRA, employers in the construction industry may enter into collective bargaining relationships with a union representing construction workers without any showing of employee support. Accordingly, collective bargaining relationships in the construction industry may be either 9(a) relationships or 8(f) relationships, depending on how they are established. The distinction is significant because an employer with an 8(f) relationship is legally free to 鈥済o open shop鈥 or to contract with a rival union following contract expiration, while an employer with a 9(a) relationship has an ongoing duty to recognize and bargain with the union unless and until the union is shown to have lost majority support. Further, a 9(a) agreement limits the time that the employer has to challenge the union鈥檚 status and prevents a representation election for up to three years.
Under Board case law, the Board may find the existence of a 9(a) relationship in the construction industry based merely on language in the parties鈥 collective bargaining agreement stating that the union has shown majority support even when there鈥檚 no other evidence that the union actually showed proof of majority support at the time of the recognition. The Board intends to overturn that case law with the present rulemaking.
黑料不打烊鈥檚 Comments
In its comments, 黑料不打烊 expressed support for all three proposals. With regard to the first two proposals, 黑料不打烊 endorsed . 黑料不打烊 is an active member of the Coalition and agrees with the Coalition鈥檚 various rationales in support of the proposed changes to the blocking charge and voluntary recognition bar policies, including the enhancement of efficiency and employee free choice.
黑料不打烊 submitted independent comments with regard to the third proposal, the one addressing 9(a) relationships in the construction industry. The comments express support for the Board鈥檚 stated objectives for the proposal, agreeing with the reasoning that recognizing a 9(a) relationship absent evidence of a showing of majority support contemporaneous with the union鈥檚 request for recognition runs roughshod over employee rights. The comments explain, however, that 黑料不打烊 has concerns about the proposed regulatory text and recommend certain changes designed to ensure that the Board鈥檚 objectives are fully met, to provide greater clarity to bargaining parties, and to help prevent unnecessary litigation and election petitions.
The timing for issuance of a final rule is unknown, but it seems likely that the Board will try to complete the rulemaking process before August given the risk that the Board will lose a quorum at that time. Since December 16, when Member Lauren McFerran鈥檚 term expired, the five-member Board has been operating with only three members. On August 27, Member Marvin Kaplan鈥檚 term will expire and the Board will lose a quorum unless new appointments are made and confirmed beforehand.
For more info, contact Denise Gold, associate general counsel, at denise.gold@agc.org or (703) 837-5326.