The Rule Also Rescinds Other Representation-Case Protections
The National Labor Relations Board (“NLRB” or “Board”) on July 26, 2024, released a final rule, called the Fair Choice/Employee Voice Rule, that modifies certain union-representation case procedures. AGC of America filed comments opposing the rule but is not surprised to see a final rule that is essentially the same as the proposed rule.
The new rule rescinds a rule, called the Election Protection Rule, that the NLRB issued in 2020 during the Trump administration. The 2020 rule changed three policies related to procedures that apply when a union seeks recognition as the 9(a) bargaining representative of a group of employees. Once the new rule takes effect on September 30, 2024, procedures will revert back to those in place prior to 2020
,Two of the three policy changes affect employers across all private industries, while the third applies only to employers in the construction industry. The first of those with broader application is the “blocking charge” policy. The new rule restores the prior policy of blocking union representation elections while an unfair labor practice charge is pending. The second change with broader application restores the prior “voluntary recognition bar” policy to eliminate a 45-day window provided to employees under the 2020 rule for filing an election petition after their employer voluntarily grants a union 9(a) recognition. The third change rescinds procedures established in the 2020 rule that make it more difficult for construction unions to convert 8(f) bargaining relationships to 9(a) relationships.
Outside the construction industry, collective bargaining relationships are governed by Section 9(a) of the National Labor Relations Act (“NLRA”), which requires the union to demonstrate that a majority of employees in the unit it seeks to represent supports the representation. For the construction industry, however, the NLRA provides an exception to this requirement. Section 8(f) allows construction employers to enter into collective bargaining agreements (“CBAs”) covering construction workers without any showing of employee support and even before workers are hired. 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 contract with a rival union or “go open shop” 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’s status and it prevents an election for up to three years.
Under NLRB case law, including the 2001 Staunton Fuel decision, the Board may find that a 9(a) relationship exists in the construction industry based only on CBA language stating that the elements of voluntary 9(a) recognition have been met – i.e., that the union requested, and the employer granted, recognition as the exclusive bargaining representative of an appropriate unit of employees based on a contemporaneous showing of, or offer to show, proof of employee majority support – even when there’s no other evidence that the union actually had proof of majority support when recognition was granted. The 2020 rule overturned those cases and established that such language, when newly adopted, does not prevent an election challenging a union’s 9(a) status unless additional evidence beyond contract language shows that the elements of 9(a) recognition were satisfied.
While the new rule takes away the AGC-supported hurdles established in the 2020 rule for converting more flexible 8(f) relationships to indefinite 9(a) relationships, the Board clarified in the preamble to the new rule that CBA language on its own cannot create a lawful 9(a)relationship, noting that a union must have actually made a contemporaneous showing of, or offer to show, majority support in order for a lawful 9(a) relationship to exist. The CBA language is treated as evidence – a written memorialization – that that the necessary 9(a) elements existed at the time of recognition. If other evidence casts doubt on the claim that the union had majority support when recognition was granted, then the 9(a) recognition is ineffective and the employer has engaged ‘‘unlawful support.” However, the new rule also reinstates the limitations period under NLRA Section 10(b) that gives parties only six months to challenge the 9(a) recognition.
Because the new rule merely rescinds the 2020 rule and restores prior policy that has survived legal challenge in the past, it may be unlikely to be challenged and overturned in court. However, a recent decision from the U.S. Court of Appeals for the Eight Circuit expands the potential for challenge to this third policy change. On July 25, 2024, the court overturned an NLRB opinion relying on Staunton Fuel in finding that a construction employer had a 9(a) relationship with the Operating Engineers based on CBA language. AGC will closely monitor the case and report on any significant developments.
For more information, contact Denise Gold, Vice President, Corporate & Labor Legal Affairs, at denise.gold@agc.org or (703) 837-5326.