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NLRB ponders terms of bargaining relationships in construction

Sources: National Labor Relations Board; CP staff

The NLRB is weighing construction industry bargaining relationship provisions as defined in National Labor Relations Act Sections 8(f) and 9(a), and invites interested parties to file briefs through October 26 on whether it should revisit policy dating to the Casale Industries (1993) and Staunton Fuel & Materials (2001) cases.

Most bargaining relationships are governed by Section 9(a), which requires a union to have the support of a majority of unit employees. In the construction industry, however, bargaining relationships are presumed to be governed by Section 8(f), which does not so require. Under Staunton Fuel, the 8(f) presumption can be overcome—and a 9(a) relationship established—by contract language alone. In such instances, language in the parties’ collective-bargaining agreement unequivocally indicates that the union requested and was granted recognition as the majority or 9(a) representative of the unit employees, based on the union having shown, or having offered to show, evidence of its majority support.

The Board also invites briefings on Casale Industries, which governs the limitation period for challenging the extension of 9(a) recognition by a construction industry employer. Under Casale Industries and its progeny, a union’s 9(a) status cannot be challenged more than six months after the employer recognizes the union as the unit employees’ 9(a) representative. The limitation period applies both where 9(a) recognition is alleged as an unfair labor practice and invalidity of the recognition is advanced as a defense against a refusal-to-bargain charge.

The call for briefs dovetails Board review of an administrative law judge’s reference of Staunton and Casale provisions to address a challenge by Loshaw Thermal Technology—a Spring Grove, Pa. contractor whose principals have family members in management and staff positions—to a bargaining relationship claimed by International Association of Heat and Frost Insulators and Asbestos Workers Local 23.