Weighing construction industry bargaining relationship provisions per National Labor Relations Act Sections 8(f) and 9(a), the National Labor Relation Board invites stakeholder briefs through the end of this month on whether the agency 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 citing 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. To augment consideration of exception issues Loshaw Thermal raises, the agency sees an opportunity to address the following:
- Should the Board adhere to, modify, or overrule Staunton Fuel?
- If it overrules Staunton Fuel, what standard should the Board adopt in its stead? Specifically, what should constitute sufficient evidence to overcome the presumption of a Section 8(f) relationship in the construction industry and establish a Section 9(a) relationship? Even if not dispositive, should contract language be deemed relevant to that determination? Where a union in the construction industry asserts—and the employer disputes—that a 9(a) bargaining relationship has been in existence for a period of time, should the Board’s standard for determining whether the grant of 9(a) recognition validly reflects the wishes of a majority of employees in the bargaining unit be the same as for finding an initial establishment of a 9(a) relationship? If not, how should the standards differ?
- Even if the Board modifies or overrules Staunton Fuel, under Casale Industries contract language alone would continue to be sufficient to establish 9(a) status whenever that status goes unchallenged for six months after 9(a) recognition is granted. If Staunton Fuel is modified or overruled, should the Board adhere to, modify, or overrule Casale Industries, and, if either of the latter, how?