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Union Pulls Rug from Labor Board’s Review of ‘8(f)/9(a)’ Relationships

By Richard F. Vitarelli and Adam C. Doerr
  • December 18, 2018

The National Labor Relations Board (NLRB) has suspended briefing in a case on whether National Labor Relations Act (NLRA) Section 9(a) bargaining relationships in the construction industry may be established by contract language alone. The union that brought the underlying charge in the matter withdrew the charge.

NLRA Section 9(a) vs. Section 8(f)

Most collective bargaining agreements (CBAs) in the private sector are governed by NLRA Section 9(a), which generally requires that a majority of the employees in the bargaining unit supports having a union represent them. In the construction industry, however, CBAs are presumed to be covered by NLRA Section 8(f), which does not require a showing of majority support.

Whether a construction company and a labor union have a “9(a)” relationship or an “8(f)” relationship dictates whether the parties have a binding, ongoing relationship or one that is binding only as long as a valid CBA is in effect.

Under NLRA Section 8(f), an employer primarily engaged in the construction industry may enter into a collective bargaining relationship with a union before receiving proof of employees’ desire to unionize. Because the union relationship does not depend on the employees’ demonstration of majority support, the law only requires an 8(f) relationship to continue as long as a valid CBA remains in effect. The Board presumes that CBAs in the construction industry are governed by Section 8(f), unless and until a 9(a) relationship is proven.

Staunton Fuel

In 2001, the Board ruled in Staunton Fuel & Material, 335 NLRB 717 (2001), that the parties’ contract language may be sufficient to prove and establish a binding 9(a) bargaining relationship.

Staunton Fuel thereby allowed unions to obtain a much more durable bargaining relationship than under Section 8(f), without actually having to organize the bargaining unit, or solicit or prove majority support. Under Staunton, a 9(a) relationship may be created by contract language reciting that the employer agrees to recognize the union as the 9(a) representative of its employees after the union having shown, or having offered to show, evidence of majority support.

Loshaw Thermal Technology

Showing its interest in reviewing the 17-year-old Staunton Fuel doctrine, on September 11, 2018, the NLRB invited briefs in Loshaw Thermal Technology, LLC, 05-CA-158650. The Board’s decision in that case could have limited the 9(a) relationship to where employees’ majority support for a union was actually obtained and proven. Briefs were due to be filed by October 26, 2018. But on October 5, 2018, the union in Loshaw Thermal asked to withdraw its charge. The Board suspended its invitation to file briefs just 10 days later, and formally rescinded the invitation on December 14.

For now, Staunton remains the law of the land.

Please contact your Jackson Lewis attorney if you have any questions on this or other development.

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