Board Invites Briefs Regarding Whether Section 9(a) Bargaining Relationships in the Construction Industry May Be Established by Contract Language Alone

Washington, DC — In a notice issued today in Loshaw Thermal Technology, LLC, 05-CA-158650, the National Labor Relations Board invites the filing of briefs regarding whether it should revisit the holding of Staunton Fuel & Material, 335 NLRB 717 (2001).  Under the National Labor Relations Act, most bargaining relationships are governed by Section 9(a) of the Act, which requires the union to have the support of a majority of employees in the bargaining unit.  In the construction industry, however, bargaining relationships are presumed to be governed by Section 8(f), which does not so require   Under Staunton Fuel, this 8(f) presumption can be overcome, and a Section 9(a) relationship established, by contract language alone—specifically, where 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 invites briefs on whether it should adhere to, modify, or overrule Staunton Fuel.

In addition, the Board is inviting briefing on Casale Industries, 311 NLRB 951 (1993), which governs the limitation period for challenging the extension of Section 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 recognized the union as the unit employees’ 9(a) representative.  This limitation period applies both where 9(a) recognition is alleged as an unfair labor practice and where the invalidity of the recognition is advanced as a defense against a refusal-to-bargain charge. 

Chairman John F. Ring was joined by Members Lauren McFerran, Marvin E. Kaplan, and William J. Emanuel in issuing the Notice and Invitation to File Briefs.

Briefs from parties and interested amici must be submitted on or before Friday, October 26, 2018.

Click here to read the notice and invitation to file briefs.