On August 12, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking (NPRM) which provides three changes to union election procedures.
As described by the Board, those three proposed changes are:
Voluntary Recognition Bar: returning to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.
Section 9(a) Recognition in the Construction Industry: in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001).
Of the above listed proposed amendments, the 9(a)-recognition change for the construction industry is the one with the most potential impact on SMACNA members. However, the proposed change brings the NLRB’s position in line with court cases on this issue and therefore should have little real impact on our industry.
For some time, SMACNA has advised its chapters and members that contract language alone was insufficient for converting an 8(f) contract to a 9(a) contract. Rather, the union must show that it has majority support of the workforce by either petition or card check. This is also something that SMART has been advising its local unions of as well for several years.
For more information on 9(a) status in the construction industry, please contact SMACNA’s Labor Relations department.