NLRB Invites Briefs on Construction Industry Bargaining

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By Lawrence E. Dubé

The National Labor Relations Board may overrule or modify several important precedents on collective bargaining in the construction industry. It’s giving interested organizations a chance to weigh in first.

The board issued a Sept. 11 invitation for the filing of briefs on the issue of what a union must do to establish that a pre-hire relationship with a construction company has been converted to a full relationship under the National Labor Relations Acts.

Establishing that the relationship has been converted from a pre-hire arrangement has enormous practical consequences for an employer and union. A construction company can withdraw from a pre-hire relationship once a labor contract expires, but a union with bargaining rights under Section 9(a) of the NLRA can’t be ousted unless it has lost the support of a majority of the covered employees.

The NLRB held in Staunton Fuel & Material, Inc. (2001) that a union can attain Section 9(a) status by proving the union requested and obtained recognition from an employer, and the union demonstrated to the employer—or just offered to demonstrate— that it had majority support among the company’s employees.

Under Staunton Fuel, a union can use a collective bargaining agreement as evidence of a Section 9(a) relationship, if the contract recites that the employer was shown, or was offered, evidence that a majority of its employees had selected the union to represent them. In a second decision, Casale Industries, Inc., the board held that because the NLRA’s statute of limitations is six months, the agency can’t consider a legal challenge to recognition that was granted more than six months before the filing of the challenge.

Invitation to File Briefs in NLRB Case

In the case now before the board, Loshaw Thermal Technology LLC, an NLRB administrative law judge applied Staunton Fuel and Casale Industries. He found that language in Loshaw’s collective bargaining agreement with a Heat and Frost Insulators local recited that the union had been designated by an employee majority.

Loshaw appealed to the board and asked the members to overrule Staunton Fuel. The company argued the board should require a union to make a contemporaneous showing of employees’ majority support before it wins recognition as the Section 9(a) representative of employees. The company also asked the board to reconsider Casale Industries.

The board invited interested organizations to file briefs not to exceed 25 pages on or before Oct. 26. Briefs must be filed electronically on the board’s website; assistance with e-filing may be obtained from the Office of the Executive Secretary.

NLRB attorneys represent the board’s general counsel. Harmon & Davies P.C. in Lancaster, Pa., represents Loshaw Thermal Technology LLC.

The case is Loshaw Thermal Tech., LLC, 2018 BL 326550, N.L.R.B., Case 05-CA-158650, 9/11/18.

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