Labor Board ruling could threaten construction workers

Bill Knight column for 3-23, 24 or 25, 2020             

The National Labor Relations Board is preparing to override a decades-old standard for construction labor relations, upending the mutual trust and stable work environment achieved by good employers and unions in the building trades, according to a prominent labor lawyer in Illinois.

The Republican majority on the NLRB is expected to issue a new rule disrupting contracts in construction by empowering employers to arbitrarily require evidence of unions’ majority support before or even after collective bargaining agreements have been reached.

 “Not long ago, I was talking about this with Richard Griffin, who used to be General Counsel for the NLRB [from 2013-2017],” said Dale Pierson, General Counsel for Local 150 of the International Union of Operating Engineers, headquartered in Countryside, Ill., and “this could be very bad for construction unions.”

Because of construction’s unique situation (with conditions frequently changing depending on project type and length), much of the industry for decades has operated under pre-hire agreements, including employers recognizing unions, without resorting to the lengthy NLRB election process, which could last longer than the job itself.

“Actually, the industry had these arrangements even before the National Labor Relations Act,” Pierson said.

Under the National Labor Relations Act, most bargaining relationships are governed by Section 9(a), which requires unions to have the support of a majority of workers in the bargaining units before negotiations with employers.

In 1959, Congress addressed construction’s needs and tried to ensure that its workers – often hired by for erratic and short periods of time – retained their right to organize in unions. So, the federal government added Section 8(f) to the NLRA, authorizing construction employers and unions to enter into pre-hire collective bargaining agreements.

For years, many construction-industry union contracts have been governed by Section 8(f), which provides for what’s essentially voluntary recognition of unions’ representation rights based on unions having shown, or having offered to show, evidence of its majority support.

“There’s been a long-time Board interpretation for contracts in the construction industry to ‘mature’ into 9(a) agreements with contract language or a letter okaying the presumption of union representation,” Pierson said.

Under 8(f), union contracts in construction also can require employers to notify unions about job openings, and to establish the opportunity for unions to refer qualified workers, plus set skill standards and provide for workers’ length of service as a preference in hiring.

The arrangement began eroding in 1987, when President Reagan’s GOP-majority NLRB in a recognition dispute between the Iron Workers and a Pennsylvania construction firm, Deklewa & Sons, held that pre-hire agreements don’t prohibit election petitions, noting that during the term of an 8(f) agreement, an employer can request a representation election.

Despite the decision, there was no wholesale retreat from the long-standing practice. However, after Donald Trump’s election and appointments to the NLRB, the Board in 2018 invited legal briefs concerning whether it should reconsider the 8(f) provision.

“Now, management says they want evidence of continuing support – the language isn’t enough,” Pierson said. “This Board is parroting [anti-union] Circuit Court decisions, and employer arguments, that would return everything to a 9(a) status.”

The consequences could upset how both building-trades unions and construction companies run.

“Unions might have to prove their representation each time a contract’s signed,” Pierson said.

That could entrail almost constant organizing for frequent representation elections or producing authorization cards – with each contract or from years earlier.

“It could create nightmares as far as record-keeping,” Pierson continued “Say a union had eight or 10 members working on some construction project in 2001, paying dues, contributing to trust funds, whatever, and then an employer demands proof the union still represents them. Would there be cards from 20 years ago?”

The NLRB usually has gone through a long process, including public comments, but this Republican Board sometimes just alters regulations. For this proposed change, the Board did go through the traditional process, accepting public comments until October 11.

“This could come down any time,” Pierson said.