Click here to read the NLRB’s News Release on the “Fair Choice – Employee Voice” Rule

The National Labor Relations Board published its “Fair Choice – Employee Voice” rule, which takes effect on Sept. 30. The rule reinstates the blocking charge policy, eliminates the 45-day window for challenging voluntary recognition and simplifies the conversion from Section 8(f) to 9(a) agreements in the construction industry. This last change makes it easier for unions and contractors to convert a Section 8(f) agreement to a Section 9(a) agreement based solely on contract language, without needing additional proof of majority support.

These changes reflect the NLRB’s broader effort to streamline union recognition processes and reinforce union representation rights across various industries. Read on for a quick reminder on Section 8(f) agreements and Section 9(a) agreements.

Recent Developments: Easier Conversion from 8(f) to 9(a)

The new NLRB rule simplifies the process of converting a Section 8(f) agreement into a Section 9(a) agreement. Previously, this conversion required concrete evidence of majority support from the employees, such as a card check or an NLRB-supervised election.

However, the new rule allows this conversion based solely on contract language asserting that the union has majority support, even without additional proof.   Contractors should ensure that their agreement’s recognition clause is clear and unambiguous to avoid potential legal challenges. This change allows for a more streamlined process for establishing a Section 9(a) agreement.

Section 8(f) Agreements

Section 8(f) of the National Labor Relations Act (NLRA) was created to address the unique needs of the construction industry, where contractors often work in various geographic areas and hire employees on a project-by-project basis. This section allows contractors to sign “pre-hire” agreements with unions before hiring any employees, without needing to prove that the union has majority support. These agreements can offer flexibility, allowing contractors to plan labor costs and secure a workforce before starting a project.

Section 9(a) Agreements

Section 9(a), on the other hand, requires that a union demonstrate majority support from employees before it can be recognized and enter into a collective bargaining agreement with the employer. This support is typically verified through an NLRB-supervised election or through voluntary recognition based on evidence that the majority of employees support the union.

Key Distinctions Between the Agreement Types

The primary distinction between Section 8(f) and Section 9(a) agreements lies in the obligations of both parties when the contract expires:

  • Section 8(f): Neither party is obligated to negotiate a new contract when the current one expires. The contractor and the union can choose to walk away from the relationship, allowing the contractor to operate non-union or to enter into a new Section 8(f) agreement with a different union.
  • Section 9(a): Both the contractor and the union have an ongoing obligation to negotiate in good faith for a new contract once the existing one expires. The contractor must continue to recognize the union, and the union continues to represent the employees. Remember, this good faith negotiation is a legally enforceable duty, and failure to comply can result in unfair labor practice charges.

Section 8(f) Agreements: Potential Advantage and Disadvantages

Advantages:

  • Flexibility: Contractors can end the relationship at contract expiration, providing leverage in negotiations and the option to go non-union or switch to a different union. Practically speaking, however, walking away may not be possible without potentially triggering withdrawal liability.
  • Strategic Negotiations: The absence of a legal obligation to negotiate in good faith after the contract expires allows for more flexible and strategic bargaining.

Disadvantages:

  • Lack of Continuity: The temporary nature of the relationship can lead to uncertainty in long-term planning.
  • Potential for Disruption: Challenges to the union’s status can more easily arise under a Section 8(f) agreement.

Section 9(a) Agreements: Potential Advantage and Disadvantages

Advantages:

  • Consistency: The relationship requires ongoing recognition and negotiation, which can provide stability in labor relations. Note that while Section 9(a) agreements offer significant protections, there are specific “window periods” during which challenges to the union’s status can be initiated.
  • Protection from Challenges: Section 9(a) agreements typically prevent challenges to the union’s status during the contract term.

Disadvantages:

  • Ongoing Obligations: Contractors are required to negotiate in good faith and cannot easily withdraw from the relationship.

Bottom Line

While many signatory contractors already operate under Section 9(a) agreements, it’s still important to understand the new changes and the differences between 8(f) and 9(a) relationships. Once the NLRB’s new rule goes into effect on Sept. 30, it will offer a more streamlined path for Section 8(f) to 9(a) conversions.