The National Labor Relations Board (NLRB) has issued a Notice of Proposed Rulemaking (NPRM) that includes changes to its representation case procedures that potentially may affect both construction employers and building trades unions. The proposed rule, could benefit employees by protecting their right to choose; while also potentially protecting construction employers from unwittingly adopting a “permanent” bargaining relationship without establishing it has a majority of workers in support. Those interested, must file their comments to the NPRM by October 18, 2019. [To file a comment to the NLRB regarding this matter either: electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.]

Background: Due to the complexity and fluidity of construction job sites and the number of workers (often on limited engagements), unionization/representation requirements for construction were modified to accommodate these unique challenges. As such, section 8(f) of the Act allows construction employers to recognize unions and to adopt collective bargaining agreements (CBAs) without a showing of majority employee support — even, without any showing of employee support for the union at all. Over time NLRA case law interpretations created a boilerplate recognition process substituting for the normal Section 9(a) requirements. The result, the accommodation and process has ignored the rights of employees — those rights the NLRA was intended to protect, which the proposed rulemaking seeks to redress.

The Board majority, in issuing the NPRM, seeks to adopt the more recent Circuit Court Colorado Fire Sprinkler rationale. Under this proposal the NLRB would mandate that Section 9(a) recognition in the construction industry be based upon a contemporaneous showing of majority employee support. The Board majority also said that employee rights to self-determination by majority rule is so important that Staunton Fuel (the older case interpretation) should not be reversed merely by issuing a new decision, but by promulgating a formal rule. The rulemaking process eliminates the risk of the Staunton Fuel rationale being restored without public notice by another later case decision.