Tuesday, September 11, 2018
The NLRB announced today that it is inviting briefs in Loshaw Thermal Technology and Casale Industries. Both cases involve a lesser-know rule under the NLRA (at least if you're not involved with construction union very often). Section 8(f), among other things, allows an employer and construction union to establish a bargaining relationship without a showing that the union has majority support (this reflects the reality that construction jobs are by their nature usually temporary). This provision essentially establishes a presumption of majority support, albeit one that can be challenged by a valid decertification petition.
In its 2001 Staunton Fuel decision, the Board concluded that parties could transform their bargaining relationship from Section 8(f) to Section 9(a)--the more typical mean of recognition, which usually involves a showing of majority support and is harder to challenge--through a collective-bargaining agreement that clearly states that the union said that it could show that it had majority support. It is that rule that the Board is currently questioning in Loshaw Thermal.
In Casale, the Board is also questioning the time period during which a construction union's Staunton 9(a) recognition can be challenged. Casale stated that an employer only had six months after the collective-bargaining agreement to argue that the union actually lacks majority support.