It's Getting Harder To Say Goodbye

Howard Sokol is a Partner and Katherine Healy Marques an Associate in our New York office.

NLRB Limits Construction Industry Employers' Contract Expiration Withdrawal Rights from Multi-Employer Associations

The National Labor Relations Act (NLRA or Act) allows employers, including those in the construction industry, to join together to bargain with a union. This is called "multi-employer bargaining." But there are specific rules and requirements that an employer must follow in order to remove itself from multi-employer bargaining and avoid being bound by the next collective bargaining agreement negotiated by the multi-employer group. Failure to follow these rules means that an employer will continue to be bound by the contract resulting from multi-employer bargaining — whether it wants to or not.

In a decision issued late last year, the National Labor Relations Board (Board or NLRB) made it even more difficult for a construction industry employer to leave a multi-employer bargaining group. Previously, and for almost 20 years, a union seeking to keep a construction industry employer in a multi-employer group and bind it to a new contract had to show that the employer affirmatively demonstrated to the union its intention to be bound by the new contract. Now it appears that the NLRB will bind a construction industry employer to the multi-employer agreement if it failed to follow the multi-employer association's rules for withdrawing from multi-employer bargaining — even if the employer did not give the union any indication it intended to be bound by a new contract. Carr Finishing Specialties, Inc., 358 NLRB No. 165 (2012).

As a result, in 2013 and going forward, construction employers considering whether and how to join or withdraw from multi-employer bargaining associations should pay careful attention to Carr Finishing as they make their strategic business and employment-related decisions.

Employer Repudiation of Union Relationships in Construction Industry

Section 8(f) of the NLRA gives construction industry employers a unique exception to the standard election procedures and requirements under section 9(a) of the Act. Outside the construction industry, unions receive recognition under section 9(a) only by either: (1) establishing majority status representation of employees through a secret ballot election conducted by the Board, or (2) through voluntary recognition by the employer. The section 8(f) exception, however, recognizes the...