All Labor Agreements Are Not Created Equal

Many contractors think there is only one way to "go union," but that is not true. Not all labor agreements are created equal.

The National Labor Relations Act (NLRA) guarantees employees the right to belong to unions, engage in concerted activity, and collectively bargain with their employer for mutual aid or protection. If the employees vote to belong to a union (called a certification election) the union is then designated the exclusive representative for those employees. Collective bargaining agreements resulting from majority representation are termed "9(a)" agreements after the appropriate section of the NLRA.

Generally, an employer commits an unfair labor practice when it recognizes a union that does not represent a majority of its employees. Because employees often move from job to job and employer to employer in the construction industry, an exception to this rule is contained in Section 8(f). Construction employers are allowed to unilaterally make an agreement with a union before the workers are hired. This is often termed "top down" organizing, creating so-called "8(f)" or "prehire" agreements.

A prehire agreement is considered binding during its term, or until the employees vote to decertify the union in a National Labor Relations Board (NLRB) election. If the prehire agreement expires, and the union has not established majority status through an NLRB certification election, either party may repudiate the collective bargaining agreement. Either party may refuse to renegotiate the agreement. In contrast, 9(a) agreements usually require an NLRB decertification election before they can be repudiated.

Agreements restricting subcontracting by unionized construction employers on the job site are permitted. Most union construction contracts in the northwest require the signatory contractor to subcontract work of that craft to other union employers. There are some exceptions, primarily dealing with disadvantaged business enterprises and projects for which there are no available union subcontractors.

In summary:

• Union labor agreements are geographical and craft specific in scope. The jurisdiction of the union organization with which a contractor signs defines the coverage of the contract.
• Union labor agreements may be 9(a) contracts (essentially requiring all work with that craft to be done union, and — barring a decertification election — requiring future bargaining for as long as the employer exists); 8(f) agreements (allowing repudiation of the agreement at the end of its term); and project agreements (applicable only for the duration of the project).
• Generally speaking, if a company is bound to a union labor agreement all of its work falling within the traditional jurisdiction of that craft must be done using union workers. There is no prohibition against having non-union workers on the payroll who perform the work of other crafts (e.g., using non-union operators when you are signatory to an agreement with the Carpenters), or operating non-union in another area (e.g., in Idaho when you have an Oregon agreement). Having a separate division, or a sister company, that operates "non union" creates significant economic risks. Don't try it without competent legal advice.
• If you are a contractor, be careful what you sign! Signing a 9(a) agreement usually means that your company is union "forever."

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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