Legal Memorandum: Employer's Relationship with a Local Union

Issue: Under federal law in the Ninth Circuit, what would cause a defendant’s relationship with a local union to be governed by 8(f) rather than 9(a) of the Labor-Management Relations Act?

To date, the Ninth Circuit has not had occasion to address the circumstances under which a unions relationship to a construction industry employer will be governed by § 9(a), rather than the more limited § 8(f) obligations, including the critical § 8(f) employer’s right to terminate a collective bargaining agreement through unilateral notice of the employer’s intent not to renew an existing CBA.  A recent line of cases arising in NLRB proceedings, as reviewed in the First, Third, Fourth, and Tenth Circuits, has generally held that construction industry unions can attain full § 9(a) status either through (1) a Board-certified election or (2) voluntary recognition based upon a clear showing of majority support.

The First and Fourth Circuits have required more than conclusory contractual language drafted into the collective bargaining agreement or compliance agreement, emphasizing the need for an actual showing of majority support among the employer’s employees, so as to preserve the free choice of the employees as to their chosen bargaining representative.  On the other hand, the NLRB, Third Circuit, and Tenth Circuit have all shown a willingness to find § 9(a) status in “artful language” included by the union in its standard collective bargaining and compliance agreements.

Decisions of the NLRB strongly favor a union’s position that conclusory language in the collective bargaining agreement is sufficient to establish a § 9(a) relationship.  See, e.g., Decorative Floors, Inc., 315 N.L.R.B. 188, 188 (1994); MFP Fire Protection, Inc., 318 N.L.R.B. 840, 841‑42 (1995).

In Sheet Metal Workers’ International Association v. […]