Contract Language Can Convert 8(f) Relationship Amid Proof of Majority Support
In the latest case on so-called “conversion language,” the U.S. Court of Appeals for the District of Columbia Circuit has clarified its position on how contract language can convert an 8(f) pre-hire agreement into a traditional 9(a) collective bargaining agreement.
The case arose after M & M Backhoe Service, a small contractor based in Florida, notified Operating Engineers Local 487 that it was terminating the parties’ pre-hire agreement upon its expiration. The union promptly visited M & M’s worksite and obtained signed union authorization cards from all of the company’s 17 employees. The union then faxed a letter notifying the company president, Robert Miley, that the union had majority support and requesting voluntary recognition of 9(a) status and execution of a Recognition Agreement. The Recognition Agreement stated that the company “acknowledges and agrees, based on a showing of signed authorization cards, that a majority of its employees have authorized the Union to represent them in collective bargaining” and that the company “recognizes the Union as the exclusive bargaining agent under Section 9(a) of the National Labor Relations Act. The letter further stated that the union would file a petition for a representation election with the National Labor Relations Board if the company did not sign the Recognition Agreement.
Miley first responded by agreeing to a collective bargaining session. The union thanked Miley but insisted that this would not be sufficient to achieve the union’s goals, because, “to change our bargaining relationship from 8(f) to 9(a) status under the National Labor Relations Act, you must voluntarily recognize that the union has majority status by signing the previously provided agreement.” Miley then signed and returned the Recognition Agreement, without ever requesting proof that the union had obtained sufficient authorization cards.
Miley attended two collective bargaining sessions with three other contractors. The other contractors agreed to a union demand for increased contributions to the union’s health care fund. Miley did not. Shortly thereafter, M & M’s pre-hire agreement expired. The company stopped abiding by the contract’s terms and stopped recognizing the union. The union brought charges against M & M at the Bard, contending that parties had a 9(a) relationship requiring the company to continue to recognize the union and prohibiting the company from making unilateral changes to terms and conditions of employment. The Board agreed with the union, and M & M appealed, claiming that the Board’s decision conflicted with the D.C. Circuit’s 2003 decision in Nova Plumbing.
The circuit court disagreed with M & M. In Nova Plumbing, the court held that a union recognition clause in a master labor agreement was insufficient on its own to establish a 9(a) relationship. (See Human Resource & Labor News, Issue No. 5-03.) However, in that case, there was no evidence that the union had majority support, whereas here the record demonstrates that the union did have majority support. “An employer who recognizes a union after the union offers to provide evidence of its majority status cannot revoke that recognition solely because the employer never took the union up on its offer – provided that the union actually had majority support,” said the court. “To rule otherwise would be to allow the employer to frustrate the employees’ section 7 rights by turning its back to the union’s evidence.” The court also rejected M & M’s claim that Miley did not know the significance of the Recognition Agreement when he signed it, noting that the union demanded recognition “in unmistakable terms” twice and that the agreement “is as clear as can be.” Thus, the union properly converted its relationship to a 9(a) relationship, and M & M acted unlawfully when it breached its duty to bargain with the union, failed to provide information requested by the union in its role as employee representative, and unilaterally changed terms and conditions of employment.
M & M Backhoe Svc., Inc. v. NLRB, Case No. 05-1378 (D.C. Cir., 12/1/06).
For more information on 8(f) versus 9(a) agreements, see AGC’s Labor & HR Topical Resources Web page.
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