How construction industry labor law differs from other labor law

Our firm's practice area is management-side labor and employment law. I focus my practice on the labor law side of things and that pretty much means dealing on behalf of employers with labor unions. Disputes in this area are in the exclusive jurisdiction of the National Labor Relations Board (NLRB).

Construction industry labor law is a big part of this practice, and construction industry labor law is vastly different than non-construction industry, such as manufacturing companies, retail stores, trucking companies, etc.

At its core, the difference between construction industry labor law and other labor law involves two sections of the National Labor Relations Act, section 9(a) and section 8(f). Section 9(a) involves non-construction industry employers and sets forth the fundamental principle that in order for a union to represent the employees, there must be a demonstration of majority support.

This generally translates into an NLRB election. Section 8(f) applies to the construction industry. Under section 8(f), there is no NLRB election. The owner of the construction company simply says that he will sign up with the union. The motivation for this agreement generally involves picketing, inflatable rats and other tactics, and sometimes merely the threat of such activities.

Because of this background, in the construction industry there typically are little or no negotiations. Area-wide multi-employer contracts are the norm. Usually, the construction-industry employer merely signs what is known as an assent agreement, which provides that he agrees to be covered by the area-wide contract and any successor area-wide contracts.

Another big part of the equation here is that getting out of an 8(f) contract is much easier than getting out of 9(a) contracts. A non-construction industry employer with a union contract typically can get out of the contract only with a decertification election, the reverse process of how the union got in in the first place.

However, with 8(f) contracts, a construction industry employer can repudiate the contract after expiration. But a construction industry employer needs to be careful of a number of procedural hurdles and notice requirements in order to effectively repudiate the contract at termination.

As I indicated, 9(a) contracts cannot be repudiated at expiration and there is a continuing obligation to bargain in good faith for the non-construction industry employer unless there is a demonstration of a lack of majority support, and usually this is in the form of a decertification petition and an election.

I emphasize again that there are several procedural hurdles and a construction industry employer needs to be very careful that they give the right types of notice to the union.

Typically, these notice requirements involve something along the lines of 90-day notice before contract expiration to both the union and the multi-employer association. Then, repudiation after contract expiration. This involves great attention to detail and close examination of the contract and assent agreement.

But it can be done.

• Richard Wessels is the founder of Wessels Sherman, a management-side labor and employment law firm located in St. Charles with additional offices in Iowa, Minnesota and Wisconsin. Wessels concentrates his practice on representing employers in labor law matters.