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September 11, 2004

8(f) and 9(a)

A note for those of you -- lawyers or otherwise -- who ever have to deal with the question whether a construction-industry bargaining relationship is 8(f) or 9(a). (If this is greek to you, don't worry, and skip this post).

This week's weekly summary from the Board includes a memo from the office of general counsel (pdf file here) that might be useful to you. Long story short, the D.C. Circuit held in March that even when a collective bargaining agreement recites that it is a 9(a) relationship, the Board must nonetheless treat it as an 8(f) relationship, for all the purposes in which the distinction matters, if there is "unrebutted evidence" that would contradict the contract's recitation. The memo says:

"Accordingly, if a charge is premised on a claim that contractual language created a Section 9(a) relationship with an employer in the construction industry, the investigation should include an inquiry into whether there is evidence that contradicts the contractual language. Relevant evidence would include evidence that when recognition was granted there was no representative complement of employees, or that employees who were employed opposed union representation, or that the union made no showing or offer to show majority support."
Be prepared to "rebut" any such evidence so that it's not "unrebutted."

Posted by Sam Heldman at September 11, 2004 07:32 AM