On Feb. 9, AGC of America and other business groups coordinated by the Coalition for a Democratic Workplace jointly filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to set aside a significant National Labor Relations Board (“NLRB” or “Board”) decision that makes it easier for unions to gain recognition without a secret-ballot election beyond 8(f) recognition in construction.

As previously reported, the NLRB in its In its 2023 Cemex Construction Materials held that an employer facing a union’s demand for voluntary 9(a) recognition, based on card check or similar proof of majority support, must recognize the union without an election or take the initiative, previously left to the union, to file an election petition challenging the majority status. Furthermore, the Board held, if the employer is found to have committed any unfair labor practices while the election is pending, then the Board may dismiss the election petition and issue a bargaining order without any election. (For information on the differences between 9(a) and 8(f) union recognition, see here and here.)

The amicus brief seeks a return to long-standing policies under which an employer has no obligation to recognize a union based on card check, the onus is on the union to petition the NLRB for an election, and bargaining orders are issued only in extreme cases of employer misconduct. The brief explains that the NLRB’s decision is contrary to congressional intent and violates Supreme Court precedent.

AGC will report on significant developments in the case as they occur.