Catholic University Law Review


The current National Labor Relations Board ("Board') since 2018 has indicated an interest in changing the law on employee representation by unions in the construction industry, culminating in a final rule issued on April 1, 2020. As the article discusses, this proposal is likely to have effects in many industries other than construction, because many other industries in the U.S. are becoming more like the construction industry has long been. The Board’s rule has changed what's required for a construction union to remain the representative of a construction employer's employees, which the Board justified as serving "employee choice" about union representation. In the construction industry, as the article explains, the employer can choose whether to fill its workforce by hiring from a union hiring hall/other union referral or to hire non-union employees from another source or individually. Consequently, as the article shows, the most likely effect of the Board's new rule will not be to improve employee choice, but to greatly increase the opportunities of employers to choose whether their employees will be represented by a union. The article further explains why the Board's rule wrongly departs from decades of labor law and very likely from Congressional intent. No matter what the current Board does next, it can expand the consequences of its rule in case decisions, and also these decisions and the Board’s new rule itself likely will be challenged in federal court.