Jurisdictional Disputes

They could be lurking around the corner

By George Miller

A jurisdictional dispute can be defined as a difference of opinion by interested unions over the assignment of a particular work task made by an employer.

The Construction Industry is enjoying extremely good times, so jurisdictional disputes are not as prevalent as they were in the eighties and nineties. But they are still with us, and everyone should be prepared to cope with them if they occur. A jurisdictional dispute can be defined as a difference of opinion by interested unions over the assignment of a particular work task made by an employer.

This article will deal with those steps that you should take to protect your rights, your work assignment, and the dispute. In addition, this article will also advise as to what course of action should be taken when a dispute does occur.

If you are an MCAA member, and have elected to be bound, you are covered by two important agreements, the MCAA/BAC and MCAA/LIUNA. The International Agreements will provide you with an umbrella defense for future actions against your company.

Before going further, we must advise you that MCAA membership and its two International Agreements in no way binds you to the the decisions of the National Joint Board (NJB), which was created by the AFL-CIO and certain national contractor associations. MCAA firmly believes that the National Labor Board (NLRB) offers a better and fairer solution to solving jurisdictional disputes, because its criteria for settling is more in line with modern day technological advances, efficiencies, area and industry practices, contractor preference and safety. Outdated union understandings, the "green book" and prehistoric agreements do not play a major role in NLRB decision making.

Preparation

A mason contractor can take many steps beforehand to prepare his/her company for a dispute before it occurs. The list below sets forth those items that could be critical. Read them through, for they are the basic items that will be looked at in the initial stage of a dispute.

Are you a current member of MCAA?

Have you given MCAA authority to negotiate international agreements on your behalf?

Have you made a written assignment for the work task in question?

Check the Local Union collective bargaining agreement for the Article concerning the settling of jurisdictional disputes. If there are references to the National Joint Board, request that the Union eliminate them as soon as possible.

When starting a job outside of your home Locals jurisdiction, we strongly recommend that you utilize the MCAA Short Form Agreements. They have no reference to the National Joint Board and they do not bind your company to their decisions. The courts have ruled that a signed document must be executed for the implementation of fringe benefits that appear in the union?s collective bargaining agreement. This then, accomplishes the obligation under law and does not bind your company to the National Joint Board. Both MCAA/LIUNA and MCAA/BAC Short Form Agreements have been approved by the international unions.

Read your contract with the general contractor. Endeavor to strike out any reference to the National Joint Board.

In any pre-job meeting, make sure that they understand you are working under a MCAA Agreement, be it the bricklayers or laborers.

Take time to read the Jurisdiction Article in both of the MCAA international agreements. It can be found in Article III in both of them.

Have all your personnel meet the requirements of the OSHA Standard for the class of work they are performing? If it is a forklift, make sure they have completed the MCAA Forklift Training Course. With scaffolding, have they been trained in erection and dismantling of this particular type of scaffolding?

These are the preliminary steps that should be taken so that should a jurisdictional dispute occur, you will be in a position to take your case to the National Labor Relations Board (NLRB).

When a Jurisdictional Dispute Occurs

From the outset of any jurisdictional dispute it is essential that you and all of your managerial personnel keep an accurate diary of the sequence of events. Make sure you know the names of the people, the union, company or government affiliation. The time and date of all conversations and an accurate accounting of what was said is also important. All pertinent factors should be described and kept in chronological order so if you are called upon to recount the events, you can do so in a factual and intelligent manner.

If you have agreed to have the National Joint Board consider this dispute, then build your case in a logical manner. The results will most likely be in line with a "green book" decision. Most National Joint Board decisions have not been favorable for mason contractors.

Stand firm with your work assignment - DO NOT change it.

DO NOT submit your dispute to the National Joint Board. They have no jurisdiction over you.

DO NOT communicate with them. Submission of materials has been construed as relinquishing your rights to them. If you receive communication from from the NJB and you wish to advise them of your position, we suggest the following response: "This is to advise that (name of company) is not stipulated to the National Joint Board and is NOT bound to any of its decisions."

If you or any members of your company continue to be harassed on this dispute, we suggest you contact the closest office of the National Labor Relations Board and advise them of the details.

The time has come for you to consult with your company's legal counsel. It will be necessary for you to file form NLRB 508 stating the facts of the dispute - legal counsel could be most helpful. Make sure your counsel knows something about the workings of the NLRB. If not, we would suggest that a counsel be secured with this type of legal experience.

The (10)k Hearing

The authority to resolve Jurisdictional Disputes derives from the Labor Management Act of 1947, commonly known as the Taft-Hartley Act. The Taft-Hartley amendments added section 8(b)(4)(D) to the statutory scheme of the National Labor Relations of 1935 (Wagner Act). Section 8(b)(4)(D) reads as follows:

(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class, rather than to employees in another organization or another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.

When Congress created the above provision it also added Section 10(k) which reads:

Sec. 10(k): Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 8(b)(4)(d) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after the notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon a method for the voluntary adjustment of the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.

Whenever it is charged that a labor organization has engaged in an unfair labor practice, the Regional Director conducts an investigation. The purpose of the investigation is to provide the Regional Director with a factual basis for acting on the charge. Based on the Regional Director's conclusions as to the issues, he will dismiss the charge, defer action or proceed with the charge by issuing a Section 10(k) hearing. The hearing is informal and all parties have the opportunity to present evidence on the issue, including the opportunity to examine and cross-examine witnesses.

If you are called in as a witness, you should: (1) have full knowledge of the items listed in the first part of this article; (2) know what past practices of the company have been; (3) know what agreements the company has signed and the details of the agreement; and (4) have full knowledge of the events (this is where a diary will be most helpful). In addition, your legal counsel should be cognizant of all events and should be ready to confront any inconsistencies or misleading statements.

Lastly, always be calm, firm, polite and tell the truth, and I'm sure that your work assignment will prevail.