Q: What is a “jurisdictional dispute” between trade unions?
A: A “jurisdictional dispute” is a disagreement about whether a group of employees represented by one union should perform certain job functions or whether those job functions should, instead, be performed by employees represented by a separate union.
Q: Why are there so many jurisdictional disputes in the construction industry?
A: The majority of jurisdictional disputes occur in the construction industry. The reason is that employees representing many different unions (laborers, carpenters, electricians, masonry workers, roofers, HVAC, and plumbing) work on the same project. The interaction of people from different trades, all vying to perform as much work as possible on the project, can result in one union stepping on the toes of another union. The basic issue is generally a matter of “who does what” on a job. For example, there might be a dispute about whether the company that transports the cement to the job site is responsible for unloading the cement once it is inside the job site, or there might be a question about whether the electricians on a job can remove their own trash when their job is done.
Q: How do jurisdictional disputes arise in private industry?
A: Jurisdictional disputes in private industry typically result when a company’s employees are represented by two or more unions. For example, if a bus company’s drivers are represented by the International Brotherhood of Teamsters (Teamsters’ union) and the company’s mechanics are represented by the International Association of Machinists and Aerospace Workers (Machinists’ union), there might be a dispute about which employee physically drives the bus to and from the maintenance yard, which employee test-drives the bus after engine repairs, and whether the Teamsters’ union driver is allowed to perform minor repair work on his or her bus while out on routes.
Q: Don’t collective bargaining agreements spell out who does what?
A: Not necessarily. Collective bargaining agreements are very comprehensive, but not every nuance of work-related activity can be imagined and included in an agreement. If a collective bargaining agreement does not spell out which employee, or which union, is responsible for performing certain job functions, then a union may claim that its employees should (or should not) perform those job functions, and another union may make a similar claim.
Q: Can a union strike over a jurisdictional dispute?
A: No. Section 8(b)(4)(D) of the National Labor Relations Act prohibits strikes, picketing, boycotts, threats, and coercion where the object is “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 labor organization or in another trade, craft, or class….”
Q: How can companies and unions avoid jurisdictional disputes?
A: Many collective bargaining agreements contain clauses detailing how to resolve perceived jurisdictional disputes; this is especially prevalent in the construction industry. When collective bargaining agreements do not contain such clauses, unions generally turn to the employer first to resolve the conflict. If the suggested resolution is not satisfactory to all parties, then the National Labor Relations Board (NLRB) will determine which group of employees should perform those job functions.
Q: What does the NLRB consider when resolving jurisdictional disputes?
A: When collective bargaining agreements do not address how to resolve perceived jurisdictional disputes, the NLRB weighs several factors before determining which union should perform the work. First, the NLRB looks at the employer’s preference for assigning the work. Second, the NLRB looks at the employer’s past practice in assigning the work. For example, if a bus company had permitted drivers to make routine repairs on its busses for several years before the Machinists’ union claimed jurisdiction over such repairs, that past practice would weigh in favor of permitting the drivers to continue to make those repairs. The NLRB also examines whether bus drivers at other companies make minor repairs on their vehicles. It also determines which group of employees is more skilled at performing that discrete job function and weighs the economy and efficiency of having the employees represented by one union perform the job functions instead of employees represented by another union.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Matthew D. Austin, an attorney with the Columbus firm of Barnes & Thornburg LLP.