Jurisdictional Disputes Drag Contractors into Fights between Unions

Jurisdictional disputes occur when two or more unions make conflicting claims over which group is entitled to perform certain work. For example, many different unions are represented on a construction project and there may be a dispute about who is responsible for cleaning up the scrap at the end of the day. Members of the carpenters union may think they are supposed to clean up after themselves in an effort to keep the worksite tidy and safe. But members of the laborers union believe they are supposed to clean up for the carpenters – after all, if the carpenters cleaned up after themselves then there would be reduced (or no) work for the laborers, the laborers would not be needed, and LIUNA (the laborers’ union and pension fund) would not get a cut of the laborers’ paycheck. So a jurisdictional dispute arises over who gets to clean up after the carpenters.

The National Labor Relations Board considers several factors before awarding the disputed work to one union over another:

  1. The existence of Board certification concerning the employees involved in the dispute;
  2. Evidence of the employer’s preference based upon past practice;
  3. Area and industry practices;
  4. Relative skills and training of the competing union’s members;
  5. Relative economy and efficiency of operations of the competing unions; and
  6. Past history of inter-union agreements and awards.

The Board generally rejects union arguments that the employer and another union are engaged in a “sham” effort to create a jurisdictional dispute unless the accusing union presents evidence showing that the other union’s demands for disputed work “were not made seriously” or that the other union and the employer “colluded” to create the jurisdictional dispute.

State law claims may accompany jurisdictional disputes and further aggravate companies. With the jurisdictional dispute resolved, a union could pursue a breach of contract claim against the employer for not assigning it the disputed work as required under a construction contract or project labor agreement.

This should go without saying, but if your company is put on notice about a jurisdictional dispute, get legal counsel involved immediately.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

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