Human Resource & Labor News
www.agc.orgAugust 19, 2010 / Issue No. 4-10
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On the Inside
Labor Relations
AGC Persuades Corps of Engineers to Withdraw PLA Requirement
Year-to-Date Collective Bargaining Results in Low and No Increases in Wages and Fringe Benefits
AGC Union Contractors Exchange Views with Carpenters and Operating Engineers General Presidents at New England Regional Meeting
NLRB Finds Regional Carpenters Council was Bound to National Construction Agreement and Plan for Settlement of Jurisdictional Disputes
Supreme Court Invalidates Decisions of Two-Member NLRB; Senate Confirms Two New NLRB Members
Legal Compliance
DOL Revises Interpretation of "Clothes," Changing Time Considered Compensable
Labor Department Clarifies Definition of "Son or Daughter" in FMLA
Labor Department Revises Child Labor Law, Leaves AGC-Supported Apprentice Exemption in Place
DOL Issues Guidance on Breaks for Nursing Mothers Under the FLSA
Homeland Security Department Revises Rule on Electronic Processing and Storage of I-9 Forms
OFCCP Plans to Strengthen the Affirmative Action Obligations Related to Individuals with Disabilities
Employee Benefits
Temporary Pension Relief Legislation Enacted
COBRA Subsidy Expires; Extension Seems Unlikely
HR Professional Development
AGC HR and Training Conference to Highlight Link between Coaching, Workplace Performance and Corporate Results
NLRB Finds Regional Carpenters Council was Bound to National Construction Agreement and Plan for Settlement of Jurisdictional Disputes

The National Labor Relations Board has refused to rule on a jurisdictional dispute between the Carpenters and Laborers on a project covered by the National Construction Agreement (NCA), finding that all parties were bound to submit jurisdictional disputes to the Plan for the Settlement of Jurisdictional Disputes (Plan), despite claims by the Carpenters council that it was not so bound.

The case concerns a dispute over scaffolding tending work at the REC Silicon Plant expansion project in Moses Lake, Wash., in 2009. Fluor Constructors was the general contractor on the project and was signatory to the NCA, a project labor agreement (PLA) between the Building & Construction Trades Department, AFL-CIO, (BCTD) and the North American Contractors Association, for the project.  Fluor awarded scaffolding work to Brand Energy Services, and Brand became signatory to the NCA.  Brand was already signatory to an area agreement with the Pacific Northwest Regional Council of Carpenters (Regional Carpenters) covering Washington.  NRCC was not signatory to the NCA, but the United Brotherhood of Carpenters (UBC) international was signatory.  The Laborers International Union of North America was also signatory to the NCA.  The NCA provides for the resolution of jurisdictional disputes under the Plan, while Brand's area agreement provides for a different dispute resolution mechanism.

Brand assigned the disputed work to employees represented by Regional Carpenters.  The Laborers then claimed the work, leading Regional Carpenters to threaten to picket and Brand to request the Board to hear the dispute under Sec. 10(k) of the National Labor Relations Act.  Days later, the Laborers filed a request for resolution under the Plan.  The Plan arbitrator determined that Brand's assignment was improper and that the Laborers should perform the work.

The Board will rule on a jurisdictional dispute only if it first finds that all parties have not agreed to an alternative method for voluntary adjustment of such disputes.  The Laborers argued that all parties had agreed to use the Plan, but Regional Carpenters and Brand maintained that Regional Carpenters had not agreed to use the Plan and that Brand was bound to competing dispute mechanisms.

The Board agreed with the Laborers for several reasons.  First, the Board found that Regional Carpenters were bound to the Plan by virtue of the NCA, rejecting Regional Carpenters' argument that the plain language of the NCA binds only "local unions," which it is not.  The Board found that Regional Carpenters is encompassed within the term "local unions" as used in the NCA.  The conduct of Regional Carpenters in accepting the benefits of the NCA on the project and referring employees to work on it for Brand as well as two other contractors further supported the conclusion that it was bound to the NCA.  The Board also noted that the NCA's Joint Labor-Management Administrative Committee issued an interpretation finding that the NCA binds not only the signatory international unions and their respective locals, but also "any and all other subordinate or intermediate bodies/organizations of the signatory International Union(s) regardless of the nomenclature used by said International Union(s)."  Furthermore, the NCA must be presumed to cover regional union entities or its "supremacy" clause - which asserts that it supersedes other "local, regional/area, or national agreements" - would be meaningless.  An "inferiority" clause in the area agreement - expressly stating that, in the event the employer enters into a PLA, the PLA provisions will take precedence over any conflicting provisions in the area agreement - further supports the conclusion.  In addition, the Board rejected Regional Carpenters' claim that the UBC is not its agent and could not bind it to the NCA, finding that Regional Carpenters' bylaws indicate otherwise.

Second, the Board found that Regional Carpenters is bound to the Plan by virtue of a "Participation Agreement" it signed in 2007.  The Participation Agreement (a solidarity charter) permitted Regional Carpenters to participate in the Washington State Building and Construction Trades Council despite the UBC's nonaffiliation with the BCTD.  Because the Participation Agreement  states that the "traditional dispute resolution procedures under the [BCTD] shall apply to jurisdictional disputes among and between the affiliates of the [BCTD], their affiliated subordinate bodies and the Local Union and its subordinate bodies" and the BCTD constitution requires use of the Plan, the Board found that the Participation Agreement independently bound Regional Carpenters to the Plan.  It again rejected an argument that Regional Carpenters does not constitute a covered "local union."

Accordingly, the Board found that all parties are bound to the Plan and effectively dismissed Regional Carpenters' case.  Pacific Northwest Regional Council of Carpenters, 355 NLRB No. 45 (6/11/2010).

Editor's note:  In the time since the dispute occurred, Regional Carpenters has withdrawn from the Washington State Building and Construction Trades Council, and the UBC has repudiated the NCA.
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