Organized Labor

This is how we work, with few exceptions. Those few exceptions, those occasions when one trade disputes jurisdiction with another, are the greatest weakness of the unionized construction industry and relate directly to its greatest strength, the propagation and preservation of skill.

Jurisdictional disputes arise at all levels of our movement. On a job site we look at work another trade is doing and think, “Shouldn’t that work be ours?” We perceive – correctly or not – that the skills we have labored to acquire, the skills on which our livelihoods depend, are better suited to the work than are the skills of the trade performing it.

The business agent sees the same thing, and thinks of work lost to the members he represents.

The general president contemplates it, and pictures the diminution and weakening of his or her entire international union.

Much indeed is at stake in questions of jurisdiction. At one end they can lead to bitterness and even conflict on the job. On the other end they have led in the past again and again to the fracturing of the Building and Construction Trades Department and are deeply wedged in its current split. Although some consider them our “dirty laundry,” not to be displayed publicly, they are no secret to anyone with a knowledge of our industry.

In the present division the Building and Construction Trades Department has taken a stance in favor of resolving jurisdictional disputes by the “Plan for the Settlement of Jurisdictional Disputes in the Construction Industry,” commonly called simply “The Plan.” The procedures of the Plan are detailed in a small volume – known by most as “the Green Book” for the color of its paper cover – that incorporates also intertrade agreements on jurisdiction and decisions on jurisdiction dating back as far as the early years of the last century.

The Plan ranks five criteria for deciding jurisdictional disputes. First among them are intertrade agreements. If none apply, and there exists a “decision of record” covering the disputed matter – that is, a ruling arising from an earlier dispute between the same trades on the same subject – the “decision of record” controls. If a trade can show that it has performed the work in question in a certain region and that no other trade has performed it there historically – that is, if it can demonstrate that by “area practice” the work has always belonged to it – it can challenge the “decision of record.” If no intertrade agreement exists and no decision of record applies, industry and area practice can be considered. If none of these criteria apply, “because efficiency, cost or continuity and good management are essential to the well being of the industry, the interests of the consumer or the past practices of the employer shall not be ignored.”

Of the trades now outside the Department, the Carpenters have argued that a variant of the last criterion, “contractor preference,” should be primary.

The Laborers have argued for the primacy of “area practice.”

Questions can be raised about all three stances.

Some have criticized the Plan for its reliance on decisions of record more than a half century old. Others have said that its origins and administration in parts well east of California have meant that it does not know or address long-standing local conditions here, that a California union stands a good chance of getting a “bad” decision from it, and so that it is little used here. At the start of discussions about jurisdictional dispute resolution procedures for our project labor agreement with the San Francisco Public Utilities Commission on its retrofit of the Hetch Hetchy system I discussed this point of view with Sean McGarvey, Secretary-Treasurer of the Department. He researched the recent history of the Plan in California and confirmed that it has been used very infrequently in the state and even less frequently in Northern California.

The Plan’s concession in the third criterion to area practice depends at least nominally on the trade assigned the work by the decision of record never having performed the work in the area in question. In a council with a hundred-and-eleven year history such as this one, to meet this standard to establish an area practice contrary to a decision of record could be more than difficult. Rich Resnick, chief counsel for the Department, assures me that in actual fact a more reasonable time frame is considered. Nonetheless no more reasonable time frame is incorporated into the criterion.

The relegation of “efficiency, cost and continuity, and good management” to the last position exposes the Plan to the criticism that it hamstrings union employers in their competition with non-union employers.

As to area practice, it is difficult (although far from impossible) to argue that a trade that exclusively has performed certain work in an area for many years should not have that work, even if a decision of record says otherwise. This is especially true if the skill in that work in that area now belongs primarily to the trade that has been performing it.

(The argument is far from impossible because the trade assigned the work by the decision of record may have maintained the skills to perform it all along but have lost it by undercutting of wages. Both the Plan and the jurisdictional procedures for the Hetch Hetchy project labor agreement accommodate such claims.)

But how would area practice serve as a criterion when the case is not so absolute? I can name without much searching of my memory at least two tasks performed in our area by three trades each in about equal measure. To which of the three trades would “area practice” assign the work? What if the dispute were between two trades, one of which performed a particular task forty percent of the time in a certain area and the other sixty percent of the time? Should the former trade be obliged to surrender the work to the latter? What if a trade performed a task thirty percent of the time, or twenty, or ten? Should it be obliged to surrender the work to a trade that has performed the work seventy, eighty, even ninety percent of the time? Isn’t a trade’s steady and skilled presence in the performance of a certain task in a certain area itself a species of area practice, even if another trade performs the same task far more often?

And how does area practice determine jurisdiction over new processes or materials, for which by definition no “area practice” has been established? What does it mean in areas where unions themselves have had an infrequent or minor presence? What does it mean when a task is uncommon? Say, for example, that a trade has performed a task once or twice in a certain area and no other trade has performed it. Does “area practice” belong to that trade?

The “contractor preference” for which the Carpenters have argued would provide in theory a workforce responsive to the perceived needs of the construction industry. It would address also the fears of owners and contractors that work will too often be delayed or halted because one trade declines to do work that it feels belongs to another or because a trade presses claims on work that it feels belongs to itself. Certainly many union contractors express envy of the “flexibility” of the workforce of their non-union competitors.

In practice, it is project managers and superintendents who will often decide just what a “contractor preference” is in a particular instance. Their positions almost oblige them to decide this more on the chance of short term success than in consideration of the long-term needs of the industry. They will often give in to the temptation to give work to a familiar crew less skilled in it than to an unfamiliar crew, especially if the unfamiliar crew comes through a subcontractor, with attendant additional expenses. We’ve all seen this done. We’ve seen contractors gamble that rudimentary knowledge of a craft is adequate to complete a particular job. Repeated often enough, this gamble, even if it pays off for the contractor, will undermine craft knowledge. A trade cannot train and retain workers if it has little work for them.

The “flexibility” of the non-union workforce may be enviable, but if in attempting to emulate it we sacrifice our own skills we become too like the non-union.

This is only a cursory view of questions on jurisdictional dispute resolution. Many more questions could be asked. Much more could be said about the points and questions already raised here.

The project labor agreement on the retrofit of the Hetch Hetchy system combines four different jurisdictional dispute resolution procedures applying to various combinations of trades affiliated to or disaffiliated from the Department. The Department has accepted it, as has the National Construction Alliance to which the Carpenters, Laborers, and Operating Engineers now belong. Following the Department’s acceptance, Secretary-Treasurer McGarvey announced in Las Vegas to those of us assembled for a Western and Midwestern regional meeting of state and local building and construction trades councils that the Department would be calling back together its committee on jurisdiction to look afresh at the issue. I and others wish them all success. Real success could mean the reunification of our movement. Real success could lay the foundation for our return to dominance of the American construction industry.