Masonry Magazine August 1966 Page. 7
You and the NLRB
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That is Section 101, which provides for an injunction at the request of the Labor Board, by a Federal District Court, to stop a strike while the Board is considering the merits of the dispute, or while the Board is considering the Unfair Labor Practice case itself.
Now, I think it is important to remember that because of the way the Board functions, that is to say, the Board cannot do anything unless someone files an Unfair Labor Practice Charge, and even then upon investigation the Board first must find some evidence that the union is engaged in certain conduct, such as a strike. In other words, the Board is not like the ordinary Arbitration Board. Parties to a dispute can submit any dispute to an arbitrator for a determination. No such submission can be made to the National Labor Relations Board. There first must be some type of conduct which the Act outlaws a strike, for example-and then an Unfair Labor Practices Charge must be filed.
These Unfair Labor Practice Charges in 8B4D jurisdictional dispute situations are growing by leaps and bounds. For example, in the last fiscal year some two hundred and thirty charges were filed, based on jurisdictional disputes. Of these two hundred and thirty, the vast majority of them, a hundred and sixty-two, were in the construction industry. Now the Board does not press suit on all of these charges. As I pointed out, there must be some evidence of an Unfair Labor Practice certain conduct on the part of the union. Many times, a charge is dismissed because the investigation fails to show such conduct. Additionally, and this is significant, the Board and the Courts have construed a jurisdictional dispute of the type which the Board takes cognizance as essentially a dispute between two or more unions with the employer caught in the middle, so that if the dispute is merely a dispute between a union and an employer over terms and conditions of employment, over a raise or over a contract, that is not a jurisdictional dispute, and we dismiss the charge. And, similarly, the Board and the Courts have held that in the absence of rival claims over work, there is really not a jurisdictional dispute. In other words, even if you have two unions involved, if one of the unions, at the outset, makes it clear that it is not interested in this work, but the employer prefers to give the work to another union, and a strike ensues, since there are no rival claims, since it is essentially not a dispute between two unions with the employer caught in the middle, the Board and the Courts have held that that is not a jurisdictional dispute.
That question of rival claims has given rise to a few interesting situations. For example, in a case not in the construction industry, involving loading of a ship, the ship's operator and a union had a contract, a collective bargaining contract, which provided for a monthly salary, and spelled out the types of work the crew was to perform. Among them, was opening and closing of hatches aboard the ship. The ship pulled into Philadelphia and another union demanded the work of opening and closing the hatches. They claimed it was part of their unloading operation. When an Unfair Labor Practice Charge was filed and we investigated, we were told by the union representing the ship's crew that it had no objection to the other union opening and closing the hatches.
The difficulty however, was that it was not willing to reduce the contract salary which had been based upon this function, as well as other functions. We felt that that was really not a disclaimer, but all that the union was saying was, "We don't care if someone else does the work provided we get paid for it too." We felt it was not a disclaimer, we went to a Board hearing, the Board upheld us that it was a jurisdictional dispute and we enjoined the union from striking to secure the unloading of the hatches.
In another case there clearly was a jurisdictional dispute but for reasons of its own the striking union preferred that the Board, our Board, not make a purisdic-tional award. We issued a notice of hearing. At the hearing, for the first time, the striking union announced that it was not claiming the disputed work, obviously in an attempt to have the case, the charge, dismissed so that our Board should not make an award. We discounted that disclaimer, proceeded with the hearing and the Board made an award to the other union.
Also, one of the problems we have is whether there is really a claim for the work by one of the unions or by its members but, the union remains silent. We've had cases, for example, where the 'in' union, the union representing the employees who had the work which another union was seeking to force the employer to re-assign to it, because of some inter-union understanding took the position, in one case they admitted it was under pressure, that they would have no objection to a reassignment of the work to employees represented by another union. But despite that so-called official position of the union the employees working for the employer, members of the union who ostensibly dis-
ABOUT THE AUTHOR
Julius G. Serot has been a practicing attorney since January, 1936, when he was first admitted as an attorney in New York State. Since July, 1942, he has been in government service with 21 years of that period with the National Labor Relations Board.
Currently Mr. Serot is Assistant General Counsel for the National Labor Relations Board in charge of the section known as the District Court Branch. All cases involving alleged secondary boycotts and jurisdictional disputes which might be violative of the National Labor Relations Act, and other alleged violations of the National Labor Relations Act which might warrant injunction proceedings in a United States district court, are submitted to his branch for consideration as to whether any proceedings before the National Labor Relations Board or a United States district court should be under-taken.