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Contractors recently given reins to settle job site trade duty disputes
By KERRY L. SMITH

   In the past 90 days, the means by which jurisdictional disputes can be resolved on a job site have changed dramatically. Rather than the American Federation of Labor and Congress of Industrial Organizations ruling on which trade does what when skills and talents overlap (as of January) it is now up to the contractor's discretion.

   Tim Garvey, executive director of the Southern Illinois Builders Association, said labor unions are undergoing a marked transition in terms of who can approve which trade performs tasks that are considered in a "gray area" when it comes to overlapping skill sets.

   Until the start of 2004, when a question arose at a job site as to whether a carpenter or a cement mason, for example, could perform the task, many times all work halted on a project while the commercial contractor awaited a decision from a specially-called, three-person arbitration panel sanctioned by the AFL-CIO. The panel sought its direction from the "green book," a 180-page book of AFL-CIO precedent-setting decisions dating back to 1904.

   And in the vein of "time is money," those stoppages, coupled with the determination being made by individuals who were not close to the site or to the nature of the project.

   "The traditional way of dealing with jurisdictional disputes is an antiquated one," said Garvey, whose organization is the largest regional contractor association in Illinois and a chapter of The Associated General Contractors of America. "What effectively happened was that some of these jurisdictional decisions through the years have been rendered irrelevant due to technological changes and other factors. So jurisdictional assignments made back in the 1920s, for example, have no bearing on the way work is performed today."

   Garvey said the new ruling gives the employer, the contractor - whether it's a general contractor or a subcontractor - the right to basically assign the work he feels is in his best interests.

   "Contractors operate differently," he said. "They have trades they feel more comfortable with and trades they feel more productive with."

   One example of where the various trades and their skills overlap, Garvey said, is in the assignment of performing cement and finishing work. There are three trades qualified to do such tasks: bricklayers, cement masons and laborers.

   Do the contractors like having the final say in jurisdictional disputes? Not necessarily, said Garvey.

   "Back liability for back pay is a real concern to employers under this new scenario," he said. "Say the work is assigned incorrectly, in the eyes of some of the trades. What the contractor wants is to be assured that he is not going to be liable for back pay to another trade. And that has happened in some trades."

   SIBA is working on drafting additional language for the latest dispute resolution agreement under the heading "conflicting claims to work" so the contractor does not face dual liability. This type of clause, Garvey said, has already been added to a number of collective bargaining agreements in the past three months.

   "One of the difficulties we run into now is that all the contracts overlap and dovetail jurisdictional assignments," he said. "You can have one contract that says work belongs to one trade, with another trade's contract that says it belongs to a different trade, for the same project."

   Terry Nelson, executive secretary-treasurer for the Carpenters' District Council of Greater St. Louis and Vicinity, said giving contractors the ultimate voice in jurisdictional disputes makes solid business sense. He added that it also underscores the Carpenters' ongoing mission to be the "trade of choice."

   "With this ruling, they (AFL-CIO) have eliminated that gigantic albatross we carried around our neck called 'history and tradition,'" said Nelson, whose organization represents 22,000 craftsmen throughout 33 Southern Illinois counties and 44 Eastern Missouri counties.

   Nelson continues to push his members to embrace a hard work ethic and realize that job security is a thing of the past.

   "I want to look at economy and efficiency, and I want to look at my contractors being competitive and profitable, rather than just occupying a seat on a piece of equipment whether it's working or not," he said. "I tell my guys, 'You've got to be willing to get out of the seat if that's the best thing for the contractor and ultimately for the client. When your three hours of machine work is done, you have got to be willing to pick up a broom and sweep, or do whatever it takes to make that contractor happy.'"

   Nearly five years ago, the Carpenters' District Council of Greater St. Louis left the AFL-CIO, taking some $5 million in operating cash away from the federation of 64 national and international labor unions.

   "We told them (AFL-CIO) we'd come back if they stopped doing business by the good ol' boy system," Nelson said. "But I think that's never going to go away."

   The Carpenters' Council head said local dispute resolution on jurisdictional issues, wherein the contractor has the final say, is prudent. Nelson has drafted his own project construction agreement, one and a half pages in length, with language supporting the concept of forming a local panel for resolving job site task disagreements among trades.

   The agreement has a provision prohibiting unions and employees from striking or engaging in sit-downs, slow-downs, picketing or any other form of protest that keeps the specific project from moving forward. "This no-strike pledge includes jurisdictional disputes and contract expirations," it reads.

   Organized labor needs to roll with the change and try to avoid being caught up in a culture shock over it, Nelson said.

   "It's essential for us to see things as the contractor does," he said. "Many members of locals don't really understand the level of risk that a contractor takes on each morning. This is what contractors want: They want us to show up and do eight hours of work, because time is money to them. It has to be."

   Geoffrey M. Gilbert, a partner at the law firm of McMahon, Berger, Hanna, Linihan, Cody & McCarthy, said the sudden change in philosophy is indicative of the changing relationship between employers and unions that is occurring throughout the country. The St. Louis firm exclusively represents management interests in the areas of labor and employment law.

   "Unionization in the private sector is at 8.2 percent, an all-time low, and unions are finally realizing that the old way of doing things is not working," Gilbert said. "Over the course of the past year, there have been numerous examples of unions abandoning a hard line approach with employers and adopting a more conciliatory approach. This conciliatory approach, which has been most prevalent in the automotive industry, has resulted in cutbacks for employees, but unions firmly believe that working with employers is the only way to keep unions from dying."