Jurisdictional disputes (Section 8(b)(4)(D) & 10(k))

The National Labor Relations Act provides a means through which employees represented by different unions with competing claims to certain disputed work can ask the Board to settle their dispute and assign the work to one or the other.

Section 8(b)(4)(D) of the Act prohibits certain union conduct an object of which is to force or require "any employer to assign particular work to employees in a particular labor organization . . . rather than to employees in another labor organization" (unless the union is trying to force the employer to assign the work in conformity with a Board order or certification). Section 10(k) of the Act provides that "[w]henever it is charged that any person has engaged in an unfair labor practice within the meaning of [Section 8(b)(4)(D)], the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."

• The primary function of Section 8(b)(4)(D) is to set in motion the procedure the Board follows to resolve a "jurisdictional" or work-assignment dispute under Section 10(k).
• The literal language of Section 8(b)(4)(D) could be read to trigger a jurisdictional dispute whenever a union resorts to proscribed means to preserve or retrieve unit work, regardless whether the employees to whom the employer has reassigned it (or intends to do so) also claim the work. But that interpretation would deviate from the purpose of Section 10(k), which is to shield neutral employers caught between rival claimants. Thus, for a jurisdictional dispute to exist, there must be competing claims to the work.
• Section 10(k) gives the parties 10 days "after notice that [a] charge [alleging a violation of Section 8(b)(4)(D)] has been filed" to submit "satisfactory evidence" that they have adjusted the dispute or agreed upon a voluntary method to do so. Thus, whenever an 8(b)(4)(D) charge is filed, the Region promptly gives notice to the parties. If, after investigation, the Region determines that the charge has merit and that the parties have neither adjusted the dispute nor agreed upon a method to do so, it issues a notice of hearing under Section 10(k). The record developed at the hearing is forwarded to the Board along with the hearing officer's summary of the pertinent facts. Meanwhile, the underlying Section 8(b)(4)(D) charge is held in abeyance.
• Before proceeding to determine the dispute, the Board must satisfy itself that it is "empowered" to do so under Section 10(k). First, it must decide whether reasonable cause exists to believe that Section 8(b)(4)(D) has been violated. This requires determining whether there is reasonable cause to believe that there are competing claims to the work in dispute and that the charged union used proscribed means - such as a threat to picket the charging party employer if the work is reassigned - to enforce its claim. In addition, because Section 10(k) conditions the Board's power to determine the dispute on the absence of an agreed-upon method for its voluntary adjustment, the Board must satisfy itself on that score as well. If there is no reasonable cause to believe that 8(b)(4)(D) was violated, or if the parties have agreed upon a method to adjust it to which all of them (including the employer) are bound, then the Board quashes the notice of Section 10(k) hearing, and that's the end of that.
• If, however, the Board finds that it is empowered to determine the dispute, it proceeds to do so based on common sense and experience, balancing the factors pertinent to the case. Any relevant factors may enter into the determination, but those typically considered include (1) work-jurisdiction provisions in the parties' collective-bargaining agreements, (2) to whom the work is currently assigned, (3) the employer's preference and past practice, (4) practice in the industry and geographical area, (5) relative skills and training, and (6) economy and efficiency of operations.
• The Board's award of the work is typically limited to the specific work in dispute. It may issue a broader award, however, if it finds that similar jurisdictional disputes are likely to occur.
• If the parties satisfy the Region that the Board's award is being complied with, the Region dismisses the Section 8(b)(4)(D) charge. Otherwise, the Region issues a complaint, and the case proceeds as an unfair labor practice case. (Because a Section 10(k) award is interlocutory, a party obtains appellate review of such an award by refusing to comply with it and securing an appealable final order in the Section 8(b)(4)(D) case.)