Masonry Magazine July 1977 Page. 9
MCAA legal corner
LABOR LAW POTPOURRI
By GEORGE L. PLUMB
MCAA Legal Counsel
JUSTICE DEPARTMENT FILES PROPOSED CONSENT JUDGMENT ON TRADE ASSOCIATIONS' BID SUPPORT PROGRAM
The settlement of a civil anti-trust suit was accomplished through a proposed consent judgment against two construction industry trade associations in Illinois. The lecree settles a government suit challenging as a violation of the Sherman Anti-Trust Law, a bid support program administered by the Lake County Contractor's Development Association.
Under the program the Association attempts to get all contractors who are bidding on construction ion projects in Lake County, Illinois to take part in an arrangement whereby the winning contractor agrees to pay a percentage of the bid price to the Association. The Association then distributes half of the payment equally among the losing bidders and retains the other half for its own use.
The complaint alleged that this program has had the effect of raising prices bid by contractors and has restrained competition among them. The alleged increase in price would be the amount that was paid by the winning contractor to the association. The proposed judgment enjoins both associations from entering into bid support agreements or from following any practice that would have a similar effect.
The significance of this action is that the Department of Justice very carefully is reviewing the impact of the Anti-Trust Laws upon the collective action taken by associations that participate in bid support or bid depository agreements. Extreme caution should be exercised before any participation is had in programs of this nature.
SUPREME COURT UPHOLDS CONSTITUTIONALITY OF OSHA'S CIVIL PENALTY
In a unanimous decision the Supreme Court ruled that the penalty scheme of OSHA does not violate the Seventh Amendment to the Constitution. Justice White wrote the opinion holding that "when Congress creates a new statutory 'public rights', it may assign their adjudication to an administrative agency with which a jury trial may be incompatible" without a violation of the Seventh Amendment.
Since the Seventh Amendment was intended to require only that jury trials be preserved in suits at common law, it does not require a jury trial in cases where none was required before. While finding that private suits, such as torts, contract and property actions are still governed by the Seventh Amendment, the Court added "the point is that the Seventh Amendment was never intended to establish the jury as the exclusive mechanism for fact finding in civil cases. It took the existing legal order as it found it, and there is little or no basis for concluding that the amendment should now be interpreted to provide an impenetrable barrier to administrative fact finding under otherwise valid federal regulatory statutes."
One of the great concerns of the Court was the already well-known volume of OSHA cases. This was revealed in the Court's statement that "Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation nor prevent it from committing some new types of litigation to administrative agencies with special competence in the relevant field."
The Supreme Court's decision was expected. If laws administered by regulatory agencies were subject to trial by jury, it would be impossible to expand the present federal court system to bear the caseload that would follow.
WHEN MAY A CONTRACTOR LEGALLY AND EFFECTIVELY WITHDRAW FROM A MULTI-EMPLOYER COLLECTIVE BARGAINING AGREEMENT?
The issue of withdrawing from a multi-employer collective bargaining unit continuously arises during contract negotiations when one contractor being dissatisfied with the efforts of the employer association seeks to negotiate a contract with the union on its own terms. In a recent decision involving Carvel Company v. Plumber's Local 321, the NLRB restated the rules with respect to withdrawal from multi-employer units.
The Board held that in order for an employer to effectively withdraw (so as not to be bound by the negotiations of the association, chapter, or a multi-employer unit he continued on page 28
MASONRY/JULY 9