Posted on April 16, 2013 by Cary Burke

@LRToday Morning Round-Up: April 16, 2013

Gov. Christie Vetoes Sandy Project Labor Agreements Expansion: Joshua Alston of Law360 ($$) reports that yesterday, New Jersey Governor Chris Christie vetoed S2425, a bill that would have expanded the definition of "public works project" to include bridges, highways, and water treatment plants. Defining such structures as "public works" would have opened the bidding for reconstruction up to project labor agreements, which Gov. Christie believes would slow down the recovery and rebuilding processes.

“This bill would significantly alter public contracting in this state at a time when the swift reconstruction, rebuilding and redevelopment of public infrastructure is a priority,” Christie said.

The President of the Senate expressed his disappointment in the veto, saying that project labor agreements would bring new jobs into the state.

“This administration continues to see no problem with the recovery effort being led by out-of-state companies employing people not from New Jersey,” [Senate President Stephen] Sweeney said. “It simply lacks sense to not try and have as many people as possible from this state employed in rebuilding it."

At this point, there are no plans to tweak the bill for a new vote. However, we will keep you posted if things change.

More ULPs Filed Against Palermo's: Georgia Pabst of the Milwaukee Journal-Sentinel writes that a union representing workers at Palermo Villa, Inc. has filed unfair labor practice charges against the company, alleging that Palermo fired two workers in violation of the National Labor Relations Act. In related news, seven Milwaukee aldermen sent an open letter to the company yesterday, urging Palermo to meet with its employees in order to resolve a wage dispute that has now lasted for ten months. 

"We are concerned that the continuation of labor strife through lengthy legal processes, local and national boycott campaigns at supermarkets and campuses, and other activities are damaging to longtime and new employees alike, and will keep bringing negative publicity to Palermo's management and to our city as well," said the letter addressed to Palermo Villa.

Palermo did not respond substantively to the allegations, other than to issue a blanket denial. We will keep you posted as the investigation moves forward.

Teachers in North Pocono Set to Strike: Stacy Lange of WNEP16.com reports that teachers in North Pocono, PA have notified administrators that they plan to walk off the job this coming Thursday. Last night, the teachers' union rejected a last-minute proposal from administrators that would have averted the coming labor unrest.

While the teachers have been working without a contract since June, the strike notice comes as somewhat of a surprise because North Pocono teachers have never before walked the pickets. Apparently, the main sticking point in negotiations is out-of-pocket health care costs, an issue neither side plans to move on anytime soon. We will keep you posted as the situation develops.
 

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Posted on September 20, 2011 by Seth Borden

The American Jobs Act of 2011's Davis-Bacon and Project Labor Agreement Requirements

On September 13, 2011, Senate Majority Leader Harry Reid (D-NV) introduced President Obama’s “American Jobs Act of 2011” (S. 1549). The President has been on a barn-storming tour, urging passage of the bill as the nation’s unemployment rate remains north of nine percent. The Democratic National Committee has also launched a website to promote the proposed legislation – and a thorough summary of the bill's 155 pages can be found here.

The bill's introductory provisions include a standard requirement that all contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal government under the Act must pay Davis-Bacon prevailing wages.  Specifically, Section 5 reads:

SEC. 5. WAGE RATE AND EMPLOYMENT PROTECTION REQUIREMENTS.

(a) Notwithstanding any other provision of law and in a manner consistent with other provisions in this Act, all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to this Act shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code.

(b) With respect to the labor standards specified in this section, the Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40, United States Code.

(c) Projects as defined under title 49, United States Code, funded directly by or assisted in whole or in part by and through the Federal Government pursuant to this Act shall be subject to the requirements of section 5333(b) of title 49, United States Code.

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Posted on June 7, 2011 by Seth Borden

House Subcommittee Hearing Looks at President Obama's Executive Order Regarding PLA's for Government Construction Contracts

Last Friday, a subcommittee of the House Committee on Oversight & Government Reform held a hearing entitled "H.R. 735 And Project Labor Agreements: Restoring Competition & Neutrality To Gov't Construction Projects".  The bill number identified in the hearing title, introduced earlier this year by  Rep. John Sullivan (R-OK), is the Government Neutrality in Contracting Act (H.R. 735).   This and a similar bill (S. 119) would largely invalidate President Obama's Executive Order 13502. 

That EO, one of four issued during the President's first month in office in 2009, allows federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract.  A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site.

Witnesses at Friday's hearing included Daniel Gordon, the Administrator of OMB's Office of Federal Procurement Policy; Susan Brita, Deputy Administrator of the GSA; Maurice Baskin, Esq., of Venable LLP; David Tuerck, Executive Director of the Beacon Hill Institute; Kirby Wu, of Wu & Associates; and Mike Kennedy, Esq., of the Associated General Contractors of America.

The prepared statements and submissions of these witnesses are linked above, and the video of the hearing is available at the Committee's website.

More resources & information:

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Posted on March 18, 2011 by Seth Borden

House Oversight Committee Holds Hearing on Project Labor Agreements

On Wednesday morning, the House Committee on Oversight & Government Reform held a hearing entitled "Regulatory Impediments to Job Creation: The Cost of Doing Business in the Construction Industry".  A main focus of the hearing was President Obama's Executive Order 13502.  That EO, one of four issued during the President's first month in office in 2009, allows federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract.  A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site.

Last month, Rep. John Sullivan (R-OK) introduced a bill designed to reverse Executive Order 13502.  The Government Neutrality in Contracting Act (H.R. 735) and a similar bill (S. 119) would largely invalidate the President's Order in the absence of special circumstances

Witnesses at Wednesday's hearing included Ennis Electric Co. CEO John Ennis, Jr., on behalf of NFIB; Figg Engineering CEO Linda Figg on behalf of CIRT; Maurice Baskin, Esq. on behalf of Associated Builders & Contractors; Bay Electric CEO Jay Biagas; Michigan State Professor Dr. Dale Berman; Commissioner of the  Public Buildings Service Robert Peck; Administrator of the Office of Federal Procurement Policy Daniel Gordon; and the Assistant Secretary of Labor for OHS, Hon. David Michaels.  The prepared statements and submissions of these witnesses are already available, and the video of the hearing will be available, at the Committee's website.

More resources & information:

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Posted on February 18, 2011 by Seth Borden

Bill Introduced to Reverse President Obama's Executive Order on Project Labor Agreements

On Wednesday, Rep. John Sullivan (R-OK) introduced a bill designed to reverse President Obama's Executive Order 13502.  That EO, one of four issued during the President's first month in office in 2009, allows federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract.  A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site.

Rep. Sullivan's Government Neutrality in Contracting Act (H.R. 735) and a similar bill (S. 119) would largely invalidate the President's Order in the absence of special circumstances.  Section (a) of the bill states:

      (1) GENERAL RULE- The head of each executive agency that awards any construction contract after the date of enactment of this Act, or that obligates funds pursuant to such a contract, shall ensure that the agency, and any construction manager acting on behalf of the Federal Government with respect to such contract, in its bid specifications, project agreements, or other controlling documents does not--
        (A) require or prohibit a bidder, offeror, contractor, or subcontractor from entering into, or adhering to, agreements with 1 or more labor organizations, with respect to that construction project or another related construction project; or
        (B) otherwise discriminate against or give preference to a bidder, offeror, contractor, or subcontractor because such bidder, offeror, contractor, or subcontractor--
          (i) becomes a signatory, or otherwise adheres to, an agreement with 1 or more labor organizations with respect to that construction project or another related construction project; or
          (ii) refuses to become a signatory, or otherwise adhere to, an agreement with 1 or more labor organizations with respect to that construction project or another related construction project.

President Obama's EO 13502 encouraged federal agencies to use PLAs on any construction project worth more than $25 million, but did not require them.  It did also require the O.M.B. to investigate expansion of the use of PLAs on federal construction projects.  The White House's related statement of policy explained the goals of the EO as follows:

The use of a project labor agreement may prevent these problems from developing by providing structure and stability to large-scale construction projects, thereby promoting the efficient and expeditious completion of Federal construction contracts. Accordingly, it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement.

Law360 reports that Rep. Sullivan sent out a letter to his colleagues earlier this week describing the Executive Order as an “'anti-competitive and costly measure encouraging federal agencies to mandate union favoring” agreements that raise construction costs from 12 to 18 percent":

“In short, government-mandated PLAs are nothing more than schemes to repay big labor bosses for political support by steering lucrative federal construction contracts to unionized companies and their unionized workforces,” Sullivan said.

“Instead of pandering to special interests, Congress should be doing all it can to ensure fair and open competition on federal construction contracts, and help deliver to taxpayers the best possible construction project at the lowest possible price,” he said.

The House bill has 23 co-sponsors.  Committee hearings are expected on the bills soon.

More resources and commentary:

 

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Posted on May 4, 2010 by Seth Borden

U.S. Chamber of Commerce on Labor Agenda Beyond Card-Check

Glenn Spencer, Executive Director of the U.S. Chamber of Commerce's Workforce Freedom Initiative published a piece yesterday in The Metropolitan Corporate Counsel entitled: "Union Agenda Implemented Behind the Scenes."   In the piece, Spencer outlines a number of items on "the union wish list."  Among the items included in the piece, with some excerpts here, are:

NLRB Composition: 

From Spencer's piece:

Aside from Card Check, a critical priority for organized labor has been to secure a staunchly pro-union majority on the National Labor Relations Board (NLRB). With President Obama's recess appointment of Craig Becker in March, this goal has been realized. While Becker failed to win a full five-year term after being rejected in a bi-partisan vote by the Senate, his ascension to the NLRB gives the pro-union forces a 3-1 majority on the Board. With this slanted majority, the NLRB will seek to overturn numerous decisions from past years such as Dana/Metaldyne , which established the primacy of the secret ballot over Card Check and Oakwood Healthcare , which clarified which workers could be considered supervisors.

In our inaugural post, we discussed a number of case holdings -- including those in Dana Corp. and Oakwood Healthcare (aka the "Kentucky River" cases) -- likely to be challenged by the new Board.  Readers of this blog can follow related developments via our "Bush Board Reversal," "NLRB Administration" and "NLRB Decision" tags.    

NLRB Rule-Making:

Spencer:

The NLRB will not, however, simply sit back and wait for the appropriate cases to come its way. Current Chairwoman Wilma Liebman, a Democratic appointee, has made it clear that the Board will engage in active rulemaking for the first time in nearly 30 years. Rulemaking could change NLRB policy in a number of ways, most significantly by shortening the election window during union organizing campaigns from an average of approximately 38 days to as little as five or 10. The Board may also place additional limits on employer speech rights and attempt to give union organizers access to an employer's workplace. Finally, the NLRB could even issue rules requiring the recognition of non-majority "mini-unions" that represent only a fraction of a potential bargaining unit. Outside of rulemaking, the Board is also likely to make greater use of Gissel bargaining orders, essentially forcing employers to recognize a union even where it has failed to demonstrate majority support.

We agree that employers should follow these likely developments closely.  We outlined areas where the Board may engage in rulemaking -- like some mentioned above, as well as more aggressive pursuit of preliminary injunctions and civil damages -- in our February 22, 2010 Bloomberg Law Reports piece.  Readers may follow related developments via our "NLRB Rule-Making" tag.

Executive Orders:

Spencer:

The White House itself has gotten into the action with a series of pro-union Executive Orders signed in early 2009, which are now coming to fruition through the regulatory process. And a potential new Executive Order would impose much of the unions' sweeping social agenda on a wide swath of the economy by rigging the government contracting process. Referred to as the "High Road" contracting initiative, this new policy would give a bonus in contracting scores to companies that provide their employees with a "living wage" and offer employer-sponsored health and retirement benefits as well as paid sick leave. The catch is that these wages and benefits would have to be offered to every worker at a particular company - not just those working on the contract. This would effectively impose "living wage" requirements on more than 20 percent of the nation's workforce. The result would be decreased competition for government contracts and higher costs to the taxpayers.

We are monitoring developments regarding the "High Road" contracting initiative, and have issued advisories on the Executive Orders already issued by the President -- most recently outlining the final rule issued by the FAR regarding use of Project Labor Agreements on large-scale construction projects.  Readers may follow related developments via our "Executive Orders" and "Government Contracting" tags. 

Mr. Spencer's piece includes additional items regarding Department of Labor, OSHA, and Wage & Hour administration, classification of independent contractors and pending DOL regulatory actions.  You can read the entire piece here.

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Posted on April 21, 2010 by Seth Borden

Sen. Collins (R-ME) Critical of PLA Order and Regs

Last week the final rule was published regarding President Obama's Executive Order 13502 which allows agencies to require participation in a Project Labor Agreement (PLA) as a condition of bid solicitations on "large-scale" construction projects.   Yesterday, Government Executive reported that Senator Susan Collins (R-ME) recently criticized these developments as changing the government's federal procurement policy from "neutral" on union issues to one that is "pro-labor.":

"When it comes to spending taxpayer money, the decisions should always be based on the best value possible," Collins said. "Such decisions should not be driven by partisanship, politics or other agendas. With this change ... the administration has eliminated the practice of awarding contracts based on an objective assessment that puts the taxpayers' interests first."

  *  *  *

"This is one more example where the administration is taking a position that creates barriers for small businesses and blocks the participation of entrepreneurial startup companies," Collins said.

The article provides additional comment from Jim Elmer, national chairman of Associated Builders and Contractors; Jared Bernstein, chief economic adviser to Vice President Joe Biden; and, Secretary of Labor Hilda Solis.  Our initial analysis of the Order and Rule can be found here.

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Posted on April 16, 2010 by Seth Borden

More on Project Labor Agreements and Executive Order 13502 Final Rules

Following on our earlier post on the FAR amendments regarding the use of Project Labor Agreements on "large-scale" construction porjects, here are some additional resources and commentary on the issue:

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Posted on April 16, 2010 by Seth Borden

Federal Acquisition Regulation Amended to Implement Executive Order 13502 Regarding Use of Project Labor Agreements (PLA's) for Federal Construction Projects

On February 6, 2009, President Obama signed Executive Order 13502 allowing federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract. (See MLA Government Contracts Advisory, “President Obama Signs Executive Order Allowing Agencies to Require Project Labor Agreements (PLA’s) on Large Construction Projects,” Feb. 10, 2009.)  On April 13, 2010, the Federal Acquisition Regulation council (FAR) published final rules interpreting and implementing the Executive Order. The rules will become effective 30 days after their publication and will only apply to solicitations for projects issued on or after the effective date of the rules.

A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site. The rules make clear that, in accordance with Section 8(f) of the National Labor Relations Act, the PLA requirement will only apply to contracts involving construction work.  Construction is defined to include “construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.”  Moreover, the Order and rules apply primarily to “large scale” construction projects -- which they define as projects with a total cost exceeding $25 million.

It is important to clarify that the new rules do not require contractors and subcontractors to enter into a PLA on every large-scale government-funded construction project awarded. Instead, they give each agency responsible for awarding construction contracts very broad discretion in determining, on a project-by-project basis, which large-scale contracts will require PLA’s and which ones will not. Beyond the few express criteria listed in the Executive Order, the final rules provide awarding agencies with six additional factors they may consider in determining whether a PLA requirement is appropriate.  These additional non-mandatory factors are:

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