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Project Labor Agreements and Targeted Hiring Policies

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Project Labor Agreements and Targeted Hiring Policies 5/13/2014 Project Labor Agreements and Targeted Hiring Policies Law Office of Julian Gross League of California Cities San Francisco, CA City Attorneys’ Spring Conference www.juliangross.net Indian Wells, CA May 7, 2014 Project Labor Agreements –Basics PLAs are prehire labor agreements, specifically permitted for use in the construction industry by Section 8(f) of the National Labor Relations Act. Basic bargain in PLAs on public projects: • Public entity gets assurance of labor peace • Participating unions get broad application of terms of collective bargaining agreements Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 1 5/13/2014 Project Labor Agreements – Types of Projects PLAs are often negotiated for: • large, publicly‐funded individual projects – e.g., Oakland Army Base • categories of publicly‐funded projects – e.g., Rancho Santiago Community College District’s policy approved in Johnson v. Rancho Santiago Cmty. College Dist., 623 F.3d 1011, 1022‐ 23 (9th Cir. 2010); City of Los Angeles public works PLA • private projects Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 Project Labor Agreements – Legality The legality of use of PLAs on public works projects in California is well‐ established. • NLRA preemption claims: Building & Const. Trades Council v. Assoc. Builders & Contractors of Mass./R.I., Inc. (Boston Harbor), 507 U.S. 218 (1993) • Other claims (equal protection, first amendment, etc.): Assoc. Builders & Contractors, Inc., Golden Gate Chapter et al. v. San Francisco Airports Commission, 21 Cal. 4th 352 (1999) • Competitive bidding: Public Contract Code sec. 2500: specifically authorizes California public entities to use project labor agreements • PLAs applicable to multiple projects: Rancho Santiago Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 2 5/13/2014 Project Labor Agreements – Public Contract Code sec. 2500 Public Contract Code Chapter 2.8 (Section 2500‐2503): “Project Labor Agreements” 2500 (a) A public entity may use, enter into, or require contractors to enter into, a project labor agreement for a construction project only if the agreement includes all of the following taxpayer protection provisions: (1) The agreement prohibits discrimination based on race, national origin, religion, sex, sexual orientation, political affiliation, or membership in a labor organization in hiring and dispatching workers for the project. (2) The agreement permits all qualified contractors and subcontractors to bid for and be awarded work on the project without regard to whether they are otherwise parties to collective bargaining agreements. (3) The agreement contains an agreed‐upon protocol concerning drug testing for workers who will be employed on the project. (4) The agreement contains guarantees against work stoppages, strikes, lockouts, and similar disruptions of the project. (5) The agreement provides that disputes arising from the agreement shall be resolved by a neutral arbitrator. Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 Requirement of Use of PLAs on Private Projects Public entities may in some cases require use of PLAs on private projects with which the public is involved in a non‐regulatory capacity. – Legal issue is whether the public entity is advancing a valid proprietary interest in requiring a PLA. • evaluate regulatory vs. proprietary interest • many types of arrangements may qualify • many types of interests may qualify • see discussion in Rancho Santiago (Cardinal Towing test) Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 3 5/13/2014 Project Labor Agreement –Basic Terms Every PLA contains the following key provisions: – an agreement by unions not to strike or take other collective action against the project or contractors working on it; – requirements that any contractor working on the project (whether or not it is signatory to a collective bargaining agreement) abide by terms of the relevant trade’s collective bargaining agreement in performance of project work; – dispute resolution systems for quickly resolving any jurisdictional disputes between unions; and – dispute resolution systems for quickly resolving disputes between workers and contractors. Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 Project Labor Agreements –Optional Terms Many PLAs also contain provisions: – facilitating participation by non‐union contractors (e.g., provisions regarding “core workers” and “carve outs”); – streamlining practices across different construction trades, to improve project efficiency (e.g., establishing a unified holiday schedule for project construction); and – facilitating contractor compliance with targeted hiring goals imposed by the public entity (discussed below). Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 4 5/13/2014 PLAs – Negotiation Mechanics • Standard language vs. negotiated language • Public entity’s negotiating team – role of contractors – role of other interested parties • Mechanics of execution • Inclusion in bid specs • Letters of assent Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 Targeted Hiring Policies ‐ Types • local hiring policies adopted by a local jurisdiction or agency (e.g., policies adopted by ordinance or resolution in Oakland, Los Angeles, and San Francisco; prohibited on projects funded by US‐DOT); • federally‐mandated requirements to hire specified percentages of minorities and women (required on all federally‐funded construction projects, per U.S. Executive Order 11246; see 41 C.F.R. sec. 60‐4, Construction Contractors—Affirmative Action Requirements); • federally‐mandated requirements to hire local residents on HUD‐funded projects (i.e., U.S. Dept. of Housing and Urban Development’s “Section 3” program; see 24 C.F.R. part 135); • disadvantaged‐hiring policies adopted by a local jurisdiction (usually established in conjunction with one of the above approaches; can include targeting employment of low‐income individuals, veterans, ex‐offenders, residents of low‐income neighborhoods, at‐risk youth, etc.). Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 5 5/13/2014 Targeted Hiring Policies –Legal Issues Local hiring policies – Privileges and Immunities Clause (out‐of‐state exemption) – Dormant Commerce Clause – Prohibited on some federally‐funded projects; required on others Minority‐ and female‐ hiring reqs – required on federally‐funded projects – Proposition 209 Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 Targeted hiring policies – Mechanics • Typical: goals / good faith efforts – but see San Francisco • “First Source” requirements • Apprenticeship access • Bid specs / liquidated damages Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 6 5/13/2014 Hiring Processes under Collective Bargaining Agreements • Contractors that are not using existing employees get workers from union hiring halls • some flexibility built in: “name call” and similar provisions • often in conflict with targeted hiring requirements – enforcement challenges Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 PLAs and Targeted Hiring Policies • PLAs override conflicting terms of collective bargaining agreements • PLAs can specify hiring practices that resolve conflict between targeted hiring requirements and terms of collective bargaining agreements: – priority referral • e.g., City of Los Angeles; Port of Los Angeles, L.A. Metro; California High Speed Rail Authority; Oakland Army Base – use of alternate referral sources • e.g., above‐referenced PLAs; AC Transit PLA for Bus Rapid Transit Project Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 7 5/13/2014 “Construction Careers” Approach •Job quality plus job access –can include apprenticeship access and utilization reqs •Exemplified by PLA‐plus‐targeted‐hiring approach –“Community Workforce Agreements” •Labor‐community coalitions •Practical aspects are as important as policies Law Office of Julian Gross League of California Cities– City Attorneys’ Spring Conference San Francisco, CA Indian Wells, CA www.juliangross.net May 7, 2014 8.
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