The Building Tradesman Newspaper

Friday, May 11, 2012

GOP seeks elusive cure to what ails their anti-PLA law

By Marty Mulcahy, Editor

LANSING – The curious Republican fixation on banning the use of construction project labor agreements by state and local governmental authorities in Michigan just got curioser.

Here’s what has happened in a nutshell. Last summer state Republican lawmakers adopted and Gov. Snyder signed Public Act 98, which outlawed the use of project labor agreements by state and local government agencies. Upon an appeal by the Michigan Building and Construction Trades Council, a federal judge blocked PA 98 in February, ruling that it interfered with federal law.

Now, state Republicans are trying to “fix” the law with new legislation, in the form of Senate Bill 1085, which was approved and moved out of committee on April 25. But Senate Bill 1085 really only muddies the legal waters for Republican sponsors of the bill, according to John Canzano, attorney for the Michigan Building and Construction Trades Council.

“The bottom line with this new bill is that they’re trying to fix what the federal judge found wrong, by making technical changes,” Canzano said. “But in my opinion, they can’t find a fix for what they’re trying to do, which is to prevent all government units in Michigan from employing PLAs.”

Canzano said the reason there is likely no fix available is that the legal barriers are too high for the state lawmakers to climb. In making her ruling overturning PA 98, U.S. District Court Judge Victoria Roberts ruled that the federal National Labor Relations Act, which spells out the operations of unions, pre-empts Michigan’s attempts to kill PLAs.

Project labor agreements are generally sought by property owners (or municipal officials or school boards) and the construction contractors they hire. The PLAs affecting the construction labor force can vary from project to project, but generally establish wage rates, hours, and usually prohibit strikes or lockouts.   The agreements can also include language that spells out required standards for safety or skills training for workers, as well as drug and alcohol testing requirements.

They are hardly one-size-fits-all contracts, and they generally allow the hiring of nonunion contractors, even though most require contractors to be signatory to, or adhere to, a collective bargaining agreement for the term of the project.

Even though PLAs have been successfully used by school boards, cities, townships and counties around Michigan, Republican lawmakers in Michigan essentially said in PA 98 that they were in a better position to conduct the business of local units of government.

State Republican lawmakers argued that a major reason for rescinding PLAs is to provide a savings to the Michigan’s taxpayers. According to Gongwer News Service, Senate Bill 1085 “would clarify that it was the Legislature’s intent to save money for the state and local governments by restricting the use of PLAs. “We do know what Michigan did was constitutional,” said state Sen. John Moolenaar (R-Midland), sponsor of the bill, to Gongwer. “(The bill) clears up any confusion about what we did with the legislation last year.”

On the contrary, Canzano said. For one, while Michigan Republican lawmakers center their argument for doing away with PLAs around the state saving money, two separate independent state findings said eliminating PLAs wouldn’t save the taxpayers anything. “The Department of Technology, Management, and Budget states that there would be no fiscal implications for State of Michigan facility projects,” says the most recent Michigan Senate Fiscal Agency’s bill analysis.

Second, Canzano said during testimony on SB 1085 that lawmakers should hold off on adopting any new legislation related to PLAs until legal action related to the first case is settled. Michigan Attorney General Bill Schuette has appealed Roberts’ ruling on Public Act 98 and has requested that a stay be placed on her ruling until the appeal is decided.

 “So while the appeal is pending, they amend the original law with this law,” Canzano said. “If they pass this law, doesn’t that mean that the law they’re making an appeal over, no longer exists?”

He said the ruling on an appeal likely wouldn’t come until the fall.