The Building Tradesman Newspaper

Friday, January 17, 2014

No new life in Appeals Court for Michigan's PLA law

By Marty Mulcahy, Editor

CINCINNATI – The full U.S. Court of Appeals has refused to reconsider a previous ruling by one of their three-judge panels, which essentially upheld a Michigan law that bans state and local governments from entering into project labor agreements.

The original Sept. 6 Sixth Circuit Appeals Court ruling overturned a U.S. District Court’s finding that the anti-PLA state law – adopted in 2011 by the Republican majorities in the state House and Senate and signed by Gov. Snyder – was invalid because it violated the National Labor Relations Act. A subsequent “en banc” ruling on Nov. 27 by the full 6th Appeals Court said its first ruling would stand, because all the issues in the case had been “fully considered” in the first ruling.

Michigan’s anti-PLA “Fair and Open Competition in Government Act” forbids state and local governments from requiring their contractors to sign project labor agreements, even though numerous government agencies have followed the lead of private firms and found it a good business practice to enter into PLAs.

Michigan Building Trades Council Attorney John Canzano said the full appeals court ruling “wasn’t unexpected. It is rare that en banc rulings are granted, but we hoped that they might take it up because of the national importance of this case.” Other state legislatures are also considering anti-PLA laws.

On that original court of appeals panel that made the ruling in September , the 2-1 majority opinion was written by Judge Rogers, an appointee of President George W. Bush, and signed by Judge Eugene Siler Jr., an appointee of President George H. W. Bush. Judge Karen Nelson Moore, an appointee of President Bill Clinton, dissented.

Judge Nelson Moore wrote that the “sweeping measure” of the law affects every governmental unit in the state. “By necessary implication,” she continued, “the amended Act also affects all labor organizations or trade councils seeking to enter into a PLA with a government entity. In short, Michigan implemented a statute that regulates collective bargaining.” That would be a no-no under the NLRA, but the two-judge majority of the court essentially said the state wasn’t regulating project labor agreements, just the ability of municipalities to enter into them.

Project labor agreements have provided proven benefits to municipalities in Michigan. Local hiring requirements. Drug-tested workers certified in safety training. Responsible contractor requirements. Prevailing wage enforcement. Labor, contractor and owner coordination to meet project deadlines.

The 2-1 Appeals Court decision in the case of Building Trades vs. Snyder said that the law was not regulatory, and did not infringe on the National Labor Relations Act (NLRA) as argued by the Michigan Building and Construction Trades Council.

“The law’s effect is limited to forbidding governmental units from entering into PLAs and then forcing the terms and conditions found within on bidders, contractors and subcontractors,” wrote Judge John Rogers, for the majority. “Such a limited action is similar to those found to be proprietary by the Supreme Court, this court and other circuits.”

Canzano said a similar case pending in Idaho could help decide whether the Michigan case would be appealed to the U.S. Supreme Court.