6/7/2011 5:04:00 AM,
Philip A. Janquart
BOISE (CN) - Two new state laws aimed at unions, set to take effect July 1, violate the National Labor Relations Act and the Constitution, construction unions say in Federal Court.
The bills, Idaho SB 1006 and SB 1007, are called the "Open Access to Work Act" and the "Fairness in Contracting Act."
The Legislature passed both bills in February, and Gov. Butch Otter signed them on March 3.
SB 1007, the "Fairness in Contracting Act" is also known as the "Anti-Job Targeting Act."
SB 1006, the "Open Access to Work Act" is also known as the "Anti-PLA Act" (Project Labor Agreements).
Plaintiffs Idaho Building and Construction Trades Council and Southwest Idaho Building and Construction Trades Council, both AFL-CIO, say the laws violate the rights of private sector employees under the NLRA and violate the Supremacy Clause of the Constitution.
According to the complaint, SB 1006, the "Anti-PLA Act," will "prohibit the State of Idaho and its political subdivisions from requiring that contractors, subcontractors, material suppliers or carriers engaged in the construction, alteration, equipping, furnishing, maintenance, repair or improvement of public works to execute or otherwise become a party to any project labor agreement, collective bargaining agreement, prehire agreement or any other agreement with employees, their representatives or any labor organization as a condition of bidding, negotiation, being awarded or performing work on a public works project.
"A 'prehire' agreement is a collective bargaining agreement negotiated before the start of a construction project, usually before employees are hired."
But the unions say: "Section 8(f) of the NLRA, 29 U.S.C. §158(f), specifically and unequivocally authorizes the use of prehire agreements in the building and construction industry.
"Section 8(e) of the NLRA, 29 U.S.C. §158(e), expressly authorizes project labor agreements to include contracting and subcontracting agreements whereby an employer agrees to contract and/or subcontract work only to an employer who is signatory to, or will abide by, the project labor agreement.
"Taken together, Sections 8(e) and (f) of the NLRA validate the practice - long followed by owners and managers of large and complex construction projects - of adopting project labor agreements as a means of systemizing the terms and conditions of employment that will prevail throughout the length of a construction project."
The unions say SB 1006 violates the NLRA and the Supremacy Clause "because it directly conflicts with plaintiffs' rights under Sections 7, 8(e) and 8(f) of the NLRA, and also interferes with the 'free play of economic forces' that Congress intended to govern construction industry labor relations."
As for SB 1007, the unions say: "Job targeting programs began in the early 1980's as a means of enabling union contractors to compete for 'targeted' jobs by providing wage subsidies to help reduce the unionized contractor's labor costs, while securing additional employment opportunities for workers represented by the union at the collectively-bargained wage rate.
"Most, but not all, job targeting programs, including all those in Idaho, are maintained through voluntary contributions by workers represented by the unions that operate job targeting programs, which are deducted from their gross earnings.
"These contributions are remitted to the respective unions pursuant to dues check-off clauses in their collective bargaining agreements with their unionized contractors. The basic premise of these programs is that local building trades unions are able to provide tangible assistance to unionized contractors competing for selected contracts and subcontracts and to spread the economic concessions over the union's entire membership in an equitable fashion."
According to the complaint, SB 1007, the "Anti-Job Targeting Act," will: "(a) prohibit contractors and subcontractors in Idaho from receiving either directly or indirectly a wage subsidy 'the source of which is wages, dues or assessments collected by or on behalf of any labor organization, whether or not labeled as dues or assessments,' § 44-2012(3); and (b) prohibit labor organizations from paying a wage subsidy or wage rebate, the source of which is wages, dues or assessments collected by or on behalf of its members, whether labeled as dues or assessments, to its members in order to directly or indirectly subsidize a contractor or subcontractor, § 44-2012(2); as well as (c) make it illegal to use any funds financed by wages collected by or on behalf of any labor organization to subsidize a contractor or subcontractor doing business in the state of Idaho, § 44-2012(4); and (d) subject contractors, subcontractors and labor organizations to fines for violations of these provisions, § 44-2012(5). Section 44-2012(6) confers standing on any interested party, as defined therein, to challenge any bid award, specification, project agreement, controlling document, grant or cooperative agreement in violation of the provisions of the statute, and makes such interested party eligible for an award of costs and attorneys' fees in the event that such interested party prevails."
The unions say: "The National Labor Relations Board ('NLRB') has repeatedly held that a job targeting program is protected concerted activity under Section 7 of the NLRA, because the objective of such programs is 'to protect employees' jobs and wage scales.'
"State regulation infringing plaintiffs' right to operate job targeting programs in Idaho directly conflicts with federal law, inasmuch as the NLRB has held that job targeting programs are actually protected by the NLRA.
"Therefore, the 'Anti-Job Targeting Act' is preempted under the Supremacy Clause of the United States Constitution."
The unions want both laws enjoined.
They are represented by James Piotrowski with Herzfeld & Piotrowski of Boise, and Terry Yellig with Sherman, Dunn, Cohen Leifer & Yellig, of Washington D.C.