Reply – Re: Four Teams Short-Listed for $5-Billion Tappan Zee Bridge Rebuild
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Re: Four Teams Short-Listed for $5-Billion Tappan Zee Bridge Rebuild
— by Ted Ted
Boston Harbor settled the pre-emption challenges to PLA's under 8(e) & (f) of the NLRA relative to the Construction Industry. The key to this is whether the government is acting as a regulator or if it exercises its proproetary interest as a market participant.

Tappan Zee has already been short-listed for a D/B with pre-qualified teams. The reader comments are misplaced, as there are no non-union market participants who could successfully capitilize or bond a project of this scope or magnitude, thus negating any form of effective challenge by the Associated Builders & Contractors.

The fact is, they have trouble completing simple wood frame projects, schools or box stores and any challenge mounted, other thamn to delay the project would be swiftly disposed by the Courts.

U.S. Supreme Court

BUILDING & C. TRADES COUNC. v. ASSOC. BLDRS., 507 U.S. 218 (1993)
507 U.S. 218
 No. 91-261

Argued December 9, 1992
Decided March 8, 1993 *  

[ Footnote * ] Together with No. 91-274, Massachusetts Water Resources Authority et al. v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., et al., also on certiorari to the same court.
Following a lawsuit over its failure to prevent the pollution of Boston Harbor, petitioner Massachusetts Water Resources Authority (MWRA) - the state agency that provides, inter alia, sewage services for eastern Massachusetts - was ordered to clean up the harbor. Under state law, MWRA provides the funds for construction, owns the sewage treatment facilities to be built, establishes all bid conditions, decides all contract awards, pays the contractors, and generally supervises the project. Petitioner Kaiser Engineers, Inc., the project manager selected by MWRA, negotiated an agreement with petitioner Building and Construction Trades Council and affiliated organizations (BCTC) that would assure labor stability over the life of the project, and MWRA directed in Specification 13.1 of its solicitation for project bids that each successful bidder must agree to abide by the labor agreement's terms. Respondent organization, which represents nonunion construction industry employers, filed suit against petitioners, seeking, among other things, to enjoin enforcement of Bid Specification 13.1 on the grounds that it is preempted under the National Labor Relations Act (NLRA). The District Court denied the organization's motion for preliminary injunction, but the Court of Appeals reversed, holding that MWRA's intrusion into the bargaining process was pervasive, and not the sort of peripheral regulation that would be permissible under San Diego Building Trades Council v. Garmon, 359 U.S. 236 , and that Bid Specification 13.1 was preempted under Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 because MWRA was regulating activities that Congress intended to be unrestricted by governmental power.

The NLRA does not preempt enforcement by a state authority, acting as the owner of a construction project, of an otherwise lawful [507 U.S. 218, 219]   prehire collective bargaining agreement negotiated by private parties. This Court has articulated two distinct NLRA preemption principles: "Garmon preemption" forbids state and local regulation of activities that are protected by 7 of the NLRA or constitute an unfair labor practice under 8, while "Machinists preemption" prohibits state and municipal regulation of areas that have been left to be controlled by the free play of economic forces. These preemption doctrines apply only to state labor regulation, see, e.g., Machinists, 427 U.S., at 144 . A State may act without offending them when it acts as a proprietor and its acts therefore are not tantamount to regulation or policymaking. Permitting States to participate freely in the marketplace is not only consistent with NLRA preemption principles generally, but also, in this case, promotes the legislative goals that animated the passage of the NLRA's 8(e) and (f) exceptions regarding prehire agreements in the construction industry. It is undisputed that the Agreement between Kaiser and BCTC is a valid labor contract under 8(e) and (f). In enacting the exceptions, Congress intended to accommodate conditions specific to the construction industry, and there is no reason to expect the industry's defining features to depend upon the public or private nature of the entity purchasing contracting services. Absent any express or implied indication by Congress that a State may not manage its own property when pursuing a purely proprietary interest such as MWRA's interest here, and where analogous private conduct would be permitted, this Court will not infer such a restriction. Pp. 224-233.
935 F.2d 345, reversed and remanded.

BLACKMUN, J., delivered the opinion for a unanimous Court.


Given the 130+ PLA's allegedly negotiated by McCarron & Spencer, NYCDCC Carpenters have sacrificed enough. You will live with those agreements for the next 3-5 years with the ensuing 1-year warranty periods for any call-backs.

Tappan Zee & Hudson Yards need to be "hands off" with regard to the DC's newly elected team, executive committe members or council delegate body negotiating any side-deals with any trade council or contractor association or contractor ultimately selected crying wolfe that the project cannot be built without it.

First, the rank & file need to Vote down the proposed Final Contracts.

Second, the rank & file must hold the aforementioned party's feet to the fire for both Projects, both of which should be performed at the newly negotiated full contract rates which will follow the vote.

The Contractors and the Project Owners want the best workers for these projects and when you want the best, you have to to pay to get it!

Anyone sells out on these two projects, kiss your two-terms in office goodbye.