# Amicus Curiae Brief — Building & Constr. Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0177%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 507 U.S. 218 ## Text Sugreme Cou, aS .*s l 4 i k i> ¥ Nos. 91-261 “sad 91-27 APR 15 igee FICE OF THE CLERK In the Supreme Court of the United Sharer —— OCTOBER TERM, 1991 BRIEF FOR THE UNITED STATES AS AMICUS CURIAE JERRY M. HUNTER KENNETH W. STARR . , ’ ; ‘7 . (,eneral OUND SOL tor General D. RANDALL FRYE MAUREEN E. MAHONEY Acting Deputy Gene al Co nsel Depu = / IL OF (re ner NORTON J. COMI EDWIN S. KNEEDLER Deputy Associat | stant to the General Counsel ‘ Solicitor General De partment of Justice Washington, D.C. 205380 LINDA SHER Assistant General Counsel National La hor Re lations Boa rd (<02) o14- val? Washington, D.C. 20570 QUESTION PRESENTED Sections 8ie) and &8(f) of the National Labor Relations Act expressly permit private employers LO implement agreements requiring all contractors performing work on a construction project to adhere to a collective bargaining agreement that establishes labor.terms and union recogni- tion for the project as a whole’ The question presented is whether the doctrine of implied preemption under the NLRA nevertheless prohibits a state agency from acting in its proprietary capacity to implement such an agree- ment for a state public works construction project. LL CLL LA LLL LLL LL A te tit st lS. a TABLE OF CONTENTS Page Statement ............... . ae l ET RS 7 EE i 18 TABLE OF AUTHORITIES Cases: Aero Electric Vv. Watkins, No. CV 90-0075-E-EJL (D. Idaho May 14, 1991) 17 Associated Builders & Contractors vy. City of Seward, No. A91-001 (D. Alaska Mar. 20, 1991), appeal pending, No. 91-35511 (9th Cir.) 17 Associated General Contractors of America, Inc. (St. Maurice, Helmkamp & Musser), 119 N.L.R.B. 1026 (1957), review denied and en- forced sub nom. Operating Engineers Local Union No. 3 Vv. NLRB, 266 F.2d 905 (D.C. Cir.), cert. denied, 361 U.S. 834 (1959) 13 Building & Trades Council, et al. (Kaiser Engi- neers, Inc.), Case 1-CE-71, GC Advice Memo (N.L.R.B. June 25, 1990) . patie 5 Glenwood Bridge, Inc. V. City of Minneapolis, 940 F.2d 367 (8th Cir. 1991) ae 17 Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986) . me 6, 10 Golden State Transit Corp. ' V. City of Los Angeles, a 6, 10, 11 Jim MeNeff, Inc. v. Todd, 461 U.S. 260'1983) A) Laborers Vv. Curry, 371 U.S. 542 (1963) 18 Lodge 76, Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 182 (1976) 6, 8, 10, 11 Metropolitan Life Ins. Co. V. Massachusetts, 471 U.S. 724 (1985) ............. ' x Meyers Vv. Bethlehem Shipbuilding Ce Orp., 808 U. s. 41 (1938) . fines 18 Modern Continental Construction Co. V. Lowell, 465 N.E.2d 1173 (Mass. 1984) . a 4 (IIT) Cases—Continued : Page Phoenix Engineering, Inc. V. M-K Ferguson of Oak Ridge Co., No. Civ. 3-90-839 (E.D. Tenn. Mar. 22, 1991), appeal pending, No. 91-5527 (6th Cir.) San Diego Building Trades Council Vv. Garmon, 359 U.S. 236 (1959) 8, Teamsters V. Morton, 377 U.S. 252 (1964) United States Vv. Metropolitan District Comm’n, 757 F. Supp. 121 (D. Mass.), aff’d, 930 F.2d 132 (1st Cir. 1991) Wisconsin Dep’t of Indus. v. Gould, 475 U.S. 282 (1986) 14, 15, Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982) 9, Statutes : Clean Water Act, 33 U.S.C. 1251 et seq. National Labor Relations Act, 29 U.S.C. 151 et seq.: § 2(2), 29 U.S.C. 152 (2) § 7,29 U.S.C. 157 § 8(e), 29 U.S.C. 158 (e) 5, 6, 9, 11, 12, § 8(f), 29 U.S.C. 158 (f) 5, 6, 8, 9, 12, 42 U.S.C. 1983 Mass. Gen. Laws (& Supp. 1990) : Ch. 30, § 39M (1990) Ch. 149, §§ 44A-44L 1984 Mass. Acts 372 Miscellaneous: 105 Cong. Rec. 15,541 (1959) Hearings on S. 1973 Before the Subcomm. on Labor and Labor-Management Relations of the Senate Comm. on Labor and Public Welfare, 82d Cong.., Ist Sess. (1951) Labor-Management Reform Legislation: Hearings on S. 505, S. 748, S. 76, S. 1002, S. 1137, and 1311 Before the Subcomm. on Labor of the Sen- ate Comm. on Labor and Republic Welfare, 86th Cong., Ist Sess. (1959) S. Rep. No. 187, 86th Cong., Ist Sess. (1959) S. Rep. No. 1059, 82d Cong., 2d Sess. (1952) . ho ho nN WW bd 13 13 14 13 Iu the Supreme Court of the United States OCTOBER TERM, 1991 No. 91-261 3UILDING AND CONSTRUCTION TRADES COUNCIL OF THE METROPOLITAN DISTRICT, PETITIONER . ASSOCIATED BUILDERS AND CONTRACTORS OF MASSACHUSETTS / RHODE ISLAND, INC., ET AL. No. 91-274 MASSACHUSETTS WATER RESOURCES AUTHORITY AND KAISER ENGINEERS, INC., PETITIONERS Uv. ASSOCIATED BUILDERS AND CONTRACTORS OF MASSACHUSETTS ‘RHODE ISLAND, INC., ET AL. ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE This brief is submitted in response to the Court’s invi- tation to the Solicitor General to file a brief expressing the views of the United States. STATEMENT 1. The Massachusetts Water Resources Authority (MWRA) is a governmental agency authorized by the Massachusetts legislature to provide water-supply services (1) > and sewage-collection, treatment and disposal services for the eastern half of Massachusetts. Following a lawsuit arising out of the discharge of sewage into Boston Harbor in violation of the Clean Water Act, 33 U.S.C. 1251 ef seg., the MWRA was ordered by a federal district court to meet a detailed timetable to carry out the clean-up of the Harbor. It is estimated that this task, known as the es ~+ rn La rhy - (le: . - Project. will require the eXx- penditure of 56.1 Dillion for public works over a ten-vear period Se€ oi Z Stati \ V etropolita Distr Comm’? 757 F. Supp. 121, 123 D. Mass. aff’d. 9380 . * F.2d 132 (1st Cir. 1991 an The rit I I ir] I ne role re f TO) h ? MWRA’s enabling statute, 1984 Mass. Acts 372, and Commonwealth’s public bidding laws, Mass. Gi Laws ch. 149, $$ 44A-44L & ch. 30, §39M (& Su 19a) as Pet Ann. 20 Pursu an 4 +r +} e ] Ws MWRA ovides the funds fo) : e and federal! grat ‘ wards. MWRA Pet. App. 3a, 74a. 2. In April 1988, MWRA retained Kaiser Engineers, —_ 4 .. . “4 . y + ws ot . + ‘ . Ine Kaiser’), a rivate construction | : ’ : y ‘ ’ ’ ’ y pro a nme ’ ] cy? mana >) K : Ti ~ ’ ’ l] 7 . ’ ‘ ’ ] = = rhe ’ y ng , 7 .% +} ‘ W . : ——T "torr } * r) « ~ | Aa’ a ’ ‘ i Gail Ai ia y 4 a alidat - . . : ; ‘ : | oa 4 >» @ ‘ ‘ - ‘ VV » TO) ne qura I ne projet Wi VV Ive need wor tonpnag nd inf i ] ex rie ce Work “ie nages ‘ Yr. y MWR I ne I A SS ‘ ata v4 \ ~ | ne- erne ] ‘ ’ nme ~ ‘ ’ ’ + Im! ’ > ’ rere? ’ ‘ A ine? r ‘ 3 to numerous delays, thus placing the court-ordered time schedule in jeopardy and subjecting MWRA to contempt citations, These concerns were heightened by the limited access to the major work site, Deer Island, which would enable a sma]! number of pickets to stop the entire project. MWRA Pet. App. 3a-4a, 74a-75a. Aware of these concerns, Kaiser recommended to MWRA that it be permitted to negotiate with unions in the building and construction trades, through the Build- ing and Construction Trades Council (Council), in an ef- fort to arrive at an agreement that would assure labor stability over the life of the project. Any agreement would be subject to review and final approval by MWRA. MWRA Pet. App. 75a, 105a. MWRA accepted Kaiser’s recommendations, and in May 1989, Kaiser and the un- ions negotiated an agreement—the Boston Harbor Waste- water Treatment Facilities Project Labor Agreement (the Master Labor Agreement). See id. at 107a-140a. The Master Labor Agreement states that it is the policy of MWRA that “the construction work covered by this Agreement shall be contracted to Contractors who agree to execute and be bound by the terms of this Agreement.” MWRA Pet. App. 109a. It requires all contractors to recognize the Council as the bargaining representative for all craft employees performing work on the project, to hire workers through the hiring halls of the Council’s constituent unions, to require hired workers to join the relevant union within seven days, to follow specified dispute-resolution procedures, to apply the Council’s wage, benefit, seniority, apyrensiceship and other rules, and to make contributions to the Council unions’ benefit funds. In return, the unions agreed not to engage in any strikes or work stoppages during the ten-year life of the project. /d. at 5a-6a, 32a, 75a. On May 28, 1989, MWRA approved the Master Labor Agreement as the labor policy for the project and directed > that Specification 13.1 be added to the bid specifications ~ for all new construction work.2 MWRA Pet. App. 5a, 75a. Specification 13.1 provides, in pertinent part, that: [E]ach successful bidger and any and all levels of subcontractors, as a condition of being awarded a contract or subcontract, will agree to abide by the provisions of the [Master Labor Agreement] as exe- cuted and effective May 22, 1989, by and between [Kaiser], on behalf of [MWRA], and the | Trades Council] * * * and will be bound by the provisions of that agreement in the same manner as any other provision of the contract * * *. Id. at 141a-142a. Successful bidders are accordingly re- quired to abide by the Master Labor Agreement, but the bidding is not restricted to union contractors. The speci- fications provide that any qualified bidder may compete for a contract, without regard to whether the contractor has a pre-existing bargaining relationship with a union, and the contract must be awarded to the lowest qualified bidder. Nonunion bidders are also not required to sign any other agreement with any unions for other projects. In addition, although a contractor must agree to use the local union’s job referral system for labor on the project (or to give preference to applicants referred by the local union if the union has no such referral system), the job referral system must be operated in a non-discriminatory manner so that employees who are not already union members are nevertheless eligible for project work. MWRA Pet. App. 103a-104a, 110a, 116a-117a. 38. On March 5, 1990, respondent Associated Builders and Contractors of Massachusetts/Rhode Island (ABC)— 2 Massachusetts law expressly requires the MWRA, as well as other procuring agencies, to award contracts pursuant to a com- petitive bidding process. See page 2, supra; Pet. App. 3a; Modern Continental Construction Co. Vv. Lowell, 465 N.E.2d 1173 (Mass 1984). a —_ - ———— ee ——-_- —- — —_— — -—- -— — ee ee an association of nonunion contractors—filed this s the United States District Court for the Distri sachusetts seeking an injunction barring enforceme Bid Specification 13.1 on the ground, inter a impermissibly interferes with the system of free coll bargaining contemplated by the National Labor Ri Act (NLRA). On April 11, 1990, the district court sued a memorandum and order rejecting AB‘ emption and other claims, and denied a preliminar junction. MWRA Pet. App. 72a-83a. In the meantime, another contractors’ associatio1 Utility Contractors Association of New Englan an unfair labor practice charge with the National L: Relations Board (NLRB), alleging that Kaiser's agreement with the Council violates the NLRA. On J 25, 1990, after the district court had ruled, the Gs Counsel of NLRB refused to issue a complaint, fir that the agreement is lawful under the constructior dustry proviso to Section 8(e) of the NLRA, 29 U.S. 158(e), and is a valid prehire agreement und 8(f), 29 U.S.C. 158(f). See Building & Trades C et al. (Kaiser Engineers, Inc.), Case 1-CE-71, GC Ad Memo (reproduced at MWRA Pet. App. 88a-93a 4. On October 24, 1990, a pane! of the Fir reversed the district court’s decision, agreeing with AB' contention that MWRA’s Bid Specification 13.1 empted by the NLRA. MWRA Pet. App. 49a-7] rehearing en banc, the court of appeals, by a adhered to that ruling. Jd. at la-48a.* The en bane majority believed that “the preser is most heavily influenced by the Supreme Court’s %’ After issuance of the panel’s “ecision, the district « a preliminary injunction barring enforcement of Bid Spe 13.1. The en banc court continued that injunctior rehearing. MWRA Pet. App. 86a-87a. The ultimats the en banc court, which affirmed the panel’s dé that injunction in effect. Jd. at 3la ings in the Golde» State Transit Corp. cases,‘ which re- lied and expanded upon the Machinists doctrine.’ * MWRA Pet. App. 15a. It understood “the lesson of the Golden State cases |to be] that, where interference into the collective bargaining process by the state is direct, an asserted state interest of the type at issue here, whether ‘proprietary’ or otherwise, cannot justify the interfer- ence.” Jd. at 30a. In this case, the majority concluded that Bid Specification 13.1, by requiring all contractors to comply with the Masier Labor Agreement negotiated by Kaiser, constitutes direct interference with the collective bargaining process. Jd. at 17a. The majority recognized that Sections 8(e) and 8(f) of the NLRA expressly per- mit such special contractual arrangements in the con- struction industry, id. at 22a-24a, and that under those provisions, “the Master Labor Agreement between the Trades Council and Kaiser is a valid labor contract.” Jd. at 24a. But it found the legality of the agreement itself to be “irrelevant” to the question whether Bid Specifica- tion 13.1—by which MWRA requires adherence to that agreement—is preempted. /d. at 24a-25a. In dissent, Chief Judge Breyer, joined by Judge Camp- bell, believed the “‘only question in this case is whether the NLRA forbids the MWRA, because it is a state agency, to do what the Act explicitly permits a private contractor to do.” MWRA Pet. App. 32a. In his view, far from upsetting the balance between labor and management that Congress intended, the MWRA’s contracting decision affects labor-management relations “only to the extent that Congress foresaw and (with respect to general con- tractors) explicitly authorized” in Sections 8(e) and 8(f). Pet. App. 34a. * See Golden State Transit Corp. v. City of Los Angeles, 475 U.S 608 (1986) (Golden State I), and Golden State Transit Corp. v City of Los Angeles, 493 U.S. 103 (1989) (Golden State 71). - 5See Lodge 76, Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976). DISCUSSION In our view, the court of appeals erred. It should have fcund that Massachusetts did not exceed its legitimate authority to specify the terms and conditions for contract- ing on its own public works project. Implied preemption under the NLRA is inappropriate in this context because the Commonwealth has not sought to regulate collective bargaining in Massachusetts. It has only sought to exer- cise a proprietary right that Congress expressly conferred on private employers—the right to require all contractors working on a construction project to adhere to a collective bargaining agreement with a union. The NLRA was de- signed to avoid undue interference in the States’ conduct of their own affairs by excluding States from the defini- tion of “employers” covered by the Act, yet the decision below expands the implied preemption doctrine to deny States rights that are afforded even to private employers. Although there is as yet no conflict in the decisions of the courts of appeals, we believe that the issue is of such substantial importance that review is warranted. This Court’s precedents do not clearly resolve the pre- emption issue that is thoroughly discussed in the divided opinions of the en bane court below. This uncertainty poses significant difficulties for States seeking to assure stability in the performance of their public works proj- ects. In this case alone, the decision has nullified a key contractual provision in the massive public works project for the clean-up of Boston Harbor—a project that must be completed according to a schedule established by the judgment in a suit brought by the United States to rem- edy substantial violations of the Clean Water Act. The decision similarly threatens the validity of other project agreements that have been utilized in connection with construction of a wide variety of other major public works across the country, and will serve to deter the States from utilizing such terms in new public warks projects until the issue is finally settled. We therefore a believe that it is appropriate to grant certiorari in this case. 1. The holding by the court of appeals majority that federal law preempts MWRA’s requirement that contrac- tors on MWRA’s construction project abide by the labor agreement previously negotiated by its construction man- ager rests primarily on that branch of NLRA preemp- tion law known as Machinists preemption. MWRA Pet. App. 15a, 30a; see Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 1382 (1976); see also Team- sters V. Morton, 377 U.S. 252 (1964). This Court has ex- plained that the Machinists doctrine is designed “to gov- ern pre-emption questions that arose concerning activity that was neither arguably protected * * * nor arguably prohibited” by the NLRA’s specific terms. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 749 (1985).° Under that doctrine, the courts must determine if a State’s regulation of conduct conflicts with Congress’s in- tention that certain labor-related conduct remain “un- regulated” and left to “the free play of economic forces.” Machinists, 427 U.S. at 140. * The Machinists doctrine is distinct from the other major branch of NLRA preemption doctrine—Garmon preemption—which gov- erns cases involving state regulation of conduct that is either argu- ably protected or arguably prohibited by the NLRA’s specific regu- latory terms. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959); see also Metropolitan Life Ins. Co. Vv. Mass- achusetts, 471 U.S. at 748-751 (describing “two distinct NLRA preemption principles”). Although relying primarily on the Machinists doctrine, the ma- jority below expressed the view that the Garmon preemption doc- trine also “most likely applies to Specification 13.1.” MWRA Pet. App. 30a: see also id. at 15a, 2la. The only explanation for this view was an assertion that the agreement’s provision for union recognition interferes with employee rights under Section 7 of the NLRA, 29 U.S.C. 157. Pet. App. 2la. However, as we explain at pages 9-10, infra, Section 8(f) of the NLRA specifically sanctions prehire agreements in the construction industry and protects em- ployee free choice by permitting employees to file a petition for a representation election during the term of such an agreement. The state action in issue here does not cause any impermissible interference with federal labor policy, be- cause the use of binding project labor agreements in the construction industry is specifically sanctioned by Sec- tions S(e) and Sif) of the NLRA. Section 8(e) ordi- narily prohibits agreements between an employer and a union that preclude an employer from doing business with any other party, such as a non-union contractor. The section contains a “construction industry proviso,” however, which nevertheless permits preclusive arrange- ments between a union and an employer in the construc- tion industry that concern the contracting or subcontract- ing of work to be performed at a construction jobsite. Furthermore, Section 8(f) of the NLRA also adopts a special rule of labor relations for the construction in- dustry by permitting “prehire agreements” under which employers will recognize unions as bargaining representa- tives of employees who have not yet been hired.’ Operating together, Sections 8(e) and 8(f) validate project labor agreements in the construction industry— collective bargaining agreements that establish labor terms and union recognition for a construction project as a whole, and that require all contractors and subcon- tractors who are subsequently engaged to work on the project to agree to be bound by the agreement’s provi- sions. See Jim McNeff, Inc. v. Todd, 461 U.S. 260, 265- 266, 270 n.9 (1983); Woelke & Romero Framing, Ine. V. NLRB, 456 U.S. 645, 659-660 & n.12, 662, 663 & n.15 (1982). Accordingly, both the majority and the dis- senters below agreed that there would have been no in- terference with or distortion of the economic forces that Congress expected to govern labor relations in the con- struction industry if the project labor agreement chal- * To protect ¢mployee free choice, however, Section 8(f) contains a proviso that permits employees, once hired, to utilize the NLRB election process if they choose to reject the bargaining representa- tive, or to cancel the union security provisions of the prehire agreement. 10 lenged in this case had been entered into solely by a pri- vate general contractor such as Kaiser. MWRA Pet. App. 24a, 34a-35a. They disagreed, however, on whether it makes a difference that an agency of the Commonwealth of Massachusetts (MWRA), rather than a private party, authorized negotiation of the agreement and then ef- fectuated it by requiring contractors to adhere to its terms as a condition of performing work on the state- owned project. Id. at 27a-28a, 35a, 40a-41a. 2. a. In finding MWRA’s Bid Specification 13.1 pre- empted, the majority relied principally upon this Court’s decisions in the Golden State cases. See note 4, supra. In Golden State I, the Court held that the city’s action in conditioning renewal of the company’s taxicab operat- ing license on the company’s settlement of its labor dis- pute with the union by a certain date was preempted by the NLRA. The Court reasoned that the city had “|en- tered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced” by setting “time limits on negotiations [and] economic struggle.” 475 U.S. at 616 (quoting Machinists, 427 U.S. at 149). In Golden State II, the Court held that the company was entitled to sue for compensatory damages under 42 U.S.C. 1983, because the city’s action in vio- lating the company’s “right to use permissible economic tactics to withstand the strike” deprived it of “a personal liberty” guaranteed by federal law. 493 U.S. at 112. The majority below read the Golden State cases as es- tablishing an absolute rule that “where interference into the collective bargaining process by the State is dtrect, an asserted state interest of the type at issue here, whether ‘proprietary’ or otherwise, cannot justify the in- terference.” MWRA Pet. App. 30a. The Golden State decisions, however, do not create any absolute preemption policy. Rather, the test under Golden State is avhether the State has “[entered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced.”’ Golden State l, A75 U.S. 616 (emphasis 1] added) (quoting Machinists, 427 U.S. at 149). Thus, the Golden State decisions require inquiry into whether the particular state action conflicts with an intention by Congress to leave the specific conduct involved to the free play of economic forces. In this case, the dissenting judges below correctly concluded that MWRA’s actions are in all relevant respects indistinguishable from those of private contractors that are expressly permitted by the NLRA despite their potential impact on the free play of economic forces between other contractors and their employees on a construction project, and that those ac- tions do not affect the NLRA’s operation in any ways un- intended by Congress. The first step in the Golden State/Machinists analysis is to identify the precise right that the NLRA assertedly ‘protect|s| against governmental interference.” Golden State II, 493 U.S. at 108. In the view of respondents and the majority below, the protected right is the right of contractors “to negotiate their own terms of employment or to operate on a non-union basis.” Br. in Opp. 4; MWRA Pet. App. 18a, 21a. Although employers in other industries may have that right, the construction indus- try proviso to Section 8(e) limits both the legal right and practical ability of contractors in that industry to order their own labor relations. By virtue of the proviso, a general contractor has the right to require all other em- ployers working on a particular jobsite to adhere to the terms of a master labor agreement it has entered into with union representatives. Accordingly, the nonunion contractors that are members of respondent ABC would have had no right protected by the NLRA to obtain work on a nonunion basis at the Boston Harbor Project if it had been privately owned, if the owner had retained Kaiser as its general contractor, and if Kaiser, in turn. had entered into a project agreement identical to that challenged here. It follows that MWRA is trenching o: no right accorded by the NLRA to nonunion (or other) contractors by requiring them, as a condition of obtain- @ . £ 12 ing work on the project, to abide by the union agreement that Kaiser negotiated with MWRA’s approval. b. The majority below in fact acknowledged that “un- der the exceptions established by Sections 8(e) and 8(f) of the Act, the Master Labor Agreement between the Trades Council and Kaiser is a valid labor contract.” MWRA Pet. App. 24a. But it found that conclusion to be “ir- relevant to the preemption issue at hand,” because the “history of Sections 8(e) and 8(f) discusses private em- ployers only,” and nowhere “is there any indication that a state would be allowed to impose this type of regula- tion.” Pet. App. 24a-25a. The majority also believed that “Congress is perfectly capable of distinguishing between states and private parties when it chooses, and it has so chosen here,” since Sections 8(e) and 8(f) refer to an “employer,” and Section 2(2) (29 U.S.C. 152(2)) ex- cludes from the definition of that term “any State or political subdivison thereof.” Pet. App. 27a. However, as Chief Judge Breyer pointed out in dissent, “Congress had two perfectly good reasons for not making the construction-industry exceptions explicitly applicable to states, and neither of these reasons suggests any pre- emptive intent.” MWRA Pet. App. 41a. First, “the list of forbidden practices, to which the exceptions apply, itself applies only to an ‘employer,’ defined to exclude ‘any State,’ thereby leaving the regulation of labor rela- tions between a state and its own employees primarily to state law”; accordingly, a “drafter, writing a statutory exception to the resulting prohibition, would not normally extend its scope beyond those subject to the prohibition in the first place.” Ibid. Second, when Congress enacted the construction industry exceptions in 1959, it “had little reason to believe that a court might find, hidden in the silence of the Act, some other relevant prohibition applicable to a state.” Ibid. Further, this Court has concluded that when Congress enacted Section 8(e)’s construction industry proviso and Section 8(f), it intended to preserve the existing “pat- 13 tern of collective bargaining in the construction indus- try.” Woelke & Romero, 456 U.S. at 657. It therefore is significant that in the detailed testimony preceding en- actment of those provisions, the pattern described for construction of public works (e.g., dams, roadways, and bridges) was no different from that for purely private projects.* In addition, the reasons identified in the legis- lative history for authorizing prehire bargaining in the construction industry—the special circumstances making meaningful posthire collective bargaining difficult, the general contractor’s need to predict labor costs, and the contractor’s need to have available a steady supply of 8 See, e.g., Hearings on S. 1973 Before the Subcomm. on Labor and Labor-Management Relations of the Senate Comm. on Labor and Public Welfare, 82d Cong., 1st Sess. 27, 29, 31, 35, 39, 45 (1951); see also Council Pet. 11 (discussing Labor Department study concluding that project agreements have been used for many decades on both private and public development projects). The Court in Woelke & Romero also relied (456 U.S. at 658-659 & n.11) on the discussion in the legislative history of Associated General Contractors of America, Inc. (St. Maurice, Helkamp & Musser), 119 N.L.R.B. 1026 (1957), review denied and enforced sub nom. Operating Engineers Local Union No. 3 v. NLRB, 266 F.2d 905 (D.C. Cir.), cert. denied, 361 U.S. 834 (1959). That case involved a union agreement governing construction work on Travis Air Force Base in California that was undertaken pursuant to a contract with the Army Corps of Engineers. 119 N.L.R.B. at 1027, 1049; 266 F.2d at 906. See also 105 Cong. Rec. 15,541 (1959) (Mem. of Reps. Thompson and Udall, cited in Woelke & Romero, 456 U.S. at 662 n.13) (“the building trades unions and contractors follow the practice of working out a scale of wages and other terms of employment which will be applicable to all projects within a specified geographical area for a substantial period of time,” and “(tjhis practice has been encouraged by the Atomic Energy Com- mission and other Government agencies’) ; Labor-Management Re- form Legislation: Hearings on S. 505, S. 748, S. 76, S. 1002, 8S. 1137, and S. 1311 Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfzre, 86th Cong., Ist Sess. 496 (1959) (testimony of Richard J. Gray, President of Building and Construction Trades Department, AFL-CIO, quoting S. Rep. No. 1509, 82d Cong., 2d Sess. 3-4 (1952)) (the “United States Govern- ment * * * is directly concerned in the proper pricing and completion 14 labor °—hold true whether it is a public contractor or a private contractor that lets the contracts for the work. This background greatly undermines the court of appeals’ and respondents’ notion that Congress, without saying so, intended to deny the States and their political subdivi- sions the benefits of agreements permitted by Sections S(e) and 8(f) when they act in a proprietary capacity. By contrast, we share petitioners’ view that the posi- tion of the majority below would frustrate congressional intent and produce arbitrary distinctions in prehire prac- tices within the construction industry. Whether there is a prehire union agreement covering an entire project “would often reflect, not size of the project, or desire of the parties, or special conditions of the industry, but simply whether or not the entity letting the contracts is an arm of the state or private.” MWRA Pet. App. 40a. And even among state projects, “the presence or absence of such an agreement would depend upon whether state law permits the state in question to have a private con- tractor (who, then, presumably, would be free to enter into a prehire agreement), or, as in Massachusetts, re- quires the state agency to sign the relevant contracts itself.”” Id. at 40a-41a. e. The court of appeals majority also believed that its holding was supported by Wisconsin Dep’t of Industry Vv. Gould, 475 U.S. 282 (1986), which heid that a Wisconsin statute debarring certain repeat violators of the NLRA from doing business with the State was preempted by the NLRA. See MWRA Pet. App. 25a-30a. In rejecting the contention that the State was merely acting as a pur- chaser of services, the Court acknowledged that “[n]oth- ing in the NLRA * * * prevents private purchasers from f construction projects for defense installations and production I ties ! prehire agreements are important for “large pr ts, particularly for defense installations and plants” * See, e.g., S. Rep. No. 187, 86th Cong., Ist Sess. 27-29 (1959 reproduced at MWRA Pet. App. 46a-48a); see also Pet. App. 37a 1Oa Brever + J . dissenting 15 boycotting labor law violators,” but added that “[t]he Act treats state action differently from private action * * * because in our system States simply are different from private parties and have a different role to play.” 175 U.S. at 290. Gould, however, is clearly distinguishable from this case. The state debarment rule in Gould “serve[d] plainly as a means of enforcing the NLRA,” and “[nJo other purpose could credibly be ascribed” to it. 475 U.S. at 287. Here, by contrast, MWRA is not seeking to enforce the NLRA, punish NLRA violators, or further any regu- latory role. It seeks only to protect its own proprietary interests in the stable and efficient development of a major governmental project, and it does so, as a private de veloper would, through lawful arrangements relating to project labor agreements. Indeed, the labor agreement in issue here actually was negotiated, apparently without direction from MWRA, by Kaiser, the private construc- tion manager and general contractor that MWRA selected. Nothing in Gould suggests that where, as here, the State is seeking to further its legitimate proprietary concerns through an arrangement expressly authorized by the NLRA, its action nevertheless is preempted. To the contrary, the Gould Court specifically noted that it was “not say{ing| that state purchasing decisions may never be influenced by labor considerations,” and that it was “not faced here with a statute that can even plausibly be defended as a legitimate response to state procurement constraints or to local economic needs.”’ 475 U.S. at 291. This case directly implicates those concerns, and thus presents the issue left open by Gould. e 3. We recognize that the First Circuit decsion does not. * conflict with the decision of any other court of appeals, but we nevertheless believe that review by this Court is war- ranted. The preemption analysis adopted in this case has invalidated a major contractual undertaking by the Com- monwealth of Massachusetts, and thereby threatened the 16 timely, cost-effective clean-up of the Boston Harbor.” The decision also casts doubt on the validity of similar project labor agreements that have been utilized for the construction of a wide variety of public projects (both state and federal), including hospitals, tunnels, airports, convention centers, hydroelectric projects, waste treat- ment facilities, and mass transit systems. See Council Pet. 12-18 & n.5: MWRA Pet. 12; California, et al., Amicus Br. 2 n.1."' In the circumstances of these proj- ects, the responsible governmental entities, including fed- eral agencies, found that such agreements were important to ensuring stability, an available labor supply, and timely completion of major construction projects needed to further substantial public purposes. The undertaking of such public projects is a central function of state and 19 We are advised that the unions have only agreed to continue to honor the agreement pending the outcome of the proceedings in this Court. If certiorari is not granted, the unions may seek to repudiate the agreement, on the premise that a fundamental term of the bargain has been invalidated. 11 Respondents attempt (Br. in Opp. 5) to distinguish between “union-only” project agreements and those that “establish certain conditions of employment without interfering in the process of collective bargaining.” They assert that “there is no evidence in the record of this case that ‘union-only’ project agreements are ‘widely-used’ by state or local governments anywhere in the coun- try.” However, as the Unions point out (Council Reply Br. 4-5), respondents “offer no evidence that there are, in actual practice, two distinct types of project labor agreements, or that in the public sector, use of the supposedly ‘less offensive’ type of agreement pre- dominates.” Indeed, the Baltimore Harbor Tunnel Thruway agree- ment (see C.A. App. 451), the only agreement cited by respondents as an example of the supposedly “less offensive” type, requires all contractors to abide by a collective bargaining agreement and recog- nize, union representation of their employees. See C.A. App. 455, 462-463. Moreover, as the Council observes (Reply Br. 5), “a public entity’s decision to require contractors to adhere to a supposedly ‘less offensive’ project agreement—which is still a collectively bar- gained agreement that ‘establish[es] certain conditions of employ- ment’ * for all project work”—would also appear to be unlaw- ful under the First Circuit’s reasoning. 17 local governments. Such projects therefore “implicate ‘interests so deeply rooted in local feeling and responsi- bility,’ that pre-emption should not be inferred.” Gould, 475 U.S. at 291 (quoting Garmon, 359 U.S. at 243-244). A number of similar challenges have in fact been filed in at least three other circuits. These cases indicate that the issue is a recurring one, that this Court will ulti- mately have to resolve the question, and that deferring review has highly adverse consequences for state and local governments. Relying on the decision below, led a divided panel of the Eighth Circuit recently enjoined the City of Minneapolis from using a project Jabor agreement in its construction of a new municipal bridge. See Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367 (1991 Challenges to public works projects carried out under sim- ilar arrangements are a now pending in two other circuits where the preemption claims were rejected by the district courts. Phoenix Engineering, Inc. v. M-K Ferguson of Oak Ridge Co., No. Civ. 3-90-8389 (E.D. Tenn. Mar. 22, 1991), appeal pending, No. 91-5527 (6th Cir.) (rejecting claim that NLRA prohibited involvement by Department of Energy in project labor agreement for construction services at Department’s Oak Ridge Operations); Avreo Electric v. Watkins, No. CV 90- 0075-E-EJL (D. Idaho May 14, 1991) (rejecting claim that NLRA bars project labor agreement on Department of Energy project }: Associated Builders & Contractors v. City of Seward, No. A91-001 (D. Alaska Mar. 20. 1991), appeal pending, No. 91-35511 (9th Cir. grant- ing summary judgment in favor of the city). Although } 7 | ' other circuits may ultimately reject the view of the First and Kight Cireuits, there is no reason to exnect the en There is no merit to respondents’ contention (Br. in Opp. 15 that this Court should not nt revi because the court of ’ ) : ] } . . > } . . peals’ decisior a endered <¢ ei rom the denial of a pre pad © 4 CONCLUSION The petitions for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General JERRY M. HUNTER MAUREEN E. MAHONEY General Counsel Deputy Solicitor General D. RANDALL FRYE EDWIN S. KNEEDLER Acting Deputy General Counsel Assistant to the NorRTON J. COME Solicitor General Deputy Associate General Counsel LINDA SHER Assistant General Counsel National Labor Relations Board APRIL 1992 liminary injunction and the case is therefore at an interlocutory stage. The court of appeals has decided that MWRA may not re- quire prospective contractors to adhere to the project agreement as a condition of bidding for work. That decision, which was ren- dered first by a panel and then by the court sitting en banc, deter- mines with finality the legal issue of federal preemption tuvolved in this case. In these circumstances, the issue is ripe for review by this Court. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51 (1938); see also Laborers v. Curry, 371 U.S. 542, 552 (1963). W v. S. GOVERNMENT PRINTING OFrica, 1902 312324 45368 C—O ~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0177%3A08. Public record. Not legal advice.