Amicus Curiae Brief — Building & Constr. Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc.

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Text

Nos. 91-261 and 91-274

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

MASSACHUSETTS WATER

AND KAISER ENGINEERS, IN‘

ON WRITS OF ¢ eit iRi Te HI

COURT OF APPEALS FOR THI!

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

KENNETH W. STARR

Sol citor (v6 rhe ral

|AHONEY

JERRY M. HUNTER

Ge ite ral ¢ Oilrse / é] j 0 4 n? (oi YLé ral

YVONNE T. DIXON EDWIN S. KNEEDLER

Acting De puty er neral is etsy j Fhe NS licitor

Counse i Ge bhé ral

NICHOLAS E. KARATINOS

Acting Associate (rene ral

/ ,

(_ounsel

NORTON J. COME

De p if Y Associate (6 rNé ral

Counsel

LINDA SHER

Assistant (,ene ral ("nw R6 l

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRE

and Sif) of 1

) ‘ e) ne s

construction

ISENTED

he National Labor Pela-

S.C, 158(e) and (f), expressly permit

rs tO implement agreements requiring all

form) Wi rk on a construction project to

ective bargaining agreement that estab-

nd union recognition for the project

question presented is

ne of implied preemption under the

acting in its proprietary

uch an agreement for a

project :

TABLE OF CONTENTS

Interest of the United Stat«

Statement

Summary of argument

Argument:

The National Labor Relations Act does not im

pliedly preempt a state agency from implementing

a collective bargaining agreement that establishes

labor terms and union recognition for a state con

struction projec

A. The master labor agreement between Kaiser

Engineers and the Building and Construction

Trades Council is authorized by Sections 8(e)

and 8(f) of the Act

B. Bid specification 15.1, by which MWRA imple

ments the master labor agreement between

Kaiser and the Council, is not preempted by the

NLRA

1. The doctrine of implied preemption under

the NLRA does not apply to bid specification

13.1

2. The text, background, and purposes of the

relevant provisions of the NLRA cut strongly

against extension of the implied preemption

doctrine to invalidate bid specification 13.1

Conclusion

TABLE OF AUTHORITIES

Cases:

Abood V. Detroit Board of Educe., 431 USS. 209

(1977)

A ssociate d B rilde rs AG ( ‘ont ractors V. ( ‘at U of

Seward, No. 91-35511 (9th Cir. June 5, 1992) ..9

(III)

s ,

Page

18, 24

forced h () j /

\ \ VLRB A 4 (D

Cir.). cer enied, 361 U.S. 834 ( 2D

BR / ( K /

[ne Case 1-CE-71, GC Ad V1 25

L990) ,

B Hot l LOe

U.S. 491 (1984) 2

j l \ N.L.R.B

646 (1951) f

( ( Vv. P | c Ss

j n Local N 10, 421 U.S. 616 (1975 24

ty of Yakima Vv. ¢ der ] B

of the Yakima ] an Na 112 bS. ¢ 635

(1992 <

Del E. Webb Const ( 5 NLRB. 75

(1951) rt |

D Se VLRB, 635 F.2d 859

(T).¢ (1! 1980) cert. denied 51 U.S. 976

(1981) ,

‘ ‘ }

Glenwood Bridae. Inc. v. City VJ ean 940

F.2d 367 (8th Cir. 1991) 9

175 U.S. 608 (1986) 6,38, 15, 16,17

493 U.S. 103 (1989) 6, 16, 2]

Gregory V. Ashcroft, 111 S. Ct. 2395 (1991) 14

Guy F. Atkinson & J.A. Jones Constr. Co., 84

N.L.R.B. 88 (1949) 27

International Ladies’ Garment Work: [’

NLRB, 366 U.S. 731 (1961) 12

Jim McNeff, Inc. Vv. Todd, 461 U.S. 260 (1983) 11-12,

] diane f Internatii al 4 f Van, J \

Wisconsin Employment Relations Cor 127

U.S. 132 (1976) 6, 7, 15, 16, 17, 2

Metropolitan Life Ins. Co. ¥. Massachusetts, 471

U.S. 724 (1985) 15, 16

Vads } (' f tal Consti a we. Lowell, 165

NLRB yv. International Ass'n of Bridge & Iron

Workers, 434 U.S. 335 (1978) 10, 11,

VLRB v. Nash-Finch Co., 404 U.S. 138 (1971)

Nat al Woodwork Mfrs. Ass’n Vv. NLRB, 386

NV, York Vv. United States, No. 91-543 (June 19,

New York Telephone Co. v. New York State Dep’t

f Labor, 440 U.S. 519 (1979)

Pho Engineering, Inc. V. M-K Ferguson of Oak

Ridge’ Co., No. 91-5527 (6th Cir. June 11,

]

992) ° 9, 17-18, 20

Ree Ine. V. Stake, 447 U.S. 429 (1980) 20

S DD 10 Building Trades Council Vv. Garmon.

359 U.S. 236 (1959) 16, 20, 29

Teameti Vv. Mort 377 U.S. 252 (1964) 15

/ fed State \ Vi tropoli an District Comm'n,

757 F. Supp. 121 (D. Mass.), aff’d, 930 F.2d

132 (Ist Cir. 1991) Z

W.B. Willett Co., 85 N.L.R.B. 761 (1949) 27

Wiscons Dep’t of Industry vy. Gould, Inc., 475

U.S. 282 (1986) 8 18 19. 20. 29

Woelke & Romero Framing, Inc. V. NLRB, 456

U.S. 645 (1982) 13, 21, 24, 25

titution and statutes:

U.S. Const. Amend. XIV 5

Clean Water Act, 33 U.S.C. 1251 et seq. 2

Employee Retirement Income Security Act of

1974, 29 U.S.C. 1001 ef seq. 5

Labor-Management Relations Act, § 303, 29 U.S.C.

187

Labor-Management Reporting and Disclosure Act

if 1959, Pub. L. No. 86-257, 73 Stat. 519:

Stat. 543-544

3 Stat. 545

. 704 (b). 73

~ (U0O(a),

Mis

' , y

r Relations Act. ?9 U.S. 1D] ef

» POUS.( 15d? (2)

7,29 U.S.C. 157 11.15

7 rg | “~ f 158

R(ad(1),29 U.S.A LoS(a) (1)

. } (2), 29 U.S.C. 158 (a) (2)

Rib) (INA) gTTS ( IR ib) f »(A)

ie) gi Ss ( 158 (e) |. d,. 6, 7.8.9

15, 14, 18, 20

8(f),29 U.S.C. 158(f) 1, 5, 6.7, 8,9, 10.11.

14, 16, 18, 20, 21, 22

G9(c), 29 U.S.C. 159 (¢)

2990 TT SC 159 (e)

15 U.S.C. 1

Yie).

Sherman Act,

12 U.S.C. 1983

Mass. Gen. Laws (1989)

144-441,

39 (1989 & Supp. 1990)

149, $$

" ~‘

)

1 oU,

Ch.

Org

L984 Mass Ac ts 4

‘ellaneous:

Qe Cong. Ree

p. 15,541

pp. 17,899-17 209

H.R. Conf. Rep. No.

(1959)

H.R. Rep. No. 741, 86th Cong..,

Labor-Management Reform Leaislation:

lL] 17, 86th lst Sess

Cong.,

Ist Sess. (1959)

Hea? y gs

on H.R. 3540, etc., Before a Joint Subcomm. of

the House Comm. on Education and Labor, 86th

Cong., let Sess. (1959)

Labor-Manaae ie nt Re form Le aislation ky He arings

hefore the Lahor

C‘omm. Of Laho and Public Wi le

(1959)

é [c.. S theoamm. On

OT the Nenate

Sess.

fare, 86th Cong., Ist

Page

pel

—

Cs |

(195

Bef

Iu the Suprenwe Court of the Wuited States

OCTOBER TERM. 1992

No. 91-26]

BUILDING AND CONSTRUCTION TRADES COUNCIL

OF THE METROPOLITAN DISTRICT. PETITIONER

ASSOCIATED BUILDERS AND CONTRACTORS O]

VIASSACHUSETTS RHODE ISLAND. INC.. FT AL.

No. 91-274

\MIASSACHUSETTS WATER RESOURCES AUTHORITY

AND KAISER ENGINEERS, INC.. PETITIONERS

ASSOCIATED BUILDERS AND CONTRACTORS O}

MASSACHUSETTS RHODE ISLAN INC., ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The First Circuit in this case held that the doctrine of

implied preemption under the National Labor Relations

Act, 29 U.S.C. 151 et seq., precludes the state agency

responsible for construction of the Boston Harbor clean-up

project from exercising a proprietary right that Congress

expressly conferred on private employers in Sections 8(e)

and &(f) of the Act, 29 U.S.C. 158/e) and (f namely,

the right to require ail contractors working on a construc-

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il Na VV ‘ C ire

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witn tne

he project. MWRA’s

empiovees

ign tne niring Nalis

to require hired work-

seven days, to follow

ss, to apply the Coun-

nticeship and other

he Council unions’

of the project. /d. at 5a-6a, 32a, 75a. The Agreement

attare] ‘ . . , > oly: +. ‘ \J rp ‘ 1]

affords a number of other advantages to MWRA as well,

Including StandardadiZation Of Working nours, travel pay,

’ )

and oiner working condition To) a COnsStruction em-

nlinve (| Hrocedire tor ror? reas | } f jal ;

piovees, an procedures IO] WrOomp resoliucvion Oi LAaADU!

| . A i ‘

disputes that could disrupt the project. J.A. 77.

On May 28, 1989, MWRA’s Board of Directors a

proved the Master Labor Agreement. To implement that

decision, the Board also ordered na Bid Specificatio

13.] } asicglec| + +} ’ mheatinr ‘ ran) t 91]

o. pe adgddaded O ne SpeclilCactllIONs appllcadie O dail New

construction work. Pet. App. Ja, ivd. Bid specincation

13.1 provides in pertinent part:

_ 23 : . ae .

Ie ac! Ssuccesstu bi iaer ; aia and all eveis ol

Sud nviractors as a cond O} ] elng av rded a

, ‘ : , , R

n at SUDCONLYAaACL, WI] o)'et it at D\ I

yrovisions ol the Vastet | ipo} \o ement as e@xX

Kaise} on behalf of |MWRA nd the Buildi

cd ( : l on Trades Coun , nd will b

ind by the provisions of that agreem«s In tl

me manner as any other provision of the con

Id. at 14la-142a. Although successful bidders are thus

required t bide by the Master Labor Agreement, any

qualified bidder may compete for a contract, withou

regard to whether the bidder has a pre-existing bargain-

ing relationship with a union, and the contract must be

awarded to the lowest qualified bidder. /d. at 14la; see

also id. at 103a, 112a. Moreover, nonunion bidders are not

required to sign any other agreement with any unions

for other projects. And althoygh a contractor must agree

to use the local union’s job referral system for project

- Massachusetts law requires MWRA

labor, the system must be operated in a non-discriminatory

manner, so that employees who are not already union

members are nevertheless eligible for project work. Jd.

at 103a-104a, 110a, 116a-117a.

3. On March 5, 1990, respondent Associated Builders

and Contractors of Massachusetts /Rhode Island (ABC)-

an association of nonunion contractors—filed this suit

seeking an injunction barring enforcement of Bid Specifi-

cation 13.1 on the ground that it impermissibly interferes

with the system of free collective bargaining contemplated

by the National Labor Relations Act (NLRA). The dis-

trict court rejected ABC’s preemption claim and denied

a preliminary injunction. Pet. App. 72a-83a.'

In the meantime, another contractors’ association had

filed an unfair labor practice charge with the National

Labor Relations Board (NLRB), alleging that Kaiser’s

Master Labor Agreement with the Council violates the

NLRA. On June 25, 1990, the NLRB’s General Counsel!

declined to issue a complaint. He found (i) that the

Agreement is a valid prehire agreement under Section

S(f) of the NLRA, 29 U.S.C. 158(f), which authorizes

such agreements in the construction industry, and (ii)

that its provisions limiting work on the project to con-

tractors who agree to abide by the Agreement is lawful

under the construction-industry proviso to Section &(e),

29 U.S.C. 158(e), which carves out an exception to

Section &/e)’s prohibition against “hot cargo” agree-

ments that require an employer to refrain from doing

business with any other person. Building & Trades Coun-

cil (Kaiser Engineers, Inc.), Case 1-CE-71, GC Advice

Memo (Pet. App. 88a-93a).

’ Respondents also contended that Bid Specification 13.1 is pre-

empted by the Employee Retirement Incéme Security Act of 1974,

29 U.S.C. 1001 et seq., and violateS the Fourteenth Amendment,

Section 1 of the Sherman Act, 15 U.S.C. 1, and the constitution and

law of Massachusett The district court rejected those claims

well. Pet Ap] T7a Sla. bh it the c¢ rt of appeals did not reach them.

1. On October 24, 1990, a panel of the First Circuit

reversed the district court’s decision, agreeing with re-

spondents’ contention that MWRA’s Bid Specification 13.1

is preempted by the NLRA. Pet. App. 49a-7la. On

rehearing en banc, the court of appeals, by a 3-2 vote,

adhered to that ruling. Id. at la-4&a.

The en bane majority believed that “the present case

is most heavily influenced by the Supreme Court’s hold-

ines in the Golden State Transit Corp cases,'* which

relied and expanded upon the Machinists doctrine.” *

et. App. 15a. It understood “the lesson of the Golden

ite cases [to be] that, where interference into the

collective bargaining process by the state is direct, an

serted state interest of the type at issue here, whether

‘proprietary’ or otherwise, cannot justify the interfer-

ence.” Jd. at 30a. The majority concluded that Bid

Specification 13.1, by requiring all contractors to comply

with the Agreement negotiated by Kaiser, constitutes

direct interference with the collective bargaining process.

Id. at 17a. The majority recognized that Sections 8(e)

and 8(f) of the NLRA permit such contractual arrange-

ments in the construction industry, Pet. App. 22a-24a,

and that, under those statutory provisions, “the Master

Labor Agreement between the Trades Council and Kaiser

lid labor contract.” /d. at 24a. But it found the

legality of the Agreement itself to be “irrelevant” to the

question whether Bid Specification 13.1—by which MWRA

implements the Agreement—is preempted. /d. at 24a-25a.

Chief Judge Breyer dissented in an opinion joined by

Judge Campbell. Pet. App. 32a-45a. Chief Judge Breyer

believed that 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.”” Jd. at 32a. In his view, MWRA’s con-

IS a Va

{ See Golden Scate Transit Corp. Vv. City of Los Angeles. 475 U.S

HOR 1986 Golde n State ] ~ ( lds ) State Tra sit Corn. \ City of

Los Angeles, 493 U.S. 103 (1989 Golden State Il

; See Lodas 76, Internat onal j '" ( f Mach 7 fs \ WW) consin

Employment Relations Comm’n, 427 U.S. 132 (1976

‘

racting decision affects labor-management relations “only

to the extent that Congress foresaw and (with respect to

general contractors) explicitly authorized.” Jd. at 34a.

SUMMARY OF ARGUMENT

A. Sections 8/e) and &(f) of the National Labor Rela-

tions Act specifically authorize employers and unions in

the construction industry to enter into a “prehire” agree-

ment that establishes wages and other working condi-

tions on a construction project, recognizes the union as

the exclusive bargaining agent of employees on the

project, and requires all contractors and subcontractors

on the project to comply with the agreement. Those

Sections thus carve out an exception to the NL os A’s usual

proscriptions against recognition of and bargaining with

a union that has not yet established its majority status,

and against “hot cargo’ agreements that obligate the

employer to refrain from or cease doing business with

another person. The majority and dissenters in the First

Circuit agreed that the Master Labor Agreement between

Kaiser and the Council is lawful under Sections 8/e

and 8(f). The only question is whether MWRA acted

unlawfully in adopting Bid Specification 13.1 to imple-

ment that Agreement

B. The NLRA does not prevent a private developer of

property from implementing a project labor agreement

such as that at issue here. The majority below erred in

holding that the NLRA treats state and local governments

differently by uniquely prohibiting them from doing the

same thing.

1. In invalidating Bid Specification 13.1, the First

Circuit relied upon the branch of the implied preemption

doctrine known as “Machinists preemption.” See Machin-

ists Vy. Wisconsin Employment Relations Comm'n. 427

U.S. 132 (1976). That branch bars state regulation of

private conduct that is neither arguably prohibited nor

arguably protected by the NLRA, but is instead left to

the free play of economic forces. The question under

Machinists is whether the State has entered into the bar-

Paining yrocess { n extel Long ss has not coun-

nanced.” Golde Stat Pra) ( rp. \ Citu of Lo

1} é wes | ~ fyt p>» (1 1QRh < ne Mach } ST

! onate I ppilcandle here | rst, Congre has 101

escnewed regulation of prehire agreements; they are

reguiated by the NLRA itself. Second, the Agreement

t) veen Kaiser and the ( unc) is fully consistent with

Sections &(« and &(f). And third, by conditioning its

i} ast I I ru O! es ] f ery sort of

bo reemel! ni {( ongress eX)p citly author! ed

IWRA “does 1 egulate’ the kings of the mark

forces that Congress expected to find; it exemplifies them.”

Pet. App. 35a Breyer, C.J., issenting). Wisconsin

Dept of Industry v. Gould, Inc., 475 U.S. 282 (1986),

does not render the proprietary nature of _MWRA’s

actions irreleval The only purpose of the state statute

nG / was to enforce the NLRA: it was not ° eg it!

mate response to state procurement constraints or to local

econo! needs,’ / it 29] This Cast by contrast, 1S a

direct response to such considerations

2. The majority below found it significant that the

construction-indust exceptions in Sections S8/e) and

S(f) apply only to an “employer,” which the NLRA

defines to exclude a State and its political subdivisions.

However, the fact that the NLRA affirmatively authorizes

project labor agreements cuts strongly against finding

that MWRA acted unlawfully by adopting a bid specifica-

ion that implements such an agreement. The exceptions

( and &(f} apply only to an “emplover’”’

because the list of prohibited practices likewise applies

n “employer.” It would be perverse to hold that

the effect of Congress’s exclusion of States from those pro-

hibitions—out of deference to state autonomv— is to afford

the States Jess freedom to order their own construction

contracting practices tha

n. the Act affords private em-

plovers and developers of property.

The background of Sectiodns &8/e) and &(f) confirms

this conclusion. When Congress enacted those provisions

in 1959, it intended to preserve the pattern of collective

bargaining in the construction industry. It therefore is

significant that the extensive legislative record of the

19592 amendments shows that the pattern of collective

bargaining at the time (including use of project labor

agreements) was the same for public works as it was

for purely private projects. Moreover, the special circum-

stances in the construction industry that led Congress to

permit prehire agreements are the same whether it is a

public or private owner of property that lets the contracts

for the work.

ARGU MENT

THE NATIONAL LABOR RELATIONS ACT DOES

NOT IMPLIEDLY PREEMPT A STATE AGENCY

FROM IMPLEMENTING A COLLECTIVE BARGAIN-

ING AGREEMENT THAT ESTABLISHES LABOR

TERMS AND UNION RECOGNITION FOR A STATE

CONSTRUCTION PROJECT

Sections 8(e) and 8(f) of the National Labor Rela-

tions Act expressly permit private employers to require

all contractors performing work on a construction proj-

ect to adhere to a collective bargaining agreement that

establishes labor terms and union recognition for the

project as a whole. The issue here is whether the doc-

trine of implied preemption under the NLRA neverthe-

less prohibits a state agency, acting in its proprietary

capacity, from implementing such an agreement for a

state construction project. In our view, the First Circuit

erred in holding that state action to effectuate a lawful

project labor agreement is barred by the NLRA.*

®° The courts of appeals have divided on this question in various

contexts. Compare Glenwood Bridge, Ivrc. v. City of Minneapolis,

940 F.2d 367 (8th Cir. 1991 following decision below), with

Phoenix Engineering, Inc. V. M-K Fe? gus n of Oak Ridge C'o.., No

91-5527 (6th Cir. June 11, 1992) (discussed at note 13, infra), and

Associated Builders & Contractors vy. City of Seward, No. 91-35511

(9th Cir. June 5. 1992) (discussed at note 17, infra). .

A. The Master Labor Agreement Between Kaiser Engi-

neers And The Building And Construction Trades

Council Is Authorized By Sections 8(e) And 8&(f) Of

The Act

) Q or 19 o ee ,

l B d Specification 13.] Was adopted DY he Massa-

4 y ] . : ’ e,. 4 . .

Cri Useé ~ Wa t’] Reso i?Ces A ILMOrILY ) Implement t}

, ‘ sh , . ie « oer me Landes

Master Labor Agreeme! hat was entered into betwee)

' : : : ; , : ; " >. #8 26 . : i ; ‘ .

Kaiser Engineers and the Building and Construction

— a T) re . wan — —— ans

rages Councli. ne Agreemen pbresecridves VaAVeRsS alll

other working conditions for the Boston Harbor project,

° . 4 ‘ ] P ‘ ; 7 ar _ — _ “fr .

recognizes the Councll as the exclusive bargaining repre-

+1 —

senta f employe ‘ing on the project, and re-

quires all contractors and subcontractors on the project

comply with the Agreement. See pages 3-4. supra. Be-

cause state law requires MWRA, rather than Kaiser, to

award contracts for work on the project and to do so

after competitive bidding (see MWRA Pet. 18 & n.8;

note 2, supra), the Master Labor Agreement between

Kaiser and the Council, standing alone, would not have

assured that all successful bidders would be bound by the

)

Agreement. Accordingly, Bid Specification 13.1 provides

that each successful bidder and all subcontractors, as a

condition of being awarded a contract, will agree to abide

by the Agreement between Kaiser and the Council. Pet.

App. 14la-142a.

Collective bargaining agreements such as the Master

Labor Agreement in this case are specifically authorized

in the construction industry by Sections 8/e) and 8if)

of the NLRA. Those provisions were enacted in 1959,

in response to the special conditions that Congress found,

after extensive study, to be present in the construction

industry. See NLRB v. International Ass’n of Bridge

& lron Workers, 4384 U.S. 335, 348-349 (1978).

a. Employees in the construction industry are. not

typically attached to a single employer for a long period

of time; they instead work for various contractors or

nd 5 |

‘ ! _ I } { = T T? 17) \

‘ ‘ | ‘ ne il if 4 il | .

‘

e li + equen riepresent n elections

ge sevmel Ol Nhe INGQUSLFY ale No feasible O GemM-

+o 11 y) , 1/ “it ; 77 1) +, +} ' ft

f — 1 unions mi: rity Status que to tne sno)

periods of actual employment by specific employers.’

Iron Workers, 434 U.S. at 349 (quoting S. Rep. No. 187,

Soth Cong., Ist Sess. 55 (1959 second brackets added

; ;

ne x me customatl’s ! ne constructlo) n-

| {) ry ) i (*t) ( “Daly ney

S I ‘ | ns O er?) i I I Drolects O he

| ? ? . ? } ’

‘ a [ ( area (Lu ~ r

9 houg! e unions had not demo

4 1

ate 0 particular ot ind evel

; 10 ) ) } ‘P ’ mc TH Wi } tne o)'ee-

me! VOU (iy é ‘ nes rey, Wi )

}

as (1 1}

When Congress amended the NLRA in 1959, it con-

cluded that such “prehire’ agreements, in addition to

furnishing protection and union representation for cov-

ered employees, are “ ‘necessary for the employer to know

his labor costs before making the estimate upon which his

bid will be based,’” and for the employer to “ ‘be able

to have available a supply of skilled craftsmen ready fo.

Y ick referral.” Jron Works rs, 434 U.S. at 348 quoting

H.R. Rep. No. 741, 86th Cong., 1st Sess. 19 (1959

see also Jim McNeff, Inc. v. Todd, 461 U.S. 260, 265-266

7¢

83). Section 8(f) preserves these advantages by au-

thorizing employers and unions in the building and con-

struction industry to continue to negotiate prehire agree-

ments, thereby carving out for that industry an excep-

tion to the NLRA’s proscriptions against recognition of

and bargaining with unions that have not yet established

their majority status.* See Jim McNeff, Inc., 461 U.S. at

S| i unfal) No! ractice fo) ry ( ! inder Sect

R(a)(l ind (2) of the Act, 29 U.S.C. 158 l ind (2 ind fo.

inion under Section &(b)(1 \ 29 U.S. 158(b) (1 \ t

interfere with. restrain. or coerc¢ emplovet ; in the exercise of thei)

right (protected by Section 7, 29 U.S.C. 157) to select their repre-

‘ >, 7 ed '? bard ) - - r

65-266 ~ hep NO LS, Q rey ‘ 2 yAS) -5DH In

nrotect emplovee Iree cnolct nowever, section aii con

ains a final proviso that permits employees, once hired,

to utilize the NLRB election process under Sections 9

ind 9ie) of the Act, 29 U.S.C. 159(c) and (e), if the

the bargaining representative or cancel

‘

the union security provisions of the prenire agreement.

’ i ’ nme pma 2 ro ot OA. ‘ DA.

See /ron Workers, 134 U.S. at 540; Pet. App. 24a.

b. Negotiation O§ a prehire agreement under section

+ +

si] vould not assure adherencs 0 ne eontractua}!l\

tne work site lI the employer could a' oid those standards

4 |

SUC I Lilly ro ye WOrkK } i! empiovel Who i>

| aA< > ,

at a Da ( ne agreemen SUDCO ractuing 1! lat ;

. ; °

; +3 sre4 ‘

e€ usu Practice ll ne CONSLYUCLION INCQUSLIY, and work-

} ’ 4 1 1

ers e organized employment pools to be hired ou

) \ +} 1 } } } y

t J) L Al 5, ¥\) il VOM iit y i i < a ict

; | — + a ; » + x} +} . ] ' oF } 9?

me} rov a Subcontractor tO WnOM tne WOrk 18 assigned.

, 17 ’ . , , »_m 731 19 ~ . ‘

Donald Sel er, Inc. V. NLRB, 6385 F.2d 859, 880 (D.«

1980). cert. denied. 451 U.S. 976 (1981)

27 = qenied, t+) wo. 2 (UU ! et .

, ’ ° 7

| ict ~ ' 2 pnronen { Ongress in 19 »4 aiso enacted

‘ , 4 ; %% <

ne constructio} nd proviso 0 Section &/e)’s

i ’ } nT "nO roy’ rreemen;rs that merci) ire

aAkail i ( ‘ ~~ a { hii < i

1 : .

! f » re ra nN rrom doing LS PSS WIL! anotne?l

OV1SO a roves Clauses 1Nn C ecl Darg

J ry verane ) ] \ yl Yr) Ty? ’ y

= i ct a rcu ii t ail vy ' ry Vil a ( Sul a\ i il

] ‘ ] ] | ;

e to be performed by contractors who are bound

: |

n applicable area-wide agreement with the appro-

} ile ] ? ( ongress Tnerehbp nreserved the means a

? nN) ] ne ) an ? ] 1) T) |

nvViovers a { u Ions n { } : u¢ i) ne l> y All

I LO) nsl ne T ni that } relat ? »?

L\dopvet ensuring no 0 \ la LD eiallons ¢

ntative. “The Court has held that both union and emplover con

”

t unfair practices when they sig! collective-bargaining ag

. : 5

nt recognizing the union as the exclusive bargaining represer

. . : ¢ ly ‘ . + . hoax +) . ]

ve when in fact only a minority of the em; es have authorized

: — 79 | ‘ 4 ‘ ;

he union to represent their interests Iron Workers, 434 U.S. a

344: oe ly fernat f nal Ladi ‘ (,arme nt Wi rkers l) 7 \ NI RB,

tla.

TY +

as a state agency MWRA) that authorized ne

workers may have the opportunity for terms of employ-

ment enjoyed by employees in more stable industries.

Ser W or Lhe ra Rome rO Framing, Ine. V. NL th, 156 U.S.

645. 654-660. 661-662 (1982)

Z Operating together, Sections &/e) and Sif Vi

date “‘pr t lab agreements” in the construction in-

just) collect bargaining agreements that establis!]

i erms and union recognition for a construction pro}-

; a Whole, and that require all contractors and sub-

contractors who are subsequently engaged to work on the

lect to agree to Lh boul d by the agreement. Accord-

ng] both the majority and dissenting judges below

cknowledg@ed that the Master Labor Agreement between

Kaiser and the Council “is a valid labor contract.” Pet.

App. 24a; see also id. at 32a, 34a-35a (Breyer, C.J.,

lissenting The majority below likewise did not dispute

e (lissenters’ conclusion that there would have been no

ermissible distortion of the economic forces that Con-

ress expected to govern labor relations in the construction

ndustry if the Agreement had been approved and imple-

nented . private owner or developer of property, acting

njunction with its general contractor. See id. at

$4a-35a (Breyer, C.J., dissenting). They disagreed, how-

ever, on whether it makes a difference that in this

legotia-

f the Agreement by Kaiser and then approved the

ment and effectuated it by requiring contractors and

ntractors to adhere to its terms as a condition of

ming work on the project. /d. at 27a-28a, 35a, 40a-

As we shall now explain, the majority erred in

ng that the NLRA impliedly prohibits MWRA from

menting the Master Labor Agreement through Bid

+4 192 ] -

we . i itl. .

B. Bid Specification 13.1, By Which MWRA Implements

The Master Labor Agreement Between Kaiser And

The Council, Is Not Preempted By The NLRA

Circuit held that the NLRA treats state and

differently from all other employers

n and developers of property—by

hem from implementing the very

| je bor agreement that is expressly author-

ed by Sections 8(e) and 8(f) of the Act. The court

| that result required even where, as here, the re-

sible governmental! entity has concluded that the

ment would further important interests in promoting

¢ costs, assuring a readily available

f labor, and meeting mandatory deadlines in the

uction of a major public works project that has

een found necessary to remedy serious violations of fed-

ral law and concomitant environmental harms.

Principles of federalism counsel that an Act of Con-

2 ss uld not be construed to single out state and loca!

governme for special regulatory burdens when they

prietarvy capacity (and in a manner that is

fully consistent with federal law), absent an explicit

statem f congressional intent to that effect. Cf. New

Yor]; v. United States. No. 91-543 (June 19, 1992), slip

12-13: Gregory V. Asheroft, 111 S. Ct. 2395. 24038

1991). Yet the court of appeals pointed to nothing

nd tt is nothing—in the text or legislative history of

the NLRA that suggests a congressional intent to intrude

sy drastically and uniquelv into state and local affairs.

Rather, the court relied on the doctrine of implied pre-

mption that has been developed under the NLRA. The

' i

unde innines of that doctrine. however, do not support

‘ awet af ennante’ wmiling and the text hackoermand

} ) tf abvnveais uilnyg, anda tne eXt, DacKeYround,

» 4] P — e 4h ’ > :

1 pu of the relevant provisions of the NLRA in

ivh stronely against an extension of the doctrine

15S

1. The Doctrine of Implied Preemption Under The

NLRA Does Not Apply To Bid Specification 13.1

In finding MWRA’s Bid Specification 13.1 preempted

bv the NLRA, the court of appeals relied principally upon

branch of the implied preemption doctrine known as

‘Machinists preemption,” and on the application of tl

doctrine in this Court’s decisions in the Golden Stat

cases. See notes 4 & 5, supra.” This Court has explained

the Machinists doctrine is designed “to govern pre-

emption questions that arose concer} ing activity that Was

neither arguably protected nor arguably prohibited”

he specific terms of the NLRA. Metropolitan Life

Ins. ('o. V. Mas: (lf hi iS¢ its 17] U.S. “2 749 ' LORS . Ln-

. i .

der the Machinists doctrine, a court must determine if a

states regulatlo conduct nol etneliess @¢o} cts V1Ul

iia i i ‘ ii ii Ai i ( ii i i Ai

' — -wn4 _ ; a4 t+onn ley | > walad ;

L_ongre Ss Intention la certaln iabdo”’ ,elates conduc

‘ } 7? } 4 4 ‘ ‘ " -% .

rel ‘unregulated’ and lef the free play of eco-

mic forces.’ Machinists, 427 U.S. at 140 (quoting

VLRB v. Nash-Finch Co., 404 U.S. 1388, 144 (1971

} ) f t ‘ ‘ rel hy rd Om ¢ ] { i

f I Lron rel rn ti V rr { ertime ‘ l { ‘ -

‘ if I the emp! | nevgot il mn oO? 6 eu ‘ 1] ;

bargaini! reement. See also 7 msters V. Mort 147 U.S. 252

1964) (holding state court preempted from awardir mages fo!

Th cf fu CCOI il icLivil tnat \ neitne procvected b sect 7

or prohibited | Section & and that Congr t preseribe

vhen it enacted Section 303 of the Labor-Management Relatior

\; T 2G § S y 187 ; hut MT ay Ni if y y/] I'¢ ‘ ni re f \ WF j }

Dep't of Labor, 440 U.S. 519 (1979 rejecting Mach ts preem]

t hallenge to state law providing fe ivment of unem mer

hy efit ; +) ’ ke?) Vet opolitar ] 4 Ty / \ V

chusetts, 471 U.S. 724, 751-758 (1985 rejecting Machinists cha

lenge to stat v requiring minimum mental health-care benefit

Fort Halifax Packing ¢ Vv. Coyne, 482 U.S. 1, 19-22 (1987 re

ecting Machinists challenge to state law requiring severance pa

ments to employee ffect i plant closi: if no collective bargair

ing agreement required such payments

The Machinists doctrin distinct from the other major branch

of NLRA preemption doctri Garmon preemption—which appli

‘ vy ? holau f | the (+1 ld ff State ; SES as

P ware ite le +) t “whore inte) f¢ rence int

’ (*" t [ ; ae rOCeSsSS hi the State 1S direct, an

sserted s est of the tvpe at. issue here, whethe)

ropriet therwiss annot justify the interfer-

ence.” Pet. App. 30a. The Golden State decisions, how-

lo : ince any such absolute rule of preemp

yn. Rather, the test under Golden State is whether the

State has “entered into the bargaining process to an

‘* ’ ; ’

OT ¢ ntenanced. (;solden State I.

175 U.S. at 616 (emphasis added quoting Machinists

fe decisions re-

quire inquiry into whether the particular state action con-

flicts with an intention by Congress to leave the specific

conduct involved to the free play of economic forces. In

Golden State itself, for example, the city, by requiring

that the company settle its labor dispute with the union

by a certain date, clearly intruded upon private conduct

that Congress had intended to be unregulated in further-

ance of the national labor policy of encouraging private

settlement of labor disputes ‘and of allowing resort to

economic weapons for that purpose

By contrast, the state action at issue here does not

cause any impermissible interference with federal labor

oO1rley } iyet ( oY oress chi se not to leave unregulated Tne

ise of project labor agreements in the construction in-

dustry. That subject is regulated by the NLRA itself

which specifically approves such agreements, subject to

certain conditions. As a result, the usual predicate for

Machinists preemption—a federal statutory

‘ policy to

leave the conduct in question unregulated—is lacking.

See Phoenix Engineering, Inc. v. M-K Ferguson of Oak

s more akin to a rule that denies eith the federal or stats

sovereign the authority to abridge a personal liberty

i2 Similarly, in Machinists, the State, by barring the union from

, ;,

inducing employees to refuse to work overtime in order to put

¢ ’ ry ‘ nrecs r"¢ r) the emnis oy? faresat: ed ? ‘ ] or ‘ y ECO

Il i i i Irlpt ie’} i i l

nomi vVeAaAno! +} t the N 4 neither nr 1bited nor ‘otected but

} vi Ji i, i

left the union free to utilize

Ridge Co., No. 91-5527 (6th Cir. June 11, 1992), slip op.

21-23. Second. the Master Labor Agreement between

Kaiser and the Council that is implemented by Bid Spe-

cification 13.1 is fully consistent with Sections 8/e) and

an actual conflict between state and rederal law.

14, infra. Third, in adopting Bid Specification 13.1,

MWRA was not acting in the capacity of a regulator of

private conduct, as the state or local government was 1n

«i

see not

Machinists and the Golden State cases; MWRA was act-

ing in a proprietary capacity—as a market participant

by specifying the conditions under which it will enter into

contracts with private parties. See Phoenix Engineering,

slip op. 24; Pet. App. 44a (Breyer, C.J., dissenting) ; cf.

Associated Builders & Contrattors, Inc. V. City of Seward.

No. 91-35511 (9th Cir. June 571992), slip op. 6321-6322.

The majority below found it irrelevant that MWRA

os j i

s acting in a proprietary rather than a regulator,

eC) helievil or that iV erOnsin Dep't af Indust Vy.

Gould, Ine., 475 U.S. 282 (1986), requires rejection of

distinction. Pet. App. 25a-30a. Gould held that a

| Ph 0? Ie) ) rn? th, Sixth ( rs , ‘ thy, ] ,

that the NLRA prohit da private genet contractor ret

U.S. Department of Ene? DOE) from ente) t !

t rreement with the Building Trades Coun for construe

tion services at DOE iclear facility at O Ridge, Tenne e. |

t} Sixth Circuit's eV he Golden State ca

hold that Machinist reemptior revents regulation, either

tate ¢ ne federal «we rnment. f aspects of labor-n ‘ ent

relations left unregulated by the NLRA Slip op. 18 Not

led regulation of ehire agreements in Section & the ce t

! ded that the Project Labor Agreement Is al! Kal

lal I practice th wm 4 res ‘ osely regulated ind | Chel (

emption does not apply.” Slip op. 23

The government argued in Phoen Engineering Br. at 28

5) that the Machinists doctrine, which governs preemption of

tate laws that might affect the system of free collective barg

ler th NLRA, was not applicable to the actions of a fede

e! and that the statutes and implementing regulations govert

ng ¢ truction of DOF facilities in any event rendered the pro}

Wisconsin statute debarring repeat violators of the

NLRA from doing business with the State was pre-

empted by the NLRA. In rejecting the contention that

the State’s action was permissible because it was act-

ing as a purchaser of services, the Court acknowledged

that “|n]jothing in the NLRA * * * prevents private pur-

aw violators.” but added

1 , } . }

chasers from boveotting labor |

that “(t]he Act treats state action differently “

because in our system States simply are different from

private parties and have a different role to play.” 475

U.S. at 290.

Gould, however, is wholly different from this case. The

her any recula-

tory role. It seeks only to protect its own proprietary

interests in t ible and efficient development of a major

governmental lect, and it does so as any private

developer or general contractor might—through arrange-

ments relatit » a lawful project labor agreement. In-

deed, the project labor agreement at issue here actually

was negotiated and entered into by Kaiser Engineers, the

ivate construction manager that MWRA selected.

Gould does not hold that where, as here, the State is

seeking to further its legitimate proprietary concerns

by implementing a contractual arrangement that is ex-

pressly authorized by the NLRA, its action nevertheless

is preempted. To the contrary, the Court noted in

Gould that it was “not saying that state purchasing

decisions may never be influenced by labor considerations,”

and that it was “not faced [t]here with a statute th:

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, by contrast, directly

14 We do not contend, of course, that a State’s actions ars

matically insulated from preemption under the NLRA whenever it

1d there

fore presents

é rvice oO} tne} lal

? , > , +

i a Sui ‘ a }

4 '

=f ( Te ( (*} t | ( \

{A7 C sor Livi 10

f 22 i | J i ible

‘ TY T state TK ) T Line

( fferent q lest tron

ict Cou iid ft a

1 ‘ ‘

I L pelle LMnat ' }

+ + ] ,

[ rie errela

; ‘ — +}

Stil Made!

‘ t Ting ’ ing fT +e

‘ , ?

S. at 24 see also Bri

4¢ 1QQA

| S 191. 0] LJo

, ai + ‘Ty >

ction; 7 {| he NLRA

ePKYerTy, ‘ | Ling ‘ rede

4] ‘ ‘ }

nfiic qd nre-empted

ite could not require that

‘ ‘

‘ rr reen ’ + ha

r rs | OUuTSIAs The CoO}!

il l} ic! il ig)

f emploves ‘ elect a

oO ret! y +) YY } } ng

1+} ’

r, although prehire agre

structlol roveci i Sta

+} | - ;

he right guaranteed |

ith Section &(1

‘ourt did 1

statutory

are comml

nrocurement restraints” and

U.S. at 286-289. It 1

n Gould, that

‘rely by invoki

] rocedure S and

tted by that Ac

te 10. ‘pra It

its fullest ext

doctrine, whic

under Ga

ig its spe

remedies

t to the 1

would he

h is not

“local eco-

uestion le

+ 900

d. The regulation and approval of prehire agreements

provided by Sections 8(e) and 8(f) refute the notion that

the state action challenged here deprived prospective con-

tractors on the Boston Harbor project of a right, pro-

tected by the NLRA, “to negotiate their own terms of

employment or to operate on a non-union basis.” Br. in

Opp. 4; Pet. App. 18a, 21a. Although employers in other

industries may have that right, the construction industry

proviso to Section 8(e) limits both the legal right and

practical ability of contractors and subcontractors in that

industry to order their own labor relations: by virtue of

the proviso, a general contractor may require all other

employers working on a particular jobsite to adhere to

the terms of a project labor agreement it has entered into

with union representatives. See Woelke & Romero, 456

U.S. at 663; Jim McNeff, Inc., 461 U.S. at 270 n.9.

Accordingly, the nonunion contractors that are mem-

bers of respondent Associated Builders and Contractors

plainly would have had no right protected by the NLRA

to obtain work on a nonunion basis at the Boston Harbor

project if that project had been privately owned, if the

owner had retained Kaiser as its general contractor, and

if Kaiser, in turn, had entered into a project labor agree-

ment identical to the one challenged here. It follows that

MWRA is trenching on no “right” or “liberty” (Golden

State 11, 493 U.S. at 109, 112) accorded by the NLRA

to nonunion (or other) contractors by requiring them, as

a condition of obtaining work on the project, to abide by

preserving the primary jurisdiction of the NLRB. Under th

Machinists do trine, Congress has, by hypothesis, chosen to leave

resolution of certain matters to the “free play of economic forces.”

i127 U.S. at 140. Those forces necessarily are played out in th

market context in which the employer and its customers. competi-

tors, and employees operate, and in light of the purchasing and

other market decisions they make. The federal, state. and local

governments are major market participants in many industries, and

the conditions on which thev choose to pur hase therefore are, 1n

general, simply one set of factors in the “free play of economic

forces.”” See also page 29, infra

\I Lf F LL } ' A ‘een ent TI a Ne i> 4 entre rec Into

- + +: sé | , . . 1° — o a4

Counc. since nere 1S no iInallenabdie rign

ri as non-union contractor on pub icy funded

Wwe LKe he Sixth Circuit 1n Phoen Enaine i

. , , 8 . — = ] =F

le not see why the Machinists doctrine should be ex-

4 ] . « om4 ‘ ths “ ‘ 0+ oy _— ; ‘ + +L,

enaed to prorec nird parties who are tree to accept Une

| ‘

d ¢ol ons or look for other work. Slip op. 20-21

¥ : } as : S i a * . ‘ . _ . +4

In short. by conditioning tne purchase or construction

. s

Seryices TO) iTS own nrowect *"uIpO the very ~() *T f) laho P

I i A i i | y ‘ 4} p ‘ i

rreemen hat Congress expiciliy au horized and ex-

nected frequently to find, [MWRA] does not ‘regulate

the workings of the market forces that Congress expected

to find: it exemplifies them.” Pet. App. 35a (Breyer, C.J.,

mmrimnge i

I lige

2 The Text, Background, And Purposes Of The Kele-

vant Provisions Of The NLRA Cut Strongly Against

Extension Of The Implied Preemption Doctrine To

Invalidate Bid Specification 13.1

a. The majority below acknowledged that “under th

exceptions established by Sections 8&/e) and 8(f) of the

Act. the Master Labor Agreement between the Trades

er is a valid labor contract.” Pet. App.

°49. But it found that conclusion to be “irrelevant to the

preemption issue at hand,” because the “history of Sec-

tions 8(e) and 8(f) discusses private employers only,”

and nowhere “is there any indication that a state would

be allowed to impose this type of regulation.” Pet. App.

94a-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) of the Act, 29 U.S.C. 152(2), excludes from

the definition of that term “any State or political subdivi-

sion thereof.” Pet. App. 27a. The majority misappre-

hended the significance hese statutory provisions.

The fact that Sections 8(e) and 8(f) of the NLRA

specifically deem a project labor agreement such as that

hetween Kaiser and the Council to be lawful cuts power-

fully against the conclusion that MWRA acted unlaw-

fully under the NLRA when it adopted a bid specification

that effectuates the Kaiser-Council Agreement by requir-

ing all contractors and subcontractors on the Boston

Harbor project to adhere to its terms. Moreover, 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.”

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 relations 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.” Jbid."

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.

The majority below also drew the wrong lesson from

the exclusion of the States and their political subdivisions

from the definition of the term “employer” in Section 2 (2)

of the Act. As a result of that exclusion, the NLRA

“leaves regulation of the labor relations of state and local

government» to the States.” Abhood V. Detroit Board of

Educ., 431 U.S. 209, 223 (1977). The purpose of the

exclusion was to preserve the autonomy of state and local

governments in matters that might otherwise fall under

the NLRA. It would be perverse to conclude that the

result of Congress’s decision not to include States within

the ambit of the Act (and therefore within the exceptions

in Sections 8(e) and S8if)) is to afford the States Jess

16 dé (ou? ty nt Yakima \ Confedse rated Tribes & Bands of the

Yakima Indian Nation, 112 S. Ct. 683, 690 (1992 ~a proviso can

only operate within the reach of the principal provision it modi

fies’’).

‘> 4

— =

’ } 4 - . ee + . anaten an

freedom to order their own construction contracting prac-

tices than the Act affords to private employers and de-

velopers of property. As the Ninth Circuit recently ob-

served, “[iln lig!

, )

Congress could have intended to prohibit a public employer

it of Section 2(2). we fail to see how

from agreeing to a work preservation clause to which a

private employer is free to agree. ’ Associated Builders &

Contractors, Inc. Vv. City of Seward, slip op. 6325.""

b. The background of Sections 8(e) and 8(f) confirms

that the NLRA does not impliedly preempt the use of

project labor agreements on construction projects under-

taken by a governmental agency, whether federal, state,

or local. This Court has concluded that, when Congress

enacted those provisions in 1959, it intended to preserve

the “ ‘status quo’”’—the then-existing “pattern of col-

lective bargaining in the construction industry.” Woelke

& Romero, 456 U.S. at 657 (quoting National Wood-

work Mfrs. Ass’n V. NLRB, 386 U.S. 612, 687 (1967));

see also Connell Constr. Co. Vv. Plumbers & Steam-

fitters Union Local No. 100, 421 U.S. 616, 628-629

(1975); H.R. Conf. Rep. No. 1147, 86th Cong., Ist Sess.

39-40 (1959): 105 Cong. Rec. 17,899-17,900 (1959) (re-

marks of Sen. Kennedy). The Court accordingly has

17 In Seward, the union that represented the city’s own electri

utility employees, in order to protect those employees’ interests,

entered into an agreement with the Cc1Ly limiting the contracting ofl

work on a renovation project to contractors who agreed to enter

into a labor agreement with the union. In holding that the city’s

action was not barred under Golden State, the Ninth Circuit dis-

tinguished the instant case on the ground that “|t|/he MWRA in

Boston Harbor did not act out of its concerns as a public employer;

inlike the City of Seward, it did not employ workers who had

traditionally performed the work that would be contracted out.”

Slip op. 6325-6326. We do not believe this distinction is significant

Governmental employers typically hire private contractors for largé

public works projects; they do not maintain a force of employee:

for that contingen To limit a governmental entitv’s right t

make proprietary decisions consistent with the NLRA’s construction

industry provisions only where that choice impacts on employees

. ] } — 1. lan: ‘ } " 4

payroll would effectively deny it that choice in most cases

on its

found it appropriate, in order to determine the legality

of contractual relationships in the construction industry,

to “examin|e| Congress’ perceptions regarding the status

quo in the construction industry.” Woelke & Romero,

156 U.S. at 657; see id. at 657-660. Following the same

analytical approach here, it is significant that in the

extensive legislative record developed during the decade

prior to enactment of the 1959 amendments,"* the pattern

of collective bargaining that was described for construc-

tion of public works (¢.g., dams, roadways, and bridges),

undertaken both by the United States and by state and

local governments, was no different from that for private

projects.

For example, in Woelke & Romero the Court relied

(456 U.S. at 658-659 & n.11) on the discussion in the

1959 hearings of Associated General Contractors of Amer-

Ica. [ne. (Sf, Maurice, Helmkamp & Musse r), 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 pursuant to

a contract with the Army Corps of Engineers. 119

N.L.R.B. at 1027, 1049; 266 F.2d at 906." The Court in

Woellke & Romero also cited (456 U.S. at 662 n.13) the

explanatory memorandum prepared by Representatives

Thompson and Udall (see 105 Cong. Ree. 15,538-15,543

'’ The problem of accommodating the provisions of the NLRA

to the special circumstances of the construction industry was the

subject of intensive congressional review, commencing in 1951 and

culminating in the 1959 amendments. This history is summarized

in the dissenting opinion below. Pet. App. 37a-40a.

'Y As the Court pointed out in Woelke & Romero, 456 U.S. at 659

n.ll, the court of appeals’ opinion in Operating Engineers was

placed in the record of the 1959 House Hearings, and employer and

union representatives referred to the case in their testimony. See

Labor-Management Reform Legislation: Hearings on H.R. 3540,

etc., Before a Joint Subcomm., of the House Comm.

on Education

and Labor, 86th Cong., Ist Sess. 801, 803-807, 2364. 23

3607 (1959).

- } , ’ 1 ; 7

1959 cr} } stated hat sé a Nu ding raqdes

‘ c Loam ‘

l | “ {} (*¢ j we KI} y ( ]

. 1

ray ‘ al re erms (yt r ) me 1s (*T

’ —

| y { ? ]

t ‘ n el d i mM

; : : 41 ‘ ..

ce I enc uraged he Atomic Knerg

q )) nad tner (,overnment agencies id. a 5

The hearing record in prior years likewise e

that the use of project labor agreements was part

pattern of collective bargaining on'public as well

4 : : 4 rT’ ~< » <> .

vate construction projects. Thus, in 1953, a re

tive of a California general contractors’ associa

fied before the Senate Committee

The essential nature of the construction indu

quires that contractors negotiate lab p

before hiring workmen. * * [Clontract

have |legislative relief| because of the pract

()))e

ational conditions under which millions of dollars

Federal and State and local competitive-bidding jo

are carried on.

Taft-Hartle Y Act Re VISIONS : Hearinas Be fore the

Ne ia a

(C‘omm. Op Labor and Puhblhe W « lfare. R2d Cong.. lst ses

1302 (1953) (testimony of Gardiner Johnson).

President of the Building and Construction Trades De-

partment of the AFL-CIO noted that, by virtue of

ect labor agreement, an Atomic Energy Commission pla

had been completed without “1 minute lost by industria

strife of any kind.” Jd. at 1672 (Richard J. Gray).

another industry representative explained that contractors

. . e 2 . .

Ss 5 ore 24 Pore the Subcomn on Labo oT the sé (1

on Labor and P ihl Cc Ws lfare. “t th Conc ? ] t Se

testimony of Richard J. Gray, President of Building and

tion Trades Department, AFL-CIO, quofing 8 Rep. No

Cong., 2d Sess. 3-4 (1952)) (the “U.S. Government

concerned in the proper pricing and completion of «

projects for defense installations and production facili

prehire agreements are important for “large project

for defense installations and plants”

The

a proj-

And

tg bh {

l at

\ )

¥e

1) ed

: | - >

, ]

ms Trequentiyv eaotiated nrni »+ la} *_aoroe ronte

equenctiy negotiated project iapor agreements

plants for federal agencies, including

. } rye . " ‘ , 4h xT , } ‘

rs. 1) arime) OT ne Navy. and We

erga

ie ( orps of

al Services

tio? Id. 2 13 13 PRE (Donne 1] ,. There was

recu)

ne senate in 1952. See 9S Cong. Rec.

“s{)

1 *T1

e | ¢ha4

” ry?) TNs

M1 U.S 747 (quoting Ma ev. White Motor Corp..

35 | 197, 504 (1978 Here, the purpose of Con-

Sections S8(e) and 8(f) in 1959 was

ern of collective bargaining in the

iu B se that ttern ineluded the

0 rreeme} oO! iblic as well ; rl-

( the nu ose of Cor oress ? amending thy

T) Senate Subcommittes vas informed that project labor

i peen Succe sfully empioyved ror construction of }

er} e on the Skagit River pursuant to a contract let by th

Seattle De rtment of Public Works, and for construction of tl

McNary D n Oregon and Pine Flat Dam in ( n nt

contract th the Arn Cor} f Engineer | ime t}

Nat ] yr Relatior ict. 1947. With R ct to ft) R j

Constructi Industry Hearv S. 1973 Be e the

S nl nd Labor-Ma ement Relation the Senate

( Labor and Public Wel e, 82d Cong.. Ist S 175-176

1951 Gardiner Johnso1 1951 Hearing ly idition, James J

Revne iT. U NLRB’s then-acting chairman. filed nemoran-

dum that brought to the Subcommitte¢ attention a number of

ructior lusti cast hat had recently come before the Board

TT} ‘ nvoliver ich pnrolect is construction of the Hanfor

TY ’

» » 1% ;

; T +

ne inte)

+ ( Ke ‘ Dar iT ( ] forn i ‘oO? the |

ol e W.B. Willett ¢ 85 N.L.R.B. 761

R ag ] T ‘ TO! the New Yor} (‘if | ll

ney? { or

4 A’ T> ’

84 N.L.R.B

‘ f

} ‘ f yf

‘ aq

1949 thy

‘ U ‘ |

hi \ < .

pliedly preempts MWRA from implementing the Maste1

Labor Agreement for the Boston Harbor public worl

project. Thi Is pth so since there is no affirmat

indication in the background of those amendments that

Congress intended to preserve the status quo only o1

projects unde rtaken by private deve! ers. a? d at t |

same time to outlaw project labor agreements on govern-

ment projects or prohibit government agencies from

implementing such agreemenis in the manner MWRA

did here. Because the relevant substantive restrictions

in the NLRA applied only to employers in the private

sector, all that was necessary to preserve the status quo In

the construction industry was to include exceptions to

+h (petyiet M , » +h , +hai + | .

hose restrictions. It is for this reasoi na ne excep-

tions in Sections 8(e) and 8(f) likewise are directed onl)

to employers in the private sector.

ec. The circumstances in the construction industry that

caused Congress to noel prehire contracts—-the shor

duration of employment, the practice of employees’ work-

ing for many employers, and { 1e contractors’ need to esti-

mate costs in advance and to have available a stead)

supply of labor (‘see page 11, supra)—are present

whether it is a public agency or a private party that let

the contracts for the work. This similarity makes it most

unlikely that Congress, without saying so, intended to

deny to the States and their political subdivisions, when

acting in a proprietary capacity, the potential benefits of

agreements that it expressly authorized in Sections 8/e)

and 8if).

As a result, the view of the majority below would pro-

duce arbitrary distinctions in prehire practices within

the construction industry. Whether there is a prehire

agreement covering an entire project “would often re-

flect, not size of the project, or desire of t]

special conditions of the industry, but simply whether or

not the entity letting the contracts is an arm of the

state or private.” Pet. App. 40a-4la (Breyer, C.J., dis-

ie partie s, or

And even

lg state projects, “the presence

rreement would depend upon

its the state in question to hire

‘actor «who, then, presumably,

) ehire agrement) or, as

requires the state agency to sign the

Project labor agreement

have pveen used for I! ny years

iblic projects, including defense

acilities, hospitals, tunnels, air-

treatment!

hi dros lectrie projects, waste

ities, and mass transit systems. Govern-

judgment that such

le for those projects, and the

perform the work, have formed

agreements may sometimes help

ind stability, an available labor

tion of major construction proj-

tial public purposes. The under-

‘0jec s is a central function of

Such projects therefore “im-

ly rooted in local feeling and

ld not be inferred,”

quoting Garmon, 359 U.S. at

oh cA

iption snou

1 }

he labor agreement applicable

is fully consistent with federal

CONC

The ldvmMmel Ui Ait

reve SeU,

Re ~ Cc liv s ibn itted.

TER M. HUNTER

(sé ‘ ral ¢ ‘) |

YVONNE T. DIXON

j 4 y Der ty (rene

Co nsel

NICHOLAS E. KARATINOS

i insel

NORTON J. COME

De} ty Associate General

Counsel

LINDA SHER

issistant General Co el

JOHN EMAD ARBAB

Attorney

\ Lt hy PR B

, 1992

LUSION

( ir ( f LP pe als should be

KENNETH W. STARR

Solicitor General

MAUREEN E. MAHONEY

De puty Solicitor General

EDWIN S. KNEEDLER

is stant to the Solicitor

é7 ple ral

win PRINTING rr | 982

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