# 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%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 507 U.S. 218 ## 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 ry 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 , fF Page ~ 92 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 Le . 704 (b). 73 7 ~ (U0O(a), 10 Mis VI ' , 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. C} Org [i L984 Mass Ac ts 4 ‘ellaneous: Qe Cong. Ree pp 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 I oO 96 L pel — Cs | (195 (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- (1) 4. _ ’ a <> y = ff .« . wa — f vy i\ f y 4 ‘ At Ui ~~? ; ‘ cia VS, -()} ‘4 ne | cu } . SCalt | ‘ i ¥ . ‘ ) COn¢ ‘ \° ’ ? Y: rye) {] ’ } ’ { ? a il I May } a . i | f an agre +} ‘ a | it Ul er’s recomn ANY a een 1,7 ’ » T> MWRA,. Pt | ps) LONG j ‘ > ‘ r if { tT ] sé } \ QT) nr &7 ? ’ I ‘ rai cted to Contr: ‘ ry ; +h; erms OI tnl i CO! actor representa i t , “¢ WoO?) eT> ‘ . " ns len Inlol al l] ‘ Wil ] ) (*# ? a i | +] ] ] TY ? “1 VW ] 9con1)Y il Na VV ‘ C ire ‘ , ’ 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 4 to use the local union’s job referral system for project - Massachusetts law requires MWRA 5 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. * 8) 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 7 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). . LO 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 1 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¢ i 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) re 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, 1] rt tla. - | TY + Q 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) Ge 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 18 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} 19 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 Tt 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 ~f ite could not require that ‘ ‘ ‘ rr reen ’ + ha r rs | OUuTSIAs The CoO}! il l} ic! il ig) f emploves ‘ elect a I 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 21 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 OD \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- 23 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- (y 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 25 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). + , ya 8) - } , ’ 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 of s bs WJ 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- nt | And tg bh { l at A \ ) ¥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 cA t} A erga ie ( orps of al Services tio? Id. 2 13 13 PRE (Donne 1] ,. There was i 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 ’ O4 » » 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 j 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 3 0 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0177%3A16. Public record. Not legal advice.