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

,ymeme Cour, Ue

FILED

JUL 22 1992

In the oprice OF THE CLER®

Supreme Court of the United States

—_—_—<——

OcTOBER LERM, 199]

No. 91-261

BUILDING AND CONSTRUCTION TRADES COUNCII

OF THE METROPOLITAN DISTRICT

PETITIONER,

\

ASSOCIATED BUILDERS AND CONTRACTORS OF

MASSACHUSETTS/RHODE ISLAND, INC., ET A!

No. 91-274

MASSACHUSETTS WATER RESOURCES AUTHORITY

AND KAISER ENGINEERS, INC..

PETITIONERS.

\

ASSOCIATED BUILDERS AND CONTRACTORS Ol

MASSACHUSETTS/RHODE ISLAND, INC., ET al

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUTI

BRIEF FOR MAYOR RAYMOND L. FLYNN AND

THE CITY OF BOSTON AS AMICUS CURIAE

ALBERT W. WALLIS*

Corporation Counset

CarROL A. THOMPSON

Spe ial Assistant Corporation

Counsel

City of Boston

One City Hall Square

Boston, Massachusetts 0220]

(617) 635-4020

*Counsel of Record

Table of Contents.

Interest of Amicus Curiae

Boston Harbor Clean-Up Project

Central Artery/Tunnel Project

Statement of the Case

Summary of the Argument

Argument

I. The Use of Master Agreements in Public Con-

struction Contracts Does Not Conflict With the

Congressional Intention That Certain Labor-

Related Conduct Remain Unregulated

Conclusion

TABLE OF AUTHORITIES CITED.

CASES

Golden State Transit Corp. v. City of Los Angeles, 475

U.S. 608 (1986) (Golden State I); Golden State

Transit Corp. v. City of Los Angeles, 493 U.S. 103

(1989) (Golden State II)

Machinist v. Wisconsin Employment Relations

Comm'n, 427 U.S. 132 (1976)

United States v. Metropolitan District Comm'n, 757

F. Supp. 121, 123 (D. Mass.), aff'd, 930 F.2d 132

(Ist Cir. 1991)

SND D &

Nm

In the

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-261

BUILDING AND CONSTRUCTION TRADES COUNCIL

OF THE METROPOLITAN DISTRICT,

PETITIONER,

vo

ASSOCIATED BUILDERS AND CONTRACTORS OF

MASSACHUSETTS/RHODE ISLAND, INC., ET AL.

No. 91-274

MASSACHUSETTS WATER RESOURCES AUTHORITY

AND KAISER ENGINEERS, INC.,

PETITIONERS,

Vv.

ASSOCIATED BUILDERS AND CONTRACTORS OF

MASSACHUSETTS/RHODE ISLAND, INC., ET AL..

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

BRIEF FOR MAYOR RAYMOND L. FLYNN AND

THE CITY OF BOSTON AS AMICUS CURIAE.

Interest of Amicus Curiae.

This brief Amicus Curiae ts filed pursuant to Rule 37 of the

Rules of this Court on behalf of Mayor Raymond L. Flynn

and the City of Boston, Massachusetts (City). The Mayor and

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the City assert that the Court’s ruling in this case would have

a significant impact upon major construction projects within

the City. Accordingly, the focus of this brief is to apprise the

Court of the nature of such impact. e

If the court of appeals decision is sustained, timely comple-

tion of construction projects within this City can no longer be

ensured. When public construction is delayed, as a result of

work stoppages, picketing, or strikes, the cost of such delay

is borne by the taxpayer. Specifically, the City is forced to

expend additional monies for project completion. These costs

are then passed on to the residents and businesses of this City

in the form of higher fees. Thus, the potential economic ben-

efits to a city are often jeopardized where the project extends

past its completion date. The utilization of Master Labor Agree-

ments, however, increases the likelihood of meeting project

deadlines, resulting in efficient spending of tax dollars. Such

agreements also enable a city to plan and carry out transporta-

tion improvements and environmental projects in an effective

manner.

Boston Harbor Clean-up Project.

The impact of this ruling upon the Boston Harbor Clean-up

Project is enormous. This project is under a court ordered

timeframe mandating that the harbor satisfy standards imposed

by the Clean Water Act. See United States v. Metropolitan

District Comm'n, 757 F. Supp. 121, 123 (D. Mass.). aff'd.

930 F.2d 132 (Ist Cir. 1991). Delays in the implementation

of this clean-up project affect the economic and environmental

well-being of this City

In Boston, the Boston Water and Sewer Commission

(BWSC) functions as the retail purchaser of water on behalf of

3

the residents and businesses of Boston. The Massachusetts

Water Resources Authority (MWRA) operates as the

wholesaler and charges the BWSC for the cost of purification.

Consequently, when the cost of purification increases, City

residents incur a higher rate for water use. eu

In 1985, the average annual water bill for a family of four

residing within this City was $135.00. That same family paid

$570.00 for water in the year 1992. It is projected that by the

year 2000, it will cost this family of four $1400.00 per year

to supply water to its household. In fact, the MWRA’s

wholesale rates are expected to incur double digit increases

every year between now and the year 2000. These figures put

Boston well above the national average. More importantly,

however, these projected figures are based upon the assumption

that the clean-up of Boston harbor occurs within the court

ordered timeframe.

The residents and businesses of Boston are already finan-

cially overburdened with the cost of the harbor clean-up. Any

delays in this project increase the cost to the MWRA, which

is passed on to the water users within this City. The City

maintains that such additional cost will be significant given

the fact that 35% of the MWRA’s revenues are derived from

this City. It would be unjust to require the people of this City

to incur further financial responsibility, as a result of project

delays, for the clean-up of the harbor.

The Harbor Clean-Up Project has already created significant

improvements in water quality. Prior to 1990, Boston harbor

beaches were periodically closed after heavy rainfalls, when

sewer overflows are most prevaient. However, in 1990 and

1991, the harbor beaches came very close to meeting water

quality standards for swimming. Additionally, upgrading of

water quality ensures that the fishing industry will continue to

prosper. These improvements are a sign of this project’s posi-

tive effect upon the City’s environment.

4

However, even though improvements are evident, the harbor

is still in violation of clean water standards. As dictated by

the consent decree, the timeliness of this project is critical.

Allowing this clean-up to fall past the date of completion

results in a further degredation of the environmental quality

of the harbor. The long term effect to the harbor and ocean

could be devastating

Central Artery/Tunnel Project.

The City is also concerned that this ruling could affect the

Central Artery/Tunnel Project (CA/T). This project ts utilizing

a Master Labor Agreement similar to the present case. Should

this Court rule that such agreements are unenforceable, delays

in this project would greatly impact the City’s economy and

transportation systems.

The Central Artery serves as the region’s North and South

road into the City and was originally designed to move 75,000

vehicles per day. Today, it carries over 190,000 vehicles every

day, the equivalent of more trucks and cars per lane than any

interstate in America. It is among the most congested and

dangerous highways in the nation with an accident rate three

times the state average. Currently, traffic jams occur on the

artery eight to nine hours daily. It is projected that without

this project, this gridlock will extend to fourteen hours daily

by the vear 2010.

CA/T, a 5.8 billion dollar project, will depress this artery

below the City and create an additional harbor tunnel to the

airport, thereby alleviating traffic congestion in and around

the City. CA/T ts expected to be completed by 1998.

Timely completion of this project ensures that transportation

into the City will be significantly improved. This, in turn,

5

results in economic benefits to its businesses. Specifically, the

current recession within the Commonwealth has resulted in a

high office vacancy rate within the City. A faster commute

may attract other companies to relocate their offices downtown.

Efficient transportation fosters tourism as well which would

serve to revitalize the economic growth of this City. Specifi-

cally, the project will allow for the creation of additionai park-

land in the City, which will dramatically improve pedestrian

access.

Additionally, CA/T has resulted in the awarding of 31 mil-

lion dollars in construction contracts to local companies.

Further, this project will result in the direct creation of 10,500

jobs. It is projected that CA/T will generate over 450 million

in annual sales for the next ten years in the metropolitan area.

Continuation of the Master Labor Agreement in place for

this project ensures that CA/T will not serve to impede existing

transportation within the City. Timely completion of the vari-

ous phases of this project is essential to ensure that transpor-

tation continues to flow smoothly throughout the project. Proj-

ect delays will not allow for such coordination.

The majority of this project is eligible for federal construc-

tion monies. However, such funding is appropriated annually.

Thus, it is conceivable that delays may jeopardize the amount

awarded for a particular year. Further, due to the sagging

economy, construction contracts can be awarded at a lower

cost right now. However, as the economy turns around, such

prices will no longer be realistic. Thus, the cost of delays will

increase at more than the rate of inflation.

This City badly needs the economic boost that this project

will guarantee. Beiter transportation leads to more business,

more tourism, and the creation of jobs. If the City cannot

ensure a timely completion, delays will severely thwart the

economic purposes of this project.

6

The City maintains that the court of appeals decision, holding

that the National Labor Relations Act (NLRA) preempts the

ability of a public entity to employ Master Labor Agreements,

is in error. Therefore, the City urges the Court to reverse the

judgment entered in this case by the United States Court of

Appeals for the First Circuit.

Pursuant to Rule 37.5 of the Rules of this Court, consent

to the filing of this brief is waived due to the City’s status as

a political subdivision of the Commonwealth of Massachusetts

and its filing by the City’s authorized law officer.

Statement of the Case.

The statement of the case as set forth in the Solicitor Gen-

eral’s Amicus Brief is adopted by the City for purposes of this

brief amicus curiae.

Summary of the Argument.

The City adopts the Solicitor General's arguments as stated

in his amicus brief. Specifically, the City maintains that the

use of Master Labor Agreements by state and local entities ts

not preempted by the NLRA. Preemption can be implied where

there is direct regulation of labor relations by a governmental

entity. However, the use of such agreements does not constitute

such regulation. Rather, the public entity is merely exercising

a proprietary right to mandate that contracts relating to a mas-

sive construction project conform to certain labor standards,

grievance procedures, and no-strike requirements.

EE

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Argument.

The City adopts the arguments as presented by the Solicitor

General in his amicus brief and highlights the salient points

of such arguments.

1. THe Use OF MASTER AGREEMENTS IN PUBLIC CONSTRUCTION

CONTRACTS Does Not CONFLICT WITH THE CONGRESSIONAI

INTENTION THAT CERTAIN LABOR-RELATED CONDUCT

REMAIN UNREGULATED.

The Machinist preemption doctrine is applied where the

activity in question is neither prohibited nor protected under

the NLRA. Machinists v. Wisconsin Employment Relations

Comm'n, 427 U.S. 132 (1976). The inquiry delineated by this

doctrine requires an analysis of the legislative intent behind

the NLRA. Specifically, the court must determine whether the

State's activity conflicts with the NLRA’s purpose in ensuring

that certain labor-related conduct remain “unregulated” and

left to “the free play of economic forces.” Machinist, 427 U.S.

at 140; see also Golden State Transit Corp. v. City of Los

Angeles, 475 U.S. 608 (1986) (Golden State 1); Golden State

Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989)

(Golden State /1) (focusing such inquiry on whether the state

has entered into substantive aspects of the bargaining process

to an extent not countenanced by Congress).

Sections 8(e) and 8(f) of the NLRA evidences Congressional

approval of Master Labor Agreements. National Labor Rela-

tions Act, 29 U.S.C. 15l(e)(f). By virtue of these sections,

private construction contractors can require that employees

abide by collective bargaining agreements, regardless of the

potential impact upon the free play of economic forces. Thus,

since Congress has expressly authorized the use of such agree-

8

ments there is no conflict with federal labor relations policy.

Accordingly, under the Machinist doctrine, there is no implied

preemption with respect to the Master Labor Agreement in

question.

Conclusion.

Public construction contracts constitute a core function of

state and local government. Master Labor Agreements ensure

timely completion of such projects. Thus, such agreements

offer a valid mechanism for the efficient spending of public

monies.

Because the impact of this decision would hinder the

economic and environmental well-being of this City, we urge

this Court to reverse the United States Court of Appeals for

the First Circuit's decision.

Respectfully submitted,

ALBERT W. WALLIS*

Corporation Counsel

CAROL A. THOMPSON

Special Assistant Corporation

Counsel

City of Boston

One City Hall Square

Boston, Massachusetts 02201

(617) 635-4020

*Counsel of Record