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Kevin Dayton

Smoothing Over Project Labor Agreement Disputes in Closed Session: The Latest Union Scheme for “Progress” in California

UPDATE (November 13, 2013): At its November 12, 2013 meeting, the board of trustees for Rancho Santiago Community College District voted unanimously to continue a practice adopted in August 2013 not to discuss its Measure Q Project Labor Agreement negotiations in closed session until the college chancellor gets legal clarification from California Attorney General Kamala Harris. An opinion from the Attorney General is not likely to be produced for several months.

Speaking in support of having the discussions in open session was Dave Everett, Government Affairs Director for the Southern California Chapter of Associated Builders and Contractors, and Craig Alexander of the Pacific Justice Institute. On behalf of trustee Phil Yarbrough, Alexander wrote a November 5, 2013 memo to the board explaining why discussing Project Labor Agreement negotiations in closed session was not legal.

The head of the Los Angeles/Orange County Building and Construction Trades Council was at the meeting but didn’t speak. Also silent was board member José Solorio, who is running for California State Senate in 2014 and appears to be the impetus for the Project Labor Agreement.

During his public comments, Dave Everett asked the college to identify its source for the list of local governments that have discussed Project Labor Agreements in closed session. The chancellor responded that staff obtained the list, but Mr. Everett then asked if those governments had indicated their closed session discussions on public meeting agendas. The chancellor did not know. Mr. Everett then expressed concern that the list was provided by a union lawyer based on personal experience and knowledge – not a reliable source of information for making decisions concerning a $198 million bond measure.

In addition, when the board president asked Mr. Everett if he assumed the construction plan would not move forward while the college and unions were negotiating a Project Labor Agreement, Mr. Everett responded by asking “Are they planning the projects with or without a PLA?” The board president replied “I’m not going to tell you that”  and then the Chancellor declared the exchange to be out of order.

Thank you to elected trustee Phil Yarbrough for being a champion of the people on this issue.


It’s trendy right now among American intellectuals to assert that “outdated” structural checks and balances in the United States Constitution and in other rules for governance are hindering economic and social Progress at the national level. In these complaints, California – under the enlightened leadership of Governor Jerry Brown – is often held up as a model for overcoming the obstacles to Progress inherent in a republican form of government.

California voters have eliminated or circumvented some structural restraints in recent years through ballot measures. And their election of Democratic supermajorities in the Assembly and Senate effectively neutralized a pivotal check and balance within the legislative branch. Whether or not these choices are misinformed, shortsighted, and foolish, these are choices made by the People.

Other changes are more insidious. They originate as strategies of union lobbyists and lawyers, who prod their political allies to change the rules of the game to strengthen and perpetuate union influence in government.

Reporters and columnists who cover government and politics in California have exposed the multiplying union strategies in a piecemeal fashion, but the bigger picture is abstract and elusive. Much-maligned “gridlock” is sometimes a manifestation of wisdom exercised by the minority against a majority thirsting to use its power to entrench and enrich itself. An impediment for one faction is a protection for another faction.

In California, advocates of free markets, limited government, and fiscal responsibility are losing avenues to recognize and object to public policies advanced by labor unions at the expense of others. Below is a description of the latest union strategy to erode a structural protection in California government. Following that is a plan of action to stop it, or at least slow it down.

Reverting to Closed Session When Unions Have a Spat Over Who Gets the Taxpayers’ Money

In order to evade public scrutiny of government-mandated Project Labor Agreements (PLAs) for construction contracts, union officials are implementing a strategy to redirect certain discussions of this controversial issue into “closed session” at board meetings of government agencies. In the past five months, agendas for two local governments have openly referenced their discussions of Project Labor Agreement negotiations with construction trade union representatives in closed session. Apparently a lot of other local governments have recently done the same thing, without mentioning it on their agendas.

The latest example was just discovered in Orange County, as revealed on the November 12, 2013 meeting agenda for the Rancho Santiago Community College District elected board of trustees:

6.6  Discussion of Community and Student Workforce Project Agreement (Action)

Negotiations with Los Angeles-Orange County Building and Construction Trades Council/Craft Unions/Carpenters Union. It is recommended that the board formally agree to refrain from any discussion of negotiations on the Community and Student Workforce Project Agreement in closed session unless or until more conclusive information is provided to clarify the legality of such discussions in closed session per the Brown Act.

According to the staff report for this item, “It is a common practice for K-12 districts, community college districts, municipal governments, special utility districts, and other public agencies to discuss PLA negotiations in closed session.” It cites “Southwestern Community College District, Riverside Community College District, San Mateo Community College District, Contra Costa Community College District, Santa Ana Unified School District, Pasadena Unified School District, San Bernardino Unified School District, and San Diego Unified School District, among others…almost every public agency that has negotiated a PLA in California has discussed the negotiations in closed session.” A source for this list is not indicated, but it’s likely a union lawyer provided the list based on personal experience and anecdotes.

The first documented example of closed session discussions about negotiations with unions for Project Labor Agreements was discovered on the July 18, 2013 meeting agenda of the board of the San Francisco Bay Area Water Emergency Transportation Authority (WETA), a joint powers agency based in Vallejo. Like the agenda item in Orange County, this one was discovered by advocates of government fiscal responsibility who monitor local meeting agendas for union schemes:

10. RECESS INTO CLOSED SESSION (Action to Be Determined)

a. CONFERENCE WITH LABOR NEGOTIATORS

Agency designated representatives: Nina Rannells, Stan Taylor

Employee organization: Napa-Solano Building and Construction Trades Council

The agency transferred the agenda item to open session after the Western Electrical Contractors Association (WECA) sent the agency a warning letter. WECA pointed out that the Ralph M. Brown Act does not authorize government agencies to discuss negotiations for Project Labor Agreements in closed session. Employees of private contractors performing public works construction are not public employees, although construction unions like to portray them as such.

When the WETA board brought the issue up for discussion during the open session, the testimony of several speakers exposed why construction union leaders wanted the details of their negotiations to be hidden from public scrutiny. Lawyers and union officials sparred openly over various terms and conditions proposed in a draft Project Labor Agreement planned for contractors on the North Bay Operations and Maintenance Facility construction project.

After the local Vallejo Times-Herald newspaper reported on this embarrassing public caper, the San Francisco Bay Area Water Emergency Transportation Authority bid the project under fair and open competition. Companies were not required to sign a Project Labor Agreement with unions as a condition of winning the contract.

If the item had remained in closed session, the public would have known nothing about the controversy at the San Francisco Bay Area Water Emergency Transportation Authority. Union representatives and agency staff could have engaged in secret backroom wheeling and dealing to advance their idea of Progress at the expense of taxpayers.

This incident apparently triggered the worries at the Rancho Santiago Community College District, as the staff report states “Earlier in fall of 2013, information was presented to the Chancellor by one of the trustees concerning a challenge brought against a public agency in northern California concerning the discussion of PLA negotiations in closed session.”

What can be done about this union scheme?

Plan of Action for Californians Who Appreciate the Purpose of Checks and Balances

  1. Citizens in the Rancho Santiago Community College District (Anaheim Hills, Garden Grove, Irvine, Orange, Santa Ana, Tustin and Villa Park) need to demand that the board conduct discussions about labor agreements for private construction contractors in public. These negotiations are NOT with employee bargaining units – they are about a labor agreement that construction companies have to sign with trade unions as a condition of winning a contract.
  2. Urge the California Attorney General Kamala Harris to consider certain purposes and benefits of open meetings as she responds to a request from the chancellor of the Rancho Santiago Community College District for an advisory opinion about discussing Project Labor Agreement negotiations in closed session. (Union lobbyists and attorneys are likely doing so.)
  3. Watch out for a bill to be introduced in the 2014 legislative session that will amend the Ralph M. Brown Act to explicitly authorize Project Labor Agreement negotiations to be discussed in closed session. Such a bill is a natural continuation of the ongoing union strategy to chip away at pesky obstacles to Progress such as public records access and open meetings access. (Don’t be surprised if this is a gut-and-amend proposal introduced shortly before the legislature adjourns.)

Kevin Dayton is the President & CEO of Labor Issues Solutions, LLC, and is the author of frequent postings about generally unreported California state and local policy issues at www.laborissuessolutions.com. Follow him on Twitter at @DaytonPubPolicy.

 

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