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Laborers Local #942 v. Lampkin (3/20/98), 956 P 2d 422
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
LABORERS LOCAL #942, )
) Supreme Court No. S-7651
Appellant, )
) Superior Court No.
v. ) 4FA-96-678 CI
)
DEBORAH LAMPKIN, COLE LUSK, ) O P I N I O N
KARL HNILIKA, DANIEL McGRATH, )
KRIS STRAYER, CODY ENGLE, ) [No. 4958 - March 20, 1998]
RONALD ASHCRAFT, MELVIN )
LINDQUIST, BRUCE PARDY, DICK )
EICKMAN, JEFFREY J. BOUTON, )
ELLIS M. CHAPMAN, DWIGHT C. )
HJORTH, RAYMOND L. HOBSON, )
DAVID JOHNSON, DARRIN C. )
KOLOSKI, BRIAN LUOMA, JOHN J. )
MATYKOWSKI, MICHAEL K. )
NICHOLS, MATT SEEKATZ, ERIC )
A. STEWART, SCOTT WALKER, )
SCOTT WATSON, GORDON L. )
WINDBURN, ANDREW J. WORKMAN, )
ANTHONY H. FAZIO, BRETT A. )
McLEAN, CHRIS H. SHARPE, )
DAVID D. STEWART, JASON )
CHALSTROM, JEFFREY E. HATT, )
JOHN BLANKENSHIP II, MARTIN )
M. SNAVELY, RICHARD W. PACE, )
STEVE W. ELDRIDGE, TIM )
BECKLEY, WILLIAM L. SLAYDEN, )
SCOTT D. ANDERSON, DAVID )
CORBIN, JERRY WINKELMAN, )
TODD BARY, JOSEPH VOORHEES, )
RICHARD L. ENGEBRETSON, )
EDWARD J. MAYER, ROGER STONE, )
VINCENT GROFF, MARTIN THEIS, )
DWANE A. VIERS, MARK A. LONG, )
GLENN RUSH, ROD NISSEN, )
RICHARD HAM, ROGER K. )
MARSHALL, SCOTT A. SLUKA, )
JOHN NAU, SHAWN OROURKE, )
ARTHUR A. ARMSTRONG, DAVID )
ARMSTRONG, DONALD CULVER, )
JOHN JANSSEN, THOMAS HAWKINS, )
GREGORY BISH, ELDON WARTES, )
MARK WARTES, J.F. (STONEY) )
STOLBERG, OSBORNE CONSTRUC- )
TION CO., SAMSON ELECTRIC, )
INC., SLAYDEN PLUMBING & )
HEATING, INC., and VOORHEES )
CONCRETE CUTTING SPECIALISTS, )
INC., )
)
Appellees. )
______________________________)
)
FAIRBANKS BUILDING AND )
CONSTRUCTION TRADES COUNCIL, ) Supreme Court No. S-7662
AFL-CIO, )
) Superior Court No.
Appellant, ) 4FA-96-678 CI
)
v. )
)
DEBORAH LAMPKIN, COLE LUSK, )
KARL HNILIKA, DANIEL McGRATH, )
KRIS STRAYER, CODY ENGLE, )
RONALD ASHCRAFT, MELVIN )
LINDQUIST, BRUCE PARDY, DICK )
EICKMAN, JEFFREY J. BOUTON, )
ELLIS M. CHAPMAN, DWIGHT C. )
HJORTH, RAYMOND L. HOBSON, )
DAVID JOHNSON, DARRIN C. )
KOLOSKI, BRIAN LUOMA, JOHN J. )
MATYKOWSKI, MICHAEL K. )
NICHOLS, MATT SEEKATZ, ERIC )
A. STEWART, SCOTT WALKER, )
SCOTT WATSON, GORDON L. )
WINDBURN, ANDREW J. WORKMAN, )
ANTHONY H. FAZIO, BRETT A. )
McLEAN, CHRIS H. SHARPE, )
DAVID D. STEWART, JASON )
CHALSTROM, JEFFREY E. HATT, )
JOHN BLANKENSHIP II, MARTIN )
M. SNAVELY, RICHARD W. PACE, )
STEVE W. ELDRIDGE, TIM )
BECKLEY, WILLIAM L. SLAYDEN, )
SCOTT D. ANDERSON, DAVID )
CORBIN, JERRY WINKELMAN, )
TODD BARY, JOSEPH VOORHEES, )
RICHARD L. ENGEBRETSON, )
EDWARD J. MAYER, ROGER STONE, )
VINCENT GROFF, MARTIN THEIS, )
DWANE A. VIERS, MARK A. LONG, )
GLENN RUSH, ROD NISSEN, )
RICHARD HAM, ROGER K. )
MARSHALL, SCOTT A. SLUKA, )
JOHN NAU, SHAWN OROURKE, )
ARTHUR A. ARMSTRONG, DAVID )
ARMSTRONG, DONALD CULVER, )
JOHN JANSSEN, THOMAS HAWKINS, )
GREGORY BISH, ELDON WARTES, )
MARK WARTES, J.F. (STONEY) )
STOLBERG, OSBORNE CONSTRUC- )
TION CO., SAMSON ELECTRIC, )
INC., SLAYDEN PLUMBING & )
HEATING, INC., and VOORHEES )
CONCRETE CUTTING SPECIALISTS, )
INC., )
)
Appellees. )
______________________________)
)
FAIRBANKS NORTH STAR BOROUGH, )
) Supreme Court Nos. S-7765/7775
Appellant and )
Cross-Appellee, ) Superior Court No.
) 4FA-96-678 CI
v. )
)
DEBORAH LAMPKIN, COLE LUSK, )
KARL HNILIKA, DANIEL McGRATH, )
KRIS STRAYER, CODY ENGLE, )
RONALD ASHCRAFT, MELVIN )
LINDQUIST, BRUCE PARDY, DICK )
EICKMAN, JEFFREY J. BOUTON, )
ELLIS M. CHAPMAN, DWIGHT C. )
HJORTH, RAYMOND L. HOBSON, )
DAVID JOHNSON, DARRIN C. )
KOLOSKI, BRIAN LUOMA, JOHN J. )
MATYKOWSKI, MICHAEL K. )
NICHOLS, MATT SEEKATZ, ERIC )
A. STEWART, SCOTT WALKER, )
SCOTT WATSON, GORDON L. )
WINDBURN, ANDREW J. WORKMAN, )
ANTHONY H. FAZIO, BRETT A. )
McLEAN, CHRIS H. SHARPE, )
DAVID D. STEWART, JASON )
CHALSTROM, JEFFREY E. HATT, )
JOHN BLANKENSHIP II, MARTIN )
M. SNAVELY, RICHARD W. PACE, )
STEVE W. ELDRIDGE, TIM )
BECKLEY, WILLIAM L. SLAYDEN, )
SCOTT D. ANDERSON, DAVID )
CORBIN, JERRY WINKELMAN, )
TODD BARY, JOSEPH VOORHEES, )
RICHARD L. ENGEBRETSON, )
EDWARD J. MAYER, ROGER STONE, )
VINCENT GROFF, MARTIN THEIS, )
DWANE A. VIERS, MARK A. LONG, )
GLENN RUSH, ROD NISSEN, )
RICHARD HAM, ROGER K. )
MARSHALL, SCOTT A. SLUKA, )
JOHN NAU, SHAWN OROURKE, )
ARTHUR A. ARMSTRONG, DAVID )
ARMSTRONG, DONALD CULVER, )
JOHN JANSSEN, THOMAS HAWKINS, )
GREGORY BISH, ELDON WARTES, )
MARK WARTES, J.F. (STONEY) )
STOLBERG, OSBORNE CONSTRUC- )
TION CO., SAMSON ELECTRIC, )
INC., SLAYDEN PLUMBING & )
HEATING, INC., and VOORHEES )
CONCRETE CUTTING SPECIALISTS, )
INC., )
)
Appellees and )
Cross-Appellants. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Kevin Dougherty, Anchorage, for
Appellant Laborers Local #942 and Appellant Fairbanks Building and
Construction Trades Council, AFL-CIO. Ardith Lynch, Borough
Attorney, and A. Rene Broker, Assistant Borough Attorney,
Fairbanks, and Robert B. Groseclose, Cook, Schuhmann & Groseclose,
Fairbanks, for Appellant/Cross-Appellee Fairbanks North Star
Borough. Donna C. Willard, Law Offices of Donna C. Willard,
Anchorage, for Appellees/Cross-Appellants Deborah Lampkin et al.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
MATTHEWS, Justice, Dissenting.
I. INTRODUCTION
These consolidated appeals raise the issue of whether
the Fairbanks North Star Borough's decision to require successful
bidders on a construction project to enter into a project labor
agreement with local labor unions violated the Alaska Constitution
and the borough's procurement code. The superior court struck one
provision of the agreement and enjoined enforcement of another
under the state constitution, but upheld the remainder. We affirm
in part and reverse in part, holding that no portion of the
agreement violates the state constitution or the borough's
procurement code.
II. FACTS AND PROCEEDINGS
In 1993 the Fairbanks North Star Borough (Borough)
decided to renovate Lathrop High School (Lathrop High Project).
The $20 million project in downtown Fairbanks, funded in part by an
$8.6 million bond issue approved by Borough voters and in part by
grants from the state, was the largest construction project ever
undertaken by the Borough. The schedule for the project required
that contractors complete a certain amount of work by the end of
the summer of 1996, continue work during the school year without
disrupting classes for about 1,400 students, and complete the
project in the summer of 1997.
Before starting the bidding process, the Borough mayor,
James Sampson, approached the Fairbanks Building and Construction
Trades Council (Trades Council), an organization representing
fourteen local craft unions, to investigate the possibility of a
project labor agreement [Fn. 1] (PLA) for the Lathrop High Project
and another school project. After negotiations, the mayor and the
Trades Council produced a PLA to be entered into by the unions and
the successful bidders on the project. The Borough Assembly
approved a resolution to "support[] the Borough Mayor in his use of
a project labor agreement on [the] Lathrop High [Project],"[Fn. 2]
and the mayor issued an "Executive Order"authorizing the inclusion
of the PLA as a bid specification in the Lathrop High Project. The
bid specification provided:
The CONTRACTOR shall sign and comply with all
terms and conditions of the Project Labor Agreement. The
CONTRACTOR shall sign and return the Project Labor Agreement within
ten (10) calendar days after receipt of Notice of Award.
CONTRACTOR shall assure that all subcontractors also sign the
Project Labor Agreement prior to their employment on the project
and comply with all of its terms and conditions for the duration of
the project.
Under the PLA, contractors retained their rights to
"direct the working force"and control construction but recognized
"the Unions as the sole and exclusive bargaining representatives
with respect to rates of pay, hours and other conditions of
employment." The PLA required the employer to be bound by the "job
referral systems"contained in the "master agreements"between the
particular unions and union employers (Hiring Hall Provision). The
PLA stated that the
selection of applicants for referral to jobs
shall be on a non-discriminatory basis and in accordance with the
President's Executive Order 11246 and Title VII of the Civil Rights
Act of 1964, as amended, and shall not be based on, or in any way
affected by, union membership, or the lack thereof. [Fn. 3]
The PLA further stated that these "job referral systems must be
operated in accordance with federal and state law and the
conditions set forth in the [PLA]." The employer retained the
right under the PLA and the master agreements to reject any job
applicant referred by the union upon "written notification or
cause."
Employees under the PLA were required
to become members in good standing in the
respective Unions within eight (8) days following the beginning of
their employment or the effective date of this Agreement, whichever
is later. Good standing shall be defined as the tendering of
periodic dues and fees as uniformly required by the Unions.
The PLA also established grievance procedures, wages, hours, and
working conditions and required employers to "make contributions to
the established fringe benefit funds in the amounts designated by
the appropriate Local Union"(Fringe Benefits Provision). The PLA
eliminated shift differentials, double pay on Sundays, premium pay,
and some paid holidays. It also permitted flexible scheduling.
Finally, the PLA provided that there would "be no strikes,
picketing, work stoppages, slowdowns or other disruptive activity
against signatory contractors"during the term of the PLA.
The Borough issued its invitation for bids, including the
specification requiring successful bidders to sign the PLA, on
March 7, 1996. On April 1, 1996, Deborah Lampkin et al.
(collectively, Lampkin), a group of non-union employees, taxpayers,
and employers, filed a complaint against the Borough. The
complaint alleged that the Borough's inclusion of the PLA bid
specification violated the Alaska and United States Constitutions,
the Employee Retirement Income Security Act (ERISA), and Borough
and state procurement law. Along with the complaint, Lampkin filed
a motion for a temporary restraining order and a consolidated trial
on the preliminary injunction and the merits.
The superior court scheduled a hearing for April 5, 1996.
Before the hearing, the Borough filed a notice of removal to
federal court, and Laborers Local 942 and the Trades Council
(collectively, Unions) filed motions to intervene. After
considering Lampkin's amended complaint eliminating all claims
under federal law, the federal district court granted Lampkin's
motion to remand to state superior court on April 11, scheduling
certification to state court for April 25 so as to retain
jurisdiction over the Borough's motion for reconsideration.
Upon oral notification of the remand on April 12, the
superior court granted Lampkin's motion for a temporary restraining
order and a combined hearing on the preliminary injunction and the
merits, setting the hearing for April 17. The Borough objected to
the court's decision to grant a trial on the merits with only five
days' notice and without giving it a chance to oppose the request.
It also objected to Lampkin's failure to join the unions that had
signed the PLA.
The federal court denied the Borough's motion for
reconsideration and issued an order transferring jurisdiction to
the state court on April 16. The state court received this order
on the morning of the one-day combined trial and hearing on the
preliminary injunction. At the beginning of this proceeding, the
Unions notified the trial court of their pending motions to
intervene. The superior court denied the motions and proceeded
with the trial.
The superior court entered its decision on April 22,
1996, holding that the "restrictive hiring hall"provisions of the
PLA "violate[d] the equal protection rights of non-union workers in
the construction field." It also ruled that the PLA's requirement
that workers contribute "to separate pension funds which contain
onerous vesting requirements impermissibly requires the non-union
workers to fund programs which are of no benefit to either the
Borough or the affected workers." As a remedy, the superior court
ordered that the PLA "be modified to clarify the fact that any
contractors working on the Lathrop High School Remodeling Project
may hire workers from either union or non-union sources"and that
the Borough not enforce the portion of the PLA requiring payments
into pension programs. The court then concluded that the modified
PLA complied with the procurement provisions of state and Borough
law.
The Borough moved for reconsideration of the trial
court's finding that the state procurement code applied to the
project. The trial court issued an order stating that the state
procurement code "does not likely cover the Lathrop High School
project"but declined to issue final judgment on this issue without
"more specific evidence as to exactly what the sources of funds
were for the Lathrop project." Finally, the superior court,
finding that both parties prevailed on a main issue, denied motions
by both parties for attorney's fees and costs.
The Borough appeals the superior court's order striking
the Hiring Hall Provision from the PLA. The Unions appeal the
superior court's denial of their motion to intervene and the
court's order striking the requirement that employers contribute to
union pension funds. Lampkin cross-appeals the superior court's
ruling that the PLA as modified by the court's order did not
violate state or Borough law and the court's denial of her request
for attorney's fees.
III. DISCUSSION
A. The Borough's Action Did Not Violate the Equal Protection
Rights of Non-union Workers. [Fn. 4]
The Borough challenges the superior court's ruling that
the PLA violated "the equal protection rights of non-union workers
in the construction field." The superior court reasoned that while
the Borough had important and legitimate reasons to require the
successful bidder to sign the PLA, the "nexus between this
requirement and the Borough's important reasons"was not sufficient
to justify infringing the right of non-union construction workers
"to work in the construction industry."
Analysis of claims under the equal protection clause
embodied in article 1, section 1 of the Alaska Constitution
requires a sliding scale approach that often affords greater
protection to individual rights than that provided by the federal
constitution. See State, Dep't of Transp. & Labor v. Enserch
Alaska Constr., Inc., 787 P.2d 624, 631 (Alaska 1989). Under this
approach,
we first determine the importance of the
individual interest impaired by the challenged enactment. We then
examine the importance of the state interest underlying the
enactment, that is, the purpose of the enactment. Depending upon
the importance of the individual interest, the equal protection
clause requires that the state's interest fall somewhere on a
continuum from mere legitimacy to a compelling interest. Finally,
we examine the nexus between the state interest and the state's
means of furthering that interest. Again depending upon the
importance of the individual interest, the equal protection clause
requires that the nexus fall somewhere on a continuum from
substantial relationship to least restrictive means.
Id. at 631-32 (citing Alaska Pac. Assurance Co. v. Brown, 687 P.2d
264, 269-70 (Alaska 1984)). In Enserch, we held that "the right to
engage in economic endeavor"is an important right that the
government may impair only if its interest in taking the challenged
action is important and the nexus between the action and the
interest it serves is close. [Fn. 5] See id. at 633.
We are aware of only one published opinion addressing the
equal protection implications of a project labor agreement. In
that opinion, an Ohio appellate court ruled that a project labor
agreement very similar to that at issue here did not discriminate
on the basis of union affiliation. See State ex rel. Associated
Builders & Contractors, Cent. Ohio Chapter v. Jefferson County Bd.
of Comm'rs, 665 N.E.2d 723, 726 (Ohio App. 1995). However, the
superior court found in this case that the "union referral systems
which the contractor must use exclusively are most assuredly
affected by union membership or the lack thereof."[Fn. 6]
Although the parties discuss at length whether the PLA
discriminates against non-union workers, we conclude that we need
not address this question. Instead, for the purpose of our
analysis, we assume that the PLA impairs the right of non-union
workers to engage in an economic endeavor. Therefore, we proceed,
as we did in Enserch, to determine whether the Borough's interest
in requiring successful bidders to sign the PLA was important and
whether the nexus between that interest and the PLA was close. [Fn.
7]
In his executive order directing the use of the PLA,
Mayor Sampson identified several interests that he believed the PLA
would advance. These included the benefits to the Borough of being
able to "negotiate and secure, prior to the bidding process,
meaningful labor concessions." He further relied on the Borough's
interest in "ensur[ing] the ready and adequate supply of highly
trained and skilled craft workers, labor stability, timely and
efficient completion of the project, and uniform grievance
procedures."[Fn. 8] The Borough Assembly also cited these
advantages in adopting its resolution supporting the use of the
PLA.
We think it clear that the Borough, in undertaking the
largest and most complex construction project in its history, a
project involving a school with more than 1,400 students located in
downtown Fairbanks, had a significant interest in assuring that the
project would be completed on schedule and within budget. Indeed,
such goals are at the heart of the effective management of a
construction project, whether the owner of the project is a private
party or a public entity acting in a proprietary capacity. See
Building & Constr. Trades Council v. Associated Builders &
Contractors, 507 U.S. 218, 232 (1993) (Boston Harbor) (noting that
the "legitimate"incentives "to ensure an efficient project that
would be completed as quickly and effectively as possible at the
lowest cost"are identical whether the project owner is public or
private). The Borough's failure to achieve these goals would
affect not just the interests of one narrow portion of the Borough
but would harm all residents, especially students at the high
school and Borough taxpayers. Therefore, we agree with the
superior court that the Borough's interests in using the PLA were
"important"for the purpose of equal protection analysis.
Furthermore, we conclude that the nexus between those
interests and the challenged PLA satisfies the demands of equal
protection. First, the terms of the PLA demonstrate its close
relationship to the special requirements of the Lathrop High
Project, especially the need to perform construction with as little
disruption of classes as possible. The PLA standardized and
reduced the number of holidays, allowed for flexible work weeks and
starting times, and assured that the project would not be slowed or
halted by strikes or other labor disturbances. It lowered the cost
of the project's tight scheduling requirements by eliminating
travel pay, shift differentials, weekend overtime pay, paid
holidays, and premium pay for special duties. Finally, as the
superior court noted, the PLA promoted labor stability and
implemented uniform grievance procedures on the large and complex
project. [Fn. 9]
Moreover, the Borough's use of the PLA is supported by a
long history of project labor agreements in both public and private
construction, including projects such as federal hydroelectric dams
and the Trans-Alaska Pipeline. See Henry H. Perritt, Jr., Keeping
the Government Out of the Way: Project Labor Agreements Under the
Supreme Court's Boston Harbor Decision, 12 Lab. Law. 69, 69-70
(1996); see also George Harms Constr. Co. v. New Jersey Turnpike
Auth., 644 A.2d 76, 95 (N.J. 1994) (listing projects using project
labor agreements). This history provides compelling evidence of
the usefulness of these agreements in achieving the Borough's
objectives.
Finally, federal law expressly recognizes the
effectiveness of project labor agreements in accomplishing the
goals of construction project owners. Congress amended the
National Labor Relations Act (NLRA) in 1959 specifically to allow
private employers in the construction industry to enter into this
type of agreement, including provisions for union recognition,
compulsory union dues or equivalents, and mandatory use of union
hiring halls. See Boston Harbor, 507 U.S. at 230. The United
States Supreme Court, in rejecting a challenge to project labor
agreements under the NLRA, has also unanimously endorsed them as an
effective tool for public owner-developers in dealing with
conditions in the construction industry. See id. at 230-33; see
also George Harms, 644 A.2d at 95 (noting that project labor
agreements "serve important purposes on major long-term
construction projects").
Given the relationship between the terms of the PLA and
the special requirements of the Lathrop High Project, the
established use of project labor agreements in the construction
industry, and the express endorsement of these agreements by
Congress and the Supreme Court, we determine that the nexus between
the PLA and the Borough's important interests is "close."
Therefore, we hold that even if the PLA impairs the right of non-
union workers to engage in an economic endeavor, it does not
violate their equal protection rights under the Alaska
Constitution. [Fn. 10]
B. The Borough's Action Did Not Violate the Borough's
Procurement Code. [Fn. 11]
In defending the superior court's decision to strike the
Hiring Hall Provision and in arguing on cross-appeal that the court
should have declared the PLA as a whole invalid, Lampkin contends
that the Borough's use of the PLA violates its procurement code.
[Fn. 12] She specifically relies on the procurement code provisions
enunciating the policy of "maximum practicable competition"and
dealing with "sole source procurement."[Fn. 13] The Borough
responds that its procurement code provides sufficient discretion
to allow it to include the bid specification at issue so as to
"ensure legitimate, reasonable proprietary goals,"even if the
specification affects competition. It rejects Lampkin's claim that
the Borough, before adopting the bid specification, "was required
to establish: (1) that the PLA specifications promoted overall
economy for the purposes intended; (2) that the PLA encouraged
maximum free and open competition satisfying the Borough's minimum
needs; and (3) that the PLA was not unduly restrictive."
Resolution of this issue requires careful analysis of the
Borough procurement code's language. First, however, it is
instructive to examine the decisions of other courts that have
addressed the validity of project labor agreements under state
procurement codes. The New York Court of Appeals concluded that
such agreements "are neither absolutely prohibited nor absolutely
permitted in public construction contracts"under the state's
procurement code. New York State Chapter, Inc. v. New York State
Thruway Auth., 666 N.E.2d 185, 187 (N.Y. 1996) (New York State
Thruway). The court stated that a "PLA will be sustained for a
particular project where the record supporting the determination to
enter into such an agreement establishes that the PLA was justified
by the interests underlying the competitive bidding laws." Id. at
187-88.
In that case the court considered project labor
agreements associated with two projects, one a four-year project to
improve the Tappan Zee Bridge and the other a five-year project to
modernize the facilities of a cancer institute. See id. at 190,
192. The agency in charge of the bridge project "determined that
efficiency in completing the project, once commenced, is important
to protect a major revenue-producing asset, maximize public safety,
and minimize inconvenience to the traveling public." Id. at 190.
A prior project on the bridge had been subject to a labor dispute,
and the bridge had been picketed. See id. After a consultant
estimated in a "detailed report"that a PLA would result in labor
saving of at least $6 million, the state agency negotiated and
signed a project labor agreement. Id. at 191. The court of
appeals held that the PLA for the bridge project did not violate
state procurement laws because it was "directly tied to competitive
bidding goals." Id. It stated:
The Thruway Authority's detailed focus on the
public fisc -- both cost savings and uninterrupted revenues -- the
demonstrated unique challenges posed by the size and complexity of
the project, and the cited labor history collectively support the
determination that this PLA was adopted in conformity with the
competitive bidding statutes.
Id.
The court then turned to the project labor agreement for
the cancer institute project. The court held that the PLA was not
"consistent with the principles underlying the competitive bidding
statutes." Id. at 193. It determined that the responsible agency
failed to show any "cost savings . . . or any unique feature of the
project which necessitated a PLA,"and that the agency "had already
let up to six contracts through competitive bidding on the project
with no evidence of reduced efficiencies." Id. The court stated
that a "[p]ost hoc rationalization . . . cannot substitute for a
showing that, prior to deciding in favor of a PLA, the agency
considered the goals of competitive bidding." Id. The crux of the
court's concern was that the agency show "something more"than a
generalized "desire for labor stability so that the work will be
completed on time." Id. at 193-94.
The New Jersey Supreme Court determined that a PLA was
invalid under the state procurement laws in George Harms
Construction Co. v. New Jersey Turnpike Authority, 644 A.2d 76
(N.J. 1994). George Harms involved a project to widen the New
Jersey Turnpike. Id. at 79. The plaintiff contractor submitted
the lowest bid on the project, and a week later the agency in
charge of the project adopted a resolution to require "as a
condition of all contracts"that successful bidders "enter into
project labor agreements with the appropriate affiliated locals of
the Building and Construction Trades Council of the AFL-CIO of the
State of New Jersey." Id. In concluding that this PLA requirement
was invalid, the court considered the policy underlying the
procurement code, focusing on three factors: (1) the "unfettered
competition"fostered as "[t]he paramount policy of [the state's]
public-bidding laws"; (2) its concern that the legislature had not
addressed the policy issues implicated by the agreement; and (3)
its interpretation of the agreement as a "sole source"contract for
construction services. Id. at 95; see also Tormee Constr., Inc. v.
Mercer County Improvement Auth., 669 A.2d 1369 (N.J. 1995).
Finally, an intermediate appellate court in Ohio upheld
a project labor agreement in State ex rel. Associated Builders &
Contractors, Central Ohio Chapter v. Jefferson County Board of
Commissioners, 665 N.E.2d 723 (Ohio App. 1995). The court held
that the agreement did not conflict with the purpose of the
competitive bidding statutes, which it stated was "to enable a
public contracting authority to obtain the best work at the lowest
possible price while guarding against favoritism and fraud." Id.
at 727.
In considering the application of these precedents, we
first turn to the interests underlying the procurement code at
issue. The Borough's code states that its purpose "is to provide
for the fair and equitable treatment of all persons involved in
public purchasing by the borough, to maximize the purchasing value
of public funds in the procurement, and to provide safeguards for
maintaining a procurement system of quality and integrity." FNSB
16.21.010 (1993). The code further enunciates a "policy"of
"maximum practicable competition,"providing that "[a]ll
specifications shall be drafted so as to promote overall economy
for the purposes intended and encourage maximum free and open
competition in satisfying the borough's minimum needs, and shall
not be unduly restrictive."[Fn. 14] FNSB 16.35.010.
While we have never addressed the interests underlying
the Borough's procurement code, we have stated generally that the
purposes of competitive bidding are
to prevent fraud, collusion, favoritism,
and improvidence in the administration of
public business, as well as to insure
that the [state] receives the best work or supplies at the most
reasonable prices practicable.
. . . [T]he requirement of public
bidding is for the benefit of property holders and taxpayers, and
not for the benefit of the bidders; and such requirements should be
construed with the primary purpose of best advancing the public
interest.
McBirney & Assocs. v. State, 753 P.2d 1132, 1135-36 (Alaska 1988)
(quoting Gostovich v. City of West Richland, 452 P.2d 737, 740
(Wash. 1969)). In light of these principles, we are not persuaded
that this case calls for the highly restrictive approach applied to
project labor agreements by the New Jersey Supreme Court. [Fn. 15]
First, although the Borough's procurement code states the
policy objective that specifications should be written so as to
encourage "maximum practicable competition,"this policy does not
require the "unfettered competition"that the George Harms court
found required by the procurement code at issue there. 644 A.2d at
95. Indeed, close textual analysis of the procurement code reveals
that "encourag[ing] maximum free and open competition"must be
balanced against "satisfying the borough's minimum needs." FNSB
16.35.010. In this case, as discussed above, the Borough's minimum
needs included performance of the school construction with as
little disruption of classes as possible, flexible scheduling, and
elimination of the potential for strikes. [Fn. 16] Considered in
the context of such "minimum needs,"the PLA is not an "unduly
restrictive"specification.
Furthermore, contrary to the determination of the George
Harms court, we do not believe that the use of the PLA amounts to
sole source procurement. See 644 A.2d at 95. The provision of the
procurement code governing sole source procurement is implicated
only when a contract is "awarded without competition." FNSB
16.30.040. Even assuming that the PLA affected competition as
Lampkin asserts, it cannot be construed as limiting bidding to any
particular contractor. See New York State Thruway, 666 N.E.2d at
191 (stating that "[t]he fact that certain nonunion contractors may
be disinclined to submit bids does not amount to the preclusion of
competition"). Indeed, the record indicates that an invitation to
bid on another Borough project that included a project labor
agreement drew an above-average number of bidders.
Rather, we conclude that the correct approach to this
issue is that taken by the New York and Ohio courts, as modified by
the deferential standard appropriate to a review of the Borough's
own interpretation of its procurement code. Thus, the question in
this case is whether the Borough had a reasonable basis to
determine that the PLA furthered the interests underlying the
Borough's procurement code. After reviewing the record, we hold
that it did. [Fn. 17] The project unquestionably presented special
challenges to the Borough. Located in downtown Fairbanks, the
Lathrop High Project was the biggest construction project ever
undertaken by the Borough. Furthermore, the project required
flexible scheduling so that construction would not interfere with
classes. As discussed above, the PLA helped the Borough to meet
these challenges by allowing for flexibility in scheduling,
assuring that such scheduling would add as little as possible to
the cost of the project, and eliminating the potential for strikes
or other labor difficulties. Collectively, these considerations
support the determination by both Mayor Sampson and the Borough
Assembly, made prior to the adoption of the PLA bid specification,
that the use of the PLA accorded with the objectives of the
procurement code. Specifically, the Borough had a reasonable basis
to find that the PLA would operate "to maximize the purchasing
value of public funds in the procurement"for the project, while
encouraging "maximum free and open competition in satisfying the
[B]orough's minimum needs."[Fn. 18] FNSB 16.21.010 & 16.35.010.
As even the George Harms court noted in striking down a
project labor agreement, the policy choice presented by the use of
such agreements is a "close"one. See 644 A.2d at 95. While such
an agreement may restrict competition, "the lessened competition
may produce other aspects of efficiency." Id.; see also Libby v.
City of Dillingham, 612 P.2d at 45 (Rabinowitz, J., concurring)
(noting that "there are contexts in which a requirement of
competitive bidding impedes rather than enhances the efficiency of
municipal government"). In this case, both the Borough's
administrative and legislative branches considered the advantages
of the PLA for the Lathrop High Project and decided that it would
best serve the Borough's interests. [Fn. 19] After examining the
Borough's procurement code and the interests underlying it, we hold
that the Borough's use of a PLA for the Lathrop High Project does
not violate the mandates of its procurement code.
C. The PLA Did Not Violate Other Constitutional Rights of
Non-union Workers or Contractors.
Lampkin argues on cross-appeal that the Borough violated
the equal protection rights of non-union contractors by forcing
them "to sign an unwanted, unnegotiated bargaining agreement,"
barring them "from utilizing an experienced work force with known
qualities,"subjecting them "to unfamiliar work rules,"and binding
them by "other alien, undisclosed internal union provisions." We
disagree. The provisions of the PLA apply equally to all
contractors on the project, whether union or non-union. As the
United States Supreme Court stated in Boston Harbor, when
contractors are confronted by a bid specification requiring them to
enter a project labor agreement, they "are faced with a choice.
They may alter their usual mode of operation to secure the business
opportunity at hand, or seek business from purchasers whose
perceived needs do not include a project labor agreement." 507
U.S. at 231; see also Associated Builders & Contractors, Inc. v.
City of Seward, 966 F.2d 492, 499 (9th Cir. 1992) (upholding city's
requirement that contractors bidding on public project sign a labor
agreement with a union against a federal equal protection challenge
by non-union contractors alleging that the clause constituted state
action favoring union contractors). We find no authority for the
proposition that non-union contractors have a constitutionally
protected right to be free of such bid specifications. Therefore,
we hold that the PLA does not violate the equal protection rights
of non-union contractors.
Lampkin also argues that the superior court erred in its
ruling with regard to the Fringe Benefits Provision. The superior
court ruled that the PLA could not require employers to make
contributions to funds that did not vest during the project. It
thus prohibited the enforcement of the requirement that employers
contribute to union pension funds, but upheld the requirement that
employers contribute to other health and welfare funds.
Specifically, Lampkin argues that requiring employers to contribute
to any particular fringe benefit fund constitutes an
unconstitutional taking under article I, section 18 of the Alaska
Constitution. [Fn. 20] The Unions, on the other hand, contend that
the trial court erred by modifying the effect of the Fringe
Benefits Provision with respect to pension funds.
The first step in analyzing Lampkin's argument under the
takings clause is to identify the property interest at issue. See
DeLisio v. Alaska Superior Court, 740 P.2d 437, 440 (Alaska 1987).
Under AS 36.05.010, all employers, union and non-union, must pay at
least the "prevailing wage"on public construction projects. The
prevailing wage includes the "basic hourly rate"and fringe
benefits, 8 Alaska Administrative Code (AAC) 30.900(16) (1996),
which are to be paid "into the appropriate union trust, approved
private pension plan, or other approved fringe benefit plan." 8
AAC 30.900(6)(B).
However, according to Lampkin and testimony at trial,
many non-union employers, rather than contributing to health
insurance or pension funds, pay fringe benefits directly to
employees. She argues that non-union employees therefore have a
protected property interest in receiving the fringe benefit portion
of their wages as cash rather than as a contribution by the
employer to a benefit plan or union trust. This is not correct.
Workers on public projects have no right to receive their fringe
benefits directly from the employer rather than in the form of
employer contributions to approved fringe benefits plans,
regardless of whether those plans will vest during the project.
[Fn. 21] Thus, the PLA's requirement that employers make such
contributions does not affect a protected property interest.
Therefore, the Fringe Benefits Provision does not violate the
takings clause of the Alaska Constitution, and the superior court
erred in modifying it so as not to require employers to contribute
to pension funds.
Finally, Lampkin challenges the provision of the PLA
requiring all workers under the agreement to pay "periodic dues and
fees as uniformly required by the Unions." She argues that this
requirement violated her right under article I, section 6 of the
Alaska Constitution [Fn. 22] to be free of "forced association."
As Lampkin points out, the United States Supreme Court has held
that unions may not require members to provide funds "for the
expression of political views, on behalf of political candidates,
or toward the advancement of other ideological causes not germane
to its duties as collective-bargaining representatives." Abood v.
Detroit Bd. of Educ., 431 U.S. 209, 235-36 (1977). The Court has
made clear that unions representing public employees must finance
their political expression only "from charges, dues, or assessments
paid by employees who do not object to advancing those ideas and
who are not coerced into doing so against their will by the threat
of loss of governmental employment." Id. at 236. However, the
Court has also established that the government may
constitutionally require government employees to pay union dues to
support "[t]he tasks of negotiating and administering a collective-
bargaining agreement and representing the interests of employees in
settling disputes and processing grievances." Id. at 221; see also
AS 23.40.110(b)(authorizing a public employer to make "an agreement
with an organization to require as a condition of employment . . .
payment by the employee to the exclusive bargaining agent of a
service fee to reimburse the exclusive bargaining agent for the
expense of representing the members of the bargaining unit").
We conclude that Lampkin's argument on this issue fails
because she has not established or even clearly alleged that any
dues paid under the PLA will be used by the Unions to support
political expression. The only testimony on this issue was that of
Jay Quakenbush, a union representative. He testified that the
political activities of his union are financed by a separate fund
created from the voluntary contributions of members, not by union
dues. In the absence of any evidence supporting Lampkin's claim,
we refuse to assume that the Unions would exact dues beyond those
"necessary to 'performing the duties of an exclusive representative
of the employees in dealing with the employer on labor-management
issues.'"[Fn. 23] Communication Workers of America v. Beck, 487
U.S. 735, 762-63 (1988) (quoting Ellis v. Brotherhood of Railway
Clerks, 466 U.S. 435, 448 (1984)).
D. The Superior Court Erred In Denying the Unions' Motion to
Intervene. [Fn. 24]
Finally, we consider whether the superior court erred in
denying the Unions' motions to intervene. The superior court
stated that it denied the motions because it "did not feel that the
individual unions were indispensable parties to this declaratory
judgment action, nor that their presence was necessary to resolve
the issues before it."
We apply a four-part test to determine whether a motion
to intervene as of right should be granted:
(1) the motion must be timely; (2) the
applicant must show an interest in the subject matter of the
action; (3) it must be shown that this interest may be impaired as
a consequence of the action; and (4) it must be shown that the
interest is not adequately represented by an existing party.
State v. Weidner, 684 P.2d 103, 113 (Alaska 1984). Lampkin argues
that the Unions' motions to intervene were not timely, that the
Unions had no interest in the subject matter of the action, and
that the Unions' interests were adequately represented by the
Borough.
We conclude that the Unions' motions were timely filed.
The Unions moved to intervene in federal court approximately one
week after the complaint was filed. They brought their motions to
the attention of the state superior court on the day that court
received the certificate of remand from the federal court.
Lampkin's argument that the Unions should have filed earlier with
the state court ignores that fact that the state court apparently
did not have jurisdiction of the case prior to receiving the
certified copy of the order remanding the case from federal
district court. See 28 U.S.C. sec. 1447(c) (1994) (stating that
when
the federal district court remands to state court "[a] certified
copy of the order of remand shall be mailed by the clerk to the
clerk of the State court"and the "State court may thereupon
proceed with such case"). Indeed, the only reason that the motions
to intervene might be considered untimely was the speed with which
the trial court conducted the litigation, moving from complaint to
trial in little more than two weeks. The quick scheduling of these
proceedings, even if timed to accommodate the interests of Lampkin
and the Borough, should not be held against the Unions.
We also conclude that the Unions had a direct interest in
the subject matter of the action. Lampkin, relying on Weidner,
contends that the interest of the Unions was "contingent"and
therefore did not justify intervention as of right. In Weidner, we
stated that "the requisite interest for intervention as a matter of
right must be direct, substantial, and significantly protectable."
684 P.2d at 113. In that case, we considered a motion to intervene
in an action challenging the legality of a land lottery by the
winners of the lottery. See id. at 106-07. The superior court had
issued an interlocutory order permitting the lottery "to be
conducted in the interest of administrative efficiency and
convenience, but specifically ordered that no interest or title
would vest in the lottery winners pending the outcome of [the]
litigation." Id. at 113. After the lottery, the winners moved to
intervene on all counts, and the superior court denied the motion
except as to one count. See id. The lottery winners appealed, and
we affirmed, holding that the interest of the lottery winners was
a "contingent"interest insufficient to justify intervention as of
right. Id.
Lampkin is correct that the PLA did not become an
executed bargaining agreement until the successful bidder signed
it. However, the Unions' interest in the PLA is broader than
merely their contractual right to enforce the terms of the PLA and
thus is distinguishable from the interest at issue in Weidner. The
lottery winners in Weidner took their interest after the litigation
in which they sought to intervene had begun and were thus on notice
of the contingent nature of their interest prior to obtaining it.
The Unions, on the other hand, participated in negotiating the PLA
and were not merely beneficiaries of a challenged administrative
process. Their stake in the implementation of the PLA, arising
during their negotiation of the PLA and thus prior to Lampkin's
challenge, was as direct, substantial, and significantly
protectable as the Borough's. Therefore, the Unions' interest was
sufficient to warrant intervention.
Finally, we determine that this interest was not
adequately represented by the Borough. As the Unions point out,
Lampkin's claim that the interests of the Borough and the Unions
were "identical"is inconsistent with the fact that the PLA was a
product of negotiations between the two entities. Clearly, the
Borough's interest in preserving the PLA, and hence the concessions
on wages, hours, and working conditions it had won, did not
coincide with the Unions' interest in protecting other provisions
of the agreement. This divergence in interests is demonstrated by
the Borough's failure to appeal the superior court's decision to
modify the Fringe Benefits Provision, a provision of considerable
importance to the Unions on appeal.
Therefore, we hold that the superior court abused its
discretion in denying the Unions' motion to intervene as of right.
The court's ruling unfairly denied the Unions a full opportunity to
defend their substantial interest in the PLA.
IV. CONCLUSION
For the above reasons, we conclude that the Borough's
decision to require successful bidders on the Lathrop High Project
to sign the PLA did not violate state or Borough law. [Fn. 25]
Therefore, we VACATE and REVERSE the superior court's orders
striking the Hiring Hall Provision and modifying the Fringe Benefit
Provision and AFFIRM its ruling upholding the rest of the PLA.
MATTHEWS, Justice, dissenting.
I.
Section 16.35.010 of the Fairbanks North Star Borough
Procurement Code is titled "Maximum practicable competition." It
requires that "all specifications shall . . . encourage maximum
free and open competition . . . ."[Fn. 1] The text of the
ordinance, taken together with the title, mandates that all
specifications facilitate maximum practicable free and open
competition. By contrast, the PLA discourages competition by
disadvantaging both open shop contractors and subcontractors. It
thus violates the Borough Code, unless it would not be practicable
to bid without the PLA. As the Borough has not shown that bidding
without the PLA would be impracticable, using the PLA violates
section .010 of the code.
The PLA is a contract specification. It requires that
all contractors and subcontractors on the Lathrop High School
project employ only union workers. In other words, all contractors
and subcontractors must either be, or become, union shop employers.
"Open shop"contractors and subcontractors employ workers without
regard to union affiliation. While open shop contractors are not
legally excluded from bidding on the project, they are placed at a
serious disadvantage, since, as the trial court found, the
restrictive hiring hall practices of the unions limit their ability
to employ their permanent or accustomed work crews. [Fn. 2]
Further, the PLA requires all contractors to make fringe benefit
payments into union health and pension plans. For open shop
contractors that maintain their own plans this can result in a
double payment for fringe benefits. [Fn. 3] And, assuming that
open shop contractors are able to employ their permanent workers,
the workers may not benefit from the union health and pension plans
because they may not work long enough to meet vesting thresholds.
[Fn. 4]
Open shop contractors and subcontractors make up a
significant part of the construction industry. About seventy-five
percent of all construction work in the United States is performed
by open shop contractors. [Fn. 5] Further, about eighty percent of
the construction workers in the United States are nonunion. [Fn. 6]
Does the PLA then "encourage maximum free and open
competition"as required by the Borough Code? Obviously, by
discouraging participation by open shop contractors it does just
the opposite. Is it thus illegal? The answer may be yes, per se.
However, the title of section .010 suggests that the requirement of
maximum competition is not absolute, and that what is actually
required is maximum "practicable"competition. If so, the PLA
contravenes the Borough Code unless there exist overriding reasons
which render "impracticable"a bid package which does not contain
a PLA. [Fn. 7]
"Practicable"means "possible to practice." Webster's
Third New Int'l Dictionary 1780 (1968). "Reasonably possible"is
a synonymous phrase. In the context of section .010 the term
clearly relates to cost. Thus the question is whether it would be
reasonably possible from a cost standpoint for the Borough to bid
the Lathrop project without the PLA specification.
The Borough has not shown that bidding the project
without a PLA specification would be economically unreasonable.
The Borough Assembly passed a resolution stating that PLAs "have
proven to be of economic benefit to their owners." This statement
may be true in some cases, as where PLA's prevent expensive work
stoppages. But this statement does not establish that bidding this
project without a PLA would not be reasonably possible. [Fn. 8]
Although Mayor Sampson testified that, in his view, the PLA
specification would "ensure labor stability"for the Lathrop
project, it is equally clear from his testimony that there had been
no work stoppages on any school construction project during his
term as mayor. Cf. Empire State Chapter of Associated Builders &
Contractors, Inc. v. City of Oswego, 659 N.Y.S.2d 672 (N.Y. App.
Div. 1997) (concluding that absent a history of labor unrest,
"general concern[s] that the project be complete in a timely
manner"do not justify the use of a PLA).
Intuitively, PLAs would seem to increase rather than
decrease costs, because they reduce the pool of interested bidders.
[Fn. 9] The Borough responds that it has wrested concessions from
the unions participating in the PLA. It is, however, speculative
as to whether these would result in a bid lower than one that would
have been submitted by a contractor deterred by the PLA from
bidding. [Fn. 10] Further, it has not been shown that union shop
bidders could not obtain the same or better concessions on their
own.
Public owners have been contracting in Alaska without
PLAs since statehood. Was it then not reasonably possible for the
Borough to bid the Lathrop project without a PLA? The answer, in
my view, is that on this record the Borough has fallen well short
of making such a showing.
I would therefore reverse the decision of the superior
court and remand this case with instructions to enjoin the
invitation for bids. Thereafter, the Borough would be able to
solicit bids for the project without a PLA. Alternatively, the
Borough Assembly could, by ordinance, amend the Borough Code to
permit the use of PLAs.
II.
In the above paragraphs I have explained how I think that
this case should be decided. In what follows I will explain my
disagreement with three aspects of today's opinion concerning the
Borough Code.
First, the court does not use a textual approach in
determining whether the maximum free and open competition clause of
section .010 has been violated. Instead of focusing on the
specific language of section .010, the court relies on cases from
New York and Ohio. [Fn. 11] The only statutes quoted in those
cases are statutes requiring that bids be awarded to the lowest
responsible bidder. See New York Thruway Auth., 666 N.E.2d at 189,
193; Jefferson County Bd. of Comm'rs, 665 N.E.2d at 727. These
cases do not refer to a requirement that specifications must be
drafted to encourage maximum competition. [Fn. 12] Even though the
New York and Ohio cases did not discuss requirements analogous to
the specifications requirement of section .010, this court draws
from these cases the principle which it uses to decide this case.
The principle is that so long as there exists a reasonable basis to
conclude that a specification furthers "the interests underlying
the Borough's procurement code,"the specification is lawful. Slip
Op. at 27. The court has thus approached this case as if there
were a common law of competitive bidding which, at bottom, merely
requires that public agencies act reasonably in light of the
multiple purposes of competitive bidding. [Fn. 13]
By contrast, I view this case as one involving the
meaning of an ordinance which governs the conduct of the Borough
with the same authority as a state statute. The ordinance has a
specific mandate: all specifications must encourage maximum
competition insofar as practicable. The case turns not on whether
the Borough's action was reasonable in some general sense but on
whether the specification in question encourages maximum
practicable competition. And, as I have attempted to explain
above, when this question is specifically addressed, the answer is
clear: the PLA specification falls well short of the mark.
Second, today's opinion relies on a statement made in a
concurring opinion by Justice Rabinowitz in Libby v. City of
Dillingham, 612 P.2d 33 (Alaska 1980). The quoted statement is:
"[A]s a general rule, municipal corporation competitive bidding
requirements are construed narrowly, since '[i]n the absence of
some statutory provision, competitive bidding is not an essential
prerequisite to the validity of contracts by and with public
bodies.'" Slip Op. at 25-26 n.15 (quoting Libby, 612 P.2d at 44
(Rabinowitz, J., concurring) (footnote omitted)). Such a rule has
never been adopted by this court. Further, the statement was
dictum even in the context of Justice Rabinowitz's concurring
opinion. The majority in Libby, including Justice Rabinowitz,
strictly interpreted the statutory competitive bidding requirements
to invalidate a negotiated lease entered into by the city. [Fn. 14]
Libby does not therefore stand for the proposition that
the requirements governing municipal corporation competitive
bidding are not strictly enforced. Further, none of our other
cases have, to my knowledge, indicated that public bidding
requirements should not be strictly enforced. E.g., McBirney &
Assocs. v. State, 753 P.2d 1132, 1138 (Alaska 1988) (voiding lease
agreement due to irregularities in bidding process, noting that
"this court has shown itself willing to protect the integrity of
the state's competitive bidding process on numerous occasions.");
State v. Bowers Office Prods., Inc., 621 P.2d 11, 14 (Alaska 1980)
(upholding administrative decision strictly enforcing bidding
procedures); Kelly v. Zamarello, 486 P.2d 906, 918-19 (Alaska 1971)
("[S]trict maintenance of the competitive bidding procedures
required by law is infinitely more in the public interest than
obtaining a pecuniary advantage in individual cases by permitting
practices which do violence to the spirit and purpose of the law.")
(quoting Superior Oil Co. v. Udall, 409 F.2d 1115, 1119-20 (D.C.
Cir. 1969)).
Third, today's opinion implies that because the Assembly
acted in conjunction with the Borough mayor in approving the PLA
specification, we should be less rigorous in our review for
compliance with the maximum free and open competition clause of
section .010. Slip Op. at 29 n.19. A resolution passed by a
legislative body does not change the meaning of a law or ordinance.
See State v. A.L.I.V.E. Voluntary, 606 P.2d 769, 773-74 (Alaska
1980) ("A mere resolution . . . is not a competent method of
expressing the legislative will, where that expression is to have
the force of law . . . .") (quoting Mullan v. State, 46 P. 670, 672
(Cal. 1896)). Further, a legislative body has no special compe-
tence to interpret the meaning of an enactment of an earlier
legislature. University of Alaska v. Tumeo, 933 P.2d 1147, 1156
(Alaska 1997). Thus, I fail to see how the existence of the
Assembly resolution can affect our duties on appeal.
FOOTNOTES
Footnote 1:
A project labor agreement is
a prebid contract between a construction
project owner and a labor union (or unions) establishing the union
as the collective bargaining representative for all persons who
will perform work on the project. The PLA provides that only
contractors and subcontractors who sign a prenegotiated agreement
with the union can perform project work. A PLA thus generally
requires all bidders on the project to hire workers through the
union hiring halls; follow specified dispute resolution procedures;
comply with union wage, benefit, seniority, apprenticeship and
other rules; and contribute to the union benefit funds. In return
for a project owner's promise to insist in its specifications that
all successful bidders agree to be covered by a PLA, the union
promises labor peace through the life of the contract.
New York State Chapter, Inc. v. New York State Thruway Auth., 666
N.E.2d 185, 188 (N.Y. 1996).
Project labor agreements originated in the construction
industry
to accommodate conditions specific to that
industry. Such conditions include, among others, the short-term
nature of employment which makes posthire collective bargaining
difficult, the contractor's need for predictable costs and a steady
supply of skilled labor, and a longstanding custom of prehire
bargaining in the industry.
Building & Constr. Trades Council v. Associated Builders &
Contractors, 507 U.S. 218, 231 (1993).
Footnote 2:
The resolution states:
WHEREAS, the Fairbanks North Star Borough
finds that project labor agreements for major public and private
construction projects have proven to be of economic benefit to
their owners, including state and local governments, project labor
agreements facilitate the timely and efficient completion of major
construction projects, they allow for the negotiation of any
specialized terms and conditions unique to the projects and provide
the owner with a legally enforceable means of assuring labor
stability over the life of the projects; and
WHEREAS, the use of project labor
agreements for major public school construction, renovation,
alteration and repair projects, particularly those projects which
extend over a period of time, involve a substantial number of
contractors and subcontractors and/or require a substantial number
of experienced, skilled trades and craft workers and on projects
with a substantial dollar value are in the overall best interests
of the Fairbanks North Star Borough; and
WHEREAS, the development of a project
labor agreement for the major Lathrop High School renovation
project and the new Eielson Elementary School is in the best
interest of the Fairbanks North Star Borough and the public, in
order to meet the construction time schedules for the projects, to
ensure that the projects will be completed with qualified Alaskan
workers, to ensure that the projects will meet the highest
standards of safety and quality, to ensure that there are peaceful,
orderly, and mutually binding procedures for resolving labor
issues, to avoid labor disputes or conflicts, and to promote
overall stability through the duration of the projects, without
strikes, lockouts, or slowdowns, all of which allow the borough to
more accurately predict and reduce [the] cost of the projects; and
WHEREAS, the Lathrop High School project
must ensure that the school remain in operation during much of the
major renovation work and a project labor agreement for the Lathrop
High School and the new Eielson Elementary School projects,
providing for uniform work rules and conditions for all trades,
irregardless of craft, flexibility in scheduling shift work and
starting and ending hours, elimination of premium pay, and
agreement to freeze wages and fringe benefit contributions for at
least two years after commencement of the projects, a guarantee of
no strikes during the duration of the projects and other provisions
advantageous to the borough, make it in the Fairbanks North Star
Borough's economic and financial interest as the owner to support
a project labor agreement.
NOW, THEREFORE, BE IT RESOLVED, that the
Fairbanks North Star Borough Assembly supports the Borough Mayor in
his use of a project labor agreement on [the] Lathrop High School
and the Eielson Elementary School Projects.
Footnote 3:
Similar language is included in the master agreements
themselves.
Footnote 4:
We review the legality of the PLA under the Alaska
Constitution using our independent judgment and applying the rule
of law most persuasive in light of precedent, policy, and reason.
See Berger v. State, Dep't of Revenue, 910 P.2d 581, 584 n.6
(Alaska 1996).
Footnote 5:
At issue in Enserch was a state law establishing hiring
preferences on public works projects for eligible residents of "an
economically distressed zone." Enserch, 787 P.2d at 625-26. The
state labor commissioner, applying the statutory criteria, declared
the Northwest Arctic Borough such a zone and thus required the
plaintiff, Enserch Alaska Construction, Inc., to fill at least 50%
of the positions available in certain designated crafts on a road
project with eligible, qualified residents of the borough. See id.
at 627. The company sued, and the superior court held that the
preference law violated the equal protection provision of the
Alaska Constitution. See id. On appeal, we affirmed the equal
protection holding, determining that the law infringed an important
right and that the underlying objective of the law, "economically
assisting one class over another,"was illegitimate. Id. at 633-
34. We also noted that the fit between the objective of community
aid and the law was not close because the law was "seriously over-
and underinclusive." Id. at 634.
Footnote 6:
The superior court based this conclusion on its interpretation
of the hiring hall procedures outlined in the general collective
bargaining agreements between each union and signatory contractors.
These procedures give some categories of registrants priority over
others in the referral process. The criterion used to establish
these categories is usually the worker's length of employment with
the employer or employers party to the agreement or related
agreements. Such "book systems"are permitted under federal law.
See M.W. Kellogg Constructors, Inc. v. NLRB, 806 F.2d 1435, 1440
(9th Cir. 1986) (citing 29 U.S.C. 158(f)).
Footnote 7:
The superior court erroneously required that the PLA be "the
least restrictive means of achieving the Borough's legitimate
objective."
Footnote 8:
Mayor Sampson also testified at trial, and to the Borough
Assembly before it adopted the resolution supporting the use of the
PLA, that the PLA would provide economic and other benefits to the
Borough.
Footnote 9:
We also note that because application of the challenged PLA is
limited to the Lathrop High Project, it does not, unlike the law at
issue in Enserch, suffer from the defects of under- or over-
inclusiveness. See 787 P.2d at 634-35; see also Boston Harbor, 507
U.S. at 232 (noting that the PLA at issue "was specifically
tailored to one particular job").
Footnote 10:
Lampkin, relying on Enserch, also argues that the Borough, by
attempting "to benefit one class of Fairbanksans over another,"
violates the intrastate "privileges and immunities"component of
the equal protection clause. To the extent that intrastate
privileges and immunities apply to cases that involve
discrimination between residents of the same region, the analysis
would be the same as that under the equal protection clause, and we
therefore do not consider this argument separately.
Lampkin also argues that the Borough's use of the PLA
violated substantive due process. To meet the requirements of due
process, legislation must be rationally related to a valid
legislative purpose. See Concerned Citizens v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974). Because the Borough's
action survives close scrutiny, it survives this lower level of
scrutiny. See Enserch, 787 P.2d at 632 n.12.
Footnote 11:
Although Lampkin contends that we should use our independent
judgment in reviewing the legality of the PLA under the Borough
procurement code, we conclude that the "reasonable basis"standard
of review applies to the Borough's interpretation of its own
ordinances when this interpretation implicates complex matters or
the formulation of fundamental policy. See Lazy Mountain Land Club
v. Matanuska-Susitna Borough, Bd. of Adjustment & Appeals, 904 P.2d
373, 385 & n.68 (Alaska 1995). This more deferential standard
"properly recognizes that the [Borough] is best able to discern its
intent in promulgating"its procurement code. Rose v. Commercial
Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982); see also
Gunderson v. University of Alaska, Fairbanks, 922 P.2d 229, 233
(Alaska 1996) (holding that appropriate standard for reviewing the
decision of state agency's chief procurement officer is reasonable
basis standard). Under this standard, we "need not find that [the
Borough's] construction is the only reasonable one, or even that it
is the result we would have reached had the question arisen in the
first instance in judicial proceedings." Unemployment Compensation
Comm'n v. Aragon, 329 U.S. 143, 153 (1946).
Footnote 12:
Lampkin also argues that the Borough's use of the PLA violated
the state procurement code, AS 36.30. However, as the Borough
contends, the state procurement code does not apply to the Lathrop
High Project because the project is not an "expenditure of state
money by the state, acting through an agency, under a contract,"
and because the state funding for the project is provided by
grants, which are expressly exempted from the code's requirements.
See AS 36.30.850(b) & (b)(1).
Footnote 13:
Fairbanks North Star Borough Code (FNSB) 16.35.010 (1993)
provides:
Maximum practicable competition. All
specifications shall be drafted so as to promote overall economy
for the purposes intended and encourage maximum free and open
competition in satisfying the borough's minimum needs, and shall
not be unduly restrictive. The policy enunciated in this section
applies to all specifications, including but not limited to, those
prepared for the borough by architects, engineers, designers and
draftsmen.
FNSB 16.30.040 (1993) provides:
Sole source procurement. A contract may be
awarded without competition when the purchasing agent determines in
writing, after conducting a good faith review of available
resources, that there is only one source for the required supply,
service or construction item. The purchasing agent shall conduct
negotiations, as appropriate, as to price, delivery, and terms. A
record of sole source procurements shall be maintained that lists
each contractor's name, the amount and type of each contract, a
listing of the item(s) procured under each contract, and the
identification number of each contract file.
Footnote 14:
With regard to "sole source procurement,"the code provides in
part:
A contract may be awarded without competition
when the purchasing agent determines in writing, after conducting
a good faith review of available sources, that there is only one
source for the required supply, service or construction item.
FNSB 16.30.040.
Footnote 15:
In his concurrence in Libby v. City of Dillingham, 612 P.2d 33
(Alaska 1980), Justice Rabinowitz observed that "as a general rule
municipal corporation competitive bidding requirements are
construed narrowly, since '[i]n the absence of some statutory
provision, competitive bidding is not an essential prerequisite to
the validity of contracts by and with public bodies.'" Id. at 44
(Rabinowitz, J., concurring) (quoting People ex rel. Adamowski v.
Daley, 159 N.E.2d 18, 20 (Ill. App. 1959)). In addition, Justice
Rabinowitz pointed out that "[t]he reason for this rule of narrow
construction is pragmatic; there are contexts in which a
requirement of competitive bidding impedes rather than enhances the
efficiency of municipal government." Id. at 45.
Footnote 16:
The dissent contends that this case turns on "whether the
specification in question encourages maximum practicable
competition." Diss. at 49. It asserts that the term "practicable"
"clearly relates to cost." Diss. at 42-43. Because we conclude
that what is "practicable"depends not only on cost, but on the
Borough's other needs as well, we favor a broader understanding of
the term.
Footnote 17:
We note that because of the overlap between the interests
underlying the Borough's procurement code and the "important
interests"justifying the Borough's impairment of the right of non-
union workers to engage in an economic endeavour, our analysis of
the PLA under the equal protection clause is fundamentally similar
to our analysis of its validity under the procurement code.
Footnote 18:
Indeed, we believe that the PLA in this case would survive
even a requirement that the Borough show "more than a rational
basis." New York State Thruway, 666 N.E.2d at 190. That is, on
the record before us, the Borough met "the burden of showing that
the decision to enter into the PLA had as its purpose and likely
effect the advancement of the interests embodied in the competitive
bidding statutes." Id.
Footnote 19:
We note that this case can be distinguished from George Harms
and that part of the opinion in New York State Thruway striking
down one of the two PLAs at issue, as we are not faced with a
situation in which the administrative branch of government is
balancing the interests of labor, management, and the public
without the involvement of the legislative branch. Here, the
Borough Assembly passed a resolution specifically considering these
interests and approving the use of the PLA for the Lathrop High
Project.
Footnote 20:
Article I, section 18 of the Alaska Constitution provides:
"Private property shall not be taken or damaged for public use
without just compensation."
Footnote 21:
To the extent that the superior court based its ruling on its
interpretation of the particular pension funds at issue rather than
on the takings clause, we note that federal law governs the
administration of pension plans and preempts state law that has a
"connection with"or "reference to"such a plan. California Div.
of Labor Standards Enforcement v. Dillingham Constr. N.A., __ U.S.
__, 117 S. Ct. 832, 837 (1997). In this case, the evidence is
undisputed that the pension plans at issue, including the vesting
requirement, comply fully with the requirements of the Employee
Retirement Income Security Act of 1974, 29 U.S.C.A. sec.sec. 1001
et seq.
(1985 and West Supp. 1997).
Footnote 22:
Article I, section 6 of the Alaska Constitution provides: "The
right of the people peaceably to assemble, and to petition the
government shall never be abridged."
Footnote 23:
Because Lampkin failed to establish that the unions would
assess dues under the PLA beyond those necessary to represent
workers, we also reject her argument that the PLA's requirement
that non-union workers pay such dues is an unconstitutional taking.
Footnote 24:
We review the superior court's denial of an Alaska Civil Rule
24 motion to intervene under an abuse of discretion standard. See
Hertz v. Cleary, 835 P.2d 438, 440 n.1 (Alaska 1992).
Footnote 25:
Because of this decision, we do not need to consider Lampkin's
arguments that the superior court violated the doctrine of
separation of powers by striking only portions of the PLA. We also
do not need to address the Borough's arguments that the superior
court abused its discretion in its scheduling of the combined
hearing and trial and erred by failing to join the unions under
Alaska Civil Rule 19(a). Finally, we do not address any arguments
regarding the preemptive effect of the National Labor Relations
Act.
FOOTNOTES (Dissent)
Footnote 1:
The full text of section 16.35.010 is as follows:
Maximum practicable competition. All specifications shall
be drafted so as to promote overall economy for the purposes intended and encourage
maximum free and open competition in satisfying the borough's minimum needs, and shall not
be unduly restrictive. The policy enunciated in this section applies to all specifications,
including but not limited to, those prepared for the borough by architects, engineers, designers
and draftsman.
Footnote 2:
See also United States General Accounting Office, General Government Division,
Briefing Report to the Honorable Steve Symms, U.S. Senate: Labor-Management Relations,
91-80BR (May 1991) at 5, 22-23.
Footnote 3:
Id. at 5, 22-24.
Footnote 4:
Id. at 23-24. One witness, the president of an open shop construction company in
Fairbanks which employed more than 600 construction workers, detailed the deterrent effects
of the Project Labor Agreement on open shop contractors, and workers, as follows:
The effect of the Project Labor Agreement as contained
in the specifications for the Project will be to deter open shop
contractors and subcontractors from submitting bids and subbids
for the Project. These potential open shop bidders will not be able to accurately estimate their
costs and they will be required to abandon their long-time employees. Open shop contractors
will not be able to utilize the historical productivity rates of their open shop construction craft
employees and will have to base their estimates of labor productivity on the unknown
capability and motivation of union construction craft workers and the unknown effects of
restrictive union jurisdictional rules and work practices. As a consequence of the PLA on the
Eielson Elementary School project ("Eielson Project") which was bid on Tuesday, March 26,
1996, no open shop general contractors submitted bids. By effectively excluding open shop
general contractors from bidding the Eielson Project, the Borough significantly limited the free
and open competition which its statutes require it to practice when procuring public works
construction projects.
The PLA on this Project operates to exclude open shop
construction craft workers in two ways. First, to the extent that open shop general and
specialty contractors and subcontractors do not bid the Project, the employees and potential
employees of these entities will not be able to work on the Project because they are not
members of the Fairbanks Unions. Second, even if open shop contractors and subcontractors
submitted low bids on the Project, few open shop employees would be able to work on the
Project due to the restrictive hiring hall practices of the Fairbanks Unions. Even if open shop
construction craft employees were able to join the Fairbanks Unions, it is unlikely that more
than a very few would be able to run the gauntlet of the restrictive Fairbanks Unions' hiring
hall practices and actually obtain employment on the Project. Those who did join the
Fairbanks Unions and did obtain employment on the Project . . . would be involuntarily required
to pay substantial sums of money in the form of dues, assessments and health and welfare
contributions, the benefits of which they would never realize because of the restrictive vesting
requirements imposed by these unions.
Affidavit of George Osborne, Jr.
Footnote 5:
H.R. Northrup, "Salting"The Contractor's Labor Force: Construction Unions Organizing
With NLRB Assistance, J. Lab. Res., Vol. XIV, No. 4 at 470 (1993).
Footnote 6:
Bureau of Labor Statistics, U.S. Dep't of Labor, Employment and Earnings (Jan. 1,
1994).
Footnote 7:
The Attorney General has interpreted the similar but less demanding requirement of AS
36.30.060(c) that specifications must "encourage competition in satisfying the state's needs"
as prohibiting project labor agreements except where a showing can be made that "requiring
prospective contractors to use organized labor was the only available means to assure the
construction." 1990 Informal Op. Att'y Gen. 9 (July 1, 1990).
Footnote 8:
The trial court suggested, but did not specifically find, that the dominant motive
underlying the Assembly resolution was a desire to ensure the hiring of local construction
workers on the project. Thus the trial court described the discussion leading up to the
passage of the resolution as follows:
Mayor Sampson thereafter introduced a resolution supporting the
use of Project Labor Agreements on the Eielson and Lathrop projects. The Assembly took
testimony from Mr. Swarner [of the Trades Council], who outlined the benefits the Borough
would purportedly receive if it adopted the PLA. Swarner particularly stressed the local hire
aspects of PLAs as most unions have restrictive residency requirements. Swarner did indicate
that if the successful bidder was from Anchorage or the lower 48, they would be allowed to
bring up their key people for the project.
Mayor Sampson spoke next and also lauded the
concessions contained in the PLA. He also acknowledged the local hire advantages inherent
in PLAs, although he stressed that was not the intent behind the agreement. Mayor Sampson
assured the Assembly that the building trades had agreed in another document that they
would practice local hire, but that it was not the proper function of the borough government
to compel local hire in its public works contracts. The Assembly then acknowledged the 200
union workers in attendance and promptly passed the resolution supporting the use of PLAs.
Later, the trial court described the Borough's motivation as follows:
As to the legitimacy of the Borough's purpose, the Court must
give great deference to the legislative body. Here, the Assembly supported the PLA because
it was found to provide an economic benefit to the Borough as owner of the project. Although
it appears from the minutes of the Assembly meeting that local hire was considered a
substantial benefit, this issue was not mentioned in the language of the Assembly's resolution.
Supporting local hire would not have been a legitimate reason for the Borough to support this
PLA. Economic benefits, however, which flow to the Borough when acting in its proprietary
function, are a legitimate reason which the Court will not second guess.
And, still later in its decision, the trial court stated: "The Assembly was clearly concerned with
local hire rather than fostering free and open competition."
Footnote 9:
The law journal article cited by the majority opinion, Henry H. Perritt, Jr., Keeping the
Government Out of the Way: Project Labor Agreements Under the Supreme Court's Boston
Harbor Decision, 12 Lab. Law. 69 (1996), acknowledges this possibility, but is undisturbed
by it:
PLA requirements may be attacked because they possibly result
in award to a bidder who quotes a price higher than a bidder who has been disqualified by the
PLA requirement. But the same thing can be said for any bid specification that tends to
exclude some potential bidders. The question should be whether the bid specification is a
legitimate requirement for the project. State procurement laws almost always require award
to the lowest "responsible"bidder or lowest "best"bidder, signifying that no state legislature
believes that price is the only consideration. Rather, requests for proposals and other bid
specifications may specify various requirements for public works projects even though the
requirements have the effect of excluding some bidders and increasing the price. Because
project labor agreements are legitimate in the narrow sense that they preserve labor peace on
a project, and also in the broader sense that they facilitate private, decentralized governance
of project activities, they are entirely consistent with the basic concept of public bidding.
Id. at 87-88.
Footnote 10:
Lampkin introduced a study relating to large electrical intertie projects in Alaska
indicating that including a PLA specification with union concessions will result in higher bids
than bidding without such a specification. Herbert R. Northrup & A.J. Thieblot, Chugach
Electric Association Study, Cost Review for Contracting Alternatives for Transmission
Facilities in Alaska iv-v, 62-67 (Jan. 1996). The Borough has failed to engage in any specific
projection of how the PLA may result in lower bids. Cf. New York State Chapter, Inc. v. New
York State Thruway Auth., 666 N.E.2d 185, 191 (N.Y. 1996) (upholding a PLA specification
where the bridge authority commissioned a "detailed"study of cost savings).
Footnote 11:
The cases are New York State Chapter, Inc. v. New York State Thruway Authority,
666 N.E.2d 185 (N.Y. 1996), and State ex rel. Associated Builders & Contractors v. Jefferson
County Board of Commissioners, 665 N.E.2d 723 (Ohio App. 1995).
Footnote 12:
In that respect, those cases are unlike George Harms Construction Co. v. New Jersey
Turnpike Authority, 644 A.2d 76, 94 (N.J. 1994), which is based on a New Jersey statute
requiring that all specifications be drawn "in a manner to encourage free, open and
competitive bidding." The court in that case found that the PLA specification did not meet
this requirement and was invalid. Id. at 95. The New Jersey statute, in turn, is similar to the
mandate of the Fairbanks ordinance that specifications "encourage maximum free and open
competition."
Footnote 13:
Further, I do not agree that the result in this case could be justified under New York
authority even if similar statutes were involved. The majority concludes "that the correct
approach . . . is that taken by the New York . . . courts, as modified by the deferential
standard . . . ." Slip Op. at 27. Since the hallmark of the New York approach is a heightened
standard of review requiring "more than a rational basis,"New York State Thruway Auth.,
666 N.E.2d at 190, the majority's use of a deferential standard of review marks a
fundamentally different approach.
The majority also notes that if the New York heightened standard of review
were used, utilization of the PLA in this case would be permissible. Slip Op. at 28 n.18.
Comparison of the salient facts of this case with the two projects reviewed in New York State
Thruway Authority shows that the important features of this project more closely resemble
the project to modernize the cancer facility for which the New York court rejected the use of
a PLA, rather than the project to improve the bridge for which the court approved of its use.
The Roswell Park Cancer Institute project involved the five-year comprehensive renovation of
18 buildings spread over a 25-acre campus. New York State Thruway Auth., 666 N.E.2d at
196 (Smith, J., dissenting). The adopting authority's primary concerns included the
minimization of any disruption in the patients' routines and the avoidance of delays in
construction. Id. Work stoppages could subject cancer patients to an increased risk of
infection and foreclose treatment opportunities for those waiting to be admitted. Id. Such
concerns mirror the Borough's emphasis on the need to ensure uninterrupted class schedules
for Lathrop High students during periods of construction. As significant as these objectives
were, the New York court concluded that the use of a PLA simply could not be justified absent
convincing evidence that its adoption furthered competitive bidding goals. Id. at 193.
Cautioning against "post hoc rationalization,"the court noted that the record was devoid of
specific projections of cost savings and legitimate concerns of labor unrest. Id. The record
established by the Borough in support of its PLA is equally threadbare in particulars. By
contrast, before deciding to adopt a PLA for the four-year project to improve the Tappan Zee
Bridge, the Thruway Authority hired a consultant to prepare a comprehensive report of
estimated labor savings. Id. at 191. These cost savings were ultimately projected at $6
million. Id. Concerns for efficient construction stemmed not only from issues of public safety
and convenience, but from the $45 million in yearly revenue generated from the toll bridge.
Id. at 190. Moreover, the bridge had previously been the target of labor unrest that required
police intervention. Id. Thus, the Authority's "detailed focus on the public fisc,"the size and
complexity of the project and the demonstrated history of labor unrest convinced the New
York court that the PLA was "directly tied"to competitive bidding goals. Id. at 191. In view
of the fact that the Borough has failed to adequately justify the PLA on the record before us,
I suggest that the New York Court of Appeals' conclusion with respect to the renovation of
the cancer facility would also be applicable here:
To say that [the public owner's] adoption of the PLA is justified
simply by its desire for labor stability so that the work will be completed on time is tantamount
to wholesale approval of PLAs -- every public entity wants its projects completed on time, and
public projects are presumptively important to the public. The competitive bidding
requirements, however, demand that something more be shown in order to justify the
significant restrictions imposed by PLAs.
Id. at 193-94.
Footnote 14:
In reaching this conclusion, Justice Rabinowitz found untenable the city's determination
that the leased facility was a "beneficial new industry"and thus exempt.
