A September 17, 2013 article in www.UnionWatch.org reported on “the end of public deliberation and votes for Project Labor Agreements in the legislative branch of state and local governments. Instead, backroom deals are made in the executive branch to give unions control of the work.” Now another union strategy has been discovered for evading public scrutiny: governing boards discussing Project Labor Agreements with union officials during “closed session” of public meetings.
California law allows governing boards to meet in closed session to discuss and make decisions concerning certain issues deemed by the state legislature to require an appropriate degree of privacy. These issues include employee or student disciplinary actions, safety and security procedures, litigation, property negotiations, liability claims, and conferences with labor negotiators for employees or employee organizations.
By law, a public meeting agenda is required to include items to be discussed in closed session. Section 54954.5 of the California Government Code even lists categories to use for agenda items in closed session, for example, “Conference with Labor Negotiators.”
At some point for some reason, governing boards for several California local governments apparently began discussing terms and conditions of Project Labor Agreements with construction trade union representatives in closed session. This was a clever interpretation of the labor negotiation purpose of closed session, but it was inappropriate: employees of construction companies that contract with a government for services are not actually employees of that government.
The plot began to unravel when a representative of three subcontractor associations discovered a reference in the closed session items of the July 18, 2013 meeting agenda of the San Francisco Bay Area Water Emergency Transportation Authority board of directors. An item classified as “Conference with Labor Negotiators” involved the Napa-Solano Building and Construction Trades Council as an “employee organization.”
This probably would not have appeared suspicious under normal circumstances, because building trades councils and individual construction unions often represent public employees who work directly for the government. (Yes, traditional construction trade unions are sometimes public employee unions.) But in this case, the agency was in the process of considering a mandate for contractors to sign a Project Labor Agreement with unions for an upcoming project.
After the agency received a July 16, 2013 letter indicating that discussion of the Project Labor Agreement in closed session was illegal, staff for the Water Emergency Transportation Authority moved the item to open session. At the meeting, representatives of various trade unions bickered before the board about provisions in the agreement, thus revealing why the discussion was originally set for closed session. In the end, the project was bid and awarded under fair and open competition, without a government-mandated Project Labor Agreement in the bid specifications.
Meanwhile, an elected board member for the Rancho Santiago Community College District in Orange County saw a report about this San Francisco Bay Area controversy over discussing Project Labor Agreements in closed session and realized that his own district had engaged in the same practice. The board member provided the district with a memo from an attorney with the Pacific Justice Institute outlining why discussion of Project Labor Agreement negotiations in closed session violated the state’s open meetings law.
As a result of this board member’s efforts, the college board had a “Discussion of Community and Student Workforce Project Agreement Action Negotiations with Los Angeles-Orange County Building and Construction Trades Council/Craft Unions/Carpenters Union” at its November 12 meeting.
A summary of the agenda item stated “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.”
What stunned opponents of Project Labor Agreements was the extent of this practice, as revealed in the staff report: “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 cited “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.”
Was this list of specific local governments provided by a union lawyer based on personal experience and knowledge? At the board meeting, a construction trade association representative asked the college to identify the source for the list of local governments that discussed Project Labor Agreements in closed session. The chancellor responded that staff obtained the list, and the association representative then asked if those governments had indicated their closed session discussions on public meeting agendas. The chancellor did not know.
Three Implications for 2014 of California Governing Boards Discussing Project Labor Agreements in Closed Session
- Undoing Existing Project Labor Agreements: What kind of backroom deals were discussed and concluded by governing board members at those identified local governments during closed session? If boards held discussions illegally, does that undermine the legality of the Project Labor Agreements now enacted at some of these governments? Such questions may be answered with a tedious, thorough search of old meeting agendas, combined with requests for public records. The investigation and subsequent enforcement of the law could restore fair and open bid competition at several local governments, including the San Diego Unified School District, which requires contractors to sign a Project Labor Agreement for several billion dollars of taxpayer-funded construction under its Proposition S (2009) and Proposition Z (2012).
- Establishing an Official State Opinion on Using Closed Session to Discuss Project Labor Agreements: The chancellor for the Rancho Santiago Community College District is expected to ask the California Attorney General Kamala Harris for an opinion about the legality of governing boards discussing Project Labor Agreements in closed session. Advocates of open government will need to submit advice and recommendations to the Attorney General, lest she takes the opportunity to give unions special rights for secret policy development.
- Changing State Law to Limit Public Scrutiny and Input for Project Labor Agreements: In 2014, Jerry Brown is still Governor, and Democrats remain close to or at supermajority control of the California Assembly and Senate. Expect the State Building and Construction Trades Council of California to sponsor a bill that allows governing boards to discuss Project Labor Agreements in closed session. It will be a big step forward for union officials to end the unpleasantness of public deliberation and votes to require construction companies to sign Project Labor Agreements as a condition of work on taxpayer-funded construction.
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.