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Judicial Council of California Imposes Project Labor Agreement on San Diego Courthouse

Excerpts from four documents (obtained from California’s Administrative Office of the Courts on June 5, 2013 through a public records request) reveal the successful behind-the-scenes plot within the California court system involving top staff of the Administrative Office of the Courts and the Judicial Council to give construction trade unions monopoly control of the $586 million new San Diego County Central Courthouse with a Project Labor Agreement. Although the Judicial Council claims to have “a comprehensive process for soliciting, gathering, and considering public comment on proposals during the policy development process,” the hasty internal process of deciding to negotiate, negotiating, and executing a Project Labor Agreement was not included on the last meeting agenda of the Judicial Council on April 25-26, 2013.

This labor pact will cut competition and raise costs for the benefit of unions. For example, see the 2011 study from the National University System Institute for Policy Research in San Diego entitled Measuring the Cost of Project Labor Agreements on School Construction in California.

How do taxpayers in the San Diego region feel about fair and open competition versus Project Labor Agreements? We know from actual votes.

  • In June 2012, 56% of voters in the City of San Diego approved Proposition A to prohibit government-mandated Project Labor Agreements on city projects.
  • In November 2010, 76% of voters in the County of San Diego approved Proposition A to prohibit government-mandated Project Labor Agreements on county projects.
  • In June 2010, 56% of voters in the City of Chula Vista (the second most populous city in San Diego County) approved Proposition G to prohibit government-mandated Project Labor Agreements on city projects
  • In June 2010 54% of voters in the City of Oceanside (the third most populous city in San Diego County) approved Proposition K, a charter that included an explicit provision to prohibit government-mandated Project Labor Agreements on city projects.

Citizens in the San Diego region – the region to be served by this courthouse – clearly do not support govenment-mandated monopolies on taxpayer-funded construction. No wonder the Project Labor Agreement was arranged by the head of the Sacramento-based State Building and Construction Trades Council of California rather than locally in San Diego.

At least everyone now knows not to waste money filing a lawsuit in the California court system challenging a government-mandated Project Labor Agreement. Would judges favor unions for construction contracts in their own system while denying this kind of deal to other government entities? Obviously lawyers for unions will now and forever launch their arguments by pointing out that the California court system itself requires its construction contractors to sign a Project Labor Agreement with unions as a condition of winning a job.

The story was first revealed in the UT San Diego (San Diego Union-Tribune) in its June 7, 2013 article Courthouse to Be Built Under Labor Pact. The UT San Diego (San Diego Union-Tribune) then posted an editorial on June 9, 2013 entitled Public Safety Loses, Labor Wins at New Courthouse.

Also, see my blog post about this Project Labor Agreement in the context of the larger Senate Bill 1407 courthouse construction program at Union Quest for Project Labor Agreements from Judicial Council of California and Administrative Office of the Courts Succeeds with San Diego County Central Courthouse.

Excerpts from the four actual documents explain the plot. (Note: one of them is “Confidential.”)

1. March 22, 2013 Memorandum to Curt Child, Chief Operating Officer from Ray Polidoro, Manager, Judicial Branch Capital Program Office, Subject: New San Diego Central Courthouse RE: Project Labor Agreement 

The State Building and Construction Trades Council has asked the Administrative Office of the Courts to consider using a Project Labor Agreement (PLA) on the construction for the New San Diego Central Courthouse Project (the Project)…The JBCP is requesting that Justice Hill, as chair of the Court Facilities Working Group, review the use of a PLA on the Project. The following provides a definition and some background on PLAs…

There is variation among the provisions in PLAs, but generally they contain two key components. The first involves how labor disputes will be handled. Contractors who are party to PLAs agree not to lock out workers from worksites. In turn, the construction trade unions agree to not strike or disrupt the construction…

The second core component found with PLAs involves who will be hired and the conditions of their employment. Signatories to these agreements recognize labor unions as the exclusive bargaining representative for all project workers. Most PLAs require workers on the project to pay union dues, regardless of their membership status, and that contractors make payments on behalf of all their workers to union-affiliated fringe benefit trust funds during the course of the project.

In the debate over the use of PLAs, one of the most prominent areas of disagreement is whether these agreements affect construction costs…Opponents argue that PLAs increase costs. They claim that the requirements imposed by PLAs discourage nonunion contractors from bidding on projects and subcontractors from participating. This reduced competition could result in overall higher bids. Opponents also claim that the work condition rules required in PLAs increase labor costs and that these are passed onto the projects (sic) owner.

Rudolph and Sletten, the CM@Risk for the Project, has done several PLAs and as a result can leverage their knowledge and relationships in structuring favorable terms for a PLA to contain costs.

2. April 4, 2013 letter from Curtis L. Child, Chief Operating Officer, Judicial Council of California Administrative Office of the Courts to Dan Dolinar, Executive Vice President, Chief of Operations, Rudolph and Sletten – CONFIDENTIAL 

The Court Facilities Working Group Executive Committee provided direction to AOC [Administrative Office of the Courts] staff to amend the R&S [Rudolph & Sletten] agreement to require R&S to negotiate a PLA specific to the San Diego Project and to be signatory to the agreement with the trades. R&S and AOC will jointly participate in the negotiations with the State Building and Construction Trades Council of California (Trades Council).

Representatives of the Trades Council will participate in the negotiations. Other unions may also participate in the negotiations. Although the AOC is sensitive to the Trades Council’s expectations, the AOC and R&S will negotiate favorable PLA terms to minimize the potential for any construction cost increase. The negotiations and execution of a PLA by Rudolph & Sletten and the trades must not delay bidding on the San Diego Project. If an agreement between the parties is not reached by April 30, 2013, a PLA will not be required on this project.

If the PLA negotiations are successful, only R&S and the trades will be party to the PLA. For the PLA to become effective, though, all of R&S’s trade contractors over a minimum contract amount will be required to execute a letter of assent, agreeing to be bound by the PLA. The AOC will prepare necessary revisions to the current AOC I R&S Agreement to incorporate the PLA. The PLA will have to be part of R&S’s prequalification packages that R&S plans to send to its trade contractors in the beginning of May 2013.

The AOC has contacted representatives of the Trades Council and set up the first negotiation session to be in Sacramento at the State Building and Construction Trade Council office at 1225 8th Street, Suite 375, Sacramento, CA 95814 on April 12, 2013, 9:00am to 12:00pm and any additional sessions to be determined.

Thank you for R&S’s continued cooperation to incorporate a PLA into R&S’s contract and into this San Diego Project…

3. April 5, 2013 letter from Curtis L. Child, Chief Operating Officer, Judicial Council of California Administrative Office of the Courts to Robbie Hunter, President, State Building and Construction Trades Council of California 

This letter is to confirm that the Administrative Office of the Courts (AOC) has agreed to meet with you and Ray Van Der Naught (sic) [Ray Van der Nat], the attorney for the State Building and Construction Trades Council (Council), at the Council’s office on April 12, 201 3 from 9 a.m. to noon for the purpose of negotiating a Project Labor Agreement (PLA) for the San Diego New Central Courthouse Project (San Diego Project)… I look forward to seeing you on April 12 and to fruitful discussions among the Council, R&S, and the AOC.

4. May 8, 2013 email from Steven Jahr to the Judicial Council of the Administrative Office of the Courts 

From: Jahr, Steven (Administrative Director of the Courts for California)

Sent: Wednesday, May 08, 2013 11:54 AM

To: AOC JC Members Only [Administrative Offfice of the Courts Judicial Council]

Cc: Bocchicchio, Michael; Byrd, Donald; Capozzi, Anthony; Castellanos, Stephan; Chang, Steven; Cooper, Hon. Candace D.; Davis, Keith D.; Feng, Hon. Samuel; Foiles, Robert D.; Fowler-Bradley, Melissa; Highberger, William; Hill, Brad; Hirschfeld, Burt; Ignacio, Donna; Jacobs-May, Hon. Jamie A.; Johnson, Jeffrey W.; Lucas, Hon. Patricia M.; Magnusson, Chris; Masunaga, Laura; Miessner, Leslie; Nash, Stephen H.; Olivas, Noema; Orozco, Hon. Gary R.; Power, David; Quinn, Kelly; Robinson, Akilah; Romero-Soles, Linda; Ruano, Teresa; Spikes, Larry; Stinson, Kevin; Toppenberg, Val; Trentacosta, Robert J.; Warwick, Thomas; Willoughby, Lee

Subject: San Diego Central Courthouse Project

Members of the Judicial Council:

I want to make you aware of a pending announcement by the State Building and Construction Trades Council of California regarding a Project Labor Agreement (PLA) with our selected contractor (Rudolph and Sletten, Inc.) for construction of the new Central Courthouse project for San Diego, the state’s largest courthouse construction project. The Trades Council has expressed continued interest to the AOC about entering into such an agreement on this project. Following negotiations regarding potential terms and conditions of a PLA between Rudolph and Sletten and the Trades Council, (with input from the AOC), we concluded that this approach was beneficial.

I requested that the contractor enter into a PLA with the Trades Council to ensure certainty and timeliness as well as reduce variables in a construction project of this magnitude. This will be the first state courthouse project on which a PLA is signed. I should emphasize that we are considering this PLA to be a pilot effort that the Court Facilities Working Group and AOC will continuously evaluate for costs and benefits going forward, about which I will keep the Judicial Council apprised.

As you know, the new 71-courtroom facility is badly needed because of serious seismic and security issues and other significant functional problems. At $586 million for the total project (of which $544 million is construction), any delay can be costly. The Court Facilities Working Group and the AOC have worked with all parties, including the Legislature, the Department of Finance, County, and City to keep the project moving forward. To that end, the PLA is being put in place to ensure that this momentum continues by preventing potential expensive delays and related costs.

We realize there are some who criticize PLAs. We have examined those criticisms and believe for this project there is an overall benefit. We have been advised that a number of collective bargaining agreements for involved trades will come up for renewal within the construction window for this job. The terms of the PLA ensure that the construction process will be uninterrupted by those renewal anniversaries. The agreement precludes strikes and would prevent delays caused by shortages of qualified workers in the relevant trades. It will also streamline management of the project. We believe the PLA will be cost-effective. It will apply to most, but not all, of the bid packages—those smaller than $125,000 at all bid tiers will be exempt. Additionally, the PLA provides that the project has a built-in local participation goal of 30 percent for San Diego trades. (The Long Beach project, through Long Beach Judicial Partners, LLC, also is operating under a PLA. Examples of other projects with PLA in San Diego include Petco Field and the San Diego Convention Center.)

Packages for subcontractor prequalification are now being disseminated by the contractor. The AOC along with the contractor are taking steps to do outreach to local, small, emerging, and minority businesses, as well as the Disabled Veterans Business Enterprise Program to encourage them to bid on portions of the project. The project is scheduled for a fall bond sale with a construction start date by the end of December 2013.

There will be a further briefing on the PLA approach at an educational session during the June council meeting.

Steve


Who’s Responsible? The Judicial Council

The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. The Administrative Office of the Courts (AOC) implements the council’s policies.

Chair

Chief Justice Tani G. Cantil-Sakauye 
Chief Justice of California

Supreme Court

Hon. Marvin R. Baxter
Associate Justice of the Supreme Court 

Courts of Appeal

Hon. Judith Ashmann-Gerst 
Associate Justice of the Court of Appeal
Second Appellate District, Division Two
Los Angeles

Hon. Harry E. Hull, Jr.
Associate Justice of the Court of Appeal
Third Appellate District
Sacramento

Hon. Douglas P. Miller
Associate Justice of the Court of Appeal
Fourth Appellate District, Division Two
Riverside 

Trial Courts

Hon. Stephen H. Baker
Judge of the Superior Court of California,
County of Shasta

Hon. James R. Brandlin
Judge of the Superior Court of California,
County of Los Angeles

Hon. David De Alba
Judge of the Superior Court of California,
County of Sacramento

Hon. Emilie H. Elias
Judge of the Superior Court of California
County of Los Angeles

Hon. Sherrill A. Ellsworth
Presiding Judge of the Superior Court of California,
County of Riverside

Hon. James E. Herman
Judge of the Superior Court of California,
County of Santa Barbara

Hon. Teri L. Jackson
Judge of the Superior Court of California,
County of San Francisco

Hon. Ira R. Kaufman
Assistant Presiding Judge of the Superior Court of California,
County of Plumas

Hon. Mary Ann O’Malley
Judge of the Superior Court of California,
County of Contra Costa

Hon. David Rosenberg
Judge of the Superior Court of California,
County of Yolo

State Bar

Ms. Angela J. Davis
United States Department of Justice
Office of U.S. Attorney

Mr. James P. Fox
Attorney at Law

Ms. Edith R. Matthai
Attorney at Law

Mr. Mark P. Robinson, Jr.
Attorney at Law

Advisory Members

Hon. Sue Alexander
Commissioner of the Superior Court of California,
County of Alameda

Mr. Alan Carlson 
Chief Executive Officer
Superior Court of California,
County of Orange

Hon. Laurie M. Earl
Presiding Judge of the Superior Court of California,
County of Sacramento

Hon. Allan D. Hardcastle
Judge of the Superior Court of California,
County of Sonoma

Hon. Morris D. Jacobson
Judge of the Superior Court of California,
County of Alameda

Hon. Brian L. McCabe
Presiding Judge of the Superior Court of California,
County of Merced

Hon. Robert James Moss
Judge of the Superior Court of California,
County of Orange

Hon. Kenneth K. So
Judge of the Superior Court of California,
County of San Diego

Ms. Mary Beth Todd
Court Executive Officer
Superior Court of California,
County of Sutter

Hon. Charles D. Wachob
Assistant Presiding Judge of the Superior Court of California,
County of Placer

Mr. David H. Yamasaki
Court Executive Officer 
Superior Court of California,
County of Santa Clara

Secretary

Judge Steven Jahr
Administrative Director of the Courts


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.

Unions Creep Closer to Monopolizing California High-Speed Rail Construction

UPDATE (December 7, 2012): A article today in the Fresno Bee (‘Needy’ Workers Will Get Jobs on High-Speed Rail) about the “Community Benefits” policy approved on December 6, 2012 by the California High-Speed Rail Authority contains a stunning revelation:

Five teams of contractors have been invited to bid on the first major contract for a stretch of the rail route between Madera and Fresno. How the new policy will translate into the contract has yet to be determined, said Jeffrey Morales, the authority’s CEO. Potentially complicating the issue is that each of the five would-be prime contracting teams has already signed project labor agreements with labor unions. Morales said the existence of project labor agreements between the contractors and labor unions is independent of any action the agency takes.

So all five prequalified bidders have negotiated and signed Project Labor Agreements with construction unions. How did that happen? Why? Was there some kind of deal involving the High-Speed Rail Authority? Are the five agreements all the same? What do these union agreements contain? Will the public ever get the chance to see these agreements, which give unions a monopoly on the work?

California High Speed Rail Project Labor Agreement Mandate - Section 10.1

California High Speed Rail Project Labor Agreement Mandate – Section 10.1


At its December 6, 2012 meeting, the board of directors of the California High-Speed Rail Authority unanimously approved a resolution to establish a “Community Benefits” policy for construction of California’s high-speed rail system. The High-Speed Rail Authority promptly issued a press release with quotes from local elected officials in the San Joaquin Valley who like the concept of community benefits but apparently aren’t aware of the big-city union scheme behind the plan.

While a typical reader of www.UnionWatch.org is instantly alerted by the phrase “community benefits” to the likelihood that government is executing a special deal at the expense of taxpayers, the policy sounds innocuous and benevolent to the ordinary person. Staff of the High-Speed Rail Authority claimed before the board vote that this policy will enhance employment opportunities for economically disadvantaged and low-income workers, veterans, youth, unemployed, homeless, single parents, and people with criminal records. It will “ensure that California benefits as much as possible.”

There are numerous signs that the High-Speed Rail Authority established this policy to provide a strong incentive for construction contractors to sign a Project Labor Agreement with unions for construction of the $68 billion-$100 billion rail system, including related structures such as stations. Staff for the High-Speed Rail Authority reported that “different stakeholders” will participate in the implementation of the policy, and no stakeholder has been more involved in perpetuating this massive, costly project than the State Building and Construction Trades Council of California.

As I reported in a January 11, 2011 article in www.TheTruthaboutPLAs.com entitled California’s Top Construction Union Officials Love the State’s $100 Billion High-Speed Rail Project, construction unions have long sought a Project Labor Agreement in order to monopolize the construction workforce on this project. With the Community Benefits policy now in place, here’s what some of the most politically-astute California construction industry officials expect to happen:

  1. The High-Speed Rail Authority will award construction contracts using a “design-build” bidding procedure. Instead of awarding contracts to design a project and then awarding contracts to the lowest responsible bidder to build it, the High-Speed Rail Authority is authorized under state law to award contracts to qualified corporate entities that combine project design and construction work. It will select the design-build entities using a somewhat subjective list of “best value” criteria that could result in design-build entities winning contracts even if they do not submit bids with the lowest price. The California Department of Finance will approve the criteria to award the design-build contracts, and the State Public Works Board will oversee the contract awards.
  2. The High-Speed Rail Authority will indicate in its construction contract specifications that bidders will be evaluated in part based on their plan to conform with the Community Benefits policy. Potential bidders will either be explicitly informed or figure out that the chances of winning a design-build contract will be greatly improved if they commit in their bids to negotiate and sign a Project Labor Agreement with construction trade unions in order to comply with the Community Benefits policy.
  3. By using this strategy to implement a Project Labor Agreement, the board of directors of the High-Speed Rail Authority and their union cronies will avoid controversial and high-profile public votes to negotiate it and approve it. California taxpayers and the U.S. Congress will remain generally unaware that unions cleverly obtained a monopoly on the construction of the rail project, because reporters will have difficulty researching and explaining this complicated procedure and because the Project Labor Agreement will not be a matter of public record. And the High-Speed Rail Authority will avoid accountability for the Project Labor Agreement; it can portray the agreement as the contractor’s own internal private and voluntary business decision.

There are recent precedents for imposing Project Labor Agreements on large government projects in California while evading public deliberations and votes. Clark Construction negotiated and signed a Project Labor Agreement for the San Diego Convention Center Expansion Phase III and negotiated and signed a Project Labor Agreement for the new Governor George Deukmejian Courthouse in Long Beach. Both the City of San Diego and the California Administrative Office of the Courts claim that these Project Labor Agreements are not a matter of public record, and Clark Construction declines to provide the union agreements to the public.

There is one weakness in the High-Speed Rail Authority’s plot to give construction unions a monopoly on the rail project with Project Labor Agreements: representatives of the beleaguered California construction organizations opposed to government-mandated Project Labor Agreements and other costly union schemes are tough, experienced, and smart. They are exposing the scheme.

Representatives of the Coalition for Fair Employment in Construction, Associated Builders and Contractors (ABC) of California, the Western Electrical Contractors Association (WECA), the Plumbing-Heating-Cooling Contractors Association of California (PHCC), and the Air Conditioning Trade Association (ACTA) spoke at the meeting against Project Labor Agreements for the High-Speed Rail construction. In addition, a representative of the Bakersfield-based Kern Minority Contractors Association spoke during public comment and asked that both union and non-union contractors have the opportunity to work on the high-speed rail project. (The High-Speed Rail Authority is moving forward with building the first segment of the high-speed rail line in the San Joaquin Valley, basically from Fresno to Bakersfield.)

High-Speed Rail Authority chairman Dan Richard, a former member of the board of directors of the Bay Area Rapid Transit District (BART), concluded board discussion of the proposed Community Benefits policy by responding to public criticism of Project Labor Agreements. Chairman Richard declared that while no decision has been made about how the new “Community Benefits” policy will be implemented, he thinks Project Labor Agreements are effective in improving the efficiency of project delivery, reducing the number of conflicts, and providing a way for minority contractors to get work.

Chairman Richard also reported that he attended a December 5, 2012 meeting at which the minority community expressed very strongly that a Project Labor Agreement was the way to achieve the policy objectives. It appears that Chairman Richard was the keynote speaker at a “California High-Speed Rail Small Business Opportunity Conference” sponsored by the American Asian Architects and Engineers in San Francisco on December 5, 2012 and featuring Congresswoman Barbara Lee (D-Oakland/Berkeley). Of course, it’s contractors that will employ trade workers in the San Joaquin Valley, not San Francisco architects and engineers.

Chairman Richard also took a moment during the meeting to recognize two important people watching in the audience: Bob Balgenorth, outgoing head of the State Building and Construction Trades Council of California and former High-Speed Rail Authority board member, and Robbie Hunter – the head of the Los Angeles-Orange County Building and Construction Trades Council – who is the incoming head of the State Building and Construction Trades Council of California. Were these union leaders attending the meeting to express support for employment opportunities for the homeless, or were they in the audience to see another piece fall into place for a union Project Labor Agreement on what will be far-and-away the most expensive public works “mega-project” in American history?

Kevin Dayton is the President and 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.