(Michael Chamberlain/Nevada Business Coalition) – The Clark County Commission had an opportunity to render the lawsuit filed by the Nevada Business Coalition and the Associated Builders and Contractors challenging the County’s Project Labor Agreement on the Clark County Detention Center moot earlier this week. However, they voted to reaffirm the PLA and the challenge will proceed.
PLAs are agreements between unions and project owners, often governments, that govern construction projects and that contractors are forced to agree to as a condition of obtaining certain contracts. They dictate that both union and non-union contractors must hire workers from union halls, contribute to union benefit funds, pay union wages and follow union work rules while generally prohibiting strikes and work stoppages due to jurisdictional disputes between unions.
The Nevada Supreme Court had sent the matter of Citizen Outreach v. Clark County back to District Judge Jerry Wiese ordering the judge to reconsider his ruling against NBC and ABC. Judge Wiese had based his decision on the belief that a PLA was justified if its terms were consistent with those the Nevada Supreme Court had reviewed in the case of Associated Builders and Contractors v. the Southern Nevada Water Authority several years earlier.
The Supreme Court ruled this was not the proper standard and agreed with the argument of NBC and ABC that the specific conditions of each individual project must be considered. Neither the County in its decision to have the project governed by a PLA nor the District Court in its ruling had done so.
After the County Commission had decided to build the project under a PLA the County commissioned a report by Verrill Dana LLP to justify the use of a PLA. The initial report did not include the necessary elements, according to the Supreme Court, including “the factual circumstances of the project, the Clark County labor market, or prevalent economic conditions.”
Since the Supreme Court remanded the case, Verrill Dana submitted a revised report that discusses some of the specific conditions of the Detention Center project in order to justify the use of the PLA, which was discussed by a Verrill Dana representative at the recent Commission meeting.
This document and the 36-item findings report by Clark County that was read at the Commission meeting, however, both neglect to consider anything about the current condition of the Clark County labor market, one of the main items specifically mentioned by the Supreme Court as essential for justifying the use of a PLA.
With construction unemployment hovering around 50%, higher in some trades, and with few signs of improvement in the foreseeable future there is absolutely no threat of a labor shortage on this project.
According to the findings report, the County is concerned about delays in construction, some of which may require releasing inmates. The sources of possible delays it cites are work stoppages due to picketing, strikes and jurisdictional disputes between unions.
The findings mentions the strike at the union CityCenter project in 2008. It lists a number of union and non-union projects that have been picketed in recent years. Also included as a potential source of delays are jurisdictional disputes between unions over which union’s members perform certain tasks. The report claims these disputes have been increasing in recent years as the volume of work has declined. It specifically mentions those between unions that are part of the AFL-CIO-affiliated Building and Construction Trades Council of Southern Nevada and the Carpenters Union after the Carpenters broke away from the AFL-CIO several years ago.
The findings recommends this PLA as a means of avoiding such delays. Interestingly enough, all of the concerns about delays and work stoppages that the County cites to support the use of this PLA – picketing, strikes, jurisdictional disputes – arise from the behavior of unions themselves. It is more than a little ironic that the response is to reward these very same unions.
Had the County chosen to reconsider the PLA, the lawsuit by NBC and ABC would have been rendered moot. However, because the County has chosen not to do so, the District Court will have the opportunity to reconsider the case applying the proper standards.
(Michael Chamberlain is Executive Director of Nevada Business Coalition.)