Change in General Counsels Spares Project Labor Agreements From Attack

Peter Robb's 11th-hour attack on PLAs ends with a whimper.

The consequences of Peter Robb’s firing have been immense for the National Labor Relations Board and the workers under its jurisdiction. Most of the fallout has been heavily covered by labor writers, detailing many of the high-profile cases that Acting GC Peter Sung Ohr has withdrawn litigation in and employers’ challenges to his authority to do so. This includes Robb’s attempted crackdowns on neutrality agreements and picketers’ use of Scabby the Rat.

But one piece of prosecution has somehow escaped any coverage at all. Starting in May 2020, Robb initiated a broad attack against the heart of building trade power in labor-friendly areas of the country: Project Labor Agreements. PLAs, or “Community Workforce Agreements”, are Section 8(f) pre-hire agreements involving one or more unions that establish the terms and conditions of employment for a specific construction project. These agreements generally specify that the general contractor to a project is forbidden from subcontracting with entities unless they become parties to the PLA themselves, thus assuring union wages and working conditions throughout the worksite.

As an agreement which expressly prevents employers from doing business with certain other employers, PLAs would run afoul of the “hot cargo” clause of Section 8(e) if not for a construction-industry carve-out in the statutory language, which was justified by the importance of harmonious relations on close-quarter building projects. PLAs, like union security clauses or hiring hall arrangements, represent one of the few ways in which unions can still flex contractual muscle under the National Labor Relations Act across a geographical area. It is no surprise then that these arrangements have been attacked by employers and interest groups since the early days of Taft-Hartley. Union security clauses still attract an entire cottage industry of litigation, while hiring halls were unsuccessfully prosecuted as per se unlawful under the Eisenhower Board.

PLAs have mostly been blessed as legal by the Labor Board and federal courts, including their broad adoption by government agencies in the place of project owners. The only major limitations are that the agency must act as a market participant instead of market regulator, and the union must engage the general contractor of the project in a genuine collective bargaining relationship to represent its employees and not merely encircle it in a “top-down” organizing effort.

Despite this settled case law, one PLA in the Seattle area was seemingly selected at random for challenge by the Associated Builders and Contractors, the leading association of open-shop contractors. ABC filed a “CE” charge (the NLRB’s designation for an unfair labor practice charge alleging a Section 8(e) violation) in early 2019 against a group of 17 signatory local unions and building trades councils that the NLRB’s Seattle regional office, after some apparent prodding by headquarters, issued a complaint on in May 2020. This is where the story gets whacky. According to motions filed by the trades’ lawyers, the complaint was nothing more than a description of the PLA’s contractual terms—all lawful under current Supreme Court and Labor Board doctrine—before concluding with a bare-bones allegation that the contract violated Section 8(e) of the Act. This was apparently never elaborated upon at any stage in the litigation.

It should be noted that the NLRB, when acting as a prosecutor, is not required to disclose its theory of a case prior to trial. This includes situations where a new General Counsel has alleged that a party’s conduct is unlawful despite it being lawful under current interpretation of the Act. But the underlying theory is usually obvious to everyone involved. For example, it will be clear when Jennifer Abruzzo issues a complaint alleging the terms of an employer’s handbook are too restrictive of Section 7 rights that she is seeking to overturn the Trump Board’s Boeing decision which greenlit such language. However, the basic structure of PLAs, at least under Section 8(e) case law, has been settled for almost 30 years. The AGC’s own analysis of the legal issues surrounding PLAs dedicates less than a page to 8(e) matters, and even this is mostly spent complaining about the Supreme Court not adopting its arguments in the Boston Harbor case.

It is thus a complete mystery to the casual reader of the docket what Robb was gunning for in this case. What was unlawful about the PLA that fell outside of what the Supreme Court has already approved? The NLRB can’t challenge SCOTUS on its interpretations of labor law; it can only fill in the gaps left open by dicta. This appeared to be a rare instance where a motion for a bill of particulars was genuinely needed, but the unions’ repeated requests for more detailed information were denied by the Administrative Law Judge.

Whatever Robb’s theory, the case appears dead due to his firing. Its imminent doom was celebrated by a characteristically cheeky filing by union lawyer David Rosenfeld. We may never know if Robb had uncovered some nuance in the law that he was genuinely pursuing or if the complaint was designed simply to harass the building trades in question and cloak all PLAs in the fog of litigation. (If anyone with more insider info wants to let me know, I’m all ears.) But one thing is clear: speculative uses of Section 8(e) against standard construction-industry contracts should be off the menu for at least the next four years.