The Associated General Contractors of America followed up challenges noted here last month to a Federal Acquisition Regulatory (FAR) Council rule requiring Project Labor Agreements (PLA) on federal construction contracts exceeding $35 million. By offering perspectives on competition, federal labor and procurement statutes, and taxpayer dollar stewardship, the group exposes the dubious nature of what its counsel calls the PLA Mandate.
The FAR Council consists of Department of Defense, General Services Administration, National Aeronautics and Space Administration and the Office of Federal Procurement Policy representatives. A final rule outlining the PLA Mandate it issued late last year consummates an White House executive order, Use of Project Labor Agreements for Federal Construction Projects. AGC and Louisiana AGC filed suit seeking federal court declaration that the executive order and the final rule are null, void and unenforceable. The complaint formalizing their challenge is a good lesson on the Labor Management Relations Act (LMRA, 1947), National Labor Relations Act (NLRA, 1935) and Procurement Act (1949).
“The PLA Mandate drills into the very bedrock of the NLRA, and conflicts with the LMRA, in disregard of the critical role that both have played for over 80 years,” AGC and Louisiana AGC counsel contends. The Mandate rests on the proposition that the Procurement Act enables the White House and the FAR Council to largely displace critical NLRA provisions, to intrude on the National Labor Relations Board jurisdiction, attorneys observe, adding, “If Congress had intended to authorize [them] to take such dramatic action through the Procurement Act, one would reasonably expect Congress to have stated its intention in clear and express terms. It did not.”
AGC and Louisiana AGC counsel likewise offer an instructive discussion of federal legislator goals involving construction services procurement, along with U.S. Constitution provisions relating to federal government power and state autonomy, noting:
- The PLA Mandate jeopardizes prospects within the federal procurement system for women-owned small businesses, small disadvantaged businesses and service-disabled veteran-owned small businesses. It will cause “irreparable harm to such firms by impeding Congress’ objective of providing them with a significant number of business opportunities, as such firms rarely possess the knowledge, skills, abilities, and systems that contractors require to navigate and comply with project labor agreements.”
- The LMRA reflects the intent of Congress to broadly prevent federal or state government interference with the negotiation or enforcement of collective bargaining agreements. The PLA Mandate requires signatory contractors to waive their right to apply collective bargaining agreements they have already negotiated with unions to all PLA-bound work.
- The LMRA sets forth the national policy permitting state governments to enact right-to-work laws. Adopted by Louisiana and 27 other states, such laws prohibit collective bargaining agreements that require covered employees to either join the union or pay union dues.
The PLA Mandate conflicts with the NLRA and the LMRA, according to AGC and Louisiana AGC attorneys. Consequently, they call on the U.S. District Court for the Western District of Louisiana to apply the Major Questions Doctrine, which underlies President of the United States v. Nebraska. That 2023 case saw the U.S. Supreme Court rule for six states challenging the White House’s attempt to cancel more than $400 billion in federal student loan debt. The rationale for that costly stunt was rooted in lofty interpretations of provisions in the Higher Education Relief Opportunities for Students Act of 2003.
By recognizing AGC and Louisiana AGC’s case against the PLA Mandate, the Louisiana court can temper a desperate White House prone to serving limited constituencies—indebted college graduates or dropouts and organized labor leaders—by assuming authority contrary to what dusty statutes grant.
Don Marsh, Editor