CHAPTER 5

THE CASE FOR PUBLIC OWNER PROJECT LABOR AGREEMENTS (PLAs)

James M. O’Neill, Esq. Michael V. Griffin, P.E. _______________________________________________________________________ § 5.01 Introduction § 5.02 What Is a Project Labor Agreement? [A] The Supremacy Clause [B] Term of the PLA [C] Management Rights § 5.03 What a Project Labor Agreement Is Not § 5.04 The Boston Harbor Precedent § 5.05 After Boston Harbor [A] New York State and The Tappan Zee Bridge PLA [B] New York Law and Executive Order No. 49 [C] Other Jurisdictions § 5.06 Other Arguments by PLA Opponents Are Without Merit § 5.07 Hands-On Experience § 5.08 Conclusion § 5.09 Appendix: Project Labor Agreement Covering Certain Construction on the

I-287/Cross Westchester Expressway Corridor

§ 5.01 INTRODUCTION Project Labor Agreements (PLAs) have been used widely and quite successfully in the

private sector for decades as a tool for the expeditious, cost-effective construction of long-term, complex capital projects. PLAs avoid the threat of labor disruptions for the duration of the work and provide standardization of work rules, hours, and other factors, which gives the contractor control of scheduling, manning, and overall management. PLAs have also been used, though with little notice, for many years in the public sector. It was not until the 1990s and the 1993 U.S. Supreme Court decision in the Boston Harbor case1 that the current PLA controversy began in earnest.

This chapter makes the case that in certain instances the best interests of a public owner and

of the taxpayers are best served by a PLA. This conclusion is based on the analysis of the legality and utility of PLAs from numerous courts; currently, the weight of authority in courts across the country heavily favors the proponents. The conclusion is also based on extensive firsthand experience with the benefits PLAs provide. In addition to reviewing the reasoning of the court decisions and the track record of PLAs, this analysis responds to the remaining arguments of PLA opponents that have not been addressed by the courts.

PLAs may not be appropriate for all public projects. Each project must be evaluated on a

case-by-case basis based on guidelines provided by both the courts and by authoritative published administrative policies and executive orders of various governmental entities. To argue that PLAs are “good”2 for every project would be as unreasonable as the assertion by PLA opponents that all PLAs are “bad.” PLA proponents recognize that PLAs are not appropriate in every case.3

§ 5.02 WHAT IS A PROJECT LABOR AGREEMENT? A PLA, sometimes referred to as a “Pre-Hire Agreement,” is a type of collective bargaining

agreement commonly used in large, complex, long-term construction projects that involve multiple contractors and many trades. A PLA, by definition, applies only to a single project and has no bearing on or relevance to any other work a contractor or union may be involved in during the same period of time. A PLA is a specific contract for construction of a specific project during a specific period of time. All parties to be involved in the construction—unions, contractors, and owners (often through a construction manager)—are required to be signatories to the PLA, which supersedes any prior existing agreements. The PLA provides for standardized work practices; hours; holidays; grievance, dispute, and arbitration procedures; and overall

1 Associated Builders and Contractors of Mass./R.I., Inc. v. Massachusetts Water Resources

Auth., 507 U.S. 218 (1993). 2 See Murphy and Casey, “The Case Against Public Owner Project Labor Agreements,”

1994 Wiley Construction Law Update; Baskin, The Case Against Union-Only Labor Project Agreements, Constr. Law. (Jan. 1999).

3 See Kopp and Gaal, The Case For Project Labor Agreements, Constr. Law. (Jan. 1999).

labor-management harmony for the duration of the project. Most importantly, the PLA precludes any strikes, lockouts, work stoppages, and/or any other disruption of work for any reason during the term of the PLA. The term “Pre-Hire” is derived from the agreement by the parties, prior to construction, to hire workers through the respective union halls.

As an example of a PLA, the “Project Labor Agreement Covering Certain Construction on

the I-287/Cross Westchester Expressway Corridor” is appended as § 5.09 of this chapter. Section 8(f) of the National Labor Relations Act (NLRA),4 amended in 1959, specifically

provides for the use of pre-hire agreements in the construction industry. This authorization is in recognition of the particular and unique conditions existing in that industry. Short-term employment associated with individual construction projects often precludes post-hire collective bargaining; however, contractors require predictable cost estimates, a dependable supply of skilled labor, and on-site labor harmony, which a pre-hire agreement or PLA provide.

[A] The Supremacy Clause

A well crafted and carefully negotiated PLA incorporates by reference the individual local

collective bargaining agreements of the trades involved in the project’s construction. The PLA contains a “supremacy clause” providing that it takes precedence over any subject implicitly or explicitly covered by an individual agreement. An example of such a clause is set forth below:

Section 4. Supremacy Clause: This Agreement, together with the local

collective Bargaining Agreements appended hereto as Schedule A, represents the complete understanding of all signatories and supersedes any national agreement, local agreement or other collective bargaining agreement of any type which would otherwise apply to this Project, in whole or in part. Where a subject covered by the provisions, explicit or implicit, of this Agreement is also covered by a Schedule A, the provisions of this Agreement shall prevail. It is further understood that no Contractor shall be required to sign any other agreement as a condition of performing work on this Project. No practice, understanding or agreement between a Contractor and a Local Union which is not explicitly set forth in this Agreement shall be binding on this Project unless endorsed in writing by the Construction Project Manager.5

The proper inclusion of a supremacy clause, incorporation of the involved collective bargaining agreements, and participation of the local unions are essential for the PLA to fulfill its purpose.

4 29 U.S.C. §158(f). 5 Project Labor Agreement Covering Certain Construction and Repair Work on the Tappan

Zee Bridge, June 15, 1994, Art. 2, Sec. 4, “Supremacy Clause” (emphasis supplied).

[B] Term of the PLA The term of the PLA is also critically important to its effective functioning; The term of a

PLA is intended to cover the entire duration of construction of the entire project. Individual collective bargaining agreements usually have a duration of two years. Agreements of that duration might expire two or more times during a multiyear mega-project. Any strikes, work stoppages, or other disruptions that could accompany these expirations and renegotiations could have devastating impact. Instead, such construction delays are avoided because the term of the PLA supersedes the terms of any and all individual collective bargaining agreements.

While the term of the PLA will typically be tied to the completion of the scope of the

project, it cannot be completely open-ended. Therefore, the PLA may set an end date that reflects when the parties reasonably anticipate the work will be complete, or at least underway. Thus, in the example quoted below, the PLA is stipulated to extend to all construction contracts awarded after its effective date and before a specified date years in the future. Note that the PLA does not expire on the date stated; rather, it remains in effect through the completion of any contract awarded before the specified deadline:

This Agreement shall be further limited to Project work performed under the Governmental Entities’ construction contracts awarded after the effective date of this Agreement and performed prior to the termination date of this Agreement. It is further understood that this Agreement, together with all of its provisions, shall remain in effect for all project work bid but not completed by June 30, 2007. If the Project work described above is not bid by June 30, 2007, this Agreement may be extended by mutual agreement of the parties.6

Without the reasonable certainty that the PLA will apply throughout the project, the PLA’s goal of providing stability and predictability for the duration of the project would be lost. [C] Management Rights

In order to make clear that contractors subject to the PLA maintain their ability to manage

and direct the labor force, a PLA will include strongly worded Management Rights provisions. A “Reservation of Rights” clause provides that, except as specifically limited by the PLA, the contractor retains the right to manage its work. One such reservation of rights clause states in part:

Except as expressly limited by a specific provision of this Agreement, Contractors retain full and exclusive authority for the management of their Project operations including, but not limited to: the right to direct the work force,

6 Project Labor Agreement Covering Certain Construction on the I-287/Cross

Westchester/Expressway Corridor (hereinafter I-287 PLA) (emphasis supplied), Art. 3, Sec. 2, “Time Limitations” (emphasis supplied).

including determination as to the number to be hired and the qualifications therefor; the promotion, transfer, layoff of its employees; or the discipline or discharge for just cause of its employees; the assignment and schedule of work; the promulgation of reasonable Project work rules; and, the requirement, timing and number of employees to be utilized for overtime work.7

Another clause expressly retains the contractor’s rights with respect to the choice of methods, materials, and equipment to be used on the project. The provision expressly states that the PLA does not restrict work performed off-site, but does require that all on-site installation be performed by the applicable craft under the PLA:

There shall be no limitation or restriction upon the Contractors’ choice of materials, techniques, methods, technology or design, or, regardless of source or location, upon the use and installation of equipment, machinery, package units, pre-cast, pre-fabricated, pre-finished (except that all rebar for use in cast-in-place, on site construction will be cut and bent in accordance with local industry practices), or pre-assembled materials, tools, or other labor-saving devices. Contractors may, without restriction, install or use materials, supplies or equipment regardless of their source. The on-site installation or application of such items shall be performed by the craft having jurisdiction over such work; provided, however, it is recognized other personnel having special qualifications may participate, in a supervisory capacity, in the installation, check-off or testing of specialized or unusual equipment or facilities as designated by the Contractor. There shall be no restrictions as to work which is performed off-site for the Project.8

This clause recognizes that rebar fabrication can take place on-site or off-site, but dictates that local industry practice will govern. It also acknowledges that the installation of specialized equipment may involve specialized personnel to supervise the work.

§ 5.03 WHAT A PROJECT LABOR AGREEMENT IS NOT

PLAs are uniformly labeled by opponents as “Union-Only Project Labor Agreements.”9

This “Union Only” characterization is misleading. In fact, the “union-only” accusation is untrue and inconsistent with the express provisions of the PLAs, with the views of numerous courts, and with the actual composition of the labor force on ongoing PLA projects, a topic discussed later in this chapter.

7 I-287 PLA, Art. 6, Sec. 1, “Reservation of Rights” (emphasis supplied). 8 I-287 PLA, Art. 6, Sec. 2, “Materials, Methods & Equipment” (emphasis supplied). 9 See Baskin, Baskin The Case Against Union-Only Labor Project Agreements, Constr.

Law. (Jan. 1999).

No PLA used in a major public project has required a contractor to be unionized in order to bid or perform contract work. A PLA does not require a non-union contractor to become unionized, nor does it require recognition of a union or acceptance of any collective bargaining agreements on a project. On the contrary, the benefits of the PLA are extended to all successful bidders “without regard to whether that successful bidder performs work at other sites on either a union or non-union basis and without regard to whether employees of such successful bidder are, or are not, members of any unions.”10 A PLA is specifically limited to the construction work associated with a specific project, in a specific location, for a specific period of time. When that project ends, the contractor’s participation as a party to that PLA also ends.

PLAs do not require union membership; they contain specific language prohibiting

discrimination against non-union members in making referrals through the hiring halls. Thus a PLA will typically provide that “[n]o employment applicant shall be discriminated against by any referral system or hiring hall because of the applicant’s union membership, or lack thereof.”11 While Section 8(f) of the NLRA provides for referrals through the union hiring halls, it also prohibits discriminating against non-union members.

Further, the PLA typically includes a provision allowing the non-union contractor to bring

to the project a certain number or percentage of key or core employees who either need not go through the hiring halls at all or who may be specifically named by the contractor.12

PLAs on public projects do not create a union-only workforce, and although they typically contain a union security and hiring hall provision, they cannot require a non-union employee to become a union member. At most, they may require an employee to pay a general fee equivalent to union dues.13 These provisions have been common in private-sector PLAs for decades and are unquestionably lawful under long-established principles of federal labor law.

Public owners are merely doing what private owners have done for many years and what

the U.S. Supreme Court has said they may do when acting as a private purchaser in the construction industry marketplace.

§ 5.04 THE BOSTON HARBOR PRECEDENT

Although there is a history of at least limited use of PLAs in public projects going back to

the Grand Coulee Dam on the Columbia River in the 1930s, the first legal challenge to a PLA on

10 I-287 PLA, Art. 2, Sec. 7, “Availability and Applicability to All Successful Bidders.” 11 I-287 PLA, Art 4, Sec. 3, “Non-Discrimination in Referrals”; see also id. at Art. 4, Sec. 6,

“Union Dues” (“No employee shall be discriminated against at the Project site because of the employee’s union membership or lack thereof.”).

12 See, e.g., I-287 PLA, Art. 4, Sec. 2, “Union Referral.” 13 I-287 PLA, Art. 4, Sec. 6, “Union Dues” (“In the case of unaffiliated employees, the dues

payment will be received by the Unions as an agency shop fee.”).

a public project occurred in the early 1990s. At that time, two massive public construction projects were about to commence in the Boston area. The Central Artery/Tunnel Project is one of the largest, most complex construction projects ever undertaken in the United States and certainly the largest public works project ever undertaken in the Northeast United States. It includes major improvements and expansion to miles of interstate highways, an 8- to-10-lane underground expressway through the middle of Boston, construction of a major eight-lane suspension bridge, and construction of a new four-lane tunnel under Boston Harbor. This multiyear, multi-billion-dollar project involves dozens of general contractors, more than 100 subcontractors, and thousands of construction workers. The Massachusetts Highway Department (MHD), the public owner, included a PLA in the bid specifications requiring each successful bidder-contractor to sign the PLA.

At about the same time, the Massachusetts Water Resources Authority (MWRA) under a

court-ordered mandate, began a multi-billion-dollar, ten-year project to clean up Boston Harbor. This project would proceed simultaneously with the Central Artery Project and would also require scores of contractors and subcontractors and hundreds of workers. The MWRA also included requirements in its bid specifications requiring successful contractors and subcontractors to accept a PLA.

Both public owners, together with their respective construction managers, reasoned that

since the construction labor pool in the Boston area was approximately 75 percent union, the manning of the projects would be in that same proportion with or without a PLA. Therefore, the concessions to be gained from the unions in a PLA would ensure a more cost-effective and timely completed project. In the Central Artery/Tunnel Project, for example, it was estimated that 24 local collective bargaining agreements would expire, four times each, during the first eight years of construction. Should negotiations break down in any one of those 96 instances, the resulting strike could seriously delay or completely shut down the project. A PLA precludes such a strike as well as standardizing the dispute resolution process.

At the commencement of the Central Artery/Tunnel Project, the PLA was challenged in

state court as a violation of the Massachusetts competitive bidding laws among other grounds. At about the same time, the Boston Harbor PLA was challenged in federal court on a federal preemption theory, that the MWRA’s requirement that all successful bidders become parties to a PLA constituted an impermissible state intrusion into the labor relations of project contractors and was preempted by the NLRA.

The U.S. Supreme Court rendered its landmark decision, Associated Builders and

Contractors of Massachusetts/Rhode Island, Inc. v. Massachusetts Water Resources Authority (Boston Harbor),14 in March 1993. In that decision, the Court held that although the government could not impose a PLA in its regulatory capacity, it was not prohibited from benefiting from a PLA on a specific project wherein the government entity was acting in its proprietary capacity as an owner or a purchaser of construction in the construction industry marketplace. This decision has provided the impetus for public sector PLAs across the nation and for the resulting legal

14 507 U.S. 218 (1993).

challenges based predominantly on the theory that the PLAs violate the respective state competitive bidding statutes, thus favoring union over non-union bidders.

In The Case Against Public Owner Project Labor Agreements,15 the authors note that the

issue of ERISA preemption was raised but not addressed by the Court in Boston Harbor and that preemption argument remained open at that time (1994):

The Federal Employee Retirement Income Security Act (ERISA) supersedes any and all state laws which “relate to” employee benefit plans. Although ERISA preemption was raised in Boston Harbor at the lower court level, neither the court of appeals nor the Supreme Court was required to address it. The issue remains open, therefore, as a basis for challenging public project labor agreements.16

The ERISA preemption argument has since been addressed and that opening for PLA opponents has been closed.

In Associated General Contractors v. Metropolitan Water District of Southern California,17

the U.S. Court of Appeals for the Ninth Circuit rejected an attack on a PLA on the basis of ERISA preemption. In that case, the Associated General Contractors argued that because the PLA required contractors to make fringe benefit contributions to particular joint trust fringe benefit plans, it constituted state “regulation” of benefits in contravention of ERISA preemption provisions. Following the reasoning of Boston Harbor, the Ninth Circuit found that the MWD utilization of a PLA constituted proprietary, as opposed to regulatory, action and therefore provided no basis for application of the ERISA preemption provision.

The authors of this chapter suggest that the ERISA preemption issue has been adjudicated

and that argument is therefore laid to rest. § 5.05 AFTER BOSTON HARBOR

While the Boston Harbor litigation was working its way through the courts, the entire

construction industry, the unions, non-union organizations, public contracting authorities, and politicians were anxiously awaiting the outcome. Shortly after the decision was rendered, the governors of New York and New Jersey issued directives18 related to the use of PLAs on public projects by their respective states. The use of PLAs pursuant to these directives resulted in the first of dozens of state court PLA challenges outside Massachusetts.

15 See Murphy and Casey, “The Case Against Public Owner Project Labor Agreements,”

1994 Wiley Construction Law Update. 16 Id. 17 159 F.3d 1178 (9th Cir. 1998). 18 Executive Memorandum, Gov. Cuomo, Project Labor Agreements (Aug. 13, 1993);

Executive Order 99, Gov. Florio, Project Labor Agreements (Sept. 13, 1993).

The first state supreme court decision was rendered by the New Jersey Supreme Court in

George Harms Construction Co. v. New Jersey Turnpike Authority.19 This case, and the resulting decision, were ill-timed and not representative of PLA issues that have been addressed in most of the other state court PLA cases. A later New Jersey Supreme Court case,20 which also found a PLA invalid, was more representative of PLA issues and will be discussed below. As public projects and challenges began occurring in several jurisdictions, the first major case was developing in New York.

[A] New York State and The Tappan Zee Bridge PLA

Soon after the Boston Harbor decision, the Governor of New York issued a memorandum

to all state agencies and authorities, referencing the “Boston Harbor Agreement” and directing that said construction agencies and authorities “evaluate the benefits, for appropriate projects, of negotiating a pre-hire agreement, . . . Such benefits may include the promotion of labor stability, timeliness of completion and efficiency.”

The New York State Thruway Authority (NYSTA) was at that time preparing to undertake

a major rehabilitation and construction project on the Tappan Zee Bridge involving multiple contractors, 19 unions, a four-year construction schedule and an estimated cost of $130 million. Hill International, Inc., was engaged by the NYSTA to pursue with the New York State Building and Construction Trades Council (NYSBCTC), local union representatives, and other appropriate parties a determination as to whether a PLA could be negotiated that would conform to the guidelines in the governor’s memorandum as well as:

• provide economic savings in the construction process through changes in work rules and

practices and improve productivity, safety, efficiency and timeliness of construction; • provide for the enhancement of employment opportunities for minority women and

disadvantaged persons; and • allow all successful bidders, including open-shop contractors, to utilize a portion of their

regular work force on the Project. After an in-depth analysis of the existing labor market, a thorough review and comparison

of the 19 individual collective bargaining agreements, a review of recent work history and of labor unrest, numerous meetings and interviews with contractors and their associations’ representatives, and more than four months of intensive labor negotiations, a draft PLA acceptable to all parties was concluded. The draft PLA was modeled after the Boston Harbor PLA and contained all of the concessions obtained from the extensive negotiations with local labor. It was submitted to the NYSTA Board of Directors, together with a report from Hill

19 137 N.J. 8 (1994). 20 Tormee Constr. Co. v. Mercer County Improvement Auth., 143 N.J. 143 (1996).

International recommending approval. The report identified areas and estimated amounts of cost savings, as well as the additional benefits to be derived from the proposed PLA.

The PLA was approved, executed by the necessary parties, and included as part of the

specifications in the first bid package issued by the NYSTA for the Tappan Zee Bridge Project. The PLA was immediately challenged in the New York State Supreme Court by open shop contractors and their associations. After a brief temporary restraining order, the lower court refused to grant an injunction. Construction on the project proceeded utilizing the PLA while the litigation continued through the New York Court of Appeals, where the validity of the PLA ultimately was upheld.21

The Court of Appeals noted that since a PLA is a significant restriction on the bidding process, the contracting authority must demonstrate that both the purpose and the effect of the PLA requirement will meet the objectives of the state competitive bidding laws. In order to make this determination, the facts and circumstances of each PLA had to be reviewed on a case-by-case basis. The Court of Appeals held that the purposes of the state competitive bidding statutes were: (1) guarding against fraud, favoritism, and extravagance, and (2) ensuring honest competition to obtain the best work at the lowest possible price. The court found that the first purpose was served by the PLA in that equal access to the bidding process and PLA benefits was available to both union and non-union contractors and that award would be made without regard to union status. The PLA also prohibited discrimination by unions and contractors against employees regardless of union/non-union status in either work referral from the hiring halls or on the job.

The New York Court of Appeals found that the second purpose was served by the PLA in

that it created cost savings in several ways, thus protecting the “public fisc.” The court noted specific areas of cost savings from concessions such as the four 10-hour days at straight time, and standardization of working hours, and holidays, among others. The court specifically noted the potential substantial savings from the PLA’s comprehensive “no-strike” clause, which precluded labor disruptions for the duration of the project, and further that such disruptions would likely cause a diversion of bridge traffic and loss of toll revenues in addition to the usual delay costs resulting from work stoppages. The stated purposes of the statute therefore having been met, the requirement of the PLA was upheld by the court.

A companion case considered by the same court and decided at the same time as the

Tappan Zee Bridge case involved a PLA for construction at the Roswell Park Cancer Center owned by the New York State Dormitory Authority (DASNY).22 The court invalidated the PLA in that case, noting that DASNY did not adequately consider whether a PLA would provide cost savings before it imposed the PLA requirement. In fact, six construction contracts had been let before DASNY mandated a PLA for the remainder of the project. No reduced cost efficiencies,

21 New York State Chapter ABC, Inc. v. New York State Thruway Auth., 88 N.Y.2d 56,

643 N.Y.S.2d 480, 666 N.E.2d 185 (1996). 22 General Bldg. Contractors of New York State v. Dormitory Authority of the State of New

York, 88 N.Y.2d 56, 643 N.Y.S.2d 480, 666 N.E.2d 185 (1996).

labor disputes, or other problems were evident in the absence of a PLA on those contracts, nor was the project nearly as complex as the Tappan Zee Bridge Project. The court referred to the justification for the PLA requirement by DASNY as “post hoc rationalization” and invalid. In comparing the two decisions, the New York Court of Appeals reiterated that PLA requirements must be reviewed on a case-by-case basis. [B] New York Law and Executive Order No. 49

There have been several lower court decisions in New York23 since the Tappan Zee/Roswell

Park decisions and the law of the Tappan Zee Bridge case has become settled as the law of New York State regarding the validity and use of PLAs. In Flex Electrical Contractors v. County of Orange,24 the court utilized a four-step analysis, which since seems to have been adopted by other courts:

1. the purpose of the project and the impact of delay; 2. cost savings advantages to be realized from use of the PLA; 3. the local history of unionism and labor unrest, and the impact of a PLA on these factors;

and 4. the provisions of the PLA in issue. On February 12, 1997, Governor Pataki promulgated Executive Order No. 49 Project Labor

Agreements, which, citing the Tappan Zee Bridge decision as authority, sets forth that PLAs are one of many tools that may be used by management and labor and that may, under certain circumstances, assist in achieving the goals of timeliness, cost effectiveness, fairness, equity, and conformity to the law. Executive Order No. 49 sets forth the policies and procedures to be followed by agencies in determining whether a PLA should be utilized, and if so, the interaction between Article 8 of the Labor Law (Prevailing Wages Rates) and the PLA.

The New York Court of Appeals’ decisions in the Tappan Zee Bridge and Roswell Park

companion cases exemplify that court’s position that although it agrees with the courts of most other jurisdictions recognizing the validity of PLAs, it will review each case on its merits and require the implementing governmental authority to demonstrate that the use of a PLA on a particular project will advance the purposes of New York State’s competitive bidding laws. The burden of proof is on the implementing authority. The New York State Thruway Authority met its burden in support of a PLA; the Dormitory Authority did not.

23 Flex Elec. Contractors v. County of Orange, 43 CLR 7968 (1997); Albany Specialties

Inc. v. County of Orange, 240 A.D.2d 739, 662 N.Y.S.2d 773 (2d Dep’t 1997); Empire State Chapter ABC Inc. v. City of Oswego, 239 A.D.2d 875, 659 N.Y.S.2d 672 (4th Dep’t 1997); Empire State Chapter ABC Inc. v. City of Buffalo, Index No. I 1998-8732 (Oct. 10, 1998).

24 43 CLR 7968 (1997).

[C] Other Jurisdictions

Outside New York State, the majority of courts have placed the burden upon the plaintiff

challenging the propriety of the PLA to prove that the governmental authority (owner) has abused its discretion or exceeded its powers in requiring a PLA for a public project. Most of these courts have required little detailed analysis other than a rational basis for the PLA requirement, such as timely and cost-effective project completion, anticipated labor shortages, and/or severe project time constraints.

In addition to New York, courts have found PLAs valid at the federal level and in at least

12 states including Alaska,25 California,26 Massachusetts,27 Minnesota,28 Missouri,29 Nevada,30

Ohio,31 and Pennsylvania.32 Favorable opinions have also been rendered in Connecticut, Illinois, and Oregon (citations omitted).

New Jersey was the only jurisdiction to originally reject PLAs generally on public

projects.33 In its second PLA decision,34 however, the New Jersey State Supreme Court cited the Tappan Zee Bridge decision with approval and suggested that in a similar complex, multiyear, high-cost project, a PLA requirement might be lawful. As in the New York decisions, the New

25 Laborers Local 942 v. Lampkin, 956 P.2d 422 (Alaska 1998). 26 ABC Inc. Golden Gate Chapter v. San Francisco Airports Comm’n, 87 Cal. Rptr. 2d 654,

81 P.2d 499 (1999). 27 Utility Contractors Ass’n of New England v. Commissioners of the Mass. Dept. of Public

Works, 153 LRRM 2301 (Central Artery 1997). 28 Minnesota Chapter of ABC, Inc. v. St. Louis County, 825 F. Supp. 238 (D. Minn. 1993). 29 Hanten v. School Dist. of Riverview Gardens, 13 F. Supp. 2d 971 (E.D. Mo. 1998). 30 American Asphalt & Grading Co. & S. Nev. Chapter of ABC, Inc. v. Southern Nev.

Water Auth., 979 P.2d 224 (Nev. 1999). 31 ABC, Cent. Ohio Chapter, Inc. v. Jefferson County Bd. of Commrs., 106 Ohio App. 3d

176, 665 N.E.2d 723 (1995); Enertech Electric Inc. v. Mohoning County Commrs., 85 F.3d 257 (6th Cir. 1996) (PLAs do not violate Due Process clause of the U.S. Constitution nor state competitive bidding laws).

32 A. Pickett Constr. Inc. v. Luzeme County Convention Center Auth., 738 A.2d 20 (Pa. 1999) (the court cited favorably Mr. O’Neill’s study and report to the Authority); Keystone Chapter ABC, et al. v. Berks County Convention Center Auth., C.A. No. 99-5789 (Berks Cty. Com. Pleas, Pa., Dec. 14, 1999), (Mr. O’Neill’s study, report, and trial testimony relied upon by the court together with Turner Construction Co. report reaching similar conclusions in support of PLA).

33 See George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8 (1994). 34 See Tormee Constr. Co. v. Mercer County Improvement Auth., 143 N.J. 143 (1996).

Jersey Supreme Court made it clear that the use of PLAs had to be considered on a case-by-case basis.35

The conflict in the New Jersey decisions was recently resolved by the U.S. District Court, District of New Jersey, in Utility and Transportation Contractors Association of New Jersey, Inc. (UTCA), George Harms Construction Co., Inc., et al. v. Essex County Improvement Authority (ECIA).36

The case involved construction of a $200 million correctional facility, which was a large, complex multiyear project with severe time constraints imposed by the federal court, and a $22 million Sports Complex. ECIA, pursuant to the Governor’s Executive Order No. 11, considered the use of a PLA for the projects and decided to proceed with a PLA on the correctional facility for the following stated reasons:

1. avoiding the costly delays of potential strikes, slowdowns, walkouts, picketing and other

disruptions arising from work disputes, and promoting labor harmony and peace for the duration of the Project;

2. standardizing the terms and conditions governing the employment of labor on the Project; 3. permitting wide flexibility in work scheduling and shift hours and times from those

which otherwise might obtain; 4. receiving negotiated adjustments to work rules and staffing requirements from those

which otherwise might obtain; 5. providing comprehensive and standardized mechanisms for the settlement of work

disputes, including those relating to jurisdiction; 6. ensuring a reliable source of skilled and experienced labor; 7. furthering public policy objectives as to improved employment opportunities for

minorities, women, and the economically disadvantaged in the construction industry; and 8. expediting the construction process and otherwise minimizing inconveniences to the

public.37

The U.S. District Court held that “the PLA did not violate state bidding laws under the standards set forth in ... Harms and Tormee and that it complied with the structures of Executive Order No. 11.”38 After extensive discussion, the court stated:

35 Id. 36 Civil Action No. 98-4408 (D.N.J. 1999), opinion and order filed May 20, 1999, not for

publication, John W. Bissell, Judge. 37 Id. at p.9.

In both cases, the Supreme Court recognized that PLAs can serve useful purposes in assuring efficiency and economy on large construction projects, indicating that the use of PLAs is not strictly prohibited. Harms, 137 N.J. at 13-14; Tormee, 143 N.J. at 148-149. In Tormee the Court discussed at some length “the exceptional circumstances that could justify recourse to a PLA.” (Id. at 149). “It stated that these were exemplified by the PLA upheld by the Appellate Division of the New York State Supreme Court in New York State Chapter, Inc. v. New York Thruway Auth., 620 N.Y.S.2d 855 (1994), aff’d, 88 N.Y.2d 56, 643 N.Y.S.2d 480, 66 N.E.2d 185 (1996).” (The TZB Division)

After an in-depth analysis of the Tappan Zee Bridge decision, the court continued:

In contrast, the Court determined, the library renovation projects at issue in Tormee were not of comparable scope and complexity and would impermissibly have essentially required contractors to use a unionized labor force.... the PLA at issue in the case at bar “fits the window” left open by Tormee. Indeed, this PLA contains each of the provisions which the Court in Tormee listed as significant in discussing the proper use of a PLA.

With regard to Executive Order No. 11, the court observed:

In addition, the Court concludes as it did at the preliminary injunction stage, that the PLA conforms with the requirements of Executive Order No. 11. As the Court explained in Tormee, Executive Order No. 11 allows agencies to require PLAs on a “project by project basis where it has been determined that such project agreement will promote labor stability and advance the state’s interest in cost, efficiency, quality, safety and/or timeliness.” Tormee, 143 N.J. at 150. (Emphasis added). The ECIA evaluated the desirability of a PLA here on a project-by-project basis, indeed deciding not to require one for the sports stadium project after determining that that project was not of comparable complexity.... In conclusion, the PLA is valid under Harms, Tormee, and Executive Order No. 11. Defendant is therefore entitled to summary judgment.39

Thus, New Jersey has now joined the states in which PLAs have been challenged and validated on appropriate projects. No jurisdiction has found PLAs invalid per se.

Clearly, the weight of authority nationwide permits the use of PLAs in the construction of

major capital public projects. This is reflected not only in the court decisions but in the repeated and expanding utilization of PLAs over the past few years on such major public projects as the Chicago, Orlando, Philadelphia (2 PLAs), and San Francisco ($2.4 billion) airports; the Central

38 Id. at p.16. 39 Id. at p.19.

Artery/ Third Harbor Tunnel and Boston Harbor; the Tappan Zee Bridge (2 PLAs); and the I-287/Cross Westchester Expressway, to name a few. § 5.06 OTHER ARGUMENTS BY PLA OPPONENTS ARE WITHOUT MERIT

All of the arguments raised by PLA opponents in various jurisdictions ultimately have been

rejected by the courts. PLA detractors nonetheless continue to raise vague and unsupported allegations against the benefits and effectiveness of PLAs. They attempt to blame PLAs for cost overruns on projects. Arguments concerning labor rates and costs miss the mark. They ignore the fact that the great majority of public projects are subject to state prevailing wage statutes regardless of whether a PLA applies. Thus, wage rates are really not an issue.

Another general argument against PLAs is based on the level of union membership among

American workers. Today, only approximately one in five American workers is a union member. The argument follows that the remaining four should not be required to work under a “union only” agreement. This argument ignores the nature and routine terms of PLAs and the facts of union membership in the construction industry and among the contractors and subcontractors bidding the projects with PLAs.

As demonstrated earlier in § 5.03, a PLA is not a “union only” agreement. On the contrary,

non-union contractors have effectively and successfully competed and performed under PLA agreements. On the Central Artery/Tunnel Project, 13 of the original 55 contracts let were to non-union contractors, and on the Boston Harbor Project 102 of the 257 successful subcontractors were non-union.40 PLAs expressly protect the rights of non-union contractors and non-union employees, while extending to them the same benefits under the PLA enjoyed by their unionized counterparts.

Likewise, the focus on national statistics regarding union membership is misplaced. The

national ratio of union to non-union workers is completely irrelevant to the makeup of the workforce at the site of a particular project. For example on the Tappan Zee Bridge Project, the workforce was more than 95 percent union and in some trades 100 percent. It is difficult to imagine, particularly in any major urban area in the United States, any large construction project without a very high percentage of union contractors, much less without any. Unless the owner is assured that the contract work will be awarded 100 percent to non-union contractors, a PLA will provide cost-saving concessions, standardization, no-strike language, and other benefits.

An issue never raised by PLA opponents is that a non-union contractor at the start of a

project cannot guarantee that it will remain non-union for the duration of the job since the legal prerogative to unionize belongs to the employees, not the contractor.

40 See New York State Chapter ABC, Inc. v. New York State Thruway Auth., 88 N.Y.2d 56,

643 N.Y.S.2d 480, 666 N.E.2d 185 (1996); Utility Contractors Ass’n of New England v. Commissioners of the Mass. Dep’t of Public Works, 153 LRRM 2301 at n.2 (Central Artery 1997).

§ 5.07 HANDS-ON EXPERIENCE

The authors’ experience with the Tappan Zee Bridge PLA was “cradle to grave”—from the

decision to explore the feasibility of a PLA through the labor and economic analyses, negotiations, drafting, execution, administration, and legal defense of the PLA. Since then, the authors have been involved personally in ten additional major public projects where similar expertise and services were required. Each of the authors has served as co-chairman of the Labor Management Committee under the PLA on the Tappan Zee Bridge Project41 and currently on the I-287/Cross Westchester Expressway Project, which will run through mid-2007.

This extensive experience provided the basis for the development of a methodology for

conducting feasibility studies for PLAs on major public works projects. This methodology is detailed and project specific, it involves a labor analysis, construction history, a business environment analysis, and evaluation of other requirements of each particular project. Computer models have been developed for the calculation of cost savings resulting from any or all concessions toward standardization of such items as work hours, holidays, shifts, and various work rules.

Applying this methodology and the increasing experience on each of those ten public

projects, it was recommended in three instances, based on project size, complexity, time constraints, or other factors including legal precedent, that PLAs were not appropriate or feasible. In each instance the recommendation was followed and the project proceeded without a PLA.

In six of the remaining seven projects, with a combined value of over $1 billion in

construction costs, PLAs were recommended and implemented. Those projects included construction on major airports, highways, bridges, an NFL stadium, a National League Baseball stadium, and two convention center/ sports arenas. On the seventh project, the study is currently in progress. Notwithstanding PLA opponents’ arguments to the contrary, it was readily determined that in highly unionized areas, not only did PLAs save substantial amounts in construction costs, but the amounts could be quantified for each cost-saving PLA provision. The non-quantifiable savings from schedule, manning, and overall management controls were also addressed. § 5.08 CONCLUSION

41 It is a little known fact concerning the Tappan Zee Bridge Project that in more than six

years, on a $200 million project, there were only six grievances that went to arbitration. That fact is directly attributable to the standardized PLA grievance procedures and is only a small fraction of the number of arbitrations that might be expected on a construction project of similar size.

The PLA opponents’ arguments against PLAs were summed up in “The Case Against Union-Only Project Labor Agreements”:42

Imposition of union-only PLAs in the public sector cannot be shown to serve the public interest. The government should not enter into the realm of labor management relations by arbitrarily creating a protected enclave for union work at the expense of taxpayers and to the detriment of fair and open competition. Government agencies that impose union-only PLAs in response to short-term political pressure from labor organizations will suffer long-term consequences, in the form of litigation, increased costs of construction, and adverse taxpayer reaction.

All of these arguments have been raised repeatedly in public and political forums and have

been rejected by the courts in every jurisdiction in which they have been argued. The reference to so-called long-term consequences is merely rhetoric designed to keep the controversy alive without presenting specific documented examples of increased construction costs resulting from PLAs; the litigation has all been instituted by PLA opponents and the “adverse taxpayer reaction” is from those same opponents.

The exhaustive reviews of individual PLAs by the courts make it clear that PLAs, in certain

circumstances and upon appropriate review by the government entity, are valid and beneficial to the government and therefore to the taxpayer. To achieve the benefits of a PLA, the project must be of sufficient size, complexity, and duration; be subject to certain time constraints; and be located in a highly unionized area. Upon review and determination that a PLA is feasible and appropriate, the PLA should provide that:

• the bidding and selection process will be open to union and non-union contractors

equally; • PLA benefits and terms will be applicable equally to all successful contractors on the

same terms regardless of union or non-union status; and • there will be no discrimination in hiring hall referrals or in employment of workers based

upon union membership. In New York and other jurisdictions following the Tappan Zee Bridge reasoning, cost

savings must be demonstrated. These can arise from negotiated concessions, from standardized work terms and conditions, or from protection of revenue such as bridge tolls through no-strike/no-work-stoppage provisions.

It is clear that the underlying argument by opponents of PLAs is that they promote

unionization. If that is so, it is only to the extent sanctioned by law and allowed by the courts. It

42 See Baskin, The Case Against Union-Only Labor Project Agreements, Constr. Law. (Jan.

1999), 18.

is in the very nature of unions to organize and to proselyte non-union workers on a common job site. This is a perfectly legal activity and will occur whether there is a PLA or not. In an area that is already highly unionized, these efforts are more likely to be intense and successful. Concerns regarding this activity are more properly addressed to the respective federal or state legislatures than to the courts in PLA controversies.

New construction in the United States is currently at an all-time high. In urban areas

nationwide and particularly in the Northeast Corridor, there is not only full employment but continuing shortages of skilled labor. PLAs provide at least a partial answer to the problem in that union hiring halls and apprenticeship programs have been recognized sources of skilled labor for generations. Though there are also some non-union contractor-sponsored training programs, the numbers of trained workers these produce are a small fraction of the numbers of union workers.

Probably the best argument for PLAs in the public sector is that they have been for decades,

and still are, used in the private sector by large, sophisticated, experienced developers, owners, construction managers and contractors, all of whom are driven by the profit motive. They want the best job for the lowest price in the shortest period of time. Disney World, the GM Saturn Facility, and the TransAlaska Pipeline are but a few examples of major private projects where PLAs have been successfully employed. Currently, the Goldman Sachs Group, Inc. is proceeding with a billion-dollar multibuilding project in Jersey City, New Jersey, called Project Phoenix. It will include an 840-foot tall office building (the tallest in New Jersey), a global conference and training facility, and a 250-room hotel. The project will be on a fast-track construction schedule and the multiple contractors will be required to execute a PLA with the appropriate members of the local Building and Construction Trades Council. It is obvious that the owners, after due diligence, determined that requiring a PLA in the bid specifications for Project Phoenix was in their best interest, i.e., it would give them the best job, at the best price, in the shortest period of time.

If Project Labor Agreements continue to be utilized by the profit-oriented private sector

after all these years, there must be a reason. Clearly, the reason is that they work. If they work for the private sector owners, they will work for public sector owners, as was the intent of the U.S. Supreme Court when it said that governmental agencies, acting in their proprietary capacity as owners in the construction industry marketplace, should be treated the same as private owners.

It is time for the PLA critics to cease their emotional and rhetorical pleas and to consider

PLAs on a rational case-by-case, project-by-project basis, as the courts and private sector owners have found to be the reasonable and responsible approach to the issue.

§ 5.09 APPENDIX: PROJECT LABOR AGREEMENT COVERING CERTAIN CONSTRUCTION ON THE I-287/CROSS WESTCHESTER EXPRESSWAY CORRIDOR

PROJECT LABOR AGREEMENT COVERING CERTAIN CONSTRUCTION ON

THE I-287/CROSS WESTCHESTER EXPRESSWAY CORRIDOR

TABLE OF CONTENTS

ARTICLE 1— PREAMBLE Section 1. Parties to the Agreement ARTICLE 2— GENERAL CONDITIONS Section 1. Definitions Section 2. Conditions for Agreement to Become Effective Section 3. Entities Bound & Administration of Agreement Section 4. Supremacy Clause Section 5. Liability Section 6. The Governmental Entities Section 7. Availability and Applicability to All Successful Bidders ARTICLE 3— SCOPE OF THE AGREEMENT

Section 1. The Work Section 2. Time Limitations Section 3. Excluded Employees Section 4. Non-Application to Certain Entities ARTICLE 4— UNION RECOGNITION AND EMPLOYMENT Section 1. Pre-Hire Recognition Section 2. Union Referral Section 3. Non-Discrimination in Referrals Section 4. Minority and Female Referrals Section 5. Cross and Qualified Referrals Section 6. Union Dues Section 7. Craft Forepersons and General Forepersons ARTICLE 5— UNION REPRESENTATION Section 1. Local Union Representative Section 2. Stewards Section 3. Layoff of a Steward ARTICLE 6— MANAGEMENT’S RIGHTS Section 1. Reservation of Rights Section 2. Materials, Methods & Equipment

ARTICLE 7— WORK STOPPAGES AND LOCKOUTS Section 1. No Strikes—No Lockout Section 2. Discharge for Violation Section 3. Notification Section 4. Expedited Arbitration Section 5. Arbitration of Discharges for Violation ARTICLE 8— LABOR MANAGEMENT COMMITTEE Section 1. Subjects Section 2. Composition ARTICLE 9— GRIEVANCE & ARBITRATION PROCEDURE Section 1. Procedure for Resolution of Grievances Section 2. Limitation as to Retroactivity Section 3. Participation by Construction Manager ARTICLE 10— JURISDICTIONAL DISPUTES Section 1. No Disruptions Section 2. Assignment Section 3. Procedure for Settlement of Disputes Section 4. Award 149 Section 5. Limitations Section 6. No Interference with Work Section 7. Pre-Job Conference ARTICLE 11— WAGES AND BENEFITS Section 1. Classification and Base Hourly Rate Section 2. Employee Benefit Funds ARTICLE 12— HOURS OF WORK, PREMIUM PAYMENTS, SHIFTS AND

HOLIDAYS Section 1. Work Week and Work Day Section 2. Overtime Section 3. Shifts Section 4. Holidays Section 5. Reporting Pay Section 6. Payment of Wages Section 7. Emergency Work Suspension Section 8. Injury/Disability Section 9. Time Keeping Section 10. Meal Period Section 11. Break Periods ARTICLE 13— APPRENTICES Section 1. Ratios

Section 2. Department of Labor ARTICLE 14— SAFETY PROTECTION OF PERSON AND PROPERTY Section 1. Safety Requirements Section 2. Contractor Rules Section 3. Inspections ARTICLE 15— NO DISCRIMINATION Section 1. Cooperative Efforts Section 2. Language of Agreement ARTICLE 16— GENERAL TERMS Section 1. Project Rules Section 2. Tools of the Trade Section 3. Supervision Section 4. Travel Allowances Section 5. Full Work Day Section 6. Cooperation

ARTICLE 17— SAVINGS AND SEPARABILITY Section 1. This Agreement Section 2. The Bid Specifications Section 3. Non-Liability Section 4. Non-Waiver ARTICLE 18— FUTURE CHANGES IN SCHEDULE A AREA CONTRACTS Section 1. Changes to Area Contracts Section 2. Labor Disputes During Area Contract Negotiations ARTICLE 19—WORKERS’ COMPENSATION ADR

PROJECT LABOR AGREEMENT COVERING CERTAIN CONSTRUCTION ON THE I-287/CROSS WESTCHESTER EXPRESSWAY

CORRIDOR

ARTICLE 1—PREAMBLE WHEREAS, Hill International, Inc. on behalf of itself, as Construction Project Manager,

and reflecting the objectives of the New York State Department of Transportation and the New York State Thruway Authority (“Governmental Entities”), desires to provide for the efficient, safe, quality, and timely completion of a construction project for anticipated improvements on the I-287/Cross Westchester Expressway Corridor in a manner designed to afford the lowest

reasonable costs to the Governmental Entities, and the Public they represent, and the advancement of public policy objectives;

WHEREAS, this Project Labor Agreement will foster the achievement of these goals, inter

alia, by: (1) avoiding the costly delays of potential strikes, slowdowns, walkouts, picketing and other

disruptions arising from work disputes and promote labor harmony and peace for the duration of the Project;

(2) standardizing the terms and conditions governing the employment of labor on the

Project; (3) permitting wide flexibility in work scheduling and shift hours and times; (4) receiving negotiated adjustments as to work rules and staffing requirements from those

which otherwise might obtain; (5) providing comprehensive and standardized mechanisms for the settlement of work

disputes, including those relating to jurisdiction; (6) ensuring a reliable source of skilled and experienced labor; (7) furthering public policy objectives as to improved employment opportunities for

minorities, women and the economically disadvantaged in the construction industry; (8) minimizing potential losses of toll revenues; (9) expediting the construction process and otherwise minimizing the traffic inconveniences

of travelers and commuters; and, WHEREAS, the signatory Unions desire the stability, security and work opportunities

afforded by a Project Labor Agreement; and, WHEREAS, the Parties desire to maximize Project safety conditions for both workers

and the traveling public; NOW, THEREFORE, the Parties enter into this Agreement:

Section 1. Parties to the Agreement

This is a Project Labor Agreement (“Agreement”) entered into by and between Hill International, Inc., and its successors and assigns, on its own behalf as the Construction Project Manager for certain construction work anticipated to be performed on the I-287/Cross Westchester Expressway Corridor for the New York State Department of Transportation and the New York State Thruway Authority, and by the New York State Building and Construction

Trades Council, AFL-CIO on behalf of itself and its affiliates and local union members; the Westchester and Putnam County Building and Construction Trades Council, AFL-CIO, on behalf of itself and its affiliated local union members; and the signatory Local Unions on behalf of themselves and their members.

ARTICLE 2—GENERAL CONDITIONS

Section 1. Definitions

Throughout this Agreement, the Union parties and the signatory Local Unions and Westchester and Putnam County Council are referred to singularly and collectively as “Union(s)” where specific deference is made to “Local Unions” that phrase is sometimes used; the term “Contractor(s)” shall include the Construction Project Manager and all signatory contractors, and their subcontractors of whatever tier, engaged in on-site Project construction work within the scope of this Agreement as defined in Article 3; Hill International, Inc. is referred to as the “Construction Project Manager”; the New York State Department of Transportation and the New York State Thruway Authority are referenced, collectively, as the “Governmental Entities”; the New York State Buildings and Trades Council, AFL-CIO is referenced as the “NYS Council”; the Westchester and Putnam County Building and Construction Trades Council, AFL-CIO is referenced as the “County Council,” and the work covered by this Agreement (as defined in Article 3) is referred to as the “Project”.

Section 2. Conditions for Agreement to Become Effective

This Agreement shall not become effective unless each of the following conditions are met:

(1) The Agreement is signed by the NYS Council and the County Council, and the Local Unions having jurisdiction over the Project work; (2) The Agreement is signed by the Construction Project Manager; and (3) The Agreement is formally approved by the New York State Department of Transportation, with respect to that portion of the Project covered by contracts to be let by it, and the New York State Thruway Authority, with respect to that portion of the Project covered by contracts to be let by it.

Section 3. Entities Bound & Administration of Agreement

This Agreement shall be binding on all signatory Unions and the Construction Project

Manager and all signatory Contractors performing on-site Project work, including site preparation and staging areas, as defined in Article 3. The Contractors shall include in any subcontract that they let, for performance during the term of this Agreement, a requirement that their subcontractors, of whatever tier, become signatory and bound by this Agreement with respect to subcontracted work performed within the scope of Article 3. This Agreement shall be administered by the Construction Project Manager, on behalf of all Contractors.

Section 4. Supremacy Clause

This Agreement, together with the local Collective Bargaining Agreements appended hereto as Schedule A, represents the complete understanding of all signatories and supersedes any national agreement, local agreement or other collective bargaining agreement of any type which would otherwise apply to this Project, in whole or in part. Where a subject covered by the provisions, explicit or implicit, of this Agreement is also covered by Schedule A, the provisions of this Agreement shall prevail. It is further understood that no Contractor shall be required to sign any other agreement as a condition of performing work on this Project. No practice, understanding or agreement between a Contractor and a Local Union which is not explicitly set forth in this Agreement or Schedule A shall be binding on this Project.

Section 5. Liability

The liability of any Contractor and the liability of any Union under this Agreement shall be

several and not joint. The Construction Project Manager and any Contractor shall not be liable for any acts or violations of any other Contractor; and the NYS and County Council and Local Unions shall not be liable for the acts or violation of any other Union.

Section 6. The Governmental Entities

The Governmental Entities shall require in their bid specifications for all work within the

scope of Article 3 that all successful bidders, and their subcontractors of whatever tier, become bound by, and signatory to, this Agreement. The Governmental Entities are not a party to this Agreement and shall not be liable in any manner under this Agreement. It is understood that nothing in this Agreement shall be construed as limiting the sole discretion of the Governmental Entities in determining which Contractors shall be awarded contracts for Project work. It is further understood that the Governmental Entities have sole discretion at any time to terminate, delay or suspend the work, in whole or part, on this Project.

Section 7. Availability and Applicability to All Successful Bidders

The Unions agree that this Agreement will be made available to, and will fully apply to any

successful bidder for Project work who becomes signatory thereto, without regard to whether that successful bidder performs work at other sites on either a union or non-union basis and without regard to whether employees of such successful bidder are, or are not, members of any unions. This Agreement shall not apply to the work of any Contractor which is performed at any location other than the Project site, as defined in Article 3, Section 1.

ARTICLE 3—SCOPE OF THE AGREEMENT The Project work covered by this Agreement shall be as defined and limited by the

following sections of this Article.

Section 1. The Work

This Agreement shall only apply to certain anticipated on-site construction work performed on the I-287/Cross Westchester Expressway Corridor (“Corridor”) during the time frame of this Agreement, more fully described as follows:

The work contained in the following seven (7) anticipated construction contracts: Contract NYSTA 1—Grading, paving, drainage, structures, median barrier, bridge construction, bridge rehabilitation, and lighting work on I-287 between the Thruway’s Tappan Zee Bridge toll plaza and the Thruway’s Interchange No. 8. Contract 1—Grading, paving, drainage, structures, median barrier, bridge construction, bridge rehabilitation, and lighting work on I-287 at Interchange No. 8. Contract 2—Grading, paving, drainage, structures, median barrier, bridge construction, bridge rehabilitation, and lighting work on I-287 between the Saw Mill River Parkway and Route 100. Contract 2A—Grading, paving, drainage, structures, median barrier, bridge construction, bridge rehabilitation, and lighting work on I-287 between Route 100 and the Bronx River Parkway. Contract 3A—Grading, paving, drainage, structures, median barrier, bridge construction, bridge rehabilitation, and lighting work on I-287 between the Bronx River Parkway and the Central Westchester Parkway. Contract 3B—Grading, paving, drainage, structures, median barrier, bridge construction, bridge rehabilitation, and lighting work on I-287 between the Central Westchester Parkway and Bloomingdale Road. Contract 4—Grading, paving, drainage, structures, median barrier, bridge construction, bridge rehabilitation, and lighting work on I-287 between Bloomingdale Road and Route 120. It is intended that only the work included in the above contract bid packages and approved

orders on contracts (“Project work”) is covered by this Agreement. The contract numbers used above are for identification purposes only and are subject to change. The work of these contracts may be repackaged into a greater or lesser number of contracts at the sole discretion of the Governmental Entities.

“On-site” construction and repair work in connection with the above shall also include

Project work performed at preparation and staging areas located within 15 miles of the Corridor.

Section 2. Time Limitations This Agreement shall be further limited to Project work performed under the Governmental

Entities’ construction contracts awarded after the effective date of this Agreement and performed

prior to the termination date of this Agreement. It is further understood that this Agreement, together with all of its provisions, shall remain in effect for all Project work bid but not completed by June 30, 2007. If the Project work described above is not bid by June 30, 2007, this Agreement may be extended by mutual agreement of the parties.

Section 3. Excluded Employees

The following persons (excluding divers) are not subject to the provisions of this

Agreement, even though performing work on the Project: a. Superintendents, supervisors (excluding general and forepersons and Master Mechanics

specifically covered by a craft’s Schedule A), engineers, inspectors and testers, quality control/assurance personnel, timekeepers, mail carriers, clerks, office workers, messengers, guards, technicians, non-manual employees, and all professional, engineering (excluding field surveyors), administrative and management persons;

b. Employees of the Governmental Entities, or of any other State agency, authority or entity

or employees of any municipality or other public employer; c. Employees and entities engaged in off-site manufacture, modifications, repair,

maintenance, assembly, painting, handling or fabrication of components, materials, equipment or machinery or involved in deliveries to and from the Project site, excepting local deliveries of all major construction materials including fill, ready mix, asphalt, granular materials and stored materials which are covered by this Agreement;

d. Employees of the Construction Project Manager, excepting those performing manual, on-

site construction labor who will be covered by this Agreement; e. Employees engaged in on-site equipment warranty work (when a Contractor has on site

an employee already certified by the relevant manufacturer to make warranty repairs on that Contractor’s equipment, that employee shall be used; when a Contractor has on site an employee already qualified to make warranty repairs, although not certified by the equipment manufacturer to do so, that employee shall be used to make repairs working under the direction of a manufacturer certified warranty representative. Notwithstanding the foregoing, if a contractor, in order to satisfy the warranty requirements of a manufacturer, must utilize a person or entity designated by the manufacturer, it may do so without coverage under this Agreement);

f. Employees engaged in geophysical testing (whether land or water) other than boring for

core samples; g. Employees engaged in laboratory or specialty testing or inspections; h. Employees engaged in work ancillary to the Project, performed by third parties. With

respect to entities engaged in such work ancillary to the Project, the Construction Project Manager will nonetheless notify those entities of this Project Labor Agreement and that

they may participate under this Agreement, if they so choose. To the extent practicable, and within its control, the Governmental Entities will use their best efforts to coordinate ancillary work within the vicinity of construction performed under this PLA to promote labor harmony on the Project.

Section 4. Non-Application to Certain Entities

This Agreement shall not apply to the parents, affiliates, subsidiaries, or other joint or sole

ventures of any Contractor which do not perform work at this Project. It is agreed, for the purposes of this Agreement only, that this Agreement does not have the effect of creating any joint employment, single employer or alter ego status among the Governmental Entities, the Construction Project Manager and/or any Contractor. The Agreement shall further not apply to the Governmental Entities or any other state agency, authority, or other municipal or public entity and nothing contained herein shall be construed to prohibit or restrict the Governmental Entities or their employees or any other state authority, agency or entity and its employees from performing on or off-site work related to the Project. As the contracts which comprise the Project work are completed and accepted, the Agreement shall not have further force or effect on such items or areas except where inspections, additions, repairs, modifications, check-out and/or warranty work are assigned in writing (copy to Local Union involved) by the Construction Project Manager for performance under the terms of this Agreement.

ARTICLE 4—UNION RECOGNITION AND EMPLOYMENT

Section 1. Pre-Hire Recognition The Contractors recognize the signatory Unions as the sole and exclusive bargaining

representatives of all craft employees who are performing on-site Project work within the scope of this Agreement as defined in Article 3.

Section 2. Union Referral

A. The Contractors agree to hire Project, craft employees covered by this Agreement

through the job referral systems and hiring halls (where the referrals meet the qualifications set forth in items 1, 2 and 4 of subparagraph B) established in the Local Unions’ area collective bargaining agreements (attached as Schedule A to this Agreement). Notwithstanding this, the Contractors shall have sole rights to determine the competency of all referrals; the number of employees required; the selection of employees to be laid-off (except as provided in Article 5, Section 3); and the sole right to reject any applicant referred by a Local Union, subject to the show-up payments required in the applicable Schedule A. In the event that a Local Union is unable to fill any request for qualified employees within a 48 hour period after such requisition is made by the Contractor (Saturdays, Sundays and holidays excepted), the Contractor may employ applicants from any other available source. In the event that the Local Union does not have a job referral system, the Contractor shall give the Local Union first preference to refer applicants, subject to the other provisions of this Article. The Contractor shall notify the Local Union of

Project, craft employees hired within its jurisdiction from any source other than referral by the Union.

B. A Contractor may request by name, and the Local will honor, referral of persons who

have applied to the Local for Project work and who meet the following qualifications as determined by a Committee of 3 designated, respectively, by the applicable Local Union, the Construction Project Manager and a mutually selected third party or, in the absence of agreement, the permanent arbitrator (or designee) designated in Article 7:

(1) possess any license required by NYS law for the Project work to be performed; (2) have worked a total of at least 1000 hours in the Construction craft during the prior 3 years; (3) were on the Contractor’s active payroll for at least 60 out of the 180 calendar days prior to the contract award; (4) have demonstrated ability to safely perform the basic functions of the applicable trade. No more than 12 per centum of the employees covered by this Agreement, per Contractor

by craft, shall be hired through the special provisions above (any fraction shall be rounded to the next highest whole number).

The Committee may also allow a Contractor, subject to the above per centum, to employ

trainees (pursuant to Article 13, Section 2) to afford an opportunity to minority, women or economically disadvantaged persons for entry into the construction industry outside of the formal apprenticeship program.

Section 3. Non-Discrimination in Referrals

The Local Unions represent that their hiring halls and referral systems will be operated in a

non-discriminatory manner and in full compliance with all applicable federal, state and local laws and regulations which require equal employment opportunities. Referrals shall not be affected in any way by the rules, regulations, bylaws, constitutional provisions or any other aspects or obligations of union membership, policies or requirements and shall be subject to such other conditions as are established in this Article. No employment applicant shall be discriminated against by any referral system or hiring hall because of the applicant’s union membership, or lack thereof.

Section 4. Minority and Female Referrals

In the event a Local Union either fails, or is unable, to refer qualified minority or female

applicants in percentages equaling Project affirmative action goals as set forth in the Governmental Entities’ bid specifications, and the appropriate governmental authority determines that the Union’s efforts in referring applicants to meet those goals is not sufficient to

satisfy the Contractor’s obligation to meet those goals, the Contractor may employ qualified minority or female applicants from any other available source in the minimum numbers needed to satisfy its obligation.

Section 5. Cross and Qualified Referrals

The Local Unions shall not knowingly refer to a Contractor an employee then employed by

another Contractor working under this Agreement. The Local Unions will exert their best efforts to recruit sufficient numbers of skilled and qualified crafts employees to fulfill the requirements of the Contractor.

Section 6. Union Dues

All employees covered by this Agreement shall be subject to the union security provisions

contained in the applicable Schedule A local agreements, as amended from time to time, but only for the period of time during which they are performing on-site Project work and only to the extent of rendering payment of the applicable monthly union dues uniformly required for union membership in the Local Union, signatory to this Agreement, which represents the craft in which the employee is performing Project work. No employee shall be discriminated against at the Project site because of the employee’s union membership or lack thereof. In the case of unaffiliated employees, the dues payment will be received by the Unions as an agency shop fee.

Section 7. Craft Forepersons and General Forepersons

The selection of craft forepersons and/or general forepersons and the number of forepersons

required shall be solely the responsibility of the Contractor except where otherwise provided by specific provisions of an applicable Schedule A. All forepersons shall take orders exclusively from the designated Contractor representatives. Craft forepersons shall be designated as working forepersons at the request of the Contractor, except when an existing local Collective Bargaining Agreement prohibits a foreperson from working when the craftpersons he is leading exceed a specified number.

ARTICLE 5—UNION REPRESENTATION

Section 1. Local Union Representative Each Local Union representing on-site Project employees shall be entitled to designate in

writing (copy to Contractor involved and Construction Project Manager) one representative, and/or the Business Manager, who shall be afforded access to the Project.

Section 2. Stewards

(a) Each Local Union shall have the right to designate a working journeyperson as a

Steward and an alternate, and shall notify the Contractor and Construction Project Manager of the identity of the designated Steward (and alternate) prior to the assumption of such duties.

Stewards shall not exercise supervisory functions and will receive the regular rate of pay for their craft classifications. There will be no non-working Stewards on the Project.

(b) In addition to their work as an employee, the Steward shall have the right to

receive complaints or grievances and to discuss and assist in their adjustment with the Contractor’s appropriate supervisor. Each Steward shall be concerned with the employees of the Steward’s Contractor and, if applicable, subcontractors of that Contractor, but not with the employees of any other Contractor. The Contractor will not discriminate against the Steward in the proper performance of his Union duties.

(c) The Stewards shall not have the right to determine when overtime shall be

worked, or who shall work overtime except pursuant to a Schedule A provision providing procedures for the equitable distribution of overtime.

Section 3. Layoff of a Steward

Contractors agree to notify the appropriate Union 24 hours prior to the layoff of a Steward,

except in cases of discipline or discharge for just cause. If a Steward is protected against layoff by Schedule A, such provisions shall be recognized to the extent the Steward possesses the necessary qualifications to perform the work required. In any case in which a Steward is discharged or disciplined for just cause, the Local Union involved shall be notified immediately by the Contractor.

ARTICLE 6—MANAGEMENT’S RIGHTS

Section 1. Reservation of Rights

Except as expressly limited by a specific provision of this Agreement, Contractors retain full and exclusive authority for the management of their Project operations including, but not limited to: the right to direct the work force, including determination as to the number to be hired and the qualifications therefor; the promotion, transfer, layoff of its employees; or the discipline or discharge for just cause of its employees; the assignment and schedule of work; the promulgation of reasonable Project work rules; and, the requirement, timing and number of employees to be utilized for overtime work. No rules, customs, or practices which limit or restrict productivity or efficiency of the individual, as determined by the Contractor or Construction Project Manager, and/or joint working efforts with other employees shall be permitted or observed.

Section 2. Materials, Methods & Equipment

There shall be no limitation or restriction upon the Contractors’ choice of materials,

techniques, methods, technology or design, or, regardless of source or location, upon the use and installation of equipment, machinery, package units, pre-cast, pre-fabricated, pre-finished (except that all rebar for use in cast-in-place, on site construction will be cut and bent in accordance with local industry practices), or pre-assembled materials, tools, or other labor-

saving devices. Contractors may, without restriction, install or use materials, supplies or equipment regardless of their source. The on-site installation or application of such items shall be performed by the craft having jurisdiction over such work; provided, however, it is recognized that other personnel having special qualifications may participate, in a supervisory capacity, in the installation, check-off or testing of specialized or unusual equipment or facilities as designated by the Contractor. There shall be no restrictions as to work which is performed off-site for the Project.

ARTICLE 7—WORK STOPPAGES AND LOCKOUTS

Section 1. No Strikes—No Lockout There shall be no strikes, sympathy strikes, picketing, work stoppages, slowdowns, hand

billing, demonstrations or other disruptive activity at the Project site or otherwise adversely affecting Project work for any reason by any Union or employee against any Contractor or employer while performing work at the Project site. There shall be no other Union, or concerted or employee activity which disrupts or interferes with the use of I-287 and/or the Cross Westchester Expressway and related service roads or the free flow of traffic thereon. Failure of any Union or employee to cross any picket line established by any union, signatory or non-signatory to this Agreement, or the picket or demonstration line of any other organization, at the Project site which otherwise adversely affects Project work or which disrupts or interferes with the use of I-287 and/or the Cross Westchester Expressway and related service roads or the free flow of traffic thereon is a violation of this Article. There shall be no lockout at the Project by any signatory Contractor. Contractors and Unions shall take all steps necessary to ensure compliance with this Section 1 and to ensure uninterrupted construction and the free flow of traffic across the Tappan Zee Bridge and over I-287 and/or the Cross Westchester Expressway and related service roads for the duration of this Agreement.

Section 2. Discharge for Violation

A Contractor may discharge any employee violating Section 1, above, and any such

employee will not be eligible thereafter for referral under this Agreement for a period of 100 days.

Section 3. Notification

If a Contractor contends that any Union has violated this Article, it will notify the

appropriate district or area council of the Local Union involved advising of such fact, with copies of the notification to the Local Union, and the NYS Council. The district or area council and the NYS Council shall each instruct, order and otherwise use their best efforts to cause the employees, and/or the Local Unions to immediately cease and desist from any violation of this Article. A district or area council, or the NYS Council complying with these obligations shall not be liable for the unauthorized acts of a Local Union or its members.

Section 4. Expedited Arbitration Any Contractor or Union alleging a violation of Section 1 of this Article may utilize the

expedited procedure set forth below (in lieu of, or in addition to, any actions at law or equity) that may be brought.

a. A party invoking this procedure shall notify J.J. Pierson and/or George Sabatella, who

shall alternate as Arbitrator under this expedited arbitration procedure. Copies of such notification will be simultaneously sent to the alleged violator and, if a Local Union is alleged to be in violation, its International, the Council, and the Construction Project Manager.

b. The Arbitrator shall thereupon, after notice as to time and place to the Contractor, the

Local Union involved, the Council and the Construction Project Manager, hold a hearing within 48 hours of receipt of the notice invoking the procedure if it is contended that the violation still exists. The hearing will not, however, be scheduled for less than 24 hours after the notice to the district or area Council required by Section 3, above.

c. All notices pursuant to this Article may be by telephone, telegraph, hand delivery, or fax,

confirmed by overnight delivery, to the arbitrator, Contractor or Union involved. The hearing may be held on any day including Saturdays or Sundays. The hearing shall be completed in one session, which shall not exceed 8 hours duration (no more than 4 hours being allowed to either side to present their case, and conduct their cross examination) unless otherwise agreed. A failure of any Union or Contractor to attend the hearing shall not delay the hearing of evidence by those present or the issuance of an award by the Arbitrator.

d. The sole issue at the hearing shall be whether a violation of Section 1, above, occurred. If

a violation is found to have occurred, the Arbitrator shall issue a Cease and Desist Award restraining such violation and serve copies on the Contractor and Union involved. The Arbitrator shall have no authority to consider any matter in justification, explanation or mitigation of such violation or to award damages, which issue is reserved solely for court proceedings, if any. The Award shall be issued in writing within 3 hours after the close of the hearing, and may be issued without an Opinion. If any involved party desires an Opinion, one shall be issued within 15 calendar days, but its issuance shall not delay compliance with, or enforcement of, the Award.

e. An Award issued under this procedure may be enforced by any court of competent

jurisdiction upon the filing of this Agreement together with the Award. Notice of the filing of such enforcement proceedings shall be given to the Union or Contractor involved. In any court proceeding to obtain a temporary or preliminary order enforcing the arbitrator’s Award as issued under this expedited procedure, the involved Union and Contractor waive their right to a hearing and agree that such proceedings may be ex parte, provided notice is given to opposing counsel. Such agreement does not waive any party’s right to participate in a hearing for a final court order of enforcement or in any contempt proceeding.

f. Any rights created by statute or law governing arbitration proceedings which are

inconsistent with the procedure set forth in this Article, or which interfere with compliance thereto, are hereby waived by the Contractors and Unions to whom they accrue.

g. The fees and expenses of the Arbitrator shall be equally divided between the involved

Contractor and Union.

Section 5. Arbitration of Discharges for Violation Procedures contained in Article 9 shall not be applicable to any alleged violation of this

Article, with the single exception that an employee discharged for violation of Section 1, above, may have recourse to the procedures of Article 9 to determine only if the employee did, in fact, violate the provisions of Section 1 of this Article; but not for the purpose of modifying the discipline imposed where a violation is found to have occurred.

ARTICLE 8—LABOR MANAGEMENT COMMITTEE

Section 1. Subjects The Project Labor Management Committee will meet on a regular basis to: 1) promote

harmonious relations among the Contractors and Unions; 2) enhance safety awareness, cost effectiveness and productivity of construction operations; 3) protect the public interests; 4) discuss matters relating to manning and scheduling with safety and productivity as considerations; and 5) review Affirmative Action and equal opportunity matters pertaining to the Project.

Section 2. Composition

The Committee shall be jointly chaired by designees of the President of the NYS Council

and the Construction Project Manager, and shall include representatives of the Local Unions and Contractors involved in the issues being discussed. The Committee may conduct business through mutually agreed sub-committees.

ARTICLE 9—GRIEVANCE & ARBITRATION PROCEDURE

Section 1. Procedure for Resolution of Grievances

Any question, dispute or claim arising out of, or involving the interpretation or application of this Agreement (other than jurisdictional disputes or alleged violations of Article 7, Section 1) shall be considered a grievance and shall be resolved pursuant to the exclusive procedure of the steps described below; provided, in all cases, that the question, dispute or claim arose during the term of this Agreement.

Step 1: (a) When any employee covered by this Agreement feels aggrieved by a claimed

violation of this Agreement, the employee shall, through the Local Union business representative or job steward give notice of the claimed violation to the work site representative of the involved Contractor. To be timely, such notice of the grievance must be given within 14 calendar days after the act, occurrence or event giving rise to the grievance. The business representative of the Local Union or the job steward and the work site representative of the involved Contractor shall meet and endeavor to resolve the matter within 14 calendar days after timely notice has been given. If they fail to resolve the matter within the prescribed period, the grieving party, may, within 14 calendar days thereafter, pursue Step 2 of the grievance procedure by serving the involved Contractor and the Construction Project Manager with written copies of the grievance setting forth a description of the claimed violation, the date on which the grievance occurred, and the provisions of the Agreement alleged to have been violated. Grievances and disputes settled at Step 1 are nonprecedential except as to the specific Local Union, employee and Contractor directly involved unless the settlement is accepted in writing by the Construction Project Manager as creating a precedent.

(b) Should any signatory to this Agreement have a dispute (excepting jurisdictional

disputes or alleged violations of Article 7, Section 1) with any other signatory to this Agreement and, if after conferring, a settlement is not reached within 14 calendar days, the dispute shall be reduced to writing and proceed to Step 2 in the same manner as outlined in subparagraph (a) for the adjustment of employee grievances.

Step 2: The Business Manager or designee of the involved Local Union, together with

representatives of the Council, the involved Contractor, and the Construction Project Manager shall meet in Step 2 within 14 calendar days of service of the written grievance to arrive at a satisfactory settlement. The parties intend this step of the process to include good faith efforts by all involved parties to find a mutually acceptable basis for resolution. In the event a majority of the principal participants in this process (i.e., the Business Manager, the Contractor and the Construction Project Manager) agree on a resolution which is not accepted by the third participant and the matter proceeds through arbitration to the issuance of an award which is not substantially favorable to that third participant, the Arbitrator shall have the discretion to impose the full cost of the arbitration, including reasonable attorneys’ fees, on that third participant.

Step 3: (a) If the grievance shall have been submitted but not resolved in Step 2, any of the

participating Step 2 entities may, within 21 calendar days after the initial Step 2 meeting, submit the grievance in writing (copies to other participants) to Messrs. J.J. Pierson and/or George Sabatella, who shall act, alternately, as the Arbitrator under this procedure. The Labor Arbitration Rules of the American Arbitration Association shall govern the conduct of the arbitration hearing, at which all Step 2 participants shall be permitted to participate. The decision

of the arbitrator shall be final and binding on the involved Contractor, Local Union and employees and the fees and expenses of such arbitrations shall be borne equally by the involved Contractor and Local Union.

(b) Failure of the grieving party to adhere to the time limits set forth in this Article

shall render the grievance null and void. These time limits may be extended only by written consent of the Construction Project Manager, involved Contractor and involved Local Union at the particular step where the extension is agreed upon. The Arbitrator shall have authority to make decisions only on the issues presented to him and shall not have the authority to change, add to, delete or modify any provision of this Agreement. The Arbitrator shall have the discretion to award costs, including attorneys’ fees, in accordance with Step 2, above.

Section 2. Limitation as to Retroactivity

No arbitration decision or award may provide retroactivity of any kind exceeding 60

calendar days prior to the date of service of the written grievance on the Construction Project Manager and the involved Contractor or Local Union.

Section 3. Participation by Construction Project Manager

The Construction Project Manager shall be notified by the involved Contractor of all

actions at Steps 2 and 3 and, at its election, may participate in full in all proceedings at these Steps, including Step 3 arbitration. Grievances shall not be brought directly against the Construction Project Manager, except as they may relate to its role as a Contractor on the Project.

ARTICLE 10—JURISDICTIONAL DISPUTES

Section 1. No Disruptions

There will be no strikes, sympathy strikes, work stoppages, slowdowns, picketing or other disruptive activity of any kind arising out of any jurisdictional dispute. Pending final resolution of the dispute, the work shall continue uninterrupted and as assigned by the Contractor. No jurisdictional dispute shall excuse a violation of Article 7. Individuals violating this section shall be subject to immediate discharge.

Section 2. Assignment

The assignment of work will be solely the responsibility of the Contractor performing the

work involved; and such work assignments will be in accordance with the Plan for the

Settlement of Jurisdictional Disputes in the Construction Industry (the “Plan”) or any successor Plan.

Section 3. Procedure for Settlement of Disputes

A. Any Union having a jurisdictional dispute with respect to Project work assigned to

another Union will submit the dispute in writing to the Administrator of the Plan within 72 hours of the assignment and will send a copy of that notice to the other Union involved. Upon receipt of a dispute letter from any union, the Administrator will invoke the procedures set forth in the Plan to resolve the jurisdictional dispute. The jurisdictional dispute letter shall contain the information described in Article IV of the Plan.

B. Within 5 calendar days of receipt of the dispute letter, there shall be a meeting of the

Construction Project Manager, the Contractor involved, the Local Unions involved and designees of the NYS Council and the district or area councils of the Local Unions involved for the purpose of resolving the jurisdictional dispute.

C. If the dispute remains unresolved after this meeting, the parties will proceed to final and

binding arbitration in accordance with the principles and procedures set forth in the rules of the “Plan for the Settlement of Jurisdictional Disputes in the Construction Industry.”

D. The Arbitrator will render a short-form decision within 5 days of the hearing based upon

the evidence submitted at the hearing, with a written decision to follow within 30 days of the close of hearing. [sic]

E. This Jurisdictional Dispute Resolution Procedure will only apply to work performed by

Local Unions at the Project. F. Any Local Union involved in a jurisdictional dispute on this Project shall continue

working in accordance with Section 1 above and without disruption of any kind.

Section 4. Award

Any jurisdictional award pursuant to Section 3 shall be final and binding on the disputing

Local Unions and the involved Contractor on this Project only, and may be enforced in any court of competent jurisdiction. Such award or resolution shall not establish a precedent on any other construction work not covered by this Agreement. In all disputes under this Article, the Construction Project Manager and the involved Contractors shall be considered parties in interest.

Section 5. Limitations

The Jurisdictional Dispute Arbitrator shall have no authority to assign work to a double

crew, that is, to more employees than the minimum required by the Contractor to perform the work involved; nor to assign the work to employees who are not qualified to perform the work

involved; nor to assign work being performed by non-union employees to union employees. This does not prohibit the establishment, with the agreement of the involved Contractor, of composite crews where more than 1 employee is needed for the job. The aforesaid determinations shall decide only to whom the disputed work belongs.

Section 6. No Interference with Work

There shall be no interference or interruption of any kind with the work of the Project while

any jurisdictional dispute is being resolved. The work shall proceed as assigned by the Contractor until finally resolved under the applicable procedure of this Article. The award shall be confirmed in writing to the involved parties. There shall be no strike, work stoppage or interruption in protest of any such award.

Section 7. Pre-Job Conference

Each Contractor will conduct a pre-job conference with the appropriate Building and

Construction Trades Council prior to commencing work. The Project Construction Manager and the Governmental Entities will be advised in advance of all such conferences and may participate if they wish.

ARTICLE 11—WAGES AND BENEFITS

Section 1. Classification and Base Hourly Rate All employees covered by this Agreement shall be classified in accordance with the work

performed and paid the base hourly wage rates for those classifications as specified in the attached Schedules A, as amended during this Agreement. Recognizing, however, that special conditions may exist or occur on the Project, the parties, by mutual agreement may establish rates and/or hours for one or more classifications which may differ from Schedule A. Parties to such agreements shall be the Construction Project Manager, the Contractor involved, the involved Local Unions and the Council.

Section 2. Employee Benefit Funds

A. The Contractors agree to pay contributions on behalf of all employees covered by this

Agreement to the established employee benefit funds in the amounts designated in the appropriate Schedule A; provided, however, that the Contractor and the Union agree that only such bona fide employee benefits as are explicitly required under Section 220 of the New York State Labor Law shall be included in this requirement and paid by the Contractor on this Project. Bona fide jointly trusteed fringe benefit plans established or negotiated through collective bargaining during the life of this Agreement may be added if similarly protected under Section 220. Contractors shall not be required to contribute to non-Section 220 benefits, trusts or plans.

B. The Contractor agrees to be bound by the written terms of the legally-established Trust

Agreements specifying the detailed basis on which payments are to be paid into, and benefits

paid out of, such Trust Funds but only with regard to work done on this Project and only for those employees to whom this Agreement requires such benefit Payments.

ARTICLE 12—HOURS OF WORK, PREMIUM PAYMENTS, SHIFTS AND HOLIDAYS

Section 1. Work Week and Work Day

A. The standard work week shall consist of 40 hours of work at straight time rates per one of

the following schedules: (1) Five Day Work Week: Monday-Friday; 5 days, 8 hours plus 1/2 hour unpaid lunch period each day. (2) Four Day Work Week: Monday-Thursday; 4 days, 10 hours plus 1/2 hour unpaid lunch period each day. B. The Day Shift shall commence between the hours of 6:00 A.M. and 9:00 A.M. and shall

end between the hours of 2:30 P.M. and 7:30 P.M. Starting and quitting times shall occur at the location designated by the Contractor.

C. Scheduling—The Contractor shall have the option of scheduling either a five-day or four-

day work week and the work day hours consistent with Project requirements, the Project schedule, and minimization of interference with traffic flow. When conditions beyond the control of the Contractor, such as severe weather, power failure, fire or natural disaster, prevent the performance of Project work on a regularly scheduled work day, the Contractor may, with mutual agreement of the Local Union, schedule Friday (where on 4, 10’s) during that calendar week in which a workday was lost, as a make up work day at straight time pay; providing the employees involved work a total of 40 hours or less during that work week.

D. Notice—Contractors shall provide not less than 5 days prior notice to the Local Union

involved as to the work week and work hour schedules to be worked or such lesser notice as may be mutually agreed upon.

Section 2. Overtime

Overtime pay for hours outside of the standard work week and work day, described in

paragraph A above, shall be paid in accordance with the applicable Schedule A. There will be no restriction upon the Contractor’s scheduling of overtime or the non-discriminatory designation of employees who shall be worked. There shall be no pyramiding of overtime pay under any circumstances. The Contractor shall have the right to schedule work so as to minimize overtime.

Section 3. Shifts

A. Flexible Schedules—Scheduling of shift work shall remain flexible in order to meet Project schedules and existing Project conditions including the minimization of interference with traffic. It is not necessary to work a day shift in order to schedule a second shift. Shifts must be worked a minimum of five consecutive work days (four consecutive work days if working a 4-10 hour schedule), must have prior approval of the Construction Project Manager, and must be scheduled with not less than five work days notice to the Local Union.

B. Second Shift—The second shift (starting between 2 P.M. and 8 P.M.) shall consist of 8

hours work (or 10 hours of work) for an equal number of hours pay at the straight time rate plus 15% in lieu of overtime and exclusive of a 1/2 hour unpaid lunch period. Where specifically required by the applicable Schedule A, employees on second shift, where there are no first shift employees scheduled for that craft, will be paid at time and one-half rates for such second shift work, but without any shift differential. In all other cases, the first sentence of this paragraph B shall apply.

C. Flexible Starting Times—Shift starting times will be adjusted by the Contractor as

necessary to fulfill Project requirements subject to the notice requirements of paragraph A. D. Four Tens—When working a four-day work week, the standard work day shall consist of

10 hours work for 10 hours of pay at the straight time rate exclusive of an unpaid 1/2 hour meal period and regardless of the starting time.

Section 4. Holidays A. Schedule—There shall be 8 recognized holidays on the Project: New Year’s Day Labor Day Presidents Day Veterans Day Memorial Day Thanksgiving Day Fourth of July Christmas Day All said holidays shall be observed on the dates designated by New York State Law. In the

absence of such designation, they shall be observed on the calendar date except those holidays which occur on Sunday shall be observed on the following Monday.

B. Payment—Regular holiday pay, if any, and/or premium pay for work performed on such

a recognized holiday shall be in accordance with the applicable Schedule A.

C. Exclusivity—No holidays other than those listed in Section 4-A above shall be

recognized nor observed.

Section 5. Reporting Pay A. Employees who report to the work location pursuant to regular schedule and who are not

provided with work or whose work is terminated early by a Contractor, for whatever reason, shall receive minimum reporting pay in accordance with the applicable Schedule A.

B. When an employee, who has completed his scheduled shift and left the Project site, is

“called out” to perform special work of a casual, incidental or irregular nature, the employee shall receive pay for actual hours worked with a minimum guarantee, as may be required by the applicable Schedule A, at the employee’s straight time rate.

C. When an employee leaves the job or work location of his own volition or is discharged

for cause or is not working as a result of the Contractor’s invocation of Section 7 below, he shall be paid only for the actual time worked.

D. Except as specifically set forth in this Article there shall be no premiums, bonuses,

hazardous duty, high time or other special payments of any kind. E. There shall be no pay for time not actually worked except as specifically set forth in this

Article and except where an applicable Schedule A requires a full weeks’ [sic] pay for forepersons.

Section 6. Payment of Wages

A. Payday—Payment shall be made by check, drawn on a New York bank with branches

located within commuting distance of the job site. Paychecks shall be issued by the Contractor at the job site by 10 A.M. on Thursdays. In the event that the following Friday is a bank holiday, paychecks shall be issued on Wednesday of that week. Not more than 3 days wages shall be held back in any pay period. Paycheck stubs shall contain the name and business address of the Contractor, together with an itemization of deductions from gross wages.

B. Termination—Employees who are laid off or discharged for cause shall be paid in full for

that which is due them at the time of termination. The Contractor shall also provide the employee with a written statement setting forth the date of layoff or discharge.

Section 7. Emergency Work Suspension

A Contractor may, if considered necessary for the protection of life and/or safety of

employees or others, suspend all or a portion of Project work. In such instances employees will be paid for actual time worked; provided, however, that when a Contractor requests that employees remain at the job site available for work, employees will be paid for “stand-by” time at their hourly rate of pay.

Section 8. Injury/Disability

An employee who, after commencing work, suffers a work-related injury or disability while

performing work duties, shall receive no less than 8 hours wages for that day. Further, the employee shall be rehired at such time as he is able to return to his duties provided there is still work available on the Project for which he is qualified and able to perform.

Section 9. Time Keeping

A Contractor may utilize brassing or other systems to check employees in and out. Each

employee must check in and out. The Contractor will provide adequate facilities for checking in and out in an expeditious manner.

Section 10. Meal Period

A Contractor shall schedule an unpaid period of not more than 1/2 hour duration at the work

location between the 3rd and 5th hour of the scheduled shift. A Contractor may, for efficiency of operation, establish a schedule which coordinates the meal periods of two or more crafts. If an employee is required to work through the meal period, he shall be compensated in a manner established in the applicable Schedule A.

Section 11. Break Periods There will be no rest periods, organized coffee breaks or other non-working time

established during working hours. Individual coffee containers will be permitted at the employee’s work location.

ARTICLE 13—APPRENTICES

Section 1. Ratios Recognizing the need to maintain continuing supportive programs designed to develop

adequate numbers of competent workers in the construction industry and to provide craft entry opportunities for minorities, women and economically disadvantaged non-minority males, and economically disadvantaged non-minority males, [sic] Contractors will employ apprentices in their respective crafts to perform such work as is within their capabilities and which is customarily performed by the craft in which they are indentured. Contractors may utilize apprentices in a ratio not to exceed 25% of his work force by craft (without regard to whether a lesser ratio is set forth in Schedule A), unless the applicable Schedules A provide for a higher percentage. Apprentices shall be employed in a manner consistent with the provisions of the appropriate Schedule A.

Section 2. Department of Labor

The Unions agree to work in close cooperation with, and accept monitoring by, the New

York State Department of Labor to ensure that minorities and women are afforded every opportunity to participate in apprenticeship programs which result in the placement of apprentices on this Project. To further ensure that this goal is achieved, the Contractors and the Unions agree that minority or women apprentices or recognized trainees may be used on the Project in accordance with the requirements of the Project bid documents.

ARTICLE 14—SAFETY PROTECTION OF PERSON AND PROPERTY

Section 1. Safety Requirements Each Contractor will ensure that applicable OSHA requirements are at all times maintained

on the Project and the employees and Unions agree to cooperate fully with these efforts. Employees must perform their work at all times in a safe manner and protect themselves and the property of the Contractor and Authority from injury or harm. Failure to do so will be grounds for discipline, including discharge.

Section 2. Contractor Rules Employees covered by this Agreement shall at all times be bound by the reasonable safety,

security, and visitor rules as established by the Contractors and the Construction Project Manager for this Project. Such rules will be published and posted in conspicuous places throughout the Project.

Section 3. Inspections

The Contractors and Construction Project Manager retain the right to inspect incoming

shipments of equipment, apparatus, machinery and construction materials of every kind.

ARTICLE 15—NO DISCRIMINATION

Section 1. Cooperative Efforts

The Contractors and Unions agree that they will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin or age in any manner prohibited by law or regulation. It is recognized that special procedures may be established by Contractors and Local Unions and the New York State Department of Labor for the training and employment of persons who have not previously qualified to be employed on

construction projects of the type covered by this Agreement. The parties to this Agreement will assist in such programs and agree to use their best efforts to ensure that the goals for female and minority employment are met on this Project.

Section 2. Language of Agreement

The use of the masculine or feminine gender in this Agreement shall be construed as

including both genders.

ARTICLE 16—GENERAL TERMS

Section 1. Project Rules The Construction Project Manager and the Contractors shall establish such reasonable

Project rules as are appropriate for the good order of the Project, including but not limited to rules relating to health and safety, access, and alcohol and drug use. These rules will be explained at the pre-job conference and posted at the Project site and may be amended thereafter as necessary. Failure of an employee to observe these rules and regulations shall be grounds for discipline, including discharge. The fact that no order was posted prohibiting a certain type of misconduct shall not be a defense to an employee disciplined or discharged for such misconduct when the action taken is for cause.

Section 2. Tools of the Trade

The welding/cutting torch and chain fall are tools of the trade having jurisdiction over the

work performed. Employees using these tools shall perform any of the work of the trade. There shall be no restrictions on the emergency use of any tools or equipment by any qualified employee or on the use of any tools or equipment for the performance of work within the employee’s jurisdiction.

Section 3. Supervision

Employees shall work under the supervision of the craft foreperson or general foreperson.

Section 4. Travel Allowances

There shall be no payments for travel expenses, travel time, subsistence allowance or other

such reimbursements or special pay except as expressly set forth in this Agreement.

Section 5. Full Work Day Employees shall be at their staging area at the starting time established by the Contractor

and shall be returned to their staging area by quitting time after performing their assigned functions under the supervision of the Contractor. The signatories reaffirm their policy of a fair day’s work for a fair day’s wage.

Section 6. Cooperation

The Construction Project Manager and the Unions will cooperate in seeking any NYS

Department of Labor approvals that may be required for implementation of any terms of this Agreement.

To the extent the provisions of this Agreement differ from the requirements of the

applicable prevailing wage law, or any other law, the Unions, on their own behalf and on behalf of the individual employees they represent, intend the provisions of this Agreement to control to the maximum extent permitted by law.

ARTICLE 17—SAVINGS AND SEPARABILITY

Section 1. This Agreement In the event that the application of any provision of this Agreement is enjoined, on either an

interlocutory or permanent basis, or otherwise found in violation of law, the provision involved shall be rendered, temporarily or permanently, null and void but the remainder of the Agreement shall remain in full force and effect. In such event the Agreement shall remain in force and effect for contracts already bid and awarded or in construction where the contractor voluntarily accepts the Agreement. The parties to this Agreement will enter into negotiations for a substitute provision in conformity with the law and the intent of the parties for contracts to be let in the future.

Section 2. The Bid Specifications

In the event that the Governmental Entities bid specifications, or other action, requiring that

a successful bidder become signatory to this Agreement is enjoined, on either an interlocutory or permanent basis, or otherwise found in violation of law such requirement shall be rendered, temporarily or permanently, null and void but the Agreement shall remain in full force and effect to the extent allowed by law. In such event, the Agreement shall remain in effect for contracts already bid and awarded or in construction where the contractor voluntarily accepts the Agreement. The parties will enter into negotiations as to modifications to the Agreement to reflect the court action taken and the intent of the parties for contracts to be let in the future.

Section 3. Non-Liability

In the event of an occurrence referenced in Section 1 or Section 2 of this Article, neither the

Authority, the Construction Project Manager or any Contractor, or any signatory Union shall be liable, directly or indirectly, for any action taken, or not taken, to comply with any court order, injunction or determination. Project bid specifications will be issued in conformance with court orders then in effect and no retroactive payments or other action will be required if the original court determination is ultimately reversed.

Section 4. Non-Waiver Nothing in this Article shall be construed as waiving the prohibitions of Article 7 as to

signatory Contractors and signatory Unions.

ARTICLE 18—FUTURE CHANGES IN SCHEDULE A AREA CONTRACTS

Section 1. Changes to Area Contracts

A. Schedules A to this Agreement shall continue in full force and effect until the Contractor and/or Union parties to the Area Collective Bargaining Agreements which are the basis for Schedules A notify the Construction Project Manager in writing of the mutually agreed upon changes in provisions of such agreements which are applicable to the Project, and their effective dates.

B. It is agreed that any provisions negotiated into Schedules A Collective Bargaining

Agreements will not apply to work on this Project if such provisions are less favorable to this Project than those uniformly required of contractors for construction work normally covered by those agreements; nor shall any provision be recognized or applied on this Project if it may be construed to apply exclusively, or predominantly, to work covered by this Project Agreement.

C. Any disagreement between signatories to this Agreement over the incorporation into

Schedules A of provisions agreed upon in the renegotiation of Area Collective Bargaining Agreements shall be resolved in accordance with the procedure set forth in Article 9 of this Agreement.

Section 2. Labor Disputes During Area Contract Negotiations

The Unions agree that there will be no strikes, work stoppages, sympathy actions, picketing,

slowdowns or other disruptive activity or other violations of Article 7 affecting the Project by any Local Union involved in the renegotiation of Area Local Collective Bargaining Agreements nor shall there be any lock-out on this Project affecting a Local Union during the course of such renegotiations.

ARTICLE 19—WORKERS’ COMPENSATION ADR

All signatory unions and contractors agree to adopt and be bound by the Alternative Dispute Resolution Agreement entered into between the Construction Industry Council of Westchester and Hudson Valley, Inc. and the Council (hereinafter referred to as the “Workers’ Compensation ADR Agreement”).

A signatory Contractor can provide Workers’ Compensation insurance through an

alternative insurance carrier (or through self insurance) or may use an alternative Program Manager, other than the primary carrier or Program Manager designated in Article III, Section 2

of the Workers’ Compensation ADR Agreement. The use of an alternative carrier (or self insurance) and/or Program Manager is subject to approval by the Workers’ Compensation ADR Agreement Oversight Committee, which approval shall not be unreasonably withheld.

The determination to utilize the Workers’ Compensation ADR Agreement will be at the

exclusive option of the Governmental Entities. IN WITNESS WHEREOF the parties have caused this Agreement to be executed and

effective as of the ___ day of __________, 1999.

FOR HILL INTERNATIONAL, INC.

BY: __________________________________________________________ (Name/Title)

FOR THE BUILDING & CONSTRUCTION TRADES

NEW YORK STATE BUILDING TRADES COUNCIL BY: __________________________________________________________

(Name/Title)

BUILDING & CONSTRUCTION TRADES COUNCIL OF WESTCHESTER & PUTNAM COUNTIES, NY

BY: __________________________________________________________

(Name/Title)

FOR LOCAL UNIONS BRICKLAYERS AND ALLIED CRAFT WORKERS LOCAL UNION 5

BY: ________________________________________________________________

(Name/Title)

SUBURBAN NEW YORK REGIONAL COUNCIL OF CARPENTERS - LOCAL 11

BY: ________________________________________________________________

(Name/Title)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL #3

BY: ________________________________________________________________

(Name/Title) LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL #60

BY: _________________________________________________________________

(Name/Title)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL #137

BY: _________________________________________________________________

(Name/Title)

DISTRICT COUNCIL #9 INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES AFL-CIO PAINTERS

BY: _________________________________________________________________

(Name/Title)

PLUMBERS & STEAMFITTERS LOCAL 21

BY: __________________________________________________________________

(Name/Title)

TEAMSTERS LOCAL #456, IBT

BY: __________________________________________________________________ (Name/Title)

FOR LOCAL UNIONS

NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS-DOCKBUILDERS LOCAL UNION #1456

BY: __________________________________________________________________

(Name/Title)

LOCAL UNION #40 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS

BY: __________________________________________________________________

(Name/Title)

METALLIC LATHERS UNION LOCAL #46 BY: __________________________________________________________________

(Name/Title) INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL #15D

BY: __________________________________________________________________

(Name/Title)

TEAMSTERS LOCAL #813

BY: __________________________________________________________________

(Name/Title)