Specification writers often seek to circumscribe the rights of the contractor for relief from unfair labor practices. The client would be well served were it to permit and encourage utilization of the terms and conditions of the Federal labor law by contractors in their efforts to settle labor disputes. Expediency and compromise typically lead not only to excess cost but also to inordinate delay in advancing the work of the project. Labor disputes are rarely resolved through reference to the terms of contract manuals.

LABOR RELATIONS, CONDITION OF AWARD: Private owners, of course, have the absolute right to determine whether they wish to restrict based upon labor relations posture. That decision may be based on philosophy, past history, or on the compatibility with plant workforce. It should be clearly understood, however, that restriction either way will hinder competition to the degree that costs will increase. As an example, a general contractor may ultimately decide to perform a project with all union forces but the restriction by specification or rule on entertaining non-union prices may lead to a higher cost than otherwise available.

Public Work Considerations: Those political subdivisions moved to frequently attempt to provide for rule, regulation and contract clause to render bidders non-responsible based upon their labor relations do so in violation of the rule of law. Examples of such might be so-called "labor peace" or "labor harmony" clauses, or requirements for bona fide apprenticeship, health and welfare, and pension programs. Citing Section 103, General Municipal Law, the courts have found disqualification based on such requirements to be extra-legal. Likewise, the courts have found that the mere presence of such clauses tends to stifle competition and, therefore, violate the law.

On the subject of "labor peace" or "labor harmony" clauses, GBC wonders who would be considered responsible for labor strife – the contractor whose employees continue to work, the contractor whose employees refuse to work, or the system which creates separate prime contractors working on the same site?

PROJECT LABOR AGREEMENTS: The issue of project labor agreements has received much attention. Most of the news on this subject has been concentrated in the public sector. Nonetheless, controversy on this subject swirls around both public and private work. From competitive bidding to the NLRA to ERISA, questions abound as to the propriety of such agreements. Those that have been found legal have been carefully crafted around specific circumstances and we encourage that competent counsel knowledgeable in such matters be consulted before proceeding.

Project labor agreements tend to restrict competition. They can also have a destabilizing impact on construction labor relations in the area. Some who have been through such agreements have found difficulties, for example, in the area of safety jurisdictional matters.

Public Work Considerations: In spite of opinion on either side, it must be clearly understood that project labor agreements on public work have been found to be legal in New York State in limited circumstances where the public owner engages in a study to determine the financial impact (positive and negative) to the project and, most important, to the taxpayers. Given sufficient real savings, the courts have allowed such PLAs to go forward. It is not, however, as simple as it may sound. There are a number of factors that must be considered before engaging in a PLA.

The first point and perhaps the most important one is that should you be inclined toward a PLA, negotiate a real one. Better still, hire a firm skilled in such negotiations to negotiate a real PLA. A real PLA is one that does not merely slap a new cover on old agreements but one that seeks and gets real concessions.

Do not hamstring those attempting to negotiate the PLA by pressuring them to give in to union demands! If it is clear that the PLA was a political decision which means it will go forward no matter what, your negotiators will be at a significant disadvantage and will likely be unable to attain any real savings or benefits.

When considering whether to even begin such negotiations, look at the labor practices in the area. Where there has been labor market stability (healthy competition between union and open shop sectors) the labor agreements will likely already be lean and free of those costly nonproductive terms which could be cut out to achieve real savings.

Beyond those items, the following questions should be considered:

• What will be the impact on competition?
• What is the labor environment in the local area and where will the craftworkers come from?
• It this project of sufficient size to warrant the PLA, including the expense of hiring outside professionals to study and negotiate the PLA?
• What does the local community of industry professionals (designers, general contractors, construction managers, subcontractors, and others) recommend?
• Will local contractors and subcontractors be excluded from competing on your project?

PREVAILING WAGES (PUBLIC WORK CONSIDERATIONS): Article 8, Section 220 of the State Labor Law demands the inclusion of a schedule of wages and supplements in public work bid documents prior to advertising for bids. The public owner may establish classifications for the work contemplated and request appropriate wages and fringe schedules for that work, or the public owner (department of jurisdiction) may request the Commissioner of Labor to provide a PRC (prevailing wage and supplement schedule) appropriate for the project at hand. In any case, it would be politic as well as practical to request the schedule well in advance of the date established for advertisement. What price an "illegal contract," as one without a schedule is termed by the Department of Labor? It should be noted that new schedules are issued on or before July 1 of a given year. Bid documents for public projects to be bid in July or later should incorporate current wage and supplement schedules.

COLLECTION OF CERTIFIED PAYROLLS: On November 10, 1997, Chapter Law #565 of 1997 went into effect. In substance, that new law states:

"Every contractor, and sub-contractor, shall submit to the department of jurisdiction (public owner) within thirty days after issuance of its first payroll, and every thirty days thereafter, a transcript of the original payroll record, as provided by (Section 220, 3-a, Labor Law), subscribed and affirmed as true under the penalties of perjury. The department of jurisdiction (public owner) shall be required to receive and maintain such payroll records."

Since that law has been effective, many public owners have been besieged by those purporting to protect fairness in contracting to provide copies of those certified payrolls via Freedom of Information. While they are entitled to some information, they are not entitled to proprietary information. In fact, The Department of State’s Committee on Open Government has rendered the opinion that "…what is relevant to an agency is whether the employees are being paid in accordance with prevailing wage standards; their names, addresses and social security numbers are largely irrelevant to that issue and may in my view be deleted to protect against an unwarranted invasion of personal privacy." Public owners should expect, therefore, that the certified payrolls that are provided will have all information except those items noted above. Employees should be identified by code. If a public owner does receive payrolls with that personal information, it should be removed prior to supplying the payrolls to those seeking them through Freedom of Information.