- The Washington Times - Tuesday, July 16, 2002

A federal appeals court has upheld President Bush's power to prevent unions from monopolizing federal construction, delivering a blow to organized labor in a battle pitting Virginia against Maryland in a $2.4 billion partnership to replace the Woodrow Wilson Bridge.

"Executive Order No. 13,202 is an exercise of the president's supervisory authority over the Executive Branch," a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said in a unanimous decision rejecting a union's constitutional challenge and reversing last summer's ruling by U.S. District Judge Emmet G. Sullivan.

"The building trades are bitterly disappointed by this decision and we are considering our legal options, including the possibility of appealing to the Supreme Court of the United States," Edward C. Sullivan, president of the AFL-CIO Building and Construction Trades Department, said yesterday.

"The court's decision grants the president permission to promote his own labor agenda by overriding state and local decisions about how to conduct their construction projects," he said.

Contractors did not agree.

"This is a major victory for the U.S. construction industry as it ensures a neutral government position and restores full and open competition in the federal contracting process," said Ken Adams, of New Castle, Del., national chairman of Associated Builders and Contractors. "President Bush's common-sense executive order helps to ensure open competition in the U.S. construction industry."

Under the decision, contractors remain free to hire union or nonunion workers without that choice being imposed one way or the other by Maryland or Virginia.

On Feb. 17, 2001, Mr. Bush issued Executive Order No. 13,202, which barred any construction project that receives federal funds from imposing project labor agreements (PLAs). Such deals bind all parties to a master collective-bargaining agreement, standardize wages and working conditions, and can require that all workers be unionized.

President George Bush began this battle with an executive order barring PLAs on federal construction projects. President Clinton superceded that action with his own order allowing states and localities to negotiate PLAs if they wished. The order upheld by the D.C. Circuit reversed Mr. Clinton's action and expanded the scope of federal authority by barring PLAs on any project that received any federal money.

Maryland and Virginia, along with the District of Columbia, are partners in building the 12-lane bridge and its approaches, toward which the federal government is paying $2 billion.

The U.S. Chamber of Commerce filed a friend of the court brief supporting the White House and the Federal Emergency Management Agency in the appeal.

"Project labor agreements are generally anti-competitive and discriminatory. They're expensive. Governments shouldn't require them. They make the cost of construction go way over budget. They're just not economically feasible," said Robin Conrad of the Chamber Litigation Center.

Washington lawyer Victoria L. Bor, who represented the unions, said the order conflicted with the National Labor Relations Act and undermined the power of state and local governments to decide how to deal with labor unions.

"The case involves the validity of an executive order that applies not only to the Wilson Bridge but to any federal project or any federally assisted project. As a result of the executive order, local governments are precluded from negotiating a project labor agreement with construction managers," Miss Bor said yesterday.

Opponents of such agreements welcomed the ruling and said the result would be efficiency and thrift.

"Taxpayers will have projects done a lot quicker, for the least amount of money, because this is going to open up projects for the most efficient workers and contractors," said Dan Cronin of the Right to Work Foundation legal staff, who ridiculed assertions that contractors benefited from PLAs.

"What they're getting for their extra money is basically featherbedding, where unions will insist that you have five guys in to do the work of three, as well as an increased risk of disruptions despite the no-strike clauses," Mr. Cronin said.

The unions' challenge once threatened to slow construction on the Capital Beltway and Interstate 95, the decision will not affect schedules.

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