REVOLT OF THE MANAGERS

At the City of Portland, a group of managers rewrote a project labor agreement template — by taking out the ‘labor’

By Don McIntosh

A group of city bureau managers is asking Portland City Council to scrap a union-friendly template that has increased minority and women participation in City construction projects, which a previous City Council approved in 2012. A counter-template written by the managers was scheduled to go before City Council Wednesday, April 26, and critics were planning a big turnout at that meeting, but the item was removed from the Council’s agenda on April 19.

The old template, known as the Community Benefits Agreement (CBA), was crafted by a broad labor-community coalition, the Metropolitan Alliance for Workforce Equity. It committed general contractors, unions, minority contractors, community groups, workforce training groups and pre-apprenticeship programs to work together to hit ambitious numeric targets for the participation of women and minorities — as apprentices, journeymen, and subcontractors — on City-funded construction projects.

The new template, entitled the Community Equity and Inclusion Plan (CEIP), was crafted by a work group of city managers, including Office of Equity and Human Rights director Dante James, chief procurement officer Christine Moody, deputy city attorney Molly Washington, and the heads of City infrastructure bureaus like water, transportation, and sewer.

As such, it’s a construction contract written by city managers with little or no experience in construction. The result is a marvel of management-speak, full of redundant and impenetrably vague language, and frequently lacking clarity about who’s responsible for what. Here’s Article 7.3, Section B, Subsection 1, item i, sub-item (c): “Information shall be posted on the Contractor’s website, or to a shared website approved by the Owner, to facilitate assessment of the interest of D/M/W/ESBs for the Work on the Project.” Much of the document reads like that.

But beyond style and comprehensibility, unions and community allies are raising a number of specific objections to the CEIP, such as:

• It creates a new 9-to-15-member Community Equity and Inclusion Committee (CEIC), but unlike the CBA’s labor-management-community oversight committee, the CEIC would be advisory only, meet just four times a year, and would be appointed by the city’s chief administrative officer, Equity Director (Dante James) and an unspecified infrastructure bureau director.
• It makes no mention of a 1 percent for equity fund to pay for pre-apprenticeship programs and technical assistance for minority contractors; that’s supposedly going to be addressed through a separate policy that has yet to be revealed.
• Unions (and pre-apprenticeship organizations) had no role in crafting the CEIP, and they aren’t signatory parties to it. Instead, they’re supposed to sign an Exhibit A “Partnership Agreement” that they had no hand in negotiating.

That last item is significant, where unions are concerned. In a Jan. 16 letter to Dante James, the Pacific Northwest Council of Carpenters, Operating Engineers Local 701 and the Columbia-Pacific Building Trades Council explained that many labor unions would face significant exposure to lawsuits from members if they agreed to dispatch specifically women and minority workers in the absence of a signed, collectively bargained agreement with a contractor. The CBA, as written, served that function. But City managers said it was unwieldy to have so many signers.

“The idea was not to make 17, 18, 20 people all parties to a contract,” City Equity Office director Dante James told the Labor Press. “That doesn’t make any sense.”

Instead, in the CEIP, “building trades, both union and non-union” can sign a separate non-binding “partnership agreement” pledging to “make efforts to assist the Contractor” in achieving the goals. James said the CEIP was created by synthesizing a number of documents, including the CBA, and then sending the document out to “over 44 organizations and individuals” for feedback.

But that’s only after a number of organizations complained they were being left out. When City staff presented a list of organizations they were going to reach out to last October to the City’s Fair Contracting Forum, not one of the dozens of labor unions, pre-apprenticeship programs, or community groups that had participated in creating the CBA was on the list.

And notably for a document based on the CBA, CEIP strips every mention of strikes and lockouts, removes unions from any advisory role, and removes the requirement that unions represent workers on the projects.

Willy Myers, head of the Columbia-Pacific Building Trades Council, said it seemed like the CEIP’s authors “conspired together to create a low-road approach that discounts the value of union labor to the point where it’s offensive.”

“Dr. King recognized the value of union labor and knew labor had to be a piece of the puzzle of equity and inclusion,” Myers told the Labor Press. “It’s very unfortunate that the City of Portland’s Office of Equity doesn’t recognize that.”

The CEIP does have some new innovations: It requires contractors to provide cultural competency training to managers; clean, lock-able, graffiti-free toilet facilities for construction workers who identify as women; and separate lactation facilities, as needed.

And several parts of the CEIP are notably specific: General contractors have to utilize the City’s Prime Contractor Development Program as a “first source” for subcontracts, and once subcontractors are selected, they can’t be fired or replaced without the approval of the City’s chief procurement officer (Christine Moody).

But when it comes to steps taken to achieve the actual numeric diversity goals, the CEIP is full of weasel language like “may,” “when possible,” and “if deemed necessary” — and most often it’s not spelled out who is responsible for the “deeming.”

The diversity goals, at least, are plainly laid out: Apprentices are supposed to work 20 percent of the total labor hours, and of the apprentices, 22 percent are supposed to be minorities, and 9 percent women. Meanwhile, minorities are supposed to work 22 percent of the journey-level hours, and women 6 percent. And disadvantaged or minority-owned businesses are supposed to get contracts equal to 12 percent of hard construction costs, while women-owned businesses are supposed to get 5 percent, and another 5 percent could go to any combination of women-owned, minority-owned or emerging small businesses. [Contractors and workers that are both minority and women can be tracked as both but only counted once toward diversity goals.]

But almost any of the diversity goals can be lowered or eliminated for any given project — after negotiations between the general contractor and the City project manager and City chief procurement officer: “Exemptions to the percentage goals … shall be assessed … through the Contractor’s and Owner’s assessments of the scopes of work for each trade implicated in the Project, current marketplace availability for such trades, and historical disparity data and other assessment as reviewed by the CEIC.” Translation: City construction projects will meet City diversity goals, except when they won’t.

When a first draft of the CEIP was released in October, it alarmed most of the organizations that had worked with the City on the CBA. The Metropolitan Alliance for Workforce Equity (MAWE) outlined concerns in a letter to Dante James signed by 15 organizations.

By contrast, no one seems to want to take direct responsibility for the CEIP. The April 3 “letter to stakeholder groups” announcing CEIP’s final draft was signed simply “the work group,” without even a list of the work group’s participants by name.