Scabby the Rat, the fearsome 10-foot-tall union inflatable, has lately been keeping vigil outside a surprising target — one of Oregon’s largest union employer associations.
“Shame on Associated General Contractors,” says the banner next to the rat. Set up by Operating Engineers Local 701 outside the Wilsonville headquarters of the Oregon-Columbia chapter of Associated General Contractors (AGC), the banner responds to an effort by AGC to squash a new commitment by the Oregon Department of Transportation (ODOT) to use union labor.
Union contractors have had a tough time winning bids for road work at ODOT, even though the state agency requires highway contractors to pay a “prevailing wage” that matches union wages and benefits. To turn that around, Oregon Building Trades Council Executive Secretary-Treasurer Robert Camarillo committed to developing a relationship with ODOT.
With the help of a 2021 state law, Camarillo and others spent over a year negotiating a “community workforce agreement” with ODOT, which was signed in October 2022 by representatives of 25 local unions and six local building trades councils. Under the agreement, ODOT would require contractors to use the union hiring hall, provide opportunities for apprentices, and try to increase the number of women, minority, veteran, and local workers on highway projects around the state. The agreement says ODOT contractors on certain projects will be governed by collective bargaining agreements for the duration of that project. Contractors also must ensure that apprentices get at least 20% of the work so they get a chance to learn their trades. ODOT decided to test the community workforce agreement on eight projects totaling $180 million. Bids on the first of those projects were due Jan. 25.
But all that is on hold now. In February and August 2023, AGC filed lawsuits in the Oregon Court of Appeals challenging both the community workforce agreement itself and ODOT’s statutory authority to enter into it. When AGC didn’t get an immediate decision from the appeals court, it filed a third suit Jan. 12 in Marion County Circuit Court seeking to stop ODOT from imposing the community workforce agreement until the appeals court rules. The two sides will be filing arguments in the appeals court cases at least through May, and a decision could be 18 months away.
On Jan. 24, Marion County Circuit Court Judge Jennifer Gardiner granted AGC’s request and issued a temporary restraining order against ODOT. Then on Feb. 29, she made that order a preliminary injunction, halting the community workforce agreement until the appeals court reaches a decision.
Issuing her ruling, Gardiner spent almost half an hour scolding ODOT and the unions.
Over the objections of AGC’s attorneys, Judge Gardiner on Feb. 16 granted “intervenor” status in the Marion County case to the Oregon Building Trades Council. That allowed the council’s attorney Dan Hutzenbiler to work alongside the Oregon Department of Justice attorneys defending ODOT, and it gave him a front-row seat as the judge explained her decision.
As Gardiner portrayed it, ODOT wrongfully engaged in secret, behind-closed-doors negotiations with the unions and arrived at an agreement that discriminates against non-union contractors.
“I was disappointed that the court bought into what I think is a false narrative, that this was a backroom deal done between unions and the state,” Hutzenbiler told the Labor Press afterward. “AGC is attempting to prevent the use of a tool that is used throughout the country as a means to help bring people into the trades that haven’t historically been in the trades and to ensure that they are treated fairly and properly on job sites.”
In response to Gardiner’s earlier decision to issue the temporary restraining order, ODOT indefinitely postponed the first two projects that were set to go to bid. That includes a project to improve three bridges in the Columbia Gorge: Arlington Bridge, Rufus Bridge, and U.S. 197 over I-84 Bridge.
AGC’s dual identity
In opposing ODOT’s commitment to use union labor, AGC would seem to be siding with some of its members over others. As a trade group, AGC has a dual identity: It has both union and non-union contractor members. The Oregon-Columbia chapter of AGC represents 790 general contractors in Oregon and Southwest Washington, including 65 who specialize in highway work. Some of those highway specialists are union-signatory, like McDonald Excavating, Coffman Excavation, and Granite Construction. Others are non-union, like HP Civil, Hamilton Construction, and K&E Excavating — three firms that joined AGC’s lawsuits as co-plaintiffs. In fact, AGC is the collective bargaining agent for union general contractors, and it negotiates collective bargaining agreements with five unions: Carpenters, Cement Masons, Laborers, Operating Engineers, and Teamsters.
But AGC-Oregon Executive Director Mike Salsgiver told the Labor Press there was no pushback from the group’s union members about its decision to sue ODOT.
“Our board of directors has to authorize whether we engage in legal activity, and the vote of our board was unanimous,” Salsgiver said. “The union contractors felt that they do not support mandated agreements of this type either.”
Salsgiver said AGC doesn’t oppose project labor agreements per se.
“Project labor agreements actually make sense sometimes on large, complex, schedule-constrained, and very costly projects,” Salsgiver said. But AGC wants it to be up to the general contractor to decide whether to enter into a PLA (project labor agreement), not have it be mandated by government.
In its lawsuits against ODOT, AGC says the agency broke the law when it negotiated and signed the community workforce agreement with the Oregon Building Trades Council and the Carpenters union. ODOT’s move to require contractors to abide by the agreement constitutes a new “rule,” AGC attorneys argued. And new rules have to go through a process of public notice and comment; ODOT didn’t run the agreement through that kind of public process.
Those process violations may seem like the kind of arguments only a lawyer could love, but AGC’s bigger challenge is about whether ODOT had the authority to sign an agreement with the unions.
Judge Gardiner and the appeals court get to interpret the law, but state legislators make the law, and Hutzenbiler says state legislators seem to want agreements like the one ODOT signed. Oregon Senate Bill 420 in 2021 modified public contracting law in Oregon to make it clear that state and local agencies can designate some public construction projects as “community benefit projects” and add certain requirements, including that contractors be registered apprentice training agents, employ apprentices to perform a specified percentage of work hours, and provide employer-paid family health insurance. That was followed by House Bill 2649 in 2023, which set specific targets for ODOT projects over $3 million — apprentices must perform at least 12% of the work hours, and contractors must have a plan for outreach to and recruitment and retention of women, minority individuals, and veterans. ODOT says its community workforce agreement with the unions is a way to achieve that. ODOT regards construction unions as the only potential partners capable of delivering the apprentices and diverse workforce the agency says it needs.
“This tool (the community workforce agreement) was something that they wanted to use to deliver their projects and address what they were hearing from contractors as a shortage of workers,” said Camarillo, the head of the Oregon Building Trades Council. “ODOT saw this as a tool to bring in someone like us that specializes in developing a workforce. That’s what we do. We specialize in making sure you have a skilled workforce to do those jobs.”
ODOT projects rely on federal funds, so to eliminate any doubts to the contrary, an aide to U.S. Transportation Secretary Pete Buttigieg confirmed to ODOT that its new community workforce agreement passes muster with the Federal Highway Administration.
Stomping PLAs nationwide
Hutzenbiler, the attorney representing the Oregon Building Trades Council, says AGC’s beef isn’t with procedural steps that ODOT skipped in some administrative process, or about whether a particular state agency has a particular authority; it’s with the community workforce agreement itself. Around the country, AGC chapters have filed suit to try to block project labor agreements and community benefits agreements (a particular type of project labor agreement in which unions are enlisted to help agencies meet diversity goals). As recently as Jan. 10, AGC’s national organization filed suit in federal court in Louisiana to block a Biden administration executive order that requires project labor agreements on federal construction projects of $35 million or more.
So Operating Engineers Local 701 has been putting up the rat since Feb. 6, not just outside AGC’s office but also at construction sites run by the ODOT contractors who joined as plaintiffs. In the bannering actions, Local 701 staff have been joined by officers and staff from across the spectrum of building trades unions.
James Anderson, business manager of Local 701, says the future of the road construction workforce is at stake. ODOT has said it faces a serious workforce challenge at a time when an increasing number of projects are in the pipeline.
“The AGC and those three contractors … they don’t want to spend the time nor the money to recruit apprentices and diversity,” Anderson said. Local 701 by contrast expends considerable effort to recruit apprentices, including women, minorities, veterans, and rural residents. “We don’t have a problem finding apprentices. We just want to be able to have jobs that will put them to work.”
ODOT PROJECTS ON HOLD
- US97: Lower Bridge Way — NW 10th St (Terrebonne)
- US26 (Powell Blvd): SE 99th Ave — East City Limits
- I-5: Kuebler Blvd to Delaney Rd Widening
- I-82 and I-84: Umatilla-Pendleton Concrete Pavement Repair
- US101: Gold Beach (Rogue River) Bridge
- I-84: EB McCord Creek Bridge Replacement
- OR58: Salt Creek Bridge (MP 42.93)
- OR18: Newberg-Dundee bypass (Phase 2a)
