A judge could rule this week on whether Idaho’s newest anti-union laws should be stalled until a lawsuit plays out in federal court.
The laws, intended to weaken the power of labor organizations in Idaho, were passed during the 2011 legislative session and go into effect July 1. But two building and construction unions have sued in Boise’s U.S. District Court, saying the laws are unconstitutional because the state is attempting to pre-empt matters already governed by Congress.
Chief U.S. District Judge B. Lynn Winmill heard arguments on a motion for a preliminary injunction last week.
Deputy Idaho Attorney General Clay Smith said the attorneys on both sides spent about 45 minutes presenting their cases to Winmill, who took the matter under advisement. The labor unions want an answer before July 1; Smith said Winmill is expected to rule sometime this week. He declined to comment further on the case.
“The argument is a simple one, actually,” said James Piotrowski, one of the attorneys representing the labor unions. “The Constitution gives Congress power to regulate interstate commerce, and it has done so in the National Labor Relations Act. The Idaho law is the state of Idaho’s attempt to regulate an aspect of the private sector, and they’re not free to do so.”
The first law prohibits so called “project labor agreements” that require contractors to forge pacts with unionized workers as a condition of winning a government construction job. The second new law prohibits unions from using dues to subsidize member wages to help union-shop contractors win projects. The subsidies, known as job targeting programs, can reduce a union contractor’s overall costs and allow it to submit a more competitive bid.
Supporters of the laws say project labor agreements essentially exclude nonunion shops from projects, and that job targeting programs artificially manipulate the market. But from the time the laws were proposed, union members have warned that the prohibitions would be an invitation for lawsuits.
The Idaho Attorney General’s office has warned lawmakers that those suing would likely win.
In a January letter to lawmakers, Assistant Chief Deputy Attorney General Brian Kane said that job targeting programs are protected under the National Labor Relations Board and under the national Labor Management Relations Act and that previous challenges to the federal laws in other states have been shot down in federal courts. Idaho’s law barring project labor agreements also might violate federal laws, Kane said, telling lawmakers that a lawsuit “would not be surprising.”
Nevertheless, the Legislature passed the laws.
And the Idaho Building and Construction Trades Council AFL-CIO and Southwest Idaho Building and Construction Trades Council AFL-CIO promptly sued.
Piotrowski is optimistic about his clients’ chances.
“There are lots of cases out there about federal pre-emption, but I’ve been unable to identify one where the state has tried to inject itself into a matter already as governed by the National Labor Relations Act as this one,” Piotrowski said. “This is a matter of federal law and not state law and needs to remain in federal law.”
The case puts the Idaho Attorney General’s office in a somewhat awkward position. In a memo opposing the preliminary injunction request, Clay Smith wrote that the unions are claiming the laws are invalid in all of their applications, and notes that that claim is a heavy burden to prove. The memo also contends that the unions haven’t shown that the Attorney General’s office is likely to take any enforcement action infringing upon NLRA-protected rights. Smith points out that Kane’s letters to lawmakers “reflect a careful, nuanced position” regarding potential enforcement of the new laws.
Idaho has a long history of opposing unions. A quarter-century ago Idaho became a right-to-work state, which means that workers can’t be required to join unions as a condition of employment. As a result, union membership has declined and with it, the power of unions.
“We simply don’t have the numbers we used to have and are unable to rebuff politically attacks like this when they arrive,” Piotrowski said.