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Appeals court says union groups may revise lawsuit

Union groups are getting a chance to revise their lawsuit and add new defendants in a challenge to two Idaho laws targeting organized labor.

The 9th U.S. Circuit Court of Appeals ruled the week of May 20 that the Building and Construction Trades Council AFL-CIO and the Southwest Idaho Building and Construction Trades Council AFL-CIO will get a chance to retool their lawsuit after state lawmakers, spurred by a courtroom loss, made changes to the laws.

The case arose in 2011, after lawmakers passed two new anti-union laws. One prohibited project labor agreements that require contractors to forge pacts with unionized workers as a condition of winning a government construction job. The second prohibited unions from using dues to subsidize member wages to help union-ship 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.

While lawmakers were still considering the laws, the Idaho Attorney General’s office warned that they could lead to court challenges. In a January 2011 letter to lawmakers, Assistant Chief Deputy Attorney General Brian Kane said that any lawsuits over the job targeting programs would likely be successful because the programs are protected under the national Labor Management Relations Act.

Nevertheless, lawmakers passed both laws, and the trades councils promptly sued.

Early the next year U.S. District Judge B. Lynn Winmill ruled in favor of the unions, throwing out both laws, and Idaho Attorney General Lawrence Wasden appealed the decision to the 9th U.S. Circuit Court of Appeals. But before the appellate court considered the case, the Idaho Legislature removed the criminal penalty associated with the project labor agreement laws.

That, in turn, allowed Wasden to argue to the appellate court that because there was no longer a criminal penalty connected to the project labor agreement law, he no longer had the duty or the power to enforce it, and so could not be named as a defendant in the case.

The trades councils contend that Wasden should remain a defendant because he could still initiate civil penalties, and that other parts of Idaho’s anti-union laws still contain criminal penalties that could apply. They also say they should be allowed to add Idaho Department of Administration Director Tim Mason as a defendant because he could also seek to enforce the laws.

The three-judge panel of the 9th U.S. Circuit Court of Appeals said May 22 those are issues that Winmill will have to figure out in district court before the appellate judges will consider any other aspects of the case.

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