„In order to protect workers` right to freely elect their representatives to collective bargaining, the NLRA generally prohibits pre-employment agreements. However, by adopting what is often referred to as the construction industry reserve in 1959 (see 29 U.S.C. § 158(f)), Congress recognized that the special conditions prevailing in the construction industry warrant an exception to the general rule. Due to the generally short-term and occasional nature of employment with a particular employer in the construction industry, Congress noted that „[t]he nomination elections are not feasible in a broad segment of the industry to prove majority status.“ (Sen.Rep. No. 187, 86th Cong., 1st Sess., p. 55 (1959), reprinted at 1 Nat. Rennet. Relations Vol., Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1985) pp. 451-452 (1 legislative history); see NLRB v. Iron Workers (1978) 434 U.S. 335, 348–349.) This means that a construction project could be completed and workers could be spread to other workplaces before a union can obtain a certificate through an often lengthy electoral process. Strikes as an alternative to the electoral process have resulted in their own potentially extreme costs for workers and employers.
The construction industry has developed its own solution to this problem in the form of pre-emption agreements. As described in the Senate report on the 1959 NLRA Amendments: „In the construction industry, it is common for employers to enter into collective agreements for periods up to the future, perhaps 1 year or, in many cases, even 3 years. Since the vast majority of construction projects are of relatively short duration, these employment contracts necessarily apply to work that has not yet been started and may not even be taken into account. A second reason is that the employer must be able to have a stock of skilled craftsmen for a quick transfer. A considerable majority of skilled workers in this sector constitute a pool of this aid, concentrated in their corresponding craft union. When the employer relies on this pool of skilled craftsmen who are members of the union, there is no doubt in these circumstances that the union will indeed represent the majority of the workers eventually recruited. (Sen.Rep. No. 187, 86.
Cong., 1. Sess., p. 28, loc. cit., reprinted at 1 Legislative History, loc. cit., p. 1. 424.) The NLRA Construction Industry Provision (29 U.S.C. § 158(f)) eliminated any question regarding the legality of the model agreement prior to federal labour law. (Associated Builders, loc. cit., 21 Cal.4th at pp. 358–360.) However, the Associated Builders court acknowledged that while Boston Harbor eliminated any issue that public service announcements are permitted under the NLRA, „it has not resolved other constitutional and state legal issues, such as those involved in this case.“ (Id.
at p. 360.) As part of an agreement with local construction unions, the San Diego Unified School District Board of Education (SDUSD or district) has adopted a policy requiring bidders to hire apprentices trained in the Joint Work Management Training Program on some of its construction projects. AGC filed a request for a warrant brief that challenged the agreement and policy. AGC claimed that the agreement and policy unlawfully interfered with the department`s regulatory authority over apprenticeship programs and violated the provisions of the current California Wages Act (PWL), Sections 1720 et seq. The Court of First Instance dismissed AGC`s application. On appeal of the decision rejecting the petition, we state: „The PSA is an example of a kind of pre-employment agreement designed for large and complex construction projects. It is designed to eliminate potential delays due to labour disputes, ensure a steady supply of skilled labour for the project and provide a contractually binding means of resolving labour complaints. Such agreements, also known as project employment contracts, have long been used in large construction projects used by private companies and, in particular, following the U.S. Supreme Court`s decision in Building & Constr. Trades Council v Associated Builders & Contractors of Mass./R. I., Inc.
(1993) 507 U.S. 218 (Boston Harbor), public authorities. The Port of Boston ruled that the National Labor Relations Act (29 U.S.C§ 151 et seq.) (NLRA) does not preclude a public authority acting as the owner of a construction project from ordering a project employment contract that is otherwise lawful as specifications for the project. (Boston Harbor, above, pp. 231-232.) As the discussion of the Prehire Accords shows, the investment in Associated Builders is based to a large extent on the previous approval of the Prehire Accords by the U.S. Supreme Court in Building & Constr. Trades Council gegen Associated Builders & Contractors of Mass./R.I., Inc. (1993) 507 U.S. 218 (Boston Harbor). . . .
