Add §222-b, Lab L; add §2879-d, Pub Auth L; add §109-e, Gen Muni L
Requires labor peace agreements as a precondition for contracts for certain retail or distribution projects in which a public agency has a substantial proprietary interest.
STATE OF NEW YORK
________________________________________________________________________
8114
2023-2024 Regular Sessions
IN ASSEMBLY
October 13, 2023
___________
Introduced by M. of A. KELLES -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, the public authorities law and the gener-
al municipal law, in relation to requiring labor peace agreements in
contracts for certain retail or distribution projects involving public
agencies
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 222-b to
2 read as follows:
3 § 222-b. Labor peace agreements; covered retail and distribution
4 projects. 1. As used in this section:
5 (a) "Contractor" means any person, firm, partnership, corporation,
6 association, company, organization or other similar entity, or any
7 combination thereof, including any subcontractor thereof, that employs
8 employees to perform work pursuant to an agreement with a public agency
9 to undertake a covered retail or distribution project as defined in
10 paragraph (b) of this subdivision, or to serve as the owner or operator
11 of any facility, including but not limited to a retail establishment or
12 distribution center that is part of a covered project, or to provide
13 services integral to the operations of the covered project or the facil-
14 ities.
15 (b) "Covered retail or distribution project" or "covered project"
16 means any project in which a public agency enters into an agreement for
17 development after the effective date of this section, where: (i) one or
18 more retail establishments or distribution centers are part of the
19 project; (ii) the state agency has a substantial proprietary interest in
20 the project, or in the retail or distribution center; and (iii) the
21 project includes at least one retail establishment which will have at
22 least ten employees, or at least one distribution center which will have
23 more than twenty employees.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06901-01-3
A. 8114 2
1 (c) "Distribution center" means a large-scale facility involving proc-
2 essing, repackaging and/or movement of finished or semi-finished goods
3 to be redistributed to retailers, wholesalers, or directly to customers,
4 including but not limited to a warehouse, storage facility, sortation
5 facility, fulfillment center, or any other similar facility.
6 (d) "Labor peace agreement" means an agreement between a contractor
7 and one or more bona fide labor organizations representing workers in
8 this state that, at a minimum, requires that the labor organization and
9 its members refrain from engaging in labor activity that will disrupt
10 the contractor's operations, including strikes, boycotts, work stop-
11 pages, corporate campaigns, picketing or other economic action against
12 the covered retail or distribution project for a period of not less than
13 five years following the commencement of operations under the contract
14 or agreement for the covered project.
15 (e) "Proprietary interest" means an economic and non-regulatory inter-
16 est of a public agency in the economic or financial success of a covered
17 retail or distribution project that could be adversely affected by
18 labor-management conflict, including, but not limited to, the interest
19 of the public agency as a financier, investor, lessee, lessor, operator,
20 or owner of the project, facility, or property on which the project or
21 facility is located, or as the provider or facilitator of financial
22 assistance to or for the project, facility, or property, whether by
23 direct loan or grant, or by a guarantee, subsidy, deposit, credit
24 enhancement or similar method, and any interest of a public agency
25 derived from the ongoing receipt of revenues from the project or facili-
26 ties of the project.
27 (f) "Public agency" means the state, and any department, agency,
28 board, bureau, commission, division, council or office of the state or
29 any political subdivision thereof, as defined in section one hundred of
30 the general municipal law, a municipal corporation as defined in section
31 sixty-six of the general construction law and any district thereof, a
32 public benefit corporation, or local or state authority as defined in
33 section two of the public authorities law, and any other entity author-
34 ized and empowered to enter into any contract or arrangement to conduct
35 economic development activity on behalf of any such public agency.
36 (g) "Retail establishment" means any vendor that in the regular course
37 of business sells products at retail directly to members of the general
38 public.
39 2. (a) Except as provided in paragraph (c) of this subdivision, no
40 public agency shall enter into any agreement or contract under which
41 such agency has a proprietary interest in a covered project unless the
42 agreement or contract requires as a material condition that the contrac-
43 tor and any subcontractor thereof has entered into a labor peace agree-
44 ment, as defined in paragraph (d) of subdivision one of this section,
45 with a bona fide labor organization that is actively engaged in repres-
46 enting or attempting to represent retail or distribution center employ-
47 ees in the state.
48 (b) (i) Every contractor or subcontractor subject to the provisions of
49 this section shall incorporate the terms of such labor peace agreement
50 in any contract, subcontract, lease, sublease, operating agreement,
51 concessionaire agreement, franchise agreement or other agreement or
52 instrument giving a right to any person or entity to own or operate a
53 retail establishment or distribution center in the covered project and
54 shall require the maintenance of such labor peace agreement as an ongo-
55 ing material condition of continued operation of such covered project.
A. 8114 3
1 (ii) (A) The duration of every labor peace agreement entered into
2 pursuant to this subdivision shall be included within the duration of
3 such agreement, provided, however, that no such labor peace agreement
4 shall be deemed to comply with the requirements of this section unless
5 such agreement shall be enforceable and binding between all parties
6 thereto for not less than five years from the date the covered project
7 becomes operational; provided further, that nothing in this subparagraph
8 shall be construed so as to prohibit the parties from entering into a
9 labor peace agreement that exceeds the minimum five year period other-
10 wise required herein.
11 (B) The provisions of this subdivision requiring a labor peace agree-
12 ment shall apply to any successor contractor, and any subcontractor
13 thereof, that takes the place of any initial contractor or subcontrac-
14 tor, provided such replacement occurs while the project remains a
15 covered project as defined in paragraph (b) of subdivision one of this
16 section. The duration of a labor peace agreement entered into by a
17 successor contractor or subcontractor pursuant to this clause shall be
18 for a period of not less than five years commencing on the later of the
19 date of such replacement or the date on which the project becomes opera-
20 tional.
21 (iii) Every public agency shall, prior to entering into an agreement
22 or contract for a covered project, provide written disclosure to the
23 contractor and any subcontractors of the labor peace agreement required
24 pursuant to this section and any other provisions applicable to such
25 agreement or contract. Where competitive bidding is required by statute,
26 rule, regulation or local law, for work or services to be performed in
27 connection with a covered project under this section, the public agency
28 shall provide such written disclosure to each prospective bidder or
29 contractor as part of any specifications or other conditions required
30 under this chapter or pursuant to any other general, special, or local
31 law or administrative code.
32 (iv) Any contractor or subcontractor that fails or refuses to include
33 any of the provisions required by this paragraph in the terms of any
34 contract, agreement or other instrument subject to the requirements of
35 this section shall not be considered a responsible bidder for the
36 purposes of any bid or proposal submitted in connection with such
37 covered project.
38 (c) (i) Notwithstanding any contrary provision of this section, a
39 public agency may enter into an agreement or contract wherein the public
40 agency has a substantial proprietary interest in a covered project with-
41 out a contractor entering into a labor peace agreement, if the agency
42 determines that the project would not be able to go forward if a labor
43 peace agreement was required, or the costs of the project to the public
44 agency would be substantially increased by such requirement, provided,
45 however, that no such determination shall be made without first solicit-
46 ing input from any labor organization that would otherwise be a party to
47 such labor peace agreement. Such a determination shall be supported by
48 a written finding setting forth the specific basis for such determi-
49 nation, which may include, but shall not be limited to experience with
50 similar projects, earlier requests for proposal for the same project, or
51 a detailed evaluation of potential bidders. Each such written determi-
52 nation, together with any supporting materials shall be submitted to the
53 commissioner in accordance with the provisions of subparagraph (ii) of
54 this paragraph in a manner consistent with rules and regulations promul-
55 gated by the commissioner for such purpose.
A. 8114 4
1 (ii) The commissioner shall review each such written determination
2 submitted pursuant to subparagraph (i) of this paragraph and shall issue
3 a public finding on such determination no later than fifteen business
4 days after receipt of such determination. In the event the commissioner
5 approves such determination, such determination, together with the
6 commissioner's statement of approval and findings thereon shall be
7 provided to the public agency and all other interested parties and shall
8 be included in any public materials in connection with the project and
9 shall be maintained by such agency in accordance with all applicable
10 provisions of the public officers law, the public authorities law, and
11 any other applicable law, rule or regulation.
12 (iii) If, after review of such determination pursuant to subparagraph
13 (ii) of this paragraph, the commissioner shall not approve such determi-
14 nation, the contract and agreement shall be subject to the mandatory
15 labor peace agreement pursuant to paragraphs (a) and (b) of this subdi-
16 vision and subdivision three of this section.
17 3. (a) Beginning on the effective date of this section and thereafter,
18 no agreement or contract to undertake a covered retail or distribution
19 project shall be valid or enforceable unless it complies with the
20 requirements set forth in this section.
21 (b) The commissioner shall require every public agency that is subject
22 to the provisions of this section that has not entered into a labor
23 peace agreement on or before the effective date of this section to
24 produce an affidavit stating it shall enter into a labor peace agreement
25 with labor organizations that are actively engaged in representing or
26 attempting to represent retail and distribution center employees in this
27 state.
28 (c) Beginning on the effective date of this section and thereafter,
29 each public agency that enters into a contract or agreement for a
30 covered project subject to a labor peace agreement required by this
31 section shall submit to the commissioner proof of such executed labor
32 peace agreement, or a written determination pursuant to paragraph (c) of
33 subdivision two of this section, together with such other information
34 and documents as the commissioner may require in a manner prescribed by
35 the commissioner for such purpose.
36 (d) The commissioner shall adopt any rules and regulations necessary
37 to accomplish the purposes of this section in accordance with the state
38 administrative procedure act. Such rules and regulations shall include,
39 but not be limited to: a model labor peace agreement that complies with
40 the requirements of this section; remedies and procedures for public
41 authorities to enforce compliance with this section, including
42 provisions for the reimbursement of any costs or damages incurred by a
43 public authority in connection with any noncompliance with the
44 provisions of this section or with any contract or agreement subject to
45 the provisions of this section; and any internal controls necessary to
46 ensure compliance with such rules and regulations.
47 4. This section shall not apply to any construction contract entered
48 into in connection with a covered project; provided, however, that noth-
49 ing in this section shall prohibit or restrict the parties to any such
50 construction contract from executing a labor peace agreement where
51 otherwise permitted by applicable law. For the purposes of this section,
52 a "construction contract" means a contract for building, addition, demo-
53 lition, and other alterations and improvements to a covered project.
54 § 2. The public authorities law is amended by adding a new section
55 2879-d to read as follows:
A. 8114 5
1 § 2879-d. Labor peace; covered retail or distribution projects. 1.
2 Notwithstanding any contrary provision of any law, rule or regulation,
3 beginning on the effective date of this section and thereafter, all
4 contracts entered into by a public authority for a covered retail or
5 distribution project as defined in paragraph (b) of subdivision one of
6 section two hundred twenty-two-b of the labor law, shall include as a
7 material condition that the contractor or any subcontractor thereof
8 shall enter into a labor peace agreement with a labor organization that
9 represents retail or distribution center employees in the state, in
10 conformity with the provisions of section two hundred twenty-two-b of
11 the labor law, and the provisions of such section shall be deemed terms
12 of all such contracts.
13 2. Except as provided in paragraph (c) of subdivision two of section
14 two hundred twenty-two-b of the labor law, no public authority shall
15 enter into any agreement or contract for a covered retail or distrib-
16 ution project as defined in paragraph (b) of subdivision one of section
17 two hundred twenty-two-b of the labor law unless the agreement or
18 contract requires as a material condition that the contractor and any
19 subcontractor thereof has entered into a labor peace agreement with a
20 labor organization that is actively engaged in representing or attempt-
21 ing to represent retail or distribution center employees in the state in
22 conformity with section two hundred twenty-two-b of the labor law, and
23 the provisions of such section shall be deemed terms of all such
24 contracts.
25 § 3. The general municipal law is amended by adding a new section
26 109-e to read as follows:
27 § 109-e. Labor peace agreements; covered retail and distribution
28 projects. 1. Notwithstanding any contrary provision of any law, rule or
29 regulation, beginning on the effective date of this section and there-
30 after, all contracts entered into by an officer, board or agency of a
31 political subdivision, or of any district therein involving a covered
32 retail or distribution project as defined in paragraph (b) of subdivi-
33 sion one of section two hundred twenty-two-b of the labor law, shall
34 include as a material condition that the contractor or a subcontractor
35 thereof shall enter into a labor peace agreement with a labor organiza-
36 tion that represents retail or distribution center employees in the
37 state in conformity with the provisions of section two hundred twenty-
38 two-b of the labor law, and the provisions of such section shall be
39 deemed terms of all such contracts.
40 2. Except as provided in paragraph (c) of subdivision two of section
41 two hundred twenty-two-b of the labor law, no officer, board or agency
42 of a political subdivision, or of any district therein shall enter into
43 any agreement or contract for a covered retail or distribution project
44 as defined in paragraph (b) of subdivision one of section two hundred
45 twenty-two-b of the labor law unless the agreement or contract requires
46 as a material condition that the contractor and any subcontractor there-
47 of has entered into a labor peace agreement with a labor organization
48 that is actively engaged in representing or attempting to represent
49 retail or distribution center employees in the state in conformity with
50 section two hundred twenty-two-b of the labor law, and the provisions of
51 such section shall be deemed terms of all such contracts.
52 § 4. This act shall take effect on the ninetieth day after it shall
53 have become a law. Effective immediately, the addition, amendment and/or
54 repeal of any rule or regulation necessary for the implementation of
55 this act on its effective date are authorized to be made and completed
56 on or before such effective date.
