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A08114 Summary:

BILL NOA08114
 
SAME ASSAME AS S06894
 
SPONSORKelles
 
COSPNSR
 
MLTSPNSR
 
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.
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A08114 Actions:

BILL NOA08114
 
10/13/2023referred to labor
01/03/2024referred to labor
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A08114 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8114
 
SPONSOR: Kelles
  TITLE OF BILL: 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   PURPOSE: To require labor. peace agreements be made in contracts for certain retail or distribution projects involving public agencies and public authorities.   SUMMARY OF PROVISIONS: Section 1, part 1-part 2(b): amends labor law by adding a new section 222-b, which sets definitions and establishes a requirement that no public agency shall enter into any agreement or contract under which the agency has a proprietary interest in a covered project unless there is a labor peace agreement between the contractor and any subcontractor and a labor organization that represents retail or distribution center employ- ees in the state. The duration of such labor peace agreement shall be a minimum of five years, but may extend beyond that. Section 1, part 2(c): sets provisions for projects that have been deter- mined to be unable to move forward should a labor peace agreement be required. Section 1, part 3: Sets compliance requirements for public agencies to report to the commissioner of labor proof of executed labor peace agree- ments for projects subject to the new requirements of section 222-b. Section 2: amends public authorities law by adding a new section 2879-d, that requires that all contracts entered into by a public authority for a covered retail or distribution project shall require that the contrac- tor or any subcontractor shall enter into a labor peace agreement with a labor organization that represents retail or distribution center-employ- ees in the state Section 3: amends general municipal law by adding a new section 109-e, which requires that all contract entered into by an officer, board, or agency of a political subdivision, or of any district involving a covered retail or distribution project shall require a labor peace agreement with a labor organization that represents retail or distrib- ution center employees in the state. Section 4: Sets effective date   JUSTIFICATION: In projects around NYS where the state has a proprietary interest, building and construction trades have project labor agreements (PLAs) and prevailing wage on public works projects, and building service work- ers have prevailing wage as well. However, for the remainder of the "permanent" workforce that will work at a location, there are no labor standards, and given low labor density of these industries prevailing wage is not an option. In these situations, Labor Peace Agreements are an effective tool to ensure protection and welfare of workers while securing the economic viability of a project, utilizing the state's ability to act as a market participant that is pursuing its own economic interests. In these agree- ments, contractors and subcontracts can forge agreements with a relevant labor organization that secures protections for workers in exchange for ensuring that workers refrain from disrupting a project for the duration of its construction. In requiring labor peace agreements, NYS can protect both workers and projects in which it has proprietary interest in by securing well-needed economic and safety protections for non-unionized workers, while ensur- ing that a project that the state has proprietary interest in is undis- rupted and able to meet its stated timelines.   LEGISLATIVE HISTORY: Senate: 2022 - Referred to Labor Assembly: 2022 - Referred to Labor   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed on or before such effective date.
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A08114 Text:



 
                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.
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