City Declares REO a Legal Risk

Wednesday, June 20, 2012

Ashley Klann, GoLocalWorcester Contributor

The crowd of union workers and supporters at Tuesday's meeting.

After facing heated words from local contractors and construction businesses, the city has declared the proposed responsible employer ordinance (REO) a legal risk. Despite this opinion from the city solicitor, city council voted 9-1 to advertise an amended version of the city’s REO at Tuesday’s meeting.

Given the solicitor’s concern about legal action against the city, the city manager urged parties to discuss other solutions between unions and non-unions, and redesign the ordinance. In addition to the decision to advertise the ordinance, council also voted to strike the Chapter 30 language.

In a letter drafted to city councilors, City Manager Michael O’Brien said, “As you know, a lawsuit by Merit Construction Alliance is eminent if this ordinance is approved (as detailed in their testimony). It is for this reason that I respectfully recommend that the City Council table the adoption of this proposal on a new REO pending further clarity on the legal issues concerning mandated apprenticeship programs.”

The proposed ordinance was submitted by the Committee of Economic Development to council at the end of May. The primary cause of concern and legal instability of the ordinance was its apprenticeship clause, which would mandate that all shops that previously did not

have an apprenticeship program would be forced to implement one, causing them to face higher costs and suffer a harder time competing with union shops.

Other issues with the drafted REO included residency requirements and health insurance.

At Tuesday’s meeting, hundreds of union workers and supporters attended the council meeting, spilling out into the hallway as local workforces testified in favor of the REO.

Members of Worcester Interfaith, a labor lawyer, and community organizers spoke to the ordinance’s benefit for the community and declared it to be an issue beyond union versus non-union.

Legal Risks

Last week, the issue brought heated words from many in attendance, and the item was sent to the City Solicitor, David Moore for a legal evaluation.

O’Brien proposed assembling representative from all sides of the issue to determine other options in maintaining a training component in the city’s REO “REO in a manner which serves the public interest, meets all legal requirements and is agreeable to all sides.”

Ronald Cogliano of Merit Construction Alliance, originally offered this solution at last week’s meeting, yet according to Jack Donahue of the New England Regional Council of Carpenters, his scheduled time to speak was Labor Day. Cogliano cited the recent legal action brought against the city of Fall River, MA for its REO that would reflect poorly on Worcester’s ordinance.

“The predominant legal issue raised by the draft REO is the constitutionality of the apprenticeship training program requirement,” Moore said in his response to the City Manager. “As has been previously reported, the Federal District Court for the District of Massachusetts invalidated the apprenticeship training provision of the Fall River REO.”

Overall, the proposed REO did not prove to be sufficiently different than that in Fall River.

“With one exception, this places the city in the same position it was after the Fall River decision, a position that led to the suspension of the apprenticeship training provision of the REO,” Moore said. With the exception of the pending case of the REO in Quincy, MA, the Solicitor believes the odds would have been stacked against the city, had the ordinance passed. “The likelihood of a legal challenge is, in my opinion, almost a certainty.”

Last Week’s “Bullying”

Many councilors voiced their reaction to last week’s meeting, calling those who spoke bullies and put forth their opinions that their threats to sue were false.

“If we go to court over this, so be it,” said Councilor William Eddy. “We’ve been there before.”

Councilor Rick Rushton was the first to speak in favor of the REO and said that according to figures he has seen, it was impossible that those employers not already using an apprenticeship program, could not pay for it.

“They’re arguing over $300, and that’s foolish,” he said.

The Dissenting Opinion

Council’s 9-1 vote pitted the mayor and all but one of the present councilors against the one dissenting opinion of Councilor Konstantina Lukes, who remains worried about the ordinance’s legal footing. She spoke through boos and shouts from those in attendance, saying that despite the power in the room, “The real power lies behind the court desk.”

“When this ordinance comes before them, unless we deal with it first, informally, it will be seen as another Worcester frivolous case,” she said. “Both sides are going to lose, and the only real solution to this is sitting down and discussing the issue. I’m not going to vote to advertise this because I am afraid and will not support a case with no merit.”