Bill Text: NY A10308 | 2021-2022 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-05-13 - referred to labor [A10308 Detail]
Download: New_York-2021-A10308-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10308 IN ASSEMBLY May 13, 2022 ___________ Introduced by COMMITTEE ON RULES -- (at request of 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. 24 (c) "Distribution center" means a large-scale facility involving proc- 25 essing, repackaging and/or movement of finished or semi-finished goods 26 to be redistributed to retailers, wholesalers, or directly to customers, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13837-01-1A. 10308 2 1 including but not limited to a warehouse, storage facility, sortation 2 facility, fulfillment center, or any other similar facility. 3 (d) "Labor peace agreement" means an agreement between a contractor 4 and one or more bona fide labor organizations representing workers in 5 this state that, at a minimum, requires that the labor organization and 6 its members refrain from engaging in labor activity that will disrupt 7 the contractor's operations, including strikes, boycotts, work stop- 8 pages, corporate campaigns, picketing or other economic action against 9 the covered retail or distribution project for a period of not less than 10 five years following the commencement of operations under the contract 11 or agreement for the covered project. 12 (e) "Proprietary interest" means an economic and non-regulatory inter- 13 est of a public agency in the economic or financial success of a covered 14 retail or distribution project that could be adversely affected by 15 labor-management conflict, including, but not limited to, the interest 16 of the public agency as a financier, investor, lessee, lessor, operator, 17 or owner of the project, facility, or property on which the project or 18 facility is located, or as the provider or facilitator of financial 19 assistance to or for the project, facility, or property, whether by 20 direct loan or grant, or by a guarantee, subsidy, deposit, credit 21 enhancement or similar method, and any interest of a public agency 22 derived from the ongoing receipt of revenues from the project or facili- 23 ties of the project. 24 (f) "Public agency" means the state, and any department, agency, 25 board, bureau, commission, division, council or office of the state or 26 any political subdivision thereof, as defined in section one hundred of 27 the general municipal law, a municipal corporation as defined in section 28 sixty-six of the general construction law and any district thereof, a 29 public benefit corporation, or local or state authority as defined in 30 section two of the public authorities law, and any other entity author- 31 ized and empowered to enter into any contract or arrangement to conduct 32 economic development activity on behalf of any such public agency. 33 (g) "Retail establishment" means any vendor that in the regular course 34 of business sells products at retail directly to members of the general 35 public. 36 2. (a) Except as provided in paragraph (c) of this subdivision, no 37 public agency shall enter into any agreement or contract under which 38 such agency has a proprietary interest in a covered project unless the 39 agreement or contract requires as a material condition that the contrac- 40 tor and any subcontractor thereof has entered into a labor peace agree- 41 ment, as defined in paragraph (d) of subdivision one of this section, 42 with a bona fide labor organization that is actively engaged in repres- 43 enting or attempting to represent retail or distribution center employ- 44 ees in the state. 45 (b) (i) Every contractor or subcontractor subject to the provisions of 46 this section shall incorporate the terms of such labor peace agreement 47 in any contract, subcontract, lease, sublease, operating agreement, 48 concessionaire agreement, franchise agreement or other agreement or 49 instrument giving a right to any person or entity to own or operate a 50 retail establishment or distribution center in the covered project and 51 shall require the maintenance of such labor peace agreement as an ongo- 52 ing material condition of continued operation of such covered project. 53 (ii) (A) The duration of every labor peace agreement entered into 54 pursuant to this subdivision shall be included within the duration of 55 such agreement, provided, however, that no such labor peace agreement 56 shall be deemed to comply with the requirements of this section unlessA. 10308 3 1 such agreement shall be enforceable and binding between all parties 2 thereto for not less than five years from the date the covered project 3 becomes operational; provided further, that nothing in this subparagraph 4 shall be construed so as to prohibit the parties from entering into a 5 labor peace agreement that exceeds the minimum five year period other- 6 wise required herein. 7 (B) The provisions of this subdivision requiring a labor peace agree- 8 ment shall apply to any successor contractor, and any subcontractor 9 thereof, that takes the place of any initial contractor or subcontrac- 10 tor, provided such replacement occurs while the project remains a 11 covered project as defined in paragraph (b) of subdivision one of this 12 section. The duration of a labor peace agreement entered into by a 13 successor contractor or subcontractor pursuant to this clause shall be 14 for a period of not less than five years commencing on the later of the 15 date of such replacement or the date on which the project becomes opera- 16 tional. 17 (iii) Every public agency shall, prior to entering into an agreement 18 or contract for a covered project, provide written disclosure to the 19 contractor and any subcontractors of the labor peace agreement required 20 pursuant to this section and any other provisions applicable to such 21 agreement or contract. Where competitive bidding is required by statute, 22 rule, regulation or local law, for work or services to be performed in 23 connection with a covered project under this section, the public agency 24 shall provide such written disclosure to each prospective bidder or 25 contractor as part of any specifications or other conditions required 26 under this chapter or pursuant to any other general, special, or local 27 law or administrative code. 28 (iv) Any contractor or subcontractor that fails or refuses to include 29 any of the provisions required by this paragraph in the terms of any 30 contract, agreement or other instrument subject to the requirements of 31 this section shall not be considered a responsible bidder for the 32 purposes of any bid or proposal submitted in connection with such 33 covered project. 34 (c) (i) Notwithstanding any contrary provision of this section, a 35 public agency may enter into an agreement or contract wherein the public 36 agency has a substantial proprietary interest in a covered project with- 37 out a contractor entering into a labor peace agreement, if the agency 38 determines that the project would not be able to go forward if a labor 39 peace agreement was required, or the costs of the project to the public 40 agency would be substantially increased by such requirement, provided, 41 however, that no such determination shall be made without first solicit- 42 ing input from any labor organization that would otherwise be a party to 43 such labor peace agreement. Such a determination shall be supported by 44 a written finding setting forth the specific basis for such determi- 45 nation, which may include, but shall not be limited to experience with 46 similar projects, earlier requests for proposal for the same project, or 47 a detailed evaluation of potential bidders. Each such written determi- 48 nation, together with any supporting materials shall be submitted to the 49 commissioner in accordance with the provisions of subparagraph (ii) of 50 this paragraph in a manner consistent with rules and regulations promul- 51 gated by the commissioner for such purpose. 52 (ii) The commissioner shall review each such written determination 53 submitted pursuant to subparagraph (i) of this paragraph and shall issue 54 a public finding on such determination no later than fifteen business 55 days after receipt of such determination. In the event the commissioner 56 approves such determination, such determination, together with theA. 10308 4 1 commissioner's statement of approval and findings thereon shall be 2 provided to the public agency and all other interested parties and shall 3 be included in any public materials in connection with the project and 4 shall be maintained by such agency in accordance with all applicable 5 provisions of the public officers law, the public authorities law, and 6 any other applicable law, rule or regulation. 7 (iii) If, after review of such determination pursuant to subparagraph 8 (ii) of this paragraph, the commissioner shall not approve such determi- 9 nation, the contract and agreement shall be subject to the mandatory 10 labor peace agreement pursuant to paragraphs (a) and (b) of this subdi- 11 vision and subdivision three of this section. 12 3. (a) Beginning on the effective date of this section and thereafter, 13 no agreement or contract to undertake a covered retail or distribution 14 project shall be valid or enforceable unless it complies with the 15 requirements set forth in this section. 16 (b) The commissioner shall require every public agency that is subject 17 to the provisions of this section that has not entered into a labor 18 peace agreement on or before the effective date of this section to 19 produce an affidavit stating it shall enter into a labor peace agreement 20 with labor organizations that are actively engaged in representing or 21 attempting to represent retail and distribution center employees in this 22 state. 23 (c) Beginning on the effective date of this section and thereafter, 24 each public agency that enters into a contract or agreement for a 25 covered project subject to a labor peace agreement required by this 26 section shall submit to the commissioner proof of such executed labor 27 peace agreement, or a written determination pursuant to paragraph (c) of 28 subdivision two of this section, together with such other information 29 and documents as the commissioner may require in a manner prescribed by 30 the commissioner for such purpose. 31 (d) The commissioner shall adopt any rules and regulations necessary 32 to accomplish the purposes of this section in accordance with the state 33 administrative procedure act. Such rules and regulations shall include, 34 but not be limited to: a model labor peace agreement that complies with 35 the requirements of this section; remedies and procedures for public 36 authorities to enforce compliance with this section, including 37 provisions for the reimbursement of any costs or damages incurred by a 38 public authority in connection with any noncompliance with the 39 provisions of this section or with any contract or agreement subject to 40 the provisions of this section; and any internal controls necessary to 41 ensure compliance with such rules and regulations. 42 4. This section shall not apply to any construction contract entered 43 into in connection with a covered project; provided, however, that noth- 44 ing in this section shall prohibit or restrict the parties to any such 45 construction contract from executing a labor peace agreement where 46 otherwise permitted by applicable law. For the purposes of this section, 47 a "construction contract" means a contract for building, addition, demo- 48 lition, and other alterations and improvements to a covered project. 49 § 2. The public authorities law is amended by adding a new section 50 2879-d to read as follows: 51 § 2879-d. Labor peace; covered retail or distribution projects. 1. 52 Notwithstanding any contrary provision of any law, rule or regulation, 53 beginning on the effective date of this section and thereafter, all 54 contracts entered into by a public authority for a covered retail or 55 distribution project as defined in paragraph (b) of subdivision one of 56 section two hundred twenty-two-b of the labor law, shall include as aA. 10308 5 1 material condition that the contractor or any subcontractor thereof 2 shall enter into a labor peace agreement with a labor organization that 3 represents retail or distribution center employees in the state, in 4 conformity with the provisions of section two hundred twenty-two-b of 5 the labor law, and the provisions of such section shall be deemed terms 6 of all such contracts. 7 2. Except as provided in paragraph (c) of subdivision two of section 8 two hundred twenty-two-b of the labor law, no public authority shall 9 enter into any agreement or contract for a covered retail or distrib- 10 ution project as defined in paragraph (b) of subdivision one of section 11 two hundred twenty-two-b of the labor law unless the agreement or 12 contract requires as a material condition that the contractor and any 13 subcontractor thereof has entered into a labor peace agreement with a 14 labor organization that is actively engaged in representing or attempt- 15 ing to represent retail or distribution center employees in the state in 16 conformity with section two hundred twenty-two-b of the labor law, and 17 the provisions of such section shall be deemed terms of all such 18 contracts. 19 § 3. The general municipal law is amended by adding a new section 20 109-e to read as follows: 21 § 109-e. Labor peace agreements; covered retail and distribution 22 projects. 1. Notwithstanding any contrary provision of any law, rule or 23 regulation, beginning on the effective date of this section and there- 24 after, all contracts entered into by an officer, board or agency of a 25 political subdivision, or of any district therein involving a covered 26 retail or distribution project as defined in paragraph (b) of subdivi- 27 sion one of section two hundred twenty-two-b of the labor law, shall 28 include as a material condition that the contractor or a subcontractor 29 thereof shall enter into a labor peace agreement with a labor organiza- 30 tion that represents retail or distribution center employees in the 31 state in conformity with the provisions of section two hundred twenty- 32 two-b of the labor law, and the provisions of such section shall be 33 deemed terms of all such contracts. 34 2. Except as provided in paragraph (c) of subdivision two of section 35 two hundred twenty-two-b of the labor law, no officer, board or agency 36 of a political subdivision, or of any district therein shall enter into 37 any agreement or contract for a covered retail or distribution project 38 as defined in paragraph (b) of subdivision one of section two hundred 39 twenty-two-b of the labor law unless the agreement or contract requires 40 as a material condition that the contractor and any subcontractor there- 41 of has entered into a labor peace agreement with a labor organization 42 that is actively engaged in representing or attempting to represent 43 retail or distribution center employees in the state in conformity with 44 section two hundred twenty-two-b of the labor law, and the provisions of 45 such section shall be deemed terms of all such contracts. 46 § 4. This act shall take effect on the ninetieth day after it shall 47 have become a law. Effective immediately, the addition, amendment and/or 48 repeal of any rule or regulation necessary for the implementation of 49 this act on its effective date are authorized to be made and completed 50 on or before such effective date.