Today the Board of Estimates will be voting on this item: “Creating Section 4.29 of the Madison General Ordinances to require Proprietary Interest Protection Agreements in loan agreements.” But what the hell is it?
DRAFTERS ANALYSIS
The drafters analysis written by the city attorney’s office makes a little more sense.
DRAFTER’S ANALYSIS: The City provides financial assistance to developments through TIF and other forms of loans. In each of these loan agreements, the City requires compliance with certain City ordinances to protect employees such as Living Wage, Affirmative Action, and Equal Benefits. These requirements only apply to the direct recipient of financial assistance. Requiring project users to provide the same benefits to their employees requires private agreements between the recipient of financial assistance and the employees. Under circumstances where the City has a proprietary interest, the City can require the recipient to enter such a private agreement. Several municipalities around the country require similar agreements, and they have been upheld in courts around the country including Hotel Employees & Restaurant Employees Union, Local 57 v. Sage Hospitality Resources, LLC, 390 F.3d 206 (3rd Cir, 2004).
STATEMENT OF PURPOSE
The statement of purpose in the ordinance sounds a little different than the drafters analysis:
Statement of Purpose. The City provides financial assistance to developers for the purpose of promoting economic development and job growth. Acting as a financier for a development puts the City at risk of financial loss where the success of the project impacts the City’s ability to recoup is financial assistance. Particularly, the success or failure of the project could be impacted by labor-management conflict, and such risk can be mitigated by requiring agreements between employers and employees that address common labor issues and prevent strikes. The purpose of this ordinance is to protect the City’s financial interests by providing for basic terms of employment for workers on City financed projects.
WHAT THE ORDINANCE ACTUALLY SAYS
This sounds different than both the drafters analysis and the statement of purpose and a large chunk ogf the ordinance is spent saying what it doesn’t apply to. There is no mention of Living Wages, Affirmative Action or Equal Benefits in the ordinance, its only about unionizing, collective bargaining and preventing strikes:
– It doesn’t apply to:
– – City Loans (including TIF) less than $100,000
– – Employers with less than 15 full-time or part-time employees on site
– – Any employer with a collective bargaining agreement or which has entered into an agreement with a labor organization with at least equal protection from the risks of labor/management conflict
– – Any residential development project.
– – Any multi-tenanted development project that is built on a speculative basis.
– – Any development project involving a historically designated building.
– – Public works contracts
– – Supply procurement contracts
– – Professional service contracts
– – Contracts of insurance or guaranty
– – Collective bargaining agreements
– – Contracts with nonprofit corporations, unless the nonprofit corporation passes City financial assistance in an amount equal to one hundred thousand dollars ($100,000) or more through to a for-profit entity
– – Projects after the city loan is paid
– The Agreement shall contain at least the following:
– – Employees decide whether to be represented by a labor organization, and if so, by which labor organization and it will be determined based on signed authorization cards in a card check procedure conducted by a neutral third party in lieu of a formal election.
– – The employer and the labor organization shall at all times refrain from the use of intimidation, reprisal or threats of reprisal, or other conduct designed to intimidate or coerce employees to influence the decision by employees whether to join or be represented by any labor organization.
– – Signatory labor organizations shall not strike or picket, against the employer at the worksite of an organizing drive covered by this section, so long as the employer complies with the terms of the agreement.
– The employer and labor organization may incorporate additional consistent provisions to protect the city’s/agency’s proprietary interest if they so agree.
CONCLUSION
Well, it is what it is. It should just be clear about what it is. The title and drafters analysis are incomprehensible and misleading at best. Why not just say this requires some companies in buildings with more than $100,000 of city loans and more than 15 employees to decide if want to unionize and protects them from intimidation and prevents them from striking while voting to decide if they want to be represented. It might take a few more words but at least it would be clear and transparent.
