More push back against CBAs in Sonoma County

Apparently, New Yorkers aren't the only people to be skeptical about CBAs. Bucking the California trend, the CBA for Sonoma Mountain Village has not been well received.

Last month, CBAs were accused of creating an anti-business climate. An op-ed this week calls them anti-competitive "special interest giveaways," and claims that coalitions use "power politics" to prevent non-union contractors from winning bids. The article's author, John Corry, is on the board of the Associated Building and Contractors Golden Gate Chapter.

The way it works, Mr. Corry says, is that supposed "community" groups force developers to enter into project labor agreements (PLAs), which require union labor. Developers weigh the added costs of union labor against the likely costs of community groups' threatened litigation, and often give in. One commenter helpfully calls this "greenmail."* This manipulative behavior doesn't just cost the developer more, it also forces non-union contractors out of the bidding process.

Mr. Corry makes some good points: a CBA doesn't represent the community just because it says it does; CBAs often use "power politics;" and they can favor special interests.

But Mr. Corry's article is tall on criticism and short on context.

CBAs, by their nature, favor special interests, but this is not necessarily bad. The development process has long been dominated by different and more powerful interest groups: tycoons, monopolists, propertied gentry, chambers of commerce, building trades associations, national development companies, etc. Unions can be put on this list too, but that doesn't reflect on their inherent societal value. Mr. Corry also fails to recognize that CBA coalitions represent more than union viewpoints. Commonly, coalitions bring together neighborhood groups, environmentalists, civil rights supporters, faith-based organizations, urbanists, affordable housing advocates, community development groups, living wage supporters, etc. CBAs give these historically disempowered groups a way to engage successfully in interest group politics, and the diversity of viewpoints that they bring to the table can ideally strengthen the democratic nature of the planning process.

Similarly, the fact that CBA coalitions use leverage, or power politics, to achieve their goals is not necessarily manipulative; developers, after all, certainly use political influence to their own advantage as well.

Mr. Corry's complaints that PLAs and CBAs end up costing taxpayers more is arguable. I'm not one to make absolute statements about this type of economic issue, but I will point out that many government entities, including New York and the White House, have determined that PLAs can be an effective method for lowering construction costs and decreasing the likelihood of labor disturbances. Moreover, PLAs can help to ensure that workers receive living wages and other labor benefits, even if they are not part of a union. (PLAs, contrary to Mr. Corry's statements, do not always foreclose non-union contractors and non-union employees from working on projects. See here for more details.) Regardless, PLAs are typically negotiated separately from CBAs, and even when they are included, they are but one negotiation element among many others.

Finally, Mr. Corry fails to acknowledge the breadth of qualitative and quantitative positive impacts that CBAs can have. It may be true that some CBAs will be astroturf, or unenforceable, or overly expensive, or extortion, but Mr. Corry's generalizations are too simplistic to give us any help in avoiding such outcomes.

* "Greenmail" it seems, is already a term for a type of corporate takeover strategy. (Wikipedia.) A quick google search will get you only a few results using greenmail to mean environmental blackmail. (National Right to Work Committee; NYT (quoting Mr. Corry's organization); The Register.)

New lawsuit questions the Atlantic Yards CBA

A lawsuit filed against Atlantic Yards this week, while not directly challenging the CBA, calls the agreement's integrity into question. In particular, the petition alleges that Empire State Development Corporation (ESDC), the project's quasi-public sponsor, and Forest City Ratner (FCR), the developer, ignored calls from the community for more public input and participation:

53. Throughout the review process, the public . . . was provided with only the most limited opportunity to participate in the review of the Project, even though the massive development would admittedly change significantly the character of the area and impose on adjacent neighborhoods very significant environmental impacts. This was due significantly to the use of ESDC as the titular sponsor of the Project; under its legislative mandate, all that was required in terms of public involvement was a legislative public hearing on the GPP [general project plan] and the DEIS [draft environmental impact statement]. And neither ESDC nor FCRC extended themselves beyond the explicit mandate. Indeed, in voting to disapprove the Project, the local community board based its decision on, among other things, “a failure to involve the community board and the community in a meaningful way; misleading and overstating the involvement of the public in the process.” 

54. Following ESDC’s 2006 approval of the Project, concerned civic groups and community organizations began calling for more community involvement, increased transparency of decision-making and reform of project governance. This led in August 2006 to the formation of a group of Brooklyn and citywide civic associations and affordable housing groups, including the petitioners, sponsoring an initiative known as BrooklynSpeaks, which in turn in August 2007 released a proposal for a revised governance structure that would allow for more openness and more meaningful community participation in decisions regarding the shaping of the Project. This proposal was subsequently endorsed by the state and city elected officials from the area and in the spring of 2008, ESDC offered to form a community advisory council. However, it refused to identify any role for the council in future decision-making, and the offer came to naught as local elected officials were unwilling to appoint representatives on these terms. Subsequent efforts by petitioners and others to open up the ESDC process also proved unsuccessful. 

The affidavit filed with the petition more explicitly criticizes the CBA, as pointed out over at the Atlantic Yards Report. It describes how the developer held a meeting for the purpose of creating BUILD, an organization that would later help support the CBA. It also says that community groups asked the developer to reopen the CBA, as the agreement failed to cover many neighborhood impacts. Although Forest City Ratner suggested that it might enter into a "neighborhood benefits agreement," it never followed through.

Lance Freeman, an urban planning professor at Columbia, has been more explicit about the dubious nature of the Atlantic Yards CBA. In 2007, he wrote:

At first glance, CBAs might appear to be welcome tool for fostering a more inclusionary planning process. In an attempt to garner support for the mega-project Forrest City Ratner entered into the CBA with several community based organizations the most prominent of which are ACORN and BUILD. . . .

While the CBA does at least give some of the most disenfranchised residents an opportunity to reap some benefits from the project, this is an undemocratic way to insure community input into a planning process. The signatories to the CBA may indeed represent a disenfranchised segment of the community. They may be organic members of the community. But they may not. The point is there is no mechanism to insure that the “community” in a CBA is representative of the community. If the signatories to the CBA were simply viewed as another interest group, that might be ok. But the CBA is being presented as illustrative of the development’s community input. Public officials are posing for pictures with the developer and signatories to the CBA, giving the impression that the community had significant input into the planning Atlantic Yards. This is not necessarily the case.

In fact, New York City has a planning process to insure community input, the Uniform Land Use Review Procedure (ULURP). The Atlantic Yards skirted the ULURP requirements because as a state entity the MTA is not subject to local land use regulations. The CBA, however, cannot be viewed as a substitute for a true planning process that includes community input. If a developer is proposing a project that will unduly burden the community, exacting benefits in exchange for tolerating these burdens is fine idea. Ideally, this would be done as part of a democratic planning process. When negotiated by private organizations, however, this is symptomatic of a flawed planning process. When CBAs are used in place of an inclusive planning process they run the risk of legitimating the very process they are supposed to counteract, planning and development that disenfranchises.

Mixed news from Pittsburgh

The good news in Pittsburgh is that construction has begun on a hotel that will complement the new Penguins arena, and because of the CBA's local hiring provisions, Hill District residents will have an advantage in getting the some 200 temporary and 100 permanent jobs.

The city council also introduced prevailing wage legislation this week. If passed, the wage requirement will apply to city contractors and some private developments receiving city subsidies. The proposal is facing typical criticisms that it's anti-business, and getting typical support from labor, environmental and faith-based groups that want to see an end to poverty wage jobs.

In less encouraging news, the grocery store deal put together with the help of $2 million from the Penguins CBA has fallen apart, apparently because of the store owner's health problems. While Pittsburgh United and city officials are optimistic that they will find another grocer, Hill District residents, who haven't had a grocery store in decades, may find themselves waiting that much longer.

More support for living wages at the Kingsbridge Armory

If yesterday's city council meeting foreshadows the city's ultimate decision on the Kingsbridge Armory redevelopment plans, the developer may be in for a disappointment. According to one account, "virtually the entire Zoning and Franchising Subcommittee, (which will be the only Council committee to hold a hearing on the project) grilled company representatives on the living wage issue." Another source called it "a major road block." 

The developer, Related Cos., and the Bloomberg administration have been fighting against the living wage requirement for months, but the Kingsbridge Armory Redevelopment Alliance, with strong support from Bronx Borough President Ruben Diaz, seem to have succeeded in persuading city council members not to let the project go forward without a CBA requiring a living wage. At the meeting, city council members contended that not including the wage provision would make the heavily subsidized project into "an economic exploitation project" and would "keep the neighborhood poor." Other council members expressed skepticism at claims that the project wouldn't be commercially feasible with higher wage standards. Diaz declared that "these jobs must be created in the right way. The old model, that any job is better than no job, is no longer acceptable."

The city council put off its decision in order to have more time to question city officials about the project. A public hearing will be held on Nov. 23, and a vote on the project will be made by Dec. 9.

Support growing for the Kingsbridge CBA living wage requirement

The city council is set to vote in December on the Kingsbridge Armory redevelopment proposal, and support seems to be growing for a living wage. In CBA talks between the Kingsbridge Armory Redevelopment Alliance and the Related Cos., the living wage issue has led to an impasse, but enough pressure from city council members might persuade the developer to agree to the living wage requirement or some sort of compromise.


In addition to support from the Bronx city council delegation--and the rest of the city council often votes in accordance with the area's council representatives-- Queens council member and comptroller-elect John Liu has come out in favor of the living wage requirement, emphasizing the inadequacy of low wage jobs and suggesting that Related has no grounds for compliant given the amount of public subsidy it has received.  Brooklyn council member Charles Barron has also said that he supports the CBA and the living wage provision, although he recognizes that this is an improper basis upon which to base his vote on the land use application. (This point was explained by Amanda Burden, chair of the city planning commission, a few weeks ago.)

U.S. Supreme Court to Decide Juvenile Lifer Cases from Florida

On Monday, the U.S. Supreme Court heard oral arguments in two consolidated cases from Florida involving life sentences for juvenile offenders: Graham v Florida and Sullivan v Florida. What makes these cases interesting, and thus important, is that the victims in the cases were not killed, yet the offenders received life sentences without parole. A published decision will follow soon.

Here in Michigan, pursuant to a network of statutes, a juvenile may be tried as an adult. Michigan also has a variety of offenses which call for life sentences. There are no juvenile offenders, however, serving life sentences for non-leathal offenses in Michigan.

The question before the Supreme Court this week was whether a life sentence should be flat-out banned for non-lethal juvenile offenders. Chief Justice Roberts seemed to be lobbying his fellow-justices to provide the juvenile offender the opportunity to emphasize his "youth" under an 8th Amendment "cruel and unusual punishment" analysis. Roberts' approach was an alternative to the outright ban sought by the attorneys for the youths. He seemed to favor a "proportionality" analysis.

Full analysis of Justice Roberts' approach to the argument in this case is found on the SCOTUS blog.

There are about 100 such youth sitting in prisons on life sentences for non-lethal convictions; most of them in Florida, which has approximately three quarters. A recent NYT article suggests that tourism in the state may have been a factor in so many harsh sentences handed down to youths committing serious crimes in Florida.

Professional court watchers sensed sympathy for the youthful convicts from some of the Justices. A few seemed to favor a constitutional prohibition of such sentences. The rationale for the ban is cruel and unusual punishment. A secondary argument is that such youthful offenders could benefit from habilitation.

Other (more conservative) Justices seemed less sympathetic, wondering where the age line should be drawn.

Without a clear majority on this issue, our prediction is that the court will decide the case down ideological lines, resulting in a plurality decision (i.e. no clear majority in the opinion, with several justices writing separately from their colleagues).

The case also calls into question the age-old tension between states' rights to define their own criminal laws in accord with local mores and sentiments, and the constitutionally guaranteed rights of all citizens, regardless of the criminal code of the state in which they are convicted.

We will await the high court's decision and keep you posted on the result along with some of the other cases we are following. In the meantime, if a juvenile member of your family has been accused of a serious crime, contact our firm to discuss your options.

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Two Day Jury Trial in Oakland Circuit Results in Not Guilty Verdict

Just before the holiday, I heard the words that a defense attorney craves; "not guilty". I was in a two-day jury trial before Oakland County Circuit Judge John McDonald. I think he's a great judge, mostly because I've never lost a trial in his courtroom. This one made four straight.

The odds seemed stacked against acquittal, as usual. The principal charge was assault with intent to do great bodily harm (less than murder). The second count, commission of a felony with a firearm, carried a mandatory two-year minimum prison sentence upon conviction.

My client was a middle-aged woman with no criminal record. The alleged victim, however, had done 15-years in prison for armed robbery. After an evening of drinking and socializing, the two (in an on-again off-again relationship) retreated to my client's home. An argument boiled over and two shots were fired from a revolver. One shot hit the victim in the foot.

At trial, my client took the stand and testified she shot the weapon toward the "victim" in self defense. The jury believed her, and she avoided the two-year mandatory prison sentence.

One of the keys to the acquittal was effective cross-examination of the so-called victim. He was made to look foolish, admitting to contact with and agression toward my client.

The case illustrates how the tough plea policies of the Oakland County Prosecutor's office can sometimes force a jury trial.  In this case, the client was most concerned about doing two years in prison. She could appreciate the seriousness of the gun shots, and the significant injury one of the bullets did to her former boyfriend. Willing to do some jail time on an assault guilty plea, she could not bring herself to sign-up for two years in prison. But that's what the prosecutor wanted her to do.  They did not offer to drop the felony-firearm charge.

So the defendant rolled the bones and exercised her right to trial. In this case, it was worth the effort. This client saved two years of her life.

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Students selected for Syracuse CBA job shadowing program

The Alliance of Communities Transforming Syracuse (ACTS) and Syracuse Alliance for a New Economy (SANE) have selected the first group of students to participate in the job shadowing CBA that was negotiated earlier this year. The students will shadow construction workers as part of a $1 billion school renovation project, giving them an opportunity to gain skills and gauge potential career paths.

Buffalo's CBA Coalition gets some support from electeds

Buffalo common council members Michael J. LoCurto and Joseph Golombek Jr. have thrown in their support for a Canal Side CBA. As reported in the Buffalo News:

Committee Chairman Michael J. LoCurto of the Delaware District said he supports such an agreement and will broach the issue with officials from the Erie Canal Harbor Development Corp. when he meets with them next week. LoCurto said he often fears that Buffalo is so "desperate" to create jobs, it doesn't always pay enough attention to the types of jobs that are created.

North Council Member Joseph Golombek Jr., one of the Council's most vocal opponents of the Bass Pro project, said he's taking a close look at the guidelines proposed by the Coalition for Economic Justice.

Child Support Reduction & Collection Requests Flood Friend of Court

The pain is inflicted on both sides of the fence in family court cases across the state.  For those paying child support, and for its recipients, the depressed economy in Southeast Michigan is taking a toll.   

As a recent article in the Detroit News makes clear, the Friend of the Court in counties accross Michigan are scrambling to field the flood of requests filed to reduce child support, or to enforce an existing support order.  Most of the parents seeking a support reduction are doing so because they've either lost their job or have been handed a pay-cut.

Child support in Michigan is calculated using an algorithmic equation known as the Michigan Child Support Formula.  This formula is based on three main inputs: the payor's income, the recipient's income, and the number of overnight parenting sessions for the payor.  A payor's support obligation is modifiable if there is a "change in circumstance" to justify the request.  One such justification is when a payor, through no fault of his own, loses a job or suffers a significant decline in income. 

In difficult economic times, county Friends of the Court (the administrative arm of the family court) experience an increase in the volume of motions from payor's and custodial parents alike, seeking relief from the financial pain.  In the case of a payor, the support automatically deducted from his paycheck may exceed more than half of his take-home, especially when that "take home" is an unemployment check.  Across town, the custodial parent is used to receiving a certain amount of support to help make ends meet for the children.

When a party files a motion to modify his or her support, the matter is reviewed by a Friend of the Court Referee (a quasi-judicial official) before it goes to the family court judge.  Most FOC Referees utilize support specialists; professionals trained in the application of the child support formula.  The court rules provide for the Referee to make a recommendation to the judge regarding whether the payor's support should be reduced or not.

Each November, as the year-end approaches, parties realize there are only a few weeks left to get their matter heard before the courts shut down for the holidays.  Many scramble to file motions, hoping they can obtain some financial relief.  Wanting to save money, they forego hiring an attorney.  When a party files a motion on their own behalf, however, it can take quite a long time before the FOC grants them a hearing.

One advantage to hiring legal counsel is that the attorney knows how to get a client's motion on the dockett by the end of the year.  In addition, family law attorneys know the many angles and tricky aspects of the support formula, and how to apply that formula to a variety of compensation packages and parenting schedules.

According to the Detroit News, child support arrearages rose by approxiamtely $113 million from 2005 to 2008, although the number of support payors decreased.  These support arrears are expected to increase as unemployed payors lose their state benefits.  The situation has attracted the attention of Congress, which is proposing legislation designed to extend unemployment benefits for child support payors.

If you or a family member need relief from an acute child support situation, contact our law firm for immediate relief.  Our firm handles dozens of such cases throughout the year.  Our service is excellent and our fees reasonable.

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