ABC National joined ABC of Michigan as they filed an amicus brief Jan. 24 urging the U.S. Court of Appeals for the 6th Circuit to uphold Michigan’s Fair and Open Competition Act in response to a challenge filed by construction unions. The act ensures nondiscriminatory procurement of state services in public construction.

“ABC of Michigan has long stood for maximum fairness and efficiency in the government procurement process, so that taxpayers are guaranteed the fiscal accountability they deserve on public construction,” said Chris Fisher, president of ABC of Michigan. “We prepared our brief in order to support Gov. Rick Snyder’s strong defense of the Fair and Open Competition Act, which was amended by P.A. 238 last year.” 

P.A. 238 is the government neutrality law adopted in 2012, after the 2011 law was invalidated by a federal district court judge in Detroit, pending the current appeal.

Representatives of organized labor have legally challenged only four executive orders or statutes enacted that guarantee government neutrality with regard to project labor agreements (PLA). In 2002, the U.S. Circuit Court of Appeals for the Washington D.C. Circuit found in Building Trades Dept., AFL-CIO v. Allbaugh, 295 F. 3d 28 (D.C. Cir. 2002), that Executive Order 13202, which was issued by President George W. Bush in 2001 and banned government-mandated PLAs on federal and federally assisted projects, was not preempted by the National Labor Relations Act.  In Sept. 2011, an executive order issued by Iowa Gov. Terry Branstad that banned government-mandated PLAs on state and state-assisted construction projects was upheld by a federal district court based on the precedent set in Allbaugh.  Appeals in both cases are exhausted.  In 2011, shortly after the district court ruling in Iowa, federal judges in Idaho and Michigan found government neutrality laws preempted by the NLRA.  The Idaho case is also being appealed to the 9th Circuit Court of Appeals.

The National Right to Work Legal Defense Foundation and the National Federation of Independent Business also joined in the filing of the brief. A decision is expected from the Court of Appeals sometime this spring.

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