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The Oregon-Columbia chapter of the Associated General Contractors of America and a host of its members have amped up their opposition to Gov. Tina Kotek’s December executive order mandating union labor on state infrastructure projects.
In February, as the Oregon Journalism Project reported, the contractors filed suit in Marion County Circuit Court, saying Kotek had exceeded the bounds of her authority by dictating the terms of future state contracts.
Related: Contractors Sue Kotek Over December Executive Order
But the court does not have time to decide the February lawsuit before the March 31 deadline for implementation that the December executive order includes. For that reason, the contractors are asking the judge to stay implementation of the order with a preliminary injunction until the court can rule on the larger question.
“The practical consequences of Executive Order 24-31 are severe and immediate,” attorneys for the contractors wrote in a March 13 motion. “Absent injunctive relief, Executive Order 24-31 will cause irreparable harm to contractors and subcontractors, including contractor plaintiffs, who rely on state construction projects to sustain their businesses.”
The contractors argue that Kotek’s executive order exceeds her authority and that she is attempting to make law, a power reserved to the Legislature by the Oregon Constitution.
They further assert that the core issue is competition—or, if the executive order were to go into effect, the absence of competition.
“The basic objective of the competitive bidding process is to give all interested parties an opportunity to deal with the government on an equal basis—with the government reaping the benefits of full and open competition,” the contractors’ attorneys at Schwabe, Williamson & Wyatt write in their motion.
When Kotek issued the order, and in subsequent statements and an FAQ her office issued, the governor has said non-union contractors will still be welcome to continue bidding for state contracts under her executive order—but they’ll have to sign collective bargaining agreements with unions before getting state work. That’s a sticking point for some non-union shops. Kotek has also said she believes union contractors, a traditional base of support for her and the Democratic Party, are safer, faster and cheaper than non-union contractors.
A 2022 Oregon Department of Transportation Study cast some doubt on those claims. After reviewing the recent history of project labor agreements, the agency determined that union contractors were no safer but they typically were more expensive, a finding borne out by the agency’s having awarded two-thirds of contracts over the previous five years to non-union (i.e., open-shop) contractors.
Attorneys representing Kotek and the state at the Oregon Department of Justice filed a response March 17, opposing the contractors’ bid for an injunction.
The state disagrees with the contractors’ characterization of Kotek’s executive order and said the contractors had also failed to meet the standard of demonstrating how they would be damaged if the order goes into effect at the end of this month.
“Executive Order 24-31 is a policy directive to state agencies. It is not an attempt to ‘make law,’ as plaintiffs insist,” the DOJ attorneys wrote in their reply. “Plaintiffs also fail to meet their burden to show irreparable harm if the executive order is not enjoined.”
Marion County Circuit Judge Thomas M. Hart will hear oral arguments on the contractors' motion March 24 at 10 am.
This story was produced by the Oregon Journalism Project, a nonprofit newsroom covering rural Oregon.