U.S. Department of Transportation

Office of the Secretary of Transportation

Kevin Dayton Associated Builders and Contractors Golden Gate Chapter 4309 Hacienda Drive, Suite 500 Pleasanton, CA 94588

File No. FY 2004-450

Dear Mr. Dayton:

GENERAL COUNSEL 400 Seventh St., S.W. Washington, D.C. 20590

This is in response to your Freedom of Information Act (FOIA) request dated July 30, 2004. You requested copies of all correspondence pertaining to requests for exempting a construction project funded in part by DOT from Executive Order 13202, signed by President George W. Bush on April 6, 2001.

In accordance with the FOIA, 5 U.S.C. 552, the responsive documents are enclosed in their entirety.

I apologize for the delay in responding to your request. If you have any questions, please contact Jeff Davis at (202) 366-5531.

Sincerely,

!::~«( FOIA Officer ·.

Enclosures

PORT OF OAKLAND August 29, 2001

The Honorable Norman Minetta Secretary of Transportation c/o Associate Administrator for Airports 800 Independence Avenue, SW Washington, D.C. 20591

Attn: APP-500

RE: Amended Executive Order No. 13202 Port of Oakland Request for Exemption

Dear Mr. Secretary:

By this letter, the Port of Oakland requests an exemption from the application of Sections 1 and 3 of Executive Order 13202 pursuant to the April 6, 2001, amendment of said Order. This request applies to the Oakland International Airport's Airport Development Program ("ADP"}.

On June 30, 1999, the Port of Oakland, by and through its construction manager Davillier-Sloan/Parson's Constructors, Inc., entered into the Maritime and Aviation Project Labor Agreement ("MAPLA") with the Building and Construction Trades Department,

AFL-CIO; the Building and Construction Trades Council of Alameda County; and their affiliated international and local unions. The MAPLA became effective when approved by the Board of Port Commissioners for the City of Oakland on March 21, 2000. The MAPLA contains terms and requirements that are identified in Section l(a} of Executive Order 13202 in that it requires "bidders, offerers, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations."

Since its execution, the MAPLA has been incorporated into various contracts for work under the ADP that were bid and awarded prior to February 17, 2001, including improvement of runway and taxiway lighting, marking and control system, Oakland International Airport, Oakland, California, AIP #3-06-0170-19 awarded to Rosendin Electric, Inc. on January 23, 2001. The specifications for these projects require the successful prime contractor and its sub-contractors to be bound by the terms of the MAPLA. A copy of the Project Manual and Agreement for the Overlay of Taxiway D (South of Taxiway M) and Taxiway J, North Field, Oakland International Airport, Oakland, California A.I.P. 3-06-0170-22&23 is enclosed for your review. The MAPLA is located at Division 0, Document 00823.

530 Water Street • Jack London Square • P.O. Box 2064 Telephone: (510) 627-1100 • Facsimile: (510) 627·1826 •

• Oakland, California 94604-2064 Web Page: www.portofoakland.com

The Honorable Norman Minetta August 29, 2001 Re: PLA Exemption Request Paga 2

Based on these documents, the Port has satisfied the requirements for an exemption from application of Section 1 and Section 3 of Executive Order 13202. First, the Port had an agreement with one or more labor organizations as of the date of the Executive Order that contained the requirement set forth in Section 1 (a). Second, the Port awarded construction contracts subject to those requirements as of the date of the Executive Order.

The Port respectfully requests an exemption from application of Executive Order 13202 for its Airport Development Program. The Port anticipates the award of further contracts subject to the Executive Order and therefore for asks that you give this request your earliest ::~ntion

Vecy ~y you~''

cc: C. Foster

34349

T. Yoshitani S. Grossman

PHILLIP\~AMI, Pce•ident Boar~ Port Commissioners

£a:~~ Port Attorney

•/.

TO: Michael R. Hester

ADDRESS: McGuire and Hester 9009 Railroad Avenue Oakland, CA 94603

PORT CONTRACT NO. 2000-08-AJ

DOCUMENT 00510

NOTICE OF AWARD

_ :'9ftay of Taxiway D & J, North F"lllkl. 2000-08-AJ

Dated: November 17, 2000

PROJECT: OVERLAY OF TAXIWAY D (SOUTH OF TAXIWAY M) AND TAXIWAY J, NORTH FIELD OAKLAND INTERNATIONAL AIRPORT OAKLAND, CALIFORNIA A.l.P. 3-06-0170-22&23

The Contract Sum ·of your Contract is Four Million Four Hundred Sixty· Three Thousand Two Hundred Twenty-Three and No/100 Dollars ($4,463,223.00).

Three copies of each of the Contract Documents (except Plans) accompany this Notice of Award. Ten sets of the Project Manual and Plans will be delivered separately or otherwise made available to you.

Upon receipt of this Notice of Award, you and each of your subcontractors who employ workers in any apprenticeable craft or trade, shall apply to the joint apprenticeship committee administering the apprenticeship standards of the craft or trade for a certificate approving ycu and your subcontractors under the apprenticeship standards for the employment and training of apprentices, in accordance with section 1777.5 of the California Labor Code.

Upon commencement of the work, you and each of your subcontractors shall certify and make available for inspection payroll records on forms provided by the Division of Labor Standards Enforcement, in accordance with section 1776 of the California Labor Code.

You must comply with the following conditions precedent within twenty (20) calendar days of your receipt of this Notice of Award, that is by December 7, 2000.

1. You must deliver to Port three fully executed counterparts of Document 00520, Agreement. Each of the Contract Documents must bear ycur signature on the cover.

2. You must deliver to Port Document 00610, Construction Contract Performance Bond, executed by you and your surety.

3. You must deliver to Port Document 00620, Construction Labor and Material Payment Bond, executed by you and your surety.

4. under Document 00200, Instructions to Bidd~rs. including without limitation, Aon Form 1,

AA-35451106309/106371

00510-1

Aon Form 2 and Aon Form 3. All forms to be submitted unde~ the Project Insurance Manual shall correspond to the version in effect under the Project Insurance Manual provided to you by the Port

5. You must deliver Document 00630, Letter of Assent, executed by the Contractor and by all other "Contractors• (as such tenn is defined In the Port of Oakland Maritime and Aviation Project Labor Agreement (See Document 00823)) who are covered by the Project Labor Agreement

Further, you may deliver any requests for substitution within thirty-five (35) days of.the date of this Notice of Award, that is by December 22, 2000. ·

Failure to comply with these conditions within the time specified will entitle Port to consider your Bid abandoned. to annul this Notice of Award, and to declare your Bid Security forfeited.

Within ten (10) days after you comply with those conditions, Port will return to you one fully signed counterpart of the Agreement with the Contract Documents attached.

Authorized by Port Resolution No. 20435

Adopted: November 7, 2000

COPY OF RESOLUTION NO. 20435

cc: Hope Samaras Mimi lee

AA-354511063091106371

CITY OF OAKLAND, a municipal corporation, acting by and through its Board of Port Commissioners

BY: /J.,,,~. DAVID L ALEXANDER, Port Attorney

END OF DOCUMENT

00510-2

BOARD OF PORT COMMISSIONERS CITY ·OF OAKLAND

RESOLUTION NO. 20435

RBSOLtrnO!f RATXP'r?m AND APPROVXNG ADDBNDA TO PLAHS AND SRCZPl:CA'nOHS POR OVBRI.AY OP TAXZWAY D (SOlJ'rB OP '1'.lll:WAY K} AND TAXXWAY J, HOJt'l'B P:tBLJ), OA1a.AND DrrDNATJ:OHAL A:tRPOR.T, OA1CIJUID, CALD'OBNIA, BrrDU>Dm DA'l'B SBT POR RBCB:rnHG B:tDS TKBRBl'ORJ ARD AWARI>Dm COB'l'RAC'!' 'ft> llCGlT.tRB AND BBS'l'BR, n%DlG '1'BB: M&OtJH"l' OP BOHDS, RBJ2C'l':tHG ALL O'l'BBR ams AND D:tRBC'!':mG 1tS'l'DRH' OP BID BORDS TO B:tDDBRS.

RBSOLVBD that the Board hereby ratifies and. confirms and approves Addenda Nos. 1, 2 and 3 to the plans and specifications and other· provisions relative thereto filed with the Board and described in Agenda Sheet Item No. 145, dated November 7, 2000, for overlay O:f Taxiway D (Sout,h Of Taxiway II) And Taxiway J, Horth Field, Oakland IAte:r:national Airport, Oakland, CaU.forni.a; and be it

Pt:JRTBBR RBSOLVBD that the Board hereby finds and determines that the initial omission of the federal certification/disclosure forms by McGuire and Hester, was a minor irregularity that is waived pursuant to Section S (e) of Port Ordinance 1606, and did not involve price, time or changes in the work and that all other bidders have waived any right to protest by failing to submit a bid protest within the time pernU.tted; and be it

P't'JR'l'HBR RESOLVED that the Board of Port Commissioners hereby awards the contract for OVerlay Of Taxiway D (South Of Taxiway M) AEld Taxiway J, North Field, Oakland International Airport, Oakland, California, to ldcGu.ire aDd He•ter, a California corporation (herein "Contractor•), as the lowest responsible bidder, in accordance with the terms of the bid received October 17, 2000; and be it

303'3

At

#OJdB&R DSOLVl:D that a bond for the faithful performance of the work in the amount of $4,463,223.00, and a bond to guarantee the payment of all claims for labQr and materials furnished ·and for amounts due under the Unemployment Insurance Code, in the amount of $4, 463, 223. 00 shall be provided by the Contractor as prescribed by applicable laws and regulations . and the contract specifications; and be it

#Uk"rm RSSOLVBD that the procedure prescribed by applicable laws, regulations and the contract specifications shall be taken for the execution of said contract; provided, however, that said contract shall not be binding or enforceable against the Port unless and until it is approved in writing as to form and legality by the Port Attorney; and be it

P'UldH&k RJIBOLVBD that this project will be covered by the provisions of the Maritime and Aviation Project Labor Agreement ( "MAPLA") , and be it

P'DRTBBR RSSOLVBD that the other bids received for said contract are hereby rejected and the bid security accompanying said bids shall be returned to the proper persona.

a regular meeting held lk>vember 7, 2000

Passed by the following vote:

Ayes:

Noes:

Camdssioners Ayers-Johnson, Protopappas, Scates, Ta9ami, Uribe and President ltraaer - 6

Mone

Absent: Commissioner liang - l JD3U

APP-500 --....,N~-

fadlinl a.gists/Vol. 86. No. 36/Thunday. February 22. 2001/Ptesidential Doc:muaas llaz5

Presidential Documents ·

Preservation of Open Com.petition and Govt!!l'IUD8l'lt Neutrality Towards Govaumant Coatractars' Labor Relations on Federal and Federally F11Rded Construction Proiects

By the authority Y9Jted in me u Presiclmt by the Ccmtitution anci laws. of the UJ:dted States of Amarica. ind.uctins the FedBal Property and Adinini&­trative 5erYices Act. 40 U.S.C. 471 et s.q.; aad iza order to (1) promote mid ezwae opea COJllp8titiml Oil Federal and &tderally Amded or ulistad c:oastructkm. pro;.ctsi (2) maUl.taiza ~t DeUtrality towards eo... mmt c:outtactors' labor .r.latiaae cm Federal and fedcally funchld or lllSisted comtrW:tiau projllcts: (3) :reduce comtiact1on com to the Fadcal Gcmament and to the taxpayers; (4) expand job opportuDides. especially ior small and disadvu.tapd bt•tinesaas; ad (5) prneot diacrim1natiml apinst GoV'lftlw met COD1rec:tGa Qf their employaes baaed a.pcm labar afftJiatioa, or Jack thereat thereby promotmg the ecoaomicaJ. DOUdilcrimiDatmy, .and ~eat admimstration ad campletion of Fedcal end Warally funded or usisted·

·. cmutruction pzojects, it is hceby ozdered that: .

SectiGa t. To the extant per:mitt&d by law. any exec:uttve ~ •wvdina my comtructicm c:antnlCt after tha data af this Older. or obDptmg &mets pursuant to 5UCh a contract. shall msun that ueither the awud!Qg Govmi­mea.t authority nor my camtrudiou znanapr Kting on behalf of the CcM:m­m.eD.t shall. in its bid specifications~ p:oject agreements. or other caa.trolliug dacuments:

(a) Require or pn>hibit bidders .. offarors. contractars, ar ~vactars to enter into or adhere to agreements with one or mcxo labor mpnizations. an th.a same or other reW.d caa.struction pi"Oject(s); or

(b) Otherwise disaiminate apinst bidden, o&ran, coarcactors. or wb­com:ractors for becoming or raiPmag to become or remain. si~ or otherwise to adher:e to 8@l8ermmts with one or DIAn labor Olpllh:atiou. an the same or other related constrQctiml pro;.ct(.tJ.

(c} Nothing m this !ledioD shall prohibit amtracton or subcouttactars from 90luutarily entering illto agreements descn'becl in subsec:timl (a}. Sec. 2. Contracts awarded before the 'date of this order, ad subcnatncts awarded S,~t to such COtltracts. when.ewer awarded. ablll not be ao•-emed by onier.

Sec.. 3. To the extent permitted by law, any executive apncy issu..mg graa.ta, providing ftnaodal assistance. or entaria; into cooperative apwmesats for coutnu:tian projects, shall emun: that neither the bid ~ou., project agreements. J:lOr other controlling documents for ~Oil CUDbdl awarded afttr the date of this order by recipimtl of grants gr .fiumciaJ ~ or by parties to cooperatin agreements, .DQf those of my construe· lion manager aamg on their behalf, shall contain any of the requirements or prohibitions 1et forth in section l(a) or (b) of this order.

Sec. 4: fn ~e event that an awarding •llthmity, a recipient of grants or fitumcial assistance, a party to a cooparatift agreeznait, or a CQDStntctioli manqer acting on behi.lf of the foregomg, performs ill a manner contraiy to the. provisions of sections 1 or 3 of this order, the exec:atlve agency ~ the C011ttact, grant, or 188.iJtmce shall take such actioA, consistmt with law and regulation. as the agency detemiines UUIY be appropriate.

l

l:i:i 1 , ,,1'0•1

,. ·gPM A?P-500 ........... t..'J. .., ••.

llZZ& federal Register/Vol 86, No..Jal~ • .Ftbmary u,.-~/PWadaJlti•J· hocumCDts

iflt Doc. Ot-4522

l'llo:d OZ~\-01: 11:14 .uaJ llilliq CllG. llli-4\-P

Sec. 5. (a) ni8 head of ui cmcutive ·.=, may exampt a .panic:War· prajec:t. comract, subconttac:t, put. or ~ apeem.ent &am tbs~ of my or all of the pruwisicms of Md:iam 1 and 3 of this ant... if the aa-cy haad B.uds that special ~ requint an txmspti.011: in order to avert an imtDi»Nlt threat to publlc health ar safety or to serre the .aaticmal secu.aty.

(bJ A 1huliua af .. spedlll c:ircwmtam:es" mldar sectioJ1 5{a} may not be bued OIL the posdhility or prumce of a labor dispute com:amiDg the use of c:ontractors er ~ whO an uonnpmm- to.. ar otbarwise do not adhere to, ....m-ts with oae or man 1abar orpnizatiam. or com:m:niD& em.ployw ml tbe project who ue llOl members of or affiliated -with a labOr arganizati<m. · Sec. 6. (a) The tll1:m .. c:oast.ruc:Uo.u c:anuact.. as used m this -- mans aey canttact far the coutnlCtiaD. prhabilitatiou. llteraticm. casrH1tSion. e::ictesl· sion. or 18pair ofbuildmgs. JUabWllJS, or other im.provameat& to r-1 propcty.

(b) The teun "executi9e as-ncY'' as used ill th.is ordar shall have the same meaning it has in 5 U.S.C. 105, excludfag the Gen.nl .Accous:itmc 01fice.

(c) The rerm .. labor arpnizatian.. a used m this order shall ban th. same meaning it bu in 42 0.S.C. 2000e(d). Sec. 7. With ~ to Ftderal cantncta. wltbiD 80 days of the- isswlm:»-. of this ordc, the Fedlnl Acqw.ition ~ Coulldl shall tab whmYc action is required to ~ tb8 Fecitnl AcqUisitiou .a.gulation m order to implemcmt the pro~ of this arct ... S.C. a. M it .:ralata to project agiee.mwnts. E:ceca.tiTe Order U836 of Februry 1. 1993, which. amq otber thmp, nvolmd Euu11in Cider 1%818 of October 23, 1992, is rnObd.. Sec. 9. The P.hisideuttal M8IDOlallclum gf ,_. s. 1997' mtitJed --u. of Pioject Labor AgrMl!lml1S far Federal Comtructfca ~ (the """'mu>' ranaum.··1. is alsO Je90kad. • Sec. 10.. The ~ Of l'XllOlthre ciepartmenb aad. ...,ac:ies s&all 1'89Dka expeditiauslJ any criaa, nilea, ~. gmdel.tn•. or p6&i• imple­menting or enfmdng the Memmuclum or Exacutin Ords 12831 of F~ 1. 1993, u it relates to project agreements. to the oteat camistmat with-aw. . Sec. 11. Th.is order is intmdad only to improve !ha mtemal ~ of the ~executive branch - is DOt intelldecl tD, nor doet it.· ~ my right to administrative O!' judicial reYiew. or any rilht, whether mbdutiYe or procadural. ~~ able by any puty ap1nst cbe United States, its .gmcies ~ i.OStnlmantabues. lts offican or employees, or my other persmi. . .

THE WHnE HOUSE. February 11 • . 2001

(

s 10-020814-043

-·:~APR. l l. 200 t:. 3: ZllPl-...:.:.::.::APP-500.-----._IC. 34 78 . P. 4/7 .. - ,

> > > > >

>

>

> > DODALrI'Y > TOWAJmS > > ON > FEmERAL ARD > >

otfice of Che Pres• Secre1:atjo

April '· 200l.

Nf.BlGlMIDl't TO BXBc:urnz ORDER 13202,

> By che a.u.thori ~Y vested iD me u Preaida.uc by the Conat:.ieutiau and > the > laws of the t111ited Scates of America., including Che Federal Property &ad > Admini5tratiY8 Serr.i.cea Act, 40 O.s.c. "''l. ec seq., and in order co (1) > promote and ensure open c:cmpeciticn on Fedel:al and f ede:rally fundad or > assisted c:cmatruction p.rojec:ta; {2) •inbli.n C:OV.n:amea.t iiau.cral.it:y towardl > <:over:an.nt eCDtractors• l&bcr ~aticma on federal and federally fuz:u!ad or > u:sisud eonstruceion projeces; (3) :educe c:cmac.ruc:tion coaca to the > Federal ~t and to the ~-payers: (4) expand job apport.WU.cies, > especially for small and diaadvaJ:i.taged bwsineaaes: (S) pre'Vent ..., ~~a--.\-~-,~ ... :-- __ ... .: __ ... --.... - ... ~ ~

. 'l'P'¥iiilll -~IJA. H .. 'uut o. ur..a . .11.rr-ouu NO. ?/':i

'~ ,. :::.&IX:lr affiliauou or lac:k ~~~; and ''~ pnvent !:he illaf~icimlc:y c:.nac · - -/' .

> •Y resul~ tre9 'Clie d.israptiaa of a previcmsly eat.&bli.slled.·ccmtnc::tual ,. re1acio.aabip iZ1 p~icul.ar cu .. ; l:.benby p%CllllOting ~ eccmc:iadcal. ,. z:ioadiacrimi.Datory. aDd e.ffic:itmt ac:llU ni aeration &Del c:omplecim or Federal ,. al1d federally fi.mded er assists ccmatructicm. projects, ic is heral:ly ,. ordered thac Executive Order 23202 of Fllbxuazy 17, 2001. is amended by ,. •dding co sectic:m 5 of cmat order che following maw subaect:iOD:

> ,. (3) The head of an exec:uciire agenc:y, upcm appl~catiOll ~ an avard.:l.Dg > au1:l=rity. a recipitmt of graiits or i.i.Dancial usiau.ACe, a party to a ,. cccperative agz"Hment, or a c:cmac:ucticm .au.ager acting on behalf of the :> eo:-egoi:og' may exea.,t a. partic:ular P=jec:C fnm the ~t· of my or > all o~ the provisiana ot aecticma 1 and 3 of t:bia oxder. if the agenc:y > head > f;i.Dds: ti> t:h&c the ,. > >

> > > > > forth > > >

> > >

> > > >

aW&%ding au.ehority, rac:i.pienc 0£ !JX'aDts or finallc:i&l usiatance, party co a cooperative &greemeDI:, or ccma~ct:iau ~r ac:tillg on behalf of t:be foregoinsJ bad bsv.ed or waa a party co. as of the dace of thd..a order, 014 .-ped.tic:.t:icaa, projecc agxwca, agrae-menca with ane or eore labar orgardzaticm.e, or oel2er c:ontroll.izlg doC:ulnent. vi.di respect t:o tbac part:icul.ar proj •~, wb.i.c:h cc:muiDed any of the nquir-.its or prohibi?:.iOll.$ aet:

1.D sec:d.oria 1 Ca} or (b) ~ this ordar; Giel (ii) tbat cme or more coiasc:ructiOll ccmtract:a subject to euch requ.ire.enta or prab:lbicions had been awarded as of tbe date cf Clli$ ~.

mKm3 If. Bt188

> THE NBITE aoasx. > April '· 2001. >

> > > > > > >

> >

t # t ··:.

~Y' -~. - ·-

-~-> -·~-..;-·_. -.... :

-OJECT MANUAL. FOR

CONSTRUCTION OF BERTHS 57/58 CONTAINER ·wHARF,

FILL AND .MIDDLE BARBOR SHORELINE MODIFICATIONS,

VISION 2000, OAKLAND, CALIFORNIA

March, 2000

PORT OF OAKLAND TdE BO,tliD 01' !'ORT COMMISSIONERS

ROOM 629 ~~O WATER STREET

C).AKLAND. CA 9•607

---~-------------~--~--------------~------·-----

I i

. ·.

U.S. Department of Transportation

GENERAL COUNSEL 4GO Seventh SI.. S.W. Wash:nglon. D c. 20590

Oft1ce of Phe secrelary or Transportolion

SI0-030911-0JJ September 11~ 2003 CONTROL NO

ACTION M.E~I RANDUM TO THE SECRETARY

From: ( __ -_-. _· os __ a_ ~P:iA~~eputy General Counsel "' . '. . 02

J

Prepared by:

Re:

Terence W. Carlson, Attorney-Advisor, Office of lhe Assistant General Counsel for Environmental, Civil Rights, and General Law, X69152

Port of Oakland's A vialion and Maritime Capital hn1>ro\'ement Program Project Exemption Request From Executive Order 13202, Preservation of Open Competition and Government Neutrality Towards ('.r0vernment Contractors' Labor Relations on Feder.ii and Federally Funded Construction Projects

ACTION REQUIRED

On April 6. 2001. President Bush_umendcd Executive Order !EO) 11202 In pc•rmil 1hc head of an executive agency to exempl a panicuhir project from the requirements of EO 13202 concerning Project Labor Agreements (PLAs) if the project had bid specifications. project agreements. agreements with labor orgunizations. or other conirolling documents with PLA requirements as of the dale of the Order (February 17, 2001) and hm.l awarded one or more cons1111ction contracts subject to PLA requircrnenls. The granting of the exemption would permit the use of PLA requirements on future construc1ion contracts on the ongoing project. Frnnk Kiang, President, Board of Port Commissioners, Port of Oakland, requested that you cxempl the Port of Oakland's Airpo11 and Maritime Development C.1pital lmprnvemcnt Progrnm (CIP) Pr~ject from the requirements of EO 13202. On April 15. and June 5. 2003, lhe Pon of Oakland submilled lcners. which answered sevcrul qm.~stions concerning its requesl. We have reviewed the request with FAA and MARAD officials and recommend approval of the requesl as the CIP Pmjccr meets the criteria in the •amended Order.

SUMMARY

A. Executh'e Order 13202

On February 17. 2001, lhc President issued EO 13202, concerning project labor L1grecmcn1s on Federal and Federally funded construction projcc1s. Under Section 3 of

EO I 3202, DOT mus1 ensure tha1 neither rhc hid specifications. project agreemenls, nor other controlling documents for DOT-assisted construction contracts awarded aflcr the date of the Order by recipients of financial assistance. shall require or prohibit bidders. offerors. or suhcontractors lo enrer inro PLAs. On April 6, 2001. President Bush nmemJcd EO 13202 to permil exemptions from the require111cn1s of EO 13202 for ongoing projects, which meet the t1bovc-sta1ed criteria. We advised the White House Counsel's Office in March 2001 that there were appro,..imalely ten DOT projects wirh pre-existing PLAs for which we anticipated that the recipients mighl seek an exemption from the requirements of EO 13202. You grnmed the !vfossachuscus Turnpike Aulho1ity's Central Ancryffunnel Project exemption request on Ap1il 20. 200 I. You granlc<l lhc Port of Seattle's Seaulc-Tacoma lntemationul Airporr Mo<lemi1.ation Project exemprion request on May IO, 2001. Finally. you granted 1he Sacnm1en!O Rcgion:.il Transit District's Sot1rh Sacramento Light Rail Extension Project exemption request on August 16, 2001. You did not approve rhc Veneric Tribe of Alaska request for an exemption in August 200 L because the request did not meet the criteria of the Order.

.-,

The Building and Trades Department, AFL-CIO, chullcngcd rhe lcguli1y of EO I 3202 with respect lo 1he Wilson Bridge Project and ocher non-DOT Federally assisicd projcc1s. On November 7. 200 I. the United States District Court for the District of Columbia hdd Iha! the President lacked constiturional and statutory autho .. i1y lo issue EO I 3202 and Ihm the National Labor Relations Act (NLRA) pre-empted EO 13202. The Districl Court permanently enjoined enforcement of the Order. On July l 2. 2002. the United Srnlcs Courl of Appeals for the District of Columbia Circuit reversed the District Court llnu v.icated the injuncrion. The Court of Appeals held llrnt the President hud uutholity under Anicle II of lhc Constitution to issue EO 13202 und th<1t the EO is not preempted by the NLRA. Since the Court of AppeaJ~ decision. the Order is in full leg.ii effect.

Section 5(c) of EO 13202, as amended. pcrmirs the head of an E~ccurive Agency 10

exempt from the requirements of the Order a particular pn~jcct which hud bid specifications. project agreemenrs, ~agreements with lubor orgunizations, or olhcr conlrolling documents with PLA requirements as of the effective date of the Orucr and h~d awarded one or more construction contracts subject to PLt\ requirements as of the dare of the Order.

B. Port of Oakland's CIP

The Pon of 0Hkland's Aviation and Maritime Division CIP meets the above-seated criteria. The Port of Oakland cxeculcd a PLA applicable lo specific<1lly !isled CrP construclion work and other expansion and mo<lcmi;-.<Hion CIP construction work subject to bidding or f(Jr which solicitutions for proposals from conrrnclors or subcontrnctors hnvc been issued or wiII be issued b}' December 3 l. 2004. 'fhc PLA became effective when approved by the Board of Port Commissioners on March 21, '.WOO. The Board had. approved a predecessor PLA. Vision 2000, on August JO. I 999. As a rcsuh of subsequent litigarion concerning lhe scope of 1hc PLA. an arbilrutor's award of May J 4. 2002. and a subsc<1ucnt sclllemem agreement extended the effective d<tlc of the PLA to the other CIP construction work to December JI. 2006.

The Port of Oakland awarded numerous CIP construction contracts subject to the PLA 's requirements prior 10 February 17. 200 I. For example, the Port awmdccJ 1hc prime contract for rhe Jmprovcmen1 of Runway nnd Lighting. Marking :.ind Control Sys1em. Oakland International Airpo11. to Roscndin Electric, Inc .. on January 2.1.1001.

The only <1ucs1ion on the Pon of 0<.1kland's exemption request centers on the meaning of "a particular project" in Scc1ion 5(c) of EO 13202. The Order docs noL define the term. One could define the term na11"owly as euch Jiscre1c clcmcni or lhe Port of Onk!am.l's CIP and only grant the exemption to 1he individual elements of the CJP that awarded one or more construclion contracts suhjcct to PLA requirements as of the date of the Order. The PLA itself uses the lcrm "projee!'' in both lhc nanuw and broad sense. In 1\rtidc ff, Scope of Agreement. !he PLA refers to projects covered by the Agreement. Yel. in Article I. PuqJOse. the PLA states, "For purposes of this Agreement. these clements of work (Maritime an<l Avialion Division CIP). and major maintenance work or the Port':; Maritime an<l Avialion Divisions, will be co!lcclivcly known .is the Project." Throughout the PLA, including Article II. Scope of Agreement. the multi-year, multi-clement comprehensive Aviation and Maritime Division CIP is referred to as the "Project".

We conclu<lc 1hat the mm:h stronger argument is lo consider the Pon of Oakland's CrP as one particular project. This is consisLent wilh how 1hc PLA considers the overall Port of Oaklund CJP. Importantly, when we advised lhc White House Counsel's Office in March 2001. of the approximately ten DOT projects. whi<:h might apply for an exemption from EO 13202, we included the Port of Oakland's multi-ycur, multi-clement CIP as one particular project. All ten DOT projects. with the C'xccption of the minor $1 million Vcnhe Runway Project in Vernie. Alaska, were mul!i-y~ar, multi-element comprehensive construct ion efforts. such as Massachuscns · Central Ar1cryff unncl Proje1:1. nn<l Pnrt of Seunle's Scal!le-Tacoma lntemation•tl Airpo11 Modernization Project. This approach is consis1cn1 with the exemptions to EO 13202 Iha! you have authorized for the Central Arteryn·un11el Project. the Pu11 of Scat1lc Airport Project. mid the Sacramento Regional Transit District's South Sacramento Light Rai I Extension Project. The PLAs and their scopes in those three projects were all very similar 10 rhc Pon of Oakland's.

UACKGl~OUNO

The Office of General Counsel has had the lead responsibility in the Depanmc!ll on issues related to PLAs. FAA and MARAD arc 1hc operating auministrntions involved in the Port of Oakland's Avi:.llion and Mantimc Division CIP. We have reviewed th(• request with FAA an<l .MARAD officials and consulted wi1h FAA nnd MARAD officials in the drafting of the utt<ichcd letter and they concur.

RECOMMENDATION

We recommend that you sign the attachcu feller.

I.IJ&.~C..Wf.Y

APPROVED:

DISAPPROVED

COMMENTS:

DATE:

Atrnchmcnt

4

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U.S Department of Transportation

Federal Aviation AdmiDistration

APR 1 6 2001

Mr. Steven J. Grossman Director of Aviation Port of Oakland Oakland International Airport 530 water Street Oakland, CA 94607

Dear Mr. Grossman:

weateru-Pacific Region Airports Division

P.O. Box 92007 Loa Ange lea. CA 90009-2007

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~ 0 CJ"I

We understand that your airport, a federal airport grar..t recipient, may have construction projects affected by Executive Order 13202 of February 17, 2001 (Preservation of Open Competition and Government Neutrality Toward Government Contractors• Labor Relations on Federal and Federally Funded Construction Projects) . We wish to advise you that you may now request that the Secretary of Transportation exempt a particular project from the provisions of the Executive Order.

We enclose a copy of the April 6th amendment to the Executive Order that authorizes the exemption. The exemption may be granted if the secretary finds that the federal airport grant recipient had issued or was a party to, as of the date of the Order, bid specifications, project agreements, agreements with one or more labor organizations, or other controlling documents with respect to the particular project, which contained any of the requirements or prohibitions in sections l(a) or (b) of the Executive Order, and that one or more construction contracts subject to such requirements or prohibitions had been awarded as of the date of the Executive Order.

If you believe that you meet the requirements for an exemption, you may address your exemption request to the Secretary of Transportation, and submit the request to the FAA Office of the Associate Admi~trator for Airports, attention APP-500. Your request should includel.a.Ycover letter requesting the exemption, and explaining the reasons why your particular construction project meets the requirements for an exemption.~µ should attach relevant supporting documents, i~ing the relev~roject Labor Agreement and any amendments there~id specifications, and/or other controlling documents, and the construction contract/a awarded as of the date of the Executive Order.

Should you have any questions on this matter please contact Mr. Barry Molar, Manager, Airports Financial Assistance Division, 202 267-3831.

Sincerely,

~~c!,&~ Herman c. Bliss Manager, Airports Division

Enclosure

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s l 0-020814-043

PORT OF OAKLAND August 6, 2002

The Honorable Norman Minetta Secretary of Transportation c/o Capt. William G. Schubert Maritime Administrator U.S. Department of Transportation 400 7~ Street, SW Washington, D.C. 20590

U: Amended Executive Order No. 13202 Port of Oakland Addendum to Prior Request for Exemption

Dear Mr. Secretary:

In a letter dated April 16, 2001, the Department of Transportation, through the Federal Aviation Administration ("FAA"), advised the Port of Oakland ("Port•) that Executive Order 13202 had been amended to authorize exemptions under certain circumstances. A copy of the letter is enclosed. In accordance with the FAA advisory, on August 29, 2001, the Port requested an exemption from the Executive Order to its Airport Development Program, but has yet to receive a reply. A copy of the Port's request is enclosed. By this letter, the Port seeks to amend its August 29, 2001, request for an exemption to embrace all of its Maritiffie-·c-onstruction activities. As explained below, the Port's Maritime construction program also satisfies the requirements for an exemption.

On June 30, 1999, the Port of Oakland, by and through its construction manager Davillier-Sloan/Parson's Constructors, Inc., entered into the Maritime and Aviation Project Labor Agreement ("MAPLA") with the Building and Construction Trades Department, AFL­CIO; the Building and Construction Trades Council of Alameda County; and their affiliated international and local unions. The MAPLA became effective when approved by the Board of Port Commissioners for the City of Oakland on March 21, 2000. The MAPLA contains terms and requirements that are identified in Section l(a) of Executive Order 13202 in that it requires "bidders, offerers, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations."

Since its execution, the MAPLA has been incorporated into various contracts for work to serve the Port's Maritime Division that were bid and awarded prior to February 17, 2001, including Construction of Berths 57/58 Container Wharf, Fill and Middle Harbor Shoreline Modifications, Vision 2000, Oakland, California, awarded to Berths

530 Water Street • Jack London Square • P.O. Box 2064 Telephone: (510) 627-1100 • Facsimile: {510) 627-1826 •

• Oakland, California 94604-2064 Web Page: www.portotoakland.com

40010

The Honorable Norman Minetta Re: PLA Exemption Request August 6, 2002 Pa e 2

s 1 0-020814-043

57/58 Constructors, J.V, on June 20, 2000. The specifications for these projects require the successful prime contractor and its sub­contractors to be bound by the terms of the MAPLA. A copy of Volume 2 of the Project Manual for Construction of Berths 57/58 Container Wharf, Fill and Middle Harbor Shoreline Modifications is enclosed for your review. The MAPLA is located at Division 0, Document 00823.

Based on these documents, the Port has satisfied the requirements for an exemption from application of Section 1 and Section 3 of Executive Order 13202. First, the Port had an agreement with one or more labor organizations as of the date of the Executive Order that contained the requirement set forth in Section l(a). Second, the Port awarded construction contracts subject to those requirements as of the date of the Executive Order.

The Port respectfully requests an exemption from application of Executive Order 13202 for projects which serve the Maritime Division. The Port anticipates the award of further contracts subject to the Executive Order and therefore asks that you give this request your earliest attention.

Enclosures

cc: T. Yoshitani J. Bridges

Very truly yours,

~~-··"

FRANK KIANG, President Board of Port Commissioners

DD;~~ Port Attorney

40010

PORT OF OAKLAND August 29, 2001

'The Honorable Norman Minetta Secretary of Transportation c/o Associate Administrator for Airports 800 Independence Avenue, SW Washington, D.C. 20591

Attn: APP-500

RE: Amended B:xecutiv• Order No. 13202 Port of Oak.land Reque•t for B:xemp~on

Dear Mr. Secr~tary:

SI 0-020814-043

By this letter, the Port of Oakland requests an exemption from the application of Sections 1 and 3 of Executive Order 13202 pursuant to the April 6, 2001, amendment of said Order. This request applies to the Oakland International Airport's Airport Development Program ("ADP").

On June 30, 1999, the Port of Oakland, by and through its construction manager Davillier-Sloan/Parson's Constructors, Inc., entered into the Mari time and Aviation Project Labor Agreement ("MAPLA") with the Building and Construction Trades Department,

AFL-CIO; the Building and Construction Trades Council of Alameda County; and their affiliated international and local unions. The MAPLA became effective when approved by the Board of Port Commissioners for the City of Oakland on March 21, 2000. The MAPLA contains terms and requirements that are identified in Section l(a) of Executive Order 13202 in that it requires ~bidders, offerers, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations."

Since its execution, the MAPLA has been incorporated into various contracts for work under the ADP that were bid and awarded prior to February 17, 2001, including improvement of runway and taxiway lighting, marking and control system, Oakland International Airport, Oakland, California, AIP #3-06-0170-19 awarded to Rosendin Electric, Inc. on January 23, 2001. The specifications for these projects require the successful prime contractor and its sub-contractors to be bound by the terms of the MAt>LA. A copy of the Project Manual and Agreement for the Overlay of Taxiway D (South of Taxiway M) and Taxiway J, North Field, Oakland International Airport, Oakland, California A.I.P. 3-06-0170-22&23 is enclosed for your review. The MAPLA is located at Division 0, Document 00823.

530 Water Street • Jack London Square • P.O. Box 2064 Telephone: (510)627-1100 • Facsimile: (510)627·1826 •

• Oakland, Califomia 94604-2064 Web Page: www.portofoakland.com

...

'1'h• Honorable NoJ:'lllln Minetta Auguat 29, 2001 Re: PLA Exempti.on Requeat Page 2

s 10-020814-043

Based on these documents, the Port has satisfied the requirements for an exemption from application of Section l and Section 3 of Executive Order 13202. First, the Port had an agreement with one or more .labor organizations as of the date of the Executive Order that contained the requirement set forth in Section 1 (a) . Second, the Port awarded construction contracts subject to those requirements as of the date of the Executive Order.

The Port respectfully requests an exemption from application of Executive Order 13202 for its Airport Development Program. The Port anticipates the award of further contracts subject to the Executive Order and therefore for asks that you give this request your earliest atTntion.

cc: c. Foster

34349

T. Yoshitani S. Grossman

Very tr1:y yours,

PHILL~~I, President B°]Y;;;t Commi.ssioners

DAVID L. ALEXAND Port Attorney

Mr. Frank Kiang

-- - ------- -----------THE SECRETARY OF TRANSPORTATION

WASHINGTON, D.C. 20590

September 22, 2003

President, Board of Port Commissioners Port of Oakland 530 Water Street Jack London Square P.O. Box 2064 Oakland, California 94604-2064

Dear Mr. Kiang:

This is response to the Port of Oakland's request for an exemption from the requirements of Executive Order 13202, as amended, "Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally funded Construction Projects." as amended, for the Port of Oakland's Aviation and Maritime Capital Improvement Program Project (the Project). The Port based its request on subsection S(c) of the Order.

Subsection 5(c) permits me, upon receiving an application from a proper party, to exempt a particular project from the requirements of any or all of the provisions of sections 1 and 3 of the Executive Order. if:

(1) as of February 17, 2001, there were bid specifications, project agreements, agreements with one or more labor organizations, or other controlling documents with respect to that particular project in effect (that contain any of the requirements or prohibitions set forth in sections l(a) or (b) of the Order), and

(2) one or more construction contracts subject to such requirements or prohibitions were awarded as of February 17, 2001.

From your letter, and our records, I have determined that:

1. The Port of Oakland entered into a project labor agreement (PLA) with numerous local unions applicable to the construction of the Project on March 21, 2000.

2. The PLA and implementing bid specifications require the application of the PLA to all construction contracts for the Project. In the absence of granting an exemption, this would be inconsistent with the provisions of sections l(a) and l(b) of Executive Order 13202, as amended

2

3. The Port of Oakland has awarded numerous construction contracts for the Project subject to the PLA as of February 17, 2001. For example. the Port awarded the prime contract for the Improvement of Runway and Lighting, Marking and Control System. Oakland International Airport to Rosenclin Electric, Inc., on January 23, 2001.

For these reasons, I am granting the request to exempt the Project from the provisions of Sections 1 and 3 of Executive Order 13202, as amended, for all further construction contracts on the Project, to the extent that such contracts are governed by the PLA of March 21, 2000. This will avoid the prospect of new and variable labor rules at this late stage of Project development. Such changes could be a problem to administer and might result in

· labor difficulties. Such changes would also run counter to the expectations of all those working on the Project.

We have appreciated the Port of Oakland's continuing cooperation in resolving this matter. If you have any further questions, please feel free to call me or Mr. Mark McClardy. Acting Manager, Airports Division at FAA's Western-Pacific Region at {310) 725-3600, or Mr. Richard Walker, MARAD's Director of Intennodal Development at (202) 366-8888.