A little over a week ago, a supermajority of the Kingston Common Council voted to override a veto by mayor Steve Noble which limited the kind of contractors who could bid for city contracts. Alders Michele Hirsch of Ward 9 and Drew Andrews of Ward 7 voted to support the mayor’s veto.
The vote followed a contentious pair of well-attended public hearings that on their face had pitted the interests of contractors who employed union workers against those who employed non-union workers.
The public hearings on the subject featured roomfuls of attendees, about evenly divided between union and open-shop supporters.
Business representative of Union of Operating Engineers Local 825 Michael Ham said the union-versus-non-union optics weren’t what it was all about. “That’s a narrative that was created through misinformation and fear mongering,” said Ham. “That’s not what this is, and I’m speaking on behalf of the union.”
Val Dwyer, president of open-shop contractor Arold Construction Co. Inc., the business owner who kicked the whole drama off, agreed with Ham.
“There were some people making accusations last night that this is anti-union. It’s not anti-union,” said Dwyer. “It’s inclusive, allowing everyone to bid.”
So then, what was it all about?
Apprenticeship opportunities
Since 2012, the City of Kingston has required contractors looking to bid on city contracts to have apprenticeship agreements in place to provide opportunities for workers wet behind the ears to gain on-the-job experience.
Apprenticeship is the path that tradespersons such as carpenters, electricians and plumbers must take. It places the value of praxis over the value of theory for those coming up among the ranks, looking to graduate to a level of artisanal competence known as journeyman and thereby renew the stock of local talent available to contribute to the needs of local projects.
The commitment to apprenticeship programs the city requires is in accordance with the state labor laws, which declare it the public policy of the State of New York “to develop sound apprenticeship training standards and to encourage industry and labor to institute training programs.”
To compete for contracts of $100,000 or more in the City of Kingston, contractors must demonstrate their support for apprenticeship programs by having a graduation rate of 30 percent over the last five years. Last October, the common council added language that contractors must now provide documentation “verifying a minimum of three trade-specific graduates per calendar year for the last five years.”
This is the language that made the vinyl party record scratch and stop.
Ten months later Dwyer appeared before the Laws and Rules Committee to make her case that that language added to the 2012 law was inadvertently expensive to the taxpayers. She came with records of bids she had obtained through Freedom of Information Law (FOIL) requests which she said demonstrated that the resolution, if it had been in effect 18 months prior, would have cost the city $1,709,586.
Dwyer explained that she used bids in which her company wasn’t affected so her position wouldn’t be construed “a self-serving thing.”
“I just happened to be somebody who lives in Kingston, that understands the issue at hand,” said Dwyer. “The law last year was really passed with good intentions, but it had some unintended consequences. They didn’t realize that they were shutting out like, anywhere from 40 percent to 80 percent of competition.”
Dwyer argued that small businesses couldn’t possibly hope to meet the yearly graduation requirements.
“Arold didn’t have to shut its doors or anything,” said Dwyer, who acknowledged her firm wasn’t particularly hurt by the new language.
Dwyer explained that for her it was the principle of the thing.
“We’re the people sponsoring the Little-League teams, we’re the people sponsoring the basketball teams. So, you know, to have the city shut the door in our face and invite contractors in from Orange County doesn’t sit well with me.”
The implication has been that bigger established businesses with large operations will have the worker base sufficient to provide the graduation rates at the annual frequency the city provides, while small operations or those just starting out couldn’t possibly compete.
Ham said that was not the case.
“By their own admission, on video and YouTube and everything, Arold stands up and says we have 60 employees,” said Ham. “Does that sound like a small business to you?”
Ham gives the union side
Ham gave examples of local small businesses.
“Baker Brothers, Kingston Equipment right here in Hurley. New York. Local contractor. Three guys. They have the apprentice program. Andrew Everhart. Everhart Construction , Route 28. Right before the Woodstock turnoff. One employee, Apprenticeship programs. Charlie Merritt. Merritt Construction. Saugerties, New York. Two employees. Apprenticeship.”
There’s a catch. All the companies mentioned by Ham utilize the union-hall hiring system. Small contractors without their own apprenticeship program, or lacking the number of apprentices required at the yearly graduating rate required, pay the union hall to come into compliance, utilizing either their apprentices on the job or their own existing workers.
Arold Construction is an open shop, a place of employment at which workers are not required to join or financially support a union as a condition of employment.
To maintain compliance with state apprenticeship policy, Arold is part of a 150 member open-shop statewide consortium of building and highway contractors who pay for apprenticeship compliance through manager Merit Alliance. Merit Alliance manages the apprenticeship programs, providing non-union apprentices for employment for an annual fee of $6500. An initial fee to join the consortium runs between $7500 and $10,000.
But here’s the catch. While the Merit Alliance apprenticeship program was in compliance with the 30 percent graduation rule at the state level, they could not — unlike the union halls and the contractors utilizing their services — meet the more stringent requirements newly adopted by the city. The consortium of 150 companies was shut out of the bidding.
How apprentices qualify
Here the unions indisputably have a leg up. There are about 10,000 union members among the operating engineers throughout the entire state of New Jersey, and Orange, Rockland, Sullivan, Delaware and Ulster counties in New York State.
“Come to the facility down in Wawayanda, off Exit Three on 84,” said Ham. “This is owned by the membership, by the union, for training. I have instructors on hand every day, three to four of them, mechanic bays, classroom time. You have to qualify and be certified out before you even leave the place to go get on a job.”
Ham is skeptical of the services that Merit Alliance provides. Its apprenticeship program is much less robust than the union’s, he claimed.
“I challenge you to go on up to the Merit Alliances program and say, ‘We would like to tour your facility specifically designed for the operating engineers and heavy equipment.’ They would go, ‘Well, we really don’t have that.’ ”
Dwyer was joined by Merit Alliance president Penny Hazer in presenting her argument for repealing the language to the common council.
Back and forth
When the resolution to repeal the language was originally presented to the common council, the discourse was punctuated with such deliberative gems as that provided for posterity by Ward Two alder Carl Frankel. “I’m coming from a place of ignorance,” said Frankel, “and that makes it really hard for me to feel confident in any decision I make.”
When the common council went ahead in October after a month’s reflection to repeal the language, mayor Noble issued his veto.
“Throughout this process, I have maintained that our apprenticeship policy should require the program offered to local apprentices actually graduate individuals each year,” Noble said in a statement. “It is simple but effective.”
Noble pointed towards the county government’s attitude as something to imitate.
“I believe that the common council should follow the Ulster County Legislature’s lead and adopt similar language, which is less stringent than what Kingston currently has in place, and may serve as a more fair-minded apprenticeship policy,” he said.
Introduced and passed by the legislature in 2022, adopted in May 2023, and slated to go into effect in January 2024, the policy amended by the legislature used exactly the language now excised by the common council.
With the majority of the common council seats vacated before the new year (only alders Scott-Childress, Schabot, Hirsch and council president Schaut remain), questions arose as to what the rush was to repeal the language before the new council took office.
“I thought it was important to repeal that one piece so that we didn’t hamper city-funded projects,” explained newly elected alder Bob Dennison, appointed to the council before the vote.
Previously a chief engineer with NYS Department of Transportation, Dennison had a problem with an apprentice program like Merit Alliance being disqualified. It is approved by the Department of Labor.
“The old bill had a requirement that said you had to have three graduates a year for the last five years. So if I’m a new contractor, unless I’m with a union, I’m out of luck. I haven’t been around for five years. In my view, the $100,000 limit is too low. The county’s is $750,000. I think ours should be higher.”
Dennison acknowledged the awkward optics of a council full of Democrats voting against the amended language, whose vocal supporters at the hearings had been overwhelmingly union members.
“I love unions. I’m a big union supporter,” said Dennison, “and I believe strongly that any job of significant size should have project labor agreements. I believe that big jobs should be done by the union. My concern is a $100,000 job or the half-million-dollar job where a local contractor who may not be associated with the union should be able to compete for that work.”
It is a verifiable fact that economic inequality over the past century has risen as union membership has declined. But a business owner’s prerogative to work or not work with, whomever they choose remains the rule.
To be continued
There is nothing in state law precluding municipalities from adopting stringent apprenticeship requirements more in line with the philosophy to which they wish to align. In any case, Dennison said, the issue will be revisited.
“Alders Scott-Childress, Pasti and I have been talking a lot about it and gathering data. I suspect in the next couple of month, we’re going to have a proposal,” says Dennison. “It could be as simple as adopting the county’s, or it could be a tweak to ours. But I expect that will happen in the next couple of months.”
Dennison believed “good planning would say that you’d want to do your bids in the winter, so you can start working in the spring.”
Ws the loophole reinstated so a lackluster apprenticeship program could make good on its pay-to-play promise? Or was it a win for the little guy delivered by local businesses concerned about taxpayer-funded project overruns?
The meaning of the defeat of the mayor’s veto was in the eye of the beholder.
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