June 11, 2021

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Senate bill on successor employer is constitutional and does not violate PROMISE according to UTIER lawyer


In a letter addressed to the presidents of the legislative bodies, Mr. Rolando Emmanuelli denies the statements made by the Fiscal Control Board and the governor regarding the unconstitutionality and violations of the PROMISE LAW of the project.

Rolando Emmanuelli, Photo: Archive

SAN JUAN – Senate Bill 450, which would establish LUMA Energy as a successor employer and return displaced employees of the Electric Power Authority (PREPA) to their positions, is constitutional and valid in law, the Union lawyer concluded Thursday of Workers of the Electrical and Irrigation Industry (UTIER), the lawyer Rolando Emmanuelli Jiménez.

In a letter addressed to the presidents of the legislative bodies, but which was also sent to the delegations of all parties, Emmanuelli Jímenez breaks down and denies the proposals made by the Fiscal Control Board and Governor Pedro Pierluisi on the unconstitutionality and violations of the PROMISE LAW of the project.

“The Board alleges that the Project is an interference and substantial impairment of a prior contractual obligation in violation of the constitutional clause that protects against the impairment of the contractual obligations of the Federal Constitution. However, this is irrelevant, since the constitutional clause is misread, since it is not interpreted literally and absolutely. This legislation (P. del S. 450) is not only necessary to correct some problems created by the contract with LUMA Energy, but it is reasonable, since it does not interfere by canceling or nullifying the contract, but by specifically modifying it so that it complies with these important government policies. In that sense, the legislation is constitutional. Therefore, the arguments of the Fiscal Control Board on this issue are unmeritorious ”, reads the document.

Emmanuelli Jiménez explained that contrary to the interpretation of the Board on the violations of PROMESA by the legislation going against the Fiscal Plan certified for PREPA, P. del S. 450 in no way contradicts the Fiscal Plan because it does not represent a burden economic or fiscal additional for PREPA or for the Government of Puerto Rico, on the contrary, it implies savings, so it is fiscally beneficial, or at least neutral.

“The only thing that the Fiscal Plan establishes is that the contract with LUMA Energy is necessary for the transformation of PREPA, and it does not prohibit the respect of workers’ rights in accordance with Law 120-2018, nor the collective agreements that are protected by the Constitution and Law 130-1945. The Project does not conflict with what is established in the Fiscal Plan nor does it challenge any of the mandates of the PROMESA Law ”, he explained.

The lawyer also established that the approach given by the Governor at the time of vetoing the measure yesterday for interfering with the constitutional rights of freedom of association and of organizing and bargaining collectively of the workers who accepted a job offer from LUMA part of a totally reading incorrect project.

“The bill does not oblige LUMA Energy employees to join unions that negotiated with PREPA. The Project is clear and without any ambiguity in the sense that employees will continue to be protected under the rights and benefits of the collective agreements negotiated with PREPA and that the appropriate unit will be respected, which is nothing other than the different classifications of positions and functions. However, there is no provision in the Bill that obliges LUMA Energy employees to join existing unions in PREPA. Therefore, this statement is irrelevant, since the right to free association or the democratic prerogatives of the employees who work with LUMA Energy are not violated at all, ”he stressed.

Emmanuelli Jiménez added in the document that, if the Fiscal Control Board decides to file a legal action to invalidate P. del S. 450, there are substantial legal arguments to defeat that intention.



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