Does HB33 Protect Open Shop Contractors?

by James A. Bacon

Mea culpa. I missed a critical point in my previous analysis of the political chess match between the Metropolitan Washington Airports Authority (MWAA) and the McDonnell administration. I said naively that Gov. Bob McDonnell may have no choice under new legislation but to yank $150 million in state funds allocated to Phase 2 of the Rail-to-Dulles project.

HB 33, I wrote, not only prohibits mandated Project Labor Agreements in state-funded construction projects, but it seeks to ensure that “neither the state agency nor any construction manager acting on behalf of the state agency … discriminate against bidders [not adhering] to agreements with one or more labor organizations.” Last week MWAA scrapped its PLA mandate for Rail-to-Dulles but subsituted a provision that would grant 10-percent scoring bonus for bidders whose plans included a PLA — clearly discriminatory against open-shop contractors. McDonnell, I suggested, would have no choice but to find MWAA in violation of that law.

Here’s what I missed: The bill’s anti-discrimination clause applies to state agencies. MWAA is not a state agency — it is an interstate compact! Thus, it could be exempt from HB 33, commonly referred to as the Comstock bill after lead patron Barbara Comstock, R-McLean.

That’s the argument made by Del. Bob Marshall, R-Manassas (hat tip to anti-MWAA activist David LaRock). Marshall had submitted a bill that would have addressed the problem head-on. He would have denied MWAA the $150 million if (1) Rail-to-Dulles were subject to a Project Labor Agreement, (2) MWAA policies or bylaws governing public access to meetings and records were  incompatible with Virginia’s Freedom of Information Act, or (3) phase 2 of the project and its finances were not subject to state audit.

MWAA’s fig-leaf vote, which substituted a scoring preference in place of a mandate, would circumvent Marshall’s PLA clause just like it circumvents HB 33. But MWAA wouldn’t get the money unless it also submitted to Virginia’s FOIA law and state audits.

Did the authors of the Comstock bill get snookered? I’m not a lawyer, so I don’t know. I simply repeat the arguments. I’d like to hear other people weigh in with their opinions.

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5 responses to “Does HB33 Protect Open Shop Contractors?”

  1. re: ” interstate compact!” if that’s true, can Va impose PLA restrictions on that compact?

    it looks like all Va can really do is attach a poison-pill to any Va-sourced funding, right – they really have no control over the governance of MWAA, other than member appointments, right?

  2. constructionandlaborguy Avatar

    There is language in the bill that applies to state-assisted projects. The Silver Line is considered a state-assisted project so HB 33 covers the job. Some have asked if MWAA is exempt from the bill, claiming it is a public-private partnership. MWAA is not a P3. Virginia can’t give money to MWAA if they mandate a PLA or use a DISCRIMINATORY PLA preference.

  3. reading about the millions of dollars that VDOT is spending on the Western Bypass in Cville and the hundreds of unanswered questions coming from prospective bidders .. that demonstrate the potential for massive cost overruns… and it’s the same issue as MWAA and PLAs which is a project costing more than it should.

    and yet the folks who are hot after the PLA issue seem to be unconcerned about the many other ways that projects get to be ungodly expensive.

    it’s JUST the PLA issue that motivates them.


  4. Jeff Barnett Avatar
    Jeff Barnett

    Opponents of Dulles Rail are conveying a false message. They imply that everyone working on Dulles Rail must belong to a union. This is untrue. For Dulles Rail, no one will be required, directly or indirectly, to join a union.

    A Project Labor Agreement will require a firm schedule and no change orders.

    Because overruns and change orders are part of every contractor’s business model, contractors do not like Project Labor Agreements. This is why they are spreading misleading information. Union membership and dues is not at issue under a Dulles Rail PLA.

    PLAs lock-in schedules and costs. A PLA for Phase II of Dulles Rail will benefit every taxpayer in Fairfax and Loudoun counties.

    PLAs also protect skilled workers. Contractors can’t low-ball their employees. PLAs require that all skilled workers get the prevailing wage plus minimum training. The wage floor is very low. For the average skilled worker on Phase I of Dulles Rail, the floor is $20 an hour. That is only $40,000 a year; so low that it qualifies a family for free school lunches. What is wrong with this level of protection in the workplace?

    If someone tells you that PLAs are bad, ask to see the evidence. If it is anything about a union, you won’t find it.

    However, I could be wrong. There may be facts that I’ve overlooked. I would welcome anyone’s comments.

  5. Jeff, here’s a copy of the PLA that Dulles Transit Partners voluntarily negotiated with five labor unions for Phase 1. MWAA voted to make a PLA based upon that contract mandatory for Phase 2.

    The issue isn’t whether or not PLAs are bad. Clearly, Dulles Transit Partners is satisfied with the arrangement. DTP’s business model is built on using union labor. Nobody has a problem with that. The problem is that most Virginia contractors have business models built on directly employing their own non-union employees, a difference that permeates the entire corporation culture, team work, benefits, etc.

    When you mandate a PLA (or give PLAs a 10% bonus in the bid scoring), you put non-union companies at a severe disadvantage. You effectively limit the bidding to union-shop corporations, limiting the pool of bidders. Thus, you increase the likelihood of winding up with a higher bid.

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