Attorney General Ken Cuccinelli has yet to issue a formal legal opinion on legislation aimed at prohibiting state funding for union labor-favored construction projects, but he is holding firm in his support for the commonwealth’s right-to-work laws.
Lawmakers in Richmond have threatened to withhold as much as $150 million in state funding for Dulles Rail Phase Two construction if the Metropolitan Washington Airports Authority mandates, or shows preference to, the use of organized labor for the contentious $2.8 billion project.
Cuccinelli’s (R) office says Virginia’s right-to-work law “makes unlawful any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for the employer.”
Concerned legislators have wondered about the attorney general’s opinion after both houses of the General Assembly passed House Bill 33 and Senate Bill 242, companion bills that prohibit state agencies or “any construction manager acting on behalf of the state agency” from favoring bidders, contractors or subcontractors who “adhere to agreements with one or more labor organizations.”
It’s anticipated Gov. Bob McDonnell (R) will sign the legislation into law.
In February, MWAA, the organization charged with overseeing construction for Phase Two of Rail to Dulles, instituted a policy to provide a “10 percent bonus” to the final evaluation scores for contractors that show a plan to provide a project labor agreement. When considering bidders for the construction, MWAA scores companies through a technical evaluation, which is where the “bonus” factors in.
MWAA initially was requiring a mandatory project labor agreement for Phase Two.
“The attorney general expects MWAA and its contractors to comply with Virginia’s right-to-work law, just as other employers do throughout Virginia,” said Caroline Gibson, deputy director of communication for the attorney general’s office.
House Bill 33 “is consistent with the commonwealth’s important public policy priority to enforce its right to work law,” Gibson said.
Earlier this week, the Washington Examiner reported that Cuccinelli’s office said anti-project labor agreement bills couldn’t be enforced because the legislation only could be applied to state agencies, and not regional entities.
Gibson, however, said that report was incorrect.
“[Cuccinelli] hasn’t issued a formal legal opinion, and he’s never changed his position on House Bill 33,” Gibson said.
State Del. Barbara Comstock (R-McLean), a primary sponsor of HB 33, believes showing preference to union-favoring project labor agreements will deter qualified contractors and drive up Phase Two’s overall cost.
MWAA “seems obsessed with doing unions favors,” Comstock said.
Agreeing with Cuccinelli that her legislation is consistent with right-to-work laws, Comstock believes HB 33 will help the state stretch taxpayer dollars and encourage free enterprise.
On Feb. 29, Virginia Transportation Secretary Sean Connaughton and chairmen of both the Loudoun and Fairfax Boards of Supervisors, Scott York and Sharon Bulova, respectively, in a letter urged MWAA to remove their “union preference language,” Comstock said.
“The funding partners [for Dulles Rail Phase Two] are not opposed to the use of voluntary PLA in major construction projects,” reads the letter. “In fact, such agreements are being used in Phase One of the Silver Line as well as other transportation projects in Northern Virginia such as the I-495 Express Lanes… None of the funding partners support a requirement for, or a prohibition against, a PLA for public procurements.”
Connaughton, York and Bulova stated the 10 percent incentive is “a potential violation of the pending law,” and it’d be a “tragic loss and a detriment to the project if the Commonwealth withheld its $150 million contribution.”