Will the recent deal to salvage the $2.8 billion second leg of the Rail-to-Dulles project require non-union bidders to play footsy with the construction unions? The answer is far from clear.by James A. Bacon
A deal struck between the McDonnell administration and the Metropolitan Washington Airports Authority (MWAA) will not require bidders on Phase 2 of the Rail-to-Dulles project to sign a Project Labor Agreement (PLA). Or maybe it will. It’s really not clear. The wording of the Memorandum of Agreement (MOA) is ambiguous. At least one McDonnell administration official insists that the rights of non-union workers and companies are upheld in the agreement but neither the MWAA nor the Attorney General’s office is talking.
The PLA issue is a sensitive one. Earlier this year, the estimated cost of Phase 2 of the METRO rail project had ballooned roughly $1 billion higher than the $2.8 billion in funding sources lined up to pay for it. A deal brokered earlier this month by U.S. Transportation Secretary Ray LaHood seemingly got the project back on track by extracting various commitments and concessions from the state, MWAA, Fairfax County and Loudoun County, the four funding partners. The deal referenced a side agreement between Virginia and the MWAA that details “principles and requirements” for a labor agreement.
In Phase 1 of the construction project, which extends the METRO past Tysons Corner, prime contractor Dulles Transit Partners entered into a voluntary PLA to hire workers through a union hiring hall, although its sub-contractors were not required to do so. MWAA has sought to make that agreement mandatory for anyone bidding on Phase 2. But non-union companies and many Fairfax and Loudoun elected officials objected, asserting that such an agreement would discourage non-union companies from submitting bids. The loss of competition, critics said, could result in bids $300 million or more higher than the official estimate.
It is precisely that outcome that the McDonnell administration sought to avoid, says Thelma Drake, director of the Department of Rail and Public Transportation. A sticking point in negotiating the broader deal was MWAA’s insistence that bidders on the prime contract be required to sign a PLA. “We worried that having the PLA up front would discourage some companies from bidding,” she explains. The Commonwealth Attorney’s office got involved in drafting the language to ensure that any PLA would be consistent with state Right to Work laws.
“The PLA is not mandatory,” Drake says. “You cannot require your prime to sign a PLA.”
Sounds clear enough. But what does the actual MOA say?
The agreement states that no prime contractor or subcontractor can require an employee to join a labor union. It also says that no prime or subcontractor can be “discriminated against” based upon its affiliation or non-affiliation with a labor union. But then the MOA says this:
No prime contractor working or seeking to work on Phase 2 shall be required, in order to secure or maintain a phase 2 prime contract, to become a party to any labor agreement other than the Phase 2 PLA.
To some observers, the wording “other than” seems to specifically exempt the Phase 2 PLA from the rule — especially when considered in the context of what follows, a principle that states sub-contractors shall not be required to sign any labor union contract, “including” the Phase 2 PLA. The wording would seem to create an arrangement nearly identical to the Phase 1 PLA, which binds Dulles Transit Partners to a union workforce but exempts subcontractors.
“There are a lot of questions out there,” says Angie Gutenson, vice president of the Virginia chapter of the Associated Builders and Contractors, which represents the interests of open-shop contractors in the state. The MOA states that Virginia’s Right to Work law will be enforced and that non-union companies will not be “discriminated against.” But what does “discriminate against” mean in this context? “We’re not lawyers, so we don’t know.” Read more.
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