Bill Text: VA HB883 | 2022 | Regular Session | Comm Sub
Bill Title: Project labor agreements; prevailing wage, collective bargaining for employees of local governments.
Spectrum: Partisan Bill (Republican 25-0)
Status: (Engrossed - Dead) 2022-02-21 - Passed by indefinitely in Commerce and Labor (12-Y 3-N) [HB883 Detail]
Download: Virginia-2022-HB883-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-4321.2, 40.1-4321.3, 40.1-6, 40.1-51.19, 40.1-51.19:4.1, 40.1-55, 40.1-57.2, and 40.1-57.3 of the Code of Virginia are amended and reenacted as follows:
§2.2-4321.2. Public works contract requirements.
A. As used in this section:
"Project labor agreement" means a pre-hire
collective bargaining agreement with one or more labor organizations that
establishes the terms and conditions of employment for a specific public works
project.
"Public body" has the same meaning as provided in
§2.2-4301.
"Public works" means the operation, erection, construction, alteration, improvement, maintenance, or repair of any public facility or immovable property owned, used, or leased by a public body.
"State agency" means any authority, board, department, instrumentality, institution, agency, or other unit of state government. "State agency" shall not include any county, city, or town.
B. Each public body As provided in subsection F or
as required by federal law, each state agency, when engaged in procuring products
or services or letting contracts for construction, manufacture, maintenance, or
operation of public works, paid for in whole or in part by state funds,
or when overseeing or administering such procurement, construction,
manufacture, maintenance, or operation, may, shall ensure that
neither the state agency nor any construction manager acting on behalf of the
state agency shall in its bid specifications, project agreements, or other
controlling documents:
1. Require or prohibit bidders, offerors, contractors,
or subcontractors to enter into or adhere to project labor agreements
with one or more labor organizations, on the same or related public works
projects; and
2. Require Otherwise discriminate against
bidders, offerors, contractors, subcontractors, or operators for becoming or
refusing to become or remain signatories or otherwise to adhere to
project labor agreements with one or more labor organizations, on the same
or other related public works projects.
Nothing in this subsection shall prohibit contractors or subcontractors from voluntarily entering into agreements described in subdivision 1.
C. A state agency issuing grants, providing financial assistance, or entering into cooperative agreements for the construction, manufacture, maintenance, or operation of public works shall ensure that neither the bid specifications, project agreements, nor other controlling documents therefor awarded by recipients of grants or financial assistance or by parties to cooperative agreements, nor those of any construction manager acting on behalf of such recipients, shall:
1. Require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations, on the same or related projects; or
2. Otherwise discriminate against bidders, offerors, contractors, subcontractors, or operators for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one or more labor organizations, on the same or other related projects.
D. If an awarding authority, a recipient of grants or financial assistance, a party to a cooperative agreement, or a construction manager acting on behalf of any of such authority, recipient, or party performs in a manner contrary to the provisions of subsection B or C, the state agency awarding the contract, grant, or assistance shall be entitled to injunctive relief to prevent any violation of this section.
E. Any interested party, which shall include a bidder, offeror, contractor, subcontractor, or operator, shall have standing to challenge any bid specification, project agreement, neutrality agreement, controlling document, grant, or cooperative agreement that violates the provisions of this section. Furthermore, such interested party shall be entitled to injunctive relief to prevent any violation of this section.
F. The provisions of this section shall not:
1. Apply to any public-private agreement for any construction or infrastructure project in which the private body, as a condition of its investment or partnership with the state agency, requires that the private body have the right to control its labor relations policy and perform all work associated with such investment or partnership in compliance with all collective bargaining agreements to which the private party is a signatory and is thus legally bound with its own employees and the employees of its contractors and subcontractors in any manner permitted by the National Labor Relations Act, 29 U.S.C. §151 et seq., or the Railway Labor Act, 45 U.S.C. §151 et seq.;
2. Prohibit an employer or any other person covered by the National Labor Relations Act or the Railway Labor Act from entering into agreements or engaging in any other activity protected by law; or
3. Be interpreted to interfere with the labor relations of persons covered by the National Labor Relations Act or the Railway Labor Act.
§2.2-4321.3. Payment of prevailing wage for work performed on public works contracts; penalty.
A. As used in this section:
"Locality" means any county, city, or town, school division, or other political subdivision.
"Prevailing wage rate" means the rate, amount, or level of wages, salaries, benefits, and other remuneration prevailing for the corresponding classes of mechanics, laborers, or workers employed for the same work in the same trade or occupation in the locality in which the public facility or immovable property that is the subject of public works is located, as determined by the Commissioner of Labor and Industry on the basis of applicable prevailing wage rate determinations made by the U.S. Secretary of Labor under the provisions of the Davis-Bacon Act, 40 U.S.C. §276 et seq., as amended.
"Public works" means the operation, erection,
construction, alteration, improvement, maintenance, or repair of any public
facility or immovable property owned, used, or leased by a state agency or
locality, including transportation infrastructure projects.
"State agency" means any authority, board,
department, instrumentality, institution, agency, or other unit of state
government. "State agency" does not include any county, city, or
town.
B. Notwithstanding any other provision of this chapter,
each state agency, when procuring services or letting contracts for public
works paid for in whole or in part by state funds, or when overseeing or
administering such contracts for public works, shall ensure that its bid
specifications or other public contracts applicable to the public works require
bidders, offerors, contractors, and subcontractors to pay wages, salaries,
benefits, and other remuneration to any mechanic, laborer, or worker employed,
retained, or otherwise hired to perform services in connection with the public
contract for public works at the prevailing wage rate. Each public contract for
public works by a state agency shall contain a provision requiring that the
remuneration to any individual performing the work of any mechanic, laborer, or
worker on the work contracted to be done under the public contract shall be at
a rate equal to the prevailing wage rate.
C. Notwithstanding any other provision of this chapter,
any locality may adopt an ordinance requiring that, when letting contracts for
public works paid for in whole or in part by funds of the locality, or when
overseeing or administering a public contract, its bid specifications, project
agreements, or other public contracts applicable to the public works shall
require bidders, offerors, contractors, and subcontractors to pay wages,
salaries, benefits, and other remuneration to any mechanic, laborer, or worker
employed, retained, or otherwise hired to perform services in connection with
the public contract at the prevailing wage rate. Each public contract of a
locality that has adopted an ordinance described in this section shall contain
a provision requiring that the remuneration to any individual performing the
work of any mechanic, laborer, or worker on the work contracted to be done
under the public contract shall be at a rate equal to the prevailing wage rate.
D. C. Any contractor or subcontractor who
employs any mechanic, laborer, or worker to perform work contracted to be done
under the public contract for public works for or on behalf of a state
agency or for or on behalf of a locality that has adopted an ordinance
described in subsection C B or at a rate that is less than the
prevailing wage rate (i) shall be liable to such individuals for the payment of
all wages due, plus interest at an annual rate of eight percent accruing from
the date the wages were due; and (ii) shall be disqualified from bidding on
public contracts with any public body until the contractor or subcontractor has
made full restitution of the amount described in clause (i) owed to such
individuals. A contractor or subcontractor who willfully violates this section
is guilty of a Class 1 misdemeanor.
E. D. Any interested party, which shall include
a bidder, offeror, contractor, or subcontractor, shall have standing to
challenge any bid specification, project agreement, or other public contract
for public works that violates the provisions of this section. Such interested
party shall be entitled to injunctive relief to prevent any violation of this
section. Any interested party bringing a successful action under this section
shall be entitled to recover reasonable attorney fees and costs from the
responsible party.
F. E. A representative of a state agency or a
representative of a locality that has adopted an ordinance described in
subsection C B may contact the Commissioner of Labor and
Industry, at least 10 but not more than 20 days prior to the date bids for such
a public contract for public works will be advertised or solicited, to
ascertain the proper prevailing wage rate for work to be performed under the
public contract.
G. F. Upon the award of any public contract
subject to the provisions of this section, the contractor to whom such contract
is awarded shall certify, under oath, to the Commissioner of Labor and Industry
the pay scale for each craft or trade employed on the project to be used by
such contractor and any of the contractor's subcontractors for work to be
performed under such public contract. This certification shall, for each craft
or trade employed on the project, specify the total hourly amount to be paid to
employees, including wages and applicable fringe benefits, provide an
itemization of the amount paid in wages and each applicable benefit, and list
the names and addresses of any third party fund, plan or program to which
benefit payments will be made on behalf of employees.
H. G. Each employer subject to the provisions of
this section shall keep, maintain, and preserve (i) records relating to the
wages paid to and hours worked by each individual performing the work of any
mechanic, laborer, or worker and (ii) a schedule of the occupation or work
classification at which each individual performing the work of any mechanic,
laborer, or worker on the public works project is employed during each work day
and week. The employer shall preserve these records for a minimum of six years
and make such records available to the Department of Labor and Industry within
10 days of a request and shall certify that records reflect the actual hours
worked and the amount paid to its workers for whatever time period they
request.
I. H. Contractors and subcontractors performing
public works for a state agency or for a locality that has adopted an
ordinance described in subsection C B shall post the general
prevailing wage rate for each craft and classification involved, as determined
by the Commissioner of Labor and Industry, including the effective date of any
changes thereof, in prominent and easily accessible places at the site of the
work or at any such places as are used by the contractor or subcontractors to
pay workers their wages. Within 10 days of such posting, a contractor or
subcontractor shall certify to the Commissioner of Labor and Industry its
compliance with this subsection.
J. I. The provisions of this section shall not
apply to any public contract for public works of $250,000 or less.
§40.1-6. Powers and duties of Commissioner.
The Commissioner shall:
1. Have general supervision and control of the Department;
2. Enforce the provisions of this title and shall cause to be prosecuted all violations of law relating to employers or business establishments before any court of competent jurisdiction;
3. Make such rules and regulations as may be necessary for the enforcement of this title and procedural rules as are required to comply with the federal Occupational Safety and Health Act of 1970 (P.L. 91-596). All such rules and regulations shall be subject to Chapter 40 (§2.2-4000 et seq.) of Title 2.2;
4. In the discharge of his duties, have power to take and preserve testimony, examine witnesses, and administer oaths and to file a written or printed list of relevant interrogatories and require full and complete answers to the same to be returned under oath within 30 days of the receipt of such list of questions;
5. Have power to appoint such representatives as may be necessary to aid the Commissioner in his work, with the duties of such representatives to be prescribed by the Commissioner;
6. Determine the prevailing wage required to be paid under
a public contract for public works as provided in §2.2-4321.3 and perform all
other duties imposed on the Commissioner under such section. Any determination
of the prevailing wage rate made by the Commissioner shall be based on
applicable prevailing wage rate determinations made by the U.S. Secretary of
Labor under the provisions of the Davis-Bacon Act, 40 U.S.C. §276 et seq., as
amended;
7. Have power to require that accident, injury, and
occupational illness records and reports be kept at any place of employment and
that such records and reports be made available to the Commissioner or his duly
authorized representatives upon request, and to require employers to develop,
maintain, and make available such other records and information as are deemed
necessary for the proper enforcement of this title;
8. 7. Have power, upon presenting appropriate
credentials to the owner, operator, or agent in charge:
a. To enter without delay and at reasonable times any business establishment, construction site, or other area, workplace, or environment where work is performed by an employee of any employer in this Commonwealth; and
b. To inspect and investigate, during regular working hours and at other reasonable times and within reasonable limits and in a reasonable manner, without prior notice unless such notice is authorized by the Commissioner or his representative, any such business establishment or place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, officer, owner, operator, agent, or employee. If such entry or inspection is refused, prohibited, or otherwise interfered with, the Commissioner shall have power to seek from a court having equity jurisdiction an order compelling such entry or inspection;
9. 8. Make rules and regulations governing the
granting of temporary or permanent variances from all standards promulgated by
the Board under this title. Any interested or affected party may appeal to the
Board, the Commissioner's determination to grant or deny such a variance. The
Board may, as it sees fit, adopt, modify, or reject the determination of the
Commissioner;
10. 9. Have authority to issue orders to protect
the confidentiality of all information reported to or otherwise obtained by the
Commissioner, the Board, or the agents or employees of either that contains or
might reveal a trade secret. Such information shall be confidential and shall
be limited to those persons who need such information for purposes of
enforcement of this title. Violations of such orders shall be punishable as
civil contempt upon application to the Circuit Court of the City of Richmond.
It shall be the duty of each employer to notify the Commissioner or his
representatives of the existence of trade secrets where he desires the
protection provided herein; and
11. 10. Serve as executive officer of the
Virginia Safety and Health Codes Board and of the Apprenticeship Council and
see that the rules, regulations, and policies that they promulgate are carried
out.
§40.1-51.19. Variances.
Upon application pursuant to the provisions of subdivision
(9) 8 of §40.1-6, the Commissioner may allow variances from a
specific regulation provided the applicant proves by clear and convincing
evidence his boiler or pressure vessel meets substantially equivalent operating
criteria and standards.
§40.1-51.19:4.1. Variances.
Upon application pursuant to the provisions of subdivision
9 8 of §40.1-6, the Commissioner may allow variances from a specific
statutory requirement of this article provided the applicant proves by clear
and convincing evidence his hobby or model boiler meets substantially
equivalent construction and operating criteria and standards.
§40.1-55. Employee striking terminates, and becomes temporarily ineligible for, public employment.
A. Any employee of the Commonwealth, or of any county,
city, town or other political subdivision thereof, or of any agency of any one
of them, who, in concert with two or more other such employees, for the purpose
of obstructing, impeding or suspending any activity or operation of his
employing agency or any other governmental agency, strikes or willfully refuses
to perform the duties of his employment shall, by such action, be deemed to
have terminated his employment and shall thereafter be ineligible for
employment in any position or capacity during the next 12 months by the
Commonwealth, or any county, city, town or other political subdivision of the
Commonwealth, or by any department or agency of any of them.
B. The provisions of subsection A shall apply to any
employee of any county, city, or town or local school board without regard to
any local ordinance or resolution adopted pursuant to §40.1-57.2 by such
county, city, or town or school board that authorizes its employees to engage
in collective bargaining.
§40.1-57.2. Collective bargaining.
A. No state, county, city, town, or like governmental
officer, agent, or governing body is vested with or possesses any authority to
recognize any labor union or other employee association as a bargaining agent
of any public officers or employees, or to collectively bargain or enter into
any collective bargaining contract with any such union or association or its
agents with respect to any matter relating to them or their employment or
service unless, in the case of a county, city, or town, such authority is
provided for or permitted by a local ordinance or by a resolution. Any such
ordinance or resolution shall provide for procedures for the certification and
decertification of exclusive bargaining representatives, including reasonable
public notice and opportunity for labor organizations to intervene in the
process for designating an exclusive representative of a bargaining unit. As
used in this section, "county, city, or town" includes any local
school board, and "public officers or employees" includes employees
of a local school board.
B. No ordinance or resolution adopted pursuant to
subsection A shall include provisions that restrict the governing body's
authority to establish the budget or appropriate funds.
C. For any governing body of a county, city, or town that
has not adopted an ordinance or resolution providing for collective bargaining,
such governing body shall, within 120 days of receiving certification from a
majority of public employees in a unit considered by such employees to be
appropriate for the purposes of collective bargaining, take a vote to adopt or
not adopt an ordinance or resolution to provide for collective bargaining by
such public employees and any other public employees deemed appropriate by the
governing body. Nothing in this subsection shall require any governing body to
adopt an ordinance or resolution authorizing collective bargaining.
D. Notwithstanding the provisions of subsection A regarding
a local ordinance or resolution granting or permitting collective bargaining,
no officer elected pursuant to Article VII, Section 4 of the Constitution of
Virginia or any employee of such officer is vested with or possesses any authority
to recognize any labor union or other employee association as a bargaining
agent of any public officers or employees, or to collectively bargain or enter
into any collective bargaining contract with any such union or association or
its agents, with respect to any matter relating to them or their employment or
service.
§40.1-57.3. Certain activities permitted.
Nothing in this article shall be construed to prevent
employees of the Commonwealth, of its political subdivisions, or of any
governmental agency of any of them from forming associations for the purpose of
promoting their interests before the employing agency and, if they are
employees of a county, city, or town or local school board that has, by a local
ordinance or resolution as provided in §40.1-57.2, authorized its employees to
engage in collective bargaining, from doing so as provided in such ordinance or
resolution.
