WEST VIRGINIA CODE











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WVC 5 - 22 - 3

§5-22-3. Certain labor requirements not to be imposed on

contractor or subcontractor.

     (a) This section may be known and cited as The Fair and Open

Competition in Governmental Construction Act.

     (b) Legislative findings. -- The Legislature finds that to

promote and ensure fair competition on governmental, governmental

funded or governmental assisted construction projects that open

competition in governmental construction contracts is necessary.

The Legislature also finds that when a governmental entity awards

a grant, tax abatement or tax credit that it should be an open and

fair process. Therefore, to prevent discrimination against

governmental bidders, offerors, contractors or subcontractors based

upon labor affiliation or the lack thereof, the Legislature

declares that project labor agreements should not be part of the

competitive bid process or be a condition for a grant, tax

abatement or tax credit.

     (c) Definitions. -- For purposes of this section:

     (1) "Construction" means the act, trade or process of

building, erecting, constructing, adding, repairing, remodeling,

rehabilitating, reconstructing, altering, converting, improving,

expanding or demolishing of a building, structure, facility, road

or highway, and includes the planning, designing and financing of

a specific construction project.

     (2) "Governmental entity" means the state, a political

subdivision or any agency or spending unit thereof.

     (3) "Project labor agreement" means any pre-hire collective

bargaining agreement with one or more labor organizations that

establishes the terms and conditions of employment for a specific

construction project.

     (d) Prohibition - Competitive bid. -- Commencing July 1, 2015,

a governmental entity or a construction manager acting on behalf of

a governmental entity, seeking a construction bid solicitation,

awarding a construction contract or obligating funds to a

construction contract, shall not include the following in the bid

specifications, bid requests, project agreements or any other

controlling documents for the construction project:

     (1) A requirement or prohibition that a bidder, offeror,

contractor or subcontractor must enter into or adhere to a project

labor agreement;

     (2) A term, clause or statement that infers, either directly

or indirectly, that a bidder, offeror, contractor or subcontractor

must enter into or adhere to a project labor agreement;

     (3) A term, clause or statement that rewards or punishes a

bidder, offeror, contractor or subcontractor for becoming or

remaining, or refusing to become or remain a signatory to, or for

adhering or refusing to adhere to, a project labor agreement; or

     (4) Any other provision dealing with project labor agreements.

     (e) Prohibition - Grant, tax abatement or tax credit. --

Commencing July 1, 2015, a governmental entity may not award a

grant, tax abatement or tax credit for construction that is conditioned upon a requirement that the awardee include any

prohibited provision set out in subsection (d) of this section.

     (f) Exclusions. -- This section does not:

     (1) Prohibit a governmental entity from awarding a contract,

grant, tax abatement or tax credit to a private owner, bidder,

contractor or subcontractor who enters into or who is party to an

agreement with a labor organization, if being or becoming a party

or adhering to an agreement with a labor organization is not a

condition for award of the contract, grant, tax abatement or tax

credit, and if the governmental entity does not discriminate

against a private owner, bidder, contractor or subcontractor in the

awarding of that contract, grant, tax abatement or tax credit based

upon the status as being or becoming, or the willingness or refusal

to become, a party to an agreement with a labor organization.

     (2) Prohibit a private owner, bidder, contractor or

subcontractor from voluntarily entering into or complying with an

agreement entered into with one or more labor organizations in

regard to a contract with a governmental entity or funded, in whole

or in part, from a grant, tax abatement or tax credit from the

governmental entity.

     (3) Prohibit employers or other parties from entering into

agreements or engaging in any other activity protected by the

National Labor Relations Act, 29 U. S. C. §§151 to 169.

     (4) Interfere with labor relations of parties that are left

unregulated under the National Labor Relations Act, 29 U. S. C. §§151 to 169.

     (g) Exemptions. -- The head of a governmental entity may

exempt a particular project, contract, subcontract, grant, tax

abatement or tax credit from the requirements of any or all of the

provisions of subsections (d) and (e) of this section if the

governmental unit finds, after public notice and a hearing, that

special circumstances require an exemption to avert an imminent

threat to public health or safety. A finding of special

circumstances under this subsection may not be based on the

possibility or presence of a labor dispute concerning the use of

contractors or subcontractors who are nonsignatories to, or

otherwise do not adhere to, agreements with one or more labor

organizations or concerning employees on the project who are not

members of or affiliated with a labor organization.





Note: WV Code updated with legislation passed through the 2015 Regular Session

The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.