WEST VIRGINIA CODE
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
(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
(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
(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.