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Will MA House Erect Systemic Barrier to MWBEs in Construction?

The MCA sent the following message to the 160 members in the Mass. House of Representatives urging them to reject a proposal to legalize PLAs on public construction.


Dear Representative:


H4789 asks you to codify PLAs on public projects, and in doing so, endorse a systemic barrier that will harm most Massachusetts construction workers, especially qualified minority- and women-owned construction companies who are largely non-union. It’s ironic because section 149 seeks to reduce a barrier to bidding on public construction by creating a special bonding program. One hand gives while the other takes away.


Certainly, you represent merit shop (non-union) construction workers and contractors in your district. They are 83 percent of the state's construction workforce (source: unionstats.com). Section 153 in H4789 hurts them. The Merit Construction Alliance of Massachusetts, Inc., representing merit shop contractors and their employees, asks you to vote to remove Section 153.


As The Boston Globe editorial  stated: “Project labor agreements are bad policy.”


The section is being touted as helping disadvantaged contractors, but in fact, it advantages only organized labor, which is only 17 percent of the state construction workforce (unionstats.com). As a Boston-based WBE construction executive told The New York Times:


“A crucial problem, she argues, ‘is the unions are driving the ship when it comes to equity.’”

Allowing public entities to impose project labor agreements on construction creates a new systemic barrier, when we should be removing them (as is attempted by section 149):





1.      PLAs disadvantage merit shop contractors and employees who are otherwise qualified to bid and work. PLAs mandate winning bidders use only union labor, but merit shops already have employees who are paid prevailing wage, receive generous benefits and are protected by state and federal laws. In 1999, the Supreme Judicial Court deemed PLAs “anticompetitive.”

 

Hampden Superior Court Judge Mark Callan, in a May 16, 2024, ruling that struck down a Springfield PLA, clearly understood the issue:

 

“Notwithstanding the lip service the PLA plays to being open to all bidders, it most assuredly is not. The evidence before the court is that the PLA poses such a significant disadvantage to open shops as to render a competitive bid impossible. Certainly, in theory, [plaintiff Wayne J.] Griffin [Electric, Inc.] and others can bid on the Project, but it is bidding blindly, and utterly defies common sense and logic to think that it is a real chance on "equal footing." No reasonable, otherwise highly qualified contractor or subcontractor would entertain such a colossal risk. For all intents and purposes, the PLA excludes open shops from bidding, as it essentially requires bidders to execute an agreement to use union laborers on the Project."

 

2.      Most minority- and women-owned construction companies are merit shop and their employees choose not to join organized labor. DCAMM’s online database recently showed 71 women-owned and 37 minority-owned firms certified to bid on state construction. The 2010 DCAMM Disparity Study quoted a construction-firm owner as saying:

 

“You find very few of these companies that are union. Okay. And there are lots of MWBE companies out there, but you can’t access them if you’re doing a union job because people tend not to go union.”

 

3.      Therefore, MWBEs are disadvantaged by PLAs. That’s why DCAMM insisted on carve-outs for MWBEs on the Holyoke Veterans Home (which organized labor strongly resisted) because it knew the legislatively mandated PLA would be a systemic barrier.  (Did you know DCAMM’s project manager cited PLAs as a cause for the lack of bids and “good bids within our budget” on the project?  Watch the video of the public meeting.)


In closing, I urge you to read The Boston Globe editorial from May, which states, in part:

“Although PLAs are sometimes portrayed as necessary to keep nonunion contractors from undercutting trade wages, in fact, the state’s prevailing wage law already mandates that nonunion firms pay the prevailing wage on public projects. That wage is essentially the rate set in union collective-bargaining contracts.

“Thus there really is no strong policy argument for imposing a PLA. Further, it is unfair to the many Massachusetts construction workers who are not union members. It means that those workers are paying taxes to help fund projects that PLAs would exclude them from working on.”


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