Effective Aug. 28, 2017, public entities in Missouri will no longer be permitted to require a project labor agreement (PLA) on a public works project. A PLA typically is signed by the contractor, subcontractor and trade labor unions and sets forth the terms and conditions affecting the employment of labor on a construction project covered by that agreement, including the requirement to utilize labor furnished by the signatory trade unions.
Senate Bill No. 182 was passed by the legislature during the most recent session and signed by the governor.
The act applies to the state of Missouri, each Missouri state agency, each political subdivision (which includes counties, municipalities, public school districts and special districts), and each instrumentality of the state. The new section 34.209.1(1) prevents the public entity from requiring or prohibiting “bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations on the same or related projects.” While worded in a neutral fashion, this statutory language is clearly designed to preclude public entities in Missouri from mandating a PLA. Section 34.209.1 applies to the construction, repair, remodeling or demolition of a public works facility.
Section 34.212 of the new act extends the scope of section 34.209 to grants, tax abatements and tax credits awarded by a Missouri public entity. So, for example, once the law is in effect, a public entity may not, as a condition to a grant of public funds or a grant of a tax abatement, require the adoption of a PLA.
The law does not, however, prohibit contractors or subcontractors from voluntarily entering into a collective bargaining agreement or a PLA.
While the news media was quick to focus on the effect of the law on the use of PLAs, another provision of the act deals directly with drugs. In this regard, a subsection clarifies that a public entity may nevertheless require contractors and subcontractors to perform drug testing. Section 34.209.2 specifically states that: “Nothing in this section shall be construed to prohibit the state, any agency of the state, any political subdivision thereof from requiring bidders, offerors, contractors, or subcontractors, as a condition of receiving work or submitting a bid, to test its workers and employees for the presence of illegal drugs.”
Authorizing a public entity to adopt as a “condition” to bidding that the bidder complies with prescribed drug testing requirements of the public entity is novel. The full implications of this subsection are unknown. An issue not clearly addressed is whether any such public entity’s drug-testing requirement would override terms in a collective bargaining agreement (CBA) that restrict drug testing — or whether the bidder/contractor needs to bargain a modification to the CBA. Another issue left unanswered under Missouri law is whether any such public entity requirement for drug testing would be impacted by an individual worker’s claim of privacy concerns. Can the public entity require the bidder or contractor to turn over drug test results, or is it contemplated that the public entity would simply require a certification of drug-testing compliance by the bidder or contractor?
What happens if a violation occurs?
One who violates the new law is subject to equitable relief, such as a temporary restraining order and an injunction. In addition, the violator is liable for attorneys’ fees of the party filing suit.
Furthermore, a public entity that violates the act is not eligible for state funding or state-issued tax credits for two years.
Finally, the prosecuting attorney or circuit attorney for the jurisdiction where the violation occurs (presumably a reference to county prosecutors and the St. Louis city circuit attorney) as well as the Missouri attorney general’s office “shall investigate complaints of violation of such sections, and use all means at their command to ensure the effective enforcement of this section.”
Should you have any questions about this new law, please contact any of the attorneys in Greensfelder’s Construction Practice Group.