Can a Texas city require contractors to sign a project labor agreement to bid on public work?

Plain-English summary

A project labor agreement, or PLA, is a pre-hire deal that sets the labor terms for everyone working on a construction project, often making a union the bargaining representative for the workers. The question put to the Attorney General was whether a Texas city, county, or other governmental entity may require a contractor or vendor to sign a PLA just to be allowed to submit a bid, given the Local Government Code's "Right to Work" provision.

That provision, section 271.121, applies when a governmental entity buys goods or services, awards a contract, or oversees procurement or construction for a public work. It says the entity may not consider whether a vendor belongs to or has another relationship with any organization, and it must make sure its bid specifications and contracts do not deny or diminish a person's right to work because of the person's membership status with any organization.

The Attorney General's bottom line was that the statute does not answer the question one way or the other in the abstract. No Texas statute or court decision even mentions PLAs, and section 271.121 does not flatly prohibit them. A PLA used as a bid specification could violate the statute if it caused the entity to weigh a vendor's organizational membership, or if its terms denied or diminished someone's right to work based on union status. But some PLAs expressly forbid that kind of discrimination. So whether any particular PLA requirement violates section 271.121 is a fact question that depends on the agreement's specific terms, and the opinion process does not resolve disputed facts. On that basis the Attorney General declined to give a categorical answer.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Governmental entities that buy construction (as the opinion held for them): The opinion told them section 271.121 does not by name prohibit using a PLA, but that a PLA used as a bid specification could contravene the statute if it led the entity to consider a vendor's organizational membership or denied or diminished a person's right to work based on membership status. The opinion did not say whether any specific PLA does so.

Contractors and vendors (as the opinion described it): Under the opinion, whether a PLA requirement on a public job runs afoul of the Right to Work provision depends on the PLA's actual terms, since some PLAs bar membership-based discrimination and others might not.

On the limit of the opinion (what the AG declined): The opinion stated that whether a PLA's terms violate section 271.121 is a fact question requiring the investigation and resolution of facts beyond the opinion process, so the Attorney General did not decide it.

Common questions

Did the Attorney General say cities can or cannot require a PLA to bid?
No. The opinion treated it as a fact question depending on the specific PLA's terms and declined to give a categorical answer.

Does section 271.121 ban project labor agreements?
No. The opinion concluded section 271.121 does not mention PLAs and does not flatly prohibit them.

When might a PLA requirement violate the statute?
The opinion explained a PLA could contravene the statute if it caused the entity to consider a vendor's organizational membership, or if its terms denied or diminished a person's right to work based on membership status.

Why couldn't the AG just answer the question?
The opinion said whether a PLA's terms violate section 271.121 requires investigating and resolving facts, which is outside the opinion process.

Background and statutory framework

Section 271.121 of the Local Government Code, entitled "Right to Work," applies when a governmental entity procures goods or services, awards a contract, or oversees procurement or construction for a public work or public improvement. Tex. Loc. Gov't Code Ann. § 271.121(a) (West 2005). It provides that the entity may not consider whether a vendor is a member of or has another relationship with any organization, and shall ensure that its bid specifications and any contract do not deny or diminish the right of a person to work because of the person's membership or other relationship status with any organization. Tex. Loc. Gov't Code Ann. § 271.121(b).

A PLA is a multi-employer, multi-union pre-hire agreement designed to systemize labor relations at a construction site. Bldg. & Constr. Trades Dep't, AFL-CIO v. Allbaugh, 295 F.3d 28, 30 (D.C. Cir. 2002), cert. denied, 537 U.S. 1171 (2003); N.Y. State Chapter, Inc. v. N.Y. State Thruway Auth., 666 N.E.2d 185, 188 (N.Y. 1996); 48 C.F.R. § 536.271 (2010). Some PLAs expressly prohibit membership-based discrimination in job referrals. Laborers Local No. 942 v. Lampkin, 956 P.2d 422, 428 (Alaska 1998). The opinion noted that construing section 271.121 to flatly prohibit PLAs could raise a federal preemption question under the National Labor Relations Act. Ohio State Bldg. & Constr. Trades Council v. Cuyahoga Cnty. Bd. of Comm'rs, 781 N.E.2d 951, 970 (Ohio 2002); Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 230 (1993). Because the question turned on a given PLA's terms, the opinion concluded it was a fact question outside the opinion process. Tex. Att'y Gen. Op. No. GA-0637 (2008).

Citations

Statutes and regulations:

• Tex. Loc. Gov't Code Ann. § 271.121(a) (West 2005)
• Tex. Loc. Gov't Code Ann. § 271.121(b)
• 48 C.F.R. § 536.271 (2010)

Cases:

• Bldg. & Constr. Trades Dep't, AFL-CIO v. Allbaugh, 295 F.3d 28, 30 (D.C. Cir. 2002), cert. denied, 537 U.S. 1171 (2003)
• N.Y. State Chapter, Inc. v. N.Y. State Thruway Auth., 666 N.E.2d 185, 188 (N.Y. 1996)
• Laborers Local No. 942 v. Lampkin, 956 P.2d 422, 428 (Alaska 1998)
• Ohio State Bldg. & Constr. Trades Council v. Cuyahoga Cnty. Bd. of Comm'rs, 781 N.E.2d 951, 970 (Ohio 2002)
• Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 230 (1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0858
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0858.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 5, 2011

The Honorable Jim Jackson Opinion No. GA-0858
Chair, Committee on Judiciary
and Civil Jurisprudence Re: Whether section 271.121, Local Government
Texas House of Representatives Code, prohibits a governmental entity from requiring
Post Office Box 2910 a contractor or other vendor to sign a project labor
Austin, Texas 78768 agreement as a condition of submitting a bid
(RQ-0931-GA)

Dear Representative Jackson:

Your predecessor asked whether section 271.121, Local Government Code, prohibits a governmental entity from requiring a contractor or other vendor to sign a project labor agreement ("PLA") as a condition of submitting a bid.[1] Broadly, a PLA is "a multi-employer, multi-union pre-hire agreement designed to systemize labor relations at a construction site." Bldg. & Constr. Trades Dep't, AFL-CIO v. Allbaugh, 295 F.3d 28, 30 (D.C. Cir. 2002), cert. denied, 537 U.S. 1171 (2003).[2] Section 271.121 of the Local Government Code, entitled "Right to Work," applies to a governmental entity when it procures goods or services, awards a contract, or oversees "procurement or construction for a public work or public improvement." TEX. LOC. GOV'T CODE ANN. § 271.121(a) (West 2005). The section provides that such a government entity: "(1) may not consider whether a vendor is a member of or has another relationship with any organization; and (2) shall ensure that its bid specifications and any subsequent contract or other agreement do not deny or diminish the right of a person to work because of the person's membership or other relationship status with respect to any organization." Id. § 271.121(b).

Neither section 271.121 nor any other Texas statute or judicial opinion mentions PLAs, per se. Accordingly, section 271.121 does not expressly prohibit a governmental entity from utilizing a PLA.[3] Nevertheless, the terms of a PLA required as a bid specification could contravene either subsection (b)(1) or (b)(2). Section 271.121(b)(1) plainly prohibits a governmental entity from considering a vendor's memberships or other relationships with organizations in awarding a contract. Id. And, while section 271.121(b)(2) prohibits a governmental entity's bid specifications and contracts from "deny[ing] or diminish[ing] the right of a person to work because of the person's membership or other relationship status," the terms of a particular PLA may also prohibit such discrimination. See, e.g., Laborers Local No. 942 v. Lampkin, 956 P.2d 422, 428 (Alaska 1998) (PLA providing that "selection of applicants for referral to jobs shall be on a non-discriminatory basis ... and shall not be based on, or in any way affected by, union membership, or the lack thereof").

Whether a PLA's terms violate section 271.121 is a fact question that will depend on the PLA's specific terms and would involve the investigation and resolution of facts beyond the opinion process. See Tex. Att'y Gen. Op. No. GA-0637 (2008) at 5 (investigation and resolution of facts are outside the scope of the opinion process).

SUMMARY

Whether a project labor agreement's terms violate section 271.121, Local Government Code, is a fact question that will depend on the terms of the specific agreement and would involve the investigation and resolution of facts beyond the opinion process.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Todd Hunter, Chair, Committee on Judiciary and Civil Jurisprudence, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Nov. 15, 2010), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] Cited in Letter from Jon Fisher, President of the Associated Builders and Contractors of Texas, to Honorable Todd Hunter, Chair, Committee on Judiciary and Civil Jurisprudence, Texas House of Representatives (Nov. 8, 2010) (attached to Request Letter). See also N.Y. State Chapter, Inc. v. N.Y. State Thruway Auth., 666 N.E.2d 185, 188 (N.Y. 1996) (defining a PLA as "a prebid contract between a construction project owner and a labor union (or unions) establishing the union as the collective bargaining representative for all persons who will perform work on the project"); GSA Rule, 48 C.F.R. § 536.271 (2010) (for purposes of awarding contracts to construct federally-owned facilities, defining a PLA as "an agreement between the contractor, subcontractors, and the union(s) representing workers ... establishing a framework for labor-management cooperation").

[3] If section 271.121 of the Local Government Code were construed as flatly prohibiting PLAs, it would raise a question of federal preemption. See Ohio State Bldg. & Constr. Trades Council v. Cuyahoga Cnty. Bd. of Comm'rs, 781 N.E.2d 951, 970 (Ohio 2002) (holding that the National Labor Relations Act ("NLRA") preempts a state statute that flatly prohibited utilizing project labor agreements on public works projects). See generally Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 230 (1993) (discussing exception in NLRA for pre-hire project labor agreements historically utilized in the construction industry, which a state may utilize in its proprietary capacity).