The state’s leading voice for non-union labor says Gov. Ted Strickland and his hand-picked Ohio School Facilities Commission are violating the law by allowing so-called “project labor agreements” on state-funded construction projects, while Attorney General Rich Cordray says Associated Builders and Contractors of Ohio (ABC) has distorted the real intent of R.C. 4114.04(B)(3), calling its case against the state a “procedural mess.”

In a statement timed with the Labor Day Weekend, ABC says project labor agreements (PLA) and related union obligations are “illegal for use on OSFC school construction projects.” ABC’s op-ed piece is the latest salvo in the open-shop advocate’s ongoing battle with the commission and school districts that agree to collective bargaining or prevailing wage in their construction projects.

“Paying prevailing wage as a result of a locally engaged PLA is a ruse concocted by Gov. Strickland’s OSFC so that the will of the Legislature prohibiting prevailing wage on school construction could be subverted,” says former state Rep. Bryan Williams, now director of government affairs for ABC. He argues that whereas the Ohio General Assembly has specifically allowed local public hospitals to pay prevailing wage if they chose, similar provisions do not apply to state-supported school construction.

“No such right of local choice has ever been granted to local school districts by the Legislature,” Williams claims. “And the OSFC, as a creature of the Legislature, is not authorized to grant that legislative authority.”

OSFC’s voting members include state Budget Director J. Pari Sabety, Department of Administrative Services Director Hugh Quill, and state Superintendent Deborah Delisle. In addition to the cabinet members, Richard Murray, the commission’s embattled executive director, was also appointed by Strickland.

ABC is suing the state and the Ashtabula Area City School District Board of Education over one such project, even though its co-plaintiff, Enertech Electrical, Inc., agreed to the PLA, commenced work at the site, and failed to seek a court injunction or stop-order pending resolution of the appeal, Cordray says in his answer to ABC. 

The company and ABC have turned to the Supreme Court after the Ashtabula County Common Pleas Court and the 11th Appellate District ruled against them. The appeals court called the Enertech project “moot” but did address ABC’s claim that the commission’s July 2007 resolution allowing but not requiring districts to pay the prevailing wage illegal.

“The appeals court concluded that R.C. 4115.04(B)(3) merely exempted school construction projects from the statutory prevailing wage scheme that automatically applies to other public projects,” Cordray explains. “In other words, the prevailing wage may not be statutorily required for school construction projects, but this exemption does not preclude a school district from incorporating prevailing wage as a contractual term.”

The attorney general points to the Ashtabula school board’s own language in approving the PLA.

“Although this project is exempt from and therefore not governed by Ohio’s prevailing wage law, each bidder who is awarded a contract for the project shall pay all wages for its mechanics, laborers or workers in amounts equal to or greater than those prevailing wages established for Ashtabula County pursuant to R.C. Chap. 4115 in effect on the date the contract documents are first made available to bidders…,” the board said in a project addendum issued September 2009.

Cordray argues, in fact, that the school district and OSFC’s right to proceed with the PLA rests not on the Strickland-backed resolution but on the permissive language of the Ohio Revised Code.

“The resolution simply acknowledged that school district authority and eliminated the need for a district to seek separate approval each time it wished to include prevailing wage as a contract term…,” he says, noting ABC was present when OSFC approved the resolution and did not object during public comment. “The resolution is a procedural convenience, not a font of substantive rights, and thus eliminating the challenged part of the resolution will do nothing to affect the right of school districts to require a minimum rate of pay for their projects.”

Cordray concludes by suggesting that a school board’s wisdom in approving a PLA should be adjudicated by local electors, not by the judiciary.

“Policy choices should be challenged at the ballot box, not in the courts.”

The Supreme Court has yet to decide whether to accept the case.