The widespread use of Project Labor Agreements (PLA) on City of Philadelphia (City) public works projects may be headed for a swift demise.
On April 18, 2019, four union-affiliated contractors – Road-Con, Inc., Neshaminy Constructors, Inc., Loftus Construction, Inc., and PKF-Mark III – and an employee of Road-Con filed a lawsuit in U.S. District Court in Philadelphia seeking an injunction against the City’s blanket use of PLAs on City public works projects in excess of $3 million. The four contractors are signatory to collective bargaining agreements with the United Steelworkers of America and the Road-Con employee is a member of the United Steelworkers.
The lawsuit alleges that the City’s PLA – which favors the Philadelphia Building & Construction Trades Council, a group of 31 local building trades unions, to the exclusion of the United Steelworkers and other unions – effectively prohibits, improperly, the four contractors from bidding on two specific construction projects as well as others. The lawsuit also alleges that the PLA violates the First Amendment rights of the Road-Con employee and other employees by forcing them to join one of the favored local unions if their employer is awarded a contract covered by the PLA. Finally, the lawsuit alleges that the use of the PLA violates the public bidding laws generally applicable to City contracts and also violates the City’s Home Rule Charter.
Mike Dunn, a spokesperson for Philadelphia Mayor Jim Kenney, is quoted as saying that PLAs are not inherently exclusionary. According to Dunn, “Project Labor Agreements allow any entity to bid on a project as long as it agrees to use Philadelphia Building and Construction Trades Council labor for the execution of the work.” Despite this position, the City has already removed the use of a PLA from the two projects named in the lawsuit. According to Dunn, this action was taken solely to “allow those two urgent projects to move forward without delays from this lawsuit.”
My sage prediction? Setting aside the admittedly novel arguments based on the First Amendment, based on the recent Myers and Eckman decisions of the Commonwealth Court, it will be virtually impossible for the City to defend its use of PLAs on City public works projects, and the City will likely be preliminarily enjoined from using PLAs in their present form. For reference, my post on the Commonwealth Court’s landmark decisions in Myers and Eckman can be found here.
For further reference, the PlanPhilly article on the lawsuit can be found here.
If you need assistance with a public contracting issue, feel free to call or email me. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
