Game Over – Commonwealth Court Issues Ruling Voiding Markley Street PLA

Kristi Pronovost Merit Shop Spokesman Blog

By: Brent Sailhamer, Director of Government Affairs, ABC Keystone

 Just days before President Donald Trump took the oath of office in 2017, Pennsylvania Department of Transportation (PennDOT) Secretary Leslie Richards sent a request to the U.S. Department of Transportation for the use of a union-only project labor agreement (PLA) on the reconstruction of Markley Street, a busy intersection in Montgomery County. The $25 million planned reconstruction was utilizing federal funding and, in the waning days of the Obama administration, the request was granted easily. But the request set forth a battle that would end just recently.

Years prior to the 2017 request, an initial phase of reconstruction adjacent to the Markley Street intersection had been performed by PennDOT contractor and ABC member J.D. Eckman. The project was completed ahead of schedule and under budget – normal procedure for Eckman and one of the reasons they do a large volume of PennDOT work. Now, with the announcement of the larger second phase of Markley Street, Eckman was in prime position to finish the work they had started earlier. But Richards’ long-standing relationship with Montgomery County organized labor, developed during her tenure as a county commissioner there, stopped Eckman’s momentum. While rumors had been circulating about a union-only labor requirement for the project, Richards confirmed the intent to use a project labor agreement (PLA), a pre-hire collective bargaining agreement that required potential bidders to hire from local labor halls rather than use their own labor, at Appropriations hearings in Harrisburg in 2017. Her justification was that she had heard from contemporaries across the country about the value of PLAs for a project and their work in bringing a project in under budget and without work stoppage.

Not long after her comments before the House and Senate panels, ABC, along with members including J.D. Eckman, Inc. and Allan A. Myers, Inc., filed separate lawsuits, claiming discriminatory hiring practices and violation of Procurement Code by the Department. The case landed before the Commonwealth Court and early on, PennDOT signaled internal chaos over the suit. At an initial hearing for the case, PennDOT appeared and abruptly announced that they would be dropping the project, seemingly ending the need for further legal action. Months later, and just days before Christmas, PennDOT re-ignited the project and doubled down on their intent to force union-only labor. ABC and its partners pushed back, firing up the legal machine again. This time, there was no going back.

One of the critical issues was an exemption for the United Steelworkers (USW), who would potentially participate in the project. Initially, USW was subject to the same requirements as any other bidder – they would be forced to draw labor from pre-specified labor halls. The strenuous requirement pushed USW to side with open shop contractors and join as a party to the lawsuit against the Department. As a response, Richards redesigned the PLA, allowing an exemption for USW, who were now free to use their own employees.

On January 11, 2019, the Commonwealth Court finally issued a ruling against the Department, siding with both Myers and Eckman in that PennDOT had violated fair contracting practices. The order voided the PLA, citing specifically the exemption for USW as a key component to a two-tiered bidding system. While there has been no response from PennDOT to date, the ruling is a major victory for the merit shop against PennDOT’s first attempt at a project labor agreement in history.

January 14, 2019