Waiving the White Flag: PennDOT Withdraws Appeal of Commonwealth Court’s Markley Street PLA Decision

Kristi Pronovost The Merit Shop Advocacy Blog, The Merit Shop Spokesman Blog

By Brent Sailhamer, Director of Government Affairs, ABC Keystone

In 2017, the Pennsylvania Department of Transportation (PennDOT) took an innovative step and announced that they would be attempting to use a project labor agreement (PLA), requiring bidders to hire from prescribed union halls, rather than use their own employees. The trial balloon was the brainchild of Secretary Leslie Richards, who had previously served as a county commissioner in Montgomery County, where the PLA was slated to be applied to a road reconstruction project. Secretary Richards was adamant about the attempt and defended the practice in front of members of the legislature as several budget hearings, claiming that PLAs were recommended by colleagues in other states as a way to cut costs and deliver the project ahead of schedule. In fact, data suggests the exact opposite – PLAs have been shown to expand project budgets, delay timelines, and – perhaps worst of all – ignore local labor by hiring from faraway union halls.

Shortly after the department’s decision to proceed with such a discriminatory practice, ABC and members filed suit, demonstrating a clear attempt to skew the playing field. In January of 2019, the Commonwealth Court agreed with ABC and an en banc panel unanimously ruled against the department in a strongly-worded decision that called out the attempt to shut out 86% of the construction industry. Out of options, PennDOT persisted, filing an appeal with the Pennsylvania Supreme Court, which holds a strong majority of Democratic justices, including Kevin Dougherty, the brother of now-indicted IBEW Local 98 boss John Dougherty.

Similar to the U.S. Supreme Court, the Pennsylvania Supreme Court has ultimate discretion, meaning it can decide which cases the court will hear. Less than 10% of all appeals for a hearing are actually granted, however, this case was so unique – particularly because of the direct involvement of IBEW Local 98 as a named union hall in the PLA – that legal experts couldn’t make a clear determination on which way the court would lean.

Late last week, it appeared that PennDOT saw the writing on the wall as they unceremoniously withdrew their petition before the Supreme Court. While the department issued no statement on their decision to not seek an appeal to the Commonwealth Court decision, it’s clear that the odds were against them. The Commonwealth Court issued a harsh rebuke of PLAs in their decision and the odds were slim that the Supreme Court would even hear the case. Now, with the appeal gone, the cases stand as strong case law against the use of PLAs in Pennsylvania.

March 11, 2019