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ABC Loses Again in Quest to Prohibit PLAs on PA Prison Projects - (2/1/2011)

The Pennsylvania Supreme Court Jan. 18 dealt what may be the final blow to nonunion contractors seeking to bar the state from requiring project labor agreements on large prison construction projects (Hawbaker v. Pennsylvania, Pa., No. 111 MAP 2009, 1/18/11).

In a per curiam order, the state high court affirmed a December 2009 ruling in which the Pennsylvania Commonwealth Court denied a preliminary injunction motion by five Pennsylvania chapters of the Associated Builders and Contractors and dozens of open-shop contractors and nonunion workers in their lawsuit against the Pennsylvania Department of General Services (DGS).

At issue in the lawsuit is a DGS requirement that the successful prime contractor and all subcontractors on certain large prison construction projects execute a project labor agreement (PLA).

The lower court rejected the plaintiffs' arguments that a PLA requirement discriminates against nonunion contractors and workers by putting them at a competitive disadvantage and violates the National Labor Relations Act by requiring employers to recognize unions and workers to join unions.

The PLA mandate ultimately was dropped from two of the four major prison construction projects for which the state began seeking proposals in 2009.

PLAs Required in Two Prison Projects

PLAs are required in the other two projects, for construction of a 4,032-bed facility to replace the State Correctional Institute at Graterford in Montgomery County and a 2,000-bed facility in Fayette County, according to attorney Dana B. Klinges of Duane Morris LLP in Philadelphia, who represents the state.

DGS documents show the winning proposals for those projects came in at $179 million for the German Township facility in Fayette County and $323 million for Graterford, although final contracts have not been awarded yet.

Klinges said the state supreme court decision is “very significant” in that it confirms DGS's authority to use a PLA when it believes such an agreement is in the best interest of the state.

The Commonwealth Court ruling that was affirmed by the Pennsylvania Supreme Court was on a preliminary injunction motion, Klinges said, “so technically we have to continue on the merits” of the case in the lower court.

But she predicted that the plaintiffs will not pursue the issue further, in light of the rulings that have been handed down so far.

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