A state Superior Court judge has granted a preliminary injunction to plaintiffs that include ABC Massachusetts and member contractor Fernandes Masonry to prohibit the Town of Braintree from including a project labor agreement (PLA) on its project to build a new South Middle School.
PLAs require all jobsite labor on a project to come from unions, even though more than 83% of Massachusetts construction workers choose not to join a union.
Parties seeking an injunction must show:
- (1) A likelihood of success on the merits
- (2) That they would suffer irreparable harm absent the injunction, and
- (3) That risk is greater than risks the opposing party would face if the injunction were not granted
Judge Paul D. Wilson found that the plaintiffs “likelihood of success [on the merits] is strong.
In terms of irreparable harm, Judge Wilson importantly agreed that the PLA would “effectively preclude plaintiff contractors from winning contracts on the South Middle School project, and so the [p]laintiff contractors have decided not to submit bids. He also noted that the plaintiffs met the “irreparable harm” requirement because, absent the injunction, by “the time this case is decided on the merits, the project will be well underway, and perhaps completed.”
In comparison, he noted that the injunction would only cause a one-month delay, and the school would still be on track to open for the beginning of the 2023-24 school year.
In John T. Callahan & Sons v. Malden, the Massachusetts Supreme Judicial Court ruled that when a public body in Massachusetts proposes to include a PLA, a two-part test should be applied:
- [A] PLA will not be upheld unless (1) a project is of such size, duration, timing and complexity that the goals of the competitive bidding statute cannot otherwise be achieved and (2) the record demonstrates that the awarding authority undertook a careful, reasoned process to conclude that the adoption of a PLA furthered statutory goals.
Judge Wilson found that Braintree fell short on both prongs of the test. He quoted Callahan, not ing that “[I]n most circumstances, the building of a single school will not, by itself, justify the use of a PLA.” He also added that the recently completed expansion and renovation of the town’s other middle school was arguably a larger and more complex project, since it was completed while school was in session.
As for the second prong, the judge noted that the proposed PLA was only briefly discussed at two meetings that were six months apart, and that only a total of three School Committee members even addressed the topic.
Bidding on the South Middle School project is expected to move forward in about a month, with the participation of open shop contractors!
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