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Judge Issues Injunction to Block Braintree's Anti-Merit Shop Policy

'I ISSUE A PRELIMINARY INJUNCTION requiring the Town of Braintree to open the South Middle School project for rebid without including a Project Labor Agreement in the project documents.'

- Judge Paul D. Wilson, Justice of the Superior Court,

Sept. 10, 2021

  • The Merit Construction Alliance joined industry allies to file for a preliminary injunction.

  • Braintree issued PLA with bid documents on August 12.

  • Judge rules Braintree failed to meet two-prong test set by Callahan v. Malden.

Norfolk Superior Court Judge Paul D. Wilson has issued a preliminary injunction to block the Town of Braintree's project labor agreement on the $73 million South Middle School project. The judge ordered the town to rebid the project without a PLA, which will enable the 40 merit shops who prequalified to work on the project to bid and work using their own permanent employees and not temporary hires from the unions.

A PLA is a pre-hire agreement that requires labor on a project to be referred by the union hall and makes other requirements on contractors, including paying into union benefits, pension and other funds. It mandates all workers on a job be union members. Organized labor pressures public and private entities to adopt PLAs to create a monopoly by making false claims of benefits such as being on-time and on-budget, higher quality and safer.

Highlights of Wilson's ruling:

  • Braintree failed to meet it's burden of "demonstrating that it adopted a PLA to further the purposes of the competitive bidding statute.

  • Braintree failed to meet both prongs of the Supreme Judicial Court's ruling in the landmark case Callahan v. Malden: "[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 the statutory goals."

  • No PLAs on single school projects. Wilson wrote, "the PLA here would apply to only the construction of one school. Although Callahan was careful 'not [to] articulate a bright-line, litmus-test standard for determining when the use of a PLA is appropriate,' ... the court did note, 'In most circumstances, the building of a single school will not, in and of itself, justify the use of a PLA.'"

  • PLA cost increases undermine bidding statue. The Braintree School Building Committee was advised by it's owner's project manager, Hill International, that the

PLA would impact cost, to which the judge noted "the effect would be in the upward direction, thereby undermining the legislature's intent that the competitive bidding statute protect the public fisc by lowering public project construction costs."

  • Town failed to conduct careful, reasoned process. Noting the two SBC meetings at which the PLA was discussed, Judge Wilson wrote, "I conclude that the discussion described in the minutes is not the 'careful, reasoned process to conclude that the adoption of a PLA furthered the statutory goals' required by Callahan."

  • PLAs cause irreparable harm, the judge ruled. "The disadvantages imposed on the contractor Plaintiffs by Braintree's use of the PLA effectively render those Plaintiffs unable to compete for work on the South Middle School project. Therefore Plaintiffs have established irreparable harm."

  • The town can rebid and meet it's goal to open for the 2023 school year. "Fortunately, rebidding the project now, while it would certainly cause difficulties, would still permit completion of the new school itself well before the beginning of the aimed-for school year," the ruling states.

  • Braintree officials brought this on themselves. "Unfortunately, Braintree chose to pursue that interest (a PLA) without considering its own very recent experience in renovating and expanding East Middle School, a project completed expeditiously, untroubled by labor-related delays, despite the absence of a PLA," the ruling states.

In late August, the Merit Construction Alliance, the Associated Builders and Contractors Mass. Chapter, and merit shops who were prequalified by the town to bid on the project filed a lawsuit and request for a preliminary injunction to stop the Town of Braintree from moving forward with the PLA.

Of the approximately 80 bidders prequalified by the town, more than half are merit shops. In the electrical category, only merit shops were prequalified, so no bids are expected for that trade. The prequalified merit shops will now be able to bid with the removal of the PLA.



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