New York State Chapter, Inc. v. New York State Thruway Authority
| Decision Date | 22 December 1994 |
| Citation | 207 A.D.2d 26,620 N.Y.S.2d 855 |
| Parties | , 148 L.R.R.M. (BNA) 2274 In the Matter of NEW YORK STATE CHAPTER INC., Associated General Contractors of America, et al., Respondents, v. NEW YORK STATE THRUWAY AUTHORITY et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
G. Oliver Koppell, Atty. Gen. (Robert W. Kopp of Bond, Schoeneck & King, Syracuse, of counsel), New York City, for appellants.
Colleran, O'Hara & Mills (John F. Mills, of counsel), Garden City, for Local 40, appellant-intervenor.
Mudge, Rose, Guthrie, Alexander & Ferdon (Paul G. Burns, of counsel), New York City, for Allied Bldg. Metal Industries, appellant-intervenor.
Plunkett & Jaffe, P.C. (Louis R. Tomson, of counsel), Albany, for New York State Bldg. & Const. Trades Council, appellant-intervenor.
Bryant, O'Dell & Basso (Robert H. Basso, of counsel), Syracuse, for respondents.
Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.
Appeal from a judgment of the Supreme Court (Hughes, J.), entered September 2, 1994 in Albany County, which granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, inter alia, declare illegal the project labor agreement contained in a bid specification adopted by respondent State Thruway Authority.
At issue on this appeal is whether respondent State Thruway Authority can, as part of the competitive bidding process on a public construction project, impose a specification which requires the successful bidder to agree to abide by the provisions of a project labor agreement (hereinafter PLA) negotiated and executed by the project construction manager and the various labor unions that have jurisdiction over the work to be done during the project. Supreme Court held that the use of the PLA violates the competitive bidding provision of Public Authorities Law § 359 because it discourages competition by deterring nonunion bidders and fosters favoritism by dispensing advantages to unions and union contractors. The record establishes that the use of the PLA at issue in this case neither precludes nonunion contractors from bidding on the project nor requires the use of only union employees, and the Thruway Authority had a rational basis for concluding that the use of the PLA promotes the public interest that the competitive bidding statutes are designed to protect. We hold, therefore, that the use of the PLA in this case is a valid bid specification which does not violate the competitive bidding requirement of Public Authorities Law § 359.
The relevant project involves the refurbishment of the Thruway Authority's Tappan Zee Bridge and, according to the Thruway Authority, is the largest such construction project in size, complexity and cost since the bridge was constructed. Of the 23 major construction projects on the bridge since it was built, the successful bidder in 20 of those projects was a union contractor. Based upon the size of the current project and its prior experience on other projects, the Thruway Authority concluded that the likely successful bidder would be a union contractor, which would subject the work to the jurisdiction of some 19 local unions with separate labor contracts having different starting times, scheduling restrictions, holidays, grievance resolution procedures, and other terms and conditions of employment. The Thruway Authority also found that each of the labor contracts was scheduled to expire at some time during the term of the bridge construction project. In addition, one of the prior bridge projects in which a nonunion contractor was the successful bidder had resulted in a labor dispute which, according to respondents, caused delays and added administrative costs. Based upon its prior experience and due to concerns for potential labor relations problems and for potential problems associated with scheduling, the Thruway Authority hired a consultant to investigate the matter and to recommend the best means to achieve the efficient, safe and timely completion of the project.
The Thruway Authority thereafter directed its consultant to negotiate with the various trade unions having jurisdiction over the work to be performed during the project and to seek concessions from all the unions concerning work rules and other terms and conditions. The result of the consultant's efforts was the PLA which, inter alia, creates uniform procedures for dealing with all disputes, contains a comprehensive no-strike clause, establishes a standardized work week, permits flexibility in scheduling, and contains other provisions which, according to the Thruway Authority, standardize the terms and conditions of employment and will reduce the cost of the project. The PLA requires that employees be hired through union halls, except that contractors and subcontractors are permitted to retain up to 12% of their current work force. Union halls are expressly prohibited under the PLA from discriminating in the referral process against prospective employees based upon their union membership or lack thereof. The PLA also specifically recognizes that the successful bidder need not be a union contractor and that the unions will comply with the terms of the PLA regardless of whether the successful bidder is a union or nonunion contractor. The Thruway Authority approved the PLA and included in the project's specifications the requirement that the successful bidder and all subcontractors comply with the terms of the PLA.
Our analysis begins with petitioners' claim that the use of the PLA effectively created a "union only" qualification or precondition. The courts have struck down qualifications or preconditions imposed on prospective bidders for reasons other than the public policy fostered by the competitive bidding statutes (see, e.g., Associated Bldrs. & Contrs. v. City of Rochester, 67 N.Y.2d 854, 501 N.Y.S.2d 653, 492 N.E.2d 781). There is no evidence in the record, however, to demonstrate that the PLA requirement limits prospective bidders to union contractors only. An officer of one of petitioners, a nonunion contractor, alleges that the PLA bars his company from submitting a bid, but he offers no explanation or reason for his conclusion. The PLA is specifically made applicable regardless of whether the successful bidder is a union or nonunion contractor. In view of this provision, there is no support for petitioners' claim that the PLA excludes nonunion contractors. Nor is there any support for the theory...
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