On December 1, 2022, the Third Department issued a critical decision captioned Empire Chapter of the Associated Builders and Contractors, Inc. v. New York State Department of Transportation requiring the New York State Department of Transportation (“DOT”) to disclose the feasibility study it relied upon to implement a Project Labor Agreement (“PLA”) on a public works project.
Pursuant to Labor Law § 222(1), a PLA is a “pre-hire collective bargaining agreement between a contractor and a bona fide building construction trade labor organization establishing the labor organization as the collective bargaining representative for all persons who will perform work on a public work project, and which provides that only contractors and subcontractors who sign pre-negotiated agreement with the labor organization can perform project work.” Moreover, a PLA generally requires all bidders to conform to a variety of union practices and limits their autonomy to negotiate employment terms with a labor pool that includes nonunion workers, often deterring or precluding open-shop contractors from submitting a bid.
As many contractors and subcontractors know, however, PLAs may not be approved in a pro forma manner and shall only be permitted in certain limited circumstances. Specifically, Labor Law § 222(2)(a) explains that PLAs are justified only upon a showing that it will result in obtaining the best work at the lowest possible price, preventing favoritism, fraud and corruption, and other considerations such as the impact of delay, the possibility of cost savings advantages, and any local history of labor unrest. In order to satisfy this statute, DOT, among other local and state agencies letting public works projects, rely on feasibility studies; these studies are rarely disclosed.
At issue before the Court was whether a request for a feasibility study, sought by a trade association representing, among others, contractors and subcontractors, as part of a Freedom of Information Law (“FOIL”) request, was wrongfully denied on the basis that the study was exempt from disclosure as an intra-agency material and by the attorney client privilege.
The Third Department unanimously agreed that neither of DOT’s claimed exemptions applied and ordered DOT to provide the feasibility study to the trade association.
The Empire Chapter Decision should send a clear message to DOT, and other local and state agencies and public authorities, that the feasibility studies relied upon to implement PLAs must now be provided when faced with a FOIL request. This includes requests submitted prior to contract award.
If you have any questions concerning PLAs or FOIL requests or wish to discuss how to obtain a PLA feasibility study related to a public project, please contact Charles Carluccio at firstname.lastname@example.org.