A legal showdown over whether the Oregon Department of Transportation (ODOT) can sign project labor agreements (PLAs) is now in front of the Oregon Supreme Court, which held a hearing on it on Dec. 9.
The Oregon-Columbia chapter of Associated General Contractors — a construction trade group — sued ODOT in February 2023 when the state agency moved to implement a PLA known as a “community workforce agreement.” ODOT had negotiated the PLA with the Oregon State Building and Construction Trades Council and was preparing to solicit bids on eight projects worth $180 million that would be subject to it.
A PLA is an agreement with unions that sets terms and conditions on a construction project and guarantees that no strike or picket activity will disrupt it. ODOT’s PLA — signed in October 2022 by 25 local unions and six local building trades councils — would require contractors to use union hiring halls, give opportunities to apprentices, and make an effort to employ more women, minority, veteran, and local workers.
Even though AGC represents both union and nonunion construction contractors, AGC chapters around the country have been filing lawsuits against PLAs, saying they’re unfair to non-union contractors.
AGC-Oregon filed two separate lawsuits directly with the Oregon Court of Appeals in February 2023, challenging both the PLA itself and ODOT’s statutory authority to enter into it.
But the Court of Appeals seemed to take its time with the case. To stop queued up projects from going mainly to union contractors, AGC filed a separate suit in Marion County Circuit Court Jan. 12, 2024. That suit asked for a temporary injunction blocking ODOT from implementing the PLA until the Appeals Court could rule on the other suits. Judge Jennifer Gardiner granted the injunction Feb. 29, but didn’t issue her formal written opinion until April.
ODOT is the defendant in the lawsuits, but the Oregon Building Trades Council successfully petitioned to be added as a party to the court case so that it could take part in defending the legitimacy of the PLA.
ODOT and the building trades council appealed to the Oregon Supreme Court to overrule Gardiner’s injunction, and the court agreed, directing her to dissolve the injunction or show cause why it shouldn’t be dissolved. Gardiner hasn’t yet responded to that order.
By now, ODOT has moved forward without the PLA on five of the highway projects.
The Court of Appeals was supposed to hear arguments on the case in September.
But perhaps given the likelihood that one side or another would appeal the Appeals Court decision anyway, the Oregon Supreme Court decided to take the case out of the hands of the Appeals Court.
Dan Hutzenbiler of the law firm McKanna Bishop Joffe represents the Oregon Building Trades Council in the case. Hutzenbiler said the state supreme court justices seemed well-prepared and asked many questions during the 90-minute hearing Dec. 9, as they heard oral arguments from AGC, assistant Oregon Attorney General Jona Maukonen, and Hutzenbiler’s co-counsel Max McCullough.
The court isn’t taking any further legal briefings from the parties, so the Dec. 9 hearing is effectively the final argument before it decides the case. The court could take up to a year to make a decision, but Hutzenbiler thinks it’s unlikely to take that long. The court had no other hearings on its calendar the month before or the month after, suggesting this may be a priority case justices want to focus on.
