New Jersey builder will appeal ruling in fight over Hudson Tunnel project bidding process
One of the state’s biggest construction firms is appealing a federal ruling that rejected its request to halt bidding on a project that is part of the new multibillion-dollar tunnel under the Hudson River. The firm had argued that it was illegally shut out of the bidding process.
District Judge Susan Wigenton wrote in an 11-page decision that the Farmingdale-based George Harms Construction Co. had not proved it would likely win the case on its merits or that it would face “irreparable harm” by losing the bid.
The Dec. 11 ruling meant the company’s request for an injunction halting bidding for a portion of the $16 billion Hudson Tunnel Project couldn’t go forward.
But Harms’ attorneys said Thursday they plan to appeal based on part of the suit that Wigenton said may have a chance of succeeding: a First Amendment complaint claiming the commission’s project labor agreement would force the firm to pay into other unions’ employee benefit funds.
“Although we disagree with much of the district court’s ruling, the court correctly found that George Harms Construction Co. is likely to succeed on its claim that the Gateway Development Commission’s Project Labor Agreement violates the First Amendment,” company counsel Kevin Coakley wrote in a Thursday email to The Jersey Vindicator.
“We are now proceeding directly to the Third Circuit Court of Appeals to have this unconstitutional agreement declared null and void,” the statement continued. “This appeal is about protecting the fundamental constitutional rights of union workers and ensuring fair and lawful competition on a public, taxpayer-funded project.”
The controversy stems from a November lawsuit in which Harms alleged the bi-state commission — which oversees the federally funded tunnel project — adopted an illegal and discriminatory labor agreement clause that excludes qualified bidders, favors select unions, threatens to delay a key facet of the program, and wastes taxpayer funds.
The Gateway Program is a sweeping series of railroad upgrades meant to modernize and expand the train system that runs between New Jersey and New York City, as well as improve public transit up and down the East Coast.
Its centerpiece is a new two-tube tunnel that would double trans-Hudson rail capacity while giving workers time and space to rehabilitate the existing 115-year-old tunnel that was damaged during Superstorm Sandy more than a decade ago.
Harms’ suit sought to halt the bidding on what’s known as the New Jersey Surface Alignment Project, which will build a 7,500-foot-long viaduct and berm alongside the Northeast Corridor tracks so construction workers can connect the existing New Jersey line with the entrance of the proposed Hudson Tunnel.
But the commission adopted a project labor agreement that Harms claimed would unlawfully exclude the company’s roughly 200 union workers because they’re represented by the United Steelworkers.
“The [agreement] prevents Harms, and other similarly situated contractors, from bidding because Harms cannot recognize another union as the representative of its workforce under its [collective bargaining agreement] with the [United Steelworkers] and therefore cannot sign the letter of assent,” according to the lawsuit.
The lawsuit sought to revoke the project labor agreement, which “favors a group of hand-picked trade unions in violation of state and federal laws.”
Stephen Sigmund, the commission’s spokesman, wrote in an email that the agency is “pleased with the district court’s decision denying the plaintiff’s motion.”
“We continue the process for awarding the contract for this critical component of the Hudson Tunnel Project to help deliver the most urgent passenger rail project in the country,” Sigmund wrote.
The federal government is paying about $12 billion toward the Gateway tunnel project, while local sources contribute another $4 billion.
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Steve Janoski is a multi-award-winning journalist whose work has appeared in the New York Post, USA Today, the Associated Press, The Bergen Record and the Asbury Park Press. His reporting has exposed corruption, government malfeasance and police misconduct