PITTSBURGH – Allegheny County Community College and its president are now trying to dismiss litigation brought by builders and contractors who allege a project labor agreement would force them to unionize.
The plaintiffs first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 1 against Allegheny County Community College, its president Quentin B. Bullock and the Pittsburgh Regional Building Trades Council. The plaintiffs and defendants are all based in Allegheny County.
“The college’s ‘Project Labor Agreement’ (PLA) disqualifies businesses from receiving contracts or subcontracts for construction work unless they recognize a union affiliated with the Pittsburgh Regional Building Trades Council as the exclusive representative of their employees – even if the contractor’s employees have chosen not to unionize, and even if the contractor’s employees have chosen a different union to represent them,” according to the suit.
The college imposes this PLA on each of its construction projects, and it imposes these requirements on every contractor and subcontractor engaged in on-site construction work; requirements which the plaintiffs say violate the 1st and 14th amendments to the U.S. Constitution, the National Labor Relations Act and state laws pertaining to competitive bidding.
PLAs are also banned in 25 stated, the suit said.
On July 6, the Pittsburgh Regional Building Trades Council filed a motion to dismiss the action for lack of subject matter jurisdiction, failure to state proper claims for constitutional and state law violations, failure of the claims to be ripe for disposition and other supplementary rationales.
“None of the plaintiff contractors has alleged that it has suffered any harm as a result of the PLA requirement. None has alleged that it submitted bids to work on a CCAC project that were rejected due to the PLA requirement, or that the PLA has been applied to its detriment. In fact, none has even alleged that it ‘generally bids on these types of projects,’ or indeed, that is has ever worked on a CCAC project,” the dismissal motion read, partially.
“Moreover, nothing on the PLA’s face precludes the plaintiff contractors from bidding for or securing work under the PLA. Any alleged injury the plaintiff contractors have suffered by not obtaining work under the PLA is thus not ‘fairly traceable’ to the PLA, but rather, is the result of their own choices.”
The defense also raised the point that the contractors would not be required to join or financially support a union under the PLA.
“As is true for the plaintiff contractors, nothing in the PLA itself precludes the plaintiff employees from working on a CCAC project while maintaining their non-union status and refraining from financially supporting any union. The PLA explicitly provides that no employee covered by the PLA will be required to join any union or pay any agency fees, and that the unions’ referral systems will not be affected by obligations of union membership,” the motion continued.
The defense motion additionally argued that the complaint failed to state any violations of the National Labor Relations Act or Pennsylvania state law claims, and thus must be dismissed.
The plaintiffs are seeking a declaration that the agreement violates the 1st and 14th Amendments to the U.S. Constitution, the National Labor Relations Act and state laws pertaining to competitive bidding, the issuing of an injunction that prevents the defendants from enforcing the agreement, costs, attorney’s fees and other relief the court may deem just, proper or equitable.
The plaintiffs are Associated Builders & Contractors of Western Pennsylvania, Arrow Electric Inc., Hampton Mechanical Inc., Lawrence Plumbing LLC, R.A. Glancy & Sons Inc., Westmoreland Electric Services, LLC, Gregory H. Oliver Jr., Daniel Vincent Glancy, Robert L. Casteel, Jason Phillip Boyd and Robert A. Glancy IV.
UPDATE
An amended complaint filed on July 27 resulted in attorneys for Allegheny County Community College and Bullock filing to dismiss the case on multiple grounds, the first of which being that the plaintiffs lacked injury-in-fact standing under Article III of the U.S. Constitution.
“Plaintiff-contractors and plaintiff-employees cannot satisfy the threshold Article III standing inquiry: injury-in-fact. This is not a case where the plaintiff-contractors have submitted a bid but were denied. Nor is this a case where the terms of the PLA ban participation in the bidding process by plaintiff-contractors or their employees (which include the plaintiff-employees),” the defendants’ dismissal motion said, in part.
“To the contrary, this is a case where the plaintiff-contractors have not so much as described a project to which the PLA applies, let alone allege that they have attempted to bid on such a project. Thus, any purported injury the plaintiff-contractors and their employees contend to have suffered is merely hypothetical, and there is no basis upon which to infer that they have or will suffer an individual, particularized injury. Having failed to satisfy Article III’s standing requirements, plaintiff-contractors and plaintiff-employees’ claims fall outside of this Honorable Court’s jurisdiction.”
The defense also claims the plaintiffs’ claims are not ripe for adjudication.
“Because plaintiffs have failed to so much as identify a project subject to the PLA for which they have attempted to submit a bid, plaintiffs have left this Court to speculate as to contingent events – like the submission of a bid by plaintiff-contractors on a project covered by the PLA – that may or may not happen, and their claims are therefore unripe and must be dismissed accordingly,” the dismissal motion said.
Among other arguments, the defense says because the case presents a novel issue of state law, the proper use of project labor agreements, the Court should decline to exercise supplemental jurisdiction over plaintiffs’ state law claim.
The plaintiffs are represented by Thomas E. Weiers Jr. in Pittsburgh, Walter S. Zimolong III of Zimolong Law in Wayne and Jonathan F. Mitchell of Mitchell Law, in Austin, Texas.
The defendants are represented by Christopher R. Opalinski, Edward R. Noonan, F. Timothy Grieco and Sean J. Donoghue of Eckert Seamans Cherin & Mellott in Pittsburgh and Washington, D.C., Joshua M. Bloom in Pittsburgh, Jonathan D. Newman and Victoria Bor of Sherman Dunn, in Washington, D.C.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00649
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com