PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has vacated the dismissal of litigation brought by builders and contractors, who alleged project labor agreements between Allegheny County Community and Plum Borough with the Pittsburgh Regional Building Trades Council would have forced them to unionize, and remanded it to the lower federal court.
The plaintiffs first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 1, 2020 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 states, the suit said.
On July 6, 2020, 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 were 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.
An amended complaint filed on July 27, 2020 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 argued 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 said 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.
Another complaint of similar style was later separately filed against Plum Borough and then consolidated with the instant complaint.
UPDATE
Two years’ worth of litigation later, U.S. District Court for the Western District of Pennsylvania Judge W. Scott Hardy granted a previously-filed joint defense motion to dismiss the consolidated complaints on March 25, 2022.
“To the extent defendants seek the dismissal of plaintiffs’ first, second and third claims for relief pursuant to Rule 12(b)(1) based on lack of standing, that motion is granted in part and denied in part. To the extent defendants seek the dismissal of plaintiffs’ first, second and third claims for relief for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), that motion is granted, and those claims are dismissed without prejudice to amendment with sufficient facts to state a claim upon which relief can be granted. If plaintiffs choose to file amended complaints, then they shall do so by April 25, 2022, in which case defendants shall file their responses thereto by May 25, 2022. If plaintiffs do not file amended complaints by April 25, 2022, then their first, second and third claims for relief will be dismissed with prejudice, and their fourth claim for relief, alleging violations of state law, will be dismissed without prejudice to their ability to bring those claims in state court,” Hardy said.
When no amended complaints were filed, Hardy ultimately dismissed the complaint on its merits and in full on April 29, 2022 – leading the plaintiffs to appeal to the Third Circuit one month later.
16 months after that, in an Aug. 29 ruling, Third Circuit judges David J. Porter, Arianna J. Freeman and D. Michael Fisher decided that the plaintiffs lacked standing, and that the lower federal court’s dismissal, albeit on different grounds, would be upheld.
Fisher authored the Court’s ruling in this matter, explaining that the contractor plaintiffs had declared they would not bid on PLA-covered projects and the employees did not plead that they planned to work on PLA-covered projects. As a result, the Third Circuit felt those parties had not experienced factual economic harm and thus, lacked standing to bring their claims.
“Concreteness and particularity, however, are but two of the requirements under Article III. Plaintiffs’ concrete injuries must also be actual or imminent. To be ‘imminent,’ either a threat of injury must be ‘certainly impending,’ or there must at least be ‘a substantial risk that the harm will occur. But when the contractors declare they never have and never will bid on PLA-covered projects, they plead themselves out of court by admitting they never experienced and never will experience a compelled association or economic harm. The employees fare no better. To the extent the contractors’ declarations are a proxy for determining the actuality or imminence of harms to their employees, the contractors clearly tell us they have not and will not bid on PLA-covered projects,” Fisher said.
“Thus, as far as we can tell, neither will the employees be subjected to the terms of the PLAs by way of being employed by bid-winning contractors. Even more, as the District Court rightly noted, the employees plead no facts, beyond what can be gleaned from the contractors’ declarations, that they desire to, actually did, or intend to work on PLA-covered public projects. The mere fact that the contractors claim they are ‘able and ready’ to bid or work on PLA-covered public projects does not cure their failure to bid in the past and admitted refusal to bid in the future. And without an actual or imminent injury, evidenced by a past bid or an intent to make a future bid, we cannot distinguish plaintiffs ‘from a person with a mere interest’ in stopping the Community College’s and the Borough’s use of PLAs on public projects. Therefore, we conclude plaintiffs lack Article III standing to maintain their claims in federal court.”
Fisher explained the case would be remanded for further proceedings.
“Though we agree with the District Court that plaintiffs’ complaints should be dismissed, we reach that conclusion based on jurisdictional rather than substantive defects in plaintiffs’ allegations. The District Court dismissed plaintiffs’ federal claims with prejudice after reviewing each of them under Federal Rule of Civil Procedure 12(b)(6) and upon plaintiffs’ failure to file amended complaints. However, ‘a dismissal for lack of subject matter jurisdiction is not an adjudication on the merits and thus should be ordered ‘without prejudice.’ Because we conclude plaintiffs lack standing rather than fail to state a claim, we are unable to affirm the District Court’s dismissal with prejudice of plaintiffs’ federal claims. Instead, we will vacate the District Court’s dismissal with prejudice and remand with instructions to dismiss the federal claims without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1),” Fisher concluded.
“Article III standing is ‘not merely a troublesome hurdle to be overcome if possible so as to reach the merits of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787.’ Bound by the limits of our constitutionally-endowed power, we conclude dismissal without prejudice is appropriate because plaintiffs lack standing. Thus, we will vacate and remand with instructions for the District Court to dismiss the federal claims without prejudice, and we will affirm the dismissal of the state law claims.”
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. Court of Appeals for the Third Circuit cases 22-2030 & 22-2031
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