Road-Con, Inc. v. City of Phila.

449 F.Supp.3d 476

ROAD-CON, INC., et al.

v.The CITY OF PHILADELPHIA, et al.

CIVIL ACTION No. 19-1667

United States District Court, E.D. Pennsylvania.

Filed March 27, 2020

Walter Stephen Zimolong, Zimolong LLC, Villanova, PA, Jonathan F. Mitchell, Mitchell Law PLLC, Austin, TX, for Plaintiffs.

Amy Marie Kirby, Lydia M. Furst, City of Philadelphia, Philadelphia, PA, for Defendant.

MEMORANDUM

Juan R. Sánchez, C.J.

Plaintiffs Road-Con, Inc., Neshaminy Constructors, Inc., Loftus Construction Inc., PKF-Mark III, Inc., and Scott Lacava have brought this labor case against Defendants The City of Philadelphia and Mayor James Kenney in his official capacity. They allege the City and the Mayor have been using project labor agreements on all City construction projects. These project labor agreements require contractors' employees who work on City projects to become members of certain unions. Plaintiffs allege Defendants' use of these agreements violates the First Amendment, the National Labor Relations Act, and state and city laws on awarding construction contracts.

Defendants have moved to dismiss this case both for lack of jurisdiction and failure to state a claim. This Court has jurisdiction, and Plaintiffs have stated a claim for violations of the First Amendment. However, Plaintiffs have not stated a claim for violations of federal, state, or local laws and these claims will be dismissed. Therefore, Defendants' motion to dismiss will be granted in part and denied in part. The Court will also grant Plaintiffs leave to amend their Complaint to restate their state and local law claims.

BACKGROUND¹

Road-Con, Neshaminy, Loftus, and PKF-Mark III are construction contractors. They are each bound by a collective bargaining agreement with the United Steelworkers Union. Many of their employees, including Plaintiff Scott Lacava, are members of this union. The Contractor Plaintiffs have worked on public construction projects in Philadelphia for state agencies like the Pennsylvania Department of Transportation. They have all qualifications necessary to work on construction projects for the City of Philadelphia. They would like to bid to work on those projects, but are allegedly prevented from doing so because the City requires contractors on City projects to sign project labor agreements.

From at least as early as 2017, the City has allegedly included mandatory project labor agreements on all City construction projects worth over $3 million. These agreements are between the contractor working on the project and unions affiliated with the Philadelphia Building and Construction Trades Council. Any contractor who bids on a City projects must be willing to sign the accompanying project labor agreement with the Trades Council Unions. The Trade Counsel Unions do not include the United Steelworkers. Therefore, the Contractor Plaintiffs cannot maintain their agreements with the United Steelworkers while working on City projects.

The project labor agreements used by the City have the following relevant provisions: First, the agreements mandate that the contractors' employees working on the project must become members of the applicable Trades Council Unions or, if the employees are already members of those unions, they must remain members throughout the project. Compl., Ex. B, Art. III, § 5. Second, the agreements require the contractors to recognize the unions as the sole bargaining representative of their employees on the project. Id. at § 1. Third, the agreements require the contractors to contact the unions when they are looking for employees to work on the project, and the agreements give the unions 48 hours to refer employees to the contractors before the contractors may seek employees elsewhere (the parties refer to this provision as requiring the use of union hiring halls). Id. at § 2. Finally, the project labor agreements incorporate the unions' collective bargaining agreements, so contractors must abide by those agreements to the extent they do not conflict with the project labor agreement itself. Id. at Art. II, § 4(b).

In their Complaint, Plaintiffs identify two recent City construction projects that were subject to these project labor agreements: the 15th Street Bridge Project and the Runway Project. As with previous projects, these projects included a project labor agreement with several Trade Council Unions. See generally Compl., Exs. C & D. In March 2019, Road-Con contacted the City about bidding on the 15th Street Bridge Project. Road-Con explained it had a collective bargaining agreement with the United Steelworkers and asked if the United Steelworkers could be added to the City's project labor agreement. The City responded that the United Steelworkers could not be added because the agreement included only the Trade Council Unions.

Plaintiffs filed this case on April 17, 2019. They brought four claims alleging: violations of employees' First Amendment rights to free speech and free association; violations of the employees' rights under the National Labor Relations Act (NLRA); violations of Pennsylvania and Philadelphia competitive bidding laws; and violations of the Philadelphia charter and rules governing City contracts.² Plaintiffs seek monetary damages, an injunction to prevent the City from continuing to use project labor agreements, and declaratory relief.

Less than a week after Plaintiffs filed this case, the City removed the project labor agreements from the bidding requirements for the 15th Street Bridge Project and the Runway Project. As a result, Plaintiffs Road-Con and Loftus submitted bids for these projects.

Then, in May 2019, the City advertised for bids on a new construction project: the Return Sludge Line Project. As with past City construction projects, this project included a mandatory project labor agreement with certain Trades Counsel Unions. Plaintiff PKF-Mark III had all necessary licenses and certifications to work on this project. PKF-Mark III did not submit an application to bid on this project. PKF-Mark III states it would have done so if the project had not included a project labor agreement.

Defendants have moved to dismiss this case under Federal Rules of Procedure 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state a claim. They argue this Court lacks jurisdiction because the case is either moot or unripe. They also argue Plaintiffs fail to state a claim on each of the four counts in their complaint.

DISCUSSION

The Court will grant Defendants' Motion to Dismiss in part. The Court has jurisdiction to hear this case and Plaintiffs have pleaded a First Amendment claim, but Plaintiffs have failed to plead their claims under the NLRA and state and local laws. Plaintiffs' NLRA claim is foreclosed because a government entity can enforce a project labor agreement in the construction industry under the NLRA. Plaintiffs have not pled their state and local law claims because those claims may only be brought by local taxpayers. Because Plaintiffs assert they are local taxpayers in their brief, the Court will allow them leave to amend their Complaint to include this allegation.

A. Jurisdiction

The Court has jurisdiction over this case. Ignoring all past use of project labor agreements, and all future potential use of project labor agreements, Defendants seek to use the doctrines of mootness and ripeness to limit this Court's jurisdiction to the short window when bidding is open on a new City project using a project labor agreement. The Court's jurisdiction is not so limited. This case is not moot because the Court can grant money damages for harm Plaintiffs' suffered on past projects, and the Court can grant injunctive relief to enjoin Defendants' general policy of using project labor agreements on all future City projects. Similarly, the case is ripe because the Plaintiffs challenge the Defendants' policy of using project labor agreements, which has allegedly been in place for several years before this lawsuit. The Court will first address mootness and then address ripeness.

A district court does not have jurisdiction to hear a case that has become moot. Freedom from Religion Found. Inc. v. New Kensington Arnold Sch. Dist. , 832 F.3d 469, 475-76 (3d Cir. 2016). A case becomes moot when the parties no longer have any interest in the outcome of the case. Id. at 476 ; see also Knox v. Serv. Emps. Int'l Union, Local 1000 , 567 U.S. 298, 307-08, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ("As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." (internal citations omitted)). In other words, "[a] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Id. at 307, 132 S.Ct. 2277 (internal quotations omitted).

Plaintiffs' case is not moot here because the Court can grant Plaintiffs some relief. Plaintiffs' case is not limited to the two projects for which the City has withdrawn its project labor agreements. While the injunctive relief Plaintiffs seek on those two projects can no longer be granted, this does not moot the entire case. See Doe v. Delie , 257 F.3d 309, 314 (3d Cir. 2001) ("[W]here a plaintiff has requested several forms of relief and some of the requests become moot, the court must still consider the viability of the remaining requests."). Plaintiffs can still seek relief because they were allegedly prevented from bidding on all City projects from 2017 to the present due to unconstitutional project labor agreements. Compl., ¶¶ 34-35, 49-50. Based in part on this injury, Plaintiffs seek monetary damages under 42 U.S.C. § 1983.³ Compl., p. 22. Cases like this one which seek monetary damages for past wrongs cannot be mooted by the Defendants' subsequent behavior. Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res. , 532 U.S. 598, 608–09, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ("[S]o long as the plaintiff has a cause of action for damages, a...