183 F.3d 799 (8th Cir. 1999), 98-2884, Hanten v. School District of Riverview Gardens

Docket Nº:98-2884 No. 98-2963
Citation:183 F.3d 799
Party Name:DAVID HANTEN, DAVID HUNTER, KEVIN LINCOLN, GREGORY ZIMONT, K.C. HEATING, COOLING AND SHEET METAL, INC., APPELLANTS/CROSS-APPELLEES, v. THE SCHOOL DISTRICT OF RIVERVIEW GARDENS, EDWARD EVERS, MICHELLE GOTTHARDT, DAVID HOLTGREFE, RICHARD HUNT, KATHY KITCHEN, MICHAEL QUINLAN, RUDY SMITH, CHRIS WRIGHT, APPELLEES/CROSS-APPELLANTS.
Case Date:April 20, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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183 F.3d 799 (8th Cir. 1999)

DAVID HANTEN, DAVID HUNTER, KEVIN LINCOLN, GREGORY ZIMONT, K.C. HEATING, COOLING AND SHEET METAL, INC., APPELLANTS/CROSS-APPELLEES,

v.

THE SCHOOL DISTRICT OF RIVERVIEW GARDENS, EDWARD EVERS, MICHELLE GOTTHARDT, DAVID HOLTGREFE, RICHARD HUNT, KATHY KITCHEN, MICHAEL QUINLAN, RUDY SMITH, CHRIS WRIGHT, APPELLEES/CROSS-APPELLANTS.

No. 98-2884 No. 98-2963

United States Court of Appeals, Eighth Circuit

April 20, 1999

        June 21, 1999

        Appeal from the United States District Court for the Eastern District of Missouri

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        Before Beam and Hansen, Circuit Judges, and KOPF,1 District Judge.

        Kopf, District Judge.

        Does a school district's preference for union labor, expressed in construction bid specifications, violate the constitutional right of non-union employees to freely associate when the school district, in conformity with the preference, requires the successful contractor to engage a union-only subcontractor? We decide that such a preference and the conduct in conformity with that preference do not violate the right of non-union employees to freely associate.

        K.C. Sheet Metal, a non-union heating and air conditioning shop, three of its employees and a taxpayer appeal. The plaintiffs

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sued the defendant school district, its superintendent and individual board members alleging that they unlawfully prohibited the company and the employees from working on a school building project.

        Specifically, the plaintiffs appeal from the district court's2 decision granting defendants' motion to dismiss Counts I through IV of the first amended complaint, and granting summary judgment on Count V. See Hanten v. School District of Riverview Gardens, 13 F.Supp.2d 971 (E.D. Mo. 1998). The defendants cross-appealed the denial of an earlier motion for summary judgment based only on damages. They concede that the cross-appeal will be moot if this court affirms the district court's dismissal and summary judgment decisions.

        We affirm the district court's decision granting dismissal of the complaint regarding Counts I through IV. We also affirm the district court's decision granting summary judgment on Count V. The cross-appeal is therefore moot.

        I. Background

        We first examine the complaint and then review the facts. We proceed to those tasks next.

        A. The Complaint

        K.C. Sheet Metal's first amended complaint sought legal and equitable relief under 42 U.S.C. § 1983, Missouri's "Open-Bidding" statute, Mo. Rev. Stat. § 177.086 (West 1999) and Missouri's "Sunshine" law, Mo. Rev. Stat. § 610.010 et seq. (West 1999). The plaintiffs alleged the defendants violated their First and Fourteenth Amendment rights and the state statutes when the defendants removed K.C. from the general contractor's bid and replaced it with a union subcontractor.

        They asserted these claims in five counts. In Count I, the K.C. employees, but not the other plaintiffs, claimed a violation of their right to free association. In Count II, K.C. Sheet Metal, but not the other plaintiffs, claimed that it had been deprived of a property interest without due process of law. In Count III, K.C. Sheet Metal and its employees alleged a conspiracy to deprive K.C. of a property interest and to violate the employees' right to free association. Regarding Count IV, the taxpayer alleged a violation of the Missouri "Open-Bidding" statute. In Count V, all of the plaintiffs alleged a violation of the Missouri "Sunshine" law.

        The specific allegations pertinent to our Discussion are found in paragraphs 9 through 32 of the First Amended Complaint. In those paragraphs they allege the following:

        "ALLEGATIONS COMMON TO ALL COUNTS"

        "The Union Representation Election"

        "9. On March 28, 1997, the National Labor Relations Board conducted an election at K.C. to determine whether its Employees, including the Plaintiff Employees, wanted to be represented by Local 36, Sheet Metal Workers International Association, AFL-CIO (" Sheet Metal Workers Local 36")."

        "10. Sheet Metal Workers Local 36 is a member of the St. Louis Building and Construction Trades Council of St. Louis, AFL-CIO."

        "11. In the election, K.C. 's Employees (including the Plaintiff Employees) voted to reject Sheet Metal Workers Local 36. In so voting, the Employees exercised their right of free association guaranteed by the First and Fourteenth Amendments of the United States Constitution."

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        "The Bid Specification"

        "12. On or about May 30, 1997, the Board of Education of the Riverview Gardens School District issued a bid specification (" Specification") soliciting sealed bids for construction of the Moline Elementary School (" the School Project")."

        "13. The Specification "encouraged" bidders to enter into a collective bargaining agreement for the School Project "with the St. Louis Building and Construction Trades Council, AFL-CIO" but did not require contractors to enter into such collective bargaining agreements."

        "14. The Specification stated that all subcontractors were covered by the terms and conditions of the General Contract."

        "The Wachter Bid"

        "15. One of the companies who submitted a bid for the School Project was Wachter, Inc. (" Wachter")."

        "16. In compiling its bid, Wachter solicited proposals for the Project from various subcontractors, including K.C."

        "17. K.C. 's mechanical subcontracting bid was the lowest responsible mechanical subcontractor bid submitted to Wachter for the School Project. Accordingly, Wachter listed K.C. as the mechanical subcontractor in the bid Wachter submitted to the School Board (the "Wachter Bid Documentation")."

        "18. At the time Wachter submitted its Bid Documentation listing K.C. as the mechanical subcontractor, the two companies had had extensive prior dealings as general contractor and subcontractor on construction projects, including publicly-funded projects."

        "19. In accordance with the Specification, Wachter had listed on its Bid Documentation all of the subcontractors whose bids it planned to incorporate into its bid for the School Project and whom it planned to use to perform subcontracting work on the School Project."

        "20. Of the eighteen subcontractors listed in the Wachter Bid, only K.C. and the electrical subcontractor (Crown Electrical Contracting, Inc.) were not signatory to an AFL-CIO collective bargaining agreement."

        "The Contract Award"

        "21. The bids for the School Project were publicly opened and read aloud on the morning of June 24, 1997. Wachter was the low bidder, with a bid of $4,868,550.00."

        "22. When Wachter learned that it was the low bidder, a Wachter representative contacted K.C. to advise that they had won the job and that K.C. should get ready for work."

        "23. On the evening of June 24, 1997, the School Board was scheduled to hold a meeting at which it was to vote on the award of the contract for the School Project. The written agenda for the School Board meeting did not properly specify any closed session for review or consideration of the bids on the School Project."

        "24. On information and belief, at some time after the issuance of the Specification on or about May 30, 1997, and prior to the vote on the bid award during the School Board meeting on June 24, 1997, the School Board went into an improper closed session in violation of the Missouri Sunshine Law (§ 610.010 et seq., R. S. Mo.) for the purpose of secretly changing the Specification to prohibit the use of any subcontractor on the School Project whose employees were not represented by an AFL-CIO union."

        "25. Upon information and belief, this improper closed session was:"

        "a. a single meeting attended by a quorum of the School Board; or"

        "b. a series of meetings attended by different members of the School

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Board (sometimes including defendant Wright), with each such meeting involving numbers less than a quorum but totaling a quorum when taken together, all for the purpose of avoiding the requirements of the Sunshine Law in order that the School Board could conduct secret deliberations and make a secret decision to deviate from the Specifications, with a public meeting thereafter held to ratify the consequences of the policy decision that had been made in private."

        "26. On information and belief, during the closed session or sessions the School Board decided to secretly change the Specification and eliminate all subcontractors whose employees were not represented by an AFL-CIO union."

        "27. Thereafter, the School Board voted to award the contract for the School Project to Wachter at a cost of $5,321,674.00, which was $453,124.00 above Wachter's original "winning" bid. A material portion of this $453,124.00 increase was due to the additional cost of substituting mechanical and electrical subcontractors who are signatory to AFL-CIO collective bargaining agreements."

        "28. The School Board member who made the motion to approve Wachter's bid at the increased amount was Rudy Smith. At all times relevant to this matter, Rudy Smith was a paid business agent for the Pipefitters Association, Local Union 562 (" Pipefitters Local 562"), which is a member of the St. Louis Building and Construction Trades Council, AFL-CIO."

        "29. On June 25, 1997, K.C. and Crown Electrical Contracting, Inc., were informed that they would not be performing subcontract work on the School Project because only subcontractors whose Employees are represented by and associated...

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