Road-Con, Inc. v. The City of Philadelphia
| Decision Date | 14 December 2022 |
| Docket Number | Civil Action 19-1667 |
| Parties | ROAD-CON, INC., et al. v. THE CITY OF PHILADELPHIA, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiffs Road-Con, Inc., Neshaminy Constructions, Inc., Loftus Construction, Inc., PFK-Mark III, and Scott LaCava bring this action against Defendants the City of Philadelphia and Mayor James Kenney (“the City”), alleging the City's use of Project Labor Agreements (“PLAs”)[1]pursuant to Executive Order (“Order”) violated their federal, state, and local rights. In this four Count Complaint, Plaintiffs claim (1) the PLAs violated their constitutional First Amendment rights, (2) the PLAs violated their constitutional Equal Protection rights and statutory rights under 42 U.S.C. § 1981, (3) the Orders and PLAs violated state and local competitive bidding law, and (4) the Orders violated the Philadelphia Home Rule Charter. Plaintiffs, Defendants, and Intervenor-Defendants Mechanical Contractors Association of Eastern Pennsylvania, Inc. and National Electrical Contractors Association, Penn-Del-Jersey Chapter all move for summary judgment. Because Plaintiffs do not have standing for the First Amendment claim and but for causation for the § 1981 claim, and cannot redefine terms at will for the Home Rule Charter claim these claims will all be denied. Their competitive bidding law claim will be denied as to the Orders but granted as to the PLAs.[2]
BACKGROUND[3]
Road-Con Loftus, PFK, and Mark-III (“contractor Plaintiffs”) are all contractors who hire employees through the United Steelworkers (“the USW”) pursuant to collective bargaining agreements (“CBAs”) with the Pennsylvania Heavy and Highway Contractors Bargaining Association (Road-Con, Loftus, and Mark-III) or United Steelworkers Local 15024 (PFK).[4] Scott LaCava is a member of the USW who has worked for Road-Con for twenty-five years.[5] This group brings suit against the City and Mayor Kenney in his official capacity.[6] Mechanical Contractors Association of Eastern Pennsylvania, Inc. d/b/a Mechanical and Service Contractors Association of Eastern Pennsylvania, and National Electrical Contractors Association, Penn-Del-Jersey Chapter (“the Associations”) represent member contractors who have worked on City projects with PLAs.[7] They are Intervenor-Defendants in this suit.
From 2016 to early 2019, the City used PLAs on certain construction projects pursuant to a series of Orders issued by the Mayor's Office.[8] The first Order relevant to this case is Executive Order 8-15, which then-Mayor Michael A. Nutter signed on December 31, 2015.[9] The Order provided for City agencies to review all proposed building and construction projects with an estimated cost greater than $3 million (Section 2(a)).[10] This review was to determine if a PLA would be appropriate for the project.[11] The Order did not require use of a PLA on any project (Section 3(c)), selection of any labor organization (Section 3(c)), or selection of a unionized contractor (Section 6(b)).[12] It did require PLAs to have diversity and inclusion goals (Section 5(e)).[13]
The Order also included the “Philadelphia Public Projects Labor Agreement” (“the PLA Template”) as an attachment.[14] The PLA Template was pre-filled with the Philadelphia Building and Construction Trades Council (“the Trades Council”) and required contractors to sign an agreement with the Council (Art. I).[15] It provided for integration of local CBAs (Art. II, § 4) and hiring through the union signatories (Art. III, § 2).[16] It also mandated union membership for contractor employees (Art. III, § 5) (“the compelled unionization clause”) and included a diversity in hiring provision.[17] Despite the compelled unionization clause, contractor Plaintiffs never asked an employee to change their union membership, and Road-Con never asked LaCava to join a different union.[18] Additionally, LaCava did not prefer to work on projects in Philadelphia.[19]
The PLA Template also had several attachments, including Schedule C, “Increasing Opportunities for Women and Minorities in the Building Trades Union(s) and the Public Works Projects.”[20] Schedule C has three sections which outline expectations for the City, the union signatory, and the contractor signatory.[21] A fourth section outlines provisions for third-party monitoring in certain circumstances.[22] The first section sets goals for City construction projects to include minority men on at least thirty-two percent of all employment hours, and women on at least seven percent of all employment hours.[23] To support these goals, Schedule C states contractors “shall use their best efforts to meet or exceed the goals.”[24] It also states contractors shall (1) use apprenticeship programs to support the City's diversity goals and (2) try to add minority men and women to their workforces.[25]
In 2018, the City and the USW discussed including the USW as a PLA signatory.[26] In November, the City indicated it was willing to allow USW-affiliated contractors to use USW workforces and CBAs.[27] The City also indicated the USW would have to agree to Schedule C.[28]Counsel for the USW responded in January 2019.[29] The USW reiterated its interest in signing but asked for clarification of Schedule C's requirements.[30] Specifically, the USW wanted to understand what participation goals and outreach had been “found to be appropriate.”[31] The USW also asked about recruitment alternatives to evaluate and expressed concern with the third-party monitoring provisions.[32] The City did not respond to this letter.[33] As of June 2020, the City had never included the USW as a PLA signatory.[34]
In March 2019, the City solicited bids for two projects with PLAs: the 15th Street Bridge Project and the Runway Project.[35] The Memo for the 15th Street Bridge Project recommended use of a PLA because the Project needed to be “completed prior to Police move-in by end of calendar year 2020.”[36] Also, the Project was going to require coordination between contractors and several utility companies, work in stages, and “significant jacking of the bridge to accommodate pier and abutment work.”[37] The Runway Project Memo also recommended use of a PLA, as the Project would require six different trades and “phasing to allow aircraft to move in a safe and timely manner, with minimal disruptions, across the PNE airfield.”[38] A representative of the Trades Council signed the PLAs included in each Project's bid package.[39]
In April 2019, Plaintiffs filed suit challenging the City's use of PLAs on these two projects and all future projects.[40] As a result, the City withdrew the PLAs to allow construction to proceed pending this litigation.[41] The City also re-evaluated its wider practices regarding PLAs.[42] In October 2020, the Mayor's Office replaced Executive Order 8-15 with Executive Order 5-20[43] and eliminated the compelled unionization clause.[44]
This Court granted the City's Motion to Dismiss in March 2020. Plaintiffs filed an Amended Complaint in April 2020 and a Second Amended Complaint in June 2020. The parties then filed cross-motions for summary judgment. In February 2021 the Court granted Intervenor- Defendants' Motion to Intervene. The Court also granted Plaintiffs' Motion for Leave to File a Third Amended Complaint in August 2021. Plaintiffs filed the Third Amended Complaint in September 2021, and the Parties again filed the current cross Motions for Summary Judgment in December 2021. The Court heard oral arguments on the Motions in September 2022.[45]
A court must grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Only material facts which “might affect the outcome of the suit under the governing law” will preclude summary judgment. Id. at 248. When considering a motion for summary judgment, the court must “view all facts in the light most favorable to the non-moving party and draw all inferences in that party's favor.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019). Where, as here, cross-motions for summary judgment are filed, “the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016) (alteration, quotation marks, and citation omitted).
Plaintiffs challenge the City's PLA regime under four legal theories. In Count 1, Plaintiffs claim the PLAs violate their First Amendment right to refrain from joining a union. Because the contractors and their employees were never compelled to join a union or pay dues and never faced imminent unionization, the Court finds Plaintiffs do not have standing to bring this claim. In Count 2, Plaintiffs assert the diversity and inclusion goals violate the Equal Protection Clause and § 1981.[46] Because race was not a but for cause of Plaintiffs' injury, the Court finds the diversity and inclusion goals do not violate § 1981. In Count 3 Plaintiffs claim the Orders and PLAs violate state and local competitive bidding law. Although the Orders do not violate competitive bidding law because they do not favor any contractor, the PLAs violate competitive bidding law because they effectively precluded Plaintiffs from participating in the bidding process. Finally in Count 4, Plaintiffs argue the Orders...
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