Opposition Brief — J. A. Croson Co. v. Central Ohio Joint Vocational School District

Supreme Court’ U.S

rT. 2

-

wd MAR 18 1996

No. 95-1150 CLERK

ee eoweyee

In The

Supreme Court of the United States

October Term, 1995

+

J.A. CROSON COMPANY,

Petitioner,

CENTRAL OHIO JOINT VOCATIONAL

SCHOOL DISTRICT, ET AL.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Ohio

Twelfth Appellate District

*

RESPONDENT FOX MECHANICAL COMPANY’S

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

Feurx C. Wave (0024462)

(Counsel of Record)

Epwin L. Sxeens (0038902)

SCHOTTENSTEIN, ZOx & DuNN

41 South High Street

Suite 2600

Columbus, Ohio 43215

(614) 221-3211

Counsel for Respondent

Fox Mechanical Company

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

RULE 29.6 STATEMENT

Respondent Fox Mechanical Co. is an Ohio corpora-

tion. Fox Mechanical Co. has no parent companies and no

nonwholly owned subsidiaries.

ii

TABLE OF CONTENTS

Page

RULE 29.6 STATEMEND «cis dcussous senbdtcecasion i

I. SUMMARY OF THE ARGUMENT............. 1

II. STATEMENT OF THE CASE ............s000s. 3

A. The Award of the Contract to Fox........ 3

B. Job Targeting... cisccscccsweedeescescasens 5

ll. ARGUMENT. 260202545 Sadonseeeaetereanawan 8

A. Croson’s Claims are Preempted under Gar-

B. Preemption Under the Supremacy Clause.. 12

C. Preemption by Federal Occupation of the

reer es bok Ci Rede Re EAR eeh add wbe 14

D. The Ohio Decisions Unanimously Establish

that Croson’s Claims are Preempted ...... 15

E. The Ohio Decisions Are Not in Conflict

With Federal Authority ................... 17

F. This Case Involves a Statute of General

Application Rather Than the State’s Author- :

ity to Act as a Market Participant......... 21

G. The Decision of the Court Below Does Not

Interfere with the State of Ohio’s Ability to

Prevent Collusion Among Bidders on Public

Pr er tN ey ee eee 23

IV. CONCIAISSAN . ...ii 200 celwandevaswiacoatsns 25

APPENLUAA A. « 5's: inddu Dadeeebs hanes Reeders la

iii

TABLE OF AUTHORITIES

Page

CAsEs

Associated Builders and Contractors of Georgia, Inc. v.

City of Atlanta, 1995 WL 606778 (N.D. Ga. 1995)..19, 20

Automobile Workers v. O’Brien, 339 US. 454, 70

ee Fo. 15

Beckwith v. United States Parcel Service, 889 F.2d 344

any eR ipa iene nas ee ee 19, 20

Belknap, Inc. v. Hale, 463 U.S. 491 (1983)..... 11, 19, 20, 21

Brown v. Hotel and Restaurant Employees, 468 U.S.

ea, CRORES ARERR RAR SF SII Sr a cae 14

Building and Construction Trades Dept. v. Reich, 40

ORE se a 17, 18

Building and Construction Trades Council of the Met-

ropolitan District v. Associated Builders and Con-

tractors of Mass., 507 U.S. 218 (1993)........ ap:

Cedar Bay Construction, Inc. v. Fremont, 50 Ohio St.

RG SS hs cd 5s ban ae db a0.0 040s ebm ons obs 23

Communication Workers v. Beck, 487 U.S. 735 (1988)

nw ia dakwebnesice 8, 18

Craig v. Youngstown, 162 Ohio St. 215 (1954)......... 20

Dayton ex rel. Scandrick v. McGee, 67 Ohio St. 2d

ES BEA Cr ey ee en 23

Harris v. Atlas Single Ply Systems, Inc., 64 Ohio St.

tS Sr oss oraeis huis ose ck dee tanssce 20

IBEW, and the Fred B. Debra Co., NLRB Case No.

9-CB-8493 (July 21, 1993), affirmed (Oct. 4, 1993) .... 10

In Re International Brotherhood of Electrical Workers,

Case No. 9-CB-8493 (July 21, 1993) ............... 13

iv

TABLE OF AUTHORITIES - Continued

Page

Independent Electrical Contractors of Greater Cincin-

nati, Inc. v. County of Hamilton, et al. (Case No.

GOEIUE ik 5 Rec can coten és heap aauaae ze im ia, 10, 19

International Brotherhood of Electrical Workers, Local

357 v. Brock, 68 F.3d 1194 (9th Cir. 1995)....... 17, 18

International Brotherhood of Operative Potters v. Tell City

Chair Co., 295 F. Supp. 961 (S.D. Ind. 1968) ...... 14, 18

International Union of Mine Mill Workers Local 515

v. American Zinc, Lead and Smelting, 311 F.2d 656

te Re | RGR ere ey ere reer Tet eee 13

J. A. Croson Company v. Central Ohio Joint Voca-

tional School District, et al., Supreme Court of

Obic,: Gane ee. Sai i Wasi eh ee Ge 19

].A. Croson v. J.A. Guy, Inc., et al. (Pickaway Cty.

CP OD nak is inn dc caendh « Reith daai aes <x 3, 17

Manno Electric, Inc., NLRB Case No. 15-CA-11891

(July 20, 1994)........ sede ence eee e een enees 2, 9, 10, 21

N.L.R.B. v. Penn Cork and Closures, Inc., 376 F.2d 52

CE Gs sve 05 ca cipied se cbs icsuabe acces yee 15

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) ..... 14

San Diego Building Trades Council v. Garmon, 359

US. ZI CR as vas tei ics Hee pe ewe ssn passim

SeaPak v. Industrial, Technical & Professional

Employees, 300 F. Supp. 1197 (S.D. Ga. 1969),

aff’d, 423 F.2d 1229 (5th Cir. 1987), aff’d, 400

CFD. Fp Ses oko. c 50s Sheen ss Pema neepskcienes is: 15

Shen-Mar Food Products, Inc., 221 N.L.R.B. 1329,

enforced as modified, 557 F.2d 396 (4th Cir.

BOT Fi os Si ois: bee SCs Leb ake es 10

State of Utah v. Montgomery Ward, 120 Utah 294, 233

P.2d 685, cert. denied, 342 U.S. 869 (1951)......... 15, 18

Vv

TABLE OF AUTHORITIES - Continued

Page

STATUTES

ae Ln Cees) OO COE oo. eS 13

Re Sees UE BE ON Oe o's ob Ks vk keke abba cunt 22

BF TEs BNI 4 as newbs be ade ewer sas bp aecun 13

BP SPs ee WE 55 habe cad ohare isi dele 13

ee ey errr heir E te ony sentrte passim

Davis-Bacon Act, 40 U.S.C. § 76, et seg. ............. 18

SE OE es oh cee laecerare as acer curt seeks 12, 13

RE END 4 8a su biked Kd een anatase cere 12, 13

J | BOR CUR Ey pee rrreay barr oor e a oen 13

SR te I oh oie kinases o's Ce kewnaes ages ke eaee 13

Pemrh BS URAD OO CB) a oi oc cece csssdckn cues 9, 10, 16

i SL eee Pee ra ey Meare De re wanna a 134, 36, 7

a eR Re Ss Se ep eect en el homer 22

OTHER AUTHORITIES

Subsidizing Contractors to Gain Employment: Con-

struction Union “Job Targeting,” 17 U.C. Berkeley

J. of Employment & Labor Law................... 19

I. SUMMARY OF THE ARGUMENT

Contrary to the arguments of Petitioner J.A. Croson

Company (“Croson”), the State of Ohio has not been

deprived of its ability to prevent collusion among bidders

on public works projects in Ohio. In fact, the Ohio courts

below found as a matter of state law that the facts alleged

by Croson, even if true, did not constitute collusion.

Croson failed to state a claim under the Ohio statute

prohibiting collusion among bidders, and dismissal of

Croson’s claims was required even without regard to

issues of federal preemption. Therefore, this case does not

merit this Court’s attention because there were separate,

independent state law grounds for dismissal of Croson’s

claims.

Moreover, contrary to Croson’s alarmist rhetoric, no

court below has found, and no party to this litigation has

argued, that Ohio law prohibiting collusion during com-

petitive bidding is preempted in its entirety by federal

law. Rather, the holdings of the courts below are much

more limited, namely that state law cannot be interpreted

or applied to prohibit deduction of Union dues and par-

ticipation in Union job targeting programs, which are

expressly protected by federal law. No one questions that

outside the specific, narrow context of collection and use

of Union dues, Ohio laws affecting competitive bidding

are fully applicable. Thus, the State of Ohio remains fully

able to prevent collusion among bidders on public works

projects.

This case involves Croson’s claims that Respondent

Fox Mechanical Company (“Fox”) violated state law by

engaging in activity expressly protected by federal law.

The conduct at issue is Fox’s deduction of working dues

pursuant to a lawful Union contract where the Union has

established a “job targeting” program for which a portion

of the dues are used. The Union uses these targeting

funds to assist Union contractors in being competitive

and obtaining more work for the Union’s members. As

repeatedly found by the courts below, this is a classic case

of preemption. In San Diego Building Trades Council v.

Garmon, 359 U.S. 236 (1959), the U.S. Supreme Court held

that states may not regulate an activity if that activity is

either protected or prohibited by federal law. This is an

easy case because job targeting programs have already

been held to be protected by Section 7 of the National

Labor Relations Act. Manno Electric, Inc., NLRB Case No.

15-CA-11891 (July 20, 1994) (copy submitted). Moreover,

as the Ohio courts have held, Croson’s interpretation of

state law would require contractors such as Fox to breach

their duty to remit dues for job targeting programs under

the applicable collective bargaining agreements, which

would clearly be violative of federal law. Croson thus

seeks to have the state control matters at the heart of

collective bargaining, which is regulated by federal law.

Because Croson’s claims are preempted by federal law,

this case was properly dismissed.

Croson further argues that an exception to preemp-

tion should apply because this case involves “matters

deeply rooted in local interest”. Croson’s argument is

belied by the fact that the Ohio Supreme Court has twice

declined to exercise jurisdiction in cases involving these

same issues, in this case and in Independent Electrical

Contractors of Greater Cincinnati, Inc. v. County of Hamilton,

et al., (Case No. 95-770) (copy submitted). The Ohio

+

courts have repeatedly and unanimously held that state

law challenges to job targeting programs are preempted

by federal law. No less than five Ohio decisions have so

held, including, in addition to the decisions of the trial

court and the Court of Appeals in this action (Appendices

A and C to Petitioner’s Brief) the decisions of the trial

court (Appendix F to Petitioner’s Brief) and Court of

Appeals in IEC, supra, (copy submitted) and the decision

of the trial court in J.A. Croson v. J.A. Guy, Inc., et al.

(Pickaway Cty. C.P. 1995) (Appendix G to Petitioner’s

Brief).

II. STATEMENT OF THE CASE

A. The Award of the Contract to Fox

This action involves the award of a contract for a

construction project known as the Tolles Technical Center

Expansion (the “Project”). Respondent Central Ohio Joint

Vocational School District (the “School District”) solicited

proposals for labor and materials for construction of the

Project, which proposals were required to be submitted

on March 17, 1994. The bid of Fox on the Project was

$277,900.00, while the bid of Croson was $293,449.00. Fox

was thus the lowest bidder, with a bid over $15,000 lower

than that of Croson. While Croson finished second, its bid

was lower than the bids of two union contractors, Marco

and Kirk Williams. Fox, as the lowest responsive and

responsible bidder, was entitled to award of the contract

and was awarded the contract.

Shortly after the bid results were announced, Croson

filed a protest with the School District, which concluded

that no collusion had occurred. Croson then initiated this

action on March 25, 1994 by filing a Complaint and

Motion for Temporary Restraining Order. On April 5,

1994, the trial court held a hearing at which oral argu-

ment was heard from all counsel. The court subsequently

issued its Decision and Entry dated April 11, 1994,

addressing in detail Croson’s allegations (Appendix B to

Petitioner’s Brief). The court found that Croson’s allega-

tions did not show that Fox or any other bidders on the

contract had engaged in collusion or sham bidding in

violation of R.C. 3313.46 or the Non-Collusion Affidavit

(p. 8 of Decision).! The Court stated that “there is no

basis to find that job targeting constitutes collusion

within the affidavit factually or as a matter of law,” (Id.,

p. 9) and that the School District did not abuse its discre-

tion in accepting Fox’s bid (Id., p. 10). The court also

found that Croson’s claims were preempted by federal

law, which expressly permits and protects deduction of

Union dues for job targeting (Id., p. 7). On June 9, 1994,

1 R.C. 3313.46 provides, in pertinent part, as follows:

“When there is reason to believe there is collusion or

combination among bidders, or any number of them, the bids of

those concerned therein shall be rejected.” The purpose of the

Non-Collusion Affidavit is likewise to prevent collusion among

bidders or the submission of sham bids. Collusion among

bidders might be present, for example, if two bidders agreed in

advance on their bid prices. Similarly, sham bidding might exist

if bidders agreed that one or more bids would be submitted only

to create the appearance of competition. Even if the allegations

of the Complaint are taken as true, there has been no showing of

collusion or a violation of R.C. 3313.46. Croson has not alleged

that Fox even talked to, let alone entered into an agreement with

or colluded with, any other bidder. The trial court thus correctly

found that Croson’s allegations, even if true, do not show

collusion or sham bidding.

the trial court issued its Decision denying Croson leave to

amend its complaint to add a damages claim and grant-

ing judgment on the pleadings for the reasons set forth in

its previous decision (Appendix C to Petitioner’s Brief).

In its Decision, the court expressly found that “job target-

ing is not collusive as a matter of law.”

The trial court’s decision was affirmed by the Court

of Appeals in its decision dated May 30, 1995 (Appendix

A to Petitioner’s Brief). The Court found that Croson’s

cause of action, based on state law, was preempted

“because it involves activity arguably protected under

section 7 of the NLRA” (pv. 10 of Opinion). The court

explained: “Application of R.C. 3313.46 in this case would

allow a state court to regulate the procedure by which a

union administers job targeting.”

B. Job Targeting

As noted, the trial court found that even assuming

Croson’s allegations were true, job targeting is not collu-

sive. The court so found because Croson merely alleged

that Fox had participated in a job targeting program

under which Fox deducted Union dues which would be

used to defray labor costs of a Union contractor that was

the successful bidder.

Job targeting is a program designed by the Union to

level the playing field between Union and non-Union

contractors and increase the competitiveness of Union

contractors bidding on contracts. The program works by

using Union dues for payments to defray a Union con-

tractor’s costs and make the Union contractor competi-

tive even though the Union contractor pays traditionally

higher Union wages. The targeting funds are working

dues deducted from the paychecks of each Union mem-

ber, pursuant to voluntary Union membership approval.

(See Complaint, {14, Appendix A hereto).

The targeting program was carefully designed by the

Union to promote competitive bidding and to preserve

the secrecy of bids. Before preparing a bid, the contractor

submits a form titled a “Request for Target” to the Union

identifying the project and providing a preliminary esti-

mate of hours of labor for the project (Complaint, {15).

The Union then informs the contractor of whether the

project is targeted and if so, the amount available to

defray costs. (Complaint, {17). Any contractor can then

submit a bid. At the time of submission of the bid, the

contractor writes the number of hours included in the bid

on a card which is placed in a sealed envelope and held

by the Union, unopened, until after the bid opening. At

no time prior to the bid opening is the bid or any element

of the bid disclosed to the Union or any other party.

Similarly, neither the bid price nor any element of the bid

price is fixed by agreement with the Union or anyone

else.

Contrary to the assertions in Croson’s brief (at page

5), union contractors participating in the targeting pro-

gram do not disclose or receive information about the

bids of other union contractors. Croson’s complaint does

not even allege that such information is shared by union

contractors bidding on the particular project. As shown

by a review of the allegations of the complaint, it is

undisputed that at no time prior to the bid opening is the

contractor’s bid or any element of the bid disclosed to the

Union or any other party. Similarly, neither the bid price

nor any element of the bid price is fixed by agreement

with the Union or anyone else. The Union is provided

only a preliminary estimate of the number of hours prior

to preparation of the bid, and the actual number of hours

estimated as part of the bid is kept in an unopened

envelope.

Croson clearly recognizes the dilemma it faces, trying

to create the appearance of collusion when there is no

allegation or evidence that Fox had any communications

whatsoever with any other bidder. In an effort to cover

this fatal flaw in its case, Croson strains to interpret the

Non-Collusion Affidavit to mean that no bidder can dis-

cuss any element of the work on the project with a third

party. The language of the Affidavit must be interpreted

in context, insofar as the Affidavit is designed to prevent

collusion or other activity that would interfere with com-

petitive bidding. As the Respondent School District con-

cluded in rejecting Croson’s protest and awarding the

contract to Fox, participation in the targeting program

did not constitute collusion or a violation of the Non-

Collusion Affidavit. Rather, job targeting merely provides

a discount or per-hour subsidy of a contractor’s labor

costs, just like a discount negotiated between a contractor

and a supplier of materials necessary for performance of

the contract. The targeting subsidy does not “fix” the

bidder’s bid price, as the number of hours necessary to

complete the project as well as all other aspects of the bid

are calculated independently by each bidder.

As found by the trial court, Croson’s allegations of

participation in the Union job targeting program do not

show collusion or a violation of R.C. 3313.46. The courts

below also correctly found that Croson’s claims are also

preempted by federal law.

lil. ARGUMENT

The two propositions of law contained in Croson’s

brief are substantively the same, in that they both present

the issue of whether a state law challenge to participation

in job targeting programs is preempted by federal law.

The two propositions of law will therefore be addressed

together here.

A. Croson’s Claims are Preempted under Garmon

In San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959), this Court held that states may not regu-

late activities which federal labor law protects or pro-

hibits or which federal law even “arguably” protects or

prohibits. Preemption applies not only where there is a

conflict between state and federal law, but also when

there is a mere potential for conflict. Id. at 246. The

Garmon rule was reaffirmed in Building & Constr. Trades

Council v. Associated Bldrs., 507 U.S. 218 (1993), the

. Supreme Court’s most recent statement on preemption.

The Court stated: “When we say the NLRA preempts

state law, we mean that the NLRA prevents a State from

regulating within a protected zone.” Id. (emphasis added).

The activities involved here - the check-off of union

dues under a collective bargaining agreement, and use of

the dues - are clearly within this protected zone. This

Court’s decision in Communication Workers v. Beck, 487

U.S. 735 (1988), is dispositive. Beck held that issues over

the collection and use of union dues, fees and assess-

ments, and claims against an employer about the collec-

tion and use of such funds, are governed by § 8 of the

NLRA and preempted under Garmon. Id. at 742. The

Court said that a claim about these activities “falls

squarely within the primary jurisdiction of the [NLRB].”

_ Id. The Court found that a challenge to the use of union

dues for purposes other than collective bargaining is

subject to Section 8 and therefore preempted under Gar-

mon.

As interpreted by Croson, R.C. 3313.46 and the Non-

Collusion Affidavit would prohibit the exact conduct that

the NLRA authorizes and specifically protects. This

requires preemption. Fox’s check-off of Local 189’s dues

is not only regulated by the NLRA/LMRA and therefore

in the “zone” of Garmon preemption, but is in fact speci-

fically protected by those laws. Manno Electric, Inc., supra

(copy submitted). In Manno, a non-union contractor filed

a state court lawsuit seeking to prohibit job targeting

under several state law theories. Manno found that the

plaintiff’s state law claims were preempted and that the

filing of the state court lawsuit interfered with activities

protected by the NLRA:

The objectives of the job targeting program are

to protect employees’ jobs and wage scales.

These objectives are protected by Section 7.

Thus, the plaintiff’s [state court] suit, which

interferes with, restrains, and coerces employees

in their Section 7 rights, offends Section 8(a)(1)

of the (National Labor Relations) Act. The

claims which the Plaintiff sought to press were

preempted. [Opinion, p. 30].

10

This authority stands for the proposition that targeting

programs are protected by federal law and any state law

is preempted to the extent that it impairs such federally

protected activity. See also IBEW, and the Fred B. Debra Co.,

NLRB Case No. 9-CB-8493 (July 21, 1993), affirmed (Oct.

4, 1993) (copy submitted) (where the NLRB general coun-

sel found that the check-off of union dues for job target-

ing is authorized and within the protection of NLRA § 8).

Further, Fox could comply with Ohio law as Croson

interprets it only by breaching its collective bargaining

agreement, which is itself a violation of federal labor law.

It is well-established that an employer who ceases to

deduct and remit union dues and other payments called

for by a collective bargaining agreement violates NLRA

§§ 8(a)(1) and (5). Shen-Mar Food Products, Inc., 221

N.L.R.B. 1329, enforced as modified 557 F.2d 396 (4th Cir.

1977). Croson’s claim is therefore preempted under Gar-

mon.

Croson’s argument that the activity involved in this

case has no relationship to employer-employec relations

or collective bargaining has no merit. The exclusive pur-

pose of the job targeting program goes to the very heart

of the union’s collective bargaining and representational

functions. The local union established its job targeting

program in order to protect, preserve, and expand the

share of the mechanical construction market which pro-

vides employment opportunities for its members. There

is nothing more fundamental to a Union’s function as an

exclusive bargaining representative than activities

intended to increase employment opportunities for its

members. As stated by the Administrative Law Judge in

Manno Electric, supra, “The objectives of the job targeting

a ep ee

11

program are to protect employees’ jobs and wage scales.

These objectives are protected by Section 7 [of the

NLRA].” These objectives are also critical to the function

of the Union. It is eminently clear that the working dues

deducted by Respondent from the wages of its employees

used by the Union to finance its job targeting are col-

lected from each member on a regular basis, as opposed

to payments that are not susceptible of anticipation as a

regularly recurring obligation, and they are requisite to

retention of membership in the Union. Moreover, the

dues are collected pursuant to membership approval and

under voluntarily signed authorizations for dues check-

off.

Croson further argues that this case fits within an

exception to the Garmon rule for conduct of “only periph-

eral concern to federal law or . . . deeply rooted in local

feeling and responsibility.” This Court has held that this

exception is narrow and requires a balancing of the

State’s interest in controlling the conduct against the risk

that the state will sanction conduct which the NLRA

protects. Belknap, Inc. v. Hale, 463 U.S. 491, 498-499 (1983).

The state’s interest in controlling conduct already found

by the trial court not to constitute collusion in no way

compares to the importance of protecting conduct permit-

ted and expressly protected by federal law. As the Court

of Appeals found, “The conduct involved in this case,

however, does not implicate a state interest of greater

weight than the federal interest in the uniformity of its

labor policy.” (Appendix A to Petitioner's Brief, p. 8a).

Moreover, Croson’s argument that this case is “deeply

rooted in local feeling and responsibility” ignores the fact

that the Ohio Supreme Court has twice exercised its

12

discretion to decline jurisdiction in cases involving these

same issues, in this case (Appendix D to Petitioner’s

Brief) and in Independent Electrical Contractors of Greater

Cincinnati, Inc. v. County of Hamilton, et al. (Case No.

95-770) (copy submitted).

Croson also argues that its claims are not preempted

because it is not challenging the legality of job targeting

per se. Rather, Croson alleges that the way job targeting is

implemented violates the Non-Collusion Affidavit and

Ohio’s competitive bidding statute. In properly rejecting

this same argument below, the Court of Appeals stated:

We find that distinction to be illusory. In Manno,

supra, the plaintiff did not challenge job target-

ing directly, but alleged that the union and its

members engaged in job targeting with the

intent of harassing the plaintiff and injuring his

business. The ALJ determined that such a chal-

lenge interfered with and restrained the union

in their Section 7 rights and was preempted.

(p. 8 of Opinion)

B. Preemption Under the Supremacy Clause

Because federal law permits the use of union dues for

job targeting, any state law that would conflict with fed-

eral law is preempted. Croson’s claims are thus also

preempted under the Supremacy Clause.

Congress’ pervasive regulation of financial transac-

tions between employers and labor organizations is

embodied in LMRA § 302. LMRA § 302(a) prohibits any

payment from an employer to a union if the union repre-

sents or seeks to represent any of the employer’s

13

employees. 29 U.S.C. § 186(a). The prohibitions of § 302(a)

are tempered only by the specific exceptions found at

§ 302(c), 29 U.S.C. § 186(c). LMRA § 302(c)(4) expressly

authorizes employer payments to labor organizations

made pursuant to the terms of “dues check-off” arrange-

ments:

The provisions of this section shall not be appli-

cable . . . (4) with respect to money deducted from

the wages of employees in payment of membership

dues in a labor organization. . . . (emphasis

added).

Federal authorities have interpreted the term “mem-

bership dues” in Section 302(c)(4) to include the type of

deduction here, for job targeting. Courts have held that

this section permits the deduction of Union dues or spe-

cial assessments from employee wages. See International

Union of Mine Mill Workers Local 515 v. American Zinc, Lead

and Smelting, 311 F.2d 656 (9th Cir. 1963) and In Re Inter-

national Brotherhood of Electrical Workers, Case No.

9-CB-8493 (July 21, 1993) (holding that the use of Union

dues for job targeting is permitted by federal law) (copy

submitted). This issue has also been addressed. by the

U.S. Department of Justice, the federal agency charged

with enforcement of § 302. The Justice Department's

opinion, found at 22 LRRM {BNA) 46 (1948), concludes

that “ .. . [I]nitiation fees and assessments, being inci-

dents of membership, should be considered as falling

within the classification of ‘membership dues’.” (copy

submitted). Thus, applying the construction of LMRA

§ 302(c)(4) adopted by the Justice Department, the NLRB

and the courts, it is clear that federal law protects

14

employer deduction of “dues” and “assessments”,

including funds for job targeting.

_ Under the most basic form of preemption, traditional

Supremacy Clause preemption, federal law preempts any

conflicting state law. Ray v. Atlantic Richfield Co., 435 U.S.

151 (1978); Brown v. Hotel and Restaurant Employees, 468

U.S. 491, 502 (1984). Because federal law permits the use

of dues for targeting, any state law that would conflict

with federal law is preempted. Therefore, if R.C. 3313.46

and the Non-Collusion Affidavit were interpreted to pro-

hibit job targeting, they would be preempted by federal

law.

C. Preemption by Federal Occupation of the Field

Croson’s claims are preempted for the additional rea-

son that the deduction and use of Union dues is an area

which has been federally occupied to such an extent that

no room remains for state regulation. In International

Brotherhood of Operative Potters v. Tell City Chair Co., 295 F.

Supp. 961 (S.D. Ind. 1968), the defendant employer

claimed that state law was controlling as to the validity of

employee authorization of certain dues and assessments.

The court held:

The issue of pre-emption thus hinges upon

the extent of the regulation of check-offs under-

taken by Congress. Check-offs are regulated pri-

marily by § 302 of the L.M.R.A., which specifies

the conditions necessary for a valid check-off,

and provides for both injunctive relief and crim-

inal penalties. Additionally, the National Labor

Relations Board has authority to regulate check-

offs under Section 8 of the L.M.R.A. N.L.R.B. v.

15

Penn Cork and Closures, Inc., 376 F.2d 52 (2d Cir.

1967). It thus appears that Congressional regu-

lation of the area of check-offs is . . . pervasive

and encompassing. . . . Automobile Workers v.

O’Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978

(1950). [295 F. Supp. at 965; emphasis added]

See also State of Utah v. Montgomery Ward, 120 Utah 294,

233 P.2d 685, 689, cert. den., 342 U.S. 869 (1951) (holding

that “It is difficult to conceive how Congress could have

more fully occupied the field of legislation in regard to

the check-off than it has done in sec. 302 of the

L.M.R.A.”; emphasis added); and SeaPak v. Industrial,

Technical & Professional Employees, 300 F. Supp. 1197 (S.D.

Ga. 1969), aff'd, 423 F.2d 1229 (5th Cir. 1987), aff'd, 400

U.S. 985 (1971) (holding that the area of dues check-off is

federally occupied to such an extent that no room

remains for state regulation in this area).

If interpreted to prohibit deduction or use of Union

dues for job targeting, R.C. 3313.46 and the Non-Collu-

sion Affidavit would constitute an impermissible attempt

to regulate in an area that has been federally occupied to

such an extent that no room remains for state regulation

in the same field.

D. The Ohio Decisions Unanimously Establish

that Croson’s Claims are Preempted

The decisions of the trial court and Court of Appeals

in IEC, supra, and the trial court in Croson, supra, are

directly on point on the preemption issues raised in

Croson’s brief. The plaintiffs in those cases claimed, like

Croson claims here, that union dues deductions to fund a

“job targeting program” violated Ohio law.

16

The decision of the Court of Appeals for the First

Appellate District in IEC is compelling (copy submitted).

The court began by citing to Garmon, supra, which holds

that preemption applies when an activity is arguably

subject to Section 7 or 8 of the NLRA. The court noted

that in that case (as in this case) the defendant employer

was obligated by a collective bargaining agreement to

deduct the targeting funds. The court cited to well-settled

principles of labor law providing that when an employer

ceases to deduct amounts required to be deducted under

a collective bargaining agreement, this constitutes a viola-

tion of section 8 of the NLRA. The court then held:

Application of the Prevailing Wage Law as

argued by IEC would allow the state to regulate

the amount of union dues which could be with-

held from members’ paychecks and the pur-

poses to which those dues could be put... .

[IEC] actually seeks to have the state control

matters at the heart of the collective-bargaining

process, which is regulated by the NLRA. Under

IEC’s interpretation, ESI could only comply

with the Prevailing Wage Li@w by breaching its

duty to remit union dues under the collective

bargaining agreement, a violation of section 8

of the NLRA. Therefore, we conclude that the

issue is preempted under Garmon.

(Opinion, p. 8; Emphasis added).

The analysis of the IEC court is supported and fol-

lowed by the analysis of the Court of Appeals for the

Twelfth Appellate District in the instant case (Appendix

A to Petitioner’s Brief). Starting the analysis with Garmon,

the court stated that when activities sought to be regu-

lated by a state are arguably protected under Section 7 of

17

the NLRA, preemption applies. The court then cited

authority holding that job targeting programs were an

activity protected under Section 7 of the NLRA. The court

then held:

Application of [state law] in this case would

allow a state court to regulate the procedure by

which a union administers job targeting. .. .

[T]he trial court did not err in finding that

Croson’s state law cause of action would be

preempted because it involves activity arguably

protected under Section 7 of the NLRA. (opin-

ion, p. 10).

See also Croson v. J.A. Guy, supra, in which the trial court

properly followed the decisions reviewed above and dis-

missed a state law challenge by Croson to job targeting.

(Appendix G to Petitioner’s Brief).

Thus, the Ohio courts have unanimously concluded

that a claim that deduction of Union dues for job target-

ing is violative of state law is preempted by federal law.

As established by the review of the law of preemption

above, these decisions are unquestionably correct.

E. The Ohio Decisions Are Not in Conflict With

Federal Authority

Croson argues that the above Ohio decisions are in

conflict with federal authority, referring to Building and

Construction Trades Dept. v. Reich, 40 F.3d 1275 (D.C. Cir.

1994) and International Brotherhood of Electrical Workers,

Local 357 v. Brock, 68 F.3d 1194 (9th Cir. 1995). Both Reich

and Brock are completely inapposite, as they have nothing

whatsoever to do with preemption. Croson erroneously

ee

18

cites Brock (at page 19 of Petitioner’s Brief) as holding

that preemption did not apply in that case. To the con-

trary, Brock, just like Reich, was decided solely under |

federal law. Both Reich and Brock were decided under the

Davis-Bacon Act, which has no relevance here. There was '

simply no issue of federal preemption of state law in

either case. Croson nonetheless argues that the two cases

are relevant because “preemption would apply to both

state and federal courts.” (Brief, p. 20). Croson entirely

misses the point. Regardless of whether preemption

applies to both federal and state courts, preemption

applies only to state but not federal law.

Reich and Brock are inapposite for the additional rea-

son that their holdings are based on the distinction

between dues and assessments under the Davis-Bacon

Act, 40 U.S.C. § 76, et seq. The distinction between dues

and assessments simply has no relevance to preemption

under San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959). The check-off and collection of union

dues or assessments under a collective bargaining agree-

ment, and their intended use - are clearly within the

“protected zone” of Garmon preemption. Communication

Workers v. Beck, 487 U.S. 735 (1988). Moreover, regardless

of any distinction between dues and assessments, pre-

emption applies under the doctrine of federal occupation

of the field. The area of check-offs of dues and assess-

ments has been federally occupied to such an extent that

no room remains for state regulation. International Broth-

erhood of Operative Potters v. Tell City Chair Co., 295 F.

Supp. 961 (S.D. Ind. 1968); State of Utah v. Montgomery

19

Ward & Co., 120 Utah 294, 233 P.2d 685, cert. denied, 342

U.S. 869 (1951).

Croson has also attempted to avoid preemption and

circumvent the Ohio decisions addressing these issues by

relying upon Associated Builders and Contractors of Georgia,

Inc. v. City of Atlanta, 1995 WL 606778 (N.D. Ga. 1995),

Belknap, Inc. v. Hale, 463 U.S. 491 (1983), and Beckwith v.

United States Parcel Service, 889 F.2d 344 (1st Cir. 1989).

However, these cases have no relevance here.

2 Croson also cites to an unpublished draft of a law review

article, Subsidizing Contractors to Gain Employment: Construction

Union “Job Targeting,” 17 U.C. Berkeley J. of Employment &

Labor Law (forthcoming). Croson argues that the views

expressed by the author of the draft article should somehow be

taken as authority with precedence over the decisions of five

Ohio courts that have addressed these issues. The author of the

draft article, after discussing the preemption issue, states,

inconclusively, that “it remains to be seen what the eventual

consensus will be” on this issue (Appendix to Petitioner’s Brief,

p. 109). Notwithstanding the questions raised by the author of

the draft article regarding the decisions by the Ohio Courts of

Appeal, the Ohio Supreme Court has since twice declined

jurisdiction over cases holding that the same claims presented

by Appellant are preempted. J.A. Croson Company v. Central Ohio

Joint Vocational School District, et al., Supreme Court of Ohio,

Case No. 95-1422 (jurisdictional motion overruled, October 18,

1995) (Appendix D to Petitioner’s Brief); Independent Electrical

Contractors of Greater Cincinnati, Inc. v. County of Hamilton, et al.,

Supreme Court of Ohio, Case No. 95-770 (jurisdictional motion

overruled, July 19, 1995) (copy submitted). The author of the

article simply misses the point that if a court were to apply state

law to prohibit deduction of dues for job targeting the court

would be distinguishing between “good union dues” and “bad

union dues” and thereby trespassing on federal labor

preemption.

|

20

As set forth above, Croson’s claim is preempted

because state law conflicts with federal law with respect |

to deduction of dues and because federal law occupies

the field with respect to regulation of deduction of union |

dues. Thus, preemption hinges on the fact that this case

involves deduction of union dues. Neither Associated |

Builders, Belknap, nor Beckwith has anything to do with

deduction of union dues. Thus, the basis for preemption

here is simply not addressed in those cases, and they are

completely inapposite.

Associated Builders and Contractors merely holds that a

local prevailing wage law was not preempted in its

entirety by the NLRA. That case simply did not address

whether the prevailing wage statute could be interpreted

or applied to prohibit deduction of Union dues and assess-

ments, which is expressly protected by federal law. More-

over, the reasoning of the Court in Associated Builders and

Contractors clearly does not apply under Ohio law. The

court in that case held that a local prevailing wage law

was not preempted in its entirety because it constituted a

“minimum wage law”. The Ohio Supreme Court has

repeatedly held that the Ohio Prevailing Wage Statute

does not constitute a “minimum wage law”. Harris v.

Atlas Single Ply Systems, Inc., 64 Ohio St. 3d 171, 173-174

(1992); Craig v. Youngstown, 162 Ohio St. 215, 221 (1954). |

Belknap is similarly inapposite. Belknap involved |

claims by discharged replacement workers that the

employer had violated promises to them that they would

not be discharged when a strike was settled. The Court |

held that preemption did not apply because the NLRA |

addresses the rights of the strikers, not the replacement |

workers. This holding obviously has no relevance here.

21

Croson nevertheless cites the statement by the court that

where conduct is said to be arguably prohibited by the

NLRA, one inquiry in the preemption analysis is whether

the controversy presented to the state court is identical

with that which could be presented to te Board. Here the

conduct at issue, participation in job targeting programs

through deduction of dues for use to defray labor costs, is

identical to that presented to the Board and held to be

protected in Manno Electric. Moreover, the Belknap test of

whether conduct arguably prohibited by the NLRA is

identical to that which could be presented to the Board

has no relevance where, as here, state law is claimed to

prohibit conduct which is expressly protected by federal

law.

In Beckwith, supra, the court upheld a state statute

which prevented employers from satisfying debts owed

to them by their employees by withholding amounts from

employees’ paychecks. Again, that case did not involve

union dues or amounts required to be deducted pursuant

to a collective bargaining agreement.

For the foregoing reasons, the authority cited by

Croson does not conflict with the Ohio decisions holding

that state law restrictions on deduction of dues for job

targeting are preempted by federal law.

F. This Case Involves a Statute of General Appli-

cation Rather Than the State’s Authority to Act

as a Market Participant

Croson relies upon Building and Construction Trades

Council of the Metropolitan District v. Associated Builders

and Contractors of Mass., 507 U.S. 218, (1993), for the

22

proposition that Croson’s claims are not preempted

because the State of Ohio is allegedly acting as a market

participant, rather than a regulator. This argument has no

merit.

In Building and Construction Trades Council, supra, the

state sought to enforce a bid specification on a specific job

which required that contractors adhere to a union prehire

agreement. The Court held that such a requirement was

not preempted by federal law because the prehire agree-

ment which the state sought to enforce was expressly

permitted by NLRA §§ 8(e) and (f), 29 U.S.C. §§ 158(e)

and (f), and that the state, as a market participant, could

use such an agreement in seeking employees for a partic-

ular project. The Court declined to address the issue of

whether its holding would apply if the state’s action

violated the NLRA, holding that certiorari was not

granted on that issue. Id., 113 S. Ct. at 1198, n.2.

The fundamental flaw in Croson’s attempt to apply

Building and Construction Trades Council to this case is that

the restrictions which are claimed by Croson to prohibit

job targeting are not imposed by the Central Ohio Joint

Vocational School District acting on its own initiative as a

market participant. Here, the requirements preempted by

federal law are purportedly imposed by the State through

the competitive bidding statute, R.C. 3313.46. As such,

this is a classic example of the state acting as a regulator

rather than a market participant, by enacting a law that

applies to all public jobs in the State of Ohio.

Under Croson’s interpretation of Ohio law, the State

is attempting to regulate, by means of a statute of general

application, the types of dues which may be collected by

23

the Union. Moreover, as shown by a review of the lan-

guage of the Non-Collusion Affidavit, the Affidavit is

obviously intended to effectuate the requirements of the

statute, R.C. 3313.46. The language of the affidavit closely

tracks the language of the statute. As the trial court

concluded, the Respondent Central Ohio Joint Vocational

School District properly exercised its discretion in con-

cluding that Respondent Fox complied with the Non-

Collusion Affidavit and was the lowest responsive bid-

der. See Cedar Bay Construction, Inc. v. Fremont, 50 Ohio St.

3d 19, 21 (1990) (holding that an abuse of discretion

standard applies to the review of an administrative action

in competitive bidding cases); Dayton ex rel. Scandrick v.

McGee, 67 Ohio St. 2d 356, 359 (1981).

G. The Decision of the Court Below Does Not

Interfere with the State of Ohio’s Ability to

Prevent Collusion Among Bidders on Public

Projects

Croson argues that this Court should use this case as

an opportunity to protect the public policy behind com-

petitive bidding. However, no party has argued that the

Ohio statute regarding competitive bidding, R.C. 3313.46,

is preempted in its entirety by federal law. Rather, the

argument is much different and much more limited,

namely that state law cannot be interpreted or applied to

prohibit deduction of Union dues and participation in job

targeting, which is expressly protected by federal law. Fox

does not question that outside the specific, narrow con-

text of collection and use of Union dues, Ohio laws

affecting competitive bidding are fully applicable. More-

over, while Croson claims that this case merits review

24

because of the importance of preventing collusion, it is

noteworthy that the trial court addressed the substance of

Croson’s allegations in detail and concluded that even if

true, the allegations do not show collusion. As noted,

Croson does not even allege that Fox talked to, entered

into any agreements with, or colluded with any other

bidders.

Nevertheless arguing that this case stimulates public

interest, Croson claims that the decisions emanating from

the courts of appeal are not consistent. In fact, the Ohio

courts have repeatedly and unanimously held that state

law challenges to job targeting programs are preempted

by federal law. As discussed above, no less than five Ohio

decisions have so held. Croson has not cited, and cannot

cite any decisions to the contrary. The issues raised by

Croson are thus by no means novel or unsettled.

Croson also argues that the holdings of the courts

below create an improper distinction between private and

public entities in their abilities to prevent collusion dur-

ing competitive bidding. As noted above, no court below

and no party to this action has questioned the ability of

any public entity to prevent collusion during competitive

bidding. In any event, any distinction between the rights

of private and public entities necessarily arises from the

fact that the applicable statute itself, R.C. 3313.46,

restricts competitive bidding only on public projects.

Thus, any purported distinction between the rights of

public and private owners arises not from the decisions

of the courts below but from the statute itself.

|

|

IV. CONCLUSION

For the foregoing reasons, the Court should decline

to exercise jurisdiction over the instant action.

Respectfully submitted,

Feux C. Wave (0024462)

(Counsel of Record)

Epwin L. Sxeens (0038902)

SCHOTTENSTEIN, ZOx & DUNN

A Legal Professional Association

41 South High Street

Columbus, Ohio 43215

Telephone: (614) 221-3211

Counsel for Respondent

Fox Mechanical Company

ree PRONE ER OR NEE NM TET TT ER RR ANRC

la

IN THE COURT OF COMMON PLEAS

MADISON COUNTY, OHIO

J.A. CROSON COMPANY,

2130 Franklin Road

Columbus, Ohio 43209,

Plaintiff, rat om

3 "Judge

CENTRAL OHIO JOINT Robert D. Nichols

VOCATIONAL SCHOOL

DISTRICT, 7877 Rt. 42 N.E.

Plain City, Ohio 43064

Defendant.

VERIFIED COMPLAINT

FIRST CAUSE OF ACTION (INJUNCTION)

1. Plaintiff J.A. Croson Company (“Croson”) is a

qualified, competent and experienced general contractor.

2. Defendant Central Ohio Joint Vocational School

District (“Central Ohio”) solicited proposals for labor

and/or materials described in a document prepared by

Central Ohio (hereinafter referred to as “RFP”).

3. The RFP involved a project commonly referred to

by Central Ohio as the Tolles Technical Center Expansion

(hereinafter referred to as the “Project”).

4. Croson submitted a proposal for the Project.

5. Upon information and belief, Croson asserts that

it submitted a proposal which was the lowest, most

2a

responsive and cost effective proposal received by Cen-

tral Ohio, and Croson was the most responsible company

that submitted a bid.

6. Defendant Central Ohio was legally obligated to

award the contract to Croson because it was the lowest,

most responsive and responsible company submitting a

proposal, and its proposal was the most cost effective

proposal.

7. Upon information and belief, Defendant Central

Ohio has rejected Croson’s proposal.

8. Upon information and belief, Central Ohio

asserts that Defendant may award the contract in dispute

to Fox Mechanical, another bidder for the Project.

9. Fox Mechanical’s base bid was $277,900.00 and

J. A. Croson’s base bid was $293,449.00. See Exhibit “A”

attached hereto.

10. The proposal submitted by Fox Mechanical does

not reflect Fox Mechanical’s actual costs for this job.

11. Upon information and belief, J. A. Croson has

reason to believe that Fox Mechanical has violated the

non-collusion affidavit that was required to be submitted

with the bid.

12. The non-collusion affidavit states in relevant

part as follows:

[T]}hat said bidder has not in any manner, directly

or indirectly, sought by agreement, communication

or conference with any one to fix the bid rice (sic)

of said bidder or of any other Bidder, or to fix

any overhead, profit, or cost element of such Bid

price, or of that of any other Bidder, or to secure

3a

any advantage against the owner awarding the

contract or anyone interested in the proposed con-

tract... .

Non-Collusion Affidavit (emphasis added). See Exhibit

“B” attached hereto.

13. Upon information and belief, Plumbers Local

189 and the union contractors who are signatory to their

collective bargair ng agreement have set up a job target-

ing program (“program”).

14. Upon information and belief, the program is

funded by a 2% assessment against all union members

who are required to pay into this fund.

15. Upon information and belief, the targeting pro-

gram operates by having any union contractor request

that a specific job be “targeted”.

16. Upon information and belief, if Local 189 agrees

to target a job, then it advises all union contractors that

the job has been “targeted”.

17. Upon information and belief, by targeting a job

Local 189 agrees that it will pay out of the job targeting

fund a kickback to any union contractor who is awarded

the job a specific dollar amount based upon a specific

hourly rate.

18. Upon information and belief, if Local 189 agrees

to a $6.00 per hour kickback, the union contractor who is

awarded the contract gets a monthly check from the

union at a rate of $6.00 per hour for every hour a union

member works on the job.

19. Upon information and belief, under the target-

ing program Fox Mechanical, who is required by the bid

4a

documents to pay a prevailing wage rate of $21.09 per

hour has an actual labor cost of $15.09 per hour, as a

result of its fixing overhead cost and creating for itself an

unfair competitive edge by avoiding prevailing wage

laws, and avoiding disclosing the names of each person

having an interest in the bid proposal at issue.

20. Upon information and belief, Croson asserts

that the rejection of its proposal was based on incomplete,

inaccurate, and otherwise misleading facts.

21. Upon information and belief, Croson asserts

that the process used to reject its proposal was arbitrary

and inconsistent with the applicable law.

22. Croson has requested that Defendant Central

Ohio not award a contract to another company for the

Project.

23. Upon information and belief, Croson asserts

that Defendant Central Ohio plans to award the contract

to a less qualified company for the Project.

24. Croson and the taxpayers of Ohio will be irrepa-

rably harmed if Defendant Central Ohio refuses to award

the contract to Croson, and Defendant enters into a con-

tract with another company for the Project.

25. Croson has no adequate remedy at law and no

means of identifying the damage to its business, its repu-

tation, its profits, and its employee morale caused by the

actions and threatened actions of Defendant.

5a

SECOND CAUSE OF ACTION (MANDAMUS:

DECLARATORY JUDGMENT)

26. Croson repeats and incorporates the allegations

contained in the above paragraphs to the same extent as

if fully rewritten herein.

27. Defendant Central Ohio has a mandatory legal

duty to award the contract to Croson, the most respon-

sive and responsible company submitting the lowest

price proposal which complies with the applicable plans

and specifications for the Project.

28. Defendant Central Ohio has failed and refused

to honor this legal obligation, despite repeated demands

by Croson for Defendant to do so.

29. Croson has no plain and adequate remedy in the

ordinary course of the law.

THIRD CAUSE OF ACTION (MANDAMUS/DECLAR-

ATORY JUDGMENT)

30. Croson repeats and incorporates the allegations

contained in the above paragraphs to the same extent as

fully rewritten herein.

31. Croson, on behalf of themselves and all other

taxpayers of the State of Ohio, complain of Defendant

Central Ohio conduct and for Croson’s cause of action

allege the following.

32. At all relevant times mentioned in this Com-

plaint, Croson has provided general contracting services

to various clients in Central Ohio.

6a

33. It is impractical for all taxpayers of the state of

Ohio to bring Defendant Central Ohio before this Court;

therefore, Croson brings this action on behalf of itself and

on behalf of all other taxpayers of the state of Ohio

similarly situated.

34. Upon information and belief, at all relevant

times mentioned in this Complaint, Defendant was an

agency created under the laws of the state of Ohio and

charged with, among other duties, planning, supervising

and letting of contracts for projects for Central Ohio,

including construction contracts as described throughout

this Complaint.

35. Upon information and belief, Plaintiff asserts

that even though Croson was the lowest, most responsive

and responsible company seeking the contract at issue

regarding the Project, and even though Croson submitted

the most cost effective proposal for the project, Defendant

intends to award the contract to another bidder.

36. Upon information and belief Croson asserts that

Defendant intends to award the contract at issue regard-

ing the Project to Fox Mechanical even though Fox

Mechanical failed to satisfy relevant and mandatory

requirements contained in the RFP, and failed to demon-

strate that it is the most qualified company to perform the

contract.

37. Upon information and belief Croson asserts that

Defendant's factual basis for rejecting Croson’s bid was

in large part inaccurate, incomplete and otherwise mis-

leading, and that this rejection was done in an arbitrary

manner.

WHEREFORE, Plaintiff respectfully requests that this

Court grant judgment in favor of Croson and against

7a

Defendant as follows:

(1)

(2)

(3)

(4)

that a temporary restraining order, prelimi-

nary injunction and permanent injunction

be issued restraining Defendant, its agents,

officers, servants, employees and all other

persons acting on behalf of or in concert

with Defendant from accepting proposals

other than Croson’s proposal, or from

awarding, signing or executing any con-

tract with a third party for the work (or

authorizing third parties to proceed with

such work) that is the subject of the con-

tract for the Project,

that a writ of mandamus be issued direct-

ing the Defendant to honor the proposal of

Croson and execute a written contract with

Croson because it is the lowest, most

responsive and responsible company sub-

mitting a cost effective proposal for the

Project, and that Defendant be ordered to

immediately proceed with its obligations,

that the Court enter a declaratory judgment

declaring that the evaluation process (with

respect to the Project) was not conducted in

accordance with law, that Croson submitted

the lowest, most responsive and cost effec-

tive proposal, Croson is the most responsi-

ble company submitting a proposal, and

that Croson is entitled to the contract for

the Project,

that Croson recover its attorney fees, costs

and expenses incurred in maintaining this

action, and

8a

(5) that this Court order such further relief

which it deems appropriate. 1

Respectfully submitted,

Ronald L. Mason (0030110)

Melvin D. Weinstein (0012174)

Theodore Scott, Jr. (0022821) d

EMENS, KEGLER, BROWN, |

HILL & RITTER

A Legal Professional Association

Capitol Square

Suite 1800

65 East State Street

Columbus, Ohio 43215-4294

Attorneys for Plaintiff

J.A. Croson Company

9a

VERIFICATION

, fepresentative of J.A. Croson Company,

States that they have read the foregoing Complaint, that

this verification is upon their own knowledge, informa-

tion and belief, and that they believe the allegations in

the foregoing Complaint to be true.

J.A. Croson Company

By:

Sworn to before me and subscribed in my presence

this ___ day of __, 1994.

Notary Public