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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1155

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1576%3A2. Public record. Not legal advice.