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

j

No. 95-1150 ” ne

h 19 1996

In The

° LEgR

Supreme Court of the Hitited States —_1

>

October Term, 1995

J.A. CROSON COMPANY,

Petitioner,

VS.

CENTRAL OHIO JOINT VOCATIONAL SCHOOL

DISTRICT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the Court of Appeals of

Madison County, Ohio, Twelfth Appellate District

BRIEF IN OPPOSITION FOR

RESPONDENT THE CENTRAL OHIO

JOINT VOCATIONAL SCHOOL DISTRICT

STEVEN W. TIGGES GREGORY B. SCOTT

ZEIGER & CARPENTER Counsel of Record

1600 Huntington Center JULIE C. MARTIN

41 South High Street SCOTT, SCRIVEN & WAHOFF

Columbus, Ohio 43215 50 West Broad Street

(614) 365-4100 Suite 2500

Columbus, Ohio 43215

(614) 222-8686

Attorneys for Respondent

The Central Ohio Joint

Vocational School District

8517

(800) 3 APPEAL ° (800) 5 APPEAL « (800) BRIEF 21

Services, inc.

i

QUESTIONS PRESENTED

1. Where a non-union plumbing contractor had an equal

bidding opportunity for a public school construction contract but

failed to submit the lowest bid, does the National Labor

Relations Act preempt the contractor’s claim that the successful

bidder violated a bidding affidavit by participating in a union

“job targeting” program, where (a) the school board did not favor

union or non-union bids and based its selection solely on prudent

spending of taxpayer dollars; and (b) both the school board and

the state trial court concluded that job targeting did not violate

the bidding affidavit as a matter of state law?

2. Is Supreme Court review of “job targeting” appropriate

where the case presents unusual circumstances which are not

likely to recur?

3. Is Supreme Court review of “job targeting” appropriate

where the case is moot in light of the fact that the school

construction project is now finished and the disappointed bidder

thus could not be awarded the only relief sought by its complaint,

an injunction and writ of mandamus to obtain the construction

contract?

4. Is Supreme Court review of “job targeting” appropriate

where the record consists only of a complaint and answer, and

most of the issues urged by the petitioner were neither presented

to nor decided on their merits by the courts below because such

issues arise from a proposed amended complaint that never

became part of the pleadings because the state trial court denied

leave to amend on state procedural grounds?

5. Is Supreme Court review of “job targeting” appropriate

where the National Labor Relations Board and United States

Courts of Appeals have not had an opportunity to consider the

preemption issue?

il

6. Is Supreme Court review of “job targeting” appropriate

where the Ohio Court of Appeals applied a weli-settled and

properly stated rule of law and its decision is consistent with

applicable decisions of the Supreme Court, National Labor

Relations Board and United States Courts of Appeals?

iii

RULE 29.6 STATEMENT

Respondent The Central Ohio Joint Vocational School

District is an Ohio public school district organized and existing

for vocational education purposes pursuant to Chapters 3311 and

3313 of the Ohio Revised Code. The School District owns and

operates a public joint vocational high school known as Tolles

Technical Center in Madison County, Ohio. Under Ohio law, the

School District is a public body politic and corporate.

iv

TABLE OF CONTENTS

Page

IIE, og nc civccclpaccacéesauusws sonas i

Re SPE, ca cencasescccessdcecdsacbed es iil

SORE CORE kc tcwcikedewedecéesecacsaapdcins iv

Table of Citations ........ market bedascecanusaeeete Vv

gt PPP PTET TT TT Torey TerTe rT Tr |

A. What This CaselsNotAbout ................ 1

B. WhatThisCaselsAbout ..... Seas etek a eae 2

Summary of Reasons for Denying the Writ ........... 5

Reasons for Denying the Writ ...............-0005: 7

I. This Case Presents an Unusual Situation Which Is

POOR RANEY WU MNOUEE ob vcdccskcetepccsctdases 7

II. This Case Is Moot in Light of the Fact That the

School Construction Project Is Now Finished. . 9

III. This Case Is Not Appropriate for Review Be cause

the Record Is Undeveloped and Most of the Issues

Now Urged by Petitioner Were Not

Presented to or Decided by the Courts Below. .. 11

v

Contents

Page

IV. This Case Is Not Appropriate for Review Because

the National Labor Relations Board and United

States Courts of Appeals Have Not Had an

Adequate Opportunity to Consider the Issues

Regarding Job Targeting. ................... 14

V. This Case Is Not Appropriate for Review Because

the State Court Decision Applies a Properly Stated

Rule of Law and Is Consistent with Applicable

Decisions of This Court, the United States Courts

of Appeals and the National Labor Relations

si nas BE ETE ee ee PO uote ee 17

SONNE sald dvidks cndedekac.. he ae 21

TABLE OF CITATIONS

Cases Cited:

Ach v. State ex rel. Brielmaier, 43 Ohio App.525, 183N.E.

RPT, (hat bie ws bac bs dads Ba es ea ee 3

Armstrong/Mahan Joint Venture v. Ohio Department of

Administrative Services, Case No. 92AP-970, 1993

Ohio App. LEXIS 1568 (Ohio App. 1993) ......... 10

Associated Builders and Contractors of Georgia, Inc. v.

City of Atlanta, No. 1:94-CV-2012-ODE, 1995 WL

606778 (N.D. Ga. Aug.5,1995) ................. 20

Belknap, Inc. v. Hale, 463 U.S. 491 ( 4 RS peo eek 18

vi

Contents

Building & Construction Trades Dept., AFL-CIO, 40 F.3d

velo vots 3 Peery eee eee

Farmers Production Credit Ass'n v. Johnson, 24 Ohio St.

3d 69, 493 N.E. 2d 946 (1986), cert. denied, 479 U.S.

IGREAESET) cweses ceeds cocdscassbtcstneee

Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. (1986)

ee ee

General Electric Co. v. New York State Dept. of Labor, 698

F. Supp. 1093 (S.D.N.Y. 1988), vacated on other

grounds, 891 F.2d 25 (2d Cir. 1989), cert. denied, 496

U Ba DiSCISOED ccusiccecwiveccocdéavesacascent

H.R. Johnson Construction Co. v. Board of Education, 16

Ohio Misc. 99, 241 N.E. 2d 403 (1968) ............

International Brotherhood of Elec. Workers, Local 357,

AFL-CIO v. Brock, 68 F.3d 1194 (9th Cir. 1995) ....

Iron Arrow Honor Society v. Heckler, 464 U.S. 67 (1983)

“eee ee ee wee ewer errr errr er ere eee ee ee ee eC ee

Local 24 of Int'l Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, AFL-CIO v.

ONGER BIS Us SUDLNGTED evodentcctiwissvdges-

Lodge 76, Int’lAss'n of Machinists & Aerospace Workers,

AFL-CIO v. Wisconsin Employment Relations

Comm'n, 427 U.S. ISBCIS AED iia deve céceddsvstes

Page

20

20

19

10

19,20

vii

Contents

Page

Manno Electric, Inc., NLRB No. 15-CA-11891, 1994

NLRB LEXIS 542 (July 20,1994) ........... 7,14, 15,18

McCray v. New York, 461 U.S.961(1983) ........... 16

Metropolitait Life Ins. Co. y. Massachusetts, 471 U.S.724

PEE SoS oosabehed ous vibbkiassso.0sos.c.. 3s 20

Murphy v. Hunt, 455 U.S. 478 RTE 1]

NLRB v. City Disposal Systems Inc., 465 U.S. 822 (1984)

ik ¢OURREOURURONOCE SER Fhe cuavedccwed.. on ss, 16

Owen of Georgia, Inc. y. Shelby County, 648 F.2d 1084 (6th

wp ab icin ca TOE ERIE eet ithe 10

Peer Review Systems Inc. y. Ohio Bureau of Workers’

Compensation, Case No. 92AP-436, 1992 Ohio App.

LEXIS 6117 PUNO SOD oc ccces so... 10

Preiser v. Newkirk, 422 U.S. oP aa 10,11

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70

PIN AEE EREE bes f45 ses osx fuss): 8,13,14

Richardson v. Kruchko & Fries, 966 F.2d 153 (4th Cir.

Lo EEE Ene anna 18

San Diego Building Trades Council v. Garmon, 359 U.S.

oe eg gat St SU AO | in Re a 7,15, 17,18, 20

viii

Contents

Page

State ex rel. Polaroid Corp. v. Denihan, 34 Ohio App. 3d

2046, SE 7 EE. 26 IGG (ISOS) occ cvseccvseebecves 3

State of Maryland v. Baltimore Radio Show, Inc., 338 U.S.

PES USOD ecanin dai ciwane codbhadednn densa sods 12,14

United States Parole Commission v. Geraghty, 445 U.S.

SO AFNED hb cvddg kind spa tekcse nk ound se cnbi tone 10

Wilmington Steel Products, Inc. v. Cleveland Electric

Illuminating Co., 60 Ohio St. 3d 120, 573 N.E. 2d 622

GOERS AdaWekcarsnababcseddas cdkdentetebdewss 1,2

Statutes Cited:

Ohio Revised Code § 3313.46 ...........ccccceeees l

Ohio Revised Code Chapter4115 ..............50-. 19

DP DESEO. cdc tcwsvecsciacawzevdses oe eee

Po BB et pe Tf MEP PPPPeTe re Pre Tre Teer irre 19

Rule Cited:

Seprews Comst Rela 1G |. oc. cc ccsccvccessesacessace 7,17

ix

Contents

Other Authorities Cited:

Herbert R. Northrup and Augustus T. White, Subsidizing

Contractors To Gain Employment: Construction Union

“Job Targeting,” 17U.C. Berkeley J. of Emp. & Labor

stitch voessasss? ota REC ETT TTT TOES

Monaghan, Constitutional Adjudication: The Who and

When, 82 Yale L.J. 1363(1973) ..................

13 Moore’s Federal Practice %810.21(1995) ........

Justice Bennan, State Court Decisions and the Supreme

Court, 31 Penn. Bar Assn. Q.393(1960) ..........

Page

19

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i —_ ee eee re? re,

ee ee

|

STATEMENT OF THE CASE

A. What This Case Is Not About

At the outset, itis perhaps more helpful to address what this

case is not about than what it is about.

Although Petitioner J.A. Croson Company (“Croson”) now

says this case involves alleged “collusion among bidders” for a

public works contract in violation of Ohio’s competitive bidding

statute (Ohio Revised Code § 3313.46), such allegations are

nowhere to be found in Croson’s complaint. The complaint

neither cites the Ohio competitive bidding statute nor even

mentions the statute generically. Croson’s complaint also

nowhere alleges that the successful bidder, Respondent Fox

Mechanical Company (“Fox”), colluded with any other bidder.

In fact, at the hearing of this case before the trial court, counsel

for Respondent School District specifically challenged Croson

to identify even one other bidder with whom Fox allegedly

colluded. Croson was silent in response. [Transcript of

Proceedings, April 5, 1994].

The only issue presented to the trial court by Croson’s

complaint was whether the successful bidder, Fox, “colluded”

with anon-bidder, the Plumbers Union, in violation of a bidding

affidavit (not a statute) that Fox submitted with its bid. The trial

court entered judgment on the pleadings against Croson on this

issue on both state law grounds and federal preemption grounds.

It was not until after this adverse ruling that Croson sought to

amend its complaint to include allegations about “other bidders”

and alleged statutory violations. But Croson’s amended

complaint never became part of the pleadings because the trial

judge denied leave to amend, a decision fully within the judge’s

discretion under Ohio law. [Pet. App. 22a].'

1. See, e.g., Wilmington Steel Products, Inc. v. Cleveland Electric

(Cont'd)

2

This case thus is not about a state competitive bidding

statute; it merely concerns one bidder’s affidavit on one

construction project. This case is not about “collusion among

bidders” but merely a “job targeting” arrangement between one

bidder and a non-bidder that Croson claimed was “collusive” but

the trial court ruled was not as a matter of state law. Croson

understandably now wants to make this case into something it

never was, but it is much too late for that.

B. What This Case Is About

Respondent The Central Ohio Joint Vocational School

District (the “School District”) is an Ohio public school district

which owns and operates a public vocational high school known

as Tolles Technical Center. In early 1994 the School District

advertised for bids for a plumbing contract in connection with

expansion of its high school facilities. Six bids were received:

Bidder 7 Bid

Fox Mechanical Company $277,900

J.A. Croson Company $293,449

Marco Plumbing & Heating $297,000

Kirk Williams Company $299,630

River City Mechanical, Inc. $350,000

Radico, Inc. $376,400

Under Ohio law, the School District was vested with

discretion either to accept “the lowest responsible bid” or “reject

(Cont’d)

Illuminating Co., 60 Ohio St. 3d 120, 573 N.E.2d 622 (1991); Farmers

Production Credit Ass'n v. Johnson, 24 Ohio St. 3d 69, 493 N.E.2d 946 (1986),

cert. denied, 479 U.S. 1032 (1987). Notably, Croson omitted its actual

complaint in the appendix to the petition for certiorari and instead reproduced

the amended complaint that never became part of the record because the trial

court denied Croson’s motion to amend.

3

all bids.”* Since the School District was also obligated to spend

taxpayer dollars in the most prudent manner, it chose to accept

the lowest bid and announced that it intended to award the

contract to Fox.

Croson objected. It contended that Fox’s participation ina

“job targeting” program with Plumbers Union Local No. 189

violated a “non-collusion” affidavit that Fox had submitted with

its bid. At Croson’s request, the School District conducted a

hearing on these allegations and concluded there was no

violation of Fox’s affidavit.’ Here again, this decision fell

squarely within the School District’s discretion under state law,

which includes discretion to interpret its own contracting

documents (such as the bidding affidavit) to determine if there

have been any violations.‘ The School District therefore

reaffirmed its decision to award the plumbing contract to Fox. In

reaching this conclusion, the School District never sought to

favor union or non-union labor; its sole objective was to build its

new school for the fewest taxpayer dollars consistent with top

quality work.

Croson commenced this action on March 25, 1994 in the

Court of Common Pleas of Madison County, Ohio. The only

2. See, e.g., State ex rel. Polaroid Corp. v. Denihan, 34 Ohio App. 3d

204, 517 N.E.2d 1021 (1986); H.R. Johnson Construction Co. v. Board of

Education, 16 Ohio Misc. 99, 241 N.E.2d 403 (1968).

3. Notably, at this hearing Croson represented to the School Board that

Fox did not collude with any other bidders. Croson told the School Board that

the only alleged “collusion” was between Fox and a non-bidder, the Plumbers

Union, because of the job targeting arrangement.

4. See,e.g., Ach v. State ex rel. Brielmaier, 43 Ohio App. 525, 183 N.E.

543 (1932) (a public contracting authority's discretion extends to construing

its own bid documents when a dispute arises as to their meaning).

4

claim presented by Croson’s complaint was that Fox’s bid

violated its bidding affidavit because of participation in a job

targeting program. The complaint sought only extraordinary

relief - injunction and mandamus - to force the School District to

award the contract to Croson instead of Fox. On April 5, 1994 the

Common Pleas Court conducted a non-evidentiary hearing on

Croson’s motion for temporary restraining order. By decisions

dated April 11, 1994 [Pet. App. 10a] and June 8, 1994 [Pet. App.

22a] the Common Pleas Court ruled against Croson and entered

judgment on the pleadings for the School District as a matter of

law for five reasons.

First, the Common Pleas Court found that as a matter of state

law, Croson failed to state aclaim for relief because there was no

allegation that Fox had colluded with any other bidder. The

Common Pleas Court stated: “There is nothing from the

presentations of counsel that suggest that competitive bidders

(and specifically Fox) have engaged in collusion orcombination

with each other in an attempt to offer the lowest responsible bid.”

[Pet. App. 17a].

Second, the Common Pleas Court held, again as a matter of

Ohio law, that there is no factual or legal basis to find that job

targeting violated Fox’s bidding affidavit. The Common Pleas

Court held: “[T]here is no basis to find that job targeting

constitutes collusion within the affidavit factually or as a matter

of law.” [Pet. App. 18a]. The court further ruled that “job

targeting is not collusive as a matter of law.” [Pet. App. 22a].

Third, the Common Pleas Court noted that under Ohio law,

the School District’s decision to award the contract to Fox could

be challenged only for an abuse of discretion. The court found

that “Defendant [the School District] probably did not abuse its

discretion in accepting Fox’s bid.” [Pet. App. 18a-19a].

5

Fourth, the Common Pleas Court found that Croson had an

adequate remedy at law, and injunctive or other extraordinary

relief thus was unavailable. [Pet. App. 19a-21a].

Finally, the Common Pleas Court held that Croson’s claims

were preempted by the National Labor Relations Act (the “Act”

or “NLRA”), 29 U.S.C. §151 et seq. [Pet. App. 16a].°

This last ground for the Common Pleas Court’s decision

became the focal point on appeal. On May 30, 1995 the Court of

Appeals for Madison County, Ohio, Twelfth Appellate District,

affirmed the Common Pleas Court on preemption grounds. [Pet.

App. 1a-9a]. On October 18, 1995 the Ohio Supreme Court

denied review. [Pet. App. 24a]. Croson’s petition to this Court

followed.

SUMMARY OF REASONS FOR DENYING THE WRIT

This case does not present any issues deserving of review by

this Court. Croson’s petition for writ of certiorari should be

denied for five reasons:

1. This case presents unusual circumstances which are not

likely to recur. The only claim presented by the complaint was

that the successful bidder, Fox, allegedly violated its bidding

affidavit (not the Ohio competitive bidding statute) by

participating in a job targeting program with a non-bidder, the

Plumbers Union. There is very little likelihood that these

5. Inthe Common Pleas Court's June 8, 1994 decision, the court also

denied Croson’s motion for leave to amend its complaint. The court held: “This

Court previously found that job targeting is not collusive as a matter of law.

Therefore, plaintiff’s proposed amendment would not create a monetary claim

predicated on such allegations. The amendment sought would not state aclaim

for which relief can be granted.” [ Pet. App. 22a).

6

circumstances will ever be repeated since the school

construction project is now finished and the School District has

no plans for further construction or future use of the bidding

affidavit in question.

2. This case is moot. Croson’s complaint sought only

extraordinary relief, injunction and mandamus, intended to

force the School District to award the plumbing contract to

Croson instead of Fox. The construction project is now finished

and the School District has no plans for new construction. There

is no set of circumstances under which acourt could now issue an

injunction or writ of mandamus for Croson to obtain a plumbing

contract for work that is already done and will not be repeated.

There is also very little likelihood that these circumstances

(much less the same controversy involving the same parties and

same alleged injuries) will ever occur again. This case is thus

moot.

3. This case is not appropriate for review by this Court

because the record is undeveloped. The trial court decided this

case as a matter of law on the pleadings. There was no

presentation of evidence or development of a factual record. In

fact, not only is the record undeveloped, but most of the issues

now urged by Croson were not even presented to or decided on

the merits by the courts below. Most of Croson’s arguments

before this Court are based on Croson’s proposed amended

complaint which never became part of the pleadings because the

trial judge denied leave to amend. The record in this case is thus

insufficient for consideration of the constitutional supremacy

issues urged by Petitioner.

4. This case is not appropriate for review because the

National Labor Relations Board and the United States Courts of

Appeals have yet to address the preemption issue raised by job

targeting programs. Currently, the National Labor Relations

7

Board is considering Section 7 preemption because of job

targeting as a result of an Administrative Law Judge’s

recommended decision in Manno Electric, Inc., NLRB No. 15-

CA-11891, 1994 NLRB LEXIS 542 (July 20, 1994). The Court

should await the NLRB’s decision and insight into the issue, and

also should allow the United States Courts of Appeals the

opportunity to rule on appeals of NLRB decisions.

5. This case is not appropriate for review because the Ohio

Court of Appeals’ decision applies a well-settled and properly

stated rule of law and is consistent with applicable decisions of

this Court, the United States Courts of Appeals and the National

Labor Relations Board. The Ohio court correctly applied this

Court's doctrine of Garmon preemption since the job targeting

program which Croson attacks is protected under Section 7 of the

NLRA as concerted activity for the purpose of mutual aid and

protection. The cases cited by Croson are distinguishable since

they involve either federal laws which are not subject to the

Supremacy Clause of the United States Constitution or laws

which do not prohibit concerted activity. Since the Ohio court

properly applied the rule of law, this Court should deny the

petition.

REASONS FOR DENYING THE WRIT

L

THIS CASE PRESENTS AN UNUSUAL SITUATION

WHICH IS NOT LIKELY TO RECUR.

The rules of this Court provide that a petition for writ of

certiorari “will be granted only for compelling reasons.”

Supreme Court Rule 10. As Justice Brennan explained, this

requires much more than just the presence of a “federal question”

somewhere in the case:

But the fact that a federal question lurks in

the case doesn’t mean, standing alone, thata

state decision will be reviewed. First, the

federal question must be a substantial

question. Second, the federal question must

have been properly raised in the state courts.

This is required because the state courts must

first be afforded an opportunity to consider

and decide the federal question. Third, even

then we may not take the case if the state

court’s judgment can be sustained on an

independent ground of state law. But whether

there is a substantial question and whether it

was properly raised in the state courts and

whether, even so, the state court decision can

be rested on an independent state ground are

not always easy questions. The parties differ

on one or more of them and we of the Court

are not always in agreement.

[Justice Brennan, State Court Decisions and the Supreme Court,

31 Penn. Bar. Assn. Q. 393, 399-400 (1960)].

For purposes of review by this Court, a federal question is

neither “substantial” nor “compelling” if the case involves

unique circumstances or issues which are not likely to be

repeated. See, e.g., Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70, 74 (1955) (noting that the Court only reviews issues

that are “beyond the academic or the episodic”); 13 Moore's

Federal Practice {J 810.21 (1995) (the Court will not be inclined

to review “an issue that is unlikely to recur” or “results from a

unique factual situation”). Unique circumstances are what we

find here. Although Croson now wishes to characterize this case

much differently, the fact remains that in the state courts, this

case merely involved one bidder’s affidavit on a one-time school

9

construction project. The only issue presented by Croson’s

complaint was whether Fox’s participation in a job targeting

program with the Plumbers Union violated Fox’s bidding

affidavit. The School District, acting within its authority under

state law, has already concluded there was no violation of the

affidavit, and the Ohio Common Pleas Court agreed on state law

grounds. The school construction project itself is now

completed, and the School District has no plans for further

construction. And in any event, it is most unlikely that the School

District would use the same bidding affidavit again in light of all

the unnecessary litigation that this particular affidavit has

created.

The issues presented by this case thus are limited to the

affidavit of one bidder on one particular construction project. It

is very unlikely these circumstances will ever arise again.

Certiorari should therefore be denied.

Il.

THIS CASE IS MOOT IN LIGHT OF THE FACT THAT

THE SCHOOL CONSTRUCTION PROJECT IS NOW

FINISHED.

The circumstances presented by this case are not only

unique and unlikely to recur, they are actually moot. Croson’s

complaint sought only injunctive and other extraordinary relief

to force the School District to award the plumbing contract to

Croson instead of Fox. It is now too late for such relief in any

event. The construction project is finished, the new school is

open and operating, and there are no plans for the School District

to undertake any new construction.

Itis well-settled that an actual controversy must exist at all

stages of the case, including at the appellate level. If events

10

subsequent to the filing of the case eliminate the dispute, the case

should be dismissed as moot. Jron Arrow Honor Society v.

Heckler, 464 U.S. 67 (1983); Preiser v. Newkirk, 422 U.S. 395,

401-02 (1975). As this Court has explained, “mootness [is] the

‘doctrine of standing in a time frame. The requisite personal

interest that must exist at the commencement of the litigation

(standing) must continue throughout its existence

(mootness).’ ” United States Parole Commission v. Geraghty,

445 U.S. 388, 397 (1980), quoting Monaghan, Constitutional

Adjudication: The Who and When, 82 Yale L. J. 1363, 1384

(1973).

Whatever standing Croson may have had at the

commencement of this case no longer exists. At this juncture, it

would be impossible for any court to render a decision that would

allow Croson the extraordinary relief sought by its complaint.

Since construction is finished and the new school is now open,

there is simply no set of circumstances under which Croson

could obtain a contract for work that is already done. See, e.g.,

Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1094 (6th

Cir. 1981) (“Itis now too late for injunctive relief to be effective

because at oral argument, we were informed that construction of

the . . . [project] was substantially complete. Accordingly, we

dismissed as moot Owens’ claims for injunctive relief. For the

same reason, we also dismissed as moot the claim for

mandamus.”)*®

This plainly is not acase which is “capable of repetition yet

evading review.” For this doctrine to apply, “there must be a

6. It should also be noted that Croson’s claims are moot as a matter of

Ohio law as well. See, ¢.g., Armstrong/Mahan Joint Venture v. Ohio

Department of Administrative Services, Case No. 92AP-970, 1993 Ohio App.

LEXIS 1568 (Ohio App. 1993); Peer Review Systems Inc. v. Ohio Bureau of

Workers’ Compensation, Case No. 92AP-436, 1992 Ohio App. LEXIS 6117

(Ohio App. 1992).

11

reasonable expectation or a demonstrated probability that the

same controversy will recur involving the same complaining

party.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (emphasis

added). There further must be a likelihood that the specific injury

will occur again. Preiser, supra, 422 U.S. at 401-02. Neither of

these elements is present here. The School District has no plans

for future construction. Even if the School District undertakes

further construction at some future point, it would be wholly

speculative to assume that Croson or Fox would bid for the

contract, or that any union bidders would be involved witha job

targeting program. It would be even more speculative to assume

that the specific alleged injury here — Croson placing second in

the bidding due to the successful bidder’s participation inajob

targeting program — would recur. And, as noted earlier, even if

the School District undertakes further construction, it is even

more unlikely it would use the same bidding affidavit again.

Thus, this case is now moot and there is no likelihood that

these circumstances will ever arise again. Certiorari should

therefore be denied.

Ill.

THIS CASE IS NOT APPROPRIATE FOR REVIEW

BECAUSE THE RECORD IS UNDEVELOPED AND

MOST OF THE ISSUES NOW URGED BY PETITIONER

WERE NOT PRESENTED TO OR DECIDED BY THE

COURTS BELOW.

Certiorari also should not be granted in this case because the

record is undeveloped and inadequate for review by this Court.

As Justice Frankfurter wrote:

A decision may satisfy all these technical

requirements and yet may commend itself for

12

review to fewer than four members of the

Court. Pertinent considerations of judicial

policy here come into play. Acase may raise

an important question but the record may be

cloudy.

[State of Maryland v. Baltimore Radio Show, Inc., 338 U.S.912,

918 (1950)].

The record in this case is minimal. The trial court rendered

its decision solely on the pleadings. There was no trial, no

evidentiary hearing, no discovery or depositions, and no

affidavits except fora meager “verified” complaint. As aresult,

this Court would be left with only the complaint to derive the

factual background of this matter.’ Even Croson is dissatisfied

with its complaint; it filed a motion to amend, which was denied.

It is apparent that the pleadings do not contain sufficient

factual development to provide a record for the issues on which

Croson seeks review by this Court. For example, although

Croson now claims that this case centers on job targeting

programs, the only explanation of job targeting in the record

comes from the “notice pleading” allegations of the complaint

and one law review article attached to the petition. The record

does not contain one iota of fact about communications between

contractors and the union, nor does it even include the collective

bargaining agreement alleged to be the very basis for job

targeting in this case.

Not only is the record undeveloped, but most of the issues

7. While legal issues have been litigated, the facts have not. The School

District denied many of the factual allegations of the complaint in its answer.

For purposes of granting judgment on the pleadings, the trial court assumed the

allegations contained in the complaint to be true. Croson thus asserts as “fact”

in its petition many things that are mere allegations. Accordingly, Croson asks

this Court to consider constitutional supremacy virtually in the abstract.

13

now urged by Croson were not even presented to the courts

below. The trial court’s judgment on the pleadings was based on

Croson’s original complaint, which merely alleged violation of

an affidavit (not a statute) based upon an alleged job targeting

arrangement between a bidder (Fox) and a non-bidder (the

Plumbers Union). The complaint nowhere alleged violation of

the Ohio competitive bidding statute or collusion among bidders

themselves. These issues were not raised by Croson until after

the trial court’s adverse ruling, when Croson sought to amend its

complaint. But the proposed amended complaint never became

a part of the pleadings because the Common Pleas Court denied

Croson’s motion to amend as a matter of state procedural law.

Despite this, most of the issues urged by Croson before this

Court arise from its proposed amended complaint, not from the

pleading that was the subject of the decisions below. Although

some of the issues presented by the original complaint and the

proposed amended complaint may overlap, the fact remains that

the proposed amended pleading is not the subject of the judgment

on appeal. It seems apparent that this Court should not review

claims which were never made part of the pleadings and thus

never decided on their merits by the state courts.

If and when this Court considers preemption of state law

with respect to job targeting programs, it should have before ita

record which contains the pertinent collective bargaining

agreement as well as testimony or properly admitted evidence

which describes job targeting. That is not this case. While job

targeting may be of interest to the Court, taking this case would

require it to decide the issue in the abstract. As Justice

Frankfurter wrote, “A federal question raised by a petitioner may

be ‘of substance’ in the sense that, abstractly considered, it may

present an intellectually interesting and solid problem. But this

Court does not sit to satisfy a scholarly interest in such issues.

Nor does it sit for the benefit of particular litigants.” Rice v. Sioux

14

City Memorial Park Cemetery, 349 U.S. 70, 74 (1955). Review

of abstract arguments is exactly what Petitioner seeks here. The

Court should therefore deny the petition for writ of certiorari.

IV.

THIS CASE IS NOT APPROPRIATE FOR REVIEW

BECAUSE THE NATIONAL LABOR RELATIONS

BOARD AND UNITED STATES COURTS OF APPEALS

HAVE NOT HAD AN ADEQUATE OPPORTUNITY TO

CONSIDER THE ISSUES REGARDING JOB

TARGETING.

Justice Frankfurter also wrote, “It may be desirable to have

different aspects of an issue further illumined by the lower

courts. Wise adjudication has its own time forripening.” State of

Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 918

(1950). It would be premature for this Court to consider the

issues presented in this case.

The National Labor Relations Board is currently

considering the issue of preemption of state law based on job

targeting. The Administrative Law Judge issued his decision in

Manno Electric, Inc., NURB No. 15-CA-11891, 1994 NLRB

LEXIS 542 (1994), on July 20, 1994, based on a full evidentiary

record. Exceptions were filed on September 19, 1994, and the

case is now pending before the Board itself. In that case, Manno,

a non-union contractor, filed a state court suit against a union

claiming that it participated in a job targeting program with the

“intent of injuring and restraining the trade of Manno Electric.”

The Administrative Law Judge held:

Whether the Plaintiff may pursue a state

lawsuit based on such a claim depends on

whether the “job targeting program” is

15

protected by the Act. . . Section 7 provides

that employees shall have the right “to

engage in other concerted activities for the

purpose of ... other mutual aid or

protection.” The objectives of the “job

targeting program” are to protectemployees’

jobs and wage scales. These objectives are

protected by Section 7. Thus, the plaintiff's

suit, which interferes with, restrains, and

coerces employees in their Section 7 rights,

offends Section 8(a)(1) of the Act. The claims

which Plaintiff sought to press were

preempted.

[1994 NLRB LEXIS 542 at *68-*69].

The Court should await the NLRB’s decision in Manno

Electric and hence the Board’s reasoning on how job targeting

programs fit under Section 7. The NLRB, after all, isthe agency

to which “Congress has entrusted administration of the labor

policy for the Nation . . . armed with its own procedures, and

equipped with its specialized knowledge and cumulative

experience.” San Diego Building Trades Council v.Garmon, 359

U.S. 236, 242 (1959). As this Court has held:

We have often reaffirmed that the task of

defining the scope of §7 “is for the Board to

perform in the first instance as it considers

the wide variety of cases that come before it,”

Eastex, Inc. v. NLRB, 437 U.S. 556 (1978),

and, on an issue that implicates its expertise

in labor relations, a reasonable construction

by the Board is entitled to considerable

deference, NLRB v. Iron Workers, 434 U.S.

335, 350 (1978); NLRB v. Hearst

16

Publications, Inc., 322 U.S. 111, 130-131

(1944),

[NLRB v. City Disposal Systems Inc., 465 U.S. 822, 829-30

(1984)].

Further, the United States Courts of Appeals need time to

consider the relationship of the Act to job targeting programs.

Croson cites only to state court decisions on job targeting. The

United States Courts of Appeals should have the opportunity to

rule on appeals of NLRB decisions, taking into account the

Board’s view of Section 7 implications. The Courts of Appeals

will address and resolve many of the perceived conflicts with

precedent that Croson alleges. If not, this Court should at least

have the benefit of the Courts of Appeals’ analysis in cases with

fully developed records. As Justice Stevens wrote in McCray v.

New York, 461 U.S. 961 (1983), in denying petitions for writs of

certiorari, “Further consideration of the substantive and

procedural ramifications of the problem by other courts will

enable us to deal with the issue more wisely at a later date.”

Review here should be denied so that the NLRB and the United

States Courts of Appeals have time to conduct their necessary

and beneficial analysis of the issues.

17

Vv.

THIS CASE IS NOT APPROPRIATE FOR REVIEW

BECAUSE THE STATE COURT DECISION APPLIES A

PROPERLY STATED RULE OF LAW AND IS

CONSISTENT WITH APPLICABLE DECISIONS OF

THIS COURT, THE UNITED STATES COURTS OF

APPEALS AND THE NATIONAL LABOR RELATIONS

BOARD.

The Ohio Court of Appeals based its decision on well-

settled principles of federal preemption as announced by this

Court. In fact, the Ohio Court of Appeals actually quoted the key

holding of this Court in San Diego Building Trades Council v.

Garmon, 359 U.S. 236, 244 (1959), that “[w]hen it is clear or raay

fairly be assumed that the activities which a state purports to

regulate are protected by Section 7 of the National Labor

Relations Act, or constitute an unfair labor practice under

Section 8, due regard for the federal enactment requires that state

jurisdiction must yield.” Croson’s complaint thus is not that ihe

Ohio court created new law, but merely that it supposedly

misapplied a properly stated rule of law. Compare Supreme

Court Rule 10 (“[a] petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of law”).

As explained below, the Ohio Court of Appeals not only applied

a properly stated rule of law but also reached the correct result

under the circumstances of this case.

Job targeting programs, as described by Croson itself, are

protected activities under Section 7 of the NLRA, which allows

employees the right to engage in “other concerted activities for

the purpose of . . . mutual aid or protection.” Despite Croson’s

argument that this case is about union contractors, Croson’s own

allegations put union employees at the heart of job targeting and

18

thus at the heart of its complaint—they pay into a fund to get the

benefits of the program. [Complaint {J 14 and 19].* As the

Administrative Law Judge held in Manno Electric, these

activities are protected by Section7 and preemption thus applies.

Manno Electric, supra, 1994 NLRB LEXIS 542 at *68. To hold

otherwise would risk a state court prohibiting job targeting while

the Act — the “supreme law of the land” — protects such

conduct.’

Job targeting is also not “deeply rooted in local feeling and

responsibility” so as to create an exception to Garmon

preemption. Garmon, 359 U.S. at 244. Astate prohibition of job

targeting would be similar to other bans on concerted activities,

such as state antitrust laws. With respect to Ohio’s antitrust law,

this Court held:

We have not here a case of a collective

bargaining agreement in conflict with a local

health or safety regulation; the conflict here

is between the federally sanctioned

agreement and state policy which seeks

8. See Richardson v. Kruchko & Fries, 966 F.2d 153, 156 (4th Cir. 1992)

(“[S}tate-law claims are subject to Garmon preemption even when the

defendant is neither a union, an employer, nor the employer’s agent. Whether

state-law claims are preempted under Garmon is determined not by the

identity of the party against whom the claims are asserted, but rather by the

issues that those claims require a court to adjudicate” (emphasis in original)).

As indicated in Point III, supra, the record in this matter is less than

satisfactory, as it would be useful for this Court to have facts about job

targeting beyond the self-serving allegations of the Complaint.

9. Thus, this case is distinguishable from Belknap, Inc. v. Hale, 463 U.S.

491,510-11 (1983), in which the Court held that the state court action could be

maintained without interfering with an NLRB determination of the matter

within its jurisdiction.

19

specifically to adjust relationships in the

world of commerce. If there is to be this sort

of limitation on the arrangements that unions

and employers may make with regard to these

subjects ..., it is for Congress, not the

States, to provide it.

[Local 24 of Int’l Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, AFL-CIO v. Oliver, 358

U.S. 283, 297 (1959)].

The preemption here is distinguishable from a number of

prevailing wage cases cited by Croson."° First, the federal cases

regarding the Davis-Bacon Act (40 U.S.C. § 276 et seq.) are not

contrary to Garmon preemption; they simply do not address it,

perhaps because the parties never raised the issue. See, e.g.,

Building & Construction Trades Dept., AFL-CIO, 40 F.3d 1275

(D.C. Cir. 1994); International Brotherhood of Elec. Workers,

Local 357, AFL-CIO v. Brock, 68 F.3d 1194 (9th Cir. 1995). Of

course, Davis-Bacon cases would treat preemption differently,

as only a federal statutory matter, whereas here Croson’s Ohio

law claim is subject to preemption under the Supremacy Clause

of the United States Constitution.

10. Itis interesting that Croson brings up prevailing wage law at this late

stage when the Complaint does not allege a violation of Ohio’s Prevailing

Wage Law, Ohio Revised Code Chapter 4115. In its brief to the Court of

Appeals, Croson expressly claimed that, “[t]his case is not a prevailing wage

case.” (Appellant’s Brief p. 12) Thus, Croson’s reliance on “prevailing wage”

cases is misguided, illustrating once again that this case is a poor candidate for

review. In their article attached to the Petition, Northrup and White

overemphasize the significance of this case by mischaracterizing it as being

about the preemption of “Little Davis-Bacon Acts” when that is simply not true

in light of the Complaint, Croson’s claims and the Court of Appeals decision.

See Herbert R. Northrup and Augustus T. White, Subsidizing Contractors To

Gain Employment: Construction Union “Job Targeting,” 17 U.C. Berkeley J.

of Emp. & Labor Law 62 (January 1996).

20

Croson’s other authorities are also easily distinguishable. In

General Electric Co. v. New York State Dept. of Labor, 698 F.

Supp. 1093 (S.D.N.Y. 1988), vacated on other grounds, 891 F.2d

25 (2d Cir. 1989), cert. denied, 496 U.S. 912 (1990), the Court

held that New York’s prevailing wage statute was not preempted

by the Labor-Management Relations Act. The Court

distinguished Oliver by holding that while an antitrust law would

prohibit parties from bargaining, the prevailing wage law does

not prohibit such activity but merely sets a floor for what wages

can be. This same reasoning applies to other minimum wage

standards which do not discourage or encourage collective

bargaining or affect the right of self-organization under the Act.

See Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1 (1986);

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724

(1985)."

Here, by contrast, Croson wants to apply state law so that

unions could not create job targeting programs. By Croson’s

logic, Ohio law should have the effect of prohibiting the

concerted efforts of union employees to set up job targeting

programs for their mutual aid and protection. Yet this would

obviously impair employees’ exercise of their Section 7 rights

and violate the Supremacy Clause. Garmon preemption is thus

inevitable.

Since the Ohio Court of Appeals’ decision properly states

and follows applicable decisions of this Court, there is no reason

for review by this Court.

11. These cases and Associated Builders and Contractors of Georgia,

Inc. v. City of Atlanta, No. 1:94-CV-2012-ODE, 1995 WL 606778 (N.D. Ga.

Aug. 5, 1995), are also distinguishable from the instant case since they did not

involve Garmon preemption. Since the causes of action did not raise issues

under Sections 7 and 8, the Courts went on to consider other preemption

doctrines, such as that described in Lodge 76, Int'l Ass'n of Machinists &

Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Comm'n,

427 U.S. 132 (1976).

21

CONCLUSION

For all of the foregoing reasons, Respondent The Central

Ohio Joint Vocational School District respectfully requests the

Court to deny the petition for writ of certiorari.

Respectfully submitted,

GREGORY B. SCOTT

Counsel of Record

JULIE C. MARTIN

SCOTT, SCRIVEN & WAHOFF

50 West Broad Street, Suite 2500

Columbus, Ohio 43215

(614) 222-8686

STEVEN W. TIGGES

ZEIGER & CARPENTER

1600 Huntington Center

41 South High Street

Columbus, Ohio 43215

(614) 365-4100

Attorneys for Respondents

The Central Ohio Joint Vocational

School District