Connecticut Associated Builders & Contractors v. City of Hartford

BERDON, J., with whom MCDONALD, J.,

joins, dissenting. The court, in a hypertechnical ruling on standing, avoids a substantive issue that, in the public interest, we should review. The issue is whether the bidding requirements of the defendant, the city of Hartford, violate state and local competitive bidding statutes. The criterion in question requires that general contractors and subcontractors on a particular project be bound by a project labor agreement that provides that they must agree to follow the provisions of existing collective bargaining agreements, notwithstanding the fact that those contractors and subcontractors had not entered into those agreements and philosophically were opposed to such agreements.

The public interest should compel this court to address this issue, for it is one that affects millions of dollars of public expenditures. As one court has noted: *194“[Project labor agreements] can contravene the goals of competitive bidding. By mandating that workers belong to certain limited labor organizations, [project labor agreements] restrict bidders to contractors with relationships with those labor organizations. The obvious effect of such a restriction is to lessen competition. ” Tormee Construction, Inc. v. Mercer County Improvement Authority, 143 N.J. 143, 148, 669 A.2d 1369 (1996). On the other hand, another court has found that project labor agreements can be consistent with competitive bidding statutes and will, therefore, be upheld if the government entity proves that “(1) a project is of such size, duration, timing, and complexity that the goals of the competitive bidding statute cannot otherwise be achieved and (2) the record demonstrates that the awarding authority undertook a careful, reasoned process to conclude that the adoption of a [project labor agreement] furthered the statutory goals.” John T. Callahan & Sons, Inc. v. Malden, 430 Mass. 124, 133, 713 N.E.2d 955 (1999). At this stage in the proceeding, I do not express any opinion on how this court should rule on the merits of the plaintiffs’ claim. I do, however, conclude that the public interest should compel us to open the courtroom doors in order to review these claims. The majority avoids these substantive claims by narrowly ruling that the plaintiffs have no standing. In doing so, it stands this court’s decision in Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 600 A.2d 1019 (1991), on its head.

I rely on the following undisputed facts recited in the plaintiffs’ brief. “This action arises out of one phase of a planned construction project known as the Learning Corridor Project [project] to be constructed [in] Hartford. The city is the owner of the project. . . . The entire project will include construction of a regional Montessori Magnet School, a city of Hartford Middle School including [a] commons building, a regional Math, *195Science and Arts Resource Magnet High School and the parking garage. . . . The advertisement and notice to bidders for the parking garage phase was issued on June 29, 1998. On the same date the city’s construction manager, Gilbane Construction Company [Gilbane], issued its general instructions to bidders. . . . These general instructions contained no mention of a [project labor agreement] for the project. In fact, in the summer of 1998, following the issuance of the bid package for the parking garage phase of the project, a principal of the plaintiff [Electrical Contractors, Inc. (Electrical Contractors)], Leo Christmas, received assurances that a project labor agreement would not be used on the project. The person making those assurances was Eddie Perez, chairman of the [Learning Corridor Corporation (Learning Corporation)]. . . . The Learning Corporation is the project manager for the city. . . .

“The very first notice to potential bidders that the project would be subject to a [project labor agreement] came in an addendum to the bid package [supplement no. 2], which was issued October 14, 1998, only nine days before the scheduled bid opening date of October 23,1998. . . . Supplement no. 2 revised the description of the bid documents to include the [project labor agreement].

“The [project labor agreement] describes itself as an agreement between Gilbane, as construction manager, and the Greater Hartford-New Britain Building and Construction Trades Council and its affiliated Local Unions . . . [signatory unions], . . . The city also signed the [project labor agreement]. The [project labor agreement] recognizes the signatory unions as the ‘sole and exclusive bargaining representative’ of all craft employees working on the project. ... It specifically requires all trade contractors and subcontractors working on the project to adhere to the local collective bargaining agreements between the union’s signatory *196hereto and their respective employer associations. . . . The parties agree that there will be no strikes or lockouts. ... All contractors and subcontractors are required to pay the wages according to the employee classifications and wage rates specified in the collective bargaining agreements. . . . They also must pay contributions to employee benefit trust funds ‘designated in the appropriate schedule A.’. . . Despite numerous other references throughout the [project labor agreement] to the collective bargaining agreements and ‘schedule As,’ these documents are not otherwise described in the [project labor agreement], nor were they attached to the [project labor agreement] which was issued as part of supplement no. 2 to the bid package. . . . The [project labor agreement] also contains a ‘union security provision’ which provides in its entirety: ‘Membership in good standing for the purpose of this agreement shall be defined as financial core membership through the payment of dues and fees uniformly applied.’ . . .

“Both [Electrical Contractors] and the plaintiff [Rhoan Stewart, doing business as Dynamic Electrical Contractor (Dynamic)] planned to submit bids for the electrical work to general contractors, who would then submit bids to the city. . . . Dynamic was in the process of putting together a bid when the [project labor agreement] was announced. At least three general contractors had contacted [Dynamic] to solicit [its] participation. . . . However, after reviewing the [project labor agreement] and attempting to learn as much as [it] could about its requirement Dynamic decided that [it] could not submit a bid because of the [project labor agreement], . . . [Electrical Contractors] also began to develop estimates for the electrical work and received a number of requests from general contractors to submit bids to them. [Electrical Contractors] spent an estimated $15,000 in developing its bidding information. *197. . . When the [project labor agreement] was announced, [Electrical Contractors] spent additional time and resources investigating the requirements it would impose and ultimately determined not to submit a bid because of the [project labor agreement]. Among other things, [Electrical Contractors] determined [that] the terms of the applicable collective bargaining agreement and the associated work rules would increase its costs and raise the amount of its bid. . . . It also determined that it would have to make benefit payments to the union rather than directly to the benefit programs it had established for its employees.”

The majority’s decision denying the plaintiffs standing flies in the face of the more liberal approach to standing that we adopted in Unisys Corp. v. Dept. of Labor, supra, 220 Conn. 689. In that case, we declared: “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.” (Citation omitted; internal quotation marks omitted.) Id., 693.

The undisputed facts previously set forth not only demonstrate a colorable claim, but actual harm to the plaintiff subcontractors, Dynamic and Electrical Contractors. More specifically: (1) Dynamic would have submitted a bid if not for the project labor agreement; and (2) Electrical Contractors expended an estimated *198$15,000 in developing its bidding information, all of which was rendered useless when the bidding requirements were amended belatedly to include a project labor agreement requirement.

The majority, however, will not extend standing to those subcontractors because “the limited standing we have granted to disappointed and excluded contractors to bring challenges based on competitive bidding laws is designed to protect the interests of the public, not those of the contractors.” This simply ignores the fact that contractors depend upon subcontractors. When the field of the number and scope of subcontractors is limited as a result of a bid requirement, there is an adverse effect on the competitive bids submitted by contractors and the interests of the general public axe clearly implicated. That is simple economics.

The named plaintiff, Connecticut Associated Builders and Contractors (association), which is the state chapter of a larger association, also should have standing. Connecticut follows the federal test for representational standing, which provides that “[a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect axe germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Internal quotation marks omitted.) Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 386, 709 A.2d 1116 (1998).

The majority claims that the first requirement has not been met. This conclusion, however, ignores the fact that, Rashid Hamid of Naek Construction Company (Naek), a member of the association at the time of the *199hearing on the motion to dismiss, attended the mandatory prebid conference. It is undisputed that Naek would have submitted a bid if not for the project labor agreement.1 Consequently, the association meets the first prong of the test. We followed the same logic in Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 673 A.2d 484 (1996), where the substantive issue to be decided was whether the United States military should be prohibited from using the facilities at the University of Connecticut School of Law because it discriminated against gay men and lesbians. The defendants in Gay & Lesbian Law Students Assn. argued “that, because the plaintiff has not demonstrated that one of its members was denied an interview with the military, there can be no aggrievement . . . .” Id., 469. Our answer was simply that “[t]he relevant question is not whether one of the plaintiffs members wants *200to join the military; rather, the relevant question is whether the members are receiving the same placement opportunities as heterosexual students.” Id., 469-70.

The majority’s conclusion also overlooks the fact that the plaintiffs have alleged that contractors who are members of the association are also being denied the opportunity to bid because of the project labor agreement. See Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998) (on appellate review of motion to dismiss, facts alleged are taken as true and construed in light most favorable to pleader). According to the complaint in the present case, contractor members would have submitted bids if not for the project labor agreement. The United States Court of Appeals for the Ninth Circuit, in Associated General Contractors v. Metropolitan Water District, 159 F.3d 1178, 1181 (9th Cir. 1998), similarly concluded that a trade association with subcontractor members and contractor members who would have bid on projects if not for the project labor agreement, met the first prong of this same test. In doing so, the court noted that the association’s members “have been and will be directly affected by [project labor agreements]” because they are being deterred from bidding on projects based on project labor agreements. Id.

The association also meets the second prong of the test because removing the project labor agreement would allow members to bid on projects while adhering to their philosophy of using nonunion labor. In applying the second prong of the test, the court in Associated General Contractors concluded: “There can be no doubt that [the plaintiff] meets the second [prong] .... Certainly its desire to remove restrictions which, as it sees it, will interfere with favorable bidding conditions sought by its members is germane, even central, to its purposes.” Id. Once again, the same reasoning applies to the present case.

*201Finally, it is undisputed that the third prong for representational standing has been met. No included member of the association is a necessary party in order for the court to decide the issue. See id. (summarily concluding that association of subcontractors and contractors met third criterion of federal test for representational standing and affording association standing to bring claim).

In sum, the public interest requires that we follow the lead of jurisdictions such as Massachusetts and New Jersey, and entertain the plaintiffs’ claim. In Modern Continental Construction Co. v. Lowell, 391 Mass. 829, 835-36, 465 N.E.2d 1173 (1984), the Massachusetts Supreme Judicial Court held: “It is well established that parties challenging compliance with the bidding procedures set forth in [the competitive bidder statutes] need not meet rigid ‘but for’ standing requirements by asserting that if there had been compliance with the statute, they certainly would have been awarded the contract. The challenging party need show only that it possessed the potential to obtain the award. ... If the situation were otherwise, the important role played by individual bidders in securing compliance with the bidding statutes and legislative policy objectives would be diminished.” (Citation omitted.) See John T. Callahan & Sons, Inc. v. Malden, supra, 430 Mass. 129.

By declining to afford the plaintiffs standing, the majority of this court simply ducks the issue of whether project labor agreement requirements for a public construction contract violate state and local competitive bidding statutes. I would reverse the trial court judgment and find that all of the plaintiffs have standing. This matter should be remanded to the trial court for a determination of whether the project labor agreement is prohibited under the state and local statutory competitive bidding requirements for a public project.

Accordingly, I dissent.

The majority argues that the trial court was justified in excluding Hamid’s testimony because Naek was not a member of the association at the time the complaint was filed. The date of the membership is totally irrelevant, because Naek was a member at the time that the motion to dismiss was heard. Furthermore, the majority’s justifications for the exclusion of this evidence relies on cases that are not pertinent. For example, it cites to Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 521, 686 A.2d 481 (1996), which held that it was discretionary for the trial court not to allow an amendment to the pleadings on remand to that court. It likewise points to the authority of the trial court to “supervise and manage the orderly presentation of evidence . . . .” Drabik v. East Lyme, 234 Conn. 390, 400, 662 A.2d 118 (1995). Drabik, however, does not support the refusal to admit relevant evidence; it concerned the trial court’s exercise of discretion in refusing to take judicial notice of the contents of the file of a previous action involving the same parties. Id. And the majority’s reliance on State v. Carter, 228 Conn. 412, 426, 636 A.2d 821 (1994) (discretion of trial court to allow party to open case after it rested) is misplaced. Furthermore, we previously have held that “[w]hen issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. The trial court erred in not holding such a hearing.” (Internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, supra, 220 Conn. 695-96. The exclusion of relevant testimony to establish an essential fact is the equivalent of not having a hearing; the hearing becomes a sham.