COA ruling revives non-union subcontractor’s Antitrust Act claim

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A non-union subcontractor presented evidence establishing a genuine issue of material fact that the company awarded a contract to build a new school violated Indiana’s Antitrust Act by unlawfully restraining open and free competition for the public project, the Court of Appeals held Thursday.

With the support of local unions, the Kankakee Valley School Corporation passed a referendum to fund a new middle school project. The superintendent of Kankakee Valley, Glenn Krueger, specified at the time it advertised bids for the project that he did not want to see non-union contractors on the bid list. Ziolkowski Construction Inc. was the successful bidder on the project, but its bid included Skyline Roofing & Sheet Metal Co. Inc., a non-union subcontractor, to work on the roofing system.

After learning Skyline was non-union, Krueger talked to the school corporation’s construction attorney and also let Ziolkowski know that there were issues that Skyline is non-union and he “was not happy with this situation.” This led to a meeting with Bill Favors, president of Ziolkowski, who later determined that the roof system would need switched out because of construction in the winter months and sought bids from three union companies. A different company was eventually awarded the roof subcontract, leading to the lawsuit filed by Skyline.

In 2011, the trial court dismissed Skyline’s complaint, but the COA reversed and remanded for further proceedings. This is the second time Skyline Roofing & Sheet Metal Company, Inc. v. Ziolkowski Construction, Inc. and United Union Roofers, Waterproofers and Allied Workers Local #26, 71A03-1406-PL-217, has made its way to the appeals court. This time, the trial court found no genuine issues of material fact and entered summary judgment in favor of the defendants.

“Viewing the designated evidence in favor of the nonmoving party, we conclude that the evidence amounts to more than ‘speculation’ and ‘innuendo’ and raises at a minimum a genuine issue of material fact that Ziolkowski colluded to substitute a non-union contractor with a union contractor,” Judge Patricia Riley wrote.
“Serving as a catalyst, Krueger’s disgruntled emails about selecting a non-union roofing contractor and his two cautions of ‘discussing [his] legal actions,’ spurred Ziolkowski into action to save the Project and ensure a ‘smooth construction.’ Ziolkowski turned to Midland, a union roofing contractor, to replace Skyline, despite having publicly submitted Skyline as its roofing subcontractor in its subcontractor list. With financial incentives received from Local #26 and a change order for the roofing specifications, Ziolkowski entered into an agreement with Midland. In this light, we conclude that the trial court erred in granting summary judgment to Ziolkowski. We reverse the trial court’s grant of summary judgment and remand this cause for further proceedings.”


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