United States District Court, D. Arizona
Arizona State Building and Construction Trades Council, Plaintiff,
Mark Brnovich, in his official capacity as Attorney General of Arizona, Defendant.
Honorable Roslyn O. Silver Senior United States District
Arizona State Building and Construction Trades Council
believes a statutory provision Arizona enacted in 2011 as
well as a statutory provision enacted in 2015 are preempted
by federal law. In their current form, the statutory
provisions prohibit political subdivisions of the state from
requiring bidders for public contracts to enter into certain
labor agreements or participate in apprenticeship programs.
Plaintiff believes these provisions are preempted by, among
other federal laws, the National Labor Relations Act.
Plaintiff also alleges the way the provisions were passed
violated other state laws. Defendant Mark Brnovich, sued in
his capacity as the Attorney General of Arizona, seeks
dismissal of the complaint, arguing Plaintiff lacks standing,
the claims are not ripe, and the claims are barred by
sovereign immunity. The motion to dismiss will be granted and
the Court will provide Plaintiff with limited leave to amend.
describes itself as “an association of Arizona
construction trade unions . . . with a mission to provide and
continue to grow an exceptional labor force.” (Doc. 16
at 2). While not explicitly alleged or explained, Plaintiff
apparently lobbies public entities regarding the type of
labor agreements those entities should use in completing
publicly funded projects such as public transportation
facilities. As part of its lobbying efforts, Plaintiff
believes public entities should enter into “project
labor agreements.” A “project labor
agreement” or “PLA” “is a type of
collective bargaining relationship involving multiple
employers and unions that agree to abide by a uniform labor
agreement in their bids on public works projects.”
Interpipe Contracting, Inc. v. Becerra, 898 F.3d
879, 885 (9th Cir. 2018). In other words, a PLA
“systemize[s] labor relations at a construction
site” by ensuring the “wages, hours, and other
terms of employment [are] coordinated or standardized . . .
across the many different unions and companies working on the
project.” Bldg. & Const. Trades Dep't,
AFL-CIO v. Allbaugh, 295 F.3d 28, 30 (D.C. Cir. 2002).
connection with its lobbying efforts, “[i]n late 2010
and early 2011, ” Plaintiff lobbied the Arizona
Corporation Commission to “encourage” the use of
PLAs. (Doc. 16 at 4). The Corporation Commission was close to
imposing PLA-type requirements for certain work when, in
direct response to Plaintiff's efforts, Arizona added a
provision to A.R.S. § 34-321. The new provision
precluded state agencies or political subdivisions from
requiring PLAs in connection with contracts for public works.
The new statutory provision stated, in relevant part,
Agencies and political subdivisions of this state shall not
require in any public works contracts that a contractor,
subcontractor, material supplier, or carrier engaged in the
construction, maintenance, repair or improvement of public
works, negotiate, execute or otherwise become a party to any
project labor agreement or other agreement with employees,
employees' representatives or any labor organization as a
condition of or a factor in bidding, negotiating, being
awarded or performing work on a public works contract.
EMPLOYEES AND PUBLIC WORKS, 2011 Ariz. Legis. Serv. Ch. 23
Arizona had not enacted this “anti-PLA provision,
” Plaintiff's “efforts to have political
subdivisions use PLAs would have remained active and
ongoing.” (Doc. 16 at 5). Passage of the provision,
however, allegedly prevents Plaintiff from continuing its
efforts. Plaintiff alleges it wishes to “advocate for,
propose, testify, and enter into negotiations with political
subdivisions to adopt PLAs” but it cannot do so at
present because of the existing statute. (Doc. 16 at 5).
the change in Arizona law regarding PLAs, Plaintiff
“began working with municipalities to encourage the use
of highly skilled labor on publicly funded construction
projects.” (Doc. 16 at 6). As part of those efforts,
Plaintiff recommended “Arizona charter cities,
including Phoenix, Tempe and Tucson, adopt a Responsible
Contractor Ordinance that would require any contractors
performing work that is funded with the city's tax
dollars participate in a Department of Labor approved
apprenticeship program.” (Doc. 16 at 6). In response to
Plaintiff's actions, the state legislature passed another
statute aimed at frustrating Plaintiff's work. That
statute restructured A.R.S. § 34-321 and added a new
prohibition on state agencies or political subdivisions from
requiring bidders for public works contracts
“[p]articipate or contribute to an apprenticeship
program that is registered with the United States department
of labor.” PUBLIC WORKS-EMPLOYEES, 2015 Ariz. Legis.
Serv. Ch. 144 (S.B. 1090).
this 2015 statute went into effect, Plaintiff stopped its
lobbying efforts regarding apprenticeship programs. Plaintiff
alleges it is not presently engaged in efforts to
“advocate for, propose, testify, and enter into
negotiations with political subdivisions” regarding
apprenticeship programs but Plaintiff would like to do so.
(Doc. 16 at 7).
failure to engage in lobbying efforts regarding PLAs and
apprenticeship programs is allegedly because of a statute
Arizona enacted in 2016. That statute allows for any member
of the legislature to direct the Attorney General to
investigate an “ordinance, regulation, order or other
official action adopted or taken by the governing body of a
county, city or town that the member alleges violates state
law or the Constitution of Arizona.” A.R.S. §
41-194.01. If the Attorney General determines the
“county, city or town” has taken action contrary
to state law, the Attorney General must notify the State
Treasurer and the State Treasurer must then withhold state
funds the county, city, or town otherwise would receive. If
there is some question whether the local action violates
state law, the Attorney General is required to file a special
action in the Supreme Court of Arizona to resolve the issue.
The Attorney General has filed at least one special action
against a local entity after concluding there was a
substantial question about the legality of a local ordinance.
See State ex rel. Brnovich v. City of Tucson, 399
P.3d 663, 672 (Ariz. 2017) (addressing City of Tucson's
ordinance regarding disposition of firearms). According to
Plaintiffs, this statute is so draconian that no county,
city, or town is willing to “pass an ordinance to
challenge the unconstitutional state law, including for the
purpose of bringing a lawsuit.” (Doc. 16 at 7).
November 30, 2017, Plaintiff filed the present suit. The
original complaint, brought solely against the State of
Arizona, alleged the provisions of A.R.S. § 34-321
regarding PLAs and apprenticeship programs were preempted by
federal law. The original complaint asserted two claims based
on federal preemption theories. The original complaint also
asserted two claims under Arizona law. Those claims alleged
the relevant provisions of § 34-321 were enacted
contrary to the requirements of other state laws. The State
of Arizona moved to dismiss, arguing sovereign immunity
barred all of Plaintiff's claims.
of responding to the first motion to dismiss, Plaintiff
amended its complaint to name the Attorney General as the
sole defendant. (Doc. 16). The Amended Complaint contains the
same four claims. That is, two federal claims and two
state-law claims. Plaintiff seeks only injunctive and
declaratory relief in the form of an order finding federal
law preempts the relevant portions of § 34-321. The
Attorney General now seeks dismissal of ...