Terrence L. Brookie – November 14, 2011
On October 25, 2011, the Indiana Court of Appeals published its decision in Skyline Roofing & Sheet Metal Co., Inc. v. Ziolkowski Constr., Inc., which addressed, among other issues, the sufficiency of a roofing subcontractor’s antitrust claim against a general contractor and local union.
Ziolkowski Construction, Inc., a general contractor, invited non-union subcontractors, including Skyline Roofing & Sheet Metal Co., Inc., to bid on the roofing package for a new middle school. Skyline was the low bid for the roof portion of the project. Ziolkowski and the school corporation began receiving complaints and threats about the use of Skyline on the project. After entering into a contract with the school corporation, the local union made a post-bid contribution of funds to a union subcontractor to make up the difference between its bid and the lower bid of Skyline. Despite Skyline having provided the lowest bid, the roofing subcontract was awarded to the union subcontractor.
Skyline brought a lawsuit against Ziolkowski and the local union alleging, in part, violation of Indiana’s Antitrust Act. Indiana’s Antitrust Act was created to prevent fraud and collusion in the letting of contracts and to protect trade and commerce against unlawful restraints and monopolies.
The trial court dismissed Skyline’s antitrust claim. On appeal, Skyline argued that the facts as alleged in its complaint show that (1) Skyline’s bid was $585,216 lower than the union subcontractor’s bid; (2) Ziolkowski informed Skyline that Skyline had submitted the lowest bid for the roofing subcontract and that Ziolkowski had used Skyline’s bid to prepare its bid; (3) unions and union contractors threatened both Ziolkowski and the school corporation that they would picket, disrupt, and walk off the project unless a union roofing subcontractor was hired; and (4) Ziolkowski hired the union subcontractor only after the local union made a post-bid contribution of funds to offset the difference between the bids.
Ziolkowski argued that “in response to [the] threats, [it] allegedly hired an equal-priced union subcontractor, instead of non-union Skyline.” The court rejected this argument and concluded that the union subcontractor was not an “equal-priced” subcontractor. It was only after bidding had closed on the project that the union contractor, having received funds from the local union, was able to offer Ziolkowski the same bid price as Skyline. Most notably, the court held that this in itself is a sufficient allegation of a scheme to exclude Skyline and a restraint on free competition. The court reversed the dismissal of Skyline’s antitrust claims.