The opinion of the court was delivered by: KNOX
This suit was filed by eleven Western Pennsylvania coal haulers
seeking damages on two grounds. First, plaintiffs contend, in Count I of their amended complaint, that defendants engaged in an illegal strike an object of which was to force plaintiffs to sign a collective bargaining agreement containing a hot cargo clause in violation of § 8(e) of the National Labor Relations Act (hereinafter "NLRA"), 29 U.S.C. § 158(e). Second, Counts II and III of plaintiffs' amended complaint allege that defendants conspired to restrain trade and create a coal hauling monopoly in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, by engaging in the strike. On December 4, 1978, plaintiffs filed a motion for summary judgment covering all three counts contained in their amended complaint. On February 5, 1979, defendants filed a motion for summary judgment on Counts II and III. After careful consideration of the issues, the court has determined that both of the motions must be denied.
We begin with the rule that summary judgment can be granted only where there is no issue as to any material fact. Further, all inferences and doubts must be resolved against the moving party. Ely v. Hall's Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978). Summary judgment is rarely appropriate in an antitrust action. See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962); Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573 (3rd Cir. 1979).
On December 6, 1974, following three months of negotiations and a month long strike, the National Bituminous Coal Wage Agreement of 1974 (hereinafter "NBCWA") became effective and UMWA members returned to work. UMWA member truck drivers who hauled coal, however, sought to negotiate a separate collective bargaining agreement which would address their particular problems. Although these coal haulers returned to work after ratification of the NBCWA, their return was contingent upon the continuation of discussions concerning modifications of the Agreement. When this arrangement was disrupted, the UMWA struck those coal hauling employers employing UMWA members who had not signed an agreement. At that time, there were approximately 14 members in the coal haulers association, but a number of those haulers were independent owner-operators who had no UMWA employees. Thus, the number of employers who were struck is small in comparison to the number of plaintiffs in this action. (See Affidavit of Arnold R. Miller). This strike gave rise to the instant action.
Article II: Scope and Coverage.
Section (g) Contracting and Subcontracting.
(1) Transportation of Coal The transportation of coal as defined in paragraph (a) may be contracted out only to a contractor employing members of the UMWA under this Agreement and only where contracting out such work is consistent with the prior practice and custom of the employer.
(2) Repair and Maintenance Work Repair and maintenance work customarily performed by classified employees at the mine or central shop shall not be contracted out except (a) where the work is being performed by a manufacturer or supplier under warranty, or (b) where the employer does not have the available equipment or regular employees with necessary skills available to perform the work at the mine or central shop, provided, however, that the work at the mine or central shop shall be performed by UMWA members to the extent and in the manner permitted by law.
Section 8(e) of the NLRA provides that it is an unfair labor practice
for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer . . . agrees to . . . cease doing business with any other person . . . .
Section 8(b)(4)(B) of the Act provides that it is an unfair labor practice for a labor organization
to engage in . . . a strike . . . where . . . an object thereof is . . . (B) forcing or requiring any person to cease . . . doing ...