Each of the seven plaintiffs are members of the Roofing Contractors Association of Western Pennsylvania, Inc. (hereinafter Roofing Contractors Association). They each have taken part in multi-employer bargaining with Local 37. The plaintiffs are, through the Association, currently parties to a collective bargaining agreement between the Association and Local 37.
As stated in Article I of the collective bargaining agreement (hereinafter Agreement), its purpose is to define wages and working conditions, prescribe means for the prevention of strikes, lockouts, or other stoppages of work, and otherwise stabilize operations in the composition roofing, damp and waterproofing industries in Western Pennsylvania. (Agreement Art. I.)
The Roofing Construction Association and Local 37 signed the collective bargaining agreements with three-year terms ending May 31, 1979, May 31, 1982 and May 31, 1985.
Defendant Mak-Lyn incorporated in May of 1977. Mr. Kusenko is president and sole shareholder of Mak-Lyn. Mr. Kusenko, as president of Mak-Lyn, testified that he signed a collective bargaining agreement with Local 37 in May of 1977. This was the same agreement then in effect between the Roofing Contractors Association and Local 37.
When that agreement terminated, both the Roofing Contractors Association and Mak-Lyn executed identical agreements with Local 37 running until May 31, 1982.
The essence of the plaintiffs' complaint is based upon a two-fold argument. First, Mak-Lyn did not comply with various provisions of its collective bargaining agreement with Local 37. Second, Local 37 did not enforce these alleged violations. This state of affairs, it is claimed, could not have occurred in the absence of concerted action, conspiracy, or some secret side agreement between the defendants, any of which is a violation of the Sherman Antitrust Act.
Our discussion of the applicable law begins with the standards for summary judgment motions. It is beyond dispute that a federal court will grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this standard, a court must view all evidence and inferences in a posture most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1975); Goclowski v. Penn Central Transportation Company, 571 F.2d 747 (3rd Cir. 1977). Where cross-motions for summary judgment are submitted, as here, the Court is not to assume that there are no issues of material fact, but must make an independent determination based upon the proof submitted by the parties. 10 Wright and Miller, Federal Practice and Procedure § 2720 (1973). See McDougall v. Donovan, 552 F. Supp. 1206 (N.D.Ill. 1982).
In addition to these time-honored requirements, antitrust litigation usually requires special considerations. The Supreme Court has stated that summary judgment "should be used sparingly in complex antitrust litigation where motive and intent play leading roles." Poller v. Columbia Broadcasting System, 368 U.S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962). However, this is not to state that a court shall not enter a summary judgment order, where appropriate.
Section 1 of the Sherman Act provides, in pertinent part: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."
Section 2 of the Sherman Act provides, in pertinent part: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor . . ."
In order to prove a violation of Section 1 of the Sherman Act, the plaintiffs must establish the existence of concerted action between two or more parties in restraint of trade or commerce. Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105 (3rd Cir. 1980). See also Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3rd Cir. 1975), cert. denied, 434 U.S. 1086, 55 L. Ed. 2d 791, 98 S. Ct. 1280 (1978), and the discussion contained therein at 445-46.
The Third Circuit has clearly stated that to meet this burden, plaintiff must submit evidence from which a jury could infer that defendants had a conscious commitment to a common scheme designed to achieve an unlawful purpose. Klein v. American Luggage Works, Inc., 323 F.2d 787 (3rd Cir. 1963).
However, direct proof of an express agreement is not necessary to fulfill this burden. Indeed common experience evinces the understanding that this is hardly, if ever, the case. The oft quoted words have much relevance in the present context. "The picture of a conspiracy as a meeting by twilight of a trio of sinister persons with pointed hats close together belongs to a darker age." William Goldman Theatres v. Loew's Inc., 150 F.2d 738 (3rd Cir. 1945).
Nevertheless, plaintiffs do have the burden of producing enough evidence from which the factfinder (here the jury) can find illegal concerted action from making reasonable inferences and not simply speculation. See Venzie Corp. v. United States Mineral Prod. Co. Inc., 521 F.2d 1309 (3rd Cir. 1975).
With all of the above principles in mind, together with the appropriate standard for summary judgment, we consider the present case.
The evidence in this case clearly indicates that plaintiffs will have to rely on circumstantial evidence and reasonable inferences drawn therefrom to establish, if they are able, a violation of Section 1. Michael Kusenko, president of Mak-Lyn, stated in his deposition that the only agreements his company has reached with Local 37 were the two collective bargaining agreements identical to the ones plaintiffs executed with the Union. Nicholas Jackson, the business representative of Local 37, also testified similarly, expressly denying the existence of any other agreement between Mak-Lyn and Local 37.
Robert Stringert, an active member of the Roofing Contractors Association of Western Pennsylvania, and the individual who started one of the plaintiff corporations herein, and Stringert & Bowers also testified that they were not aware of any written document containing an agreement of this kind between Mak-Lyn and Local 37. None of the other parties, either through deposition testimony or any other discovery device produced direct evidence of an express agreement between Mak-Lyn and Local 37.
Mr. Stringert capsulized the theory behind the plaintiffs' lawsuit at one point in his testimony:
"Q. How is it then that you see from that a conspiracy, agreement or combination with the Union and Mak-Lyn?