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ALLSTATE INDUS. v. UNITED UNION OF ROOFERS

June 8, 1983

ALLSTATE INDUSTRIES, GENERAL ROOFING CO., RALPH J. MEYER COMPANY, MILLER THOMAS GYEKIS, INC., STRINGERT & BOWERS, WARREN EHRET LINCK COMPANY and LINGENFELTER ROOFING COMPANY, Plaintiffs
v.
UNITED UNION OF ROOFERS, WATERPROOFERS AND ALLIED WORKERS' ASSOCIATION, LOCAL NO. 37, AFL-CIO, MAK-LYN, INC., Defendants



The opinion of the court was delivered by: MENCER

 Defendant United Union of Roofers, Waterproofers and Allied Workers' Association, Local No. 37, AFL-CIO (hereinafter Local 37) is a labor organization that counts among its members roofers employed by both the seven plaintiff employers and defendant Mak-Lyn, Inc. Mak-Lyn, Inc. (hereinafter Mak-Lyn) is also a corporation engaged in roofing work in Western Pennsylvania.

 The plaintiffs allege in Count One that the defendants here "conspired, agreed and combined, . . . to grant certain economic advantages to defendant employers" and to intentionally withhold the same from plaintiffs. The gravamen of Count One is that although defendant Mak-Lyn and the seven plaintiffs have both signed collective bargaining agreements with Local 37, the Union has consistently enforced the provisions of the collective bargaining agreement vis a vis the plaintiffs, but has intentionally not enforced certain provisions with respect to Mak-Lyn.

 This practice, it is alleged, is the result of concerted activity on behalf of Local 37 and Mak-Lyn, and constitutes a restraint of trade in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Count One also alleges a violation of Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, in the sense that it is claimed that the "agreements, conspiracies and combinations" were entered into with the purpose and intent of monopolizing the market of roofers in Western Pennsylvania.

 Count Two is a claim for tortious interference with plaintiffs' business, jurisdiction of that claim is asserted under the doctrine of pendent jurisdiction.

 Local 37's answer denies that it failed to enforce any provision of the collective bargaining agreement with respect to Mak-Lyn. Alternatively, Local 37 asserts that if it is found that they did not enforce a particular provision, such conduct was caused not by any agreement or conspiracy, but simply as a unilateral decision based upon its own interest. Thus, Local 37 denies any Sherman Antitrust violation. Local 37 also raises the defense of statutory exemption from antitrust liability for labor unions contained in Section 6 of the Clayton Act, 15 U.S.C. § 17, and § 20 of the Clayton Act, 29 U.S.C. § 52 and the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. (See Answer of Local 37, p. 12.)

 Local 37 also asserts that if an agreement between itself and Mak-Lyn is found, it is still exempt from antitrust liability as a result of labor's non-statutory exemption as stated by the Supreme Court in Connell Construction Co., Inc. v. Local Union No. 100, 421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418 (1975).

 Defendant Mak-Lyn denies liability in much the same manner as Local 37, but also counterclaims against the seven plaintiffs claiming that by being members of the Roofing Contractors Association of Western Pennsylvania, Inc., the seven have engaged in conduct that violates Section 1 of the Sherman Act.

 Excluding Local 37, therefore, we have seven corporations engaged in the business of roofing construction on one side and on the opposite side one corporation engaged in the same business, each side alleging antitrust violations against the other.

 The case is presently before the Court to decide cross-motions for summary judgments.

 Both defendants are moving for summary judgment of the entire complaint. Plaintiffs have moved for summary judgment on the liability issue of Count One only, and, for summary judgment with respect to Mak-Lyn's counterclaim. All sides have briefed the respective issues.

 The facts, insofar as need be discussed, are as follows:

 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 ...


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