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Altemose Construction Co. v. Building & Construction Trades Council of Philadelphia and Vicinity

decided: January 8, 1985.

ALTEMOSE CONSTRUCTION COMPANY, ASSOCIATED BUILDERS AND CONTRACTORS, INC., THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA
v.
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, ET AL. ALTEMOSE CONSTRUCTION COMPANY APPELLANT IN NO. 83-1581 THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA APPELLANT IN NO. 83-1582



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Gibbons and Garth, Circuit Judges, and Teitelbaum, District Judge.*fn*

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge:

Altemose Construction Company (Altemose), a general contractor, Associated Builders and Construction Contractors, Inc. (ABC), an association of open shop contractors, and the Chamber of Commerce of the United States of America, an association whose members purchase construction and are construction users, brought this action for declaratory relief pursuant to 28 U.S.C. § 2201-02 (1982), treble damages pursuant to 15 U.S.C. § 15 (1982), and injunctive relief pursuant to 15 U.S.C. § 26 (1982). Altemose and The Chamber of Commerce appeal from a summary judgment in favor of defendants. The defendants are the Building and Construction Trades Council of Philadelphia (the Council), an association of local building trade unions in the Philadelphia area, and fifty-six local unions who are members of the Council. The complaint charges that the defendants conspired among themselves and with other named co-conspirators to eliminate competition in the commercial construction industry in the Philadelphia area by excluding open shop contractors from that industry and by forcing all contractors to employ only union subcontractors, in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1982). The district court held that there were no material issues of disputed fact and that the defendants were entitled to a judgement in their favor as a matter of law.*fn1 We reverse and remand for further proceedings.

I.

Count I

The complaint pleads two counts. Count I alleges that the local union defendants and the Council conspired with non-labor entities to exclude non-union general and subcontractors from the Philadelphia area construction market. The trial court dismissed Count I because the plaintiffs failed to present any evidence of a combination or conspiracy with non-union entities in opposition to defendants' motion for summary judgment. Our review of this ruling is plenary.

A.

The Count I Defendants and Alleged Co-Conspirators

The Council is an association of building trades local unions in the Philadelphia area which are in good standing with international unions affiliated with the Building and Construction Trades Department, AFL-CIO. Among other tasks, the Council resolves jurisdictional disputes among these local unions. Local unions which are members of the Council may not inaugurate strikes or place pickets against a general contractor "fair to union labor" without the Council's consent. A general contractor "fair to union labor" is defined in the Council's by-laws as one that employs union labor and subcontracts work only to subcontractors employing union labor. The by-laws also provide that "any contractor who works on a struck job or employs non-union men to work on a struck job, shall be declared unfair and all Union men shall be called off from his work or shop," and that "no local . . . shall enter into any agreement with a Contractors' or Employers' Association to work with non-union men." The by-laws provide further:

To the extent it is legally permitted and in conformity with both the law and existing contract obligations, any trade affiliated with the Building Trades may picket any job that has a non-union condition, if the General Contractor has a Building Trades Agreement or is a member of G.B.C.A. and maintain the picket line with full support and sanction of the Building Trades until the situation is corrected.

The reference in the quoted by-law provision to G.B.C.A. is to the General Building Contractors Association, an association of general contractor and subcontractor members who engage in collective bargaining with building trades unions through that organization. The reference to a Building Trades Agreement is to standard agreements which the Council has obtained from over 400 contractors and subcontractors in the Philadelphia area. The Council publishes a Union Directory of Fair Contractors and Subcontractors. The fair contractors and subcontractors all have collective bargaining agreements with local unions which are members of the Council. The collective bargaining agreements give union members the right not to work with non-union laborers and oblige the contractors and subcontractors to hire only union employees and to refrain from subcontracting with subcontractors who are not on the Council's fair contractor list. Since 1966, over 90% of the construction work in the Philadelphia area has been performed by firms listed in the Council's Union Directory of Fair Contractors and Subcontractors.

It is undisputed that the Council is a labor organization, and that in obtaining Building Trades Agreements it is, at least in part, pursuing the labor objective of maintaining area standards for wages and working conditions. The plaintiffs' theory in Count I of the complaint, however, is that the Council and its members have acted in concert with contractors and subcontractors on its fair contractor list to exclude from the construction market in the Philadelphia area all firms which are not on that list.

B.

Standards for Proof of Conspiracy

This court recently outlined the legal standard governing sufficiency of evidence of conspiracy. We noted that the court must examine all admissible evidence, direct and circumstantial, in order to determine whether a trier of fact could reasonably infer concert of action. In re Japanese Electronic Products, 723 F.2d 238, 303-05 (3d Cir. 1983). For purposes of this appeal that standard will be applied in determining whether or not summary judgment was proper on Count I. Section 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106, does not require the application of any different standard. That section requires "clear proof" that an actor is an agent of a union, but the clear proof requirement is inapplicable to proof of conspiracy or other wrongful acts in antitrust actions against labor unions. Ramsey v. United Mine Workers, 401 U.S. 302, 28 L. Ed. 2d 64, 91 S. Ct. 658 (1971). Moreover, even with respect to proof of agency, the "clear proof" standard should be applied by the factfinder in drawing inferences and making findings. On a Rule 56 motion we may not draw inferences or make findings. Thus even on issues of union authorization, participation in, or ratification of acts complained of, our role is to determine only whether such inferences are, under the evidence, logically permissible. Our plenary review of ...


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