This restrictive labor statute permits the accommodation of national labor and trade regulation policies to shift toward an application that facilitates unfettered business competition.
B. Nonstatutory Immunity
A judicially created immunity protects, in limited circumstances, labor organizations and bodies with which the labor units reach agreements. This exemption embodies the congressional policy favoring the collective bargaining process and judicial restraint in labor controversies.
Similar to the statutory exemption, this protection may be invoked only when the labor organization acts in its own self-interest. Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797, 808, 65 S. Ct. 1533, 1539, 89 L. Ed. 1939 (1945); Mann, Powers & Roberts, supra, note 10, at 749. Yet, even if a union engages in conduct in its self-interest, the Sherman Act will not permit unions to aid non-labor groups to create business monopolies and to control the marketing of goods and services. Allen Bradley Co. v. Local 3, IBEW, supra, 325 U.S., at 808, 65 S. Ct. at 1539.
In Allen Bradley, a local union of electrical workers utilized strikes and boycotts to obtain closed-shop agreements with electrical equipment manufacturers and contractors in the metropolitan New York area. The contractors were obligated to purchase equipment solely from local manufacturers having closed-shop agreements with the Local No. 3, while the manufacturers were prohibited from selling to local contractors that did not have closed-shop agreements with the local union. Consequently, the business of New York City manufacturers soared while employment for union members increased and conditions of employment improved. The effectiveness of the agreements was demonstrated by the lower prices sought by the manufacturers for sales outside the New York City area and the determination of the plaintiff to challenge the restriction that had foreclosed it from the metropolitan New York City market.
In 1965 the Supreme Court decided two challenges to assertions of non-statutory immunity. The exemption did not apply in United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), in which the union and large coal producers executed an industry-wide agreement substantially raising wages and rendering continued operation for the small producers difficult. The Court ruled that a union may not conspire with employers who seek to eliminate competitors from an industry even if the union's part in the scheme is limited to seeking industry-wide uniformity in wages, hours and other working conditions. Id., at 665-66, 85 S. Ct. at 1591. In Pennington's companion case, Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 85 S. Ct. 1596, 14 L. Ed. 2d 640 (1965), however, the union-employer agreement on food market operating hours was held exempt although no majority supplied the rationale for the decision.
Connell Construction Co. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418 (1975) represents the most recent authoritative treatment of the non-statutory exemption. In Connell immunity was withheld from a union that obtained an agreement from a general contractor not to deal with subcontractors that had no collective bargaining agreement with the union. The contract precluded non-union subcontractors from competing for available work on grounds independent of economic efficiency. Writing for the Court, Mr. Justice Powell announced that
(t)his kind of direct restraint on the business market has substantial anticompetitive effects, both actual and potential, that would not follow naturally from the elimination of competition over wages and working conditions. It contravenes antitrust policies to a degree not justified by congressional labor policy, and therefore cannot claim a nonstatutory exemption from the antitrust laws.
Id., at 625, 95 S. Ct., at 1836.
C. Viability of the Antitrust Allegations
Before the court must consider whether alleged conduct of the defendants is immune from antitrust attack, viable antitrust violations must be pleaded.
At paragraph 18 of the complaint Altemose claims that the defendants and co-conspirators engaged in unlawful combinations and conspiracies in unreasonable restraint of interstate trade, 15 U.S.C. § 1, and have unlawfully combined, conspired and attempted to monopolize the construction industry in Atlantic County, New Jersey, 15 U.S.C. § 2.
The allegations in the complaint reveal that Altemose's construction work has been impeded by activities engaged in on behalf of the union defendants. Significant impediments include vandalism at the job site in question, violence and threats of violence directed to Altemose employees and those who would provide services to Altemose, and threats to suppliers of Altemose if the suppliers dealt with the plaintiff. In consequence of the alleged unlawful acts, the plaintiff has sustained substantial difficulty and additional cost in obtaining concrete required to complete the racquetball club as well as other damages already discussed. These allegations facially disclose an unreasonable restraint of trade under Section 1 of the Sherman Act.
Altemose's claim that the defendants have conspired and attempted to monopolize the construction industry in the relevant market demands additional scrutiny. No defendant is currently engaged as a general contractor in the construction industry, nor has any evidence been presented to the court demonstrating that the defendants seek to expand their fields of business in a manner that will supplant services performed by Altemose.
Section 2 of the Sherman Act, however, contains no requirement that the objective of those who conspire or attempt to monopolize must be to eliminate a business concern engaged in the same field as the would-be monopolists. Standing to pursue an antitrust action is broadly granted to "(a) any person who (is) injured in his business or property by reason of anything forbidden in the antitrust laws . . . ." 15 U.S.C. § 15.
The plaintiff's allegations are sufficiently well-pleaded to state a cause of action under Section 2 of the Sherman Act. It is, therefore, the obligation of this court to determine whether the acts as alleged are exempt from the reach of the Sherman Act.
Since the authorization of casino gambling in Atlantic City, if not earlier, the southern New Jersey construction market has drawn upon resources from throughout the entire nation. As the growth of the casino industry continues, the demand for non-localized sources of construction expertise will grow. Plaintiff claims that the acts of the defendant unions are deliberately aimed at preventing Altemose from engaging in the southern New Jersey construction market and, therefore, unreasonably restrain interstate commerce.
The Clayton and Norris-LaGuardia Acts provide no immunity for the acts alleged in this action. Section 4 of the Clayton Act merely states that labor organizations may lawfully carry out their legitimate objects. Section 20 of the Clayton Act exempts peaceful labor activity including communication aimed at persuading individuals to cease working for or patronizing particular employers. Plaintiff's allegations are replete with acts and threats of violence that were made to prevent Altemose from completing construction of the racquetball facility and to prevent Altemose from obtaining necessary supplies for the construction. Although it was in the interest of the union defendants to seek to remove the nonunion contractor from the job, or to ensure that the terms under which its employees worked met area standards of union members, the objective was not pursued by use of peaceful authorized methods.
The defendants cannot find refuge behind the Norris-LaGuardia Act with respect to the plaintiff's damage claims since this law merely limits the availability of injunctive relief. Los Angeles Meat & Provision Drivers Union, Local 626 v. United States, 371 U.S. 94, 99-100, 83 S. Ct. 162, 165, 9 L. Ed. 2d 150 (1962); Robertson v. National Basketball Association, 389 F. Supp. 867, 880 (S.D.N.Y.1975). Altemose has, however, demanded injunctive relief in its complaint, 15 U.S.C. § 26,
although no application for a preliminary injunction has been filed. Pursuant to the Supreme Court mandates requiring that the labor and antitrust statutes be applied harmoniously and in consideration of the plaintiff's allegations, this court would not issue an injunction in contravention of the Norris-LaGuardia Act. The relevant provisions of the Norris-LaGuardia Act, as noted above, prevent the issuance of injunctions forcing individuals to continue an employment relation or preventing publicizing a labor dispute. In contrast, the acts complained of, in essence, were violent, coercive and intended to restrain trade in the construction industry. Any injunction that might subsequently issue from this court would prohibit only those trade restraints that are not otherwise immunized.
The moving defendants have also sought to invoke the nonstatutory immunity. As noted, this judicially created immunity protects labor and business organizations from antitrust liability arising from agreements they reach as part of the collective bargaining process. Plaintiff's allegations charge that an agreement was reached between the labor defendants and concrete suppliers outside the context of any collective bargaining agreement. The alleged agreements operated to impose a trade restraint on the plaintiff, a non-labor entity. The facts as pleaded do not permit the invocation of non-statutory immunity as a basis to dismiss the complaint under Rule 12(b)(6).
At this juncture, the court is concerned solely with the allegations of the complaint, not with the facts as they may ultimately be proved. Those allegations, however, have averred facts sufficient to overcome the assertion that the moving defendants, on the face of the complaint, are immune from the present action.
III. Presentation of Claim for Relief under Section 303 of the Labor-Management Relations Act
Section 303 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 187, declares illegal the unfair labor practices defined at 29 U.S.C. § 158(b)(4) and confers jurisdiction on federal district courts to award damages to the parties injured by unfair labor practices. One category of unfair labor practice so proscribed is committed when a labor organization or its agents
threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where . . . an object thereof is
(A) forcing or requiring any employer or self-employed person . . . to enter into any agreement which is prohibited by subsection (e) of this section.
29 U.S.C. § 158(b)(4)(ii). The above-referenced subsection (e) prohibits certain boycott activities. Specifically this subsection declares that an unfair labor practice is committed when "any labor organization and any employer . . . enter into any contract or agreement, express or implied, whereby such employer . . . agrees to . . . cease doing business with any other person . . . ." 29 U.S.C. § 158(e).
The moving defendants suggest that Altemose's allegations charge that the union defendants may have pressured or requested neutral third parties to avoid dealing with the plaintiff, but that such conduct is not unlawful. Certainly the unions may request neutral employers to cease dealing with Altemose and may publicize their grievances with the plaintiff, but the charges in the complaint clearly claim that the bounds of lawful union activity allegedly have been transgressed.
At paragraphs 33 and 47 of the complaint, Altemose has alleged that the defendants committed unfair labor practices as defined in 29 U.S.C. § 158, subsections (b)(4)(ii) and (e). Paragraph 33 claims that the union defendants threatened or coerced defendants Silvi and Eastern to cease doing business with Altemose while paragraph 47 avers that defendant Lentine entered into an agreement to cease dealing with Altemose as a result of threats and coercion by the union defendants. Accordingly, the defense motion to dismiss for failure to state a claim for relief under § 303 of the Labor-Management Relations Act is denied. Fed.R.Civ.P. 12(b)(6).