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ALTEMOSE CONSTR. CO. v. ATLANTIC

June 19, 1980

ALTEMOSE CONSTRUCTION COMPANY, Plaintiff,
v.
ATLANTIC, CAPE MAY AND PARTS OF BURLINGTON, OCEAN AND CUMBERLAND COUNTIES BUILDING TRADES COUNCIL, et al., Defendants.



The opinion of the court was delivered by: BROTMAN

This is an action by a nonunion general contractor seeking compensatory and punitive damages against a labor association, four local unions and three concrete suppliers for antitrust violations, and against the labor organization defendants for violations of the federal labor laws. Jurisdiction is asserted under 15 U.S.C. §§ 1, 2 (Sherman Act), 4 and 16 (Clayton Act), 29 U.S.C. § 187 (Labor-Management Relations Act) and 28 U.S.C. § 1337 (Judicial Code). The case is presently before the court upon motion by the labor organization defendants for dismissal of the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

When a motion is made under rule 12(b)(6) it will be denied unless there are clearly no set of facts that can be proved which might entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). All facts pleaded by the plaintiff must be taken as true and all reasonable inferences must be drawn in favor of the plaintiff. McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1235-36 (3rd Cir. 1978). The complaint will not be dismissed unless some insuperable bar to relief is apparent on the face of the complaint, Battle v. Liberty National Life Insurance Company, 493 F.2d 39, 44 (5th Cir. 1974), and this rule applies with no less force to a Sherman Act claim. McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 245, 100 S. Ct. 502, 511, 62 L. Ed. 2d 441 (1980).

 I. Plaintiff's Allegations

 (The following narrative is derived solely from the complaint.)

 Plaintiff Altemose Construction Company is a general construction contractor engaged in interstate commerce with its principal place of business located in Center Square, Pennsylvania. In June of 1979 Altemose entered into a contract with Tilton Racquetball Associates (Tilton), to build for it a racquetball facility in Pleasantville, New Jersey. The base price of the contract was $ 700,000. The contract also provided that time was of the essence and that Altemose could be subject to late penalties, termination and damages if undue delay occurred.

 On July 28, 1979 several agents of the defendants went to the home of Tilton's construction consultant for the project in the belief that he was the principal. The consultant, Samuel Young, informed those individuals that he was not the principal, to which they replied that they wished to meet with the owner to discuss removal of Altemose, a nonunion contractor, from the project. They threatened that they would take all possible action to ensure that the project would not be completed unless Altemose were removed.

 As a result of that meeting, a second meeting was held on July 30, 1979 in Atlantic City. In attendance were the general partners of Tilton, the president of defendant building trades council *fn1" (Trades Council), the business manager of the Glaziers local union, a business representative of the Roofers local union, a member of the Roofers local and the attorney for all of the labor organization defendants. The agents of the labor union defendants threatened to picket and delay or prevent construction of the racquetball facility unless Altemose were removed as general contractor. The stated reasons for the threats were their beliefs that Altemose was testing whether it could build "nonunion" in Atlantic County, New Jersey and their desire to prevent Altemose from acquiring lucrative contracts to build hotels and casinos in Atlantic City, New Jersey. At least one of the labor people claimed that he could negotiate a replacement union contractor who would work for the same amount as the Altemose contract. Complaint, at P 24.

 In late July or early August 1979 Altemose contracted with defendant Silvi Concrete Products, Inc. (Silvi) for the purchase and delivery of "ready mix" concrete to the construction site. Ready mix concrete is essential to the construction of most buildings. *fn2" In southern New Jersey, concrete including that sold by defendants Silvi, Eastern Transit Mix, Inc. (Eastern) and Lentine Sand and Gravel Company (Lentine) is sold per "yard" and the price includes batching and delivery, even if the contractor does not use the delivery services of the supplier. Complaint, at P 16.

 On August 8, 1979 defendant Silvi recognized defendant Teamsters as exclusive bargaining representative for some of its employees and subsequently informed Altemose that it would not continue to perform its obligations under the contract with Altemose. The plaintiff then entered into a similar arrangement with defendant Lentine under which Lentine would batch, sell and deliver concrete to the project site.

 Fifteen to eighteen pickets went to the job site on August 9, 1979 on behalf of the labor union defendants and carried signs claiming that Altemose provided substandard wages and working conditions. Law enforcement officers were present, but when two Altemose employees attempted to enter the work area, the pickets insulted them and Altemose and spat on their automobile.

 Between August 10, 1979 and August 13, telephone lines to the construction site were cut in a manner precluding easy repair. On August 13, 1979 telephone company repair crews refused to fix the cable because of the presence of approximately eight pickets, and at least one subcontractor, out of fear for damage to his equipment by the pickets, refused to perform services. The pickets also slashed tires on the automobiles of Altemose employees.

 On August 14, 1979 eight union pickets obstructed the entrance of Altemose's project superintendent and later entered the site to communicate threats that the superintendent was "as good as dead." The pickets threatened the driver of a Lentine concrete delivery truck, told the superintendent that there would be no more concrete, and hurled stones at Altemose employees and their vehicles.

 On August 15, 1979 and allegedly as a result of the acts of the pickets on the previous day, Lentine informed plaintiff that it would no longer deliver concrete to the job site, but that it would batch and sell to Altemose at no reduction in price, if Altemose arranged its own delivery. Consequently Altemose sought to arrange the same terms with defendants Silvi and Eastern, both of which were located closer to the project site than defendant Lentine. Silvi and Eastern refused to deal with Altemose

 
as a result of an express or implied agreement between each of them and one or more of the union defendants, or because one or more of the union defendants or persons acting on their behalf threatened or coerced defendants Silvi and Eastern where an object thereof was to force or require Silvi and Eastern to cease and refrain from doing business with Altemose.

 Complaint, at P 33 (emphasis added). By virtue of this refusal to deal, Altemose sustained damages to the extent that it was required to use its own vehicles to transport concrete from the Lentine plant to the construction site.

 On August 21, 1979 one of the union pickets followed an Altemose truck from the job site to the Lentine plant and later in the day a representative of the teamsters contacted Lentine to discuss Altemose and Tilton. Plaintiff alleges that Robert Cericola, an official of the teamsters, told Lentine that if it did not cease dealing with Altemose, another union might refuse to work with concrete supplied by Lentine at an unrelated Ocean City (New Jersey) wastewater treatment plant project. This threat was allegedly repeated on August 23, 1979. Complaint, at P 36.

 Additional vandalism occurred that night in the early hours of August 24. A chain link fence was cut on property adjacent to the work area. An Altemose truck was parked there. A window had been broken and gasoline and an undetonated stick of dynamite were found inside the vehicle. Based on a state court hearing in New Jersey, Superior Court Judge Philip A. Gruccio found the defendant Trades Council was responsible for this damage. Complaint, at P 37.

 Approximately nine labor union pickets who identified themselves as Roofers were dispatched to the job site on August 30. They threatened to assault workmen, explode the construction office (trailer) and burn the construction site. They also scattered nails in the site entrance and threw excrement into the office. Two pickets were arrested for assaulting a potential subcontractor who attempted to enter the work site and for attempting to assault the project foreman.

 During the evening of September 6 or 7, 1979 the office was vandalized extensively. Judge Gruccio found that the Trades Council was also responsible for this action. Complaint, at P 40.

 On September 10, 1979, the labor union defendants dispatched four pickets to the Tilton site. On this occasion they threatened Altemose employees, punctured tires on the job superintendent's car and attempted to assault the job foreman. During that evening the office was again vandalized, phone lines were cut and other equipment was damaged. Also during this period phone service was not restored and electric lines were not installed because the employees of the respective ...


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