The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Wayne and Donna Genser (the "Gensers") are the
owners of an electrical contracting business. They bring this
antitrust action against the defendants International Brotherhood
of Electrical Workers Local # 134 (the "Union"), New United, Inc.
("New United"), the Electrical Contractors Association of the
City of Chicago, Inc., ("ECAC"), and two business agents for the
Union, Bert Van Wetering and Angelo Mazzone.*fn1
This suit was filed in 1977. After two years of extensive
discovery, all defendants filed motions for summary judgment. The
common basis for these motions is that plaintiffs have failed to
allege any facts from which the existence of a conspiracy can be
The existence of a conspiracy in this case is crucial. It is an
essential element of any violation of Section 1 of the Sherman
Act. Plaintiffs have also alleged that defendants violated
Section 2, which does not require a conspiracy, but an analysis
of the circumstances of this case indicates that none of the
defendants, acting alone, could have monopolized or attempted to
monopolize the electrical contracting business.
An essential element of a Section 2 violation is the possession
of "monopoly power" or the "dangerous probability" of monopoly
power. United States v. Grinnel Corp., 384 U.S. 563, 570-71, 86
S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); 1 Von Kalinowski,
Antitrust Laws and Trade Regulation § 802. Plaintiffs have
not alleged any facts from which it could be inferred that New
United or ECAC possessed the requisite monopoly power or the
dangerous possibility of it.
It is logically impossible for the Union, acting alone, to
monopolize or attempt to monopolize the electrical contracting
business. Monopoly power depends on the possession of sufficient
control of the relevant market to constitute a monopoly. Von
Kalinowski, id. The relevant market is that area of goods or
services in which the defendant competes. Id. The Union's
relevant market is labor, not the electrical contracting
business; thus the Union could not unilaterally monopolize or
attempt to monopolize the electrical contracting market.
In summary, as none of the defendants, acting alone, could have
monopolized or attempted to monopolize the electrical contracting
industry, whether summary judgment is appropriate depends on
whether the Gensers have alleged facts from which the existence
of a conspiracy may be inferred. As explained below, the court
concludes that the Gensers have failed to do so, and grants
summary judgment in favor of the defendants.
Standard for Summary Judgment
The Seventh Circuit has explicitly delineated the appropriate
role of summary judgment procedures in antitrust litigation.
Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 553
(7th Cir. 1980). The basic principle is that the court must not
dismiss the complaint unless it is clear that the plaintiff could
prove no set of facts entitling him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80
(1957). Summary procedures must be used "sparingly" in cases
"where motive and intent play leading roles," Poller v. Columbia
Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7
L.Ed.2d 458 (1962), and the pleadings in private treble damage
actions must be afforded liberal construction, Austin v. House
of Vision, Inc., 385 F.2d 171 (7th Cir. 1967). A party moving
for summary judgment must show that there is no genuine issue of
material fact, after all evidence and any inferences drawn from
that evidence are construed in the light most favorable to the
non-moving party. United States v. Diebold, 369 U.S. 654, 655,
82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); F.R.Civ.P. 56.
"[O]nce the moving party has met the burden imposed
by Rule 56 and has demonstrated that the facts on
which the plaintiffs rely are not susceptible of the
interpretation sought to be given them, plaintiffs
must show the existence of significant probative
evidence supporting the inference urged by them or
face summary judgment dismissing the complaint."
Weit v. Continental Illinois National Bank & Trust Co.,
467 F. Supp. 197, 208 (N.D.Ill. 1978), aff'd., 641 F.2d 457 (7th
Cir. 1981) (emphasis added).
In Weit, after eight years of litigation and extensive
discovery, the plaintiffs were relying on circumstantial
evidence — parallel rates and the opportunity to conspire — to
establish the existence of a price-fixing conspiracy. The
defendants produced uncontradicted deposition testimony negating
any conspiracy. The Seventh Circuit held that this shifted the
burden back onto the plaintiffs.
"[W]hen defendants come forward with denials
sufficient to shift the burden under Rule 56(e),
plaintiffs must come forward with some significant
probative evidence which suggests that [the
circumstantial evidence] is the result of an unlawful
agreement. Parallel behavior and the hope that
something further can be developed at trial is not
sufficient to warrant a trial on the merits. . . . If
plaintiffs are to proceed to trial, they must be able
to point to some probative evidence that [the
allegedly unlawful conduct] resulted from unlawful
agreement rather than lawful business reasons."
641 F.2d at 462 (citations omitted).
Although the instant case does not involve a price-fixing
conspiracy, the Seventh Circuit's analysis is equally applicable
here. As in Weit, the litigation here has gone on for some time
and there has been extensive discovery. As did the Weit
plaintiffs, the Gensers rely on circumstantial evidence to
establish the existence of a conspiracy, and the Union, ECAC and
New United deny the existence of any concerted action, as did the
Weit defendants. The burden thus shifts back to plaintiffs to
come forward with "significant probative evidence" showing that
defendants' actions were the result of an unlawful agreement.
This plaintiffs have failed to do.
In their complaint, plaintiffs do not allege any overt acts in
furtherance of the conspiracy, merely alleging the existence of a
conspiracy between defendants and Capitol to restrain trade in
the electrical contracting business. Plaintiffs allege that, by
the terms of this conspiracy, the conspirators agreed to restrict
who could engage in the electrical contracting business in Cook
County, to favor those who gave bribes to the Union and its
agents, and to eliminate those who refused to do so.
From these allegations, it is clear that the heart of
plaintiffs' complaint is that Van Wetering and Mazzone attempted
to extort illegal payments from the Gensers, and that when the
Gensers refused, they were driven out of business. Assuming these
allegations are true, they constitute an antitrust violation only
if an agreement existed between the Union or its agents and other
Plaintiffs' Factual Allegations*fn3
In July, 1975, Genser contracted to perform electrical work at
a real estate office in the Plaza Verde shopping center in
Buffalo Grove, located in Cook County. Genser met with defendant
Burt Van Wetering, who is the Union's business agent in that
area. At this meeting, Genser signed a "B" letter of assent with
defendant IBEW, Local # 134.*fn7
Local # 134 has a collective bargaining agreement with ECAC,
which is a multi-employer association. This collective bargaining
agreement is referred to as the "Principle Agreement" or
"Agreement." Individual contractors who are members of ECAC are
parties to the Agreement by virtue of their membership. An
electrical contractor who does business in Cook County but is not
a member of ECAC could become a party to the Agreement by signing
a letter of assent.
There are two types of these letters, an "A" letter of assent
and a "B" letter. An "A" letter is available to contractors
operating in Cook County on a permanent basis and is valid for an
indefinite period, while a "B" letter is available to contractors
temporarily working in Cook County and is only valid for a
In August, 1975, Genser was awarded contracts on two more jobs
in Cook County, one at a shoe store in the Plaza Verde shopping
center and one for the Casual Corner Store at the North Riverside
Mall.*fn9 His original "B" letter having expired, Genser and his
foreman met with Van Wetering.
What transpired at this second meeting is disputed. Genser
alleges that he informed Van Wetering that he intended to work
permanently in Cook County.*fn10 Genser also alleges that Van
Wetering warned him about competing with ECAC firms or else he
would "never know what hit [him]."*fn11
Genser later bid on, and was awarded the contract for, two
other Capitol jobs at North Riverside Mall, plus another
subcontract with a different general contractor, Tavaglione
Construction Company. In all, then, plaintiffs were working on
four jobs at the Mall.
In late August, 1975, the Gensers began work on the Casual
Corner Store. It is undisputed that the job quickly fell behind
schedule. The parties have each blamed the other for this turn of
events. The Gensers claim that Capitol failed to provide walls
and floors on schedule, to properly coordinate and supervise the
work at the store, or to supply adequate blueprints. Capitol, in
its turn, claims that the Gensers undermanned the job.
Genser alleges that when he first began work at North Riverside
Mall, he contacted Mazzone, who was the Union's business agent
for that area, about hiring union
men. Genser implies that Mazzone asked for a bribe.*fn12 Genser
does admit that whenever he requested additional men,
electricians were referred to him by the Union without
delay.*fn13 However, plaintiffs allege that the work on the
Casual Corner Store was frequently disrupted by problems with the
union men, including absenteeism, insubordination, work
slowdowns, theft, and harassment by Mazzone.
On approximately October 22, 1975, Phil Dillon, Vice-President
of Capitol, decided to replace Genser Electric as electrical
subcontractor on the Casual Corner job. In his deposition, Dillon
testified that after he had decided to replace Genser Electric,
he contacted Mazzone to find out what he should do with regards
to the Union. Dillon asserts this was the first time he ever
spoke with Mazzone.*fn14 Mazzone purportedly told Dillon that it
would be necessary for Capitol to obtain a release from Genser
On October 23 and 24, Dillon asked Genser's supervisors to
obtain permission from the Union to work overtime on the weekend
of October 25-26. Permission was denied.*fn15
On the morning of October 25, 1975, Dillon and Michael Beary of
New United agreed that New United would take over the Casual
Corner job from Genser Electric, provided Genser agreed to
execute a release.*fn16 Genser then arrived and a handwritten
release was executed by Genser and Dillon. Later that day, Dillon
and Beary met with Mazzone. Two things transpired at this
meeting: Mazzone told Dillon the release had to be notarized, and
he denied Dillons' request to work overtime.*fn17
Dillon met again with Genser and executed new documents, which
were notarized. Dillon then made two more phone calls to Mazzone
in an attempt to get overtime permission for Sunday, October 26.
Mazzone again refused to authorize the overtime, but he told
Dillon he would not be at North Riverside Mall on Sunday to stop
it, either.*fn18 Dillon then instructed New United to work on
Sunday, and New United did in fact work that day. On ...