United States District Court, Northern District of Illinois, E.D
September 29, 1981
WAYNE GENSER, ET AL., PLAINTIFFS,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 134, ET AL., DEFENDANTS.
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
In Count I of their Amended Complaint, the Gensers charge that
defendants conspired to restrain competition among electrical
contractors in Cook County, Illinois, in violation of Section 1
of the Sherman Act, 15 U.S.C. § 1 et seq. They further charge
that defendants, individually or in combination, monopolized or
attempted to monopolize the electrical contracting business, in
violation of Section 2 of the Sherman Act. As a result of these
violations, the Gensers allege they lost certain contracts with
Capitol for electrical work at
the North Riverside Mall. In Counts II and III, the Gensers
charge a violation of the Illinois antitrust laws and tortious
interference with contractual relations.
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.
Although this standard is exacting, there are antitrust cases
where summary judgment
is appropriate. Lupia v. Stella D'Oro Biscuit Co.,
586 F.2d 1163, 166-67 (7th Cir. 1978), cert. denied, 440 U.S. 982, 99
S.Ct. 1791, 60 L.Ed.2d 242 (1979).
"[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
Wayne Genser alleges that on October 7, 1974, he "notified IBEW
Local # 134, by letter, that he was becoming an electrical
contractor in their area."*fn4 He then alleges*fn5
that in January, 1975, he was introduced to defendant Angelo
Mazzone by John Litrenta, the electrical inspector for the
Village of Elmwood Park. Mazzone allegedly informed Genser that
it was necessary to pay a bribe in order to obtain Union
cooperation in Cook County, Illinois.*fn6
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 Tuesday,
October 28, Dillon replaced Genser Electric with New United on
the other two projects at North Riverside Mall.
Plaintiffs allege that Capitol never paid in full for the work
done on the North Riverside Mall jobs, or for work done on other
projects plaintiffs performed for Capitol.*fn19 By way of
contrast with the Capitol jobs, the Gensers allege that the
Tavaglione job was finished and paid for without incident.
Genser alleges that he called Robert Brooks, Executive Vice
President and Secretary of ECAC, the week following the execution
of the releases to ask his assistance regarding the events at
North Riverside Mall and to tell him of the attempted shakedown
by the Union business agents.*fn20 Genser claims that Brooks
advised him to contact the DuPage Chapter of the National
Electrical Contractors Association, because
he was not a member of ECAC and was a member of the DuPage
On November 14, 1975, plaintiffs sent a letter to the
Electrical Insurance Trustees stating that they were withholding
the benefit contribution for October, 1975. Withholding of
benefits is a violation of the Principal Agreement. The
Electrical Joint Arbitration Board directed Genser to appear
before the Board to discuss his violation.
Genser did so, and tried to set forth his complaint. He was
told that the Board could only discuss his withholding of
benefits and that if he wanted to bring charges, he would have to
do so pursuant to established grievance procedures.*fn22
On November 26, 1975, Genser sent a letter listing several
charges against Van Wetering and Mazzone to the Union's Executive
Board and to ECAC. In this letter, Genser stated:
"The above charges are not made to specific articles
of the I.B.E.W. agreement. Whether articles of the
agreement cover any or all of these charges could
best be determined by persons more familiar with the
provisions than myself."
On December 4, 1975, John McLaughlin, President of ECAC,
responded to Genser's letter, stating: "Please be advised that we
do not consider the stated charges to be related to the terms and
conditions contained in the collective bargaining agreement. . .
." Robert Wilke, Chairman of the Union's Executive Board, replied
to Genser's letter on December 2, 1975, stating: "In view of the
nature of your letters we believe the matter should be resolved
between you and our Local Union. Therefore, we request that you
advise of a date and time that you can meet with our Executive
Board so that these charges can be resolved."
Genser and Wilke then exchanged several more letters in an
attempt to set up a meeting with Genser and the Executive Board.
Genser was told that the Executive Board met regularly every
Monday from 4:00 until 8:00 p.m. in downtown Chicago. Genser,
however, insisted that the meeting take place in his office in a
suburb of Chicago. Apparently, the meeting never took
The foregoing are the relevant allegations made by plaintiffs
about the occurrences underlying their complaint. Plaintiffs
argue that these allegations are sufficient to raise a question
whether a conspiracy in violation of the antitrust laws existed.
The Principal Agreement
Initially, plaintiffs argue that the mere existence of the
Principal Agreement, the collective bargaining agreement between
the Union and ECAC, with that document's provisions for Letters
of Assent and Joint Committees, is "sufficient . . . evidence to
establish a question of improper and unlawful conduct to go to
the trier of facts."*fn24 The court rejects this argument.
A collective bargaining agreement between a union and an
employer, or even a multi-employer association, is covered by the
non-statutory labor exemption set forth in Local Union No. 189,
Amalgamated Meat Cutters and Butcher Workmen of North America v.
Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640
(1965). The Jewel Tea exemption embraces union — non-labor
agreements relating to wages, hours and working conditions,
arrived at through bona fide, arm's-length bargaining. 381 U.S.
at 689-90, 85 S.Ct. at 1601-02. The
existence of the Principal Agreement, in and of itself, does not
violate the antitrust laws. See, e.g., California Dump Truck
Owners Association, Inc. v. Associated General Contractors of
America, 562 F.2d 607, 611 (9th Cir. 1977). ("An antitrust
action based upon [a collective bargaining agreement] alone does
not state a claim upon which relief can be granted.") Plaintiffs
cannot rely on the fact of the Principal Agreement to establish
the existence of a conspiracy.
Plaintiffs single out several of the provisions of the
Principal Agreement as indicating an unlawful agreement. The
challenged provisions are those pertaining to the Seniority
System, the Joint Arbitration Board, apprentices, and overtime.
All of these provisions relate to wages, hours and working
conditions, all advance legitimate labor objectives, and all are
covered by the Jewel Tea exemption. Again, the mere fact that
the Union agreed with employers regarding these topics does not
indicate the existence of a conspiracy.
The Practice of "Borrowing"
Plaintiffs argue that the manner of carrying out these
provisions and other "conduct extraneous to the Principal
Agreement" suggests the existence of an unlawful
combination.*fn25 As one example, plaintiffs point to the
practice of "borrowing."
The Seniority System is basically a "hiring hall." When an
electrical contractor who is a party to the Principal Agreement
wishes to hire an additional electrician, he applies to the
System and the electrician with the greatest seniority is
referred to him. Such a System fills the legitimate labor
objective of providing job security in a labor market that is
both highly mobile and subject to underemployment.
Plaintiffs contend that when ECAC firms need extra men, they
"borrow" electricians of known ability from other ECAC firms,
rather than chance an "unknown quantity" from the System as
plaintiffs were obliged to do. There is deposition testimony that
the practice of "borrowing" was widespread, but there is also
testimony that this practice violated the Principal Agreement and
was not condoned by the Union.*fn26 The mere existence of such a
practice is insufficient to establish any conspiracy between the
Union and certain contractors.
The Joint Arbitration Board
Plaintiffs argue that the Joint Arbitration Board, which is
made up of members of both the Union and ECAC to hear disputes
relating to the Principal Agreement, indicates that a conspiracy
exists. Plaintiffs contend that the Board runs the Seniority
System and the apprentice program and that this gives the Board
the power to discriminate against "traveling"
contractors*fn27, and that the Board refused to act on
The first allegation, that the Board has the power to
discriminate, absent any allegation of actual discrimination, is
analogous to the "opportunity to conspire" discussed by the
Seventh Circuit in Weit v. Continental Illinois National Bank &
Trust Co., 641 F.2d 457 (7th Cir. 1981). In Weit, the court
stated that the mere opportunity to conspire lacked significant
probative value. Similarly, the mere "power to discriminate,"
absent any showing that the Board in fact discriminated, lacks
significant probative value.
Plaintiffs maintain that the Board did in fact discriminate in
two ways: denying apprentices to "B" letter contractors, and in
refusing to hear plaintiffs' grievances. Neither of these
arguments has merit.
The Principal Agreement delegates responsibility for the
training of apprentices to a joint committee composed of members
of the Union and ECAC. Plaintiffs contend that this committee had
a policy of not permitting apprentices to work for "B" letter
contractors, but the testimony was that
it was the Union's policy not to permit apprentices to work for
"B" letter contractors.*fn28 If it was the Union's policy, then
it was a unilateral decision.
Assuming that it was a joint policy, the decision to limit
apprentices to ECAC firms and "A" letter contractors would be
covered by the Jewel Tea exemption, because training programs
are a mandatory bargaining subject. Flambeau Plastics Corp. v.
NLRB, 401 F.2d 128, 134 (7th Cir. 1968), cert. denied,
393 U.S. 1019, 89 S.Ct. 625, 21 L.Ed.2d 563 (1969). The Union
certainly has an interest in providing continuity during the
apprentice's training period, which extends over a period of
several years, and assigning an apprentice to a "B" letter
contractor, who is only temporarily in the jurisdiction, would
frustrate that interest.
With regard to their grievance, the undisputed facts do not
support plaintiffs' argument that the Board "refused" to hear
their complaint. After Robert Brooks, an officer of ECAC,
referred the Gensers to the DuPage Chapter of the National
Electrical Contractors Association*fn29, plaintiffs informed the
Electrical Insurance Trustees that they were withholding benefit
contributions, which is a violation of the Principal Agreement.
The Joint Arbitration Board is charged with policing violations
of the Agreement. Wayne Genser appeared before the Board and
attempted to present his grievances with the Union but was
informed that the only matter before the Board was his refusal to
After that, Genser sent copies of a letter listing his charges
to the Union's Executive Board and ECAC. Both of these responded,
indicating that the proper forum for plaintiffs to air their
grievances was before the Union's Executive Board. The Gensers,
however, refused to appear before the Union's Executive Board,
allegedly due to fear of reprisals. In light of these uncontested
facts, plaintiffs cannot argue that the Joint Arbitration Board
wrongfully refused to hear their complaint.
Refusal of Overtime Permission
The Principal Agreement provides for a 32-hour work-week. Any
contractor wishing to work his men overtime must obtain prior
permission from the Union. This serves the legitimate Union
objective of providing maximum employment in a labor market
plagued by underemployment. Plaintiffs do not quarrel with the
32-hour week, but they do assert that the Union discriminates
against "B" letter contractors and in favor of ECAC and "A"
letter firms in granting permission for overtime.
To support their discrimination argument, plaintiffs allege
that the Union, through Mazzone, refused to give them permission
to work overtime on the weekend of October 25-26, 1975, while
allowing other firms to do so, and that this resulted in
plaintiffs' loss of the Casual Corner job.*fn30 Taking the facts
in the light most favorable to plaintiffs, on at least two
occasions plaintiffs or their foremen asked for overtime
permission for the weekend on the Casual Corner job and Mazzone
denied these requests, although the Gensers' request to work
overtime on the Tavaglione job for the same weekend was
granted.*fn31 After Capitol's Dillon had replaced the Gensers
with New United, he asked Mazzone for permission to work the
Casual Corner job on overtime. Mazzone refused, but said, in
effect, that he would not enforce the rule. Consequently, New
United men worked overtime on Sunday without Union
Assuming arguendo that Mazzone denied permission to the Gensers
while overlooking New United's lack of permission, this does
not support an inference that Mazzone conspired with Capitol or
New United to force the Gensers out of business. The timing of
the sequence of events negates any inference of a conspiracy.
Dillon of Capitol decided to replace the Gensers prior to his
first meeting with Beary or Mazzone.*fn33 Thus it is evident
that the Gensers had already lost the job before any agreement
between Capitol, New United and the Union was reached.
Concededly, Mazzone's denial of permission to the Gensers for
overtime on the Casual Corner store, while granting it on another
job at the same site, appears arbitrary. But such arbitrariness
does not indicate that a conspiracy existed between the Union and
ECAC and "A" letter firms against "B" letter contractors, as
plaintiffs argue. Mazzone's conduct, again, can only be held to
be a unilateral act by the Union through one of its agents.
Plaintiffs' List of Antitrust Violations
In addition to their charges under the Principal Agreement,
plaintiffs have compiled a list of acts allegedly constituting
antitrust violations.*fn34 These acts are as follows:
— refusal to recognize plaintiffs as Cook County
— restrictions placed on plaintiffs by Union business
— restrictions placed on traveling contractors;
— maintenance of a fair list;
— dual capacity of Hogan;
— inferior workmanship by Union journeymen;
— cooperative efforts between the Union and ECAC;
— replacement of plaintiffs with New United;
— withholding of payments by Capitol; and
— refusal of overtime permission.
None of these allegations support plaintiffs' theory of an
unlawful combination between Capitol, New United, ECAC and the
Refusal to Recognize
The Gensers allege that both the Union and ECAC refused to
recognize them as "Cook County Contractors."*fn35 As to the
Union, plaintiffs base this charge on the issuance of a "B"
letter of assent, rather than an "A" letter.*fn36 The issuance
of a letter of assent is a unilateral act by the Union. ECAC did
not participate in the Union's decision to issue the Gensers a
"B" letter. Assuming arguendo that plaintiffs were entitled to
and wrongfully denied an "A" letter, this does not establish any
agreement between the Union and ECAC.
As to ECAC, it appears that Wayne Genser never made an attempt
to gain membership in that organization.*fn37 As plaintiffs did
not apply for recognition, ECAC did not refuse to recognize them.
Restrictions Placed on Plaintiffs by the Union Agents
By this charge, plaintiffs appear to be complaining of the
limitations resulting from the "B" letter of assent. Plaintiffs
complain that their non-Local # 134 foreman was prohibited from
working with the tools, and later, that he was forbidden to give
orders to the Local # 134 men. Again, assuming arguendo that
these restrictions were improper, this only demonstrates
misconduct by the Union and does not indicate any conspiracy.
Restrictions Placed on Traveling Contractors
Plaintiffs allege that the mere existence of two different
categories of letters of assent is per se discriminatory.
Plaintiffs further allege that the issuance of a "B" letter
discriminates against certain contractors because "B" letter
firms are prevented from having apprentices and from being
included on the Union's contractors list (the so-called "fair
The Union has offered justifications for both these
prohibitions. Because "B" letter firms are only temporarily
operating in Cook County, it is contrary to the Union's interests
to allow them to participate in a training program that lasts for
several years.*fn39 Similarly, the list purports to include all
contractors located in Cook County and is revised at infrequent
intervals.*fn40 To include contractors who only work in the
county for a short period of time would require frequent
Assuming arguendo that "B" letters are discriminatory,
plaintiffs have again failed to allege any facts indicating that
the use of "B" letters is anything other than a unilateral act by
the Union. Conduct by the Union alone does not establish an
Plaintiffs assert the maintenance of a so-called "fair list,"
by which they apparently mean a list of favored employers. The
Union's list of contractors does not include firms with "B"
letters of assent. As with the refusal to issue an "A" letter,
this is chargeable only to the Union. Though the use of a fair
list may be an unfair labor practice, it does not support the
existence of a conspiracy.*fn41
Hogan's Dual Position
Plaintiffs allege a conflict of interest arising from William
Hogan's dual position as President of Local # 134 and Chief
Electrical Inspector for the City of Chicago. As Chief Electrical
Inspector, plaintiffs charge, Hogan is responsible for licensing
"supervising electricians" and thereby controlling the right to
do business in Chicago. Assuming arguendo that this dual position
is somehow improper, this does not establish any conspiracy
between the Union and either ECAC, Capitol or New United.
Moreover, there are no allegations that Hogan has misused his
dual position. Plaintiffs merely argue that he could.
Plaintiffs assert that the work on the Casual Corner store was
frequently disrupted by the men hired from Local # 134. They
offer testimony indicating problems with absenteeism, work
slowdowns and theft. They also allege that defendant Mazzone, the
Union's business agent, came to the site and caused problems on
several occasions. Assuming all these charges are true, they only
show misconduct by the Union, they do not indicate any conspiracy
between the Union and others.
Cooperation between ECAC and the Union
Plaintiffs allege the existence of a so-called "sweetheart
arrangement" between the Union and the ECAC firms and that this
arrangement constitutes an antitrust conspiracy. As an example of
this "sweetheart arrangement," plaintiffs point to the Joint
Arbitration Board, the apprentice program, and the practice of
borrowing. As explained at pp. 1160-1161, supra, these charges
fail to support plaintiffs' conspiracy theory.
In a supplemental brief, plaintiffs for the first time allege
that the obligation of all signatories to the Principal Agreement
to pay a fixed percentage of their gross labor payroll to the
Electrical Industry Study
Fund violates Section 1 of the Sherman Act, relying on National
Contractors Association v. NECA, 498 F. Supp. 510 (D.Md. 1980).
The situation here is not, however, like that in the Maryland
case. There, the district court found a per se violation because
the mandatory contribution at issue financed NECA, which is a
multi-employer association. Consequently, a non-NECA contractor
was forced to support an organization made up solely of his
Here, the purpose of the mandatory contribution is to support
research in the industry and to open up new markets, benefiting
all employers, as well as their employees. Plaintiffs do not
allege that their contribution subsidized ECAC. Thus the
mandatory contribution to the EISF does not violate the antitrust
Replacement By New United
Plaintiffs argue that Capitol's decision to replace the Gensers
with New United indicates that there is a conspiracy. The
sequence of events is as follows.
Plaintiffs admit that on October 21 or 22, 1975, Phil Dillon,
Capitol's Vice-President, contacted several electrical
contractors for the purpose of acquiring bids on the completion
of work in progress by Genser Electrical Contractors.*fn42
Dillon's uncontradicted testimony is that after he decided to
replace the Gensers, he spoke with Mazzone, the Union's business
agent, for the first time.*fn43 On the morning of Saturday,
October 25, Mike Beary of New United agreed to take over the
Casual Corner job, if the Gensers would execute a release, which
they did later that morning.
Plaintiffs have not come forward with any testimony to rebut
Dillon's contention that he contacted the Union agent after he
had decided to replace the Gensers. That decision was an
independent, unilateral act by Phil Dillon and does not indicate
that there was a conspiracy.
Withholding of Payments
Plaintiffs complain that Capitol has withheld payments due them
for work done on the North Riverside jobs, as well as on other
jobs in other counties. Plaintiffs make no allegations that
support any inference that Capitol did so in collusion with the
Union or New United.*fn44
Refusal of Overtime Permission
As discussed at pp. 1161-1162, supra, Mazzone's refusal to
give the Gensers permission for overtime was a unilateral act by
one of the Union's agents.
Plaintiff's Hearsay Allegations
A word must be said about Wayne Genser's allegations regarding
certain threats made by Van Wetering. On a motion for summary
judgment, the court may only consider such evidence as would be
admissible at trial. These hearsay allegations do not appear
admissible and plaintiffs cannot rely on inadmissible evidence to
defeat a motion for summary judgment.
Plaintiffs' allegations, liberally construed, reveal a history
of difficulties with the Union and with their general contractor,
Capitol. But their allegations do not support their theory of a
conspiracy between the Union, ECAC, New United and Capitol.
Absent any such conspiracy, plaintiffs may not seek to redress
their wrongs by means of an antitrust action.
Most of plaintiffs' alleged antitrust violations are unilateral
acts of the Union or its agents: the issuance of the "B" letter,
the fair list, Hogan's dual position, the inferior workmanship,
the refusal of overtime. Other challenged conduct is the
unilateral conduct of Capitol: the decision to replace the
Gensers and the withholding of payments.
Plaintiffs have attempted to establish an industry-wide
conspiracy aimed at all holders of "B" letters of assent, but
after extensive discovery, they have failed to show that any such
conspiracy exists. The distinction between an "A" letter and a
"B" letter is rationally based on the difference between
permanently and temporarily working in Cook County. The three
differences in treatment that result from a "B" letter — no
apprentice, one non-union man, not on the contractors list — all
flow from the fact that "B" letter firms are only temporarily in
the county. Moreover, all the differences in treatment originate,
as does the "B" letter itself, from unilateral decisions by the
Plaintiffs' complaint is actually that they were issued a "B"
letter when they felt they were entitled to an "A" letter. This
is a dispute between plaintiffs and the Union, and does not
indicate any conspiracy. Similarly, they complain of threats and
attempted "shakedowns" by Union officials. These allegations may
constitute unfair labor practices, but they do not support the
existence of a conspiracy.
Because plaintiffs have not alleged or established that any of
the defendants possess the requisite monopoly power or dangerous
probability of monopoly power in the electrical contracting
industry, their monopolization claims must be dismissed.
Defendants' motions for summary judgment on Count I are granted
because plaintiffs have failed to allege facts from which the
existence of a conspiracy could be inferred. The federal claims
in Count I having been dismissed, the pendent state claims in
Counts II and III are also dismissed.