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PREMIER ELEC. CONST. v. INT'L. BROTH.

November 1, 1985

PREMIER ELECTRICAL CONSTRUCTION CO., PLAINTIFF,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ann C. Williams, District Judge.

MEMORANDUM OPINION AND ORDER

This private antitrust action for damages and declaratory and injunctive relief is brought under Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Presently before the court are various motions by plaintiff and defendants. An understanding of the contentions of the parties requires a review of the factual background of the case.

FACTUAL BACKGROUND

Plaintiff, Premier Electrical Construction Co. ("Premier"), performs electrical construction work and otherwise transacts business in the electrical construction industry. Premier employs electrical construction workers who are members of, and represented by, defendant International Brotherhood of Electrical Workers ("IBEW") and its affiliated local unions.

Defendant IBEW is an unincorporated labor organization whose local unions represent electrical workers throughout the United States. Defendant Charles H. Dillard was International President of IBEW at all times relevant to Premier's complaint.

Defendant National Electrical Contractors Association, Incorporated ("NECA") is a national employers' trade association whose members perform electrical construction work. NECA has numerous affiliated local chapters that have been assigned specific territories throughout the United States. NECA and its local chapters provide various services to its member employers and represent them in collective bargaining with IBEW and its local unions. Premier is not a member of NECA. Defendant Robert L. Higgins was, at all relevant times, Executive Vice President of NECA.

Defendants Local Union # 461 ("Local 461"), Local Union # 176 ("Local 176"), and Local Union # 701 ("Local 701") are all local unions, subordinate to IBEW, with their principal places of business in Illinois. The remaining defendants are the trustees of the National Electrical Industry Fund ("NEIF"), which is more fully described below.

Plaintiff's complaint is directed at Article Six of the 1976 National Agreement between NECA and IBEW. Article Six established the National Electrical Industry Fund, or NEIF, which is at the heart of Premier's antitrust allegations. The NEIF is an industry fund created primarily to cover NECA's cost of administering labor agreements with IBEW and its costs of rendering other services to the electrical contracting industry. Article Six requires that all construction agreements between IBEW unions and electrical contractors contain a clause by which the employer agrees to contribute 1% of the employer's gross payroll to the NEIF. This clause must be included in each agreement with an electrical contractor employer, even if the employer is not a member of NECA. Premier alleges that, in order to pay for NECA's services, prior to October 1976 NECA members paid dues to the association. Since these dues increased NECA members' cost of doing business, non-NECA members could offer lower bids on construction contracts. Premier claims that NECA sought to eliminate this competitive advantage, enjoyed by non-NECA employers, by creating the NEIF. Premier further contends that, by requiring a uniform 1% contribution to a fund to support NECA services, defendants entered into a combination and conspiracy in unreasonable restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.

On September 8, 1980, Judge Murray awarded summary judgment to the plaintiffs in the Maryland litigation. In his ruling, Judge Murray declared that Article Six was a price-fixing agreement that constituted a per se violation of Section 1 of the Sherman Act. He also certified a plaintiff class and enjoined the defendants from enforcing the NEIF provision of Article Six. The Fourth Circuit Court of Appeals upheld the district court's ruling. National Electrical Contractors Association v. National Contractors Association, 678 F.2d 492 (4th Cir. 1982). Petitions for certiorari were filed with the Supreme Court in early 1983, but were later withdrawn subsequent to a settlement agreement among the parties. The settlement agreement was approved by Judge Murray on July 25, 1983, after notice to class members and a hearing.

On September 16, 1980, eight days after the entry of summary judgment in the Maryland litigation, Premier filed the present action in this court. Its complaint is virtually identical to that in the Maryland litigation, with the only substantive difference being that the local union defendants are not the same as in the Maryland case.

On October 2, 1980, Premier appeared, through counsel, in the Maryland litigation to announce its intention to consolidate its action with the Maryland action. However, no further steps toward consolidation were taken by Premier until February 3, 1982, when Judge Getzendanner of this court ordered the parties to show cause why the case should not be transferred to Maryland pursuant to 28 U.S.C. § 1407. Premier then petitioned the Panel on Multidistrict Litigation for pretrial consolidation of its case with the Maryland litigation, but transfer was denied.

Premier did not further participate in the Maryland litigation until March 31, 1983. At that time, Premier asked Judge Murray to suspend notification of the settlement to class members. Premier wanted the suspension so that a subclass could be carved out. This subclass would consist of electrical contractors who had been sued, threatened with suit, or subject to any other collection efforts by the defendants, and who thereby had incurred costs and expenses in connection with those collection efforts. Judge Murray, however, denied Premier's motion. Sometime after this, Premier opted out of the Maryland class and continued its individual litigation in this court.

PREMIER'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Premier now seeks an order awarding it summary judgment on the issue of whether the Maryland defendants violated Section 1 of the Sherman Act.*fn1 Premier contends that the Maryland defendants should be collaterally estopped from relitigating the legal conclusions reached in the Maryland case.

The parties here do not quarrel over the last three considerations, but vigorously debate the first. Since this is so, and the last three considerations do appear to weigh in favor of estoppel, the court will address only the question ...


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