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IMPERIAL CONSTR. MGMT. CORP. v. LABORERS INTL. UNI

January 17, 1990

IMPERIAL CONSTRUCTION MANAGEMENT CORPORATION, GUY CLEVELAND, and D.J. ELECTRIC, Plaintiffs,
v.
LABORERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 96; INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 150; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 701; DUPAGE COUNTY BUILDING AND CONSTRUCTION TRADES COUNCIL, Defendants


Rovner United States District Judge.


The opinion of the court was delivered by: ROVNER

bILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This is an antitrust action brought by Imperial Construction Management Corporation ("Imperial"), Imperial's sole owner Guy Cleveland, and D.J. Electric against Laborers International Union of North America, Local 96 ("Laborers Local 96"), International Union of Operating Engineers, Local 150 ("Engineers Local 150"), International Brotherhood of Electrical Workers, AFL-CIO, Local 701 ("IBEW Local 701"), and the DuPage County Building and Construction Trades Council ("Trades Council"). Pending are (1) defendants' motion for dismissal or summary judgment, which raises issues concerning the labor exemptions from the antitrust laws, and (2) defendants' subsequently-filed motion for judgment on the pleadings, which raises issues of res judicata and collateral estoppel. The parties agree that the second motion should be disposed of before the first motion is considered. For the reasons described below, the Court denies both motions.

 II. FACTS *fn1"

 A. Facts Relating to Imperial

 At the times relevant to this action, Imperial was engaged in managing the construction of a Travel Lodge Motel complex pursuant to a contract with the Carol Stream Motel Associates. The construction site was in Carol Stream, in DuPage County, Illinois. Defendants engaged in a series of picketing actions at the site, as follows:

 
(a) From about October 5 through October 12 and October 18 through October 25, 1984, pickets were placed indicating that Laborers Local 96 had a labor dispute with B & A Sewer and Excavating Company ("B & A Sewer"), a non-union subcontractor which was performing work at the site;
 
(b) On November 12, 1984, pickets were placed falsely indicating that Laborers Local 96 was on strike against B & A Sewer;
 
(c) From December 4 through December 6, 1984, pickets were placed falsely indicating that Laborers Local 96 had a dispute with Imperial regarding area wage standards;
 
(d) From about December 10 through December 23, 1984, pickets were placed falsely indicating that Laborers Local 96 had a dispute with General Mechanical Contractors ("General"), a non-union contractor, regarding area wage standards (the Complaint does not specify the role of General at the site);
 
(e) From December 23, 1984, through January 11, 1985, pickets were placed falsely indicating that Laborers Local 96 had an area standards labor dispute with Imperial;
 
(f) From January 14 through March 26, 1985, pickets were placed falsely indicating that IBEW Local 701 was on strike against "the electrical contractor," and, later, against Rob Roy Electrical Company, a non-union contractor.

 In addition to this picketing, defendants allegedly threatened numerous suppliers that their businesses would be damaged if they crossed picket lines at the site. They also told the president of one subcontractor that he must sign a union contract if he wanted to work in DuPage County. They threatened General with economic reprisals because it did not have a contract with Laborers Local 96. (Paragraph 19(b) of the Complaint alleges that it "did have" such a contract; the Court assumes this is a typographical error and that it did not have a contract.) They threatened individual crane operators that they would be denied future work if they crossed picket lines. They threatened Imperial and General that the site would be shut down if they did not sign a union contract and accede to other union demands. (The Complaint does not specify what type of union contract, or what other union demands, were at issue.) They threatened one of the owners of the construction project that the project would be harmed if he did not get rid of non-union contractors, including Imperial.

 On March 25, 1985, as a result of these activities, defendants succeeded in obtaining an agreement signed by Cleveland, on behalf of Imperial, and by Jerry O'Conner, President of the Council. The agreement provides, in its entirety:

 To Whom it May Concern:

 
In return for the removal of all present and future pickers [sic: picketers] from the immediate area of the Stratford Inn, Carol Stream, Illinois, I, Guy Cleveland, agree to use only labor that is covered by a signed agreement with an AFL-CIO affiliated Local Union on all future building projects in DuPage County, Illinois. The buildings now in place, this date, will be completed with any labor Mr. Guy Cleveland, of the Imperial Construction Company desires.

 Upon the signing of this agreement, the picketing ceased.

 B. Facts Relating to D.J. Electric

 At the times relevant to the complaint, D.J. Electric was a non-union subcontractor involved in electrical work at various job sites in DuPage County. One of the projects on which D.J. Electric was working was the Hill Top home construction site, where it worked for the general contractor Callaghan Construction ("Callaghan"). Another general contractor, O'Brien, was involved at the same site but employed only union subcontractors.

 From about May 6, 1985, periodically through February 7, 1986, IBEW Local 701 picketed D.J. Electric at various job sites, falsely claiming that D.J. Electric did not pay area standard wages. On October 6, 1986, IBEW Local 701 began picketing at the Hill Top site, allegedly with the purpose of persuading Callaghan to cease working with non-union subcontractors. Trades people did not cross the picket lines to work on Callaghan homes, but they did work on O'Brien homes. The pickets were resumed on November 3, 1986, claiming that D.J. Electric was a non-union subcontractor. The pickets continued even at times that D.J. Electric was not working on the site. On November 6, 1986, agents of IBEW Local 701 told Callaghan that they would remove the pickets if Callaghan would agree to use only union subcontractors. On November 18, 1986, IBEW Local 701 began distributing handbills falsely claiming that Callaghan homes constructed with D.J. Electric workers were unsafe because the work was performed by untrained people.

 C. Facts Relating to Gasaway

 David A. Gasaway was a non-union contractor. In 1980, Gasaway was doing business as Suburban Sealing Company. On June 13, 1980, agents of Operating Engineers Local 150 and other unions told Gasaway that he could not do business without using union people, and that his job would be shut down unless he cooperated. Agents of the Trades Council picketed banks for which Gasaway was performing work in order to secure agreements to cease doing business with Gasaway. Gasaway had no employees who worked in the jurisdiction of the Operating Engineers, but he was coerced into making payments to Operating Engineers Local 150 and other Trades Council unions for the privilege of operating his own equipment. Trades Council members also attempted to force Gasaway into signing a union pre-hire agreement, which he refused to do. (Plaintiffs include these allegations in their complaint not as an independent basis of relief, but as additional evidence corroborating their allegations relating to Imperial and D.J. Electric.) *fn2"

 D. History of the Litigation

 On March 23, 1985, Imperial brought suit against Laborers Local 96, Engineers Local 150, IBEW Local 701, and (by a later amendment to the Complaint) the Trades Council, alleging claims arising under § 303(a) and (b) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 187, via the secondary boycott provisions of the Act, 29 U.S.C. § 158(b)(4). That case (" Imperial I ") was given the number 85 C 2390, and it was assigned to Judge Hart and later reassigned to Judge Alesia.

 On December 16, 1985, D.J. Electric filed suit against IBEW Local 701 alleging similar secondary boycott claims under § 8(b)(4) and § 303 of the Act. That case (" D.J. Electric ") was given the number 85 C 10421, and it was assigned to Judge Getzendanner and later reassigned to Judge Moran.

 On April 14, 1986, Imperial sought to amend its complaint in Imperial I so as to add antitrust claims. Judge Hart denied Imperial's motion, ruling that Imperial had failed to establish an excuse for its 13-month delay in adding the claim and that allowing the amendment when discovery was about to close in the case would prejudice the defendant. (Mem. Opinion and Order, May 28, 1986.)

 On August 1, 1986, Imperial and its owner, Guy Cleveland, filed the instant action (" Imperial II ") against the Imperial I defendants and several other labor union defendants (later dismissed from the case), asserting antitrust violations. The complaint in Imperial II was amended on December 22, 1986, to add D.J. Electric as a plaintiff.

 On January 14, 1987, the Imperial II plaintiffs requested this Court to consolidate Imperial I and Imperial II for trial, arguing that the cases involved the same parties, the same or similar fact patterns, and common questions of fact and law. The Court denied the motion because Local Rule 2.31(c) provides that such a motion shall be brought before the judge with the lowest numbered case.

 On January 8, 1987, D.J. Electric moved to amend the complaint in D.J. Electric to add antitrust claims. On May 22, 1987, Judge Getzendanner denied the motion, finding no excuse for D.J. Electric's delay in adding the claims and substantial prejudice to the defendant if the amendment were allowed. (Mem. Opinion and Order, May 22, 1987.)

 On April 18, 1988, the defendants in Imperial II moved for dismissal or summary judgment on the ground that plaintiffs failed to state a claim upon which relief could be granted. That motion was fully briefed on August 5, 1988, and was subsequently supplemented by additional filings.

 On October 7, 1988, the Imperial II plaintiffs moved to use the Imperial I discovery materials in connection with Imperial II. Plaintiffs again emphasized that the two lawsuits shared the same core of operative facts. The Court denied this motion, stating that the use in this case of discovery ...


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