United States District Court, D. Connecticut
MEMORANDUM OF DECISION AND ORDER
STEFAN R. UNDERHILL, District Judge.
This case arises out of the negotiation and enforcement of a subcontracting clause in the New England Regional Council of Carpenters (the "Carpenters") collective bargaining agreements ("CBAs") with non-party construction companies and construction managers. Plaintiffs allege that the Carpenters have used the subcontracting clause of their CBAs to expand the scope of work assigned to Carpenters to include work traditionally assigned to plaintiff organizations. Plaintiffs contend that this conduct constitutes anticompetitive behavior, in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 (Count I), and unfair labor practices, in violation of 29 U.S.C. § 187 (Count II).
The Carpenters move for summary judgment on both counts. With respect to Count I, the Carpenters argue that the non-statutory labor exemption and the "construction industry proviso" provided in Section 8(e) of the National Labor Relations Board Act ("NLRA"), 29 U.S.C. § 158(e), shield their actions from antitrust scrutiny. The Carpenters also contend that they are not liable under Count II because, if shielded by the construction industry proviso, their conduct does not violate the NLRA.
I agree. The Carpenters have demonstrated that the construction industry proviso and non-statutory labor exemption apply to shield their conduct arising out of lawful collective bargaining relationships. Plaintiffs fail to adduce evidence sufficient to raise a material dispute with respect to whether such agreements in fact arose as part of lawful collective bargaining relationships. Accordingly, the Carpenters' summary judgment motion (doc. # 85) is granted.
I. STANDARD OF REVIEW
Summary judgment is appropriate when the record demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment). A district court applies the same standard "whether summary judgment is granted on the merits or on an affirmative defense such as the statute of limitations." Giordano v. Mkt. Am., Inc., 599 F.3d 87, 93 (2d Cir. 2009) (citing Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995)).
When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d Cir.), cert. denied, 506 U.S. 965 (1992) (court is required to "resolve all ambiguities and draw all inferences in favor of the nonmoving party"). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of his pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
"Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is "merely colorable, " or is not "significantly probative, " summary judgment may be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.
Id. at 247-48. To present a "genuine" issue of material fact, there must be contradictory evidence "such that a reasonable jury could return a verdict for the non-moving party." Id. at 248.
If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such a situation, "there can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party's claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323.
A more detailed recitation of the facts is set forth in my ruling on the Carpenters' motion to dismiss (doc. # 17). See Connecticut Ironworkers Employers Assoc. v. New England Reg'l Council of Carpenters, No. 3:10-cv-165 (SRU), 2012 WL 951793, at *2-6 (D. Conn. Mar. 20, 2012). Plaintiffs ("Ironworkers") are a district council, seven locals affiliated with construction trade unions, four construction contractors, and two trade organizations. Defendant (the "Carpenters") is a labor organization that operates throughout New England. Ironworkers allege that the Carpenters have used their subcontracting agreements in order to expand the scope of work that is assigned to them by construction managers who are signatories to their CBAs. Ironworkers contend that such a practice violates section 1 and 2 of the Sherman Act and section 8(b)(4) of the NLRA.
A. Relevant Work and Market Area
The "relevant work" at issue in the case includes: exterior building enclosure systems such as exterior metal panels, composite wall panels, foam panels, and insulated panel systems; exterior panelized window systems, punched windows, curtain wall, store fronts; and metal roofing systems and related components. The relevant work has been the subject of a series of jurisdictional disputes between the parties. Def.'s Local Rule ("D.L.R.") 56(a)(1) Stmt. ¶ 68.
The "relevant market area" for Ironworkers' purposes is Connecticut, Rhode Island and Western Massachusetts. There were 8, 030 construction projects built in that area between 2009 and 2014.
B. The Claims
Ironworkers' claims concern the enforcement of subcontracting provisions in the Carpenters' CBAs. The subcontracting clause in certain CBAs bars signatories from subcontracting work to any firm that is not also a signatory to the Carpenters' CBAs. D.L.R. ¶¶ 29, 31, 33. The Carpenters argue that those provisions are commonplace in the construction industry, and point to similar provisions in CBAs to which Ironworkers are signatories. See D.L.R. ¶¶ 51, 55, 56. Ironworkers argue that the Carpenters used the subcontracting clause of the CBAs to act in concert with various non-party general contractors and construction managers to prevent plaintiff labor organizations from performing, bidding on, or benefitting from the performance of relevant work. Ironworkers contend that enforcement of these subcontracting clauses conflicts with the traditional industry practice and permits them to obtain work traditionally performed by Iron Workers, Sheet Metal Workers, and Glaziers. Prior to 2009, the Carpenters had never sought to bid on or perform the relevant work. Since 2008, however, the Carpenters have worked to ensure that bids for relevant work are submitted only by employers, contractors and subcontractors who are signatory to the Carpenters' agreement. Ironworkers allege that the above-described conduct is aimed at forcing plaintiff employers and signatories of plaintiff labor organizations to enter into CBAs with Carpenters, which would extend the representative base of Carpenters and freeze plaintiff labor organizations and their members off job sites.
Ironworkers' allegations included seven examples of projects for which the Carpenters entered into an agreement with a construction manager allegedly in violation of the antitrust or labor laws. The non-party construction companies and their associated projects are as follows: (1) Suffolk Construction Company ("Suffolk"), 360 State Street Project, New Haven, Connecticut; (2) Dimeo Construction ("Dimeo"), New Rowe Residences, New Haven, Connecticut; (3) Turner Construction ("Turner"), St. Francis Hospital, Hartford, Connecticut; (4) Bond Brothers ("Bond"), Bryant University Project, Smithfield, Rhode Island; (5) E. Turgeon ("Turgeon"), Immaculate Conception Catholic Regional School, Cranston, Rhode Island; (6) Berry & Sons ("Berry"), Bay State Medical Center Hospital Project, Springfield, Massachusetts; and (7) Fusco, Inc. ("Fusco"), Schools Project, New London, Connecticut.
A fuller statement of the agreements associated with the above projects is laid out in my ruling on the motion to dismiss (doc. # 17). See Connecticut Ironworkers, 2012 WL 951793, at *4-6. Each project involved an agreement between the construction manager and the Carpenters to assign relevant work to Carpenters' signatories in accordance with the CBA. Ironworkers claim that such agreements violate sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 (Count I).
In Count II, plaintiff M.R.S. Enterprises ("MRS") alleges that Carpenters violated 29 U.S.C. § 187 by forcing Turgeon to cancel MRS's contract. Turgeon cancelled MRS's contract because MRS intended to hire plaintiff union members and not Carpenters' signatories. MRS alleges that Turgeon's actions were caused by Carpenters' threat to enforce their subcontracting agreement with Turgeon, which required the relevant work to be performed by Carpenters' union members.
As a general rule, agreements to refrain from dealing with others, such as the union signatory subcontracting clause at issue here, are "vulnerable to challenge under federal antitrust laws unless they are protected by both the construction industry proviso and by an exemption from antitrust scrutiny." Local 210, Laborer's Intern. Union of North America v. Labor Relations Division Assoc. General Contractors of America, N.Y.S. Chapter, Inc., 844 F.2d 69, 73 (2d Cir. 1988). The Carpenters contend that the "construction industry proviso" of section 8(e) of the NLRA and the non-statutory labor exemption to the antitrust laws permit them to enter into the challenged union signatory subcontracting clause. Pls.' Opp'n to Def.'s Mot. Summ. J. at 12, 22. The Carpenters further claim that, if their conduct falls within the above exceptions to antitrust and labor laws, they are also exempt from liability for any alleged violations of 29 U.S.C. § 187.
If a defendant can introduce evidence sufficient to establish an affirmative defense, a plaintiff may only avoid summary judgment by introducing evidence to counter that assertion. Eagleston v. Guido, 41 F.3d 865, 873 (2d Cir. 1994) (affirming grant of summary judgment on qualified immunity defense because undisputed evidence showed that officer's conduct was objectively reasonable); see also Angevine v. State Farm Fire & Cas. Co., 189 F.3d 460 (2d Cir. 1999) (unreported) (affirming grant of summary judgment in favor of defendant when plaintiff failed to introduce evidence tending to show that insurance company's affirmative defense did not apply). In order to defeat a motion for summary judgment based on a well-supported affirmative defense, a plaintiff must "adduce evidence... sufficient to create a genuine issue of material fact" with respect to whether the affirmative defense applies. La Barbera v. R. Rio Trucking, No. 03CV1508 (SLT) (AKT), 2007 WL 2177063, at *4 (E.D.N.Y. July 27, 2007); In re Cardtronics ATM Fee Notice Litig., 874 F.Supp.2d 916, 923 (S.D. Cal. 2012), aff'd, 559 F.Appx. 633 (9th Cir. 2014) (summary judgment in favor of defendant proper when plaintiffs failed to offer evidence to rebut defendant's establishment of affirmative defense).
Because I conclude that the construction industry proviso and non-statutory labor exemption to the antitrust laws apply to shield the Carpenters' conduct, I do not reach the substance of Ironworkers' antitrust allegations. Furthermore, because the construction industry proviso countenances Carpenters' conduct that is the subject of MRS' unfair labor practices claim, I hold that MRS will be unable to establish a section 187 violation. Ironworkers have failed to raise a material dispute of fact with respect to those issues. Accordingly, the proviso and ...