16‐485‐cv
Conn. Ironworkers Emp’rs Ass’n v. New England Reg’l Council of Carpenters
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2016
No. 16‐485‐cv
CONNECTICUT IRONWORKERS EMPLOYERS ASSOCIATION, INC., MRS
ENTERPRISES, INC., BARRETT, INC., ERNEST PETERSON, INC., BERLIN
STEEL CONSTRUCTION CO., IRON WORKERS LOCAL NO. 15,
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL
& REINFORCING, IRON WORKERS LOCAL 37, INTERNATIONAL
ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL & REINFORCING,
IRON WORKERS LOCAL 424, INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL, ORNAMENTAL & REINFORCING, SHEET METAL WORKERS
LOCAL 38 CRAFT TRAINING FUND, SHEET METAL WORKERS LOCAL NO.
40, INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES DISTRICT
COUNCIL 11, AFLCIO, CLC, INTERNATIONAL UNION OF PAINTERS,
ALLIED TRADES LOCAL UNIONS, GLAZIERS LOCAL UNION NOS. 1333 &
1274, GLAZIERS UNION, NO. 1333, GLAZIERS UNION, LOCAL NO. 1274,
Plaintiffs‐Appellants,
v.
NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS,
Defendant‐Appellee.*
The Clerk of Court is respectfully directed to amend the caption as
*
shown above.
On Appeal from the United States District Court for the District of
Connecticut
ARGUED: DECEMBER 13, 2016
DECIDED: AUGUST 23, 2017
Before: JACOBS, CABRANES, and PARKER, Circuit Judges.
This case concerns a ʺturf battle” between Ironworkers and
Carpenters. The Ironworkers allege that the Carpenters used
restrictive subcontracting clauses in their collective bargaining
agreements (“CBAs”) to secure work in the New England area that
historically belonged to the Ironworkers. The Ironworkers contend
that the Carpenters’ conduct constitutes anticompetitive behavior in
violation of Sections 1 and 2 of the Sherman Antitrust Act and unfair
labor practices in violation of Sections 8(b)(4) and 8(e) of the
National Labor Relations Act (“NLRA”).
The Carpenters counter that their subcontracting practices are
consistent with longstanding industry practices, including with
practices currently used by the Ironworkers. They assert, as an
affirmative defense, that such practices are protected from liability
by the “construction industry proviso” under Section 8(e) of the
National Labors Relations Act (“NLRA”) and the judicially‐created
“non‐statutory exemption.” To defeat the antitrust claim, the
2
Carpenters’ conduct must come within the protection of both the
construction industry proviso and the non‐statutory exemption.
However, to defeat the unfair trade practices claim, it only needs to
satisfy the construction industry proviso.
On January 20, 2016, the United States District Court for the
District of Connecticut (Stefan R. Underhill, Judge) granted summary
judgment to the Carpenters based on the affirmative defenses just
described. It held that the disputed subcontracting practices were
immune from both antitrust and unfair labor practices liability
because they qualified for protection under the construction
industry proviso and the non‐statutory exemption.
We agree that the Carpenters have met the requirements of
the construction industry proviso. But we conclude that, on this
record, there are factual disputes that preclude a decision on
whether the conduct falls within the non‐statutory exemption. To
demonstrate that the disputed subcontracting practices are sheltered
by the non‐statutory exemption (and thus to defeat the Ironworkers’
antitrust claim completely), the Carpenters must show that these
practices furthered legitimate aims of collective bargaining in a way
that is not unduly restrictive of market competition. Absent
additional fact‐finding by the District Court as to whether the
Carpenters’ subcontracting practices further legitimate labor goals, it
cannot undertake the analysis required by our precedents.
Accordingly, we VACATE the judgment of the District Court
as to the Sherman Act claim, AFFIRM the judgment as to the unfair
labor practices claim, and REMAND the cause to the District Court
for further proceedings consistent with this opinion, including for
3
such additional discovery as will permit the District Court to be
informed of the relevant history and permit the parties to move for
summary judgment or, if necessary, to proceed to trial.
PAUL C. HETTERMAN, Hartnett Gladney
Hetterman, LLC, St. Louis, MO (Ronald C.
Gladney, Hartnett Gladney Hetterman,
LLC, St. Louis, MO; Thomas W.
Meiklejohn, Livingston, Adler, Pulda,
Meiklejohn & Kelly, Hartford, CT; on the
brief), for Plaintiffs‐Appellants.
KEITH P. CARROLL, Mintz Levin Cohn Ferris
Glovsky and Popeo, PC, Boston, MA
(Christopher N. Souris, Krakow & Souris
LLC, Boston, MA; Kevin McGinty, Mintz
Levin Cohn Ferris Glovsky and Popeo, PC,
Boston, MA; Bruce D. Sokler, Mintz Levin
Cohn Ferris Glovsky and Popeo, PC,
Washington, DC; on the brief), for
Defendant‐Appellee.
JOSÉ A. CABRANES, Circuit Judge:
Much of the practice of American antitrust law consists of
deciding whether particular conduct is, or is not, “exempt” from the
4
application of the antitrust statutes by virtue of immunities
conferred by later legislation or judicial interpretation. The
celebrated fourteen‐volume treatise of Professor Philip E. Areeda
devotes fully two volumes to these numerous immunities.1 The
history of these immunities is “rich and fascinating . . . com[ing] in
waves. Each particular wave has involved a distinct approach and
rested on its own economic justification.”2
We consider here the latest chapter in the unfolding story of
one of those immunities—those that exempt certain labor union
activities. Professor Ralph K. Winter (as he then was) characterized
this topic as “one of the most disputed legal issues of this century.”3
1 1B PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW: AN
ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION C2‐2, 3 (4th ed.
2013).
2 AM. BAR ASS’N, SECTION OF ANTITRUST LAW, FEDERAL STATUTORY
EXEMPTIONS FROM ANTITRUST LAW 1–4, 31–52 (2007). The most fundamental of
these exemptions is also the most obvious: governmental actions. See Hoover v.
Ronwin, 466 U.S. 558, 568 (1984) (“actions of the State . . . ipso facto are exempt
from the operation of the antitrust laws”). There are dozens of other immunities
to antitrust scrutiny as well. Some are express, such as statutory carve‐outs for
sports broadcasting, 15 U.S.C. § 1291, or the business of insurance, 15 U.S.C. §§
1011–15; others are implied, such as judicially‐devised exemptions intended to
preserve the integrity of a regulatory scheme like the baseball exemption, Federal
Baseball Club, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200,
208–09 (1922), or the filed‐rate doctrine, Keogh v. C. N.W. RY. Co., 260 U.S. 156
(1922).
3 See Ralph K. Winter, Jr. Collective Bargaining and Competition: The
Application of Antitrust Standards to Union Activities, 73 YALE L. J. 14, 14 (1963). At
the time of the publication of this paper, now‐Judge Ralph K. Winter was a junior
member of the Yale Law School faculty, who would later become the William K.
Townsend Professor at Yale Law School.
5
We address only a piece of this storied immunity: the exemption for
certain union activities within the construction industry.
This case arises out of a dispute over subcontracting clauses in
collective bargaining agreements (“CBAs”) between the defendant
New England Regional Council of Carpenters (the “Carpenters
Union” or “Carpenters”) and various construction companies and
construction managers. These clauses effectively bar subcontracting
of construction work with non‐Carpenter affiliates. The plaintiffs,
consisting of several other unions, employers, trade associations,
and union pensions funds (jointly, the “Ironworkers”), allege that
the Carpenters have used these subcontracting clauses to expand the
scope of work assigned to the Carpenters Union to include work
traditionally assigned to the Ironworkers. The Ironworkers bring
two claims against the Carpenters: first, that the Carpenters’ conduct
constitute anticompetitive behavior in violation of Sections 1 and 2
of the Sherman Antitrust Act4 and second, that the Carpenters’
conduct constitutes unfair labor practices in violation of Sections
8(b)(4) and 8(e) of the National Labor Relations Act (“NLRA”).5 The
Carpenters counter that their subcontracting practices are shielded
from both antitrust liability and claims of unfair labor practices.
4 15 U.S.C. §§ 1–2.
5 Pub. L. No. 74‐198, § 8(e), 49 Stat. 449 (1935) (codified as amended at 29
U.S.C. §§ 158(b)(4) and (e)). The unfair labor practices claims are brought under
29 U.S.C. § 187 (“[It is] unlawful . . . in an industry or activity affecting
commerce, for any labor organization to engage in any activity or conduct
defined as an unfair labor practice in [Section 8(b)(4) of the NLRA].”).
6
To determine if the disputed subcontracting practices6 are
protected from antitrust liability, we must assess whether both the
“construction industry proviso” of Section 8(e) of the NLRA7 and the
judicially‐created “non‐statutory exemption”8 to antitrust liability
apply.9 To defeat the unfair labor practices claim, the Carpenters
need only show that their conduct fall within the statutory
construction industry proviso.
In the United States District Court for the District of
Connecticut (Stefan R. Underhill, Judge), the Carpenters moved for
We use the term “subcontracting practices” to refer to both the
6
Carpenters’ restrictive subcontracting clauses in their CBAs as well as the
enforcement of those clauses.
Section 8(e) generally prohibits the adoption of “hot cargo” clauses in
7
CBAs, “by which unions would secure agreements from employers to boycott
the goods and services of other employers that did not comply with union
standards or recognize a union.” 29 U.S.C. § 158(e). However, it also provides an
exemption for employers and employees in the construction industry regarding
the contracting and subcontracting of work—i.e., the construction industry
proviso—allowing them to include restrictive “hot cargo” contracting clauses in
their CBAs. Id.
8 The courts devised the “non‐statutory exemption” to antitrust liability,
which “permits certain union‐employer agreements” despite some potential anti‐
competitive effects, in order to “balance[ ] the conflicting policies embodied in
the labor and antitrust laws, with the policies inherent in labor law serving as the
first point of reference.” Local 210, Laborers’ Int’l Union of N. Am. v. Labor Relations
Div. Associated Gen. Contractors of Am., N.Y.S. Chapter, Inc. (“Local 210”), 844 F.2d
69, 79 (2d Cir. 1988).
Local 210, 844 F.2d at 73 (“[Subcontracting C]lauses . . . are vulnerable to
9
challenge under federal antitrust law unless they are protected both by the
construction industry proviso and by an exemption from antitrust scrutiny.”
7
summary judgment based on the affirmative defenses just described
and the Court granted their motion. Specifically, the District Court
held that the disputed subcontracting practices were immune from
both antitrust and unfair labor practices liability because they
qualified for protection under the construction industry proviso and
the non‐statutory exemption.
We agree that the Carpenters have met the requirements of
the construction industry proviso, but we conclude that, on this
record, there are factual disputes that preclude a decision on
whether the conduct falls within the non‐statutory exemption. To
demonstrate that the disputed subcontracting practices are sheltered
by the non‐statutory exemption (and thus to defeat the Ironworkers’
antitrust claim completely), the Carpenters must show that these
practices furthered legitimate aims of collective bargaining, in a way
that is not unduly restrictive of market competition. Absent
additional fact‐finding by the District Court as to whether the
Carpenters’ subcontracting practices further legitimate labor goals, it
cannot undertake the analysis required by our precedents.10
Establishing that these subcontracting agreements arose from a
lawful CBA is not, in and of itself, sufficient to gain the protection of
the non‐statutory exemption.
Accordingly, we VACATE the judgment of the District Court
as to the Sherman Act claim, AFFIRM the judgment as to the unfair
labor practices claim, and REMAND the cause to the District Court
10 Id.
8
for further proceedings consistent with this opinion, including for
such additional discovery as will permit the District Court to be
informed of the relevant history and permit the parties to move for
summary judgment or, if necessary, to proceed to trial.
BACKGROUND
This case concerns what some might call a “turf battle”
between the Ironworkers and the Carpenters Union. The plaintiff
Ironworkers are a group of construction organizations including: a
district council, seven locals affiliated with construction trade
unions, four construction contractors, and two trade groups.11 The
defendant Carpenters Union is a labor organization that operates
throughout New England.
The Ironworkers challenge the enforcement of restrictive
subcontracting clauses in the Carpenters’ CBAs. These clauses,
colloquially called “hot cargo” clauses, bar signatories from
subcontracting work to any employer that is not also a signatory to a
Carpenters’ CBA.12 The Ironworkers argue that the Carpenters use
11 The plaintiffs include several unincorporated associations and labor
organizations, which fall within the scope of Section 2 of the NLRA, 29 U.S.C.
§ 152(5). Section 2 defines a labor organization as: “any organization of any kind,
or any agency or employee representation committee or plan, in which
employees participate and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.” 29 U.S.C. § 152(5).
12 For example, the Carpenters’ CBAs with Rhode Island and Western
Massachusetts contractors state that the employer “will not subcontract any
work covered by this Agreement . . . except to contractors who are parties to a
collective bargaining agreement with the Union, or to a contractor who is willing
9
these subcontracting clauses to act in concert with various non‐party
general contractors and construction managers to prevent the
Ironworkers from performing the relevant work.13 In other words,
they allege that the Carpenters designed and enforced the disputed
clauses not to further legitimate goals of collective bargaining, such
as protecting wages, but rather, to secure work in the New England
area that allegedly belonged to the Ironworkers. Accordingly, they
claim that these subcontracting practices violate the antitrust laws
and constitute unfair labor practices.
The Carpenters counter that these subcontracting practices are
commonplace in the construction industry, and point to similar
provisions in CBAs to which the Ironworkers are signatories. They
assert, as affirmative defenses, that these practices are immune from
antitrust liability and unfair labor practices claims because they fall
within the construction industry proviso of Section 8(e) of the NLRA
and the judicially‐devised non‐statutory exemption to antitrust
to sign a collective bargaining agreement with the Union. . . .” Supplemental
App’x (“SA”) 465 (Rhode Island); SA 555 (Western Massachusetts). The
Carpenters’ CBA with Connecticut contractors provides that “[a]ny
subcontractor on the site shall be covered by and subject to the terms of this
Agreement . . . .” SA 522.
13 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. The “relevant market area” is
Connecticut, Rhode Island and Western Massachusetts, where there were 8,030
construction projects between 2009 and 2014. [Def. Br. at 46]
10
liability.
The Ironworkers do not dispute that these subcontracting
clauses have long existed, but they argue nonetheless that
enforcement of the subcontracting provisions—namely, acting in
concert with various non‐party general managers—only started
between 2005 and 2006.14 They assert that such enforcement
impinges on work traditionally performed by Ironworkers and
conflicts with historical industry practice. The primary purpose of
these subcontracting practices, they argue, is to force parties to enter
into CBAs with the Carpenters as opposed to other labor
organizations.
Specifically, the Ironworkers identify seven examples of
general contractors or construction managers who executed an
agreement with the Carpenters to assign relevant work to
Carpenters’ signatories, in accordance with the Carpenters’ CBAs:
(1) Suffolk Construction Company, 360 State Street Project, New
Haven, Connecticut; (2) Dimeo Construction, New Rowe
Residences, New Haven, Connecticut; (3) Turner Construction, St.
Francis Hospital, Hartford, Connecticut; (4) Bond Brothers, Bryant
University Project, Smithfield, Rhode Island; (5) E. Turgeon,
Immaculate Conception Catholic Regional School, Cranston, Rhode
Island; (6) Berry & Sons, Bay State Medical Center Hospital Project,
14 Pls.’ Br. at 6.
11
Springfield, Massachusetts; and (7) Fusco, Inc., Schools Project, New
London, Connecticut.15
The Carpenters moved for summary judgment on both of the
plaintiffs’ claims, which the District Court granted on January 20,
2016.16 The Ironworkers filed a timely appeal.
DISCUSSION
We review de novo orders granting summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.17
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”18 The moving party bears
the burden of demonstrating the absence of a material factual
question, and in making this determination, the court must view all
facts in the light most favorable to the non‐moving party.19
We apply the same standard “whether summary judgment is
For a detailed description of each project, see Connecticut Ironworkers
15
Employers Association v. New England Regional Council of Carpenters, No. 10‐cv‐165,
2012 WL 951793, at *4–*5 (D. Conn. March 10, 2012).
16 Conn. Ironworkers Emp’rs Ass’n v. New England Reg’l Council of
Carpenters, 157 F. Supp. 3d 173, 188 (D. Conn. 2016); Special App’x 27 (judgment).
17 See Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).
18 Fed. R. Civ. P. 56(a).
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992);
19
Gemmink v. Jay Peak Inc., 807 F.3d 46, 48 (2d Cir. 2015).
12
granted on the merits or on an affirmative defense. . . .”20
Accordingly, if a movant meets his or her burden by introducing
evidence sufficient to establish an affirmative defense, the
nonmovant must introduce evidence to establish that a genuine
dispute of material fact exists.21
As noted above, this dispute turns on two legal questions. The
first is whether the construction industry proviso applies to the
Carpenters’ subcontracting practices, which requires us to
determine, among other things, whether these practices arose in the
context of a collective bargaining relationship. The second is
whether the judicially‐devised “non‐statutory exemption” applies to
those same practices, which requires us to weigh the impact on the
relevant market and the competing interests of our national labor
and antitrust policies. The Carpenters’ subcontracting practices must
come within the protection of both the construction industry proviso
and the non‐statutory exemption to defeat the antitrust claim, but
need only satisfy the proviso to defeat the unfair labor practices
claim.
I. Historical Context
We first turn to the historical context in which the
construction industry proviso and “non‐statutory exemption” came
into existence. This historical inquiry is not merely an exercise in
Giordano v. Mkt. Am., Inc., 599 F.3d 87, 93 (2d Cir. 2009) (citing Buttry v.
20
Gen. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995)).
21 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
13
curiosity. We are required by the Supreme Court to read the
construction industry proviso in Section 8(e) “in light of the
statutory setting and the circumstances surrounding its
enactment.”22 Similarly, in applying the “non‐statutory exemption,”
we have been instructed to “balance[] the conflicting policies
embodied in the labor and antitrust laws”—policies that can only be
viewed in light of Congress’s intent at the time of their enactment.23
Both tasks thus require us to delve into the historical context.
This “irreconcilable” conflict between our labor and antitrust
policies has not only been the topic of many academic works,24 but
has also been at the center of an emotionally charged national debate
22 Connell Construction Co. v. Plumbers & Steamfitters Local 100, 421 U.S. 616,
628 (1975).
23 Local 210, 844 F.2d at 79.
24 Winter, ante note 3, at 16. To give a brief sketch of this debate, some
experts like the late Clyde Summers argued for broad labor powers and
exemptions from antitrust laws. Summers contended that “[u]nions, in
bargaining, are not private organizations but are governmental agencies garbed
with the cloak of legal authority to represent all employees in the unit and armed
with the legal right to participate in all the decisions affecting terms and
conditions of employment.” Clyde Summers, Union Powers and Workers’ Rights,
49 MICH. L. REV. 805, 811 (1951). Other authorities asserted that the monopolistic
status of unions undermines the freedom of workers’ individual rights to
contract and compete. They argued for narrow labor powers. See, e.g., FRIEDRICH
A. HAYEK, THE CONSTITUTION OF LIBERTY 267 (1960) (“[W]e have now reached a
state where [unions] have become uniquely privileged institutions to which the
general rules of law do not apply.”). For purposes of this opinion, we merely
note that the dispute between our antitrust and labor policies has been fiercely
contested for generations. See generally CLYDE W. SUMMERS & HARRY H.
WELLINGTON, LABOR LAW Chap. 1 (1968).
14
for most of the twentieth century.25 In some sense, this conflict was
inevitable: the central aim of our antitrust laws is to promote
competition, while the central aim of collective bargaining is to
reduce or eliminate competition for labor in order to strengthen the
bargaining power of workers.26 For over a hundred years, the
difficult and delicate task of mediating this conflict has largely fallen
to the federal courts.
With the passage of the Sherman Antitrust Act in 1890,
Congress declared illegal “[e]very contract, combination . . . or
conspiracy, in restraint of trade.”27 The Sherman Act was largely
directed at business monopolies and trade restraints, but it was
25 One observer even suggested that “regulation of union activity under
the Sherman Act [by the federal judiciary] undermined judicial prestige in the
minds of the American public and labeled the Sherman Act as a weapon of class
war that would be an emotional symbol to future generations.” F. Kevin
Loughran, Antitrust Law—Labor Law‐Illegal Hot Cargo Agreement May Be the Basis
of Antitrust Suit Against Union Which Coerces Its Acceptance, 61 CORNELL L. REV.
436, 437 (1976). At the very least, we can say with certainty that this debate
extended well beyond the ivory tower. See, e.g., W.L. White, Should Unions Have
Monopoly Power?, READER’S DIGEST (Aug. 1955).
26 Chief Justice Taft captured this labor ambition in his famous statement:
[Labor unions] were organized out of the necessity of the situation. A
single employee was helpless in dealing with an employer. He was
dependent ordinarily on his daily wage for the maintenance of himself
and family. If the employer refused to pay him the wages that he thought
fair, he was nevertheless unable to leave the employ and to resist
arbitrary and unfair treatment. Union was essential to give laborers an
opportunity to deal in equality with their employer.
Am. Steel Foundries v. Tri‐City Central Trades Council, 257 U.S. 184, 209 (1921).
27 15 U.S.C. § 1 et seq.
15
almost immediately invoked against unions.28 Indeed, in the early
1900s, the federal courts held unions liable for antitrust violations to
nearly the same extent as manufacturers.29
In response, Congress adopted the Clayton Antitrust Act of
191430 aimed, in part, to protect peaceful labor activities from the
reach of antitrust laws and limit the issuance of judicial injunctions
in labor disputes. Section 6 declared that labor was “not a
commodity or article of commerce,” and that the Sherman Act
should not be “construed to forbid the existence and operation of
labor, agricultural, or horticultural organizations, instituted for the
28 See, e.g., Harry Shulman, Labor and the Anti‐Trust Laws, 34 ILL. L. REV.
769, 769 & n.2 (1940) (discussing United States v. Workingmen’s Amalgamated
Council, 54 F. 994 (E.D. La. 1893)); see also United States v. Debs, 64 F. 724, 765 (N.D.
Ill. 1894) (imposing an injunction under the Sherman Act against Eugene V.
Debs, President of the American Railway Union, and other leaders of the
Pullman strike of 1894).
Robert G. Conway, Connell: Broadening Laborʹs Antitrust Liability While
29
Narrowing Its Construction Industry Proviso Protection, 27 CATH. U. L. REV. 305, 306
(1978).
30 The Clayton Act, Pub. L. 63‐212, 38 Stat. 730 (1914) (codified as
amended at 15 U.S.C. §§ 12–26, 29 U.S.C. §§ 52–53). To give a sense of the
Clayton Act’s historical significance, Samuel Gompers—founder of the American
Federation of Labor (“AFL”)—described it as the “industrial magna charta”
aimed to bring a “sledge hammer blow[] to the wrongs and injustices so long
inflicted upon the workers.” FELIX FRANKFURTER & NATHAN GREENE, THE LABOR
INJUNCTION 143 (1930) (quoting Gompers). President Woodrow Wilson boldly
declared that with the passage of the Clayton Act, “[t]he working men of
America have been given a veritable emancipation . . . by exempting labour
organizations from processes of courts which treated their members like
fractional parts of mobs . . . .” Id. at 143 n.36.
16
purposes of mutual help . . . .”31 Section 20, in turn, limited the
power of courts to issue injunctions “in any case between an
employer and employees, or between employers and employees, or
between employees, or between persons employed and persons
seeking employment, involving, or growing out of, a dispute
concerning terms or conditions of employment.”32 Section 20 also
prohibited injunctions against identified types of union activity,
including strikes, boycotting, picketing, persuading others by
peaceful means not to work, and peacefully assembling in a lawful
manner and for lawful purposes.33 The Clayton Act thus created the
first so‐called “labor exemption” to antitrust scrutiny.
The Supreme Court, however, narrowly interpreted the anti‐
injunction provisions in Section 20 of the Clayton Act in 1921, in
Duplex Printing Press Co. v. Deering.34 Specifically, the Court held that
“[i]t would do violence to the guarded language employed”35 to
interpret Section 20 to protect workers other than those “in a
proximate relation” to the dispute.36
31 15 U.S.C. § 17.
32 29 U.S.C. § 52.
33 Id.
34 254 U.S. 443 (1921); see also Bedford Cut Stone Co. v. Journeyman Stone
Cuttersʹ Assʹn, 274 U.S. 37 (1927).
35 Duplex Printing Press Co., 254 U.S. at 472.
36 Id. at 471.
17
Once again, Congress responded with the enactment of new
legislation—the Norris‐LaGuardia Act in 193237, and the NLRA in
1935.38 Together, these statutes greatly strengthened the position of
labor unions and marked the inception of our modern system of
national labor relations. Most relevant here, the Norris‐LaGuardia
Act forbade courts from issuing injunctions in “a case involving or
growing out of a labor dispute.”39 The NLRA codified a broad
framework for the conduct and management of labor relations and
delegated to the newly‐created National Labor Relations Board (the
“Board”) responsibility for enforcing the provisions of the NLRA.40
These laws substantially expanded labor’s statutory exemption from
antitrust scrutiny by closing the judicially‐recognized gaps in the
Clayton Act.
The federal courts once again assumed the task of mediating
the friction between national antitrust and labor policies. In a duo of
famous wartime cases—Apex Hosiery Co. v. Leader (“Apex”)41 and
United States v. Hutcheson42—the Supreme Court substantially
37 Pub. L. No. 72‐65, ch. 90, 47 Stat. 70 (1932), (codified as amended at 15
U.S.C. §§ 101 et seq.–)
38 Pub. L. No. 74‐198, 49 Stat. 449 (1935) (codified as amended at 15 U.S.C.
§§ 151 et seq.).
39 Pub. L. No. 72‐65, ch. 90, § 1, 47 Stat. 70 (codified at 29 U.S.C. § 101).
15 U.S.C. §§ 151 –69; Winter, ante note 3, at 29 (noting that the NLRA “is
40
concerned entirely with regulating what it conceives to be a struggle for power
between unions and employers.”).
41 310 U.S. 469 (1940).
42 312 U.S. 219 (1941).
18
expanded the labor exemption to the antitrust laws. In Apex, the
Supreme Court found that labor unions were still subject to the
Sherman Act “to some extent not defined,”43 but noted that the
Sherman Act “was enacted in the era . . . of capital organized and
directed to control of the market by suppression of competition,”
and that its purpose was to protect consumers from monopoly
prices, not to regulate and police all kinds of interruptions to the
flow of trade.44 In Hutcheson, the Supreme Court declared that the
Sherman, Clayton, and Norris‐LaGuardia Acts must be jointly
considered in arriving at a conclusion that labor union activities run
afoul of antitrust laws, and that the narrow interpretation of the
Clayton Act established in Duplex Printing Press Co. was inconsistent
with congressional policy set out by these three “interlacing
statutes.”45
The Supreme Court, however, specified a qualification to the
labor exemption in Allen Bradley Co. v. Local Union No. 3, International
Brotherhood. of Elec. Workers (“Allen Bradley”).46 In Allen Bradley, the
Court held that the union defendant forfeited its right to the labor
exemption when it acted “in combination with business groups” in a
43 Apex, 310 U.S. at 488.
Id. at 492–93; see also Allen Bradley Co. v. Local Union No. 3, Int’l Bhd. of
44
Elec. Workers, 325 U.S. 797, 806 (1945) (“Allen Bradley”) (describing Apex).
Hutcheson, 312 U.S. at 231–32, 236; see also Allen Bradley, 325 U.S. at 806
45
(describing Hutcheson).
46 Allen Bradley Co., 325 U.S. 797.
19
conspiracy to monopolize a product market.47 The Allen Bradley
Court noted “[i]t would be a surprising thing if Congress, in order to
prevent a misapplication of [antitrust] legislation to labor unions,
had bestowed upon such unions complete and unreviewable
authority to aid business groups to frustrate its primary objective.”48
Against this backdrop, and in the aftermath of World War II,
the pendulum once again swung away from protecting labor
towards promoting market competition. The Taft‐Hartley Act of
1947, among other things, outlawed secondary boycotts and
jurisdictional strikes.49 Twelve years later, the Landrum‐Griffin Act
of 195950 further reined‐in what it perceived as labor misconduct.
The Landrum‐Griffin Act, which amended Section 8 of the NLRA,
outlawed “hot cargo” agreements, which prohibit an employer from
doing business with any firm not affiliated with the contracting
union.51 As noted above, though Congress prohibited “hot cargo”
agreements, it exempted any such agreements made in the
construction industry by means of the construction industry
47 Id. at 809–10.
48 Id.
49 Pub. L. No. 80‐101, 61 Stat. 136 (1947) (codified as amended at 29 U.S.C.
§§ 141 et seq.). “Jurisdictional strikes” are strikes in order to compel the
assignment of particular work to the employees represented by the union.
BLACKʹS LAW DICTIONARY 1463 (8th ed. 2004). A “secondary boycott” is used to
protest the assignment of disputed work to members of another union or to
unorganized workers. Id. at 199.
50 Pub. L. No. 86‐257, 73 Stat. 519 (codified at 29 U.S.C. §§ 401 et seq.).
20
proviso.52
The Supreme Court first interpreted the construction industry
proviso in Connell Construction Co. v. Plumbers & Steamfitters Local
Union No. 100 (“Connell”).53 The Court held that Congress intended
the construction industry proviso to apply only to agreements “in
the context of collective‐bargaining relationships and . . . possibly to
common‐situs relationships on particular jobsites as well.”54 Connell
also required federal courts to read the construction industry
proviso “in light of the statutory setting and the circumstances
surrounding its enactment.”55 In other words, the construction
industry proviso was intended to preserve the balance of power
between construction employees and employers as it stood in 1959—
not to be a means by which labor unions expanded their influence
into other work areas.56
In addition to defining the contours of the new statutory
exemption created by the proviso, the Connell decision expressly
51 See 29 U.S.C. § 158(e).
52 Id.
53 421 U.S. 616 (1975).
54 Id. at 633.
55 Id. at 628.
56 Local 210, 844 F.2d at 75–76 (holding the disputed practice must be
consistent with “Congress’ perceptions regarding the status quo in the
construction industry [in 1959].”); accord Woelke & Romero Framing, Inc. v.
N.L.R.B., 456 U.S. 645, 657 (1982) (“Congress wished to preserve the status quo
regarding agreements between unions and contractors in the construction
industry.” (internal quotation marks omitted)).
21
defined the so‐called non‐statutory exemption to antitrust laws.
While the Clayton Act and the Norris‐LaGuardia Act expressly state
that labor unions themselves and certain union activities are exempt
from antitrust laws, “concerted action or agreements between
unions and nonlabor parties” are not protected by statute from
antitrust scrutiny.57 Accordingly, the Court recognized “that a
proper accommodation between the congressional policy favoring
collective bargaining under the NLRA and the congressional policy
favoring free competition in business markets requires that some
union‐employer agreements be accorded a limited nonstatutory
exemption from antitrust sanctions.”58 In Connell, the Court held that
this limited non‐statutory exemption did not apply to a union’s
agreement with a contractor where that agreement imposed
“substantial anticompetitive effects, both actual and potential, that
would not follow naturally from the elimination of competition over
wages and working conditions.”59
It bears noting that nowhere in the long history of antitrust
exemptions for unions is there mention of jurisdictional disputes
between unions, such as those presented by this appeal. Instead, the
NLRA and its amendments were “concerned entirely with
57 Connell, 421 U.S. at 622.
58 Id. (emphasis added). Two other important Supreme Court cases had
previously expounded on the non‐statutory exemption: United Mine Workers v.
Pennington, 381 U.S. 657 (1965), and Local No. 189, Amalgamated Meat Cutters &
Butcher Workmen v. Jewel Tea Co., 381 U.S. 676 (1965). Jewel Tea Co. is discussed in
greater detail below.
59 Connell, 421 U.S. at 625.
22
regulating what it conceived to be a struggle for power between
unions and employers.”60
With this history in mind, we turn back to the parties’
arguments and undertake to the ongoing task of balancing the
competing interests between antitrust and labor considerations in
the context of the restrictive CBA clauses at issue here.
II. Sherman Act Claim
The Ironworkers allege that the disputed subcontracting
practices constituted unreasonable restraints of trade, in violation of
Section 1 of the Sherman Act, 61 and enforcement of those clauses
was an attempt by the Carpenters to expand work in the relevant
market area in violation of Section 2 of the Sherman Act.62 The
Carpenters, on the other hand, assert that the clauses and their
enforcement are immunized from antitrust scrutiny because, in their
view, they come within the protection of both the construction
industry proviso and the non‐statutory exemption.63
The District Court agreed with the Carpenters, and held that
both apply here. We disagree. While the construction industry
proviso applies to the disputed subcontracting practices, disputes of
material fact prevent us from deciding, at this stage, whether the
60 Winter, ante note 3, at 29.
61 See 15 U.S.C. § 1.
62 See 15 U.S.C. § 2.
63 Local 210, 844 F.2d at 73.
23
non‐statutory exemption applies.
A. The Construction Industry Proviso
To determine whether the Carpenters’ affirmative defense to
the Ironworkers’ Sherman Act claim applies, the first question we
must address is whether the disputed subcontracting practices fall
within the protection of the construction industry proviso . As
mentioned above, Section 8(e) of the NLRA contains a general
prohibition on “hot cargo” agreements, stating
[i]t shall be an unfair labor practice for any labor
organization and any employer to enter into any
contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or
refrain from handling, using, selling, transporting or
otherwise dealing in any of the products of any other
employer, or to cease doing business with any other
person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement
shall be to such extent unenforceable and void . . . .64
Section 8(e), however, also contains the construction industry
proviso, which provides
[t]hat nothing in this subsection shall apply to an
agreement between a labor organization and an
64 29 U.S.C. § 158(e).
24
employer in the construction industry relating to the
contracting or subcontracting of work to be done at the
site of the construction, alteration, painting, or repair of
a building, structure, or other work . . . .65
The construction industry proviso thus plainly applies to
agreements (1) between a labor organization and an employer; (2)
relating to the contracting or subcontracting of work; (3) to be done
at the site of construction.66 In conducting this analysis, we bear in
mind that Congress intended the construction industry proviso to
apply only to agreements “in the context of a collective‐bargaining
relationship and . . . possibly to common‐situs relationships on
particular jobsites as well.”67 In addition, for the proviso to apply,
the challenged practice must be consistent with “Congress’[s]
perceptions regarding the status quo in the construction industry in
1959.”68
The Ironworkers contend that (1) the parties were not
“employers within the construction industry”; (2) the Carpenters’
conduct did not occur within the context of a CBA; and (3) that the
Carpenters’ conduct is inconsistent with Congress’s perception of
practices in the construction industry in 1959. We disagree for
substantially the reasons set forth in the District Court’s opinion,
65 Id. (emphasis added)
66 Id.
67 Connell, 421 U.S. at 633.
68 Local 210, 844 F.2d at 75 (alterations omitted).
25
which we briefly recount here.
1. “Employers Within the Construction Industry”
First, we consider whether the parties with whom the
Carpenters entered into CBAs, as well as the derivative “side
agreements,” were “employers within the construction industry” as
used in Section 8(e). The Ironworkers make a strained argument that
a general contractor who has subcontracted out all of its work did
not qualify as an “employer in the construction industry.”
Specifically, they argue that, in some instances, a construction
manager would award a subcontract to the Carpenters, even though
there were no carpenters employed on the jobsite. This argument
has little relevance for determining whether a party qualifies as an
“employer within the construction industry” under the plain
meaning of the statute. As the District Court properly held: “[a]
plain reading of the statute indicates that the term ‘employer in the
construction industry’ is just that, an employer in the construction
industry—no more and no less.”69
2. Conduct Occurred Within the Context of a CBA
Second, we turn to whether the Carpenters’ conduct occurred
within the context of a CBA. The Ironworkers put forth two
arguments explaining why the Carpenters’ conduct did not. First,
they argue in conclusory fashion that the subcontracting agreements
were “side‐agreements” and thus were not part of a valid CBA. We
69 Conn. Ironworkers Emp’rs Ass’n, 157 F. Supp. 3d at 180.
26
disagree, and conclude that the District Court correctly held that the
undisputed record demonstrates that each of the subcontracting
agreements was part of a valid CBA.
Second, the Ironworkers assert that the CBAs did not apply to
projects governed by project labor agreements (“PLAs”) and thus,
any attempt to enforce the clauses where the PLA governed was an
attempt to enforce an agreement outside the scope of a collective
bargaining relationship. Specifically, the Ironworkers point to PLA
language that purportedly shows a conflict between it and the
Carpenters’ subcontracting agreements. Upon review of the record,
we agree with the Carpenters that there was no actual conflict
between the CBAs and PLAs. While the PLAs gave “full and
exclusive authority for the management of its operations(s) . . .
including the hiring . . . of its employees” to the non‐Carpenter
subcontractor, that provision was subordinate to the CBAs.70 As the
District Court explained, the PLAs were “expressly limited by other
provisions of [the Collective Bargainning] Agreement[s], including a
provision indicating that all Subcontractors recognize the Unions
signator[ies] . . . as the sole and exclusive collective‐bargaining
representative of its craft hourly wage employees employed on the
Project and the Local collective bargaining Agreement(s) will be
adhered to.”71 Accordingly, we are not persuaded by the
Ironworkers’ theory that the PLAs replace rather than incorporate
the CBAs.
70 Conn. Ironworkers Emp’rs Ass’n, 157 F. Supp. 3d at 182.
71 Id. (internal quotation marks and alterations omitted).
27
3. Conduct Consistent with Congress’s Perceptions of the
Construction Industry in 1959
Third, we assess whether the conduct at issue is consistent
with Congress’s perception of practices in the construction industry
in 1959. The Ironworkers attempt to distinguish this appeal from our
precedents upholding the validity of similar subcontracting clauses.
They rest on the fact that the disputed clauses here are being
enforced against contractors whose role in the construction industry
did not exist in 1959. This argument misses the point. Even if the
title “construction manager” did not exist in 1959, the concept of a
construction industry manager engaged in subcontracting certainly
did exist.
In sum, based on the undisputed record, we conclude that the
Carpenters met their burden in showing that the construction
industry proviso applies.
B. The “Non‐Statutory Exemption”
The second question in establishing the Carpenters’
affirmative defense to the Ironworkers’ Sherman Act claim is
whether the non‐statutory exemption applies to the subcontracting
practices at issue in this case.
Our decision in Local 210, Laborers’ International Union of North
America v. Labor Relations Division Associated General Contractors of
America, N.Y.S. Chapter, Inc. (“Local 210”) sets forth the appropriate
standard for determining whether the non‐statutory exemption
28
applies.72 This two‐part standard “[i]n essence . . . balances the
conflicting policies embodied in the labor and antitrust laws, with
the policies inherent in labor law serving as the first point of
reference.”73 Its requirements are as follows:
First, the agreement at issue must further goals that are
protected by national labor law and that are within the
scope of traditionally mandatory subjects of collective
bargaining. Second, the agreement must not impose a
direct restraint on the business market [that] has
substantial anticompetitive effects, both actual and
potential, that would not follow naturally from the
elimination of competition over wages and working
conditions that results from collective bargaining
agreements.74
72 844 F.2d 69. The Ironworks argue for a five‐pronged non‐statutory
exemption test that appears to be formulated from an amalgamation of various
cases, drawing heavily from Mackey v. National Football League, 543 F.2d 606, 614
(8th Cir. 1976). See Pls.’ Br. at 45. We have “never regarded the Eighth Circuit’s
test in Mackey as defining the appropriate limits of the non‐statutory exemption,”
Clarett v. National Football League, 369 F.3d 124, 133 (2d Cir. 2004), and decline to
do so here. We follow the Local 210 precedent established in this Circuit.
73 Id. at 79.
Id. at 79–80 (citations, internal quotation marks, and alterations
74
omitted).
29
Applying the Supreme Court’s “classic formulation” of the non‐
statutory exemption set forth in the 1965 decision in Amalgamated
Meat Cutters & Butcher Workmen v. Jewel Tea Co.,75 we explained that
agreements between a union and an employer are
exempt from antitrust scrutiny if they are ‘so intimately
related to wages, hours and working conditions that the
union’s successful attempt to obtain the provisions
through bona fide, arm’s length bargaining in pursuit of
their own labor union policies, and not at the behest of
or in combination with nonlabor groups, falls within the
protection of the national labor policy and therefore is
exempt from the Sherman Act.’76
First, we consider the first prong of our test in Local 210—
whether “the agreement at issue further[s] goals that are protected
by national labor law and that are within the scope of traditionally
mandatory subjects of collective bargaining.”77 The District Court
relied on Local 210 for the proposition that subcontracting clauses are
within the scope of the mandatory subjects of collective bargaining.
However, this reliance was misplaced.
Our holding in Local 210 was premised on the fact that the
particular subcontracting clauses in that dispute were designed to
75 381 U.S. at 679–80.
76 Local 210, 844 F.2d at 79 (quoting Jewel Tea Co., 381 U.S. at 689–90)
(alterations omitted).
77 Local 210, 844 F.2d at 79.
30
“preserve work traditionally performed by a union for a particular
employer” and protect the “terms and conditions of employment”
for union members.78 In drawing this conclusion, the Local 210 court
relied on Fibreboard Paper Prod. Corp. v. NLRB, which held that “the
‘contracting out’ of the work previously performed by members of an
existing bargaining unit is a subject about which the National Labor
Relations Act requires employers and the representative of their
employees to bargain collectively.”79
Local 210 and Fibreboard thus stand for the proposition that
work preservation—not restrictive subcontracting generally—is a
legitimate labor purpose and a mandatory subject of collective
bargaining.80 Restrictive subcontracting clauses are protected from
78 Id. at 73 (emphasis added).
79 379 U.S. 203, 209 (1964) (emphasis added).
80 Additional cases likewise suggest that work preservation is a
“traditionally mandatory” subject of collective bargaining. See, e.g., Nat’l
Woodwork Mfrs. Ass’n v. N.L.R.B., 386 U.S. 612, 630–31 (1967) (“[T]he boycott in
the present cases was not used as a sword; it was a shield carried solely to
preserve the members’ jobs. We therefore have no occasion today to decide the
question which might arise where the workers carry on a boycott to reach out to
monopolize jobs or acquire new job tasks when their own jobs are not threatened
by the boycotted product . . . [O]ur decision in Fibreboard Paper Prods. Corp. . . .
implicitly recognizes the legitimacy of work preservation clauses. . . .”); Soule
Flass & Glazing Co. v. N.L.R.B., 652 F.2d 1055, 1088 (1st Cir. 1981) (“It is clear that
‘(t)he preservation or diversion of unit work’ constitutes a ‘term (or) condition of
employment’ subject to mandatory bargaining under § 8(d) of the Act.”); Consol.
Exp., Inc. v. N.Y. Shipping Ass’n, Inc., 602 F.2d 494, 512 (3d Cir. 1979) (“[W]ork
preservation is a mandatory subject of collective bargaining.”); N.L.R.B. v.
Rockwell‐Standard Corp., Transmission & Axle Div., Forge Div., 410 F.2d 953, 957
(6th Cir. 1969) (“The preservation or diversion of unit work is a subject of
mandatory bargaining under the Act.”).
31
application of the antitrust laws only to the extent that they work in
service of work preservation or another legitimate labor goal. The
District Court partially acknowledged this distinction, writing:
“Even though the Court in Fibreboard declined to extend its holding
to all types of subcontracting, it held that the ‘substitution of one
group of workers for another to perform the same task in the same
[location] under the ultimate control of the same employer’ is a
mandatory subject of collective bargaining.”81 The District Court,
however, did not independently assess whether the disputed
subcontracting clauses were being used to preserve work that
belonged to the Carpenters or to secure new work in the New
England area that historically belonged to the Ironworkers.
We are unable to conclude whether the non‐statutory
exemption applies in this dispute without further fact‐finding. As it
stands, the record is insufficient to determine whether or not these
subcontracting clauses were in fact being used to preserve work,
prevent jobsite friction, improve the wages, enhance working
conditions, or further another legitimate labor goal; or whether the
clauses were used for work expansion—specifically whether the
Carpenters used the subcontracting clauses to take over work that
was traditionally done by the Ironworkers.
To the extent that these clauses were being primarily used to
expand the Carpenters’ work and take away work historically
performed by the Ironworkers, such a purpose would not fall within
81 Conn. Ironworkers Emp’rs Ass’n, 157 F. Supp. 3d at 184 (quoting
Fibreboard Paper Products Corp., 379 U.S. at 224 (Stewart, J., concurring)).
32
the scope of traditionally mandatory subjects of collective
bargaining.82 As the history of the non‐statutory exemption shows,
it was never intended to be used as a weapon in turf battles. While
“clauses protected by the construction industry proviso ‘must be
given breathing room to operate in their intended fashion without
interference from the antitrust laws,”83 there remain questions of
material fact as to whether these restrictions serve a legitimate labor
goal.
In sum, our precedents have held that “preserv[ing] work
traditionally performed by a union for a particular employer” relates
to the “terms and conditions of employment” and is therefore a
traditionally mandatory subject of collective bargaining.84 By
extension, we hold here that work expansion—as opposed to
preservation—is not a traditionally mandatory subject of collective
bargaining or legitimate goal for the purposes of determining
whether the nonstatutory exemption shields particular conduct from
antitrust scrutiny. Accordingly, we hold that the District Court erred
in finding, as a matter of law, that the disputed subcontracting
practices were entitled to the protection of the “non‐statutory
exemption” due to outstanding disputes of material fact.85
82 See Local 210, 844 F.2d at 79.
83 Id. at 80.
84 Id. at 79.
In light of this conclusion, we need not analyze the second prong of our
85
test in Local 210—whether “the agreement . . . impose[s] a direct restraint on the
business market [that] has substantial anticompetitive effects, both actual and
33
III. Unfair Labor Practices Claim
Plaintiff‐Appellant MRS Enterprises, Inc. (“MRS”) also argues
that the District Court erred when it granted summary judgment to
the Carpenters on its unfair labor practices claim under 29 U.S.C §
187 against the Carpenters.
MRS claims that the Carpenters used the disputed
subcontracting clauses to encourage and induce signatory
contractors to refrain from entering into contracts with MRS.86 The
Carpenters counter that these subcontracting practices are protected
by the construction industry proviso in Section 8(e) of the NLRA.87
For the reasons stated above, we hold that the proviso applies
to the Carpenters’ subcontracting practices and are therefore
immunized from an unfair labor practices claim.88 Accordingly, the
potential, that would not follow naturally from the elimination of competition
over wages and working conditions that results from collective bargaining
agreements.” Id. at 79. On remand, the District Court will need to reapply both
prongs of our Local 210 test in light of any evidence adduced by the parties.
In the absence of a district court ruling, we likewise decline to rule on the
Carpenters’ alternative argument that the antitrust claim against them fails to
establish injury to competition or a dangerous probability of monopolization. On
remand, the District Court may need to address these arguments as well.
The Ironworkers also allege that construction managers often violate
86
their CBAs by assigning covered work to non‐Carpentersʹ signatory contractors.
The record does not support this allegation so we do not consider it here.
87 See Def. Br. at 24‐25.
88 See Local 210, 844 F. 2d 69, 73, 75‐76 (2d Cir. 1988).
34
District Court appropriately held that there is no unfair labor
violation as a matter of law.
CONCLUSION
To summarize:
(1) the District Court correctly held that the construction
industry proviso under Section 8(e) of the NLRA protects
the Carpenters’ subcontracting practices; but,
(2) the District Court erred in holding that the non‐statutory
exemption applies in the instant case. Absent additional
findings by the District Court as to whether these
subcontracting practices further a legitimate aims of
collective bargaining or are impermissibly being used for
work expansion, we are unable to hold that the non‐
statutory exemption applies to the Carpenters’
subcontracting practices.
Accordingly, we VACATE the judgment of the District Court
as to the Sherman Act claim, AFFIRM the judgment as to the unfair
labor practices claim, and REMAND the cause to the District Court
for further proceedings consistent with this opinion, including for
such additional discovery as will permit the District Court to be
informed of the relevant history and permit the parties to move for
summary judgment or, if necessary, to proceed to trial.
35