Appendix — Pratt-Farnsworth, Inc. v. Carpenters Local Union No. 1846 of the United Brotherhood of Carpenters & Joiners

8 2No 414 | FEB iu

F ALEAANDER L Steves. |

3 CLE

——_— - = ——

In the

Supreme Court of the United States

OCTOBER TERM, 1982

PRATT-FARNSWORTH, INC.,

HALMAR, INC., NEW ORLEANS

DISTRICT, ASSOCIATED GENERAL

CONTRACTORS OF LA., INC.,

AT-LARGE DISTRICT, ASSOCIATED

GENERAL CONTRACTORS OF LA., INC.,

Petitioner,

Vv.

CARPENTERS LOCAL UNION NO.

1846 OF THE UNITED BROTHERHOOD

OF CARPENTERS AND JOINERS OF

AMERICA, AFL-CIO, ET AL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

VOLUME III—APPENDIX “B"", “C"’", “D", “E”

JAMES BURTON FREDERICK S. KULLMAN

H. BRUCE SHREVES (COUNSEL OF RECORD)

Simon, Peragine, Smith MICHAEL S. MITCHELL

& Redfern Kullman, Lang, Inman & Bee

4300 One Shell Square A Professional Corporation

New Orleans, Louisiana 70139 Post Office Box 60118

Telephone: (504) 522-3030 New Orleans, Louisiana 70160

COUNSEL FOR PETITIONER _ Telephone: (504) 524-4162

PRATT-FARNSWORTH, INC. COUNSEL FOR

AND HALMAR, INC. PETITIONER

B-1

APPENDIX “B”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 81-3222

CARPENTERS LOCAL UNION NO. 1846 of the

UNITED BROTHERHOOD OF CARPENTERS and

JOINERS OF AMERICA, AFL-CIO, ET AL.,

Plaintiffs-Appellants,

versus

PRATT-FARNSWORTH, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion November 4, 1982, 5 Cir., 1982, _F.2d_).

(January 5, 1983)

Before WISDOM, RANDALL and TATE, Circuit Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the

B-2

Court having requested that the Court be polled on rehear-

ing en banc, (Rule 35 Federal Rules of Appellate Procedure:

Local Fifth Circuit Rule 16) the Suggestion for Rehearing

En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it, (Rule

35 Federal Rules of Appellate Procedure: Local Fifth Cir-

cuit Rule 16) the Suggestion for Rehearing En Banc is also

DENIED.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

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APPENDIX “C”’

CARPENTERS LOCAL UNION NO. 1846

of the UNITED BROTHERHOOD OF CARPENTERS

AND JOINERS OF AMERICA, AFL-CIO,

Carpenters District Council of New Orleans and

Vicinity Pension Trust, Carpenters District Council

of New Orleans and Vicinity Health and Welfare Plan,

Carpenters District Council of New Orleans and Vicinity

Apprenticeship Educational and Training Program,

William John Fortney; Kenneth J. Perkins; Donald C.

Haynes; Rayford H. Colamari; Lothard J. Broussard, Sr-.;

Franklin B. Hunter; Elaire Dauzat; Dennis J. Savoy;

Lawrence J. Rousselle; Desire Bergeron; Vernon D.

Harvey; and William J. Brignac, Jr. (Hereinafter Class I),

James E. Crawford; Lawless J. Martin; Robert Brown;

Charles Mitchell; Nathaniel E. Williams; Johnnie

Williams; Fred Scott and Lee R. Miskell (Hereinafter Class

II); and James E. Crawford; Lawless J. Martin; Robert

Brown; Nathaniel E. Williams and Lee R. Miskell

(Hereinafter Class III)

Vv.

PRATT-FARNSWORTH, INC.; Halmar, Inc.;

New Orleans District, Associated General Contractors

of Louisiana, Inc.; At Large District, Associated General

Contractors of Louisiana, Inc.

Civ. A. No. 80-1570

United States District Court

E. D. Louisiana

April 2, 1981.

Union brought action against contractors and con-

tractors’ associations alleging violations of Labor Manage-

ment Relations Act, of Employee Retirement Income

C-2

Security Act and of antitrust statutes. On defendants’ mo-

tion to dismiss complaint, the District Court, Jack M. Gor-

don, J., held that: (1) absence of contractual relationship

between first contractors’ association, second contractors’

association and union district counsel entitled the associa-

tions to dismissal of union's claim under Labor-

Management Relations Act; (2) authority to determine ap-

propriate ‘‘bargaining unit’’ was reserved to National

Labor Relations Board, and thus district court was

precluded from determining that affiliation between con-

tractors warranted characterization as ‘‘single employer’’

for purposes of determining jurisdiction of district court

over claim under Labor Management Relations Act; (3)

union was required to exhaust contractually mandated

grievance procedures prior to initiating action under Labor

Management Relations Act; (4) absent contractual obliga-

tion under collective bargaining agreement, contractor,

first contractors’ association and second contractors’

association had no obligation, under Employees’ Retire-

ment Income Security Act, to contribute to union trust

fund; (5) union was required to exhaust contractual

remedies under collective bargaining agreement prior to in-

itiating judicial action for failure to make contributions to

union trust funds allegedly required by Employee Retire-

ment Income Security Act; and (6) labor exemption to an-

titrust laws precluded imposition of liability on contractors

and on contractors’ associations on basis of union's claims

that they conspired to restrain competition and to

monopolize construction industry with purpose of cir-

cumventing collective bargaining agreement.

Motion granted.

Jerry L. Gardner, Jr., Barker, Boudreaux, Lamy,

Gardner & Foley, New Orleans, La., for plaintiffs.

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Frederick A. Kullman, Kullman, Lang, Inman & Bee,

James Burton, Brian, Simon, Peragine, Smith & Redfearn,

New Orleans, La., for defendants.

MEMORANDUM AND ORDER

JACK M. GORDON, District Judge.

Defendants, Pratt-Farnsworth, Inc.; Halmar, Inc.;

Associated General Contractors of Louisiana, Inc., New

Orleans District; and Associated General Contractors of

Louisiana, Inc., At Large District, have moved the Court

for dismissal of and, alternatively, for summary judgment

in plaintiffs’ suit styled as a class action. Pursuant to Rule

23 of the Federal Rules of Civil Procedure, plaintiffs

brought this action on behalf of all members of and all per-

sons seeking employment through Carpenters Local Union

No. 1846 and Pile Drivers Local Union No. 2436 of the

United Brotherhood of Carpenters and Joiners of America,

AFL-CIO. Additional represented plaintiffs include all af-

filiated participants and beneficiaries of the Carpenters

District Council of New Orleans and Vicinity’s Pension

Fund, Health and Welfare Plan, and Apprenticeship

Educational and Training Program. Also joined are the

plaintiffs named of Class I, Class II, and Class III.

Heretofore, the Court has not considered the merits of the

class certification issue. Oral argument was heard on

September 24, 1980, after which the Court took the matter

under submission. Having reviewed the arguments, the

memoranda of counsel, and the applicable law, the Court

has decided to GRANT defendants’ motion to dismiss.

The instant action evolved from the Carpenters

District Council's bargaining relationship with the As-

sociated General Contractors, Inc., New Orleans District

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(hereinaftear AGC, New Orleans), and the Associated Gen-

eral Contractors of Louisiana, Inc., At Large District

(hereinafter AGC, At Large). Defendants Pratt-

Farnsworth, Inc. (hereinafter Farnsworth) and Halmar,

Inc., (hereinafter Halmar), employers engaged in the

building and construction industry, affiliated themselves

with the AGC organizations, thereby authorizing AGC to

bargain in their behalf with the Carpenters District Council

over wages, terms, and conditions of employment. Accor-

dingly, AGC, New Orleans negotiated the collective

bargaining agreement extending from May 1, 1977 to April

30, 1980 with the Carpenters District Council—such agree-

ment constitutes the controverted subject matter of this

suit.

The gravamen of plaintiffs’ complaint is that defen-

dants have conspired to restrain competition and to

monopolize the construction industry in New Orleans and

vicinity. Allegedly, Farnsworth established Halmar to

create a union-free environment with the purpose of cir-

cumventing the ‘‘Craft Agreement,’’ the collective bargain-

ing agreement with plaintiff union. Plaintiffs further claim

that the district organizations of the defendant AGC have

participated in this monopoly through utilization of those

“open-shop” contractors represented by the AGC, At

Large.

In pursuance of their complaints, plaintiffs have fil-

ed this action, stating causes of action under three dif-

ferent sets of federal statutes; namely, (i) Section 301 of the

Labor Management Relations Act, as amended 29 U.S.C. §

185(a); (ii) The Employee Retirement Income Security Act

of 1974, 29 U.S.C. § 1132 (hereinafter ERISA); and (iii) the

Clayton and Sherman Antitrust Acts, 15 U.S.C. §§ 1-7,

12-27 and 28 U.S.C. § 1332 et seq. Let us consider each of

these in turn.

The Section 301 Allegations

The Labor Management Relations Act, Section 301

(a) establishes federal court jurisdiction for collective

bargaining agreement violations.

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this chapter, or between any such labor

organizations, may be brought in any district

court of the United States having jurisdiction of

the parties, without respect to the amount in con-

troversy or without regard to the citizenship of

the parties. 29 U.S.C. § 185(a)

Thus, suits maintainable under Section 301 must be based

upon a collective bargaining agreement existing ‘‘between

an employer and a labor organization....”’

A. The Section 301 Allegations as applied to the AGC

organizations.

The Associated General Contractors of Louisiana,

Inc. acts through its Collective Bargaining Committee as

the bargaining agent for certain Association members.

Solely those parties which signify their intention to accept

the agreement's terms are contractually bound. The

agreements, then, are neither negotiated for nor binding

upon any other Association member, nor upon the Associa-

tion itself. This is evidenced by the terms of the Collective

Bargaining Agreement, Article ]/—

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PARTIES AND DEFINITIONS:

Section I. The parties to this Agreement are the

following:

(a) Those members of the New Orleans District,

Associated General Contractors of Louisiana,

Inc. signatory hereto and listed in Appendix ‘A’,

together with such other members of said

District who may hereafter become signatory

hereto, hereinafter referred to as ‘Contractors’

or ‘‘Employers’’ collectively, and as ‘‘Contrac-

tors” or ‘‘Employer”’ individually.

(b) Those Unions signatory hereto and listed in

Appendix ‘“B’’, hereinafter referred to as

“Unions” collectively, and as ‘‘Union’’ in-

dividuall. [emphasis added]

The AGC, New Orleans and the AGC, At Large are not

signatories to the agreement. Rather, it is those members

of the AGC, New Orleans that are contractually bound.

The absence of such contractual relationship bet-

ween AGC, New Orleans or AGC, At Large and Carpenters

District Council mandates dismissal as to them of the Sec-

tion 301 claim under settled authority in this jurisdiction.

In Dixie Machine Welding & Medtal Works, Inc. v. Marine

Engineers Beneficial Association, 243 F.Supp. 489 (E.D.

La.1965), the plaintiff brought suit in state court to enjoin

defendant's picketing. The defendant-union sought

removal to the federal court on the basis that it was a Sec-

tion 301 action. The Court said:

Defendant-union argues that this suit is based

in part on the alleged breach of a collective

bargaining agreement between the plaintiff-

C-7

employer and various labor organizations and for

that reason arises under Section 301. This conten-

tion is erroneous, however, because there is no

collective bargaining agreement between the par-

ties to this suit.... While it is alleged by plaintiff

that the activity of its employees (resulting from

their refusal to cross the picket line of Defendant)

is being carried on in violation of the collective

bargaining agreements between plaintiff and its

employees, this suit is not against plaintiff's

employees but against Marine Engineers Bene-

ficial Association with which Plaintiff has no

agreement of any kind. Between the parties to

this action, therefore, there is no collective

bargaining agreement and this is not a ‘suit for

violation of contracts between an employer and a

labor organization’’ or between labor organiza-

tions which Section 301 of the Labor Manage-

ment Relations Act would confer jurisdiction in

this court. 243 F.Supp. at 491. [emphasis in the

original]

See also United Steel Workers of America, AFL-CIO v.

Rome Industries, INc. d/b/a Rome Plow Company, 437

F.2d 881 (5th Cir. 1970).

B. The Section 301 Allegations as applied to Farnsworth

and Halmar

While Halmar is not a signatory to the contract,

plaintiffs have argued that the affiliation between Farn-

sworth and Halmar should result in their characterization

as a ‘single employer.’ This classification, plaintiffs con-

tend, would impose the terms of the bargaining agreement

upon Halmar.

The Court cannot agree with plaintiffs’ contention

C-8

because adoption of that position inevitably would result

in this Court's usurpation of power to determine the ap-

propriate ‘‘bargaining unit’’ reserved to the National

Labor Relations Board. Section 9(b) of the National Labor

Relations Act provides the following directive.

The Board shall decide in each case whether, in

order to assure to employees the fullest freedom

in exercising the rights guaranteed by this Act,

the unit appropriate for the purposes of collective

bargaining shall be the employer unit, craft unit,

or subdivision thereof .... 29 U.S.C. § 159(b)

South Prairie Construction Company v. Operating

Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382

(1976) (commonly known as the Peter Kiewit case) presents

a parallel situation. The union there filec a complaint with

the N.L.R.B. alleging that South Prairie and Kiewit's

refusal to apply the bargaining agreement effective bet-

ween the Union and Kiewit to South Prairie’s employees

constituted a violation of the National Labor Relations Act

§ 8(a)(5) and (1), as amended 29 U.S.C. § 158(a)(5) and (1).

The Court of Appeals for the District of Columbia Circuit

had classified South Prairie and Kiewit as a ‘single

employer,’ finding them guilty of an unfair labor practice

since their combined employees comprised an appropriate

bargaining unit. See Local No. 627, Int. U. of Operating

Eng. v. N.L.R.B., 518 F.2d 1040 (D.C.Cir.1975),

While not disturbing the Circuit Court's decision

regarding the ‘‘single employer’ status, the Supreme

Court held that this finding would not be dispositive in a

determination of the appropriate bargaining unit under

controlling N.L.R.B. cases.

C-9

The Board's cases hold that especially in the con-

struction industry a determination that two af-

filiated firms constitute a single employer ‘does

not necessarily establish that an employerwide

unit is appropriate, as the factors which are rele-

vant in identifying the breadth of an employer's

operation are not conclusively determinative of

the scope of an appropriate unit.’ 425 U.S. at 803,

96 S.Ct. at 1843. (citations omitted)

Thus, the Supreme Court concluded that the Court

of Appeals had invaded the statutory province of the

N.L.R.B. by deciding the § 9 ‘unit’ question in the first in-

stance. The Court restated that the ‘‘selection of an ap-

propriate bargaining unit lies largely within the discretion

of the Board, whose decision, ‘if not final, is rarely to be

disturbed...," '’ citing Packard Motor Co. v. N.L.R.B., 330

U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). Furthermore,

by foreclosing the Board from determining the § 9 ap-

propriate bargaining unit, the Court of Appeals did not

give ‘' ‘due observance [to] the distribution of authority

made by Congress as between its power to regulate com-

merce and the reviewing power which it has conferred upon

the Courts under Article III of the Constitution.’ ' FCC v.

Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84

L.Ed. 656 (1940),

The Court of Appeals for the Fifth Circuit has con-

sistently recognized the Labor Board's authority in

bargaining unit selection. In North American Soccer

League v. N.L.R.B., 613 F.2d 1379 (5th Cir. 1980) the Fifth

Circuit recognized that an employer's assumption of suffi-

cient control over its franchisees’ or members’ employees

could result in a joint bargaining requirement. It recogniz-

ed, however, that the N.L.R.B. would impose this require-

ment in exercising its power to decide in each case whether

C-10

the employee unit requested is an appropriate unit for

bargaining.

In a bargaining order enforcement proceeding, the

Fifth Circuit prefaced its merit determination by stating

that ‘(T]he N.L.R.B. has statutory authority to determine

bargaining units." 29 U.S.C. § 159(b). N.L.R.B. v. J. C. Pen-

ney Co., Inc., 559 F.2d 373 (5th Cir. 1977). The court

reiterated its judicial review standards as: arbitrary,

capricious, an abuse of discretion, or lacking in substantial

evidentiary support. Packard Motor Car Co. v. N.L.R.B.,

supra; N.L.R.B. v. Alterman Transport Lines, Inc., 465

F.2d 950 (5th Cir. 1972). An employer must establish the

designated unit as clearly inappropriate before setting

aside a Board's certified unit. ‘‘A showing that some other

unit would be appropriate is insufficient, for a choice

among appropriate units is within the discretion of the

Board.” N.L.R.B. v. Fidelity Maintenance & Construction

Co., 424 F.2d 707 (5th Cir. 1970). (emphasis supplied)

This Court thus concludes that adoption of plain-

tiffs’ assertion that Farnsworth and Halmar are a single

employer so as to make the instant labor contract binding

upon Halmar necessarily would require a determination of

the appropriate bargaining unit, and that such determina-

tion would be an invasion of the exclusive province of the

N.L.R.B. not distinguisHable from that condemned by the

Supreme Court in the Peter Kiewit case. Hence, the mo-

tions to dismiss the Section 301 claims brought by Farn-

sworth and Halmar must be granted.

C. The Section 301 claims additionally fall for failure

to exhaust the contractually mandated grievance

procedure.

C-11

Article XXI{I Disputes and Grievance Procedure

of the collective bargaining agreement in question provides

for dispute resolution pertaining to alleged violations—to

be culminated in ‘‘final and binding’ arbitration.

Heretofore, no party has filed any illegal practice charges.

An employee who had not resorted to the agree-

ment’s grievance method was precluded from instituting a

state court suit for severance pay recovery in Republic

Steel Corporation v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13

L.Ed.2d 580 (1965). The Supreme Court discussed the in-

terests and policies supporting contractual grievance pro-

cedure utilization. As the general rule in cases to which

federal law applies, the court stated the federal labor law

requirement that employees asserting contract grievances

must attempt use of the agreed-upon contract grievance

procedure as the mode of redress. The court found that

side-stepping grievance means in favor of a lawsuit would

deprive the parties ‘‘of the ability to establish a uniform

and exclusive method for orderly settlement of employee

grievances.’ Allowance of a procedure’s non-exclusivity

would thus result in loss of its desirability as a settlement

method. Such a situation ‘‘ ‘would inevitably exert a

disruptive influence upon both the negotiation and ad-

ministration of collective agreements.’ '' 379 U.S. at 653,

85 S.Ct. at 616, citing Local 174, Teamsters etc. v. Lucas-

Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).

The Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87

S.Ct. 903, 17 L.Ed.2d 842 (1967) followed Republic Steel

Corporation v. Maddox, supra, in enunciating that an

employee is bound by the collective bargaining agree-

ment's terms governing the enforcement of contractual

rights. This rule has been followed in cases of the Court of

Appeals for the Fifth Circuit and the Eastern District of

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Louisiana. Rabalais v. Dresser Industries, Inc., 566 F.2d

518 (5th Cir. 1978); Harris v. Chemical Leaman Tank Lines,

Inc., 437 F.2d 167 (5th Cir. 1971). In Rivera v. NMU Pen-

sion and Welfare and Vacation Plan, New Orleans, Loui-

siana, 288 F.Supp. 874 (E.D.La.1968), the court dealt with

a Section 301 suit brought by an employee seeking relief

from her allegedly unlawful discharge. The court held:

The claim is based upon, and arises out of, the

collective bargaining agreement. Consequently,

when, as here, that contract contains provisions

governing the manner in which contractual rights

may be enforced, the employee is bound by those

terms and cannot bypass the exclusive grievance

procedures to air his claim in court. 288 F.Supp.

at 877.

The prerequisite of exhausting contractual remedies

prior to initiatig a Section 301 suit applies equally to the

plaintiff-union as to the plaintiff-individuals. Pittsburgh

Die Sinkers Lodge No. 50 v. Pittsburgh Forgings Com-

pany, 255 F.Supp. 142 (W.D.Pa.1966); California State

Council of Carpenters v. Associated General Contractors of

California, Inc., 404 F.Supp. 1067 (N.D.Cal.1975); National

Post Office Mail Handlers v. U.S. Postal Service, 594 F.2d

988 (4th Cir. 1979).

Il.

The ERISA Allegations

Any contribution obligation to the various plaintiff

trust funds resulting in ERISA liability must be founded

upon some collectively bargained duty to make payments

thereto. Paragraph 16 of the Complaint states:

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By virtue of provisions contained in the collec-

tive bargaining agreements which defendants are

bound by, defendants did promise and become

obligated to make contributions, in amounts set

forth below, to said Funds on behalf of its

employees for each hour or portion thereof work-

ed or for which wages were received by such

employees, and class plaintiffs, from May 1, 1971,

through the present, and continuing during the

pendency of this litigation.

As indicated, supra, defendants, AGC, New

Orleans and AGC, At Large are not signatories to any col-

lective bargaining agreement with the plaintiff-union.

Without being contractually bound, these defendants have

no obligation to contribute to the Plaintiff Trust Funds.

Thus, plaintiffs’ ERISA cause of action fails against the

AGC organizations.

While defendant Farnsworth must comply with

the agreement's terms by virtue of its participatory capaci-

ty, defendant Halmar is under no similar obligation.

Without having signed the contract, Halmar's liability for

payments thereunder could only be based upon its relation-

ship to Farnsworth. Correspondingly, as there is no allega-

tion that Farnsworth has failed to make the proper

payments regarding payroll employees, its only ERISA

liability would stem from some payment obligation on

behalf of Halmar’s employees.

The Court's analysis of the Section 301 allegations is

equally applicable in the ERISA context. Accordingly, the

alleged ERISA liability could only arise if Farnsworth and

Halmar are not only a ‘single employer’ but, in addition,

constitute a single bargaining unit. As this status decision

is relegated to the N.L.R.B., plaintiffs cannot have it decid-

C-14

ed by the Court in the first instance.

Claims under the ERISA statute have been liken-

ed to those under the Labor Management Relations Act in

that both require an attempt to exhaust exclusive contrac:

tual internal remedies in settlement disputes before resort

to federal court. Lucas v. Warner & Swasey Co., 475

F.Supp. 1071 (E.D.Pa.1979), citing Taylor v. Bakery &

Confectionary Union and Industrial International Welfare

Fund, 455 F.Supp. 816 (E.D.N.C.1978); Fox v. Merrill

Lynch & Co. Inc. 453 F.Supp. 561 (S.D.N.Y.1978),

distinguishing Lewis v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 431 F.Supp. 271 (E.D.Pa.1977); Hammil v.

Hoover Ball & Bearing Co., 85 L.R.R.M. 2231 (E.D.Pa.

1973).

In Amato v. Bernard, 618 F.2d 559 (9th Cir. 1980),

the court reviewed the ERISA text, and its legislative

history, and concluded that Congress intended to grant the

judiciary authority to apply the exhaustion doctrine in

ERISA suits. The court further found that sound policy re-

quired such application. Since there has been no attempt at

exhaustion in this case, the ERISA allegations should be

dismissed as to all naméd defendants.

Ill.

The Antitrust Allegations

Defendants contend that the antitrust allegations

must fall because of the non-statutory exemption of certain

union-employer agreements from the antitrust laws. These

contentions must be considered in light of policies implicit

in achieving a delicate balance between antitrust regula-

tion and labor law. The benefits of an exemption based on

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on the national policy favoring collective bargaining have

been held to extend both to ‘labor’ and to ‘‘non-labor”’ par-

ties to such an agreement. Mackey v. National Football

League, 543 F.2d 606, 612 (8th Cir. 1976) (citations omit-

ted).

The court in Consolidated Express Inc. v. New York

Shipping, Inc., 452 F.Supp. 1024 (D.N.J.1978) noted the in-

herent tension between national policies regulating com-

petition and those regulating labor relations.

It is commonplace that the antitrust laws and the

labor laws are antithetical. The antitrust laws are

designed to promote competition; the unions are

in the business of limiting it. It has fallen largely

to the courts to work out a proper conciliation of

these competing desiderata. 452 F.Supp. at 1036.

Thus, it has been said that such a basic tension man-

dates exemption from antitrust sanctions; it is ap-

propriately granted where the policy favoring collective

bargaining is so vital under the circumstances as to

outweigh the interests served by free competition. Von

Kalinowski, 7 Antitrust Laws and Trade Regulation §

48.01 (1980). Review of the accommodation process func-

tioning yielded the following remarks:

With varying results, courts have struggled over

issues such as the merits of exempting unions

from antitrust regulation, the proper extent of

this labor exemption, and the degree of scrutiny

to be given collective bargaining agreements. In

cases involving significant labor considerations

and slight antitrust implications courts have

found paramount the national policies favoring

collective bargaining and have granted immmuni-

ty or applied a labor exemption. Conversely, in

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cases involving significant market restraints and

only tangentially affecting labor interests courts

have applied the antitrust laws. Because no case

has arisen with major labor and antitrust im-

plications, the proper relationship between the

fundamental national policies reflected in these

laws never has been defined. (footnote omitted).

Rober & Powers, Defining the Relationship Bet-

ween Antitrust Law: Professional Sports and the

Current Legal Background, 19 Wm. & Mary

L.Rev. 395, 395916 (1978).

In the instant case, the plaintiff unions and class

members are complaining of collective bargaining obstruc-

tion and consequent injury to union functions and

representation. This controversy can only be characterized

as a labor dispute initiated by construction industry

employees against their employers and the employer

associations. Accordingly, the antitrust laws do not pro-

vide a vehicle for challenging the practices under attack in

this suit.

This Court has considered the antitrust allegations

in this case in light of, inter alia, Local Union No. 189,

Amalgamated Meat Cutters, and Butcher Workmen of

North America, AFL-CIO v. Jewel Tea Company, Inc., 381

U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965) wherein an

antitrust exemption was granted. In Jewel Tea, the unions

had obtained a marketing-hours agreement from one group

of employers. Upon duress of a strike vote placed upon

Jewel, and notwithstanding its reluctance, Jewel entered

into the contract that had previously been approved by the

industry. Jewel then brought a lawsuit complaining of the

union’s action in forcing it to accept the agreement. This

created a situation, the Supreme Court found, in which the

agreement resulted not from the bargaining activities be-

C-17

tween the unions and an employer group but pursuant to

the union’s own labor interests. As the plaintiffs here are

contesting Halmar’s nonparticipation in collective bargain-

ing and urging that the terms that are binding upon Farn-

sworth be imposed upon Halmar, their demands are similar

to those made in Jewel Tea.

The Supreme Court in Jewel Tea was not called upon

to adjudicate the merit of a substantive antitrust law viola-

tion. Rather, as presently before this Court, the issue to be

decided was whether the collective bargaining agreement

was exempt from attack because of the labor exemption

from the antitrust law. After weighing the pertinent in-

terests, the Supreme Court held that the expression of the

national labor policy found in the National Labor Relations

Act placed union-employer agreements beyond the Sher-

man Act’s reach.

This Court follows Jewel Tea and finds that the con-

troverted Craft Agreement is exempt from the Sherman

Act. Employment terms and conditions are properly the

subject of the law regulating collective bargaining—the

National Labor Relations Act. Consequently, the labor

dispute resulting from Farnsworth’s alleged circumvention

of the agreement is outside antitrust parameters.

Mindful of judicial limitations, in light of the propen-

sity and temptations that contribute to overly-litigious

tendencies, this Court heeds the warning that ‘‘[jJudges

should not, under cover of the Sherman Act umbrella,

substitute their economic and social policies for free collec-

tive bargaining.’’ United Mine Workers of America v. Pen-

nington, Jewel Tea, 381 U.S. 676, 727, 85 S.Ct. 1607, 1623,

14 L.Ed.2d 640 (dissenting and concurring opinion). For it

is without this Court’s province to determine who should

C-18

or who should not be a party to a collective bargaining

agreement. Assuming, arguendo, the Court were called

upon to make such a determination, the antitrust remedies

would provide no guidance in adjudicating the parties

necessary to effective employer-union bargaining negotia-

tions.

Moreover, this matter, at its first instance, is

delegated to the National Labor Relations Board. A con-

trary result would amount to precedent-setting usurpation

of the Labor Board's primary jurisdiction.! Consistency

with the Congressional policy enunciated in the National

Labor Relations Act towards peaceful settlement of labor

disputes [29 U.S.C. § 151 (1970)]? demands that a com-

1 In Connell Construction Company v. Plumbers and Steamfitters

Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418, rehear-

ing denied, 423 U.S. 884, 96 S.Ct. 156, 46 L.Ed.2d 114 (1975), and in

Meat Cutters Local 189 v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14

L.Ed.2d 640 (1965), the Supreme Court circumvented the doctrine of

primary jurisdiction by finding that ‘federal court may decide labor law

questions that emerge as collateral issues in suits brought under in-

dependent federal remedies.’ Owing to its characterization of this mat-

ter as a labor dispute, this court will not follow <uch a circuitous route of

assuming jurisdiction.

2 That section, entitled ‘Findings and Policies’ provides, in perti-

nent part:

The denial by some employers of the right of employees to

organize and the refusal by some employers to accept the

procedure of collective bargaining lead to strikes and other

forms of industrial strife or unrest, which have the intent or

the necessary effect of burdening or obstructing commerce

by (a) impairing the efficiency, safety, or operation of the in-

strumentalities of commerce: (b) occurring in the current of

commerce; (c) materially affecting, restraining, or controlling

the flow of raw materials or manufactured or processed

goods from or into the channels of commerce, or the prices of

such mmaterials or goods in commerce; or (d) causing

diminution of employment and wages in such volume as

substantially to impair or disrupt the market for goods

C-19

plaining party file a NLRB complaint alleging an unfair

labor dispute rather than institute an antitrust suit.

‘{AJntitrust doctrines throw scant light on the best means

of resolving the conflicts of interest among employers,

employees and labor unions.’’ Moreover, judicial decisions

in antitrust suits ‘‘contain intrinsic limitations making

them unsuited” to the formulation of a consistent national

labor policy. Cox, Labor and the Antitrust Laws—A

Preliminary Analysis, 104 U.Pa.L.Rev. 252, 261 (1955).

The Supreme Court offers additional authority in

Connell Construction Company v. Plumbers and Steamfit-

ters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44

L.Ed.2d 418, rehearing denied, 423 U.S. 884, 96 S.Ct. 156,

46 L.Ed.2d 114 (1975). This decision, although the case ser-

ving as the area’s touchstone, has often been criticized.3

(Footnote 2 continued)

flowing from or into the channels of commerce.

it is hereby declared to be the policy of the United States to

eliminate the causes of certain substantial obstructions to

the free flow of commerce and to mitigate and eliminate

these obstructions when they have occurred by encouraging

the practice and procedure of collective bargaining and by

protecting the exercise by workers of full freedom of associa-

tion, self-organization, and designation of representatives of

their own choosing, for the purpose of negotiating the terms

and conditions of their employment or other mutual aid or

protection.

3 The Connell decision prompted abundant commentary. Included

in such discourse are the following statements.

The most controversial case of the 1974 Term was Connell Con-

struction Co. v. Plumbers Local 100, a 5-4 decision in which the court

found a novel and puzzling way for depriving labor unions of their

general exemption from the antitrust laws.’ Bartosic, The Supreme

Court 1974 Term: The Allocation of Power in Deciding Labor Law Policy,

62 Va.L.R. 533 (1976).

C-20

Indeed, Connell ‘is important not only for its definition of

the nonstatutory exemption but also because of the confu-

sion the Court created in applying the exemption.’ Von

Kalinowski, § 48.03[2].

In Connell, supra, a union, Local 100, pressured the

Connell Construction Company to sign an agreement pro-

mising to hire only subcontractors who had collective

bargaining agreements with Local 100. The agreement was

not a collective bargaining agreement, nor did the union

seek to represent Connell's employees. The agreement ef-

fectively prohibited Connell from hiring subcontractors

who offered lower prices even when the subcontractors’

employees had wages and working conditions equivalent to

Local 100 members. As a result, subcontractors who of-

fered lower prices through more efficient operations were

eliminated from competition. The court found that the

nonstatutory labor exemption was not directed towards

this elimination which constituted a direct restraint on the

business market. The court recognized operation of the

principles germane to the situation,

The nonstatutory exemption has its source in

the strong labor policy favoring the association of

employees to eliminate competition over wages

and working conditions. Union success in

organizing workers and standardizing wages ulti-

mately will affect price competition among em-

ployers, but the goals of federal labor law

(Footnote 3 continued)

“By distinguishing between the statutory and nonstatutory ex:

emptions for labor union activity, the majority does remove some of the

confusion surrounding the determination of labor's antitrust exemption;

yet the court supplied no specific criteria for the nonstatutory balancing

test beyond a vague weighing of competing goals.’ Paulsen, Labor's Ex-

emption from Federal Antitrust Law: The Diminishing Protection for

Union Activity, 28 U. of Fla.L.R. 620 (1975).

C-21

never could be achieved if this effect on business

competition were held a violation of the antitrust

laws. The Court therefore had acknowledged that

labor policy requires tolerance for the lessening of

business competition based on differences in

wages and working conditions.... Labor policy

clearly does not require, however, that a union

have freedom to impose direct restraints on com-

petition among those who employ its members.

Thus, while the statutory exemption allows

unions to accomplish some restraints by acting

unilaterally, ... the nonstatutory exemption offers

no similar protection when a union and a labor

party agree to restrain competition in a business

market. 421 U.S. at 622, 623, 95 S.Ct. at 1835.

The Connell decision emphasized the fact that the Con-

nell—Local 100 contract was not part of a collective

bargaining agreement. The court reasoned, ‘‘There can be

no argument in this case, whatever its force in other con-

texts, that a restraint of this magnitude might be entitled

to an antitrust exemption if it were included in a lawful col-

lective bargaining agreement."’ 421 U.S. at 625, 626, 95

S.Ct. at 136-1837.

Considering the prominent distinguishing factors

between Connell and the instant case, the Court is not com-

pelled to follow Connell's disallowance of the non-statutory

labor exemption. Thus, the Connell precedent offers a

negative instructive by its determination of a situation not

warranting the exemption. The Court has not been

presented with any outside agreement containing the ex-

clusionary measures found to restrain competition in Con-

nell. A key element in Connell was that the union did not

seek to represent and did not represent Connell's

employees. It was also found that successful execution of

C-22

the union strategy in Connell could have given the union

the power to exclude subcontractors from the Dallas area.

This potential has not been shown to exist in the instant

case. Plaintiffs’ allegation that defendants employ of con-

struction workers ‘who, but for the illegal combinations

and monopolies, all in restraint of trade and commerce,

would have been covered by the collective bargaining

agreements’ (Plaintiffs’ complaint, p. 6) does not

transform this labor controversy into a justiciable an-

titrust cause of action.

Essentially, plaintiffs’ dissatisfaction results not

from an antitrust violation, but from the AGC's not having

bargained collectively with the unions regarding Halmar's

employment terms and conditions. The National Labor

Relations Act, Section 8(a)(5) regulates such conduct by

providing that ‘It shall be an unfair labor practice for an

employer ... to refuse to bargain collectively with the

representatives of his employees, subject to the provisions

of section 9a) [29 U.S.C. § 159(a)]."’ 29 U.S.C. § 158(a)(5).

The Fifth Circuit recognized these divisional lines in Prep-

more Apparel, Inc, v. Amalgamated Clothing Workers of

America, 431 F.2d 1004 (5th Cir. 1970). The union there

claimed the attempted destruction of its operations

through a conspiracy between Bluebell, Inc. and Prepmore.

Bluebell allegedly agreed to aid Prepmore’s hindrance of

the union's employee representation. Upon Prepmore’s

suit claiming damages arising out of the resulting union

strike, the union countered with a Sherman Act claim and a

state law damage claim for interference with union

business. The Fifth Circuit affirmed the district court's

Rule 12(b)(6) dismissal of both counts. As to count one, the

court held:

The facts here go to a refusal to deal with the

C-23

union with respect to conditions of employment,

ordinarily a violation of § 8(a)(5) of the National

Labor Relations Act, 29 U.S.C.A. § 158/aj(5).

There is no indication, however remote, of a con-

spiracy or a combination on the part of Prepmore

and Bluebell to restrain competition in the

marketing of Prepmore's goods. In sum, the

allegations of the first count of the counterclaim

do not rise to the level of alleging a restraint of

the type to which the Sherman Act is directed.

431 F.2d at 1007.

The second count was dismissed on the preemption doc-

trine.

The claim asserted in the second count, con-

sidered in the light of the facts alleged, falls short

of the violence or threat to public order category

saved for state regulation under the San Diego

Building Trades Council case. This count is no

more than a claim that Prepmore and Bluebell,

together with their officers, conspired to

unlawfully hinder and prevent the union from car-

rying on its lawful trade or calling. Taken in the

context of the first count, this lawful calling con-

sisted of a labor organization acting in a represen-

tative capacity in the area of negotiations concer-

ning wages and other working conditions in the

Prepmore plant and the consequent refusal to

bargain. This claim is arguably within the con-

fines of a refusal to bargain; conduct prohibited

by § 8la\(5) of the Labor Act, 29 U.S.C.A. §

158(a)(5). It was thus preempted. 431 F.2d at

1008.

In Amalgamated Clothing and Textile Workers v. J.

P. Stevens & Co., 475 F.Supp. 482 (S.D.N.Y.1979), a union

invoked the Sherman and Clayton Acts for relief in its

C-24

ongoing struggle to organize the defendant Stevens, who

contended that the parties should continue their battle ‘‘up

and down the halls of the NLRB." The court found that the

union had sufficient standing to assert the antitrust claim;

the court nonetheless dismissed for failure to state a cause

of action. Reiterating Professor Cox's oft-quoted proposi-

tion that ‘‘No one seriously suggests that anti-trust policy

should be concerned with the labor market per se,’ Cox,

supra, at 254, the court held:

These authorities are dispositive, and require

dismissal of the antitrust claims. The claims

alleged ‘‘arguably”’ fall within the labor laws; in-

deed, a number of them virtually parrot statutory

definitions of unfair labor practices. The antitrust

laws do not furnish a remedy, since ACTWU's

allegations, taken separately or in concert do no

more than complain of efforts to impede its ac-

tivities as a union, entirely unaccompanied or un-

complicated by any element of monopolistic ef-

fect upon competition in the marketplace for

goods and services. As such, the allegations do

not rise to the level of an antitrust violation; and

in consequence there is no basis to depart from

the rule of Garmon and Lockridge, supra.4 475

F.Supp. at 490

The controversy in Amalgamated Meat Cutters v.

Wetterau Foods, 597 F.2d 133 (8th Cir. 1979) centered

around an agreement whereby a wholesaler lent employees

4 San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79

S.Ct. 773, 3 L.Ed.2d 775 (1959) and Motor Coach Employees v.

Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971) did not in-

volve antitrust claims. These cases’ importance stems from their

recognition of the NLRB's exclusive competence over any activity

“arguably subject’’ to §7 or § 8 of the National Labor Relations Act and,

as such, the resulting preemption of state and federal court jurisdiction.

C-25

to a retail food supplier on a temporary basis to perform

retail meat cutting during an economic strike. Upon the

union's action under, inter alia, the Sherman Act, the

Eighth Circuit upheld a district court's dismissal for

failure to state a claim. ‘‘The District Court found that the

complaint portrayed a labor dispute between union and

employer and held that since federal labor laws clearly

sanctioned the conduct involved, it could not give rise to an

antitrust violation.’ 597 F.2d at 134 (footnotes omitted).

The court stated that the antitrust laws were not enacted

to regulate labor relations. Equally applicable to the ins-

tant case is the court’s pronouncement:

Federal labor policy sanctions both the goal of

resisting union demands and the method of

replacing striking workers and the magnitude

and nature of any restraint of trade or commerce

in this case directly follows from the sanctioned

conduct. The agreement had no anticompetitive

effect unrelated to the collective bargaining

negotiations. (footnote omitted) 597 F.2d at 136.

Furthermore, it is vital to recognize the implications

of an unduly expansive use of the antitrust remedies. The

‘_ourt takes cognizance of the foreseeable abuse that could

result if the Sherman Act were invoked in contexts other

than that for which it was originally tailored. That is, the

Act, ‘‘was enacted in the era of ‘trusts’ and of ‘combina-

tions"’ of businesses and of capital organized and directed

to control of the market by suppression of competition in

the marketing of goods and services, the monopolistic

tendency of which had become a matter of public concern.”’

Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-493, 60 S.Ct.

982, 992, 84 L.Ed. 1311 (1940). The Act was aimed at

business combinations and not labor unions. Thus, this

C-26

Court's refusal to adjudicate the instant Sherman and

Clayton Act claims stems from a refusal to extend the

Sherman Act beyond its bounds into an area governed by

the comprehensive regulatory scheme provided by the Na-

tional Labor Relations Act.?

The Sherman Act is not ‘‘a panacea for all business

affronts which seem to fit nowhere else.’’ Scranton Con-

struction Company, Inc. v. Litton Industries Leasing

Corp., 494 F.2d 778, 783 (5th Cir. 1974), cert. denied, 419

U.S. 1105, 95 S.Ct. 774, 42 L.Ed.2d 800 (1974).6 Owing to

the Sherman Act's vital role in the free economy's preser-

vation, its indiscriminate application would undermine the

remedy’s service. The Act’s purposes ‘‘are best served by

vigorous enforcement of it in the cases in which it was in-

tended to apply, i.e, cases in which restriction or

monopolization of trade or commerce are the object or the

result of [the] defendant's conduct.’’ Parmelee Transporta-

tion Company v. Keeshin, 186 F.Supp. 533, 547 (N.D.IIL

1960), aff'd, 292 F.2d 794 (7th Cir. 1961), cert. denied,

° Cf. Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172 (5th Cir.

1976) wherein the Fifth Circuit considered the standing requirements

relative to an antitrust action. The court held that injury to employment

opportunities or to a union's business activities would provide sufficient

grounds for institution of a Sherman Act and Clayton Act suit upon the

requisite showing. The complainant must prove that he was in the

“target area’ of the conspiracy and that the injuries to the ‘commercial

interests or enterprises’ were proximately caused by the an-

ticompetitive combination. The Tugboat case, however, offers no

dispositive guidance to the instant adjudication. That court specifically

declined to reach the question of whether the labor regulatory scheme

would remove the case from antitrust protection. 534 F.2d at 1174.

6 See also, Spectrofuge Corporation v. Beckman Instruments, Inc.,

575 F.2d 256, 290 (5th Cir. 1978); Natrona Service, Inc. v. Continental

Oil, 435 F.Supp. 99, 111 (DWyoming, 1977); In Re Multidisrict Vehicle

Air Pollution, 367 F.Supp. 1298, 1304 (C.D.Cal.1973); aff'd 538 F.2d 231

(9th Cir. 1976); Industrial Building Materials, Inc. v. Interchemical

Corp., 278 F.Supp. 938, 959 (C.D.Cal. 1967).

C-27

368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340 (1961).

Rather than its misconception as a universal com-

mercial remedy—which leads to its frequent invocation—

the Sherman Act represents a charter of economic freedom

operating within the ‘objective benchmarks’ of market con-

siderations. Kestenbaum v. Falstaff Brewing Corp., 575

F.2d 564, 571 (5th Cir. 1978).? The legislation has been

described as the ‘‘Magna Carta of free enterprise.’ ’’ Its im-

portance to economic freedom, then, has been analogized to

the personal freedom insurance of the Bill of Rights. Sitkin

Smelting & Refining Co. v. FMC Corp., 575 F.2d 440, 448

(3d Cir. 1978), quoting United States v. Topco Associates,

Inc., 405 U.S. 596, 610, 92 S.Ct. 1126, 1135, 31 L.Ed.2d 515

(1971). In Sitkin Smelting & Refining Co., the court con-

tinued by recognizing the Bill of Rights’ inapplicability to

all personal affront and likening these limits to the Sher-

man Act's unsuitability for proscribing all unseemly

business practices. Even though that court found the con-

troverted manipulation of businessmen's bids to be ‘‘clear-

ly reprehensible,’’ the court stated trat the Sherman Act

could not be ‘extended beyond its intended scope and used

to police the morals of the marketplace.’’ 575 F.2d at 448.

' The quoted phrase derives from Continental T.V., Inc. v. GTE

Sylvania Inc., 433 U.S. 36, 97 S.Ct. 25491, 53 L.Ed.2d 568, n. 21 (1977),

Continuing the quoted footnote:

...Competitive economies have social and political as well as

economic advantages, see e.g., Northern Pac. R. Co. v.

United States, 356 U.S. [1] at 4, 78 S.Ct. (514), at 517 [2

L.Ed.2d 545], but an antitrust policy divorced from market

considerations would lack any objective benchmark. As Mr.

Justice Brandeis reminded us: ‘Every agreement concerning

trade, every regulation of trade, restrains. To bind, to

restrain, is of their very essence.'’ Chicago Board of Trade v.

United States, 246 U.S. [231], at 238, 38 S.Ct. [242], at 244

(62 L.Ed. 683]... (emphasis supplied)

C-28

Any adjudication involving the antitrust laws, then, must

examine the economic reality of the relevant transaction.

United States v. Concentrated Phosphate Export Associa-

tion, 393 U.S. 199, 208, 89 S.Ct. 361, 367, 21 L.Ed.2d 344

(1968) (emphasis supplied)

The plaintiffs’ efforts represent yet another judicial

attempt at conforming a square peg to a round hole. The

antitrust laws will not assuage nor cure the defendants’

alleged circumvention of the ‘‘Craft Agreement.’’ Accor-

dingly, they do not provide the proper redress to alleviate

the effects of Farnsworth's alleged creation and operation

of Halmar.

California State Council of Carpenters v. Associated

General Contractors of California, Inc., supra, presents a

similar situation to the case at bar. Plaintiff unions filed a

five-count complaint alleging a general conspiracy to

weaken and destroy them by hiring nonunion employees.

The court based plaintiffs’ allegations of antitrust law

violations on the defendants’ declination to enter into

agreements with plaintiffs that would oblige them to deal

only with subcontractors which were signatories to con-

tracts with the plaintiffs. Such contracts were viewed as

the precise type of agreement creating the Connell union's

antitrust liability. That is, the Connell court sustained an

antitrust claim based on the union's exerted pressure

against an employer to enter into the type agreement in

which the defendant employers in California State Council

refused to participate. Review of the Connell holding and

the considerable body of case law declining to recognize an

antitrust cause of action alleged by a union against an

employer in the normal type of labor dispute mandated the

court's dismissal of the antitrust claims under Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Crucial to these

C-29

determinations stands the distinction that ‘[WJhile an

agreement between a union and an employer to conspire in

some respect may give rise to an antitrust violation, the

normal labor dispute between union and employer does

not. 404 F.Supp. at 1069. (citations omitted).

"Vhile this motion was under submission, the Ninth

Circuit reversed the district court's dismissal in California

State Council, supra, for failure to state a claim upon which

relief could be granted. In retaining the Sherman Act

claims, the court in Carpenters v. General Contractors, 648

F.2d 527, 105 LRRM 3311 (9th Cir. 1980) negated the

previously-found nonstatutory labor exemption from an-

titrust liability. At the core of the majority's substantia-

tion lay a recharacterization of the plaintiffs’ complaint.

The appellate court found that the unions had alleged an

agreement ‘‘to coerce owners of property, general contrac-

tors, and ‘other letters of construction contracts,’ with

whom the Unions had no collective bargaining relation-

ship, to hire only construction firms, primarily subcontrac-

tors, who had not signed with the Unions.’ at 532, 105

LRRM at 3314-15. In this posture, the case presented ‘‘vir-

tually the obverse” of the Connell situation; with the same

threat posed by both the California State Council

employers’ group and the Connell union, it was suggested

that application of the Connell rationale would lie ‘‘with at

least equal force.” at 532, 105 LRRM at 3315. By contrast,

the district court's characterization resulted in a finding

that the defendants avoided the activity prohibited on

Connell by their non-conduct.®

° The relevant portion of the plaintiffs’ amended complaint

charges that defendants ‘‘advocated, encouraged, induced, coerced, aid-

ed and encouraged owners of land and other letters of construction con-

tracts to hire contractors and subcontractors who are not signatories to

collective bargaining agreements with plaintiffs and each of them: ...”’

C-30

This Court is not bound by the Ninth Circuit prece-

dent, and finds the majority's disposition of the case

unpersuasive. Thus, the Court must decline to follow its

pendulated interpretation of what, this Court believes, was

a correct district court result. The dissenting opinion by

Circuit Court Judge Sneed is enlightening.

The dissent was premised on the rationale that the

majority had mischaracterized the complaint, disagreeing

with its depiction as ‘‘flip side’ of Connell. It agreed with

the district court’s characterization, reiterating that,

assuming the requisite proof of the antitrust allegations,

the complaint’s claim would permit unions to achieve

precisely what Connell prohibited.

That is, employers with whom plaintiffs have no

collective bargaining relationship will be

eliminated from the relevant market with the

resulting impairment of competition. This will

come about not because of an agreement by

employers with the plaintiffs of the type con-

demned by Connell, but because the now real

threat of antitrust liability will divert virtually all

subcontracting to employers having a collective

bargaining relationship with the plaintiffs. Those

with a taste for irony will no doubt savor the

spectacle of Connell self-destructing. at 542, 105

LRRM at 3322.

The dissent found that the plaintiffs’ basic allegation

of injury was impairment to their representation of con-

struction industry workers. Without the restraint upon

commercial competition in the marketing of goods and ser-

vices, see Apex Hosiery Co. v. Leader, supra, such an in-

jury was not within the ambit of antitrust law. The dissent

therefore directed redress pursuant to the terms of the

C-31

National Labor Relations Act. 29 U.S.C. § 151 (1976). See

Motor Coach Employees v. Lockridge, supra; San Piego

Building Trades Council v, Garmon, supra.

The Carpenters case, then, presents a strikingly

similar situation to the case at bar. The plaintiffs have

complained of their representational efforts’ impairment

by Farnsworth and Halmar which this Court cannot

translate into a justiciable antitrust claim. Their action is

solely cognizable under the comprehensive labor regula-

tory scheme of the N.L.R.A. The antitrust law provides no

alternative, substitute, nor supplemental remedy in a

bargaining dispute.

The Carpenters’ dissent also rejects the majority's

justification for the action’s justiciability under the Sher-

man Act. That is, the majority found that the complaint

alleged a conspiracy directed at employers which otherwise

would have entered into collective bargaining agreement

with plaintiffs. The dissent attacked this reasoning in light

of the economic realities of employer-employee relations.

This Court is in accord with the dissent in its criticism of

the majority's unfounded assumption of a casual relation-

ship between employers without collective bargaining

agreements and an economically significant injury. The

dissent pointed to the possibility that such employers

could even be more profitable than those bound by an

agreement.

In the Carpenters case, the employers without

agreements were absent from the lawsuit. Their absence

reinforced the dissent's conclusion that the plaintiffs’ com-

plaint stemmed solely from injury to the representational

efforts. Even though Halmar is a party to this action, the

dissent’s reasoning applies to the extent that this Court

C-32

cannot engage in the speculation that would be necessary

to justify the leap that the fact of Halmar’s nonparticipa-

tion in the Craft Agreement has resulted in economic in-

jury to plaintiffs. The plaintiffs are complaining because of

Halmar's position as a construction industry employer

which is not contractually bound to the obligations ex-

isting between Farnsworth and plaintiffs.

I reach the conclusion so well-stated by the

Carpenters’ dissent. ‘‘When all is said and done, this is a

labor case wearing an antitrust costume and inspired no

doubt by the employer victory in Connell Construction Co.

uv. Plumbers & Steamfitters Local 100, supra. It should re-

main a labor case."’ at 543, 105 LRRM at 3323.

CONCLUSION

Based on the foregoing authorities and analysis, the

Court hereby GRANTS the motion to dismiss brought by

Pratt-Farnsworth, Inc.; Halmar, Inc.; Associated General

Contractors of Louisiana, Inc., New Orleans District, and

Associated General Contractors of Louisiana, At Large

District,

D-1

APPENDIX "D"

THE LABOR MANAGEMENT RELATIONS ACT

STATES IN PERTINENT PART:

29 USC §185/a)

Suits for violation of contracts between an employer

and a labor organization representing employees in an in-

dustry affecting commerce as defined in this chapter, or

between any such labor organizations, may be brought in

any District Court of the United States having jurisdiction

of the parties, without respect to the amount in controver-

sy or without regard to the citizenship of the parties.

THE CLAYTON ANTITRUST ACT STATES IN

PERTINENT PART:

15 USC §17

The labor of a human being is not a commodity or ar-

ticle of commerce, Nothing contained in the antitrust laws

shall be construed to forbid the existence and operation of

labor, agricultural, or horticultural organizations, in-

stituted for the purposes of mutual help, and not having

capital stock or conducted for profit, or to forbid or

restrain individual members of such organizations from

lawfully carrying out the legitimate objects thereof; nor

shall such organizations, or the members thereof, be held

or construed to be illegal combinations or conspiracies in

restraint of trade, under the antitrust laws.

29 USC 952

No restraining order or injunction shall be granted

D-2

by any court of the United States, or a judge or the judges

thereof, in any case between an employer and employees,

or between employers and employees, or between

employees, or between persons employed and persons seek-

ing employment, involving, or growing out of, a dispute

concerning terms or conditions of employment, unless

necessary to prevent irreparable injury to property, or toa

property right, of the party making the application, for

which injury there is no adequate remedy at law, and such

property or property right must be described with par-

ticularity in the application, which must be in writing and

sworn to by the applicant or by his agent or attorney.

And no such restraining order or injunction shall

prohibit any person or persons, whether singly or in con-

cert, from terminating any relation of employment, or from

ceasing to perform any work or labor, or from recommen-

ding, advising, or pursuading others by peaceful means so

to do; or from attending at any place where any such per-

son or persons may lawfully be, for the purpose of peaceful-

ly obtaining or communicating information, or from

peacefully pursuading any person to work or to abstain

from working; or from ceasing to patronize or to employ

any party to such dispute, or from recommending, advis-

ing, or pursuading others by peaceful and lawful means so

to do; or from paying or giving to, or withholding from, any

person engaged in such dispute, any strike benefits or

other monies or things of value; or from peaceably assembl-

ing in a lawful manner, and for lawful purposes; or from do-

ing any act or thing which might lawfully be done in the

absence of such dispute by any party thereto; nor shall any

of the acts specified in this paragraph be considered or l.eld

to be violations of any law of the United States.

D-3

29 USC §53

The word ‘‘person”’ or ‘‘persons’’ wherever used in

section 52 of this title shall be deemed to include corpora-

tions and associations existing under or authorized by the

laws of either the United States, the laws of any of the Ter-

ritories, the laws of any State, or the laws of any foreign

country.

THE SHERMAN ANTITRUST ACT STATES IN

PERTINENT PART:

15 USC §1

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce

among the several States, or with foreign nations, is

declared to be illegal. Every person who shall make any con-

tract or engage in any combination or conspiracy hereby

declared to be illegal shall be deemed guilty of a felony, and,

on conviction thereof, shall be punished by a fine not ex-

ceeding one million dollars if a corporation, or, if any other

person, one hundred thousand dollars or by imprisonment

not exceeding three years, or by both said punishments, in

the discretion of the court.

15 USC §2

Every person who shall monopolize, or attempt to

monopolize, or combine or conspire with any other person or

persons, to monopolize any part of the trade or commerce

among the several States, or with foreign nations, shall be

deemed guilty of a felony, and, on conviction thereof, shall

be punished by fine not exceeding one million dollars if a cor-

poration, or, if any other person, one hundred thousand

dollars or by imprisonment not exceeding three years, or by

both said punishments, in the discretion of the court.

D-4

15 USC §4

The several district courts of the United States are

invested with jurisdiction to prevent and restrain viola-

tions of sections 1 to 7 of this title; and it shall be the duty

of the several United States attorneys, in their respective

districts, under the direction of the Attorney General, to

institute proceedings in equity to prevent and restrain

such violations. Such proceedings may be by way of peti-

tion setting forth the case and praying that such violation

shall be enjoined or otherwise prohibited. When the parties

complained of shall have been duly notified of such peti-

tion, the court shall proceed, as soon as may be, to the hear-

ing and determination of the case; and pending such peti-

tion and before final decree, the court may at any time

make such temporary restraining order or prohibition as

shall be deemed just in the premises.

15 USC §7

The word ‘‘person”’, or ‘“‘persons’’, wherever used in

sections 1 to 7 of this title shall be deemed to include cor-

porations and associations existing under or authorized by

the laws of either the United States, the laws of any of the

Territories, the laws of any State, or the laws of any foreign

country.

THE NORRIS-LAGUARDIA ACT STATES IN

PERTINENT PART:

29 USC §113

When used in this chapter, and for the purposes of

this chapter—

eee

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(a) A case shall be held to involve or to grow out of a

labor dispute when the case involves persons who are

engaged in the same industry, trade, craft, or occupation;

or have direct or indirect interests therein; or who are

employees of the same employer; or who are members of

the same or an affiliated organization of employers or

employees; whether such dispute is (1) between one or more

employers or associations of employers and one or more

employees or associations of employees; (2) between one or

more employers or associations of employers and one or

more employers or associations of employers; or (3) bet-

ween one or more employees or associations of employees

and one or more employees or associations of employees; or

when the case involves any conflicting or competing in-

terests in a ‘‘labor dispute’ (as defined in this section) of

‘‘persons participating or interested”’ therein (as defined in

this section).

(b) A person or association shall be held to be a per-

son participating or interested in a labor dispute if relief is

sought against him or it, and if he or it is engaged in the

same industry, trade, craft, or occupation in which such

dispute occurs, or has a direct or indirect interest therein,

or is a member, officer, or agent of any association compos-

ed in whole or in part of employers or employees engaged in

such industry, trade, craft, or occupation.

(c) The term “labor dispute” includes any controver-

sy concerning terms and conditions of employment, or con-

cerning the association or representation of persons in

negotiating, fixing, maintaining, changing, or seeking to

arrange terms or conditions of employment, regardless of

whether or not the disputants stand in the proximate rela-

tion of employer and employee.

D-6

(d) The term ‘court of the United States’’ means any

court of the United States whose jurisdiction has been or

may be conferred or defined or limited by Act of Congress,

including the courts of the District of Columbia.

THE NATIONAL LABOR RELATIONS ACT

STATES IN PERTINENT PART:

29 USC §159

(b) The Board shall decide in each case whether, in

order to assure to employees the fullest freedom in exercis-

ing the rights guaranteed by this subchapter, the unit ap-

propriate for the purposes of collective bargaining shall be

the employer unit, craft unit, plant un , or subdivision

thereof...

29 USC §160

(e) The Board shall have power to petition any court

of appeals of the United States...wherein the unfair labor

practice in question occurred or wherein such person

resides or transacts business, for the enforcement of such

order and for appropriate temporary relief or restraining

order....

(f) Any person aggrieved by a final order of the Board

granting or denying in whole or in part the relief sought

may obtain a review of such order in any United States

court of appeals in the circuit wherein the unfair labor prac-

tice in question was alleged to have been engaged in or

wherein such person resides or transacts business, or in

the United States Court of Appeals for the District of

D-7

Columbia, by filing in such a court a written petition pray-

ing that the order of the Board be modified or set aside.

...Upon the filing of such petition, the court shall proceed in

the same manner as in the case of an application by the

Board under subsection (e) of this section, and shall have

the same jurisdiction to grant to the Board such temporary

relief or restraining order as it deems just and proper, and

in like manner to make and enter a decree enforcing, modi-

fying, and enforcing as so modified, or setting aside in

whole or in part the order of the Board....

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APPENDIX “E”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CARPENTERS LOCAL UNION NO. 1846

of the UNITED BROTHERHOOD OF

CARPENTERS and JOINERS OF AMERICA,

AFL-CIO

and CIVIL ACTION

CARPENTERS DISTRICT COUNCIL NO. 80-1570

OF NEW ORLEANS and VICINITY

PENSION TRUST SECTION I

and MAGISTRATE

DIVISION 2

CARPENTERS DISTRICT COUNCIL OF

NEW ORLEANS and VICINITY HEALTH

and WELFARE PLAN

and

CARPENTERS DISTRICT COUNCIL OF

NEW ORLEANS and VICINITY APPRENTICESHIP

EDUCATIONAL and TRAINING PROGRAM

and

WILLIAM JOHN FORTNEY, KENNETH J.

PERKINS, DONALD C. HAYNES, RAYFORD

H. COLAMARI, LOTHARD J. BROUSSARD, SR..,

FRANKLIN B. HUNTER, ELAIRE DAUZAT,

DENNIS J. SAVOY, LAWRENCE J. ROUSSELLE,

DESIRE BERGERON, VERNON D. HARVEY, and

WILLIAM J. BRIGNAC, JR. (HEREINAFTER

CLASS I)

and

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JAMES E. CRAWFORD, LAWLESS J. MARTIN,

ROBERT BROWN, CHARLES MITCHELL,

NATHANIEL E. WILLIAMS, JOHNNIE WILLIAMS,

FRED SCOTT and LEE R. MISKELL

(HEREINAFTER CLASS II)

and

JAMES E. CRAWFORD, LAWLESS J. MARTIN,

ROBERT BROWN, NATHANIEL E. WILLIAMS

and LEE R. MISKELL (HEREINAFTER CLASS III)

VERSUS

PRATT-FARNSWORTH, INC., HALMAR, INC.,

NEW ORLEANS DISTRICT, ASSOCIATED GENERAL

CONTRACTORS OF LOUISIANS, INC., AT LARGE

DISTRICT, ASSOCIATED GENERAL

CONTRACTORS OF LOUISIANA, INC.

COMPLAINT

NOW COMES the plaintiffs, Carpenters Local

Union No. 1846 of the United Brotherhood of Carpenters

and Joiners of America, AFL-CIO, Carpenters District

Council of New Orleans and Vicinity Pension Fund,

Carpenters District Council of New Orleans and Vicinity

Health and Welfare Plan, Carpenters District Council of

New Orleans and Vicinity Apprenticeship Educational and

Training Program, and above plaintiffs named of Class I,

Class II, and Class III, complaining of the defendants,

Pratt-Farnsworth, Inc., Halmar, Inc., New Orleans

District, Associated General Contractors of Louisiana,

Inc., and At Large District, Associated General Contrac-

tors of Louisiana, Inc. (hereinafter jointly referred to as

Defendant), and allege as follows:

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COUNT ONE

1. This action arises under the Employee Retirement

Income Security Act of 1974 (U.S.C., Title 29, §1132), the

Labor Management Relations Act, as amended, (U.S.C., Ti-

tle 29, Chapter 7, §185(a) and the Clayton and Sherman

Anti-Trust Acts (U.S.C., Title 15, §12-27 and Title 28,

§1332 et seq.) as hereinafter more fully appears. Jurisdic-

tion is founded on the existence of questions arising

thereunder.

2. The plaintiff trustees, individually and as trustees,

named above, administer the funds of the respective

trusts, pursuant to the terms and provisions of the

Agreements and Declarations of Trusts pertaining thereto.

The Funds are required to be maintained and ad-

ministered in accordance with the provisions of the Labor

Management Relations Act of 1947, as amended, the

Employee Retirement Income Security Act of 1974, and

other applicable State and Federal laws.

3. The Funds have been established for the purpose

of providing and maintaining pension and health and

welfare benefits for certain employees, individuals

represented by certain local unions, including Locals 1846

and 2436, affiliated with the United Brotherhood of

Carpenters and Joiners of America, AFL-CIO, who have

entered into collective bargaining agreements with the

employers of such employees, requiring payments by such

employers into Trust Funds for the purpose heretofore

mentioned.

The address and place of business of the Funds is

1407 Decatur Street, New Orleans, Louisiana.

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4. Carpenters Local Union No. 1846 and Pile Drivers

Local Union 2436 of the United Brotherhood of Carpenters

and Joiners of America, AFL-CIO are unincorporated labor

organizations engaged in the business of representing

employees in industries affecting interstate commerce and

have domiciles at 315 South Broad Street, New Orleans,

Louisiana and 2512 Elysian Fields Avenue, New Orleans,

Louisiana, respectively.

5. Defendants Pratt-Farnsworth, Inc. and Halmar,

Inc., both Louisiana Corporations, are and at all times

material herein have been affiliated business enterprises,

with common ownership and management, centralized con-

trol of labor relations, sharing of equipment and other

assets, and employees and they constitute a single in-

tegrated business enterprise, doing business within the

geographic jurisdiction of the Court, and constituting a

single employer for all purposes relevant thereto. The

defendants, as such business enterprise and employer, are

engaged in an industry affecting commerce who has and

continues to do business within the geographic jurisdiction

of the Court, and/or are ‘‘single employers’ within the

meaning of the NLRA and §1563(a) of Internal Revenue

Code Regulations, as amended.

5(a). Defendants New Orleans District, Associated

General Contractors of Louisiana, Inc., and At Large

District, Associated General Contractors of Louisiana, Inc.

are associations that represent and provide various ser-

vices for employers engaged in the building and construc-

tion trades industry, such as defendants herein. The

A.G.C. offices are located at 1500 S. Jefferson Davis

Parkway, New Orleans, Louisiana.

6. Defendants, who are employers engaged in the

E-5

building and construction industry, are bound by the pro-

visions contained in the collective bargaining agreements

between New Orleans District, Associated General Con-

tractors of Louisiana, Inc. and Carpenters District Council

of New Orleans and Vicinity.

7. The defendants are affiliated with the New

Orleans District and At Large District of the Associated

General Contractors of Louisiana, Inc. (hereinafter called

A.G.C.). Defendant A.G.C. is authorized in behalf of its af-

filiated member employer to bargain in their behalf with

the Carpenters District Council of New Orleans and Vicini-

ty over wages, terms and conditions of employment.

7(a). Defendants Pratt-Farnsworth, Inc., a/k/a

Halmar, for all acts and times referred to herein, voluntari-

ly assigned its bargaining rights to, and became a member

of, the A.G.C. of Louisiana, Inc., thereby effectively merg-

ing this member employer (to-wit: Pratt-Farnsworth, Inc.,

a/k/a Halmar, Inc.) with other member employers of the

A.G.C. of Louisiana, Inc. as one industry-wide collective

bargaining unit.

8. Under authority of F.R. Rule 23, this action is

brought as a class action on behalf of each and all other per-

sons similarly situated who are members of and/or seeking

employment through Locals 1846 and 2436 of the United

Brotherhood of Carpenters and Joiners of America, AFL-

CIO, and all participants and beneficiaries of the Pension,

Health & Welfare and Apprenticeship Funds named as

plaintiffs herein.

The right which is subject matter under this action is

common to all members of this class, and there are ques-

tions of law and of fact that are common to each member of

E-6

the class, Claims of the named plaintiffs are typical of the

claims of other members of the class similarly situated and

the plaintiffs will fairly and adequately protect and repre-

sent the interests of each as required by Rule 23.

9. During the terms of the collective bargaining

agreement between the AGC and Carpenters District

Council, described as the ‘Craft Agreement’’, defendant

employer Pratt-Farnsworth conspired with the knowledge

and assent of the AGC and unknown labor persuaders (29

U.S.C., §433 (b), to establish and operate Halmar in order

to circumvent and evade the Craft Agreement provisions

and create a union-free environment.

10. The Defendants have engaged in an unlawful

combination and conspiracy in restraint of interstate com:

merce and trade in violation of the Clayton and Sherman

Anti-Trust Acts.

Such acts, conspiracies and monopolies were bet-

ween the named defendans and consist of:

(a) To help and control and monopolize construc:

tion jobs in New Orleans and vicinity,

(b) To eliminate the Plaintiff-Union from the

building and construction industry in New

Orleans and vicinity by entering into agreements

with owners and builders, whereby such owners

and builders utilize contractors who do not have

agreements with the Plaintiff-Union.

(c) To eliminate Plaintiff-Unions as a meaningful

and effective representatives of their members.

(d) To injure the Plaintiff-Unions’ ability to

organize workers and attract membership.

E-7

(e) To create a monopoly among open-shop con-

tractors who regulate labor costs, set prices,

wages and costs in restraint of trade.

(f) To conspire to undermine and abrogate collec:

tive bargaining agreements between plaintiff and

defendant,

(g) All defendants have conspired and colluded to

create a dual labor pool in violations of the hiring

hall provisions of the Craft Agreement. Said col-

lusions and unfair trade practices have unlawful-

ly denied the class plaintiffs the right to work and

earn wages, pensions, welfare, and other benefits,

and/or have had their employment opportunities

reduced,

(h) The defendants have acted in such fashion as

to constitute a pattern and practice of discrimina-

tion against the plaintiffs resulting in reduced

work opportunities, lower wages, lesser working

conditions, diminuation of fringe benefits; a dilu-

tion in the vested rights and benefits of the class

plaintiffs pension, welfare, hospitalization, and

apprenticeship funds; and an overall substantial

reduction in the membership enrollment of the

plaintiff's unions.

(i) The defendants jointly and in concert have con-

spired and schemed effectively to have other

union contractor-members of the AGC to engage

in a pattern and practice of creating so called

double-breasted” contractors for the purpose of

evading obligations under the Craft Agreement.

11. The defendants are employing construction

workers who, but for the illegal combinations and

monopolies, all in restraint of trade and commerce, would

have been covered by the collective bargaining agreements

E-8

negotiated as area standards in the jurisdiction of this

ourt by the Plaintiff Unions, Such construction workers

ve not being paid the various fringe benefits, which to a

class plaintiff would amount to such items as contributions

to Health and Welfare and Pension and Apprenticeship

Trust Funds,

Plaintiffs show further to the Court that defendants

and each of them are guilty to the violations of the Anti-

Trust Laws as hereinabove set out, and that said Em-

ployers-Defendants are engaged in the construction in-

dustry and have maintained membership in various open-

shop associations purportedly representing the building

construction industry with the main purpose of eliminating

membership in or the use of members of the Plaintiff

Unions, secure favored economic conditions and gain

market domination,

12. Such associations and its employer members are

not immune from Anti-Trust Laws since by illegally com-

bining to agree to pay lower wages and conditions by

monopolizing the New Orleans and vicinity building and

construction industry, it would be restraining competition

and raising prices by the restraining of competition, The

defendant AGC Contractors have illegally combined and

agreed to this monopoly by open-shop contractors, notably

those represented by the At Large District of the AGC of

Louisiana, Inc., so as themselves would be able to be given

a share of this market from owners and builders who do not_-

wish to do business with contractors having ccleatie

bargaining agreements with your plaintiff.

13, Unions such as the plaintiffs herein, representing

construction workers and union members, have standing

to bring Anti-Trust suits against corporations represent-

E-9

ing construction contractors and non-incorporated asso-

ciations on the grounds that the defendants have conspired

and created corporations to restrain trade and eliminate

competition in construction industry with the object of

preventing plaintiffs from representing employees.

14. The established acts and agreements and con-

spiracies of the defendants have caused a complete duplica-

tion within the construction industry and certain

employers of an illegal nature, and in fact has significantly

reduced the industry-wide bargaining unit as contracted

for by plaintiffs and defendant AGC Contractors, and by

such actions have violated the Anti-Trust Laws and entitle

plaintiffs to recover treble damages, injunctive relief, the

cost of suit, including reasonable attorneys fees.

15. Further, the acts of the defendants as

hereinabove set out has created a breakdown of com-

petitive conditions, and the plaintiffs are within the sector

of the economy which has been endangered by being

deprived of a work opportunity by and for plaintiff union's

members as secured by the Craft Agreement.

16, By virtue of provisions contained in the collective

bargaining agreements which defendants are bound by,

defendants did promise and become obligated to make con-

tributions, in amounts set forth below, to said Funds on

behalf of its employees for each hour or portion thereof

worked or for which wages were received by such

employees, and class plaintiffs, from May 1, 1971, through

the present, and continuing during the pendency of this

litigation.

17. Defendants have agreed in the collective bargain-

ing agreements that failure to make prompt payment of

E-10

contributions required to be made thereunder shall con-

stitute a violation of said agreement by the defendant.

Defendant is further required, pursuant to the provisions

of the Agreements and Declarations of Trusts governing

the Funds, to make all reports on contributions required by

the Trustees.

18. Pursuant to provisions contained in the

Agreements and Declarations of Trusts governing the

Funds and the collective bargaining agreements the

Trustees acting thereunder are authorized and empowered

to have an audit made by independant certified public ac-

countants of the payroll and wage records of a signatory

employers to permit such Trustees to determine whether

an employer is making full and accurate payment and pro-

mpt submission of reports pertaining thereto as required

under the applicable collective bargaining agreements.

19. Notwithstanding the aforementioned provisions

of the Agreements and Declarations of Trusts, all costs

and reasonable attorney's fees incurred in the action may

be recovered from the defendants pursuant to the provi-

sions of the Employee Retirement Income Security Act of

1974, 29 U.S.C. §1132(g).

COUNT TWO

1. Named members of the Class I hereinabove,

hereby re-urge and reiterate all of the allegations as con-

tained in Count One, as if copied herein in extenso.

COUNT THREE

1. Named members of Class II hereinabove, hereby

re-urge and reiterate all of the allegations as contained in

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Count One above, as if copied herein in extenso.

COUNT FOUR

1. Narned members of Class III hereinabove, hereby

re-urge and reiterate all of the allegations as contained in

Count One above, as if copied herein in extenso.

WHEREFORE, plaintiffs pray:

1. This cause of action be certified as a class actions

as provided by Federal Rule 23.

2. The named plaintiffs be certified to represent the

class.

3. The plaintiffs recover treble damages sustained by

them plus costs of suit including reasonable attorneys’ fees

as authorized by Section 15 of the Clayton Act.

4. The plaintiffs pray for such other relief as may be

justly and properly determined, including injunctive relief

as provided in 15 U.S.C. §26.

5. That the herein alleged combination and con-

spiracy between the defendants be adjudged and decreed

to be an unreasonable restraint of interstate trade and

commerce, unlawful, and in violation of Section I of the

Sherman Act (15 U.S.C.A. 1).

6. That the amount of damages the plaintiffs have

sustained by reason of the unlawful acts of the defendants,

which are not now definitely ascertainable but which will

be proved with certainty at the time of the trial, be ascer-

tained and assessed and the defendants be ordered to pay

E-12

to the plaintiffs three (3) times the amount of such dam-

ages;

7. That plaintiffs recover its litigation expenses, in-

cluding attorneys’ fees, as provided by Section 4 of the

Clayton Act (15 U.S.C.A. 15);

8. That plaintiffs recover such other amounts and

have such other and further relief as the Court shall deem

just;

9. That defendants be ordered to abide by the terms

and conditions of the Craft Agreement retroactively from

May 1, 1971, to date, and any amendments, modifications

or extensions and any new agreements entered into the

A.G.C.;

10. That an account be taken as to all employees of

defendant covered by the collective bargaining agreements

from May 1, 1971, to the present, as to wages received and

hours worked by such employees to determine amount re-

quired to be paid to the Trustees of the respective Funds,

covering the period during which defendant has been delin-

quent, i.e. May 1, 1971 to date;

11. That defendant be specifically required to per-

form and continue to perform all obligations on defen-

dants’ part undertaken, particularly to furnish promptly to

the Trustees of the respective Funds, the required con-

tribution reports heretofore referred to, or in lieu thereof, a

statement covering the period for which said reports are re-

quired that defendants had no employees for whom con-

tributions were required to be made;

12. That defendants be decreed to pay to the Trustees

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of the respective Funds, the full amount determined to be

due and owing upon completion of the audit referred to

above, together with legal interest, and all costs of collec-

tion, all as provided in the collective bargaining agree-

ments and the Agreements and Declarations of Trusts,

which provisions are set out above.

13. That defendants be ordered to pay all costs atten-

dant to any audit of defendants’ payroll books and records,

as a penalty and cost of collection, all as provided in the col-

lective bargaining agreements and in the Agreements and

Declarations of Trusts for the respective Trust Funds.

That defendants be decreed to pay to the Trustees their

reasonable attorneys’ fees as in the collective bargaining

agreements and in the Agreements and Declarations of

Trust provided and as required by the provisions of the

U.S.C., Title 29, Section 1132(g), together with the costs of

suit; and

14. That plaintiffs have such other and further relief

as this Court may deem proper.

Respectfully Submitted,

GERALD THOS. LaBORDE

Law Offices of Gerald Thos. LaBorde

Suite 2102 Ten-O-One Bldg. :

1001 Howard Avenue

New Orleans, Louisiana 70113

(504) 523-3224

JERRY L. GARDNER, JR.

Attorney at Law

Richards Building

New Orleans, Louisiana 70112

(504) 586-9395

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FE. GORDON SCHAEFER, JR.

Law Offices of Gerald Thos. LaBorde

Suite 2102 Ten-O-One Bldg.

1001 Howard Avenue

New Orleans, Louisiana 70113

(504) 523-3224

Attorneys for Plaintiffs