American Steel Erectors, Inc., et al v. Local Union No. 7

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [13-1531, 13-1665, 13-1705, 13-1714]

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Date Filed: 02/25/2016

Entry ID: 5980213

United States Court of Appeals
For the First Circuit

Nos. 13-1531, 13-1665,
13-1705, 13-1714
AMERICAN STEEL ERECTORS, INC.; AJAX CONSTRUCTION COMPANY, INC.;
AMERICAN AERIAL SERVICES, INC.; BEDFORD IRONWORKS, INC.;
AND D.F.M. INDUSTRIES, INC.,
Plaintiffs-Appellants/Cross-Appellees,
RONALD BEAUREGARD, D/B/A INDEPENDENT WELDING SERVICES
INDUSTRIES, INC.,
Plaintiffs,
v.
LOCAL UNION NO. 7, INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL, ORNAMENTAL & REINFORCING IRON WORKERS,
Defendant-Appellee/Cross-Appellant,
CHARLES WRIGHT; STEEL ERECTION AND ORNAMENTAL IRON INDUSTRY
ADVANCEMENT FUND,
Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before
Howard, Chief Judge,
Stahl and Lipez, Circuit Judges.
Michael E. Avakian, with whom Wimberly, Lawson & Avakian,
Thomas M. Triplett, Schwabe Williamson & Wyatt, Geoffrey R. Bok,

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and Stoneman, Chandler & Miller LLP were on brief, for
appellants/cross-appellees.
Indira Talwani, with whom Paul F. Kelly, Jasper Groner, and
Segal Roitman, LLP were on brief, for appellee/cross-appellant.
Maurice Baskin and Littler Mendelson, PC on brief for
Associated Builders and Contractors, Inc., amicus curiae in
support of appellants/cross-appellees.

February 25, 2016

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HOWARD,

Chief

Page: 3

Judge.

Date Filed: 02/25/2016

On

December

2,

Entry ID: 5980213

2004,

five

structural steel contractors filed a complaint against a local
union alleging antitrust law violations under the Sherman Act,
labor law violations under the Labor Management Relations Act
("LMRA"),

and

other

violations

under

state

law.

Over

the

intervening decade, the case has evolved in complex ways. Although
we reviewed this matter once before, Am. Steel Erectors, Inc. v.
Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental
& Reinforcing Iron Workers ("ASE I"), 536 F.3d 68 (1st Cir. 2008),
we found elements pertaining to the federal claims undeveloped and
remanded for further proceedings.

The case now reaches us again

following trial, with both parties appealing and cross-appealing
aspects of the final judgment.

After considerable reflection, and

for the reasons set forth below, we affirm.
I.
A.

Background

Factual History

As we explained in ASE I, the structural steel industry
is comprised of steel fabricators, who manufacture steel products
to meet design specifications, and steel erectors, who assemble
the fabricated steel.

When a developer or owner taps a general

contractor to lead the construction of a building, that general
contractor typically solicits bids for a combined "fab and erect"
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package, which is submitted by the fabricator and includes the
combined price for both the fabrication and erection of the
structural steel.

As such, the steel fabricators must themselves

solicit bids for the erection work from the steel erectors in order
to finalize their combined bid price.

And, in turn, the erection

companies must incorporate the significant costs associated with
paying their laborers into their own steel erection price.
In New England, at the time of the complaint, there were
relatively few fabricators (around twenty) and many erectors (over
200).

The plaintiffs in this case are five nonunionized steel

erector companies,1 and the defendant is Labor Union No. 7 of the
International Association of Bridge, Structural, Ornamental &
Reinforcing Iron Workers ("Local 7"), a teamsters local union for
member iron workers (including steel erector laborers) in eastern
Massachusetts.

Local 7 has a collective bargaining agreement

("CBA") with the Building Trades Employers' Association of Boston
and

Eastern

Massachusetts

("BTEA"),

which

is

represents hundreds of construction companies.

an

entity

that

Among the "union

1

The plaintiffs are Arial Services, Inc., D.F.M. Industries,
Inc., American Steel Erectors, Inc., Bedford Ironworks, Inc., and
Ajax Construction, Inc. As plaintiffs D.F.M. Industries and Ajax
Construction are most heavily involved in the foundational facts,
we refer to them throughout as "DFM" and "Ajax" for ease.
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signatory" firms that have agreed to the CBA are numerous erector
companies with whom the plaintiffs compete.
Under the CBA, the signatory erectors must pay Local 7
workers a union scale wage.

Nonunion erectors, on the other hand,

are not bound to the CBA and can negotiate their own labor costs
with their employees.

Because labor expenditures account for

approximately half of the total steel erection costs, nonunion
erectors are often able to submit lower bids for erection contracts
to fabricators looking to formulate a combined "fab and erect"
bid.

Over time, not unexpectedly, that can lead to nonunion

erectors and laborers gaining market share from union erectors and
laborers.
In order to prevent such erosion in its labor market
share, Local 7 incorporated a "Market Recovery Program" ("MRP")
into its 2000-2006 CBA. Under the MRP, signatory erectors withheld
a fraction of each union laborer's paycheck, which was then paid
into a target fund (the "Fund") operated by Local 7.

Local 7 could

then identify construction projects likely to draw competition
from nonunion erectors and, on a case-by-case basis, send "blast
faxes" or "project alerts" to its signatory union erectors with an
offer to subsidize their bids and make them more competitive with
nonunion bids.

In the event that a union signatory won the
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subcontract, Local 7 (sometimes in conjunction with other regional
unions) would enter into a job targeting fund agreement with that
erector company governing the terms of the MRP subsidy for that
specific project ("JTF agreement").
B.

Procedural History

In 2004, the plaintiffs filed a complaint in federal
district court in Massachusetts alleging, in addition to state law
claims, that actions of Local 7 violated both (1) the LMRA, which
provides civil liability for damages resulting from unfair labor
practices, 29 U.S.C. §§ 158, 187; and (2) Sections 1 and 2 of the
Sherman

Act,

which

forbid

practices

competition, 15 U.S.C. §§ 1, 2.

that

unlawfully

impair

In general, the complaint alleged

that Local 7 employed coercion and unlawful economic pressure to
ensure that contracts were awarded to signatory erectors, rather
than plaintiffs, and to foreclose nonunion erectors from a large
portion of the structural steel erection market in the greater
Boston area.
After the district court granted Local 7's request for
summary judgment on all claims, we reversed in part.
536 F.3d at 76-85.

See ASE I,

We agreed that the plaintiffs' state claims

were preempted, but remanded the surviving federal labor and
antitrust claims for further proceedings.
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The district court set

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the plaintiffs' LMRA claims for trial and reserved the antitrust
claims to be addressed after several of the factual disputes
underlying both claims had been resolved by the jury.
At trial on the LMRA claims, the court limited the
plaintiffs to presenting evidence about union conduct relating to
four particular construction projects: two, referred to as Cardi's
Furniture and Archstone Apartments, involved plaintiff Ajax; the
other two projects, Fox 25 and Brickworks, involved plaintiff DFM.
The jury found for the plaintiffs on each of the four projects,
awarding Ajax $211,956.00 in damages and awarding DFM $78,757.60.
The district court denied Local 7's motion for judgment as a matter
of law or a new trial, see Fed. R. Civ. P. 50(b), 59, which
challenged the sufficiency of the evidence supporting liability
and the damages calculations.
Following the jury verdict, the district court relied on
the evidence presented at trial in its subsequent consideration of
the antitrust issues, as the plaintiffs had represented earlier in
the litigation that identical evidence undergirded both the LMRA
claims and the antitrust claims.

Ultimately, the court entered

judgment on the Sherman Act claims in favor of Local 7, concluding
that the plaintiffs' evidence failed to give rise to antitrust
liability as a matter of law.

See Am. Steel Erectors, Inc. v.

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Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental
& Reinforcing Iron Workers ("ASE II"), 932 F. Supp. 2d 240, 252
(D. Mass. 2013).
II.

Analysis

The plaintiffs appeal from the summary judgment decision
on their antitrust claims.

Local 7 cross-appeals the court's

decision to keep in place the jury's verdict on the LMRA claims.
We address the appeals in reverse order, review the merits de novo,
and consider all trial evidence in the light most favorable to the
plaintiffs.

See Long v. Fairbank Reconstruction Corp., 701 F.3d

1, 3 (1st Cir. 2012).
A.

Labor Law Claims
1. Liability

The LMRA extends a private right of action to those
injured in business or property by reason of certain unlawful union
practices proscribed by the National Labor Relations Act ("NLRA").
See 29 U.S.C. § 187.

As we explained in ASE I, § 8(b)(4)(ii) of

the NLRA makes it an unfair labor practice for a union to threaten,
coerce, or restrain an employer with an object of forcing the
employer (A) to enter into an agreement prohibited by § 8(e) of
the NLRA, or (B) to cease doing business with another party.

See

29 U.S.C. § 158(b)(4)(ii)(A) & (B); Intercity Maint. Co. v. Local
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254, Serv. Employees Int'l Union, 241 F.3d 82, 87 (1st Cir. 2001).
An illegal § 8(e) agreement is, in turn, defined in relevant part
as an agreement by an employer to cease doing business with any
other person.

See 29 U.S.C. § 158(e).

In other words, a union

may incur liability under subparagraph B of § 8(b)(4)(ii) if it
coerces an employer to cease doing business with another party or
under subparagraph A of § 8(b)(4)(ii) if it coerces an employer to
enter into an agreement to cease doing business with another party.
Such an agreement can be express or implied, ASE I, 536
F.3d at 83, and it need not be of a "generalized exclusionary
nature to fall afoul of § 8(e); rather, the use of coercive
measures by a union to pressure a single neutral employer into a
single agreement to cease doing business with a single non-union
employer, or the application of such measures on a project-byproject basis" is sufficient to find liability.

Id. (citing

N.L.R.B. v. Bangor Bldg. Trades Council, 278 F.2d 287, 289–90 (1st
Cir. 1960)).
Of course, Local 7 rightfully points out that a neutral
employer's

mere

decision

to

acquiesce

to

a

union's

unlawful

coercion and cut ties with the nonunion party is not, standing
alone, sufficient to imply the existence of a § 8(e) agreement and
incur liability under subparagraph A. Such an interpretation would
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allow subparagraph B to swallow subparagraph A whole.

Local 7

points to the decision of the National Labor Relations Board
("NLRB") in Local Freight Drivers Local 208, 224 N.L.R.B. 1116
(1976), for support.
In Local Freight Drivers, the NLRB held that the union
had violated subparagraph B by making the termination of its
unlawful picketing contingent upon the neutral party's decision to
sever its relationship with a nonunion employer.
at

1121.

The

NLRB

stopped

short,

however,

See 224 N.L.R.B.
of

finding

a

subparagraph A violation, noting that the union had "specifically
made removal of the [nonunion] . . . the quid pro quo for cessation
of the picketing," and that "[n]o other requirement was attributed
to [the union] as a condition for cessation of the picketing."
Id. at 1123.

Because the union did not go one step further and

require that the nonunion employer be replaced with a union
employer, the NLRB found that the factual elements required for
subparagraph A liability were absent from the record.

See id. at

1121-23.
In ASE I, we deemed any subparagraph B claims waived due
to the plaintiffs' failure to "sort out their allegations and
develop their arguments sufficiently." 536 F.3d at 83. On remand,
we offered the plaintiffs an opportunity to flesh out "the nature
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and extent of Local 7's allegedly coercive tactics" and show that
"Local 7 through use of those tactics pressured neutral employers
into agreements to refrain from using non-union contractors in
violation of § 8(e)."

Id. at 84 (emphasis added).

The permissible grounds for liability were narrowed even
further at trial by jury instructions that required the plaintiffs
to show that Local 7 "threatened, coerced, or restrained one or
more of the steel fabricators" with an object of "obtaining . . .
an agreement, explicit or implicit, from the steel fabricators to
cease

doing

business

with

the

plaintiffs."

(emphasis

added).

Although subparagraph A liability might well have been premised on
coercion directed at other neutral employers, such as site owners
or general contractors, the plaintiffs failed to object to the
jury instructions below.
liability

in

mind,

we

With this somewhat whittled basis for
examine

the

record

to

ensure

that

a

sufficient evidentiary foundation exists to prove the allegations.
Although we must ensure that the judgment rests upon
more than conjecture and speculation or a mere scintilla of
evidence, see Trigano v. Bain & Co., Inc., 380 F.3d 22, 28-29 (1st
Cir. 2004), we are mindful that it is not our role to assess
witness credibility, resolve evidentiary conflicts, or weigh the
evidence, see Gibson v. City of Cranston, 37 F.3d 731, 735 (1st
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Cir. 1994).

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In the end, we are compelled to honor the jury's

verdict unless the facts and inferences point so strongly and
overwhelmingly in favor of Local 7 that a reasonable jury could
not have returned the verdict for plaintiffs DFM and Ajax. See
Long, 701 F.3d at 3.
At trial, DFM president Glen Pisani described how union
members regularly filmed job sites where his company's laborers
were working and formed picket lines ostensibly protesting DFM's
pay scale as being out of step with prevailing wage standards.
Pisani testified that he understood that unions might engage in
this conduct lawfully in order to place pressure on erectors to
sign a CBA. At one point, Pisani made efforts to determine whether
his workforce wanted to unionize, and they did not.

Even after

this, however, members of Local 7 would show up at work sites and,
in his words, "harass" his crew.

He found it "kind of ironic"

that the union picketed publicly funded job sites that were
governed by state-regulated pay scales.
Pisani further described that occasionally he hired a
union crane laborer to work at a particular job alongside his
nonunionized workforce, but the pressure of union picketers would
provoke the crane operator to leave the site in order to avoid
being "blackballed" by the union.
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Union picketing intensified

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when Pisani's company secured erector jobs closer to Boston:
want to work in the city.

"I

Every time I get close, I get picketed

and they make problems for me."
The president of Ajax, Donald Morel, also described
union picketing at his company's job sites.

He further testified

about an incident in July 2003 in which about "fifty union iron
workers stormed" one of his job sites in downtown Boston at 85 New
Market Street, threatening Ajax laborers as not "belong[ing] in
downtown."

Fights broke out and property was damaged, but no one

was ever held responsible for the incident. As of the time of
trial, Ajax had not worked in downtown Boston since that incident.
At times, the developing hostilities in the erector
labor market ensnared neutral steel fabricators.

John Paulding of

Cape & Island Steel, a fabricator company, testified that Local 7
had pressured him on several occasions to award bids to union
signatories,

rather

than

to

nonunion

erector

companies.

He

described his first meeting with Eddie Wright, a former president
of Local 7, in the early 1990s after Paulding had awarded a job to
a nonunion company.

Wright "let [him] know [that] the project

needed to go union," and Paulding responded that he "couldn't
afford" to carry the "additional costs."

After pressure from

Wright and the general contractor, Paulding retained a union
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signatory

for

the

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job.

Date Filed: 02/25/2016

Still,

Paulding

continued

Entry ID: 5980213

to

use

nonunionized laborers at future job sites while also continuing to
feel the heat from Local 7 representatives who at times threatened
to picket in order to "stop the job."
In

2003,

Paulding

again

was

approached

by

Local

7

representatives, who told him that they "wanted a lot of work for
their people" and that "there [were] opportunities out there with
target money."

They explained that target money would be provided

to the union "installers . . . to give them a leg up on the job"
and that "it would ultimately . . . help [Paulding's company] win
work."

"[I]t actually never quite worked like that," Paulding

explained, "it was sort of a mystery to me, the target fund money,
because it was always promised how much it could do for me, but it
never really did a thing for me."

Paulding continued to resist

the union's pressure but acknowledged that there came a time when
his company only hired union signatories for all erector work in
Boston except for smaller jobs lasting only one or two days.
Another steel fabricator, Ann Gavin of FAMM Steel, also
testified about pressure to subcontract with union signatories
that her company experienced, more directly from owners and general
contractors.

Gavin testified that there were several instances in

which the general contractor or owner would require her to replace
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the nonunion erector at the site with a union signatory.

She

testified, "[M]ost of them were Stop & Sho[p] [supermarkets], . .
. depending upon what happened with the union, they would change
their mind." "We would put the nonunion erector on notice, because
in some cases they had mobilized cranes and . . . were at the site
and had done the initial work in the field before the union erector
came on board.

So we had to get costs for them.

cancel them and walk away."

We couldn't just

Gavin estimated that the same pattern

occurred "[p]robably half a dozen [times] . . . if we're talking
just

about

Stop

participation

in

&

Shops."

deciding

She
"to

acknowledged

make

a

change"

her

company's

and

cancel

a

subcontract commitment due to "pressure or . . . an incentive being
offered"; "[i]t was an abuse.

It was unethical what we did."

This general gloss informed more particular evidence and
testimony that was submitted with respect to four job sites where
fabricators

cancelled

subcontracts

with

DFM

and

Ajax

during

project kickoff and replaced them with union signatories despite
a higher subcontract cost.

We review events surrounding these

projects in chronological order.
Cardi's Furniture
In the spring of 2002, plaintiff Ajax pursued erector
work on a project in Attleboro, Massachusetts for a commercial
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building, Cardi's Furniture, and was awarded the job by fabricator
FAMM Steel.

Having in hand a $370,000 purchase order for twelve

weeks of erector work, Ajax began the normal kickoff preparations.
Ultimately, however it was prevented from ever being able to start
the work.
During

kickoff,

Gavin

of

FAMM

Steel

received

some

"initial calls," advising her that "there were issues occurring at
the

site"--"something

contractor

relayed

to

was
her

up

with

that

the

he

union."

and

"considering going from open shop to union."

the

The

owner

general

now

were

When Ajax learned of

the trouble, Morel contacted Gavin "pretty much pleading with them
not to remove us."

Gavin told him that "it was beyond her control"

and that he "could call Mr. Cardi himself."
the owner on two occasions, to no avail:

Morel also spoke with

in the midst of project

kickoff, Gavin chose to cancel FAMM Steel's subcontract with Ajax
"to put a union erector on" the site.

FAMM Steel replaced Ajax

with Griffin Ironworks, a union signatory erector, at a higher
subcontract price.

Gavin acknowledged that "[i]t wasn't the first

time" that this occurred with Morel's company and she had been
"forced to change erectors."
Several entities, including three local union chapters
and Local 7, paid Griffin Ironworks $120,000 in "target money" for
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Cardi's

Furniture

job

Page: 17

in

Date Filed: 02/25/2016

order

to

reduce

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the

$570,000

replacement bid to $450,000--still a significantly higher cost
than the Ajax subcontract.

Griffin Ironworks began work in the

fall of 2002 and, after fifty percent completion, sent a letter to
Local 7 to request an installment of the promised payment.

The

December 2002 letter opens with the following, "Through a concerted
effort with the New England District Council and Griffin Ironworks,
Cardi's new furniture store was turned around from a nonunion
project to a union project."
Fox 25
The following year, in 2003, plaintiff DFM sought work
at a job site in Dedham, Massachusetts.

It submitted a quote to

fabricator Cape & Island Steel for the second construction phase
at a Fox 25 television facility, because the erector company that
"had done the job wasn't going to be there to finish it."

DFM and

Cape & Island Steel agreed to a purchase order of $18,000 for the
erector work for a new side entrance of the building.

Trouble

with Local 7 soon began.
Within days of DFM laborers arriving on site, a Local 7
business representative, Wright, "had words" with DFM laborers,
"questioning

[them]

being

on

the

site"

fabricator had brought DFM onto the job.
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and

upset

that

the

Wright also spoke with

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Paulding of Cape & Island Steel "about getting [DFM] off the site"
and "had conversations" with the general contractor. At some point
Wright called Paulding, "extremely upset that the project was
subcontracted by C&I Steel, Inc. to DFM," telling Paulding that
the job "was going union."

Paulding responded that his company

had solicited separate bids from both union and nonunion firms,
that Wright was unreasonable to expect continued negotiations with
unionized erectors, and that DFM had "a reasonable price and a
schedule that would work."

For the fabricator, "the schedule was

tight . . . we needed to get things rolling."
escalated.

Wright's ire

He told Paulding that DFM was "one of the companies

targeted by the Local 7 union," that "DFM should not be on this
project," and that "there will be a strike at Fox 25."

He also

warned Paulding that the union had put other companies out of
business before and that he planned to follow suit by "letting the
gorilla out of the cage" on both Cape & Island Steel and DFM.
The conversation continued.

Paulding reminded Wright

that his fabricator company had provided "millions of dollars in
revenue for union forces through the calendar year of 2002" and
"hoped

[for]

some

consideration

for

this

effort."

Wright,

nonetheless, strenuously insisted that "the union erectors had
been hurt as a result of [Cape & Island Steel's] subcontracting to
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DFM" which was "a big mistake."

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The discussion ended with Wright

telling Paulding that "DFM [had] been targeted by the union," that
the Fox 25 job "is a high-profile project," and that DFM's "nonunion forces should not be there"--he assured Paulding that "Local
7 would be striking this site continuously."
When Cape & Island Steel nevertheless "went forward with
DFM," union picketers arrived, causing the general contractor to
contact the fabricator about the union difficulties at the job
site.

DFM was asked to leave "until things got straightened out."

The nonunion laborers did so but later returned to work and found
that DFM's equipment and material had been damaged.

Pisani wrote

a letter to the fabricator, stating that DFM had been targeted
even though his employees were not interested in joining the union,
vandalism had occurred at the site, and his crew's safety needed
to be protected.

Receiving assurances, DFM laborers returned to

work.
Later, however, the fabricator sent Pisani a fax with
the following cover:

"Union BS from 'Edwin Wright' that I guess

we must live with."

The attached document summarized the phone

call

exchange

between

Paulding

and

Wright.

The

fabricator

dismissed DFM from the job and retained an erector company that
was considered friendly with the union.
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The replacement erector,

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however, worked at the site for only one week before Paulding
"called DFM back, hat in hand," because the new erector could not
meet the site needs.

DFM returned and finished the job.

Archstone Apartments
That summer, plaintiff Ajax pursued erector work on the
Archstone Apartments project in Watertown, Massachusetts.

It was

a "medium-sized," multi-phase project, expected to generate about
eight weeks of erector work.

Following the bidding process, Ajax

was awarded a $160,000 erector subcontract in June by fabricator
Mandate Erectors & Steel.

Ajax's project manager attended the

usual kickoff meetings, sequencing the job site but, again, Ajax
was never able to begin the erector work.
In early September, Local 7 sent out a "project alert"
on the Archstone Apartments project, and Morel of Ajax soon learned
from Ajax personnel of "a problem" with the union and that his
company was "going to lose the job."

After Morel had already

"earmarked the crane for the job and the people," he urged the
fabricator "to try and get the owner to stay with our contract."
His effort failed; the fabricator broke the subcontract and hired
a union signatory erector as a replacement.

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Brickworks
The following year, in the winter of 2004, plaintiff DFM
pursued erector work at a condominium construction project called
Brickworks in Cambridge, Massachusetts, at the site of an old brick
factory.

DFM was awarded the job by fabricator Capone Iron, an

$80,050 subcontract for five to six weeks of labor to begin in
November 2004.

During kickoff, DFM personnel met with the general

contractor to ensure that safety expectations, among other things,
were satisfied.

With the anticipation of union picketing, a "two-

gate system" was planned so that DFM laborers would enter the site
by a designated gate where the union could lawfully picket, and
other trade laborers would use a separate access gate.
In

mid-November,

however,

DFM

received

from

the

fabricator a packet of correspondence involving union efforts to
obtain

the

erector

work

at

Brickworks.

One

document

was

a

handwritten proposal from Bel-Lin Corporation, a union signatory,
showing a total bid of $115,200 for the Brickworks erector work.
The note reflected an original pricing of $136,000, reduced by
some $21,000--cast as a "good guy discount."

A second document

was a letter from Wright of Local 7 addressed to fabricator Capone
Iron, indicating that "Walter Belmonte [of union signatory BelLin Corporation] will cut $9,000" and Local 7 will use $12,000 in
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target money for a total of $21,000 as "concession and market
recovery."

The union letter requested that the fabricator send

the offer to the general contractor.

The last item in the packet

that the fabricator provided to DFM was a note from the project
manager

of

Capone

Iron

addressed

to

the

general

contractor,

stating: "Please see the attached documents from Local 7 Agent
Edwin Wright, run this up the flag pole and see who salutes it."
Ultimately, DFM did not begin the erector work because
the fabricator dismissed DFM from the job to give the erector work
to the selected union signatory. The December 3 dismissal letter
stated

in

part,

"[A]s

advised

during

our

recent

telephone

conversations and due to last-minute lobbying efforts by [Local
7,] Columbia Construction Company, the General Contractor, has
demanded that Union forces install the steel for the Brickworks
project." Citing the "for convenience" provision in the contract,
the

fabricator's

letter

cancelled

DFM's

installation

order,

stating: "We regret taking this action considering our long-term
relationship. Unfortunately, we have no other choice but to proceed
with this project utilizing a union subcontractor."
The

fabricator

acknowledged

that

DFM

"did

[not]

anything at all" to cause Capone to cancel the contract.

do

Less

than a week later, Capone Iron entered into a subcontract for
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$109,200 with Bel-Lin Corporation to perform the erector work for
the project.

Capone testified that it did not "make commercial

sense" to take a higher bid, but that the increased cost was paid
by the general contractor.
Despite the narrow prism of liability available to the
plaintiffs as a result of our holding in ASE I and the district
court's jury instructions, we have viewed the record as a whole
and hold that there was sufficient evidence to justify the jury's
findings.

After the plaintiffs entered into a subcontract with

each fabricator at each site, Local 7 targeted the mid-size to
larger project in order to seize the work from the prominent
nonunion erectors. While Local 7 had pressured fabricators before,
on

these

four

occasions

the

fabricators

responded

(albeit

reluctantly) to the site troubles by agreeing to cancel Ajax's and
DFM's subcontracts and to hire replacement union signatories. None
of the fabricators took this action for otherwise legitimate
business reasons, such as saving money or saving the job site from
deficient or untimely performance by Ajax or DFM.
replacement

subcontracts

cost

sometimes significantly so.

more

than

the

In fact, the

cancelled

ones,

And, on each occasion, the fabricator

took the counterintuitive action almost immediately after the
union had stirred up trouble on the site, and in the midst of
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kickoff,

when

any

Page: 24

potential

Date Filed: 02/25/2016

work

delays

particularly expensive proposition.

threaten

Entry ID: 5980213

to

be

a

The jury rationally could

have seen these circumstances as signifying a tacit agreement,
attributable to the coercion itself, between each fabricator and
Local 7 for a specific course of action:

oust the targeted

nonunion erector and hire a union signatory replacement for the
benefit of Local 7 in order to vitiate union obstacles that had
been causing project interference.
of

Teamsters,

Local

251,

691

See N.L.R.B. v. Int'l Broth.

F.3d

49,

57

(1st

Cir.

2012)

(determining whether an arrangement comprises an illegal § 8(e)
agreement

through

a

"holistic"

inquiry

into

all

surrounding

circumstances).
Local 7 protests this reading of the record and contends
that it was the general contractors or owners, rather than Local
7, who sought and secured agreements with each fabricator to cease
doing business with either Ajax or DFM at the four construction
projects.

No doubt there is evidence in the record that would

also support a jury finding that the fabricators principally acted
at the behest of the site owners and general contractors.

And

perhaps we, sitting as a factfinder in the first instance, might
have come to the same conclusion that Local 7 implores us to arrive
at on appeal.

But that is not our job.
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Here, the evidence is quite sufficient to infer that
Local 7 took a multi-pronged approach and applied pressure at
multiple points to achieve the maximum intended effect.

The fact

that direct evidence may show that pressure was applied to one
party does not somehow negate circumstantial evidence that shows
that pressure was applied to another party.
these

pressures

and

considering

whether

The task of weighing
these

facts,

in

the

aggregate, satisfied the jury instructions provided by the court
falls within the province of the jury, and we will only upset that
determination if no reasonable jury could have arrived at the same
conclusion.
Moreover,

this

Court's

repeated

and

unwavering

pronouncements of respect for a jury's credibility findings and
rational inferences are not merely appellate flourishes or rote
recitation.

The jury was entitled to rely upon industry context,

witness credibility, and other subtle cues in order to feel out
the true pulse of the case; a pulse that is oftentimes difficult
for this Court to detect through a cold stack of transcripts.
Testimonial references to "troubles," "issues," or "problems" do
not arise in a vacuum and may be considered within the broader
record, which is sufficient to show Local 7's exploitation of the

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"time-is-money"

pressures

Page: 26

present

Date Filed: 02/25/2016

during

kickoff

Entry ID: 5980213

and

the

interruption (or threatened interruption) of worksite activity.
Finally, we think the evidence is more than clear that
the pressure applied, and the agreements obtained, went well beyond
merely unseating the nonunion fabricator. The jury was well within
reason, based on the record, to find that the replacement erector's
union affiliation was not just a happy coincidence but rather a
necessary condition to mollify Local 7's demands.
Evidence

about

the

lawfulness

of

union

conduct,

especially at a common situs for primary and secondary employers,
often "will be conflicting and confused, and the inferences to be
drawn susceptible of more than one interpretation," the selection
of which is left to the factfinder.

Abreen Corp. v. Laborers'

Int'l Union, 709 F.2d 748, 755 (1st Cir. 1983).

It is the jury's

role to decide among competing, reasonable interpretations of the
evidence, and the record here allowed the path it took by a
preponderance of the evidence.
With Local 7's LMRA liability left in place,2 we turn to
the damages award.

2

We reject a number of both parties' subsidiary challenges.
First, we reject Local 7's evidentiary challenges to the record.
Local 7 first takes issue with Morel's brief testimony about union
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workers storming the construction site at 85 New Market Street in
July 2003, as irrelevant and highly prejudicial. See Fed. R. Evid.
404(b). We see no abuse of discretion where the July 2003 event
was close in time to the Archstone Apartments project and provided
context for the hostilities between the union and Ajax during the
relevant time period. Moreover, the event was explored briefly on
redirect, perhaps in response to a possible misimpression left by
defense counsel's cross-examination of Morel regarding an
unsuccessful NLRB charge against the union. The issue of unfair
prejudice is largely left to the district court, and we see no
abuse of discretion given that union intent was a highly contested
issue at trial.
Local 7's generic challenges to evidence of labor disputes,
including primary lawful picketing and secondary labor activity,
likewise fail. Despite the court's pretrial ruling allowing some
measure of "background" evidence, Local 7 points to no trial
objection in which it challenged testimony as out of bounds.
Additionally, the jury received instructions on the difference
between legal primary and illegal secondary union conduct, and
Local 7 gives us no reason to conclude that the jury was
inattentive to the careful line drawing it was called upon to do.
See Connolly v. Roden, 752 F.3d 505, 515 n.14 (1st Cir. 2014).
Next, we reject the plaintiffs' allegations that the district
court improperly foreclosed evidence at the LMRA trial of eleven
other construction sites and that the district court abused its
discretion in excluding four witnesses.
The district court
properly excluded information regarding the additional eleven job
sites based on insufficient evidence that Local 7 engaged in
threats, restraints, or coercion on any of these sites.
The
district court also properly exercised its discretion to exclude
four witnesses that it deemed to be inadequately disclosed by the
plaintiffs. The witnesses were not included in the plaintiffs'
Rule 26 statement and were only referred to on a handful of
occasions within a voluminous record.
Although the plaintiffs
contend that an amended Rule 26 statement is not necessary when
additional information has "otherwise been made known to the other
parties during the discovery process," Fed. R. Civ. P. 26(e)(1)(A),
the "mere mention of a name in a deposition or interrogatory is
insufficient to satisfy Rule 26(a)(1)(A)(i)," especially where, as
here, the case involves an expansive record and a multitude of
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2.

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Damages

The jury awarded Ajax $211,956.00 and DFM $78,757.60,
the precise amounts requested by plaintiffs' counsel.

Local 7

contends that the damages award is excessive and unwarranted by
the evidence for two reasons.

First, it argues that two-thirds of

the award is based on what it calls a "lost man hours" theory,
which amounts to a factual fiction in this case.

Second, Local 7

argues that the damages award amounts to a double recovery because
the plaintiffs were awarded their ordinary lost profits for the
job sites, as well as "lost man hours" costs which also included
a profit margin in the hourly wages calculus.

Rather than a new

trial on damages as urged below, Local 7 seeks remittitur here.
Assuming that remittitur is available in the context of this
appeal, we conclude that Local 7 fails to show sufficient cause
for disturbing the jury's damages award.
Great deference is accorded a jury's award of damages,
and the district court's decision to abide by the award is reviewed
for abuse of discretion.

See Loan Modification Group, Inc. v.

Reed, 694 F.3d 145, 154 (1st Cir. 2012); Rodríguez-García v.
Miranda-Marín, 610 F.3d 756, 765 (1st Cir. 2010).

"[T]he jury is

individuals, see, e.g., Lujan v. Cabana Mgmt., Inc., 284 F.R.D.
50, 72 (E.D.N.Y. 2012).
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free to select the highest figures for which there is adequate
evidentiary support," Reed, 694 F.3d at 154 (internal quotation
marks omitted), as long as the figure remains in the "universe of
acceptable awards," Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148,
1162 (1st Cir. 1996).

In the end, we will not disturb a jury's

damages

it

award

unless

is

"grossly

excessive,

inordinate,

shocking to the conscience of the court, or so high that it would
be a denial of justice to permit it to stand."

Reed, 694 F.3d at

154 (internal quotation marks omitted).
The district court instructed the jury that it may award
compensatory

damages,

meaning

"lost

profits,

both

actual

and

reasonably anticipated but for the effect of the boycott, and any
uncompensated out-of-pocket expenses a plaintiff incurred because
of the defendant's wrongful contact."

It admonished the jury not

to speculate or otherwise guess when deciding damages but to use
common sense and deduce from the evidence an award that "fairly
and reasonably compensate[s] a plaintiff for the full extent of
its losses," without "understat[ing] [or] exceed[ing] compensation
for the entire injury."

The court further explained that "a

plaintiff has a continuing duty to mitigate his damages by seeking
out

suitable

substitute

replacement

work

where

there

is

the

opportunity to do so." Ultimately, the jury awarded the plaintiffs
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both ordinary lost profits and damages associated with "additional
manpower costs" for keeping the displaced workforce employed.
The portion of the awards first deemed excessive by Local
7 amounts to $89,600 for Ajax and $45,760 for DFM.

According to

Local 7, because the plaintiffs elected to put their displaced
laborers to work at alternative job sites, they continued to
receive an economic benefit from their labor force, leaving their
costs theory unsubstantiated on the record.

This argument assumes

that the displaced laborers must have been actually idle in order
for each company to have experienced tangible financial losses
aside from lost profits.
compelled

a

generated

profits

reassigned.

finding
at

that
the

It also assumes that the evidence
the

plaintiffs'

alternative

site

ousted
where

workforce
they

were

Local 7, however, both misunderstands the nature of

the "additional manpower costs" requested and unduly restricts the
impact of the evidence presented.
Steel erector companies often schedule several jobs
simultaneously and in immediate succession in order to prevent
their labor force from becoming idle.

The evidence allowed a

reasonable inference that any alternative work sites where the
plaintiffs' displaced crews were reassigned already had fixed
profit returns under a fixed subcontract.
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The jury could have

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concluded

rationally

that

Page: 31

readily

Date Filed: 02/25/2016

securing

true

Entry ID: 5980213

replacement

erector work in the steel market for the plaintiffs' displaced
erector workforce was nearly impossible on short notice, and that
keeping the individuals employed meant carrying the costs of their
wages, as well as taking on costs of other business inefficiencies
in a time-is-money industry, without the benefit of any additional
income.

See Kerry Coal Co. v. United Mine Workers, 637 F.2d 957,

966 (3d Cir. 1981) (evidence showing "a reasonable basis" for a
causal relationship between damages requested and the union's
unlawful conduct is all that is required to sustain the damages
award).

Accordingly, we cannot say on this record that the

plaintiffs' estimation of "additional manpower costs" during the
time

related

to

the

cancelled

subcontracts

generated

grossly

excessive damages.
In making their double recovery argument, Local 7 points
to the profit margin built into the hourly wage calculus used for
the costs theory.

Assuming, without deciding, that this issue is

preserved for appellate review, Local 7's brief argument again
fails.
While the record shows the possibility of some overlap,
it does not necessarily demonstrate that a double recovery was
incorporated in the hourly wage calculus beyond actual wages paid.
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Not only did the plaintiffs pay the base wages for the displaced
laborers, but Pisani testified about the "scrambling" that was
required

after

subcontract.

the

sudden

loss

of

a

significant

erector

The jury reasonably could have inferred that both

companies faced similar circumstances common to the industry and
that the costs attributable to these business inefficiencies were
absorbed by both plaintiffs here and were thus recoverable as costs
beyond actual wages paid to the reassigned workers.

Cf. Landstrom

v. Chauffers, Teamsters, Warehousemen and Helpers Local No. 65,
476 F.2d 1189, 1195 (2d Cir. 1973) (remanding for new trial on
damages where "[t]he most that was shown is a lost gross profit,
but not a loss of net income").

Also, Local 7 makes no effort to

reckon with the evidence, from which plaintiffs' counsel argued to
the jury, that the financial hit taken by DFM and Ajax reduced in
some measure reasonably expected future profits by diminishing
their ability to reinvest in their companies for competitive
growth.
After

reviewing

the

record,

we

conclude

that

the

district court did not abuse its discretion in upholding the LMRA
damages award as a fair estimate of compensable harm.
addition

to

the

LMRA

liability

verdict,

withstand Local 7's appellate challenges.
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the

Thus, in

damages

awards

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B.

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Antitrust Law Claims

The district court entered summary judgment for Local 7
on

the

plaintiffs'

antitrust

claims,

concluding

that

the

plaintiffs' evidence failed to give rise to antitrust liability as
a matter of law.
Because

the

The plaintiffs now appeal this determination.

plaintiffs'

claim

bobs

at

the

crosscurrents

of

antitrust liability and labor rights, we must carefully navigate
conflicting statutory directives and cut a course as close to
congressional intent as we can.
The Sherman Act protects against unlawful impairments to
competition, not to individual competitors.

See Atl. Richfield

Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990); Sterling
Merch., Inc. v. Nestle, S.A., 656 F.3d 112, 121 (1st Cir. 2011).
If a party drives down the cost of its products in the hopes of
pummeling a less-efficient competitor into submission, we do not
permit the competitor to reach for relief through an antitrust
claim.

Doing so would thwart the very purposes of the antitrust

laws:

encouraging efficiency, lowering costs, and increasing

output. As such, claims under the Sherman Act require care because
overly interventionist enforcement could backfire and dampen the
competitive spirit that the laws were intended to foster and
protect.
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Here, the plaintiffs allege violations of Section 1 and
Section 2 of the Sherman Act.

Section 1 of the Act prohibits

unreasonable restraints of trade or commerce through contracts,
combinations, or conspiracies; it thus applies only to concerted
action that unreasonably restrains trade.

15 U.S.C. § 1; see Am.

Needle, Inc. v. Nat'l Football League, 560 U.S. 183, 189-90 (2010).
Section 2 forbids monopolization, attempted monopolization, and
conspiracies to monopolize any part of trade or commerce.
U.S.C. § 2.

15

The latter "covers both concerted and independent

action" which "monopolizes" or "threatens actual monopolization"-"a category that is narrower than restraint of trade."

Am.

Needle, 560 U.S. at 190 (internal quotation marks and brackets
omitted).
In evaluating such claims under the Sherman Act, one of
the

first

considerations

a

court

appropriate framework for its review:
rule of reason.

faces

is

determining

the

per se, "quick look," or

Admittedly, this decision requires putting the

cart before the horse to some extent, since the court must engage
with the functional and factual contents of the claim in order to
decide how it will proceed to evaluate that claim.
Under

Section

1,

for

example,

"certain

kinds

of

agreements will so often prove so harmful to competition and so
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rarely prove justified that the antitrust laws do not require proof
that an agreement of that kind is, in fact, anticompetitive in the
particular circumstances.
per se."

An agreement of such a kind is unlawful

NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 133 (1998)

(internal citations omitted).

When faced with an agreement of

this rare species, such as a horizontal price-fixing or a marketdivision agreement, see id., plaintiffs can demonstrate Section 1
liability "without need for proof of power, intent or impact,"
Stop & Shop Supermarket Co. v. Blue Cross & Blue Shield of R.I.,
373 F.3d 57, 61 (1st Cir. 2004). See Leegin Creative Leather
Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007) (noting that
only those restraints "that would always or almost always tend to
restrict

competition

and

decrease

output,"

or

those

with

"manifestly anticompetitive effects and [that] lack any redeeming
virtue," may be deemed per se illegal (internal quotation marks
and ellipses omitted)).
If the agreement in question does not quite fit the bill
of

per

se

liability,

but

nonetheless

would

seem

to

have

an

anticompetitive effect on customers and markets to "an observer
with even a mere rudimentary understanding of economics," F.T.C.
v. Actavis, Inc., 133 S. Ct. 2223, 2237 (2013) (internal quotation
marks omitted), the district court might opt to take a "quick look"
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at preliminary evidence.

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Under this purgatorial standard, the

agreement is not subject to immediate per se condemnation and may
yet ascend to a full rule-of-reason review. "[Q]uick-look analysis
in effect" shifts to "a defendant the burden to show empirical
evidence of procompetitive effects."
526 U.S. 756, 775 n.12 (1999).

Cal. Dental Ass'n v. F.T.C.,

Such a preliminary evaluation may

be appropriate where the agreement seems anticompetitive at first
glance, but the competitive justification offered by the defendant
appears plausible or the agreement arises in a unique or unfamiliar
context.

See id. at 770.
The vast majority of agreements, however, need only be

found to constitute a "reasonable" restraint of trade after a rule
of reason analysis to avoid Section 1 liability.

As the Supreme

Court has made clear, "the Sherman Act's prohibition of '[e]very'
agreement in 'restraint of trade,' 26 Stat. 209, as amended, 15
U.S.C. § 1, prohibits only agreements that unreasonably restrain
trade."

NYNEX, 525 U.S. at 133.

Because all agreements "restrain

trade" in some respect, Section 1 only prohibits "those classes of
contracts or acts which the common law had deemed to be undue
restraints

of

trade

and

those

which

conditions would make unreasonable."

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new

times

and

economic

Klor's, Inc. v. Broadway-

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Hale Stores, Inc., 359 U.S. 207, 211 (1959) (citing Standard Oil
Co. of N.J. v. United States, 221 U.S. 1, 59-60 (1911)).
The "[r]ule of reason analysis typically requires a
plaintiff to show that the defendants' actions enhanced market
power--i.e., the power to raise prices or exclude competition-which in turn requires some economic analysis of the relevant
market."

Diaz Aviation Corp. v. Airport Aviation Servs., Inc.,

716 F.3d 256, 265 (1st Cir. 2013). This demanding calculus compels
an antitrust plaintiff to show, inter alia, "that the alleged
agreement involved the exercise of power in a relevant economic
market,"

and

"that

this

exercise

consequences." Stop & Shop, 373 F.3d at 61.

had

anti-competitive

For exclusive dealing

arrangements, "foreclosure levels are unlikely to be of concern
where they are less than 30 or 40 percent . . . low numbers make
dismissal easy."

Sterling Merch., 656 F.3d at 123-24 (internal

quotation marks omitted).
Of course, in order to evaluate whether an agreement
truly deserves the fatal per se label, or instead merits a more
nuanced quick-look or rule-of-reason review, courts are obliged to
"seek the central substance of the situation."
U.S. at 191.

Am. Needle, 560

This usually involves careful delineation of the

parties' horizontal and vertical relationships.
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For example, the

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plaintiffs here advance a "group boycott" theory of liability.
Under a group boycott theory, "[a] violation of section 1 may well
occur when a group of independent competing firms engage in a
concerted refusal to deal with a particular supplier, customer, or
competitor."

Gonzalez-Maldonado v. MMM Healthcare, Inc., 693 F.3d

244, 249 (1st Cir. 2012) (citing Klor's, 359 U.S. at 212).
boycott

arrangement

violation[]."

"sometimes

[is]

called

Stop & Shop, 373 F.3d at 61.

[a]

A group
per

se

We have cautioned,

however, that the "rhetoric of older group boycott cases" cannot
be "taken at face value," and that any per se group boycott "label"
is "minimally useful."

Id. at 61, 63-64.

This is because

"precedent limits the per se rule in the boycott context to cases
involving horizontal agreements among direct competitors."

NYNEX,

525 U.S. at 135.
Horizontal
competitors

at

the

restraints
same

level

are
of

"agreements

market

structure,"

between
whereas

vertical restraints are "combinations of persons at different
levels

of

market

distributors."

structure

such

as

manufacturers

and

M & H Tire Co., Inc. v. Hoosier Racing Tire Corp.,

733 F.2d 973, 978 (1st Cir. 1984) (internal quotation marks
omitted).

For example, the vertical chain in this case runs from

the laborers to the erectors, from the erectors to the fabricators,
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and from the fabricators to the general contractors.

Entry ID: 5980213

Meanwhile,

the nonunion erector companies compete on the same horizontal plane
as

the

union-signatory

erector

companies,

with

each

erector

company (whether union or nonunion) competing for bids against
every other erector company (whether union or nonunion).
As if our framework for analysis were not convoluted
enough, we are faced here with an antitrust claim lodged against
a labor organization.

Because the labor laws accord specific

protections and rights to unions, there are qualifications and
carve-outs that must be considered before we proceed.
As we noted in ASE I, "there is an inherent tension
between

national

antitrust
national

policy,

which

seeks

labor

policy,

to

competition,

and

cooperation

among

employment."

536 F.3d at 76 (quoting H.A. Artists & Assocs., Inc.

workers

to

improve

which

maximize

the

encourages

conditions

v. Actors' Equity Ass'n, 451 U.S. 704, 713 (1981)).

of

Whereas

antitrust laws protect the consumer at the expense of individual
market participants with a singular focus on price and output,
labor laws protect the livelihood of the employee on the other end
of the long chain of production and consumption.

The courts have

sought to reconcile these competing directives via two labor

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exemptions

from

the

Page: 40

antitrust

Date Filed: 02/25/2016

laws,

one

Entry ID: 5980213

statutory

and

one

nonstatutory.
The statutory exemption stems from the Supreme Court's
attempt to harmonize the goals of the Sherman, Clayton, and NorrisLaGuardia Acts.

Id.

"Reading the three statutes together, the

Supreme Court held that union activity is exempt from antitrust
liability 'so long as [the] union acts in its self-interest and
does not combine with non-labor groups.'"

Id. (quoting United

States v. Hutcheson, 312 U.S. 219, 232 (1941)).
Yet, this exemption, while helpful in protecting the
organization

of

union

activity

itself,

did

not

adequately

encompass the need to protect legitimate collective bargaining
activity from antitrust liability.

This is because such activity

necessarily "constitute[s] a combination between labor unions and
non-labor employers."

Id. at 77.

In ASE I, for example, we

pointed out that the CBA (and the MRP) clearly could not qualify
for the statutory exemption because it represented a combination
between Local 7 (labor) and the signatory contractors (non-labor).
Id.
Thus, the Supreme Court has recognized "that a proper
accommodation between the congressional policy favoring collective
bargaining under the NLRA and the congressional policy favoring
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free competition in business markets requires that some unionemployer agreements be accorded a limited nonstatutory exemption
from antitrust sanctions."

Connell Const. Co. v. Plumbers &

Steamfitters Local Union No. 100, 421 U.S. 616, 622 (1975).

This

nonstatutory exemption "shields some restraints on competition
imposed

through

the

bargaining

process,

where

the

alleged

anticompetitive conduct is anchored in the collective-bargaining
process, concerns only the parties to the collective bargaining
relationship,

and

relates

to

wages,

hours,

conditions

of

employment, or other mandatory subjects of collective bargaining."
ASE I, 536 F.3d at 77 (citing Brown v. Pro Football, Inc., 518
U.S. 231, 250 (1996)).
It is within this detailed framework that our evaluation
of the plaintiffs' antitrust claims begins.

We described the

plaintiffs' antitrust claims in ASE I as asserting a "conspiracy
between

Local

7

and

its

signatory

contractors

to

pressure

fabricators to hire only union employers, through a combination of
threats, disruptive behavior, and MRP subsidies."

Id. at 74.

The

plaintiffs had "paint[ed] the MRP as only one part--if the central
part--of

a

wider

conspiracy

between

Local

7,

its

signatory

contractors, and the general contractors and steel fabricators
from which they solicit steel erection work, to shut open-shop
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outfits such as Plaintiffs out of the steel erection market in the
greater Boston area."

Id. at 80.

Although we ultimately held

that Local 7's alleged conduct in combination with the signatory
erectors was not protected by the statutory labor exemption, we
remanded

for

further

fact-finding

nonstatutory exemption applied.

to

determine

Id. at 78-81.

whether

the

We reserved any

opinion on the merits of the plaintiffs' antitrust claims.

See

id. at 76 n.6.
On remand, the district court resolved the antitrust
issues after the jury's verdict on the LMRA claims.

While ruling

that the illegal § 8(e) agreements could not enjoy the protections
of the nonstatutory exemption, the court concluded that summary
judgment for Local 7 was still warranted.
at 247, 252.

Its reasoning:

ASE II, 932 F. Supp. 2d

the plaintiffs had "failed to

demonstrate an unlawful anticompetitive effect of any aspect of
Local 7's accused conduct."

Id. at 252.

We review this judgment

de novo and may affirm on any ground made manifest in the record,
untethered to the district court's rationale.

See Euromodas, Inc.

v. Zanella, Ltd., 368 F.3d 11, 16 (1st Cir. 2004).
Before us now, the plaintiffs argue that the court
erroneously focused only on the four § 8(e) agreements, and thus
failed to abide by our directive in ASE I to consider the "entirety
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of the alleged activity" in the industry as a whole.
80.

Entry ID: 5980213

536 F.3d at

Given a wider field of vision, they argue, the record shows

that the defendant is guilty of "conspiracies to monopolize, group
boycott, and horizontal monopoly."

We have attempted to piece

together these claims to the best of our ability given the rather
murky briefing, but we cannot find that antitrust liability exists
on the facts and theories presented.3
1.

Section 1 Group Boycott

The plaintiffs initially attempt to circumvent a typical
rule of reason analysis by incanting the magic, per se words of
"group boycott."

But, the plaintiffs' attempt to twist the record

into reflecting a per se violation is unavailing.

As discussed

above, "precedent limits the per se rule in the boycott context to
cases involving horizontal agreements among direct competitors."
NYNEX, 525 U.S. at 135.

As such, plaintiffs' allegations of

questionable vertical arrangements, whether between Local 7 and
fabricators or Local 7 and general contractors, do little to
advance their claim to per se treatment.
generate

per

se

antitrust

liability,

In order to potentially
Local

7's

vertical

3

To the extent the plaintiffs fault the district court for
declining to engage in a free-ranging review of the defendant's
behavior and conjure coherent claims into existence on the
plaintiffs' behalf, we certainly find no error.
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relationships would at least need to intersect with or give rise
to an unlawful horizontal relationship.

Cf. MM Steel, L.P. v. JSW

Steel 7 (USA) Inc., 806 F.3d 835 (5th Cir. 2015); United States v.
Apple, Inc., 791 F.3d 290 (2d Cir. 2015).

Here, there is no such

horizontal arrangement to speak of.
To the extent the plaintiffs claim that there is any
horizontal conspiracy among the fabricators as a class or the
general contractors as a class to shut nonunion erectors out of
bidding opportunities, there is no such evidence in the record.
Despite isolated instances of nonunion erectors being removed from
jobs, there was no evidence of any horizontal agreement among
general

contractors

or

among

fabricators

to

foreclose

the

plaintiffs from the structural steel erection market at Local 7's
request.

Compare Klor's, 359 U.S. at 208-09 (holding boycott

unlawful when appliance manufacturers and distributors agreed that
distributors would not sell to one retailer at another retailer's
request) with NYNEX, 525 U.S. at 133, 136-37 (antitrust rule that
group boycotts are illegal per se did not apply to a single buyer's
decision to favor "one seller over another, albeit for an improper
reason" because the combination involved only a vertical agreement
and a vertical restraint depriving a supplier of a potential
customer).
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To the contrary, the fabricators' testimony evinced a
willingness and desire to work with the nonunion erectors, and
there appeared to be no general, horizontally consistent scheme of
market

foreclosure.

One

witness

described

DFM

and

Ajax

as

"extremely large" and "prominent" in the steel erection industry
during the pertinent time frame.

Pisani started DFM in the early

1990s, and the company gained stability with about twenty-five
employees, primarily working in Rhode Island and Massachusetts.
By the middle of the next decade, DFM had grown to about 110-120
employees and $13 million in sales.

First entering the industry

in the 1970s, Ajax had varying employee numbers over time, ranging
from thirty to 120.

Its business territory covered much of New

England, including Massachusetts, Connecticut, New Hampshire, and
Rhode Island.

Ajax and DFM, as well as other named plaintiffs,

regularly entered into subcontracts with various fabricators.
Nor does one find any meaningful evidence of unlawful
horizontal conspiracy among the signatory erector firms.
extent

the

plaintiffs

bemoan

the

operation

of

the

To the
MRP

in

conjunction with signatory erector firms, there can be little doubt
that this program was part and parcel of the CBA protected from
antitrust scrutiny by the nonstatutory exemption.
clearly

"anchored

in

the

The MRP was

collective-bargaining

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process,

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concer[ned]
relationship,

only

the

and

Page: 46

parties

relat[ed]

to

to

Date Filed: 02/25/2016

the

wages,

collective
hours,

Entry ID: 5980213

bargaining

conditions

of

employment, or other mandatory subjects of collective bargaining."
ASE I, 536 F.3d at 77 (citing Brown, 518 U.S. at 250).

As we

mentioned in ASE I, such agreements, as a general matter, have
been widely upheld.
Beyond
plaintiffs'

Id. at 79-80.

this

point

accusations

of

of

wage

agreement,

horizontal

however,

conspiracy

among

the
the

signatory erectors ring hollow on this record, especially in light
of the rigorously enforced Section 1 demands for sufficient proof
of concerted conduct.

See Am. Needle, 560 U.S. at 190 n.2; Fisher

v. City of Berkeley, 475 U.S. 260, 266 (1986); White v. R.M. Packer
Co., 635 F.3d 571, 576 (1st Cir. 2011).

While it remains true

that "[o]ne group of employers may not conspire to eliminate
competitors from the industry and the union is liable with the
employers if it becomes a party to the conspiracy," United Mine
Workers of Am. v. Pennington, 381 U.S. 657, 665-66 (1965); see
also Allen Bradley Co. v. Local Union No. 3, Int'l Bhd. of Elec.
Workers, 325 U.S. 797, 800 (1945), sufficient proof of concerted
anti-competitive

action

among

independent

business

remains necessary to state a successful Section 1 claim.

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In the end, evidence of conduct by the union erector
signatories as market participants that remains ambiguous as to
whether the actors have engaged in an illegal antitrust conspiracy,
as opposed to independent action or conscious parallelism, is
insufficient to survive summary judgment.
577 & n.5; Euromodas, 368 F.3d at 19.

See White, 635 F.3d at

After careful review of the

record, we conclude that the plaintiffs' evidence fails to clear
this hurdle and that any purported tacit horizontal agreement among
union signatory erectors remains illusory.

See Euromodas, 368

F.3d at 18 (noting that antitrust plaintiffs bear the burden "to
make at least a prima facie showing of concerted action" with "an
illicit objective").
Beyond the bare wage agreement and operation of the MRP,
which are protected from antitrust scrutiny under the nonstatutory
exemption, each company acted as its own profit-maximizing entity
pursuant to its own economic interest when seeking to win a
fabricator's favor with the lowest erector bid, whether competing
against a nonunion firm or another union signatory.

Each union

signatory erector formulated its own bid either with assurances of
an MRP subsidy or by taking a corresponding cut in profits to
account for nonunion bidders who were not bound to CBA wages.
There is no evidence that the union signatories relinquished
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independent,

competitive

Page: 48

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decision-making

when

Entry ID: 5980213

receiving

blast

faxes and opting to submit a bid on the projects targeted by Local
7 or when later entering into a JTF agreement with the union for
a winning bid.

Rather, the evidence tends to show that the

hundred-plus signatory erectors remained independently profitdriven in their respective bidding decisions--with or without the
promised subsidy.
This precludes us from holding that the instant case
falls within a category of "what may be called a group boycott in
the strongest sense:

A group of competitors[, i.e., signatory

erectors,] threaten[ing] to withhold business from third parties[,
i.e., fabricators or general contractors,] unless those third
parties would help them injure their directly competing rivals[,
i.e., nonunion erectors]."

NYNEX, 525 U.S. at 135; see also

Fashion Originators' Guild of Am., Inc. v. F.T.C., 312 U.S. 457
(1941) (applying per se liability to an agreement among clothing
designers,
clothes

manufacturers,

to

retailers

and

who

suppliers
bought

to

clothes

withhold
from

selling
competing

manufacturers and suppliers).
Without unlawful agreement among participants at any
given horizontal plane, a Section 1 claim cannot fall within the
narrow category of per se unlawful group boycott agreements.
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Because the plaintiffs failed to demonstrate any agreement among
general contractors, any agreement among fabricators, or any nonwage-based agreement among signatory erectors,4 the plaintiffs'
group boycott theory of antitrust liability fails.

4

The plaintiffs continue to allege that the wage-based
agreement among and between the signatory erectors and Local 7
cannot be sheltered from antitrust scrutiny because it involved
taking deductions from laborer wages and providing contractor
subsidies on public projects in violation of the Davis-Bacon Act,
40 U.S.C. §§ 3141-3148. See ASE I, 536 F.3d at 74; see id. n.5
(providing contours of Davis-Bacon Act). In ASE I, we recognized
that "the MRP may very well violate the Davis-Bacon Act" to the
extent it draws deductions from public projects or offers subsidies
to contractors to win public projects.
Id. at 81.
We also
recognized, however, that the plaintiffs themselves had not
pursued, and likely could not pursue, a cause of action under the
Davis-Bacon Act. Id. We left it to the plaintiffs on remand to
flesh out their theory. In the final analysis, we do not believe
that the plaintiffs have successfully landed their "acrobatic
attempt to shoehorn a possible Davis-Bacon violation into their
antitrust claims." Id.
"The Davis–Bacon Act was originally enacted in 1931 as a
'minimum wage law designed for the benefit of construction workers'
which 'protects . . . employees from substandard earnings by fixing
a floor under wages on Government projects.'" Int'l Bhd. of Elec.
Workers, Local 357, AFL-CIO v. Brock, 68 F.3d 1194, 1199 (9th Cir.
1995) (quoting United States v. Binghamton Constr. Co., 347 U.S.
171, 177–178 (1954)). "When Congress enacted the Davis-Bacon Act,
it intended to remove labor as [a] competitive element." In the
Matter of: Bldg. & Constr. Trades Unions Job Targeting Programs,
WAB Case No. 90-02, 1991 WL 494718, at *1 (June 13, 1991).
When an otherwise-lawful MRP is utilized on such public
projects, however, the funds deducted from the Davis-Bacon
projects are used "as subsidies on private sector projects," and
the prevailing wage surveys might thereby become "distorted to the
extent the subsidy was distributed to [a] contractor on a private
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Section 1 Vertical Restraints

This leaves us with the plaintiffs' attack on Local 7's
alleged vertical arrangements with individual signatory erectors,
fabricators, and general contractors.

Assuming that, from our

labor analysis above, at least four vertical agreements exist, the

sector project." Id. at *6. "Over time, the government would pay
more on Davis-Bacon . . . projects than the actual area wage rate,
a result clearly outside the public interest and definitely not
contemplated by the Congress which enacted Davis-Bacon." Id.
Although the recycling of wages through fixed-wage public
projects and competitive private projects via the MRP may
ultimately have an anticompetitive effect, this outcome is
partially a result of the Davis-Bacon Act's anticompetitive
prevailing wage mechanism. In other words, the plaintiffs' frontal
assault on the MRP seems to necessarily entail a collateral,
predicate attack on the Davis-Bacon Act itself.
Thus, while we agree that Congress presumably did not intend
to permit such deductions under the Davis-Bacon Act, we find it
equally unlikely that Congress intended the Sherman Act to provide
the remedy that the plaintiffs request. See ASE I, 536 F.3d at 81
(noting that "Reich and its progeny do not appear to stand for the
proposition that a Davis-Bacon violation exposes an otherwise
exempt job targeting program to antitrust liability"). Allowing
particular deductions or subsidies that violate Davis-Bacon to
eviscerate the categorical protections provided against Sherman
Act liability would radically alter the careful balance struck
between labor rights and antitrust liability.
That is not to say that a theory of liability more tailored
to the specific offending characteristics or applications of the
MRP might not allow for antitrust scrutiny. Rather, it is simply
to say that the plaintiffs' broadside attack on the nonstatutory
exemption fails. The plaintiffs have attempted to pin antitrust
liability on the MRP as a whole, but we think the tail fails to
find the donkey.
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plaintiffs allege a wider pattern of exclusive dealing between
Local 7 and fabricators or Local 7 and general contractors.
Yet, this basis for antitrust liability also fails.
First, to the extent any given fabricator or contractor replaced
a nonunion erector with a union erector for improper reasons and
in the face of higher costs, this alone is insufficient to prevail
on an antitrust claim.

See NYNEX, 525 U.S. at 136-37 (noting that

"[t]he freedom to switch suppliers lies close to the heart of the
competitive process" and that applying per se liability to a
buyer's decision to switch suppliers, even "though not made for
competitive reasons, . . . would transform cases involving business
behavior that is improper for various reasons . . . into trebledamages antitrust cases").
Second, any vertical agreements struck by the union are,
on this record, insufficient to survive the district court's
summary judgment.
with

exclusionary

liability.

That is not to say that vertical agreements
components

can

always

escape

antitrust

In Connell Construction, for example, a local union

entered two sets of agreements: (1) a multiemployer bargaining
agreement with a "most favored nation" clause that promised in
essence to eliminate competition between all signatory mechanical
trade subcontractors and any other subcontractors that the union
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might organize, and (2) a series of parallel, vertical agreements
with general contractors that prohibited the general contractor
from using any subcontractor that did not have an agreement with
the union.

421 U.S. at 619, 623-25.

Thus, the union's agreements

with general contractors not only reached beyond the laborers'
primary

employers,

but

also

made

nonunion

subcontractors

completely ineligible to compete for a substantial portion of all
available work and imposed an anticompetitive restraint on the
business

market

that

was

not

limited

to

the

elimination

competition over wages and working conditions.

of

Id. at 625.

Without deciding whether the union's vertical agreement with the
general contractor actually violated the Sherman Act, the Supreme
Court held that the agreement could provide the basis for a federal
antitrust suit and remanded the case.

Id. at 637.

Simply put, however, this case is no Connell.

In the

absence of evidence that Local 7 entered into a systemic or
interlocking set of vertical exclusive dealing agreements with
third-party

neutrals

plaintiffs'

access

to

so
a

as

to

effectively

significant

portion

foreclose
of

the

competitive

opportunities in the market for structural steel erection, we
cannot disagree with the district court's decision to dispose of
the antitrust claims on summary judgment.
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To the extent Local 7 can be said to have entered into
a

handful

of

project-by-project

vertical

"exclusionary"

agreements, the district court properly noted that such agreements
are usually adjudged under the rule of reason.

See Leegin, 551

U.S. at 907; Cont'l Television v. GTE Sylvania, 433 U.S. 36, 59
(1977).

A rule of reason analysis "requires a burdensome multi-

part showing: that the alleged agreement involved the exercise of
power in a relevant economic market, that this exercise had anticompetitive consequences, and that those detriments outweighed
efficiencies or other economic benefits."

Stop & Shop, 373 F.3d

at 61.
But, generally speaking, to make out a claim of exclusive
dealing under the rule of reason, the plaintiffs would need to
show that they were foreclosed from competing in a substantial
portion of the relevant market.

See id. at 68 ("For exclusive

dealing, foreclosure levels are unlikely to be of concern where
they are less than 30 or 40 percent."); ZF Meritor, LLC v. Eaton
Corp., 696 F.3d 254, 303 (3d Cir. 2012) (holding that parallel
long-term agreements between a single, upstream supplier and all
downstream purchasers that contained exceedingly high marketpenetration-target rebates constituted de facto exclusive dealing
agreements and were, in the aggregate, anticompetitive under the
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rule of reason).
found

that

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Based on the trial record, the district court

spending

in

the

relevant

market

"has

exceeded

$200,000,000 each year since 1999" and that the four opportunities
foreclosed "constitute only a fraction of a percent of the defined
market, nowhere near the percentage impact necessary to make out
an exclusionary claim under the rule of reason."5
Supp. 2d at 248.

ASE II, 932 F.

Rather, the district court found that the

plaintiffs were not "shorn of the ability to remain as competitors
in the market" and that there was "no evidence that they were
excluded from bidding on other jobs."

Id. at 249.

To overcome this factual inconvenience, plaintiffs argue
that the four deprivations presented at trial are illustrative of
a broader pattern of exclusion from the Boston-area steel erection
market, as evidenced by (1) the undisputed fact that seventy
percent of the steel erection work within the geographical bounds
of

the

agreed-upon

market

was

performed

by

union

signatory

erectors, and (2) the trial testimony indicating that at some point
nearly all significant erector work in Boston itself was performed
by union signatory companies.

5

The court assumed for purposes of summary judgment that
spending for steel erection in the agreed-upon market exceeded
$200 million each year since 1999, and the plaintiffs agree with
this calculation.
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Although these numbers might paint a more compelling
picture if the plaintiffs could show that they were the result of
widespread or systemic anticompetitive agreements or conduct, we
side with the district court in finding the record lacking in this
regard.

Section 1 "does not reach independent decisions, even if

they lead to the same anticompetitive result as an actual agreement
among market actors."

White, 635 F.3d at 575.

motion

judgment,

for

summary

[the]

"To survive [a]

plaintiffs

needed

to

demonstrate a genuine dispute as to whether defendant['s] actions
caused an injury to competition, as distinguished from impact on
themselves."

R.W. Int'l Corp. v. Welch Food, Inc., 13 F.3d 478,

487 (1st Cir. 1994) (emphasis in original).
None of the discrete agreements involved a refusal to
deal on an on-going basis, a fact that the plaintiffs acknowledged
before the district court.

Cf. Sterling Merch., 656 F.3d at 124

("'Short contract terms and low switching costs generally allay
most fears of injury to competition,'" as do vertical agreements
that are "not entirely exclusive." (quoting 11 Areeda & Hovenkamp,
Antitrust Law, ¶ 1802, at 94)).

Moreover, there is insufficient

evidence to establish widespread collusive agreements between
Local 7 and steel fabricators or general contractors to foreclose

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open-shop erector companies as a general matter.

Entry ID: 5980213

We briefly

revisit the record on the latter point.
Of the twenty steel fabricators referenced at trial,
only four agreed to break subcontracts with DFM and Ajax and retain
a union signatory replacement at a higher cost due to the pressure
imposed by Local 7.

Indeed, Paulding of fabricator Cape & Island

Steel testified to his resistance against union pressure, and the
evidence

relating

to

the

Brickworks

project

fabricator opposition toward Local 7's interference.

also

evinces

Furthermore,

DFM and Ajax were not excluded from bidding on other jobs or on
future

jobs

with

the

same

fabricators.

It

is

telling

that

fabricator Cape & Island recalled DFM to finish the erector work
at the Fox 25 site, and afterward the two entities continued their
business

relationship.

Similarly,

fabricator

Capone

Iron

continued hiring DFM after dismissing that nonunion company from
the Brickworks site.
Additionally, both DFM and Ajax flourished financially
during

the

relevant

time

frame,

two

other

plaintiffs

also

experienced economic growth, and three of the five plaintiffs
entered the steel erector market since the inception of the MRP.
Pisani himself testified that in the "past couple of years [DFM
had] been doing a lot of pharmaceutical companies" and was "very
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competitive" on "very large jobs . . . a testament to what [his
company] has done," and he agreed that as of 2006 his company
"[had] been working pretty steady with about 20 fabricators."
While Local 7 certainly put direct pressure on some
third-party neutrals to award work to union signatory companies,
in

the

end

(and

after

years

of

litigation

and

protracted

discovery), the plaintiffs proved only four occasions in which
individual fabricators agreed to replace a nonunion company with
a union signatory erector company.
Nor is it sufficient to point to the MRP alone as
evidence of an unlawful vertical agreement.

Fabricators are

entitled to respond to lower prices from erectors, and signatory
erectors are entitled to float lower bids in an attempt to win
erection work.

A job lost to price competition is not one the

antitrust laws were intended to restore or vindicate.6

6

As we discuss above, there may perhaps be reason to believe
that a more narrowly tailored challenge to applications of the MRP
could survive summary judgment, but the plaintiffs cannot render
all contracts stemming from the MRP wholly unlawful under antitrust
law merely by showing that the MRP sometimes functioned unlawfully
under unrelated laws. As such, the plaintiffs cannot transform a
vertical agreement entered into between a union signatory and a
fabricator on the basis of price into an unlawful "exclusionary"
agreement simply by pointing to a secondary JTF agreement between
Local 7 and that union signatory.
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Moreover,

the

Page: 58

record

Date Filed: 02/25/2016

gives

concentration of union labor in Boston.

other

reasons

Entry ID: 5980213

for

the

For instance, early on in

the litigation, the district court noted that "[t]he largest Boston
area construction projects employing structural steel workers are
government-financed public works projects, including the 'Big
Dig,' the Boston Harbor clean up, and the renovation of the
terminals and parking facilities at Logan Airport."

At trial,

both Pisani and Morel testified that they generally opted not to
submit bids for publicly funded projects because they did not want
to sign the required project labor agreement. In short, the record
evidence does not point inevitably toward a conclusion that union
labor dominance for erector work in Boston stemmed from any set of
unlawfully restrictive agreements, rather than some other cause
not regulated under the Sherman Act.

See NYNEX, 525 U.S. at 136-

37; Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S.
209, 224-25 (1993); Atl. Richfield, 495 U.S. at 344; Apex Hosiery
Co. v. Leader, 310 U.S. 469, 503 (1940).7

7

It is true that Gavin of fabricator FAMM Steel testified
that her company had agreed on numerous occasions to replace a
nonunion erector with a union signatory at the behest of the
general contractor or owner (and through union pressure),
including about "half a dozen Stop & Shops." However, she is the
only fabricator witness who testified to an apparent company
pattern of subcontract breaches targeting nonunion erectors.
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"[S]ome

antitrust

Page: 59

cases

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are

intrinsically

Entry ID: 5980213

hopeless"

because "they merely dress up in antitrust garb what is, at best,
a business tort or contract violation."

Stop & Shop, 373 F.3d at

69; see also E. Food Servs., Inc. v. Pontifical Catholic Univ.
Servs. Ass'n, Inc., 357 F.3d 1, 4 (1st Cir. 2004).

Ultimately,

the plaintiffs' antitrust claims here are dressed in the same
vestment.

And so, given the record before us, we agree with the

district court's bottom line that the evidence was only sufficient
to demonstrate the existence of a handful of sporadic vertical
restraints resulting in harm to the plaintiffs, and not the
existence of a systemic set of exclusionary restraints resulting
in harm to competition in the marketplace for structural steel

Also, the plaintiffs offered no evidence that Gavin's company
accepted higher priced contracts with union signatories beyond the
Cardi's Furniture project. On this record, we should not leap to
a conclusion that one fabricator's potential business torts or
contract breaches are indicative of antitrust liability. See Stop
& Shop, 373 F.3d at 69. This is particularly true in view of the
fact that DFM, Ajax, and other willing open-shop erectors continued
to participate in the fiercely competitive structural steel
erection market. Cf. Sterling Merch., 656 F.3d at 124 (holding
that exclusive agreements were not proven to have impaired
competition where, inter alia, distributors historically competed
for the agreements with retailers, plaintiff succeeded in winning
over one of defendant's largest customers, other avenues of
distribution remained available, and new competitors entered the
market).
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erection services itself.

Page: 60

Date Filed: 02/25/2016

Entry ID: 5980213

See Stop & Shop, 373 F.3d at 66;

Euromodas, 368 F.3d at 21; R.W. Int'l, 13 F.3d at 487.
3.

Section 2

Lastly, we note that the plaintiffs have invoked Section
2 of the Sherman Act as well, although their allegations pertaining
to "conspiracy to monopolize" and "horizontal monopolization" are
dubious and difficult to divine.

Their brief mingles Section 1

and Section 2 advocacy, with little attention to the latter.
There is, perhaps, an argument to be made that the bids
of signatory erectors on particular private projects could have
been below-cost, predatory bids offset by supracompetitive prices
enabled by the Davis-Bacon Act's prevailing wage mechanism and the
artificial inflation of the local prevailing wage rate.

Hints of

a novel theory of this nature seem to be scattered throughout the
plaintiffs' papers. Yet, once again, we are faced with a situation
where

the

plaintiffs

have

provided

such

skimpy

evidence

and

entangled briefing that this theory of liability must be considered
waived.

See ASE I, 536 F.3d at 83 ("[I]f [p]laintiffs cannot sort

out their allegations and develop their arguments sufficiently, it
is not for us to do so for them.").
The plaintiffs' buckshot Davis-Bacon accusations have
always seemed to suggest that the alleged violations of that
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statute should unwind the nonstatutory exemption as a whole,
thereby causing otherwise-lawful and non-conspiratorial activity
to incur antitrust liability.
addressed

the

MRP

in

the

On remand, the district court

context

of

the

plaintiffs'

larger

conspiracy theory, and we agree that the plaintiffs' alleged DavisBacon violations do not impact the MRP's broader eligibility for
the nonstatutory exemption.
Beyond this, however, the plaintiffs have sporadically
implied that the deductions and subsidies themselves were part of
an unlawful predatory pricing scheme.

While we do not foreclose

the viability of the suggested theory as a matter of law in future
cases, any leeway that we may grant to parties who present evolving
legal theories on appeal has limits.

See generally Genereux v.

Raytheon Co., 754 F.3d 51, 59 (1st Cir. 2014); Macauley v. Anas,
321 F.3d 45, 52 (1st Cir. 2003).
The plaintiffs have exceeded those limits.

A predatory

pricing claim under Section 2 requires plaintiffs to prove that
the prices complained of were below an appropriate measure of costs
and that there was a dangerous probability that the difference
between these values could be recouped.
222, 224.

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Here, the plaintiffs haphazardly invoke variant strands
of antitrust case law and have failed to make any coherent argument
to support their predatory pricing claim.

Stop & Shop, 373 F.3d

at 65 ("[S]ubstitut[ing] innuendo for analysis [is] fatal" to
antitrust

claims

since

antitrust

plaintiffs

must

"explain

in

detail . . . just what the arrangements were and why they plausibly
constituted

antitrust

violations.").

The

plaintiffs

fail

to

explain at all, for example, how recoupment via the unlawful
exploitation of a statutory mechanism rather than recoupment via
monopolistic power would affect a predatory pricing analysis.

If

this unconventional approach is economically unsound, then there
is a good chance that the "unsuccessful predation [would be] . .
. a boon to consumers," Brooke Group, 509 U.S. at 224, and we would
be wise to stay our hand, at least as far as antitrust liability
is concerned.

If the plaintiffs wish to cut a bold new path

through antitrust law with a seemingly unique claim, they must
show us the way.
Equally fatal, the plaintiffs' brief feints in this
direction
evidence

inexplicably
of

above-cost

fault

Local

pricing.

7

for

But

as

failing
the

to

provide

district

court

recognized, "[t]his contention . . . stands the burden of proof on
its head.

Plaintiffs bear the ultimate burden of proving their
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claims, and on summary judgment must identify some evidence on
which a jury could reasonably find in their favor . . . .
they have not done."
can hardly disagree.

ASE II, 932 F. Supp. 2d at 251 n.13.8

That
We

See Brooke Group, 509 U.S. at 222 ("[A]

plaintiff seeking to establish competitive injury from a rival's
low prices must prove that the prices complained of are below an
appropriate measure of its rival's costs.").
Because the plaintiffs have failed to offer sufficient
evidence

or

argument

to

support

a

predatory

pricing

or

"monopolization" claim, we find that their Section 2 claim, like
their Section 1 claims, fails.

Accordingly, the plaintiffs are

left without antitrust recourse.9

8

Insofar as the plaintiffs point to Dr. Kenneth Clarkson's
expert report and argue that the MRP resulted in millions of
dollars in harm due to "gross lost profits" by the plaintiffs,
this continues to both presume the MRP is wholly unlawful and
confuse harm to competition with harm to competitors.
More
importantly, Local 7 successfully moved to preclude him from
testifying at the LMRA trial, and the plaintiffs failed to
reanimate and adequately support these arguments in their posttrial briefing.
9

As with the LMRA claims, the plaintiffs gain no traction by
faulting the district court for excluding evidence on the eleven
other construction projects. The court rendered these rulings in
relation to the LMRA trial, and the jury's verdict has withstood
Local 7's appellate attack. The plaintiffs do not adequately tie
their evidentiary challenges to their antitrust appeal, and we
will not craft a connection for them. Moreover, while they had
the opportunity post-trial to readdress evidentiary boundaries for
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III.

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Entry ID: 5980213

Conclusion

We AFFIRM the district court's decisions upholding the
LMRA jury verdict and award of damages for plaintiffs DFM and Ajax,
and

granting

summary

antitrust claims.

judgment

for

defendant

Local

7

on

the

Parties to bear their own costs.

the antitrust litigation, the plaintiffs' 2011 summary judgment
pleadings nearly exclusively relied on the trial evidence.
Accordingly, we have no need to address the merits of their
arguments.
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