Connecticut Ironworkers Employers Assoc Inc et al v. New England Regional Council of Carpenters

Filing 154

RULING & ORDER granting 85 MOTION for Summary Judgment. The Clerk shall enter judgment in favor of the defendant, terminate all pending motions, and close the case. Signed by Judge Stefan R. Underhill on 05/23/2018. (Jamieson, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CONNECTICUT IRONWORKERS
EMPLOYERS’ ASSOCIATION, et al.,
Plaintiffs,
No. 3:10-cv-00165 (SRU)
v.
NEW ENGLAND REGIONAL
COUNCIL OF CARPENTERS,
Defendant.
RULING AND ORDER
This case involves a “turf battle” between two sets of construction organizations. The
defendant, New England Regional Council of Carpenters (the “Carpenters”), has entered into
collective bargaining agreements (“CBAs”) with non-party construction companies and
construction managers (collectively, the “employers”). The agreements contain restrictive
subcontracting clauses (sometimes known as “hot cargo” clauses, but which I call the “CBA
clauses”) that prohibit signatories from subcontracting work to any employer that has not
acceded to a Carpenters’ CBA. The plaintiffs—construction trade unions,1 contractors,2 and trade
associations3 (collectively, the “Ironworkers”)4—allege that the Carpenters have used the CBA

1

International Association of Bridge, Structural, Ornamental, & Reinforcing Iron Workers
Locals Nos. 15, 37, and 424 (the “Iron Workers”); Sheet Metal Workers Locals Nos. 38 and 40
(the “Sheet Metal Workers”); and Glaziers Locals Nos. 1274 and 1333 affiliated with District
Council 11 of the International Union of Painters & Allied Trades, AFL-CIO (the “Glaziers”).

2

M.R.S. Enterprises (“M.R.S.”); Barrett, Inc.; Ernest Peterson, Inc. (“Peterson”); and Berlin
Steel Construction Co. (“Berlin Steel”).

3

Connecticut Ironworkers Employers Association (“Connecticut Ironworkers”) and Associated
Sheet Metal & Roofing Contractors of Connecticut (“Sheet Metal Contractors”).
4

Two union pension funds were originally also plaintiffs. I dismissed those plaintiffs for lack of
standing in March 2012. See 2012 WL 951793 (D. Conn. Mar. 20, 2012).

clauses to expand the scope of their work by preventing the Ironworkers from bidding on and
performing work that traditionally was assigned to the Ironworkers. According to the complaint,
that conduct constitutes anticompetitive behavior, in violation of sections 1 and 2 of the Sherman
Act, 15 U.S.C. §§ 1 & 2, and unfair labor practices, in violation of 29 U.S.C. § 1987.
I previously granted summary judgment for the Carpenters, see Conn. Ironworkers
Emp’rs Ass’n v. New Eng. Reg’l Council of Carpenters, 157 F. Supp. 3d 173, 175 (D. Conn.
2016) (“Ironworkers I”), after I concluded that the Carpenters’ conduct was shielded from
antitrust scrutiny by both the non-statutory exemption to the antitrust laws and the construction
industry proviso contained in Section 8(e) of the National Labor Relations Act (“NLRA”), 29
U.S.C. § 158(e). On appeal by the Ironworkers, the Second Circuit agreed that the Carpenters’
actions fell within the construction industry proviso, and affirmed with respect to the unfair labor
practices claim. See Conn. Ironworkers Emp’rs Ass’n v. New Eng. Reg’l Council of Carpenters,
869 F.3d 92, 96–97 (2d Cir. 2017) (“Ironworkers II”). The Court concluded, however, that “there
are factual disputes that preclude a decision on whether the conduct falls within the non-statutory
exemption,” and reversed with respect to the Ironworkers’ Sherman Act claim. Id. The Court
remanded “for further proceedings consistent with this opinion, including for such additional
discovery as will permit the District Court to be informed of the relevant history and permit the
parties to move for summary judgment or, if necessary, to proceed to trial.” Id. at 97.
Following the remand, and before allowing additional discovery, I scheduled a new
argument on the undecided issue raised by the Carpenters’ previously-briefed motion for
summary judgment. After examining the parties’ submissions, I conclude that the Ironworkers
have failed to provide evidentiary support for the actual adverse effect on competition required to

2

state a prima facie case for violation of the Sherman Act under the rule of reason. Therefore, I
again grant the Carpenters’ motion for summary judgment.
I.

Standard of Review
Summary judgment is appropriate when the record demonstrates that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). When ruling on a summary judgment motion, the court must “view the evidence in
the light most favorable to the non-moving party and draw all reasonable inferences in its favor.”
Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000); Aldrich v. Randolph Ctrl. Sch.
Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). “The burden of showing that no genuine factual
dispute exists rests upon the moving party.” Carlton v. Mystic Transp., 202 F.3d 129, 133 (2d
Cir. 2000). When a motion for summary judgment is properly supported by documentary and
testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or
denials of the pleadings, but must present sufficient evidence supporting its position “to require a
jury or judge to resolve the parties’ differing versions of the truth at trial.” Anderson v. Liberty
Lobby, 477 U.S. 242, 249 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
“The trial court’s function at this stage is to identify issues to be tried, not decide them,”
Graham v. Long Island R.R. Co., 230 F.3d 34, 38 (2d Cir. 2000), and so “[o]nly when no
reasonable trier of fact could find in favor of the non-moving party should summary judgment be
granted.” White v. ABCO Eng’g Corp., 221 F.3d 293, 300 (2d Cir. 2000). Summary judgment
therefore is improper “[w]hen reasonable persons, applying the proper legal standards, could
differ . . . on the basis of the evidence presented.” Sologub, 202 F.3d at 178. Nevertheless,
the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment;
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the requirement is that there be no genuine issue of material fact. . . . Only
disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 247–48.
“[A] complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial,” and in such circumstances, there is “no
genuine issue as to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant’s burden satisfied if it can point to an absence of evidence to support an essential
element of nonmoving party’s claim). To present a “genuine” issue of material fact and avoid
summary judgment, the record must contain contradictory evidence “such that a reasonable jury
could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
“In the context of antitrust cases,” the Second Circuit has noted that “summary judgment
is particularly favored because of the concern that protracted litigation will chill pro-competitive
market forces.” PepsiCo v. Coca-Cola Co., 315 F.3d 101, 104 (2d Cir. 2002) (per curiam). Thus,
“[a]lthough all reasonable inferences will be drawn in favor of the non-movant, those inferences
‘must be reasonable in light of competing inferences of acceptable conduct.’” Id. at 105 (quoting
Top Mkts. v. Quality Mkts., 142 F.3d 90, 95 (2d Cir. 1998)).
II.

Background
The Ironworkers and the Carpenters are both construction organizations that operate

throughout New England. The Carpenters have entered into CBAs with many construction
companies and construction managers in the region that contain restrictive subcontracting

4

clauses.5 Those clauses—“colloquially called ‘hot cargo’ clauses”—“bar signatories from
subcontracting work to any employer that is not also a signatory to a Carpenters’ CBA.” See
Ironworkers II, 869 F.3d at 97. The Ironworkers allege that the Carpenters have used the CBA
clauses anticompetitively “to prevent the Ironworkers from performing the relevant work,”
thereby “secur[ing] work in the New England area that allegedly belonged to the Ironworkers.”
See id. at 97–98. They assert that the Carpenters’ conduct constitutes anticompetitive behavior in
violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2.
The Carpenters moved for summary judgment in May 2014, Doc. No. 85, arguing that
their actions were “shield[ed] . . . from antitrust scrutiny” by “the non-statutory labor exemption
and the ‘construction industry proviso’ provided in Section 8(e)” of the NLRA. See Ironworkers
I, 157 F. Supp. 3d at 175. I granted the Carpenters’ motion. In a ruling issued on January 20,
2016, I held that the Carpenters had “established the requisite elements to be afforded the
protection of the construction industry proviso” and had also shown that “the subcontracting
provisions at issue,” as “lawful provisions of a valid CBA, . . . [were] protected by the nonstatutory labor exemption.” Id. at 187. Therefore, I concluded, “the Carpenters [were] not subject
to antitrust scrutiny for their attempts to enforce the subcontracting agreements.” Id. at 188.
The Ironworkers appealed and the Second Circuit reversed in part. Although the Court
agreed that “the construction industry proviso applies to the disputed subcontracting practices,” it
decided that “disputes of material fact prevent [it] from deciding . . . whether the non-statutory
exemption applie[d].” Ironworkers II, 869 F.3d at 104. The Court referred to the standard for

5

Some of the signatories to Carpenters’ CBAs are individual contractors, but most are
associations of employers such as the Associated General Contractors of Rhode Island, see Ex. 7
to Carroll Aff., Doc. No. 88-7, the Connecticut Construction Industries Association, see Ex. 10
to Carroll Aff., Doc. No. 88-10, and the Construction Industry Association of Western
Massachusetts. See Ex. 12 to Carroll Aff., Doc. No. 88-12.
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applying the non-statutory exemption set forth in Local 210, Laborers’ International Union of
North America v. Labor Relations Division, Associated General Contractors of America, New
York State Chapter, 844 F.2d 69 (2d Cir. 1988) (“Local 210”):
First, the agreement at issue must further goals that are protected by
national labor law and that are within the scope of traditionally mandatory
subjects of collective bargaining. Second, the agreement must not impose
a direct restraint on the business market [that] has substantial
anticompetitive effects, both actual and potential, that would not follow
naturally from the elimination of competition over wages and working
conditions that results from collective bargaining agreements.
Id. at 79–80 (citations, internal quotation marks, and alterations omitted).
With respect of the first prong of the Local 210 test, I had relied on Local 210 and a
Supreme Court decision on which it relied, Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S.
203 (1964) (“Fibreboard”), for the proposition that most “subcontracting clauses are within the
scope of the mandatory subjects of collective bargaining.” See Ironworkers II, 869 F.3d at 107.
Quoting Justice Stewart’s concurrence in Fibreboard, I concluded that “the ‘substitution of one
group of workers for another to perform the same task in the same location under the ultimate
control of the same employer’ is a mandatory subject of collective bargaining.” Ironworkers I,
157 F. Supp. 3d at 184 (quoting Fibreboard, 379 U.S. at 224 (Stewart, J., concurring)) (internal
brackets omitted). Because “each subcontracting agreement . . . was a part of an existing CBA,”
and the Ironworkers failed to show that “the type of subcontracting agreement at issue [was]
anything other than a lawful subject of a CBA,” I held that the CBA clauses were protected by
the non-statutory exemption. Id. at 92 (emphasis removed).
The Second Circuit deemed my reliance on Local 210 and Fibreboard “misplaced.”
Ironworkers II, 869 F.3d at 107. Both decisions, the Court determined, were “premised on the
fact that the particular subcontracting clauses . . . were designed to ‘preserve work traditionally
performed by a union for a particular employer.’” Id. (quoting Local 210, 844 F.2d at 73)
6

(emphasis in Ironworkers II); see also id. (“[T]he ‘contracting out’ of the work previously
performed by members of an existing bargaining unit is a subject about which the National
Labor Relations Act requires employers and the representative of their employees to bargain
collectively.”) (quoting Fibreboard, 379 U.S. at 209 (emphasis in Ironworkers II). Those
precedents stood only “for the proposition that work preservation—not restrictive subcontracting
generally—is a legitimate labor purpose and a mandatory subject of collective bargaining.” Id.
With respect to the present case, the Second Circuit concluded that “the record [was] insufficient
to determine whether or not the[] subcontracting clauses were in fact being used to preserve
work . . . or whether [they] were used for work expansion.” Id. at 108. Because the latter
“purpose . . . would not fall within the scope of traditionally mandatory subjects of collective
bargaining,” the Court held that I “erred in finding, as a matter of law, that the disputed
subcontracting practices were entitled to the protection of the ‘non-statutory exemption.’” Id.
The Second Circuit remanded “for further proceedings consistent with [its] opinion,
including for such additional discovery as will permit the District Court to be informed of the
relevant history and permit the parties to move for summary judgment or, if necessary, to
proceed to trial.” Id. at 109. On remand, prior to reopening discovery, I elected to address the
undecided alternative ground raised by the Carpenters’ previously-briefed motion for summary
judgment. This ruling addresses the unresolved issues raised by that motion.
III.

Discussion
Following the Second Circuit’s determination that the CBA clauses are not entitled to the

non-statutory exemption, the Carpenters’ motion for summary judgment presents two further
matters for decision. First, what is the proper standard for analysis of the Ironworkers’ claims?
The Ironworkers insist that the CBA clauses constitute “group boycott[s]” that should be deemed
7

“per se violations of the antitrust laws.” Mem. Opp’n Mot. Summ. J., Doc. No. 100, at 40. The
Carpenters, conversely, argue that the CBA clauses are “exclusive dealing requirements” that
should be “analyzed under the rule of reason.” Mem. Supp. Mot. Summ. J., Doc. No. 86, at 32–
33. I agree that the CBA clauses—which at worst substitute one group of unionized workers for
another—are not “manifestly anticompetitive.” See Bus. Elecs. Corp. v. Sharp. Elecs. Corp., 485
U.S. 717, 723 (1988). Accordingly, per se condemnation is inappropriate, and I analyze the
clauses under the rule of reason.
Second, do the CBA clauses function as “unreasonable” restraints under the rule of
reason? The multi-part, burden-shifting rule of reason requires that the “plaintiff bear[] the initial
burden of showing that the challenged action has had an actual adverse effect on competition as
a whole in the relevant market.” Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs.,
996 F.2d 537, 543 (2d Cir. 1993) (“Capital Imaging”). Here, I conclude that the Ironworkers
have failed to present evidence sufficient to show that the CBA clauses are anticompetitive under
the rule of reason. As a result, the Ironworkers cannot state a prima facie case for violation of the
Sherman Act, and I grant the Carpenters’ motion for summary judgment.
A. Should the CBA clauses be analyzed under the per se rule or the rule of reason?
Most arrangements alleged to violate the antitrust laws are analyzed under the so-called
rule of reason, a multi-part test through which the factfinder “weighs all of the circumstances of
a case in deciding whether a restrictive practice should be prohibited as imposing an
unreasonable restraint on competition.” See Bus. Elecs. Corp., 485 U.S. at 723. A few
arrangements, however, such as “group boycotts,” are considered “unlawful per se.” FTC v. Ind.
Fed’n of Dentists, 476 U.S. 447, 458 (1986). In order to avoid application of the rule of reason—
which entails a “burdensome” and “demanding calculus,” Am. Steel Erectors v. Local Union No.
8

7, Int’l Ass’n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 815 F.3d 43, 61, 67
(1st Cir. 2016) (“ASE II”)—the Ironworkers attempt to obtain the benefit of the per se rule by
“forcing the [CBA clauses] into the ‘boycott’ pigeonhole.” See Ind. Fed’n of Dentists, 476 U.S.
at 458. The Carpenters respond that the CBA clauses are not a “group boycott,” but rather akin to
“exclusive dealing requirements” that should be “analyzed under the rule of reason.” Mem.
Supp. Mot. Summ. J., Doc. No. 86, at 32–33. I agree with the Carpenters.
1. Are the CBA clauses a proscribed “group boycott”?
Although courts often list so-called “‘[g]roup boycotts’ . . . among the classes of
economic activity that merit per se invalidation” under the antitrust laws, it is “far from certain”
what conduct “fall[s] within the forbidden category.” Nw. Wholesale Stationers v. Pac.
Stationery & Printing Co., 472 U.S. 284, 294 (1985); see also Spectators’ Commc’n Network v.
Colonial Country Club, 253 F.3d 215, 223 (5th Cir. 2001) (observing that “the distinction
between boycotts that are per se illegal and those judged by the rule of reason is often a vexing
one”). Broad dicta in older cases notwithstanding, “per se condemnation is not visited on every
arrangement that might, as a matter of language, be called a group boycott or concerted refusal to
deal.” U.S. Healthcare v. Healthsource, Inc., 986 F.2d 589, 593 (1st Cir. 1993). Instead, the
Supreme Court has “limit[ed] the per se rule in the boycott context to cases involving horizontal
agreements among direct competitors.”6 NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135 (1998);

6

Agreements within the scope of the Sherman Act may be “‘horizontal,’ i.e., ‘agreement[s]
between competitors at the same level of the market structure,’ or ‘vertical,’ i.e., ‘combinations
of persons at different levels of the market structure, e.g., manufacturers and distributors.’”
Anderson News v. Am. Media, 680 F.3d 162, 182 (2d Cir. 2012) (quoting United States v. Topco
Assocs., 405 U.S. 596, 608 (1972)). Thus, an agreement among several general contractors, or
between labor unions, might impose a “horizontal” restraint; but an agreement between a labor
union, which supplies labor, and a general contractor, which purchases it, could not. In the latter
example, the union and the contractor are part of a “vertical chain” and do not “compete on the
same horizontal plane” within the market. ASE II, 815 F.3d 43, 61, 62 (1st Cir. 2016).
9

cf. Bogan v. Hodgkins, 166 F.3d 509, 515 (2d Cir. 1999) (stating that the “classic model of a
group boycott” is “a concerted attempt by a group of competitors at one level to protect
themselves from competition from non-group members who seek to compete at that level”)
(quoting Smith v. Pro Football, 593 F.2d 1173, 1178 (D.C. Cir. 1978)) (internal quotation marks
omitted). Thus, for the Ironworkers to prevail on their boycott claim under the per se rule, “a
horizontal agreement is a prerequisite.” PepsiCo, 315 F.3d at 110.
The Carpenters argue that this case “obviously [does] not present” a group boycott under
recent precedent, see Ind. Fed’n of Dentists, 476 U.S. at 458, because the challenged agreements
were made “between parties at different levels of the market structure.” Mem. Supp. Mot.
Summ. J., Doc. No. 86, at 32. The Carpenters and the employers “did not compete” with one
another; rather, the Carpenters “w[ere] an upstream supplier” of labor for the employers. See
MacDermid Printing Sols. v. Cortron Corp., 833 F.3d 172, 185 (2d Cir. 2016). Thus, the
Carpenters argue, the agreements between the Carpenters and the employers were “no[t] . . .
inherently anticompetitive” and should not be subject to per se treatment. See id.
The Ironworkers respond that the Carpenters’ CBAs “involve both horizontal and vertical
provisions.” Suppl. Mem. Opp’n Mot. Summ. J., Doc. No. 116, at 11. As adduced at oral
argument, the Ironworkers’ theory appears to be that because most of the CBAs were made
between the Carpenters and associations of employers, the vertical agreements between the
Carpenters and the associations also operate as “horizontal agreements among the construction
managers . . . [who are] parties to th[e] association[s].” See Mot. Hr’g Tr. (Jan. 24, 2018), Doc.
No. 148, at 9. In other words, if the employers collectively agreed with the Carpenters to boycott
the Ironworkers, then the employers also “agreed with each other to do it.” See id. at 11.

10

I doubt that a third party’s agreement with an association is by itself enough to establish a
horizontal agreement among members of the association. “Mere membership in associations is
not enough to establish participation in a conspiracy with other members of those associations,”
Osborn v. Visa Inc., 797 F.3d 1057, 1067 (D.C. Cir. 2015), cert. dismissed as improvidently
granted, __ U.S. __, 137 S. Ct. 289 (2016) (mem.), and “concerted action does not exist every
time a trade association member speaks or acts.” Alvord-Polk, Inc. v. F. Schumacher & Co., 37
F.3d 996, 1007 (3d Cir. 1994). In the absence of evidence that “two or more of the association’s
members have committed themselves to the anti-competitive activity of the . . . association,” the
existence of the association alone does not suffice to infer a horizontal agreement.7 See id. at
1017 (Stapleton, J., concurring in part and dissenting in part). Because “membership alone is not
proof of an agreement,” Nova Designs v. Scuba Retailers Ass’n, 202 F.3d 1088, 1092 (9th Cir.
2000), I find unpersuasive the Ironworkers’ argument that “multi-employer bargaining
association[s] . . . by [their] very nature, involve horizontal agreements.” Mot. Hr’g Tr. (Jan. 24,
2018), Doc. No. 148, at 12–13.
I need not dwell on whether the CBAs are better regarded as horizontal, vertical, or both,
however, because even were the agreements primarily horizontal, “[t]his case . . . cannot be fitted
into the category of group boycott cases.” Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131
(2d Cir. 1978) (en banc). Not all horizontal agreements are per se violations of the antitrust laws.
See Premier Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n, 814 F.2d 358, 370 (7th Cir.
1987) (“Premier”); cf. Bogan, 166 F.3d at 513, 516 (“assum[ing] plaintiffs’ view of the

7

Of course, “it normally will not be difficult to show the necessary agreement among a group of
[ ] members” because an association typically is “controlled by its members.” Alvord-Polk, Inc.
v. F. Schumacher & Co., 37 F.3d 996, 1017 (3d Cir. 1994) (Stapleton, J., concurring in part and
dissenting in part). That the Ironworkers have nonetheless failed to show any evidence of
agreement among the employers here is therefore telling.
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Agreement as primarily horizontal, rather than vertical,” but nevertheless holding that
“[p]laintiffs fail[ed] to establish a threshold case for per se treatment”). Assuming, arguendo,
that the Carpenters’ CBAs entailed horizontal agreements among members of the associations,
the Ironworkers have not even hinted at any “economic incentive” for the employers to boycott
them. See Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1090 (6th Cir. 1996). Quite simply,
the employers—as purchasers of labor—“would stand nothing to gain financially” by driving the
Ironworkers out of the labor supply market. See id.
In order to illustrate that point, consider Premier Electrical Construction Co. v. National
Electrical Contractors Ass’n, a case in which an employers’ association actually used an
agreement with a union to “eliminate a source of competition.” 814 F.2d at 368. In Premier, the
National Electrical Contractors Association (“NECA”) had agreed with the International
Brotherhood of Electrical Workers (“IBEW”) to create a National Electrical Industry Fund, into
which members of the NECA would pay one percent of their gross payroll.8 Id. at 359. Because
members of the NECA were required to pay into the fund, their cost of doing business increased
relative to non-members, and non-members soon were able to underbid NECA members for
work. See id. at 368. Concerned, the NECA entered into a new agreement with the IBEW under
which the IBEW would obtain, as part of any collective bargaining agreement with a firm that
was not a member of the NECA, a commitment that the firm also make a contribution to the
National Electrical Industry Fund. Id. at 359. The Seventh Circuit, following the Fourth Circuit,
held that the “contribution requirement [was] price-fixing, a per se violation of the antitrust
laws,” because the NECA had “used the [IBEW] to increase its rivals’ costs of doing business

8

The fund was intended to “defray the costs of the Association’s bargaining with the Union on
behalf of its members and administering their collective bargaining agreements.” Premier, 814
F.2d 358, 370 (7th Cir. 1987).
12

. . . and thereby raised the market price to its own advantage.” Id. at 368. “The result was higher
prices to purchasers of electrical work and higher profits for members” of the NECA, which
“could be shared with the [u]nion” to “compensat[e] it for the assistance.” Id.
Here, unlike Premier, it is far from obvious how the CBA clauses could have improperly
raised costs or fixed-prices. There is no reason for employers—who purchase labor—to want
higher labor prices. If (contrary to the evidence in the record) the Carpenters’ prices were higher,
then the employers who affiliated with them would be underbid by rivals who signed with the
Ironworkers. If the quality of the Carpenters’ work was lower (as the Ironworkers repeatedly
suggest, without evidence), then that also would comparatively advantage employers who
continued to affiliate with the Ironworkers. Furthermore, employers often enter into agreements
with multiple unions, cf. Carpenters Fringe Benefit Funds of Ill. v. McKenzie Eng’g, 217 F.3d
578, 583 (8th Cir. 2000) (noting that employer “entered into pre-hire collective bargaining
agreements with multiple craft unions whose claimed work jurisdictions frequently
overlap[ped]”); Stevens Eng’rs & Constructors v. Iron Workers Local 17 Pension Fund, 2016
WL 4479486, at *18 (N.D. Ohio Aug. 25, 2016) (“[T]he craft jurisdictions of many craft unions
overlap and employers assign tasks that fall within the craft jurisdictions of multiple unions in
different manners.”), and different unions frequently work on a single construction project. See,
e.g., Huber, Hunt & Nichols v. United Ass’n of Journeymen & Apprentices of the Plumbing &
Pipefitting Indus., Local 38, 282 F.3d 746, 747–48 (9th Cir. 2002). Therefore, even if a large
proportion of employers acceded to the Carpenters’ CBA clauses, those employers would not
necessarily be able to shut out their rivals who continued to affiliate with the Ironworkers.
Indeed, notwithstanding the challenged CBA clauses, counsel for the Ironworkers
admitted at the hearing that “sometimes [employers] just skip the Carpenters and bring in

13

Ironworkers to actually do the work.”9 Mot. Hr’g Tr. (Jan. 24, 2018), Doc. No. 148, at 69. In
other words, not only did the employers lack a clear incentive to drive the Ironworkers out of the
market, but also, in practice, they seem to have continued employing the Ironworkers. That being
so, I simply cannot understand how the employers had any “economic motivation [to participate
in] a boycott,” or how the CBA clauses would have enabled both the Carpenters and the
employers to “benefit[] financially at the expense of consumers.” See Betkerur, 78 F.3d at 1090–
91. “Because the Agreement’s anticompetitive effect . . . is not obvious,” the Ironworkers have
not “made a case sufficient to cross the threshold to per se treatment.” Bogan, 166 F.3d at 51.
The Ironworkers, apparently recognizing that the employers’ incentive to join the posited
boycott is murky at best, strive to bring their case within the rule of Klor’s, Inc. v. BroadwayHale Stores, 359 U.S. 207 (1959). In Klor’s, a large department store chain, Broadway-Hale,
used its “‘monopolistic’ buying power” to organize a boycott of its much smaller rival, Klor’s.
Id. at 209. Klor’s filed suit under the Sherman Act, alleging that manufacturers and distributors
had “conspired among themselves and with Broadway-Hale either not to sell to Klor’s or to sell
to it only at discriminatory prices and highly unfavorable terms.” Id. The Supreme Court held
that the defendants had “[p]lainly” engaged in a group boycott. Id. at 212. The Court observed
that Klor’s “[a]lleged . . . a wide combination consisting of manufacturers, distributors and a
retailer,” which “t[ook] from Klor’s its freedom to buy . . . in an open competitive market and
dr[ove] it out of business as a dealer in the defendants’ products,” and also “deprive[d] the
manufacturers and distributors of their freedom to sell to Klor’s.” Id. at 213. Thus, the Court

9

Counsel for the Carpenters represented that the Ironworkers worked on four of the seven
projects mentioned in the complaint. Mot. Hr’g Tr. (Jan. 24, 2018), Doc. No. 148, at 69.
14

concluded that the alleged conduct “clearly ha[d], by its ‘nature’ and ‘character,’ a ‘monopolistic
tendency,’” and was to be regarded as illegal per se. See id.
Klor’s is admittedly difficult to reconcile with more recent cases, which have “recognized
that the scope of per se illegality should be narrow in the context of vertical restraints.” Bus.
Elecs. Corp., 485 U.S. at 724; cf., e.g., Ron Tonkin Gran Turismo v. Fiat Distribs., 637 F.2d
1376, 1382 (9th Cir. 1981) (noting that “Klor’s has often been criticized”). In NYNEX Corp. v.
Discon, Inc., 525 U.S. 128 (1998), the Supreme Court distinguished Klor’s on the basis that the
case “involv[ed] not simply a ‘vertical’ agreement between supplier and customer, but . . . [also]
a ‘horizontal’ agreement among competitors.” Id. at 136. That is, not only did Broadway-Hale
vertically agree with each manufacturer and distributor to boycott Klor’s, but also the
manufacturers and distributors “horizontal[ly] agree[d] among [themselves] . . . to hurt
[Broadway-Hale’s] competitor.” Id. at 135. Taken together, Klor’s and NYNEX Corp. indicate
that the per se rule continues to apply to “situations in which a vertical player organizes a
horizontal cartel.” United States v. Apple, Inc., 791 F.3d 290, 323 (2d Cir. 2015).
In other words, Klor’s entailed an instance of a “hub-and-spoke” conspiracy, “in which
an entity at one level of the market structure, the ‘hub,’ coordinates an agreement among
competitors at a different level, the ‘spokes.’” Id. at 314. According to the Second Circuit, huband-spoke arrangements “consist of both vertical agreements between the hub and each spoke
and a horizontal agreement among the spokes ‘to adhere to the [hub’s] terms.’” Id. (quoting VI
Areeda & Hovenkamp (3d ed.), supra, at ¶ 1402c). Thus, notwithstanding the “‘hub-and-spoke’
metaphor,” the plaintiff “must also prove the existence of a ‘rim’ to the wheel in the form of an
agreement among the horizontal competitors.” Id. at 314 n.15. For example, in United States v.
Apple, Inc., the Second Circuit held that Apple had “orchestrated a horizontal conspiracy among

15

[publishers] to raise ebook prices” by vertically contracting with each publisher under terms that
“were only attractive . . . to the extent [the publishers] acted collectively.” Id. at 297, 320. Even
though the contracts themselves “might well, if challenged, have to be evaluated under the rule
of reason,” the Second Circuit held that Apple was liable for the entire conspiracy under the per
se rule because it used the vertical contracts to “organize[] a horizontal cartel.” Id. at 323.
Apple shows why Klor’s is inapposite to the present case: simply put, the Ironworkers
have not placed a rim on their alleged wheel. Besides stating that the employers are members of
associations (which, as noted above, is not enough to show a horizontal agreement), the
Ironworkers have not shown or provided a reasonable basis to infer any agreement among the
employers to drive the Ironworkers out of the market.10 Absent such an agreement, the
Carpenters’ allegedly pernicious motives on their own do not suffice to overcome the
“presumption in favor of [the] rule-of-reason standard.” Bus. Elecs. Corp., 485 U.S. at 726.
2. Are the CBA clauses an “exclusive dealing” arrangement?
The Ironworkers have failed to introduce “evidence of any horizontal agreement among
general contractors or among [labor unions] to foreclose the plaintiffs from the . . . market.” See
ASE II, 815 F.3d at 64. Instead, the Ironworkers have shown the existence of a series of vertical
agreements between the Carpenters (as suppliers of labor) and employers (as purchasers), by
which the employers committed to obtain their labor only from unions affiliated with the

10

Moreover, even if membership in an association sufficed, the Carpenters signed CBAs with
multiple employers’ associations, none of which are alleged to have been in horizontal
agreements with one another. The amount of the market that would have been covered by any
one hub-and-spoke agreement with a single employers’ association would be too small to
amount to a per se violation of the Sherman Act. Cf. Premier, 814 F.2d at 371 (holding that per
se treatment was appropriate because “[t]he agreement . . . affected 100 [percent] of an
economically significant market”).
16

Carpenters. The Carpenters assert that those “vertical arrangements” most closely resemble an
“exclusive dealing” agreement and should be analyzed under the rule of reason. Cf. id. at 67.
An exclusive dealing agreement is “a contract between a [supplier] and a buyer that
forbids the buyer from purchasing the contracted [service] from any other seller.” XI Phillip E.
Areeda & Herbert Hovenkamp, et al., Antitrust Law ¶ 1800, at 3 (2d ed. 2005) (“Areeda &
Hovenkamp (2d ed.)”). Unlike a group boycott, an exclusive dealing agreement “is not a per se
violation of the antitrust laws.” Stop & Shop Supermkt. Co. v. Blue Cross & Blue Shield of R.I.,
373 F.3d 57, 62 (1st Cir. 2004) (“Stop & Shop”). Instead, “[e]xclusive dealing arrangements
have a significant efficiency potential,” were “generally approved” at common law, and “simply
do not belong in a classification of practices that are even presumptively condemned without
market analysis.” XI Areeda & Hovenkamp (2d ed.), supra, ¶ 1820, at 4, 161, 163. As a result,
“[e]xclusive dealing contracts are analyzed under the rule of reason.”11 Minn. Ass’n of Nurse
Anesthetists v. Unity Hosp., 208 F.3d 655, 660 (8th Cir. 2000) (citing Tampa Elec. Co. v.
Nashville Coal Co., 365 U.S. 320, 333–35 (1961)).
The Ironworkers insist unpersuasively that the CBA clauses are not exclusive dealing
agreements, and propose five criteria for identifying such arrangements. According to the
Ironworkers, exclusive dealing agreements consist only of arrangements whereby:
(1) the buyer agrees to purchase all of its “supplies” from one source;
(2) the agreement provides some business justification or pro-competitive
features favorable to the buyer to warrant the exclusive arrangement;

11

The Ironworkers argued at the hearing that “a group exclusive dealing arrangement . . . is an
oxymoron because a group exclusive dealing arrangement is the definition of a concerted refusal
to deal.” Mot. Hr’g Tr. (Jan. 24, 2018), Doc. No. 148, at 23–24. That reasoning begs the
question, however, for it assumes that CBA clauses entail horizontal agreements among the
employers. I already have determined that the Ironworkers have not supported that assumption
with evidence.
17

(3) the term of the arrangement is limited to a short-term, such as 2–3
years;
(4) the exclusive arrangement is reached after a competitive bidding
process; and
(5) the agreement is vertical and not horizontal.
Suppl. Mem. Opp’n Mot. Summ. J., Doc. No. 116, at 10–11.
The first and last of the Ironworkers’ proposed criteria are (partially) correct,12 but the
middle three only relate to the reasonableness of an exclusive dealing agreement, not whether it
constitutes such an agreement at all. By asserting that “there are no pro-competitive effects or
business justifications” to support the CBA clauses, see Suppl. Mem. Opp’n Mot. Summ. J.,
Doc. No. 116, at 11; that the Carpenters’ “arrangements with the various [employers] have been
in existence for over 20 years,” id. at 11; and that “there was no competitive bidding process
before reaching the agreements,” id. at 11, the Ironworkers might indicate that the CBA clauses
“constitute[] an unreasonable restraint of trade . . . under the rule of reason.” Virgin Atl. Airways
v. British Airways, 257 F.3d 256, 263 (2d Cir. 2001) (“Virgin Atl.”). But they do not transform
those plainly vertical restraints into a horizontal group boycott.13

12

With respect to the first proposed criterion, a seller also might contract to sell exclusively to
one buyer (as when a parts supplier agrees to sell only to one automobile manufacturer).

13

Risibly, the Ironworkers also suggest that the CBA clauses are not exclusive dealing
agreements because the general contractors and the unions are not in “a ‘business’ relationship,
but rather, a ‘labor’ relationship.” Suppl. Mem. Opp’n Mot. Summ. J., Doc. No. 116, at 11. That
the unions are not for-profit businesses is irrelevant; for purposes of the various entities’ location
in the market, the unions “supply” labor and the general contractors “purchase” it. Furthermore,
if the unions are conceived of as “labor” rather than “business” entities, then it is not clear why
they should be subject to antitrust scrutiny at all (which was, in fact, the Carpenters’ argument in
contending that the CBA clauses fell within the non-statutory exemption).
18

3. Should all non-exempt labor arrangements be regarded as per se antitrust violations?
Finally, the Ironworkers try to earn per se treatment by invoking a presumption against
superfluity. Cf., e.g., Kawashima v. Holder, 565 U.S. 478, 486 (2012) (discussing presumption
against superfluities in statutory interpretation). The reason that the Supreme Court developed
the non-statutory labor exemption, they argue, “is because it was so obvious that any multiemployer bargaining association violates the antitrust laws.” See Mot. Hr’g Tr. (Jan. 24, 2018),
Doc. No. 148, at 12. Were labor agreements analyzed under the rule of reason, the Ironworkers
claim that the non-statutory exemption would be unnecessary. Therefore, the Ironworkers assert,
the existence of the non-statutory exemption means that all non-exempt agreements should be
regarded as per se violations of the antitrust laws. That theory is flatly wrong.
The Second Circuit has expressly stated that “the failure of [a] defendant[’s] claim for
complete antitrust immunity does not mean that plaintiffs are entitled to prevail.” Jacobi v.
Bache & Co., 520 F.2d 1231, 1237 (2d Cir. 1975) (Friendly, J.). The Third Circuit, too, has
observed that “[a] finding that particular union conduct . . . is non-exempt . . . should not drive a
court inexorably to the conclusion that the union has violated the antitrust laws.” Larry V. Muko,
Inc. v. Sw. Pa. Bldg. & Constr. Trades Council, 670 F.2d 421, 426 (3d Cir. 1982) (“Muko II”).
Precisely because “the rule of reason provides the ‘breathing space’ necessary” for the labor laws
to work, see Jacobi, 520 F.2d at 1239, courts “caution against mechanical or imprudent
application of the per se rule in the labor context.” Muko II, 670 F.2d at 426.
In fact, when the Second Circuit has analyzed non-exempt labor conduct under the
antitrust laws, it has applied the rule of reason as a matter of course. See Berman Enters. v. Local
333, United Marine Div., Int’l Longshoremen’s Ass’n, 644 F.2d 930, 936–37 (2d Cir. 1981); see
also Commerce Tankers Corp. v. Nat’l Maritime Union of Am., AFL-CIO, 553 F.2d 793, 802 (2d
Cir. 1977) (“[E]ven if the ‘nonstatutory’ exemption does not apply, there is at least a substantial
19

question whether a per se approach under the antitrust laws is applicable in the case of a nonexempt labor activity.”); id. at 802 n.8 (citing with approval Professor Handler’s conclusion that
“the [Supreme] Court intended that there be a full-scale rule of reason inquiry in every instance
in which a non-exempt activity is claimed to be in violation of antitrust”) (quoting Handler,
Labor and Antitrust: A Bit of History, 40 Antitrust L.J. 233, 239–40 (1971)); cf. Jacobi, 520 F.2d
at 1238 (“[W]ithin the area of supervised self-regulation contemplated by the Securities
Exchange Act, per se concepts are generally displaced and the courts are to examine whether the
particular restraint, even though it would be a per se violation if performed by others, was
reasonable.”). That precedent indicates I should apply the rule of reason in this case.
Although the Third Circuit—which has addressed the question in greater detail—has left
open the possibility of applying the per se rule in the labor contest “where appropriate,” that
court also has held that “[i]n most cases the rule of reason will supply the measure of illegality.”
Muko II, 670 F.2d at 427–28. Under the Third Circuit’s test, if “union activity falls outside the
protection of the labor exemption,” then the “court must apply traditional antitrust principles in
determining whether the activity in question violates the antitrust laws.” Id. at 427. Even
assuming, arguendo, that the Second Circuit would follow the Third Circuit’s standard, I already
have determined that per se condemnation would not be warranted under “traditional antitrust
principles.” Id. Accordingly, the per se rule does not apply.
In antitrust cases, “there is a presumption in favor of [the] rule-of-reason standard,” and
any “departure from that standard must be justified by demonstrable economic effect.” See Bus.
Elecs. Corp., 485 U.S. at 726. Here, the Ironworkers have not justified such a departure. Thus, I
conclude that the CBA clauses must be analyzed under the rule of reason.

20

B. Do the CBA clauses function as unreasonable restraints under the rule of reason?
The rule of reason analysis “requires a burdensome multipart showing.” ASE II, 815 F.3d
at 67. First, the “plaintiff bears the initial burden of showing that the challenged action has had
an actual adverse effect on competition as a whole in the relevant market.” Capital Imaging, 996
F.2d at 543. “The fact that the defendant’s actions prevent a plaintiff from competing in a market
is not enough, standing alone, to satisfy this initial burden of proof.” Virgin Atl., 257 F.3d at 264.
If the plaintiff “surmounts its first hurdle,” then “the burden shifts to the defendant to offer
evidence of the pro-competitive ‘redeeming virtues’” of the challenged conduct. Id.; Capital
Imaging, 996 F.2d at 543. Should the defendant “come[] forward with such proof, the burden
shifts back to plaintiff for it to demonstrate” that “the same procompetitive effect could be
achieved through alternative means that are less restrictive of competition.” Virgin Atl., 257 F.3d
at 264; Capital Imaging, 996 F.2d at 543. Ultimately, in order to prove a violation of the
Sherman Act, the plaintiff must show that the challenged conduct “will have an actual adverse
effect on competition in the relevant market.” Elec. Commc’ns Corp. v. Toshiba Am. Consumer
Prods., 129 F.3d 240, 244 (2d Cir. 1997).
1. Lack of antitrust injury
As an initial matter, I question whether the labor union plaintiffs—the Iron Workers,
Sheet Metal Workers, and Glaziers—have standing to attack the CBA clauses.14 “[I]n order to
have standing to prosecute private antitrust claims, plaintiffs must show more than that the

14

Previously, at the outset of the case, I denied the Carpenters’ motion to dismiss the union
plaintiffs’ claims for lack of antitrust standing and concluded that the latter had “stated an injury
that is recognized under antitrust law.” 2012 WL 951793, at *14. With the benefit of a fuller
record, however, I “revisit the issue on summary judgment.” See IM Partners v. Debit Direct,
394 F. Supp. 2d 503, 521 n.12 (D. Conn. 2005); cf. Dorking Genetics v. United States, 76 F.3d
1261, 1271 (2d Cir. 1996) (noting that a 12(b)(6) movant “may . . . ask the district court to revisit
[an] issue on summary judgment after discovery”).
21

defendants’ conduct caused them an injury.” Balaklaw v. Lovell, 14 F.3d 793, 797 (2d Cir.
1994). They must show “antitrust injury, which is to say injury of the type the antitrust laws
were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Id.
(quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 489 (1977)). “[I]njuries
resulting from competition alone are not sufficient to constitute antitrust injuries.” Id. Instead,
the test for antitrust injury is essentially economic. A private plaintiff must
identify the economic rationale for a business practice’s illegality under
the antitrust laws and show that its harm flows from whatever it is that
makes the practice unlawful. If the plaintiff’s injury is directly related to
the competitive evil that makes a practice unlawful, then that harm is
antitrust injury. If, however, the harm doers not flow from a competitive
evil, then it may be injury-in-fact, but not be an antitrust injury.
IIA Phillip E. Areeda & Herbert Hovenkamp, et al., Antitrust Law ¶ 391, at 318, 320 (3d ed.
2007) (“Areeda & Hovenkamp (3d ed.)”).
In an exclusive dealing case, plaintiffs may show injury-in-fact by “argu[ing] that they
are foreclosed (or excluded) from a market,” i.e., that they have been “denied the ability to make
sales that they would otherwise have made.” Id. ¶ 397, at 435. But not every injury-in-fact
constitutes an antitrust injury. For instance, an “exclusive-dealing partner whose business
relationship was terminated in favor of another exclusive-dealing partner” is “[c]learly not a
victim of antitrust injury.” XI Areeda & Hovenkamp (2d ed.), supra, ¶ 1823, at 199.
That essentially is the situation presented here. “Hot cargo” clauses are “standard in
construction industry CBAs, including those of the Plaintiff unions.” See Mem. Supp. Mot.
Summ. J., Doc. No. 86, at 10. Stripped of rhetoric, the gravamen of the Ironworkers’ complaint
is that the Carpenters have used their CBA clauses to enter into exclusive dealing arrangements
with employers who formerly had exclusively dealt with the Ironworkers. The resulting “turf
battle,” Ironworkers II, 869 F.3d at 97, between two beneficiaries of exclusive dealing
arrangements is not properly adjudicated under the antitrust laws. Cf. Elec. Commc’ns Corp., 129
22

F.3d at 244 (“[I]t is simply not an antitrust violation for a manufacturer to contract with a new
distributor, and as a consequence, to terminate his relationship with a former distributor, even if
the effect of the new contract is to seriously damage the former distributor’s business.”).
Consider Balaklaw v. Lovell, in which a hospital switched its exclusive contract for
anesthesiology services from one anesthesiologist (Balaklaw) to another (King). Balaklaw
challenged the hospital’s exclusive dealing agreement with King under the Sherman Act. See 14
F.3d at 795–96. The Second Circuit held that Balaklaw had not suffered an “antitrust injury”
because there was “no foreclosure of competition.” Id. at 799 (internal quotation marks omitted).
“From the consumers’ point of view,” the Court reasoned, “nothing about the market ha[d]
changed,” because Balaklaw already “had exclusive control over anesthesiology services” at the
hospital “prior to the [challenged] agreement.” Id. at 798. As a result, the hospital’s choice of one
set of exclusive dealing partners over another was “only a reshuffling of competitors” and did
not increase or decrease opportunities for competition in the market. Id. at 798 (quoting Coffey v.
Healthtrust, Inc., 955 F.2d 1388, 1393 (10th Cir. 1992)). Recalling that the antitrust laws
“require plaintiffs to establish that the defendants engaged in anticompetitive conduct that caused
them an antitrust injury,” id. at 800 (emphasis added), the Second Circuit held that Balaklaw—
who “entered the competition for an exclusive contract . . . [and] lost”—did not suffer “an injury
of the type the antitrust laws were intended to prevent.” Id. at 802.
The Ironworkers attempt to distinguish Balaklaw on the basis that the plaintiff “had
participated in a competitive process to obtain the exclusive contract,” Mem. Opp’n Mot. Summ.
J., Doc. No. 100, at 49, which (they allege) did not occur here. But the mere fact that the
Carpenters and the Ironworkers did not participate in a formal competitive process does not
mean that the choice of one over the other was more than “a reshuffling of competitors.” Cf.

23

Balaklaw, 14 F.3d at 798. According to the Ironworkers, the work at issue here was
“traditionally performed by [them]” and “never sought” by the Carpenters. Cf. Ironworkers II,
869 F.3d at 98; Ironworkers I, 157 F. Supp. 3d at 177; see Local Rule 56(a)2 Statement, Doc.
No. 98, at 2 (“Plaintiff contractors performed eighty percent of the panel work ten years ago . . . .
Iron Workers and Glaziers performed one hundred percent of the panelized window systems,
punch windows, curtain wall installation and store fronts ten years ago . . . .”) (internal
parentheticals omitted). When the Carpenters began to obtain such work, the Ironworkers may
have suffered “injury [as] a competitor,” see Virgin Atl., 257 F.3d at 265, but that substitution of
exclusive contractors did not by itself create “an adverse effect on competition market-wide.”
Todd v. Exxon Corp., 275 F.3d 191, 213 (2d Cir. 2001) (Sotomayor, J.). Because the Ironworkers
have not shown that their injury stemmed from “impairment of the competitive structure of the
market,” see Stop & Shop, 373 F.3d at 66 (citing Brown Shoe Co. v. United States, 370 U.S. 294,
344 (1962)), they did not suffer—and do not have standing to raise—antitrust injury.15
“The Sherman Act . . . [is] designed to protect competition, not individual competitors.”
Virgin Atl., 257 F.3d at 265. Here, the Ironworkers’ “simple loss of business” does not establish
an antitrust injury, Stop & Shop, 373 F.3d at 66; “at most it reflects only harm to individual
competitors, not to competition.” Unity Hosp., 208 F.3d at 661–62.
2. Lack of adverse effect on competition
The other plaintiffs—M.R.S., Barrett, Peterson, Berlin Steel, Connecticut Ironworkers,
and Sheet Metal Contractors—do appear to have antitrust standing to pursue Sherman Act

15

I held to the contrary in response to the motion to dismiss because the Carpenters had merely
argued that the unions’ “harm[s] [were] too indirect to support standing.” See 2012 WL 951793,
at *14. As discovery has now shown, however, the problem is not that the unions’ harms are
indirect; it is that they are only are only harms to competitors, rather than to competition.
24

claims. Nevertheless, their claims (along with those of the labor unions) fail at the rule of
reason’s first hurdle. Viewed in the light most favorable to the Ironworkers, the evidence would
not permit a reasonable trier of fact to find that “the challenged action has had an actual adverse
effect on competition as a whole in the relevant market.” Capital Imaging, 996 F.2d at 543. To
show an “adverse effect on competition,” id., the Ironworkers rely heavily on the testimony of
their expert witness, Prof. Edward Deak. Deak’s report states that the restrictive clauses
“potentially raise[] the price” of labor by “limit[ing] . . . the number of bidders.” Deak Rep., Ex.
5 to Carroll Aff., Doc. No. 88-5, at 67 (emphasis added). The report cites no evidence, however,
to show that the clauses have had or are likely to have “an actual adverse effect” on prices. Cf.
Capital Imaging, 996 F.2d at 543. Indeed, Deak acknowledged during his deposition that he
“didn’t test the [CBA clauses’] impact on price” and “didn’t do any analysis about whether the
[C]arpenters’ conduct increased prices.” Deak Dep. (Mar. 24, 2014), Ex. 6 to Carroll Aff., Doc.
No. 88-6, at 8, 9. Furthermore, Deak’s report admits that “[u]nion carpenter hourly wages . . . are
recognized as being lower than the hourly rates for union ironworkers,” Deak Rep., Doc. No. 885, at 64, which hardly supports the conclusion that excluding the (higher-priced) Ironworkers
from bidding would increase costs.16
Deak speculates that overall prices might increase because “[u]nion carpenters may
require more hours of labor than other union trades in performing the work,” id., but there is no
evidence to substantiate that supposition in the record. Deak testified that he “did not do . . . any

16

In their Answers to Interrogatories, the Carpenters offered “reduce[d] [ ] labor costs” due to
lower “[w]age and benefit rates” as one reason that general contractors agreed to the restrictive
clauses with the Carpenters. See Deak Rep., Ex. 5 to Carroll Aff., Doc. No. 88-5, at 73. As the
leading antitrust treatise notes, “[e]xclusive contracts are often ways of organizing the market to
encourage more competitive pricing than might otherwise occur,” such as by “grouping
purchases together into a single contract in order to reduce the costs of using the market.” XI
Areeda & Hovenkamp, supra, ¶ 1811, at 144.
25

analysis that said output was reduced because of the [C]arpenters” or that “the [C]arpenters’
conduct resulted in a reduction in quality.” Deak Dep., Doc. No. 88-6, at 9–10. Other evidence
suggests that the Carpenters and the Ironworkers were equally efficient: Roland Levesque, the
president and founder of plaintiff M.R.S. Enterprises, testified that the Carpenters “install[ed]
exterior metal panels . . . at about the same efficiency rate as . . . sheet metal workers or
ironworkers.” Local Rule 56(a)1 Statement, Doc. No. 87, at 22–23 (citing R. Levesque Dep.
(Dec. 18, 2013), Ex. 46 to Carol Aff., Doc. No. 88-46, at 4). The Ironworkers complain that
Levesque’s assessment “simply [represents] testimony of a particular witness,” Local Rule
56(a)2 Statement, Doc. No. 97, at 15, but they, not the Carpenters, bear the burden to introduce
sufficient evidence to show an “actual adverse effect on competition” under the rule of reason.
Capital Imaging, 996 F.2d at 543. They have not done so.
The Ironworkers also fail to substantiate their Sherman Act claims by showing “market
power.” Market power refers to “the ability to raise prices above those that would be charged in a
competitive market.” In re Aggrenox Antitrust Litig., 199 F. Supp. 3d 662, 665 (D. Conn. 2016)
(quoting NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 109 (1984)); see IIB Areeda &
Hovenkamp (3d ed.), supra, ¶ 501, at 109 (“Market power is the ability to raise price profitably
by restricting output. . . . A defendant firm has market power if it can raise price without a total
loss of sales.”). Market power can be shown directly, “by evidence of the control of prices or the
exclusion of competition,” or indirectly, by “proof that the defendant has a large percentage
share of the relevant market.” Heerwagen v. Clear Channel Commc’ns, 435 F.3d 219, 227 (2d
Cir. 2006). “The relevant market consists of a relevant product market and a relevant geographic
market.” Id. For exclusive dealing claims, “a plaintiff makes a prima facie case . . . by showing
market structure, power, and coverage of the exclusive-dealing arrangement sufficient to create

26

an inference of reduced output and higher prices in the affected market.” XI Areeda &
Hovenkamp (2d ed.), supra, ¶ 1820, at 161. The required degree of foreclosure to state a prima
facie case in the exclusive dealing context is at minimum “30 or 40 percent.” See ASE II, 815
F.3d at 61; accord XI Areeda & Hovenkamp (2d ed.), supra, ¶ 1822, at 194.
Here, the Ironworkers’ effort to show market power fails because the report of their
expert witness, Dr. Deak, does not establish a well-defined market or the Carpenters’ share
within it. The boundaries of the proposed product market are highly uncertain: Deak seems to
arbitrarily limit the product market to union labor, even though many general contractors
presumably hire non-union labor as well (and the Carpenters themselves allegedly “regard[] nonunion carpenter work as [their primary] competition”). See Deak Rep., Doc. No. 88-5, at 66. In
addition, Deak does not identify the dollar value of the relevant market; the total number of
general contractors in the market; or even the number of signatories to the Carpenters’ CBAs.
Compare id. at 66 (stating that “[t]he [Carpenters] already ha[ve] approximately 400–700
signatory members throughout their six state region including the sub-state relevant market”)
with id. at 67 (stating that “some 700 [general contractor]s and [construction manager]s have
signed with the [Carpenters] throughout New England”).
With respect to the boundaries of the proposed geographic market, Deak purports to
establish (based on the parties’ headquarters and the jurisdictions defined in the CBAs) a precise
geographic market consisting of Connecticut, Rhode Island, and four counties in western
Massachusetts. Id. at 46. Nevertheless, throughout his report, Deak seems to rely on evidence of
the Carpenters’ market share throughout the larger New England region. See, e.g., id. at 75
(“[T]he Carpenters are currently signatory with hundreds of construction managers in the New
England area and continue to sign additional construction managers.”). Because the Carpenters

27

are headquartered in Boston and maintain separate CBAs for work in the “Eastern Massachusetts
Jurisdictional Area,” to conflate their (perhaps dominant) market share in the Boston area with
their market share in Connecticut, Rhode Island, and western Massachusetts likely overstates the
Carpenters’ power in the relevant geographic market. Simply put, the Ironworkers have “not
supplied” the “reliable numbers” and geographic boundaries that “are an essential starting point”
for a market power analysis. See Stop & Shop, 373 F.3d at 68.
The Ironworkers’ case boils down to an unwarranted presumption against exclusive
dealing agreements. They assert that “you do not have to be an expert in economics to know that
if you eliminate competition, prices will eventually rise [and] quality will suffer.” Mem. Opp’n
Mot. Summ. J., Doc. No. 100, at 42. But that argument begs the question, for “[e]xclusive
dealing foreclosing upstream rivals from access to downstream markets may not produce any
competitive harm at all.”17 XI Areeda & Hovenkamp (2d ed.), supra, ¶ 1802, at 69. Even when a
plaintiff suffers a “‘foreclosure’ injury” in the form of “den[ial of] access to a market” that would
otherwise be open, that “private injury . . . may not be injury to competition.” Id. at 71 (emphasis
added). “Whether [ ] competition is injured depends on the availability of alternative[s],” as well
as “how competitive the market was to begin with.” Id. at 69.
Because the Ironworkers have not provided any evidence of “lower output and higher
prices in a properly defined market,” they have not shown “injury to ‘competition,’” but (at
most) merely injury to themselves as competitors. See id. That does not suffice to state a prima

17

“As a matter of convention,” the “upstream participant in a transaction” is the “supplier,”
Herbert Hovenkamp, Antitrust Policy, Restricted Distribution, and the Market for Exclusionary
Rights, 71 Minn. L. Rev. 1293, 1307 n.64 (1987)—here, the Carpenters. Through use of the
exclusionary CBA clauses, the Carpenters have “foreclos[ed] [their] upstream rivals,” the
Ironworkers, “from access to downstream [purchasers],” the employers. See XI Phillip E. Areeda
& Herbert Hovenkamp et al., Antitrust Law ¶ 1802, at 69 (2d ed. 2005).
28

facie case under the rule of reason. See NYNEX Corp., 525 U.S. at 135 (“[T]he plaintiff . . . must
allege and prove harm, not just to a single competitor, but to the competitive process, i.e., to
competition itself.”); Virgin Atl., 257 F.3d at 259 (“[W]hat the antitrust laws are designed to
protect is competitive conduct, not individual competitors.”). Hence, I grant the defendant’s
motion for summary judgment for failure to show an adverse effect on competition.
IV.

Conclusion
For the foregoing reasons, I grant the Carpenters’ motion for summary judgment. The

Clerk shall enter judgment in favor of the defendant and close the case.

So ordered.
Dated at Bridgeport, Connecticut, this 23rd day of May 2018.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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