Tri-Gen Incorporated v. Int'l Union 150 , 433 F.3d 1024 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1389
TRI-GEN INCORPORATED, doing business
as GENERAL DRILLING, INCORPORATED,
Plaintiff-Appellant,
v.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL-CIO,
WILLIAM E. DUGAN, and KEVIN TROGLIO,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 03 C 9—Allen Sharp, Judge.
____________
ARGUED SEPTEMBER 27, 2005—DECIDED JANUARY 18, 2006
____________
Before FLAUM, Chief Judge, and BAUER and SYKES,
Circuit Judges.
BAUER, Circuit Judge. Tri-Gen Incorporated (“General
Drilling”) sued International Union of Operating Engineers,
Local 150, AFL-CIO (“Local 150”) in district court for
federal labor and antitrust violations. Local 150 moved for
dismissal and summary judgment on all counts. The district
court ruled in favor of Local 150 and entered judgment as
a matter of law. We affirm.
2 No. 05-1389
I. Background
General Drilling is a non-union company that owns
large drill rigs and drills blast holes for limestone quar-
ries in Indiana, Kentucky, Tennessee, and Illinois. Drilling
blast holes is the first step in the process of mining lime-
stone from a quarry. The following people hold high-ranking
positions at General Drilling: William Boatman is presi-
dent, David Keil is a director, and Catherine Diehr is
secretary, controller, and treasurer. Chicago companies,
such as Raimonde Drilling (Raimonde), Ludwig Explosives
(Ludwig), Callahan & Schoe, and Lambert Drilling also
subcontract to drill blast holes. These four are known
collectively as “the Chicago union drillers.” A Wisconsin
driller, Finn Drill, also competes with General Drilling
and the Chicago union drillers for drilling work.
Local 150 is a labor organization that represents em-
ployees in the material production industry in northwest
Indiana, northern Illinois, and northeast Iowa. The North-
ern Illinois Material Producers Agreement (“NIMPA”) is
a multi-employer association collective bargaining agree-
ment between material producers and Local 150. All of the
Chicago union drillers and Finn Drill are signatories to the
NIMPA. Unlike its competitors, General Drilling has not
signed the NIMPA. Kevin Troglio serves as the agent for
Local 150 members employed by Raimonde, Ludwig,
Callihan & Schoe, and Finn Drill. He is authorized to
represent any Local 150 member employed by a signatory
contractor if that contractor performs work in his juris-
diction.
Quarry owners in northwest Indiana include Vulcan
Materials (Vulcan), Prairie Materials (Prairie), Northern
Indiana Materials Company (Northern Indiana), and
Material Service. Material Service has operated quarries in
northwest Indiana since approximately 2000, when it
purchased three quarries. The following people serve in
No. 05-1389 3
high-ranking positions for Material Service: David Olson is
senior vice president of operations, Michael Bernardi is vice
president for human resources and administration, Scott
Jorns is manager of drilling and blasting, and Rick
McElfresh is a superintendent.
Material Service does its own drilling at its quarries in
northeast Illinois, but not at its northwest Indiana quarries.
When Material Service originally purchased the Indiana
quarries, General Drilling was doing the drill work. After
the purchase, Material Service decided to continue using
General Drilling as the contract driller for the quarries
because, under Boatman’s leadership, General Drilling had
performed satisfactory work. Material Service is a signatory
to the NIMPA. Material Service also had a separate
collective bargaining agreement with Local 681, Interna-
tional Union of Laborers (Laborers) for its employees who
do drilling work.
In 1996, Troglio met with General Drilling officials
Boatman, Diehr, and Keil to discuss the company’s drill
work at quarries near Manteno, Illinois, owned by Vulcan
and Prairie. Troglio stated that he wanted General Drilling
to “be Union or be out” of Illinois. He also stated that
General Drilling was not paying the prevailing area wage.
Boatman disagreed. Troglio also stated that he was “under
pressure” from the Chicago union drillers. Shortly thereaf-
ter, General Drilling decided to relinquish its drilling work
in Illinois. After General Drilling left, Ludwig took over the
work at the Manteno quarries.
On March 29, 2002, Local 150 sent a letter to General
Drilling claiming that General Drilling was engaged in the
construction industry and was paying wages below those
established in the area by Local 150. Local 150 also threat-
ened pickets to advertise to the public the inadequate
wages. After receiving the letter, General Drilling officials
met with Troglio on two occasions in the spring of 2002 to
4 No. 05-1389
discuss the company’s operations in northwest Indiana.
General Drilling secretly recorded the two meetings. At the
time, General Drilling was drilling blast holes on a subcon-
tract basis at quarries throughout Indiana at quarries
owned by Vulcan, Northern Indiana, and Material Service.
Again, Troglio voiced his concern that General Drilling was
not paying the area wage according to the NIMPA and was
not “on the same playing field as those people within our
jurisdiction.” General Drilling was reluctant to sign the
NIMPA because it would have, as Diehr testified, “hugely”
increased General Drilling’s labor costs. Boatman for his
part argued that General Drilling paid its employees more
in wages and benefits than quarry employees who do drill
work. Again, there was talk of pressure from the Chicago
union drillers.
Troglio faxed a copy of the March 29th letter to Material
Service, with the added note: “Please review and any
support would be appreciated. Any questions please call.”
After receiving the letter, Olson and Bernardi decided to
develop a plan in case it became necessary to terminate
General Drilling. Olson instructed Jorns “to put a Plan B
together” to solicit bids from alternate drillers. All
involved Material Service officials testified that they
developed the Plan B because they wanted to avoid interfer-
ence with Material Service’s production and sales. Initially,
Jorns selected two drillers, Ludwig and Raimonde, as
possible replacements and received bids from them. Jorns
approved Ludwig, the lower bidder, as the replacement on
June 27, 2002. Material Service officials testified that
Troglio was not involved in the development of Plan B or in
the selection of the alternate driller.
Troglio met with Material Service employees twice, once
in May or June and again in June or July of 2002. At those
meetings, he explained his intention to start organizing
against General Drilling and informed them of the pos-
No. 05-1389 5
sible picket. He also educated them of their rights to cross
the picket line. On July 16, 2002, Troglio received final
authorization for the picket.
In August, McElfresh suggested to Boatman that he lease
his equipment to a new driller so that the work could
continue uninterrupted. After Boatman told him that he
would be contacted, Finn Drill’s president, Pat Garvin,
called McElfresh to schedule an appointment to view the
facility. Boatman had worked out a deal with Finn Drill
whereby the same equipment and personnel could operate
at the quarry under the Finn Drill name. Garvin toured the
quarry on August 14, 2002, and later that week came in
with the lowest bid. Finn Drill bid at $1.75 per foot, the
same rate that Material Service had paid to General
Drilling.
On August 15, 2002, Troglio sent a second letter to
Material Service describing its labor dispute with General
Drilling and notifying it of a possible common situs
picket. Attached to this letter was a list of some Chicago
union drillers. Both Ludwig, Jorns’ original alternate
driller, and Finn Drill, the ultimate replacement, were on
the list. Troglio testified that he sent the list to quarry
owners that requested information about possible union
drillers.
On August 23, 2002, Local 150 picketed the Babcock
quarry in Rennselaer while General Drilling was work-
ing there. Local 150 displayed a notice mentioning Gen-
eral Drilling’s substandard wages and benefits. That same
day Material Service terminated General Drilling and
replaced it with Finn Drill. Material Service officials
testified that, had it not been for these pickets, General
Drilling would still be drilling for the company. Material
Service twice invited General Drilling back to drill at its
quarries, in the spring and fall of 2003. General Drilling
continues to work in northwest Indiana, at the Vulcan and
6 No. 05-1389
Northern Indiana quarries, and to solicit business in
northwest Indiana.
General Drilling sued Local 150, alleging that: (1) Local
150 conspired to restrain trade in violation of the Sher-
man Act; and (2) Local 150 engaged in unlawful picketing
against General Drilling and Material Service in violation
of Section 303 of the Labor Management Relations Act
(LMRA). Defendants moved to dismiss and for summary
judgment on all counts. The district court ruled in favor
of defendants on January 18, 2005, and plaintiff appealed.
II. Discussion
The district court considered defendants’ motions to
dismiss and for summary judgment together, and did not
clarify which motion it granted in defendants’ favor. Where,
however,
matters outside the pleadings were presented to and
not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given
reasonable opportunity to present all materials made
pertinent to such a motion by Rule 56.
Fed. R. Civ. P. 12(b). Adequate notice is provided when the
moving party frames its motion in the alternative as one for
summary judgment. See, e.g., Groden v. Random House,
Inc., 61 F.3d 1045, 1053 (2d Cir. 1995); Madewell v. Downs,
68 F.3d 1030, 1048 (8th Cir. 1995); Ninth Ave. Remedial
Group v. Allis-Chalmers Corp., 195 B.R. 716, 722 (N.D. Ind.
1996). Here, Local 150 filed both a motion to dismiss and a
motion for summary judgment. Accordingly, both parties
argued on appeal under the summary standard.
We review the district court’s grant of summary judgment
de novo. R.J. Corman Derailment Servs., LLC v. Int’l Union
No. 05-1389 7
of Operating Engineers, Local 150, 422 F.3d 522, 525 (7th
Cir. 2005). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The court must view the
evidence, and draw all reasonable inferences therefrom, in
the light most favorable to the nonmoving party. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); Landgrebe
Motor Transp., Inc. v. District 72, Int’l Assoc. of Machinists,
763 F.2d 241, 244 (7th Cir. 1985). The party that bears the
burden of proof on a particular issue cannot rest its case on
the pleadings, but must demonstrate by specific factual
allegations that there is a genuine issue of material fact
that requires a trial. Celotex, 477 U.S. at 324. The plaintiff
gets the benefit of the doubt “only if the record contains
competent evidence on both sides of a factual question.”
Patel v. Allstate Ins. Co., 105 F.3d 365, 367 (7th Cir. 1997).
If the plaintiff’s evidence is “merely colorable” or “not
significantly probative,” then there is no genuine issue for
trial and summary judgment is appropriate. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
A. Antitrust Claim
In its complaint, General Drilling asserted that Local 150
violated section 1 of the Sherman Act, 15 U.S.C. § 1,
because it entered into
schemes, understandings or conspiracies with one or
more of General Drilling’s union competitors to sup-
press price competition by forcing General Drilling’s
customers to terminate, and cease hiring, General
Drilling so that one or more of the union drillers might
8 No. 05-1389
get the business. Material Service was coerced into
effectuating the conspiracy.
Section 1 prohibits concerted anticompetitive activities,
including conspiracies, designed to restrain trade unreason-
ably. Vakharia v. Swedish Covenant Hosp., 190 F.3d 799,
810 (7th Cir. 1999). The Sherman Act “was enacted
to assure customers the benefits of price competition,
and . . . protect[ ] the economic freedom of participants in
the relevant market.” Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 538
(1983). Section 4 of the Clayton Act defines the class of
persons who may bring a private suit to enforce the
Sherman Act, providing a treble damages remedy to “any
person who shall be injured in his business or property
by reason of anything forbidden in the antitrust laws. . . .”
15 U.S.C. § 15.
The district court’s grant of summary judgment in favor
of Local 150 on the Sherman Act claims was based on the
following findings: (1) General Drilling could not establish
antitrust standing; (2) General Drilling fell short of demon-
strating a per se unreasonable restraint of trade; (3) Local
150 was entitled to the protection of the statutory exemp-
tion to the antitrust laws; and (4) General Drilling did not
sufficiently establish that Local 150 entered into
a conspiracy to achieve an unlawful purpose. We review the
summary judgment ruling de novo to determine whether a
genuine issue of material fact existed. To survive a defen-
dant’s motion for summary judgment, a plaintiff must
present sufficient evidence to show the existence of each
element of its case on which it will bear the burden at trial.
Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir.
1995).
1. Antitrust Standing
In order to bring an antitrust claim, a plaintiff must
establish that it has antitrust standing; that is, that its
No. 05-1389 9
claimed injuries are “of the type the antitrust laws were
intended to prevent” and “reflect the anticompetitive
effect of either the violation or of anticompetitive acts made
possible by the violation.” Brunswick Corp. v. Pueblo Bowl-
O-Mat, Inc., 429 U.S. 477, 489 (1977). General Drilling’s
complaint alleged that Local 150 “repeatedly sought to
suppress price competition by coercing General Drilling not
to do business in a given area.” In moving for summary
judgment Local 150 argued that General Drilling did not
have antitrust standing. In its brief opposing summary
judgment, instead of affirmatively asserting its standing,
General Drilling dismissed the standing argument with a
footnote stating that the cases cited by Local 150 do not
have “any applicability to the case at bar.”
In most instances, a plaintiff must demonstrate consumer
injury to have standing to assert antitrust violations. Wigod
v. Chi. Mercantile Exch., 981 F.2d 1510, 1515 (7th Cir.
1992). In this case, the quarry owner Material Service was
the consumer of the drilling services provided by General
Drilling and the Chicago union drillers. Material Service,
however, is not bringing this suit; General Drilling is.
General Drilling claims that it suffered an antitrust injury
as a competitor in the drilling services industry when Local
150 and the Chicago union drillers conspired to force
Material Service to terminate General Drilling. Because the
parties do not dispute that Material Service terminated
General Drilling, General Drilling plainly suffered a loss.
Transfer of business from one company to another, however,
without an accompanying effect on competition, cannot be
an antitrust violation, because “the antitrust laws . . . were
enacted for ‘the protection of competition, not competitors.’”
Midwest Gas Servs., Inc. v. Ind. Gas Co., 317 F.3d 703, 711
(7th Cir. 2003) (quoting Brunswick, 429 U.S. at 488). To
have standing as a competitor, General Drilling needed to
show that “its loss comes from acts that reduce output or
10 No. 05-1389
raise prices to consumers.” Stamatakis Industries, Inc. v.
King, 965 F.2d 469, 471 (7th Cir. 1992).
General Drilling failed to present evidence indicating
a negative effect on competition in the drilling services
market. The consumer, Material Service, purchased the
drilling services first from General Drilling and then from
Finn Drill. The undisputed record evidence reveals that the
price Material Service paid for those services did not change
under Finn Drill—the price remained $1.75 per foot, the
same as it was under General Drilling. Local 150 estab-
lished as much through Olson’s deposition testimony:
Q. Did you review the bids of Raimonde or Ludwig?
A. They were higher than what we were paying with
General Drilling. And Finn Drill was the exact
same amount. And I believe it was $1.75 per foot.
Because General Drilling did not present evidence to
contest this fact, no reasonable jury could find that the
claimed conspiracy resulted in raised prices to the con-
sumer, Material Service. Moreover, no record evidence
suggests that the claimed conspiracy reduced output in
the market.
In Stamatakis, 965 F.2d 469, Chicago firms provided color
separation services to advertising agencies. One of these
firms, the plaintiff, alleged that its competitor conspired
with others to deprive it of business in the market. This
Court upheld the district court’s grant of summary judg-
ment, holding that Premier did not suffer an antitrust
injury. Finding that the victims of the scheme were the
advertising agencies, the Court stated that because an
advertising agency “had no reason to bring higher prices
upon itself, it . . . [made] sense to infer that there was never
a threat to consumers.” Id. at 472. As for Premier’s decline
in sales, the Court held that “a producer’s loss is no concern
of the antitrust laws, which protect consumers from suppli-
ers rather than suppliers from each other.” Id. at 471.
No. 05-1389 11
The same reasoning applies with equal force here. As
in Stamatakis, the plaintiff supplier (of drilling services)
alleges that its competitors (the Chicago union drillers)
conspired with others to deprive it of business in the
market. The victims of this alleged antitrust scheme would
be quarry owners like Material Service, who would logically
not desire to bring higher prices upon themselves. More-
over, because the evidence reveals that prices did not rise
when Finn Drill took over, there in fact “was never a threat
to consumers.” Id. at 472. In fact, the evidence presented by
Local 150 reflects that Finn Drill was able to compete more
efficiently in the market than General Drilling. In her
deposition, Diehr testified that signing the NIMPA would
have “hugely” increased General Drilling’s labor costs. Finn
Drill, on the other hand, was able to drill at the same
quarry with the same rig and employee at the same price,
$1.75 per foot, and still pay higher wages under the
NIMPA. Again General Drilling offered no evidence to
dispute these facts. As this Court has held, the transfer of
a plaintiff’s business to a competitor who can compete more
efficiently in the marketplace is not an antitrust violation.
Midwest Gas, 317 F.3d at 712.
Finally, this Court has recognized that competitors can
bring an antitrust claim when they are excluded from the
market and injured by defendants’ actions. Serfecz, 67 F.3d
at 598. General Drilling was not excluded from the market.
General Drilling’s president, Boatman, testified in his
deposition that the company continues to work at the
Vulcan and Northern Indiana quarries, and continues to
solicit business in northwest Indiana. Moreover, Boatman
testified that Material Service twice invited General
Drilling back to drill at its quarries, in the spring and fall
of 2003. Because General Drilling presented no record
evidence to dispute these facts, no reasonable jury could
find that General Drilling was excluded from the market.
Summary judgment on this issue was proper.
12 No. 05-1389
2. Per Se Unreasonable Restraint of Trade
Because General Drilling could not establish an anti-
trust injury outright, it relied at argument before the
district court on the presumption of injury that arises from
a per se unreasonable restraint of trade. This Court has
held that antitrust remedies may be available without a
showing of market injury if an individual competitor
can show that the defendant’s anticompetitive actions
were per se illegal under Section 1. Wigod, 981 F.2d at 1515.
Per se violations are actions where the nature and neces-
sary effects that result are so plainly anticompetitive that
an in-depth analysis of their illegality is unnecessary. Id.General Drilling claims that “conspiracies to eliminate a
low price competitor to suppress price competition are per
se unreasonable restraints of trade.” A Sherman Act
combination “formed for the purpose and with the effect of
raising, depressing, fixing, pegging, or stabilizing the price”
in the marketplace is illegal per se. United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 223 (1940). To establish a
per se price-fixing conspiracy, a plaintiff must produce
evidence “that a combination was formed for the purpose of
fixing prices and that it caused them to be fixed or contrib-
uted to that result. . . .” Id. at 224.
General Drilling predicates its price-fixing conspiracy
claim on Troglio’s statements to General Drilling officials at
the 1996 and 2002 meetings. For instance, Keil testified
that Troglio spoke at the 1996 meeting of “complaints . . .
from the Union drillers.” According to Diehr, “there were
contract drillers up there that were not happy with General
Drilling being in their area.” Finally, Boatman testified that
Ludwig in particular “was the one that put pressure at
various times and tried to come down and get that busi-
ness.” Boatman could not testify to any specific conversa-
tions between Troglio and union drillers about General
Drilling.
No. 05-1389 13
The 2002 taped conversations also provide some indica-
tion of pressure from the Chicago union drillers. On
those tapes, Troglio is heard saying, “I have to get this
repaired. It is an issue. An issue to the other guys and
I gotta get this done.” When asked who it was an issue to,
Troglio replied, “Well, I’m not going to mention names
but you have got a lot of competition. . . .” Although he
would not specify, he intimated that the other parties
were General Drilling’s “signed competition.” When asked
in the deposition what names he had refused to mention,
Troglio replied, “None.” At other times on the tapes, Troglio
says, “Bill, I, we were to the point that I have to
do something about you” and “politically, you know, I’ve got
to do it.” General Drilling, then, presented some evidence of
a conspiracy. The evidence fails, however, to show that the
conspiracy was “formed for the purpose and with the effect
of” price-fixing, which is necessary to establish a per se
claim of price-fixing conspiracy. On tape, Troglio voices the
concerns that he shared with the Chicago union drillers:
KT: What I am talking about, Bill, is your competi-
tion. Be it Ludwig. Be it Raimonde. Be it Lam-
berts. Uh. Be it Calahan and Shue [sic]. Your
competition within our jurisdiction pays a rate.
That’s all I care about. That you’re on the same
playing field as those people within our jurisdic-
tion. . . .
Troglio and the Chicago union drillers, then, focused not on
the price paid by Material Service for the services General
Drilling provided, but on the amount of wages and benefits
General Drilling paid to their employees. There is no
evidence that Troglio ever discussed pricing with any of the
Chicago union drillers or with General Drilling. As dis-
cussed below in reference to the section 303 claims, Troglio
played no role in formulating Material Service’s decision to
terminate General Drilling or its choice of a driller to
replace General Drilling. Undisputed record evidence
14 No. 05-1389
reveals that Material Service paid the same price to Finn
Drill as it did to General Drilling for the drilling ser-
vices—the price remained at $1.75 per foot. Any evidence of
price-fixing was insufficient to survive summary judgment.
General Drilling’s reliance on Denny’s Marina, Inc. v.
Renfro Prods., Inc., 8 F.3d 1217 (7th Cir. 1993), to sup-
port its price-fixing claim is misplaced. In Denny’s Marina,
this Court held that the defendants’ actions constituted
a per se violation of the Sherman Act because the conspiracy
was both horizontal and formed for the purpose of fixing
prices. The Court found that a group of boat dealers in the
central Indiana market took concerted action to protect
themselves from price competition by the discounter,
Denny’s. When participating in industry boat shows,
Denny’s had a policy to “meet or beat” its competitors’
prices. As a result, its competitors complained and suc-
ceeded in preventing Denny’s from participating in the boat
show.
In contrast, General Drilling presented no evidence to
indicate that it was prevented from participating in the
northwest Indiana market. Instead, General Drilling
continues to solicit business and to work for Vulcan and
Northern Indiana in the market. General Drilling was
not even prevented from working for Material Service,
who asked General Drilling to work at its quarries again
twice in 2003. Because General Drilling neither presented
evidence from which a reasonable jury could find that it had
antitrust standing nor demonstrated a per se violation of
the Sherman Act, defendants were entitled to judgment as
a matter of law. The district court’s grant of summary
judgment on this issue was proper.
B. Section 303 Claim
The National Labor Relations Board (NLRB) is vested
with primary jurisdiction to determine what constitutes
No. 05-1389 15
an unfair labor practice. Kaiser Steel Corp. v. Mullins, 455
U.S. 72, 83 (1982). “As a general rule, federal courts do
not have jurisdiction over activity which ‘is arguably subject
to § 7 or § 8 of the [NLRA],’ and they ‘must defer to the
exclusive competence of the National Labor Relations
Board.’ ” Id. (quoting S.D. Bldg. Trades Council v. Garmon,
359 U.S. 236, 245 (1959)). Federal courts may decide labor
law questions that arise as collateral issues in suits brought
under independent federal remedies, such as the antitrust
laws. Connell Constr. Co. v. Plumbers Local Union 100, 421
U.S. 616, 626 (1975). As discussed above, however, there is
no viable antitrust claim in this case, so the court cannot
assert jurisdiction over the section 303 claims as collateral
to the antitrust claim.
District courts may also entertain suits brought for
violations of section 158(b)(4) of the NLRA. 29 U.S.C.
§ 187(b). Section 303 of the LMRA, 29 U.S.C. § 187(a),
prohibits unions from engaging in any activity or con-
duct defined as an unfair labor practice in section 158(b)(4).
Section 158(b)(4) defines an unfair labor practice, in
relevant part, as an attempt by a labor organization:
(ii) to threaten, coerce, or restrain any person engaged
in commerce or in an industry affecting commerce,
where in either case an object thereof is . . .
(B) forcing or requiring any person . . . to cease doing
business with any other person. . . .
29 U.S.C. § 158(b)(4). The statute permits a union to
pressure an employer with whom it has a primary labor
dispute. BE&K Constr. Co. v. Will & Grundy Counties Bldg.
Trades Council, 156 F.3d 756, 761 (7th Cir. 1998). But a
union may not advance its cause by pressuring unrelated,
secondary employers to stop dealing with the primary
employer. Id. Moreover, union pressure is unlawful under
section 158(b)(4) where the union acts with “mixed mo-
tives,” partially primary and partially secondary. Mautz &
Oren, Inc. v. Teamsters Union, Local 279, 882 F.2d 1117,
16 No. 05-1389
1121 (7th Cir. 1989). In such a situation, “it is not necessary
to find that the sole object of the strike was secondary so
long as one of the union’s objectives was to influence the
secondary employer to bring pressure to bear on the pri-
mary.” Id.With a conclusory analysis, the district court granted
summary judgment in favor of Local 150 on the plaintiff’s
Section 303 claim. Because we review this ruling de novo,
we must determine if a genuine issue of material fact
existed for the trier of fact to determine. The district court
properly granted summary judgment in favor of Local 150
only if General Drilling presented no probative evidence
from which a reasonable jury could find Local 150’s activi-
ties violated 158(b)(4). See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If there was no genuine issue of
material fact as to whether the union’s conduct was pro-
tected primary activity, then summary judgment was
proper. Landgrebe Motor Transp., Inc. v. District 72, Int’l
Assoc. of Machinists, 763 F.2d 241, 245 (7th Cir. 1985).
1. Lawful Primary Picketing
Where a union has a grievance with the terms and
conditions of employment of a particular employer, the
primary employer, it must focus its picketing activity on
that employer. Mautz & Oren, 882 F.2d at 1121. The district
court properly granted summary judgment in favor of Local
150 only if General Drilling presented no probative evidence
from which a reasonable jury could find that Local 150’s
activities violated section 158(b)(4). See Anderson, 477 U.S.
at 248. Because Local 150 was involved in a primary labor
dispute with General Drilling, there was no genuine issue
of material fact regarding the primary nature of Local 150’s
conduct against General Drilling.
All of the evidence presented to the district court sup-
ported Local 150’s assertion that it picketed General
No. 05-1389 17
Drilling both for recognition and for area wages. Troglio
succinctly stated the grounds for the dispute in his deposi-
tion testimony:
Q. So you were picketing, trying to get Mr. Boatman to
sign a collective bargaining agreement?
A. And picketing for area standards.
In their testimony, General Drilling officials corroborated
these two asserted motivations for picketing. Boatman,
Diehr, and Keil all met with Troglio in 1996 to discuss
Troglio’s concerns about General Drilling. Both Boatman
and Diehr confirmed that even at that early date Troglio
was pressuring General Drilling for recognition on behalf of
Local 150. Describing the attitude that Troglio took at the
1996 meeting, Boatman stated, “It was just, ‘Join or leave.’”
Diehr elaborated on her understanding of Troglio’s inten-
tions:
Q Did he ever say he wanted you to sign a collective
bargaining agreement?
A He wanted us to either be Union or be out. That
was it.
***
Q What did you understand that to mean, “be Union”?
A It meant join the Union.
Q Sign a collective bargaining agreement?
A That’s correct.
The deposition testimony of these two General Drilling
officials illustrates that as far back as 1996 Troglio was
plainly interested in unionizing General Drilling.
The testimony also establishes Troglio’s early concern
over General Drilling’s area wages. Keil testified that
Troglio suggested at the same 1996 meeting that “he didn’t
18 No. 05-1389
think we were paying the prevailing wage for that area.”
Diehr named “wages and benefits” as the topic of discussion
at the meeting and specifically remembered Troglio saying
“we were not paying the wages that they paid.”
Tape recordings of the two spring 2002 conversations
between Troglio and General Drilling indicate that Troglio
remained interested in both recognition and adequate
wages some six years later. Troglio again voiced his con-
cerns about area wages, saying, “Your competition within
our jurisdiction pays a rate. That’s all I care about. That
you’re on the same playing field as those people within our
jurisdiction.” The two letters that Troglio sent out, as well
as the notice posted on the day of the picket, named area
wages as the motivation. When asked if he would be
satisfied if General Drilling “paid the union rates” but did
“not join the Union,” Troglio responded that it would not
satisfy him. This does not, as General Drilling claims,
reveal as pretextual Troglio’s interest in wages, but merely
affirms that his concern was not limited to wages alone.
The picket that Troglio threatened in March, and insti-
tuted in August, 2002, then, resulted from the dispute
between the two parties about Troglio’s twin concerns.
Nonetheless, General Drilling maintains that those con-
cerns were illegitimate and construes as pretextual Local
150’s assertion that General Drilling was not paying area
wages. Instead, General Drilling argues, Local 150 worked
to expel it from the quarries because of a preference for the
Chicago union drillers.
In his deposition testimony, Troglio admitted that the
collective bargaining agreements between the union and
quarry owners Material Service and Vulcan provided a
top wage that was less than the top wage provided in the
NIMPA. Troglio, however, argued that General Drilling
should pay the rate that contract drilling companies, not
quarry owners, paid when they did drilling work. General
No. 05-1389 19
Drilling presented no evidence to contradict the legitimacy
of Troglio’s argument. In fact, Boatman testified to the
different approaches taken by the two parties:
Q The comparison you were making to him at the
time, to Kevin Troglio in ‘96, was between a Gen-
eral Drilling driller and a Vulcan employee doing
the drilling work, correct?
A That’s right, because they were members of the
laborer’s union.
Q Okay. The 150 position, Kevin Troglio’s position,
was because you were doing it on a subcontract
basis, the comparison should be between your
driller employee and another subcontract driller
employee, correct?
A I believe that’s what he was doing, yeah.
General Drilling’s president, then, acknowledged that the
difference of opinion over the prevailing area wage was
predicated on differing views on how to calculate that wage.
In 2002, Troglio and General Drilling again met and
discussed the difference of opinion. Troglio felt that the
NIMPA set the area standard, saying, “Um, if you are
drilling blast holes you come under the Northern Illinois
Materials Producers contract.” Boatman responded by
way of comparison to other quarries: “. . . we’re paying
comparable wage to where we’re working—Francesville,
Monon, Rensselaer [sic]—and comparable to what that
operating engineer driller would be making.” In turn,
Troglio stated, “I’m not concerned with what the quarry
rates is. You are not competing against the quarry people.
You are competing against the other drillers.” Boatman
recognized the difference of opinion, saying, “not that I don’t
understand where you’re coming from. I don’t think you’re
necessarily right. But you understand where I’m coming
from and you don’t think I’m necessarily right.” After
20 No. 05-1389
acknowledging that Troglio had legitimate labor concerns,
then, General Drilling’s president continued, “So, we’ve had
a little of an impasse, I believe, but at least we know where
everybody is and there’s no hidden agenda.” General
Drilling, through its president, essentially acknowledged
that Troglio’s concerns were not pretextual. Although
General Drilling now argues on appeal that Local 150
was acting on its preference for Chicago union drillers,
no evidence supports this claim.
General Drilling also claims that Local 150 falsely
asserted that it was engaged in the construction industry so
that Local 150 could seek a prehire agreement. Section
158(f) allows for prehire agreements, “agreements setting
the terms and conditions of employment for workers hired
by the signatory employer without the union’s majority
status first having been established,” only for construc-
tion industry employers and unions. Jim McNeff, Inc. v.
Todd, 461 U.S. 260, 266 (1983). In the March 29th letter,
Local 150 claimed that General Drilling was “performing
construction work at a project within its geographic jurisdic-
tion.” Sometime after receiving the letter, General Drilling
officials met with Troglio and had the following exchange:
KT: . . . But you’re not a material worker. You are a
driller. You are a contract driller.
WMB: Yes. Only for material producers.
KT: You’re not dealing in materials.
WMB: I’m not in construction.
Thus, initially the two parties disputed whether General
Drilling was in the construction industry. Troglio, though,
later admitted in his deposition that it was not:
Q. Tell me what construction work it is you thought
General Drilling was doing?
A. I don’t know, but I’m sure—
No. 05-1389 21
Q. You don’t know, right?
A. No.
Q. And you didn’t know then, did you?
A. No.
Even if Local 150 was seeking a prehire agreement with
a company that was not engaged in the construction
industry, however, that conduct would be violative of
section 158(b)(1)(A), not section 158(b)(4). NLRB v. Local
Union 103, Int’l Assoc. of Bridge Workers, 434 U.S. 335, 344
(1978). As the Supreme Court has held, there “could be no
clearer abridgement” of the rights enforced by section
158(b)(1)(A) than to grant “exclusive bargaining status to an
agency selected by a minority of its employees.” Int’l Ladies’
Garment Workers’ Union v. NLRB, 366 U.S. 731, 737 (1961).
Because federal court jurisdiction under 29 U.S.C. § 187extends only to violations of section 158(b)(4), a violation of
section 158(b)(1)(A) would properly be heard by the NLRB.
See Local Union 103, 434 U.S. 335 (reviewing the NLRB’s
initial determination under that section).
Some record evidence, described above in reference to the
antitrust claim, suggests that the Chicago union drillers
applied pressure on Troglio and Local 150. Nonetheless,
taking those facts in the light most favorable to General
Drilling, Local 150’s activity was still primary. The reason
behind any pressure from the union drillers comports with
one of Troglio’s avowed motivations for picketing—namely,
his concern over area wages. According to Keil, the “com-
plaints . . . from the Union drillers” arose because they
“didn’t think we were paying the prevailing wage for that
area.” Similarly, Diehr relayed the reason for the drillers’
unhappiness: “They said that we were paying unfair—we
had an unfair advantage because we were not paying the
wages that they paid.” General Drilling’s argument focuses
on the origination of the dispute (union drillers prodding
Troglio into action) rather than the nature of the dispute
22 No. 05-1389
(one over wages and benefits). All involved witnesses stated
that Troglio and Local 150 were acting on the belief that
General Drilling paid inadequate wages and benefits. Under
Section 29, the term “labor dispute” includes
any controversy concerning terms or conditions of
employment, or concerning the association or represen-
tation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of
employment, regardless of whether or not the dispu-
tants stand in the proximate relation of employer
and employee.
29 U.S.C. § 113(c). Because Local 150’s actions fall squarely
within this definition, the quarrel represents a classic case
of a primary labor dispute under section 158(b)(4). See
NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S.
675, 692 (1951).
Even if the Chicago union drillers notified Troglio of
General Drilling’s advantage and spurred his complaints
about comparative wages, the undisputed fact remains that
the quarrel Troglio initiated was a primary labor dispute.
A plaintiff may not defeat the defendant’s properly sup-
ported motion for summary judgment “without offering ‘any
significant probative evidence tending to support the
complaint.’ ” Anderson, 477 U.S. at 256 (quoting First Nat’l
Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 290 (1968)).
General Drilling did not present evidence from which a
reasonable jury could find that Local 150 engaged in
conduct defined as an unfair labor practice under section
158(b)(4). Because there was no genuine issue of material
fact, Local 150’s activity was primary as a matter of law,
and summary judgment on this issue was properly granted.
See Landgrebe, 763 F.2d at 249.
No. 05-1389 23
2. Lawful Secondary Effects of Primary Picketing
Lawful primary picketing often has substantial and
foreseeable effects on secondary employers. Mautz & Oren,
882 F.2d at 1121. In its amended complaint, though,
General Drilling asserted that Local 150 violated section
158(b)(4) because “[b]y the threatened picketing or by the
picket at Material Service’s Indiana quarries, Local 150
had—as at least one objective—[sic] forcing Material
Service to terminate General Drilling.” When the primary
employer shares a work site with a secondary employer, the
picketing is presumed lawful “so long as the union does not
intend to enmesh the secondary employer in the dispute.”
R.L. Coolsaet Constr. Co. v. Local 150, Int’l Union of
Operating Engineers, 177 F.3d 648, 655 (7th Cir. 1999). The
parties do not dispute that Troglio acted as an agent for
Local 150 and that Material Service was a secondary
employer. At issue here is whether Local 150 exerted
unlawful secondary pressure on Material Service during its
primary labor dispute with General Drilling.
Because the parties also do not dispute that the August
23rd picket occurred at the Material Service quarry
while General Drilling was working there, this case falls
under the common situs analysis. The NLRB and the courts
have developed the Moore Dry Dock standards to frame the
common situs analysis, see Sailors’ Union of the Pacific
(Moore Dry Dock), 92 N.L.R.B. 547 (1950), but the focus
remains on the defendant’s motive, which “is a question of
fact . . . to be determined through examination of ‘the
totality of [the] union’s conduct in [the] given situation.’ ”
Int’l Union of Operating Engineers, Local 150 v. NLRB, 47
F.3d 218, 223 (7th Cir. 1995) (quoting NLRB v. Local 307,
Plumbers, 469 F.2d 403, 408 (7th Cir. 1972)); see also
Coolsaet, 177 F.3d at 655. At trial the burden is on the
plaintiff employer to establish that any alleged secondary
effects were the intended consequence of union activity.
Landgrebe, 763 F.2d at 246. To survive summary judgment,
24 No. 05-1389
General Drilling needed to present some probative evidence
from which a reasonable jury could find that Local 150
intended to force Material Service to terminate General
Drilling and install a union driller in its place. See Ander-
son, 477 U.S. at 248. All of the evidence presented to the
district court indicates that Local 150 did not act with that
intent; to the contrary, the evidence reveals that Material
Service made an independent decision to terminate General
Drilling. Because the record evidence does not reflect a
genuine issue of material fact, the grant of summary
judgment on this issue was proper.
In early 2002, when Olson became aware of the possible
picket, he consulted with Bernardi and decided to develop
a plan to hire a union driller in case terminating General
Drilling became necessary. Olson then instructed Jorns
“to put a Plan B together” to get some bids for alternate
drillers. Material Service admittedly developed the con-
tingency plan in order to avoid interference with Material
Service’s production and sales. In his deposition testimony,
Olson stated that at the time he thought it possible
that Local 150 production employees would refuse to
cross the picket line, and consequently that Material
Service’s production and sales would suffer. More specifi-
cally, he said, “We didn’t want to bring labor disputes that
were not, we are not involved with, inside our property, . . .”
Both Jorns and McElfresh shared his understanding of the
company’s reason for developing the alternate plan. Thus,
all the witnesses agreed on the impetus for Material Ser-
vice’s actions: After Local 150 notified Material Service that
a picket was forthcoming, Material Service officials made a
business decision that it could not sustain the loss of
production and sales that would result from a picket in
which its union employees refused to cross the picket line.
General Drilling presented no evidence to contradict this
asserted motivation.
No. 05-1389 25
Material Service then informed General Drilling of its
intentions. According to McElfresh, he spoke with Boatman
and explained to him that in the event of a picket General
Drilling could no longer do the drill work “[u]ntil he got
unionized or something.” When Material Service finally
terminated General Drilling on August 23rd, the same
reason motivated the decision. Olson testified that “Boat-
man got terminated” because Material Service “didn’t want
to bring other labor issues into our, the quarry boundaries.”
Additionally, both Jorns and Olson believed that, if not for
the picket, General Drilling would still be doing the drill
work at the quarry.
Even if the union’s picketing has substantial and foresee-
able secondary effects, that conduct does not violate section
8(b)(4) unless the employer satisfies its burden of establish-
ing that the union intended to cause disruption of the
secondary employer’s business. Mautz & Oren, 882 F.2d at
1121. The evidence detailed above indicates that, after
learning of Local 150’s intentions, Material Service made
the decision to terminate General Drilling in the event of a
picket. The deposition cross-examination of Olson but-
tresses this point:
Q. If I understand it correctly, Mr. Olson, neither you
nor anyone else at Material Services [sic] wanted to
terminate General Drilling?
A. I believe that’s correct.
Q. And it was, I think you testified, your fear about
the picketing interfering with your business sales,
production, et cetera that made you do what you
did?
A. Correct.
Although this testimony unequivocally explains Material
Service’s reason for terminating General Drilling, it reveals
nothing about Local 150’s intent. Material Service’s decision
26 No. 05-1389
to terminate General Drilling was a consequence of Local
150’s legitimate, primary labor activity. But even if the
termination resulted from Local 150’s activity, General
Drilling cannot survive summary judgment unless some
record evidence exists showing that Local 150 aimed its
activity at Material Service, the neutral employer.
No evidence in the record indicates that Local 150 acted
to advance Material Service’s termination of General
Drilling. In his deposition testimony, Troglio denied hav-
ing any conversations with Material Service officials regard-
ing the subject. The testimony of Material Service officials
is consistent with his denial. Olson testified that Local 150
was not involved in developing Material Service’s plan of
action:
Q. Did Local 150 have any role in Material Service’s
formulation of Plan B, that is the plan for the
possibility of replacing General Drilling?
A. Not with me.
Q. So as far as you know, Material—as far as your
involvement extended Material Service developed
the Plan B on its own, correct?
A. That’s correct.
McElfresh similarly stated that he did not have any
conversations with Troglio related to the potential picket-
ing. Thus, there is no record evidence that Troglio said
anything to Material Service indicating an intent on Local
150’s part to pressure Material Service to terminate
General Drilling. In fact, when asked directly about
Troglio’s intentions, Olson could not say that Troglio
was intentionally aiming the picketing at Material Service:
Q. You don’t have any reason to believe that Kevin
Troglio was directing the picket at Material Service,
do you, Mr. Olson?
No. 05-1389 27
A. I don’t know what Kevin was doing, but—I don’t
know what Kevin was doing. I can’t speak for
Kevin.
Later, Olson specifically testified that Material Service
was not acting under Local 150 pressure when it terminated
General Drilling:
Q. And you didn’t ask General Drilling to leave be-
cause Material Service had a previous agreement
with Local 150 to do so, correct?
A. That’s correct.
Q. And you didn’t ask General Drilling to leave be-
cause you had a preference for an Illinois contract
driller or anybody else, right?
A. That’s correct.
The evidence of pressure on Local 150 from the Chicago
union drillers, discussed above, includes no discussion of
pressure applied on Material Service. While pressure
from the Chicago union drillers may have contributed to
Local 150’s decision to picket, it offers no insight as to
whether Local 150 intended to enmesh Material Service
in the primary labor dispute. The only potentially probative
evidence that General Drilling presented involved Troglio’s
meetings with Material Service officials and employees, and
the two letters Local 150 sent to Material Service.
On one occasion, Troglio met with Bernardi to discuss
Material Service’s relationship with Local 150. Bernardi
testified to the content of the exchange:
* * * I said Kevin, I’m here to deal with the contract for
my employees, Material Service employees, we will deal
with General Drilling later, take one issue at a time.
Q. What did he say to you about General Drilling?
***
28 No. 05-1389
A. I do not remember what he said exactly.
Q. And when was the next time you talked to him
about it?
A. Myself with Kevin?
Q. Yes.
A. I can’t remember another time.
Bernardi later testified that they never came to an agree-
ment concerning General Drilling because he would not
discuss it. This evidence offers no insight into Local 150’s
intent.
Troglio’s conduct at two union meetings with Material
Service employees reveals that he did not intend to ensnare
Material Service in the dispute. At these two meetings in
early 2002, Troglio discussed the picket. The only record
evidence of what he said at these meetings comes from his
own deposition testimony:
Q. Tell me what you said at one or both of these
meetings?
A. I was going to start organizing against General
Drilling and there may well be pickets at the
locations that he is drilling at.
Q. Anything else?
A. No.
General Drilling offered no evidence (the testimony of
members in attendance, for instance) revealing that Troglio
sought to involve Material Service in the dispute. Troglio
admitted that he tried “to educate our members so they
understand what we are doing and what is happening and
we would hope that they would honor our picket lines, yes.”
But, as the Supreme Court has held, “picketing which
induces secondary employees to respect a picket line is not
the equivalent of picketing which has an object of inducing
those employees to engage in concerted conduct against
No. 05-1389 29
their employer in order to force him to refuse to deal with
the struck employer.” Local 761, Int’l Union of Electrical
Workers v. NLRB, 366 U.S. 667, 673-74 (1961).
The only remaining evidence proferred by General
Drilling, then, consists of the two letters sent by Troglio to
Material Service. Local 150 says it sent Material Service a
copy of the March 29th letter to apprise it of the possibility
of a picket. This letter contained no improper language. In
fact, in it Local 150 specifically denied any intent to influ-
ence the secondary employer: “There is no desire on behalf
of Operating Engineers Local 150 to have any contractual
relationship in effect between your company, any other
person, corporation or proprietorship interfered with in any
manner.” When Troglio faxed it over to Material Service,
however, he added the following words: “Please review and
any support would be appreciated.” The second, August
15th letter contained similar language: “We are appealing
to contractors, customers and other employers in hope that
they will cease using the services of this company.” General
Drilling claims that with these two communications Local
150 improperly aimed the picket at Material Service.
Both of those communications, however, were aspirational
in tone, expressing Local 150’s hope to have Material
Service’s support in its efforts instead of its intent to
enmesh the secondary employer in the dispute. Primary
picketing always has as one of its goals the inducement
of secondary employers to stop dealing with the primary
employer, and the object of inducing this disruption is
protected. Landgrebe, 763 F.2d at 246. By their terms, the
letters expressly indicated that the picket was not aimed at
Material Service and accurately explained the nature of the
primary labor dispute: “Please be advised that Local 150
has no present dispute with your company. Rather, Local
150’s dispute is with General Drilling.”
The letters also conceded that common situs picketing
was a possibility: “Any strike against General Drilling
may include lawful picketing of General Drilling’s opera-
30 No. 05-1389
tions at your facility. Once General Drilling is no longer
present at your jobsite or facility, Local 150 will cease its
picketing at your jobsite or facility. Such picketing is lawful
primary picketing.” General Drilling argues that this
language makes Local 150’s conduct unlawful secondary
activity under Coolsaet, 177 F.3d 648. While the union in
that case employed similar language in statements to the
secondary employer, the court also found that the union
used the secondary employer’s workers on the picket line
and failed to limit the picket to the times and places the
primary employer worked. Thus, a presumption of second-
ary intent arose which Local 150 had to rebut.
In this case, because the parties do not dispute that Local
150 conducted the common situs picketing properly, Local
150 did not have to rebut the presumption of secondary
intent. When a union complies with the Moore Dry Dock
standards for common situs picketing, the picketing is
presumed to be lawful primary activity. See Int’l Union of
Operating Engineers, Local 150 v. NLRB, 47 F.3d 218, 222
(7th Cir. 1995). The disruption of business relations be-
tween the primary and secondary employer, then, was
merely “the necessary consequence of the purest form of
primary activity.” Landgrebe, 763 F.2d at 246 (quoting
NLRB v. Local 825, Int’l Union of Operating Engineers, 400
U.S. 297, 304 (1971)). All of the evidence comports with
Olson’s testimony that the decision to terminate General
Drilling arose from the group consultation of Material
Service officials.
Similarly, no record evidence exists showing that Local
150 pressured Material Service to hire a union replacement
for General Drilling. In his initial Plan B, Jorns identified
two union drillers, Ludwig and Raimonde, as possible
replacements for General Drilling. He allegedly included
those two drillers because both he and Material Service had
had good past experiences with them. Olson specifically
denied that Troglio or Local 150 expressed an opinion on
No. 05-1389 31
which company Material Service should choose as the
replacement:
Q. Mr. Olson, did Kevin Troglio or anyone from Local
150 ever express to you or to anybody else from
Material Service a preference over which contract
driller got the work at the Indiana quarry after
General Drilling left?
***
A. I have never spoken to Kevin on this subject and
I haven’t the faintest idea what his conversations
were with anybody else in the company.
Jorns also denied that Local 150 was involved in the
selection of a replacement:
Q. You didn’t go to Raimonde and Ludwig because
Kevin Troglio or anybody else from Local 150 told
you they prefer one contractor over another, did
you?
A. No.
The only evidence that General Drilling presented to
show Local 150’s intent to influence the process to find a
replacement consisted of a list of union drillers that Troglio
sent to Material Service. That list, sent as an attachment to
the letter of August 15th, included the name of the union
driller Ludwig, the company chosen by Jorns as the Plan B
replacement. General Drilling’s Boatman stated in his
deposition that he believed Ludwig was the union driller
that had been exerting pressure on Troglio to get the
business at the quarry. The list sent by Troglio, however,
could not possibly have influenced Material Service’s
decision to choose a replacement because Jorns had already
slotted Ludwig as the replacement driller on June 27, 2002.
In addition, Olson unequivocally testified that there was no
conspiracy to replace General Drilling with Ludwig:
32 No. 05-1389
Q. Material Service didn’t ask General Drilling to leave,
to leave because it was trying to get Ludwig into that
facility to your knowledge, Mr. Olson?
A. We did not ask General Drilling to leave to get
Ludwig into our facility.
General Drilling offered no facts to controvert this version
of events. Moreover, Troglio testified to his reason for
sending the list to Material Service: “During discussions
with the superintendents if they requested who else they
could use, then I attached a copy of the signatory drillers.”
General Drilling introduced no evidence (such as testimony
of Material Service officials stating that they did not
request the list) controverting this motivation. As a result,
no reasonable jury could determine that Local 150’s actions
evidenced an intent to orchestrate the replacement of
General Drilling with Ludwig.
Ultimately, Finn Drill, instead of Ludwig, replaced
General Drilling as the contract driller at the quarry. But
all the deposition witnesses—Olson, McElfresh, and
Boatman—agreed that consideration of Finn Drill as the
replacement began well after Jorns developed Plan B and
at the suggestion of General Drilling’s Boatman. When
McElfresh suggested the possibility of leasing the exist-
ing equipment to a new driller so that the work could
continue uninterrupted, Boatman said, “you will be con-
tacted.” The next day, Finn Drill’s Garvin contacted
McElfresh and scheduled an appointment to view the
facility. Garvin toured the quarry on August 14th, 2002,
and later that week came in with the lowest bid, identical
to the rate that General Drilling had charged for the
work. Boatman had worked out a deal with Finn Drill
whereby the same equipment and personnel could operate
at the quarry under the new company’s name. McElfresh
testified that Finn Drill had provided Material Service
“outstanding service from 1993” in other capacities. Olson
No. 05-1389 33
testified that Material Service chose Finn Drill because they
knew Garvin, the owner, to be “very capable,” he had a
“vast amount of experience,” and they “had a great deal of
confidence in him.”
According to Material Service officials, then, they chose
Finn Drill because they knew based on past performance
that Finn Drill and its owner Garvin were capable, and
because Finn Drill came in with the lowest bid of the
three union drillers. Boatman, the president of General
Drilling, suggested Finn Drill because he didn’t want the
work to go to Ludwig. Instead of acting under pressure from
Local 150 in finding a replacement, then, Material Service
considered and eventually selected General Drilling’s
suggested replacement.
Although Troglio included Finn Drill with Ludwig on the
list he sent to Material Service on August 15th, by that date
Finn Drill had already toured the quarry and was preparing
to submit a bid. Material Service decided to replace General
Drilling with Finn Drill independently of Local 150’s
influence. Moreover, as discussed above, Troglio explained
that he sent the list of union drillers to superintendents
who requested it. Again, because General Drilling intro-
duced no evidence to controvert this explanation, no
reasonable jury could find that Material Service chose Finn
Drill because of pressure by Local 150.
Thus, taking all the evidence in the light most favorable
to General Drilling, no reasonable jury could find that Local
150 intended to involve Material Service in its primary
labor dispute with General Drilling. This Court has recog-
nized an analytical distinction “between intending to
enmesh secondary employers in a dispute not their own,
and acting with knowledge that secondary employers will
inevitably be affected by the union’s actions.” Mautz &
Oren, 882 F.2d at 1121. Here, Local 150 acted knowing that
Material Service would be affected by its primary activities,
34 No. 05-1389
but did not act with the intent to enmesh Material Service
in the primary dispute.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of Local 150.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-06