Albrecht v. Kinsella

• Decision Date: 21 May 1941
• Docket Number: No. 7558.,7558.
• Citation: 119 F.2d 1003
• Parties: ALBRECHT v. KINSELLA et al.
• Court: U.S. Court of Appeals — Seventh Circuit

119 F.2d 1003 (1941)

ALBRECHT v. KINSELLA et al.

No. 7558.

Circuit Court of Appeals, Seventh Circuit.

May 21, 1941.

L. E. Sutherland and James F. Bierly, both of Peoria, Ill., for appellant.

E. V. Champion, Willard B. Gaskins, F. J. Lee, and Victor P. Michel, all of Peoria, Ill., for appellees.

Before EVANS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.

EVANS, Circuit Judge.

The trial court sustained defendants' motion to dismiss plaintiff's complaint, which attempted to state a case for treble damages under the Clayton Act. The damages arose out of an alleged conspiracy between a contractors' association and a labor union, to monopolize—to the exclusion of plaintiff —the contracting business in the City of Peoria, Illinois, which exclusion affected interstate commerce by causing plaintiff to cease importing his materials from without the State of Illinois.

The two issues are: (1) Does the complaint allege a conspiracy within the Sherman and Clayton Acts? (2) Is a labor union liable for violation of the said Acts?

The plaintiff is a plastering contractor, a resident of Pekin, Illinois, and has an office in Peoria, Illinois.

The defendants are: (1) Local No. 12, which is a labor union of plasterers and cement finishers; (2) Jack Kinsella, who is business manager of Local No. 12, and other officials of said union; and (3) James Bell, et al., plastering contractors in Peoria, who formed a contractors association.

Plaintiff alleges that the contractors association and the union entered into an agreement that members of the Local Union would work only for such contractors who were members of the association (or recognized by it). Plaintiff was informed that if he did not become a member of the association he would be unable to do any jobs in Peoria. Under this threat, he sought to join the association, but was refused membership on the ground that he was not a resident of Peoria. He alleges that such refusal was arbitrary, and was really the result of the conspiracy to prevent him from working in Peoria, which conspiracy sought to monopolize the plastering work in that vicinity.

He alleges that Kinsella told him that if he would pay the contractors association ten per cent of the amount received by him he would be furnished labor. Plaintiff submitted bids gauged to include said extra ten per cent, but never succeeded in obtaining work, because the bid was too high. He also charges that during the years 1936-1938 he completed contracts aggregating $146,500 in value, but that in the year 1939, he was unable to negotiate any contract in that vicinity, and those contracts which he had begun had to be abandoned to others. As a result thereof, he purchased no materials from outside the state. In carrying out his contracts he had always purchased metal laths from a company in Iowa, and purchased lime from a local dealer, but said lime was manufactured outside the State of Illinois.

In August, 1939, plaintiff was performing a contract of plastering and lathing a school building in East Peoria, and had half completed the work. On the fourth of August, Kinsella "ordered all the men employed by the plaintiff on said jobs to cease work and thereafter refused to let plaintiff have workmen to complete said jobs. * * * The general contractor completed the jobs and plaintiff lost considerable profit he would otherwise have earned."

Passing first upon the applicability of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, and Clayton Act, 38 Stat. 730, to labor unions, we conclude that the instant conspiracy, one party to which was a labor union, would fall within the condemnation of the Acts, if the other necessary factors were present.

Since the decision in the Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044, there is little doubt that the instances in which a labor union can run afoul the Act are few; nevertheless, they are not completely free from its ambit.

In the instant case, the union was seeking no such ordinary end as an increase in wages, decrease in hours, proper representations, etc. Taking the allegations of the complaint at their face value, the union and the...