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May 22, 1951

JUSTIN R. CLARY & SON, Inc. et al.

The opinion of the court was delivered by: WEINFELD

This is an action under the Sherman and Clayton Acts for treble damages and for a permanent injunction. *fn1" The plaintiffs charge that the defendants are engaged in a conspiracy and combination to restrain and monopolize interstate commerce by agreeing with each other that all finishing work on granite stone imported into the Greater New York area shall be done in New York City and that no finished or partly finished stone shall be brought into the area from Vermont or elsewhere.

The present motion is one for a preliminary injunction. Several defendants have moved for a dismissal of the complaint for failure to state a claim upon which relief may be granted, and one applies for summary judgment or judgment on the pleadings. Other defendants have made motions addressed to the venue and jurisdiction of the Court.

 The plaintiffs are engaged in the manufacture and sale of granite which is quarried in the vicinity of Barre, Vermont, and the action for a permanent injunction is also brought on behalf of all the manufacturers in that area, totaling some one hundred ten, who also sell their products in the New York City area.

 When the rough granite is mined from the quarries in Barre, it is either sold and shipped as rough stock or it is manufactured into markers, monuments, memorials, mausoleums and building stone by machinery and local skilled labor.

 The die is that portion of the monument, memorial or marker above the base or foundation which usually bears an inscription, design or carving. A substantial part of the plaintiffs' business consists of either finishing or partly finishing the dies. Finishing has many variations, including polishing, shaping, sculpturing, carving, grading and lettering. The product, finished and partly finished, is then shipped by plaintiffs from Barre, Vermont, to dealers or wholesalers in the Greater New York area where it may be completed, if required, by the addition of inscriptions, designs, lettering and dates. It is the so-called finishing and partly finishing activities on the monuments and other processed granite items which represents the heart of the present controversy.

 The plaintiffs' charge in substance is that these defendants are embarked upon a conspiracy whereby no Barre granite on which any finishing work has been done outside the New York City area may be brought in either from Vermont or other sources except where the longest dimension of the stone is equal to or more than six feet, referred to as the 'six foot rule;' that it is planned to restrict the sale and shipment of granite from plaintiffs and others into this area to unfinished slabs or rough stock.

 The defendants fall into two groups- unions and dealers. The defendant New York Branch, Granite Cutters International Association of America, American Federation of Labor, referred to as the 'Cutters Union,' is a local branch of the Granite Cutters International Association (also a defendant in this action). Its members are engaged in finishing and lettering work in the Greater New York area. The defendant Cemetery Stone Handlers, Erectors and Granite Yard Helpers Local 106, referred to as the 'Setters Union,' consists of cemetery workers in the same area. Individual officers and agents of these unions have also been joined as defendants.

 The second group of defendants consists of thirteen independent granite manufacturers and dealers in the Greater New York area, employers, most of whom are engaged in monument work and others in building construction. Some have contracts with both the Setters and the Cutters Unions; others have entered into agreements with but one of the unions; at least one defendant has no contractual relations with either union and another defendant repudiates the agreement entered into with one of the unions, claiming it was signed by an employee without authority.

 There are approximately two hundred seventy-five dealers, wholesale and retail, and manufacturers of granite and other stone in the Greater New York area (hereinafter referred to as 'dealers' or 'employers') who engage the services of members of the union-defendants. All of these dealers, including the thirteen named as defendants herein, purchase stone from other areas. Approximately ninety per cent of such stone is granite, of which fifty per cent is quarried, finished or partly finished in the Barre area by plaintiffs and then shipped and sold to the New York City dealers. Almost all the granite so shipped into this area consists of dies of six feet or less in length and width. During 1950, finished and partly finished granite of $ 2,000,000, representing a considerable part of that manufactured in the Vermont region, was imported into the Greater New York area. A number of dealers, but not all, are equipped to perform finishing work on granite products brought into the area.

 The plaintiffs' grievances stem from two provisions contained in collective labor agreements proposed by the Setters and the Cutters Unions to the dealers. Both the Setters and the Cutters agreements are the typical collective labor contracts relating to wages and hours, vacations and working conditions, and the two clauses subjected to attack were originally proposed by the unions prior to the expiration date of the existing agreements, March 31, 1951. The provisions which plaintiffs charge as being intended to accomplish the objectives of the alleged combination, conspiracy and attempt to monopolize are, according to its complaint:

 'Section 3. (Cutters Union)

 'All employers hereby agree to do all the work set forth in the first paragraph of the preamble to this agreement in their own shops provided the die is not longer than six feet. In all other instances no work will be done outside the jurisdiction of the New York Branch if the working conditions, rate of pay and hours of work are below the standards set out in the within agreement.'

 The 'work' referred to is cutting, carving, dressing, polishing, sawing and setting all granite, hardstone and artificial granite. 'Section 10. (Setters Union)

 'It being the policy of the industry to standardize and uphold an equitable standard of living in the industry, in order to effectuate this purpose it is agreed between the signatories of this agreement as follows:

 '(a) That the complete cemetery memorial where the die is six feet wide or less, shall be fabricated within the territory encompassed by this agreement.

 '(b) It is further understood that in the event that the working standard, wages and conditions existing in areas other than the area covered under this agreement, shall equal the working conditions, wages and conditions existing in the area covered by this agreement, then and in that event the employers shall have the option to fabricate complete memorials under six feet in these areas.

 '(c) For the purpose of this agreement, it is understood that fabrication shall mean any work on the raw granite after process of ...

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