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BUILDING INDUS. FUND v. LOCAL UNION NO. 3

May 8, 1996

BUILDING INDUSTRY FUND. et al., Plaintiffs,
v.
LOCAL UNION No. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO et al., Defendants.



The opinion of the court was delivered by: ROSS

 ROSS, United States District Judge:

 Plaintiffs have moved for reconsideration of this court's Opinion and Order of February 8, 1996 (the "Order"). Defendant Local Union No. 3 of the International Brotherhood of Electrical Workers, AFL-CIO ("Local 3") has also moved for reconsideration of the Order. For the reasons stated herein, plaintiffs' motion is denied, and Local 3's motion is granted in part and denied in part. In addition, plaintiffs' request for entry of a partial final judgment pursuant to Fed.R.Civ.P. 54(b) is denied.

 DISCUSSION

 I. Plaintiff's motion for reconsideration

 In its Order of February 8, 1996, the court dismissed all of plaintiffs' claims against defendants under the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961-1968, and §§ 1 and 2 of Sherman Anti-Trust Act, 15 U.S.C. §§ 1 and 2. The court also dismissed all of plaintiff's remaining claims against defendants New York Electrical Contractors Association, Inc. ("NYECA"), Association of Electrical Contractors, Inc. ("AECI"), and Joint Industry Board of the Electrical Industry ("JIB"). Plaintiffs seek reconsideration of the Order as it relates to JIB. Plaintiffs argue that the court overlooked evidence that established the existence of genuine issues of material fact, precluding summary judgment for JIB.

 The court does not agree. As discussed in the Order, the legal premise of plaintiffs' claims against JIB is misguided. Rather than arguing that Local 3 and JIB conspired for a particular illicit purpose, they try to establish that all defendants are engaged in an all-encompassing "Conspiracy." Under their theory of the case, because all defendants are associated with one another with the common goal of forcing plaintiff contractors to negotiate with Local 3, action of one defendant can be attributed to all the other defendants. The court rejects this novel theory of liability. The essence of a conspiracy is not simply a commonality of interest. It involves an agreement by two or more people to accomplish a specific illegal objective. See, e.g., United States v. Felix, 503 U.S. 378, 389-90, 118 L. Ed. 2d 25, 112 S. Ct. 1377 (1992) ("The 'essence' of a conspiracy offense 'is in the agreement or confederation to commit a crime.'") (quoting United States v. Bayer, 331 U.S. 532, 542, 91 L. Ed. 1654, 67 S. Ct. 1394 (1947)). As discussed previously, plaintiffs have not identified evidence in the record that would demonstrate either that JIB committed acts of racketeering, or that it agreed with Local 3 to violate any provision of either RICO or the Sherman Act. In the absence of such evidence, plaintiffs' conspiracy claims cannot stand. See Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 79 L. Ed. 2d 775, 104 S. Ct. 1464 (1984) ("The antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.") (citations and internal quotation marks omitted); Hecht v. Commerce Clearing House, 897 F.2d 21, 25 ("The core of a RICO conspiracy is an agreement to commit predicate acts . . . ."). All that plaintiffs have demonstrated is that certain members of Local 3--some of whom were also employee representatives of JIB--engaged in certain allegedly illegal actions.

 The specific facts that plaintiffs have cited in the instant motion do not alter this conclusion. Although the court did not specifically refer to all of these incidents in its opinion, it considered each of them. For the sake of thoroughness, the court will elaborate on its reasoning concerning the specific that plaintiffs cite.

 Plaintiffs first point to statements in the affidavit of Frank Micelotta, who stated that two members of Local 3, Angelo Granata and Salvatore Bruzzese, accosted him in 1975 and threatened to throw him down an elevator shaft if he testified before the National Labor Relations Board. This incident occurred some eighteen years before this action was filed--a detail plaintiffs do not mention in their motion papers--and its probative value is therefore slight. In any case, Micelotta does not identify any clear link between JIB and this action, beyond the fact that "at that time, I was aware that Mr. Granata was also a trustee of [JIB]." Pl. Ex. L, at P 11.

 Micelotta also referred to an incident in 1980--some thirteen years before this action was filed--in which his company, plaintiff Expert Electric Co., submitted the lowest bid for a particular electrical contracting job. He stated that:

 
Subsequent to the submission of Expert's bid, Leonard Feinberg of Feinberg Electric telephoned me and told me that individuals from the JIB and Local 3 had used their influence to have the job put out for rebidding. I believed that Mr. Feinberg was talking about Mr. Granata, a trustee of the JIB, and that Mr. Granata had used his influence to have the job rebid.

 Pl. Ex. L, at P 16. Leaving aside the fact that Feinberg's statement is inadmissible hearsay, *fn1" Micelotta's description of this incident is insufficient to raise a genuine issue of material fact concerning JIB's involvement in any unlawful activity. Even if the court assumes the truth of the statement that "individuals from the JIB and Local 3 had used their influence to have the job put out for rebidding," that fact would not suggest that JIB either engaged in any predicate acts of racketeering or agreed to engage in such acts. Nor is a single, vague reference to JIB having used its "influence" on Local 3's behalf sufficient to support an inference of an antitrust conspiracy, in the absence of any other evidence in the record that would support such a conclusion. *fn2"

 Plaintiffs next point to a series of statements involving Thomas Van Arsdale, the business manager of Local 3, who was also one of Local 3's representatives on JIB. These allegations, which were discussed in the court's previous opinion, also do not suggest JIB's involvement in illegal activity. Plaintiffs have identified no specific evidence linking JIB to any of the incidents they describe, other than the fact that Van Arsdale was simultaneously a union official and a member of JIB. Plaintiffs also point to activities by Bernard Rosenberg, a representative of Local 3 and a member of JIB. These ...


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