UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRINNELL CORPORATION,
Plaintiff-Appellant,

v.

ROAD SPRINKLER FITTERS LOCAL
UNION NO. 669; UNITED ASSOCIATION
                                                               No. 97-1855
OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND
CANADA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey, II, Senior District Judge.
(CA-94-3309-H)

Argued: December 5, 1997

Decided: January 21, 1998

Before LUTTIG and MOTZ, Circuit Judges, and JONES,
United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Ira Genberg, SMITH, GAMBRELL & RUSSELL,
L.L.P., Atlanta, Georgia; Christopher Alan Weals, SEYFARTH,
SHAW, FAIRWEATHER & GERALDSON, Washington, D.C., for
Appellant. William Walter Osborne, Jr., OSBORNE LAW OFFICES,
P.C., Washington, D.C.; Sally Momsen Tedrow, O'DONOGHUE &
O'DONOGHUE, Washington, D.C., for Appellees. ON BRIEF:
Dana M. Richens, SMITH, GAMBRELL & RUSSELL, L.L.P.,
Atlanta, Georgia; Wilbur D. Preston, Jr., Robert M. Wright, WHITE-
FORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland, for
Appellant. Robert Matisoff, O'DONOGHUE & O'DONOGHUE,
Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Grinnell Corporation, a designer, manufacturer, and installer of fire
sprinkler systems, has for years engaged in a fiercely-contested labor
dispute with the Road Sprinkler Fitters Local Union No. 669 and the
United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada. While that
case was pending before the National Labor Relations Board (NLRB),
Grinnell brought this action against the local and national union alleg-
ing, in a seven count complaint, various antitrust, labor law, and state
tort claims.

After two years of extensive discovery, the parties filed dispositive
summary judgment motions. Based on what the district court accu-
rately characterized as "a massive record" including dozens of deposi-
tions, "voluminous exhibits," the transcript of a twenty-two day
hearing before the ALJ in the related NLRB proceedings, and the
ALJ's opinion (now on appeal to the NLRB) finding that Grinnell had
committed various unfair labor practices, the court granted the defen-
dants' motions for summary judgment on the antitrust and labor law
claims and dismissed the state law claims. See Grinnell Corp. v. Road

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Sprinkler Fitters Local Union No. 669, No. H-94-3309 (D. Md. June
3, 1997). Grinnell appeals the grant of summary judgment on an anti-
trust claim and on two labor law claims.

Grinnell's principal contention, alleged in Count I of its complaint,
is that defendants conspired with the National Fire Sprinkler Associa-
tion (NFSA), a trade association to which Grinnell belongs and to
which prior to September, 1993, it had assigned its collective bargain-
ing rights, to engage in activity amounting to an illegal restraint of
trade under Section 1 of the Sherman Act. See 15 U.S.C.A. § 1 (West
1997). Grinnell asserts that defendants and NFSA conspired to with-
draw the availability of a job program known as targeting from Grin-
nell in order to force Grinnell to reassign its bargaining rights to
NFSA. Under this program, a contractor and the local union would
negotiate concessionary rate agreements as to an individual project in
a particular geographical area so the contractor might be able to com-
pete with lower-cost, nonunion contractors. Grinnell also claims that,
in an effort to standardize contract terms and employment conditions
within the sprinkler industry, the defendants and NFSA conspired,
during the course of negotiating their collective bargaining agree-
ment, to prevent Grinnell from obtaining more favorable collective
bargaining terms.

"[C]onduct as consistent with permissible competition as with ille-
gal conspiracy, does not, standing alone, support an inference of anti-
trust conspiracy." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 588 (1986). See also Thompson Everett, Inc. v.
National Cable Advert. L.P., 57 F.3d 1317, 1323 (4th Cir. 1995).
Thus, to survive a summary judgment motion an antitrust plaintiff
must "establish . . . a conscious commitment" to achieve an unlawful
objective by common scheme, and must also "bring forward evidence
that excludes the possibility that the alleged co-conspirators acted
independently or based on a legitimate business purpose." Laurel
Sand & Gravel, Inc. v. CSX Transp., Inc., 924 F.2d 539, 542-43 (4th
Cir.), cert. denied, 502 U.S. 814 (1991) (internal quotation marks
omitted). As in Laurel Sand, here the district judge concluded that the
undisputed facts demonstrated that Grinnell could not "discharge this
burden." Id. Judge Harvey explained that"[t]he record discloses as a
matter of law first that defendant Local 669 acted unilaterally in with-
drawing from Grinnell the right to participate in the job targeting pro-

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gram and second that the Union and the NFSA did not illegally
conspire during their collective bargaining to prevent Grinnell from
obtaining more favorable bargaining terms." Moreover, the judge fur-
ther concluded, "assum[ing], arguendo , that there is a dispute of
material fact as to the existence of a conspiracy between the NFSA
and the Union," the non-statutory labor exemption from antitrust lia-
bility shielded the alleged restraint.

Grinnell also claims (and alleges in Count II) that by withdrawing
targeting opportunities from Grinnell, the defendants forced Grinnell
to assign its bargaining rights to NFSA or to sign an Assent and
Interim Agreement binding Grinnell to their collective bargaining
agreement, and thus violated § 8(b)(4)(ii)(A) of the National Labor
Relations Act, 29 U.S.C.A. § 158(b)(4)(ii)(A) (West 1973). Judge
Harvey held that "[t]here is no evidence in this record that Grinnell
was either forced by defendants or even asked during negotiations
with the Union to once again become a member of the NFSA bargain-
ing unit." The judge concluded that "on this record [ ] the Union by
its conduct here was not requiring Grinnell to join the NFSA [bar-
gaining unit] or unlawfully coercing it in some other manner." Grin-
nell's final claim, contained in Count IV of the complaint, is that the
defendants engaged in an illegal secondary boycott in violation of
§ 8(b)(4)(ii)(B) of the NLRA, 29 U.S.C.A.§ 158(b)(4)(ii)(B) (West
1973). Again, Judge Harvey rejected Grinnell's position, concluding
that the company had produced insufficient evidence to raise a genu-
ine issue of disputed fact as to whether the defendants engaged in ille-
gal secondary boycott activity.

On appeal, Grinnell repeats the arguments made below, asserting
that the district court ignored evidence supporting its claims. After a
painstaking review of the record, as well as consideration of the
briefs, relevant statutes, case law, and the oral arguments of the par-
ties, we conclude that Judge Harvey's assessment of the evidence was
accurate and his rulings correct. Accordingly, we affirm on the basis
of the careful reasoning of the district court.

AFFIRMED

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