Of the Sixth Circuit, sitting by designation. * 

# UnitedStates C ou rt o f App eals

For th e First C ircuit

No. 07-1832 AMERICAN STEEL ERECTORS, INC., AJAX CONSTRUCTION CO., AMERICAN AERIAL SERVICES, INC., BEDFORD IRONWORKS, INC.,

AND D.F.M. INDUSTRIES, INC., Plaintiffs, Appellants,

v. LOCAL UNION NO. 7, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL & REINFORCING IRON WORKERS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

Before Howard, Circuit Judge, Stahl and Siler, Circuit Judges. *

M i c hael E. Avakian with whom Smetana & Avakian, Carol Chandler, Geoffrey R. Bok, Stoneman, Chandler & Miller LLP, Thomas M. Triplett, and Schwabe Williamson & Wyatt, P.C. were on brief for appellants. P a u l F . K e l l yw i t hw h o mI n d i r a T a l w a n i , S e g a l , R ottman & Coleman, and Mickey Long, were on brief for appellees. John C. Scully and W. James Young on brief for amicus curiae National Right to Work Legal Defense Foundation, Inc. Maurice Baskin and Venable LLP on brief for amicus curiae Associated Builders and Contractors, Inc.

August 1, 2008A sixth plaintiff named on the complaint, Ronald Beauregard 1 d/b/a/ Independent Welding, voluntarily withdrew from the case on February 13, 2006. C harles Wright, Local 7's former President and current 2 business agent, and the Steel Erection and Ornamental Iron Industry A dvancement Fund, were also originally named as defendants. Plaintiffs v o l u ntarily dismissed the fund on March 29, 2005. Wright filed a motion to dismiss, which the district court granted on J u n e 1 0 , 2 005, citing Montplaisir v. Leighton, 875 F.2d 1, 4 (1st Cir. 1989) ("The [Supreme] Court has long held that 'union agents' are not personally liable to third parties for acts perform e d on the union's behalf in the collective bargaining process."). Plaintiffs do not appeal Wright's dismissal. -2- STAHL, Circuit Judge . Five non-union New England-based steel erectors--Aerial Services, Inc.; D.F.M. Industries, Inc.; American Steel Erectors, Inc.; Bedford Ironworks, Inc.; andA j ax Construction, Inc
. ( "Plaintiffs" or "non-union contractors")

-- 1 brought suit against Local Union No. 7 of the International
As s o c i a t i o no fB r i d g e , S t r u c t u r a l , O r n a m e n t a l & R e i n f o r c i n gIron Workers ("Local 7" or "the Union") , an iron workers union that has 2

a collective bargaining agreement ("CBA") with the Building Trades Employers' Association of Boston and Eastern Massachusetts ("BTEA"). Plaintiffs' complaint alleged that Local 7 conspired with the BTEA and assorted named and unnamed union contractors to shut non-union contractors out of the structural steel industry in the greater Boston area, in violation of federal antitrust and l a b o r l a w s . P l a i n t i f f s a l s o a l l e g e d v a r i o u s s t a t e t o r t s and violation of the Massachusetts Fair Business Practices Act, G.L. c. 93A. The district court dismiss e d t h e s t ate law claims as preempted by federal labor law, and, in a subsequent order, granted-3-

Local 7's motion for s u mmary judgment on the federal claims. Plaintiffs now appeal both orders. We affirm the dismissal of the state law claims, but reverse the district court's grant of summary judgment on the federal labor and antitrust claims, and remand for further proceedings consistent with this opinion. I. Background We recite the facts in the li g h t most favorable to Plaintiffs, the non-movants. Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 84 (1st Cir. 2008).

To understand the context from which Plaintiffs' allegations arise, some explication of the relevant industry is warranted. The structural steel industry is comprised of s t eel fabricators, who manufacture steel products to meet design specifications, and steel erectors, who assemble the fabricated steel. General contractors requiring struc t u ral steel work typically solicit bids for "fab and erect" packages. The packages are submitted by fabricators, who solicit bids for the er e c tion work from steel erectors. In New England there are relatively few fabricators (around twenty) and many erectors (over 200). As a result, the competition for erection subcontracts in the Boston area is fierce, and the general rule is that the lowest bidder will be awarded the erection contract. That fierce competiti o n gave rise to the instant dispute.Job targeting programs have become increasingly common since 3 the early 1980s, as the share of the construction workforce that is unionized e x p erienced steep declines. In an attempt to protect their membership and aid union contractors in competing with open shop out f i t s, various unions across the country have established funds much like the MRP at issue here, which are financed by wage deductions and used to subsidize the bids of unionized contractors on targeted projects. See Herbert R. Northrup & Augustus T. White, Subsidizing Contractors to Gain Employment: Construction Union 'Job Targeting,' 17 Berkeley J. Emp. & Lab. L. 62, 64-68 (1996). -4- Local 7 negotiates collective bargaining agreements with contractors that employ iron workers in eastern Massachusetts, such as steel erection contractors. Among other things, employers who sign a CBA ("signatory contractors" or "union employers") agree to pay Local 7 workers a union scale wag e . Plaintiffs have not entered into a CBA with Local 7.

Because of the labor-intensive nature of steel erection work, labor expendi t u res account for about half of the cost. Signatory contractors are obligated to pay laborers the minimum wage set by the CBA. Non-union contractors, such as Plaintiffs, are not bound to the CBA minimum wage and can negotiate their labor costs. As a result, non-union erectors are often a b l e to submit lower bids for erection contracts.

The gravamen o f Plaintiffs' complaint relates to a job targeting program, the Market Recovery Program ("MRP"), which Local 7 created to mitigate the disadvantage imposed on signatory contractors by union wages. Under the MRP, Local 7 "t a r g ets" 3 certain construction projects and offers a subsidy to signatory-5-

contractors bidding on the project. The subsidy is intended to offset the higher cost of union labor, thus e n a b l i ng union employers to bid competitively against non-union contractors. When

a s i gnatory contractor is awarded the target project contract, Local 7 executes an agreement with the contractor detailin gthe terms and amount of the subsidy. The subsidy is taken from the target fund (the "Fund"), which is financed with sums withheld by union employers from Local 7 member paychecks. The job targeting program was first established by member vote, and it was incorporated into the Union by-laws in 1992.

In November 1993, Local 7 and the BTEA agreed to codify the method of Fund contributions in their CBA. Section 9 of the 2000-2006 CBA provides that "the Working Dues Deduction of two percent (2%) of the total packa g e p lus .85 for a Market Recovery Program and .03 for the Political Action League will be withheld out of net pay for each and every hour paid." The MRP monies are paid directly to Local 7, which deposits them into the Fund. The Fund t h en distributes wage subsidies on a case-by-case basis to BTEA employers who successfully bid on targeted projects.

The plaintiff steel erection contractors bid on many of the projects that Local 7 targeted. Plaintiffs allege a conspiracy between the Union and union employers to monopolize the structural steel industry in the Boston area and push non-union employers like Plaintiffs out of the market. To this end, Plaintiffs claim that-6-

Local 7 used Fund subsidies and other tactics to ensure that

co n t r a c t s w e r e a w a r d e d t o s i g n a t o r y c o n t r a c t o r s , r a t h e r than Plaintiffs. Specifically, Plaintiffs assert that Local 7 used Fund subsidies to assist signatory employers in underbidding Plaintiffs on erection jobs. Plaintiffs also claim that Local 7 used subsidies, threats, and picketing to pressure fabricators, developers, owners, and general contractors (none of which directly employ Local 7 workers) int o b reaching contracts with Plaintiffs and replacing them with signatory contractors.

As a result of Local 7's efforts, Plaintiffs argue that they were excluded from a large portion of the structural steel

m a r k e t i n the greater Boston area. For example, on one project, Plaintiff D.F.M. submitted the lowest bid for the erection work to

a f a b r i c a t o r a n d w a s a w a r d e d t h e s u b c o n t r a c t . S u b s e q u e n t l y, the fabricator breached its agreement with D.F.M. and gave the project to a signatory contractor, who was the beneficiary of a subsidy from Local 7. In ano t h e r instance, D.F.M. was awarded a steel erection contract for a new Fox25 TV station, but Local 7 picketed the job site until the fabricator bre a c h e dits agreement with D.F.M. and hired a union contractor. Plaintiffs allege that, at that job site, equipment belonging to D.F.M. w a s vandalized and stolen after Local 7 began its picket. On y e t another occasion, according to Plaintiffs, the ere c t i o n w o r k on a Stop & Shop was taken from Plaintiff Ajax due to a Fund subsidy. In addition, JohnUnder § 1 of the Sherman Act, a "contract, combination ... or 4 conspiracy in restraint of trade or commerce ... is ... illegal." 15 U.S.C. § 1. "The usual [§] 2 [Sherman Act] claim requires monopoly or near monopoly power in some market, and a wrongful exclusionary act designed to enhance such power in that market or to achieve an i mproper advantage in another market." Arroyo-Melecio v. Puerto Rican Am. Ins. Co., 398 F.3d 56, 66 (1st Cir. 2005) (citing Town of Norwood v. New England Po w e r Co., 202 F.3d 408, 420-21 (1st Cir. 2000)). -7- J. Paulding, the president of fabricator C&I Steel, Inc., ("C&I") submitted an affidavit averring that Local 7 agents had offered him Fund money if he agreed to "work" with them and that, on a number of projects, Local 7 threatened "problems" on the job if he did not hire a signatory contractor. Paulding contended that "problems" is well-known industry short-hand for project delays, increased financial costs, and property destruction.

On December 2, 2004, Plaintiffs filed a complaint against Local 7, its agent, Charles Wright, and the Steel Erection and Ornamental Iron Industry Advancement Fund, alleging violations of the Sherman Act and the Labor Management Relations Act ("LMRA"), as well as the commission of various state torts. In particular, Plaintiffs alleged a conspiracy between Local 7 and its signatory contractors to pressure fabricators to hire only union employers, thro u g ha c o mb i n a t i o no ft h r e a t s , d i s r u p t i v e b e h a v i o r , a n dMRP subsidies, in violation of § 1 and § 2 of the Sherman Act. 4 Additionally, Plaintiffs argued that the MRP c onstituted an unlawful restraint on trade because the Fund was the recipient of deductions from paychecks of Local 7 members working on publicFederally-funded construction projects are subject to the 5 Davis-Bacon Act, 40 U.S.C. §§ 3141-3144, which requires contractors work i n g o n federally-funded projects to pay workers no less than the prevailing wage, which is determined by the Secretary of Labor. See Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 480 F. Supp. 2d 471, 474 (D. Mass. 2007). The Act al s o prohibits employers from making any "subsequent deduction or rebate" from the paychecks of employees working on federally-funded projects, "regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and the laborers...." 40 U.S.C. § 3142(c)(1). The state of Massachusetts has enacted its own prevailing wage statute, known as a "Little Davis-Bacon Act," which requires contractors working on state-subsidized projects to pay no l e s s than the Massachusetts prevailing wage. See G.L. c. 149, § 26. Plaintiffs' complaint does not allege a direct violation of either the state or federal Davis-Bacon Act; rather, their theory seems to be that by violating federal and state prevailing wage laws in its administration of the MRP, Local 7 has exposed itself to antitrust liability. -8- projects, and subsidies were paid to signatory contractors working on public projects, in violation of the Davis-Bacon Act and the Massachusetts prevailing wage law. Plaintiffs also alleged that 5
Local 7's conduct violated a provision of LMRA, 29 U.S.C. § 187(a) and (b), which prohibits unions from engaging in any unfair labor practices as defined by § 8(b)(4) of the National Labor Relations
Act ("NLRA"). The state law claims included two counts of tortious interference with advantageous contractual and economic relations and o n e c ount of violation of the Massachusetts Fair Business Practices Act, G.L. c. 93A.

Defendants Local 7 a n dCharles Wright moved to dismiss the pendent state torts on February 1, 2005, arguing that the state claims were pre-empted by federal labor law. Plaintiffs countered-9-

that the claims were exempt from federal pre-emption. The district

co u r t f o u n dt h a t P l a i n t i f f s ' a l l e g a t i o n s c l e a r l yf e l l within activity protected or prohibited by the NLRA because Plaintiffs had alleged that the same conduct violated both the NLRA and state tort laws. The court held that Plaintiffs ' allegations could not benefit from the relevant exceptions to pre-emption, as the factual allegations of the complaint did not implicate conduct so related to local responsibility tha t s tate regulation would be expected. Rather, the court found that "[t]he gravamen of the Complaint is that Local 7 use[d] economic weapons to coerce nonunion employers into hiring union workers [which was] an allegation that [lay] at the heart of the regulatory province o f t h e NLRB." Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforc i n gIron Workers, No. Civ. A. 04-12536RGS, 2006 WL 300422 at *4 (D. Mass. Feb. 6, 2006). Accordingly, the district court dismissed the state claims as preempted by federal law.

Local 7 filed an Amended Motion for Summary Judgment on the remaining claims on August 1, 2006. The district court issued a Memorandum an d O rder on March 30, 2007, finding that (1) the conduct of Local 7 in administering the MRP was sheltered from antitrust liability by the statutory labor exemption, and (2) the conduct of Local 7 in using Fund subsidies to encourage the use of-10-

s i g n atory contractors was not coercive conduct prohibited by the
LMRA. Plaintiffs now appeal the district court's dismissal of the state law claims and grant of summary judgment on the remaining
counts. II. Discussion

We review the district court's grant of summary judgment de novo, with all reasonable inferences resolved in favor of the

nonmo v i n gp a r t y . F e n t o nv . J o h n H a n c o c kMu t . L i f e I n s . C o . , 4 00 F.3d 83, 87 (1st Cir. 2005). Nonetheless, we must ignore "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Summary judgment is appropriate where there is no genuine issue of material fact, and the movin gp a r t yis
ent i t l e d t o judgment as a matter of law. Fed. R. Civ. P. 56(c). "A dispute is genuine if the evidence about the fact is such that a reasonable jury coul d r e s o l v e the point in the favor of the non-moving party. A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)(citations omitted).

Local 7 h as raised the statutory and nonstatutory exemptions from antitrust liability as affirmative defenses against Plaintiffs' Sherman Act claims, and thus would bear the burden atWe express no opinion regarding the substance of Plaintiffs' 6 underlying antitrust claims. -11- trial of proving those defenses apply. To be entitled to summary judgment, the party with the burden of proof must provide evidence sufficient for the court to hold that no reasonable trier of fact could find other than in its favor. See Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir. 1998). A. Antitrust Liability

We turn first to the district court's finding that Local 7's conduct is protected from antitrust liability by virtue of the statutory labor exemption. 6

"[T]here is an inherent tension between national antitrust policy, which seeks to maximize competition, and national labor policy, which encourages cooperation among workers to improve the conditions of employment." H.A. Artists & Assocs., Inc. v. Actors' Equity Ass'n, 451 U.S. 704, 713 (1981). In an effort to balance these competing interests, Congress passed the Clayton Act and the Norris-LaGuardia Act, whi c h i mmunize certain organized labor conduct from antitrust liability. See id. at 713-714; see also Connel l Constr. Co., Inc. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 621 (1975) ("The basic sou r c e s of organized labor's exemption from federal antitrust laws are [§§] 6 and 20 of the Clayton Act, ... 15 U.S.C. [§] 17 and 29 U.S.C. [§] 52, and the Norris-LaGuardia Act, ... 29 U.S.C. [§§] 104, 105, and-12-

113."). A review of Supreme Court jurisprudence on the dichotomy between federal labor and federal antitrust law renders it pellucid that antitrust laws must not be applied to vi t i a t e congressional intent to permit organized labor activity; the Court has noted that "the [Sherman] Act is aimed primarily a t combinations having commercial objectives and is applied only to a very limited extent to organizations, like l a b or unions, which normally have other objectives." Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213 n.7 (1959).

Nonetheless, unions, particularly when acting in concert with non-labor groups, are not given carte blanche to engage in anticompetitive activities. As the Supreme Court h a s explained, "[i]t would be a surprising thing if Congress, in order to prevent a misapplication of [antitrust] l e gislation to labor unions, had bestowed upon such unions complete and unreviewable a u t h ority to aid business group s to frustrate its primary objective." Allen Bradley Co. v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 325 U.S. 797, 809-810 (1945).

To balance the c o mp e t i n gf e d e r a l p o l icies supporting organized labor on one hand and business competition on the other, two labor exemptions from the antitrust laws have been developed, one statutory and one nonstatutory. The Supreme Court articulated the s t atutory exemption in United States v. Hutcheson, 312 U.S. 219, 231 (1941), determining that the Sherman, Clayton, andLocal 7, quite correctly, points out that antitrust suits 7 ordinarily entail massive discovery and are expensi v e to defend. See, e.g., Bell Atlantic Corp. v . Twombly, 127 S. Ct. 1955, 1967 (2007)(raising the pleading requirements for an antitrust claim, in light of the "unusually high cost of discovery in antitrust cases"). -13- Norris-LaGuardia Acts must be read in harmony to effectuate Congress's intent to free organized labor from certain constraints imposed by the antitrust la w s . Reading the three statutes together, the Supreme Court held that union activity is exempt from antitrust liability "so long as [the] union act s i n its self-interest and does not combine with non-labor groups." Hutcheson, 312 U.S. at 2 3 2 . Regarding the first prong of this "two-prong test," our court has stated that "activities are in the self-interest of a labor organiz a t ion if they bear a reasonable relationship to a legitimate union interest." Allied Int'l, Inc.

v . Int'l Longshoremen's Ass'n, 640 F.2d 1368, 1379 (1st Cir. 1981)(internal quotations omitted). The union conduct at issue must satisfy both prongs of the Hutcheson test in order to qualify for the statutory exemption. S e e U S S-POSCO Industries v. Contra Costa County Bldg. & Constr. Trades Council, 31 F.3d 800, 807 (9th Cir. 1994)(citing H.A. Artists & Assocs., 451 U.S. at 704).

It soon b e came apparent, however, that much legitimate collective bargaining activity, which Congress did not intend to be quelled by the lumbering behe m o th of antitrust liability, 7 nevertheless fell outside the purview of the statutory exemption.-14-

Such activity was vulnerable to antitrust attack because it

co n s t i t u t e da c o mb i n a t i o nb e t w e e n l a b o ru n i o n s a n dn o n -labor employers. Accordingly, the Supreme Court recognized "that a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets r e q u ires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions." Connell Constr. Co, 421 U.S. at 622. The nonstatutory exemption shields some restraints on competition imposed through the bar g aining process, where the alleged ant i c o mpetitive conduct is anchored in the collectivebargaining process, concerns only the parties to the collective bargaining relationship, and relates to wages, hours, conditions of employment, or other mandatory subjects of collective bargaining.
Brow n v . P r o F o o t b a l l , I n c . , 5 1 8 U . S . 2 3 1 , 2 5 0 ( 1 9 9 6 ) ; see also California ex rel. Lockyer v. Safeway, Inc., 371 F. Supp. 2d 1179, 1185 n. 5 (C.D. Cal. 2005).

The district court e n t ered judgment for Local 7 on Plaintiffs' antitrust claims on t h e grounds that the Union's job-targeting program was protected by the statutory labor exemption. In reviewing this determination, we focus first on theIn arriving at its decision, the district court focused 8 almost entirely upon the MRP alone. Thus, for the purpose of determining whether the statutory exemption applies, we need go no further; if the MRP alone cannot be afforded the protection of the statutory exemption, that settles the question. We are aware, however, that Plaintiffs have alleged a smorgasbord of exclusionary conduct i n c l u ding, but not limited to, the MRP. We will examine the other allegations a n dtheir impact upon any labor exemption available to Local 7 further below. -15- s e c o n dpart of the Hutcheson test: whether, in administering the MRP, Local 7 was acting in combination with a non-labor group. 8

There is no serious dispute that Local 7, as an iron workers union, is a "labor group," and tha t the signatory contractors, as employers o f the members of Local 7, are a "nonlabor group." See H. A. Artists & Assocs., Inc., 451 U.S. at 715-16, 717 n. 21 (stating that "[e]mployers almost always will be a 'nonlabor group'" )
. The only question remaining, then, in determining whether the disputed activity here fails the second prong of Hutcheson, is whether the MRP constitutes a "combination" between Local 7 and the signatory contractors.

Local 7 argues that the MRP is the brainchild of the Union alone, and was established and incorporated into the Union's by-laws over a year before the wage deduction provision was added
to its CBA with the BTEA. According to Local 7, only th e Union determines w h i c h jobs to target, and sets the amount of the wage deductions and subsidies. Plaintiffs concede that the MRP was established and administered unilaterally by the Union, but argue that it was funded by deductions from member paychecks pursuant to-16-

a CBA between the Union and signatory contractors. Additionally, Plaintiffs co n t e nd that Local 7 and signatory contractors collaborated in identifying target projects, and that Fund subsidies were doled out pursuant to ad-hoc agreements between the Union and the signatory contractor successful in its bid on a targeted project.

Upon examination of how the MRP operates, it is a thin fiction to pretend that the program does not represent a combination between labor and non-labor groups. The MRP may have been initially conceived by Local 7 alone, but the method and

a m o unt of wage deductions that entirely finance the Fund are written into the CBA between Local 7 and the BTEA; t h e agreement that $0.85/hr would be deducted from each employee's wages and earmarked for the "Market Recovery Program" is codified within the text of a negotiated CBA between the Union and a non-labor employers' group. A coll e c t ive bargaining agreement is by definition a combination between a labor group and a non-labor group. Brown, 518 U.S. at 237. Additionally, funds were distributed to signatory contractors working on targeted projects pursuant to separate agreements between Local 7 and those
contractors on a p r oject-by-project basis. Thus with regard to both the input and output of its funds, the MRP could not operate except in tandem with signatory contractors. Furthermore, although Local 7 disputes this, there is evidence in the record from whichFo re x a mp l e , t h e r e i s a l e t t e ri n t h e r e c o r df r o mG r i f fin 9 Iron Works, Inc., a signatory contractor, to Local 7, which states that "[t]hrough a concentrated effort with the New England District Council and Griffin Iron Works, Cardi's Furniture's new store was turned around from a non-union project to a union project," and notes that "Local 7 ... agreed to pay $10,000

. 0 0 towards the New England District Council's effort to turn this project around." Local 7 misreads the law by muddling the question whether the 10 statutory exemption is applicable with cases where the nonstatutory exemption was found inapplicable. The Union cites to Allen Bradley, 325 U.S. at 809, and Connell, 421 U.S. at 623-24, for the proposition that "the test requires evidence of a restraint of trade entered into by non- l a b o r groups." That is not the second prong of the Hutcheson test for the statutory exemption, however; rather, both of those cases dealt with the applicability of the nonstatutory exemption. The Court already having found therein a combination between labor and non-labor that removed the disputed activ i t y from the protection of the statutory exemption, it was left to decide only whether the combination was engaged in activity permitt e d by federal labor policy favoring collective bargaining (and thus protected by the nonstatutory exemption), or activity that constitu t e dan illegal restraint on trade (and thus unprotected by the nonstatutory exemption). It is disingenuous for Local 7 to argue that the MRP has no impact on business competition whe n i t s v e r y p u r p o s e i s t o r e n d e r u n i o n e mp l o y e r s more competitive. Whether the Fund constitutes an illegal restraint on competition is a question to be taken up under our d i s c u ssion of the nonstatutory exemption, infra. -17- a r a t i onal fact-finder could reasonably infer that the Union and signatory contractor s worked together to identify and "win" targeted p r ojects away from non-union employers. Accordingly, 9 because the MRP was codified by a n doperated through agreements between a labor group and a non-labor group, the s t a t u tory exemption cannot apply. See Connell Constr. Co., 421 U.S. at 622 10 (statutory exemption does not apply to "concerted action or agreements between unions and nonlabor parties"); see also Phoenix Elec. Co. v. Nat'l Elec. Contractors Ass'n, 81 F.3d 858, 860 (9thBecause the conduct at issue need fail only one prong of the 11 Hutcheson t e s t i no r d e rt o r e m o v e i t f r o mt h e p r o t e c t i o n o fthe statutory exemption, we find it unnecessary to review the district court's determination that Local 7 was acting in its own legitimate self-interest. -18- Cir. 1996)(job targeting program established through collective bargaining between electrical workers union and signatory contractors association protected by nonstatutory exemption from antitrust laws); Local Union 257, Int'l Bhd. of Elec. Workers v. Sebastian Elec., 121 F.3d 1180, 1186-87 (8th Cir. 1997)(same). 11

The fact of that combination takes the MRP out of the purview of the statutory exemption but does not necessarily render it vulnerable to antitrust liability. The nonstatutory exemption was created for this express purpose; through it, courts recognized that in o r d er "to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the barga i n i ng process must be shielded from antitrust sanctions." Brown, 518 U.S. at 237. Because the district court chose not to make a finding as to the applicability of the nonstatutory exemption to this case, it is left to us to determine whether Local 7 adduced sufficient evidence to prove its entitlement to that exemption or whether we must remand the question for further development of the record. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 173 (1st Cir. 1998)(holding that this court may affirm a grant of summary-19-

judgment "on any independently sufficient ground made manifest by the record").

The case f o r t he applicability of the nonstatutory exemption is strongest where the al l e ged restraint operates primarily in the labor market and has only tangential effects on the business market. Clarett v. Nat'l Football League, 369 F.3d 124, 134 n. 14 (2d Cir. 2004); see also California ex rel. Lockyer, 371 F. Supp. 2d at 1188 n.8. Conversely, the Supreme Court has generally refused to exempt union-employer agreem e n t s "that were alleged to have i njured or eliminated a competitor in the employer's business or product market ... in spite of any resulting detriment to the labor policies favoring collective b a rgaining." Clarett, 369 F.3d at 131-33 (providing overview of Supreme Court's nonstatutory exemption jurisprudence). As the Court has explained,

[t]he nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions .... Labor policy clearly does not require, h o w ever, that a union have freedom to impose direct restraints on competition among those who employ its members. T h u s , while the statutory exemption allows unions to accomplish some restraints by acting unilaterally ... the nonstatutory exemption offers no similar protection when a union and a nonlabor party agree to restrain competition in a business market. Connell Constr. Co., 421 U.S. at 622-23 (internal citations omitted). The Court most recently found the nonstatutory exemption applicable w h ere the disputed "conduct took place during and-20-

immediately after a collective-bargaining negotiation. It grew out of, and was directly related to, the lawful operation of the bargaining process. It involved a matter that the parties were required to negotiate collectively. And it concerned only the parties to the collective-bargaining relationship." Brown , 518 U.S. at 250.

Other circuits have found t h a t job targeting programs, similar i n structure and implementation to the program at issue here, do fall within the bailiwick of the nonstatutory exemption. See Phoenix Elec. Co., 81 F.3d at 863 ("A sub s i d y program that targets some jobs for more competitive wage components of signatory union subcontractor bids, and does not bar nonunion b i d d ers from bidding on the same jobs, is in harmony with the policies of both the labor and antitrust laws."); Local Union 257, 121 F.3d at 1186- 87 (holding that job targeting program was protected by nonstatutory exemption because "the Target Fund primarily affects only the parties to the collective bargaining relationship, [] the
wage r e i mb u r s e m e n t a r r a n g e m e n t a t i s s u e c o n c e r n s a m a n d a t o ry subject of collective bargain i n g(i.e., wages), and [] the arrangement is the product of bona fide arm's-length bargaining"). But Plaintiffs' allegations do not relate only to the MRP; rather, they pain t t he MRP as only one part--if the central part--of a wider conspiracy between Local 7, its s i gnatory contractors, and the general contractors and steel fabricators from which theyIn its order g ranting summary judgment to Local 7 on 12 Plaintiffs' federal law claims, the dis t r i ct court appeared to almost entirely ignore these other allegations and focused solely on the MRP. Th e court did state, within the discussion of Plaintiffs' LMRA claim, that "[t]here is nothing in the record to support plaintiffs' assertion that the Union resorted to coercive restraints or tactics," perhaps indicating that it was refusing to cred i t P l a i n t i f f s ' o t h e ra l l e g a t i o n s . H o w e v e r , w i t ho n l yt h at cryptic remark to guide us, we remain somewhat mystified as to why the district court passed over these allegations e n t i r ely in its discussion of Plaintiffs' antitrust claims. Whether we are entitled to credit these allegations is certainly material to our legal analysis: if Plaintiffs' allegations are taken as true, they would appear to nudge this case away from an allowable restraint arrived at through collective bargaining, as job targeting programs alone have been found to be, see, e.g., Local Union 257, 121 F.3d at 1186-87, and towards the type of illegal restraint on business competition considered verboten by the Supreme Court in cases such as United Mine Workers of America v. Pennington, 381 U.S. 657 (1965) and Connell. -21- solicit steel erection work, to shut open-shop outfits such as Plaintiffs out of the steel erection market in the greater Boston area. We must consider the entirety of the alleged activity when determining the applicability of the nonstatutory exemption, casting aside only those allegations that amount to no more than "conclusory allegations" or "unsupported speculation." See Medina-Munoz, 896 F.2d at 8. 12

We find there are sufficient genuinely disputed issues of material fact here to render summary judgment inappro p r i a t e. Plaintiffs have alleged concerted union-employer action that extended beyond merely the wage deduction provided for in the CBA and the job-by-job subsidy agreements, t o collaboration in the identi f i cation and acquisition of target projects. Local 7 has-22-

steadfastly maintained, however, that target projects are identified solely by the Union and then announced to signatory

co n t r a c t o r s s i mu l t a n e o u s l yv i aa " b l a s t f a x . " F u r t h e r m o re, Plaintiffs have argued that signatory cont r a c tors and the fabricators or general contractors who employ them are complicit in the union's efforts to shut non-union employers out of the market,pointing to evidence that fabricators broke contracts with nonunion employers and replaced them with union employers in response to threats and/or monetary inducements by Local 7. The Union counters that Plaintiffs have proffered no reliable evidence of exclusionary agreements between Local 7 and fabricators or general contractors, citing to deposition testimony by Plaintiffs' representatives admitting no general or specific knowledge of any such agreements. The district court did not squarely address these disputes, and standing as we do one step removed from the record, we are not in a position to resolve them. Accordingly, we reverse the district court's grant of summary judgment to defendant Local 7 on P l aintiffs' antitrust claims. Cf. Ramirez-Carlo v. United States, 496 F.3d 41, 46 (1st Cir. 2007)(grant of summary judgment will be reversed if "the evidence on record is sufficiently open-ended to permit a rational fact finder to reso l v e t he [liability] issue in favor of either side."). We remand for further fact-finding with regard to the extent of the collaboration between Local 7, signat o r y c ontractors, and the construction-23-

companies that hire them, to determine whether Local 7 is protected from antitrust liability by the nonstatutory exemption.

We make one final observation regarding Plaintiffs' antitrust claims. Much argument has been devoted throughout this case to the question whether the MRP violates the Davis-Bacon Act and the comparable Massachusetts prevailing wage statute. It seems apparent from the record that the MRP is funded in part by deductions from union members working on Davis-Bacon projects, and that signatory contractors biddi ng on Davis-Bacon projects have availed themselves of subsidies from the Fund. Thus, the MRP may very well violate the Davis-Bacon Act; a string of recent circuit decisions seems to indicate as much. S e e g e nerally Can-Am Plumbing, Inc. v. Nat'l Labor Relations Bd., 321 F.3d 145 (D.C. Cir. 2003); Int'l Bhd. of Elec. Workers v. Brock, 68 F.3d 1194 (9th Cir. 1 9 9 5 ) ; B l d g . & C o n s t r . T r a d e s D e p ' t v . R e i c h , 4 0 F .3d 1275 (D.C. Cir. 1994). But Plaintiffs have alleged no cause of action under the Davis-Bacon Act, and, in any case, most likely would not have standing to do so. Cf. United States v. Binghamto n C o nstr. Co., 347 U.S. 1 7 1 , 177 (1954)("The language of the [Davis-Bacon] Act and its legislative history plainly show that it was not enacted to benefit contractors, but rather to protect their employees from substandard earnings by fixing a floor under wages on Government projects.").Because the district court issued its ruling on the antitrust 13 claims solely on the basis of the statutory exemption, neither party on appeal has sufficiently raised or adequately briefed the question whether a Davis-Bacon violation could ren d e r union acti v i t yi n e l i g i b l e f o rt h e n o n s t a t u t o r ye x e mp t i o n . W e t h us decline to opine on that question at this time. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)("[I]ssues adverted to in a perfunctory manner [on appeal], unaccompanied by some effort at developed argumentation, are deemed waived."). -24- Plaintiffs, however, have made an acrob a t i c attempt to shoehor n a possible Davis-Bacon violation into their antitrust claims, arguing that Local 7's putative Davis

- B a con violation is relevant to the first prong of the Hutcheson analysis. Plaintiffs contend that the MRP could not be characterized as within the Union's legitimate self-interest if it were admini s t ered in violation of prevailing wage statutes. Because we need not address the first prong of Hutcheson, we do not reach this issue. We note that Reich and its progeny do n o t a ppear to stand for the proposition that a Davis-Bacon viol a tion exposes an otherwise exempt job targeting program to antitrust liability. Nevertheless, it may be that it is not within the interest of federal labor policy to protect the unlawful provision of subsidies to signatory contractors on prevailing wage jobs. 13 B. LMRA Claim

In addition to their antitrust claims, Plaintiffs allege

a violation of § 303 of the LMRA, 29 U.S.C. § 187. "Section 303(a) [of the LMRA], 29 U.S.C. § 187(a), makes it unlawful for a labor organization to engage in conduct defin e das an unfair laborSection 8(e), 29 U.S.C. § 158(e), provides in relevant part: 14 "It shall be a n u n fair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or a grees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person ...." -25- practice under § 8(b)(4)of the NLRA." Summit Valley Indus., Inc. v. Local 112, United Bhd. of Carpenters & Joiners of Am., 456 U.S. 717, 722 (1982). Under § 8(b ) ( 4)(ii), it is an unfair labor practice for a union to threaten, coerce, or restrain an employer with an object of forcing the employer (A) to join any labor or employer organization or enter into an agreemen t p r o hibited by § 8(e) of the NLRA, or (B) to cease doing bus i n ess with another 14 party. 29 U.S.C. § 158(b)(4)(ii)(A)&(B); Intercity Maint. Co. v. Local 254, Serv. Employees Int'l Union, 241 F.3d 82, 87 (1st Cir. 2001). The district court refused to read Plaintiffs' complaint to allege a § 8(b)(4)(ii)(B) "cease doing business" violation. It seems to us that the complaint clearly does allege such a violation; Paragraph 177 of the complaint states:

Since on or about July 1999 Local 7 has violated § 8(b)(4)(ii)(A) and (B) of the Labor Act, 29 U.S.C. §§ 158(b)(4)(ii) ( A ) & (B), by engaging in threats of picketing and other restraint and coercion against Plaintiffs and other contractors to obtain agreements prohibited by § 8(e )
. .. and where an object is to cause Non-Labor businesses to ... cease doing business with Plaintiffs.The unlawful agreements at issue, as defined by § 8(e) of the 15 NLRA, are commonly r e f e r r ed to as "hot cargo agreements." The statute was intended to bar "an employer and union from entering into an agreement under which the employer ceases h a n d l i ng or otherwise dealing with the products of other employers." R.M. Perlman, Inc. v. New York Coat, Suit, Dresses, Rainwear & Allied Workers' Union Local 89-22-1, 33 F.3d 145, 151 (2d Cir. 1994). Section 8(b)(4)(ii)(B), on the other hand, targets union activity such as strikes and secondary boycotts, where an object of such activity is to "'force or require [the striking workers'] employer or another person to cease doing business with a third party.'" Allied Int'l, 640 F.2d at 1374 (quoting Local 1976, United Bhd. of Carpenters v. N.L.R.B., 357 U.S. 93, 98 (1958)).

-26- However, Plaintiffs' arguments before the district court and on appeal focused almost entirely on unlawful § 8(e) agreements, which implies a violation of § 8(b)(4)(ii)(A) only. We recognize that the statute is not without its complexities. There is, however, a difference between a claim brought under § 8(b)(4)(ii)(A) a n d a claim brought under § 8(b)(4)(ii)(B), which is a p p a r ent from the plain language of the statute: a successful § 8(b)(4)(ii)(A) claim requires proof that a union is acting to coerce employers into an unlawful agreemen t t o cease doing business with another party, while a successful § 8(b)(4)(ii)(B) claim requires proof that the union's coercive tactics are intended to force an employer to cease doing business with another party, regardless of any agreement. 15

In t h e i r a p p e l l a t e p a p e r s , P l a intiffs somewhat confusingly assert that their § 8(b)(4)(ii)(B) claim was acknowledged by the district court, although that court plainly stated that it did "not read the Complaint, despite its prolixity,-27-

t o a l l ege an alternative 'cease doing business' violation of the LMRA." Am. Steel Erectors, Inc., 480 F. Supp. 2 d at 479 n. 16. But then Plaintiffs themselves seem to ignore any § 8(b)(4)(ii)(B) claim they may have had, characterizing the LMRA issue on appeal as "[w]hether the district court erred in holding, as a matter of law, that contract breaches and terminations obtaine d b y Local 7 from neutral fabricators and general contractors through threats, coercion, and restraints were permissible under 29 U.S.C. § 158( e )
. " If Plaintiffs cannot sort out their allegations and develop their arguments sufficiently, it is not for us to do so for them; accordingly, we consider the § 8(b)(4)(ii)(B) issue waived.
See United States v. Slade, 980 F.2d 27, 31 (1st Ci r . 1 992)("[A] party is not at liberty to articulate specific arguments for the first time on appeal simply because the general issue was before the district court."); see also Zannino, 895 F.2d at 17.

We thus t u r n our attention to whether summary judgment was warranted on Plaintiffs' § 8(b)(4)(ii)(A) claim, re g a r d ing Local 7's alleged use of coercive tacti c s t o pressure neutral employers into unlawful § 8(e) agreements. The Supreme Court has held that [T]he relevant inquiry under ... 8(e) is

whether a union's activity is primary or secondary--that is, whether the union's efforts are directed at its own employer on a topic affecting employees' wages, hours, or working conditions that the employer can control, or, instead, are directed at affecting the business relations of neutral-28- employers and are 'tactically calculated' to achieve union objectives outside the primary employer-employee relationship.
N.L.R.B. v . Int'l Longshoremen's Ass'n, 473 U.S. 61, 81 (1985). However, an agreement between an employer and a union representing that employer's employees is not prohibited by § 8(e), even if it may impact t h e business of a secondary party, as long as the union's objective is the preservation of work for those employees. See Nat'l Woodwork Mfrs. Ass'n v. N.L.R.B., 386 U.S. 612, 645-46 (1967)(agreement within negotiated CBA between carpenters' union and general contractor providing that carpenters would not handle prefabricated doors did not violate § 8(e), even though manufacturer of prefabricated doors lost contractor's business as a result). Plaintiffs contend Local 7 used coercive tactics-- including picketing, threats, and the lure of lucre-- t o pressure fabricators and general contractors (i.e., "neutral employers" who do not themselves hire Local 7 members or have a collective bargaining relationship with Local 7) into agreements to hire only union erectors. As evidence, Plaintiffs point to substantially the same factual allegations underlying their antitrust claims, discussed above. Therefore, the same factual disputes remain. For example, Local 7 argues that there is no evidence the Union entered into generalized agreements with fabricators for across-the-board exclusion of all non-union employers from jobs in the relevant-29-

m a r k et. This argument both mischaracterizes Plaintiffs' factual allegations and misapprehends the law. There i s no requirement that an agreement need be of a generalized exclusionary nature to fall afoul of § 8(e); rather, the use of coercive measures by a union to pressure a single neutral employer into a single agreement to cease doing business with a single non-union employer, or the application of such measures on a project-by-project basis (both of which Plaintiffs have alleged), would suffice. See, e.g., N.L.R.B. v. Bangor Bldg. Trades Council, 278 F.2d 287, 289-90 (1st Cir. 1960)(union violated NLRA by picketing job site to pressure contractor not to use non-union subcontractor). It is also worth noting that the law does not require a written contract; the statute specifically references "any contract or agreement, express or implied." 29 U.S.C. § 158(e)(emphasis added).

In evaluating Plaintiffs' § 8(b)(4)(ii)(A) claim, the district co u r t again focused only on the MRP and did not address Plaintiffs' other allegations. Viewing the facts in the light most favorable to Plaintiffs, as we must, we find that there are genuine issues of material fact with r e g a r d t o the nature and extent of Local 7's allegedly coercive tactics, and whether Local 7 through use of those tactics pressured neutral employers into agreements to refrain from us i n g n on-union contractors in violation of § 8(e). We therefore reverse the district court's grant of summary judgmentS e ction 7 of the NLRA protects employees' right "to 16 self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protecti o n . " 29 U.S . C . § 1 5 7
. S e c t i o n8 p r o h i b i t s e mp l o y e r s a n de mp l oyees respectively from engaging in certain "unfair labor practices." 29 -30- to defendant Local 7 on Plaintiffs' LMRA claim, and remand for further proceedings. C. State Law Claims

We review de novo the district court's dismissal of Plaintiffs' state law claims, a c c e pting as true all well-pleaded facts and drawing all reasonable inferences in Plaintiffs' favor. See Santos-Rodriguez v. Doral Mortgage Corp., 485 F.3d 12, 15 (1st Cir. 2007).

Federal law preempts state law (1) w h e n Congress has

e x p r e s s l y s o p r o v i d e d , ( 2 ) when Cong r ess intends federal law to "occupy the field" and (3) to the extent that state law conflicts with any federal statute. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73 (2000)(internal citations omitted).

"[T]he NLRA itself contains no express pre-emptionprovision," but "Congress implicitly mandated two types of preemption as necessary to implement federal labor policy." Chamber of Commerce of U.S. v. Brown, 128 S.Ct. 2408, 2412 (2008). The first, familiarly known as "Garmon pre-emption," prohibits states from regu l a t ing activities that are arguably protected or prohibited by § 7 and § 8 of the NLRA. See San Diego Bldg. Trades 16U.S.C. § 158. -31-

C o u n c i l v. Garmon, 359 U.S. 236, 244 (1959); see also Bldg. & Constr. Trades Council of Metro. Dist. v. Asso c i ated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224-25 (1993). The second, "Machinists pre-emption," is a recognition of Congress's intention to occupy the field of labor dispute re g u l ation, prohibiting state regulation of areas outside the four corners of the N L RA if Congress intended them "to be controlled by the free play of economic forces." Machinists v. Wis. Employment Relations Comm'n, 427 U.S. 132, 140 (1976)(citation omitted).

There are three exceptions to feder a l labor law preemption. Tamburello v. Comm-Tract Corp., 67 F.3d 973, 977 (1st Cir. 1995). "The first is where Congress has expressly carved out

an ex c e p tion to the [National Labor Relations Board]'s primary jurisdiction." Id. Second, the NLRA does not pre-empt state law "when the regulated activity touches 'interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction,' courts 'could not infer that Congress had deprived the States of the power to act.'" Id. (citing Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436
U.S . 1 8 0 , 1 9 5 ( 1 9 7 8 ) )
. A n d t h e f i n a l e x c e p t i o n a p p l i e s "if the regulated activity is merely a peripheral or collateral concern of the labor laws." Id.Plaintiffs also argue that the district court's decision is 17 inconsistent with case law findi n g no pre-emption of state prevailing wage s tatutes, but Plaintiffs' complaint asserted no clai m u nder the Massachusetts prevailing wage statute and Plaintiff s d i dnot directly advance that argument below in their opposition to defendants' motion to dismiss. We therefore will not consider it here. See McCoy v. Mass. Instit. of Tech., 950 F.2d -32- We agree with the district court's pre-emption analysis, and we n e e d n o t r ehash it here at length. See Talbott v. C.R. Bard, Inc., 63 F.3d 25, 30-31 (1st Cir. 1995)("where [a] district judge produces a well-reasoned opinion that reaches the correct result, a reviewing court should not write at length merely to put matters in its own words")(citing In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993)). Plaintiffs' state law claims incorporate by reference all the factual allegations that form the basis for Plaintiffs' federal claims, and assert no others. P l a intiffs have thus effectively conceded that the same conduct that gives rise to their state claims is conduct "arguably protected or prohibited" by federal l a bor law; accordingly, Plaintiffs' state law claims are pre-empted as per Garmon.

There being no applicable express carve out from federal jurisdiction, Plaintiffs' state law claims could only be saved from pre-emption by the second o r t hird exception delineated above. However, Plaintiffs have not pled allegatio ns that sufficiently implicate interests "so deeply rooted in local f e e ling and responsibility" or of "peripheral or collateral concern" to federal labor laws so as to except them from federal pre-emption. Local 1713, 22 (1st Cir. 1991)("It is hornbook law that theories not raised

squarely in the district court cannot be surfaced for the first time on appeal.").

-33- 7's conduct may be prohibited rather than protected by the NLRA, but either way it is well within the regulatory purview of federal labor law rather than that of state police power. See Garmon, 359
U.S . a t 2 4 4 ("When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by [§] 7 of the [NLRA], or constitute an unfair labor practice under [§] 8, due regard for the federal enactment requires that state jurisdiction must yield. . . . Nor has it mattered w h e ther the States have acted through laws of broad general application rather than laws speci f i c ally directed towards the governance of industrial relations."). We affirm the district court's dismissal of Plaintiffs' state law claims as pre-empted by federal labor law. III. Conclusion For the reasons stated above, we affirm the dismissal of Plaintiffs' s t a t e law claims, but reverse the district court's

su mm a ry judgment order and remand for further proceedings consistent with this opinion. Each party should bear its own
costs.