UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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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, WHITEFORD, 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Unpublished opinions are not binding precedent in this circuit.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 alleging, 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 accurately characterized as "a massive record" including dozens of depositions, "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 defendants' 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 antitrust 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 Association (NFSA), a trade association to which Grinnell belongs and to

which prior to September, 1993, it had assigned its collective bargaining 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 withdraw the availability of a job program known as targeting from Grinnell 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 compete 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 agreement, to prevent Grinnell from obtaining more favorable collective

bargaining terms.

"[C]onduct as consistent with permissible competition as with illegal conspiracy, does not, standing alone, support an inference of antitrust 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 withdrawing 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 further 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 liability 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 bargaining unit." The judge concluded that "on this record [ ] the Union by

its conduct here was not requiring Grinnell to join the NFSA [bargaining unit] or unlawfully coercing it in some other manner." Grinnell'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 genuine issue of disputed fact as to whether the defendants engaged in illegal 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 parties, 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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