Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Utility charged with steering asphalt paving work to local labor union, (Feb 18, 2016)

By Linda O’Brien, J.D., LL.M.

A city utility has engaged in a conspiracy with a local labor union to monopolize the market for specialized asphalt paving work, according to a complaint filed by a competing labor union in the federal district court in New York City (New York Independent Contractors Alliance Inc. v. Consolidated Edison Company of New York, Inc., February 16, 2016).

New York Independent Contractors Alliance Inc. (NYICA) is comprised of construction contractors whose members have collective bargaining relationships with union Local 175, an affiliate of the International Union of Journeyman and Allied Trades. Consolidated Edison Company of New York (Con Edison) is a utility that provides electricity, gas, and steam services in New York City.

According to the complaint, Con Edison and other utilities maintain the electric, gas, and steam lines under the city streets and such maintenance involves excavation to perform that work. The restoration of the asphalt removed in connection with the excavation work is known as utility asphalt patch-paving. Prior to 2007, Laborers International Union of North America (LIUNA) union Local 1010 was the collective bargaining representative for utility asphalt patch-paving workers in New York City.

In secret ballot elections in 2007, Building & Construction trades Council of Greater New York (BCTC) union Local 175 was elected as the workers’ collective bargaining representative. According to the complaint, in July 2014, Con Edison, acting in concert with LIUNA Local 1010, revised its contract terms to require contractors to use only union labor affiliated with the BCTC. In the previous ten years, Con Edison’s contract terms did not contain any restrictive union requirement. The effect of the deal was that Con Edison would no longer award contracts to contractors affiliated with Local 175. Additionally, Con Edison and LIUNA Local 1010 officials threatened NYICA-affiliated contractors with the loss of Con Edison’s utility asphalt patch-paving work unless they repudiated their collective bargaining relationships with Local 175.

The complaint also alleges that the agreement among Con Edison, LIUNA, and LIUNA Local 1010 is not protected by the construction industry proviso or the antitrust exemptions for labor activity. The agreement allegedly has had, and will continue to have, anticompetitive effects in the utility asphalt patch-paving market in New York City. Con Edison’s revised contract terms are not reasonably necessary to achieve procompetitive benefits and any procompetitive benefits from the agreement are substantially outweighed by their anticompetitive effects, the lawsuit claims.

NYICA contractors allegedly have not been awarded utility asphalt patch-paving contracts that they otherwise would have been awarded due to Con Edison’s anticompetitive conduct. Local 175 workers have lost work from Con Edison contracts that they have traditionally performed and are threatened with further loss of work, the complaint states.

The plaintiff asserts claims for monopolization in violation of Sections 1 and 2 of the Sherman Act. The action seeks injunctive relief, treble damages, costs of suit, attorney fees, and any other just and proper relief.

The case is No. 1:16-cv-01172.

Attorneys: Edward M. Spiro, Robert J. Anello, and Curtis B. Leitner (Morvillo, Abramowitz Grand Iason & Anello) for New York Independent Contractors Alliance Inc.

Companies: New York Independent Contractors Alliance Inc.; Consolidated Edison Company of New York, Inc.

News: Antitrust NewYorkNews