Opinion
No. 02 Civ. 9448 (CSH).
August 20, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff CD Restoration, Inc. ("CD") filed this labor action under § 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187, against defendant Laborers Local 79, a constituent local union of the Mason Tenders District Council of Greater New York, affiliated with Laborers International Union of North America ("Local 79" or "the union"), and individuals acting as agents or business agents of Local 79. CD sought damages for activity and conduct by defendants which CD alleged constitute an unfair labor practice in violation of §§ 8(b)(4)(B) and 8(b)(4)(D) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(b)(4). The parties cross-moved for summary judgment under Rule 56, Fed.R.Civ.P. In an opinion reported at 2004 WL 736915 (S.D.N.Y. Apr. 5, 2004) I granted the defendants' motion and directed the Clerk of the Court to dismiss the complaint with prejudice. Plaintiff then moved under Local Civil Rule 6.3 for reconsideration of my opinion, which I denied in an opinion reported at 2004 WL 1171395 (S.D.N.Y. May 26, 2004). Familiarity with both opinions is assumed. Plaintiff now moves pursuant to Fed.R.Civ.P. 60(b) for relief from the judgment entered against it in accordance with those prior opinions. For the reasons stated in this opinion, plaintiff's motion is denied.
DISCUSSION
The facts and circumstances of this case have been outlined in two prior opinions, and are not here repeated.
Plaintiff moves for relief under Fed.R.Civ.P. 60(b)(6), a catch-all provision which, after a recitation of specific grounds none of which is said to be applicable to the case at bar, gives the trial court discretion to relieve a party from judgment for "any other reason justifying relief from the operation of the judgment." In the Second Circuit, in order to obtain relief under 60(b)(6), a movant must show "exceptional circumstances" or "extreme hardship" mandating relief from the judgment. See Ackermann v. United States, 340 U.S. 193, 199 (1950); United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977). "By definition, such circumstances are rare." Dagen v. CFC Group Holdings Ltd., No. 00 Civ. 5682 (CBM), 2004 WL 830057, at *3 (S.D.N.Y., Apr. 13, 2004), citing Velez v. Vassallo, 203 F. Supp.2d 312, 333 (S.D.N.Y. 2002).
CD argues that the "extraordinary circumstance" which warrants relief is that this Court has "refused to consider . . . the validity of the Tishman/Local 79 Agreement under NLRA § 8(e) nor the propriety of Defendant's application of that Agreement to terminate Plaintiff." Plaintiff's Memorandum in Support of Motion for Relief, at 6. I did not consider this argument because this Court lacks subject matter jurisdiction to do so. Judge Motley decided that precise question in Betal Env't Corp. v. Local Union Number 78, Asbestos, Lead Hazardous Waste Laborers, 123 F. Supp.2d 156 (S.D.N.Y. 2000):
Notably, section 303's grant of jurisdiction is limited specifically to violations of section 8(b)(4) and does not extend to violations of section 8(e), other than those dealing with coercion. . . . [S]ection 303 does not extend district court jurisdiction to pure violations of section 8(e). Rather, to fall within the scope of section 303, plaintiff must allege some violation of section 8(b)(4), which as noted above, requires coercive activity. Any complaint that plaintiff has concerning the validity of the Local 78/York collective bargaining agreement under section 8(e) belongs in front of the NLRB, the tribunal designated by Congress to hear such claims.Id. at 159, 161. While Judge Motley's opinion in Betal is not binding upon me, I agree with her parsing of the statute, and accordingly conclude that this Court does not have subject matter jurisdiction over the claims of the plaintiff at bar claims arising out of alleged violations of § 8(e).
Plaintiff appears to acknowledge that it is the case that "neither state nor federal courts have jurisdiction over suits directly involving 'activity (which) is arguably subject to § 7 or § 8 of the [NLRA].'" Vaca v. Sipes, 386 U.S. 171, 179, quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). Jurisdiction over these suits, including § 8(e) claims, falls with the National Labor Relations Board ("NLRB"). That is why plaintiff withdrew its fifth and sixth claims of relief.
Despite this general prohibition, there are certain exceptions in which, if applicable to the case at bar, subject matter jurisdiction would exist to consider § 8(e) claims. But plaintiff's claims do not fit within any of these categories.
The first possible source of subject matter jurisdiction in this Court is § 303 of the LMRA. That section provides for jurisdiction in district courts over any claim of injury arising out of a labor organization's alleged violation of § 8(b)(4) of the NLRA. § 8(b)(4), in relevant part, makes it an unfair labor practice:
(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is —
(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section. . . .29 U.S.C. § 158(b)(4).
For the reasons stated in my prior opinions, plaintiff has not established coercion. See also Betal, at 123 F. Supp.2d at 158-59 ("In this case, there are no allegations that defendants tried to force or require plaintiff to enter into the collective bargaining agreement. In fact, plaintiff is not even a party to the collective bargaining agreement. In fact, plaintiff is not even a party to the collective bargaining agreement. Plaintiff, therefore, cannot assert a violation of section 8(b)(4) with regard to the alleged 'hot cargo' clause.").
The second exception finds its origins in Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982). In that case, the Supreme Court gave federal district and state courts original jurisdiction to entertain section 8(e) defenses in suits arising under section 301(a). See David A. Anderson, Hot Cargo Enforcement After Kaiser Steel: A New Look at Section 8(e), 1983 Utah L.Rev. 493, 499 (1983). Plaintiff's suit is not based on § 301 of the LMRA but rather § 303. Furthermore, plaintiff is not attempting to use § 8(e) as a defense. Therefore, plaintiff's case does not fall under the second exception.
Finally, parties may bring certain § 8(e) claims based on antitrust statutes. However, plaintiff's claims are not based on antitrust law.
Not only is plaintiff's claim for § 8(e) jurisdiction unsupported by any precedent, such case law as there is, including Betal and the cases Judge Motley cited in her opinion, is squarely against the proposition. Acknowledging that it had "previously withdrawn its causes of action seeking damages for purported violations of § 8(e)," CD asserts that "an analysis under § 8(e) was required nevertheless to give expression of the public policy set out by Congress." Memorandum in Support of Motion for Relief, at 4. The public policy that plaintiff professes to discern is that a collective bargaining agreement ("CBA") between Local 79 and non-party Tishman Interiors Corporation is illegal and unconscionable, and therefore this Court may not enforce it. Further, CD asserts that this Court "had to use § 8(e), not as a basis for separate recovery, but to analyze the merits of Local 79's defenses." Id.
While plaintiff's argument may be entirely unprecedented, it is not entirely novel. It is similar to the argument made by plaintiff in Betal, where the plaintiff asserted that "this court has jurisdiction over violations of section 8(e) because the court can assert supplemental jurisdiction over collateral labor law issues." Betal, 123 F. Supp.2d at 160. Judge Motley found that particular argument unconvincing, noting that such cases were decided "within the context of claims brought under either antitrust statutes or under section 301 of the LMRA." Id.
Likewise, the cases cited by CD for its public policy assertion were brought in contexts entirely different from § 303 LMRA actions. See e.g., W.R. Grace Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum and Plastic Workers of Am., 461 U.S. 757 (1983) (involving violations of Title VII of the Civil Rights Act of 1964); Hurd v. Hodge, 334 U.S. 24 (1948) (restrictive covenants); Muschany v. United States, 324 U.S. 49 (1945) (condemnation proceedings); Int'l Brotherhood of Teamsters v. Washington Employers, Inc., 557 F.2d 1345 (9th Cir. 1977) (arbitration awards); and Local 453, Int'l Union of Elec. Radio Machine Workers, AFL-CIO v. Otis Elivator Co., 314 F.2d 25 (2d Cir. 1963) (same).
This Court is one of limited subject matter jurisdiction which under the present statutory scheme does not extend to plaintiff's § 8(e) claims. Other courts that have considered this question are in accord. See Shepard v. NLRB, 459 U.S. 344, 351 (1983) (noting that § 303 "provides a remedy only for violations of § 8(b)(4) of the Act, which, in turn, requires proof of coercion"); Employees v. Lockridge, 403 U.S. 274, 276 (1971) ("[T]he National Labor Relations Act preempts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act.") (emphasis added); Brown Root, Inc. v. Louisiana State AFL-CIO, 10 F.3d 316, 321 n. 4 (5th Cir. 1994) ("[W]e note that section 303, which allows parties to sue for damages in federal district court, appears to be limited to violations of section 8(b)(4) and not to extend to violations of section 8(e)."); Atchison, Topeka Santa Fe Ry. Co. v. Locals Nos. 70, 85 315, of the Int'l Bhd. of Teamsters, Chauffers, Warehousemen Helpers of Am., 511 F.2d 1193, 1195 (9th Cir. 1975) ("Congress is perfectly free to broaden the scope of [section 303] in the manner urged by plaintiff; this court is not free to do so. The court must presume that Congress, in its 1959 amendments adding Subsection [8(e)] to the NLRA could have amended [section 303] with equal facility, had it chosen to do so.").
This does not leave plaintiff without a means for redress. As I have previously stated, plaintiff may take its grievances to the NLRB, which has jurisdiction over § 8(e) issues. In fact, this is precisely what Congress had in mind when it structured the NLRA.
Finally, plaintiff asserts that "given that defendant had relied on the Tishman/Local 79 Agreement as a defense, the Court must consider the legality of the Tishman/Local 79 Agreement as applied in this instance regardless of whether plaintiff had previously withdrew [ sic] its causes of action concerning the agreement." Reply Memorandum at 4. As plaintiff in this action, CD has the burden of establishing its case. Since plaintiff cannot establish that I have jurisdiction to consider whether the CBA violates public policy — that is, whether it violates § 8(e) — defendants have no burden to bear. The legality of the CBA was never an issue before this Court, nor, in the jurisdictional circumstances, could it have been.
Plaintiff's assertion that the CBA constitutes an "affirmative defense" by Local 79 flies in the face of Fed.R.Civ.P. 8(c), which enumerates the defenses a party must set forth affirmatively. None of the affirmative defenses listed in Rule 8(c) applies to this case.
For these reasons, plaintiff's motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b) is denied.
It is SO ORDERED.