Opinion
02 Civ. 9448 (CSH), 89917
April 2, 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 seeks damages for activity and conduct by defendants which CD alleges 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 have cross-moved for summary judgment under Rule 56, Fed.R.Civ.P.
I. FACTS
The events leading up to this litigation began when Verizon New York ("Verizon"), through its agent Tishman Interiors Corporation ("Tishman"), sought to find a contractor to perform facade restoration and waterproofing work at one of its commercial properties in Manhattan. In an effort to obtain the most cost-efficient contractor, Tishman prepared and distributed bid specifications for the project, and reviewed various bids. Eventually, it chose CD for the job. CD is a contractor engaged in the business of roofing, exterior building maintenance, and restoration.
Tishman is a member of a multi-employer contractors association known as the Building Contractors Association ("BCA"). The BCA has a collective bargaining agreement (the "CBA" or "the Agreement") with the Mason Tenders District Council of Greater New York, LIUNA, AFL-CIO ("MTDC"). Defendant Laborers Local 79 is a constituent local union of the MTDC. Therefore, both Tishman and Local 79 are bound by the terms of the CBA.
Under the CBA, Tishman as a member of the BCA is prohibited from engaging any contractor to perform work, unless that contractor is a signatory to the Agreement. CD does not have a collective bargaining agreement with either Local 79 or the MTDC. Rather, since June of 1996, CD has been a party to a collective bargaining agreement with Bricklayers Allied Craftsman Local Union Number 1 ("Local 1"). Local 1 is not a member of the MTDC.
Article II of the agreement between BCA and MTDC provides in relevant part:
Section 1
No Employer shall enter into a contract with any other person, firm, partnership, corporation or joint venture employing Mason Tenders to perform bargaining unit work as defined in Article IV on the same job site, unless such other person, firm, partnership, corporation or joint venture is bound by an Agreement with the Union.
Section 3
No employer shall subcontract any cleaning work and/or removal work of any time or kind as defined in Article IV of this Agreement. [Article IV defines the specific projects which the BCA must exclusively employ MTDC members to perform.]
1996-2001 Trade Agreement Between the Mason Tenders District Council of Greater New York and the Building Contractors Association, Inc., Art. II, §§ 1, 3 at 2 (July 1, 1996).
Once it been selected, CD met with Tishman and Verizon to discuss the terms of their contract. At that meeting, Gary Brown, President of CD, informed Tishman that while CD was a signatory to a CBA with Local 1, it would be willing to execute a project-only agreement with Local 79 in order to comport with the terms of Tishman's CBA with Local 79. Tishman agreed to this arrangement and issued a notice to proceed, but apparently without the consent of Local 79 or the MTDC.
After CD had been on the job for approximately two weeks, representatives of Local 79 visited the job site and discovered that CD was performing work allegedly within Local 79's jurisdiction. What happened next is in dispute.
According to defendants, once Local 79 representatives discovered the apparent violation, the union filed grievances in protest. John Modica, business agent for Local 79, had several meetings with Tishman's representatives as well as those of CD in an effort to resolve the dispute. These negotiations ended in a logjam, principally because CD insisted it would only sign a "one-site" agreement with Local 79 or otherwise subcontract portions of the work to a Local 79 contractor, while Local 79 refused those terms and insisted that CD must be a signatory to the CBA with Local 79 to perform the work at the Verizon site.
Defendants allege that once Tishman recognized it was violating the terms of its agreement with Local 79, Tishman terminated its contract with CD. They allege that Tishman's Project Manager, John Overend, reviewed the grievances Local 79 filed in protest about CD and recognized that Tishman was in danger of being forced to pay a penalty fee to Local 79 members who were not employed at the job site. In other words, defendants allege that Overend knew that if Tishman's contract with CD were to continue, Tishman would essentially be forced to pay double for the restoration work. According to the union, after consulting with its in-house counsel, Tishman concluded that continuing its contract with CD would violate Article II of its agreement with Local 79 and therefore terminated CD from the job.
CD contests defendants' narrative by alleging that Local 79 engaged in a "secondary boycott." It alleges that Local 79 has placed undue pressure on Tishman, Verizon, and DOT Construction (the "neutral" or "secondary employers") to cease doing business with plaintiff, who under this iteration of the secondary boycott scheme plays the role of the primary employer.
Specifically, plaintiff alleges that Local 79 representatives repeatedly visited the site of the Verizon restoration work and threatened to cause a work stoppage. According to the Declaration of Steven Coren, counsel for the plaintiff, Local 79 Business Agent Junior Campbell threatened to shut down the job, form a picket line and erect an inflatable rat at the site if CD did not execute a signatory agreement with Local 79. Declaration of Steven Coren, Oct. 8. 2003, at ¶ 25. Another Local 79 agent was quoted as saying, "if CD does not sign with us, we are going to fuck them on this job and every other job we can." Id. at ¶ 30.
II. STANDARD OF REVIEW
CD brings this action for damages against Local 79 and certain individual union members under § 303 of the LMRA. Its first, second, third, and fourth claims seek relief for alleged conduct by Local 79 constituting unlawful activity pursuant to §§ 8(b)(4)(B) and 8(b)(4)(D) of the NLRA, 29 U.S.C. § 158 and § 303 of the LMRA, 29 U.S.C. § 187. Its fifth claim for relief alleges that Local 79, John Modega, and other Local 79 agents or representatives threatened or coerced members of CD into becoming members of Local 79 in violation of § 8(b)(4)(A) of the NLRA, 29 U.S.C. § 158 and § 303 of the LMRA, 29 U.S.C. § 187. Finally, its sixth claim for relief alleges that Local 79, John Modega, and other Local 79 agents or representatives threatened or coerced CD into entering a collective bargaining agreement with Local 79 in violation of § 8(b)(4)(A) of the NLRA, 29 U.S.C. § 158 and § 303 of the LMRA, 29 U.S.C. § 187. The case is currently before the Court on cross-motions for summary judgment.
In a stipulation I granted on February 12, 2003, plaintiff withdrew, without prejudice, the fifth and sixth claims for relief set out in its amended complaint. Generally speaking, those claims had alleged that the collective bargaining agreement between Local 79 and Tishman was unlawful under NLRA § 8(b)(4)(A) (the fifth claim) and § 8(e) (the sixth claim). In light of plaintiff withdrawing those claims, defendants John Modica and John Does #1 through #10 are no longer parties defendant in this action.
A. Summary Judgment
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact; this burden is satisfied if the moving party can point to the absence of evidence necessary to support an essential element of the non-moving party's claim. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). If there is "any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party," then summary judgment should not be granted. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d. Cir. 1994). The substantive law will identify which facts are material. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.").
A party resisting summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). As Judge Motley aptly stated in Eppendorf-Netheler-Hinz v. Enterton Co., 89 F. Supp.2d 483, 485 (S.D.N.Y. 2000):
[J]udges . . . [are not] required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. . . . [I]n every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.
(citing and quoting Anderson, 477 U.S. at 251). See also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) ("The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.") (citations and internal quotation marks omitted). Thus, the party resisting summary judgment must "come forward with specific facts to show there is a factual question that must be resolved at trial." Donahue v. Artisan, 00-8326, 2002 WL 523407, at *1 (S.D.N.Y April 8, 2002).
B. Labor Management Relations Act § 303
CD brings this action for damages against defendants under § 303 of the LMRA 29 U.S.C. § 187, Subsection 303(a). This section confers a private right of action for damages resulting from "any activity or conduct defined as unfair labor practice in Section 8(b)(4) of the National Labor Relations Act." Subsection 303(b) provides:
Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) of this section may sue therefore in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.29 U.S.C. § 187(b).
Thus § 303(b) grants the district courts jurisdiction over any damage claim arising out of a labor organization's violation of NLRA § 8(b)(4), 29 U.S.C. § 158(b)(4), and also requires that a claimant demonstrate a causal nexus between the unlawful § 8(b)(4) activity and the injury suffered.
C. National Labor Relations Act § 8(b)(4)
NLRA § 8(b)(4) proscribes certain types of unfair labor practices by labor organizations. This case is primarily concerned with §§ 8(b)(4)(B) and 8(b)(4)(D).
The statute provides, in pertinent part:
(b) Unfair labor practices by labor organization
It shall be an unfair labor practice for a labor organization or its agents —
(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (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 —
. . .
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title; Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
. . .
(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work:
. . .
Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution. . . .29 U.S.C. § 158(b)(4).
§ 8(b)(4)(B) proscribes secondary picketing and boycotting. Unions use certain activities including use of handbills, picketing and strikes to try to exert economic pressure upon employers. When the union targets its behavior towards a direct employer with whom it has a dispute, this is considered "primary activity." But a union may also direct activity against a "secondary" or "neutral employer" with whom it does not have a dispute. By placing enough pressure, a union might coerce a secondary employer to change its own business relationship with a primary employer, in such a way that is detrimental to the primary employer. The union thereby succeeds in placing pressure on a primary employer indirectly, until that employer capitulates to the union's demands. Such conduct runs counter to the public policy expressed in the NLRA. Thus § 8(b)(4)(B) prohibits certain types of secondary picketing and boycotting. See generally NLRB v. Local 825, Int'l Union of Operating Eng'rs, 400 U.S. 297, 91 S.Ct. 401 (1971). As I have had prior occasion to note, "[a] a secondary boycott is "both effective and unlawful precisely because it disrupts the business relations of two parties. It is an interference by one party with the contractual relations of two others." Associated Imports, Inc. v. International Longshoremen's Ass'n, AFL-CIO, 609 F. Supp. 595, 600 (S.D.N.Y. 1985).
Finally, § 8(b)(4)(D) makes it "an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization." International Tel. Tel. Corp. v. Local 134, Int'l Bhd. Of Elec. Workers, 419 U.S. 428, 430-31, 95 S.Ct.600, 42 L.Ed.2d 558 (1975). The prototypical example is when two unions both have collective bargaining agreements with one employer, and each seeks to obtain the disputed work for its own members through activities proscribed by this section.
III. DISCUSSION
While CD might make a colorable argument that defendants violated certain portions of § 8(b)(4), Rule 56 requires that I review the evidence in the light most favorable to the non-movant. With respect to CD's allegations of threats by Local 79 to picket, defendants deny that any threats were ever made. Tishman's Project Manager Overend testified in his deposition that no one from Local 79 said they would put up a picket line and that, rather, he drew that particular conclusion on his own "based on my experience with CWA and based on my experience with 79 and other union trades." Deposition of John Overend, July 21, 2003, at 74. Likewise, CD Foreman Edward Bonacore testified in his deposition that Local 79 agents threatened to "shut down the job," and that he (Bonacore) himself "felt in my mind [that] the only way to shut down the job was to put up a picket line, no other way of doing it." Deposition of Edward Bonacore, July 28, 2003, at 84. Accordingly, the present state of the evidence is that concern about a strike by Local 79 was based in part upon the subjective anticipations of Tishman and CD personnel, and the union defendants deny that threats to strike were made. At the very least, the record gives rise to a genuine issue on the material fact of whether the defendants engaged in a secondary boycott in violation of § 8(b)(4).
Moreover, proving § 8(b)(4) violations is, in and of itself, insufficient to establish damages under LMRA § 303, which requires that plaintiff show it has suffered damages "by reason of" those § 8(b)(4) violations. § 303 requires that there be "a causal nexus between the unlawful secondary activity and the injury suffered by the plaintiff." Florida Sugar Mktg. Terminal Assn. Inc. v. Local No. 3, Int'l Longshoremen's Ass'n, 688 F. Supp. 173, 182 (S.D.N.Y. 1987) (citations omitted).
In the case at bar, there is nothing that indicates that the alleged threats by Local 79 representatives to picket CD's workplace, or other illicit activity CD alleges Local 79 committed, were a substantial factor or material cause to CD's injury. Rather, the evidence clearly establishes that Tishman made the decision to terminate its contract with CD because it recognized that by not doing so, Tishman was violating its own collective bargaining agreement with Local 79. Tishman had a legitimate reason for terminating its business relationship with CD, and the evidence clearly shows that it acted based on this reason and not due to any illicit coercion on the part of the defendants.
Plaintiff relies upon Iodice v. Calabrese, 512 F.2d 383 (2d Cir. 1975) for the proposition that it is "well settled that [secondary boycott] action is not immunized merely because the union claims to be enforcing the terms of its contract." Id. at 388. In Iodice, defendant union Local 456 engaged in a series of illicit activities including coercion, threats, fines, and picketing which constituted secondary boycotting. The Second Circuit held that though defendant may have engaged in these activities with legitimate purposes in mind (i.e., enforcing the terms of its contract), these legitimate purposes did not immunize defendants' actions from § 303 sanctions. Rather, the court held that those actions were the cause of plaintiffs' harm, and therefore held against the defendants. Plaintiff cites Landstrom v. Chauffeurs, Teamsters, Warehousemen Helpers, Local 65, 476 F.d 1189 (2d Cir. 1973) and other cases for a similar proposition.
In Iodice, the Second Circuit reasoned that when there are two motives intertwined in one activity (licit and illicit), the licit motive does not prevent the otherwise illicit activity from being the cause of plaintiff's harm. The present facts of this case are distinguishable. Here, there is not one activity but two: one allegedly infringing (threatening to picket) and the other which I am wholly persuaded was legitimate (filing grievance reports). The central issue is which of these two actions was the causal nexus by which Tishman decided to terminate its contract with CD. Since I find that the chain of activity beginning with Local 79 agents completing grievance forms ultimately led to Tishman's decision, and since I find this line of activity to be free of illicit motive, neither Iodice nor Landstrom are dispositive to this case.
Plaintiffs reliance on F.A. Wilhelm Const. Co., Inc. v. Kentucky State Dist. Council of Carpenters, AFL-CIO, 293 F.3d 395 (6th Cir. 2002) is similarly misplaced. The Sixth Circuit held in that case that there was a "reasonable inference" from the evidence demonstrating that the unfair labor practices defendants had taken in violation of § 8(b)(4) were the cause of plaintiff's harm. Id. at 940. However, the evidence in this present case fails to demonstrate that Local 79's alleged unfair labor practices were the cause of CD's harm.
The facts of this case are closely similar to those of a prior opinion in this District, Betal Envtl V. Local Union Number, 78, 162 F. Supp.2d 246 (S.D.N.Y. 2001) (Motley, J.). In that case, York Hunter Construction, Inc., a neutral employer for secondary boycott analysis, had a collective bargaining agreement with the MTDC, of which Local 79 was a member. As construction manager for the New York Public Library for the Performing Acts (the "Library"), York subcontracted renovation work on behalf of the Library to plaintiff Betal Environmental Corporation ("Betal"). Betal did not have a collective bargaining agreement with the MTDC. As a result, a representative of Local 78 contacted a representative of York, informing him of his intention to file a grievance against York. Local 78 also told York that it would "probably put up a large thirty-foot inflatable rat outside of Lincoln Center and distribute leaflets and handbills to inform the public and the Lincoln Center personnel of Betal's presence on the Library Project." Id. at 251. Finally, Local 78 stated that if Betal was not terminated, the union would "put up a line around the building." Id. It was disputed whether a "line" meant an informational line or a picket line. Eventually York terminated Betal as a subcontractor. Betal sued Local 78, claiming that its conducted violated §§ 8(b)(4)(B) and 8(b)(4)(D) and caused the economic loss resulting from York's termination of Betal. In a well-reasoned opinion, Judge Motley held that even if Local 78's conduct violated § 8(b)(4), Betal's claim against Local 78 failed for lack of a causal connection between the union's acts and Betal's economic loss:
Like Tishman, York was a member of a multi-employer contractors association which had a collective bargaining agreement with the Mason Tenders District Council of Greater New York, of which Local 78 was a member. Therefore, both York and Local 78 were bound by that agreement. See Betal, 162 F. Supp.2d at 249.
This court finds, therefore, that York's decision to terminate Betal rested on York's discovery that it had inadvertently violated the BCA-MTDC collective bargaining agreement and its desire to remedy that breach. Because this court does not believe that Betal's injuries were caused by a violation of section 8(b)(4)(D) by Local 78, Betal has failed to prove the causation required to receive damages under section 303 of the LMRA.162 F. Supp.2d at 258 (footnote omitted).
Similarly, I find here that Local 79's alleged actions did not contribute materially towards any harm suffered by CD due to the termination of its contract with Tishman.
CD makes note of two distinctions in support of its argument that defendants should be found liable. First, it notes that Local 79 was a "construction manager" rather than a "general contractor" on the project. Second, CD observes that CD contracted with Verizon rather than Tishman. The logic behind the second argument is that since Local 79's collective bargaining agreement was with Tishman and not with Verizon, the conditions of that agreement had no application to plaintiffs work at the project site.
With respect to the first distinction, I note that in Betal the fact that York was a "construction manager" for the Library rather than a "general contractor" was not a dispositive factor in the case. Nor should it have been. Tishman would have been in violation of its CBA with Local 79 regardless of whether Local 79 was characterized as construction manager or general contractor. CD provides no reason as to why this particular distinction is relevant.
Neither is the second distinction materially relevant. The contract agreement signed by CD notes clearly on its first page that "This is an Agreement between: Tishman Interiors Inc., as agent for . . . Verizon and the Trade Contractor CD Restoration Inc." Master Trade Contractor Agreement, May 13, 2002, at 1. According to the Master Construction/Project Management Agreement between Verizon and Tishman, Tishman, as agent for Verizon, had authority to "[a]dminister trade contracts and purchase orders" on Verizon's behalf. See Master Contractor/Project Management Agreement, March 1, 2000, § 3.5.3 at 11. Furthermore, CD communicated almost exclusively with Tishman and had no direct dealings with Verizon. In fact, there is significant evidence, based on the deposition testimony of CD President Brown, CD Project Manager Natali, and Tishman Project Manager Overend, that CD knew, at the very least, that in order to obtain the contract, it was required to make arrangements to hire Local 79 members.
It is notable that CD proffers no evidence that Verizon itself was in any way offended by Tishman's attempt to enforce the terms of its collective bargaining agreement with Local 79. On the contrary, Verizon's total failure to respond to CD's allegations, whether during the course of construction or during these present court proceedings, except through its agent Tishman (who takes the view contrary to CD's), leads me to believe that Verizon does not share CD's view that it is not bound by the terms and conditions of Local 79's agreement with Tishman. Therefore, under these particular circumstances, I hold that Verizon acquiesced to the stipulations governing the agreement between Tishman and Local 79. Whether Verizon did so legally or of its own volition is not dispositive.
Finally, I note that while CD's proposals to conform to the obligations of Tishman's agreement with Local 79 through either a "one-site" agreement or subcontracting Local 79 may certainly have been made in good faith, CD has not demonstrated that Local 79's requirement that all contractors enter into or maintain a collective bargaining agreement with the union was unlawful under NLRA § 8(b)(4)(A). In fact, despite its attempt to argue this claim against the union in its memorandum of law, plaintiff has already withdrawn its fifth and sixth claims in a stipulation dated February 12, 2003.
IV. CONCLUSION
For reasons stated above, plaintiff's motion for summary judgment is denied. Summary judgment is granted to defendants Local 79 and its individual officers on all claims pleaded in the complaint.
The Clerk of the Court is directed to dismiss the complaint with prejudice.
It is SO ORDERED.