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MARRIOTT IN-FLITE SERVS. v. AIR TRANSP. DIV.

August 20, 1976

Marriott In-Flite Services, a Division of Marriott Corp., Plaintiff
v.
Air Transport Division, Local 504, Transport Workers of America, AFL-CIO, Defendant


Pratt, D. J.


The opinion of the court was delivered by: PRATT

PRATT, D. J.:

The Facts

 KLM Royal Dutch Airlines, not a party to this action, operated a commissary at John F. Kennedy International Airport, from which it supplied food for its own flights leaving JFK. KLM's employees in the commissary were members of defendant union, which together with its international (Transport Workers of America) were the recognized bargaining agents for those employees.

 During renegotiations for several bargaining agreements which were due to expire on October 31, 1972, KLM announced its intention to close the commissary operation permanently. The union's opposition to this decision created a stumbling block to renegotiation of further contracts between KLM and the union. As a result, the union membership authorized a strike on October 27, 1972.

 During the subsequent six month "cooling-off" period invoked by the National Mediation Board pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. (which applies not only to railroads but also to air carriers such as KLM) both sides remained adamant in their positions on the prospective closing of the commissary. At the end of the "cooling-off" period in June, 1973, KLM permanently closed down the commissary and terminated its employees who had worked there.

 In late June, 1973, KLM contracted with plaintiff Marriott for the latter to provide the food service for KLM's flights out of JFK. At the same time KLM assigned to Marriott its leasehold interest in the commissary building effective July 15, 1973. In effect, KLM thus shifted its food service from its own employees to an independent contractor.

 In response to the commissary closing and employee termination, all members of Local 504 who were KLM employees struck on July 1, 1973. The commissary facility and other KLM buildings were picketed for a two month period, during which alleged acts of damage and destruction occurred to the commissary. It is these acts, claimed by Marriott to have been done by defendant union as part of secondary picketing proscribed by statute, which give rise to the instant suit.

 On September 7, 1973, the strike ended and the union members returned to work. KLM offered substitute positions to all of its former commissary employees. Some of them accepted the offer and were relocated; others pursued arbitration procedures against KLM to remedy their situation.

 The Action

 Marriott brought this action, alleging that during the strike the union had violated the secondary picketing provisions of the Labor Management Relations Act (LMRA). *fn1" The means claimed to have been used by the union were both direct acts against Marriott and attempts to coerce others to cease doing business with Marriott. Marriott also claims compensatory and punitive damages for the union's alleged destruction of Marriott's property, for tortious interference with Marriott's business and contractual rights, and from Marriott's resulting loss of business and profits.

 The Motion

 The union has moved for summary judgment on two grounds. It claims first, that this court lacks subject matter jurisdiction over the defendant because the latter is exempt from the provisions of the LMRA, being covered instead by the Railway Labor Act (RLA). *fn2" Second, the union argues that even if the LMRA applies to it, the activities in which the union engaged were on the admitted facts not prohibited by law because Marriott was not a "neutral" in the union's dispute with its employer, KLM.

 Discussion

 The threshold issue, which is dispositive here, is whether the court has jurisdiction to entertain this action under 29 U.S.C. § 158(b)(4), which prohibits certain activities such as secondary picketing by "a labor organization or its agents". The key question is: can the defendant union be considered a "labor organization" as that term is defined in the LMRA? As appears below, ...


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