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BETAL ENVIRONMENTAL CORP. v. LOCAL UNION NO. 78

November 21, 2000

BETAL ENVIRONMENTAL CORPORATION, PLAINTIFF,
V.
LOCAL UNION NUMBER 78, ASBESTOS, LEAD & HAZARDOUS WASTE LABORERS, AFFILIATED WITH THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, LUINA, AFL-CIO, AND YORK HUNTER CONSTRUCTION, INC. DEFENDANTS



The opinion of the court was delivered by: Motley, District Judge.

MEMORANDUM OPINION

Plaintiff, Betal Environmental Corporation ("Betal"), filed this labor action under section 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187, against defendant, Local Union 78, Asbestos, Lead & Hazardous Waste Laborers, affiliated with the Mason Tenders District Council of Greater New York, LIUNA, AFL-CIO ("Local 78"). Against Local 78, plaintiff seeks damages for activity and conduct defined as an unfair labor practice in violation of section 8(b)(4) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158. Against defendant York Hunter Construction, Inc. ("York"), plaintiff brings a breach of contract claim for terminating plaintiff's contract with York and failing to pay plaintiff $166,775. Plaintiff also seeks, in its sixth cause of action, a declaratory judgment voiding a provision in the collective bargaining agreement between Local 78 and York.*fn1

Defendants Local Union 78 and York now move this court to dismiss plaintiff's sixth cause of action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons stated below, this court GRANTS defendants' motion.

I. BACKGROUND

Plaintiff is a subcontractor in the business of abating hazardous materials, including asbestos and asbestos-containing materials. Local 78 is a labor union which represents employees in the construction industry in New York City, including asbestos removal workers. York is a construction company and is a member of a multi-employer contractors association.

York entered into a written agreement on September 15, 1999 to use plaintiff as a subcontractor to perform hazardous waste removal work. Plaintiff alleges that it performed its work in compliance with the agreement, but it has not received payment for its work from York.

Plaintiff alleges that Local 78 violated section 8(b)(4) of the NLRA by encouraging plaintiff's employees and York's employees to engage in a strike and threatened, coerced, or restrained plaintiff's employees and York's employees in order to force York Hunter to cease dealing with plaintiff at The New York Public Library for the Performing Art ("the Library"). Plaintiff also alleges that Local 78 threatened to picket the entrance to the Library. Plaintiff alleges that as a result of Local 78's actions, York terminated its agreement with plaintiff.

Local 78 and York became parties to a collective bargaining relationship pursuant to section 8(f) of the NLRA. Article II, Section 1 of the collective bargaining agreement provides as follows:

The Employer agrees that it will not subcontract "on site" bargaining unit work as defined in Article IV unless the Employer receiving the subcontract agrees to be bound by the terms of this Agreement and/or has an Agreement with the Union having jurisdiction over such work under Article IV of this Agreement. When the Employer subcontracts any such work, the Employer shall be responsible for the subcontractor complying with all provisions of this Agreement.

II. DISCUSSION

Plaintiff's claim for declaratory judgment relates to the collective bargaining agreement between Local 78 and York. Plaintiff seeks to have Article II, Section 1 of the collective bargaining agreement declared void and unenforceable as a prohibited "hot cargo" clause*fn2 under section 8(e) of the NLRA, 29 U.S.C. § 158(e)*fn3. Defendants' contend that this court lacks subject-matter jurisdiction over plaintiff's claim.

Section 303 of the LMRA provides for jurisdiction in the district courts over any claim of injury arising out of a labor organization's alleged violation of section 8(b)(4) of the NLRA declaring certain types of strikes, threats and boycotts to be unfair labor practices.*fn4 Among other things, section 8(b)(4) makes it an unfair labor practice to force or require an employer to enter into an agreement prohibited by section 8(e). Otherwise, section 8(b)(4) does not refer to section 8(e).*fn5

This court notes at the outset that lack of district court jurisdiction over such claims does not mean that violations of section 8(e) are without redress. It is the general rule 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, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)). Jurisdiction over these areas falls instead to the National Labor Relations Board ("NLRB" or "the Board").*fn6 However, Congress itself has carved out exceptions to the NLRB's exclusive jurisdiction, notably section 303's grant of jurisdiction for those injured by a violation of section 8(b)(4) to recover damages even though such unfair labor practices are also remediable by the Board and section 301's grant of jurisdiction over suits for breach of a collective bargaining agreement ...


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