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C&D RESTORATION, INC. v. LABORERS LOCAL 79

June 1, 2004.

C&D RESTORATION, INC., Plaintiff, -against- 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, JOHN MODEGA, as Business Agent for LOCAL 79, and JOHN DOES #1 through #10, the last ten names being fictitious and unknown to plaintiff, the person or parties being agents or Business Agents of LOCAL 79, Defendants


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff C&D Restoration, Inc. ("C&D") 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. C&D sought damages for activity and conduct by defendants which C&D 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). After the parties cross-moved for summary judgment under Rule 56, Fed.R.Civ.P., I found in favor of the defendant 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 defendants opposed. I now resolve that motion. I. FACTS

The facts of this case have been laid out in my prior opinion, C&D Restoration, Inc. v. Laborers Local 79, et al., No. 02 Civ. 9448, 2004 WL 736915 (S.D.N.Y. Apr. 5, 2004), familiarity with which is assumed. Knowledge of those facts is necessary to decide this motion for reconsideration, and accordingly I repeat them.

  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 fa9ade 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 C&D for the job. C&D 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.*fn1 C&D does not have a collective bargaining agreement with either Local 79 or the MTDC. Rather, since June of 1996, C&D 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.

  Once it been selected, C&D met with Tishman and Verizon to discuss the terms of their contract. At that meeting, Gary Brown, President of C&D, informed Tishman that while C&D 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 C&D had been on the job for approximately two weeks, representatives of Local 79 visited the job site and discovered that C&D 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 C&D in an effort to resolve the dispute. These negotiations ended in an impasse, principally because C&D 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 C&D 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 C&D. They allege that Tishman's Project Manager, John Overend, reviewed the grievances Local 79 filed in protest about C&D 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 C&D 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 C&D would violate Article II of its agreement with Local 79 and therefore terminated C&D from the job.

  C&D contests defendants' narrative by alleging that Local 79 engaged in a "secondary boycott." It alleges that Local 79 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 played 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 C&D 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 C&D 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 The standard for granting a motion to reconsider under Local Civil Rule 6.3 "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transportation, Inc., 70 F.3d 255, 256 (2d Cir., 1995). Reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Id. Thus, the rule "is to be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 391-2 (S.D.N.Y.2000). Nor may the moving party use such a motion to "advance new facts, issues or arguments not previously presented to the court." Bank Leumi Trust Co. of New York v. Istim, Inc., 902 F. Supp. 46, 48 (S.D.N.Y.1995). These limitations are designed to ensure finality and prevent the rule from becoming a vehicle by which a losing party may examine a decision "and then plug[] the gaps of the lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y.1988).

  III. DISCUSSION

  Plaintiff moves for reconsideration on three grounds. Plaintiff argues that the CBA was improper under federal law, insofar as a union may not enter into an agreement with an empoyer to refrain from doing business with a third party so that the union may acquire new or additional work for its members. Plaintiff also asserts that the CBA is an unlawful union signatory agreement, in violation of the lawful work preservation test established by the Supreme Court in National Woodwork Mfr. Assoc. v. NLRB, 386 U.S. 612 (1967). Finally, plaintiff reasserts its argument that its injury was caused by defendants' unlawful ...


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