Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

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

United States District Court, S.D. New York


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 violations of NLRA § 8(b)(4). I will first address plaintiffs two arguments concerning the illegality of the CBA together, and then move on to the causation argument.

  A. It is Procedurally Improper for Plaintiff to Assert Arguments Concerning the CBA After It Had Voluntarily Withdrawn Those Complaints

  In its Amended Complaint, C&D alleges as its fifth and sixth claims for relief the following:

As and For a Fifth Claim for Relief
56. Plaintiff repeats and realleges each and every allegation contained in paragraph 51 through and including paragraph 55 above as if fully set forth herein.
57. By virtue of their agreement with Tishman to require contractors at the Project to enter into or maintain a collective bargaining agreement(s) with Local 79, Local 79 (by and through its agents and/or representatives, including but not limited to defendant Modega), has threatened, coerced, or restrained persons where an object thereof is forcing or requiring employer(s) or self-employed person(s) to become members of Local 79.
58. That the agreement between Local 79 and Tishman is unlawful under § 8(b)(4)(A) of the Act, 29 U.S.C. § 158 and constitutes impermissible secondary activity thereunder.
59 That the conduct of defendant Local 79 is unlawful pursuant to § 303 of the Act, 29 U.S.C. § 187, and plaintiff is entitled to seek relief for damages pursuant to § 303(b) thereof.
As and For a Sixth Claim for Relief
61. Plaintiff repeats and realleges each and every allegation contained in paragraph 56 through and including paragraph 60 above as if fully set forth herein.
62. That Local 79, by and through its agents and/or representatives (including but not limited to Modega), has threatened, coerced, or restrained Tishman and/or Verizon, where an object thereof is to require them to enter into an agreement which is prohibited by § 8(b)(4)(A) of the Act, 29 U.S.C. § 158.
63. That there is an agreement between Tishman and or Verizon with Local 79 which is a "hot cargo agreement" prohibited by § 8(e) of the Act, 29 U.S.C. § 158.
64. That the conduct of defendant Local 79 is unlawful pursuant to § 303 of the Act, 29 U.S.C. § 187, and plaintiff is entitled to seek relief for damages pursuant to § 303(b) thereof. 65. By reason of the foregoing, plaintiff is entitled to damages in an amount, together with prejudgment interest and costs of this suit, to be determined upon the trial of this action.
Plaintiff's Amended Complaint, Feb. 6, 2003, at ¶¶ 56-65 (emphasis added).

  On February 25, 2003, I endorsed a Stipulation agreed to by the parties which read in pertinent part:

IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the parties herein as follows:
1. Plaintiff, C & D RESTORATION, INC., hereby withdraws, without prejudice, the Fifth and Sixth Claims for Relief set out in the Amended Complaint.
Stipulation, 02 Civ. 9448, Feb. 12, 2003 (filed on Feb. 26, 2003).

  Finally, in my prior opinion, I recognized that "plaintiff has already withdrawn its fifth and sixth claims in a stipulation dated February 12, 2003." C&D Restoration, Inc., 2004 WL 736915, at *7.

  In its current Motion for Reconsideration, plaintiff asserts that "[t]he basic principle overlooked by the Court is that a union may not enter into an agreement with an employer to refrain from doing business with a third party so that the union may acquire new or additional work for its members." PL's Mot. for Recons. at 10. "Such restriction," plaintiff asserts, "particularly as it was applied by Local 79 and Tishman to terminate Plaintiff's Verizon Contract, is specifically prohibited by § 8(e)." Id. at 11.

  Plaintiff has already and formally stipulated to withdraw its statutory claims for relief relating to the CBA. Plaintiff now rests its Motion for Reconsideration on the same allegations it had already withdrawn from its complaint. This it cannot do. Within the context of a motion for reconsideration, governed by the strict standards of Rule 6.3, it is of no moment that plaintiff's stipulated withdrawal of these claims was "without prejudice." For this reason, I need not and do not address the arguments that the CBA was improper under Federal Labor Law or that it was an unlawful union signatory agreement.

  However, plaintiff also raises the argument that inasmuch as Tishman acted as Verizon's agent, rather than a primary employer itself, any stipulations between Tishman and Local 79 stemming from their CBA should have no effect on Local 79's contract with Verizon. This is because, plaintiff argues, Tishman was merely acting as agent for Verizon, and was a non-party to the contract. Since there was no privity of contract between C&D and Tishman, plaintiff concludes, the provisions of the CBA were inapplicable to Verizon's agreement with C&D.

  Even assuming for purposes of this motion that plaintiff's argument is correct, it is difficult to see how it would have any application to this case. Whether or not Tishman was ultimately legally correct in its interpretation of the CBA is irrelevant. Tishman is not a party to this action. In determining whether a § 303 violation has taken place, I have no occasion to determine whether Tishman was obligated to terminate its contract with C&D. Rather, I must look to the methods the union and its members used to try to persuade Tishman to terminate its contract with C&D. Even if it turns out that plaintiff is correct, and Tishman made a legal error in determining that Verizon's contract with C&D violated its CBA with Local 79, this conclusion would be of no consequence in the case at bar, if Local 79 used methods of advocacy that were not in violation of the NLRA.*fn2

  B. Tishman's Decision to Terminate its Contract with C&D Arose Out of Local 79 Actions which were not in violation of the NLRA Plaintiff reasserts its argument that alleged threats and coercion made by Local 79 union members caused Tishman to terminate the Verizon contract with C&D, thereby establishing LMRA § 303 causation. In the plaintiff's own words, "There can be little doubt that Plaintiff's injury was caused by the termination of the Verizon Contract and the Union's pressure exerted on Tishman caused that termination." PL's Mot. for Recons. at 7.

  I return to this issue only briefly to reiterate my earlier holding. Plaintiff alleged in its original complaint that Local 79 representatives committed a number of acts that were in violation of NLRA § 8(b)(4)(B) and (D). These alleged acts include visiting the site of the restoration work and threatening work stoppage, and threatening to form a picket line and erect an inflatable rat at the site if C&D did not execute a signatory agreement with Local 79. See Amended Complaint at ¶¶ 23-33.

  Meanwhile, defendants assert, and plaintiff does not contest, that once Local 79 representatives discovered Tishman's apparent violation of the CBA, the union filed formal grievances to John Overend, Project Manager for Tishman, in protest. This particular action cannot be construed as a violation of the NLRA.

  I held in my prior opinion that it was this latter action — a non-violation for NLRA purposes — that caused Tishman to terminate its contract with C&D. Even assuming that defendants committed the alleged § 8(b)(4) violations plaintiff documents, I held that those violations were not the cause of Tishman's decision to terminate its contract with C&D. Therefore, plaintiff had not established a causal nexus between the alleged unlawful activity and the injury suffered, as it was required to by LMRA § 303. I adhere to these holdings, which formed the rationale of the prior opinion directing dismissal of plaintiff s complaint. Plaintiff has entirely failed to satisfy the stringent requirement of Rule 6.3 IV. CONCLUSION

  For the foregoing reasons, Plaintiff's Motion for Reconsideration is denied.

  It is SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.