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
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
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
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
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
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)
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
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
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
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
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
It is SO ORDERED.