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Tapers v. Bovis Lend Lease Interiors

September 18, 2007

DRYWALL TAPERS AND POINTERS OF GREATER NEW YORK, LOCAL UNION 1974 OF I.B.P.A.T., AFL-CIO, PLAINTIFF,
v.
BOVIS LEND LEASE INTERIORS, INC.; TURNER CONSTRUCTION CO.; STRUCTURE TONE, INC.; KAJIMA; R&J CONSTRUCTION CORP.; NASTASI & ASSOCIATES, INC.; COMPONENT ASSEMBLY SYSTEMS, INC.; AND WOODWORKS CONSTRUCTION, INC., DEFENDANTS, CARPENTER'S LOCAL 52, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, PROPOSED INTERVENOR.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

This case is before me on remand from the court of appeals to decide the motion by Carpenter's Local 52, United Brotherhood of Carpenters and Joiners of America ("Local 52") to intervene in the case. For the reasons stated below, the motion is denied.

BACKGROUND

Familiarity with the prior decisions of this Court and the court of appeals is assumed. Briefly, after more than two decades of litigation between the plaintiff here, Drywall Tapers and Pointers of Greater New York, Local Union 1974 of I.U.P.A.T., AFL-CIO ("Local 1974"), and the mob-controlled Local 530 of the Operative Plasterers' and Cement Masons' International Association ("Local 530"), an injunction dated March 17, 2005 effectively put Local 530 out of business. Drywall Tapers & Pointers of Greater N.Y., Local 1974 v. Local 530 of the Operative Plasterers' & Cement Masons' Int'l Ass'n, No. 93-0154, 2005 WL 638006 (E.D.N.Y. Mar. 17, 2005). The injunction gave Local 1974 jurisdiction over certain drywall finishing work in New York City.

The March 17, 2005 injunction was published in the "Green Book," a binding compilation of rulings rendered pursuant to the New York Plan for the Settlement of Jurisdictional Disputes (the "New York Plan"), the mechanism created by the Building & Construction Trades Council of Greater New York (the "Trades Council") and the Building Trades Employers' Association to resolve jurisdictional disputes. The inclusion of the injunction in the Green Book obligated all contractors bound by the New York Plan to award drywall finishing work in New York City to Local 1974.

One week after that injunction was issued, Local 52 was formed, and some of the same contractors who had previously employed Local 530 members entered into collective bargaining agreements with Local 52.*fn1 Local 52 is not affiliated with the Trades Council, so it is not bound by the New York Plan or by the March 2005 injunction.

On June 8, 2005, Local 1974 filed the complaint in this case against four construction managers (Bovis Lend Lease Interiors, Inc. ("Bovis"), Turner Construction Co. ("Turner"), Structure Tone, Inc. ("Structure Tone") and Kajima/VJB Construction Services LLC ("Kajima")) and four drywall finishing contractors (R&J Construction Corp. ("R&J"), Nastasi & Associates, Inc. ("Nastasi"), Component Assembly Systems, Inc. ("Component"), and Woodworks Construction, Inc. ("Woodworks")). The complaint alleged that those contractors employed Local 52 members to perform drywall finishing work in Manhattan, contrary to their obligation under the New York Plan to employ Local 1974 members. Local 52, which is not bound by the New York Plan, was not named as a defendant.

The complaint focused on ongoing construction projects. Bovis, Structure Tone and Nastasi were charged with assigning drywall finishing work at a project at 731 Lexington Avenue in Manhattan to a contractor who had a collective bargaining agreement with Local 52; Turner and Component were charged with doing the same thing on a project at Memorial Sloan Kettering Cancer Center on East 68th Street and First Avenue in Manhattan; Kajima and R&J were charged with the same thing on a project at 75-25 153rd Street in Kew Gardens, Queens; and Bovis and Woodworks were charged with the same conduct with respect to a job at Riverside Boulevard and West 66th Street in Manhattan.

With respect to each of the ongoing projects, the defendants were charged with having contracted prior to March 17, 2005 with a company that had a collective bargaining agreement with Local 530. Then, when the corrupt Local 530 was ousted and the March 17, 2005 injunction directed that the work it had been assigned be assigned instead to Local 1974, the defendants, according to Local 1974, unlawfully assigned the work to Local 52.

Local 1974's complaint sought, inter alia, a permanent injunction prohibiting the assignment of drywall finishing work governed by the New York Plan to any employer that does not have a collective bargaining agreement with Local 1974. On June 21, 2005, 13 days after the complaint was filed, Local 1974 sought a preliminary injunction to the same effect.

In August 2005, Local 52 initiated the first of many related proceedings before the National Labor Relations Board ("NLRB"). Some were representation proceedings, seeking elections of Local 52 as the exclusive bargaining representative by drywall finishing employees of certain contractors. Others were unfair labor practice charges against Local 1974 arising directly out of its request for an injunction in this case. One such charge, filed on September 30, 2005, assailed Local 1974's efforts to coerce the four construction-manager defendants (Bovis, Turner, Structure Tone and Kajima) to comply with the New York Plan. On the same day, Local 52 filed a separate unfair labor practice charge against Local 1974 pertaining to each of the four drywall taping defendants (R&J, Nastasi, Component and Woodworks), again assailing 1974's efforts in this case to force those companies to comply with the New York Plan.*fn2

In the meantime, this case was proceeding rapidly. As mentioned, Local 1974 moved for a preliminary injunction prohibiting the defendants from assigning drywall finishing work covered by the New York Plan to contractors that did not have collective bargaining agreements with Local 1974. The defendants, for their part, cross-moved to dismiss the complaint. Oral argument of the cross-motions occurred on July 22, 2005, and continued on August 4, 2005. An agent of Local 52 was in the courtroom on both occasions.

On September 9, 2005, I denied the defendants' motions to dismiss and made it clear that I would grant Local 1974's application for a preliminary injunction against any defendant who was in fact bound by the New York Plan. See Drywall Tapers, 2005 WL 2205836, at *2. An evidentiary hearing was scheduled for September 27, 2005 for any defendant who claimed not to be bound.

Settlement discussions began almost immediately after the September 9, 2005 memorandum and order was filed. At the request of all the parties, the Court became deeply involved. On September 20, 2005, a settlement conference in chambers between the plaintiff and the construction managers yielded sufficient progress to justify adjourning the September 27 hearing until October 15. The evidentiary hearing was subsequently adjourned to October 24, 2007 in light of the continuing settlement negotiations. On October 17, 2005, defendant Nastasi requested a delay in the case until after "the expected intervention" of the NLRB. As mentioned, Local 52 was then attempting to convince the NLRB (as was Nastasi) that Local 1974's request for an injunction in this case constituted an unfair labor practice. On October 19, 2005, counsel for Local 1974 reported that the parties were "close to resolution of this matter." A number of additional meetings had occurred among all counsel, and a draft settlement agreement was then being ...


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