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Capitol Awning Company, Inc. v. Local 137 Sheet Metal Workers International Association

March 18, 2010

CAPITOL AWNING COMPANY, INC., PLAINTIFF,
v.
LOCAL 137 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, DEFENDANT.



The opinion of the court was delivered by: Kiyo A. Matsumoto United States District Judge

KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE

Capitol Awning Company, Inc. ("plaintiff" or "Capitol") filed the instant action against Local 137, Sheet Metal Workers International Association, AFL-CIO ("defendant" or "Local 137") seeking damages under Section 303 of the Labor Management Relations Act ("LMRA"), as amended, 29 U.S.C. § 187. (See generally Amended Complaint, Doc. Entry No. 3.) Capitol asserts that Local 137 is liable for conduct that violated § 8(b)(4)(i) and § 8(b)(4)(ii)(B) of the National Labor Relations Act ("NLRA"), codified at 29 U.S.C. § 158(b)(4). Both parties have moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and their fully briefed motions are now before the court. (See Plaintiff's Motion for Summary Judgment ("Pl. Mot."), Doc. Entry Nos. 32-34; Defendant's Motion for Summary Judgment ("Def. Mot."), Doc. Entry Nos. 35, 38, 40.) For the reasons set forth below, plaintiff's motion is denied and defendant's motion is granted in part and denied in part.

BACKGROUND

The following facts are undisputed unless otherwise noted and are taken from the evidence submitted by the parties in support of their motions.

I. Parties to this Action

A. Capitol

Capitol is located in Queens, New York and manufactures and installs awnings on buildings in the tri-state area. (See June 13, 2007 Transcript of the Deposition of Philip Catalano ("Catalano Depo. Tr."), attached as Exhibit A to Plaintiff's Rule 56.1 Statement of Undisputed Facts, Doc. Entry No. 32-2 ("Pl. 56.1") at 8.) Philip Catalano ("Catalano") has a 35% ownership stake in Capitol and is the Vice President of Sales. (Catalano Depo. Tr. at 7-8.) Capitol has approximately thirty employees. (Id. at 9.) In 1995, both Local 137 and another union, the United Service Workers, IUJAT Local 955 ("Local 955") approached Capitol's employees, seeking to organize them. (Id. at 11-12.) Capitol's employees elected to organize under Local 955 and not under Local 137. (Id. at 11.) Shortly thereafter, Capitol signed a collective bargaining agreement (or C.B.A.) with Local 955, which remains in place at present. (Id. at 10-12; see also Local 955-Capitol C.B.A., attached as Exhibit C to the Declaration of Dante Dano, Jr., Doc. Entry No. 37 ("Dano Decl.").) Local 955 is not affiliated with the Sheet Metal Workers International Association, the New York City and State Construction and Building Trades Councils, or the AFL-CIO.

B. Local 137

Defendant Local 137 is a labor organization that is an unincorporated membership association. (See Defendant's Rule 56.1 Statement of Undisputed Facts, Doc. Entry No. 35-2 ("Def. 56.1") at ¶ 2.) Local 137 represents employees who manufacture and install signs and awnings on buildings throughout the tri-state area. (See Dano Decl. ¶¶ 2-4.) Local 137 has collective bargaining agreements with The Greater New York Sign Association, Mauceri Sign & Awning, and National Maintenance. (See Local 137-The Greater New York Sign Association C.B.A., attached as Exhibit A to the Dano Decl.; Local 137-Mauceri Sign & Awning C.B.A., attached as Exhibit B to the Dano Decl.)

Paul Collins is the President of Local 137. (See Transcript of November 30, 2007 Deposition of Paul Collins ("Collins Depo. Tr."), attached as Exhibit K to Pl. 56.1 at 45.) Dante Dano, Jr. is the New York Business Representative for Local 137. (See Transcript of June 20, 2007 Deposition of Dante Dano, Jr. Deposition ("Dano Depo. Tr."), attached as Exhibit B to Pl. 56.1 at 48.) Collins and Dano also serve on committees that oversee the investment of Local 137's pension fund. (Dano Depo. Tr. at 48-49; Collins Depo. Tr. at 40.)

C. Capitol -- Local 137 Relationship

As set forth above, Capitol's employees elected to organize with Local 955 and rejected organization under Local 137. It is undisputed that on a prior occasion after Capitol and Local 955 executed their C.B.A., Local 137 members have claimed work on contracts awarded to Capitol. (Catalano Depo. Tr. at 12-13.) For example, Collins approached one of Capitol's customers with respect to sign and awning installations at Shea Stadium. (Id.) There are not many details as to what transpired between Capitol's customer and Collins; however, it is undisputed that Collins claimed that the work belonged to Local 137 and that because Capitol was not affiliated with Local 137, Capitol should not get the contract. Notwithstanding Collins' communications, the customer retained Capitol and Capitol completed the project. (Id.)

II. Chase Sign Project

A. Chase Initiates Renovations

In early 2006, J.P. Morgan Chase ("Chase") announced its intent to "re-brand" its existing retail branch offices and those it had recently acquired from other banks. (See Transcript of March 5, 2008 Deposition of Sal Ariganello ("Ariganello Depo. Tr."), attached as Exhibit J to Pl. 56.1 at 10-11.) As part of its rebranding effort, Chase planned to remove the existing awnings and signs from these retail branches and to install new signs and awnings that would display a new Chase logo (the "Chase Sign Project"). (Id. at 10-13.) The Chase Sign Project involved approximately 3500 retail branch offices nationwide, 800 of which were located in the tri-state area. (Id. at 12-13.) Sal Ariganello, a senior project manager at Chase, oversaw the Chase Sign Project. (Id. at 10, 13.) He was responsible for managing the contractors and insuring that the project was completed in a timely manner. (Id. at 13.)

Chase hired Monigle Associates ("Monigle"), a firm that specialized in "corporate branding" or "corporate identity design" to insure that the exterior signs and awnings displaying the new Chase logo had a uniform look nationwide. (See Transcript of November 20, 2007 Deposition of Kurt Monigle ("Monigle Depo. Tr."), attached as Exhibit C to the Declaration of James M. Murphy ("Murphy Decl."), Doc. Entry No. 39 at 7-10; Transcript of November 20, 2007 Deposition of Nelson Yarbrough ("Yarbrough Depo. Tr."), attached as Exhibit H to Pl. 56.1 at 11, 13-14.) To achieve uniformity, Monigle oversaw the manufacture and installation of signs and awnings by contractors Chase retained.*fn1 (Monigle Depo. Tr. at 8-10; Transcript of October 30, 2007 Deposition of Robert Mehmet ("Mehmet Depo. Tr."), attached as Exhibit D to Pl. 56.1 at 15.) Nelson Yarbrough, an Associate at Monigle, led Monigle's efforts. In particular, Yarbrough was responsible for creating sign and awning design intent drawings (manufacturing blueprints for the sign and awning systems to be manufactured by the contractors). (Yarbrough Depo. Tr. at 11.)

In spring 2006, Chase and Monigle held a "kickoff meeting" in Philadelphia with the contractors retained to work on the Chase Sign Project. (Transcript of November 12, 2007 Deposition of Beth Powell ("Powell Depo. Tr."), attached as Exhibit E to Pl. 56.1 at 43; Monigle Depo Tr. at 11; Yarbrough Depo. Tr. at 44.) At this time, Chase had hired as contractors ImagePoint, Icon Identity, East Coast Sign Advertising ("East Coast"), N.W. Sign, and Philadelphia Sign. (Ariganello Depo. Tr. at 34; Yarbrough Depo. Tr. at 14, 23; Transcript of September 11, 2007 Deposition of Jonathan Bragoli ("Bragoli Depo. Tr."), attached as Exhibit C to Pl. 56.1 at 22.) Each of these contractors received a contract to perform the sign and awning work at designated locations based on the type of sign and awning system required. (Mehmet Depo. Tr. at 56.) The contractors also had the authority to hire subcontractors to manufacture and install signs and awnings. (Yarbrough Depo. Tr. at 21.)

Chase and Monigle held the meeting to discuss their expectations. (Powell Depo. Tr. at 43; Monigle Depo Tr. at 11; Yarbrough Depo Tr. at 44-45.) Among other things, Chase indicated that it expected the contractors to use unionized labor. (See Powell Depo. Tr. at 43.) Chase's "goal was to cooperate with the unions and to avoid union issues through the program." (Monigle Depo. Tr. at 11-12; see also Yarbrough Depo. Tr. at 45.) The parties dispute whether Chase specified that it preferred that the contractors use Local 137 labor for all work or whether union labor, in general, was sufficient. (Compare Def. 56.1 ¶ 16 and cited exhibits with Pl. Counter. 56.1 ¶ 16 and cited exhibits.) The contractors' testimony is contradictory. For example, Yarbrough and Kurt Monigle of Monigle do not recall Chase specifically directing the contractors to use Local 137 labor. (Yarbrough Depo. Tr. at 45.) Colleen Erickson of ImagePoint, however, did recall a Chase directive to use Local 137 contractors for installation, but not necessarily for manufacture. (Transcript of November 7, 2007 Deposition of Colleen Erickson ("Erickson Depo. Tr."), attached as Exhibit I to Pl. 56.1 at 24, 95-96.) Brad Nicely of ImagePoint testified that Chase preferred the use of union labor to install signs and never understood that Chase preferred Local 137 to manufacture signs or awnings. (Transcript of November 6, 2007 Deposition of Bradley Nicely ("Nicely Depo. Tr.") attached as Exhibit F to Pl. 56.1 at 111-12, 122-23.) Ariganello of Chase did not recall any representatives from Chase directing exclusive use of Local 137. (Ariganello Depo. Tr. at 94.)

B. Relevant Contractors and Subcontractors*fn2

Chase retained ImagePoint, Philadelphia Signs, N.W. Signs, Icon Identity, and East Coast to manufacture and install the signs and awnings.

1. ImagePoint

Chase awarded ImagePoint, a company head-quartered in Knoxville, Tennessee, a contract to manufacture and install signs and awnings for 100 locations in New Jersey and 70-100 locations in New York. (Nicely Depo. Tr. 12, 17-20; Transcript of November 7, 2007 Deposition of David McClurkin ("McClurkin Depo. Tr."), attached as Exhibit G to Pl. 56.1 at 8-9; Erickson Depo. Tr. at 14-15.) David McClurkin, ImagePoint's Vice President of Sales, negotiated the contract with Chase and had periodic contact with Chase during the Chase Sign Project.

(McClurkin Depo. Tr. at 7-9.) ImagePoint had the facilities to manufacture signs in-house, but like the other contractors, had the option of hiring subcontractors for as much of its work as it desired. (Nicely Depo. Tr. at 15.) ImagePoint's Director of Installation Services, Bradley Nicely, was responsible for hiring subcontractors and overseeing their work. (Id. at 12-14.) ImagePoint's National Account Manager, Colleen Erickson, served as ImagePoint's lead contact with Chase during the Chase Sign Project. (Erickson Depo. Tr. at 11-12.) ImagePoint is not affiliated with Local 137. (See id. at 10; see also Dano Decl. ¶ 4, 10.)

2. Philadelphia Sign

Philadelphia Sign is a company that manufactures and installs signs nationwide. (Mehmet Depo. Tr. at 45-47.) Robert Mehmet is the President of Philadelphia Sign. (Id. at 45.) With respect to the Chase Sign Project, Philadelphia Signs received a contract for approximately 2000 branch offices, 135 of which were in New York. (Id. at 58.) Philadelphia Sign manufactured and installed signs at a portion of the sites. Additionally, Philadelphia Sign subcontracted a portion of its sign installation to National Maintenance and a portion of its sign manufacturing to Going Sign. (Id. at 60-61.)

Philadelphia Sign's relationship with Chase began in the 1980s, when Philadelphia Sign first began working for Chase. Philadelphia Sign is not affiliated with Local 137; however, like Capitol, it has had issues with Local 137 in the past. (See Id. at 24-25, 31-36.) For example, in 2006, Philadelphia Sign had a contract to install signs for Lukoil in New Jersey and employed non-Local 137 painters to paint the signs. Local 137 complained and positioned a large inflatable rat outside the worksite. Philadelphia Sign dismissed the non-Local 137 painters and hired Local 137 painters to finish the job. (Id. at 31-36.)

Based on this history, when Philadelphia Sign has a project in New York, Mehmet contacts Bragoli of National Maintenance to discuss the project. (Id. at 23-27.) Mehmet either subcontracts work to National Maintenance, a New York based Local 137 contractor, or seeks Bragoli's guidance as to other reputable Local 137 contractors. (Id. at 23, 66.) Mehmet undertakes these precautions to avoid problems with Local 137. (Id.) Over time, a staffing practice developed between Philadelphia Sign and Local 137. When Philadelphia Sign has a project in the New York area, it sends no more than one of its sign and awning installers for each Local 137 employee hired to work at that Philadelphia Sign worksite. (Id. at 41, 102.)

3. N.W. Sign

N.W. Sign is a company that manufactures signs. (Powell Depo. Tr. at 25.) Beth Powell is N.W. Sign's Director of Project Management. (Id. at 9.) Chase awarded N.W. Sign a contract for approximately 150 retail branch offices located within New York City. (Id. at 13, 16) N.W. Sign manufactured signs for the Chase Sign Project. Additionally, N.W. Sign subcontracted a portion of its sign manufacture and installation to National Maintenance and to Capitol. (Id. at 26, 29.) N.W. Sign subcontracted the manufacture and installation of awnings to Capitol. (Id. at 29.)

4. Icon

Chase retained Icon Identity to manufacture and install signs and awnings for the Chase Sign Project. (Ariganello Depo. Tr. at 34-35.) This company's involvement is of minimal relevance to the instant action and will be discussed below, when necessary.

5. East Coast

Chase retained East Coast to manufacture and install signs and awnings for the Chase Sign Project. (Ariganello Depo. Tr. at 34-35.) This company's involvement is of minimal relevance to the instant ...


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