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Microtech Contr. Corp. v. Mason Tenders Dist. Council of Greater New York

United States District Court, E.D. New York

October 27, 2014

MICROTECH CONTRACTING CORPORATION, Plaintiff,
v.
MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK; ASBESTOS, LEAD, AND HAZARDOUS WASTE LABORERS' LOCAL 78; EDISON SEVERINO, PERSONALLY, AND IN HIS OFFICIAL CAPACITY AS BUSINESS MANAGER; AND JOHN DOES NOS. 1 TO 5, Defendants

October 24, 2014

Page 382

For Plaintiff: Angelo Bisceglie, Jr., Bisceglie & Associates, P.C., New York, NY.

For Local 78 and Edison Severino, Defendants: Joseph Vitale, Cohen, Weiss and Simon L.L.P., New York, NY.

For Mason Tenders District Council of Greater New York, Defendant: Haluk Savci, New York, NY.

Page 383

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, United States District Judge.

Plaintiff Microtech Contracting Corporation (" Microtech" ) brings this action against the Mason Tenders District Council of Greater New York (" District Council" ); Asbestos, Lead, and Hazardous Waste Laborers' Local 78 (" Local 78" or " the Union" ); and Edison Severino, personally and in his official capacity as business manager of Local 78 (collectively, " defendants" ).

The present motion seeks a preliminary injunction prohibiting defendants from engaging in activity that plaintiff claims is in breach of the collective bargaining agreement (" CBA" ) between Microtech and Local 78. Specifically, plaintiff seeks to enjoin defendants from " [p]icketing, distributing handbills or flyers and/or posting an inflatable rat or similar sign or device at any job site" where Microtech is working. (Proposed Order, Docket Entry 7, at 2). The issue before the Court has been narrowed, based on the representation of defense counsel " that for the duration of this litigation, Local 78 agrees to limit its conduct to the use of the inflatable rat and will no longer use any sign to accompany the rat with respect to the current dispute." [1] (October 13, 2014 Letter,

Page 384

Docket Entry 26). Accordingly, the Court confines its analysis in this Memorandum and Order to plaintiff's request for a preliminary injunction preventing defendants from posting an inflatable rat at Microtech work sites.[2]

For the reasons discussed below, the Court denies plaintiff's motion. In particular, because it is uncontroverted that the labor dispute between the parties (related to the continued employment bye Microtech of a particular individual) is unrelated to the terms of the CBA and is not an issue that is subject to the mandatory grievance clause of the CBA, the Court is deprived of jurisdiction, pursuant to the Norris-LaGuardia Act, from entering an injunction regarding the use of the inflatable rats. In addition, Section 104 of that Act also would separately prohibit the Court in this case from issuing an injunction, because the Court would be enjoining defendants from giving publicity to the existence of a labor dispute. Finally, even assuming arguendo that the Norris-LaGuardia Act permitted such an injunction, the Court would deny the motion because, with respect to the use of the inflatable rat, plaintiff cannot show a likelihood of success on the merits, or even sufficiently serious questions going to the merits to make them a fair ground for litigation.

It is abundantly clear that Local 78 has a constitutional right to use an inflatable rat to publicize a labor dispute, unless Local 78 surrendered that right in the CBA or some other contractual agreement. Although plaintiff argues that the defendants in fact surrendered that right by agreeing not to engage in " disruptive activity" in the " no-strike" provision, the Court disagrees. The " disruptive activity" clause is qualified by the term " of a similar nature," which references the other specific activities prohibited by the " no-strike" provision--namely, " strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts." In the instant case, the use of the inflatable rat does not involve work stoppages, slowdowns, or boycotts of any kind. In fact, there is no allegation that the use of the rat has any impact on labor at the job site. To the extent plaintiff argues that the use of the inflatable rat is " disruptive" to Microtech's business because its clients do not like the inflatable rat (or the publicity that such a rat can bring), that type of generalized economic disruption caused by union speech is not within the parameters of the " no strike" provision. To hold otherwise would be to prohibit the union from engaging in any speech that is harmful to plaintiff's business image. Such an interpretation is completely inconsistent with the plain language of the " no strike" provision, and would improperly allow that provision to completely eviscerate the First Amendment rights of the union. Thus, the Court concludes that the " disruptive activity" language of the " no strike" clause does not prohibit Local 78 from engaging in this type of First Amendment activity in this case.[3]

Page 385

I. Background

In short, this case arises from the protest activities of Local 78 and the District Council, whose members work as laborers on projects run by Microtech, an asbestos abatement contractor. The relationship between the parties is governed by a collective bargaining agreement. Article XI, § I of the CBA prohibits " strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of, or otherwise directed at any Employer during the term of this Agreement," except under circumstances not presented here. (Docket Entry 7-2, at 34.) It is undisputed that defendants have been posting an inflatable rat at Microtech work sites; plaintiff claims this conduct violates the " disruptive activity" clause of the CBA. (Pl. Mem. at 1.) Plaintiff alleges, and defendants do not dispute, that defendants have been protesting at Microtech work sites in order to pressure plaintiff to terminate a Microtech supervisor named George Moncayo. More specifically, plaintiff alleges that " Microtech's problems with Local 78 began with, and are solely the result of, the fact that in April 2014 Microtech hired [Moncayo] whom Local 78 and Severino disliked and had targeted for punishment." (Compl., ¶ ¶ 27-30.) Defendants are allegedly targeting Moncayo because he previously operated a non-union affiliated asbestos abatement company. ( See Id., ¶ 29).

Plaintiff commenced this action on July 8, 2014, and sought a temporary restraining order prohibiting defendants from, inter alia, hand-billing, picketing, and posting an inflatable rat at Microtech work sites. ( See Proposed Order, Docket Entry 6). On July 11, 2014, the Court held a hearing and denied plaintiff's request for a temporary restraining order. Plaintiff then filed materials in support of a motion for a preliminary injunction. Defendants filed memoranda in opposition on July 15, 2014 and July 16, 2014. Defendants filed a letter on July 16, 2014 informing the Court that " for the duration of this litigation Local 78 agrees to limit its conduct to the use of the inflatable rat (and accompanying sign) and will refrain from the other conduct plaintiff seeks to preliminarily enjoin (e.g. picketing, striking, instructing employees to not work for Microtech, etc.) . . . ." (Letter, Docket Entry 12). Plaintiff submitted a reply in response to defendants' opposition on September 3, 2014. The Court held oral argument on October 10, 2014.

At oral argument, defense counsel conceded that defendants' activities at Microtech work sites are intended to pressure plaintiff to terminate Moncayo as an employee at Microtech. In other words, for purposes of this motion, the parties have agreed that Local 78 has used, and will continue to use, an inflatable rat in order to protest plaintiff's continued employment of Moncayo. Defendants do not contend, and plaintiff does not allege, that the inflatable

Page 386

rat is a response to any purported breach by Microtech of the CBA.

Although the briefing and oral argument encompassed both the use of the inflatable rat and the accompanying signage and hand-billing, following oral argument, defendants submitted a letter to the Court, stating that " for the duration of this litigation, Local 78 agrees to limit its conduct to the use of the inflatable rat and will no longer use any sign to accompany the rat with respect to the current dispute." (October 13, 2014 Letter, Docket Entry 26). Plaintiff has not questioned or challenged that representation and, as discussed above, the Court concludes that the irreparable harm requirement cannot be met in light of that representation. Therefore, the lone issue before the Court is plaintiff's application for an injunction prohibiting defendants from posting an inflatable rat at plaintiff's work sites.

This matter is fully submitted, and the Court has thoroughly considered the submissions of the parties.

II. Standard of Review

In order to prevail on a motion for a preliminary injunction, a party must establish: " (1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." MyWebGrocer, LLC v. Hometown Info., Inc., 375 F.3d 190, 192 (2d Cir. 2004) (quoting Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir. 2002)). " To establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent." Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989) (internal quotation marks omitted).

III. Discussion

As a threshold matter, the Court must consider whether it has jurisdiction to issue the requested injunction. Accordingly, the discussion turns first to whether the Norris-LaGuardia Act divests the Court of jurisdiction to issue an injunctive order. The discussion then considers, in the alternative, whether a preliminary injunction is merited under a traditional balancing of equities, considering whether the inflatable rat constitutes " disruptive activity" within the meaning of the CBA. Finally, the Court considers whether the inflatable rat is speech protected by the First Amendment.[4]

A. The Norris-LaGuardia Act

This action arises from a labor dispute,[5] and therefore the Court's jurisdiction to issue the requested injunction is governed by the Norris-LaGuardia Act (" NLGA" ). See 29 U.S.C. § § 101, 113(a); Mfg. Woodwokers Ass'n of Greater N.Y. v. N.Y. Dist. Council of Carpenters, No. 13 Civ. 4473, at *6 (S.D.N.Y. July 18, 2013) (citing Niagara Hooker Emps. Union v. Occidental Chem. Corp.,

Page 387

935 F.2d 1370, 1375 (2d Cir. 1991)). Defendants argue that two provisions of the Norris-LaGuardia Act divest this Court of jurisdiction to issue the requested injunction. The Court agrees.

" The NLGA deprives federal courts of jurisdiction to issue 'any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of this chapter.'" Northwest Airlines Corp. v. Ass'n of Flight Attendants, 483 F.3d 160, 166 (2d Cir. 2007) (citing 29 U.S.C. § 101). This provision " generally admits of only limited exception," and is construed strictly. Id. In Boys Markets, the Supreme Court carved out a narrow exception, holding that the NLGA does not strip the courts of jurisdiction to enjoin a strike in a labor dispute where a collective-bargaining agreement contains a mandatory arbitration clause, and where the strike " is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate . . . ." Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 254, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) (quotation omitted); see also Time Warner Cable v. Int'l Bhd. of Elec. Workers, No. 14-CV-2437, at *6-8 (E.D.N.Y. May 5, 2014) (applying Boys Markets and denying a motion for a preliminary injunction). The Supreme Court later clarified Boys Markets in Buffalo Forge, holding that the Boys Markets exception did not apply where the strike at issue " was not over any dispute between the union and the employer that was even remotely subject to the arbitration provisions of the contract." Buffalo Forge Co. v. United Steelworkers of Am., 428 U.S. 397, 406, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976). As the Second Circuit has explained, following Boys Markets and Buffalo Forge, a court may not issue an injunction unless it finds " that the strike clearly violates an express or implied promise not to strike, and that the underlying issue is arbitrable." Niagara Hooker Emps. Union, 935 F.2d at 1376; see also Metro. Jewish Geriatric Ctr. v. Local 144, No. 92 Civ. 4892, at *4 (S.D.N.Y. Aug. 13, 1992).

In this case, it is undisputed that the collective bargaining contract contains an express prohibition against " strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site," and therefore the first condition of the Boys Market exception is satisfied. ( See CBA, Docket Entry 7-2, at 34.) Accepting, for the moment, plaintiff's contention that the inflatable rat is conduct prohibited by the " no strike" clause of the CBA[6] plaintiff nonetheless must show that the conduct arises from an underlying issue that is subject to mandatory arbitration under the contract.

Plaintiff's submissions conclusively establish that the dispute between the parties arises from an issue that is not subject to the mandatory grievance clause of the CBA. As plaintiff concedes:

Page 388

All of the [defendants'] actions have been undertaken not to redress any legitimate grievance of Local 78 -- significantly, Local 78 has not pursued any grievance against Microtech under the grievance/arbitration provisions of the CBA -- but solely in order to " punish" Microtech and " teach it a lesson" because Microtech has employed as a supervisor, and has refused to fire, one individual -- Goerge Moncayo -- whom Local 78 and Severino have apparently targeted for several years, ever since he had his own small asbestos abatement company and refused to sign with Local 78.

(Pl. Mem. at 2-3.) It is uncontested that defendants have used the inflatable rat in order to protest Microtech's continued employment of Moncayo, and not because the union believes that Microtech has violated the terms of their contract. Though plaintiff argues that this is not a " legitimate grievance," this argument inverts the question presented by Buffalo Forge, and in fact makes defendants' case. The inquiry under Buffalo Forge is whether the union is obliged, under the contract, to arbitrate their grievance instead of striking; the purpose of a Boys Market injunction is to give effect to the arbitration clause. Buffalo Forge, 428 U.S. at 408 (denying injunction where the strike " had neither the purpose nor the effect of denying or evading an obligation to arbitrate or of depriving the employer its bargain." ); Elevator Mfrs' Ass'n v. Int'l Union of Elevator Constructors, 689 F.2d 382, 385 (2d Cir. 1982) (" the mere arbitrability of the issue whether a strike or work stoppage violates an express or implied no-strike clause does not entitle the employer to 'Boys Markets' injunctive relief; there must be an underlying arbitrable grievance." (citations omitted)). It is therefore immaterial why the defendants are protesting, so long as the protest does not arise from a grievable issue.[7]

Article XII, § 2 of the CBA defines the scope of the grievance procedure, and provides that any " question, complaint, dispute or grievance arising out of and during the term of this Agreement involving its interpretation and application. . . shall be considered a grievance." ( See CBA, Docket Entry 7-2 at 36-37 (emphasis added)). Defendants' views about Moncayo do not concern the interpretation or application of any term of the CBA, and therefore this issue is not subject to the grievance procedure. Thus, because defendants' conduct does not arise from a grievance that is subject to arbitration, the narrow exception of Boys Markets does not apply, and the NLGA prohibits the requested injunction.

Defendants also argue that the requested injunction is barred by § 104 of the NLGA. The Court agrees. In addition to the broad anti-injunction provision of the NLGA, § 104 additionally prohibits federal courts from issuing an injunctive order that prohibits any person from " [g]iving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence." 29 U.S.C. § 104(e). In this case, the inflatable rat is clearly intended to publicize the existence of defendants' dispute with plaintiff, which the parties agree is a labor dispute within the meaning of the statute. Section 4 therefore creates an additional bar to this Court's ability to issue the requested injunction.

Page 389

B. Analysis Under Traditional Preliminary Injunction Standard

Although the Court lacks jurisdiction to issue the requested injunction, the Court also concludes in the alternative that, even assuming arguendo that the NLGA did not prohibit the injunction sought in this case, plaintiff's motion fails under the traditional standard for preliminary injunctions. In particular, with respect to plaintiff's challenge to defendants' current use of the inflatable rat, Microtech has failed to show that it is likely to be successful on the merits, or that there are sufficiently serious questions going to the merits to make them a fair ground for litigation.[8]

As a threshold matter, the Court notes that under the facts of this case, the defendants' peaceful use of a stationary, inflatable rat to publicize a labor protest is protected by the First Amendment. See, e.g., Tucker v. City of Fairfield, 398 F.3d 457, 462 (6th Cir. 2005) (" In our view, there is no question that the use of a rat balloon to publicize a labor protest is constitutionally protected expression within the parameters of the First Amendment." ); Int'l Union of Operating Engineers, Local 150 v. Vill. of Orland Park, 139 F.Supp.2d 950, 958 (N.D.Ill. 2001) (" We easily conclude that a large inflatable rat is protected, symbolic speech." ); accord Betal Environmental Corp. v. Local Union 78, 162 F.Supp.2d 246, 256-57 (S.D.N.Y. 2001) (citing Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)); W2005 Wyn Hotels v. Asbestos, Lead & Hazardous Waste Laborers Local 78, No. 11 Civ. 1249, at *8-9 (S.D.N.Y. Mar. 8, 2012) (noting that the issue of an inflatable rat in labor disputes is sometimes, but not always, protected by the First Amendment) (citing Sheet Metal Workers Int'l Ass'n, Local 15, 356 N.L.R.B. no. 162, (2011); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg., 485 U.S. 568, 584, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)). Here, plaintiff argues that Local 78 bargained away, in the CBA, the union's First Amendment right to use the inflatable rat to disrupt Microtech's business in any way. See Pl. Reply Mem. at 13 (" Defendants have not cited any case which upheld the use of a rat against an employer where a collective bargaining agreement prohibited strikes or other disruptive activity, and also provided that the employer could seek to enjoin such activity if it was undertaken by the union." ) (emphasis in original)). As set forth below, the Court concludes that the unambiguous language of the " no strike" provision does not prohibit the use of an inflatable rat under the circumstances of this case.

1. Disruptive Activity Clause

Plaintiff argues that posting the inflatable rat is conduct prohibited by the " no-strike" provision of the CBA, which prohibits, inter alia, " disruptive activity." In order to address the likelihood of success on the merits for purposes of the preliminary injunction motion, the Court must, therefore, determine whether the inflatable rat constitutes " disruptive activity" within the meaning of the CBA.

The Court interprets the " disruptive activity" clause in the context of the entire no-strike provision, not only because the clause itself qualifies the term " disruptive activity" with the phrase " of a similar

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nature," but also because the doctrine of ejusdem generis limits the construction of this general term to things of the same nature as those enumerated with them. See Hoy v. Incorp. Vill. of Bayville, 765 F.Supp.2d 158, 171 (E.D.N.Y. 2011) (citation omitted). Article XI, § I of the CBA mandates that there " shall be no strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of, or otherwise directed at any Employer during the term of this Agreement, and there shall be no lockouts by any Employer," and further provides for several exceptions not relevant to the present issue. (Docket Entry 7-2, at 34.) Because the other activities prohibited by the clause are actions that create work stoppages or slowdowns, the phrase " disruptive activity of a similar nature" clearly only applies to activities that have a similar effect upon labor. Moreover, the Article itself it entitled " Strikes and Lockouts," suggesting that these activities are the focus of the provision.

Although it appears that the inflatable rat may have an effect on Microtech's business relationships, plaintiff has not contended that the rat itself has any effect on labor that would render this conduct similar to a strike, a walkout, or a picket line. See Betal Envtl. Corp., 162 F.Supp.2d at 251 n.5 (" Inflating a rat does not involve picketing and is not intended to stop others from working." ). Indeed, there is no allegation that the inflatable rat itself has any impact on Microtech's labor force, as it relates to its contract with the union, or its work at the job sites in question. Instead, plaintiff's argument for disruption is limited to generalized harm to Microtech's present and prospective business relationships. ( See 10/10/14 Oral Arg. Tr., at 11 ([Plaintiff's Counsel]: " I want to prove that it's disruptive, that my client is being irreparably harmed. We've had a number of clients tell Microtech that they have a lot of work coming up but because of the uncertainty of the rat, they will not be offering any work to Microtech, directly relating -- as a result of the conduct of Local 78." )). For this reason, the use of the inflatable rat in this particular case is not prohibited by the " disruptive activity" clause. To the extent that plaintiff argues that the use of the inflatable rat hurts its business generally (or is embarrassing to the owner of Microtech) and is therefore " disruptive" under the CBA, such indirect, generalized " disruption" is not prohibited by the " no-strike" provision. The plain language of the provision cannot be interpreted, as plaintiff suggests, to prohibit any conduct by defendants that has a negative impact or influence, either directly or indirectly, on plaintiff's business. Thus, even if Microtech could prove the type of " disruption" it alleges, it would not violate the " no strike" provision. Since there is also no basis to conclude that defendants are in breach of any other contractual provision,[9] plaintiff has not made the required showing of a substantial likelihood of success on the merits, or even sufficiently

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serious questions on the merits making them a fair ground for litigation, on this issue. Accordingly, even assuming arguendo jurisdiction to enter the injunction exists, the Court denies the injunction on this alternative ground.

IV. Conclusion

In sum, the Court lacks jurisdiction to enjoin defendants from posting an inflatable rat at plaintiff's work sites under the circumstances of this case, because the Norris-LaGuardia Act divests the Court of jurisdiction to issue injunctions in labor disputes, and expressly prohibits enjoining unions from engaging in activities that publicize a dispute with management. Moreover, even if the NLGA did not bar the issuance of the proposed injunction, the motion would fail because the use of an inflatable rat is not a breach of the plain language of the contract between the parties and, as a result, plaintiff has not shown a likely of success on the merits, or even sufficiently serious questions on the merits making them a fair ground for litigation. Accordingly, plaintiff's motion for a preliminary injunction is denied.

SO ORDERED.


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