Shafer Redi-Mix, Inc. v. Teamsters

Filing 68

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

U N I T E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

S H A F E R REDI MIX, INC., P l a in tif f , F ile No. 1:08-CV-652 v. H O N . ROBERT HOLMES BELL T E A M S T E R S LOCAL 7, Defendant. / OPINION T h is action alleging a violation of § 303 of the National Labor Relations Act, 29 U .S .C . § 187, is before the Court on Defendant's motion for summary judgment. (Dkt. No. 3 4 .) For the reasons that follow the motion will be granted. I. C la rk Construction, Inc. ("Clark") was the General Contractor or Construction M a n a g er for the construction of the Firekeepers Casino Project in Battle Creek, Michigan (" C a sin o Project") for the Nottawaseppi Huron Band of Potawatomi Indians. The Casino P r o je c t was covered by a Project Labor Agreement ("PLA") which contained a no-picketing p ro v is io n . Clark subcontracted a portion of the Casino Project to Grand River Construction, In c . ("Grand River").

1

I n February of 2008, Grand River received ready mix bids from two contractors, P la in tif f Shafer Redi Mix ("Shafer") and Consumers Concrete. Grand River selected Shafer a s the ready mix concrete supplier for the Casino Project. (Foster Dep. 33.) Shafer is a nonu n io n company. Shafer attended a pre-project conference at a union hall in Three Rivers, M ic h ig a n on May 18, 2008. At the meeting a representative of Teamsters Local 7 ("Local 7 " ) expressed displeasure that Shafer had been chosen and said he would rather have C o n su m ers Concrete on the job. (Shafer Dep. 32-33.) On May 21, 2008, Duane Wixson, project manager of the Casino Project for Clark, re c eiv e d a telephone call from three union representatives, including Tom Harty of Local 7. (W ix s o n Decl. ¶ 6; Harty Dep. 25.) The union representatives asked why Shafer had been a w a rd e d the bid and described previous problems they had experienced with Shafer. (Wixson Dep. 10; Harty Dep. 28.) There is also evidence that during that telephone call, one o f the union representatives indicated that if Shafer was on the Casino Project there could be a labor disruption on the Project site because a Jackson local bargaining unit could picket the P rojec t. (Wixson Dep. 10; Wixson Decl. ¶ 12.) Consumers subsequently submitted a revised bid that matched the price of Shafer's b id . Approximately one week before Shafer was scheduled to begin pouring, Grand River te r m in a te d its contract with Shafer and selected Consumers Concrete to be the ready mix s u p p lie r on the Casino Project.

2

S h a f e r filed this action against Local 7, alleging that Local 7 violated § 303 of the L abor Management Relations Act ("LMRA"), 29 U.S.C. §158(b)(4), by threatening picketing an d work stoppages if Shafer was not replaced. Defendant has filed a motion for summary ju d g m e n t. II. U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is p ro p e r if there is no genuine issue as to any material fact and the moving party is entitled to ju d g m e n t as a matter of law. In evaluating a motion for summary judgment the Court must lo o k beyond the pleadings and assess the proof to determine whether there is a genuine need f o r trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If D e f e n d a n ts carry their burden of showing there is an absence of evidence to support a claim th e n Plaintiff must demonstrate by affidavits, depositions, answers to interrogatories, and a d m i s s io n s on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. C a tre tt, 477 U.S. 317, 324-25 (1986). In considering a motion for summary judgment, the court must construe the evidence a n d draw all reasonable inferences in favor of the nonmoving party. Minges Creek, L.L.C. v . Royal Ins. Co. of Am., 442 F.3d 953, 955-56 (6th Cir. 2006) (citing Matsushita, 475 U.S. a t 587). Nevertheless, the mere existence of a scintilla of evidence in support of Plaintiff's p o s itio n is not sufficient to create a genuine issue of material fact. Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such

3

th a t a reasonable jury could return a verdict for Plaintiff. Id.; see generally Street v. J.C. B r a d fo r d & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989). I I I. S h a f e r alleges in this action that Local 7 threatened Clark with picketing and work s to p p a g e s if Shafer was not replaced, and that as a result of this threat, Shafer was replaced as the ready mix supplier. (Compl. ¶ 12.) Section 303 of the LMRA provides a cause of action for damages against a labor o rg a n iz a tio n for an unfair labor practice as defined in § 158(b)(4). 29 U.S.C. § 187. Section 1 5 8 (b )(4 ) provides in pertinent part that it is an unfair labor practice for a labor organization " to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting c o m m e r c e ," with the object of "forcing or requiring any person . . . to cease doing business w ith any other person . . . ." 29 U.S.C. § 158(b)(4)(ii)(B). Defendant Local 7 moves for summary judgment based upon its contention that P la in tif f Shafer cannot demonstrate that Local 7 engaged in an illegal secondary threat under § 8(b)(4), nor can it demonstrate that any illegal secondary threat by Local 7 was the p rox im ate cause of any damages to Shafer. A . Illegal Threat to Picket T h e first question raised in Local 7's motion for summary judgment is whether there w a s a threat to picket in violation of § 303 of the LMRA.

4

" C o n g re s s passed § 8(b)(4)(ii)(B) to prevent a union involved in a dispute with a p rim ary employer from forcing a neutral secondary employer to enter the fray on the union's s id e to preserve its own business." Kroger Co. v. NLRB, 647 F.2d 634, 637 (6th Cir. 1980) (c itin g NLRB v. Fruit & Vegetable Packers Local 760, 377 U.S. 58 (1964)). "[G]eneral p re d ic tio n s of problems or trouble are not alone sufficient to establish threats or coercion w ith in the meaning of section 8(b)(4)(ii)." Brown & Root, Inc. v. La. State AFL-CIO, 10 F .3 d 316, 322 (5th Cir.1994). "[T]he mere reference to problems by the Unions may alone b e found insufficient to constitute coercion, and the case law establishes that the trier of fact m u s t find such general amorphous statements coercive only when accompanied by actual or th re a te n e d picketing or walking off the job or the like or preparations for same." Id. In d e te rm in in g whether a union's actions constitute coercion, the union's " entire course of c o n d u c t" should be examined. Wells v. NLRB, 361 F.2d 737, 742-743 (6th Cir.1966). The record in this case includes evidence that on May 21, 2008, union representatives c a lle d Wixson, the project superintendent at Clark, and made the following representations: 12. The union representatives then indicated that if Shafer was on the project th e re could be a labor disruption on the project site, specifically, that a Jackson lo c a l bargaining unit could picket the project. I specifically recall them using " p ic k e t" . 1 3 . The union representatives also stated that they could not control the Ja c k so n local bargaining unit. I understood this to be a warning of possible p ick e ts or other worksite disruptions in the event that Shafer was the concrete su p p lier on the project. (D k t. No. 36, Eisenberg Aff., Ex. 3, Wixson Decl. ¶¶ 12,13.)

5

L o c a l 7 contends that Wixson's testimony, if credited, is nothing more than a claim o f union problems if Shafer, a non-union supplier, was used on a project covered by a project la b o r agreement. Local 7 contends that it had the right to tell Clark that it wanted a union c o n tra c to r on the job, and that there is no evidence that the conversation was accompanied b y coercive threats to obtain such an objective. C o n tra ry to Local 7's assertions, Wixson's declaration includes evidence of more than g e n e ra l predictions of problems or trouble. It includes a specific suggestion that there might b e picketing. Whether or not the suggestion of possible picketing was sufficiently coercive to constitute a violation of § 8(b)(4)(ii) is a question of fact for trial. See Ozark v. Local 978 C a r p e n te r s, 957 F.2d 566, 568-69 (8th Cir. 1992) (reversing summary judgment for the u n io n because the union's statement that "You're going to do it union because if you don't, w e will probably have to . . . . go picketing," viewed in the light most favorable to the nonm o v in g party, would enable a reasonable jury to find an unlawful threat). 2. Evidence Connecting Local 7 to the Threat L o c a l 7 contends that even if there is sufficient evidence that someone threatened a job action against either Clark or Grand River for choosing Shafer as its ready mix supplier, S h a f e r cannot prove that it was a representative of Local 7 who made the threat. The participants in the May 21, 2008, telephone call to Wixson were Tom Harty, the p re sid e n t of Local 7, Alan Sprague, a representative of Teamsters Local 164, and Hugh C o w a rd , a representative of the Southwest Michigan Building Trades Council. (Harty Dep.

6

2 5 .) Each of the union representatives has denied making or hearing any comment about p ic k e tin g . (Harty Dep. 30; Sprague Dep. 19; Coward Dep. 34-35.) Wixson has testified that so m e o n e made a comment about picketing, but he does not recall who made the statement. (W ixso n Decl. ¶ 8.) Local 7 contends that it cannot be held liable for violating § 8(b)(4)(ii) because no w itn e ss can identify which of the three union representatives actually vocalized the alleged th re a t. Moreover, Local 7 points out that the Project Labor Agreement contains a nop ic k e tin g provision. Wixson's recollection is that there was reference to possible picketing b y Teamsters Local 164 (the Jackson Local), which was not a signatory to the PLA. (Wixson D e p . 13-14.) The evidence is also undisputed that Harty specifically reassured Wixson that L o c a l 7 would live up to its obligations under the Project Labor Agreement. (Harty Dep. 29; S p rag u e Dep. 15.) Although Shafer acknowledges that it does not have any direct evidence that Harty m a d e the alleged threat to picket, Shafer contends that Local 7 can nevertheless be held re sp o n s ib le for the threat of potential picketing by Local 164 under a joint venture or agency th e o ry. Local 7 contends that joint venture and agency principles should not be applied to h o ld one union liable for the actions of another union. See NLRB v. Sheet Metal Workers' In t'l Assoc., Local Union No. 19, 154 F.3d 137, 143 (3d Cir. 1998) ("We hold that the joint v e n tu re theory of agency adopted by the A.L.J. and the Board below is inconsistent with § 8

7

o f the Act."); Int'l Longshoremen's Ass'n, AFL-CIO v. NLRB, 56 F.3d 205, 215 (D.C. Cir. 1 9 9 5 ) (rejecting the theory that one union may become the agent of a second completely ind ep en d en t union merely by responding to a request for assistance in a labor dispute). A lth o u g h the weight of authority appears to be with Local 7, there is some case law to support a finding of a joint venture where agents of several unions participate in a common d e s ig n to pressure a single employer. See Dowd v. Int'l Longshoremen's Ass'n, AFL-CIO, 9 7 5 F.2d 779, 785 (11th Cir. 1992) ("Under the liberal application of agency concepts a p p ro p ria te in the labor context, a contractual right to control and direct the performance of a n o th e r is not required to impose responsibility under section 8(b) where an employer or u n ion has encouraged or requested another to engage in unfair labor practices on its behalf."). S h a f e r has introduced evidence that Harty, the president of Local 7, gathered the other u n ion representatives at the Local 7 office and initiated the telephone call to Wixson. In a d d itio n , Wixson has testified that although he does not recall which union representative m a d e what statement during the call, each of the three union representatives were in a g re e m e n t with each other. (Wixson Decl. ¶ 8.) Shafer infers that Harty included Local 164 in the telephone call so that there could be a threat of picketing by the union that had not s ig n e d the PLA. S h a f e r's evidence for holding Local 7 responsible for the potential actions of Local 1 6 4 , is slim, at best. Nevertheless, for purposes of this motion, the Court will assume that th e re is a question of fact as to whether Local 7 can be held liable for the alleged picketing sta tem e n t. 8

3 . Proximate Cause F in a lly, Local 7 contends that even if there is a question of fact as to whether it made a n illegal threat, there is no evidence that the illegal threat was the proximate cause of S h a f e r' s removal from the Casino Project. The Court agrees. Shafer bears the burden of establishing "with reasonable probability the existence of s o m e causal connection between Defendant's wrongful act and some loss of anticipated re v e n u e ." Mead v. Retail Clerks Int'l Assoc., 523 F.2d 1371, 1377 (9th Cir. 1975). It is S h a f e r's position in this case that the picketing threat allegedly made during the May 21, 2 0 0 8 , telephone call caused Shafer to be removed from the Project. Local 7 contends that S h a f e r cannot prove that an unlawful threat caused it to lose the Casino Project because C la rk 's opposition to Shafer predated the May telephone conversation, and because the d e c is io n to reassign the contract to Consumers was made without reference to the May 21, 2 0 0 8 , telephone conversation. Shafer contends that there is an issue of fact as to causation based upon the sequence o f events: (1) although Wixson was aware in February that Grand River had chosen Sahfer, h e took no action to remove Shafer; (2) from February through May, Shafer and Grand River p ro c e ed e d under the assumption that Shafer would be the ready mix supplier; (3) when W ix s o n learned that Shafer had signed the Project Labor Agreement, he told Shafer that they w e r e all set; (4) on May 21, 2008, the union representatives called Wixson and threatened to picket the project; and

9

5 . After the May 21st threat, Mr. Wixson pressures Grand River to replace S h a f e r and sends the May 29, 2008 letter stating its preference to have a union c o n tra c to r supply the redi mix. Based on the letter, Grand River replaces S h af er. (D k t. No. 47, Pl.'s Br. 25.) Shafer's fifth assertion assumes that Wixson pressured Grand River to replace Shafer a f te r the May 21 threat, and that Grand River only decided to replace Shafer after it received th is communication from Wixson after the May 21 threat. These assumptions are not s u p p o rte d by the record. T h e evidence is undisputed that within a week of turning in their bid to Clark, Grand R i v e r began hearing that there would be issues with using Shafer. (Foster Dep. 49-52; K ersa an Dep. 16-17.) He told me that they were getting pressure from outside people, primarily the u n io n trade people. Shafer was not a union company and he wanted us to do s o m e th in g about it. (Foster Dep. 50.) Prior to the prejob meeting on May 13, 2008, Wixson again told Kersaan th a t Clark had concerns about Grand River bringing Shafer to the prejob because the union w a s not happy with using Shafer. (Foster Dep. 56.) Wixson continued to express his c o n c e r n s about using Shafer several times, both during meetings and during telephone calls. (F o s te r Dep. 50-51.) From conversations over a period of time, Grand River understood that C lark wanted them to change suppliers. (Kersaan Dep. 12.) The decision on which concrete supplier to use was made after input from four p artne rs at Grand River. (Kersaan Dep. 13-14.) Foster recommended staying with Shafer,

10

b u t Kersaan recommended that they should switch to Consumers if that was what Clark w an ted. (Kersaan Dep. 13.) Kersaan's view prevailed. (Kersaan Dep. 13-14.) However, K e rs a a n told Foster that before letting Shafer go, he should get a letter from Clark stating that C lark wanted them to change suppliers. (Kersaan Dep. 11-12.) On May 21, shortly after the telephone conversation between Wixson and the union rep rese n tativ es , Harty of Local 7 called Foster at Grand River to find out why Consumers h a d not been selected as the ready mix supplier. (Harty Dep. 30.) Foster explained that C o n s u m e rs 's bid was higher than Shafer's. (Foster Dep. 95; Harty Dep. 31.) Harty then c a lled Tom Thomas of Consumers and told him that pricing was the issue, and that he should c a ll Grand River to discuss the pricing. (Harty Dep. 31-32.) Later that same day Thomas c a lled Foster and asked what he need to do to get the job. (Foster Dep. 96.) Foster told him h e would have to lower his bid, and Clark would have to get rid of Shafer. (Foster Dep. 97.) T h o m a s called Foster a second time the same day. When Thomas told Foster he would be a b le to lower his price, Foster told him to submit mix designs and get prepared for the project a n d requote. (Foster Dep. 98-99.) Foster explained what he meant by having Thomas submit m ix designs: T h at means basically plan on the project, that we need concrete. It's a very lar g e project and he needed to start preparing his team if you will, his o rg a n iza tio n , that he would more than likely end up with the project if his n u m b ers came in and we had Clark instruct us to remove Shafer. We were w a itin g for the letter from Clark to remove Shafer. (Foster Dep. 99.)

11

O n the following day, May 22, 2008, Consumers submitted its mix design. C o n s u m e rs ' mix design was approved on May 23, 2008. (Foster Dep. Ex. 9.) Shafer had su b m itte d mix designs in February and in April, but as of the end of May Grand River still h ad not received Clark's approval of the mix designs. (Foster Dep. 60.) On May 29, 2008, in response to Grand River's request, Wixson sent a letter which p ro v id e d in pertinent part: It is Clark Construction Company's desire to promote labor harmony on the F ir e k e e p e r s Casino Project. For this reason, it is preferred that the concrete s u p p lie r be unionized. However, no additional cost will be authorized beyond th e original contract value. (F o s te r Dep. Ex. 11.) Approximately one week before the concrete was scheduled to be p o u re d , Foster called Shafer to advise that Shafer's mix designs had not been approved and th a t he had been forced by Clark to switch suppliers to Consumers, a union company. (Foster D ep . 72; Shafer Dep. 36-37.) On first blush, the timing between the May 21 telephone call from the union re p re se n tativ e s to Wixson, and the decision to reassign the ready mix supply contract to C o n s u m e rs appears to be somewhat suspect. However, upon closer review, the Court finds that there is no evidence to support Shafer's contention that the decision to switch suppliers w a s made as a result of the May 21 discussion between Wixson and the union re p r e s e n t a tiv e s. There is no evidence that Wixson had any contact with anyone at Grand R iv e r between the time of his telephone conference with the union representatives and later in the day when Grand River told Consumers to submit its mix designs. In fact, based upon

12

Foster's testimony quoted above, it appears that Grand River had already requested the letter f ro m Clark sometime before it essentially promised the job to Consumers. The fact that C la rk did not supply the letter until May 29 does not suggest that the letter was prompted by th e union representatives' telephone call or that the letter caused Grand River to switch su p p liers. Grand River had already made up its mind to switch to Consumers if the numbers c a m e in and if Clark supplied the letter expressing their desire that Grand River remove S h af er. The unrefuted evidence establishes that the decision to switch ready mix suppliers w as based on Clark's continuous hostility to using a non-union supplier, on Grand River's d e sire to do what Clark wanted, and on Consumers's decision to lower its bid. Shafer has s im p ly failed to produce any evidence from which a trier of fact could reasonably infer that a n y unlawful secondary threat made by Local 7 was the proximate cause of Shafer's removal f ro m the Casino Project. Accordingly, Local 7's motion for summary judgment will be g ra n te d and judgment will be entered in favor of Local 7. An order and a judgment consistent with this opinion will be entered.

Dated: September 10, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE