BD Development, LLCv. Local 79, Laborers International Union of North America
Filing
102
MEMORANDUM & ORDER granting in part and denying in part 67 Motion for Summary Judgment; denying 75 Motion for Summary Judgment. For the foregoing reasons, Plaintiff's motion (Docket Entry 75) is DENIED and Defendant's motion (Docket Entry 67) is GRANTED IN PART and DENIED IN PART. Specifically, Defendant's motion is DENIED with respect to the BofA Job; GRANTED with respect to the Mount Sinai Job; GRANTED IN PART and DENIED IN PART with respect to the Brookdale Job; and GRAN TED IN PART and DENIED IN PART with respect to the Old Navy Job. Accordingly, Plaintiff's Mount Sinai Job claims are DISMISSED; Plaintiff's Brookdale Job claim for damages for failing to win the ICU Job is DISMISSED; and Plaintiff's Ol d Navy Job claims for the cost of hiring Linear and for BD's lost profits in connection with the Banana Republic Job are DISMISSED. However, Plaintiff has established that Defendant had an improper objective at the Brookdale Job and the Old Navy Job. The parties shall file letters within fourteen (14) days of the date of this Memorandum and Order setting forth their respective positions on scheduling a settlement conference with Judge A. Kathleen Tomlinson. Additionally, the parties are di rected to file a joint proposed pretrial order within sixty (60) days of the date of this Memorandum and Order and are further directed to appear for a pre-trial conference with Judge Tomlinson on June 7, 2018 at 10:30 a.m. So Ordered by Judge Joanna Seybert on 3/19/2018. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
BD DEVELOPMENT, LLC,
Plaintiff,
MEMORANDUM & ORDER
14-CV-4876(JS)(AKT)
-againstLOCAL 79, LABORERS INTERNATIONAL UNION
OF NORTH AMERICA,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Joseph M. Labuda, Esq.
Emanuel Kataev, Esq.
Michael J. Mauro, Esq.
Milman Labuda Law Group, PLLC
3000 Marcus Avenue, Suite 3W3
Lake Success, NY 11042
For Defendant:
Tamir W. Rosenblum, Esq.
Mason Tenders District Council
520 8th Avenue, Suite 650
New York, NY 10018
Joseph J. Vitale, Esq.
Cohen Weiss and Simon LLP
330 West 42nd Street, 25th Floor
New York, NY 10036
SEYBERT, District Judge:
This is a case involving a contractor, a labor union,
and a series of alleged threats and coercive conduct spanning four
jobsites and several years.
Defendant
Local
79,
Pending before the Court are (1)
Laborers
International
Union
of
North
America’s (“Defendant” or “Local 79”) motion for summary judgment
(Def.’s Mot., Docket Entry 67) and (2) Plaintiff BD Development,
LLC’s (“Plaintiff” or “BD”) motion for summary judgment on the
issue of liability (Pl.’s Mot., Docket Entry 75.)
The parties’
briefs total approximately 175 pages and their statements and
counterstatements of facts total over 240 pages and over 1,600
paragraphs.
Under the relevant law, the Court is required to
examine these facts in detail.
See Capitol Awning Co. v. Local
137 Sheet Metal Workers Int’l Ass’n, 698 F. Supp. 2d 308, 322
(E.D.N.Y. 2010).
For the following reasons, Defendant’s motion is
GRANTED IN PART and DENIED IN PART, and Plaintiff’s motion is
DENIED.
BACKGROUND1
I.
The Parties
BD is a general contractor in the construction industry
and Domenico Flavoni (“Flavoni”) is its President.
Stmt. ¶¶ 31-32.)
(Def.’s 56.1
At all relevant times, BD was a signatory to a
collective bargaining agreement with United Construction Trades
and Industrial Employees Local 621 (“Local 621”), which represents
some of BD’s employees, such as carpenters and laborers.
(Def.’s
The following facts are taken from the parties’ Local Civil
Rule 56.1 Statements and Responses. Any relevant factual
disputes are noted. Internal quotation marks and citations have
been omitted. Citations are as follows: Plaintiff’s 56.1
Statement (Pl.’s 56.1 Stmt., Docket Entry 55-1); Defendant’s
56.1 Response (Def.’s 56.1 Resp., Docket Entry 55-2);
Defendant’s 56.1 Statement (Def.’s 56.1 Stmt., Docket Entry 70);
and Plaintiff’s 56.1 Response (Pl.’s 56.1 Resp., Docket Entry
93).
1
2
56.1
Stmt.
¶¶
35,
41.)
Neither
apprenticeship program for laborers.
BD
nor
Local
621
has
an
(Def.’s 56.1 Stmt. ¶ 58.)
Local 79 is a labor organization representing general
laborers in the five boroughs of New York City. (Def.’s 56.1 Stmt.
¶ 1.)
Local 79 laborers perform construction work in connection
with, inter alia, demolition and general conditions work, which
includes cleaning the worksite and keeping it safe.
Stmt. ¶¶ 1-2.)
(Def.’s 56.1
Local 79 is part of the Building and Construction
Trades Council of Greater New York (the “BCTC”), which is a group
of
unions
representing
(Def.’s 56.1 Stmt. ¶ 6.)
BCTC.
workers
in
the
construction
industry.
Local 621 is not associated with the
(Def.’s 56.1 Stmt. ¶ 66.)
Local 79 employs business agents, including George Zecca
(“Zecca”), Mike Labate (“Labate”), and Barry Smith (“Smith”), who
monitor construction sites, visit contractors that are signatories
to a collective bargaining agreement with Local 79 (“Local 79
signatories” and each a “Local 79 signatory”), address grievances,
and “look for other locations where work within the Local’s
jurisdiction is being performed.”
56.1 Stmt. ¶¶ 6-8.)2
(Def.’s 56.1 Stmt. ¶ 8; Pl.’s
Additionally, Local 79 employs a number of
Plaintiff purports to “lack[ ] sufficient information to admit
or deny” this fact. (Pl.’s 56.1 Resp, ¶¶ 7-8.) Where Plaintiff
has failed to explicitly deny and controvert a fact, the Court
will deem it admitted. See Local Rule 56.1(c) (“Each numbered
paragraph in the statement of material facts set forth in the
statement required to be served by the moving party will be
2
3
field organizers in its Market Development Department, including
Dennis Lee (“Lee”) and Anthony Williamson (“Williamson”), with
Chaz
Rynkiewicz
(“Rynkiewicz”)
serving
as
the
Department’s
Director. (Def.’s 56.1 Stmt. ¶¶ 10-11.) While the parties dispute
the means the Market Development Department uses to achieve its
goals, they do not dispute one of the goals itself: “to increase
Local 79’s market share” by convincing developers to use Local 79
signatories.
(Def.’s 56.1 Stmt. ¶ 9; Pl.’s 56.1 Resp. ¶ 9.)
In
connection with its efforts, the Market Development Department
sometimes distributes handbills and employs a “prop,” such as a
large, inflated rat.
II.
(Def.’s 56.1 Stmt. ¶ 12.)
The Bank of America Job
In
2012,
CBRE,
a
Bank
of
America
(“BofA”)
project
manager, hired BD as a general contractor to build BofA’s new
branch (the “BofA Job”) located at 95 Wall Street, New York, New
York (“95 Wall Street”).
Stmt. ¶¶ 140-41.)
(Def.’s 56.1 Stmt. ¶¶ 68, 70; Pl.’s 56.1
BD began work on the BofA Job with its own
workforce--Local 621 laborers--sometime prior to October 2012.
(Pl.’s 56.1 Stmt. ¶¶ 142-43.)
BofA’s
lease
with
its
landlord
at
95
Wall
Street
contained an industry-standard “union harmony clause,” providing
deemed to be admitted for purposes of the motion unless
specifically controverted by a correspondingly numbered
paragraph in the statement required to be served by the opposing
party.”).
4
that
“[u]nion
labor
shall
subcontractors
performing
Building”
that
and
be
any
“[a]ll
used
and
by
all
all
contractors
Alterations
contractors
and
the
subcontractors
. . shall work in close harmony with one another.”
Stmt. ¶¶ 71-72.)
within
and
.
(Def.’s 56.1
The contract between CBRE and BD also contained
a union harmony clause.
(Def.’s 56.1 Stmt. ¶ 73.)
Zecca, a Local 79 business agent, learned of the BofA
Job sometime prior to April 25, 2013.
(Def.’s 56.1 Stmt. ¶¶ 78-
79.) After discovering that BD was not a Local 79 signatory, Zecca
informed Rynkiewicz, the Director of Local 79’s Market Development
Department, about the BofA Job.
(Def.’s 56.1 Stmt. ¶¶ 81-82.)
Rynkiewicz “looked into” BD and discovered that it did not have a
state-certified apprenticeship program.
(Def.’s 56.1 Stmt. ¶ 83.)
While Plaintiff avers that his investigation was flawed and that
BD prioritizes safety, Rynkiewicz testified that BD’s lack of an
apprenticeship program led him to conclude that BD’s employees
were being exploited, and that “the public needed to be notified
about that.”
(Def.’s 56.1 Stmt. ¶¶ 83-84; Pl.’s 56.1 Resp. ¶¶ 83-
84; Rynkiewicz Dep., Vitale Decl. Ex. C, Docket Entry 81-3, 60:1521.)
Accordingly, Rynkiewicz assigned Local 79 organizer Lee to
take action at 95 Wall Street, the nature of which is disputed.
(Def.’s 56.1 Stmt. ¶ 86; Pl.’s 56.1 Resp. ¶ 86.)
5
A.
Local 79’s Activity at the BofA Job
On April 25, 2013, Lee, Zecca, and other Local 79 members
went to 95 Wall Street, erected a large, inflatable rat, and
distributed handbills, which read, in pertinent part, “Shame on
You BD Development[.]
No Worker Deserves to be Exploited!!!
BD
Development is allowing the exploitation of construction workers
at their Bank of America Project at 95 Wall St. . . .
Tell BD
Development all workers deserve a living wage!” (Def.’s 56.1 Stmt.
¶¶ 86, 91; Lee Dep., Vitale Decl. Ex. A, Docket Entry 81-1, 86:2587:17, 92:22-93:3; BofA Leaflet, Wheeler Decl. Ex. 60, Docket Entry
68-60.)
Lee testified that this was an “informational action,”
during which Local 79 handed out fliers and talked to the public.
(Lee Dep. 17:9-18:8.) Zecca testified that there was no “organized
picketing,” (Zecca Dep., Vitale Decl. Ex. E, Docket Entry 81-5,
109:12-16), and that no bullhorns, placards, or pickets were used,
(Zecca Dep. 64:9-65:3).
Jonathan Lapidus (“Lapidus”), a BD laborer on the BofA
Job, arrived at 95 Wall Street that morning at 7:30 a.m., an hour
later than scheduled.
(Pl.’s 56.1 Stmt. ¶¶ 146, 151.)
He
testified that he saw a fifteen-foot-tall “rat blown up in front
of the building and about five . . . [Local 79] workers standing
in front of [his] egress doors handing out fliers and picketing.”
(Lapidus Dep., Kataev Decl. Ex. D, Docket Entry 76-4, 27:20-28:5.)
6
However, he indicated that no one was actually “holding picket
signs.”
(Lapidus Dep. 30:4-7.)
Lapidus also testified that he approached the entrance
to the jobsite and told the individuals standing in front of the
doors “[e]xcuse me[,] I need to get into the job site,” but they
“just stood there.”
(Lapidus Dep. 30:20-22.)
He testified that
a minute or two later, he repeated his request, and they then let
him through.
(Lapidus Dep. 30:23-31:9.)
According to Lapidus, it
took him “about two to three minutes to get into the job site,”
(Lapidus Dep. 31:13-19), and he felt intimidated, (Pl.’s 56.1 Stmt.
¶ 155).
Zecca and Lee deny that they or anyone else from Local 79
blocked Lapidus’ or anyone else’s entry to the jobsite.
(Zecca
Decl., Docket Entry 73, ¶ 2; Lee Decl., Docket Entry 72, ¶ 2.)
Additionally, when Lapidus arrived at the jobsite, BD
subcontractors NYMEC and More Air Mechanical were waiting outside
for Lapidus to open the site.
56.1 Resp. ¶ 89.)
(Def.’s 56.1 Stmt. ¶¶ 88-89; Pl.’s
However, Lapidus testified that no one from New
York City Acoustics, Inc. (“NYC Acoustics”)--which BD had hired to
perform the carpentry work at the BofA Job--was present, even
though its workers were scheduled to be there at 6:30 a.m.3
(Def.’s
56.1 Stmt. ¶¶ 76, 125; Pl.’s 56.1 Stmt. ¶ 144; Lapidus Dep. 49:37.)
NYC Acoustics is a signatory to a collective bargaining
Defendant disputes that NYC Acoustics was supposed to be
present at the BofA Job at 6:30 a.m. (Def.’s 56.1 Resp. ¶ 160.)
3
7
agreement with the New York City District Council of Carpenters
(the “Carpenters’ Union”), which, like Local 79, is affiliated
with the BCTC.
(Def.’s 56.1 Stmt. ¶ 77; Pl.’s 56.1 Stmt. ¶ 16.)
Lapidus testified that he called Salvatore DePetro (“DePetro”),
NYC Acoustics’ foreman, (Def.’s 56.1 Stmt. ¶ 121; Lapidus Dep.
49:8-50:4),
who
said
“[w]e
cannot
show
up
at
the
job
until
everything is squared off outside. . . . We’re not allowed to cross
the line.
We have been asked not to cross the line. . . .
We
would be over after everything was resolved,” (Lapidus Dep. 51:1152:19).
According to Lapidus, DePetro did not identify who
requested that NYC Acoustics not “cross the line.”
Stmt. ¶ 127.)
(Def.’s 56.1
That morning, Lapidus also sent an email to Flavoni
and BD’s Vice President Jimie Deliteris (“Deliteris”), (Def.’s
56.1 Stmt. ¶ 33), explaining that NYC Acoustics “told me that they
were asked not to cross the line and to wait till it is resolved,”
(Apr. 25, 2013 Lapidus Email, Joseph Decl. Ex. 27, Docket Entry
78-27).
Additionally, Angela Giovinazzi, an assistant project
manager at BD, (Giovinazzi Dep., Labuda Decl. Ex. O, Docket Entry
77-15, 10:20-23), testified that Michael Ceciliani, NYC Acoustics’
President, (Def.’s 56.1 Stmt. ¶ 120), told her that his employees
(Giovinazzi Dep. 65:8-66:22.)
“wouldn’t cross a picket line.”4
Defendant objects to Lapidus’ and Giovinazzi’s testimony about
these conversations on hearsay grounds. (Def.’s 56.1 Resp. ¶¶
165-67.) See infra n. 28.
4
8
DePetro, on the other hand, testified that he did not
recall seeing an inflated rat or whether there was a work stoppage,
(DePetro Dep., Labuda Decl. Ex. F, Docket Entry 77-6, 32:1-9), did
not speak to anyone from Local 79 regarding 95 Wall Street, and
did not recall a conversation with Lapidus about being asked not
to
work,
(Def.’s
56.1
Stmt.
¶¶
123-24,
128).
In
response,
Plaintiff highlights that DePetro appears to recall little about
that day.
(Pl.’s 56.1 Resp. ¶¶ 123, 128; see DePetro Dep. 47:22-
48:3 (“Have you ever experienced any type of job actions from Local
79 on any jobs you have worked on with NYC Acoustics?
that I can remember.
Q.
A.
How good is your memory, by the way?
Well, this all happened then.
Not
A.
Not too good, I would think.”),
35:21-36:14 (“I am not saying that [I didn’t call NYC Acoustics to
find out what the story is about honoring or not honoring the
picket line].
I don’t recall it happening.”).)
DePetro testified
that generally, as a member of the Carpenters’ Union, if he were
to see a union’s inflated rat, he would inform his office and Local
79 “would contact the other trades working on that job and ask
them to honor the picket line . . . or the action.”5
28:11-29:2.)
(DePetro Dep.
He continued that someone from NYC Acoustics would
When asked whether there was an agreement that other BCTC
unions would help Local 79 in protest activity, Zecca testified
“hopefully, if you’re a good union guy, maybe you’d like to
honor that picket line. That would be up to you. . . . There’s
no written agreement, that I know of.” (Zecca Dep. 47:7-48:7.)
5
9
then contact the Carpenters’ Union, his office “would confirm it
if [they are] honoring the strike,” and a Carpenters’ Union
delegate would confer with a Local 79 delegate and give “direction
as to whether or not [he is] supposed to continue working.”
(DePetro Dep. 29:3-30:24.) DePetro would work at the site “[u]ntil
they said stop.”
(DePetro Dep. 29:19-23.)
DePetro also testified
that on other jobs, he and his coworkers have stopped work and
honored another union’s strike until the dispute was resolved.
(DePetro Dep. 30:20-31:24.)
B.
Resolution
After entering the jobsite, Lapidus called Deliteris and
Flavoni to tell them about Local 79’s activities.
Stmt. ¶ 96; Pl.’s 56.1 Resp. ¶ 96.)
(Def.’s 56.1
Flavoni and Zecca then spoke,
and Zecca told Flavoni that BD could resolve the issue by using a
Local 79 laborer at the BofA job.
56.1 Resp. ¶ 97.)
(Def.’s 56.1 Stmt. ¶ 97; Pl.’s
Flavoni informed Zecca that BD had used Riteway
Internal Removal Inc. (“Riteway”), a Local 79 signatory, for
demolition or carting work at the site, and the two agreed that BD
would use Riteway as a paymaster6 for a Local 79 laborer to perform
A paymaster is a Local 79 signatory that accepts payment for a
Local 79 laborer from a contractor that is not a Local 79
signatory. (Pl.’s 56.1 Stmt. ¶ 180; Def.’s 56.1 Resp. ¶ 180.)
This arrangement allows a non-Local 79 contractor to use a Local
79 laborer. (Labate Dep., Vitale Decl. Ex. F, Docket Entry 816, 83:25-84:8.) A paymaster ultimately costs a contractor more
money because it “marks up” the labor rates that the contractor
has to pay. (Labate Dep. 85:11-15.)
6
10
work.
(Def.’s 56.1 Stmt. ¶ 97; Pl.’s 56.1 Resp. ¶ 97; Pl.’s 56.1
Stmt. ¶ 179; Def.’s 56.1 Resp. ¶ 179.)
Once Riteway confirmed
that it would provide BD with a laborer, Local 79 ceased its
activity,
and
resolution.
100-02.)
neither
CBRE
nor
BofA
were
involved
in
the
(Def.’s 56.1 Stmt. ¶¶ 100-02; Pl.’s 56.1 Resp. ¶¶
BD informed CBRE that Local 79 had inflated a rat and
picketed at the job and that BD resolved the issue “within 30
minutes.”
(Def.’s 56.1 Stmt. ¶ 104; Apr. 2014 Flavoni Email,
Wheeler Decl. Ex. 11, Docket Entry 68-11.)
BD for the cost of the laborer.
CBRE did not reimburse
(Pl.’s 56.1 Stmt. ¶ 194.)
With respect to NYC Acoustics, Lapidus testified that
its employees ultimately came to the BofA Job at about 10:30 a.m.,
after
Local
approximately
79’s
activities
fifteen
minutes
had
concluded,
without
having
then
done
left
after
any
work.
(Lapidus Dep. 71:2-72:2.)
C.
CBRE’s and BofA’s Involvement
Lee and Zecca testified that they did not speak to CBRE,
BofA, or NYC Acoustics regarding Local 79’s activities at the BofA
Job.
(Lee Dep. 80:14-82:21; Zecca Dep. 66:4-7; 75:20-77:9.)
However,
Plaintiff
cites
Giovinazzi’s
testimony
that
BofA
representative Jeannie Choi (“Choi”) and either CBRE’s Director of
Project Management Christine Wilde (“Wilde”) or CBRE’s Project
Manager Howard Martin (“Martin”) called BD about Local 79.
(Pl.’s
56.1 Stmt. ¶¶ 171-73; Giovinazzi Dep. 26:23-27:19, 28:21-29:24.)
11
Giovinazzi
acknowledges
that
she
was
not
part
of
those
conversations, (Giovinazzi Dep. 27:8-29:24), and Defendant objects
to her testimony on hearsay grounds, (Def.’s 56.1 Resp. ¶ 171).
Flavoni also testified that he did not speak to anyone at BofA
about the job, but that he discussed Local 79’s rat with Martin.
(Flavoni Dep., Kataev Decl. Ex. F, Docket Entry 76-6, 61:21-62:23.)
Additionally, Deliteris testified that he and/or Flavoni notified
a
CBRE
representative--probably
Martin--about
Local
79’s
activities at the BofA Job, and that the CBRE representative said
“we need to make them stop, we need to make them go away.”
(Deliteris Dep., Kataev Decl. Ex. G, Docket Entry 76-7, 82:2484:20.)
Wilde testified that she learned of Local 79’s alleged
conduct at the BofA Job from Martin.
Def.’s 56.1 Resp. ¶ 175.)
(Pl.’s 56.1 Stmt. ¶ 175;
She considers Local 79 to be a “very
dirty union” because it “coerced people into hiring their laborers
with the rat up in front of buildings.”
D.
(Def.’s 56.1 Stmt. ¶ 106.)
BofA Recommends Against Using BD on High-Profile Jobs
The BofA Job was BD’s first large, high-profile job--
that is, a job worth over $500,000 in the five boroughs--for BofA.
(Def.’s 56.1 Stmt. ¶¶ 113-14.) From approximately April 2013 until
approximately April 2015, BofA recommended that CBRE not use BD on
such jobs, including five or six jobs during that period.
56.1 Stmt. ¶¶ 113, 116.)
(Def.’s
While Wilde testified that she did not
know specifically why BofA asked that CBRE exclude BD from large,
12
high-profile bids, she thought it was because of “reputational
risk,” that BD was “too small” and that there was “too much risk”
“[w]ith respect to protest activity by Local 79.”
(Wilde Dep.,
Labuda Decl. Ex. G, Docket Entry 77-7, 88:2-23.)
Additionally,
based on conversations with BofA, she testified that BofA was
apprehensive about using BD on these projects because of “protest
activity” at the BofA Job and the “potential for more protests,”
which “paints the image” that CBRE and BofA are nonunion.
Dep.
59:18-60:13.)
Further,
she
testified
that
BofA
(Wilde
never
requested that BD be removed from the invited vendor list prior to
the protest activity at the BofA Job.
Because
she
thought
that
(Wilde Dep. 88:24-89:4.)
BD
was
as
an
excellent
contractor, Wilde was able to have BofA reconsider its decision
and BD was put back on the approved vendors list.
(Pl.’s 56.1
Stmt. ¶¶ 332-33.) Since approximately April 2015, BofA has allowed
CBRE
to
use
BD
on
large,
high-profile
projects,
successfully on five jobs for BofA in 2014 and 2015.
and
BD
bid
(Def.’s 56.1
Stmt. ¶¶ 117-18.)
III.
The Mount Sinai Job
In June 2012, BD entered an agreement with The Mount
Sinai
Hospital
(“Mount
Sinai”)
to
renovate
observation unit (the “Mount Sinai Job”).
¶ 469; Pl.’s 56.1 Stmt. ¶ 197.)
contractors.
twenty-bed
(Def.’s 56.1 Stmt.
Mount Sinai uses only union
(Def.’s 56.1 Stmt. ¶ 476.)
13
a
Edward Chang (“Chang”),
the Director of Facilities, Design, and Construction for Mount
Sinai, confirmed that BD was a union contractor before it started
the Mount Sinai Job, and Mount Sinai’s contract with BD contained
boilerplate language that required BD to “use all reasonable
efforts to maintain good relations with labor unions . . . to
maintain peaceful laborer relations and a trouble-free job site.”
(Def.’s 56.1 Stmt. ¶¶ 468, 474-77; Pl.’s 56.1 Stmt. ¶ 199 (ellipsis
in original).)
A.
Union Action at Mount Sinai
Chang received a call from a union--though he did not
recall whether it was a carpenters union or a laborers union-which told him that Mount Sinai had to use the union’s members.
(Def.’s 56.1 Stmt. ¶ 471; Chang Dep., Labuda Decl. Ex. M, Docket
Entry 77-13, 13:25-14:25.)
When asked at his deposition whether
the union mentioned “picketing,” Chang testified “Yeah. . . .
I
heard that [the] union will be, you know, putting up a rat.”
(Chang Dep. 17:10-23.)
Chang later testified that he did not
believe the union talked about picketing, shutdowns, or slowdowns.
(Chang Dep. 25:20-26:3.)
Further, while BD was working on the Mount Sinai Job, a
union erected a rat.
(Def.’s 56.1 Stmt. ¶¶ 478, 481.)
Chang
testified that there were people stationed near the rat handing
out
pamphlets,
though
he
did
responsible for the activity.
not
identify
which
union
was
(Chang Dep. 22:18-23:11, 24:1714
25:8.)
According to Chang, rats are erected so often at Mount
Sinai that he does not pay much attention to them.
Stmt. ¶ 479.)
(Def.’s 56.1
However, Chang testified that he had a conversation
with BD in which he asked it to resolve the dispute so that the
rat in front of the hospital would be taken down.
(Chang Dep.
26:4-20.)
Citing an affidavit containing the testimony of Flavoni
(the “Flavoni Affidavit”), Plaintiff avers that the union that
called Chang was Local 79.
(Flavoni Aff., Docket Entry 101,
¶ 117.) In the affidavit, Flavoni testifies that Local 79 inflated
the rat and “actually picketed Mt. Sinai,” (Flavoni Aff. ¶ 118),
and asserts that Flavoni relayed Local 79’s threats to Mount Sinai,
(Pl.’s 56.1 Stmt. ¶¶ 204-07; Flavoni Aff. ¶¶ 42-45).
denies
these
contentions,
citing
Flavoni’s
and
Defendant
Deliteris’
deposition testimony that they did not speak to anyone from Local
79 regarding the Mount Sinai Job, (Def.’s 56.1 Resp. ¶¶ 204, 207;
Flavoni Dep. 84:25-85:6; Deliteris Dep. 28:4-7), and Flavoni’s
testimony that he was unsure whether anyone from BD spoke to anyone
from Local 79 regarding the Mount Sinai Job, (Flavoni Dep. 85:710).
However,
Flavoni
did
speak
to
Carpenters’ Union about the Mount Sinai job.
¶ 473.)
Ken
Bluhm
of
the
(Def.’s 56.1 Stmt.
Further, Giovinazzi testified that a BD superintendent
told her that Local 79 was behind the union activity at Mount
15
Sinai, but that she does not recall much about the job and does
not know the difference between Local 79 and the Carpenters’
Union.7
(Giovinazzi Dep. 43:6-45:14.)
B.
BD Hires Linear
BD
used
Linear
Contracting
(“Linear”),
a
Local
79
signatory, to serve as a paymaster to provide a laborer on the
Mount Sinai Job.
¶ 208.)
(Def.’s 56.1 Stmt. ¶ 483; Pl.’s 56.1 Stmt.
At his deposition, Flavoni testified that he hired Linear
to perform general conditions cleanup based on the recommendation
of BD superintendent Mel Conroy (“Conroy”), who said that BD had
to use Local 79 because Mount Sinai has had problems with the union
in the past.
(Flavoni Dep. 91:24-93:7, 95:15-21.)
Flavoni
testified that Chang did not direct BD to hire a Local 79 signatory
and did not care which union BD used.
Further,
Flavoni
testified
that
(Flavoni Dep. 93:12-94:21.)
Michael
Cain
(“Cain”),
Mount
Sinai’s project manager for the job, agreed with BD’s decision to
use Local 79, but that he spoke with Cain only after BD hired
Linear.
(Flavoni Dep. 95:3-95:21.)
Citing the Flavoni Affidavit,
however, Plaintiff claims that BD was forced to hire a Local 79
laborer because of Local 79’s picketing and threat of union
activity.
(Pl.’s 56.1 Resp. ¶ 483; Flavoni Aff. ¶¶ 117-18.)
Defendant objects to her testimony on hearsay grounds.
56.1 Resp. ¶ 203.) See Discussion infra Section V.B.
7
16
(Def.’s
C.
End to a Troubled Relationship
BD and Mount Sinai’s relationship became strained.
BD
was unhappy with Mount Sinai during the job, telling it in October
2013 that it wanted to finish the work and “be gone.”
56.1 Stmt. ¶ 486.)
(Def.’s
From Mount Sinai’s perspective, Chang was
concerned about the frequency with which BD submitted change orders
seeking additional compensation for work BD claimed was outside
the scope of its contract.
(Def.’s 56.1 Stmt. ¶ 484.)
Chang
testified that he was concerned that BD was “playing games with
change orders,” (Chang Dep. 61:12-22, 62:15-18), and had slowed
its work because Mount Sinai had not approved and paid change
orders, (Chang Dep. 75:11-15).
Citing the Flavoni Affidavit, BD
disputes Chang’s testimony. (Pl.’s 56.1 Resp. ¶¶ 485, 487; Flavoni
Aff. ¶¶ 121-22.)
Mount Sinai considered terminating BD mid-job because BD
refused to continue to work unless Mount Sinai paid outstanding
change orders, though BD ultimately completed the job to Mount
Sinai’s satisfaction.
¶ 488.)
(Def.’s 56.1 Stmt. ¶ 488; Pl.’s 56.1 Resp.
Additionally, Chang decided mid-job that he was not going
to invite BD to submit bids on future work.
¶ 489.)
(Def.’s 56.1 Stmt.
Chang testified that he made this decision not because of
the inflation of a rat, but because of his negative experiences
with and being “held hostage by” BD.
119:8.)
Again,
Plaintiff
disputes
17
(Chang 96:2-97:17, 118:25Chang’s
testimony
with
Flavoni’s affidavit testimony that “Local 79’s conduct affected
Mt. Sinai’s assessment of BD because Mt. Sinai never awarded BD
any more projects following what occurred at the Mt. Sinai job
site.”
IV.
(Flavoni Aff. ¶ 123.)
The Brookdale Job
In 2014, Brookdale Hospital Medical Center (“Brookdale”
or “Brookdale Hospital”) began a project that involved expanding
a family care clinic in Brooklyn, New York (the “Brookdale Job”),
and it used BD as its construction manager.8
¶¶ 129, 146-47.)
(Def.’s 56.1 Stmt.
Brookdale Hospital is located at 1 Brookdale
Plaza and the clinic--the site of the Brookdale Job--is located at
1110 Pennsylvania Avenue; the two locations are approximately oneand-a-half
miles
apart.
(Pl.’s
56.1
Stmt.
¶¶
210-12.)
Construction on the Brookdale Job began around mid-April 2014 and
concluded in approximately February 2015.
¶ 153.)
(Def.’s 56.1 Stmt.
In line with its general practice, Brookdale required BD
to use union labor on the Brookdale Job.
(Def.’s 56.1 Stmt.
¶¶ 136, 149.)
A.
Local 79 Learns of the Brookdale Job
Labate, a Local 79 business agent, came to the Brookdale
Job on or about April 24, 2014.
He
went
into
a
project
meeting
(Def.’s 56.1 Stmt. ¶¶ 160-61.)
and
introduced
himself,
Plaintiff notes that Brookdale used BD as its general
contractor. (Pl.’s 56.1 Resp. ¶ 147.)
8
18
and
Deliteris escorted him out of the meeting.
(Def.’s 56.1 Stmt.
¶ 162.) Labate then asked Deliteris if any Local 79 laborers would
be performing work at the Brookdale Job, since it was within Local
79’s jurisdiction.
(Def.’s 56.1 Stmt. ¶ 163.)
Rynkiewicz testified that he then assigned Local 79
organizer Williamson “to do hand billing at Brookdale Hospital
because there w[ere] workers being exploited” there.
Dep. 36:2-10.)
(Rynkiewicz
Williamson testified that he was concerned about
BD and wanted Brookdale “to look into the way they are doing
business,” (Williamson Dep., Vitale Decl., Ex. B, Docket Entry 812, 23:2-14), and that his actions at Brookdale were directed toward
“[i]nforming
the
public
about
what
the
hospital
was
doing.”
(Williamson Dep. 26:6-21.)
Williamson
also
called
Brookdale
directly
on
three
occasions, (Pl.’s 56.1 Stmt. ¶ 229), because he wanted Brookdale
to “look into the way [it was] doing business by hiring credible
contractors who treat their workers with dignity and respect.”
(Williamson Dep. 28:9-16.)
not
a
“credible
Williamson added that he felt BD was
contractor,”
(Williamson
Dep.
28:17-19),
and
conceded that when he contacted Brookdale directly, he was not
trying to inform the public about Brookdale.
¶ 232.)
(Pl.’s 56.1 Stmt.
Williamson testified that he wanted Brookdale to use a
Local 79 contractor, though he did not express that sentiment the
first time he spoke to Brookdale.
19
(Williamson Dep. 23:15-21.)
B.
BD Hires AMG for Demolition Work
On May 12, 2014, BD entered into an agreement with AMG
Environmental Restoration LLC (“AMG”), a Local 79 signatory, to
perform demolition work at the Brookdale Job.
¶¶ 155-56, 158.)
(Def.’s 56.1 Stmt.
BD chose AMG because Brookdale had instructed BD
to use women-owned businesses where possible, a woman owns AMG,
and AMG’s bid was reasonable.
(Def.’s 56.1 Stmt. ¶ 155.)
The
record is unclear as to who paid the additional expense of using
AMG for demolition work.
(Def.’s 56.1 Stmt. ¶ 157; Pl.’s 56.1
Resp. ¶ 157; Pl.’s 56.1 Stmt. ¶ 323; Def.’s 56.1 Resp. ¶ 323.)
Jay Fast (“Fast”), Brookdale’s Director of Planning, Design, and
Transition, (Def.’s 56.1 Stmt. ¶ 131), testified that he did not
remember discussing whether BD would pay the increased cost for
using Local 79 laborers for demolition work, (Def.’s 56.1 Stmt.
¶ 157; Fast Dep., Labuda Decl. Ex. D, Docket Entry 77-4, 38:1216).
Plaintiff claims that it paid the additional cost, citing
the testimony of Gerard Connolly (“Connolly”), Brookdale’s Senior
Vice President of Facility Planning and Development, (Def.’s 56.1
Stmt. ¶ 130), that “[a]ny money above the agreed upon budget that
didn't have a purchase order attached, we wouldn't pay. . . .
If
[BD] didn’t get [Brookdale’s] approval to spend any money, whether
it’s [Local] 79 or whatever, [Brookdale] wouldn’t pay for it.”
(Pl.’s 56.1 Resp. ¶ 157; Connolly Dep., Labuda Decl. Ex. I, Docket
Entry 77-9, 51:6-52:4.)
However, Plaintiff cites no evidence
20
showing
whether
it
requested
or
received
such
approval
from
Brookdale.
The parties also dispute why BD did not use its own
workforce for demolition.
Resp. ¶ 154.)
(Def.’s 56.1 Stmt. ¶ 154; Pl.’s 56.1
Nicola Capozza (“Capozza”), BD’s project manager
for the Brookdale Job, (Pl.’s 56.1 Stmt. ¶ 221), testified that he
believed BD did not have the manpower to handle the work, (Capozza
Dep., Kataev Decl. Ex. C, Docket Entry 76-3, 46:3-21).
However,
Deliteris testified that BD initially intended to do the demolition
work with its own employees, but that when “there was pressure put
on Brookdale, that’s when [BD] decided to go with” AMG. (Deliteris
Dep.
34:16-36:25.)
Additionally,
Fast
testified
that
he
understood that BD used a Local 79 demolition contractor at the
beginning of the Brookdale Job to appease Local 79.
(Fast Dep.
74:18-25.)
C.
Union Activity at Brookdale
1.
Local 79’s Presence at Brookdale
On May 12, 2014, after AMG was selected by BD and began
demolition work at the Brookdale Job, Local 79 inflated a rat
opposite Brookdale Hospital’s main entrance and near the Brookdale
urgent care center.9
(Def.’s 56.1 Stmt. ¶¶ 169, 176; Pl.’s 56.1
Plaintiff denied that it issued a contract to AMG before Local
79 inflated a rat balloon at Brookdale on May 12, 2014, stating
that BD selected AMG after “Local 79 commenced its campaign of
threatening to conduct union activity.” (Def.’s 56.1 Stmt.
9
21
Resp. ¶ 169.)
William Duggan (“Duggan”), Vice President of
Security for Brookdale, (Def.’s 56.1 Stmt. ¶ 132), testified that
he remembered that the rat was in “close proximity” to the urgent
care center’s entrance, and that he “believe[d] at one time there
was a dialogue with the police” and Local 79 but did not recall
whether it resulted in the rat being moved, (Duggan Dep., Labuda
Decl. Ex. C, Docket Entry 77-3, 22:9-14; 27:6-21).
And while
Duggan did have safety concerns over Local 79’s activity, the
concerns related to it being “a very congested area” in front of
a hospital, where there are “a lot of vehicle accidents” and where
large crowds might gather; “[i]t had nothing to do with this rat
thing.”
(Duggan Dep. 31:12-32:13.)
¶ 155, 176; Pl.’s 56.1 Resp. ¶¶ 155, 176.) However, Plaintiff
does not cite evidence that supports its denial: The cited
evidence shows only that the Brookdale Job began in April 2014,
(Capozza Dep. 13:24-14:6), that a Brookdale employee was
concerned about Local 79’s possible inflation of a rat on May
13, 2014, (Connolly Dep. 53:15-54:15), and that BD and AMG
entered into their contract on May 12, 2014 (AMG Contract,
Wheeler Decl. Ex. 38, Docket Entry 68-38 (The Court notes that
Plaintiff also mischaracterized this evidence, claiming that “BD
and AMG entered into a subcontract agreement later that day,”
when the contract is silent as to the time of day it was
entered.)). (Pl.’s 56.1 Resp. ¶ 176.) This evidence does not
undermine or contradict the testimony of Plaintiff’s own
employees that AMG was selected and began work before Local 79
inflated its rat at Brookdale. (Deliteris Dep. 37:5-15 (“Q: So
AMG was selected before the rat went up? A: Yes.”); Weigel
Dep., Kataev Decl. Ex. A, Docket Entry 76-1, 134:18-135:1
(Q: . . . [H]ad AMG already started to perform demo work as of
May 12th? A: Yes, they did. Q: Had they been doing the demo
work prior to May 12th during the day? A: Yes.”).)
22
In addition to inflating the rat, two to five people
near the rat handed out leaflets, which read, in part, “Shame on
Brookdale Hospital Medical Center.
Brookdale Hospital Medical
Center is allowing BD Development LLC to exploit construction
workers @ 1110 Pennsylvania Ave. in Brooklyn.”
(Def.’s 56.1 Stmt.
¶ 171; Brookdale Leaflet 1, Wheeler Decl. Ex. 78, Docket Entry 6878.)
A disclaimer in small text at the bottom of the leaflet
provided:
“This leaflet is directed at the public and is not an
inducement for anyone to stop working or making deliveries.”
(Brookdale Leaflet 1.)
A different leaflet also appears to have
been distributed, (Brookdale Leaflet 2, Kataev Decl. Ex. W, Docket
Entry 76-23), which read, in relevant part: “Brookdale Hospital
Medical Center is allowing BD development to exploit construction
workers @ 1110 Pennsylvania Ave in Brooklyn.
Brookdale’s theory
to hire exploitive contractors to cut costs may potentially result
in workers being exposed to unsafe work conditions that can lead
to them becoming patients at Brookdale Hospital. We hope Brookdale
doesn’t have the same theory for their Medical Practices.
demand quality, safe construction!”
(Brookdale Leaflet 2.)
leaflet contained the same disclaimer as the other.
Leaflet 2.)
We
This
(Brookdale
Connolly testified that he believed that this leaflet
was damaging to Brookdale’s reputation and “would create the
perception in the people that walked in the door that we are not
providing
quality
healthcare.”
23
(Connolly
Dep.
90:4-92:9.)
Connolly was also concerned that the flyer would create undue
anxiety for Brookdale’s patients.
(Pl.’s 56.1 Stmt. ¶ 260; Def.’s
56.1 Resp. ¶ 260.)
Williamson
testified
that
this
job
action
targeted
Brookdale, not BD, (Williamson Dep. 38:2-8), with the “objective”
of getting Brookdale to meet with business agents to “resolve the
situation,”
(Williamson
Dep.
39:5-14,
41:19-42:6).
He
also
testified that “this was basically a publicity campaign informing
the public of Brookdale’s way of doing business,” and that he
“wanted to put pressure on Brookdale to hire contractors that treat
their
workers
with
dignity,
respect,
and
pay
a
good
wage.”
(Williamson Dep. 63:16-25.)
Local 79 denies ever picketing or engaging in activity
other than inflating a rat and handing out leaflets at Brookdale.
In support, Defendant cites the deposition testimony of Brookdale
employees Duggan, Fast, Connolly, and Khari Edwards (“Edwards”)-Vice President of External Affairs for Brookdale (Def.’s 56.1 Stmt.
¶ 134)--none
activity.
of
whom
reported
witnessing
additional
union
(Def.’s 56.1 Stmt. 187.)
Plaintiff responds that Local 79 set up a picket line at
Brookdale on May 12, 13, 16, 19, 20, and 21, 2014.
Stmt. ¶ 194; Pl.’s 56.1 Resp. ¶ 194.)
deposition
testimony
of
Deliteris
that
(Def.’s 56.1
Plaintiff cites the
Local
79
agents
were
“walking back and forth on the sidewalk” and handing out leaflets
24
near the rat. (Pl.’s 56.1 Resp. ¶ 172; Deliteris Dep. 93:7-95:17.)
Additionally, Plaintiff points to attendance sheets from Local
79’s action at Brookdale, on which Williamson wrote “picket line”
as the description of the “Event.” (Def.’s 56.1 Stmt. ¶ 194; Pl.’s
56.1 Resp. ¶ 194; May 2014 Brookdale Attendance Sheets, Wheeler
Decl. Ex. 80, Docket Entry 68-80.)
Williamson, who completed the
attendance sheets, testified that writing “picket line” was a
“sloppy” or “old time” way of referring to Local 79’s activity at
Brookdale, and that he should have written “informational” or “job
action.”
(Def.’s 56.1 Stmt. ¶ 191; Williamson Dep.
70:25-71:11.)
Rynkiewicz also testified that Williamson did not complete the
attendance sheets properly.
2.
On
(Rynkiewicz Dep. 138:12-141:4.)
Brookdale’s Reaction
May
12,
2014,
Mark
Toney
(“Toney”),
Brookdale’s
President and CEO, (Def.’s 56.1 Stmt. ¶ 129), emailed Connolly and
others that he thought the dispute between Local 79 and BD had
been resolved and that he understood the dispute to be “one union
against another,”10 (Pl.’s 56.1 Stmt. ¶ 234).
Connolly then wrote
to Fast that BD had to “rescue this now,” (Pl.’s 56.1 Stmt. ¶ 234),
by which he meant that BD should “deal directly with Local 79 and
Connolly and Fast also understood that Local 79’s activity
arose out of a dispute between Local 79 and Local 621. (Pl.’s
56.1 Stmt. ¶¶ 235, 277.)
10
25
resolve the issue,” potentially by getting a Local 79 laborer,
(Connolly Dep. 46:16-47:18).
3.
On
Brookdale.
Efforts to End Local 79’s Activity
May
13,
2014,
Local
79
again
demonstrated
at
(Def.’s 56.1 Stmt. ¶ 169; Pl.’s 56.1 Resp. ¶ 169.)
Connolly sent Deliteris, and Flavoni an email about the rat.
(Pl.’s 56.1 Stmt. ¶ 244.)
He testified that his email was meant
to get BD to take action to remove the rat and that he believed
Local 79 was using the rat to coerce Brookdale into using Local 79
labor.
Labate,
(Pl.’s 56.1 Stmt. ¶ 244.)
who
explained
that
Local
Later that day, Flavoni called
79
had
erected
the
rat
at
Brookdale because BD and Local 79 had not resolved whether Local
79 laborers would be performing work on the Brookdale Job.
(Pl.’s
56.1 Stmt. ¶ 239; May 13, 2014 Audio Tr., Rosenblum Decl. Ex. 1,
Docket Entry 69-1, at 2-3.)11
Labate told Flavoni that he wanted
to “claim [his] jurisdictional . . . work” and “get some general
conditions work.”
(Pl.’s 56.1 Stmt. ¶ 246.)
Flavoni then emailed
Connolly that Labate “clearly stated what he is looking for,” and
Connolly testified that he recalled this to mean “he was looking
for all of the general conditions,” which he understood to include
Flavoni recorded some of his conversations with Local 79
agents and employees, as well as those with various third
parties, (Flavoni Dep. 12:7-13:16), and Defendant produced
transcripts of those conversations, (Rosenblum Decl., Docket
Entry 69, ¶ 2).
11
26
“the project manager, the paperwork and the laborer to clean up
the site.”
(Pl.’s 56.1 Stmt. ¶ 248; Def.’s 56.1 Resp. ¶ 248;
Connolly Dep. 68:15-69:23.)
At Toney’s request, Connolly asked
“BD to reach out to Local 79 at Brookdale’s behest to find out
what [Local] 79 wanted in order to end this protest activity with
the . . . rat and the flyers.”
(Connolly Dep. 69:24-70:14.)
Flavoni called Labate to schedule a meeting, (Pl.’s 56.1
Stmt. ¶ 250), and Local 79 did not inflate the rat on May 14, 2014
so they could meet, (Def.’s 56.1 Stmt. ¶ 178).
The two discussed
using a Local 79 laborer for general conditions work, in which
case Local 79 would consider ceasing its organizing activities.
(Def.’s 56.1 Stmt. ¶ 179; Pl.’s 56.1 Resp. ¶ 179; May 14, 2014
Audio Tr., Rosenblum Decl. Ex. 4, Docket Entry 69-4, at 5, 7, 1415, 20-21.)
Labate said that BD’s use of its own workers is “going
to be an issue, unless you want to sign with” Local 79.
2014 Audio Tr. at 5.)
(May 14,
Additionally, Labate said that, typically,
if he cannot resolve a job situation and no one from the job calls
him back, his boss will direct him to “put a line up,” and that
that is “kind of” what happened at Brookdale.12
(May 14, 2014
Audio Tr. at 6.)
While listening to portions of the recording of that
conversation at his deposition, however, Labate testified that
“put the line up” is “just a term,” which he agreed could
include “putting up a picket line or a rat or doing leafleting
or something along those lines.” (Labate Dep. 283:8-284:19.)
12
27
That same day, BD filed unfair labor practice charges
with the National Labor Relations Board (“NLRB”) challenging Local
79’s alleged “illegal activities.”
4.
(Def.’s 56.1 Stmt. ¶ 181.)
BD Declines to Use a Local 79 Laborer
On May 15, 2014, Flavoni told Labate that BD would not
use a Local 79 laborer to perform general conditions work at
Brookdale.
(Def.’s
conversation,
Labate
56.1
told
Stmt.
Flavoni
¶¶
182-83.)
that
Local
During
79’s
their
organizing
department “does those picket lines,” and that there were a few
issues Local 79 had with BD: (1) “the area standard from New York
which [BD is] not paying”; (2) “the certified apprenticeship
program by the state, which [BD doesn’t] have”; and (3) “the
jurisdictional
nonunion.
work,”
regardless
of
whether
BD
is
union
or
(May 15, 2014 Audio Tr., Rosenblum Decl. Ex. 5, Docket
Entry 69-5, at 1-2.)
Flavoni emailed Connolly that day to inform
him that BD and Local 79 could not reach an agreement.
(Pl.’s
56.1 Stmt. ¶ 253.)
On
May
16
and
May
19
through
21,
2014,
Local
79
resurrected its rat and resumed its activities at Brookdale.
(Def.’s 56.1 Stmt. ¶¶ 184-85; Pl.’s 56.1 Resp. ¶¶ 184-85.)
On
May 20, Connolly sent an email stating that if the NLRB did not
make a decision by noon, Connolly would have to “step in” and
direct BD to hire four or five Local 79 laborers to end the protest
activity.
(Pl.’s 56.1 Stmt. ¶ 254; Def.’s 56.1 Resp. ¶ 254.)
28
He
testified that he would have to “readjust the cost” to “see if we
could take money from somewhere else” to pay for the laborers.
(Connolly Dep. 84:11-22.)
On May 21, 2014, the NLRB dismissed the unfair labor
practice charge filed by BD.
5.
(Def.’s 56.1 Stmt. ¶ 199.)
BD hires Local 79 to Perform General Conditions Work
On May 21, 2014, Connolly informed BD that the rat was
back up, that there was a new flyer with Toney’s name on it, and
that he believes it would be in everyone’s best interest to resolve
the issue quickly. (Pl.’s 56.1 Stmt. ¶ 269.) That day, BD arranged
with AMG to serve as paymaster for a Local 79 laborer to perform
general conditions work,13 and entered an agreement with AMG to
that effect on May 27, 2014.
56.1
Resp.
¶
201;
Pl.’s
(Def.’s 56.1 Stmt. ¶¶ 200-01; Pl.’s
56.1
Stmt.
¶
279.)
According
to
Williamson, BD used Local 79 workers because of Local 79’s actions
at Brookdale, and the situation was resolved.
(Williamson Dep.
56:3-24.)
BD’s use of Local 79 laborers resulted in an increase to
the cost of the Brookdale Job.
(Pl.’s 56.1 Stmt. ¶ 323.)
However,
Plaintiff purports to deny this fact, but does not cite
evidence that contradicts it. (Pl.’s 56.1 Resp. ¶ 200.)
Instead, Plaintiff cites testimony that Toney was upset about
the inflation of the rat at Brookdale, that Brookdale felt
pressured by Local 79’s union activity, and that Brookdale, in
turn, pressured BD. (Pl.’s 56.1 Resp. ¶ 200; Fast Dep. 60:0963:10.)
13
29
it is unclear who bore the additional cost; Defendant highlights
Fast’s testimony that the cost of the laborers would be “sent to
the hospital,” because it was “paying for the job,” (Pl.’s 56.1
Stmt. ¶ 323; Def.’s 56.1 Resp. ¶ 323; Fast Dep. 35:24-36:10).
6.
The Carpenters’ Union
Around the same time, the Carpenters’ Union--part of the
BCTC, like Local 79--was protesting at Brookdale.
142:15-143:3.)
Weigel,
a
BD
construction
(Weigel Dep.
superintendent
who
became superintendent for the Brookdale Job in the spring of 2014,
testified that their activity generally started around 7:00 or
8:00 a.m. and ended around 1:00 or 2:00 p.m.
17.)
(Weigel Dep. 134:8-
Weigel testified that Local 79 signatory AMG requested
permission to perform its demolition work starting at 4:00 p.m. so
that the Local 79 laborers would not see the Carpenters’ Union’s
picket line and refuse to cross it.
D.
(Weigel Dep. 133:4-19.)
The Job Stops but the Dispute Continues
Due to a structural issue, the Brookdale Job was put on
hold from approximately June 2014 until November 2014.
(Def.’s
56.1 Stmt. ¶ 206.)
1.
Smith Speaks with Brookdale and BD
In August 2014, Smith, a Local 79 business agent, took
over for Labate and became involved in the Brookdale Job.
56.1 Stmt. ¶¶ 217-18; Pl.’s 56.1 Stmt. ¶ 282.)
(Def.’s
Smith called
Connolly on October 8, 2014, and left a message. (Pl.’s 56.1 Stmt.
30
¶ 283.) As a result of Smith’s call to Connolly, Flavoni contacted
Smith and stated that he did not plan to continue to use a Local
79 laborer for general conditions work, and Smith responded that
he was “trying to make sure we don’t have a problem here.”
56.1 Stmt. ¶ 284; Def.’s 56.1 Resp. ¶ 284.)
(Pl.’s
Flavoni ultimately
declined Smith’s request to have Local 79 laborers at the Brookdale
Job.
(Pl.’s 56.1 Stmt. ¶ 285.)
Smith also spoke directly to Connolly in October 2014,
requesting that a Local 79 laborer be used to perform the general
conditions work.
286.)
(Def.’s 56.1 Stmt. ¶ 219; Pl.’s 56.1 Stmt. ¶
Connolly responded that he thought the issue had been
resolved, (Def.’s 56.1 Stmt. ¶ 219), and he testified that Smith
did not threaten him with rats, placards, flyers, or “anything
like that.”
(Connolly Dep. 161:18-24.)
he did not make such threats.
Smith also testified that
(Smith Dep., Vitale Decl. Ex. D,
Docket Entry 81-4, 241:2-242:13.)
2.
BD and Local 79 Cannot Reach a Deal
On October 15, 2014, Flavoni again rejected Smith’s
appeal to use a Local 79 laborer for general conditions work,
(Def.’s 56.1 Stmt. ¶ 221), and Smith expressed concern that Local
621 was doing Local 79’s “jurisdictional work” and that BD’s
employees are not covered by a BCTC local union, (Pl.’s 56.1 Stmt.
¶ 287).
Flavoni proposed a compromise pursuant to which Local 79
laborers would perform the masonry and stucco work.
31
(Def.’s 56.1
Stmt. ¶ 221.)
Smith notified Flavoni on October 17, 2014 that
Local 79 rejected BD’s offer.
(Def.’s 56.1 Stmt. ¶ 222.)
Smith
told Flavoni that the “deal was off the table” and that if Local
79 has “to fight it tooth and nail, we will.”
(Oct. 17, 2014 Audio
Tr., Rosenblum Decl. Ex. 28, Docket Entry 69-28, at 1.)
Smith
acknowledged that Flavoni would discuss Local 79’s message with
Brookdale and noted that he was also speaking directly with
Connolly.
(Oct. 17, 2014 Audio Tr. at 3.)
Connolly learned of Local 79’s “tooth and nail” comment
and testified that he understood it to mean that the unions’
dispute “was a broader fight across Brooklyn and a couple of other
jobs that were going on at the time.”
(Connolly Dep. 102:13-16.)
Additionally, he assumed Local 79 would re-inflate the rat and
pass out leaflets.
(Connolly Dep. 104:9-20.)
When asked if he
thought Local 79 would picket with placards or signs, he testified,
“I'm not sure what they would do. . . .
I would assume it would
take every possible option that they had in their arsenal they
would use, yes.
So whatever that means.”
(Connolly Dep. 105:4-
10.)
E.
Local 79’s Activity, and the Job, Resume
Local
79
restarted
its
activity
at
Brookdale
on
October 21, 2014, as well as October 27 through 31, November 3
through 6, 10 through 14, and 18 through 21, 2014.
Stmt. ¶ 223; Pl.’s 56.1 Resp. ¶ 223.)
32
(Def.’s 56.1
Again, Williamson described
this activity as a “picket line” in the “Event” space of the
attendance sheets he completed.
(Fall 2014 Brookdale Attendance
Sheets, Kataev Decl. Ex. U, Docket Entry 76-21.)
When work resumed at the Brookdale Job, BD did not use
AMG or a Local 79 laborer for general conditions work.
(Def.’s
56.1 Stmt. ¶ 207.)
F.
Impact on BD and Brookdale
1.
Generally
Connolly
leafletting
to
be
and
an
Edwards
considered
embarrassment
and
Local
a
79’s
public
rat
and
relations
nightmare. (Connolly Dep. 112:7-13; Edwards Dep., Labuda Decl. Ex.
H, Docket Entry 77-8, 52:10-23.)
Edwards and Fast testified that
they were not worried that Local 79’s activities would lead to any
work
stoppages
by
Brookdale’s
own
employees,
though
Edwards
expressed concern that a union representing some hospital workers
would be “sympathetic to the cause.”
Fast Dep. 65:17-66:4.)
(Edwards Dep. 84:23-86:21;
Additionally, Fast thought that Local 79’s
activities might cause delays in the project, (Fast Dep. 30:1013, 31:17-23), though he ultimately concluded that the Brookdale
Job was not delayed by Local 79’s protest activity.
(Fast Dep.
104:9-12.)
2.
Brookdale’s Relationship with BD and Future Work
Connolly and Fast rated BD’s performance on previous
jobs very highly, (Pl.’s 56.1 Stmt. ¶¶ 335, 337), and Brookdale
33
never considered removing BD from the job, (Def.’s 56.1 Stmt.
¶ 229).
Both Fast and Connolly testified that they would use BD
again and have no concerns about BD as a result of Local 79’s
activities.
(Fast Dep. 114:9-17; Connolly Dep. 28:10-13, 82:13-
19 (“Did you have any concern about being able to use BD on future
projects as a result of this protest activity by Local 79? . . .
A.
No,
absolutely
not.”).)
Citing
the
Flavoni
Affidavit,
Plaintiff disputes this testimony and claims that “Brookdale has
not awarded BD any work since the completion of the clinic job.”
(Pl.’s 56.1 Resp. ¶ 235.)
Fast testified that since the Brookdale Job, Brookdale
has issued one request for proposal (“RFP”) for work on Intensive
Care Units (the “ICU Job”), and it sent the RFP to BD, among
others.
(Fast Dep. 95:18-96:13, 99:9-13.)
Connolly testified
that BD did not win the ICU Job because BD was the second lowest
bidder and the job was awarded to the lowest bidder, and he
explicitly stated that “I [would not] direct anybody[ ] not to
select . . . BD based on this experience [such as protest activity
from Local 79] that happened here.”
(Connolly Dep. 123:2-124:14.)
Fast testified that BD did not win the job because “[t]hey were on
the higher end of the bid.”
(Fast Dep. 96:14-23.)
Further, Fast
testified that he sent BD the RFP for the ICU Job despite BD’s
issues with the Carpenters’ Union and Local 79, and that he would
be willing to send BD RFPs in the future.
34
(Fast Dep. 114:5-17.)
However, while he testified that Brookdale did not consider the
labor dispute with Local 79 in making its decision on the ICU Job,
(Fast Dep. 96:14-97:13), he also testified that he would consider
the fact that BD has had labor disputes with Local 79 to be a
negative factor in deciding whether to award future work to BD,
(Fast Dep. 97:14-23, 113:10-18, 114:24-115:7).
Plaintiff denies that there was only one subsequent RFP
and that Brookdale has not awarded additional work to BD simply
because it was not the lowest bidder.
31.)
(Pl.’s 56.1 Resp. ¶¶ 230-
According to Flavoni’s affidavit testimony, “BD has placed
bids on other projects for Brookdale since the completion of the
[Brookdale Job], and has not been awarded any work thus far,” and
he has “reason to believe that Brookdale no longer awards BD work
as a result of Local 79’s conduct.” (Flavoni Aff. ¶¶ 88-89.)
V.
The Old Navy Job
In 2014, the Gap relocated an Old Navy Store14 to the
Kings Plaza Mall (“Kings Plaza”), which is owned by Macerich
Management Company (“Macerich”) and located in Brooklyn, New York.
(Def.’s 56.1 Stmt. ¶¶ 241-42; Pl.’s 56.1 Stmt. ¶¶ 24-25.)
Zito
(“Zito”),
Macerich’s
operations
manager
who
Lucien
oversaw
construction jobs at Kings Plaza, (Def.’s 56.1 Stmt. ¶ 245),
described Kings Plaza as a “blue collar mall” that is “intense[ly]
14
The Gap owns Old Navy. (Pl.’s 56.1 Stmt. ¶ 19.)
35
concern[ed]”
about
and
sensitive
to
“any
type
of
union . . . action at the mall,” (Zito Dep., Labuda Decl. Ex. K,
Docket Entry 77-11, 34:7-18).
Accordingly, the Gap’s lease at
Kings Plaza required the Gap to maintain union harmony.
(Def.’s
56.1 Stmt. ¶ 255.)
In early 2014, the Gap approved BD as a prequalified
contractor.
(Pl.’s 56.1 Stmt. ¶ 21.)
BD then bid on and won its
first project for the Gap, an Old Navy Store construction project
at Kings Plaza (the “Old Navy Job”).
Pl.’s 56.1 Stmt. ¶¶ 22-23.)
(Def.’s 56.1 Stmt. ¶ 271;
BD was the lowest qualified bidder,
though BD’s bid was still $500,000 to $600,000 above the Gap’s
estimated costs.
(Def.’s 56.1 Stmt. ¶¶ 269-70.)
The Old Navy Job
was a union project, and the Gap’s contract with BD required that
BD maintain union harmony.
A.
(Def.’s 56.1 Stmt. ¶¶ 272-73.)
Kings Plaza Power Plant and Local 3
Kings Plaza has a stand-alone power generation plant,
independent of the main power grid, that generates Kings Plaza’s
electricity.
(Def.’s 56.1 Stmt. ¶ 276; Zito Dep. 20:8-19.)
If
Kings Plaza’s power were to be shut down, there would be no backup
energy source and the entire mall and its stores would be forced
to close.
(Pl.’s 56.1 Stmt. ¶ 60.)
Members of Local 3 of the
International Brotherhood of Electrical Workers (“Local 3”), a
BCTC member like Local 79 and the Carpenters’ Union, (Pl.’s 56.1
Resp.
¶
275),
maintain
the
plant,
36
and
BD
needed
Local
3’s
cooperation at the Old Navy Job, (Def.’s 56.1 Stmt. ¶¶ 277-78).
BD selected EG Electric, Inc. to perform the electrical work on
the Old Navy Job, though it is not a signatory to a collective
bargaining agreement with Local 3.
B.
(Def.’s 56.1 Stmt. ¶¶ 274-75.)
Local 79 Contacts Macerich Before Construction Begins
Local 79 business agent Labate learned about the Old
Navy Job and contacted Zito before it began.
¶¶ 33-34.)
(Pl.’s 56.1 Stmt.
Zito testified that Labate “seemed anxious about [BD
being used as the general contractor] and concerned, being very
verbal about how he felt that there could or would be problems
with the construction job.”
(Zito Dep. 25:8-20.)
Zito speculated
that Labate was hoping to dissuade the Gap from using BD “with
whatever influence [Zito] may or may not have.”
24.)
(Zito Dep. 26:15-
Labate testified that he called Zito and/or Steve DeClara
(“DeClara”)--Zito’s superior and Macerich’s senior manager (Def.’s
56.1 Stmt. ¶¶ 244, 246)--to say that if BD would be performing the
Old Navy Job, “you have issues because they are not a [Local 79]
signatory,” (Labate Dep. 174:19-176:8).
Additionally, Labate told
Flavoni on May 15, 2014 that Local 79 would have an issue with BD
if it performed general conditions work at the Old Navy Job without
using a Local 79 laborer.
(Def.’s 56.1 Stmt. ¶¶ 182-83.)
37
C.
The Grievance and Demolition Work
1.
Local 79 Files a Grievance
On or about May 16, 2014, Labate filed a grievance with
the BCTC that BD was “non-union,” which Labate testified meant
that he and other “card-carrying [union] members” did not see Local
621 as a union for a number of reasons.
(Def.’s 56.1 Stmt. ¶ 288;
Pl.’s 56.1 Stmt. ¶ 64; May 16, 2014 Grievance Email, Wheeler Decl.
Ex. 43, Docket Entry 68-43; Labate Dep. 183:14-184:19.)
A BCTC
local union may file a grievance for the purpose of informing other
unions of an issue with a particular contractor, and notice of the
grievance is typically sent to all of the BCTC local unions.
(Pl.’s 56.1 Stmt. ¶ 63.)
Local 79 business agent Smith testified
that when another BCTC local union files a grievance and requests
the presence of Local 79, it will attend, and that “if Local 79
requests other trades to come down to a grievance, the other trades
have to go.”
2.
(Smith Dep. 108:12-23.)
BD Hires All City for Demolition Work
Also on May 16, 2014, BD subcontracted the demolition
work on the Old Navy Job to All City Interior Contracting Inc.
(“All City”), a Local 79 signatory, (Def.’s 56.1 Stmt. ¶¶ 20, 282),
which cost BD an additional $33,717.84, (Def.’s 56.1 Stmt. ¶ 409;
Ciuzio Dep., Labuda Decl. Ex. N, Docket Entry 77-14, 70:21-23).
Construction at the Old Navy Job began on May 20, 2014, and
demolition was performed on May 21, 2014.
38
(Def.’s 56.1 Stmt.
¶¶ 286-87.)
All City ultimately worked for nineteen (19) days and
finished its demolition work on June 18, 2014.
(Def.’s 56.1 Stmt.
¶ 373.)
While the Gap and BD did not discuss whether BD would
subcontract the demolition work, citing the Flavoni Affidavit and
a conversation among Flavoni, the Gap, and Macerich, Plaintiff
notes that it hired All City in an attempt to placate Local 79 and
make a good first impression with the Gap.
(Def.’s 56.1 Stmt.
¶ 285; Pl.’s 56.1 Resp. ¶ 285; Flavoni Aff. ¶ 97; July 1, 2014
Audio
Tr.,
Rosenblum
Decl.
Ex.
8,
Docket
Entry
69-8,
at
5
(“Flavoni: . . . [W]e heard that there was going to be an issue
with [Local] 79.
So in an effort to mitigate that and maintain
the harmony, we actually hired a demolition contractor who is Local
79.”).)
Additionally, Ken Ross (“Ross”), BD’s Project Manager for
the Old Navy Job, (Def.’s 56.1 Stmt. ¶ 265), testified that he
recommended All City to Flavoni and Deliteris because of “the union
issue” (Ross Dep., Kataev Decl. Ex. E, Docket Entry 76-5, 45:915).
He continued that “[w]e wanted to have a union guy in there
with
Local
contractors.”
3.
79.
They
were
more
expensive
than
the
other
(Ross Dep. 45:9-15.)
The Grievance Meeting
During the morning of May 21, 2014, Zito received an
unexpected visit at the management office of Kings Plaza from
Labate and business agents from several other unions, including
39
the Carpenters’ Union and Local 3, regarding Local 79’s BCTC
grievance.15
(Def.’s 56.1 Stmt. ¶¶ 293, 295; Pl.’s 56.1 Resp. ¶¶
293, 295; Zito Dep. 38:22-39:16.)
meeting.
(Pl.’s 56.1 Stmt. ¶ 78.)
BD was not present at the
While it is common for several
business agents to attend a BCTC grievance meeting, (Def.’s 56.1
Stmt. ¶ 294), Zito testified that “the fact that there were 15
[business agents] at [his] office that showed up unexpected[ly]”
was
“clearly
an
intimidation
tactic,”
(Zito
Dep.
40:9-16).
However, Labate testified that Local 79’s BCTC grievance meeting
was held at Kings Plaza not to intimidate, but because it was a
“convenient spot to meet.”
(Labate Dep. 214:20-215:4.)
The parties dispute the nature of Local 79’s interaction
with Zito, other than that one of several issues raised at the
meeting was BD’s failure to use Local 79 laborers at the Old Navy
Job.
(Pl.’s 56.1 Stmt. ¶ 51; Def.’s 56.1 Resp. ¶ 51.)
According
to Labate, Zito asked what the issue was and he responded “[t]his
is about BD Development, they are not going to use [Local] 79.”
(Labate Dep. 207:8-14.)
Additionally, Labate testified that while
he “never mentioned a picket line,” a power shutdown, the Market
Development Department, inflatable rats, or leafleting, (Labate
After reviewing an email that he sent the day of the meeting,
Zito testified that approximately fifteen (15) business agents
came to his office, (Zito Dep. 38:2-7), but Labate testified
that he recalls that there were no more than eight (8) union
representatives at the meeting, (Labate Dep. 206:15-207:7).
15
40
Dep. 211:20-212:4, 217:3-25), he did tell Zito that “there will be
issues with BD,” (Labate Dep. 213:10-214:3).
Zito recalls the grievance meeting differently.
The
morning of the meeting, he emailed BD’s Ross and Gap’s Senior
Project
Manager,
John
Ciuzio
(“Ciuzio”),
copying
DeClara
and
Macerich’s senior manager and tenant coordinator Brian Lindsey
(“Lindsey”), (Def.’s 56.1 Stmt. ¶¶ 243, 260), informing them that
“[i]f a picket line was established you b[ear] the re[sponsibility]
of having our plant potentially shut down.
issues here.”16
We cannot have union
(May 21, 2014 Zito Email, Wheeler Decl. Ex. 70,
Docket Entry 68-70.)
When asked about his email, Zito testified
“[h]onestly, I don’t recall [whether there were comments made by
business agents about a picket line.]
probably was.
If I wrote it, then there
I don’t believe any of the [business agents] would
have mentioned that, except for . . . Labate.”
(Zito Dep. 40:19-
The email reads, in full, “John/Ken, Apparently we have some
big union issues with your build out. I was just unexpectedly
greeted with about 15 [business agents] that all had issues with
the subs on your job. Most notably, Local 3 - electricians as
well as carpenters, carting, laborers and painters. This mall
is a stand-alone power generator. If a picket line was
established you bare the reasonability of having our plant
potentially shut down. We cannot have union issues here. From
talking to the crowd I get the impression BD development is
going to have a hard time satisfying their requirements, but I
leave that to you to decide. These issues need to go away now.
Based on the severity and depth of this union grievance, through
this e-mail I suggest the job be put on hold until the issues
are resolved.” (May 21, 2014 Zito Email.)
16
41
41:3,
41:16-24
(agreeing
that
he
did
not
“have
a
specific
recollection of any of the [business agents] specifically using
the term ‘picket line,’ but [his] general belief is that, since
[he] used it in e-mail, it was most likely referenced by the
[business
agents,] . . . [and
m]ore
specifically,
by
Mike
Labate”).)
Zito also testified that while his email referenced a
plant shutdown, he did not believe it was likely that anyone
actually threatened a shutdown; rather, he was “extrapolating the
fact that if there was a picket line, there might be a plant
shutdown.”
(Zito Dep. 42:7-23.)
He testified that his reference
to “union issues” referred to “potential picket lines,” “[r]ats
being set up at the mall,” “[p]otential shutdown by honoring the
picket lines,” “materials disappearing,” and sabotage.
(Zito Dep.
42:24-43:25.)
In total, five or six different union representatives,
including those from the Carpenters’ Union17 and Local 3, expressed
concerns during their meeting with Zito.
¶¶ 298-302.)
(Def.’s 56.1 Stmt.
Additionally, Zito testified that it was “fair to
say that through these conversations [he] had with Local 79” and
the other business agents, if BD did not hire Local 79 laborers,
Plaintiff cites irrelevant testimony in support of its denial
that the Carpenters’ Union’s business agent told Zito that he
had an issue with BD using non-union carpenters, (Pl.’s 56.1
Resp. ¶ 300), so the Court deems the fact admitted.
17
42
“there were going to be problems, picket lines, rats, shutdowns,
things of that nature.”
4.
(Zito Dep. 47:17-48:8.)
The Shutdown
Macerich shut the job down because of labor issues from
May 21--the day of the grievance meeting--to May 27, 2014, and
work resumed on May 29, 2014.
(Def.’s 56.1 Stmt. ¶ 312.)
parties dispute which union’s actions led to the shutdown.
The
(Pl.’s
56.1 Stmt. ¶ 53; Def.’s 56.1 Resp. ¶ 53.)
Zito testified that he shut the Old Navy Job down
“[b]ecause of the issues between . . . Local 79 and BD,” (Zito
Dep. 54:20-55:20), and “[b]ecause there was pressure that an
imminent threat of a picket line and a rat would be put up,” (Zito
Dep. 57:14-58:14).
He also testified that “as long as BD wasn’t
doing work, [he] didn’t believe there would be any type of picket
line or job action by Local 79 or any other union,” which is what
he “recall[s] being communicated as . . . the action that Local 79
wanted [Macerich] to take.”
(Zito Dep. 58:21-59:7.)
However,
after the BCTC grievance meeting, Local 3 threatened to “lock [BD]
out by locking electrical panels,” and Macerich locked the Gap out
of an electrical room that BD needed to access. (Def.’s 56.1 Stmt.
¶¶ 310-11.)
In addition, Lauren Kruse (“Kruse”), the Gap’s
Director of Construction for the Northeast at the time, (Def.’s
56.1 Stmt. ¶ 259), testified that she believed that the shutdown
was “a[n] electrical union issue,” and that the “root of the issue”
43
of Macerich locking BD out of an electrical room “had to do with
a different union initially than Local 79,” (Kruse Dep., Labuda
Decl. Ex. P, Docket Entry 77-16, 13:10-22, 52:7-16).
After
reviewing Local 79’s grievance notice at her deposition, however,
she agreed that it was “fair to say that Local 79 was also involved
in that first labor issue with Macerich in terms of the possible
shutdown of the job.”
5.
(Kruse Dep. 52:18-53:16.)
Demolition Delays
The demolition phase of the Old Navy Job was delayed,
and BD blames Local 79’s conduct and interference for the bulk of
the delay.
Navy
Job
Specifically, while the parties agree that the Old
required
more
demolition
work
than
originally
anticipated, (Def.’s 56.1 Stmt. ¶ 376), they dispute whether Local
79 signatory All City needed “more men” to do the job and whether
Local 79’s failure to provide manpower constituted a “shutdown
and/or slowdown” related to Local 79’s dispute with BD.
56.1 Stmt. ¶¶ 363, 365; Pl.’s 56.1 Resp. ¶¶ 363, 365.)
(Def.’s
BD’s Weigel
testified that All City ultimately finished its work approximately
two (2) weeks behind schedule.
(Weigel Dep. 79:5-80:10, 86:3-10.)
BD’s Ross believed All City needed to supply more labor
to be able to finish the demolition on time, and he and three BD
employees admonished All City for falling behind schedule.
56.1 Stmt. ¶¶ 80-81.)
(Pl.’s
Ross testified that he spoke to a field
project manager three to five times and requested more workers on
44
the
jobsite,
and
that
he
also
informed
John
Rodopoulos
(“Rodopoulos”), All City’s president and sole owner, (Def.’s 56.1
Stmt. ¶ 359), that the manpower at the site “was not sufficient to
get the job done” in time, (Ross Dep. 58:4-60:24).
However,
Rodopoulos believed that he did not need more men for the job.
(Def.’s 56.1 Stmt. ¶ 364.)
Rodopoulos testified that he made a
request to Local 79 for one or two workers for a single night,
that he did not believe he needed the additional workers, and that
he did not believe his failure to get additional manpower affected
All City’s ability to complete its work on schedule. (Rodopoulos
Dep., Labuda Decl. Ex. B, Docket Entry 77-2, 44:4-18, 75:10-76:15.)
Ross testified that he believed BD had “trouble getting
[All City] labor to do the demolition” because of the “labor
issue.”
(Ross Dep. 57:13-58:7.)
He testified that he received
pushback from All City’s field project manager, who told him that
Local 79 was having difficulty supplying workers.
60:25-62:10.)
(Ross Dep.
Additionally, at BD’s request, All City wrote to BD
on June 2, 2014, stating, “As per your request, we are requesting
additional labor from union hall and they don’t have available
laborers.” 18
Rynkiewicz,
(Def.’s
however,
56.1
Stmt.
testified
¶¶
that
365,
378.)
there
are
Local
not
79’s
always
individuals on the hiring hall list “that are ready, willing, and
Local 79 has a “hiring hall” that maintains a list of laborers
seeking work. (Def.’s 56.1 Stmt. ¶ 19.)
18
45
able to go to actual jobs.”
(Rynkiewicz Dep. 91:2-9.)
Further,
even if the hiring hall did not have a match for BD, BD could have
used any worker it wanted, including a non-union worker.
Def.’s 56.1 Stmt. ¶ 24.)
night,
and
testified
Luann
that
Moreover, All City worked for BD at
Piecora
she
(See
(“Piecora”),
generally
did
not
Riteway’s
experience
Secretary,
problems
requesting men from Local 79’s hiring hall, except sometimes “on
weekends or night work.”
(Def.’s 56.1 Stmt. ¶ 375; Pl.’s 56.1
Stmt. ¶ 87; Def.’s 56.1 Resp. ¶ 87.)
However, Local 79’s Labate
testified that it “would never happen” that All City would “not be
able to get enough manning on” the Old Navy Job, since there are
many demolition workers available, and that “[m]ost of the demo
jobs are done at night.”
(Labate Dep. 71:11-72:7, 76:10-77:10.)
Overall, there were many delays at the Old Navy Job,
including those relating to permits, an asbestos investigation,
and a sprinkler shutdown, among others.
384-91.)
(Def.’s 56.1 Stmt. ¶¶
The Gap’s Kruse testified that the Local 79 union issues
“with respect to a lack of manpower” was “definitely one of the
factors” that slowed demolition progress.
(Kruse Dep. 85:18-25.)
However, she also testified that with all of the issues at the Old
Navy Job--including those caused by BD and others caused by
unforeseen
site
conditions
(Kruse
Dep.
132:21-133:13)--union
issues were not “the predominant reason” for the job delays, (Kruse
Dep. 164:14-18). Conversely, the Gap’s Ciuzio testified that Local
46
79’s conduct was the biggest contributor to the delays at the Old
Navy Job.
D.
(Ciuzio Dep. 226:9-22.)
July 2014 Activity and General Conditions Work
BD intended to use its own employees to perform general
conditions cleanup on the Old Navy Job, but Local 79 also wanted
the work.
(Def.’s 56.1 Stmt. ¶¶ 324-25.)
On July 1, 2014, Flavoni emailed Zito about setting up
a conference call regarding “Local 79’s latest threat towards”
Macerich of a “picket line,” and Zito responded that the matter
now required Lindsey’s involvement.
Decl. Ex. 72, Docket Entry 68-72.)
(July 1, 2014 Emails, Wheeler
Zito testified that he thought
Macerich needed to meet with “BD and/or Gap” to help resolve the
issue, (Zito Dep. 74:20-75:4), and representatives of the Gap, BD,
and Macerich had a conference call about union harmony on July 1,
2014, which Flavoni recorded, (Def.’s 56.1 Stmt. ¶ 317; Pl.’s 56.1
Resp. ¶ 317).
Lindsey told the group “[t]he unions are stating
that their calls are not being returned. . . .
So you guys need
to resolve this, and you need to return the unions’ calls or
we[’]re going to have a picket line and we’re going to have to
shut the job site down.”
(Def.’s 56.1 Stmt. ¶ 317; Pl.’s 56.1
Resp. ¶ 317; July 1, 2014 Audio Tr. at 2.)
He told Flavoni that
“[w]here you stand right now is if a picket line is formed, or a
rat is blown up, either one of them, we will have to shut down the
job.
If that occurs on Friday or it occurs a month from now,
47
that’s just a requirement.
issue.”19
We shut it down until you resolve the
(Def.’s 56.1 Stmt. ¶ 321.)
1.
Local 79’s Offer
In an attempt to resolve the Local 79 issue, Flavoni
called Labate on July 3, 2014, and Labate suggested that BD use a
paymaster
to
provide
a
Local
79
laborer
to
perform
general
conditions work at the Old Navy Job “three days a week . . . unless
you need him more.”
(Def.’s 56.1 Stmt. ¶¶ 325-26.)
During the
call, Labate did not dispute the allegation that he threatened
Macerich with picket lines.
(July 3, 2014 Audio Tr., Rosenblum
Decl. Ex. 10, Docket Entry 69-10, at 2.)
When asked about these
alleged threats of picketing at his deposition, Labate testified
that he “never threatened the mall,” though he acknowledged that
“the action of putting up a picket line” is “normal,” rather than
“significant”
to
him.
(Labate
Dep.
305:17-306:17.)
Labate
testified that it is fair to say that because putting up a picket
line is “not that big of an event” to him, he might have said, “if
we don’t get things resolved, I’m going to turn it over to the
organizers and they are going to do whatever they are going to do.
They
may
do
picketing.”
the
rat,
they
may
do
leafleting,
(Labate Dep. 308:8-309:4.)
they
may
do
Labate also speculated
Zito also testified that if a picket line had formed, he would
have locked BD out of the Old Navy Job. (Pl.’s 56.1 Stmt.
¶ 125.)
19
48
that Macerich might have told BD that Labate threatened picketing
“to shake [BD] up.”
2.
(Labate Dep. 307:4-22.)
A Short-Lived Compromise
On July 8, 2014, Macerich, Gap, and BD representatives
again discussed the Local 79 issue, and Macerich emphasized that
it wanted the “public image of having union harmony” and was highly
averse to picket lines and rats.
(Def.’s 56.1 Stmt. ¶¶ 327-28.)
Separately, Lindsey informed Kruse that Macerich considered both
picketing and the inflation of a rat to be very bad, and Kruse was
concerned that any union disputes would cause the Gap to violate
the union harmony clause in its lease.
(Def.’s 56.1 Stmt. ¶¶ 330-
31.)
On July 16, 2014, the Gap agreed to a compromise to pay
a Local 79 laborer to work one day per week at the Old Navy Job
for a cost not to exceed $4,500.
(Def.’s 56.1 Stmt. ¶ 333.)
BD
then used Linear to provide a laborer to perform general conditions
work at the Old Navy Job in July and August 2014, for a total cost
of $1,975.60.
(Def.’s 56.1 Stmt. ¶¶ 334, 343.)
Flavoni explained
to Macerich that BD’s use of a Local 79 laborer for one day per
week is expected to “satisfy Local 79 for the remainder of the
project.”
(Def.’s 56.1 Stmt. ¶ 335.)
Labate, however, testified
that Flavoni anticipated that work would be slow in the beginning,
and that Labate had suggested that Flavoni “establish [Local 79]
labor on the job, . . . see if you like them.
49
Start off a couple
of days a week, it goes to three.
If it’s three days, great.
If
it goes to five, even better . . . but start them out a couple,
two days a week to see how it goes.”
3.
(Labate Dep. 228:10-25.)
Renewed Tensions
On August 13, 2014, Smith, who took over for Labate,
(Smith Dep. 46:21-25), spoke to Flavoni and expressed concern that
the Old Navy Job had “picked up” but that a Local 79 laborer was
working only one day per week.
(Def.’s 56.1 Stmt. ¶ 346.)
Smith
asked if BD could use the laborer three times per week, and Flavoni
declined.
(Def.’s 56.1 Stmt. ¶¶ 346-47.)
Flavoni’s decision.
Kruse agreed with
(Aug. 14, 2014 Emails, Joseph Decl. Ex. 18,
Docket Entry 78-18.)
On August 14, 2014, BD and Linear exchanged emails
disputing whether a Local 79 laborer on the Old Navy Job was
entitled to two (2) hours of “show up” time.
¶¶ 348-50.)
(Def.’s 56.1 Stmt.
Then, on August 19, 2014, Linear informed BD that
“[a]s of today I still have not received a response in regards to
my email below.
In light of the circumstances surrounding between
[sic] BD Development and Local 79, effective immediately Linear
Contracting will no longer be providing the Local 79 Laborer for
the Old Navy Kings Plaza project.”
(Def.’s 56.1 Stmt. ¶ 351.)
Flavoni spoke to Linear about this issue on August 26, 2014, and
Linear referenced the two (2) hours of show-up time and explained
50
that it had ceased providing services because it did not receive
a response to its email.20
(Def.’s 56.1 Stmt. ¶¶ 355-56.)
Smith told Flavoni on August 19, 2018, that Linear was
“pulling off the job” and asked if BD could have a laborer at the
Old Navy Job “two or three days a week.”
(Aug. 18, 2014 Audio
Tr., Rosenblum Decl. Ex. 18, Docket Entry 69-18, at 1-2.)
Flavoni
declined, and Smith responded “I’m going to have to throw a line
up over there. . . .
If Linear pulls out, I’m going to have to
throw a line up there where I have the other bidders . . .
out there.
coming
And then we have a discussion in front of the job sites
as [far] as moving the manpower off the job until they put labor
on board.”
(Aug. 18, 2014 Audio Tr. at 2-3.)
Flavoni asked if
Smith meant “picket line,” and Smith responded “[a] grievance,
yeah.”
(Aug. 18, 2014 Audio Tr. at 3.)
Smith then asked that
Flavoni “call the client and ask the client” if it would agree to
having a Local 79 laborer on for more than one day per week.
(Aug. 18, 2014 Audio Tr. at 1, 4.)
Finally, Flavoni asked “how
much time are you giving me before you put up the picket line,”
and Smith answered “[s]ir, I’ll give you to the end of this
week. . . .
I don’t want to put a picket line up.”
(Aug. 18,
2014 Audio Tr. 4.)
Plaintiff maintains that “Linear is not credible.”
56.1 Resp. ¶¶ 355-56.)
20
51
(Pl.’s
However,
when
asked
at
his
deposition
about
his
references to a “picket line” during this call, Smith testified
that “I made a mistake . . . .
I said a [BCTC] grievance. . . .
Acutally, I didn’t mean a picket line.”
153:22.)
(Smith Dep. 152:15-
He testified further that he did not correct Flavoni’s
statement regarding a picket line “[b]ecause basically I already
knew I wasn’t going to throw a picket line up.
throw a [BCTC] grievance.”
I was going to
(Smith Dep. 154:5-20.)
Similarly, he
testified that he referenced other trades coming to the “line”
because
“[i]t
was
a
grievance. . . .
Throwing
up
wouldn’t . . . entail having business agents to be there.”
Dep. 155:10-156:8.)
a
line
(Smith
Smith also testified that he asked Flavoni to
relay the conversation to the client, the Gap, for the purpose of
trying to get a Local 79 laborer on the Old Navy Job two to three
times per week.
testified
that
(Smith Dep. 156:4-157:20.)
he
spoke
to
Lindsey
directly
Finally, Smith
and
“mentioned”
“setting up a picket line,” though he later clarified that “[i]t
was never any line or anything mentioned.
I told him that there
may be a strong possibility that there may be another [BCTC]
grievance that would be with BD.”
(Smith Dep. 196:5-12, 201:24-
202:12.)
After Flavoni spoke with Smith, he informed Kruse and
Ciuzio of the Gap that Linear was “pulling out because they cannot
provide a laborer for one day per week” and that Smith “said that
52
if we don’t put a laborer on for 3 days per week . . . they will
be ‘putting up a line.’”
(Aug. 19, 2014, Flavoni Email, Wheeler
Decl. Ex. 44, Docket Entry 68-44, at 2-3.)
Kruse forwarded that
email to Lindsey informing him that the Gap would not agree to
Local 79’s request, and Lindsey responded, “I will be reaching out
to [Local 79] this morning.
You met their agreement and they need
to live with it. Don’t worry about any further action.” (Aug. 19,
2014 Flavoni Email.)
That afternoon, BD also emailed the Gap and Macerich
representatives, informing them of his call with Smith.
56.1 Stmt. ¶ 110.)
(Pl.’s
Zito and Ciuzio understood the reference to
“put up a line” to mean picketing or putting up a picket line, and
Ciuzio was concerned that Local 79’s picketing could cause Macerich
to interfere with work at the Old Navy Job.
(Pl.’s 56.1 Stmt. ¶¶
110-11; Def.’s 56.1 Resp. ¶¶ 110-11; Ciuzio Dep. 116:21-117:2.)
Ciuzio testified that he felt the Gap was “being taken advantage
of” by Local 79.
4.
(Ciuzio Dep. 118:21-119:7.)
Resolution
While the parties disagree regarding the manner in which
the conflict was resolved, they do not dispute that it ultimately
was resolved without BD using a Local 79 laborer any more often
than it had been.21
(Pl.’s 56.1 Stmt. ¶ 113; Def.’s 56.1 Resp.
BD asserts that Local 79 began to picket the Gap’s corporate
office and other Gap locations as a direct result of Local 79’s
21
53
¶ 113; Ciuzio Dep. 126:3-13.)
Once Lindsey no longer had any
concerns about Local 79, neither did the Gap.
(Pl.’s 56.1 Stmt.
¶ 138; Def.’s 56.1 Resp. ¶ 138.)
5.
Carpenters’ Union
During the same general time, BD was experiencing issues
with the Carpenters’ Union.
On July 2, 2014, representatives from
the Gap and BD had a conference call during which they discussed
issues with the Carpenters’ Union, and Flavoni indicated that BD
shifted its “carpentry crew to the night shift to try to avoid-be out-of-sight, out-of-mind.”
(Def.’s 56.1 Stmt. ¶ 322; Pl.’s
56.1 Resp. ¶ 322; July 2, 2014 Audio Tr., Rosenblum Decl. Ex. 9,
Docket Entry 69-9, at 4-5, 8.)
Additionally, in its complaint
against the Carpenters’ Union in a separate lawsuit, BD alleged
that it threatened the Gap and Macerich with shutting down the Old
“being forced to back down on the Old Navy [Job].” (Pl.’s 56.1
Stmt. ¶ 118.) The testimony it cites, however, does not
support, and seemingly contradicts, its assertion. (Ciuzio Dep.
130:18-131:22 (“I can’t specifically say [the Local 79 activity]
was in relationship to the Kings Plaza project . . . .”); Ciuzio
Dep. 126:15-129:5 (testifying about Aug. 2014 Kruse Email to
Macerich, Wheeler Decl. Ex. 23, Docket Entry 68-23 (Local 79 is
“picketing our offices but I don’t believe there is anything
further you can do as they are referencing another project”));
Ciuzio Dep. 154:17-155:16 (testifying about Aug. 2014 Kruse
Email to Gap, Wheeler Decl. Ex. 27, Docket Entry 68-27 (“Gap
Outlet Flatbush Ave[.] Local 79 began picketing and handing out
flyers when they reached out to Allright construction and
demanded they be put on the project[.] When we turned them down
they started setting the rat up in different Gap locations
throughout Manhattan. They are now in front of 55
Thomas . . . .”)).)
54
Navy Job and putting up a picket line at Kings Plaza.
(Def.’s
56.1 Stmt. ¶ 464.)
E.
BD Loses Its Place on the Gap’s Approved Vendor List
The Gap removed BD from its approved vendor bid list, a
decision Kruse approved. (Def.’s 56.1 Stmt. ¶ 398.) She testified
that her decision to remove BD from the list “was more about how
[BD] handled the situation with [Local 79] as opposed to the union
issue
itself,”
and
that
“there
were
other
issues
completely
unrelated to the union.” (Kruse Dep. 66:24-67:23.) However, Kruse
expressed frustration with Local 79’s conduct and acknowledged
that union issues played a “small part” in the decision to “let BD
Development go.”
(Kruse Dep. 81:1-82:22.)
She testified that she
felt bullied by Local 79 and that it felt like extortion for Local
79 to demand to add labor to the Old Navy Job.
(Kruse Dep. 97:5-
98:8.)
Date”
Additionally,
the
“Store
Effective
had
to
be
extended, in part, because of union issues and “labor actions (work
stoppages),” (Pl.’s 56.1 Stmt. ¶ 105; Def.’s 56.1 Resp. ¶ 105),
and Kruse testified that she attributed a two-week delay to the
union and that the Old Navy Job was a “high risk” project partially
because of union issues, (Kruse Dep. 66:17-23, 77:23-80:2).
Ciuzio testified that he expressed concern to Kruse
about using BD again in the future, citing BD’s change order
management, scheduling challenges, and potential quality issues-BD’s work was better than average, a “B+,” but not “top notch”-55
but acknowledged that the “union protest activity” could have
impacted those issues.
174:8.)
He
also
(Ciuzio Dep. 147:3-9, 150:2-15, 173:10-
testified
that
BD’s
cost
control
measures
“definitely needed improvement,” due in part to union issues, but
“[m]ore having to do with . . . not fully capturing the scope of
work in the bid.”
(Ciuzio Dep. 148:16-149:21.)
A number of other factors and events contributed to the
Gap’s decision to remove BD from the approved vendor list.
For
example, in June 2014, BD submitted a change order to the Gap
regarding
the
demolition.
additional
cost
to
use
(Def.’s 56.1 Stmt. ¶ 409.)
Local
79
laborers
for
Kruse was surprised by
and unhappy with BD’s request, and its decision to submit the
change order rather than to absorb the cost influenced her decision
to remove BD from its approved vendor list.
¶¶ 411-13.)
(Def.’s 56.1 Stmt.
Similarly, in October 2014, BD refused to reimburse
Macerich for a $5,000 invoice regarding a fire alarm, and the Gap
felt that BD’s refusal was unprofessional and contributed to the
its decision to remove BD from the list.
424-25.)
Moreover,
while
Ciuzio
(Def.’s 56.1 Stmt. ¶¶
believed
BD’s
communication
skills with respect to work progress and the union issues to be
“outstanding,” (Ciuzio Dep. 147:10-148:12), Kruse testified that
she was dissatisfied with BD’s communication, which was another
reason she removed BD from the list, (Kruse Dep. 127:10-24).
56
An additional reason motivating Kruse’s decision to
remove BD, among “other issues completely unrelated to the union,”
was BD’s failure to win bids for other jobs.
¶¶ 414-15.)
(Def.’s 56.1 Stmt.
Before Kruse removed BD, it bid on seven projects and
lost all but the Old Navy Job.
(Def.’s 56.1 Stmt. ¶ 416.)
BD
appears to have been the lowest bidder on only one of the projects
that it bid on, a Banana Republic job at 105 Fifth Avenue, New
York, New York (the “Banana Republic Job”).
(Def.’s 56.1 Stmt. ¶¶
417-18; Pl.’s 56.1 Resp. ¶¶ 417-18; Ciuzio Dep. 144:19-145:12.)
However, Kruse testified that she had decided by June 2, 2014 to
recommend Schimenti Construction Company (“Schimenti”) for the
Banana
Republic
Job
because
the
job
was
in
a
“high-profile
location” and Schimenti had “an all-inclusive number” and “the
right team to do the work.”
(Def.’s 56.1 Stmt. ¶ 458; Kruse Dep.
104:17-23, 106:23-107:16.) Kruse created a report on the selection
of a contractor for the Banana Republic Job, and she testified
that BD’s ratings reflected in the report were not influenced by
what happened at the Old Navy Job, but only based on “how [BD]
showed up for this project.”
(Def.’s 56.1 Stmt. ¶ 454; Kruse Dep.
113:6-116:14.) Kruse testified that BD did not give her confidence
that it had considered schedule strategy or cost controls, that it
did not have any “proactive suggestions,” and that she “wasn’t
convinced they had a lot of experience with projects like this.”
(Kruse Dep. 114:23-115:11.)
She testified further that BD’s union
57
issues did not play a role in the Gap’s selection of Schimenti
over BD.
(Kruse Dep. 107:4-22.)
Ciuzio testified that generally,
union issues similar to those at the Old Navy Job do not influence
the
Gap’s
decision
to
award
(Ciuzio Dep. 134:19-135:15.)
work
to
particular
contractors.
Additionally, while BD seems to have
been the lowest bidder on the job by $30,000, (Def.’s 56.1 Stmt.
¶ 462), many of BD’s clients do not award jobs to the lowest
bidder, (Def.’s 56.1 Stmt. ¶ 422), and a $30,000 difference would
not be considered significant (Def.’s 56.1 Stmt. ¶ 462).
Finally, Defendant notes that the Gap awarded another
construction project to a non-union general contractor, All-Right
Construction, and Local 79 inflated a rat and distributed leaflets
at Gap stores regarding its use of All-Rite.
¶¶ 439-42, 444-46.)
(Def.’s 56.1 Stmt.
However, the Gap did not remove All-Rite from
its list of approved vendors after that activity.
(Def.’s 56.1
Stmt. ¶ 447.)
VI.
Procedural History
Plaintiff
filed
its
Complaint
on
August
15,
2014,
asserting four claims for damages against Defendant under Section
303 of the Labor Management Relations Act (“LMRA”), as amended,
29 U.S.C. § 187. (Compl., Docket Entry 1, ¶ 1.) Plaintiff alleges
that Defendant is liable for conduct in violation of Section
8(b)(4)(ii)
of
the
National
Labor
Relations
Act
(“NLRA”),
29 U.S.C. § 158(b)(4), including Defendant’s alleged unfair labor
58
practices at the BofA Job, the Brookdale Job, and the Old Navy
Job.22
(Compl. ¶¶ 1, 71-94.)
Defendant answered on September 12,
2014. (Def.’s Answer, Docket Entry 8.) Defendant filed its motion
for summary judgment on January 31, 2017, and Plaintiff filed its
motion for summary judgment on the issue of liability on February
1, 2017.
(See generally Def.’s Mot.; Pl.’s Mot..)
Defendant and
Plaintiff filed their briefs in support of their motions on
February 1 and February 2, 2017, respectively, their opposition
briefs on March 1 and March 2, 2017,23 respectively, and their
reply briefs in further support of their motions on March 15,
2017.24
DISCUSSION
I.
Plaintiff’s Misrepresentations of the Record
At the outset, the Court notes that the resolution of
the parties’ motions has been significantly delayed by Plaintiff’s
frequent
misrepresentations
and
mischaracterizations
of
the
Plaintiff’s Complaint does not contain allegations regarding
the Mount Sinai Job.
23 Plaintiff filed a substitute brief in opposition to
Defendant’s motion on March 6, 2017, which this Court will treat
as Plaintiff’s opposition for present purposes. (See Mar. 6,
2017 Letter, Docket Entry 96.)
22
Citations to the parties’ briefs are as follows: Defendant’s
Brief (Def.’s Br., Docket Entry 82); Plaintiff’s Brief (Pl.’s
Br., Docket Entry 85); Defendant’s Opposition Brief (Def.’s Opp.
Br., Docket Entry 92); Plaintiffs’ Opposition Brief (Pl.’s Opp.
Br., Docket Entry 96-1); Defendant’s Reply Brief (Def.’s Reply
Br., Docket Entry 97); and Plaintiff’s Reply Brief (Pl.’s Reply
Br., Docket Entry 98).
24
59
record.
For instance, Defendant asserted that “[a]t its interview
for the Banana Republic project, the Gap told BD it was looking
for [a] bidder who had longevity and experience with the brand.”
(Def.’s 56.1 Stmt. ¶ 451.)
Plaintiff responded:
“Admit, but note
that . . . [the Gap] rejected BD because of its union issues with
Local 79.”
(Pl.’s 56.1 Resp. ¶ 451.)
However, the testimony
supporting this proposition provides only that “[t]he Gap invited
BD to bid on the Banana Republic job at 105 Fifth Avenue.” (Flavoni
Aff., Docket Entry 101, ¶ 114.)
This is only one of many instances
of Plaintiff’s misrepresentation of the record.
Plaintiff also frequently denied allegations with string
citations
to
presumably,
irrelevant
defense
testimony,
counsel--to
forcing
sift
through
the
Court--and
the
voluminous
record, only to conclude that the evidence that Plaintiff cited
does
not
contradict
Defendant’s
assertion.
For
example,
as
detailed in supra note 9, Plaintiff attempted to obfuscate the
timing of its selection of AMG at the Brookdale Job with citations
to
evidence
that
did
not
support
its
denial
of
Defendant’s
allegation.
In light of the liberties it took with the record, the
Court directs Plaintiff’s counsel to review its duties under
Federal Rule of Civil Procedure 11(b) and to ensure that all future
submissions comply with their obligations under the Rule.
60
II.
Legal Standard
Summary
judgment
will
be
granted
where
the
movant
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
In
determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
Once
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
Giglio
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).
Conclusory allegations or denials will not defeat
summary judgment.
Id.
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
61
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
“The same standard applies where, as here, the parties
filed
cross-motions
for
summary
judgment . . . .”
Morales
v.
Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing
Terwilliger v. Terwilliger, 206 F.3d 240, 244 (2d Cir. 2000)).
“[E]ach party’s motion must be examined on its own merits, and in
each case all reasonable inferences must be drawn against the party
whose motion is under consideration.”
Morales, 249 F.3d at 121
(citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir.
1981)).
III. The LMRA and NLRA
Under Section 303(a) of the LMRA, it is unlawful “for
any labor organization to engage in any activity or conduct defined
as an unfair labor practice in” Section 8(b)(4) of the NLRA.
29 U.S.C. § 187(a).
In relevant part, Section 8(b)(4) provides:
It shall be an unfair labor practice for a
labor organization or its agents-- . . . .
(4) (i) to engage in, or to induce or encourage
any individual employed by any person engaged
in commerce or in an industry affecting
commerce to engage in, a strike or a refusal
in the course of his employment to use,
manufacture, process, transport, or otherwise
handle or work on any goods, articles,
62
materials, or commodities or to perform any
services; or
(ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry
affecting commerce, where in either case an
object thereof is-- . . . .
(B) forcing or requiring any person to cease
using, selling, handling, transporting, or
otherwise dealing in the products of any other
producer, processor, or manufacturer, or to
cease doing business with any other person, or
forcing or requiring any other employer to
recognize or bargain with a labor organization
as the representative of his employees unless
such labor organization has been certified as
the representative of such employees under the
provisions of section 159 of this title:
Provided, That nothing contained in this
clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any
primary strike or primary picketing.
(D) forcing or requiring any employer to
assign particular work to employees in a
particular
labor
organization
or
in
a
particular trade, craft, or class rather than
to employees in another labor organization or
in another trade, craft, or class, . . . .
29 U.S.C. § 158(b)(4) (emphasis in original).
Section 303(b)
provides a private right of action for anyone “injured in his
business or property by reason o[f] any violation of subsection
(a).”
29 U.S.C. § 187(b).
A.
Section 8(b)(4)(B) and 8(b)(4)(D)
A union engages in “primary activity” when it targets a
“primary employer”--an employer with whom it has a dispute--and
engages in “secondary activity” when it targets a third party or
63
a “secondary” or “neutral” employer--an employer with whom it does
not have a dispute.
Capitol Awning Co., 698 F. Supp. 2d at 322
(citing C&D Restoration, Inc. v. Laborers Local 79, No. 02-CV9448, 2004 WL 736915, at *3 (S.D.N.Y. Apr. 5, 2004)).
A union
that places enough pressure on a secondary employer “might coerce
a secondary employer to change its own business relationship with
a primary employer, in such a way that is detrimental to the
primary employer.”
C&D Restoration, Inc., 2004 WL 736915, at *3.
In so doing, the union succeeds in pressuring the “primary employer
indirectly,
demands.
until
that
employer
capitulates
to
the
union’s
Such conduct runs counter to the public policy expressed
in the NLRA.”
Id.
Thus, Section 8(b)(4)(B), commonly called the
“‘secondary boycott’” provision of the NLRA, proscribes certain
secondary activities.
Capitol Awning Co., 698 F. Supp. 2d at 322
(quoting Carrier Air Conditioning Co. v. N.L.R.B., 547 F.2d 1178,
1188 (2d Cir. 1976)).
Specifically, it “‘prohibits a union from
engaging in or inducing or encouraging strikes and picketing
against an employer with whom it does not have a dispute, with an
object of forcing that secondary employer to cease doing business
with a primary employer.’”
Capitol Awning Co., 698 F. Supp. 2d at
322 (quoting N.L.R.B. v. Local 3, Int’l Bhd. of Elec. Workers,
AFL-CIO, 730 F.2d 870, 874–75 (2d Cir. 1984)).
Under Section (8)(4)(D), it is an unfair labor practice
“‘for a labor organization to induce the employees of any employer
64
to strike in the hopes of forcing an employer to assign particular
work to employees in a particular labor organization.’”
C&D
Restoration, Inc., 2004 WL 736915, at *4 (quoting Int’l Tel. &
Tel. Corp., Commc’ns Equip. & Sys. Div. v. Local 134, Int’l Bhd.
of Elec. Workers, AFL-CIO, 419 U.S. 428, 430–31, 95 S. Ct. 600, 42
L. Ed. 2d 558 (1975)).
unions
both
have
While the typical example “is when two
collective
bargaining
agreements
with
one
employer, and each seeks to obtain the disputed work for its own
members
through
activities
proscribed
by
this
section,”
C&D
Restoration, Inc., 2004 WL 736915, at *4, Section 8(b)(4)(D) “also
applies to neutrals . . . and there is no indication that Congress
intended
either
[Section
8(b)(4)(B)
or
8(b)(4)(D)]
to
have
exclusive application” N.L.R.B. v. Local 825, Int’l Union of
Operating Engineers, AFL-CIO, 400 U.S. 297, 306, 91 S. Ct. 402,
408, 27 L. Ed. 2d 398 (1971).
Thus, as explained by the Second
Circuit, where a union “in striking and picketing against [a
neutral
employer],
sought
to
coerce
an
employer
to
assign
particular work to members of a particular union, . . . . there
was reasonable cause to believe there had been a violation of
[§] 8(b)(4)(D).”
Kaynard for & on Behalf of N.L.R.B. v. Local
282, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers
of Am., 576 F.2d 471, 476 & n.8 (2d Cir. 1978).
Second
Circuit
held
that
where
the
union
In Kaynard, the
violated
the
“overlap[ping]” provisions Section 8(b)(4)(B) and 8(b)(4)(D), the
65
remedy was to prohibit “any strike or picketing against [the
neutral employer] which has as its objective the coercion of [the
primary] either to alter its employment practices concerning onsite [work] or to leave the site.”
Id. at 476 n.7, 478 (“Because
[the union’s] actions against [the neutral employer] have largely
been aimed at achieving reassignment of work currently done by
[the primary employer’s] employees, the injunction of the district
court against [§] 8(b)(4)(D) violations reaches, in large part,
potential violations of [§] 8(b)(4)(B) as well.”); see also Local
825, 400 U.S. at 304-306, 91 S. Ct. 402, 27 L. Ed. 2d 398 (holding
that
Section
8(b)(4)(B)
applied
to
coercive
conduct
directed
toward secondary employer even where union primarily demanded that
employers reassign work).
B.
Elements of Section 8(b)(4) Claim
Plaintiffs
alleging
LMRA
claims
based
on
unlawful
conduct under Section 8(b)(4) must establish three elements.
The
first relates to the nature of the conduct, the second to the
purpose of the conduct, and the third to causation.
Tru-Art Sign
Co. v. Local 137 Sheet Metal Workers Int’l Ass’n, 573 F. App’x 66,
67 (2d Cir. 2014).
1.
Nature of Conduct
First, relating “to the nature of the union’s conduct,”
the plaintiff must show that “the union or its agents engaged in,
induced,
or
encouraged
a
refusal
66
to
perform
services
(a
§ 8(b)(4)(i) claim), or threatened, coerced, or restrained any
person (a § 8(b)(4)(ii) claim).”
Id. (emphasis in original)
(citing Carrier Air Conditioning Co., 547 F.2d at 1189–91).
a.
“A
Section 8(b)(4)(i)
union
violates
§ 8(b)(4)(i)
when
it
induces
or
encourages the employees of a secondary employer to strike against
or to refuse to handle goods for an employer” for an unlawful
purpose.
Capitol Awning Co., 698 F. Supp. 2d at 327 (citing
N.L.R.B. v. Servette, Inc., 377 U.S. 46, 50–54, 84 S. Ct. 1098, 12
L. Ed. 2d 121 (1964); Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg., 485 U.S. 568, 584, 108 S. Ct. 1392, 1402, 99 L. Ed. 2d 645
(1988)).
“[C]laims
filed
under
§ 8(b)(4)(i)
are
limited
to
instances in which a union targets the employees of a secondary
employer and encourages those employees to strike or to refuse to
perform their duties for that secondary employer.”
Id. at 327-28
(citing Labor and Employment Law, Ch. 21, § 21.02[1] (2009))
(emphasis in original).
b.
Section
Section 8(b)(4)(ii)
8(b)(4)(ii)
targets
threatens, coerces, or restrains.
union
conduct
29 U.S.C. § 158(b)(4)(ii).
that
Not
all conduct directed toward a secondary employer is prohibited
under Section 8(b)(4)(ii); rather, the “touchstone for unlawful
activity under Section 8(b)(4)(ii) is its coercive nature, whether
the activity is secondary picketing, boycotting, or other acts.”
67
Capitol Awning Co., 698 F. Supp. 2d at 323 (citing N.L.R.B. v.
Fruit & Vegetable Packers Local 760, 377 U.S. 58, 68, 84 S. Ct.
1063, 1069, 12 L. Ed. 2d 129 (1964)).
The Supreme Court found
that “the phrase ‘to threaten, coerce, or restrain’ in Section
8(b)(4) must be interpreted narrowly to avoid conflict with the
First
Amendment”
and
held
that
‘peaceful
handbilling,
unaccompanied by picketing, urging a consumer boycott of a neutral
employer,’ was not conduct proscribed by Section 8(b)(4)[(ii)].”
W2005 Wyn Hotels, L.P. v. Abestos, Lead & Hazardous Waste Laborers’
Local 78, No. 11-CV-1249, 2012 WL 955504, at *2 (S.D.N.Y. Mar. 8,
2012) (quoting DeBartolo, 485 U.S. at 584, 108 S. Ct. 1392 at 1402,
99 L. Ed. 2d 645). The Second Circuit noted that Congress intended
“‘to outlaw a fairly broad range of economic pressure tactics,’”
Capitol Awning Co., 698 F. Supp. 2d at 323 (quoting Carrier Air,
547 F.2d at 1191), but “‘more than mere persuasion is necessary to
prove a violation of § 8(b)(4)(ii),’” id. (quoting DeBartolo, 485
U.S. at 578, 108 S. Ct. at 1399, 99 L. Ed. 2d 645).
Moreover,
“Section 8(b)(4) does not prohibit a union from informing secondary
employers of its intention to picket a primary employer or from
picketing a primary employer at a site under the control of a
secondary employer, so long as the picketing is primary in nature.”
Id. (citing N.L.R.B. v. Ironworkers Local 433, 850 F.2d 551, 554–
55 (9th Cir. 1988)).
68
“‘[I]n cases involving ambiguous statements[,] the line
between lawful persuasion and unlawful threats is not easily
drawn.’”
Id. (quoting BE & K Constr. Co. v. United Bhd. of
Carpenters & Joiners, 90 F.3d 1318, 1331 (8th Cir. 1996)).
Courts
consider “the objective circumstances surrounding” the statements,
“rather than the subjective interpretation of the listener,” to
determine whether they constitute unlawful “threats, coercion, or
restraints” under Section 8(b)(4).
Co., 90 F.3d at 1331).
Id. (citing BE & K Constr.
“Thus, where inconsistent or conflicting
evidence exists about what message was intended, there may be a
fact question to be decided by a jury.”
Id. (citing BE & K Constr.
Co., 90 F.3d at 1331).
2.
Purpose of Conduct
Second,
relating
“‘to
the
purpose
of
the
[u]nion’s
conduct,’” the question is “whether ‘under all the surrounding
circumstances, the [u]nion’s objective was preservation of work
for [the boycotted or threatened employer’s] employees . . . or
whether the . . . [union’s activities] were tactically calculated
to
satisfy
union
objectives
elsewhere.’”
Id.
(emphasis
in
original) (quoting Nat’l Woodwork Mfrs. Ass’n v. N.L.R.B., 386
U.S.
612,
644,
87
S.
Ct.
1250,
18
L.
Ed.
2d
357
(1967)).
“‘[W]hether a union’s conduct had an improper object is a question
of fact; moreover, that object need not be the only one.’”
Del
Turco v. Speedwell Design, 623 F. Supp. 2d 319, 348 (E.D.N.Y. 2009)
69
(alteration in original) (quoting Bedding, Curtain, & Drapery
Workers Union v. N.L.R.B., 390 F.2d 495, 499 (2d Cir. 1968)).
However, if a plaintiff cannot show that the defendant engaged in
prohibited conduct, its claims fail regardless of whether the
defendant had an unlawful secondary objective.
See Laborers Int’l
Union of N. Am., Local 872 & NAV-LVH, LLC, 363 NLRB No. 168, n.14
(Apr. 29, 2016).
In this action, BD alleges that Local 79’s
improper objectives were to coerce secondary employers to stop
using BD or to force BD to assign work to Local 79 laborers.
“Allegations of secondary boycotting are most difficult
to unravel when they involve the actions and intentions of a labor
union picketing at a work site where more than one employer hires
laborers represented by more than one union, often known as common
situs picketing.” Fla. Sugar Mktg. & Terminal Ass’n, Inc. v. Local
No. 3, Int’l Longshoremen’s Ass’n, AFL-CIO, 668 F. Supp. 173, 179
(S.D.N.Y. 1987).
In common situs situations, courts have weighed
the evidence under the NLRB’s decision in Sailor’s Union of the
Pacific, AFL and Moore Dry Dock Co., 92 N.L.R.B. 547 (1950) (“Moore
Dry Dock”).
Florida Sugar Mktg., 668 F. Supp. at 179; see Eber
Bros. Wine & Liquor Corp. v. Teamsters Local Union No. 118, No.
02-CV-6229, 2005 WL 290142, at *3-4 (W.D.N.Y. Feb. 7, 2005)
(analyzing union’s conduct under Moore Dry Dock factors).
The
Moore Dry Dock factors suggest that common situs picketing is
primary and lawful if:
70
(a) The picketing is strictly limited to times
when the situs of dispute is located on the
secondary employer’s premises;
(b) at the time of the picketing the primary
employer is engaged in its normal business at
the situs;
(c) the picketing is limited to places
reasonably close to the location of the situs;
and
(d) the picketing discloses clearly that the
dispute is with the primary employer.
Florida Sugar Mktg., 668 F. Supp. at 179 (quoting Moore Dry Dock,
92 N.L.R.B. at 549).
Indicia of an improper motive include:
(1) the picketing union beforehand makes known
to other unions its intent to picket;
(2) the picketing union knows that it is the
policy of other unions to honor all pickets on
the jobsite and not to cross such picket
lines;
(3) an understanding between a secondary
employer and the picketing union that work
interruptions will cease if and when a picket
is removed;
(4) threats, veiled or otherwise, by picketing
union that a secondary employer was not using
good business judgment in doing business with
the primary employer;
(5) picketing only at jobsites where other
unions are working and not at jobsites where
only non-union workers are employed, and where
picketing is never done at the primary
employer’s home office; and
(6) the failure of a picketer to answer
inquiries of others as to the purpose of the
picketing.
Eber Bros. Wine & Liquor Corp., 2005 WL 290142, at *4 (quoting
Florida Sugar Mktg., 668 F. Supp. at 179).
71
3.
Causation
Third, relating to causation, the plaintiff must show
that the “unlawful conduct was a proximate cause of the damage.”
Tru-Art
Sign
Co.,
573
F.
App’x
at
67
(citing
Landstrom
v.
Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 65,
476
F.2d
1189,
1195
(2d
Cir.
1973)).
Put
differently,
a
“[p]laintiff must show that there is a causal nexus between the
unlawful
secondary
plaintiff.
activity
and
the
injury
suffered
by
the
A causal nexus requires a showing that the unlawful
activity was a ‘substantial factor or material cause’ of the
plaintiff's injury.”
Del Turco, 623 F. Supp. 2d at 348 (quoting
C&D Restoration, Inc., 2004 WL 736915, at *4).
IV.
The Bank of America Job
A.
The Parties’ Arguments
Plaintiff argues that (1) Defendant unlawfully coerced
secondary
employers
CBRE
and
BofA
(2)
with
the
purpose
of
pressuring them to end their relationship with Plaintiff or to
force Plaintiff to assign work to Local 79 laborers, (3) which
resulted in additional costs in hiring a Local 79 laborer and
caused CBRE to remove BD from its approved vendors list for two
years.
(Pl.’s Br. at 22, 29, 36, 40-41, 44-45).
Specifically,
Plaintiff argues that Local 79 unlawfully picketed at the BofA Job
by inflating a rat, leafletting, blocking the entrance to the
72
jobsite, and incited a member of the Carpenters’ union to engage
in a sympathy strike.
Defendant
(Pl.’s Br. at 29.)
argues
that
liability as a matter of law.
Plaintiff
cannot
establish
It contends that it did not picket,
but simply passed out leaflets and inflated a rat, and that even
if it momentarily blocked a BD employee from entering the jobsite-which it denies happened--the blockage was de minimis.
Br. at 37.)
(Def.’s
Moreover, it argues that BD cites no admissible
evidence that Local 79 ever contacted BofA or that it requested
that a Carpenters’ Union worker not “cross the line.”
at 38; Def.’s Opp. Br. at 21.)
(Def.’s Br.
Defendant argues that BD employee
Lapidus’ testimony regarding carpenter DePetro’s statements is
inadmissible hearsay and that DePetro testified to having no memory
of a conversation with Lapidus.
(Def.’s Br. at 38.)
Further,
Local 79 argues that there is a factual dispute as to Local 79’s
objective.
(Def.’s Br. at 29).
Finally, Defendant contends that
BD’s injuries are tied only to what it argues was legal conduct-inflating a rat--and are unrelated to any alleged unlawful conduct,
like blocking the jobsite or encouraging DePetro to refuse to work.
(Def.’s Br. at 42.)
B.
Application
1.
Conduct
There are issues of fact that preclude summary judgment
in either party’s favor.
With respect to Local 79’s conduct,
73
Plaintiff cites the testimony of Lapidus that there was picketing
at the site, that he felt intimidated by Local 79’s activity, and
that there was a confrontation with Local 79; namely, he testified
that Local 79 agents were standing in front of an entrance and
blocked him from entering or opening the jobsite for several
minutes, after initially refusing to let him pass.25
27:25-28:5,
30:13-31:19,
34:15-16.)
Defendant,
(Lapidus Dep.
citing
the
testimony of two Local 79 business agents, denies that there was
The Court has considered Defendant’s argument that even if it
occurred, the blocking was de minimis and not coercive in light
of its brevity and effect on a single employee. (Def.’s Br. at
37.) However, other subcontractors needed Lapidus to open the
jobsite before they could enter, (Def.’s 56.1 Stmt. ¶ 89; Pl.’s
56.1 Resp. ¶ 89), so any blockage would have affected more than
just BD’s employee. In any event, the cases Defendant cites in
support of its argument are inapposite. They involve nonconfrontational, very brief blockages (or no blockages at all).
(Def.’s Br. at 37 n.122 (citing Laborers Int’l Union of N. Am.,
Local 872 & NAV-LVH, LLC, 363 NLRB No. 168 at 4 (finding any
blockage that may have occurred to be de minimis where, among
other things, there was no evidence of an actual blockage or
confrontation); In re United Bhd. of Carpenters & Joiners of
Am., Local Union No. 1506, 355 NLRB 797, 806 & n.30 (2010)
(finding that “peaceful, stationary holding of banners
announcing a ‘labor dispute’” was not coercive and noting that
“if union agents block ingress or egress,” the NLRB will find it
coercive unless it is “not significant, i.e., it is de
minimis”); In re Metro. Reg’l Council of Philadelphia &
Vicinity, United Bhd. of Carpenters & Joiners of Am., AFL-CIO,
335 NLRB 814, 814 n.1, 823, 825-827 (2001) (finding no Section
8(b)(4) violation where a picketer blocked an employee from
entering neutral gate for five (5) seconds), enf’d, 50 F. App’x
88 (3d Cir. 2002); United Union of Roofers, Local 135, 266 NLRB
321, 324-25 (1983) (finding no Section 8(b)(4) violation where a
picketer walked across a road causing driver to “stop
momentarily”).).
25
74
picketing, that they blocked anyone from entering the jobsite,26
and that they did anything other than peacefully protest with
leaflets and an inflated rat.
(Lee Dep. 17:9-18:8, 80:6-8; Zecca
Dep. 64:9-65:3, 109:12-16; Lee Decl. ¶ 2; Zecca Decl. ¶ 2.)
Viewing the facts in the light most favorable to Plaintiff,27 a
jury could conclude that Local 79’s activity violated Section
8(b)(4)(ii).28
See W2005 Wyn Hotels, L.P., 2012 WL 955504, at *2-
3 (denying motion to dismiss where the defendants distributed
literature and used a rat prop, but where plaintiffs also alleged
that defendants “[i]mped[ed] the travel of employees, guests and
deliveries to and from the hotels” and “[p]ickete[ed] the front
To the extent that Plaintiff is asserting a separate claim
under Section 8(b)(4)(i) based on the blockage, (Pl.’s Opp. Br.
at 4), the factual dispute surrounding the blockage precludes
summary judgment.
26
In their briefs, the parties discuss whether Local 79’s
inflation of a rat was protected by the First Amendment and
whether it could nonetheless be deemed “coercive” under Section
8(b)(4). (See, e.g., Pl.’s Br. at 37-39; Def.’s Br. at 31-33.)
However, because Plaintiff alleged that Local 79 engaged in
activity other than and in addition to simply inflating a rat,
the Court need not reach the parties’ First Amendment arguments.
See N.L.R.B. v. Local 3, Int’l Bhd. of Elec. Workers, 471 F.3d
399, 407 n.7 (2d Cir. 2006) (“declin[ing] to reach the legality
of the inflatable rat balloon under all circumstances”).
28 There is an issue of fact regarding whether Defendant engaged
in unlawful conduct even without considering Lapidus’ and
Giovinazzi’s testimony about their conversations with DePetro
and Ceciliani, respectively. Because of the issues of fact with
respect to Local 79’s conduct--and, as described below, its
purpose--the Court need not resolve the hearsay issues raised by
BD’s employees’ testimony at this time. The parties will have
the opportunity to fully brief the issues in motions in limine
before trial.
27
75
entrances . . . and
engag[ed]
in
confrontational
conduct
with
people seeking to enter into and do business with the” hotels
(internal quotation marks omitted) (alterations in original)).
Conversely,
viewing
the
facts
in
the
light
most
favorable to Defendant, a jury could find that Local 79’s activity
was
not
coercive.
“[P]eaceful
handbilling,
unaccompanied
by
picketing, urging a consumer boycott of a neutral employer” is not
proscribed by Section 8(b)(4), DeBartolo, 485 U.S. at 584, 108 S.
Ct. at 1402, 99 L. Ed. 2d 645, and a jury could conclude that the
inflation of a rat, without more, was not prohibited conduct, see,
e.g., Laborers Int’l Union of N. Am., Local 872 & NAV-LVH, LLC,
363
NLRB
No.
168
(noting
that
the
NLRB
has
concluded
that
“stationary union inflatables” “at a secondary/neutral employer’s
premises
notifying
constitute
the
picketing
public
or
of
a
disruptive
labor
or
dispute
otherwise
does
not
coercive
nonpicketing conduct violative of Section 8(b)(4)(ii)(B) of the
Act.” (citations omitted)); cf. Local 3, 471 F.3d at 403, 407 n.7
(upholding finding that union violated Section 8(b)(4) where rat
was
inflated
in
conjunction
with
picketing,
delays,
and
disruptions of secondary employer, but “declin[ing] to reach the
legality of the inflatable rat balloon under all circumstances”).
Thus, a reasonable jury could conclude that Local 79’s handbilling
and inflation of a rat, without any additional conduct, was not
coercive conduct under Section 8(b)(4)(ii).
76
2.
Purpose
There are issues of fact as to whether Local 79’s
objective
was
unlawful;
for
example,
whether
it
intended
to
pressure CBRE or BofA to stop using BD or to force BD to reassign
work to Local 79 laborers or simply to lawfully inform others that
BD’s workers were being “exploited.”
Local 79 told BD that it
could resolve the activity at the job by using a Local 79 laborer,
(Def.’s 56.1 Stmt. ¶ 97), and when BD hired a Local 79 laborer,
Local 79 ended its protest activity, (Def.’s 56.1 Stmt. ¶ 100;
Pl.’s 56.1 Resp. ¶ 100).
Plaintiff also highlights DePetro’s
testimony that as a member of the Carpenters’ Union, he would defer
to his office regarding whether to honor another union’s job
actions. (DePetro Dep. 29:3-23.) According to Defendant, however,
Local 79 commenced its job action against BD at the BofA Job
because it was concerned about BD’s lack of an apprenticeship
program and felt that BD’s employees were being exploited under
dangerous
working
conditions.
Rynkiewicz Dep. 60:15-21.)
(Def.’s
56.1
Stmt.
¶¶
83-84;
It handed out leaflets stating “Shame
on You BD Development . . . .
BD Development is allowing the
exploitation of construction workers at their Bank of America
Project at 95 Wall St.”
¶ 91.)
(Def.’s 56.1 Stmt. ¶ 91; Pl.’s 56.1 Resp.
Defendant also cites DePetro’s testimony that if he
encountered a job action at a site, he would work until his office
told him to stop.
(DePetro Dep. 29:19-23.)
77
Additionally, the
parties dispute whether a secondary employer knew of or was
pressured by Local 79’s allegedly unlawful conduct.
(Deliteris
Dep. 82:24-84:13 (testifying that he told a CBRE representative
about Local 79’s alleged conduct at the BofA Job); Def.’s 56.1
Stmt.
¶
102
(“Neither
CBRE
nor
[BofA]
was
involved
in
the
resolution.”); Lee Dep. 80:14-82:21 (denying contacting BofA,
CBRE, or NYC Acoustics regarding Local 79’s activity).)
Thus, issues of fact prevent the Court from determining
that Local 79’s purpose was unlawful.
For example, weighing the
Moore Dry Dock factors, though Local 79’s conduct continued while
BD was on the site and the leaflets suggested that BD was the
subject of the dispute, Local 79 began its activity before BD
arrived on site and the leaflets referenced Bank of America.
In
addition, while Flavoni testified that Local 79 never picketed at
BD’s home office, (Flavoni Aff. ¶ 81), there are questions of fact
regarding other indicia of improper motive. For instance, relating
to
DePetro’s
statements,
the
parties
dispute
whether
“the
picketing union [knew] that it is the policy of other unions to
honor all pickets on the jobsite and not to cross such picket
lines.”
Eber Bros. Wine & Liquor Corp., 2005 WL 290142, at *4.
3.
Causation
There is no genuine dispute that Local 79’s conduct was
a proximate cause of BD’s using Local 79 labor at the BofA Job.
(Pl.’s 56.1 Stmt. ¶ 178; Def.’s 56.1 Resp. ¶ 178.)
78
However, with
respect to BofA’s recommendation to exclude BD from high-profile
jobs, CBRE’s Wilde testified that she did not specifically know
why BofA made that request, but that she thought it was because
BofA “felt [BD was] too small” and that there was “too much risk
with issues like they were having”--“protest activity by Local
79.”
(Wilde Dep. 88:2-23.)
This ambiguous testimony is based on
CBRE’s “understanding” of BofA’s decision, and thus the cause of
BofA’s
recommendation
is
an
issue
for
trial.
Moreover,
as
discussed above, there are issues of fact as to whether Local 79’s
prohibited 29 or
whether
it
had
an
unlawful
activities
were
objective.
Therefore, summary judgement is DENIED as to the BofA
Job.
Defendant argues that only damages flowing from illicit
conduct are recoverable and that only its lawful inflation of a
rat and leafletting, and not any alleged blocking or refusal to
work, caused BD harm. (Def.’s Br. at 42.) Issues of fact
defeat Defendant’s argument. For example, Wilde testified
broadly to Local 79’s “protest activity,” and not simply to the
rat as the perceived cause of BofA’s reluctance to use BD.
(Wilde Dep. 88:2-23.) Similarly, there are issues of fact as to
what specific conduct led to BD’s use of a Local 79 laborer.
(See Apr. 2014 Flavoni Email at 1 (informing CBRE that BD
arrived at 95 Wall Street, “found a rat and picket line,” and
resolved the “situation”); Zecca Dep. 62:8-63:22 (testifying
that he received a phone call from BD to “look to go resolve
it,” without specifically identifying the rat as the concern)
(emphasis added).)
29
79
V.
The Mount Sinai Job
A.
The Parties’ Arguments
Plaintiff
argues
that
Local
79
(1)
threatened
and
picketed Mount Sinai (2) with the objective of pressuring Mount
Sinai to force BD to assign work to a Local 79 laborer, (3) which
caused BD to use Local 79 labor and Mount Sinai not to award future
work to BD.
(Pl.’s Br. at 20-21.)
Defendant contends that there
is no evidence that Local 79 took any action at Mount Sinai, let
alone unlawful action.
(Def.’s Br. at 35-36.)
Further, Defendant
argues that even if it were responsible for the conduct alleged,
the conduct did not violate Section 8(b)(4), nor did it cause
Plaintiff to lose future work.
B.
(Def.’s Br. at 36, 41.)
Local 79’s Connection to the Conduct
Plaintiff cites Giovinazzi’s deposition testimony and
Flavoni’s affidavit testimony in support of its contention that
Local 79 contacted Mount Sinai’s Chang or “picketed” at Mount
Sinai.
¶ 471.)
(See, e.g., Pl.’s 56.1 Stmt. ¶ 203; Pl.’s 56.1 Resp.
Giovinazzi
testified
that
she
believed
that
the
superintendent at the Mount Sinai Job called her to tell her that
“Local 79 showed up,” though she acknowledged that she did not
know the difference between Local 79 and the Carpenters’ Union.
(Giovinazzi Dep. 43:6-45:14.)
However, Giovinazzi’s testimony
regarding Local 79’s presence at the Mount Sinai Job, offered for
its truth, is inadmissible hearsay that cannot defeat summary
80
judgment.
Chansamone v. IBEW Local 97, 523 F. App’x 820, 822 n.4
(2d Cir. 2013) (“We do not consider [plaintiff’s] testimony that
co-workers told him that [a hiring supervisor] would not hire him
‘as an Asian,’ because that testimony is inadmissible hearsay.”)
(citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp.,
769 F.2d 919, 924 (2d Cir. 1985)).
Thus, the issue is whether Plaintiff can connect Local
79 to the union activity at the Mount Sinai Job.
To do so,
Plaintiff cites the Flavoni Affidavit, which it seems to have
created in response to Defendant’s Local Rule 56.1 Statement. (See
Vitale
Decl.,
Docket
Entry
81,
¶¶
8-18.).
In
the
Flavoni
Affidavit, Flavoni testified, among other things: “I understand
that Local 79 conducted picketing at the . . . Mt. Sinai job
site[ ],”
(Flavoni
Aff.
¶
58),
“Local
79
was
the
union
who
contacted Chang and threatened to picket Mt. Sinai,” (Flavoni Aff.
¶ 117), and “Local 79 actually picketed Mt. Sinai and inflated a
rat where Local 79 agents were picketing,” (Flavoni Aff. ¶ 118).
Similarly,
Flavoni
testified
that
“[w]hen
Local
79
agents
discussed the Mt. Sinai Job Site or any threats or union activity
directed at Mt. Sinai, I informed the Local 79 agents that I would
relay
their
message
(Flavoni Aff. ¶ 45.)
to
Mt.
Sinai
and
its
representatives.”
Plaintiff’s transparent attempt to use the
Flavoni Affidavit to rescue its Mount Sinai Job claims--which were
not in the Complaint--ultimately fail, as set forth below.
81
“Conclusory allegations cannot create a genuine issue of
fact,” Clayborne v. OCE Bus. Servs., 381 F. App’x 32, 35 (2d Cir.
2010) (citing Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.
1995)), “nor may a party ‘create an issue of fact by submitting an
affidavit in opposition to a summary judgment motion that, by
omission
or
addition,
contradicts
the
affiant’s
previous
deposition testimony,’” id. (quoting Hayes v. N.Y. City Dep’t of
Corr., 84 F.3d 614, 619 (2d Cir. 1996)) (citing Raskin v. Wyatt
Co.,
125
regarding
F.3d
55,
relaying
63
(2d
Cir.
communications
1997)).
Flavoni’s
between
Local
79
testimony
and
Mount
Sinai, (Flavoni Aff. ¶¶ 42, 45), is directly contradicted by his
deposition testimony that he never spoke to anyone at Local 79
regarding the Mount Sinai Job and was unsure if others from BD
had, (Flavoni Dep. 84:22-85:10), and as a result, the Court
disregards it.
See Clayborne, 381 F. App’x at 35.
Similarly, the
Court will not consider the Flavoni Affidavit to the extent that
he testifies that BD hired Local 79 laborers “[a]s a result of
pressure by representatives of Mt. Sinai” and a warning from Mount
Sinai’s Cain.
(Flavoni Aff. ¶¶ 117-19.)
That testimony directly
contradicts his prior deposition testimony that BD opted to use a
Local 79 laborer before speaking to Cain and in reaction to BD’s
superintendent’s
understanding
that
there
had
been
Local
79
activity during previous jobs at Mount Sinai. (Flavoni Dep. 91:2493:7, 95:15-21.)
However, the Court will consider the testimony
82
in the Flavoni Affidavit that “Local 79 was the union who contacted
Chang and threatened to picket Mt. Sinai” and “Local 79 actually
picketed Mt. Sinai and inflated a rat where Local 79 agents were
picketing.”
C.
(Flavoni Aff. ¶¶ 117-18.)
Application
Even if Flavoni’s testimony connecting Local 79 to the
union conduct at the Mount Sinai Job is true and even if Local 79
took
coercive
action
at
the
Mount
Sinai
Job
for
an
illicit
secondary purpose, Plaintiff cannot establish that Local 79’s
conduct caused it any harm.
As discussed above, BD selected a
Local 79 laborer for the Mount Sinai Job--before talking to Mount
Sinai--because BD superintendent Conroy understood that Local 79
had
picketed
Mount
Sinai
in
the
past,
not
because
threatened Chang or picketed the Mount Sinai Job.
91:24-93:7, 95:15-21.)
Local
79
(Flavoni Dep.
The costs for hiring a Local 79 laborer
are thus not attributable to Chang’s threats or Local 79 having
“actually
picketed”
in
connection
with
the
Mount
Sinai
Job.
(Flavoni Aff. ¶¶ 117-18.)
Further, Chang testified that Mount Sinai’s decision not
to award work to BD after the Mount Sinai Job was rooted in issues
with change orders and being “held hostage by” BD, not any kind of
union activity.
(Chang Dep. 61:12-22, 62:15-18, 75:11-15, 96:2-
97:17, 118:25-119:8.)
Chang explicitly testified that he “didn’t
get the connection” between “not inviting BD to bid [on] job[s]
83
and the rat,” and that his “decision to no longer invite BD to
submit bids was based upon purely [his] experience and interaction
with
BD.”
(Chang
Dep.
96:24-97:17.)
Additionally,
Flavoni
acknowledged that Mount Sinai considered firing BD mid-job over
disputes about change orders, (Flavoni Dep. 168:22-169:22), and
during the job, BD told Mount Sinai that it did not want to build
a relationship, but that it wanted to finish its job and “be
gone.”30
(Def.’s 56.1 Stmt. ¶ 486.)
Flavoni’s testimony that “Local 79’s conduct affected
Mt. Sinai’s assessment of BD because Mt. Sinai never awarded BD
any more projects following what occurred at the Mt. Sinai job,”
(Flavoni Aff. ¶ 123), does not create an issue of fact as to why
Mount Sinai ended its relationship with BD.
First, even if Local
79’s conduct abstractly “affected Mt. Sinai’s assessment of BD,”
(Flavoni Aff. ¶ 123), that testimony does not contradict or
undermine Chang’s testimony regarding his specific reasons for not
soliciting bids from BD--not union issues, but because of Mount
Sinai’s concerns about change orders and feeling that BD held it
hostage.
(Chang Dep. 96:2-97:17, 118:25-119:8.)
Second, the
testimony cannot defeat summary judgment “with assertions that are
That Flavoni apparently changed his mind about Mount Sinai
after the job is of no moment. (Feb. 2014 Flavoni Email, Kataev
Decl. Ex. A, Docket Entry 94-1.) The fact that BD wished to
revive the relationship says nothing of Mount Sinai’s motivation
for not awarding work to BD.
30
84
conclusory or based on speculation.”
Casciani v. Nesbitt, 392 F.
App’x 887, 888 (2d Cir. 2010) (quoting Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008));
see Trustees of Local 807 Labor-Mgmt. Health & Pension Funds v.
River Trucking & Rigging, Inc., No. 03-CV-3659, 2005 WL 2290579,
at *6 (E.D.N.Y. Sept. 20, 2005) (finding that conclusory testimony
in affidavits could not defeat summary judgment “because, standing
alone, they simply do not raise a genuine issue of material fact”)
(citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.
Ct. 3177, 3188, 111 L. Ed. 2d 695 (1990)).
Flavoni
testified
that
he
did
not
know
At his deposition,
which
factors
Chang
considered in deciding whether to solicit bids from particular
contractors and did not discuss with Chang why Mount Sinai and BD
no longer worked together, but “think[s]” Local 79’s actions
contributed
to
Chang’s
decision.
(Flavoni
Dep.
171:3-21.)
Contrary to his affidavit testimony, Flavoni’s understanding of
Mount Sinai’s motivation is not based on “personal knowledge of
the facts,” (Flavoni Aff. ¶ 4), but rather, mere speculation about
what Flavoni thought, (Flavoni Dep. 171:3-21).
Clayborne, 381 F.
App’x at 35 (quoting Hayes, 84 F.3d at 619) (citing Raskin, 125
F.3d at 63).
Additionally, in his affidavit, Flavoni essentially
testified that because Mount Sinai no longer awards work to BD,
Local 79’s conduct, rather than any other circumstance at the Mount
Sinai Job, must have affected Mount Sinai’s view of BD.
85
Flavoni
cites no specific facts in support of this understanding, which is
unsurprising given that he did not discuss the matter with Mount
Sinai.
(Flavoni Dep. 171:8-21.)
Thus, no reasonable jury could conclude that Local 79’s
alleged unlawful conduct was “a substantial factor or material
cause to” BD’s injuries, and BD may not recover for them.
Restoration, Inc., 2004 WL 736915, at *4.
See C&D
In light of the above,
with respect to the Mount Sinai Job, Defendant’s motion is GRANTED
and Plaintiff’s claims are DISMISSED.
VI.
The Brookdale Job
A.
The Parties’ Arguments
Regarding the Brookdale Job, Plaintiff argues that (1)
Local 79 threatened to picket and actually picketed Brookdale (2)
with the purpose of pressuring Brookdale to either force BD off
the job or to assign work to Local 79 laborers, (3) which resulted
in damages when BD (a) hired a Local 79 signatory for demolition
work, (b) hired a Local 79 signatory for general conditions work,
and (c) was overlooked on future job opportunities with Brookdale.
(Pl.’s Br. at 29, 32-33, 36, 39, 41, 44-46.)
Defendant contends
that it did not picket or threaten to picket Brookdale, (Def.’s
Br. at 33-35), that there is a dispute as to Local 79’s purpose at
the Brookdale Job, (Def.’s Opp. Br. at 29), and that Local 79’s
actions at the Brookdale Job did not damage BD.
42-43.)
86
(Def.’s Br. at
B.
Application
1.
With
Conduct
respect
to
Local
79’s
allegedly
coercive
and
threatening conduct at Brookdale, clear issues of fact preclude
resolution in either party’s favor.
First, the parties dispute whether Local 79 engaged in
prohibited picketing at the Brookdale Job.
For example, Plaintiff
highlights Local 79’s attendance sheets from its campaign that
label the activity a “picket line” and cites Deliteris’ testimony
that Local 79 agents were “walking back and forth on the sidewalk”-arguably patrolling--and handing out leaflets near the rat. 31
(Def.’s 56.1 Stmt. ¶ 194; Pl.’s 56.1 Resp. ¶¶ 172, 194; Deliteris
Dep. 93:7-95:17.)
Defendant cites testimony from the Local 79
organizer who completed the attendance sheets that he filled them
out in error and that Local 79 did not picket Brookdale.
56.1 Stmt. ¶¶ 197-98.)
(Def.’s
Defendant claims its activity was limited
to leafleting and the inflation of a rat, and points to the
testimony of four Brookdale employees that they did not witness
picketing.
(Def.’s 56.1 Stmt. ¶¶ 187, 169-74.)
Therefore, there
are genuine issues of material fact regarding whether Local 79’s
activities rose to the level of coercive picketing.
See, e.g.,
As discussed at supra note 27, because Plaintiff alleged that
Defendant engaged in conduct in addition to the mere inflation
of a rat, the Court need not reach the parties’ First Amendment
arguments.
31
87
DeBartolo, 485 U.S. at 578, 108 S. Ct. at 1399, 99 L. Ed. 2d 645
(finding that leafletting was not coercive where it was peaceful
and there was no “picketing” or “patrolling”).
Second, the parties dispute whether Local 79 threatened
Brookdale in violation of Section 8(b)(4)(ii). For example, before
the
alleged
picketing
began,
Local
79’s
Williamson
called
Brookdale to have it “look into the way [it was] doing business by
hiring credible contractors”--unlike BD--“who treat their workers
with dignity and respect.”
(Pl.’s 56.1 Stmt. ¶ 229; Def.’s 56.1
Resp. ¶ 229; Williamson Dep. 28:9-19.)
During BD’s work at the
Brookdale Job, Local 79’s Labate told Flavoni that BD’s use of its
own laborers was “going to be an issue, unless you want to sign
with” Local 79.
(May 14, 2014 Audio Tr. at 5.)
Further, Labate
said in situations like at Brookdale, where he is “not getting
anywhere,” his boss will tell him to “put a line up.”
2014 Audio Tr. at 6.)
(May 14,
However, when asked about that conversation
at his deposition, he agreed that the “line” could mean “doing
whatever, the rat, the leafleting, [or] picketing,” and that it
would be “put up to draw attention to the job and to try to get
some sort of resolution . . . [f]rom the contractor.”
Dep. 283:8-284:19.)
Labate also told Flavoni that Local 79’s
“organizing department does those picket lines.”
Audio Tr., at 1.)
(Labate
(May 15, 2014
Flavoni then relayed his impressions of his
conversations with Labate to Brookdale’s Connolly.
88
(May 2014
Flavoni Email, Wheeler Decl. Ex. 1, Docket Entry 68-1.) Similarly,
Local 79’s Smith later told Flavoni that he was “trying to make
sure we don’t have a problem here.”
Def.’s 56.1 Resp. ¶ 284.)
(Pl.’s 56.1 Stmt. ¶ 284;
Smith and Connolly also spoke, but
Connolly testified that Smith did not threaten him with rats,
placards, flyers, “anything like that”--Smith just called about
“getting men onto the job.”
(Connolly Dep. 161:18-162:3.)
Smith
spoke to Flavoni again and warned that Local 79 would “fight it
tooth and nail” if it had to, a message that Smith understood
Flavoni would convey to Connolly.
(Oct. 17, 2014 Audio Tr., at 1,
3.)
Because (1) many of the above statements are ambiguous,
(2) there are issues of fact as to whether Local 79’s conduct was
coercive, and (3) there is inconsistent and conflicting evidence
about what message Local 79 intended to convey, there are issues
of fact regarding whether Local 79’s statements rose to the level
of unlawful threats.
See Capitol Awning Co., 698 F. Supp. 2d at
325-26 (finding issue of fact for jury regarding whether union’s
statements were threatening).
2.
Purpose
While Local 79 may have had more than one purpose for
its
activities--for
informing
the
public
example,
of
beginning
Brookdale’s
a
way
“publicity
of
doing
campaign
business,”
(Williamson Dep. 63:16-25)--there is no genuine dispute that Local
89
79 directed its action against Brookdale partly for the purpose of
“achieving
reassignment
of
work
currently
done
by
[BD’s]
employees.” Kaynard, 576 F.2d at 476 n.7. That improper objective
need not have been Local 79’s only objective to be proscribed.
Del Turco, 623 F. Supp. 2d at 348 (quoting Bedding, Curtain, and
Drapery Workers Union, 390 F.2d at 499).
It is clear that at least one of Local 79’s objectives
was to achieve reassignment of work, based on the following:
(1)
Local 79 engaged in its activity at Brookdale Hospital, rather
than at the Brookdale Job site where BD was working, (Def.’s 56.1
Stmt. ¶ 169; Pl.’s 56.1 Resp. ¶ 169); (2) one of Local 79’s leaflets
brought
Brookdale
into
the
fray,
(Brookdale
Leaflet
2
(“Brookdale’s theory to hire exploitive contractors to cut costs
may potentially result in workers being exposed to unsafe work
conditions that can lead to them becoming patients at Brookdale
Hospital. We hope Brookdale doesn’t have the same theory for their
Medical
Practices”);
(3)
Local
79
agents
called
Brookdale’s
Connolly directly about “getting men onto the job,” (Connolly Dep.
161:25-162:3); (4) Local 79 agents called Flavoni, “claiming” work
and
taking
issue
“jurisdictional
with
work,”
who
BD’s
then
performance
relayed
of
their
Local
messages
79’s
to
Connolly, (May 15, 2014 Audio Tr., at 1-2; Pl.’s 56.1 Stmt. ¶ 287;
Def.’s 56.1 Resp. ¶ 287); and (5) Local 79 (initially) ceased its
activity once BD opted to use Local 79 labor for general conditions
90
work, (Williamson Dep. 56:3-24).
Thus, no genuine dispute exists
that under all the surrounding circumstances, an objective--if not
the only objective--of Local 79’s activities was improper under
Section 8(b)(4).
3.
See Kaynard, 576 F.2d at 476 n.7.
Causation
Because there are issues of fact regarding whether Local
79’s conduct was coercive or threatening, summary judgment may not
be granted in Plaintiff’s favor for any damages flowing from that
conduct.
However, if Plaintiff cannot show that Defendant’s
conduct caused a particular harm, Plaintiff may not recover for
that harm regardless of whether Defendant’s conduct was improper.
See C&D Restoration, Inc., 2004 WL 736915, at *4.
Defendant argues that BD arranged to use AMG, a Local 79
signatory, for demolition at the Brookdale Job not because of Local
79’s activity, which began after BD opted to use AMG, but because
the price was reasonable and Brookdale had instructed BD to use
woman-owned businesses like AMG. (Def.’s Br. at 12, 43.) Further,
it contends “there is no evidence that Brookdale ever required BD”
to hire AMG to provide a Local 79 laborer for general conditions
work, highlighting that BD did so the same day the NLRB dismissed
BD’s allegations against Local 79.
(Def.’s Br. at 43.)
With
respect to the AMG laborers, it also argues that BD “admits that
it passed the costs of construction on to Brookdale.”
at 43.)
(Def.’s Br.
Finally, Defendant maintains that there is no evidence
91
that BD lost any future work with Brookdale because of Local 79.
(Def.’s Br. at 43.)
There are issues of fact as to whether BD used AMG for
demolition as a result of Local 79’s conduct.
BD’s Capozza
testified that he believed BD did not use its own workforce for
demolition because it did not have enough manpower at the time,
(Capozza Dep. 46:3-21), but Deliteris testified that BD decided to
use AMG after “there was pressure put on Brookdale,” (Deliteris
Dep. 34:16-36:25).
That Local 79 had not yet inflated the rat
when BD selected AMG is not dispositive; Local 79 contacted
Brookdale before erecting the rat, and a jury could conclude that
Local 79’s pressuring Brookdale--which, as discussed above, may
have been proscribed--resulted in BD’s hiring AMG.
Additionally,
it is unclear from the record whether BD or Brookdale paid for AMG
to perform demolition work.
There is no genuine issue of material fact, however,
that Local 79’s conduct was a cause of BD’s decision to hire AMG
to perform general conditions work.
Brookdale pressured BD to
resolve its dispute with Local 79, (see Pl.’s 56.1 Stmt. ¶¶ 24950, 254; Connolly Dep. 69:24-70:14), and Williamson testified that
BD used Local 79 laborers for general conditions work as a result
of its action at Brookdale, (Williamson Dep. 56:3-24).
The NLRB’s
dismissal, which may have led BD to hire Local 79 laborers when it
saw its grievances would not be redressed, cannot be separated
92
from Local 79’s activity.
However, it is again unclear whether
Brookdale or BD paid the additional cost for AMG to provide general
conditions laborers.
Finally, the Court finds that no reasonable jury could
conclude that BD lost the ICU Job because of Local 79’s activities
at Brookdale.
Brookdale’s Fast and Connolly both testified that
they would use BD for future work and that Local 79’s activities
did not lead them to have concerns about BD. (Connolly Dep. 28:1013; Fast Dep. 114:9-17.)
Fast testified that he invited BD to bid
on the ICU Job, (Fast Dep. 95:18-96:13), and Connolly testified
that BD did not get the job because it was not the lowest bidder,
(Connolly Dep. 123:7-124:14).
Fast testified that BD did not win
the ICU Job because “[t]hey were on the higher end of the bid,”
(Fast Dep. 96:20-23), that he did not consider the labor dispute
with Local 79 in deciding whether to award the work to BD, (Fast
Dep. 96:14-23), and that he would be willing to solicit bids from
BD on jobs in the future, (Fast Dep. 114:5-17).
Additionally,
when asked whether protest activity from Local 79 influenced
Brookdale’s decision not to award the job to BD, Connolly testified
that he would not “direct anybody[ ] not to select . . . BD based
on this experience [with Local 79] that happened here.”
(Connolly
Dep. 124:3-14.)
Fast’s
testimony
that
he
would
consider
Local
79’s
activity to be a negative factor in deciding whether to award BD
93
work
in
the
future,
(Fast
Dep.
97:14-19,
114:24-115:7),
and
Flavoni’s speculative testimony that he has “reason to believe
that Brookdale no longer awards BD work as a result of Local 79’s
conduct,” (Flavoni Aff. ¶ 89), does not change the result.
It is
undisputed that with respect to awarding the ICU Job specifically,
Brookdale did not consider Local 79’s activities and awarded the
job to the lowest bidder, which was not BD.
However,
there
is
an
issue
of
fact
as
to
whether
Brookdale excluded BD from any additional work at the hospital;
Flavoni’s testimony that it “has placed bids on other projects for
Brookdale since the completion of the [Brookdale Job], and has not
been awarded any work thus far,” (Flavoni Aff. ¶ 88), conflicts
with Fast’s testimony that Brookdale has invited a bid for only
one other project since the Brookdale Job, (Fast Dep. 95:18-96:13).
For the foregoing reasons, with respect to the Brookdale
Job, Plaintiff’s motion is DENIED, Defendant’s motion is GRANTED
IN PART and DENIED IN PART, and BD’s claim for damages for its
failure to win the ICU Job is DISMISSED.
BD may seek damages for
its remaining claims, including the additional cost of using Local
79 laborers, if it can prove that it incurred such costs. Further,
the Court finds that an objective of Local 79’s conduct was
improper and that Local 79’s conduct proximately caused BD to use
a Local 79 laborer for general conditions work, though questions
of fact preclude resolution of whether the conduct was lawful.
94
VII. The Old Navy Job
A.
The Parties’ Arguments
Plaintiff contends that Local 79 (1) threatened Macerich
and the Gap with picketing at Kings Plaza on several occasions,
(2) with the purpose of pressuring them to force BD off the job or
to have BD assign work to Local 79 laborers, (3) which led to (a)
BD’s removal from the Gap’s approved vendors list, (b) its failure
to win bids on other projects, and (c) its increased costs in
hiring Local 79 laborers for demolition and general conditions
work.
(Pl.’s Br. at 31, 36, 44-47.)
Defendant argues that even
if it had an unlawful objective, the evidence does not support the
claim that Local 79 threatened Macerich or the Gap,32 and in any
event, that its alleged threats did not cause BD’s damages.
(Def.’s Br. at 29, 39-40, 44-47.)
B.
Application
1.
Conduct
With respect to Local 79’s alleged threats of unlawful
conduct, issues of material fact are pervasive.
For example,
Labate testified that before the job began, he contacted Macerich
regarding BD’s work on the Old Navy Job, and said “you have issues
because they are not a [Local 79] signatory.” (Labate Dep. 174:19-
However, Defendant concedes in its opposition brief that there
are issues of fact with respect to whether it threatened
secondary employers at the Old Navy Job. (Def.’s Opp. Br. at
29.)
32
95
177:16.)
Zito testified that he believed Labate hoped to leverage
Zito’s influence with the Gap to discourage it from using BD.
(Zito Dep. 26:15-24.)
Additionally, with respect to the grievance
meeting on May 21, 2014, Zito testified that he did not recall
whether business agents talked about a picket line, but that if he
wrote it in an email, “then there probably was.
I don’t believe
any of the [business agents] would have mentioned that, except
for . . . Labate.”
(Zito Dep. 40:19-41:3.)
Labate testified that
“I never talked about a picket line against the mall.
[Zito] what the grievance was about . . . .
picket line.
I called a grievance.”
I told
I didn’t call it a
(Labate Dep. 212:19-213:6.)
Zito also testified that in other conversations with Labate, “there
were
threats
that
there
would . . . or
could
be
a
picket
line . . . if there wasn’t cooperation regarding” BD’s use of
Local 79 laborers.
(Zito Dep. 28:24-31:4.)
Labate, however,
testified that he “never threatened the mall.”
(Labate Dep.
305:17-306:8.)
Moreover, regarding the July 2014 round of alleged
threats,
testified
Zito
that
it
“sound[ed]
accurate”
that
a
“meeting was scheduled to discuss Local 79’s latest threat towards
[Zito] that if [BD] did not meet [Labate’s] demands by Friday,
they would set up a picket line and, as a result, [Zito] would
shut down [BD’s] project for The Gap.” (Zito Dep. 73:13-74:12;
July 3, 2014 Audio Tr., at 2.)
Labate denied that he made these
threats, but he testified that he might have said something to the
96
effect of “if we don’t get things resolved, I’m going to turn it
over
to
the
organizers
and
rat, . . . [or] picketing.”
they
are
going
to
do . . . the
(Labate Dep. 305:7-16, 308:8-309:4.)
Similarly, when Smith replaced Labate, he told Flavoni “[i]f [Local
79 signatory] Linear pulls out, I’m going to have to throw a line
up there where I have the other bidders . . . coming out there.”
(Aug. 18, 2014 Audio Tr. at 2-3.)
Flavoni asked if “a line” meant
“picket line,” and Smith responded “[a] grievance, yeah.”
18, 2014 Audio Tr. at 3.)
(Aug.
Smith testified that his reference to
a “picket line” was a mistake and that he meant a BCTC grievance.
(Smith Dep. 152:15-153:22.)
Smith also testified that he spoke to
Macerich’s Lindsey and mentioned “setting up a picket line,” but
later stated that “[i]t was never any line or anything mentioned.
I told him that there may be a strong possibility that there may
be another [BCTC] grievance that would be with BD.”
127:3-7,
196:5-12,
201:24-202:12.)
As
these
(Smith Dep.
conflicting
or
ambiguous statements make clear, issues of fact prevent the Court
from finding whether Local 79’s communications with Macerich rose
to the level of unlawful threats.
Similarly, there are issues of fact as to whether Local
79 delayed All City’s demolition work or encouraged Linear to stop
providing a laborer for general conditions work.
All City’s
Rodopoulos did not believe that his inability to get additional
workers from the Local 79 hiring hall impacted All City’s ability
97
to finish its work on schedule, (Rodopolous Dep., 44:4-18, 75:1076:15), while BD’s Ross testified that there was not enough
manpower to finish the demolition in time, (Ross Dep. 58:4-60:24).
Moreover, there are issues of fact regarding whether Local 79
purposefully denied BD available workers; Rynkiewicz testified
that there are not always workers available from the hiring hall,
(Rynkiewicz Dep. 91:2-9), while Labate testified that it “would
never
happen”
that
All
City
would
be
unable
to
get
enough
demolition workers for the job, (Labate Dep. 71:11-72:7). Finally,
there is a dispute over whether Linear stopped providing a laborer
on the Old Navy Job because of Linear’s issues with BD, or because
of Local 79’s pressure.33
(Def.’s 56.1 Stmt. ¶¶ 351, 355-56; Pl.’s
56.1 Resp. ¶¶ 355-56; Aug. 18, 2014 Audio Tr. at 1-2 (recording of
Smith telling Flavoni that Linear is “pulling out” because it is
“hard to get somebody to come out for” “one day a week” and
suggesting that BD use a Local 79 laborer “two or three days a
week”).)
2.
Purpose
As with the Brookdale Job, however, there is no genuine
dispute that at least one objective of Local 79’s conduct was
Because of this issue of fact, summary judgment is
inappropriate on Plaintiff Section 8(b)(4)(i) claim--referred to
as a Section 8(b)(4)(ii) claim in Plaintiff’s Opposition Brief-regarding Local 79’s alleged “inducement of Linear to stop
working with BD.” (Pl.’s Opp. Br. at 10.)
33
98
improper--to pressure secondary employers to force BD off the job
or to assign work to Local 79 laborers.
For example, before the
job began, Zito thought Labate hoped to convince the Gap not to
use BD “with whatever influence [Zito] may or may not have” with
the Gap.
(Zito Dep. 26:15-24.)
Additionally, Labate testified
that he told Zito at the grievance meeting “[t]his is about BD
Development, they are not going to use [Local] 79,” (Labate Dep.
207:8-14), and Smith told Flavoni to “call the client and ask the
client” if it would agree to using a Local 79 laborer for more
than one day per week, (Aug. 18, 2014 Audio Tr. at 4).
Smith also
testified that he asked Flavoni to tell the Gap about their
conversation with the goal of having a Local 79 laborer on the job
two to three times per week.
(Smith Dep. 156:4-157:20.)
Thus,
Local 79’s activities had an improper objective under Section
8(b)(4).
See, e.g., Kaynard, 576 F.2d at 476 n.7, 478.
3.
Causation
Defendant argues that Plaintiff’s damages for the cost
of using Local 79 signatory All City to perform demolition, the
cost
of
using
Local
79
signatory
Linear
to
perform
general
conditions work, and the profits that it lost on future jobs for
the Gap are not related to Local 79’s alleged threats.34
(Def.’s
Defendant also argues that any damages its actions may have
caused were the result of Macerich’s aversion to all union
activity, lawful or unlawful, and Defendant therefore cannot be
held liable for any resulting damages. (Def.’s Br. at 46-47.)
34
99
Br. at 44.)
Plaintiff responds that it incurred additional costs
by hiring All City and that the Gap removed BD from its approved
contractors list in substantial part because of union issues at
the Old Navy Job.
(Pl.’s Opp. Br. at 27-29.)
The parties
specifically argue over the Gap’s failure to select BD for the
Banana Republic Job despite the fact that BD seems to have been
the job’s lowest bidder.
(Def.’s Br. at 45; Pl.’s Opp. Br. at 28-
29.)
There is a genuine dispute as to whether Local 79’s
alleged unlawful secondary conduct caused BD to use All City.
(Def.’s 56.1 Stmt. ¶¶ 282, 285; Pl.’s 56.1 Resp. ¶¶ 282, 285.)
Defendant highlights that when BD hired All City on May 16, 2014,
Local 79 had not yet met with Zito and purportedly threatened him
regarding its grievance with BD.
Stmt. ¶¶ 282, 293.)
(Def.’s Br. at 44; Def.’s 56.1
Additionally, Defendant points out that the
Gap did not have any discussions with BD about subcontracting
demolition work.
(Def.’s Br. at 17; Def.’s 56.1 Stmt. ¶ 285.)
However, Plaintiff refers to Labate’s testimony that before the
job began, he called Macerich and warned of “issues” with BD,
(Pl.’s Br. at 4; Labate Dep. 174:19-177:16), and Flavoni testified
that “BD preemptively hired All City at a loss to BD to avoid any
This argument is unavailing. Defendant’s alleged unlawful
conduct is not immunized simply because the secondary employer
was also concerned about lawful union activity.
100
union issues by Local 79,” (Flavoni Aff. ¶ 97; see also July 1,
2014 Audio Tr., at 5 (“Flavoni: . . . [W]e heard that there was
going to be an issue with [Local] 79.
So in an effort to mitigate
that and maintain the harmony, we actually hired a demolition
contractor who is Local 79.”)).
Additionally, issues of fact exit with respect to BD’s
removal from the approved vendors list. The testimony of the Gap’s
Kruse does not resolve whether Local 79’s conduct, assuming it was
threatening or coercive, was a substantial factor in or a material
cause of the Gap’s decision.
736915, at *4.
See C&D Restoration, Inc., 2004 WL
Kruse testified that her decision to remove BD
“was more about how [BD] handled the situation with [Local 79] as
opposed to the union issue itself,” and noted that “there were
other issues completely unrelated to the union” that led her to
her decision.
(Kruse Dep. 66:24-67:23.)
She testified that union
issues played a “small part” in BD’s removal.
82:22.)
(Kruse Dep. 81:1-
Similarly, the Gap’s Ciuzio testified that he expressed
concern to Kruse about using BD after the Old Navy Job because of
scheduling issues, change order management problems, and potential
quality
issues,
though
he
acknowledged
activity” could have affected those issues.
that
“union
protest
(Ciuzio Dep. 147:3-
9, 150:2-15, 173:10-174:8.)
There are also issues of fact regarding whether Local
79’s conduct was a proximate cause of BD’s failure to win jobs for
101
the Gap (with the exception of the Banana Republic Job, discussed
below).
(Def.’s 56.1 Stmt. ¶ 419; Pl.’s 56.1 Resp. ¶ 419.)
While
BD was not the lowest bidder on the jobs, (Def.’s 56.1 Stmt. ¶¶
417-18; Pl.’s 56.1 Resp. ¶¶ 417-18), many of BD’s clients do not
award bids to the lowest bidder, (Def.’s 56.1 Stmt. ¶ 422).
Additionally, Kruse testified that “[t]hose projects were awarded
to the most qualified bidder,”35 (Kruse Dep. 156:8-24 (emphasis
added)), and suggested in her testimony that her view of BD was
affected
by
Local
79,
(Kruse
Dep.
66:24-67:20,
81:1-82:22).
Further, her testimony that BD was not actually “disqualified from
being considered a qualified bidder by virtue of what happened” at
the Old Navy Job, (Kruse Dep. 156:25-157:4), does not mean that
Local 79’s conduct did not affect her assessment of whether BD was
the “most qualified bidder” on those jobs.
Thus, summary judgment
is inappropriate at this stage.
However, there is no dispute that the Gap, not BD, paid
for BD’s use of Linear for general conditions work, (Def.’s 56.1
Stmt. ¶¶ 333-34; Pl.’s 56.1 Resp. ¶¶ 333-34), and BD may not
recover for the cost of that laborer.
Kruse also testified that nothing that BD did at the Old Navy
Job influenced the Gap’s decision to award a Gap outlet job on
Flatbush Avenue, Brooklyn to another contractor. (Kruse Dep.
156:8-12.) That testimony does not resolve whether Local 79’s
conduct at the Old Navy Job impacted the Gap’s assessment of BD,
however.
35
102
Further, there is no genuine dispute that the Gap did
not award the Banana Republic Job to BD for issues entirely
unrelated to Local 79’s activity at the Old Navy Job.
Kruse cited
a number of reasons for not using BD after interviewing BD,
including
that
Schimenti--the
winning
bidder--had
an
“all-
inclusive number” and the “right team to do the work,” (Kruse Dep.
104:17-23,
106:23-107:3),
while
BD
did
not
have
“proactive
suggestions” and did not give her confidence that it had fully
considered all aspects of the job, (Kruse Dep. 114:23-115:11).
Additionally, Flavoni testified that the Gap told him they were
looking for a contractor with longevity and experience with the
brand, and Schimenti had worked with the Gap for about ten years
while BD had been with the Gap for less than one year.
Dep. 132:21-133:12.)
(Flavoni
Moreover, while Kruse and Ciuzio indicated
that Local 79’s conduct affected their view of BD, (see Kruse Dep.
90:25-91:7; Ciuzio Dep. 150:2-15), Kruse unambiguously testified
that BD’s union issues at the Old Navy Job played no role in the
Gap’s selection of Schimenti over BD, and Ciuzio testified that he
did not know why BD was not awarded the job.
16; Ciuzio Dep. 136:10-137:6.)
(Kruse Dep. 107:4-
Further, even though BD appears to
have been the lowest bidder on the Banana Republic Job by $30,000,
the Gap did not view that difference as material.
Stmt. ¶ 462.)
103
(Def.’s 56.1
While Plaintiff attempts to create an issue of fact by
citing
Flavoni’s
Affidavit
testimony
that
“Local
79 . . . contributed to BD not being awarded future work,” (Pl.’s
56.1 Resp. ¶ 450; Flavoni Aff. ¶ 111), Flavoni previously testified
that he did not know what factors the Gap considered for any of
the jobs it awarded, but can “only speculate.”
(Def.’s 56.1 Stmt.
¶ 421; Pl.’s 56.1 Resp. ¶ 421; Flavoni Dep. 128:9-20.)
“A party
may not avoid summary judgment with ‘assertions that are conclusory
or based on speculation.’”
Casciani, 392 F. App’x at 888 (quoting
Major League Baseball Props., Inc., 542 F.3d at 310).
Thus,
Flavoni’s Affidavit testimony does not create an issue of fact as
to whether Local 79’s conduct was a “substantial factor” in or a
“material cause” of BD’s failure to win the Banana Republic Job.36
See C&D Restoration, Inc., 2004 WL 736915, at *4.
In
light
of
the
foregoing,
Plaintiff’s
motion
with
respect to the Old Navy Job is DENIED and Defendant’s motion is
GRANTED IN PART and DENIED IN PART. Plaintiff’s claims for damages
for the costs of hiring Linear and for its lost profits in
connection with the Banana Republic Job are DISMISSED.
If it can
prove causation, Plaintiff may pursue its remaining claims for
Similarly, Flavoni’s testimony that “The Gap invited BD to bid
on the Banana Republic job at 105 Fifth Avenue,” (Flavoni Aff.
¶ 114), does not create an issue of fact regarding the Gap’s
decision.
36
104
damages, including its costs for hiring All City, its removal from
the Gap’s approved vendors list, and its lost profits for the other
bids it lost.
Additionally, Plaintiff has established that Local
79 had an unlawful objective at the Old Navy Job, but issues of
fact preclude summary judgment in either party’s favor with respect
to the lawfulness of Local 79’s conduct.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion (Docket
Entry 75) is DENIED and Defendant’s motion (Docket Entry 67) is
GRANTED IN PART and DENIED IN PART.
Specifically, Defendant’s
motion is DENIED with respect to the BofA Job; GRANTED with respect
to the Mount Sinai Job; GRANTED IN PART and DENIED IN PART with
respect to the Brookdale Job; and GRANTED IN PART and DENIED IN
PART with respect to the Old Navy Job.
Accordingly, Plaintiff’s
Mount Sinai Job claims are DISMISSED; Plaintiff’s Brookdale Job
claim for damages for failing to win the ICU Job is DISMISSED; and
Plaintiff’s Old Navy Job claims for the cost of hiring Linear and
for BD’s lost profits in connection with the Banana Republic Job
are DISMISSED.
However, Plaintiff has established that Defendant
had an improper objective at the Brookdale Job and the Old Navy
Job.
The parties shall file letters within fourteen (14) days
of the date of this Memorandum and Order setting forth their
respective positions on scheduling a settlement conference with
105
Judge
A.
Kathleen
Tomlinson.
Additionally,
the
parties
are
directed to file a joint proposed pretrial order within sixty (60)
days of the date of this Memorandum and Order and are further
directed to appear for a pre-trial conference with Judge Tomlinson
on June 7, 2018 at 10:30 a.m.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
19 , 2018
Central Islip, New York
106
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?