BD Development, LLCv. Local 79, Laborers International Union of North America

Filing 35

ORDER granting in part and denying in part 26 Motion to Compel. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 1/15/2016. (Kandel, Erin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BD DEVELOPMENT, LLC,
Plaintiff,
ORDER
- against CV 14-4876 (JS) (AKT)
LOCAL 79, LABORERS INTERNATIONAL
UNION OF NORTH AMERICA,
Defendant.
----------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
A.

PRELIMINARY STATEMENT
Presently before the Court is the letter motion of Plaintiff BD Development, LLC

(“Plaintiff”) seeking to compel Defendant Local 79, Laborers International Union of North
America (“Local 79” or “the Union”) to produce all unredacted Market Development Department
Weekly Reports (“Weekly Reports”) from August 2010 to the present. DE 26 (“Pl.’s Mot.”).1
According to Local 79, the Weekly Reports are “internal reports which detail activities by
various Local 79 staff members regarding various employers who are not signatory to a collective
bargaining agreement with Local 79.” DE 27 at 1 (“Def.’s Opp’n”). Plaintiff asserts that the
information contained in the Weekly Reports is relevant to its claims that Local 79 engaged in
unfair labor practices under section 303 of the Labor Management Relations Act (“LMRA”), 29
U.S.C. § 187 by conducting unlawful secondary boycott activity in violation of section 8(b)(4)(ii)
of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4). See Pl.’s Mot. at 2. Local

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Plaintiff states that its request encompasses a four-year time period. See Pl.’s Mot. At 1
n. 1. However, “August 2010 to present” covers more than four years, regardless of whether “the
present” is considered the date of this Order or the date when Plaintiff filed the instant motion.

79 opposes the motion, arguing, inter alia, that Plaintiff has not established the relevance of the
Weekly Reports which do not concern the alleged secondary boycotting at issue in this case, but
instead reflect actions taken by the Union against other non-signatory employers over the last
several years. See Def.’s Opp’n at 2-3. For the reasons explained below, Plaintiff’s motion is
GRANTED, in part, and DENIED, in part.
B.

LEGAL STANDARD
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevance under Rule 26 “has been
construed broadly to encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978); see Maresco v. Evans Chemetics, Div. of W.R. Grace & Co.,
964 F.2d 106, 114 (2d Cir. 1992) (noting that the scope of discovery under Rule 26(b) is “very
broad”); Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004) (“Although not unlimited,
relevance, for purposes of discovery, is an extremely broad concept.”). Notwithstanding these
standards, “[t]he party seeking discovery must make a prima facie showing that the discovery
sought is more than merely a fishing expedition.” Annunziato v. Collecto, Inc., 296 F.R.D. 112,
120 (E.D.N.Y. 2013); see Surles v. Air France, 210 F. Supp. 2d 501, 503 (S.D.N.Y. 2002). In
addition, “[a] district court has broad latitude to determine the scope of discovery and to manage
the discovery process.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012)
(citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)).

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C.

DISCUSSION
Plaintiff contends that the information in the Weekly Reports is relevant to its allegations

that Local 79 engaged in unlawful secondary boycott activity against several businesses who had
hired, or were considering hiring, Plaintiff to perform construction work. See Pl.’s Mot.; see
generally Complaint (“Compl.”) ¶¶ 8-70. Section 8(b)(4) of the NLRA, referred to as the
secondary boycott provision, “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.” N.L.R.B. v.
Local 3, Int’l Bhd. of Elec. Workers, AFL-CIO, 730 F.2d 870, 875-76 (2d Cir. 1984); see Florida
Sugar Mktg. & Terminal Ass’n, Inc. v. Local No. 3, Int'l Longshoremen’s Ass’n, AFL-CIO, 668
F. Supp. 173, 178 (S.D.N.Y. 1987) (citing, e.g., United Steelworkers of Am., AFL-CIO v.
N.L.R.B., 376 U.S. 492 (1964)) (stating that section 8(b)(4) prohibits labor unions from engaging
in “secondary boycotting” by “exert[ing] pressure on an employer not involved in the relevant
labor dispute (‘the secondary employer’) in order to obtain a favorable result in the ongoing labor
dispute with another employer (‘the primary employer’)”). Section 303 of LMRA “provides a
private right of action to persons affected by unfair labor practices under section 8(b)(4) of the
NLRA.” Bus. Asset Relocation, Inc. v. Teamsters Local 814, No. 14-CV-0098, 2015 WL
1443267, at *3 (E.D.N.Y. Mar. 27, 2015); see A. Terzi Prods., Inc. v. Theatricial Protective
Union, No. 97 CIV. 3615, 2000 WL 1234579, at *3 (S.D.N.Y. Aug. 31, 2000) (stating that
section 303(b) of LMRA “provides that an aggrieved party may be awarded damages incurred by
reason of a violation of the act – i.e., by secondary boycott activity”).

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Plaintiff notes that courts consider “the totality of the circumstances” in determining
whether a labor union’s objective is to engage in a secondary boycott. Pl.’s Mot. at 2. According
to Plaintiff, these circumstances include “the labor organization’s behavior in contexts similar to,
but independent of, the instant matter to see if the labor organization has a history or pattern of
secondary boycott conduct.” Id. (citing Moll v. Telesector Rec. Group, Inc., 760 F.3d 198, 204
(2d Cir. 2014); Florida Sugar, 668 F. Supp. at 179) (emphasis in original). With this standard in
mind, Plaintiff maintains that it “is entitled to union-wide discovery on Defendant’s conduct
involving their labor disputes with other contractors” – specifically, the unreadacted Weekly
Reports from August 2010 to present, which Plaintiff believes “will reveal Defendant’s
secondary boycott techniques and interactions with all contractors and third-parties.” Id. This
discovery, according to Plaintiff, will enable it to demonstrate at trial “the totality of the
circumstances regarding Defendant’s intent to engage in unlawful secondary boycott activity.”
Id.
The Court concludes that Plaintiff has not met its burden of making a prima facie
showing that the unredacted Weekly Reports are relevant to its claims in this action. It is true, as
Plaintiff states, that courts may consider the “totality of the circumstances” to determine “[a]
union’s true objective” in conducting a disputed labor practice and whether that labor practice
“was in fact an illegal secondary boycott.” Eber Bros. Wine & Liquor Corp. v. Teamsters Local
Union No. 118, No. 02-CV-6229T, 2005 WL 290142, at *3 (W.D.N.Y. Feb. 7, 2005) (citing
N.L.R.B. v. Denver Building and Construction Trades Council, 341 U.S. 675, 685-692 (1951));
see A. Terzi Prods., 2000 WL 1234579, at *5; Florida Sugar, 668 F. Supp. at 179. Although
Plaintiff asserts that a union’s past labor practices must be considered as part of the “totality of
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the circumstances,” neither of the cases it cites provides legal support for this position. In
Florida Sugar, the court considered the “totality of the circumstances” underlying two picketing
demonstrations – one held in Baltimore and the other in Brooklyn – to determine whether the
defendant union intended those demonstrations to force the secondary employer, AMSTAR, “to
put pressure on Florida Sugar” in violation of NLRA § 8(b)(4). See 668 F. Supp. at 180-81. In
holding that the union’s objective in both picketing demonstrations was to engage in an unlawful
secondary boycott, the court considered the circumstances specific to those demonstrations, such
as: (1) the union’s knowledge at the time of the Baltimore demonstration that AMSTAR had no
ability to control whether Florida Sugar hired non-union workers; (2) the signs carried by the
picketers, which failed to indicate that the object of the protests was Florida Sugar and not
AMSTAR; (3) the union’s negotiations with AMSTAR; and (4) the fact that the union contacted
the leaders of a different union in Brooklyn, who have a “well-known preference to honor picket
lines,” to inform them of the picket and gauge their reactions. Id. at 180-81. The court in
Florida Sugar did not consider actions the defendant union had taken in prior labor disputes
(either with Florida Sugar or otherwise) or the union’s history of secondary boycott activity, nor
did it mention these considerations as factors to be evaluated as part of the “totality of the
circumstances.” See id. at 180 (listing factors which indicate “lawful common situs picketing”
and “indicia of an improper motive” set forth by prior cases and which should be considered in
the “totality of the circumstances” context). To the contrary, Florida Sugar indicates that only
those circumstances surrounding the labor activity at issue in the case are relevant to the
determination whether the union committed an unlawful secondary boycott. See id.; see also
Eber Bros., 2005 WL 290142, at *3-*5 (considering the “totality of the circumstances” of a
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November 2001 work stoppage to determine whether the defendant union had an “improper
motive for engaging in the sympathy strike ”).
Plaintiff also relies on the Second Circuit’s decision in Moll v. Telesector Resources
Group, which is not an unfair labor practices case but, rather, an employment discrimination
action alleging, inter alia, gender-based discrimination, sexually hostile work environment, and
retaliation claims. 760 F.3d at 201-202. Plaintiff points to the Second Circuit’s statement in
Moll that documents “relating to company-wide practices may reveal patterns of discrimination
against a group of employees, increasing the likelihood that an employer’s offered explanation
for an employment decision regarding a particular individual masks a discriminatory motive.”
Id. at 204 (vacating the district court’s denial of the plaintiff’s motion to compel the defendant
employer to produce documents responsive to certain written requests and remanding for further
proceedings) (quotation marks and citation omitted). Perhaps acknowledging that Moll is not on
all fours with this case, Plaintiff states that “[l]ike in the discrimination context, to find a history
or pattern of illegal secondary boycott activity, it is necessary to see how a union deals with all
contractors with which it interacts in the totality of the circumstances. The need for such
discovery is exactly the same here as in the discrimination context.” Pl.’s Mot. at 2. The Court
disagrees. In light of the analysis set forth in Florida Sugar and Eber Brothers – where the
courts considered only the circumstances related to the union activity at issue in the case – this
Court declines to extend the reasoning set forth in Moll to permit the discovery Plaintiff has
requested here.
In sum, Plaintiff has not established that the information contained in unredacted Weekly
Reports dating back to August 2010 would be relevant to the claims in this action. As Local 79
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states in its opposition, neither Florida Sugar nor Moll “stand for the proposition that to
determine [the union’s] motive one should look to circumstances unrelated to the current
dispute.” Def.’s Opp’n at 3 (emphasis in original). Moreover, Plaintiff has not otherwise shown
why it needs more than five years’ worth of Weekly Reports, which, according to Local 79,
contain internal, confidential information about Local 79’s labor activity in other labor disputes
with other non-union employers and developers. Such information has no bearing on how Local
79 acted, and what it meant to achieve, in its dispute with Plaintiff involving the alleged
instances of secondary boycott at issue in this case. Thus, the Court will not compel Local 79 to
produce all of its unredacted Weekly Reports dating back to August 2010.
That said, to the extent Plaintiff seeks information in the Weekly Reports which concern
Local 79's alleged secondary boycott activity referenced in the Complaint, such information may
be relevant to Plaintiff’s claims and should be produced. Thus, the Court is directing Local 79 to
produce, to the extent that it has not already done so, unredacted versions of any Weekly Reports,
or any portions of Weekly Reports, which relate the Union’s alleged secondary conduct against
(1) Bank of America in April 2013, see Compl. ¶¶ 9-17; (2) Brookdale Hospital between April
2014 and May 2014, see id. ¶¶ 18-35; (3) Kings Plaza Mall and Gap Inc. between May 2014 and
July 214, see id. ¶¶ 36-62; and (3) Gap vis-à-vis Banana Republic between March 2014 and April
2014, see id. ¶¶ 63-70. These materials are to be provided to the Plaintiff no later than January
29, 2016.
D.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion is GRANTED, in part, and DENIED, in

part, as set forth in this Order.
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SO ORDERED.
Dated: Central Islip, New York
January 15, 2016
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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