BD Dev., LLC v. Local 79, Laborers Int'l Union of N. Am.

BD DEVELOPMENT, LLC, Plaintiff, v. LOCAL 79, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, Defendant.

14-CV-4876(JS)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 19, 2018

MEMORANDUM & ORDER

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. Pending before the Court are (1) Defendant Local 79, 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. (Def.'s 56.1 Stmt. ¶¶ 31-32.) 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.'s56.1 Stmt. ¶¶ 35, 41.) Neither BD nor Local 621 has an apprenticeship program for laborers. (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. (Def.'s 56.1 Stmt. ¶¶ 1-2.) Local 79 is part of the Building and Construction Trades Council of Greater New York (the "BCTC"), which is a group of unions representing workers in the construction industry. (Def.'s 56.1 Stmt. ¶ 6.) Local 621 is not associated with the BCTC. (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." (Def.'s 56.1 Stmt. ¶ 8; Pl.'s 56.1 Stmt. ¶¶ 6-8.)² Additionally, Local 79 employs a number offield 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. (Def.'s 56.1 Stmt. ¶ 12.)

II. 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"). (Def.'s 56.1 Stmt. ¶¶ 68, 70; Pl.'s 56.1 Stmt. ¶¶ 140-41.) 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," providingthat "[u]nion labor shall be used by all contractors and subcontractors performing any and all Alterations within the Building" and that "[a]ll contractors and subcontractors . . . shall work in close harmony with one another." (Def.'s 56.1 Stmt. ¶¶ 71-72.) 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, 60:15-21.) 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.)

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, 86:25-87:17, 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.)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. (Def.'s 56.1 Stmt. ¶¶ 88-89; Pl.'s 56.1 Resp. ¶ 89.) 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. 49:3-7.) NYC Acoustics is a signatory to a collective bargainingagreement 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. 51:11-52:19). According to Lapidus, DePetro did not identify who requested that NYC Acoustics not "cross the line." (Def.'s 56.1 Stmt. ¶ 127.) 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 "wouldn't cross a picket line."⁴ (Giovinazzi Dep. 65:8-66:22.)

DePetro, on the other hand, testified that he did not recall seeing an inflated rat or whether there...