King ex rel. Nat'l Labor Relations Bd. v. Constr. & Gen. Bldg Laborers' Local 79

393 F.Supp.3d 181

Kathy Drew KING, Regional Director of Region 29 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,

v.CONSTRUCTION & GENERAL BUILDING LABORERS' LOCAL 79, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, Respondent.

19-CV-3496 (NGG) (VMS)

United States District Court, E.D. New York.

Signed July 1, 2019

Erin E. Schaefer, Pro Hac Vice, National Labor Relations Board Region 29, Brooklyn, NY, for Petitioner Kathy Drew King.

James P. Anelli, LeClaireRyan, Newark, NJ, for Petitioners Mannix Family Market @ Hylan Blvd LLC, Mannix Family Market @ Forest and Richmond Ave. LLC.

Joseph J. Vitale, Cohen, Weiss and Simon LLP, New York, NY, for Respondent.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Petitioner Kathy Drew King, Regional Director of Region 29 of the National Labor Relations Board ("NLRB"), acting for and on behalf of the NLRB, brings this application for a preliminary injunction, pursuant to § 10(l) of the National Labor Relations Act (the "NLRA"), 29 U.S.C. § 160(l), prohibiting Respondent Construction & General Building Laborers' Local 79, Laborers International Union of North America ("Local 79") from engaging in certain demonstrations in a manner that Petitioner contends constitutes an unfair labor practice under § 8(b)(4)(i) and (ii)(B) of the NLRA, 29 U.S.C. § 158(b)(4)(i) and (ii)(B).¹ (See Pet. for TRO ("Pet.") (Dkt. 1).) Specifically, the NLRB seeks a broad order enjoining Local 79 from:

[I]n any manner or by any means, engaging in any picketing or other conduct, including the use of inflatable rats and cockroaches, with an object to induce or encourage individuals employed by Mannix Family Market @ Hyland Blvd LLC, Mannix Family Market @ Forest and Richmond Ave, LLC, and Mannix Family Markets @ Veterans Rd LLC, in Staten Island New York and other persons engaged in commerce or in industries affecting commerce to refuse to handle or perform services, in furtherance of Respondent's dispute with Kimco Realty Corp. (Kimco) and GTL Construction LLC (GTL); and threatening, restraining, or coercing any other person engaged in commerce, or in an industry affecting commerce, to cease handling, using, selling, transporting, or otherwise dealing in the products of, or to cease doing business with Kimco and GTL, or any other person engaged in commerce, or in an industry affecting commerce, or with each other.

(Proposed Order Granting Prelim. Inj. (Dkt. 4) at 3.)

For the reasons discussed below, the court DENIES petitioner's motion.

I. BACKGROUND

A. Factual Background

The following facts, which are undisputed, are drawn from the Petition and its attachments—the NLRB Complaint and Notice of Hearing, the Amendment to Complaint, affidavits, and copies of the handbills distributed by Local 79—as well as the briefing of the parties and their arguments before Judge Frederic Block and this court.

This case arises from the protest activities of Local 79 outside three ShopRite locations in Staten Island, New York. These three ShopRite supermarkets are owned and operated by Mannix Family Market @ Hylan Blvd LLC ("Mannix Hylan"), Mannix Family Market @ Forest and Richmond Ave. LLC ("Mannix Richmond"), and Mannix Family Market @ Veterans Road LLC ("Mannix Veterans"), respectively. (See Pet. ¶¶ 8(a), (d), and (g).) Kevin Mannix ("Mannix"), the majority owner and operator of Mannix Hylan, Mannix Richmond, and Mannix Veterans, entered into a sub-lease agreement with Wakefern Food Corporation to operate an additional ShopRite supermarket at a new shopping center currently under construction at 2600 Hylan Boulevard, Staten Island, New York (the "Boulevard Project"). (Id. ¶ 8(m).) Wakefern Food Corporation is subject to a lease agreement with Kimco Realty Corporation ("Kimco Realty") to lease that space. (Id. ) To construct this new shopping center, Kimco Realty has contracted with GTL Construction LLC ("GTL Construction"). (Id. ) Local 79 contends that GTL Construction uses non-union construction labor and pays employees below area-standard wages and benefits. (Mem. in Supp. of Pet. ("Mem.") (Dkt. 6) at 3.)

In connection with their labor dispute, starting in late April 2019, Local 79 engaged in a series of demonstrations outside of the stores owned by Mannix Hylan, Mannix Richmond, and Mannix Veterans (the "Mannix Stores").

In late fall or early December 2018, Thomas Mannix, a Mannix employee, saw a large van parked across the street from the Richmond Store that was displaying a digital screen that read: "SHOP RITE MANNIX SUPERMARKETS" and "TELL KEVIN MANNIX TO MAKE THE RIGHT CHOICE AND PAY AREA STANDARD WAGES AND BENEFITS TO THE CARPENTERS WORKING AT THE NEW SHOP RITE STORE AT THE BOULEVARD MALL." (May 13, 2019 Aff. of Thomas Mannix ("May 13 Mannix Affidavit") (Dkt. 1, Ex. 4) at 5.) Thomas Mannix asked the police to make sure that the van was parked legally, but took no further action. (Id. ) Also in December 2018, Thomas Mannix saw two men walking up New Dorp Lane almost a mile from the Hylan Store passing out flyers. (Id. ) The flyer had a crossed-out ShopRite logo at the top and the same message as had been displayed on the van. (Id. )

Around the same time, another Mannix employee, Michael Koch, saw a man standing on the sidewalk outside the Richmond Store handing out flyers that were titled "SHOP RITE MANNIX SUPERMARKETS" and encouraged people to tell Kevin Mannix to pay area standard wages and benefits to carpenters working at a construction site for a new Mannix store. (Aff. of Michael Koch ("Koch Aff.") at 1-2.) He also saw the van with the digital sign parked across the street from the Richmond Store. (Id. ) He contacted his own representative at the United Food and Commercial Workers, Local 1500. (Id. ) Two days later, he received a call from a representative of Carpenters Local 20, who explained the concerns related to the construction site. (Id. at 3.) Koch told this individual that Mannix has no control over hiring at the construction site, but agreed to pass along his information to his contact at the construction site developer, which he did. (Id. ) The van with the sign was observed in the same spot across the street from the Richmond Store several times each week between December 2018 and mid-February 2019. (Id. ) On May 3, 2019, Koch was informed that the van had returned to the Richmond Store location and was displaying "different images on a rotating basis," but the images did not identify which union was responsible for them. (Id. at 4.)

On April 29, 2019, Local 79 set up one inflatable rat outside the Hylan Store. (May 13 Mannix Aff. at 2.) Three men were observed standing next to the rat, which was placed approximately 70 yards from the doorway entrance of the store and about 15 feet from the traffic intersection leading into the store's parking lot. (Id. ) The rat had a flyer attached to its stomach that said "Shame on you Kevin Mannix!!" and contained a message about how Mannix was allowing Kimco Realty and GTL Construction to build its new supermarket using "exploited construction workers." (Id. ) At one point Thomas Mannix approached the three men. (Id. ) The workers told him that they were protesting the fact that there was a construction site down the street that was building a new store for Mannix using non-union labor. (Id. ) Thomas Mannix asked the men to move their two cars from the Mannix parking lot, but they refused. (Id. at 3.) Thomas Mannix then called the police, who arrived and had a short conversation with the men, after which the men removed their cars from the parking lot. (Id. ) The men remained on the sidewalk with the rat until about 2:00 p.m. (Id. )

Koch states that he also observed two men on the sidewalk outside Hylan Store on or around this date. (Koch Aff at 4.) They were approximately 50 or 60 yards from the entrance to the supermarket and a short distance from the entrance to its parking lot. (Id. ) They were wearing sweatshirts that said "Local 79" and were sitting next to a large inflated rat with a flyer taped to its stomach. (Id. )

Another Mannix employee, Ronny Thomas, also observed this demonstration outside the Hylan Store on April 29 and states that the union had inflated three rats. (Aff. of Ronny Thomas ("Thomas Aff.") (Dkt. 1, Ex. 8) at 3.) He spoke to the men from Local 79, who informed him that they were protesting outside Mannix stores because, as the largest tenant at the new shopping center, Mannix had influence over Kimco Realty, who was currently employing non-union labor at the construction site. (Id. at 2-3.) Thomas told the men not to block the sidewalk or store front, and they did not. (Id. ) The police informed Thomas that they had told Local 79 that three inflatable rats was "excessive," although they were within their rights to demonstrate in that location. (Id. at 4.) The men from Local 79 deflated one of the three rats. (Id. ) The men stood more or less in the same spot all day and did not handbill, distribute flyers, chant, or initiate conversations with any passersby. (Id. at 3.) They handed flyers to individuals who stopped and spoke to them. (Id. at 4.)

The same day, another Mannix employee, James Nappo, also had a conversation with the men from Local 79. (Id.; Aff. of James Nappo ("Nappo Aff.") (Dkt. 1, Ex. 7) at 2-3.) Nappo states that one of the men standing by the rat told him that Mannix did not intend to use union workers at the new store once it opened. (Nappo Aff. at 2; May 13 Mannix Aff. at 3-4.) Nappo "forcefully contradicted" the man by explaining that Mannix intended to continue hiring union employees at the new location. (Nappo Aff. at 3.) Another Local 79 representative then stepped forward and corrected what the first man had said. (Id. at 3.) He clarified that Mannix was not trying to go non-union at the new location. (Id. at 3; May 13 Mannix Aff. at 3.) Nappo relayed this conversation to Thomas Mannix, explaining that he "couldn't believe what...