Microtech Contracting Corp. v. Mason Tenders Dist. Council of Greater N.Y.

55 F.Supp.3d 381

MICROTECH CONTRACTING CORPORATION, Plaintiff

v.MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK; Asbestos, Lead, and Hazardous Waste Laborers' Local 78; Edison Severino, Personally, and In His Official Capacity As Business Manager; and John Does Nos. 1 To 5, Defendants.

No. 14–CV–4179 JFBGRB.

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

Filed Oct. 24, 2014.

Signed Oct. 27, 2014.

Angelo Bisceglie, Jr., Bisceglie & Associates, P.C., New York, NY, for Plaintiff.

Joseph Vitale, Cohen, Weiss and Simon L.L.P., New York, NY, Haluk Savci, New York, NY, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Microtech Contracting Corporation (“Microtech”) brings this action against the Mason Tenders District Council of Greater New York (“District Council”); Asbestos, Lead, and Hazardous Waste Laborers' Local 78 (“Local 78” or “the Union”); and Edison Severino, personally and in his official capacity as business manager of Local 78 (collectively, “defendants”).

The present motion seeks a preliminary injunction prohibiting defendants from engaging in activity that plaintiff claims is in breach of the collective bargaining agreement (“CBA”) between Microtech and Local 78. Specifically, plaintiff seeks to enjoin defendants from “[p]icketing, distributing handbills or flyers and/or posting an inflatable rat or similar sign or device at any job site” where Microtech is working. (Proposed Order, Docket Entry 7, at 2). The issue before the Court has been narrowed, based on the representation of defense counsel “that for the duration of this litigation, Local 78 agrees to limit its conduct to the use of the inflatable rat and will no longer use any sign to accompany the rat with respect to the current dispute.”¹ (October 13, 2014 Letter, Docket Entry 26). Accordingly, the Court confines its analysis in this Memorandum and Order to plaintiff's request for a preliminary injunction preventing defendants from posting an inflatable rat at Microtech work sites.²

For the reasons discussed below, the Court denies plaintiff's motion. In particular, because it is uncontroverted that the labor dispute between the parties (related to the continued employment by Microtech of a particular individual) is unrelated to the terms of the CBA and is not an issue that is subject to the mandatory grievance clause of the CBA, the Court is deprived of jurisdiction, pursuant to the Norris–LaGuardia Act, from entering an injunction regarding the use of the inflatable rats. In addition, Section 104 of that Act also would separately prohibit the Court in this case from issuing an injunction, because the Court would be enjoining defendants from giving publicity to the existence of a labor dispute. Finally, even assuming arguendo that the Norris–LaGuardia Act permitted such an injunction, the Court would deny the motion because, with respect to the use of the inflatable rat, plaintiff cannot show a likelihood of success on the merits, or even sufficiently serious questions going to the merits to make them a fair ground for litigation.

It is abundantly clear that Local 78 has a constitutional right to use an inflatable rat to publicize a labor dispute, unless Local 78 surrendered that right in the CBA or some other contractual agreement. Although plaintiff argues that the defendants in fact surrendered that right by agreeing not to engage in “disruptive activity” in the “no-strike” provision, the Court disagrees. The “disruptive activity” clause is qualified by the term “of a similar nature,” which references the other specific activities prohibited by the “no-strike” provision—namely, “strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts.” In the instant case, the use of the inflatable rat does not involve work stoppages, slowdowns, or boycotts of any kind. In fact, there is no allegation that the use of the rat has any impact on labor at the job site. To the extent plaintiff argues that the use of the inflatable rat is “disruptive” to Microtech's business because its clients do not like the inflatable rat (or the publicity that such a rat can bring), that type of generalized economic disruption caused by union speech is not within the parameters of the “no strike” provision. To hold otherwise would be to prohibit the union from engaging in any speech that is harmful to plaintiff's business image. Such an interpretation is completely inconsistent with the plain language of the “no strike” provision, and would improperly allow that provision to completely eviscerate the First Amendment rights of the union. Thus, the Court concludes that the “disruptive activity” language of the “no strike” clause does not prohibit Local 78 from engaging in this type of First Amendment activity in this case.³

I. Background

In short, this case arises from the protest activities of Local 78 and the District Council, whose members work as laborers on projects run by Microtech, an asbestos abatement contractor. The relationship between the parties is governed by a collective bargaining agreement. Article XI, § I of the CBA prohibits “strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of, or otherwise directed at any Employer during the term of this Agreement,” except under circumstances not presented here. (Docket Entry 7–2, at 34.) It is undisputed that defendants have been posting an inflatable rat at Microtech work sites; plaintiff claims this conduct violates the “disruptive activity” clause of the CBA. (Pl. Mem. at 1.) Plaintiff alleges, and defendants do not dispute, that defendants have been protesting at Microtech work sites in order to pressure plaintiff to terminate a Microtech supervisor named George Moncayo. More specifically, plaintiff alleges that “Microtech's problems with Local 78 began with, and are solely the result of, the fact that in April 2014 Microtech hired [Moncayo] whom Local 78 and Severino disliked and had targeted for punishment.” (Compl., ¶¶ 27–30.) Defendants are allegedly targeting Moncayo because he previously operated a non-union affiliated asbestos abatement company. (See Id., ¶ 29).

Plaintiff commenced this action on July 8, 2014, and sought a temporary restraining order prohibiting defendants from, inter alia, hand-billing, picketing, and posting an inflatable rat at Microtech work sites. (See Proposed Order, Docket Entry 6). On July 11, 2014, the Court held a hearing and denied plaintiff's request for a temporary restraining order. Plaintiff then filed materials in support of a motion for a preliminary injunction. Defendants filed memoranda in opposition on July 15, 2014 and July 16, 2014. Defendants filed a letter on July 16, 2014 informing the Court that “for the duration of this litigation Local 78 agrees to limit its conduct to the use of the inflatable rat (and accompanying sign) and will refrain from the other conduct plaintiff seeks to preliminarily enjoin (e.g. picketing, striking, instructing employees to not work for Microtech, etc.)....” (Letter, Docket Entry 12). Plaintiff submitted a reply in response to defendants' opposition on September 3, 2014. The Court held oral argument on October 10, 2014.

At oral argument, defense counsel conceded that defendants' activities at Microtech work sites are intended to pressure plaintiff to terminate Moncayo as an employee at Microtech. In other words, for purposes of this motion, the parties have agreed that Local 78 has used, and will continue to use, an inflatable rat in order to protest plaintiff's continued employment of Moncayo. Defendants do not contend, and plaintiff does not allege, that the inflatable rat is a response to any purported breach by Microtech of the CBA.

Although the briefing and oral argument encompassed both the use of the inflatable rat and the accompanying signage and handbilling, following oral argument, defendants submitted a letter to the Court, stating that “for the duration of this litigation, Local 78 agrees to limit its conduct to the use of the inflatable rat and will no longer use any sign to accompany the rat with respect to the current dispute.” (October 13, 2014 Letter, Docket Entry 26). Plaintiff has not questioned or challenged that representation and, as discussed above, the Court concludes that the irreparable harm requirement cannot be met in light of that representation. Therefore, the lone issue before the Court is plaintiff's application for an injunction prohibiting defendants from posting an inflatable rat at plaintiff's work sites.

This matter is fully submitted, and the Court has thoroughly considered the submissions of the parties.

II. Standard of Review

In order to prevail on a motion for a preliminary injunction, a party must establish: “(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.” MyWebGrocer, LLC v. Hometown Info., Inc., 375 F.3d 190, 192 (2d Cir.2004) (quoting Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir.2002) ). “To establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent.” Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989) (internal quotation marks omitted).

III. Discussion

As a threshold matter, the Court must consider whether it has jurisdiction to issue the requested injunction. Accordingly, the discussion turns first to whether the Norris–LaGuardia Act divests the Court of jurisdiction to issue an injunctive order. The discussion then considers, in the alternative, whether a preliminary injunction is merited under a traditional balancing of equities, considering whether the inflatable rat constitutes “disruptive activity” within the meaning...