C & W CONST. v. Brotherhood of Carpenters & Joiners
| Decision Date | 07 June 1988 |
| Docket Number | Civ. No. 83-0710. |
| Citation | 687 F. Supp. 1453 |
| Court | U.S. District Court — District of Hawaii |
| Parties | C & W CONSTRUCTION COMPANY, a sole proprietorship, Cher Mungovan, and Walter Mungovan, Plaintiffs, v. BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 745, AFL-CIO; Walter H. Kupau; William O. Nishibayashi; Ralph Torres; and Steven Suyat, Defendants. |
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Charles Hurd, Honolulu, Hawaii, for plaintiff.
Pyun, Okimoto & Thomason, Matthew Pyun, Jr., Honolulu, Hawaii, for Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO, and Walter H. Kupau.
Winston Mirikitani, Honolulu, Hawaii, for defendants Ralph Torres and Steven Suyat.
Samuel King, Jr., Adrienne King, Honolulu, Hawaii, for defendant Steven Suyat.
Renee Yuen, Richard Perkins, Honolulu, Hawaii, for defendant William Nishibayashi.
ORDER CONCERNING PARTIES' DISPOSITIVE MOTIONS
On May 16, 1988, the court heard the defendants' motion to dismiss and the plaintiffs' motion for summary judgment. Matt Pyun appeared for the defendants, and Charles Hurd appeared for the plaintiffs. The court has considered the materials on file and arguments of counsel. For reasons discussed below, the court dismisses all of the plaintiffs' claims except the federal antitrust and the state interference with economic advantage/inducement to breach contract claims; it dismisses the plaintiffs' civil RICO claim with leave to amend the complaint; and it denies the plaintiffs' motion for summary judgment.
This suit involves the defendant union's alleged attempt to force the plaintiff construction company to recognize or bargain with the defendant union as the representative of the plaintiff's employees.
Plaintiff C & W Construction Co. ("C & W") was a sole proprietorship of Walter Mungovan with its principal place of business located at Kihei, Maui. C & W was a general contractor in the residential building and construction industry. Mungovan's wife, Cher, was an employee of C & W.
Defendant Brotherhood of Carpenters and Joiners of America, Local 745 AFL-CIO ("union") is an unincorporated association and labor organization within the meaning of the National Labor Relations Act (NLRA), 29 U.S.C. § 152(5). It has its principal office in Honolulu. It represents employees in an industry affecting commerce within the meaning of section 303 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 187.
Defendants Walter Kupau, William Nishibayashi, Ralph Torres, and Steven Suyat are agents of the union.
The following "facts" represent only the plaintiffs' allegations. The court will examine the defendants' motion to dismiss first. Under the standards for a motion under Fed.R.Civ.P. 12(b)(6), the court presumes all factual allegations of the nonmoving party to be true, and it draws all reasonable inferences from them in his favor. Moreover, the court has, by Order of December 5, 1985, ruled that the defendants cannot submit evidence on many or most of the issues implicated in their motion, as discussed below. 108 F.R.D. 389.
Plaintiffs' Allegations.
In 1979, Cher and Walter Mungovan founded C & W. C & W specialized in building custom homes on Maui. Before the defendants began their alleged misconduct in 1980, C & W had a gross income exceeding $500,000.
In December 1980, defendant Nishibayashi informed Walter Mungovan that the union would target C & W for an organizational campaign to obtain a union contract. Nishibayashi threatened Mungovan with violence if C & W did not sign a union contract. He also threatened to picket C & W job sites if it did not sign the contract. Defendant Torres and other union agents made other and similar demands to C & W for the union contract. Mungovan refused, stating C & W was already paying union scale wages. He explained he would negotiate a union contract when C & W had developed to a larger scale.
On January 6, 1981, at the direction of union president Kupau, Nishibayashi, Suyat, Torres, and other union agents, union members began picketing three C & W job sites. C & W requested that for the first week of picketing its employees not work. C & W then asked its employees if they wanted to work. The employees agreed to work and crossed the picket lines.
On February 9, 1981, the National Labor Relations Board ("NLRB") held a representation election at C & W's request. C & W's employees voted unanimously to reject the union as their representative. The NLRB regional director issued complaints alleging that the union's pickets at C & W's job sites were illegal. The NLRB brought suit in this court to enjoin the pickets.
On February 27, 1981, Kupau told Mungovan that a contract must be executed to end the picketing at C & W's job sites. Mungovan refused. The union continued to picket C & W's job sites. Altogether the union picketed C & W job sites for more than three months. The picketing ended April 16, 1981.
C & W had entered into contracts with various materials suppliers; e.g., concrete block, cement, crushed rock, glass, and lumber. Union agents wrongfully influenced these suppliers not to deliver materials to C & W's job sites. Union agents also influenced, contacted, or coerced others obligated to perform contractual services for C & W not to cross the union's picket line. Those parties then failed to deliver materials or otherwise do business with C & W.
In the NLRB proceedings, Nishibayashi and Torres lied in affidavits submitted to this court. They were later convicted of perjury for such statements.
The union's misconduct caused C & W to suffer injuries including: delay in completing jobs, higher costs, termination of a job in progress, lost opportunities for other jobs, damage to business reputation, loss of employees, higher interest rates on financing, and lost profits. Both Cher and Walter Mungovan suffered emotional distress and damage to their reputations.
On July 15, 1983, the plaintiffs filed suit against the defendants. The complaint was amended on September 1, 1988. The complaint contained eleven claims for relief:
The court will first examine the defendants' motion to dismiss all eleven of the plaintiffs' claims and begins with the defendants' statute of limitations arguments. It will then proceed to the defendants' arguments against the plaintiffs' remaining claims. Thereafter, it will address the plaintiffs' motion for partial summary judgment on four of its claims.
The defendants move the court to dismiss the plaintiffs' complaint as follows: First, the antitrust claim is barred by the statutory or nonstatutory labor exemption to the Sherman Act § 1. Second, the state antitrust claims (based on Haw.Rev.Stat. chapter 480) are preempted by federal labor law. Third, the RICO claim is barred either by the statute of limitations, preempted by federal labor law, or void for failure to establish a violation of the RICO Act. Fourth, the state tort claims are barred by the statute of limitations or preempted by federal labor law. Fifth, that leaves only the plaintiffs' claim under the LMRA, 29 U.S.C. section 187(b), for a violation of 29 U.S.C. 158(b)(4), which defendants argue is barred by the statute of limitations.
While the defendants have brought their motion under both Fed.Rule 12(b)(6) and 56, the standards for Rule 12(b)(6) apply. By Pretrial Order No. 4, January 27, 1988, this court ordered the parties to file "dispositive motions not requiring further discovery and supporting pleadings." By its order of December 5, 1985, this court sanctioned the defendants for stonewalling during discovery. The Order affects all or most of the factual issues implicated in their motion to dismiss. In essence (but without limitation), the union is precluded from offering any evidence, direct or inferential, regarding plaintiffs' allegations of secondary boycott; conspiracy to restrain trade; unfair trade practice and refusal to deal; scheme to defraud or extort; inducement to breach of contract and interference with prospective economic advantage; and infliction of emotional distress. Also, the defendants Nishibayashi, Torres, and Suyat will not be permitted to testify except as to matters outside those included in the Order.
At this time, the court is not considering matters external to the pleading, and will consider the motions under Rule 12(b)(6).
This court is familiar with the standards for a motion to dismiss under that Rule.1
The plaintiffs' third claim for relief is brought under 18 U.S.C. § 1964 for violations of 18 U.S.C. § 1962(c), (d) (i.e., RICO). The plaintiffs base the predicate acts of 18 U.S.C. § 1962, i.e., certain racketeering activities in violations of 18 U.S.C. §§ 1341, 1342 and 18 U.S.C. § 1503, on alleged events that occurred more than two years before they filed suit in this court. Picketing by Local 745 ended on April 16, 1981; this suit was filed on July 15, 1983.
The Supreme Court has held that the four year statute of limitations applicable to Clayton Act civil enforcement actions, 15 U.S.C. § 15(b),...
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