CRANSHAW CONST. v. INTERN. ASS'N OF ORN. IRWKRS., Civ. A. No. 94-11362 (MEL).
| Decision Date | 19 May 1995 |
| Docket Number | Civ. A. No. 94-11362 (MEL). |
| Citation | 891 F. Supp. 666 |
| Parties | CRANSHAW CONSTRUCTION OF NEW ENGLAND, L.P., Plaintiff, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, AFL-CIO, LOCAL NO. 7, Defendants. GREEN MOUNTAIN STEEL ERECTORS, INC., Alan Ashey and Michael Cayer, Plaintiffs-in-Intervention, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, AFL-CIO, LOCAL NO. 7, Jay Hurley a/k/a John Hurley, Business Agent Local No. 7, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
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Carol Chandler, Andrew L. Matz, Stoneman, Chandler & Miller, Boston, MA and Stanley A. Martin, Gadsby & Hannah, Boston, MA, for Cranshaw Const. of New England, L.P. and Cranshaw Construction of New England, Inc., as General Partner of Cranshaw Construction of New England, L.P.
E. Melvin Nash, Boston, MA and Craig F. Anderson, Law Office of E. Melvin Nash, Boston, MA, for Green Mountain Steel Erectors, Inc., Alan Ashey, and Michael Cayer.
This case is the aftermath of a week-long protest by members of a local ironworkers' union at a Boston construction site during the summer of 1994. Cranshaw Construction, the project's general contractor, sues for damages and injunctive relief, alleging that union activity during the protest constituted a secondary boycott prohibited by section 8(b)(4) of the National Labor Relations Act. 29 U.S.C.A. § 158(b)(4)(ii)(B); 29 U.S.C. § 187. Cranshaw also presents various state law claims, all of which Local 7 asserts are preempted by federal law.
Green Mountain Steel — the nonunion subcontractor toward whom most of the protestors' activity was directed — and two of its employees join the lawsuit as plaintiffs. Like Cranshaw, Green Mountain sues for damages pursuant to 29 U.S.C. § 187 and state law. The individual plaintiffs, who are employees of Green Mountain, allege that John Hurley, a business agent for Local 7 who is also named as a defendant, spat in their faces during the protest.
The case against Local 7 and Hurley has been tried to the bench. I find the following facts and reach the following conclusions of law.
The Heritage Project at Cleveland Circle, intended to be an assisted-living residence for the elderly, was in the early stages of construction during the summer of 1994. Cranshaw was the project's general contractor. Among its responsibilities were the hiring and oversight of subcontractors. Cranshaw subcontracted with Bennington Ironworks, a Vermont corporation, to perform the necessary steel work. Bennington, in turn, subcontracted the work to Green Mountain.
The Heritage construction site was surrounded by a chain-link fence. Two gates, one for nonunion employees and one for union workers, were designated Gate A and Gate B, respectively. The nonunion gate, Gate A, was also the main gate to the site — it was used by Cranshaw as well as Green Mountain and other subcontractors. Inside the fence, about 30 feet from the main gate ("the gate"), a Cranshaw trailer was outfitted as an office. John Moriarty, Cranshaw's project superintendent, worked in this office every day, overseeing the work of Green Mountain and the other subcontractors. Green Mountain began its work on the Heritage project on June 20, 1994. At that time, other aspects of construction were also in progress, including excavation, cement work, and carpentry.
John Hurley is a business agent for Local 7 of the International Association of Bridge, Structural and Ornamental Ironworkers. He was elected to this position by Local 7 members shortly before the events culminating in this action.
No Local 7 members were hired to perform steel work at the Heritage project. Hurley visited the site, however, several times. Hurley's first visit took place on April 12, 1994, when he spoke with Moriarty at the Cranshaw trailer. Hurley's next visit to the site was on June 24, 1994, when he was accompanied by a Local 7 member known as "Punchy." Hurley asked John Moriarty, the project superintendent, for papers proving that all of the workers hired to do steel work were paid the "prevailing rate," as required by Massachusetts law for construction funded by the Massachusetts Housing Finance Authority (MHFA). Moriarty referred Hurley to Roger Bouchard, president of Green Mountain, who was on-site that day. Bouchard refused to provide Hurley with the papers he wanted, and the two men became involved in a heated discussion about Green Mountain steelworkers' pay and the fact that Green Mountain's employees were not residents of Massachusetts (Hurley, apparently, was under the mistaken impression that all construction funded by the MHFA had to be performed by Massachusetts residents). Hurley then left Cranshaw's trailer, saying that he would "be back, with others." Hurley's next appearance at the site five days later coincided with the beginning of a week-long protest by Local 7 union members.
When Moriarty arrived at the site on June 29, 1994, Hurley and three other Local 7 members were outside the gate. Moriarty opened the gate and went to his trailer. By 6:30 that morning, Moriarty testified, 30 union members blocked the gate. Others entered the gate and climbed up into the boom of Green Mountain's crane. Moriarty called the Boston Police, who advised that an attempt to forcibly remove the men from the crane might be dangerous. The police asked Hurley to tell the men to come down. Hurley at least went through the motions of making such a request, but, whatever the reason, no one complied at the time. At one point on June 29, Moriarty counted 27 men on the crane. A videotape made on this day by a WBZ-TV staff member and exhibited at trial shows the men on the boom of the crane. Cranshaw Ex. 4. Questioned by a reporter, Hurley explains, on the videotape, that the men are protesting the hiring of non-Boston residents at the Boston construction project. The occupation of the crane brought steel work on the building to a complete halt. Ten policemen were hired by Cranshaw to stay on the site overnight.
On the following day, Thursday, June 30, 1994, Moriarty arrived at the site at 5:30 a.m. to find five men, including Hurley, outside the gate, and six others occupying the crane. By 5:45, 57 men were outside the gate. At 6:35, Moriarty testified, Green Mountain's crane operator was prevented from entering the site by a large group of men which included Hurley; later, a layout engineer was deterred by the protest, and left without attempting to enter the job site.
On Friday, July 1, Moriarty arrived at his trailer at 5:50 a.m. No union members were on the site or outside of it. By 6:05, however, a large group of union members, including Hurley, blocked the gate. Moriarty testified that a carpenter on the job asked for permission to leave the site, which he granted. Later, a truck from Union Concrete, another subcontractor, was blocked from entering the site.
Still on July 1, three Green Mountain employees — Alan Ashey, Michael Cayer and Bouchard, the former two of whom are plaintiffs — attempted to enter the site in a company truck. A videotape made by Moriarty and exhibited at trial filmed the incident from the Cranshaw trailer. Cranshaw Ex. 3. The tape shows a crowd of people, including Hurley, surrounding the stopped Green Mountain truck. Hurley is seen walking from one side of the truck to the other. While the truck was stopped at the gate, one union member crawled underneath the truck and remained there for some time, immobilizing it.
Ashey, Cayer, Bouchard, and Moriarty testified that during the time the truck was stopped at the gate, Hurley spat through the open driver's-side window at Ashey, who was driving, and then, a minute later, through the passenger window at Cayer. Hurley denies that he spat at either man. It is not possible to determine from the videotape alone precisely what happened. However, I fully credit the trial testimony of Ashey and Cayer, and conclude that, although it may have been impulsive and unpremeditated action on the part of Hurley, which he now regrets, he did in fact spit at Ashey and Cayer while they were sitting in the truck.
Eventually, the union member underneath the truck reemerged and was arrested, and the truck backed up and drove away. Moriarty testified that after the truck drove off, Hurley yelled to him, "if this happens again, this place will look like a war zone." Hurley denied making this comment or any like it.
Cranshaw hired a security company to patrol the construction site during the three-day July 4th weekend that began the following morning. No activity was reported on the site July 2, 3 or 4.
On Tuesday, July 5, union members, including Hurley, were back at the job site. Twenty-four members of Local 7 were outside the gate at 6:00 a.m. Later that day, however, the protestors dispersed. They never returned.
After the protestors left, Green Mountain employees discovered that its crane had been damaged during the protest. Steel erection, however, recommenced within a few days. Required repairs to the crane included, among other things, new tires, new glass, and fluid changes. Damage to the chain-link fence surrounding the site also occurred during the period of the protest.
Fearing further action, Cranshaw continued to employ private security guards at night for some time after the protest ended. However, no further incidents occurred.
Prohibiting what is known as a "secondary boycott", § 8(b) of the National Labor Relations Act provides:
It shall be an unfair labor practice for...
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