Structures v. United Bhd. of Carpenters & Joiners of Am.

• Decision Date: 05 May 2017
• Docket Number: No. CIV 17-0397 JB/JLF.,CIV 17-0397 JB/JLF.
• Citation: 252 F.Supp.3d 1132
• Parties: FIREBIRD STRUCTURES, LCC, Plaintiff, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 1505, Defendant.
• Court: U.S. District Court — District of New Mexico

252 F.Supp.3d 1132

FIREBIRD STRUCTURES, LCC, Plaintiff,
v.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 1505, Defendant.

No. CIV 17-0397 JB/JLF.

United States District Court, D. New Mexico.

Filed May 5, 2017

252 F.Supp.3d 1139

Keith C. Mier, Benjamin E. Thomas, Sutin Thayer & Browne, Albuquerque, NM, for Plaintiff.

Shane C. Youtz, Stephen Curtice, James A. Montalbano, Youtz & Valdez, PC, Albuquerque, NM, Yuliya Mirzoyan, Daniel M. Shanley, DeCarlos & Shanley, Los Angeles, CA, for Defendant.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiff's Application for Temporary Restraining Order and Preliminary Injunction, filed April 4, 2017 (Doc. 3)("Motion"). The Court held a hearing on April 10, 2017. The primary issues are: (i) whether the Court has jurisdiction over this case given that Plaintiff Firebird Structures filed an amended complaint in federal court asserting a federal claim, see First Amended Verified Complaint for Damages and Injunctive Relief ¶¶ 17–26, 3–4, filed April 10, 2017 (Doc. 14)("Verified Complaint"), after the Defendant Carpenters' Union removed, on complete preemption grounds, Firebird Structures' original complaint asserting state-law claims only, see Verified Complaint for Damages and Injunctive Relief, filed in state court on March 30, 2017, filed in federal court on March 31, 2017 (Doc. 1–1)("Original Complaint"); (ii) whether the Norris–LaGuardia Act, 29 U.S.C. §§ 101–115, applies to Firebird Structures' Motion; and (iii) whether the Court should grant Firebird Structures a temporary restraining order ("TRO") and thereby enjoin the Carpenters' Union from conducting activity that Firebird Structures contends is unlawful. The Court concludes: (i) that it has jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1367(a), because the Verified Complaint asserts a federal claim and Firebird Structures' federal claim and state-law tort claims arise out of the same set of factual assertions regarding the Carpenters' Union's alleged campaign against Firebird Structures; (ii) that the Norris–LaGuardia Act applies, because Firebird Structures and the Carpenters' Union are involved in a "labor dispute" as the Norris–LaGuardia Act defines that term, 29 U.S.C. §§ 101 & 113(a)-(c); (iii) that Firebird Structures is not entitled to injunctive relief on its claim arising under § 303 of the Labor–Management Relations Act ("LMRA"), 29 U.S.C. § 187, because that statutory provision awards only damages; (iv) that Firebird Structures is not likely to prevail on its two claims asserting tortious interference with contractual relations, because Firebird Structures' LMRA § 303 claim, 29 U.S.C. § 187, preempts those claims; (v) that Firebird Structures is not likely to prevail on its claims for trespass, nuisance, harassment, and prima facie tort, because Firebird Structures has not satisfied its burden, set forth by the Norris–LaGuardia Act's § 6, 29 U.S.C. § 106, to establish by "clear proof" that the Carpenters' Union authorized or was otherwise involved in the alleged tortious conduct; (vi) that the Norris–LaGuardia Act's § 4, 29 U.S.C. § 104, deprives the Court of jurisdiction to enjoin the Carpenters' Union from certain conduct that Firebird Structures asserts is tortious, including peacefully assembling, peacefully communicating with Firebird Structures' employees and prospective employees, and peacefully and non-fraudulently giving publicity to the labor dispute between Firebird Structures and the Carpenters' Union; and (vii) that the four factors guiding the propriety of PI relief weigh against the Court's issuance of a TRO to Firebird Structures. Accordingly,

252 F.Supp.3d 1140

the Court denies Firebird Structures' Motion.

FINDINGS OF FACT

"A temporary restraining order requires the Court to make predictions about the plaintiff's likelihood of success." Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1179 (D.N.M. 2011) (Browning, J.)(" ‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.’ ")(alteration in original) (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) ). "The Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Furthermore, as applicable in this case, the Norris–La Guardia Act § 9, 29 U.S.C. § 109, provides:

No restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in said findings of fact made and filed by the court as provided in this chapter.

29 U.S.C. § 109. Accordingly, the Court finds as follows:

1. Firebird Structures is a New Mexico limited liability company doing business in Bernalillo County, New Mexico. See Verified Complaint ¶ 1, at 1.¹

2. Firebird Structures is "a metal framing, drywall, stucco contractor," has eighty-seven employees, fifty-four of whom are carpenters, and has been in business for over six years. Draft Transcript of Motion Proceedings at 19:17–20:14, taken April 10, 2017 (Cannedy)("Tr.").²

3. Trent Cannedy is Firebird Structures' President. See Tr. at 19:12 (Cannedy).

4. Keven Conboy is a Firebird Structures' partner. See Tr. at 107:22–23 (Conboy).³

5. The Carpenters' Union is a labor organization operating in Bernalillo County, New Mexico, with its principal place of business at 3900 Pan American Fwy. NE, Albuquerque, New Mexico 87107. See Verified Complaint ¶ 2, at 1.

252 F.Supp.3d 1141

6. Firebird Structures does not recognize the Carpenters' Union as its employees' representative. See Verified Complaint ¶ 5, at 1.

7. No federal or state agency has required Firebird Structures to recognize the Carpenters' Union as a representative of Firebird Structures' employees for any purpose. See Verified Complaint ¶ 6, at 2.

8. The Carpenters' Union is engaging in an organizing campaign against Firebird Structures. See Declaration of John Whitesitt ¶ 1, at 1, filed April 7, 2014 (Doc. 10–1)("Whitesitt Decl."). See also Verified Complaint ¶ 14, at 3 (alleging that the Carpenters' Union sent letters to Firebird Structures' current and prospective business partners to encourage and coerce those entities to cease current and prospective contracts with Firebird Structures).

9. Firebird Structures does not pay its carpenters union-scale wages. See Tr. at 53:5 (Cannedy).

10. Juan Gonzales worked at Firebird Structures as a superintendent. See Tr. at 121:13–19 (Gonzales).

11. Gonzales has been a Carpenters' Union member since 2008. See Tr. at 130:20 (Gonzales).

12. On February 9, 2017, Cannedy planned to have lunch with Gonzales to discuss how "to move the company forward," but when Cannedy saw that "the local union guy [Randy Thornhill from the Carpenters' Union] was there," Cannedy "walked out of the restaurant." Tr. at 22:7–13 (Cannedy). Tr. at 121:23–122:14 (Gonzales).

13. Gonzales pursued Cannedy, and inquired about his sudden departure from the lunch meeting. See Tr. at 122:22–23 (Gonzales). Cannedy responded that "the union was just going to take money from his [Cannedy's] pocket." See Tr. at 123:3–4 (Gonzales).

14. Firebird Structures subsequently discharged Gonzales, within two or three days after the proposed February 9, 2017, meeting. See Tr. at 43:17 (Cannedy); id. at 44:5 (Cannedy); id. at 124:1 (Gonzales).

15. The parties dispute why Firebird Structures discharged Gonzales. Firebird Structures states that it "let go of Juan Gonzalez because of poor safety." Tr. at 43:17–18 (Cannedy). Gonzalez states that, after his inquiry about the reason for his termination, Robert Petzel, the Firebird Structures' employee who discharged Gonzales, did not say that Gonzales was being discharged for safety concerns, but only stated that "it's something that [Gonzales] had to talk to Trent [Cannedy] about." Tr. at 124:11–13 (Gonzales).

16. After Firebird Structures discharged him, Gonzales organized a meeting of Firebird Structure employees at the Carpenters' Union. See Tr. at 134:10–14 (Gonzales).

17. On or about Friday, February 10, 2017, approximately twenty-eight of Firebird Structures' employees went on strike to support the Carpenters' Union campaign against Firebird Structures. See Whitesitt Decl. ¶ 7, at 2; United States of America National Labor Relations Board Charge Against Employer at 2, filed April 7, 2014 (Doc. 10–4)("NLRB Charge Against Employer").

18. On that day, those employees went to the Carpenters' Union. See Tr. at 42:9–10 (Cannedy).

19. On that day, Robert Petzel, the Firebird Structures' manager...