United Tech. Com. v. Intern. Broth. of Elec. Wkrs.

• Decision Date: 08 November 1984
• Docket Number: No. 81 Civ. 5911 (IBC).,81 Civ. 5911 (IBC).
• Citation: 597 F. Supp. 265
• Parties: UNITED TECHNOLOGIES COMMUNICATIONS COMPANY, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 3, Defendant.
• Court: U.S. District Court — Southern District of New York

597 F. Supp. 265

UNITED TECHNOLOGIES COMMUNICATIONS COMPANY, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 3, Defendant.

No. 81 Civ. 5911 (IBC).

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

November 8, 1984.

COPYRIGHT MATERIAL OMITTED

Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City by Stephen E. Tallent, New York City, William F. Highberger, Burton J. Fishman, and Gibson, Dunn & Crutcher, Washington, D.C. by Wayne A. Cross, David S. Elkind, New York City, for plaintiff.

Norman Rothfeld, New York City, for defendant.

OPINION ON LIABILITY PHASE AFTER NON-JURY TRIAL

IRVING BEN COOPER, District Judge.

This is a damage action against a local union under Section 303 of the National Labor Relations Act, as amended ("the Act") (29 U.S.C. § 187)¹ for injuries to plaintiff allegedly arising from defendant's violations of Section 8(b)(4) of the Act 29 U.S.C. § 158(b)(4).² It was bifurcated into a first phase non-jury trial on liability, now completed, and a second phase on damages, to be scheduled.³ This opinion, which disposes of motions made during trial, contains the Court's findings of fact and conclusions of law as required under Rule 52 of the Federal Rules of Civil Procedure.⁴

Jurisdiction and Parties

Defendant is Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Local 3). It is an unincorporated association in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. (Stipulation of Fact 1). Local 3's principal office is at 158-11 Jewel Avenue, Flushing, New York and it is engaged within this judicial district in transacting business and in promoting and protecting the interest of its employee-members. (Stipulation of Fact 2).

Plaintiff is United Technologies Communication Company ("UTCC"), a Delaware corporation. Since July 23, 1982, it has been engaged in the business of selling, installing and maintaining private telephone systems with premises located at 420 Lexington Avenue, Suite 540, New York, New York. UTCC, in the normal course of business operations, receives goods and products directly from suppliers located outside the State of New York valued annually in excess of $50,000. It is an employer engaged in commerce and in business affecting commerce within the meaning of § 2(1), (2), (6), and (7), § 8(b)(4), and § 303 of the National Labor Relations Act ("the Act"). (Stipulation of Fact 5).⁵

Plaintiff's technical employees, though not covered by Local 3, have union affiliation. It has collective bargaining agreements with Communication Workers of America, AFL-CIO (CWA), which are administered, insofar as they cover employees at their New York facilities in the classifications of installer technicians, communications technicians and senior communications technicians, by Local 1109. (Stipulation of Fact 10). Local 1109 is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment and conditions of work. (Stipulation of Fact 3). Its principal office is in Brooklyn, New York and it is engaged in this judicial district in transacting business and in promoting and protecting the interests of its employee-members. (Stipulation of Fact 4).

The Complaint and Pre-Trial Order

Plaintiff's complaint sets forth two separate causes of action for damages. The first arises from allegedly illegal secondary boycotts in violation of § 8(b)(4)(B) of the Act, 29 U.S.C. § 158(b)(4)(B). The second is for allegedly illegal jurisdictional disputes in violation of § 8(b)(4)(D) of the Act, 29 U.S.C. § 158(b)(4)(D).⁶ Under these causes, plaintiff must plead and prove defendant's secondary boycott or jurisdictional objective and either that defendant induced or encouraged one or more individuals employed by any person engaged in commerce to engage in "a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services" (§ 8(b)(4)(i)), or "threatened, coerced, or restrained any person engaged in commerce or in an industry affecting commerce" (§ 8(b)(4)(ii)).

More specifically, the essential allegations of the complaint state that:

(a) at one site, Two Broadway, New York City, the defendant "repeatedly interrupted GDCC's employees and prevented them from work" and "refused to continue work on their jobs if GDCC and its employees were permitted to continue installing a telephone system," and "have cut light cables, have caused temporary lighting to be cut off in the area of GDCC's work, and otherwise have harassed and threatened GDCC," (Complaint ¶¶ 10-15), resulting in damages of "approximately $30,000 by virtue of the delays and installation schedule disruptions caused by defendants." (Complaint ¶ 20).

(b) at a second site, One Broadway, New York City, the defendant "refused to continue work on the job if GDCC's subcontractor Triboro were permitted to continue installing the telephone system," and "cut electrical cables," as a result of which "the party with whom GDCC had contracted to install a telephone system cancelled the work," resulting in damages of approximately $100,000 (Complaint ¶¶ 16-20).

(c) GDCC further claimed damages of "a not yet determined loss of potential business" (Complaint ¶¶ 21 and 24).

(d) one purpose of defendant's conduct was to force employers and their employees to cease doing business with GDCC (Complaint ¶¶ 22 and 26).

(e) another purpose of defendant's conduct was to force GDCC to assign particular work to employees that Local 3 represents (Complaint ¶¶ 23 and 26).

Defendant's answer generally denies knowledge of and responsibility for the acts alleged in the complaint and claims that plaintiff failed to state a claim upon which relief may be granted.

The pre-trial order, dated November 1, 1982, identifies, in addition to the two sites on Broadway, New York, ten potential customers in New York City by name as to which plaintiff claims damages for lost sales under the complaint (Complaint ¶¶ 21 and 24). Certain evidence as to them was adduced at trial over defendant's objection that plaintiff had failed to move for leave to amend its complaint, thereby depriving defendant of an opportunity to move to dismiss on the pleadings for lack of statutory jurisdiction and for failure to state a claim (Defendant's Post-Trial Memorandum, p. 3). Defendant's objection is rejected. It has neither claimed nor shown prejudice in discovery or in asserting legal defenses; the complaint had put it on notice that the damages sought included lost sales and were not limited to the Broadway sites; and plaintiff's discovery early addressed the claimed lost sales. In any event, plaintiff's complaint is deemed amended to conform to the proof at trial and any effort to show absence of statutory jurisdiction can be renewed at the phase II trial proceedings in this action.

In addressing the multiple contentions and factual issues raised by the parties, we will divide this opinion, after some background comments and findings, into six additional sections. The first two contain factual findings relating to the Broadway sites where GDCC had contracts to sell and install telephone equipment which were terminated or modified allegedly because of Local 3's unlawful actions. The third addresses collateral estoppel issues arising from prior decisions of the National Labor Relations Board (NLRB) which discussed these Broadway sites. The fourth turns to evidence of claimed lost sales to potential GDCC customers. The fifth contains discussion of legal issues and certain ultimate legal conclusions. The final section sets forth the Court's direction as to further proceedings in this action.

Background

Plaintiff makes much of the long history of Local 3's conduct as shown by legislative materials,⁷ administrative and judicial proceedings⁸ and agency findings in recent administrative cases arising from facts at issue here,⁹ all of which found Local 3 to be in violation of law. Indeed, as Judge Edward Weinfeld noted early in this case in an injunctive context (requiring only a finding of reasonable grounds to believe the facts alleged) concerning defendant's conduct at the One Broadway site at issue, there is evidence to show that "at different sites in the Metropolitan New York area where workers of CWA, plaintiff's employees' union were engaged in telephone installation work, respondent and its members pursued a persistent and recurrent pattern of conduct in the enforcement of its total job policy which resulted in strikes or stoppages and other conduct proscribed by the Act. Citing Fed.R.Evid. § 404(b) and U.S. v. Chestnut, 533 F.2d 40, 49 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976)." Silverman v. Local 3, IBEW, 110 LRRM 2242, 2245 (S.D.N.Y. 1981).

The "total job policy" finds expression in section 12 of Article XIII of the by-laws of Local 3 which are given to members of the Local (Pl. Trial Ex. 25, Sections 10 and 12, at 21):

"No member is to give away work coming under the jurisdiction of this Local, or to allow any other tradesmen to do work coming under this Local's jurisdiction."

In effect for many years (Stipulation of Fact 16), this by-law has been the subject of rulings by the National Labor Relations Board (the "Board") and Courts of Appeal, and has been specifically held by the Board to be an illegal inducement to strike in violation of § 8(b)(4)(i). Local No. 3, IBEW (L.M. Ericsson Telecommunications, Inc.), 257 NLRB 1358 (1981) enforced by consent order, No. 82-4030 (2d Cir.1982). See IBEW v. NLRB, 341 U.S. 694, 701-02, 71 S.Ct. 954, 958-59, 95 L.Ed. 1299 (1951) ("The words `induce or

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