49, 73, 80, 85-86, 88, 96.) Though these pickets occurred at different sites on different dates, the
Union concedes that they were all a part of a single strike against ECS, (Def.’s Resp. Pl.’s LR
56.1(b)(3)(B) Sumt. 4] 19.) Asa result, ECS says, proof of unlawful motive at one any site taints the
motive for the whole strike.

Not surprisingly, the Union disagrees. In its view, each site must be judged separately, and
any proof of unlawful motive must be confined to the site with which it is associated.

The Court agrees with ECS. The Union admits that all of its pickets were part of a single
strike action against HCS and that “the abject for picketing ECS remained consistent at each site and
time throughout the picket.” (1d.) Given those undisputed facts, it is appropriate to view the
picketing against ECS, and the Union’s motivation for it, as a whole.’

Viewed favorably to ECS, as it must be, the record contains sufficient evidence of unlawful
motive to defeat the Union’s motion. First, Union business agent Kevin Burke admits that the intent
behind the ECS picket was to get neutral partics on the sites to slop working. (ECS* App. Opp’n
Summ. J., Ex. 15, Burke Dep. at 17-18.) Though Burke’s statement could also be interpreted
innocently, i.e., that the Union hoped, but did not intend, that neutrals would honor their picket, it
is ECS, not the Union, that is entitled to all reasonable inferences from the evidence. Because
Burke’s statement supports the inference that the Union harhored impermissible secondary intent,
at this stage, that is how we must interpret it.

ECS also says that the Union never picketed it at its own offices, but chose to picket only

where ncutral employers were present, (P1.’s LR $6.1(b)(3)( B) 4] 23), another sign of unlawful intent.

‘Given the facts of this case, we need not, and do not, decide, as ECS urges, that it is always
proper to treat mulli-site pickets as one unit.

-d-


of appeals has emphasized, those standards arc only a guide Compliance with Moore Dry Dock
docs not sanilize section 8(b)(4) violations when there is independent evidence of unlawful intent.
R.L. Coolsaet, 177 F.3d at 655.

Viewed favorably to ECS, the record reveals such independent evidence with respect to all
eight sites, including: (1) Kevin Burke’s statement that the purpose of each ECS picket was to get
other trades to stop working (ECS’ App, Opp’n Summ. J., Ex. 15, Burke Dep. at 17-18); (2) the
Union’s decision to picket ECS only where neutral employers were present (PI.’s LR 56.1(b)(3)(B)
4 23); (3) the Union’s direct appeals to neutrals at the Woodland School and Glenview Middle
School sites 10 honor the pickets (Id. 4] 56, 62, 82), (4) the Union’s request that other unions aks
their members to honor the pickets (id. {¥] 62, 69); and (5) the Union’s statements to the managers
of the Target Store site at 87" and Cottage Grove, the Residenecs of Lakeshore Drive, 55 East Erie
and the Venetian projects that picketing would continue until a union testing contractor was hired
to replace ECS (id. {f{ 26-27, 34-36, 77-78, 86). Because there is evidence to suggest that the Union
intended to enmesh neutrals in this dispute, even at the sites where its picketing complied with
Moore Dry Dock, ECS has established a sufficient nexus between the Union’s allegedly unlawful
conduct and its damages to defeat this motion.

Even if causation evidence exists for the other sites, the Union insists that it is absent for 71
West Wacker. According to the Union, the record establishes that its actions at that site were
directed at STS, another testing company, not ECS. There is some force to the Union’s argument.
For example, the Union asserts, without contradiction, that it did not even know ECS was on site
when it picketed at 71 West Wacker. (Seg Def.’s LR 56.1(a)(3) Stmt. 4] 157; Pl.’s LR 56.1(b)(3)(A)

Stmt. § 157.) Moreover, though the record suggests that the Union told the project managers thal

-9-



impermissibly coercive. Sce, ¢.g., R.L. Coolsact, 177 F.3d at 656 (statements to sccondarics that
“the pickets would remain until [the primary] was removed” from the site “strongly support the
notion that at least one of Local 150’s purposes was to exert secondary pressure); N.L.R.B. v. Local

307. Plumbers, United Ass’n of Joumeymen & Apprentices of Plumbing & Pipe Fitting Indus. of

US. & Canada, 469 F.2d 403, 409 (7" Cir, 1972) (affirming NLRJB’s finding that union intended
to exert secondary pressure by, among other things, telling sccondary employer the only way to end
picketing was to replace primary with a union plumber).

In the Union’s view, its requests to neutrals to honor the pickets betrays no unlawful intent.
Such requesis were explicitly sanctioned by the NLRB, it says, in Teamsters, Chauffcurs,

Warehousemen & Helpers, Local $42, 191 N.L.R.B. 515 (1971) (“Shaker Express”). In that case,

a union member lawfully picketing a delivery service, followed one of its trucks to two different
customer locations, informing the clerks of the picket and asking them not to accept the shipments.
Id. at 525. Because the picketing was presumptively lawful and the “[t]here [was] no indication that
the appeal to either clerk was aimed at disruption of the business of his employer,” the Board said
it was not illegal secondary activity. Id.

But the Union’s alleged conduct at the Woodland School site is quite different from that of
the Teamsters in Shaker Express, According to ECS, Union representatives asked neutral truck
drivers to honor their picket, even when ECS was not on site. (Pl.’s LR 56.1(b)(3)(B) Stmt. ff] 53-
56.) They also asked other, sympathetic unions representing neutral employees to intercede on its
behalf, which they did, effectively shutting the job down. (kL. { 61-70.) Finally, lest any neutral
employee be tempted to cross the picket line, the Union stationed an “observer” at the neutral gate

to videotape the activities there. (Id. {{{] 59-60.) Those facts suggest that the Union’s appeals to

-6-



Scc, c.g., RL. Coolsaet, 177 F.3d at 655-56 (ailirming district court’s holding that union violated
section 8(b)(4) based, in part, on finding that “union[] [ailled] to target [the primary employer] with
its pickets and focus[ed] instead on areas where it knew [the neutral employer] was working”). In
addition, there is evidence to suggest thal the Union: (1) asked truck drivers who approached the
Woodland School and Glenview Middle School sites to honor the pickets (PI.’s LR 56.1(b)(3)(B)
Stmt. Tf 56, 62, $2); (2) asked the business agents for other unions on the Woodland School project
to honor the Union’s pickets (id. 4] 62, 69); and (3) had “an observer,” who was patrolling the
neutral gate at the Woodland Schoo! site, videotape people who entered the site (id. §] 59-60), all
of which are impermissible attempts to enmesh neutral cmployces in the dispute. See, e.g., Texas

Distrib., Inc. v. Local Union 100, United Ass'n of Jouneymen & Apprentices of Plumbing &

Pipefitting Indus. of U.S. & Canada, 598 F.2d 393, 399 (5" Cir, 1979) (telling other unions that
routinely honor picket lines about planned picket indicales unlawful motive), abrogated in part on

other grounds, Summit Valley Indus., Inc. v. Local ]12, United Bhd, of Carpenters & Joiners of Am.,

456 U.S. 717 (1982); N.L.R.B. v. Uniled Slate, Tile & Composition Roofers, No. 89-3388, 1992 WL

372381, al *18 (3" Cir. Ang. 10, 1992) (stating that union “intimidated neutral employees and
supplicrs by videotaping and photographing them”). Finally, there is evidence that the Union told:
(1) the managers of the Target Store site at 87th and Cottage Grove that picketing would continuc,
even though ECS was off site, unti] the Union received a letter from Target saying that ECS would
no longer be used on the project (id. {| 77-78); (2) the managers of the Residences of Lakeshore

Drive and 55 East Eric projects that the only way to end the picket was to hire a union contractor for

the testing (id, | 26-27, 34-36); and (3) the managers of the Venetian at 230 West Division that ECS

could not be on the site because it was non-union (id, 4] 86), statements that have been deemed



In addition to that direct evidence of the Union's intent, the record also suggests that the
Union violated the Moore Dry Dock standards at several of the sites. ECS has offered evidence that:
(1) the Union picketed at the Woodland School, the Glenview Middle School and the University of
Chicago Ratner Center sites when no ECS employec was present (PI.’s LR 56.1(B)(3)(B) Stmt. 4]
43, 52-56, 84); (2) the Union picketed the neutral gate at the University of Chicago Ratner Center
site afler a reserve gate had been designated for ECS (id. "| 46-47); and (4) the Union handbilled the
Glenview Middle School site with handbills that did not identify ECS as the target (id. $79).

Even if there is some evidence of unlawful intent, the Union says that evidence of causation
is sorely lacking. Section 303 of the LMRA permits anyone who is “injured in his business or
property by reason of a violation of (Section 8(b)(4)]” to sue for damages. 29 U.S.C. § 187. Thus,
ECS can only recover if there is a nexus between the allegedly unlawful activity and its injuries. In
the Union’s view, to the extent there is any cvidence of unlawful activity, it is confined to the
University of Chicago Ratner Center, Woodland School and Glenview Middle School sitcs, sites for
which ECS seeks no damages. (See Def.’s Materials Supp. R. 56.1 Stmt., Ex. 30, 3/24/03
Stipulation at 2.) Because the record shows that the Union complied with Moore Dry Dock at the
five other sites, the Union says the causal nexus between the allegedly unlawful activity and ECS’
damages is missing.

The Court disagrees. The Union draws an artificial distinction between unlawful conduct
and unlawful intent. Section 8(b)(4) deems the Union’s conduct unlawful if it induced or
encouraged neutral employees to stop working to force the sile managers to sever their relalionships
with ECS, In other words, whether the Union’s conduct was unlawful, depends on ils intent. Courts

try to divine intent from conduct, using the Moore Dry Dock standards as a guide. But, as out court

-8-


‘Minute Order Porm (06!)

United States District Court, Northern District of Mlinois

Name af Assigned Judge Paul B. Plunkett Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 3938 DATE 10/29/2003
CASE Engineering Consulting Services vs. International Brotherhood of Operating Engineers,
TITLE Local 150
[In the following box (u) indicate the party filing the motion, ¢-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]

DOCKET ENTRY;

qa) a Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion duc _
(3) Q Answer brief to motiondue__. Reply to answer bricf due
(4) a Ruling/Hearing on setfor at
(5) | Status hearing held and continued to 12/10/03 at 9:30A.M..
(6) Qa Pretrial conference [held/continued to] [sct for/re-set for] on __ set for at.
(es) o Trial[set for/re-set for] on _ at
(8) i (Bench/Jury trial] [Hearing] held/continucd to __ at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to]
CiFRcP4(m) (C) Local Rule 41.) OOFRCP41(a)(1) O FRCP41(a)(2),
(10) MJ (Otherdocketentry]) ENTER MEMORANDUM OPINION AND ORDER: The Union’s Rule 56(c)
motion for summary judgment is denied. Final pretrial order to be submitted on 12/10/03.
dl) of {For further detail see order attached to the original minute order.]
No notices required, advised in open court,
—
No notices required. MEL number of route
Notices mailed by judge’s staff.
Notified counsel by telephone. an
| Docketing to mail notices.
Mail AQ 450 form, i Cannan irae) docketing sou inate
Copy to judge/magistrate judge,

date yuiled notice
courtroom

deputy's
initials

TBK

Date/time received in
contrat Clerk's Office

railing deputy iniials



quantify damages at two of the eight sites. ECS admits that Gitskin was initially unable to provide
a full accounting of ECS’ damages, but says he can do so now with the help of a report from an
expert witness that ECS has since withdrawn. The propriety of Gitskin’s reliance on that expert
report is the subject of a motion currently pending before Magistrate Judge Keys. Until that motion
is resolved, the damages issuc is nol ripe for decision. Consequently, the Union is given lcave to
renew ils motion for summary judgment solely on the damages issue, if such is appropriate, alter the

motion concerning Brett Gitskin’s use of the expert report has been resolved.

Conclusion
For the reasons set forth above, the Union’s Rule 56(c) motion for summary judgment is
demicd,

ENTER:

UNITED STATES DISTRICT JUDGE

DATED: {0 [A Glo i)

-11-


the picketing, which had shut down the job and was occurring even when no STS employees were
on site, would end only when STS was replaced by a union firm, (PI.’s LR 56.1(b)(3)(B) Sunt. {4
96-100), there is no evidence that the Union made similar statements with respect to BCS.
Unfortunately for the Union, there is also cvidence that the picketing ended when ECS was
terminated, even though STS remained on the job. (Id. 4/101.) ‘That single fact is sufficient, if not
overwhelming, evidence that the Union’s actions at 71 West Wacker were directed against ECS
Accordingly, the Union is not entitled to summary judgment with respect to that site.

Finally, the Union contends that its motion should be granted because: (1) ECS’ damage
evidence, in general, is insufficient; and (2) it cannot, as a matter of law, recover for profits lost as
a result of lost opportunities to bid on future contracts because such damages are too speculative.
We will address the latter issue first.

Unlike some other courts, the Seventh Circuit has not ruled that lost profits on future
contracts are always too speculative to be recoverable, Rather, the court has said that such damages
are recoverable if they can be cstimated with reasonable certainty. See BE&K Const. Co. v. Will

& Grundy Counties Bldg. Trades Council, 156 F.3d 756, 770 (7" Cir, 1998). Moreover, our court

of appeals has said, when “the uncertainty as to the damages stems from the defendants’ illegal
conduct, the defendants should not bencfit from the uncertainty they created: Speculation has its
place in estimating damages, and doubts should be resolved against the wrongdoer.” id. (internal
quotation marks and citation omitted). Thus, to the extent BCS can reasonably quantify ils alleged
damages for lost future profits, it can recover for them.

That brings us back to the first issue: Has ECS adequately quantified its damages?

According to the Union, Brett Gitskin, the witness proffered by ECS on damages, was only able to

-10-


neutral employccs, unlike those of the Teamsters in Shaker Express, were designed to disrupt the
business of secondary employers, a clear violation of section 8(b)(4).

The Union also contends that its suggestion to various project managers that they hire union
testers is lawful under N.L.R.B. v. Servette, 377 U.S. 46 (1964). In that case, a union that was
striking Servette, a supplier of goods to food stores, asked food store managers to discontinue
handling Servette’s goods or risk handbilling at their stores asking customers not to buy Servettc-
supplied products. Id. at 47-48. The Supreme Court held that the union’s conduct did not violate
section 8(b)(4):

[T]he Local, in asking the managers not to handle Servette items, was not attempting

to induce or encourage them to ccase performing their managerial dutics in order to

force their cmployers to cease doing business with Servette. Rather, the managers

were asked to make a managerial decision which the Board found was within their

authority to make.

Id, at 50-51, In Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252 (1964),
the Court put it another way: “A union is free to approach an employer to persuade him to engage
in a boycott, so long as it refrains from the specifically prohibited means of coercion through
inducement of employecs.” Id, at 259 (internal quotation marks and citation omitted).

Viewed favorably to ECS, the record precludes the Union from taking refuge in Servette.
The Teamsters in Servette did not close down the food stores, by inducing lower-level employees
to stop work, before asking the slore managers not to handle the struck goods. But that is exactly
what the Union is alleged to have done here: shut down job sites by inducing all neutral employces
to stop working and then “suggesting” to management that a union testing contractor be hired.

Because the Union’s alleged statements were not simply non-coercive requests for support, Servette

does not shield it from suit.



Discussion
Section 8(b)(4) of the NLRA prohibits the Union from picketing ECS at a shared work site
if one of the objects of thal picketing is to induce or encourage neutral employees to stop work so
their employers will cease doing business with ECS. See 29 U.S.C. § 158(b)(4). Section 8(b)(4) is
not violated, however, simply because the Union’s picketing has substantial or foresceable secondary

effecis. Mautz & Oren, Inc. vy. Teamsters, Chauffeurs & Helpers Union, Local No. 279, 882 F.2d

1117, 1121 (7" Cir. 1989). Rather, such picketing is unlawful only if the Union “intend|s] to cnmesh

[a] sccondary employer in the dispute.” R.L. Coolsaet Constr. Co. v. Local 250, Int’) Union of

Operating Eng’rs, 177 F.3d 648, 655 (7" Cir, 1999) (internal quotation marks and citation omitted).
To assess the Union’s intent, we turn to the standards sct out by the National Labor Relations

Board in In re Sailors’ Union of the Pac., 92 N.L.R.B. 547 (1950) (“Moore Dry Dock”). According

to the NLRB, picketing at shared work sites is lawful if it meets (he following standards:

(a) The picketing is strictly limited to times when the situs of dispute is located on

the secondary employer's premises; (b) at the time of the picketing the primary

employer is engaged in its normal business al the situs; (c) the picketing is limited

to places reasonably close to the location of the situs; and (d) the picketing discloses

clearly that the dispute is with the primary employer.
Jd, at 549. The Moore Dry Dock standards are not dispositive, however. Rather, compliance with
the standards merely creates a presumption of legality that can be rebutted by evidence of unlawful
intent. R.L. Coolsaet, 177 F.3d at 655.

The Union picketed at least eight of ECS’ work sites .- the Residences of Lakeshore Drive,

55 East Erie, the University of Chicago Ratner Center, the Woodland School, Target at 87" and

Cottage Grove, Glenview Middle School, the Venctian at 230 West Division and 71 West Wacker

—on various dates between February and December 2002, (PI.’s 56.1(b)(3)(B) Stint. ff 25, 32, 39,



of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), We view all
evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls
of Ill, Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the

record as a whole establishes that no reasonable jury could find for the non-moving party, Id.

Background

ECS, a Virginia corporation that has an office in Buffalo Grove, Illinois, provides material
testing services to property owners and construction project managers. In the summer of 2001, the
Union began a campaign lo organize employees in the material testing industry. On February 5,
2002, the employees of ECS voted against Union representation in an NLRB-administered clection

The Union challenged the results of the clection, charging ECS with a variety of unfair labor
practices. An NLRB hearing olficer rejected the Union’s challenges.

The Union appealed. On June 11, 2002, the NLRB rejected the Union’s appeal and certilicd
the results of the clection.

Before the Union’s appeal was decided, however, it picketed at various ECS work sites
including: the Residences of Lakeshore Drive, 55 East Erie, the University of Chicago Ratner
Center, the Woodland School, Target at 87" and Cottage Grove, Glenview Middle School, the
Venetian at 230 West Division and 71 West Wacker. ECS claims that the picketing was intended
to, and did, induce neutral employees to stop working so their employers would ccase doing business
with ECS, a violation of section 8(b)(4) of the NLRA. The Union says that there is no evidence that

it violated the Act and seeks summary judgment on ECS’ claims.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION CHETED

act 3 g 2003

ENGINEERING CONSULTING
SERVICES, LTD.,

Plaintiff,

No. 02 C 3938
Paul E, Plunkett, Senior Judge

Y,

INTERNATIONAL BROTHERHOOD OF
OPERATING ENGINEERS, LOCAL 150

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Engineering Consulting Services, Ltd. (“ECS”) has sued defendant International
Brotherhood of Operating Engineers, Local 150 (“the Union”) pursuant to section 303 of the Labor
Management Relations Act, 29 U.S.C. § 187 (“LMRA”), for its alleged violations of section 8(b)(4)
of the National Labor Relations Act, 29 U.S.C. § 158 (“NLRA”). The Union has filed a Federal
Rule of Civil Procedure (“Rule”) 56(c) motion for summary judgment. For the reasons set forth

below, the motion is denied.

The Legal Standard
To prevail on a summary judgment motion, “the pleadings, depositions, answers lo
interrogatories, and admissions on file, together with the affidavits, if any, [must] show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). At this stage, we do not weigh evidence or determine the truth

L&