NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3580

___________ U.S. INFORMATION SYSTEMS, INC.

v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL UNION NUMBER 164, AFL

- CIO, Appellant

v. GALE C ONSTRUCTION COMPANY; ERNST & YOUNG, LLP; PREFERRED COMMUNICATION TECHNOLOGIES; ABC CORPORATIONS 1

- 26; JOHN DOES 1

- 26

_______________________ On Appeal from the United States District Court for the District of New Jersey D.C. Civil Action No. 08

- cv - 01125 ( Honorable Jose L. Linares)

______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

September 10, 2012 Before: SCIRICA, ROTH and BARRY, Circuit Judges

.

(Filed : October 4, 2012 )

_________________ OPINION OF THE COURT

_________________2

SCIRICA, Circuit Judge

. The defendant, International Brotherhood of Electrical Workers Local Union Number 164 (“Local 164”), appeals the District Court‟s judgment in favor of U.S. Information Systems, Inc. (“Systems”) , finding Local 164 li able for unlawful labor practices under Section 8(b)(4)(i)(B) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(b)(4)(i)(B). We will affirm.
I This case arises out of a labor dispute between Local 164 and Systems. Systems provides techno logy installation services in the New York Metropolitan area. Systems
subcontracts with U .S. Information Services, Inc., which uses technicians affiliated with
the Communications Workers of America , AFL

- CIO, Local 1106 (“ Local 1106 ”). Local
164 is a labo r organization representing electricians affiliated with International Brotherhood of Electrical Workers (“ IBEW”) . There is a long standing dispute between Systems and Local 164 involv ing the rate of compensation for technicians , as Local 164
maintains Sys tems pay s its technicians below the area standard rates

. In 2006 , Ernst & Young , LLP, sent out a request for proposals for
telecommunication work at its office in Sec a u c us, New Jersey. Preferred Communication Technologies (“PCT”) and Star

- Lo Communication s are both contractors
who bid on the p roject. PCT planned to subcontract the installation of the telecommunication equipment to S ystems , while Star

- Lo would subcontract to Local 164.
PCT was awarded the contract , and Systems provided U

. S

. I nformation S e rvices, Inc.
technicians (Local 1106) to install the telecommunications equipment

.3

On Aug ust 16, 2007, Local 164 placed picket s at the site of the p roject , which
resulted in the p roject being shut down

. Local 164 contends the purpose of the picketing

was to publicize Systems‟ substandard wages; Systems counters that Local 164‟s intent

was to influence other trade empl oyees to refuse to work on the p roject in order to force
PCT to terminate its contract with Systems. When t he dispute could not be resolved, PCT terminated its agreement with Systems. S tar

- Lo replaced Systems on the p roject
and provide d Local 164 technicians to install the equipment. Systems brought a claim against Local 164 alleging the union‟s actions constituted a secondary boycott in vi olation of §§ 8(b)(4)(i)(B) and (D) of the National Labor
Relations Act (“NLRA”) . The District Court granted Systems‟ motion for summary judgment as to its secondary boycott claim under § 8(b)(4)(i)(B), but denied the remaining claims. 1 Local 164 appeale d. 2
II 3 Summary judgment is granted when viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The re is no genuine dispute of material fact where a reasonable jury could not find for the nonmoving

1 The District Court entered a final judgment in favor of Systems for $180,000; the amount of the judgment is not appealed. Defendant was granted summary judgmen t on Plaintiff‟s clai m for torti ous business interference. Plaintiff‟s application to enjoin Defendants from future secondary boycotts was denied. 2 The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 187. We have jurisdiction under 28 U.S.C. § 1291. 3 We review a district court‟s decision granting summary judgment under a de novo standard of review. Barefoot Architect, Inc. v. Bunge , 632 F.3d 822, 826 (3d Cir. 2011).4

party on the evidence. Gonzalez v. Sec’y of Dept. of Homeland Sec. , 678 F.3d 254, 2 61 (3d Cir. 2012). Section 303 of the Labor Relations Management Act (“L MRA”) , 29 U.S.C. § 187, provides a private cause of action for a party injured by a union‟s conduct defined as an unfair labor practice in § 8 of the NLRA. It is an unlawful labor practice for a union to engage in a secondary boycott. Section 8(b)(4)(i) (B) prohibits a union from inducing a person to refuse to work for a neutral employer with the purpose of compelling that employer from doing business with the primary, offending employer. Limbach Co. v. Sheet Metal Workers Int’l Ass’n , 949 F.2d 1241, 124 9 (3d Cir. 1991). 4 The secondary boycott provisions are intended to prevent a union from influencing a neutral third party‟s relationship with a primary employer in order to compel the primary employer to consent to the union‟s demands. Taylor Milk Co. v. Int ’ l B h d

. of Teamsters, AFL

- CIO , 248 F.3d 239, 246 (3d Cir. 2001). Regardless of whether “the „ sole object of the strike was secondary ‟ ” it is unlawful “ „ so long as one of the union‟s objectives was to influence the secondary employer to bring
pressure to bear on the primary. ‟ ” R.L. Coolsaet Constr. Co. v. Local 150, Int’l Union of Operating , 177 F.3d 648, 655 (7th Cir. 1999) (quoting Mautz & Oren, Inc. v. Teamsters

4 (b) Unfair labor practices by labor organization. It shall be an unfair labor prac tice for a l abor organization or its agents

-- (4) ( i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting 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; ... where in either case an object thereof is

-- (B) forcing or requiring any person ... to cease doing busin ess with any other person, ... Provided , That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any prim ary strike or primary picketing. 29 U.S.C. § 158(b)(4) (i)(B)

.5

Union, Local No. 279 , 882 F.2d 1117,1121 (7th Cir. 1989)

. The union‟s motive in
conducti ng the picket is a question of fact to be determined by an examination of the “totality of [the] union‟s conduct in [a] given situation.” Id

. ( quoting Int’ l Union of Operating Eng’r s Local 150, AFL

- CIO v. NLRB , 47 F.3d 218, 223 (7th Cir. 1995).
Local 164 contends the District Court erred in fail ing to analyze the case using the Moore Dry Dock standard. The Moore Dry Dock standard creates a presumption that picketing is a lawful primary activity when it meets four criteria. Sailors ’ Union of the
Pac. (Moore Dry Dock Co.) , 92 NLRB 547 (1950). “ However, Moore Dry Dock only sets up a presumption which is rebutted by evidence of an unlawful intent. Therefore,
whether Moore Dry Dock is used to examine union conduct or not, the question remains a
factual i nquiry into the union‟ s actual state of mind

. ” R.L. Coolsaet Constr. Co , 177 F.3d
at 655. See also, Fidelity Interior Const r ., Inc. v. Se. Carpenters Reg’ l , 675 F.3d 1250, 1263 (11th Cir. 2012) (“Even if the more „objective ‟ requirements of Moore Dry Doc k

... are satisfied, if the totality of the circumstances unequivocably [sic] demonstrates a secondary purpose existed, the picketing should be deemed unlawful.”). Accordingly, a union‟s unlawful purpose in picketing overcomes any presumption created under the Moore Dry Dock s tandard

. The Di strict Court found there was no genuine dispute that the true object of Local 164‟s picketing was to force PCT to terminate its contract with Systems (and Local 1106) and to award the project to one of its own signator ies. Loc al 164 claims the purpose of picket ing was to publicize that Systems was paying its techni cians below area standard wage. But Local 164 failed to present evidence that Systems‟ wages were substandard

.6

Moreover, Local 164 presented no evidence it made a “bona fide attempt ... to determin e if the Company was paying less than the area standards wage.” NLRB v. Int’ l Union of Operating Engineers , 624 F.2d 846, 849 (8th Cir. 1980). Local 164 ‟s failure to present evidence of Systems paying substandard wa ges coupled with the circumstances surrounding the picket ing demonstrates its true motive in the picket ing was not to publicize Systems wages. 5
In t he time period leading up to picket ing , Local 164 was aggressively pursuing
the p roject for its technician s. 6 The President of Gale Construction , Stephen Trapp, 7 testified at his deposition that d ays before picketing , a representative from Star

- Lo called
and said there was going to be “a problem with the IBEW relative to the telecommunication work,” and that he “ could solve the problems that are goi ng on down there.” Local 164 representatives Misciagna and Clay established the picket at the busiest entry points to the project with the understanding that tradesmen typically honor a picket line

. As a result of picket ing , approximately one hundred tradesmen stopped

5 Local 164 claims that it is fam iliar with Systems‟ wages because it has a long

- standing dispute with Systems regarding the wages it pays its technicians. But the record does not support this claim. Keith Misciagna, a business agent of Local 164, testified that (1) he did not understan d the distinction between Systems and U.S. Information Services, (“At the time of the picket, I did not know the difference between the two organizations.”); (2) he did not know if Systems had subcontracted the work to anyone; (3) he did not know whether t he copy of the CBA was between Systems or USIS and Local 1106 of the CWA; and (4) he did not know the hourly rate of USIS‟ technicians at the time of the picket. 6 Local 164 made $50,000 in Target Funds available to Star

- Lo in order to obtain the project. Even after the project was awarded to Systems, Local 164 continued to make this money available in the hopes of obtaining the contract. 7 Gale Construction Company was the general contractor managing the project.7

working on the project which halted construction. 8 The p roject stopped, and Local 164 agreed to terminate picket ing in exchange for Systems not working on the p roject. 9 James Zappala , PCT‟s presiden t, attempted to obtain a resolution to end Local 164‟s picketing and allow the project to proceed but Local 164 representatives were not receptive. 10 Local 164 once again offered its target funds in an attempt to obtain the
p roject for its technicians . S tar

- Lo was ultimately awarded the contract and used Local
164 technicians for the work on the p roject. Finally, PCT‟s letter to Systems terminating
the contract explained picket ing necessitated the termination of the work agreement. The September 11, 20 07, letter reads: I regret having to terminate our agreement because it is evident that [Systems] is fully capable of bring[ing] in this project on time and on budget with the highest level of quality. Unfortunately, due to the picket at the site by the IBEW Local

8 Clay testified that as a resu lt of the picket approximately one hundred people were outside the building honoring the picket. 9 Trapp testified: Q: You said you spoke with Steve and Keith [of Local 164], ... regarding them leaving in exchange for USIS not working on the project; is that correc t? A: Regarding, you know, removing the picket line, right. Q: And did those individuals then remove the picket line? A: Yes, I believe so. 10 Zappala testified: Q: During the course of that conversation with Mr. Misciagna, he never agreed to any type of s olution for this matter, did he? A: No. I had a hard time getting anything out of him. I got stonewalled. Q: While you were having the conversation with Mr. Misciagna, did you get the sense that he was going to give you a viable resolution to this matter ? A: I think he had a resolution, but he wasn‟t going to speak. He was very careful not to state it. Q: What was that resolution? A: My conclusion was that there would be no resolution until an IBEW contractor was on that project. He told me that he had b een there. He had been lobbying for this. That basically they owned it. They did the majority of the work. And he wasn‟t going away.8

164 and the offer of target funds by Star

- Lo Electric, I was placed in a position by Ernst & Young with no other option. The IBEW had placed enough fear in Ernst & Young that if I did not bring in an IBEW contractor the project would be in ser ious jeopardy. No reasonable jury could find on this evidence the sole motive for Local 164‟s picket ing was t o publicize substandard wages. Instead, all evidence shows the picket ing was to compel PCT to award the contract to one of Local 164‟ s affiliates

. Because the purpose of Local 164‟s picket ing was to induce a neutral third party to cease doing business with Systems, Systems is entitled to judgment as a matter of law. Accordingly, summary judgment was proper
. III For the foregoing reasons, we will affirm the District Court‟s judgment in favor of Plaintiff for $180,000.