United States District Court, E.D. Pennsylvania
F. KELLY, Sr. J.
Presently before the Court is the Second Motion to Dismiss
or, in the Alternative, to Stay Proceedings Pending
Arbitration filed by Defendant Local Union No. 690 of the
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada (“Local 690”), Plaintiff Voegele
Mechanical, Inc.'s (“Voegele”) Memorandum of
Law in Support of Reply in Opposition to Motion to Dismiss,
Local 690's Reply, and Voegele's Sur-Reply. For the
following reasons, Local 690's Motion to Dismiss is
about September 11, 2017, Voegele entered into a contract
with Hutter Construction Corporation (“Hutter”)
whereby Voegele agreed to provide and install a central
heating and plumbing system for a new multi-unit apartment
complex located at 401 Race Street in Philadelphia,
Pennsylvania (the “Project”). (Am. Compl.
¶¶ 10, 14.) Hutter acted as the general contractor
for the Project. (Id. ¶ 14.) Both non-union and
union contractors and members performed work on the Project.
(Id. ¶¶ 13, 15, 17.)
and Local 690 are parties to a collective bargaining
agreement (“CBA”) effective May 1, 2016 to April
30, 2019. (Id. ¶¶ 6, 7, Ex. A (CBA).) The
CBA contains a no-strike clause, as well as a grievance
procedure culminating in arbitration. (Id.) The CBA
contains the following arbitration clause:
It is mutually agreed that all disputes of any nature
whatsoever which may arise between the parties hereto, or
their respective individual members, shall be submitted to
the Joint Arbitration Board, which shall consist of three (3)
members of EMPLOYERS' ASSOCIATION and three (3) members
of the LOCAL UNION.
(CBA art. XXIII, § 1 - Adjustment and Arbitration of
Disputes.) Under Article VIII of the CBA, Local 690 agreed to
furnish competent plumbers and apprentices to Voegele
Mechanical. (CBA art. VIII, § 1 - Union Membership.) In
Appendix A to the CBA, the Union agreed there would be no
work stoppages “due to unauthorized or illegal strikes,
lockouts, disputes, or grievances.” (CBA app. A.)
Appendix A further provides that “[w]orkmen shall be on
the job at the designated starting time, and will not leave
until the designated quitting time.” (Id.)
Further, Article XXIII of the CBA sets forth procedures for
the settlement of disputes and grievances arising under the
terms and conditions of the CBA, and provides that all
questions involving the interpretation of the CBA shall be
referred to a grievance procedure ending in binding
arbitration, and that no dispute, whether jurisdictional or
otherwise, shall result in any stoppage of work or lockout
during any dispute. (CBA art. XXIII - Adjustment and
Arbitration of Disputes.)
October 2017, a labor dispute arose at the Project. On or
about October 27, 2017, members of a different trade union
set up a picket line at the Project to protest the presence
of a non-union contractor working on the Project.
(Id. ¶ 15.) Voegele alleges that its union
member employees left the Project because of the picket line.
(Id. ¶ 16.) Hutter then set up a dual or
reserve gate system whereby one entrance to the Project was
for use of union contractors, their employees, and their
suppliers and the other gate for the non-union contractors,
their employees and suppliers. (Id. ¶ 17.)
Voegele alleges that Local 690 induced, encouraged, and told
its members to refuse to honor the dual gate system and to
not cross any picket line. (Id. ¶ 18.) It
further alleges that Local 690 instructed its members to do
so in writing through a card which it distributed to its
members working on the Project. (Id.)
March 2018, members of the local Northeast Regional Council
of Carpenters Union (the “Carpenter's Union”)
began picketing the non-union gate at the Project.
(Id. ¶ 19.) The Carpenters Union does not
represent Voegele's employees and they did not picket the
gate or entrance used by Local 690 members. (Id.)
However, Voegele alleges that its employees represented by
Local 690 followed Local 690's orders and refused to
cross the Carpenter's Union's picket line.
(Id. ¶ 20.) The Carpenter's Union picketed
the Project throughout April 2018 and each time, as Local 690
allegedly ordered, Voegele's employees refused to report
for work. (Id. ¶¶ 22-25.) Ultimately,
Hutter informed Voegele that it was in breach of its contract
with Hutter because it was unable to consistently provide
labor to the Project and terminated Voegele's contract.
(Id. ¶ 28.) Hutter's termination caused
Voegele to lose an estimated $675, 000 in lost profits.
(Id. ¶ 31.) On or about July 20, 2018, Voegele
was forced to shut down and go out of business. (Id.
19, 2018, Voegele filed a Complaint against Local 690.
(See Doc. No. 1.) On August 7, 2018, Voegele filed
an Amended Complaint against Local 690, which includes Count
One “Violation of Section 303 of the Labor Management
Relations Act” (“Count One - Section
303/Secondary Boycott”) which relates to allegations of
a secondary boycott in violation of the fair labor standards,
Count Two “Breach of Contract in Violation of Section
301 of the Labor Management Relations Act”
(“Count Two - Section 301/Breach of CBA”)
regarding a breach of the CBA. (See Doc. No. 4.)
Count One - Section 303/Secondary Boycott states:
35. Since on or about March 2018, Local 690, through its
officers, agents, representatives and members, engaged in, or
induced or encouraged members employed by Voegele Mechanical
to engage in a unlawful strike or work stoppage, and
concerted suspension of work, and/or endorsed or ratified the
actions of its members in engaging in an unlawful strike or
work stoppage, where a goal of the strike or work stoppage,
where the goal was not to preserve work for Voegele
Mechanical employees, but rather was to coerce or restrain
secondary employers such as union contractor Voegele
Mechanical, and the general employees and the general
contractor, to cease doing business with non-union
contractors on the 401 Race Street job.
36. The Union's unlawful strike, work stoppage and
concerted suspension of work violated the prohibition on
secondary boycotts contained in 29 U.S.C. § 158(b)(4),
and 29 U.S.C. § 187(a), and Voegele Mechanical has
suffered damages as a result.
(Id. ¶¶ 35-36.)
Count Two - Section 301/Breach of ...