United States District Court, N.D. Illinois, Eastern Division
WACKER DRIVE EXECUTIVE SUITES, LLC, on behalf of itself, individually, and on behalf of all others similarly situated, Plaintiff,
JONES LANG LASALLE AMERICAS (ILLINOIS), LP, Defendant.
MEMORANDUM OPINION AND ORDER
R. Harjani United States Magistrate Judge.
Wacker Drive Executive Suites (“WDES”) filed a
two-count amended class action complaint against Jones Lang
LaSalle Americas (Illinois), L.P. (“JLL”),
alleging that JLL conspired with labor unions representing
its employees to force tenants in the commercial buildings it
manages to hire union only contractors in violation of the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”). JLL moves to dismiss WDES's new
allegations in its amended complaint pertaining to Sections
8(b)(4)(ii)(A) and (B) of the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 158(b)(4)(ii)(A) and
(B). For the following reasons, JLL's partial motion to
dismiss  is granted.
alleges that JLL and three unions entered into an unlawful
hot cargo agreement precluding tenants from using non-union
movers and contractors, such as electricians, painters, and
carpet installers, to make renovations to their leased
spaces. WDES alleges that the agreement between JLL and the
unions to force tenants to use union only contractors is an
illegal hot cargo policy which violates Section 8(e) as well
as Sections 8(b)(4)(ii)(A) and (B) of the
motion under Rule 12(b)(6) tests whether the complaint states
a claim on which relief may be granted.” Richards
v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). A
complaint must provide “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); Fed.R.Civ.P. 8(a)(2). To survive a motion to
dismiss, a complaint must “state a claim to relief that
is plausible on its face.” Id. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). On a motion to dismiss for failure to
state a claim, courts “must accept as true all
well-pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff.” Heredia v.
Capital Management Services, L.P., 942 F.3d 811, 814
(7th Cir. 2019).
partial motion to dismiss, JLL argues that WDES's
allegation that JLL violated Sections 8(b)(4)(ii)(A) and (B)
of the NLRA should be dismissed because such claims are not
facially plausible as a matter of law. Specifically, JLL
argues that it is an employer and not a union, so
Section 8(b) of the NLRA, which is directed at union unfair
labor practices, does not apply. WDES responds that JLL's
argument is flawed because it does not take into account the
allegations that JLL conspired with the three unions to
violate Sections 8(b)(4)(ii)(A) and (B). The amended
complaint alleges that JLL conspired with the three unions to
violate these subsections in violation of 18 U.S.C. §
1951 (Hobbs Act) and § 1962 (RICO). Doc. 76 at
¶¶ 13, 36. In its reply brief, JLL contends that
WDES's conspiracy theory alleging violations of NLRA
Sections 8(b)(4)(ii)(A) and (B) fails for three reasons: (1)
it defies logic and common sense; (2) it lacks legal merit;
and (3) it directly contradicts WDES's Section 8(e)
undisputed that JLL is an employer and not a labor
organization or a union. The contested issue is thus whether
WDES's amended complaint adequately alleges that JLL
conspired to violate Sections 8(b)(4)(ii)(A) and (B) of the
NLRA. The Court finds that the amended complaint fails to
plausibly allege a conspiracy to violate Section 8(b)(4)(ii).
8(b)(4) prescribes “secondary boycotts'-a practice
aptly described as ‘a combination to influence A by
exerting some sort of economic or social pressure against
persons who deal with A.'” International
Longshoremen's Ass'n, AFL-CIO v. N.L.R.B., 56
F.3d 205, 207 (D.C. Cir. 1995); Mautz & Oren, Inc. v.
Teamsters, Chauffeurs, & Helpers Union, Local No.
279, 882 F.2d 1117, 1120-21 (7th Cir. 1989) (quoting
Int'l Bhd. of Elec. Workers v. NLRB, 181 F.2d 34, 37
(2d Cir. 1950), aff'd, 341 U.S. 694 (1951))
(“The gravamen of a secondary boycott is that its
sanctions bear, not upon the employer who alone is a party to
the dispute, but upon some third party who has no concern in
it. Its aim is to compel him to stop business with the
employer in the hope that this will induce the employer to
give in to his employee's demands.”).
8(b)(4)(ii) makes it unlawful for a union to “threaten,
coerce, or restrain any person” with an
“object” of (A) “forcing or requiring any
employer . . . to enter into any agreement which is
prohibited by subsection (e)” or (B) “forcing or
requiring any person . . . to cease doing business with any
other person.” 29 U.S.C. §
158(b)(4)(ii). The “statutory language refers to
threatening or coercing the secondary employer . . . .”
Boxhorn's Big Muskego Gun Clubs, Inc. v. Elec.
Workers Local 494, 798 F.2d 1016, 1020 (7th Cir. 1986).
“Secondary employers” are “not directly
involved in the labor dispute.” BE & K Co. v.
Will & Grundy Counties Bldg. Trades Council, 156
F.3d 756, 761 (7th Cir. 1998); Carpet, Linoleum, Soft
Tile and Resilient Floor Covering Layers, Local Union NO.
419, AFL-CIO v. N.L.R.B. 467 F.2d 392, 397 (D.C. Cir.
1972) (Congress sought to protect “secondary employers
from labor disputes with which they were not directly
concerned.”). “This was due in large part to the
fact that ‘[m]ore often than not the [secondary]
employers are powerless to comply with demands giving rise to
the [secondary] activities, and many times they and their
employees as well are the helpless victims of quarrels that
do not concern them at all.'” Carpet, Linoleum,
Soft Tile and Resilient Floor Covering Layers, Local Union
NO. 419, 467 F.2d at 397.
the statutory language to this case, JLL argues that WDES has
essentially alleged that JLL conspired with the unions to
“threaten, coerce, or restrain” itself
with the object of “forcing or requiring”
itself to take certain action. WDES asserts that JLL
mischaracterizes its claims with respect to Section
8(b)(4)(ii)(A) and (B) “by framing the secondary party
in these disputes as JLL (which it is not), instead of WDES
and the other tenants (which [are] the proper secondary
party).” Doc. 90 at 1. WDES continues by arguing that
“JLL's reply wrongly assumes that JLL is not the
primary employer, but is instead the neutral employer”
Id. According to WDES, once properly framed,
“there is nothing nonsensical” about its theory.
Id. at 2.
theory, as stated in its sur-reply, is that Section
8(b)(4)(ii) was violated because JLL conspired with the
unions to threaten, coerce, or restrain WDES with an
“object” of forcing or requiring: (a) JLL to
enter into an illegal hot cargo agreement (Section
8(b)(4)(ii)(A)), and (b) WDES to cease doing business with
nonunion contractors (Section 8(b)(4)(ii)(B)).
theory is confusing and not supported by the allegations of
the amended complaint. First, with respect to Section
8(4)(ii)(A), WDES does not explain why the unions would
pressure WDES in order to force JLL to enter into an
agreement to bar the nonunion contractors and movers when,
according to the amended complaint, WDES allegedly wanted to
use nonunion personnel in the first place. Second, another
problem with WDES's explanation is that it is not based
upon the actual allegations of the amended complaint. The
amended complaint does not allege, for example, that that the
unions used coercive tactics to pressure WDES to cease doing
business with nonunion contractors. Rather, the amended
complaint states that the “three unions have exerted
their power over JLL for years.” Doc. 76 at ¶ 15.
Specifically, the amended complaint alleges that the unions
used coercive tactics-including threats of a strike,
picketing, and public shaming-to pressure JLL (not
WDES) into boycotting nonunion contractors in its
managed buildings. Doc. 76 at ¶¶ 15-17. Given these
facts alleged in the amended complaint, WDES is the proper
primary employer and JLL is the secondary employer in the
labor dispute in this case.
established that, the next question is whether WDES's
alleged conspiracy theory makes sense. The conduct at issue
in the amended complaint is a hot cargo agreement between the
unions and JLL - a conspiracy claim that they operated
pursuant to an illegal agreement. WDES's current
allegation in the amended complaint that JLL essentially
conspired to have the unions “threaten, ”
“coerce, ” “restrain, ” “force,
” or “require” itself to enter
into an unlawful hot cargo agreement or regardless of any
agreement, to boycott nonunion contractors, does not make
sense. JLL could not agree to coerce itself for the purpose
of forcing or requiring itself to enter into a hot cargo
agreement or otherwise boycott nonunion contractors and
movers in the buildings it manages. Further, WDES provides no
legal support for its position. WDES's allegations do not
plausibly state a claim upon which relief can be granted -
that JLL conspired to violate Section 8(B)(4)(ii).
support of its contention that WDES's conspiracy theory
lacks legal merit, JLL argues that “[j]ust like a party
cannot be found to have engaged in tortious interference with
contractual relations with respect to its own contract, an
employer in the instant case cannot be found to have
conspired with unions to engage in ‘coercion'
against itself for the purpose of ‘forcing or
requiring' itself to take certain action.” Doc. 86
at 4-5. The tortious interference analogy buttresses the
Court's conclusion that the amended complaint fails to
state a claim for conspiracy to violate Section 8(b)(4)(ii).
“A § 303 action arising from a secondary boycott
is similar to a claim for tortious interference with a
contract.” Smart v. Int'l Bhd. of Elec.
Workers, Local 702,453 Fed.Appx. 650, 653 (7th Cir.
2011); Taylor Milk Co. v. Int'l Bhd. of Teamsters,
AFL-CIO,248 F.3d 239, 247 (3d Cir. 2001)
(“Violations of 29 U.S.C. § 158(b)(4)(ii) sound in
tort, and are in the nature of interference with advantageous
economic relations.”); Allied Int'l, Inc. v.
Int'l Longshoremen's Ass'n, AFL-CIO, 814
F.2d 32, 40 (1st Cir. 1987) (“A violation of § 303
is a tort, in the nature of interference with advantageous
economic relations.”). “‘[A] party cannot
tortiously interfere with its own ...