COUNSEL: Paul F. Kelly, Segal, Roitman & Coleman, for Laborers'
Local 609.
Theodore T. Green, Assistant General Counsel, Harold B. Roitman, Segal,
Roitman & Coleman, Robert J. Connerton, for Laborers' International
Union of North America, AFL-CIO.
Robert P. Corcoran, Stoneman, Chandler & Miller, for Abreen Corp.
Laurence J. Donoghue, Deutsch, Weintraub & Glazerman, P.C., for Martin
Bernard and Isadore Wasserman.
Richard W. Coleman, Sharon M. Livesey, Segal, Roitman & Coleman, for the
Massachusetts Laborers' District Council.
JUDGES: Peck, * Senior Circuit Judge, Campbell and Breyer,
Circuit Judges. John W. Peck, Senior Circuit Judge, concurring in part,
dissenting in part. *
* Of the Sixth Circuit, sitting by designation.
OPINIONBY: CAMPBELL
OPINION: [*752]
CAMPBELL, Chief Judge.
This labor case requires a resolution of difficult questions concerning
illegal secondary activity, and a determination of
[**2] the
extent and amount of liability for such activity. The facts as found by
the district court are as follows:
In August 1978 Martin Bernard and Isadore Wasserman secured rights to
construct a shopping mall and a Hilton Hotel in Natick, Massachusetts.
They contracted with Abreen Corporation ("Abreen"), a Massachusetts
general contractor, to perform construction of the project. In the
summer of 1978 work began on the project.
On March 19, 1979, Laborers' Local 609 ("Local 609") began picketing a
subcontractor, Seppala and Aho ("S & A") at the Abreen work site,
protesting its nonunion status and arguing it should pay area standard
wages. In response, Abreen established a separate gate (Gate 1) for S &
A workers and a second gate (Gate 2) for all other subcontractors. n1
During the week of March 19, 1979, Local 609 confined its picketing to
Gate 1.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Abreen actually established three gates at its work site. The third
gate was used to isolate nonrelated picketing situations between other
subcontractors and their workers. This picketing is irrelevant for
purposes of this case. For purposes of this opinion, Gate 1 is S & A's
reserve gate, and Gate 2 is the neutral entrance used by other
subcontractors at the Abreen site.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**3]
During the second week of picketing, Local 609 continued to picket Gate
1, but also occasionally picketed Gate 2. On one occasion a Rosenfeld
truck delivering concrete for a neutral supplier was stopped at Gate 2
by Local 609 picketers and Maurice Blumberg, a field representative of
Massachusetts Laborers' District Council ("MLDC"), along with several
other District Council members. The district court also found that
Blumberg threatened to "shoot [the] head off" a truck driver who
attempted to make a delivery through Gate 1 and threatened to send a
photograph to the local union of a truck driver delivering to suppliers
of a plumbing subcontractor through Gate 1. At one stage Blumberg
shouted to an Abreen official, Philip Abrams, that the project "would
never finish nonunion."
On March 25, 1979,
Arthur Coia, Vice President of
Laborers' International Union of North America ("IU") placed a telephone
call to Aldo Baretta, Vice President of Durastone Flexicore
("Durastone"), supplier of cement planks which S & A was to install for
flooring in the project. In the telephone call
Coia
commented that if Durastone delivered its shipments of cement planks to
the project, "there would
[**4] be a
problem," since Durastone's truck drivers would face a picket line. The
district court found that as a result of the phone call Durastone
cancelled the shipment of planks. Previously, Raymond Baretta, the Plant
Manager of Durastone, had been told by the local shop steward that
Durastone employees, who were represented by Local 315 of Laborers'
International, would not load trucks going to the Natick site. A few
days later unidentified picketers led by the Business Agent of Local 609
appeared at Durastone's plant. The record is unclear exactly when this
picketing occurred. On March 27, 1979, however, Abreen sent trucks to
the Durastone plant to pick up the material. Durastone employees refused
to deliver the materials. Abreen then contracted with another supplier.
On March 26, 1979, additional pickets appeared at Gate 2 of the Natick
site carrying "minority" picket signs. These pickets failed to direct
their protests at any particular employer. These picketers protested the
treatment of blacks and other minorities at the work site, contending
that they deserved higher wages. On March 27, James Merloni, Jr., Vice
President of Local 609, was present at both gates and removed
[**5] a
minority worker's sign from the trunk of his car and gave it to an
individual who began picketing at Gate 2. Later that day Merloni
directed a "minority workers" picketer to a point between Gate 1 and
Gate 2.
During the week of April 2, picketing continued exclusively at Gate 1.
On April
[*753] 16,
1979, Abreen shut the work site down for Patriot's Day, an unscheduled
holiday, as requested by the Natick police. Local 609 held a rally
featuring speeches at the work site, urging S & A workers to unionize.
Thereafter, picketing was only sporadic.
After the project was completed in March 1980, Abreen and Bernard and
Wasserman both instituted suits against the three unions, Local 609,
MLDC and IU, alleging damages as a result of illegal secondary picketing
at the job site. In November 1981, the district court joined both cases
and set a trial date. On December 16, 1981, after a four-day trial, the
court found that illegal secondary picketing had occurred and held all
three unions jointly and severally liable. The district court awarded
Abreen $120,264.38 and Bernard and Wasserman $55,102.76 in damages. All
parties appealed.
On appeal each union disclaims liability and
[**6] in the
alternative contends that the district court's damages award was
excessive. Further, they argue Bernard and Wasserman did not have
standing to sue under section 303 of the Labor Management Relations Act
of 1947,
29 U.S.C. § 187 ("LMRA"). On the other hand, Bernard and Wasserman
argue they have standing to sue and join with Abreen in contending their
damages award was insufficient.
We hold Bernard and Wasserman have standing to sue in this case. We
affirm the determination of the district court that Local 609, IU and
the MLDC violated section 303. We find erroneous, however, several
aspects of the district court's award of damages.
I. STANDING TO SUE
Appellant unions initially contend that Bernard and Wasserman, acting
through the Natick Village Mall Associates ("NVMA") lacked standing to
sue under section 303 of the LMRA. They allege the organization was
formed over a year after the events of this case, that the injury to
NVMA was remote and indirect, and that the zone of interest protected by
section 303 did not encompass NVMA. We disagree.
NVMA was formed twelve months after the crucial events in this case, but
it was only an alter ego
[**7] of SN
Realty Trust with Bernard and Wasserman as its general partners. All of
the assets, including the land and other rights affected by this case,
were transferred to NVMA. We, therefore, find the difference in legal
entities unimportant in this case.
See
Abbott v. Local Union 142, 429 F.2d 786 (5th Cir. 1970). The
key question is whether Bernard and Wasserman, as developers, have
standing under section 303.
In
W.J. Milner & Co. v. IBEW, Local 349, 476 F.2d 8 (5th Cir. 1973),
the court, with the caveat that the list was not exhaustive, proffered
HN1
three
circumstances where a court could find a third party was sufficiently
affected by a union's illegal secondary picketing to sustain liability:
(1) where it was established the third party was part of an integrated
business with either a neutral or the primary employer; (2) where the
third party was directly injured by the actions of the union; and (3)
where a principal-agent relationship was shown between the third party
and primary employer.
Id. at 12. In this case illegal picketing which adversely
affected Abreen reasonably could be foreseen to adversely affect Bernard
and
[**8]
Wasserman.
W.J. Milner, 476 F.2d 8 (where sales agent of primary
employer directly in line of fire of secondary boycott, and injury to
such agent reasonably foreseeable by union, standing established under
section 303);
Pennsylvania R.R. Co. v. National Maritime Union, 206 F. Supp.
797 (E.D. Pa. 1962) (third party has standing to sue where union's
object in illegal secondary picketing injured third party just as it had
hoped to). The district court was correct, therefore, in finding that
Bernard and Wasserman had standing to bring suit under section 303.
Alternatively, several courts have held that
HN2where a
third party is the owner of property allegedly injured by illegal
secondary activity, this is a sufficient basis for
[*754]
bringing suit under section 303.
Allentown Racquetball & Health Club, Inc. v. Building & Construction
Trades Council, 525 F. Supp. 156 (E.D. Pa. 1981) (owner of
health club had standing to sue under section 303 for damages resulting
from secondary picketing at construction site);
Pennsylvania R.R. Co., 206 F. Supp. 797 (owner of ore
unloading facility had standing under section
[**9] 303
where object and purpose of illegal secondary picketing affected him).
In this case, as in
Allentown and
Pennsylvania R.R. Co.,
Bernard and Wasserman were the owners of the construction site. Further,
it was alleged that the object of Local 609's picketing was to impede
construction at the site. We hold, therefore, that
HN3the owners
of a construction site who allege that they were directly injured by
illegal secondary picketing, have standing to sue under section 303. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 After argument was heard in this case the Supreme Court issued its
opinion in
Associated General Contractors v. California State Council of
Carpenters, 459 U.S. 519, 103 S. Ct. 897, 74 L. Ed. 2d 723, 51
U.S.L.W. 4139 (1983). Local 609, in a supplemental memorandum of
law, argues that the Supreme Court's decision requires us to find that
Bernard and Wasserman lack standing. We disagree. In
Associated
General Contractors the Supreme Court held that
HN4a union
could not sue under the Clayton Act for damages resulting from alleged
coercion of an employer organization of certain third parties without a
direct showing of injury to itself. In reaching its decision the Court
relied upon the fact that antitrust laws were designed to protect
consumers and competitors from anti-competitive practices, and that
unions, which typically serve to restrain competition, do not fall
within the law's protected zone of interest. The Court further noted
that union-management relations were governed by the national labor law.
None of these factors are present here. Accordingly, we do not find
Associated General Contractors to be controlling.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**10]
II. LIABILITY OF THE DEFENDANTS
Appellant Local 609 contends on appeal that the district court erred in
finding a violation of section 8(b)(4)(ii)(B) of the NLRA,
29 U.S.C. § 158 (b)(4)(ii)(B). n3 We disagree.
Section 158(b)(4)(ii)(B) states,
HN5(b) It
shall be an unfair labor practice for a labor organization or its
agents --
* * *
(4)(ii) to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where in either
case an object thereof is --
* * *
(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring
any other employer to recognize or bargain with a labor
organization as the representative of his employees unless such
labor organization has been certified as the representative of
such employees under the provisions of section 159 of this
title: Provided, That nothing contained in this clause
(B) shall be construed to make unlawful, where not otherwise
unlawful, any primary strike or primary picketing. [**11]
This section expressly proscribes secondary activity by unions but
allows them to engage in primary activity. It has been said that
HN6the
distinction between primary and secondary activity depends upon "the
object of the union's picketing."
Allied Concrete, Inc. v. NLRB, 607 F.2d 827 (9th Cir. 1979).
See
Electrical Workers v. NLRB, 366 U.S. 667, 6 L. Ed. 2d 592, 81 S.
Ct. 1285 (1961);
NLRB v. Denver Building Council, 341 U.S. 675, 689, 95 L. Ed.
1284, 71 S. Ct. 943 (1951); see also
Pickens-Bond Construction Co. v. United Brotherhood of Carpenters
Local 690, 586 F.2d 1234 (8th Cir. 1978);
Carpenters District Council of Southern Colorado v. NLRB, 560
F.2d 1015 (10th cir. 1977);
T.W. Helgesen, Inc. v. International Association of Bridge,
Structural, & Ornamental Ironworkers, Local 498, 548 F.2d 175 (7th
Cir. 1977). If the object of the union's conduct is to put direct
pressure on the
[*755]
employer with whom the union has a dispute, the conduct is primary and
lawful.
See
Allied Concrete, Inc. v. NLRB, 607 F.2d at 830. If, on the
other hand,
[**12] the
object of the union's conduct, taken as a whole, is to bring indirect
pressure on the primary employer by involving neutral or secondary
employers in the dispute, the conduct is secondary and prohibited.
Id. Often, of course, the union will have more than one goal, but so
long as
an object of the conduct is secondary, the conduct is
unlawful.
NLRB v. Denver Building Council, 341 U.S. at 689;
Texas Distributors, Inc. v. Local Union No. 100, United Association
of Journeymen, 598 F.2d 393 (5th Cir. 1979);
Pickens-Bond Construction Co. v. United Brotherhood of Carpenters
Local 690, 586 F.2d at 1241.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Under section 303 a union may be found civilly liable for violations
of section 8 (b) (4) of the NLRA.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As a practical matter,
HN7the object
of the union's actions must be determined by analyzing the nature of the
union's conduct to see whether the pressure being put on other employers
is occurring merely incidentally to the pressure imposed on the primary
[**13]
employer, or directly with the central goal of involving the secondary
employer in the dispute. This analysis of the union's conduct always
involves difficult factual determinations, but the inquiry is
particularly difficult in cases such as this one involving a common
situs, where the union's actions can be seen as directed at either the
primary employer or the secondary employer.
T.W. Helgesen, Inc. v. International Association of Bridge,
Structural, & Ornamental Ironworkers, Local 498, 548 F.2d 175 (7th
Cir. 1977). To aid in the line-drawing necessary in such cases, the
National Labor Relations Board in
Sailor's Union of the Pacific (Moore Dry Dock), 92 NLRB 547
(1950), set forth a four-part test. Under that test, picketing of a
common situs will be presumed primary if
1) the picketing is strictly limited to times when the primary
employer is at the situs;
2) the picketing is limited to times when the employer is engaged in
work at the situs;
3) the picketing is limited to places reasonably close to location
of the employer;
4) the picketing clearly identifies that the dispute is with the
primary employer.
HN8The
Moore [**14] Dry
Dock test, however, is merely "an evidentiary tool."
International Association of Bridge, Structural, & Ornamental
Ironworkers, Local 433 v. NLRB, 598 F.2d 1154, 1157 (9th Cir. 1979);
see also
Carpenters District Council of Southern Colorado v. NLRB, 560
F.2d 1015. R. Gorman,
Labor Law at 251. If the trier of fact
finds that in the totality of circumstances the union's actions put
impermissible direct pressure upon a secondary employer, the union may
be found liable despite literal compliance with the
Moore Dry Dock
standard.
See, e.g.,
598 F.2d at 399;
560 F.2d at 1015.
HN9The
pivotal issue, in any case, is the union's intent. This factual question
is primarily for the district court to decide.
Pickens-Bond Construction Co. v. United Brotherhood of Carpenters
Local 690, 586 F.2d at 1234. Often, as here, the evidence will
be conflicting and confused, and the inferences to be drawn susceptible
of more than one interpretation. The district court's "selection among
permissible inferences raised" will only be overturned on appeal if it
is clearly erroneous.
Id. at 1240. [**15]
A.
Local 609's Liability
We do not find the district court's conclusion that Local 609's
picketing was unlawful secondary activity to be clearly erroneous.
HN10When
picketing will potentially involve neutral parties, the union has an
obligation to "picket with restraint" and make sure that its actions do
not put undue pressure on secondary employers.
Allied Concrete, Inc. v. NLRB, 607 F.2d 827, 830 (9th Cir. 1979).
In the instant case, there was considerable evidence that the union did
not do that. Although the union claims to have only been engaged in
lawful area standards picketing aimed at S & A, n4 there
[*756] is
evidence in the record from which the district court could conclude that
the minority picketing was controlled by James Merloni, Vice President
of Local 609. This picketing clearly violated the
Moore Dry Dock
standard in that the picketing was conducted at the neutral gate and the
signs failed to identify both the union behind the picketing and at whom
the picketing was directed.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4
HN11Area
standard picketing is picketing by a union to protest the fact that an
employer is nonunion and is paying below the wage rates established in
the area by union pressure. Such picketing, if properly conducted, is
lawful.
See, e.g.,
NLRB v. International Brotherhood of Electrical Workers, Local 265,
604 F.2d 1091, 1097 (8th Cir. 1979).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**16]
The minority picketing was but one of several actions from which the
district court could conclude that the union's actions at Natick put
unlawful pressure on neutral employers. There was evidence that Maurice
Blumberg, field representative of the District Council, who participated
in much of the picketing activity, told Abreen officers that the job
would not finish "nonunion." From this statement the district court
could infer that the unions tried to pressure Abreen to cease dealing
with nonunion subcontractors.
See
Pickens-Bond Construction Co. v. United Brotherhood of Carpenters
Local 690, 586 F.2d 1234 (8th Cir. 1978)
HN12(secondary
objective can be inferred from union official's comment that picketing
would stop when nonunion subcontractor left the job site).
Evidence also established that the unions put impermissible pressure on
third parties besides Abreen. Members of Local 609 carried unidentified
pickets in front of the Durastone plant in Rhode Island. Durastone was a
supplier of S & A, the primary employer.
HN13Deliveries
of suppliers traditionally are seen as "occupying a middleground in the
spectrum of permissible activity under 8(b)(4)."
Linbeck Construction Corp. v. NLRB, 550 F.2d 311, 316 (5th
Cir. 1977). [**17] Some
appeals to them, such as by an identifiable picket sign at the primary
employer's gate, are permissible as incidental to the pressure on the
primary employer.
See
United Steelworkers of America v. NLRB (Carrier Corp.), 376 U.S.
492, 11 L. Ed. 2d 863, 84 S. Ct. 899 (1964);
Local 761, International Union of Electrical Workers v. NLRB, 366
U.S. 667, 6 L. Ed. 2d 592, 81 S. Ct. 1285 (1961). And at least one
court has held that unions may supplement a picket line by making
limited requests off the site to those who would normally encounter the
line to honor it.
Anchortank, Inc. v. NLRB, 601 F.2d 233, 240 (5th Cir. 1979).
In this case, however, Local 609's appeal to the Durastone employees was
of a far different sort. There was no simple request to honor the picket
line at Gate 1; there was instead unidentified picketing at the
Durastone plant. This may reasonably have been interpreted by the
district court as an attempt to stir up trouble at Durastone to pressure
it not to deal with Abreen and S & A. Such conduct goes beyond the scope
of permissible involvement of secondary employees.
Evidence at trial also supported the district
[**18]
court's conclusion that Local 609, often with the aid of Maurice
Blumberg of the District Council, made impermissible appeals to neutral
employees at the Natick site. The record shows that at least one of the
trucks Local 609 stopped at Gate 1 was not a truck of an S & A supplier,
and that the union officials knew that. While the union had a right to
picket at Gate 1, it had no right to threaten to take the photograph of
a driver known not to be delivering supplies to S & A.
The district court also found that the main picket line sometimes moved
to Gate 2 and at one point prevented a concrete truck from entering the
site through that gate. The truck, according to unrebutted testimony,
was not supplying S & A. Appellants argue they had a right to stop it
anyway because it was a concrete truck and S & A was a concrete
subcontractor.
See
J.F. Hoff Electric Co. v. NLRB, 105 L.R.R.M. 2345, 642 F.2d 1266,
1271 (D.C. Cir. 1980), cert. denied,
451 U.S. 918, 101 S. Ct. 1997, 68 L. Ed. 2d 310 (1981). There is no
evidence in the record, however, that the picketers ever sought to
ascertain if the truck was destined for S & A, or even that they
actually believed
[**19] it was
an S & A supplier. Given these facts, and the other
[*757]
evidence in the case including Local 609's activity at Gate 2 in the
guise of minority picketing, we think the district court could
permissibly infer that the incident evidenced Local 609's desire to
involve neutrals in the dispute. Accordingly, while we might hesitate to
uphold a finding of liability based upon only one of the many incidents
discussed above, we believe that given the various unlawful actions, the
district court did not commit clear error in finding that the union's
course of conduct was unlawful.
B.
Liability of the MLDC and IU
Both the MLDC and the International argue that the district court erred
by finding them jointly and severally liable with Local 609. We
disagree.
HN14An
international or regional affiliate of a local union may not be liable
for the local's unfair labor practices merely by virtue of its
affiliation with the local.
Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 62 L. Ed.
2d 394, 100 S. Ct. 410 (1979). The regional or international,
however, may be liable if it either has an agency relationship with