United Brick & Clay Workers v. Deena Artware

• Decision Date: 30 July 1952
• Docket Number: No. 11403.,11403.
• Citation: 198 F.2d 637
• Parties: UNITED BRICK & CLAY WORKERS OF AMERICA et al. v. DEENA ARTWARE, Inc.
• Court: U.S. Court of Appeals — Sixth Circuit

198 F.2d 637 (1952)

UNITED BRICK & CLAY WORKERS OF AMERICA et al. v. DEENA ARTWARE, Inc.

No. 11403.

United States Court of Appeals Sixth Circuit.

July 30, 1952.

Herbert S. Thatcher, J. Albert Woll, Washington, D. C. (Joseph S. Freeland, Paducah, Ky., John Y. Brown, Lexington, Ky., Nathan Duff, Perth Amboy, N. J., Woll, Glenn & Thatcher, Washington, D. C., on the brief), for appellants.

James G. Wheeler, Paducah, Ky. (James G. Wheeler, Thomas J. Marshall, Jr., Paducah, Ky., on the brief), for appellee.

Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The Appellee brought this action in the district court for damages, alleging in substance a secondary boycott by the Appellants in violation of the provisions of § 303 of the Labor Management Relations Act of 1947, § 187, Title 29, U.S.C.A. A jury returned a verdict in favor of the Appellee in the sum of $29,985.85, upon which judgment was entered, followed by this appeal.

The Appellee, Deena Artware, Inc., hereinafter referred to as Deena, is engaged in the business of manufacturing and selling lamp bases at Paducah, Kentucky. The Appellant, The United Brick and Clay Workers of America, hereinafter referred to as the Union, is a labor organization and a member of the American Federation of Labor, its co-defendant herein. Employees of the Appellee were members of the Union. This case is a companion case to N. L. R. B. v. Deena Artware, Inc., No. 11566 in this Court, 198 F.2d 645 in which an opinion is being handed down at the same time. Both actions arise out of a strike put into effect by the Union against Deena on May 26, 1948 following a failure to reach a collective bargaining agreement after a number of conferences between the parties. The issues presented by the two cases are not the same, although one of the issues involved collaterally in N. L. R. B. v. Deena Artware, Inc., and discussed briefly therein, is the main issue involved in this appeal.

Section 303 of the Labor Management Relations Act, § 187, Title 29 U.S.C.A. involved herein, provides in part as follows:

"(a) It shall be unlawful * * * for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to * * * work on any goods * * * or to perform any services, where an object thereof is —

"(1) forcing or requiring any employer * * * to cease using * * * or otherwise dealing in the products of any other producer * * * or to cease doing business with any other person;

"(2) 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 * * *;

"(3) forcing or requiring any employer to recognize or bargain with a particular labor organization * * *;

"(4) forcing or requiring any employer to assign particular work to employees in a particular labor organization * * *.

"(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit."

Although the phrase "secondary boycott" is not used in the body of the statute, the section deals with the exercise by a labor organization of secondary pressure in a labor dispute, and is generally referred to as the section dealing with secondary boycott. It will also be noticed that a counterpart of § 303(a) is contained in § 8(b) (4) of the National Labor Relations Act as amended by § 101 of the Labor Management Relations Act, 29 U.S.C.A. § 158(b) (4), describing such procedure as an unfair labor practice on the part of a labor organization. This counterpart is the section of the Act which was under consideration by us in the companion case of N. L. R. B. v. Deena Artware, Incorporated, referred to above. It is also the section of the Act involved in the following recent cases from the United States Supreme Court, which will be referred to hereinafter, and which have a very material bearing on our present problem although not involving the identical section of the statute which is involved herein. N. L. R. B. v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1284; N. L. R. B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; International Brotherhood of Electrical Workers v. N. L. R. B., 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299; Local 74, United Brotherhood of Carpenters v. N. L. R. B., 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309.

The complaint alleges that on December 8, 1947, Deena entered into a contract with Vandevelde and Augustus, independent general contractors, who agreed to erect for Deena a manufacturing and warehouse building on land owned by Deena in Paducah; that prior to May 26, 1948, the general contractors had begun the construction of said building and had caused large quantities of material and equipment to be transported into Kentucky from other States; that the construction work had progressed to the point of completing the foundation of the building and that the first carload of structural steel to be used in the construction of the building was placed on tracks at the building site on June 1, 1948 and that another carload arrived within a few days; that when an effort was made shortly thereafter by sub-contractors employed by the general contractors to unload the structural steel, the Appellants caused a picket line to be placed and maintained around the construction work; that the general contractors had no labor dispute with their employees and none of the contractors under them had any labor dispute with their employees; that thereafter whenever the general contractors or the sub-contractors attempted to work on the construction of the said building the Appellants picketed the construction job and thereby caused the employees of the general contractors and the sub-contractors to refuse to work on the construction job; that in causing said job to be picketed the Appellants induced and encouraged employees of the general contractors and the sub-contractors to engage in concerted refusal to perform services for the general contractors and the sub-contractors, the object thereof being to force the general contractors to cease doing business with Deena, and to force Deena to bargain with the Union which had not been certified as the representative of the employees of Deena; that as the direct and proximate result of such action the employees of the general contractors and the subcontractors were induced to engage in concerted refusals to work on the construction of the building, and as the direct and proximate result of such refusal Deena was compelled to discontinue the construction of the said building. The complaint as amended sought damages in the sum of $243,605.52.

The Appellants made a general denial of the material allegations of the complaint as amended and also pleaded as a defense thereto (1) that the complaint failed to state a claim upon which relief could be granted; (2) that the District Court lacked jurisdiction, since diversity of citizenship as required for actions under § 303 of the Labor Management Relations Act was not shown, and (3) that § 303 of the Labor Management Relations Act, if construed as contended for by Deena, was unconstitutional as being violative of the First and Fifth Amendments of the Constitution of the United States. The District Judge ruled that jurisdiction existed, that § 303 of the Labor Management Relations Act was not unconstitutional, and, conditional upon the existence of certain facts, conferred a right of action for damages upon Deena, and that the evidence produced was sufficient to submit such factional issues to the jury. Appellants renew their contentions upon this appeal.

Appellants' contention that diversity of citizenship is necessary to confer jurisdiction upon the district court is based upon the fact that § 301(a) of the Labor Management Relations Act, § 185(a), Title 29, U.S.C.A., dealing with suits for violation of contracts between an employer and a labor organization, confers jurisdiction upon the district court "without respect to the amount in controversy or without regard to the citizenship of the parties", while § 187(b), Title 29, U.S.C.A., dealing with the so-called secondary boycott provisions, provides that the action may be brought in the district court "without respect to the amount in controversy," thus requiring by implication the existence of diversity of citizenship. Such a construction was given to the Act in the case of Lach v. Hoisting & Portable, Power & Dredge Engineers Local, D.C.Mass., 86 F. Supp. 463. However, we are of the opinion that the better rule is as stated in Schatte v. International Alliance, Etc., 9 Cir., 182 F.2d 158, 165, where it was pointed out that § 303 of the Act creates new substantive rights and liabilities, together with an appropriate remedy for their enforcement, and that an action under it clearly arises under a law of the United States within the meaning of § 1331, Title 28 U.S.Code, and under an Act of Congress regulating commerce within the meaning of § 1337, Title 28 U.S.Code, both of which sections grant jurisdiction to the district courts without requiring diversity of citizenship. See also Banner Mfg. Co. v. United Furniture Workers, D.C.S.D.N.Y., 90 F.Supp. 723, 724; L. Fatato, Inc., v. Beer Drivers Local Union, D.C.E.D.N.Y., 93 F.Supp. 481, 482; Hamilton Foundry & Machine Co. v. International Molders, et al., 6 Cir. 193 F.2d 209, 214.

We are of the opinion that the District Judge also correctly ruled that § 303 of the Act was not unconstitutional under the First...