Boxhorn's Big Muskego Gun Club, Inc. v. Electrical Workers Local 494

• Decision Date: 31 October 1986
• Docket Number: No. 85-2836,85-2836
• Citation: 798 F.2d 1016
• Parties: 123 L.R.R.M. (BNA) 2139, 123 L.R.R.M. (BNA) 2856, 105 Lab.Cas. P 12,057, 105 Lab.Cas. P 12,093 BOXHORN'S BIG MUSKEGO GUN CLUB, INC., Plaintiff-Appellee, v. ELECTRICAL WORKERS LOCAL 494, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1016

798 F.2d 1016

123 L.R.R.M. (BNA) 2139, 123 L.R.R.M. (BNA) 2856,

105 Lab.Cas. P 12,057, 105 Lab.Cas. P 12,093

BOXHORN'S BIG MUSKEGO GUN CLUB, INC., Plaintiff-Appellee, v. ELECTRICAL WORKERS LOCAL 494, et al., Defendants-Appellants.

No. 85-2836.

United States Court of Appeals Seventh Circuit.

Argued March 31, 1986.

Decided Aug. 15, 1986.

Opinion on Denial of Rehearing and Rehearing En Banc Oct. 31, 1986.

Frederick Perillo, Goldbert, Previant, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, Wis., for defendants-appellants.

Thomas P. Krukowski, Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Trapshooters at Boxhorn's Big Muskego Gun Club compete in leagues. The Club, located in Muskego, Wisconsin, has facilities for both competitive and individual trapshooting. Before and after shooting, the competitors may use the Club's restaurant and tavern. The Club also sells guns, shells, and the other paraphernalia of trapshooting.

Between 1971, when Dick and Lois Bennett bought the Club, and 1978, the Club's business grew about 15% per year. The Club was remodeled in 1974 to handle more customers, and in 1977 the Bennetts decided to enlarge the Club again. The Club hired Glancey Co. as the general contractor, paying it a fixed fee for the project. Gerald Glancey, the alter ego of Glancey Co., hired subcontractors. The subcontractors handling about 66% of the work had collective bargaining agreements with craft unions. Durski Electrical Contractors Co., which Glancey hired to do some electrical work, did not. Neither did Glancey, who personally performed carpentry work.

Forty-two teams of shooters at the Club in 1977-78 were sponsored by unions represented in the Milwaukee County Labor Council. When someone noticed that non-union workers were remodeling the Club, Ralph Gondek, the business agent for Local 494 of the International Brotherhood of Electrical Workers, asked Dick Bennett to use union workers exclusively. The two did not get along well. Bennett said that the project was more than half completed and that he would not switch contractors; Gondek suggested that Bennett consider his enlightened self-interest; they parted unpleasantly.

The Council's Recreation Committee, displeased with the thought that its requests might be taken lightly, withdrew its sponsorship of the 42 teams of shooters. It put the Club's name on the Council's "We Do Not Patronize" list. Later it dispatched a team, led by Gondek, to the entrance of the Club. For four days in late July or early August 1978 these people distributed 2,000 handbills reading:

PLEASE DO NOT PATRONIZE

BIG MUSKEGO GUN CLUB

The Milwaukee County Labor Council has withdrawn 42 teams in protest against Mr. Bennett's decision to use non-union construction workers.

Our request to use Union Workers was scoffed at by Mr. Bennett.

You can help by withdrawing your team from the Big Muskego Gun Club.

Electricians Local Union

494 IBEW

These handbills reached almost all of the Club's customers. The Council's newspaper printed a photograph of the handbill in its July-August issue. And after holding a trial the district court found that the handbillers engaged in picketing. 620 F.Supp. 1073, 1076 (E.D.Wis.1985). The district court found almost everything the Unions did to be unlawful, and it awarded the Club more than $230,000 in damages under Secs. 301 and 303 of the Labor-Management Relations Act, 29 U.S.C. Secs. 185 and 187.

I

The defendants (the Unions) dispute the district court's findings of fact, principally the conclusions that picketing occurred and that the Club was not the primary employer in the dispute. None of the findings is clearly erroneous.

The four handbillers stationed themselves at the entrance to the long side road leading to the Club. One blocked each incoming car, forcing it to slow down or stop. The handbiller then offered the driver of the car a handbill. No one was impeded from entering the Club if he chose. 620 F.Supp. at 1076. Several witnesses (including four unaffiliated with the Club) testified that they saw people carrying picket signs. One whose testimony the court believed said that the sign read "AFL-CIO Job Action Local 494." The district judge found that picketing occurred at least some of the time. The handbillers all denied picketing, and they point out that (a) the adverse witnesses differed substantially in their descriptions of the pickets, their signs, and their patrolling, and (b) the printing bill for their activity did not include the cost of printing placards. This is not enough to show that the findings are clearly erroneous. Nothing compels printers to bill for handbills and placards on a single invoice, if the Unions used new (instead of generic) placards at all. And witnesses often disagree fundamentally. There were two possible views of the evidence. The district court's view therefore prevails. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985).

The conclusion that this was secondary pressure also stands. If the Club were the "employer" of the non-union laborers, the picketing would be primary. The district court concluded, however, that Glancey was the employer. The Club hired Glancey for a fixed price, and Glancey then decided to hire Durski Co. and Glancey personally to do about a third of the work. This decision was not the Club's to make, and without the right to control the apportionment of work between union and non-union labor the Club was not the primary disputant. See NLRB v. Enterprise Ass'n of Steam Pipefitters, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1 (1977); NLRB v. Denver Building Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). The district court was entitled to find that the general contractor, not Bennett, controlled who would do the work, making the Club a neutral, 620 F.Supp. at 1076-77. This is therefore a case of secondary pressure.

II

A union's request that people not patronize an employer is governed by Sec. 8(b)(4) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(4), which states that it is an unfair labor practice for a union or its agents:

(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce where ... 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, ... Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

....

... Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer [to cease work].

The Unions asked the Club's shooters to cease patronizing the Club, for the purpose of putting pressure on the Club to put pressure on Glancey. So there are two questions: first whether the approaches to the consumers--the picketing, handbilling, photograph, and We Do Not Patronize list--"threaten, coerce, or restrain any person" within the meaning of Sec. 8(b)(4)(ii); second, whether any of the activities is saved by the publicity proviso (the Proviso) in the "provided further" clause, which applies to publicity other than picketing.

The picketing asked customers not to patronize the Club as a whole. It was therefore coercive under NLRB v. Retail Store Employees, 447 U.S. 607, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980) (Safeco ). It would have been deemed coercive under NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964) (Tree Fruits ) as well, because the Unions did not ask the customers to limit their boycott to the "product"--the restaurant and tavern at the Club--of the employers with which the Unions had a primary dispute.

Safeco indicates that the handbilling, too, is coercive or restraining under Sec. 8(b)(4)(ii) when designed to close the whole business. See also Soft Drink Workers v. NLRB, 657 F.2d 1252, 1263-68 (D.C.Cir.1980); Florida Gulf Coast Building Trades Council, 273 N.L.R.B. No. 172 at 4 (Jan. 15, 1985). The Unions wanted to stop anyone from using the Club, which might have induced the Club to change its construction contractor. The Proviso applies to handbilling, but only if the handbill "truthfully advis[es] the public ... that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer". The district court found, 620 F.Supp. at 1078, and the parties agree on appeal, that the Club "distributes" a "product" of Glancey and Durski. See also Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 155-57, 103 S.Ct. 2926, 2931-33, 77 L.Ed.2d 535 (1983). We need not decide whether this is correct.

The Proviso cannot protect the Unions' handbilling. The Unions argue that their handbill was true, but the Proviso does not apply to truth in the abstract. It protects only publicity on a particular subject, and then only if the publicity is truthful. "The only publicity exempted from the prohibition is publicity intended to inform the public that the primary employer's product is 'distributed by' the secondary employer." DeBartolo, 463 U.S. at 155, 103 S.Ct. at 2932. The Unions' handbill does not state that the Club is distributing the product of Glancey and...