Boxhorn's Big Muskego Gun Club v. ELEC. WORKERS
| Decision Date | 11 October 1985 |
| Docket Number | No. 79-C-609.,79-C-609. |
| Citation | 620 F. Supp. 1073 |
| Parties | BOXHORN'S BIG MUSKEGO GUN CLUB, INC., Plaintiff, v. ELECTRICAL WORKERS LOCAL 494, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Local 494 International Brotherhood of Electrical Workers, AFL-CIO, Its Officers and Members, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Thomas P. Krukowski, Krukowski, Chaet, Beck & Loomis, Milwaukee, Wis., for plaintiff.
David Leo Uelmen, Goldberg, Previant, Uelmen, Milwaukee, Wis., for defendants.
DECISION AND ORDER
Plaintiff, Boxhorn's Big Muskego Gun Club, Inc. ("Boxhorn") commenced this action on August 2, 1979, alleging violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976) and Section 303 of the Labor Management Relations Act, 29 U.S.C. § 187 (1976). Named as defendants were various labor unions and individuals associated therewith. On December 10, 1982, the Court dismissed Boxhorn's Sherman Act claims and on January 25, 1983, the Court dismissed the individual defendants from this action. The remaining issues were tried to this Court on May 23-27, 1983. The following constitutes the Court's Findings of Fact and Conclusions of Law.
Dick and Lois Bennett purchased Boxhorn in 1971. Boxhorn is a trapshooting facility and retail store providing trapshooting equipment and supplies. The facility consists of numerous trap fields, a clubhouse, a recreation area and a restaurant and tavern. Boxhorn patrons participate in recreational and competitive trapshooting throughout the year.
Boxhorn's business rapidly grew in the seventies necessitating an expansion of facilities. On two separate occasions, in 1974 and again in 1978, the Bennetts expanded Boxhorn's facilities to accommodate the increased business. The 1978 expansion consisted of remodeling and expanding Boxhorn's restaurant, tavern and clubhouse. To perform this project, the Bennetts employed Gerald Glancey as general contractor who performed most of the carpentry work, but who subcontracted certain other work. A portion of this subcontracted work was performed by nonunion contractors who had union contractor competitors.
Glancey and the subcontractors used their own tools and materials in performing the construction. Boxhorn paid Glancey on a lump-sum basis and these payments contained no deductions for taxes, social security or worker's compensation. Upon receiving payment for services rendered, Glancey and the subcontractors gave lien waivers to Boxhorn. Boxhorn employees did not perform any construction work and it was not involved in hiring or firing any employees of Glancey or the subcontractors. It is clear that there was not an employer/employee relationship between Boxhorn and Glancey or between Boxhorn and any of the subcontractors.
One of the nonunion subcontractors was Durski Electrical Contractors Co., Inc. ("Durski"). In early July, 1978, Durski's electrical work on the expanded clubhouse was nearly complete when Ralph Gondek, business agent for the International Brotherhood of Electrical Workers, Local 494, met with Mr. Bennett and requested that he use only union labor. Bennett refused this request. At that time construction work on the clubhouse was nearly completed and work had begun on the tavern-restaurant.
Subsequent to this meeting, Gondek orchestrated a public appeal by the Milwaukee County Labor Council (MCLC) and the Milwaukee Building Construction Trades Council (MBCTC) to not patronize Boxhorn. Gondek was on the MCLC Board and was a delegate to MCLC and MBCTC. This public appeal concerned the nonunion electrical work performed by Durski at the Boxhorn construction project. The apparent purpose was to force Boxhorn to cease doing business with Durski and, instead, to employ union electrical contractors. The dispute centered entirely upon Durski's nonunion status. Thus, the dispute was between Durski and the defendant.
The defendants took other actions to force Boxhorn into using only union contractors on its expansion project. First, on July 17, 1978, MCLC prematurely ended its trapshooting league at Boxhorn. Second, on July 19, 1978, Boxhorn was indefinately placed on MCLC's "Do Not Patronize" list which requested that union affiliated persons cease patronizing Boxhorn. Finally, MCLC sent Mr. Bennett a letter stating that none of its members would patronize Boxhorn until it complied with their request. These tactics failed to influence the Bennetts.
The defendants then undertook bolder methods of influence. During portions of four days in late July or early August, 1978, Gondek, along with three other persons, distributed approximately 2,000 handbills to Boxhorn patrons at the club entrance. The handbills read as follows:
PLEASE DO NOT PATRONIZE BIG MUSKEGO GUN CLUB
The handbill distribution process consisted of one of the above-mentioned distributors positioning himself at the Boxhorn entrance thereby forcing an incoming vehicle to slow down or to stop. The distributor would then approach the driver's side of the vehicle holding a handbill and conveying his intention to offer it to the driver. Upon accepting or refusing the handbill, the driver could proceed through the Boxhorn entrance unhindered.
The defendant published the handbill in the July-August edition of its newspaper. Furthermore, a picture of the handbill held by the defendants' agents appeared in the August 24, 1978 edition of the AFL-CIO Milwaukee labor press. These publications reached approximately 200,000 persons.
The parties dispute whether picketing occurred in conjunction with the handbilling. At trial, plaintiff presented four disinterested witnesses who testified that they observed picketing and the posting of picket signs at the Boxhorn entrance where the aforedescribed handbilling occurred. However, defendants presented one disinterested witness who testified that he did not observe any picketing or the display of picket signs on the days when handbilling occurred. The persons who conducted the handbilling also testified that no picketing transpired.
Boxhorn alleges that it suffered substantial monetary loss directly resulting from decreased business pursuant to defendants' successful dissuasion of Boxhorn patronization. Boxhorn alleges that this dissuasion constituted unlawful secondary activities and that defendants should be held liable for the resulting damages. Defendants assert that their activities were protected by the publicity proviso to 29 U.S.C. § 158(b)(4). For the reasons stated below, the Court finds that the defendants' activities violated 29 U.S.C. § 158(b)(4) and were not protected by the publicity proviso.
Boxhorn's cause of action is based on 29 U.S.C. § 158(b)(4) (1976). This section restricts a labor organization and its agents from using economic pressure where an object of it is to force an employer or other person to boycott someone else. NLRB v. Denver Bldg. Council, 341 U.S. 675, 687, 71 S.Ct. 943, 950, 95 L.Ed. 1284 (1950). This proscribed tactic is labeled a "secondary boycott." Thus, a union is prohibited from striking or boycotting, or attempting to induce or encourage such action, "against employer A for the purpose of forcing that employer to cease doing business with employer B" with whom the union is engaged in a dispute. Id. Employer A is termed the "secondary employer" and employer B is termed the "primary employer."
In its post-trial brief, defendants imply that Boxhorn was a primary employer since non-union contractors were hired to construct its expansion project. Defendants' failure to steadfastly pursue this contention is warranted. The holding in Denver Building, supra, compels finding that Boxhorn was a secondary employer. That case involved a dispute between a union and a subcontractor at a construction site. The union engaged in a strike to force the site's general contractor to terminate its contract with the subcontractor. The Supreme Court found that such action was unlawful secondary activity since the general contractor was a secondary employer.
The instant case presents even stronger reasons for finding that the union conducted secondary activities. In Denver Building the subcontractor was the primary employer and the general contractor was the secondary employer. The present case similarly involves a general contractor/subcontractor relationship and the union's dispute is with the subcontractor. However, the object of the union's activities is not the general contractor (Glancey), rather it is Boxhorn. Therefore, the nexus between the dispute and the union's activities is more remote than in Denver Building. Moreover, Boxhorn lacked any supervisory control over Durski. The Court therefore finds that Boxhorn was a secondary-neutral employer and it will proceed to determine whether the defendants' activities directed against Boxhorn were unlawful.
Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(4)(ii)(B) (1976), prohibits coercion where the purpose thereof is to force or require any person "to cease doing business with any other person." By handbilling, publishing a copy of the handbill, picketing (discussed infra) and placing Boxhorn on its "Do Not Patronize" list, defendants advocated a consumer boycott of Boxhorn. As stated above, these activities were undertaken to force Boxhorn into terminating the use of non-union subcontractors on its expansion project. This Court finds that the defendants' actions constituted...
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Boxhorn's Big Muskego Gun Club, Inc. v. Electrical Workers Local 494
...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 unde......