Carpenters Local 1273 of United Bro. of C. & J. v. Hill

• Citation: 398 F.2d 360
• Decision Date: 21 June 1968
• Docket Number: No. 22452.,22452.
• Parties: CARPENTERS LOCAL 1273 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Construction General Laborers Local 85, Lane-Coos-Curry-Douglas Counties Building and Construction Trades Council, Oregon State Council of the United Brotherhood of Carpenters and Joiners of America, Appellants, v. Willis A. HILL, doing business as Willis A. Hill, General Contractor, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

398 F.2d 360 (1968)

CARPENTERS LOCAL 1273 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Construction General Laborers Local 85, Lane-Coos-Curry-Douglas Counties Building and Construction Trades Council, Oregon State Council of the United Brotherhood of Carpenters and Joiners of America, Appellants, v. Willis A. HILL, doing business as Willis A. Hill, General Contractor, Appellees.

No. 22452.

United States Court of Appeals Ninth Circuit.

June 21, 1968.

Paul T. Bailey (argued), Stephen M. Malm, of Bailey, Swink & Haas, Portland, Ore., for appellants.

Lewis K. Scott (argued), James H. Clarke, John C. Wright, Jr., of McColloch, Dezendorf & Spears, Portland, Ore., for appellees.

Before HAMLEY and ELY, Circuit Judges, and VON DER HEYDT,^* District Judge.

HAMLEY, Circuit Judge:

Willis A. Hill brought this action against the four named unions and union councils to recover damages in the amount of $18,182.69.¹ The alleged damages resulted from picketing by defendants which, according to plaintiff, constituted an unfair labor practice in violation of section 8(b) (4) (i) and (ii) (A) of the Labor Management Relations Act, as amended (Act).² Hill predicated district court jurisdiction on section 303(b) of the Act.³

After a trial to the court without a jury, a joint and several judgment was entered for Hill and against the four unions and councils in the amount of $11,500. Defendants appeal, arguing: (1) the findings of fact and conclusions of law fail to meet the requirements of Rule 52(a), Federal Rules of Civil Procedure, (2) there is no basis in the record for the finding and conclusion that the unions' picketing was unlawful, and (3) there is no basis in the record for the award of damages.

The trial court found that Hill is a sole proprietorship engaged as a general contractor in the construction industry affecting interstate commerce; defendants are labor organizations representing employees in that industry; commencing on January 18, 1965, defendants picketed plaintiff's construction site in Eugene, Oregon, where he was building a bookstore for the University of Oregon; they thereby induced and encouraged a strike of employees working on the job site; the picketing continued until April 9, 1965, when enjoined by the same district court in proceedings brought by the National Labor Relations Board; an object of such picketing was to require Hill to execute a contract designated "Oregon State Building and Construction Trades Council Articles of Agreement," and this agreement includes the following provision, contained in paragraph IX of the agreement:

"It is further agreed that no employee working under this Agreement need * * * cross any picket line or enter any premises at which there is a picket line authorized by the Council; or any other Building & Construction Trades Council or authorized by any Central Labor Council or handle, transport or work upon or with any product declared unfair by any of such Councils."

On the basis of these findings, the trial court concluded that the agreement which defendants sought to have Hill sign violates section 8(e) of the Act, 29 U.S.C. § 158(e) (1964), and therefore defendants' picketing violated section 8(b) (4) (i) and (ii) (A) of the Act.

Notwithstanding defendants' contention to the contrary, we believe these findings and conclusions are sufficiently complete and detailed to present, adequately, the legal question of whether defendants engaged in an unfair labor practice under the circumstances described. With regard to this branch of the case there was sufficient compliance with Rule 52(a), Federal Rules of Civil Procedure, requiring findings of fact in all actions tried upon the facts without a jury.

Section 8(e) provides that it shall be an unfair labor practice for any labor organization and any employer to enter into any contract whereby such employer ceases or refrains, or agrees to cease or refrain, from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or cease doing business with any other person, and any contract or agreement containing such a provision shall be to such extent unenforcible and void. This provision is subject to three provisos, the first one being to the effect that nothing in the subsection shall apply to an agreement between a labor organization and an employer in the construction industry "relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work."

Defendants argue that the quoted part of the agreement, read in conjunction with paragraph I of the agreement,⁴ refers only to picket lines and the entering of premises where work is being done at a construction or job site, and that therefore this particular agreement falls under the construction industry exception to section 8(e). If this is a correct analysis, then picketing to obtain the agreement is not an unfair labor practice under section 8(b) (4) (i) and (ii) (A) of the Act. But if the proviso is not applicable here, then picketing to secure the agreement is prohibited by that section. See Construction, etc., Laborers Local 383, AFL-CIO v. N.L.R. B., 9 Cir., 323 F.2d 422, 425.

It will be noted that paragraph IX of the agreement refers to "any picket line * * * authorized by the Council." Despite the general coverage of the agreement, as described in paragraph I, we think "any picket line * * * authorized by the Council" is not limited to picket lines at construction job sites, nor is limited to work being done at a construction job site, as distinguished from the delivery of supplies and materials to such sites.⁵

In so concluding we have not overlooked the principle of contract construction, urged upon us by defendants, that where a contract is subject to interpretation in two ways and, by one of which it would be lawful and the other unlawful, the former will be adopted. See American Machine & Metals, Inc. v. DeBothezat Impeller Co., Inc., 2 Cir., 180 F.2d 342, 347.⁶ We do not think paragraph IX is fairly open to the construction that the picket lines therein referred to are only those which may be established at a construction job site or which, if established at a construction job site, relate only to work being done at such site as distinguished from the delivery of supplies and materials.

An unfair labor practice charge was filed against defendant Council involving the same picketing incident. A Board trial examiner found that the picketing violated section 8(b) (4) (i) and (ii) (A) of the Act. On review, the Board agreed. Lane-Coos-Curry-Douglas Counties Bldg. & Constr. Trades Council, 155 N.L.R.B. 1115. When the defendant Council refused to comply, the Board petitioned this...