Carpenters Union, Local 131 v. Cisco Construction Co., 15593.

• Decision Date: 13 April 1959
• Docket Number: No. 15593.,15593.
• Parties: CARPENTERS UNION, LOCAL 131; Carpenters Union, Local 1289; Seattle District Council of Carpenters, affiliated with The United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; International Union of Operating Engineers, Local 302, AFL-CIO; and Local 404, International Hod Carriers, Building and Common Laborers' Union of America, AFL-CIO, Appellants, v. CISCO CONSTRUCTION CO., an Oregon corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

266 F.2d 365 (1959)

CARPENTERS UNION, LOCAL 131; Carpenters Union, Local 1289; Seattle District Council of Carpenters, affiliated with The United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; International Union of Operating Engineers, Local 302, AFL-CIO; and Local 404, International Hod Carriers, Building and Common Laborers' Union of America, AFL-CIO, Appellants, v. CISCO CONSTRUCTION CO., an Oregon corporation, Appellee.

No. 15593.

United States Court of Appeals Ninth Circuit.

April 13, 1959.

COPYRIGHT MATERIAL OMITTED

Samuel B. Bassett, Bassett, Davies & Roberts, Seattle, Wash., for Carpenters Union, Local 131, and others.

L. Presley Gill, Seattle, Wash., for appellant Union of Operating Engineers, Local 302, AFL-CIO.

Roy E. Jackson, Seattle, Wash., for appellant Int. Hod Carriers, Building & Common Laborers' Union of America, Local 440, AFL-CIO.

McDonnell Brown, Portland, Or., Hugo Metzler, Jr., Tacoma, Wash., for appellee.

Before POPE, FEE and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Cisco, the general contractor, mainly makes its case seeking damages¹ for unfair labor practices² (committed by five locals and a labor council) from pressure conduct away from two job sites and usually at the places of business of Cisco's subcontractors. This "secondary" activity supplemented a stationary picket line at the job sites and roving picketing following Cisco's trucks established by a local of the carpenters' union.

Cisco had no contract with any union. It had contracts and "arrangements" with a number of subcontractors all of whom except one operated "union" shops. It had two separate United States army contracts at sites in Washington — the Redmond project and the Young's Lake project.

Generally, it may be said that the away-from-the-job site pressure, if it must be kept uncommingled with the job site picketing, did no substantial damage. The damage which Cisco did suffer would appear to have been caused because the subcontractors' union men just would not cross the picket lines at the job sites. The trial court expressly found that the first picket line as originally established was not illegal. And we think it implicit in the court's decision, findings of fact and conclusions of law, that if there had been nothing more than picketing, without the addition of other activity directed at or through the subcontractors, then recovery might have been denied. So it appears that the primary question here is whether we may take a concept of the totality of effort, charging all damage to defendants.

To us, the resolution of the problem mainly depends on how one reads four successive cases of the Supreme Court in the October Term, 1950. The cases are N.L.R.B. v. International Rice Milling Co., Inc., 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; and Local 74, United Brotherhood of Carpenters & Joiners of America v. N.L.R.B., 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309. From our analysis of these cases, we conclude that the defendants may be judged by their total activity during a period of time, provided the illegal activity is not de minimis.

The story of the trouble of the parties here begins on October 28, 1954, when the carpenter defendants (primarily the Seattle District Council) established pickets at the Redmond project. Picketing began a few days later at Young's Lake. The banners of the pickets read: "Cisco Construction Company unfair to wages and working conditions — District Council of Carpenters A.F.L." Also, roving pickets in cars followed Cisco's trucks, mainly back and forth from job site to the Cadman sand and gravel plant. The picketing continued until the jobs were completed late in 1955. All picketing seems to have been in the name of and actively directed by the district council of carpenters. There were minor and sporadic incidents of picketing occurring in the vicinity of two plants of subcontractors.

The work requiring carpenters was principally to be done by the general contractor and their place on the building schedule was much earlier than that of the trades of most of the subcontractors with their iron and metal workers, plumbers, electricians and painters.

As to Cisco, none of the defendants was a "bargaining representative" as defined by the Taft-Hartley Act. The first picketing began at Redmond after a carpenters' business agent approached the management of Cisco complaining that the employees on the job (some of whom were union carpenters) were not receiving overtime pay, certain transportation pay, and such fringe benefits as payments to the welfare funds of their unions, payments of the type that were ordinarily made by members of the Associated General Contractors of whom Cisco, an Oregon corporation, was one. Cisco was not ready to, and never did, accede to these demands. As a result, principally of the picket lines, Cisco could not get any of the subcontractors (except electrical which was nonunion) with their workers on to the job sites. Most of the subcontractors had signed written contracts with Cisco. Some subcontractors tested the picket line. When their union men turned back, they made no effort to force them to cross. Others did not even attempt to do that which was obviously useless. Gravel, sand, and mixed concrete were under subcontracts with "union" contractors and so were other segments of the job. The subcontractors would have made their own deliveries. As it was, Cisco had to take delivery in trucks it had leased and manned with nonunion drivers. Cisco had to find nonunion carpenters, painters, plumbers, iron and metal workers, machine operators and common labor to do behind the picket lines the work which ordinarily the subcontractors' union men would have done. There were many months of delay in completing the projects and the cost ran many thousands of dollars beyond the contract prices and Cisco's estimates. The defendants produced testimony to the effect that the whole loss was due almost entirely to bad management. But Cisco had a version which placed the fault of almost all of the delay on the defendants. Its witnesses said Cisco was hurt by difficulties and delays in getting men and by getting men unskilled for jobs they were undertaking to do. Then there was an unusually high turnover of men due, it said, to necessity to discharge many men who proved unsuitable. The only real means of getting men was by advertisements in newspapers. The trial court was unwilling, on the evidence, to trace all of the losses and delays to the defendants. But believing that there was substantial damage chargeable to the defendants and announcing that it found the damage from defendants' act to be "not less than $75,000," judgment was therefore ordered in that amount.

There was activity of business agents of the defendants on the secondary front with the subcontractors, which was obviously credited by the trial court, that shows a concert of action among the defendants to bring pressure on those who had no dispute with defendants to cause them to cease doing business with it. These acts consisted of one or two, usually two, agents of various defendants either bringing pressure on the workmen of the subcontractors or on the subcontractors directly to stop doing business with the plaintiff. If the agents of defendants had been credited on the stand by the court the agents were doing nothing except "trying to be helpful." If the trial court had ascribed substantial damage to these secondary or backyard activities, which it must have thought were quite real, then a greater detailing of facts would be appropriate. But as it is, we believe it sufficient to say on the evidence most favorable to Cisco, which view must be taken because of the findings below, these activities away from the job site show the concert of all defendants, that the acts were rather aggressive and calculated to cause others than carpenters to cease doing business with Cisco.

Judgment having been entered against the defendants, they have appealed.

The defendants' first point is that the case should be remanded for the trial court to make sharper findings. Of course, the purpose of findings is to tell someone else how the court reached its decision. Whether this court was wrong or right in its decision in Irish v. United States, 9 Cir., 225 F.2d 3, (relied on by defendants) there was an uncertainty there among the appellate judges as to how the trial court had reached its decision. Therefore, this court asked the trial court to make additional findings. Here it...