Clark Engineering & Const. Co. v. United Broth. of Carpenters and Joiners of America, Four Rivers Dist. Council, 74--1312
| Decision Date | 17 February 1975 |
| Docket Number | No. 74--1312,74--1312 |
| Citation | 510 F.2d 1075 |
| Parties | 88 L.R.R.M. (BNA) 2865, 76 Lab.Cas. P 10,669 CLARK ENGINEERING AND CONSTRUCTION COMPANY, Plaintiff-Appellant, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, FOUR RIVERS DISTRICT COUNCIL, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles S. Wible, Lovett, Wible & Lamar, Owensboro, Ky., for plaintiff-appellant.
Charles R. Isenberg, Segal, Isenberg, Sales & Stewart, Thomas G. Jarrell, Louisville, Ky., for defendants-appellees.
Before WEICK, EDWARDS and McCREE, Circuit Judges.
Clark Engineering and Construction Company (Clark), a Kentucky corporation, brought suit in the District Court against the defendant labor organizations under Section 303 of the Labor Management Relations Act (LMRA) as amended, 29 U.S.C. § 187, alleging that activities of the labor organizations at a Murray State University construction project, in Murray, Kentucky, violated Section 8(b)(4) of the National Labor Relations Act (NLRA) as amended, 29 U.S.C. § 158(b)(4).
The case was tried before a jury which returned a verdict in favor of the defendant labor organizations, upon which verdict judgment was entered dismissing the complaint. Clark appealed.
On October 16, 1969 the State of Kentucky awarded Clark a contract of over $5,000,000 for construction of a football stadium, with underground classroom facilities, on the campus of Murray State University. Clark subcontracted some of the work. A short time after being awarded the contract Clark agreed to hire members of various building trades locals at the wage scales specified in their area collective bargaining agreements. The agreements between Clark and the local unions expired on or about May 31, 1971. During the time of the activities which are the basis of Clark's action, none of the labor organizations had a collective bargaining agreement with Clark, and no labor organization was certified by the National Labor Relations Board as the representative of Clark's employees.
The carpenters employed by Clark continued to work under the terms of the old agreement until July 1, 1971. The United Brotherhood of Carpenters Local, however, insisted that Clark sign a letter of intent to be bound by whatever agreement might be finally reached between the Carpenters Local and the Associated General Contractors. Clark did not want to agree in advance to be bound by any agreement that the Association might enter into, and decline to sign the letter of intent. The Carpenters then began picketing at the construction site, informing Clark that they would not return to work until the letter of intent was signed.
Clark erected a single-wire fence around the entire construction site. The fence had two entrance gates, separated by about 180 feet. Gate 1 was reserved for Clark and nonunion or open shop subcontractors and their material suppliers. Gate 2 was reserved for the neutral union subcontractors and their material suppliers. Clark posted large, clearly-worded, appropriate signs at the gates. The Carpenters then complied with the notice and limited their picketing to gate 1, thereby avoiding violating Section 8(b)(4) of the NLRA. 1 The union subcontractors' employees began using gate 2 and resumed work. The Carpenters picketed until August 30th or 31st, 1971. They had not settled their dispute with Clark when they stopped picketing.
On Friday, September 10, 1971 three members of the Safety Committee for the West Kentucky Building and Construction Trades Council visited the construction site, stating to Clark's job superintendent that they had received reports of safety violations on the job. They asked the superintendent to accompany them on an inspection of the project, but he refused. No employee had previously made any complaint to him concerning working conditions. The members of the Safety Committee inspected the job and claimed to have found several safety hazards. The Trades Council began picketing at both gates on the following Monday, September 13, 1971.
The picket sign read: It seems to be a coincidence that on the same day two inspectors for the Kentucky Department of Labor inspected the job site and found fifteen sanitary and safety violations. 2 The construction had been in progress for nearly two years without any complaint by the Department or by any employee.
Two of the subcontractors whose employees used gate 2 were the Tilford Plumbing & Heating Co. and Riley Electric Co. These subcontractors were responsible for plumbing and electrical work that had to be completed prior to placing of concrete by Clark's employees. Their employees, except for Riley's foreman, refused to work while picketing at gate 2 continued.
Picketing continued at gate 2 until September 24, 1971. The State Inspector and a member of the Safety Committee of the Labor Council testified that safety conditions had improved by September 21st; however, they also testified that there were some safety problems uncorrected. Pickets were removed on the morning of September 24th, and members of the defendant-appellee unions returned to work.
In its appeal Clark contended (1) that the District Court erred in its instruction to the jury that § 502 of LMRA provided a defense to a secondary boycott conducted by the defendant unions against neutral employers; (2) that the Court erred in its admission of incompetent evidence and in the exclusion of competent evidence; and (3) that the Court erred in denying plaintiff's motion for a directed verdict. We reverse.
Section 502, in relevant part, provides:
Nothing in this chapter shall be construed to require an individual employee to render labor or service without his consent, nor shall anything in this chapter be construed to make the quitting of his labor by an individual employee an illegal act; nor shall any court issue any process to compel the performance by an individual employee of such labor or service, without his consent; nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter. (Emphasis ours.) (29 U.S.C. § 143)
Only the italicized portion was claimed to be applicable to this case.
The District Court instructed the jury with respect to this section as follows:
The Defendant Unions admit the picketing at the time and place claimed; that is, at both gates between the dates of Monday, September 13 through Friday, September 24, 1971, but deny that the Unions were engaged in any unlawful or unfair labor practice as prohibited by Section 8(B)(4)(b) of the National Labor Relations Act, which I just read you.
The Defendant Unions contend that their members quit working at and picketing the Clark Engineering job site on September 13, 1971, in good faith because of dangerous working conditions at that place of employment and that they ceased such picketing and returned to their jobs after much of the dangerous conditions at the work site had been remedied.
Of course, the Plaintiff Clark claims that such contention by the Defendant Unions of dangerous working conditions was and is a false, sham claim or defense. If the Defendant Unions' claim is believed by you to be true, then the Defendant Labor Organizations would not have violated Section 8(B)(4)(b) of the Labor Act for the reasons of the existence of Section 502 of the Labor Management Act which reads pertinent part as follows:
'Nothing in this Act shall be construed to require an individual employee to render labor or service without his consent, nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions of work at the place of employment be deemed a strike under this Act.'
However, if you, the jury, should conclude that the employees in their good faith did not believe that there existed abnormally dangerous condition at this place of employment or if you should believe that such dangerous conditions, in fact, did not exist, then this would not be a valid defense for the Defendant Unions against the claim of Mr. Clark in this lawsuit. . . . (A. 137--138)
Thus, the factual issue to be determined by you in this case is:
(1) Was one of the objects of the picketing by the Defendant Unions between the period of September 13 and September 24 and (sic) object prohibited by 8(B) (4)(b) of the National Labor Relations Act, or, on the other hand, was the sole object of the Defendant Labor Organizations activities in such picketing during such period one taken in good faith because of the existence of abnormally dangerous conditions at the place of employment. (A. 140)
In our opinion the District Court erred in instructing the jury on Section 502. It was not pleaded as a defense. The Section, even if applicable, does not authorize a secondary boycott in violation of Section 8(b)(4) of the National Labor Relations Act, as amended.
Section 502 authorizes the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions of work. The section does not mention a labor union; it is addressed solely to the rights of individuals.
Clark does not question the right of 'an employee or employees' to quit work under such condition. There was no proof that any employee ever made a complaint to Clark or his supervisors concerning working conditions.
What the Trades Council and the unions were attempting to do was to conduct a secondary boycott against neutral parties who were not concerned with the Council's and unions' controversy with Clark. The unions could picket to their hearts' content so long as they confined their picketing to gate 1.
The distinction between employee individual rights and union activity with respect to § 502 was recognized and pointed out in ...
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