Constar, Inc. v. Plumbers Local 447

• Decision Date: 02 August 1983
• Docket Number: No. CIV. S-81-807 LKK.,CIV. S-81-807 LKK.
• Citation: 568 F. Supp. 1440
• Court: U.S. District Court — Eastern District of California
• Parties: CONSTAR, INC., et al., Plaintiffs, v. PLUMBERS LOCAL 447, Defendant.

568 F. Supp. 1440

CONSTAR, INC., et al., Plaintiffs, v. PLUMBERS LOCAL 447, Defendant.

No. CIV. S-81-807 LKK.

United States District Court, E.D. California.

August 2, 1983.

Thierman, Simpson & Cook, Paul V. Simpson, Roger M. Mason, San Francisco, Cal., for plaintiff.

Victor A. Bertolani, Inc., Sacramento, Cal., for Plumbers Local 447.

OPINION

KARLTON, Chief Judge.

The developer of an office building and the general contractor on the project brought this suit against a local of the plumbers' union. The plaintiffs allege that the defendant's activities at the construction site constituted an illegal secondary boycott which damaged the plaintiffs. As I shall explain, the union cannot be held liable for those damages, for it did not act with the intent proscribed by the statute.

Ordinarily, judicial memoranda begin with a discussion of the facts, proceed to a review of the relevant law, and conclude with an application of law to facts which thus resolves the case. This opinion takes an unusual form, however; before discussing the specific facts of the dispute, I shall attempt a fairly detailed explanation of the development of the pertinent law. I believe that only by describing both what the law has become, and what the parties misapprehend the law to be, can I make explicable the behavior of the parties — which would otherwise appear to be very strange indeed.

I FROM THE WAGNER ACT TO THE TAFT-HARTLEY ACT OR — WHAT HATH CONGRESS WROUGHT?

Since the advent of the industrial revolution, the struggle between capital and labor has been a central source of social disruption throughout the world. For about fifty years it has been this nation's policy to contain the effects of that struggle through a system by which industrial peace is achieved through negotiated settlement. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1936); 29 U.S.C. § 151 (1973). To permit meaningful negotiation, Congress adopted the National Labor Relations Act (NLRA) which protected both the organization of working people and their collective activity.¹ By the mid 1940's, however, capital and management had mounted an effective campaign asserting that labor unions had grown too powerful. In response to that argument, Congress, buffeted by the "strong contending forces and deeply held views on the role of organized labor in the free economic life of the nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests," Local 1976 United Brotherhood of Carpenters & Joiners of America v. National Labor Relations Board, 357 U.S. 93, 99-100, 78 S.Ct. 1011, 1016, 2 L.Ed.2d 1186 (1958), adopted the Labor Management Relations Act (LMRA).²

Among other things, the LMRA provides that certain activities of labor unions will be deemed unfair labor practices and, further, "whoever shall be injured in his business or property by reason or sic any violation" of those provisions "may sue therefor in any district court of the United States ... and shall recover the damages by him sustained ...." 29 U.S.C. § 187(b).³ As pertinent to the instant litigation, the statute provides that it is an unfair labor practice and thus unlawful for a union

to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or an industry affecting commerce, where in either case an object thereof is —

. . . . .

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, ... 29 U.S.C. § 158(b)(4)(i)(B).⁴ Accordingly, if a union did engage in such prohibited conduct, a 303 suit would lie.

The language selected by Congress was most unfortunate. As the Supreme Court quickly recognized when it came to apply § 8(b)(4), "this provision could not be literally construed; otherwise it would ban most strikes historically considered to be lawful, so-called primary activity." Local 761, International Union of Electrical Workers v. NLRB (General Electric), 366 U.S. 667, 672, 81 S.Ct. 1285, 1288, 6 L.Ed.2d 592 (1961). Having been forced to take the first step down the slippery slope of ignoring the language of the statute, the courts and the National Labor Relations Board (NLRB) have spent the last thirty years elaborating a doctrine which — at least in the context of common situs construction cases such as this one — has the appearance not so much of law directed to the realities of the struggle of labor and management, but of a game of "NIGYSOB."⁵

As I shall endeavor to explain in the course of this opinion, both the representatives of labor and management in the instant case, on the advice of their respective counsel, thought they were playing a game of "gotcha." They were not, and the law did not require them to do so. In order to explain, however, both why the principals and their attorneys thought they were playing such a game, and why indeed they were not, some further explanation of the evolution of the law is necessary.

II HOW WE GOT FROM THERE TO HERE, OR WHAT THE BOARD AND THE COURTS WROUGHT

A. The Essential Nature of Secondary Boycotts.

As noted above, the Supreme Court refused to apply the literal terms of § 8(b)(4). Rather, it sought to determine what Congress must have meant by examining the statute's legislative history. The Court found that "the impact of the section was directed towards what is known as the secondary boycott whose `sanctions bear, not upon the employer who alone is a party to the labor dispute, but upon some third party who has no concern in it.' citation omitted." General Electric, 366 U.S. at 672, 81 S.Ct. at 1289. Even so, the Court concluded:

Not all so-called secondary boycotts were outlawed in § 8(b)(4)(A). `The section does not speak generally of secondary boycotts. It describes and condemns specific union conduct directed to specific objectives ... Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person. Thus much that might argumentatively be found to fall within the broad and somewhat vague concept of secondary boycott is not in terms prohibited.'

Id. at 672-73, 81 S.Ct. at 1288-89. That is, since picketing (for instance) is not unlawful in itself, "the key to determining whether section 158(b)(4)(i) and (ii)(B) was violated here is to identify the object of the union's picketing ...." International Association of Ironworkers v. NLRB, 598 F.2d 1154, 1156 (9th Cir.1979). In sum, then, the essentials may be readily articulated:

It is settled that a union may picket a primary employer with which it has a labor dispute; indeed such picketing is expressly exempted from the prohibitions contained in § 8(b)(4). The union may not, however, picket a neutral employer in order to force that employer to cease doing business with the primary employer. Such picketing is "secondary" ... J.F. Hoff Electrical Co. v. NLRB, 642 F.2d 1266, 1269 (D.C.Cir.1980).⁶

Thus the basic principle of law is simplicity itself: A union may picket a primary employer, and may do so even if it adversely affects the neutral employer and his employees unless that picketing "has as an object inducing those neutral employees to engage in concerted conduct against their employer in order to force him to refuse to deal with the struck employer." General Electric, 366 U.S. at 673, 81 S.Ct. at 1289. In essence, a trial of a "secondary boycott" 303 action, once picketing has been proved, is a trial of intent — that is, a determination of the object of the picketing.

B. Moore Dry Dock: Inferring a Presumption Of Incoherence.

The "object" of picketing is readily ascertainable where the primary employer and the neutral employer occupy different sites for their business activities. However, "this determination becomes much more difficult where, as here, the primary employer and the neutral employer perform separate work at a common situs." Allied Concrete, Inc. v. NLRB, 607 F.2d 827, 830 (9th Cir.1979). In response to the problem of determining whether such picketing has a prohibited or permitted purpose, the NLRB

set out four standards for picketing in such situations which would be presumptive of valid primary activity: (1) that the picketing be limited to times when the situs of dispute was located on secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs and (4) that the picketing clearly disclose that the dispute was only with the primary employer.

General Electric, 366 U.S. at 677, 81 S.Ct. at 1291, discussing Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950). The Moore Dry Dock standards have come to dominate resolution of § 8(b)(4) cases. As I shall now explain, the impact of the NLRB's standards on 303 actions presents a somewhat difficult problem.

"When Congress created the National Labor Relations Board to administer the NLRA, it expressed a judgment that the norms of labor relations could be better developed and applied by a specialized administrative agency than by the courts." R. Gorman, Basic Text on Labor Law, 291 (1976). With the passage of the LRMA, however, Congress also determined that a violation of section 8(b)(4) would give rise to an action for damages. "Congress was here concerned with reshaping labor-management legal relations ..." International Longshoremen &...