Helgesen v. International Ass'n of Bridge, Structural & Ornamental Ironworkers, Local Union 498

• Decision Date: 07 January 1977
• Docket Number: No. 76-1571,76-1571
• Citation: 548 F.2d 175
• Parties: 94 L.R.R.M. (BNA) 2254, 80 Lab.Cas. P 11,835 T. W. HELGESEN, Plaintiff-Appellant, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, LOCAL UNION 498, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 175

548 F.2d 175

94 L.R.R.M. (BNA) 2254, 80 Lab.Cas. P 11,835

T. W. HELGESEN, Plaintiff-Appellant, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, LOCAL UNION 498, Defendant-Appellee.

No. 76-1571.

United States Court of Appeals Seventh Circuit.

Argued Oct. 26, 1976.

Decided Jan. 6, 1977.

As Amended Jan. 7, 1977.

Gerald C. Nichol, Madison, Wis., for plaintiff-appellant.

David Leo Uelmen, Walter F. Kelly, Milwaukee, Wis., for defendant-appellee.

Before FAIRCHILD, Chief Judge, MOORE, Senior Circuit Judge, ^* and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

In this case plaintiff-appellant T. W. Helgesen, Inc. (hereinafter referred to as plaintiff) is appealing a lower court decision which held that picketing conducted by defendant-appellee International Association of Bridge, Structural & Ornamental Ironworkers, Local Union 498 (hereinafter referred to as defendant) was primary activity rather than an actionable secondary boycott.

For the following reasons we affirm the lower court decision.

I.

A summary of the relevant facts based upon the lower court's findings of fact follows.

Rath Manufacturing Co., Inc., a Wisconsin corporation with its principal offices and facilities in Janesville, Wisconsin, is engaged in stainless steel fabrication for the food and dairy industry.

In 1974, Rath Manufacturing acted as its own general contractor for the construction in Janesville of a 60,000 square foot manufacturing facility. The job site was located on Foster Road, ¹ approximately 600 to 700 feet from Kennedy Highway. Virgil Rath, an employee of Rath Manufacturing, acted as the company's principal representative on the job site.

Rath Manufacturing contracted with Bob Kimball, Inc. to put in a concrete foundation. Karl Gould, an employee of Bob Kimball, Inc., was the foreman of the Kimball employees on the Rath Manufacturing job. Lycon, Inc., supplied concrete to Kimball for this job.

Rath Manufacturing also contracted with plaintiff to erect a steel frame, steel roof and steel siding on the concrete work put in by Bob Kimball, Inc.

Defendant union represents members who do the same type of craft work as the employees of plaintiff. Plaintiff's employees, however, did not belong to a union. Prior to June, 1974, defendant had been engaged in a labor dispute with plaintiff Prior to June 17, 1974, plaintiff's employees unloaded metal building materials on the Rath job site. On June 17, 1974, plaintiff's employees commenced the steel erection work.

and had conducted primary picketing of plaintiff at various job sites where plaintiff was then engaged. Defendant at no time material to this case was engaged in a labor dispute with Rath Manufacturing, Inc., Bob Kimball, Inc., or Lycon, Inc.

The defendant on June 19, 1974, began picketing the Rath Manufacturing job site. The picket line was positioned at the juncture of Kennedy Highway and Foster Road. Foster Road was an unmarked gravel road which had been dedicated as a public road one and one-half years prior to the initiation of the Rath Manufacturing project.

The picketing was authorized by George Chabucos, business agent, financial secretary, and treasurer of defendant union. Chabucos placed John Koebler, Sr., in charge of the picketing. As chief picket, John Koebler, Sr., enlisted as pickets his sons Brian and John, Jr.

Chabucos gave John Koebler, Sr., a primary worded area standard picket sign ² and express picketing instructions. ³

The picketing was timed to reflect the presence of Helgesen employees on the job.

Although the picket sign asserted that plaintiff was paying substandard wages, defendant conducted no actual investigation into plaintiff's wages, fringe benefits, or other conditions of employment.

Separate entrances were established on June 20, 1974, from Foster Road onto the job site. Entrance No. 1 was designated for exclusive use by employees and suppliers of plaintiff. Entrance No. 2 was designated for use by employees and suppliers of other employers. ⁴

Plaintiff formally notified defendant about the separate entrances by sending a certified letter dated June 20, 1974, to defendant. Defendant received the letter on June 24, 1974. John Koebler, Sr., however, was aware of the separate entrances well before the defendant received the letter from plaintiff.

Pursuant to directions from John Koebler, Sr., the defendant picketed in the area of the intersection of Kennedy Highway and Foster Road. The defendant did not confine its picketing to the gates designated for employees and suppliers of plaintiff.

On the morning of June 25, 1974, John Campbell, an unemployed member of defendant union, was standing with the authorized pickets. When Karl Gould, foreman of Bob Kimball, Inc., arrived at the job site, John Campbell made a short statement to Gould about how union men should honor picket lines. Campbell's statement was "spiced up with plenty of curse words."

Later in the day on June 25, 1974, a group of ironworkers followed Campbell onto the job site. Two of plaintiff's employees were injured in a fight with Campbell and the ironworkers.

Brian Koebler followed Campbell and the ironworkers onto the job site. As Brian Koebler passed Virgil Rath, Koebler had a short conversation with Rath. According to Rath, Koebler:

. . . threatened me, told me that the only reason why he didn't total me out right at that particular point was that I In order to get the attention of the men and break up the fight, Koebler broke a window on one of plaintiff's trucks.

was so damned old. Those were his words. And then he went ahead and just said a number of other things, like that this was all my fault, this eruption, and it was due to my hiring cheap labor at two dollars an hour, that I could drive the Continental that I was driving, and he went on and on with a lot of this kind of talk. And finally he left and went over to where they were scuffling.

Shortly after this incident, the police, city attorney, city engineer, Chabucos, Koebler, Sr., and T. W. Helgesen met to determine whether Foster Road was a designated public road which could be used by the picketers. Upon ascertaining that Foster Road was a designated public road, the picket line was moved to a site on Foster Road near the Helgesen entrance.

Kimball employees remained off the job for the remainder of June 25, 1974.

Rath decided late on June 25 that plaintiff should go off the job until Kimball completed the concrete work. Kimball agreed with the plan. Plaintiff resisted the plan but abided by Rath's decision.

After plaintiff was temporarily removed from the job, defendant withdrew its picket line.

The district court held that the actions of John Campbell, John Koebler, Sr., John Koebler, Sr.'s sons, and George Chabucos were the acts of defendant. Although defendant's activity was intentionally coercive of both Rath Manufacturing and Kimball, Inc., and successfully disrupted their business relationships with plaintiff and each other, the lower court concluded that the defendant's concerns were clearly primary in every respect.

Plaintiff argues on appeal that the lower court failed to give proper weight to findings of fact evidencing a secondary object by defendant. Specifically, plaintiff points to the following findings by the lower court as evidencing secondary object: 1) although notice had been received by defendant through John Koebler, Sr., that plaintiff had established separate entrances, defendant failed to confine picketing to the Helgesen gate; 2) defendant failed to investigate the pay, fringe benefits, and conditions of employment paid by Helgesen to its employees prior to commencement of picketing; 3) defendant was responsible for John Campbell's coercive and threatening conduct which resulted in Gould pulling the Kimball crew off the job; and 4) Virgil Rath was threatened by Brian Koebler. Plaintiff further asserts that even if secondary activity was incidental to primary activity, an action pursuant to § 303 of the National Labor Relations Act, 29 U.S.C. § 187, would nonetheless be available.

Defendant argues that the lower court properly found that defendant's conduct was in all respects primary activity directed at plaintiff. Defendant asserts further that even if the lower court opinion can be read as holding that aspects of defendant's behavior were secondary, the district judge expressly found that defendant acted without secondary object.

II.

Section 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4) (B), provides in part that it shall be an unfair labor practice for a union or its agent:

(i) . . . to induce or encourage any individual employed by any person . . . to engage in, a strike . . . , or

(ii) to threaten, coerce, or restrain any person . . . where in either case an object thereof is

(B) forcing or requiring any person . . . to cease doing business with any other person . . . : Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any . . . primary picketing.

Section 303 of the National Labor Relations Act, 29 U.S.C. § 187, incorporates by reference the prohibitions embodied in § 8(b)(4) and provides a basis for a civil action for damages cognizable in either federal or state court. ⁵ Local 20, Teamsters Union v. Morton, 377 U.S. 252, 258-9 n. 13, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964); Local 501, Electrical Workers v. Labor Board, 341 U.S. 694, 702, 71 S.Ct. 954, 95 L.Ed. 1299 (1951).

Section 8(b)(4) seeks to implement " 'the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.' National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 692 (71 S.Ct. 943, 953, 95 L.Ed. 1284) (1951)." Woodwork...