Landgrebe Motor Transport, Inc. v. District 72, Intern. Ass'n of Machinists & Aerospace Workers, AFL-CIO

• Decision Date: 17 May 1985
• Docket Number: No. 84-1117,AFL-CIO,84-1117
• Citation: 763 F.2d 241
• Parties: 119 L.R.R.M. (BNA) 2653, 103 Lab.Cas. P 11,502 LANDGREBE MOTOR TRANSPORT, INC., and Earl F. Landgrebe, Plaintiffs-Appellants, v. DISTRICT 72, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS,, and Local 1227, International Association of Machinists & Aerospace Workers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 241

763 F.2d 241

119 L.R.R.M. (BNA) 2653, 103 Lab.Cas. P 11,502

LANDGREBE MOTOR TRANSPORT, INC., and Earl F. Landgrebe, Plaintiffs-Appellants, v. DISTRICT 72, INTERNATIONAL ASSOCIATION OF MACHINISTS &

AEROSPACE WORKERS, AFL-CIO, and Local 1227,

International Association of Machinists

& Aerospace Workers,

Defendants-Appellees.

No. 84-1117.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 12, 1985.

Decided May 17, 1985.

J. Charles Sheerin, Michigan City, Ind., for plaintiffs-appellants.

John F. Schmitt, Lewis, Bowman, St. Clair & Wagner, Indianapolis, Ind., for defendants-appellees.

Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUDAHY, Circuit Judge.

This case arises out of an incident which took place when plaintiffs tried to cross a picket line manned by members of defendant unions. Plaintiffs filed suit under the federal labor law for damages suffered in the incident, and asserted pendent state claims. They appeal final summary judgment for defendants on the federal claim. We affirm.

I.

Plaintiff Earl F. Landgrebe ("Landgrebe"), a former member of the United States House of Representatives from Indiana, is an officer and employee of Landgrebe Motor Transport, Inc. ("LMT"), a common carrier engaged in freight hauling, the other plaintiff in this case. All of the claims of Landgrebe and LMT are based on a single incident which took place on February 13, 1980. On that date defendants District 72, International Association of Machinists & Aerospace Workers, AFL-CIO, and Local 1227, International Association of Machinists & Aerospace Workers (collectively, the "Union") were on strike at the plant of the Union Rolls Corporation ("Union Rolls") in Valparaiso, Indiana. Members of the Union had been picketing at the plant since November 16, 1979. On February 13th Landgrebe, driving an LMT truck, completed two trips into the Union Rolls plant to pick up and haul away loads of merchandise. During those two trips members of the Union, picketing at the plant gate, stood in front of the truck, attempting to prevent access to the plant, but were not successful in preventing Landgrebe from entering the plant.

Later that day, Landgrebe returned for a third load at the plant. As he approached the plant, driving down county route 250E (also known as "Industrial Drive") after having turned off of US 30, there was a "congregation of additional pickets which was unusual at that particular time." Smaroff Dep. (May 17, 1982) at 39. The pickets and the truck met, though exactly where on 250E is disputed. They may have met "quite a distance from the plant," Smaroff Dep. (May) at 40, at a point from which the entrance to the plant was not visible, Landgrebe Affidavit at 2. On the other hand, they may have met in the vicinity of the primary point of picketing, Smaroff Dep. (Oct. 28, 1982) at 45-46, which was "right next to the sign" at the west end of the Union Rolls plant, Smaroff Dep. (May) at 32. In no event was the confrontation more than "one hundred feet, more or less, 250 feet" from the entrance to the plant. Landgrebe Dep. at 130. Landgrebe stopped the truck; the pickets advanced and surrounded it. According to Landgrebe's deposition testimony, the pickets shouted various taunts and obscenities and several swung clubs, hitting the truck, breaking an outside mirror and shattering a side window and showering Landgrebe in the face with broken glass. He also testified that the air lines of the truck were damaged, and it was rendered inoperable for several days. The activities of the pickets ceased upon arrival of the sheriff, but Landgrebe and LMT were unable to pick up the third load of merchandise at the plant.

The complaint commencing this action was filed in the district court for the Northern District of Indiana on February 12, 1982, alleging a claim under section 303 of the Labor Management Relations Act of 1947 (the "LMRA"), as amended, 29 U.S.C. Sec. 187, based on an alleged unfair labor practice by the Union in violation of section 8(b)(4) of the National Labor Relations Act (the "NLRA"), as amended, 29 U.S.C. Sec. 158(b)(4). Pendent state law claims for personal injury and property damage were also asserted. By agreement of the parties, the case was referred to a United States magistrate. Discovery was completed, and on July 26, 1983, the Union moved for summary judgment on the issue of liability under federal labor law. The magistrate granted summary judgment on December 20, 1983, in a thoughtful Memorandum of Decision and Order. The judgment on the federal claim was made final pursuant to Rule 54(b), FED.R.CIV.P., on February 13, 1984.

II.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). In determining whether the moving party has shown there to be no material factual dispute, the court must view the evidence and all inferences to be drawn therefrom in the light most favorable to the opponent of the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). However, only those inferences which reasonably follow from the evidence need be considered by the court. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983).

As amended, subsection (a) of section 303 of the LMRA, 29 U.S.C. Sec. 187(a), declares that it is unlawful for a union to engage in any activity or conduct defined as an unfair labor practice in section 8(b)(4) of the NLRA, 29 U.S.C. Sec. 158(b)(4). Subsection (b) gives any individual injured in his business or property by a violation of subsection (a) a right of action for the damages sustained and the cost of the suit. 29 U.S.C. Sec. 187(b). The suit is subject to the limitations and provisions of section 301 of the LMRA, 29 U.S.C. Sec. 185. ¹

Subsection (b) of section 8 of the NLRA, 29 U.S.C. Sec. 158(b), defines certain actions by labor organizations or their agents as unfair labor practices. Among other things, the subsection defines certain secondary boycotting and secondary picketing as unfair labor practices. NLRB v. International Longshoremen's Association, 447 U.S. 490, 504-05, 100 S.Ct. 2305, 2313-14, 65 L.Ed.2d 289 (1980). Secondary activity may be defined as activity in which the union applies economic pressure to a person with whom the union has no dispute regarding its own terms of employment in order to induce that person to cease doing business with, and thereby increase the pressure on, another employer, called the primary employer, with whom the union does have such a dispute. NLRB v. Local 825, International Union of Operating Engineers, 400 U.S. 297, 302-03, 91 S.Ct. 402, 405-06, 27 L.Ed.2d 398 (1971); Local 761, International Union of Electrical, Radio & Machine Workers v. NLRB, 366 U.S. 667, 671-72, 81 S.Ct. 1285, 1288-89, 6 L.Ed.2d 592 (1961) ("General Electric "); R. GORMAN, LABOR LAW 240 (1976). See H.R. CONF.REP. NO. 510, 80th Cong., 1st Sess. 43, reprinted in 1947 U.S.CODE CONG. & AD.NEWS 1135, 1149. In relevant part, section 8(b)(4) provides as follows:

(b) It shall be an unfair labor practice for a labor organization or its agents--

....

(4)(i) 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 a 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 in an industry affecting commerce, where in either case an object thereof is--

....

(B) 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, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

....

29 U.S.C. Sec. 158(b)(4).

The final clause of the quoted portion of Sec. 8(b)(4) (the "Proviso") exempts from the provision primary strikes and primary picketing. United Steelworkers v. NLRB, 376 U.S. 492, 499, 84 S.Ct. 899, 904, 11 L.Ed.2d 863 (1964). Primary strikes are those which are directed against the employer with whom the union has the dispute concerning terms of employment. Primary picketing is picketing, generally at the situs of the primary employer, that attempts or is intended to increase the direct economic pressure on the primary employer by inducing others to honor the strike.

The question presented by this appeal is whether there was a material issue of fact as to whether the conduct of the Union members was protected primary activity within the meaning of the Proviso to section 8(b)(4). If so, summary judgment was improper; if not, summary judgment was proper.

III.

The activity on the first two trips was located at the gate of the Union Rolls plant, Landgrebe knew the purpose of the pickets and whom their dispute was with and his access to other employers was never affected. Nevertheless, Landgrebe and LMT make three arguments in support of the proposition that this picketing and related activity was secondary and not primary. They first argue that the picketing was...