Lescher Building Service, Inc. v. LOCAL UNION NO. 133, ETC.

• Decision Date: 07 November 1962
• Docket Number: No. 13694.,13694.
• Citation: 310 F.2d 331
• Parties: LESCHER BUILDING SERVICE, INC., Plaintiff-Appellant, v. LOCAL UNION NO. 133 OF the SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

310 F.2d 331 (1962)

LESCHER BUILDING SERVICE, INC., Plaintiff-Appellant, v. LOCAL UNION NO. 133 OF the SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Defendant-Appellee.

No. 13694.

United States Court of Appeals Seventh Circuit.

November 7, 1962.

Jerald E. Jackson, Frank H. Byers, LeForgee, Samuels, Miller, Schroeder & Jackson, Decatur, Ill., for appellant.

Donald W. Fisher, Toledo, Ohio, Donald W. Morthland, Henson, Morthland & Henson, Decatur, Ill., Mulholland, Robie & Hickey, Toledo, Ohio; James E. Henson, Richard F. Morthland, Decatur, Ill., of counsel, for appellee.

Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.

HASTINGS, Chief Judge.

This action was brought by Lescher Building Service, Inc. (plaintiff) to recover damages for an alleged violation of § 303(a) (4) of the Labor Management Relations Act, 1947, Title 29, U.S.C.A. § 187(a) (4), which reads in pertinent part as follows:

"(a) It shall be unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is — * * *

"(4) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class * * *."

Defendant is Local Union No. 133 of the Sheet Metal Workers International Association.

A jury trial resulted in a verdict in plaintiff's favor on which the trial court entered judgment for plaintiff. On February 14, 1962, pursuant to defendant's motion, the trial court set aside the verdict and judgment thereon and entered judgment for defendant notwithstanding the verdict. Plaintiff appeals from this judgment.

A motion for directed verdict or for judgment notwithstanding the verdict raises a question of law as to whether there is any evidence which, if believed by the jury, warrants a verdict against the party making the motion, and in deciding such motion the court must consider the evidence in the light most favorable to the party against whom the motion is directed. Cartwright v. Traylor Bros., Inc., 7 Cir., 288 F.2d 196 (1961); Bell v. Pennsylvania Railroad Company, 7 Cir., 284 F.2d 297 (1960); Euson v. Starrett, 7 Cir., 277 F.2d 73 (1960). Accordingly, the following narrative is drawn from the evidence favorable to plaintiff.

Plaintiff is a general contractor engaged in the sale and construction of prefabricated metal buildings known as Butler buildings. Fred Lescher, plaintiff's president, testified that plaintiff makes out of state purchases yearly in the amount of one hundred fifty to two hundred thousand dollars. He further stated that in the past plaintiff has received material from Birmingham, Alabama and that the raw material corrugated by Butler (plaintiff's supplier) at its Galesburg, Illinois plant comes from steel mills throughout the country. Lescher testified that plaintiff had in the past sold two buildings outside the State of Illinois. Contrary to the finding of the district court, we conclude that plaintiff established it was engaged in business "affecting commerce" within the meaning of Section 303(a) of the Act.

Plaintiff subcontracts the actual construction of these buildings to Lescher Construction Service, Inc., and other work, such as plumbing, to other subcontractors. Fred Lescher is president of and owns a controlling interest in both plaintiff and Lescher Construction Service, Inc. This latter corporation did the actual work of constructing and erecting a building for the Cloyd Market in Decatur, Illinois, where the alleged cause of action arose and employed and paid for the required labor.

The Butler building involved in this case was constructed by placing corrugated steel panels on an iron framework. Prior to 1959, the corrugations on Butler panels were 13½ inches apart. In that year the panels were changed so that the corrugations were less than 5 inches apart.

In an agreement entered into in 1952 between the Sheet Metal Workers International Union and the Iron Workers International Union, it was agreed that where the centers of the corrugations were more than 5 inches apart, the work of erection was that of sheet metal workers and that where the centers of corrugations were less than 5 inches apart, the work of erection was that of iron workers. The centers of corrugations on the panels involved in the Cloyd Market job were less than 5 inches apart. Under the 1952 agreement the erection of the panels on the Cloyd Market building would have been assigned to Iron Workers Union.

Prior to September 4, 1959, M. D. Chadwick of Lescher Construction Service, Inc. directed a composite crew of sheet metal workers and iron workers to report to the Cloyd Market job site to unload the materials for the job, which work was done. On this date, Forrest English, business representative for Iron Workers Union, notified Lescher Construction Service, Inc. that Iron Workers Union was claiming all the work of installing Butler rib panels. Sheet Metal Workers Union claimed the same work.

On September 8, 1959, plaintiff called a meeting in an attempt to settle the dispute. The meeting was attended by Forrest English, representing the iron workers, Thomas Bradshaw, defendant's business representative and Fred Lescher, president of plaintiff.

Thomas Bradshaw testified that during the course of this meeting he made a statement to the effect that unless the work on the job at Cloyd's Market was given to the sheet metal workers that he would banner or picket the job. The unions could not agree on a compromise solution. As a result, Fred Lescher,¹ relying on the 1952 agreement between Sheet Metal Workers International Union and Iron Workers International Union, awarded the work on the Butler rib panels to Iron Workers Union. Forrest English testified that after this assignment was made he overheard Bradshaw say he "would picket the job."

Pursuant to the work assignment, the iron workers proceeded to place the Butler rib panels on the iron framework. On September 14, 1959, when the panels were being applied, a single picket appeared at the Cloyd Market site carrying a banner which read "Lescher Bldg. Service, Inc. has reassigned sheet metal work on this job in defiance of a directive from the National Joint Board — Sheet Metal Workers Local 133."² The picket was a member of defendant union and was placed at the Cloyd Market job site under the direction of defendant's business representative. The picket was withdrawn from the job site on September 17, having been there for a period of four days.

The iron workers' business representative testified that when the picket appeared on the first day the following occurred: "The iron workers' Steward called me up and asked me what to do about the picket line out there, and I told him not to honor it that the procedural rules outlawed jurisdictional picketing and we were bound not to honor that picket, to ignore it." The iron workers' business representative testified further that he "objected to Bradshaw to a picket line being on the job. It was against the procedural rules that we agreed on to put a picket on the project to try and tie the job up."

Robert Smith, plumbing contractor on the Cloyd Market job testified he began work in August, 1959 and completed his contract the following December. He did no work on September 14, the day the picket appeared, although there was work on the job which could have been done. With respect to his employees, Smith was asked: "Why did they not work on the Cloyd Market job, if you know, the week of September 14, 1959?" Smith answered: "Well, they wouldn't cross a picket line."

Fred Lescher testified that he had communicated with some of the subcontractors and found out that they were not working "because their employees were Union employees and would not cross the picket line to work."

In November, 1959, plaintiff had contracted to erect a Butler building for the Wagner Malleable Casting Corporation. Fred Lescher testified that defendant's business representative called him to inquire how plaintiff was going to perform the work on the Wagner job. When the business representative was told by Lescher that plaintiff would perform the work the same way as on the Cloyd job, the business representative "said he would perform the same way he had on the Cloyd job." A statement of similar import, with respect to the Wagner job, was made to the iron workers' business representative by defendant's business representative.

The start of the Wagner job was delayed two weeks because "the Wagner officials did not want any labor problems by any of their contractors working on their work, so they told us plaintiff to hold off until we got it settled."

At the Cloyd Market job, the iron workers ignored the picket and continued work on the Butler rib panels during the four days he was present. No other employees worked during these four days.

In an effort to have the picket removed, plaintiff hired the law firm of Woollen, Byers & Brown. Fred Lescher estimated that he spent 300 hours trying to get the labor matters settled, and that this time would otherwise have been devoted to selling new jobs. Plaintiff's business dropped from 88 jobs in 1959 to 40 jobs in 1960.

Sections 303(a) and (b) of the Labor Management Relations Act, 1947, 29 U.S.C.A. §§ 187(a) and (b), the sections involved in the instant case, make certain conduct unlawful and give a cause of...