LOCAL 978, UNITED BRO. OF CARPENTERS & JOINERS v. Markwell

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: VOGEL, VAN OOSTERHOUT and MATTHES, Circuit
• Citation: LOCAL 978, UNITED BRO. OF CARPENTERS & JOINERS v. Markwell, 305 F.2d 38 (8th Cir. 1962)
• Decision Date: 11 July 1962
• Docket Number: No. 16962.,16962.
• Parties: LOCAL 978, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO and Carpenters' District Council of Greater Kansas City and Vicinity, Appellants, v. Kenneth MARKWELL and William Hartz, Partners, d/b/a Markwell and Hartz, Contractors, Appellees.

305 F.2d 38 (1962)

LOCAL 978, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO and Carpenters' District Council of Greater Kansas City and Vicinity, Appellants, v. Kenneth MARKWELL and William Hartz, Partners, d/b/a Markwell and Hartz, Contractors, Appellees.

No. 16962.

United States Court of Appeals Eighth Circuit.

July 11, 1962.

COPYRIGHT MATERIAL OMITTED

Harry H. Craig, St. Louis, Mo., for appellants; Gibson Langsdale, Kansas City, Mo., with him on the brief.

Wells T. Lovett, Owensboro, Ky., for appellees; Lovett & Howard, Owensboro, Ky., and Allen, Woolsey & Fisher, Springfield, Mo., with him on the brief.

Before VOGEL, VAN OOSTERHOUT and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This action for damages under § 303 of the Labor-Management Relations Act of 1947, as amended, (29 U.S.C.A. § 187), was instituted in the United States District Court for the Western District of Missouri by Kenneth Markwell and William Hartz, a co-partnership, doing business as Markwell and Hartz, Contractors.¹

The original defendants were five voluntary unincorporated labor organizations, namely: (1), Local 978, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; (2), Local 676, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO; (3), Local 16-16-B, International Union of Operating Engineers; (4), Local 178, United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; and (5), Carpenters' District Council of Greater Kansas City and Vicinity.

The trial was before a jury, and at the close of all of the evidence the defendants made separate motions for directed verdict. The court sustained the motions of the Operating Engineers and the Plumbers but reserved ruling on the motions of the Laborers and the two Carpenter Associations. The jury found in favor of the plaintiffs and against the three defendants remaining in the case and assessed plaintiffs' damages at $50,000. None of these defendants filed after-trial motions under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., neither does the record disclose that the trial court expressly denied the motions for directed verdict upon which ruling had been reserved; however, formal judgment was entered on the verdict, thus implying a denial of the motions for directed verdict. The two Carpenter Associations are the only defendants who have appealed to this court.²

Plaintiffs' cause of action was premised upon alleged unlawful picketing by defendant unions at the site of a construction project near Springfield, Missouri, where plaintiffs were engaged in constructing alterations and additions to the Northwest Sewage Treatment Plant, under contract with the City of Springfield. Plaintiffs' complaint alleged, and the cause was submitted under the theory of, violations of various subsections of § 303 of the Act, 29 U.S.C.A. § 187(a) (1), (2), and (4), which in pertinent part provide:

"(a) It shall be unlawful * * * 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 —

"(1) forcing or requiring * * any employer or other 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;

"(2) 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;

* * * * * *

"(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 unless such employer is failing to conform to an order or certification of the National Labor Relations Board determining the bargaining representative for employees performing such work * * *" (Emphasis supplied).

The broad question presented by this appeal is whether the evidence was sufficient to present a question of fact for the jury to resolve. Appellants contend that the evidence establishes that the picketing activities complained of were, as a matter of law, legal, and not proscribed by § 303 of the Act, and that, therefore, their motions for directed verdict should have been sustained. More precisely, appellants contend that § 303, and its counterpart covering unfair labor practices, § 8(b) (4), 29 U.S.C.A. § 158(b) (4), were not designed to prohibit lawful primary activity; that the evidence conclusively establishes that all activities of defendant unions were directed at a primary dispute with plaintiffs; that all picketing was confined to the primary situs of the dispute, and at the only situs in Missouri where plaintiffs were doing business; and that there was no evidence of secondary picketing of neutral employers. In addition, as to § 187(a) (4), appellants contend that there was no "jurisdictional dispute" within the meaning of the Act.

With these contentions in mind, we briefly review the evidence.

Plaintiffs are Memphis, Tennessee contractors, and prior to the contract in question their construction projects were in the main confined to southern areas of the United States. In July, 1957, they were the successful bidders on the Northwest Sewage Plant project, and immediately thereafter an officer of the Operating Engineers Union and Secretary of the "Building Trades Council"³ of Springfield, contacted plaintiffs in reference to employment of local AFL-CIO union men on the job. In August, plaintiffs met with various representatives of the separate craft unions, and although there is a dispute as to what transpired at this meeting, there is evidence from which the jury could have found that plaintiffs did agree to use the local AFL-CIO trade unions in filling requirements for construction men, apart from a few "key men" they wished to bring with them from Memphis.⁴

On August 15, 1957, two of plaintiffs' employees, not members of the Carpenters' Union, began building a shed at the construction site, and this union offered to accept one of the men in the local AFL-CIO organization. Misunderstandings and disputes began, and negotiations broke down. Throughout the negotiations, the defendants "made it perfectly plain that they were seeking two things. First, that none but members of their organizations be employed. Second, that traditional jurisdictional lines be observed so that carpenters do only the work of carpenters and not the work of plumbers, etc." There is evidence that representatives of the interested labor organizations made statements to the effect that unless the job was AFL-CIO "we can starve you out; we can put a banner up out there, shut off your concrete and materials to where you can't operate this job" and that "You won't get any electricians, or any other craftsmen to cross the picket line."

It appears that plaintiffs employed additional men who were not members of the unions affiliated with the "Building Trades Council," and that on August 23, 1957, plaintiffs signed a labor agreement with another organization known as the "United Construction Workers," an affiliate of the United Mine Workers.⁵

Three days later and on August 26, defendants began picketing the only entrance to the construction site with a sign reading as follows:

"A. F. of L. Carpenters not employed, Markwell, Hartz Construction Company, Local Union 978, Kansas City District Council."

It is conceded that at all times the picketing was peaceful, that it was confined to the construction site and that no neutral employers were picketed. Eleven of plaintiffs' employees were working at the site when picketing began, and all continued to work throughout the 42 days of picketing activity. However, the picketing was successful from the unions' standpoint, in that employees of various suppliers honored the picket line and refused to make deliveries or perform services for plaintiffs, and the picket line was maintained until October 22, when it was enjoined by an order of the United States District Court.⁶

There was evidence of five different incidents at the picket line which successfully prevented plaintiffs from receiving needed services and supplies. They are briefly summarized as follows:

(A) On the first day of picketing, a crew of power line workers of the City of Springfield appeared to re-locate power lines within the construction area, but work was stopped by the foreman of the crew, who, according to the record, stated: "we were all union men; we wouldn't work behind a picket line."

(B) On the first day of picketing an employee-driver of the Southwest Plumbing & Heating Company, apparently carrying supplies, refused to drive through the picket line.

(C) Another truck driver, this time an employee of the Anton-Luce Electric Company, stopped short of the picket line and refused to continue on to the construction site.

(D) Again, on the first day of picketing, a driver for the Garrett Construction Company, carrying a load of ready-mixed concrete, was ultimately ordered by his employer to leave without making delivery of the concrete.

(E) Several weeks after picketing began, a driver for the Frisco Transportation Company honored the picket line, and his materials were unloaded and delivered by plaintiffs' own employees.

Apparently there was no picketing by defendants after normal working hours and plaintiffs in fact managed to proceed to some extent with the project by having their employees...