Markwell v. LOCAL# 978, UNITED BRO. OF CARPENTERS, ETC.
| Decision Date | 10 March 1964 |
| Docket Number | No. 1713.,1713. |
| Citation | 227 F. Supp. 40 |
| Parties | Kenneth MARKWELL and William Hartz, Partners, d/b/a Markwell and Hartz, Contractors, Plaintiffs, v. LOCAL #978, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, and Carpenters' District Council of Greater Kansas City and Vicinity, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Clarence Woolsey, of Allen, Woolsey & Fisher, Springfield, Mo., Wells T. Lovett, of Lovett, Howard & Moremen, Owensboro, Ky., for plaintiffs.
Gibson Langsdale, Kansas City, Mo., Harry H. Craig, St. Louis, Mo., for defendants.
This case, originally tried before a jury, is before this Court for a second trial; this time without a jury and on the record made at the first trial. The opinion of the Court of Appeals remanding the cause is reported as Local # 978, United Broth. of Carpenters and Joiners of America, AFL-CIO v. Markwell, 8 Cir. 1962, 305 F.2d 38. Following remand, and pursuant to procedures agreed upon at pre-trial conference, we overruled defendants' motion for summary judgment. See Markwell v. Local # 978, United Broth. of Carpenters, Etc., W.D.Mo.1963, 215 F.Supp. 792.
Thereafter, and following further pretrial conferences, the parties agreed that this case be submitted to us without a jury on the basis of the record made at the first trial. We have studied that record, the briefs of the parties, and their respective suggested findings of fact and suggested conclusions of law. Pursuant to Rule 52 of the Rules of Civil Procedure, we now file this memorandum opinion, and make appropriate findings of fact and conclusions of law in regard to the suggestions submitted by the parties pursuant to pre-trial order.
We first define the method and approach that we have used as the trier of the facts. Under the agreed procedure, we must review a cold record without the benefit of seeing and hearing the witnesses. We do not consider that this fact relieves us of our primary duty to weigh the evidence. Mr. Justice Jackson pointed out in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609-610, 70 S.Ct. 854, 857, 94 L.Ed. 1097, that "Proof of a fact can be made in any form" and that "final determination of an issue of fact requires a balancing of credibility, persuasiveness and weight of evidence." It is, of course, easier to strike a balance when live witnesses are before the trier of the facts; but the absence of live witnesses does not alter our duty or the nature of the trial process.
As Judge Learned Hand pointed out in United States v. Aluminum Co. of America, 2d Cir. 1945, 148 F.2d 416, 433, even when "the judge has not seen the witnesses" it is nevertheless "his duty * * * to sift the evidence, to put it into logical sequence and to make proper inferences from it; * * *". That, with the assistance of counsel, we have tried to do.
The point of beginning in this case is recognition that our controlling court has determined that "* * * there was substantial evidence to support a jury finding that * * * the picket line was established for the purpose of forcing plaintiffs to assign jobs to AFL-CIO members which were already filled by workers affiliated with the United Construction Workers" l. c. 46 of 305 F.2d. The Court of Appeals quoted portions of plaintiffs' evidence and definitely ruled that "* * * the issue of unlawful jurisdictional picketing was properly submitted to the jury, * * *." l. c. 47 of 305 F.2d.
It is our duty, therefore, as the trier of the facts, to weigh all of the evidence and to decide whether on the basis of all of the testimony in the record plaintiffs have carried the burden of proof in regard to the issues as defined by our controlling court.
To assist us in our analysis of the record, we directed counsel for both parties to cite the particular pages of the record upon which they relied to support their suggested findings of fact. While we shall discuss the testimony in some detail later, we note at this point that on the liability issue here involved, plaintiffs have directed our attention to portions of testimony found on only 20 pages of the 340 page printed record.
The Court of Appeals' opinion either quoted extensively from or accurately paraphrases the full substance of all of plaintiffs' testimony that can be gleaned from the 20 pages upon which plaintiffs now rely on this second trial to sustain its burden of proof. In other words, if it can be said that plaintiffs have carried their burden, such a determination must necessarily rest exclusively upon the evidence fully stated and summarized in the opinion of the Court of Appeals and upon which that court determined that a jury issue was made.
The Court of Appeals, in accordance with established principles relating to its scope of appellate review of a jury verdict, viewed the evidence "in the light most favorable to plaintiffs" l. c. 43 of 305 F.2d. Our view, as the trier of the facts, must, under the law, be from an entirely different perspective. We must view and weigh the evidence and determine the facts just as though the case had never been tried.
We must, of course, view the evidence from our perspective, as did the Court of Appeals from its different perspective, "* * * in the light * * * of the legislative history of the Act, and decisional law which we consider controlling * * *" l. c. 43 of 305 F. 2d. We must also, as did the Court of Appeals, take into proper account "the stated purposes of the legislation" l. c. 46 of 305 F.2d because plaintiffs' cause of action is directly dependent upon an Act of the Congress.
The decision of the Court of Appeals is the most controlling of all the decisional law that we must take into account in our determination of both the facts and the law on this second trial. It is therefore noted that the Court of Appeals first determined that "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" l. c. 42 of 305 F.2d; that "there was evidence of five different incidents at the picket line which successfully prevented plaintiffs from receiving needed services and supplies," l. c. 43 of 305 F.2d; but that, under the controlling decision of National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1284 (1951), "* * * there was no evidence to support a finding that the activities and conduct of the appellants constituted secondary boycott activities and that this issue should not have been submitted to the jury" l. c. 43 of 305 F.2d. Apart from any question of being bound by the factual determinations just stated, our independent examination of the entire record requires that we independently make the same findings of fact quoted from the opinion of the Court of Appeals. We do so find.
On the law, the Court of Appeals directed particular attention to Section 13 of the Act, which it quoted in full. That Court further held that "a legitimate expectation of any labor organization which pickets an employer with whom it has a primary dispute is that all persons will honor the picket line, including employees of neutral employers making deliveries of supplies or performing services for the primary employer" l. c. 43-44 of 305 F.2d. We are bound by that law of the case.
Our controlling court also emphasized that "the legislative history of § 158 (b) (4) * * * makes it compellingly clear that the evil sought to be eliminated by this legislation was not lawful primary activity, * * *" l. c. 44 of 305 F.2d. Rice Milling Co. was quoted as "persuasive authority for the conclusion that defendant did not engage in secondary activities" and National Labor Relations Board v. Denver Bldg. Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951) was held to be factually distinguishable from the facts of this case. l. c. 45 of 305 F.2d.
The quotations selected by the Court of Appeals from both Supreme Court cases recognize the legality of certain primary "picketing * * * in a manner traditional in labor disputes" l. c. 671 of 341 U.S., l. c. 964 of 71 S.Ct., 95 L.Ed. 1284; quoted on page 45 of 305 F.2d, and the legality of primary picketing that "was no more than was traditional and permissible in a primary strike" l. c. 687 of 341 U.S., l. c. 951 of 71 S.Ct., 95 L.Ed. 1284; quoted on page 45 of 305 F.2d. Our controlling court reiterated the approval given in Local 618, Automotive, Petroleum and Allied Industries Emp. Union, AFL-CIO v. National Labor Relations Bd., 8 Cir. 1957, 249 F.2d 332, 335, of what was said in United Electrical, Radio and Machine Workers of America, 85 N.L.R.B. 417, 418, to the effect that "when picketing is wholly at the premises of the employer with whom the union is engaged in a labor dispute, it cannot be called `secondary' even though, as is virtually always the case, an object of the picketing is to dissuade all persons from entering such premises for business reasons" l. c. 46 of 305 F.2d. We are also bound by those conclusions of law as stated by the Court of Appeals in its decision remanding this case for new trial.
The case was not finally disposed of on the first appeal because the Court of Appeals, after determining that there was no evidence whatsoever to support a finding of secondary activity, also held that "* * * §§ 187 and 158(b) (4) were designed to make unlawful secondary activities and jurisdictional strikes." It then determined that "* * * when the object of the strike is found to be to force assignment of particular work to members of a labor organization, the situs of the picketing is not of determinative importance" l. c. 46 of 305 F.2d. The Court of Appeals' analysis of the evidence concluded that "* * * the issue of unlawful activity on the part of appellants by reason of picketing for the purpose of `forcing any employer to assign particular work to employees in a particular...
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