Procon, Inc. v. Wukasch

• Decision Date: 23 July 1981
• Docket Number: Civ. A. No. B-81-474-CA.
• Citation: 526 F. Supp. 597
• Parties: PROCON, INCORPORATED, Plaintiff-Petitioner, v. Steven Ray WUKASCH, Sabine Area AFL-CIO Building and Construction Trade Union Council, P. L. Ellis, James W. Sparks, James Hudson, Eugene Howard, A. R. Burton, Doug Egan, Glenn Dukes, Bert Fountain, Verdis E. Wagner, Dewey M. Cox, Douglas Daniels, Jack Kennedy, AFL-CIO Pipefitter's Local 195; AFL-CIO Electrician's Local 479; AFL-CIO Asbestos Workers Local 22; AFL-CIO Carpenters Local 610; AFL-CIO Millwrights Local 2484; AFL-CIO Cement Finishers Local 884; AFL-CIO Operating Engineers Local 450; AFL-CIO Surveyors Local 4501; AFL-CIO Iron Workers Local 125; AFL-CIO Boilermakers Local 587; Teamsters Local 920; AFL-CIO Laborers Local 583, Defendants-Respondents.
• Court: U.S. District Court — Eastern District of Texas

526 F. Supp. 597

PROCON, INCORPORATED, Plaintiff-Petitioner, v. Steven Ray WUKASCH, Sabine Area AFL-CIO Building and Construction Trade Union Council, P. L. Ellis, James W. Sparks, James Hudson, Eugene Howard, A. R. Burton, Doug Egan, Glenn Dukes, Bert Fountain, Verdis E. Wagner, Dewey M. Cox, Douglas Daniels, Jack Kennedy, AFL-CIO Pipefitter's Local 195; AFL-CIO Electrician's Local 479; AFL-CIO Asbestos Workers Local 22; AFL-CIO Carpenters Local 610; AFL-CIO Millwrights Local 2484; AFL-CIO Cement Finishers Local 884; AFL-CIO Operating Engineers Local 450; AFL-CIO Surveyors Local 4501; AFL-CIO Iron Workers Local 125; AFL-CIO Boilermakers Local 587; Teamsters Local 920; AFL-CIO Laborers Local 583, Defendants-Respondents.

Civ. A. No. B-81-474-CA.

U. S. District Court, E. D. Texas, Beaumont Division.

July 23, 1981.

Hofheinz, Harpold, McDonald & Fitzgerald, Anthony D. Sheppard, Houston, Tex., for plaintiff, Procon, Inc.

Maner, Nelson & Reaud, Wayne A. Reaud, Beaumont, Tex., and Stephenson, Thompson & Dies, Martin W. Dies, Orange, Tex., for the respective defendants other than Steven Ray Wukasch.

FINDINGS OF FACT AND CONCLUSIONS OF LAW MEMORANDUM OF DECISION

JOE J. FISHER, Chief Judge.

This is a wrongful picketing case. The Plaintiff, Procon, Incorporated, (Procon) is the general contractor for a significant new energy unit being constructed at the Gulf Oil Refinery located in Port Arthur, Texas, and the construction contract connected to the job is in the approximate amount of $80,000,000.00. Jurisdiction herein is founded upon diversity of citizenship, since Procon is a Delaware corporation with its principal offices in Des Plaines, Illinois, and all defendants are residents of Texas. Additionally, jurisdiction was initially founded upon 29 U.S.Code 185, and no Defendant has challenged the jurisdiction of the Court. All of the Defendants in this cause, with the exception of Steven Ray Wukasch, were dismissed after the hearing on the merits pursuant to an agreement between each of said parties and the Plaintiff, Procon, Incorporated. Defendant, Wukasch, failed to appear for the trial herein, though he was duly served personally with official notice of the time and place of the hearing on this injunction. The hearing was to the Court and, pursuant to Rule 65(a)(2), F.R.C.P., the hearing of this action on the merits was advanced and consolidated with the application for preliminary injunction. Procon dismissed its complaint for monetary damages against Wukasch after the trial, since said Defendant is without significant assets to pay such a judgment.

The allegations of Procon, are as follows, insofar as the operative facts of the case are concerned:

"The Defendant, Steven Ray Wukasch was employed by the Plaintiff, Procon, Inc. as a timekeeper for a considerable period, until June 24, 1981. On June 24, 1981, the said Steven Ray Wukasch was duly terminated from said employment for valid causes, i. e., insubordination and low productivity. Said party, Wukasch, has admitted that he was terminated, at least in major part, for `playing checkers during work hours.' This unequivocal admission is contained in said party's own handwriting in Plaintiff's Exhibit No. 4, .... `Initial Claim for Benefits, Form B-3(780)', Texas Employment Commission. After said termination from employment the said Steven Ray Wukasch discussed his termination with some or all of the Defendants in this suit. The said Steven Ray Wukasch knows that the union members working upon the relevant Procon jobsite at the Gulf Refinery will not cross or go around a picket stationed at an entry gate. The said Steven Ray Wukasch stationed himself at the Procon jobsite and on the morning of June 26, 1981, at or about 6:00 o'clock a. m., positioned himself near the entry to said site and by his wrongful and unlawful presence closed the entire construction job down by effectuating a total labor stoppage at said site. Steven Ray Wukasch is aware of the contractual duties of the other Defendants herein, and, with malice, has interfered with said contractual duties while committing the unlawful acts herein below described.

The said Steven Ray Wukasch was and is totally aware that his employment was subject to termination at the will of Procon, and the said Steven Ray Wukasch was free to leave said employment at any time without restriction. Said party was under no formal, written contract to any party to this action, and was not a member of any organization herein. Wukasch knew that as timekeeper he had become well known to the vast majority of the approximately 800 union workers on the jobsite, and that the actions described above in connection with establishing himself as a picket, would have the immediate effect of precipitating a total and extremely damaging work stoppage on the subject jobsite. The construction job at the Gulf Refinery involves approximately $80,000,000.00, and each job day of wrongful work stoppage immediately causes Procon a loss in excess of $20,000.00. Under the totality of the circumstances, with the said Steven Ray Wukasch knowing full well that his termination from employment was fair in all respects under the admitted circumstances, the said Defendant Wukasch, knowingly attempted to use patently unlawful fraud, coercion and extortion to force Procon to rehire said party. Said Defendant's picket and message thereon was not for the purpose of lawful persuasion under the totality of the unequivocal circumstances, but was for the sole unlawful purpose of fraud, coercion and extortion for a valuable and selfish benefit (in property) to said party. The affiant herein says that Steven Ray Wukasch stated personally to said affiant that said party would picket the site and remain thereon (with the concomitant work stoppage), until the said Steven Ray Wukasch was rehired by Plaintiff Procon. The picket placard carried at said time and place by Defendant Wukasch stated thereon, `Procon Unfair To Me', notwithstanding the fact that said Defendant admitted in writing to a State Agency that he was terminated for, `playing checkers during work hours'.

The approximately 800 union members that refused to perform their contractural tasks in connection with the project on the jobsite on June 26, 1981, were under formal, written contract not to participate in any work stoppage.

Under the facts relating to this suit, greater injury will be inflicted upon complainant by a denial of the relief sought than will be inflicted upon Defendants by the granting of said relief.

There is no adequate remedy at law hereunder because Wukasch is without adequate funds to compensate Plaintiff for damages herein, and valuable, crucial time shall be irretrievably lost through unlawful work stoppage in connection herewith. Public officers, charged with the duty to protect Plaintiff's rights under local law are unable under all of the circumstances to furnish full and adequate relief herein, since the unlawful acts committed by Wukasch are somewhat subtle, and future prosecution would in no wise furnish the equitable relief required herein to protect the property and rights of Procon.

Based upon the facts, unless enjoined, the said Steven Ray Wukasch will return to the Procon jobsite each and every work day in the future, and, acting in unlawful concert with the other Defendants and the members of the unions involved, will continue to unlawfully halt work on said job. All of the actions of said Defendants are in derogation of outstanding and binding labor contracts, relevant to all labor to be performed in connection with the Procon job. The need for relief herein is immediate, and irreparable damages will continue without a preliminary and permanent injunctive Order.

Procon has lost thousands of dollars by way of the unlawful actions of

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