Smith v. American Guild of Variety Artists

• Decision Date: 09 September 1965
• Docket Number: No. 17856,17857.,17856
• Citation: 349 F.2d 975
• Parties: William SMITH, doing business as Smith Entertainment Agency and as Smith & Dale Circus, Appellant, v. AMERICAN GUILD OF VARIETY ARTISTS, Appellee. AMERICAN GUILD OF VARIETY ARTISTS, Appellant, v. William SMITH, doing business as Smith Entertainment Agency and as Smith & Dale Circus, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

349 F.2d 975 (1965)

William SMITH, doing business as Smith Entertainment Agency and as Smith & Dale Circus, Appellant, v. AMERICAN GUILD OF VARIETY ARTISTS, Appellee.

AMERICAN GUILD OF VARIETY ARTISTS, Appellant, v. William SMITH, doing business as Smith Entertainment Agency and as Smith & Dale Circus, Appellee.

Nos. 17856, 17857.

United States Court of Appeals Eighth Circuit.

August 9, 1965.

Rehearing Denied September 9, 1965.

COPYRIGHT MATERIAL OMITTED

Conrad J. Carr, Minneapolis, Minn., Jerome G. Raidt, Minneapolis, Minn., for William Smith, doing business as Smith Entertainment Agency and as Smith & Dale Circus.

Leo Dorfman, of Dorfman, Rudquist, Jones & Ramstead, Minneapolis, Minn., for American Guild of Variety Artists.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by plaintiff William Smith from an order of Judge Larson sustaining the motion of defendant American Guild of Variety Artists (AGVA) for judgment n. o. v. setting aside a jury verdict for the plaintiff and from final judgment dismissing plaintiff's complaint. Plaintiff is also appealing from the trial court's refusal to submit to the jury for consideration an action based upon secondary boycott and from the refusal of the trial court to submit to the jury his claim for punitive damages.

AGVA by cross-appeal raises the issue that the trial court erred in conditionally denying defendant's alternate motion for a new trial based upon the ground that there is no substantial evidence to support the fact of damage or the amount thereof and upon the additional ground that the court's interrogation of certain witnesses was improper and prejudicial.

This case had been previously tried to a jury with Judge Devitt presiding. The jury returned a verdict for the plaintiff for $15,000. Judge Devitt granted defendant's motion for a new trial upon the ground the verdict was excessive, stating that in his view the evidence would not support a verdict for more than $3,000. This case was again tried to a jury before Judge Larson. The jury returned a verdict of $21,500.

Plaintiff's complaint sets out two causes of action. The first cause of action is based upon failure to arbitrate. Both Judge Devitt and Judge Larson dismissed this cause of action. No appeal is taken on the failure to arbitrate issue and hence no consideration thereof is required.

In the second cause, plaintiff seeks damages based upon (1) violations of 29 U.S.C.A. § 158(b) (4) (ii) by secondary boycott; (2) wrongful interference with contractual relations.

A summary of some of the background facts appears desirable. William Smith had produced grandstand shows and circuses for fairs and celebrations since 1956. He had contracts with numerous union performers and had executed contracts with seventeen fairs for the presentation of a grandstand show or circus during the 1962 season.

Smith had obtained contracts for a number of performances in Canada and Alaska for the spring of 1962. Under his contract with AGVA he agreed to hire only union acts and to cover wages and transportation with security posted with the defendant and to make certain welfare contributions to defendant for the performers. He failed to comply with the security and welfare provisions with respect to the Canadian trip and he also failed to fulfill his obligation to pay the performers the full salaries due them. There is much controversy in the record as to what occurred in Canada. Smith contends that some of the performers attempted to take the show away from him. Plaintiff did leave the performers in Canada in the middle of the tour. The show continued its tour under the management of some of the employees.

Plaintiff had contracts to produce a show advertised as a twenty-act circus at seventeen fairs in the midwest during the summer of 1962. Many of the performers on the Canadian tour were under contract to plaintiff to play at such fairs. The fair run was to commence at the fair at Faribault, Minnesota, on July 28, 1962, with an afternoon and evening show on that date and an evening show the following day. On July 17, prior to the first performance at Faribault, a meeting of the defendant organization was held at Minneapolis to consider complaints made by plaintiff's performers arising out of the Canadian tour. As a result thereof, plaintiff was put on the unfair list for nonpayment of salaries due and was notified of such action by telegram, and notice thereof was also given to the seventeen fairs with whom plaintiff held contracts.

Herbert Meyers, AGVA manager of defendant's Minneapolis branch, contacted the Faribault Fair Board by telephone and later had a personal meeting with the Board. Board members testified that Meyers told them that even if plaintiff wanted to produce a non-union show, he could not do so because the defendant would not permit it and they also said that the AGVA was going to take over the contract. The Fair Board was advised that plaintiff would not be permitted to put on the show and that the fair would be picketed. The Board was also urged to cancel plaintiff's contract and to enter into a contract for the shows with the defendant. The Board refused to cancel the contract.

AGVA put up a picket line at the grandstand on the afternoon of July 26. The pickets were placed so that customers wishing to purchase grandstand tickets had to cross the picket line. Plaintiff's circus was not scheduled to, and in fact did not, perform until Saturday afternoon, July 28. The picketing continued on Thursday and on all day Friday and Saturday, and on part of Sunday. An automobile thrill show on Thursday night and a wrestling show on Friday night, with which plaintiff had no connection, were picketed.

Plaintiff assembled non-union acts for the Faribault engagement. After the Saturday afternoon performance, the Fair Board canceled plaintiff's contract for the remaining shows on the stated ground that the number and quality of the acts did not conform to the contract. Within a short time thereafter, plaintiff's sixteen other fair contracts were canceled. Additional facts will be set out in the course of the opinion.

"THE SECONDARY BOYCOTT ISSUE"

Judge Larson, upon defendant's motion made at the close of all of the evidence, dismissed plaintiff's cause of action based on secondary boycott. In explanation of such action, the court states:

"To summarize the basis for this decision: The dispute between plaintiff and defendant was a labor dispute within the meaning of 29 U.S. C.A. § 152(9); the strike had the objective of placing direct economic pressure on the primary employer, Smith, in order to resolve the dispute arising from his breach of the collective bargaining agreement. Such a strike in support of lawful demands is permissible.

"The common situs situations present the most difficult problems of distinguishing between primary and secondary activity. The instant activity was not directed at the Fair Board but at the primary employer. The manner of picketing met the standards for lawful primary activity set out in Matter of Sailors\' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547, given the rather unusual business involved in the instant case.

"Plaintiff argued that defendant `threatened, coerced or restrained\' certain persons. The picketing was primary and did not become illegal secondary activity even if threats were involved. United Steelworkers of America AFL-CIO v. N.L.R.B., 376 U.S. 492 84 S.Ct. 899, 11 L.Ed. 2d 863 (1964)."

We agree with Judge Larson's view that Smith's failure to comply with his contract with AGVA with respect to paying wages due employees, welfare payments and the posting of security, afforded AGVA a right to place Smith on the unfair list and to strike in support of its lawful demands. However, we do not consider the evidence here to be so great as to warrant a determination by the court as a matter of law that the strike conducted was a primary strike directed only at the employer Smith. 29 U.S.C.A. § 158(b) (4) (ii) makes it an unfair labor practice for a labor organization or its agents:

"(4) (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."

The statutory proviso clearly protects primary picketing. The problem presented is whether the court was justified in determining as a matter of law that the strike was a primary strike.

The picketing took place on the Fair's premises. We believe this to be a common situs situation where a neutral employer is engaged along with a struck employer in different activities on the same premises. In NLRB v. International Hod Carriers, 8 Cir., 285 F.2d 397, 400-401, after quoting from NLRB v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284, we stated:

"To resolve the numerous problems which stem from common situs activities, and in order to protect the Union\'s right to carry on its lawful activities against the primary employer, as well as to adequately protect the neutral employers and employees, strangers to the dispute, certain evidentiary standards were evolved for distinguishing between primary and secondary picketing at a common situs. These may be stated as the `Moore Dry

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