Date: 06-12-2002

Case Style: F.A. Wilhelm Construction Co., Inc. v. Kentucky State District Council of Carpenters, AFL-CIO

Case Number: 00-6008/6069

Judge: Merritt

Court: United States Court of Appeals for the Sixth Circuit

Plaintiff's Attorney: James U. Smith of Smith & Smith, Louisville, Kentucky, for Appellee.

Defendant's Attorney: Alton D. Priddy of Priddy, Isenberg, Miller & Meade, Louisville, Kentucky, for Appellant.

Description: FACTS Plaintiff F.A. Wilhelm Construction Company, Inc. brought this action against Defendant Kentucky State District Council of Carpenters, AFL-CIO, a union representing carpenters in the Louisville area. Wilhelm contends that it was injured when the union encouraged an illegal secondary boycott and violated a no-strike clause in the collective bargaining agreement between the parties. In 1997, Wilhelm was a contractor for the construction of the University of Louisville's new stadium. Wilhelm was responsible for constructing a portion of the stadium's concrete superstructure and entered into a collective bargaining agreement with defendant union covering work in the Louisville area, including its portion of the stadium work. The installation of the stadium seating was awarded to Dant Clayton, a local seating manufacturer. Despite defendant union's efforts, Dant would not enter into a collective bargaining agreement with it. Dant subcontracted the installation of the seats to Dailey Seating Company, but defendant union was also unsuccessful in entering into a union contract with Dailey. On December 4, 1997, defendant told Dailey that there would be a picket line established against it the following morning. Union representatives walked around the project later that day advising all union members, including Wilhelm workers, that picketing would begin against Dailey the following day and requesting volunteers to staff the picket line. The union specifically requested Wilhelm workers to join the picket line. A union wallet card was distributed stating on one side: "GOOD UNION BUILDING TRADESMEN do not work behind banners even with 4 gates." The other side read:

Which side are you on? Picketing has been described by the Supreme Court as the "working man's means of communication." A picket is a message to you that some of your fellow workers are engaged in a labor dispute and need your help. It is your constitutional right as an American citizen to decide how you will respond to that picket. Under the law your union cannot help you make that decision. You can seek guidance only from your conscience then decide, "Which side am I on?"

In response to the union's activities, the project manager set up a "reserve gate system" and faxed a letter to the union office at 5:30 p.m. on Thursday, December 4, notifying it that of the three entrance gates to the project, gate number one would be reserved for Dant Clayton employees and their subcontractors, suppliers and visitors. Because the union offices closed at 5:00 p.m., the union did not receive the letter informing it of the reserve gate system until the morning of Friday, December 5, and employees did not know of the reserve gate system before coming to work that day.

. The establishment of a reserve gate system is common in the construction industry, particularly where numerous employers work at a site but only one is experiencing labor unrest. Under a reserve gate system, one gate, or entrance, called the "primary" gate, is reserved for the exclusive use of the "primary" contractor that is the target of the picket line, as well as its subcontractors, vendors and guests; other gates or entrances are reserved for use by contractors and others not involved in the dispute. Generally, once a reserve gate system is in place, the union must confine its picketing to the primary gate. The system is designed to keep neutral parties out of the dispute and avoid the need for them to cross picket lines. Reserve gate systems are usually effective because unions confine their picketing to the gate reserved for the targeted contractor and the project is not shut down.

On the morning of December 5, signs were in place at each entrance to the project. The signs at gates 2 and 2a read: "Stop-Read. Dant Clayton Company, Its employees, suppliers and visitors are prohibited from using this entrance to this construction project." The sign at gate 1 read: "Stop-Read. This entrance is reserved exclusively for Dant Clayton Company, Its employees, suppliers or visitors." The signs did not mention Dailey specifically nor did they mention Dant subcontractors.

Because the signs did not mention Dailey specifically by name, defendant picketed all gates, not just the gate reserved for Dant. Other union members refused to cross defendant's picket lines and all work on the project was shut down. Defendant was informed by letter that the reserve gate system would continue on Monday, December 8, and that Dailey's name would be added to the signs by the morning of December 9. Once the signs were changed, the union stopped picketing at gates 2 and 2a, but kept gate observers at the two neutral gates. None of defendant's members returned to work on December 9. On December 10, workers from all other unions except defendant's returned to work. Defendant's members ceased picketing on December 11 after the head of the national carpenters' union wrote a letter to the local union advising that the strike was improperly affecting plaintiff, a union contractor with a no-strike clause.(2) At no time during the strike did defendant encourage its members to return to work.

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Under the Act, when a union has a problem with the "primary" employer, it must focus its activities on that employer only. It may not exert pressure, whether direct or indirect, on other neutral or unrelated "secondary" employers. Encouraging employees to engage in a concerted activity against their employer in order to have that employer refuse to deal with the primary employer is illegal. The question is a factual one as to the union's intent. Accordingly, in determining whether a union has violated § 8(b)(4), the court must decide if the union's actions were directed at the secondary employer or merely had ancillary consequences for that employer. It is not necessary that the sole object of the strike be focused on the secondary employer if one of the union's objectives was to influence the secondary employer to bring pressure to bear on the primary employer. Whether the union was motivated by a secondary objective is a question of fact and is to be determined by the totality of the union's conduct under the circumstances.

. The question for the district court, therefore, was one of intent. The district court concluded, and we agree, that representatives of the union violated § 8(b)(4) when they explicitly enlisted advance help from Wilhelm employees to form a picket line against Dailey. The direct solicitation by defendant of Wilhelm's union employees before any picket line had been established demonstrates that defendant's likely objective was to keep Wilhelm employees off the job. A reasonable inference from the evidence demonstrates that defendant intended to embroil Wilhelm in its labor dispute against Daily by recruiting Wilhelm workers to staff the picket lines in advance of the creation of the picket. Because the district court found that the solicitation of Wilhelm employees to establish a picket line constituted an unfair labor practice, it declined to consider whether the no-strike clause of the collective bargaining agreement was breached. In affirming the district court's judgment concerning the secondary boycott, we find it unnecessary to reach the no-strike issue as well.

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Section 303 of the National Labor Relations Act, 29 U.S.C. § 187, provides a private cause of action for damages arising from a violation of § 8(b)(4). The district court awarded Wilhelm $44,547.76 in damages. Both parties appeal the award.

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Click the case caption above for the full text of the Court's opinion.

Outcome: We affirm the judgment of the district court as to its finding of an unfair labor practice but we reverse the damage award as to Wilhelm's own equipment and remand for recalculation in a manner consistent with this opinion.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None