Petition for Writ of Certiorari — Aircraft & Engine Maintenance & Overhaul, Building, Construction, Manufacturing, Processing & Distribution & Allied Industries Employees, Local 290 v. I. E. Schilling Co.

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a | Ottice-Supreme Court, U.S. |

LikikaARY m FILED

SUPRE" COUPT, U. ge,

; APR 12 1965 |

No. eee | sown F. —

In the

.Supreme Court of the United States

OCTOBER TERM. 19665

AIRCRAFT & ENGINE MAINTENANCE & OVERHAUL,

BUILDING, CONSTRUCTION, MANUFACTURING,

PROCESSING AND DISTRIBUTION AND ALLIED

INDUSTRIES EMPLOYEES, LOCAL 290, INTERNA-

TIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN & HELPERS OF AMERICA

Petitioners,

I. E. SCHILLING Co., INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPLaLS

FOR THE FIFTH CIRCUIT

DAVID PREVIANT

511 Warner Theatre Bailding

Milwaukee, Wisconsin

L. N. D. WELLS, JR.

CHARLES J. MORRIS, Py

1601 National Bankers Life Bidg.

Dallas, Texas 75201

Counsel for Petitioner

Of Counsd:

GOLDBERG, PREVIANT & UELMEN 7

511 Warner Theatre Building , /

Milwaukee 3, Wisconsin VU

MULLINAX, WELLS, MORRIS & MAUZY

1601 National Bankers Life Building _

Dallas, Texas 75201

mnetededinbiemamemeaell

REILLY PUBLISHING COMPANY — 1710 S. HARWOOD — DALLAS, TEXAS — HA 68-8385

ORE BEALE LANA DRE AMR Nie

INDEX

Page

RRS EIEN NTR es NRT 2

I ini 2

Guestions Preset... 2

ERIN a SR. TaN RENE AR NER ae 3

I rat Res Oe a ae 3

Reasons for Granting the Writ........................... 9

REESE SRE eae OP ie DO ISO eT 19

Appendices

PR ER canta une ROE ect RNIN: la

Statutory Provisions ..... la

Section 303, as amended... 3a

pO _RRIGIT CERIO Hire nso Atte a RTD 6a

Opinion of the Court of Appeals

for the Pitt Cireukt..................................... 6a

CITATIONS

Page

Aircraft Union v. Oolite, 341 F.2d 210

is Tk Te etic ae eens 10, 11

Brown Transport v. NLRB, 334 F.2d 30

COR, Hi Tink ee 8,10, 11, 12

Combustion Associates, 144 NLRB No. 111 11

ii Citations—(Continued)

Page

Houston Armored Car, 136 NLRB No. 110... 11

International L. & W. Union v. Juneau

Spruce, 342 U.S. 237 at 244 (1952)................ 13

Local 761 v. NLRB (General Electric),

366 U.S. at 672, 677................ 8, 9,10, 11, 12, 15, 17

NLRB v. Deena Artware, 198 F.2d 645

ae ha Seg ci ECR SO 13

New Power Wire, etc., 144 NLRB No. 109... 11

Plauche Electric, 135 NLRB 250... 11

Sailor’s Union of the Pacific (Moore

Dry Dock Company), 92

NLRB 547, 549.00. 8, 9, 10, 11, 12, 17

Superior Derrick Corp. v. NLRB, 273 F.2d

ek a a ane 8, 9,10, 11, 12

Textile Workers Union v. Lincoln Mills, 6

ee ee 18

United Brick & Clay Workers v. Deena

Artware 198 F.2d 637 (C.A. 6, 1952)........... 13

United Steelworkers v. NLRB (Carrier),

BITE U.S. 402 (UDCA) nas cccseccsssccssssesssesscsssensseesesee 11,17

TT Harv LR. LOST at LOG. icc ccccccessssscaseseeeee 13, 14

Labor Management Relations Act of 1947,

as amended

29 USC §158(b) (4) oeccccncvnonene 3, 5, 6, 13, 18

29 USC $100 2, 5, 12,18

29 USC 8187 on ceconne 1, 2, 3, 11, 12, 13, 19

28 USC 81254(1) oon ceeeonenen , 2

» In the

Supreme Court of the United States

OCTOBER TERM, 1964

No.

AIRCRAFT & ENGINE MAINTENANCE & OVERHAUL,

BUILDING, CONSTRUCTION, MANUFACTURING,

PROCESSING AND DISTRIBUTION AND ALLIED

INDUSTRIES EMPLOYEES, LOCAL 290, INTERNA-

TIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN & HELPERS OF AMERICA

Petitioner,

_—_ —_"

I. E. SCHILLING Co., INC.,

, Respondent.

PETITION FOR 5 te OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, a labor union,’ prays that a writ of

certiorari issue to. review the judgment of the

United States Court of Appeals for the Fifth Cir-

cuit, entered in the above cause J 12,

1965, which affirmed a damage judgment rendered

in a suit brought under §303 of the Labor Manage-

1 Aircraft & Engine Maintenance & Overhaul, Building, Construction, Man-

290, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &

Helpers of America.

Pe we er

ment Relations Act of 1947, as amended, 29 USC

ao.

Opinion Below

The opinion of the United States Court of Appeals

for the Fifth Circuit, rendered January 12, 1965,

is reported in 340 F. 2d 286, and is appended at

p. 6a, infra.

Jurisdiction

The judgment of the Circuit Court of Appeals

) was entered on January 12, 1965. The jurisdiction

of this Court is invoked under 28 USC §1254(1).

Questions Presented

Is the legality under Section 8(b)(4) of the

Labor-Mar ent Relations Act of union’s ambu-

latory picking f an employer to be determined

by the same objective standards in a damage

suit under Section 303 as are applied to NLRB

determinations with respect to the same conduct

under Section 10 of said Act?

2. 2 ~ 3

In the light of the Landrum-Griffin améndments

of §303 of said Act, may an employer, having failed

to establish through NLRB proceedings the exist-

ence of unfair labor practices, recover damages

under §303 for the same conduct?

Where a union engages in picketing at a common

situs in strict conformance with Moore Drydock

standards, may a court or jury infer from such

picketing “an object” proscribed by Section 8(b)

(4) of the Labor Management Relations Act?

May an employer in a §303 damage suit recover

attorney’s fees expended in unsuccessful efforts to

convince NLRB that union has engaged in unfair

labor practices?

Statute Involved

The statute involved and referred to herein is

the Labor Management Relations Act of 1947, as

amended, pertinent provisions of which are set out ~

verbatim in Appendix A hereto, pp. 1a-5a, infra.

Statement

Petiti®ner, a labor union which represents, among

others, employees of ready-mix concrete companies

in the vicinity of Miami, Florida, attempted to

organize the ready-mix truck drivers employed by

Respondent, I. E. Schilling Co., Inc.

In the course of its organizing campaign it pick-

eted Schilling’s Miami headquarters and engaged

in ambulatory picketirig of Schilling - ready-mix

trucks, following these trucks from Schilling head-

quarters to numerous construction sites in the

Miami area.”

One of the construction sites to which Schilling

2 Approximately fifteen different sites [R. 104-106, 113-114, 124-129, 171-172}.

trucks were dispatched was the Eastern Airlines

Jet overhaul facility, at which the J. A. Jones Con-

struction Company was the general contractor.

Large quantities of concrete were used on this proj-

ect—during the seven month period which preceded

the picketing, Schilling alone poured umtoeerpned

15,000 i pg of concrete.

The Schilling trucks operated as veritable fac-

tories on wheels. In the typical operation the Schil-

ling employee drove his mixer-truck on the prem-

ises, took it to where the pour was to be made,

attached the ‘scoop or scoop sections, turned the

pour on and off as necessary, controlled the slump

of the concrete as directed by the general contrac-

tor’s men or by the inspecting engineer, kept a close

bora on his water gauges, completed the. pour,

then’ drove to a designated area where he dis-

charged the concrete remaining in the drum,

washed down his truck, and then drove out of the

premises to obtain another load. The Schilling em-

ployee remained on the site from ten minutes to

more than an hour, depending on the size of the

pour: [R. 59-60]. :

On May 16 and May 22, 1962, petitioner picketed

the Schilling truck and driver at the Eastern Air-

line job: At the time of the picketing, Schilling was

performing its normal operations on the job site:

-. delivering and pouring concrete into the structure.

eraes te tepreral pert. of the construction opers-

_ tion and required the cooperation and coordination

<P uae ergata

common site, for example, comcast venbous, 1hod.cai-

riers, iron workers, carpenters, ete.

The picket was located at the single gate used by

construction employees, which was as close as pos-

sible to the place where the Schilling drivers were

pouring their concrete [R. 74, 175].* pert: An aes

the picket sign read

“TRUCK DRIVERS

While the picketing was in progress some 500 to

COE RRS ROLER NUS HENE, LON: eae See ott

the job site.

unfair labor practices (secondary boycott) pro-

scribed by §8(b) (4), and sought an injunction,

through’ NLRB, under Section 10(1) of the Act.

The charge against petitioner was duly investigated |

by the NLRB Regional Director, but was found to

NLRB who affirmed the dismissal, finding [R. 141-

142, Def. Ex. 3]:

“Your [Schilling’s] appeal from the Regional

Director’s refusal to issue complaint with re-

to certain portions of the charge in the

SS a ee

mary activity as part of an organiza cam-

paign directed at the charging party’s em-

was insufficient evidence to sup-

ST he oe ee

Having failed to establish through the N.L.R.B.

that the union had violated Section 8(b) (4) of the

Schilling turned to the District Court and filed

instant suit for damages based upon the same

allegation>-and the same evidence.

/ an euit alec named en defendants the iron Work-

ers, Hod Carriers, Bricklayers (cement masons)

and Steamfitters unions, alleging that they, along

with petitioners, “by the aforesaid picketing and by

requests and appeals, induced” Jones’ and specified

—

subcontractors’ employees to engage in strike. The -

jury found for the defendant unions, including peti-

tioner, on this latter allegation. But the jury found —

against defendant Teamsters Union, petitioner,

finding that the object of the picketing at the East-

ern Airlines base was Z

“to induce the employees working at the East-

ern Air base to engage in work 80

as to cause the contractor yers at the

Eastern Air Base to cease to con-

crete ‘mix from the plaintiff.”*

was en [R. 31].* |

tioner asserted that the undisputed evidence showed

that all of the picketing “(1) was limited to times

when the situs of the dispute (the Schilling truck

and driver) was located on the premises where

picketing occurred, (2) occurred when Schilling

was engaged in its normal business at the situs,

(3) took place reasonably close to the situs, and

(4) clearly disclosed that the dispute was only with

Schilling,” thus meeting the Moore Dry Dock stand-

ards by which the legality:of ambulatory picketing

is to be tested under the Act. The trial court over-

ruled the contention and entered judgment against

petitioner. :

The trial court also overruled petitioners’ ob-

jection to charging the jury in the literal language

of the statute (R. 209-210) as being foreclosed by

' the holding of this Court that “this provision [of

the Act] could not be literally construed; other-

wise it would ban most strikes hfStozvically con-

“ sidered to be™lawful, so-called primary activity.”

761 v. NLRB (General Electric), 366 U.S.

at 672 [R. 209, 217).

cad

Cas caiman the Wilt Cleeult: sated the ‘contention

Ra a ney Sana ware, os « tanker of

w, legal and not proscribed,” [R. 326] but held on

a eae ay tes whan dalihonts be eco Serene

port v. NLRB, 334 F. 2d 30 (C.A. 5, 1964) and Su-

perior Derrick Corp. v. NLRB, 273 F. 2d 891 (C.A.

that “the proof was suilicient to create

5, 1960),

” [R. 230], and affirmed.’

titioner is here held in damages for en-

issues for the jury.

Dry

Local 76

1, IUE v. NLRB, 366 US. 667.

Reasons for Granting the Writ

Both NLRB and this Court have expressed objec-

has resolved testimonial

Court of

Slip

because

the

paragraphs,

immaterial,

yary

7 This is not a case in which the

Seerneney

numbered

are either

undisputed

reference

Hi?

zuill}

é2is”

Hus

qé oo

eeeneL

aay

tive standards by which the validity of ambulatory

picketing is to be determined. Both have recog-

‘ nized the “protected” status of primary picketing.

The Board in evolving and applying the above speci-

fied Moore Drydock tests by which Tek fe

be differentiated from secondary picketing “.

out four standards for picketing in such Ceisiven

which this Court held would be presumptive of

‘valid primary activity.” Local 761 v. NLRB (Gen-

eral Electric), 366 U.S. at 677 (Emphasis added).

Yet the Courts below permit a jury to substitute

its view of the union’s subjective intent, even where

the established objective standards have been scru-

pulously followed. The result is to demolish the

, “protected” right of primary picketing by making

workers liable in damages for its exercise.

In a series of cases the Fifth Circuit has dem-

onstrated a reluctance to apply established pre-—

sumptions of validity to such activity, both by

overturning NLRB applications of the established

* presumptions ;* and by permitting district courts to

impose damage judgments against workers who do

no more than engage in primary picketing in strict

accordance with the established presumptions.”

Because of such decisions workers throughout

_ the Fifth find that their “protected” right

to engage i gE eB ta a ga meme tena

a SOR 60k GA. tote here Team

port 0 NLRB, 334 . 2d 30 (CA. 5, 1964).

9The inscant case and Aircraft Union v. Oolite, 341 F. 2d 210, (C.A. 5, 2/2/65)

consistently vindicated by NLRB in Section 10 pro-

ceedings, is non-existent in a §303 damage suit.

The Fifth Circuit denies workers the right to

follow. the primary employer with whom they are

in dispute and picket that employer at the locale

at which he conducts his business.in cooperation

with other employers. Superior Derrick Corp. v.

NLRB, 273 F. 2d 891 (C.A. 5 1960); Brown Trans- «

port Corp. v. NLRB, 334 F. 2d 30 (C.A. 5, 1964);

Aircraft etc. Union v. Oolite, 341 F. 2d 210, (C.A. 5,

February 2, 1965), and the opinion below all flatly

deny to workers the rights which NLRB has ‘held

protected in Moore Dry Dock, 92 NLRB 547, Haus-

ton Armored Car, 136 NLRB 110, Plauche Electric,

135 NLRB 250, New Power Wire, etc., 144 NLRB

No. 100, and Combustion Associates, NLRB No.

111. A union which scrupulously patterns its con-

duct of comfmon situs picketing after NLRB deter-

mination of legality, or in accordance with NLRB

precedent, nevertheless pickets at its peril if a jury .

may make subjective findings-of illegal intent and

accordingly award damages under §303.

This Court in Local 761 v. NLRB (General Elec-

tric), 366 U.S. 667 (1961), and United Steelwork-

ers v. NLRB (Carrier), 376 U.S. 492 (1964), was

explicit in its determination that “. . . Congress not

only preserved the right* to strike; it also saved.

primary picketing from the secondary ban... ,

Congres: intended to-Drovere: sk ieee 2 see:

. @ gate reserved for émployees of neutral deliv-

erymen furnishing day-to-day service essential to

the plant’s regular operations.” 396 U.S. at 409.

12 ;

The former case (General Electric) specifically

approved the so-called Moore Dry Dock. tests for-

mulated by NLRB to accomplish “the dual con-

gressional objectives of preserving the right of

labor organizations to bring pressure to begr on

offending employers in primary labor disputes and

of shielding unoffending employers and others from

pressures in controversies not their own,” 366 U.S.

at 679... At the same time this Court’s opinion in

General Electric singled out the Fifth Circuit’s Su-

perior Derrick opinion as an example of misappli-

cation of the statute, 366 U.S. at 678. Nevertheless,

the Fifth Circuit continues to follow, indeed specifi-

cally cites as authority for botif the instant opinion

and for Brown Transport, the discredited Superior

Derrick case.

'» This case thus presents the anomolous situa-

* tion where the very primary picketing activity

which NLRB and this Court hold protected by the

federal Act in §10 proceedings (29, USC $160) be-

comes unlawful and the basis for an award of dam-

ages in an action brought under §303 (29 USC

ssn of the same statute.

eo Landrum-Griffin Amend-

to determine the effect of those amendments

Se .

Pee

Prior to the 1959 amendments §§8(b) (4) and 303

defined in identical language the proscribed boycott

activities. Violation of the former led to administra-

tive order, enforceable in the Court of Appeals, Vio-

lation of the latter was the basis for district court

action and damage award.

Under the prior Act it was held that conflicting

findings in the two separate proceedings could

each stand; and that each fact finding agency was

entitled to make its own decision. Thus, an NLRB

finding that picketing was primary and lawful was

affirmed at the same time a damage award based .

on a district court jury’s finding that the very same

picketing was “secondary” and thus unlawful was

likewise affirmed. United Brick & Clay Workers v.

Deena Artware, 198 F. 2d 637 (C.A. 6, 1952) ; NLRB

v. Deena Artware, 198 F. 2d 645 (C.A. 6, 18952)..Cf.

International L. & W. Union v. pies Me 2 342

U.S, 237 at 244 (1952).

The result under the ee statute in Deena has

been severely criticized in the law journals. While

eschewing mechanical and absolute application of

the primary jurisdiction doctrine to the complete

~~ ouster of court action, Professor Louis Jaffee notes

-in “Primary Jurisdiction,” 77 Harv LR. 1037 at

1052, that: “presumptively a legal system should

insofar as possible avoid contradiction, and the

Compe WE WER See LEI rene eee

in Deena rationalizes its result does it little

Hat

ih if

21g

the

shall “en-

an Lt

if cae

‘had reason in its Lan-

“» a

, be | sJiili ii :

‘must ha’

on of the proscribed activity in §303(a)

(29 USC §187(a))" and substituting

: iv

i ie Pe

rr iil

45 fo)

gage in any activity ‘or conduct defined asian un-

fair labor’ ‘practice in‘ section “158(b) (4). The

Board’s exclusive competence to‘ ascertain’ the ex-

istence of unfair Wace Ae tects icity ~—

UC, $160(a), Congremlonal exclaon of detailed

specification of the basis, for. damage award, and

substitution of reference to. “‘“onfair end prac-

tices,” as to which the Boards’ competerice ‘is ex-

clusive, is strong indication of ‘Congressional in-

tent that prior resort to the Board is a:necessary

predicate for damage scrim. = de

mine pe existence of unfal air labor ‘practices, espe-

cially to §8(b) (4) (A),“was emphasized by Jus-

tise Hisiiiifrtel th’ the’ Génohdy: BOR aise, 208

US. at 674. ms 7 :

ation Corp. v. NLRB, 324 US 793, 800, 89 L ed

1372, 1378, 65 S Ct 982, 157 ALR 1081.” (Em-

phasis added)

Accordingly, it would appear that under ,the

amended statute resort to NLRB’s primary juris-

diction to establish that the “activity or conduct

[is] defined as an unfair labor practice” is prerequi-

site to the damage suit.

The difficult and oft recurring problem of making

-a balance between workers’ right to primary picket-

ing and the interest of a “secondary” employer to

be free from picketing, has plagued NLRB and the

Courts since the enactment of the Taft-Hartley

Amendments in 1947. As this Court has noted the

NLRB “modified and reformed its standards on the

basis of accumulating experience,” and concluded —

that when [as here] the situs of the primary em-

_ployer was “ambulatory” there were four objec-

tive standards to be applied in determining whether

the challenged picketing was primary and there-

for lawful, viz:

(1) that the picketing be limited to times

when the situs of dispute was located on the

secondary premises, (2) that the primary em-

ployer be engaged in his normal business at

the Situs, (3) that the picketing take place

reasonably close to the situs, and (4) that the

at clearly disclose that the dispute was

only the primary employer.

12 366 U.S. 66, 375,

This Court specifically approved these objective

standards in General Electric and Carrier, and since

those decisions a definitive line has been drawn by

which the “primary” or “secondary” nature of the

picketing may be ascertained. The Fifth Circuit -

refuses to observe this line. Instead, it continues

to hold that it is the function of the fact finder to

ascertain the picketers’ subjective intent; and that -

a proscribed “secondary” intent or objective may

be inferred from the mere fact of picketing.

This view in the Fifth Circuit reverts to a literal

reading. of the statute which this Court held “could

not be literally construed” (General Electric 366

U.S. at 672, emphasis added). Even worse, under

the guise of permitting a jury to determine the

“object” of the picketing, it permits a jury, in-

structed in the literal language of the statute, to

improvise its notion of the “object” of the picket-

ing, without regard to the guides by way of objec-

tive presumptions which this court has held must

be applied in the enforcement of the statute.

Through eighteen years of experience with the

statute, NLRB and this court have arrived at the

point where picketing in accordance with Moore

Drydock standards is primary, and thus lawful, as

a matter of law. And primary picketing remains

primary, and lawful, despite its secondary effects

and despite the “intention” or “hope” of the picket-

ers that all who observe the picket will cease aiding

the employer involved in the primary dispute. See

United Steelworkers v. NLRB, 376 US. at 498-499,

especially Text at footnote 6.

gvitosrdo 829r ; f Svoy id 4, 7, lip +3 +) yi> UCU?

decisions and..approved by this Court as to what

conduct constitutes an “unfair labor practice”

ought to be controlling in a district court inquiry

‘as to the”existence of the self same “unfair labor

practice.” _. |

This Court has reiterated in other contexts the

necessity for the establishment of a coherent fed-

‘eral common law of collective bargaining “which

‘the courts must fashion from the policy of our

national labor laws” Textile Workers Union v.

Lincoln Mills, 353 U.S. 448 (1957). If, as the Lincoln

Mills case states: “The Labor Management Rela-

tions Act expressly furnishes some substantive

law,” that substantive law cannot mean one thing

when applied by NLRB, and another when applied

._ -by a court. Yet the holding below inflicts a large

damage award against workers solely for conduct

which NLRB would not enjoin.

The damage award charges union for attorney

fees expended by Schilling in its unsuccessful effort

to obtain NLRB action and injunction under §10(1),

-29 USC $160(1). We thus find the anomaly of em-

ployer being held entitled to recover attorney's fees ~

-for its unsuccessful efforts to obtain an injunction

‘against the picketing, based on the 8(b) (4) charge

‘which the NLRB General Counsel found to be

worthless. Surely this*is not “the damages by him

= .

sustained” which’ the statute, §303(b), 29 USC

§187(b), awards.

: CONCLUSION |

For the foregoing reasons, writ of certiorari

should be granted herein.

Respectfully submitted,

DAVID PREVIANT \

L. N. D. WELLS, JR.

CHARLES J. MORRIS

April 11, 1965.

on ao

$ ‘ °

dee DIRE “hE one e ewes. Rh ea

APPENDICES

la <

APPENDIX A

Statutory Provisions

The relevant provisions of the Labor Manage-

ment Relations Act of 1947, as amended, are as

follows:

Section 8(b) [29 U.S.C. §158(b)]:

“It shall be an unfair labor practice for a labor

organization or its agents—

* * * * *

(4) (i) to engage in, or to induce or encourage

any individual employed by aiiy person engaged in

commerce or in an industry affecting commerce to

engage in, a strike or a refusal in the course of his

employment to use, manufacture, process, trans-

port, or otherwise handle or work on any goods,

articles, materials, or commodities or to perform

any services; or (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—

(A) forcing or requiring any employer or

self-employed person to join any labor or em-

ployer organization or to enter into any agree-

ment which is prohibited by subsection (e) of

this section;

(B) forcing or requiring any person to cease

using, selling, handling, transporting, or other-

wise dealing in the products of any other pro-

ducer, processor, or manufacturer, or to cease

he nn oh tal Lh ee =

Seas tate ee ea "

doing business with any other person, or forc-

ing or requiring any. other employer to recog-

see 2 Seseee Wee = eee: cxpsinntion as

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 pri-

mary preketing: .

recognize or bargain with a particular labor

organization as the representative of his em-

ployees if another labor organization has been

certified as the representative of such em-

ployees under the provisions of section 9;” [73

Stat. 542] |

Section 10 [29 U.S.C. §160]:

“(a) The Board is empowered, as hereinafter

provided, to prevent any person from engaging in

4 any unfair labor practiee (listed in Section 8) af-

| fecting commerce... .”

HT. Section 303 [29 U.S.C. §187]:

(a) It shall be unlawful, for the purpose of this

section only, in an industry or activity affecting

commerce, for any labor organization to engage

: in any activity or conduct defined as an unfair

| labor practice in section 158(b) (4) of this title.

[73 Stat. 545.]

3a.

“(b) Whoever shall be injured in his business

or property by reason of any violation of subsection

(a) of this section may sue therefor in any district

court of the United States subject to the limita-

tions and provisions of section 185 of this title

without respect to the amount in controversy, or in

any other court having jurisdiction of the parties,

and shall recover the damages by him sustained and

the cost of the suit.” [61 Stat. 158.]

THE STATUTE AS AMENDED

Section 303 as originally enacted in 1947 is set

out below, with the portions which were elimi-

nated by the Labor-Management Reporting and Dis-

closure Act of 1959, Public Law 86-257, being

enclosed by brackets; provisions added by the 1959

Act are in italics; and unchanged portions are

shown in roman type.

Boycotts and Other Unlawful Combinations

Sec. 303. (a) It shall be unlawful, for the pur-

pose sj of this section only, in an industry or activ-

ity affecting commerce, for any labor organization

to engage in[,-er-te-induee—or-enecuragethe—em-

Tovees Ht any-onmployerto engage th,

any activity or conduct defined as an unfair labor

practice in section 8(b) (4) of the National Labor

Relations Act, as amended.

¥ JZ

(b) Whoever shall be injured in his business or

property by reason of any violation of subsection

(a) may sue therefor in any district court of the

United States subject to the limitations and pro-

visions of section 301 hereof without respect to the

amount in controversy, or in any other court hav-

ing jurisdiction of the parties, and shall recover

the damages by him sustained and the cost of the

suit.

APPENDIX B

In the

United: States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 20920

AIRCRAFT & ENGINE MAINTENANCE & OVERHAUL,

BUILDING, CONSTRUCTION, MANUFACTURING,

PROCESSING AND DISTRIBUTION AND ALLIED

INDUSTRIES EMPLOYEES, LOCAL 290, INTER-

NATIONAL BROTHERHOOD OF TEAMSTERS,

. CHAUFFERS, \WWAREHOUSEMEN & HELPERS OF

AMERICA,

Appellant,

VETSUs

I. E. SCHILLING Co., INC.,

Appellee.

Appeal from the United States District Court for the

Southern District of Florida.

(January 12, 1965.)

Before JONES and BELL, Circuit Judges, and

HUNTER, JR., District Judge.

HUNTER, District Judge: Section 303 of the

Labor Management Relations Act, 29 U.S.C.A. $187,

gives the employer a cause of action for damages

against a union that engages in a secondary boycott

a 1

in violation of Section 8(b) (4) (B) of the National

Labor Relations Act.' Schilling, a ready mix cemént

company, brought this action in the district court

under that provision after the Teamsters Local had

picketed its trucks at a neutral construction site

where the cement was being poured. A jury verdict

was returned in favor of Schilling in the sum of

$10,411. Judgment was entered on the verdict. —

The question here, in simple terms, is: Was the

conduct of the union and the picketing which took

place at the gate to the job site done with the object

1 Section 8(b)(4) of the Labor Management Relations Act, as amended,

makes it an unfair labor practice for a union or its agents:

tae

‘li |

primary activity has been the subject of intense

litigation both before and after the 1959 amend-

ments to 8(b) (4), which broadened the coverage

but also added the express exception that “nothing

contained in this clause (B) shall be construed to

make unlawful, where not otherwise unlawful, any

primary strike or primary picketing.”” We need not

detail the course of this sometimes complex litiga-

tion. It suffices to say that the object of picketing

is not something which can always be evaluated

mechanically. The very nature of the problem as

illustrated by ‘he jurisprudence reveals that for the

facts of this case there is no definitive rigid formula

which can be accepted as conclusive. (Local 761,

1.U.E. v. N.L.R.B., 366 U.S. 667, 6 L. Ed. 2d 592, 81

S. Ct. 1285; Brown Transport Corp. v. NLRB, 5 Cir.,

1964, 334 F. 2d 30; Superior Derrick Corp. v. NLRB,

5 Cir., 1960, 273 F. 2d 891). ‘

Having in mind that on appeal the evidence and

all inferences therefrom must be viewed in the

light most favorable to the prevailing party and

in support of the jury verdict, the facts may be

1. On October 3, 1961, J. A. Jones Construc-

tion Company commenced work on a project in

Miami, Florida,“known as the Eastern Air Lines

major jet overhaul facility. Jones employed sub-

contractors to perform portions of the work. Total

employment on the job approximated 600 men. All

these personnel belonged to labor organizations and

the job was considered to be “100% union,” except

for appellee.

2. As-subcontractors for ready‘mixed concrete,

Jones chose two suppliers—Maule Industries, which

had a collective bargaining contract with the appel-

_ lant Teamsters Union; and Schilling, who had no

contraet with any union and was considered non-

union. Both of these companies commenced servic-

ing the job in the latter part of October, 1961. .

3. As the deliveries continued, J. A. Jones became

dissatisfied with the service of Maule Industries,

but was well pleased with the service furnished by

Schilling. Jones cancelled Maule Industries’ con-

tract. .

4. Schilling was advised that henceforth, it would

supply the entire job requirements of ready mixed

concrete. Thereafter, Schilling made only six deliv-

eries before trouble developed. |

5. On May 16, 1962, at about 7:55 A.M., two

pickets appeared at the job site. One was the presi-

dent of the Union. The other had been employed

for the sole purpose of picketing. The picketing

commenced ag Schilling’s truck entered the job site.

_ The sign carried stated: “Truck Drivers of I. E.

Schilling Company, come and join us. Teamsters’

Local 290.” —_,

6. While on the job site, Schilling’s truck drivers

and trucks were not visible to the pickets and the

effect of the picket sign on Schilling’s drivers was

limited to the time it took the driver to go through

the gate. A

10a

7. On this first morning of picketing, Appellee’s

president, Schilling, had driven from his plant,

less than a mile away directly to the J. A. Jones

job. The Schilling plant at that specific time was

not, being picketed. This plant was Schilling’s pri-

mary place of business and picketing could readily

be carried on there and was, periodically.

8. Schilling watched his first truck arrive and

saw the two pickets emerge from cars. As the

picketing continued, all “crafts” left the job, in

number between 500-600 men.

9. Jones delayed further pours until approxi-

mately one week later, May 22, 1962. On that date

Schilling arrived at the J. A. Jones job site 15-30

minutes before his truck was scheduled to arrive.

At the job site, he noted a picket already waiting;

the picket was sitting in an automobile. When the

truck entered the job site, the picket emerged and

commenced picketing. Again, there was a general

work stoppage, with 500-600 men leaving the job.

10. The next morning, a group of job stewards,

representing a number of building trades unions

whose members were employed on the job, met

with the J. A. Jones, project manager.” They stated

“the men would not work on the job while J. A.

Jones was puoring concrete with those trucks, and

they wanted assurance * * * (that J. A. Jones)

* * * would stop pouring with those trucks.’

ee we ee ee

other evidence, was the basis for inclusion of

lla /

The project manager, knowing that the only meth-

od of getting his job going again was to remove

appellee Schilling, sought another supplier, Acme

Concrete, after assuring himself that Acme used

Appellant Teamsters drivers.

11. During the period between the first picketing

at J. A. Jones—May 16—and the second picketing—

May 22—appellant picketed other jobs being serv-

iced by Schilling. However, this picketing was con-

ducted in quite a different manner. Thus, an appel-

lant picket'would appear on a job, picket for a time,

but when he found that no secondary employees

walked off, he would leave. Similarly, when a job

had once been picketed and no walkout by sec-

ondary employees occurred, that job would not be

revisited bp the picket.

12. The purpose of picketing at the plant and jobs

of Appellee (according to Appellant) was “* * *

in the hopes that it F SAgng embarrass the em-

ployer to the extent -he (would) file a charge

and a petition for an election * * *,”

A review of the record, and especially the facts

heretofore recited, discloses that the proof was

sufficient to create issues for the jury. These issues

were submitted on a clear and correct charge. This

Court’s function as to a resolution’ of those issues

was exhausted when, as here, an evidentiary, basis

was apparent.

. Appellant vigorously argues that “the N.L.R.B.

dismissal of the 8(b) (4) charges is res judicata

12a

and/or collateral estoppel to this action under Sec-

tion 303a.”

Here, there was no adjudication by the Board.

Schilling filed a charge. The general counsel de-

clined to issue a complaint. Surely, the mere

refusal by the general counsel to issue a complaint

is not res judicata and can not constitute a collat-

eral estoppel. The failure of the general counsel

to issue a complaint is not fiecessarily based on

the evidence or the merits of a case. (Dunn v. Re-

tail Clerks’ International Association, 307 F. 2d

285, 6 Cir. 1962). To dismiss a damage suit on the

proposition that the general counsel had refused

to proceed would be to deny to the employer his

day in court in clear eontradiction to the require-

ments of Section 303 of the Act.

The trial court submitted a special interroga-

tory and thus determined that the jury imcluded

$3,846.00 as attorney’s fees in its damage award.

We agree with appellant that there was no proof

to support this award. This is true because the

record clearly reveals that the sum total of attor-

ney’s fees was $1,684.27. This amount would have

been recoverable. (Local Union 984, International

Brotherhood of Teamsters, etc. v. Humco, 287 F.

2d 231, 6 Cir. 1961). Although the record reveals a

fair and impartial attitude by the presiding judge,

in denying the motion for a new trial there was a

failure on his part to recognize the disparity be-

tween the proof and the jury’s award on the ques-

tion of attorney’s fees, which technically consti-

13a

tuted an abuse of discretion amounting to an error

of law. However, we.are of the opinion that justice

will better be served if, instead of now remanding

the cause for a new trial, we give appellee, in lieu

of such remand, the opportunity of remitting the

amount of $2,161.73.¢

The judgment will stand remanded for a new

trial, unless appellee files a remittur within thirty

days in this court for $2,161.73, in which event the

judgment will stand affirmed (28 U.S.C.A. 2106;*

Texas Company v. Christian, 5 Cir., 1949, 177 F. 2d

759; U.S. v. Certain Parcels of Land, 5 Cir., 1945,

149 F. 2d 81; Boyle v. Bond, 187-¥. 2d 362, Circuit

Court of Appeals, District of Columbia; Boucher v.

Krause, 7 Cir., 1953, 200 F. 2d 576, cer. denied 345

U.S. 997.)

«This is the difference between the $3,846 awarded by the jury and the

$1,684.27 which is in conformity with the evidence. :

Title 28 U.S.CA. 2106 provides that an appellate court “may affirm,

ify, vacate, set aside or reverse” j before it for

per and “may remand the cas a6 dsr ete ak cee

ment * * * or require such further proceedings to had as may be”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.