Reference no: EM131281112

[The Carpenters Union, representing union carpenters in the Louisville, Kentucky, area, unsuccessfully sought to have Dant Clayton Co. and Dailey Seating Co. enter into collective bargaining contracts with the carpenters union. Dailey had a subcontract to install the seating for the construction of the University of Louisville's new stadium. F. A. Wilhelm Construction Co., Inc., had the contract for the construction of a portion of the stadium's concrete superstructure and employed union carpenters on this project and was subject to a collective bargaining contract with the union that contained a no-strike clause.

Dailey Seating Co. employed a nonunion workforce. On December 4, 1997, the union told Dailey that a picket line would be established against it the following morning. Union representatives walked around the project that day advising all union members, including Wilhelm workers, that picketing would begin against Dailey the following day, and they requested volunteers to staff 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." When Dailey Seating Company's name appeared on the reserved gate, other jobsite workers from the construction trades went to work for their respective contractors or subcontractors utilizing the other entrances to the project while the carpenters union picketed Gate 1, the reserved gate for Dailey's workers.

When the leader of the National Carpenters Union wrote a letter to the local union advising that the strike was improperly affecting Wilhelm Construction Co., a union contractor with a no-strike clause, the union ceased picketing at the job-site and the carpenters went back to work for Wilhelm. Wilhelm Construction Co. sued the carpenters union under Section 303 of the NLRA for damages resulting from an illegal secondary boycott arising from a violation of Section 8(b)(4) of the NLRA. From a judgment for Wilhelm the parties cross-appealed.] MERRITT, C. J....

The establishment of a reserved gate system is common in the construction industry, particularly where numerous employers work at a site but only one employer 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 reserved 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....

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 Section 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 Section 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 Dailey by recruiting Wilhelm workers to staff the picket lines in advance of the creation of the picket.... Section 303 of the National Labor Relations Act provides a private cause of action for damages arising from a violation of Section 8(b)(4). The district court awarded Wilhelm $44,547.76 in damages.... Once liability is established, Wilhelm is entitled to recover all damages, "directly and proximately" caused from the violations from the Act by the union ... [The matter was remanded to the district court for calculation of damages according to the direction of the Court of Appeals.]

Case Questions

1. Did the reserve gate system work as intended in this case?

2. Does the plaintiff in a Section 303 lawsuit for damages arising from a violation of Section 8(b)(4) of the NLRA have to prove that the union's actions were directed at the secondary employer?

3. What evidence exists that the carpenters union intended to exert pressure on the neutral or secondary employer in this case, Wilhelm Construction Co.?