JOHN G. HEYBURN II, JUDGE.
The Court conducted a bench trial of this action from February 22 to February 23, 2000. Subsequently, both sides filed briefs in support of their position. The matter was submitted on May 10, 2000.
Plaintiff, F.A. Wilhelm Construction Company, Inc. ("Wilhelm") sues Defendant, Kentucky State District Council of Carpenters, AFL-CIO ("the Union"), for damages caused by Defendant's illegal secondary boycott and violation of the no strike clause in the parties' collective bargaining agreement. Defendant argues that the Union's actions were primary activity, protected by law, and that the no strike clause of the collective bargaining agreement does not extend to sympathy strikes. Because this Court concludes that the Union's activity was an illegal secondary boycott, it never reaches the question whether the Union also violated the parties' collective bargaining agreement.
I.
The Court finds the following background and relevant facts. Wilhelm was one of a number of contractors involved in the construction of the University of Louisville's Papa Johns Cardinal Stadium (the "Project"). In particular, Wilhelm was responsible for constructing a portion of the stadium's concrete superstructure. Wilhelm entered into a collective bargaining agreement with the Union for its portion of the Project work.
That agreement contained the following no strike-no lockout clause:
"Neither the employer, nor the Union shall engage in, permit, induce, or encourage any stoppage of work slowdown, strike, lockout, or concerted refusal to work by reason of any dispute or difference of opinion or policy between the parties hereto, save and except the failure of the other party to abide by a decision of the arbitrator, or a judgment of a court of law."
The Union hoped to have all work within its jurisdiction performed under a union contract. Like Wilhelm's concrete work, the installation of the stadium seating fell within the Union's jurisdiction. A portion of the seating contract was awarded to Dant Clayton ("Dant"), a local seating manufacturer. Michael Garrison, a Union representative, met with Dant in an attempt to secure a Union contract, but he was unsuccessful. Dant decided to subcontract the installation of the seats to Dailey Seating Company, Inc. ("Dailey). Thereafter, the Union tried to convince Dailey to enter into a collective bargaining agreement, but Dailey also refused to do so. From September through November, discussions between the Union, the manager of the whole Project (Kenneth Cecil), Dant and Dailey regarding the terms of a possible Union contract for seating installation resulted in little progress.
Realizing a strike may become necessary, in mid-November, Garrison distributed a "wallet card" to all members of the Union at the Project. One side of the cards read: "GOOD UNION BUILDING TRADESMEN do not work behind banners even with 4 gates." The other side stated: IF IN QUESTION ABOUT PICKETS, DON'T CALL YOUR BUSINESS AGENT — Read the following: 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?'"
On December 4, 1997, Garrison told Dailey that there would be a picket line established the following morning against Dailey. After the meeting, Garrison and another Union representative walked around the Project talking to Union members employed by various contractors, including Wilhelm. They advised the Union members that picketing would begin against Dailey the following morning and requested volunteers to staff the picket line. At 5:30 p.m. that same day, Cecil faxed the Union office a letter notifying them that a reserve gate system would be established at the Project. The letter stated that gate number one was reserved for "Dant Clayton Corporation employees, their subcontractors, suppliers, and visitors". The letter designated Gates 2 and 2a as neutral gates. Garrison did not receive the fax until the 5th because the Union office closes at 5:00 p.m.
On Friday, December 5, 1997, signs were erected at each entrance. 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." Notably, the gate signs did not mention Dailey nor did they specifically list Dant subcontractors.
The Union picketed all gates. The other unions at the Project refused to cross the Union's picket lines and all work was shut down. By the end of the day on the 5th, if not sooner, the Union was aware that the secondary employers had attempted to establish a valid reserve gate system. By that time the Union had received the faxed letter which, while not mentioning Dailey by name, did include Dant's subcontractors, and the Union knew that Dailey was one of Dant's subcontractors. Moreover, in spite of some unconfirmed rumors, the Court found no reliable evidence that the reserve gate system was ever breached. The evidence indicated that Dailey used only gate 1, and all other workers used only gates 2 and 2a.
On December 8, 1997, Wilhelm again advised the Union of the reserve gate system by letter. The Union was also informed that Dailey Seating's name would be added to the gate signs effective December 9th at 7am and that legal action would be taken if picketing continued at the neutral gates after this time. Once the gate signs were changed, the Union stopped ambulatory picketing at gates 2 and 2a. The Union did, however, post gate observers at these gates. No union workers returned to work on the 9th. On the 10th, workers from the other unions returned to work but Defendant's members did not. The Union ceased its picketing the following day. At no time during the strike did the Union encourage its members to return to work.
There was a factual dispute in this case as to some statements allegedly made by these gate observers. In particular, Plaintiff claims that one threatened the other unions when they returned to work. The Court omits these alleged statements because they are not relevant to the ultimate ruling.
There was also limited testimony that at least one individual Union member was told by the Union not to return to work. The Union denied giving any such orders or threats. The Court need not resolve this dispute since it decides the case on other grounds.
II.
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). Section 8(B)(4) prohibits conduct which has the objective of encouraging employees to engage in a concerted activity against their employer in order to have that employer or another refuse to deal with the primary employer. Section 8(B)(4) refers to the objective of the picketing not its effect, although the two may blur. See Electrical Radio and Machine Worker v. NLRB, 366 U.S. 667 (1961).
29 § 158(b)(4)(i)(B): "It shall be an unfair labor practice for a labor organization or its agents to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of the employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; where [the] object thereof is 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 . . . 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 Court concludes that Garrison and the other Union representative violated 8(B)(4) when they enlisted help from Wilhelm employees on December 4, 1997 to form a picket the following day against Dailey. By approaching Wilhelm's employees before any picket line had been formed, the Union must have intended to stop Wilhelm's Union employees from working. The Union argues that picketing which induces secondary employees to respect the picket line is not the equivalent of picketing which has the objective of inducing those employees to engage in concerted activities against their employer. The Court agrees that a union picketing the primary employer may inadvertently cause employees working for other employers to respect the picket line without committing an unfair labor practice. However, the Court concludes that the effect on Wilhelm was not inadvertent. The Union does not deny that it intentionally solicited the help of Wilhelm workers to form a picket, it merely denies that this action was intended to have an effect on Wilhelm. However, the Union cannot deny intending the obvious consequences of its acts.
Section 8(B)(4) was passed to prevent unions from embroiling neutral employers in disputes between the unions and primary employers, but it was not intended to limit the unions right to strike the primary employer. In determining whether a union has violated 8(B)(4), courts must decide if the union's actions were directed at the secondary employer or merely had ancillary consequences for that employer. Quite frankly, all the Union's activities could be construed as intending a secondary purpose. However, the direct solicitation of Wilhelm employees removes any doubt. The Court can think of no action that is aimed more directly at a secondary employer than the Union's actions in this case, enlisting that employer's workers to create a picket against the primary employer before a picket line even exists.
Perhaps, the result — no Union employees working for Wilhelm would have been the same even if Garrison had not sought Wilhelm's workers' assistance in establishing the picket. However, what might have occurred had the Union engaged in legal conduct is largely immaterial. The evidence demonstrates that the Union intended to embroil Wilhelm in its labor dispute against Dailey when it recruited Wilhelm's workers to staff the first picket lines. The Union's other actions support rather than cast doubt on this conclusion. It is quite clear that the Union's actions were intended to have a secondary effect since the Union stopped picketing altogether the day after the other unions returned to work for the secondary employers. The Union could not effectively exert pressure against Dailey unless the entire Project was shut down.
Wilhelm's Union employees may have each made the personal decision not to work on December 5, 1997 after seeing the picket against Dailey.
The Court need not decide today whether the result would be the same if the Union requested the employees of a secondary employer to walk the picket after the Union had begun picketing and the secondary employer's employees had made the personal decision not to report to work during picketing.
Because the Court finds that soliciting Wilhelm's Union employees to establish a picket constitutes an unfair trade practice, the Court need not consider whether the Union's activities breached the no strike clause of the collective bargaining agreement. Similarly, the Court need not decide the legality of the wallet cards or whether the defective gate signs were sufficient to establish a reserve gate system in light of the Union's knowledge and their actual use.
III.
Having found an unfair labor practice, the Court turns to damages. Plaintiff claims damages for delay during the six days of the strike, along with another half day because only half of the Union workers returned to work on December 12th. Plaintiff are entitled to all damages that they conclusively proved were caused by the delay. The additional one-half day appears to be a natural consequence of Defendant's original unlawful secondary boycott.
This includes: $977 for subcontractor expenses, $14, 709 in labor costs, $2351.38 in key employee expenses, $494 for office costs, and $26,016.38 for equipment rental costs. In total, Defendant owes Plaintiff $44,547.76. The key employee expenses were decreased from the Plaintiff's request because Plaintiff could only name five employees who had received per diem expenses. Defendant must compensate Plaintiff for those five employees but not for unnamed others. The office costs and equipment rental costs were both decreased by the amount of all equipment owned by Plaintiff. Plaintiff presented only daily rental figures on its equipment. These figures did not help the Court since Plaintiff is only entitled to the rental value if it can show that it could have rented the equipment to another company or had to rent equipment at a different site itself because of the strike. There was no such evidence in this case. Plaintiff did not keep any logs of which equipment would have been used on the days in question or even which equipment was used at another cite immediately after the Project ended. Vannice testified that most of the tools in subparagraph (3) were in great demand, but he could not identify which tools he took immediately to another site versus which tools were left. The Court does not doubt that Plaintiff suffered some loss with regard to its own equipment as a result of the delay, but without more direct evidence of what that loss was, the Court cannot award additional damages.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
The Court has listened to the testimony of both sides at trial, reviewed their memoranda and has filed a Memorandum Opinion setting forth its conclusions. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff is entitled to judgment against Defendant in the amount of $44,547.76.
This is a final and appealable order.
This ___ day of June, 2000.