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Weir v. Chicago Plastering Institute

December 23, 1959

ARTHUR R. WEIR AND QUIKBRIK COMPANY OF CHICAGO, INC.
v.
CHICAGO PLASTERING INSTITUTE, ET AL.



Author: Castle

Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and PLATT, District Judge.

CASTLE, Circuit Judge: Plaintiffs-appellants, Arthur R. Weir and Quikbrik Company of Chicago, Inc., brought suit in the District Court to recover for damages alleged to have been suffered by plaintiffs to business and property by reason of a boycott. Defendants-appellees are Chicago Plastering Institute Inc.,*fn1 Journeymen Plasterers Protective and Benevolent Society, OP & CFIA, Local Union No. 5,*fn2 Employing Plasterers Contractors Association of Chicago,*fn3 Byron W. Dalton,*fn4 J.W. Farr & Co.*fn5 and J. Woodcock*fn5 ;

Plaintiffs predicate liability of defendants for treble damages under 15 U.S.C.A. § 15 on conduct alleged to constitute a violation of the antitrust provisions of 15 U.S.C.A. § 1. In addition Plaintiffs claim a "secondary boycott" by defendants Dalton and Local No. 5 in violation of, and entitling them to damages under, 29 U.S.C.A. § 187.

The district court at the conclusion of plaintiffs' evidence granted the motions of all defendants for a directed verdict and entered judgment for defendants. Plaintiffs appealed and contend that the court erred in not submitting the case to the jury. Subsidiary contentions made by plaintiffs include claims that the court erred (1) in rulings on the admission of evidence and on offers of proof, (2) in refusing to hear oral argument, (3) in failing to certify to the Attorney General that the constitutionality of an Act of Congress affecting the public interest had been put in issue by defendants' pleadings, (4) in failing to make findings of fact, and (5) that the District Court's executive committee erred in reassigning the case to the trial judge.

The main contested issue is whether there was evidence which when viewed in the light most favorable to plaintiffs, together with all reasonable inferences that might be drawn therefrom, would, as a matter of law, sustain a verdict for plaintiffs.

It would serve no purpose to attempt to summarize all of the evidence. In so far as it is pertinent to establishing the existence of a boycott in violation of either the Sherman Act (15 U.S.C.A. § 1) or the Labor-Management Relations Act (29 U.S.C.A. § 187), and viewed in the light most favorable to plaintiffs, accepting plaintiffs' version or that most favorable to plaintiffs where there is difference or conflict in the testimony, the record establishes the following facts.

The Institute is a not-for-profit membership corporation the officers and directors of which are representative officers of labor unions, plastering contractors and persons engaged in the plastering business. Its purpose, to promote the use of plaster products, is stated in its charter as follows:

"The advancement of plaster construction over inferior substitutes, by (1) education of the public, and (2) by sponsoring legislation calculated to preserve the health and safety of the public by the use of plaster construction, and (3) discourage attempts to pass legislation derogatory to plaster construction, and (4) to do those things which are necessary and proper to promote and enhance the plastering industry."

Institute provides retirement pensions, compensation for illness and injuries, and death benefits for those employed in the plastering industry.

The Association is an incorporated not-for-profit, trade association. Its members are approximately 36 Chicago plastering contractors. Local Union No. 5 is an unincorporated trade union composed of approximately 1200 journeymen and apprentice plasterers who engage in their trade as employees of plastering contractors. The Constitution and By-Laws of Local No. 5, provide:

"Sec. 96. Any person or firm desiring to become plastering contractors and employ members of Local No. 5 must qualify according to the following rules: They must be examined by our Examining Board and prove that they know the fundamentals of plastering. They must show sufficient bank account or credit to meet their material bills and pay-rolls, and they must also furnish a surety bond not less than Ten Thousand Dollars ($10,000) to insure the payments of our members at all times. Any member of Local No. 5 desiring to become a plastering contractor must make application in writing and appear before the Examining Board for a hearing. He must also be a member of Local No. 5 in good standing for a period of five years. This does not necessarily apply to honorably discharged men from the armed services. A thirty (30) days notice must be posted for all applicants who are to be examined as Contractors."

A collective bargaining agreement between Local No. 5 and the contractor members of the Association contains provisions under which each makes financial contributions to Institute for the following purposes:

"(a) Educating the public of the superiority of plaster construction over inferior substitutes.

"(b) Sponsoring legislation that is calculated to preserve the health and safety of the public by the ...


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