Appeal from the United States District Court for the Western District of Wisconsin - No. 74-C-246 Robert D. Morgan, Judge.
Fairchild, Chief Judge, Moore, Senior Circuit Judge,*fn* and Wood, Circuit Judge.
In this case plaintiff-appellant T. W. Helgesen, Inc. (hereinafter referred to as plaintiff) is appealing a lower court decision which held that picketing conducted by defendant-appellee International Association of Bridge, Structural & Ornamental Ironworkers, Local Union 498 (hereinafter referred to as defendant) was primary activity rather than an actionable secondary boycott.
For the following reasons we affirm the lower court decision.
A summary of the relevant facts based upon the lower court's findings of fact follows.
Rath Manufacturing Co., Inc., a Wisconsin corporation with its principal offices and facilities in Janesville, Wisconsin, is engaged in stainless steel fabrication for the food and dairy industry.
In 1974, Rath Manufacturing acted as its own general contractor for the construction in Janesville of a 60,000 square foot manufacturing facility. The job site was located on Foster Road,*fn1 approximately 600 to 700 feet from Kennedy Highway. Virgil Rath, an employee of Rath Manufacturing, acted as the company's principal representative on the job site.
Rath Manufacturing contracted with Bob Kimball, Inc. to put in a concrete foundation. Karl Gould, an employee of Bob Kimball, Inc., was the foreman of the Kimball employees on the Rath Manufacturing job. Lycon, Inc., supplied concrete to Kimball for this job.
Rath Manufacturing also contracted with plaintiff to erect a steel frame, steel roof and steel siding on the concrete work put in by Bob Kimball, Inc.
Defendant union represents members who do the same type of craft work as the employees of plaintiff. Plaintiff's employees, however, did not belong to a union. Prior to June, 1974, defendant had been engaged in a labor dispute with plaintiff and had conducted primary picketing of plaintiff at various job sites where plaintiff was then engaged. Defendant at no time material to this case was engaged in a labor dispute with Rath Manufacturing, Inc., Bob Kimball, Inc., or Lycon, Inc.
Prior to June 17, 1974, plaintiff's employees unloaded metal building materials on the Rath job site. On June 17, 1974, plaintiff's employees commenced the steel erection work.
The defendant on June 19, 1974, began picketing the Rath Manufacturing job site. The picket line was positioned at the juncture of Kennedy Highway and Foster Road. Foster Road was an unmarked gravel road which had been dedicated as a public road one and one-half years prior to the initiation of the Rath Manufacturing project.
The picketing was authorized by George Chabucos, business agent, financial secretary, and treasurer of defendant union. Chabucos placed John Koebler, Sr., in charge of the picketing. As chief picket, John Koebler, Sr., enlisted as pickets his sons Brian and John, Jr.
Chabucos gave John Koebler, Sr., a primary worded area standard picket sign*fn2 and express picketing instructions.*fn3
The picketing was timed to reflect the presence of Helgesen employees on the job.
Although the picket sign asserted that plaintiff was paying substandard wages, defendant conducted no actual investigation into plaintiff's wages, fringe benefits, or other conditions of employment.
Separate entrances were established on June 20, 1974, from Foster Road onto the job site. Entrance No. 1 was designated for exclusive use by employees and suppliers of plaintiff. Entrance No. 2 was designated for use by employees and suppliers of other employers.*fn4
Plaintiff formally notified defendant about the separate entrances by sending a certified letter dated June 20, 1974, to defendant. Defendant received the letter on June 24, 1974. John Koebler, Sr., however, was aware of the separate entrances well before the defendant received the letter from plaintiff.
Pursuant to directions from John Koebler, Sr., the defendant picketed in the area of the interesection of Kennedy Highway and Foster Road. The defendant did not confine its picketing to the gates designated for employees and suppliers of plaintiff.
On the morning of June 25, 1974, John Campbell, an unemployed member of defendant union, was standing with the authorized pickets. When Karl Gould, foreman of Bob Kimball, Inc., arrived at the job site, John Campbell made a short statement to Gould about how union men should honor picket lines. Campbell's statement was "spiced up with plenty of curse words."
Later in the day on June 25, 1974, a group of ironworkers followed Campbell onto the job site. Two of plaintiff's employees were injured in a fight with Campbell and the ironworkers.
Brian Koebler followed Campbell and the ironworkers onto the job site. As Brian Koebler passed Virgil Rath, Koebler had a short conversation with Rath. According to Rath, Koebler:
In order to get the attention of the men and break up the fight, Koebler broke a window on one of plaintiff's trucks.
Shortly after this incident, the police, city attorney, city engineer, Chabucos, Koebler, Sr., and T. W. Helgesen met to determine whether Foster Road was a designated public road which could be used by the picketers. Upon ascertaining that Foster Road was a designated public road, the ...