Friendly, Chief Judge, Oakes and Timbers, Circuit Judges.
This appeal is by a local union held liable for $60,000 compensatory damages under § 303 of the Labor Management Relations Act of 1947, 29 U.S.C. § 187, for unfair labor practices as defined in § 8(b) (4) (ii) (B) of the Act, 29 U.S.C. § 158(b) (4) (ii) (B).*fn1 The appellee, a non-union gravel and ready-mix concrete contractor in Ithaca, New York, alleged that he lost jobs as a result of appellant's threats to shut down major area contractors if they subcontracted gravel or concrete work to appellee. The questions raised by the appeal relate to (1) sufficiency of the evidence of a violation of § 8(b) (4) (ii) (B); (2) sufficiency of the evidence concerning the charge pertaining to, and excessiveness of, damages; and (3) the admission of evidence on matters not set forth in appellee's answers to interrogatories.
We resolve the questions of liability in appellee's favor but reverse and remand for a new trial on the issue of damages.
Appellee's business is a small one, on the outskirts of Ithaca, where he has a gravel pit, a transit mix concrete plant, three concrete mixers (one standby), about five dump trucks, and eight regular employees. After trying unsuccessfully in 1967 to organize the plant, the appellant union picketed it for two weeks in the spring of 1969. Apparently the picketing was stopped after both the union and appellee had filed charges with the NLRB. These charges were later dropped by mutual agreement before May 23, 1969. After that date, for the most part, the course of conduct on which this suit was brought ensued.
Taking the evidence in the light most favorable to the party prevailing before the jury, it appears that appellee had started to supply sand, gravel, or in one case ready-mix concrete to a number of contractors in the period 1969-1971 when he was told by the contractors or their representatives to stop making delivery. There was testimony from those coerced as follows:
(1) John Card, assistant superintendent for Dyer Fitts Construction Company in charge of the Cornell Student Housing Project, testified that he stopped appellee from making deliveries to his site because the appellant's business agent "told me I better not use Landstrom's trucks delivering on that job . . . that he might shut the job down, our part of the work down."
(2) James Cartwright, executive secretary of the Cortland-Ithaca Building Exchange, a contractors' group, testified that he had several meetings with Mr. Michaels,*fn2 the business agent of the appellant, who told him that the union "would quite possibly have to picket" the job sites of members of the Exchange who dealt with Landstrom. Acting on this information, Cartwright advised the Exchange's membership "they should anticipate some type of work stoppage" if they utilized Landstrom material or service. One of the contractors to whom Cartwright said he told this was Mr. McGuire of the firm of Stewart and Bennett.
(3) Mr. McGuire, whose employer was the prime contractor on the Spencer-Van Etten School project, corroborated Cartwright, saying that he recalled being informed by Cartwright that "there was a possibility that the job could have trouble, pickets and so forth," if Landstrom was used. As a result of Cartwright's statement, although Landstrom was low bidder, he did not get the 6-7,000 yard concrete contract for the school.
(4) Donald H. Brown, general superintendent of Streeter Associates, another contractor, testified that he had a conversation with Michaels before the Inlet Park job, in the course of which Michaels told him, "You must realize we don't have an agreement with Landstrom and if you use him you would be violating your contract with us." As a result of that conversation, according to Brown, Streeter did not order gravel from Landstrom that would have otherwise been ordered. Brown also implied that because of the "groundwork that had been laid" in discussion with Michaels about the Inlet Park job, Landstrom did not get the contract to supply gravel on the Unex Press job. Brown also testified, however, that another supplier -- Paully Mancini & Son -- did haul gravel to the Unex Press job that was bought at the Landstrom pit.
(5) Elwood Marshall, plant foreman of a Landstrom sand supplier, Rumsey-Ithaca Company, testified that Michaels "came to us and told us not to load any of the Landstrom trucks," and that "if we loaded trucks, he was going to shut the place down." As a result of Michaels' intervention with Rumsey-Ithaca, Landstrom had to find another, more expensive, supplier of sand.
(6) Rhaeto Pfister, president of Lynch Excavating Trucking Corporation, who had the excavating contract at the Ithaca College dormitories, testified that he stopped deliveries by Landstrom after "the Teamsters informed us that if Bill Landstrom continued to deliver gravel that . . . I am not sure if he said picketing, or he would pull his men off, there would be a strike. Something to the effect that we would have a shutdown." He also testified as to a similar threat by Michaels in connection with the excavating contract at Cornell Student Complex at Cornell University and as to his "other jobs," including jobs at Tompkins Hospital and BOCES School. Pfister's testimony was subsequently corroborated by the testimony of his then excavation superintendent, William J. Mobbs.
(7) John H. Boniface, Assistant Vice President of A. Frederick & Sons, contractors on the First National Bank job at Ithaca, testified that he had employed Landstrom on that job but then had a call from Michaels. The substance of Michaels' message was that "if [Boniface] continued, . . . using the non-union equipment, [Michaels] would put pickets on that job." Boniface, however, used Landstrom anyway, without further consequences.
(8) Peter Giacobbi of Giacobbi Excavating and Grading Contractors Incorporated said he conferred with Michaels who told him Landstrom was "not union at all" and that thus he could not use Landstrom on the Northeast ...