The opinion of the court was delivered by: DUFFY
This action is brought pursuant to Section 303 of the Labor Management Relations Act, 29 U.S.C. § 187, to recover damages purportedly resulting from an unlawful secondary boycott allegedly engaged in by defendant. This opinion constitutes my findings of fact and conclusions of law after trial. Rule 52(a), F.R. Civ. P.
Plaintiff, a New York corporation located in Poughkeepsie, is a general contractor in the construction industry. On February 9, 1970, plaintiff contracted with Poughkeepsie's Union Free School District #2 for the construction of a high school on Spackenkill Road in Poughkeepsie. In connection with the job, which was to commence immediately and be completed by July 15, 1971, plaintiff engaged Woodcliff Construction Corporation as a subcontractor to grade, clear and excavate the site for $141,000. Woodcliff began this work at the Spackenkill job site on March 9, 1970.
Defendant is a labor organization within the meaning of 29 U.S.C. § 152(5). By letter dated March 9, 1970, defendant informed plaintiff that it expected a "pre-job conference" in connection with the Spackenkill job award. No reply to this letter was made by plaintiff upon its receipt on March 12, 1970; however, on that same day, defendant began to picket the Spackenkill job site with signs reading "Vassar Unfair to Members of Local 445, IBTCWHA." The following day, March 13, 1970, Andrew Velletri, plaintiff's president, accompanied by counsel, met with Chet Davis and Tony Alecci, representatives of defendant. Velletri was informed that defendant desired plaintiff to execute its collective bargaining agreement which would contain, inter alia, a shop steward clause. He was given a copy of the agreement to consider, but informed the representatives by telephone the following day, if not at the time of the meeting, that plaintiff would not individually sign the agreement since it belonged to an association of general contractors and material suppliers with whom contracts were collectively made.
The picketing at the Spackenkill site continued during this time; on March 13, 1970, plaintiff advised Woodcliff by letter that it had created an additional entrance gate for Woodcliff's use in entering and exiting the job site. Plaintiff had posted a sign at this entrance (the Woodcliff gate) which read "This Gate for Employees & Deliverymen Woodcliff Const. Only;" the original entrance (the Vassar gate) bore a sign which read "This Gate for Employees & Deliverymen Vassar Const. Only." Beginning on March 23, the Woodcliff gate was picketed with signs reading "Woodcliff Constr'n Unfair to Members of Local 445, IBTCWHA." The pickets previously directed at Vassar were confined to the Vassar gate. Picketing at both gates continued until approximately May 12, 1970, at which time it was halted by the issuance of a temporary injunction successfully sought in this Court by the National Labor Relations Board pursuant to Section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(l).
During the period of the picketing, all work on the Spackenkill job site ceased. Several pieces of equipment, including compressors and a bulldozer, had been left at the site by Woodcliff but no work by either plaintiff or Woodcliff continued. On May 13, 1970, the excavation work recommenced. Plaintiff's contract with the school district contemplated a completion date of July 15, 1971 so that the school could be occupied for classes in September 1971. The September 1971 occupancy date was apparently met; however, the school was not completed apparently until the winter months which followed.
Plaintiff contends that the delay in the commencement of the work caused by the picketing by defendant resulted in the inability to enclose the building prior to December 1971, the onset of winter. Thus, plaintiff maintains that additional and substantial expenditures in terms of temporary heating, increased labor and the like, were incurred, for which it seeks reimbursement in damages. Defendant disputes both liability and damages.
Section 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(B), provides in part that it shall be an unfair labor practice for a union or its agent:
(i) . . . to induce or encourage any individual employed by any person . . . to engage in, a strike . . . or (ii) to threaten, coerce or restrain any person . . . where in either case an object thereof is --
(B) forcing or requiring any person . . . to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees . . .:
Provided, That nothing contained in this clause (B) shall be construed to make lawful, where not otherwise unlawful, any primary strike or primary picketing;
This section, incorporated by reference into the jurisdictional predicate for this action,
is aimed at protecting neutral employers with whom a union has no dispute from secondary involvement in controversies between a union and an offending employer, while preserving the union's right to engage in primary activity directed against the latter. NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 302-3, 27 L. Ed. 2d 398, 91 S. Ct. 402 (1971); Helgesen v. Int'l Assoc. of Bridge, Structural & Ornamental Ironworkers, Local Union 498, 548 F.2d 175, 180 (7th Cir. 1977). It is plaintiff's contention that defendant violated this section, thereby triggering this civil action for damages sustained as a result, by picketing the Woodcliff gate, when no dispute existed with Woodcliff, for the sole purpose of inducing plaintiff to ...