Unpublished Disposition, 937 F.2d 612 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1989)


No. 89-15062.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 1991.Decided July 22, 1991.

Before FLETCHER, WILLIAM A. NORRIS and TROTT, Circuit Judges.


Bay Area Building Material and Construction Teamsters, Local 216 (the "Union"), seeks review of the district court's award of damages to appellee Granite Rock Company ("Granite Rock") pursuant to section 303 of the Labor Management Relations Act of 1947 ("the Act"), 29 U.S.C. § 187. We affirm.


Granite Rock is a California corporation that manufactures and sells ready-mix concrete, rock, and asphalt products. In December, 1986, CAP Concrete, Inc. ("CAP"), which owned and operated a ready-mix plant in Redwood City, California on land leased from Granite Rock, ceased operations at the Redwood City plant. The ready-mix drivers who had worked for CAP were represented by the Union. Granite Rock subsequently terminated CAP's lease and began operations at the plant. Rather than stationing or "barning" any trucks at the Redwood City plant, Granite Rock initially operated the plant exclusively as a "batch-out" facility. Trucks barned at Granite Rock's San Jose plant, which, according to a collective bargaining agreement covering the San Jose plant, were driven by Teamsters Local 287 made all pickups and deliveries to and from the Redwood City plant.

In March 1987, Granite Rock informed the Union and Local 287 that it was considering transferring several of the ready-mix trucks barned in San Jose to Redwood City. It stated that it intended to offer Local 287 drivers the opportunity to transfer to Redwood City in accordance with the collective bargaining agreement covering the San Jose plant. Local 287 concurred in Granite Rock's position that the agreement required Granite Rock to offer San Jose drivers the opportunity to transfer to Redwood City with their trucks. The Union, however, maintained that Granite Rock was required to reinstate the CAP concrete drivers should it barn trucks at the Redwood City plant. In support of its position, the Union picketed the Redwood City plant from August 3, 1987 through August 28, 1987.


Granite Rock filed this action seeking damages under section 303(b) of the Act for injury to its business and property resulting from the Union's picketing in violation of section 8(b) (4) (D) of the Act, 29 U.S.C. § 158(b) (4) (D). Section 303(b) allows those injured by activities defined as unfair labor practices to sue for damages in federal court. The district court granted Granite Rock's motion for partial summary judgment on the issue of liability. Subsequently, a magistrate presided over trial and awarded Granite Rock damages in the amount of $198,974.


This court reviews a district court's grant of partial summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983). We also review the district court's award of damages de novo insofar as it regards application of the correct rule of damages. Insofar as it regards factual conclusions, we review the award of damages pursuant to the clearly erroneous standard. Fed. R. Civ. P. 52(a); United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984); Maxey v. Butchers' Union Local No. 126, 627 F.2d 912, 915 (9th Cir. 1980).

The Union argues that, even accepting all facts found below as true, the district court erred as a matter of law in finding liability because no jurisdictional dispute existed between the different locals. Subsection D of section 8(b) (4) of the Act "makes it an unfair labor practice for a labor organization to strike or threaten or coerce an employer ... in order to force or require an employer to assign particular work to one group of employees rather than to another." NLRB v. Plasterers' Union Local No. 79, 404 U.S. 116, 123 (1971).1  There can be no violation of section 8(b) (4) (D) unless there exists a jurisdictional dispute, that is, unless two groups of employees present competing claims to the same work. Foley-Wismer & Becker v. National Labor Relations Bd., 695 F.2d 424, 427 (9th Cir. 1982). The Union presents a number of different rationales to support its contention that no jurisdictional dispute existed. We find none of these rationales persuasive.

First, the Union argues that only a potential, rather than an actual, dispute existed at the time of picketing because even if Local 287 demanded the jobs be offered to its San Jose drivers, there was no showing that any Local 287 drivers would have accepted them. The Union's claim that the dispute was merely potential is undercut by its own actions: the Union insisted that the first offers should be made to its members rather than Local 287's members--this was its entire purpose in picketing. The dispute concerned Local 287's right of first refusal to the Redwood City jobs, not whether Local 287 drivers would actually accept the jobs. As both locals claimed the right to the offers of jobs, an actual rather than potential jurisdictional dispute existed.

The Union next argues that, because both locals conceded that any drivers transferred to the Redwood City plant from Local 287 would thereafter be represented by the Union, no jurisdictional dispute existed. However, section 8(b) (4) (D) demands only that two groups of competing employee groups dispute the entitlement to perform particular work. See NLRB v. Radio Engineers Local 1212, 364 U.S. 573, 584 (1961) (section 8(b) (4) (D) "extends to jurisdictional disputes between unions and unorganized groups as well as to disputes between two or more unions"); Highway Truckdrivers & Helpers Local 107 (Safeway Stores), 134 NLRB 1320, 1323 (1961). The fact that these employees will later be represented by the same local does not remove the dispute from section 8(b) (4) (D)'s ambit.

The Union also argues that the district court erred in finding that it violated Section 8(b) (4) (D) because Granite Rock created the jurisdictional dispute by its decisions concerning the manner in which deliveries would be made out of the Redwood City plant. The two cases cited by the union in support of this proposition, however, ILWU Local 62-B v. NLRB, 781 F.2d 919, 924-25 (D.C. Cir. 1986), and Highway Truckdrivers & Helpers Local 107 (Safeway Stores), 134 NLRB 1320, are inapposite. In both, the employer unilaterally created the dispute by transferring work away from the only group claiming the work and giving it to another group that had no previous claims to the work. Here, Local 287 workers, to whom Granite Rock sought to assign the work, had valid claims to the work at issue.

The Union also argues that Granite Rock is not entitled to section 8(b) (4) (D)'s protection because it took a position favoring Local 287's assignment to the work in question. While "in most instances, [a jurisdictional dispute] is of so little interest to the employer that he seems perfectly willing to assign work to either [group of employees] if the other will just let him alone," NLRB v. Radio Engineers, 364 U.S. 573, 579 (1961), the mere fact that the employer takes a position regarding the outcome of the dispute does not remove the dispute from the scope of section 8(b) (4) (D)'s protection. Employers will often have legitimate interests in the outcome of jurisdictional disputes because " [a] change in work assignment may result in different terms or conditions of employment, a new union to bargain with, higher wages or costs, and lower efficiency or quality of work." NLRB v. Plasterers' Local Union No. 79, 404 U.S. at 124-25. As long as the actions taken by the employer conform with the relevant labor regulations, the mere fact that an employer takes a position with regard to a disputed assignment of work does not remove the employer from the protection of the Act. See id. at 124 ("If the employer prefers the employees to whom he has assigned the work, his right to later relief against the other union's picketing is conditioned upon his ability to convince the Board in the Sec. 10(k) proceeding that his original assignment is valid under the criteria employed by the Board.").

Finally, the Union contends that no jurisdictional dispute existed because the Union picketed to obtain future, rather than present, work. It cites our decision in Stromberg-Carlson Communications v. NLRB, 580 F.2d 939, 941 (9th Cir. 1978), for the proposition that disputes over future work do not constitute jurisdictional disputes. Stromberg-Carlson, however, stands only for the proposition that no jurisdictional dispute exists when a union pickets to get undefined work that may develop in the future to which no other union has laid specific claims. Where, as here, the work was clearly defined, its inception was imminent, and another union had clearly staked a claim to the work, a jurisdictional dispute existed whether or not the work at issue had actually begun before the picketing started. See Foley-Wismer, 695 F.2d at 427; see also ILWU Locals 8 and 40, 233 N.L.R.B. 459, 461 (1977) (jurisdictional dispute existed despite prospective nature of work in dispute where work defined in nature and beginning of project imminent).


The Union also argues that the district court erred in granting summary judgment because genuine issues of material fact existed. First, the Union contends that its statements that it would be willing to agree to a compromise settlement as well as to submit to binding arbitration raise a factual issue concerning its motivations in picketing which rendered improper the district court's determination that the Union picketed to get its drivers hired by Granite Rock. The record, however, clearly indicates that, while the Union might have been willing to settle or arbitrate the dispute, its primary motivation was the hiring of CAP drivers for positions claimed by Local 287. See May 26, 1987 Letter from R. Fitzpatrick to Bruce Woolpert ("The sole purpose of the picketing is to obtain employment for the former CAP employees."). Section 8(b) (4) (D) forbids picketing where "an object thereof" is to force an employer to give one group of workers work claimed by another group of workers. (emphasis added). Accordingly, the district court could properly grant summary judgment on the issue of the Union's unlawful motivations. See NLRB v. Denver Bldg. Council, 341 U.S. 675, 689 (1951) ("It is not necessary to find that the sole object of the strike was that of forcing the contractor to terminate the subcontractor's contract. This is emphasized by the legislative history of the section.") (emphasis in original); Iodice v. Calabrese, 512 F.2d 383, 388 (2d Cir. 1975) ("When a labor organization takes action for the purpose of forcing an employer to cease doing business with another, it violates Sec. 8(b) (4) (B) even if it has other purposes as well.").

The Union also contends that partial summary judgment should not have been granted because a dispute of fact existed regarding whether the Union objected to members of Local 287 transferring with their trucks. In support, the Union proffers only its June 17, 1987 letter to Granite Rock. While the June 17, 1987 letter is somewhat ambiguous regarding the Union's demands, all other evidence in the record, including letters from the Union and affidavits submitted to the court, demonstrate that the Union definitively opposed the transfer of Local 287 drivers. Considered in context with other evidence in the record on the motion for summary judgment, no reasonable trier of fact could find in favor of the Union on the issue of its opposition to transfer of the Local 287 drivers. Accordingly, the granting of partial summary judgment on this issue was appropriate. See Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986) ("If the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted.").

The Union also contests a number of elements of the district court's damages award. Under section 303 recovery is "limited to actual, compensatory damages." Teamsters Local 20 v. Morton, 377 U.S. 252, 260 (1964).

The Union contests the award of expenses to Granite Rock for the excess costs incurred in barning the trucks at locations in Santa Clara County rather than Redwood City from March 16, 1987 through the end of picketing. The magistrate based his damages award on his determination that Granite Rock reasonably decided not to transfer its trucks to Redwood City due to the Union's March 31, 1987 threat to strike all of Granite Rock's plants if it barned its trucks at Redwood City without hiring CAP drivers.

The Union first contends that the magistrate erred in awarding damages based on the March 31, 1987 threat to strike the entire company because, in ruling on the motion for partial summary judgment, the district judge never expressly found that any threat occurred. The Union's argument misconceives the purpose of partial summary judgment. Rule 56(c) states that, " [a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." That rule, and the procedures set out in Fed. R. Civ. P. 56(d), are designed to narrow the issues for trial, not to find all facts that may be established during the course of the proceedings. Here, the district court on the motion for partial summary judgment established only those facts necessary to determine that a violation of Rule 8(b) (4) (D) had occurred. The magistrate's responsibility at trial was to determine all facts necessary to decide the issue of damages. To determine damages, the magistrate had to determine whether the March 31, 1989 threat occurred.

The Union next argues that, even assuming that the March 31, 1987 threat occurred, Granite Rock should have barned its trucks at Redwood City. The Union contends that, as evidenced by the events that took place after the picketing began in August 1989, the Redwood City plant could maintain operations despite picketing by having management ferry trucks across the lines. Consequently, according to the Union, Granite Rock failed to mitigate its damages and should not have been awarded truck expenses incurred by barning the trucks off the Redwood City premises.

Whether or not expenses have been kept to a reasonable level to minimize damages in a Sec. 303 action is an issue of fact reversible only if the district court's determination is clearly erroneous. ILWU v. Hawaiian Pineapple Co., 226 F.2d 875, 880-81 (9th Cir. 1955), cert. denied, 351 U.S. 963 (1956); Marcoux v. Maine, 797 F.2d 1100, 1106 (1st Cir. 1986). Here, the magistrate's finding that Granite Rock properly mitigated its damages by barning its trucks elsewhere, far from appearing erroneous, appears eminently reasonable. By continuing to barn its trucks in San Jose, Granite Rock reasonably sought to avoid the threatened picketing at its Redwood City plant. The company had no way to know in advance that the picketing would not close down the plant. Once the picketing began at the Redwood City plant, it was not erroneous for the district court to find that Granite Rock acted reasonably in continuing to barn the trucks elsewhere. The company still faced a threat that if it transferred the trucks all of its plants, rather than simply the Redwood City plant, would be picketed. Cf. Allied Int'l v. International Longshoremen's Ass'n, 814 F.2d 32, 39 (1st Cir.), cert. denied, 484 U.S. 820 (1987) ("The appellee was not under any duty to take outlandish chances in order to mitigate its damages.... A labor organization cannot engage in an illegal secondary boycott, announce that the boycott persists, and expect the injured party nonetheless to stand the hazard in the hope that the union's boasts are empty.").

The Union also contests the magistrate's calculation of the travel time to the Redwood City plant by trucks barned elsewhere. The magistrate granted damages based on a one-hour trip from San Jose and a half-hour trip from Mountain View. Noting that the estimation was based on the testimony of Granite Rock employees regarding the amount of time allotted to the trips, the magistrate found that Granite Rock could have computed the trip more exactly, but that the approximations given were sufficiently precise to allow an award of damages.

In a section 303 case, the plaintiff need not detail the exact amount of damages suffered. It is sufficient if the evidence supports a just and reasonable approximation. Maxey v. Butchers' Union Local No. 126, 627 F.2d at 915; Mason-Rust v. Laborers' Local No. 42, 435 F.2d at 945-46; American Bridge Div. v. International Union of Operating Engineers, Local 487, 772 F.2d 1547, 1551-52 (11th Cir. 1985); Turnkey Constructors v. Cement Masons Union Local No. 685, 580 F.2d 798, 800 (5th Cir. 1978). Here, although the Union argues that time cards admitted into evidence indicate that the San Jose trip could be accomplished in a half-hour, those time cards did not reflect trips at rush hour when most of the trips from San Jose needed to be made. In the absence of any other evidence supplied by the Union to the contrary, the evidence supporting the travel time claimed is adequate.

The Union also argues that the district court improperly allowed Granite Rock's claim for the salaries paid Granite Rock management employees assigned to ferry the trucks across the picket line at Redwood City. The Union contends that no compensation was appropriate because Granite Rock failed to show that it had sustained losses because its personnel were called away from their normal work. Courts, however, have routinely found that the losses sustained by a company because its employees were rendered unproductive by illegal action are compensable in themselves; they need not show specific losses of profits or business opportunities. Salaries paid during the unproductive period are a proper measure of damages. See, e.g., Refrigeration Contractors v. Local Union No. 211 of United Ass'n of Journeymen and Apprentices, 501 F.2d 668, 671 (5th Cir. 1974); Abbot v. Local Union No. 142 of United Ass'ns of Journeymen and Apprentices, 429 F.2d 786, 789 (5th Cir. 1970).

The Union also contests the award of travel expenses for management personnel who worked at Redwood City during the strike. According to the Union, travel expenses that management would have incurred in the absence of the strike should have been deducted from the damage award. However, travel expenses that would have been incurred in the absence of the strike would have been offset by the greater income the management activities would have generated. It was therefore reasonable for the magistrate to compensate Granite Rock for all travel expenses incurred to and from Redwood City.

The Union next contests the district court's reimbursement of expenses for an extra truck assigned to the Redwood City facility. According to Granite Rock, the assignment of an extra truck was necessary to make up for inefficiencies in the loading process at Redwood City caused by the Union's picketing. The Union argues that the expenses of the extra truck were compensated by the payments for travel time of the trucks and should not be reimbursed again. However, the amount Granite Rock was awarded for travel time reimbursed it only for the time required by trucks barned elsewhere to be driven to and from the Redwood City plant. The amount Granite Rock was awarded for the extra truck reimbursed it for delays suffered by its trucks once they arrived at the Redwood City facility. The trucks experienced difficulties in ingress and egress from the plant stemming from the presence of picketers and the greater time inexperienced management personnel took to clean, fuel, and load the trucks. The award for these expenses was not duplicative of the award for travel time.

Finally, the Union contests the portion of the damage award attributable to payment of the fringe benefits of workers who were on hand on August 3, 1987 but unproductive because of the picketing. According to the Union, such costs are ordinarily payable on a monthly basis under collective bargaining agreements and must be paid in full whether or not the employees work each day. However, as Granite Rock argues, the record reflects that the amount of benefits paid for the plant crew depended upon the number of hours worked. Moreover, if the plant crew had been able to perform their normal duties, their benefit expenses would have been offset by the income to the company that their activities generated. See American Bridge Div. v. International Union of Operating Engineers, 772 F.2d at 1552 (basic wage, taxes and fringe benefits are "proper elements of relief, as they were sustained as a consequence of the strike"); Mason-Rust v. Laborers, 435 F.2d at 497 ("The entire amount paid to the Teamsters, including the fringe benefits, during this period was lost to the construction program and constitutes a proper item of damages."). Accordingly, the magistrate did not err in awarding damages for these amounts.



This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3


Section 8(b) (4) (D) of the Act, 29 U.S.C. § 158, provides in full:

8(b) It shall be an unfair labor practice for a labor organization or its agents

4(i) 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 his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is--

* * *

(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.