that unlawful, secondary boycotting or picketing by the defendants resulted in the plaintiff's incurring damages exceeding $ 50,000.00.
I PLAINTIFF'S STANDING
The defendants assert that the plaintiff does not have standing to sue since § 303 of the Act does not provide a basis for a claim for damages by a primary employer
who has been the object of secondary picketing by a labor union. The defendants' major arguments are that the legislative history of the statute, with particular reference to the unfair labor practice provisions, § 158(b)(4), and the logical structure of the statutory framework, supports their position that where primary employers such as the plaintiff may obtain relief through orders handed down by the NLRB and enforceable by the courts, these primary employers lack standing to sue for damages in the Federal Courts. They also contend that this result is particularly appropriate since the secondary boycott provisions of the Act were designed mainly for the protection and benefit of neutral or innocent third parties and not the primary employer.
With respect to the early legislative history of § 8(b)(4), 29 U.S.C. § 158(b) (4), the defendants cite two statements by Senator Taft as summarizing the congressional position as to whom this section was designed to protect. "This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees." 93 Cong.Rec. 4198 (1947). At a later date Senator Taft indicated that, "(t)he secondary boycott ban is merely intended to prevent a union from injuring a third person who is not involved in any way in the dispute or strike...." 95 Cong.Rec. 8709 (1949). The defendants also point out that at the time of the debates over the passage of these sections, much discussion centered around the damages to farmers from secondary boycotts by truckers. As Senator Ball explained, " "(F)arm producers and small businesses and their employees are the main victims of secondary boycotts, jurisdictional strikes, and organizational boycotts.... It is such persons and their rights that we are trying to protect.' " Di Giorgio Fruit Corp. v. National Labor Relations Board, 89 U.S. App. D.C. 155, 191 F.2d 642, 644 (D.C.Cir.), cert. denied, 342 U.S. 869, 72 S. Ct. 110, 96 L. Ed. 653 (1951).
The defendants conclude that the clear implication of statements such as those by Senators Taft and Ball is that it is the neutral party who is to be protected from secondary boycotts or picketing. This position has received other support: "The general purpose of the ban on secondary activity is to protect neutral employers, i. e., those not directly involved in a labor dispute, from direct union sanctions." Frito-Lay, Inc. v. Retail Clerks Union Local No. 7, 629 F.2d 653 (10th Cir. 1980). See 2 U.S.Code Congressional and Administrative News 2382 (1959).
The defendants draw a further inference from the congressional purpose for stopping secondary activity. They assert that since the protection of neutral parties who are unconnected with the primary dispute but are caught in the crossfire is a major reason for banning secondary activity, then only neutral parties and not primary employers should be allowed to maintain an action for damages under § 303(b) of the Act, 29 U.S.C. § 187(b). The defendants do not contend that a primary employer should be without relief from union unfair labor practices. Rather, they argue, a primary employer claiming unfair labor practices should look for relief to the orders of the NLRB, as enforceable by the Court of Appeals (under 29 U.S.C. § 160(f) et seq.), and such relief does not include a claim for damages by a primary employer.
In an effort to further support their attempt to limit a primary employer's relief to that provided by the NLRB, the defendants develop a cursory argument, based on legislative history from 1947, that the primary responsibility for policing such unfair labor practices as secondary boycotts was to remain with the NLRB; therefore, the union or employer involved in the dispute should not be allowed to bring suit for damages. As a supplement to this argument, the defendants point to the policy statement in 29 U.S.C. § 151 which states: "It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce...." Since the defendants complied with both the injunction temporarily restraining their picketing and the subsequent cease and desist order adopted by the NLRB at 248 N.L.R.B. at 34, the plaintiff has already received such relief as is consistent with this policy.
Thus, the defendants finally conclude that the history and structure of § 303 mandates that the term "whoever" should not be construed literally and that the plaintiff as a primary employer should not be allowed to obtain damages. The defendants express a deep concern that a literal interpretation of the statute would allow anyone alleging a harm, however remote, arising from the secondary activities of a union to bring suit. As a result, numerous unnecessary and vexatious claims would be brought against the unions, and the national policy of encouraging industrial peace would be undermined.
After assessing the defendants' various arguments and the available, albeit limited, case law, we cannot agree with the defendants' ultimate conclusions that the plaintiff does not have standing. Rather, we have decided that the provision, "Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States...," § 303(b) of the Act, 29 U.S.C. § 187(b), allows a primary employer to sue for damages allegedly caused by a secondary boycott.
Although the legislative history of § 8(b)(4) of the NLRA, 29 U.S.C. § 158(b) (4), which the defendants present does demonstrate a strong congressional desire to protect neutrals from secondary boycotts and secondary picketing, it does not necessarily follow that the "whoever" of § 303(b) must be limited to such neutral parties. In the first place, language in the legislative history of § 303 itself suggests that a broader view than that proposed by the defendants of the term "whoever" was intended. For example, the Conference Committee report indicated that:
Section 303 of the Senate amendment contained a provision the effect of which was to give persons injured by boycotts and jurisdictional disputes described in the new section 8(b)(4) of the National Labor Relations Act a right to sue the labor organization responsible therefor in any district court of the United States... to recover damages sustained by him together with the costs of the suit. A comparable provision was contained in the House bill in the new section 12 of the National Labor Relations Act dealing with unlawful concerted activities. The conference agreement adopts the provisions of the Senate amendment with clarifying changes.
U.S.Code Congressional Service, 1147 (1947).
In the second place, and more importantly, the inferences drawn by the defendants confuse a reason for banning secondary activity with the actual goal of preventing such behavior by labor organizations. We view § 303 not only as a method of compensation, but, more significantly, as a device which acts in conjunction with NLRB relief to form a dual remedial scheme which aims to facilitate the policy of deterring the unfair labor practices encompassed in § 8(b)(4). See generally Consolidated Express v. New York Shipping Ass'n., 602 F.2d 494, 508-09 (3rd Cir. 1979). A broader construction of "whoever" enhances the deterrence capacity of the damage provision. In this regard, allowing a primary employer to maintain an action for damages is particularly appropriate and should have a greater impact on a union tempted to violate § 8(b)(4) than a potential suit by a neutral party could have. The probability is greater that a primary employer will actually bring suit and that the resulting money judgment will be higher. Faced with this prospect, a union will be less likely to engage in secondary boycotts or secondary picketing. The result should be less unlawful secondary activity and, thus, more protection for innocent neutrals against their being unfairly harmed by such activity.
By granting plaintiff, a primary employer, standing and by adopting a broadened interpretation of the language of § 303(b), we do not intend to imply, as the defendants assert, that unions must then be subjected to damage claims from anyone alleging a harm, however remote, arising from the secondary activities of a union. The constraint on such potentially, burdensome litigation stems from the requirement that a plaintiff attempting to establish a damage claim under § 303 must prove more than incidental or remote damages. As one court has explained, "[recovery] under § 303 is limited to actual, compensatory, damages, Local 20, Teamsters Union v. Morton, 377 U.S. 252, 84 S. Ct. 1253, 12 L. Ed. 2d 280... (1964), and the damages must be both non-speculative and proximately caused by Union wrongdoing. Federal Prescription Service, Inc. v. Amalgamated Meatcutters, 527 F.2d 269 (8th Cir. 1976)." Pickens-Bond Construction v. United Brotherhood of Carpenters, 586 F.2d 1234, 1242 (8th Cir. 1978). The necessity of a plaintiff's satisfying these requirements should prevent a court from applying the phrase "Whoever shall be injured" literally and without any limits. Contra, United Brick & Clay Workers v. Deena Artware, 198 F.2d 637, 644 (6th Cir. 1952) (Dicta).
Our decision to grant standing to the plaintiff also receives support from the case law. Although the number of cases specifically addressing the issue of a primary employer's standing to maintain a § 303 suit is limited, the available cases do lend support to our result, although not necessarily to our reasoning. The leading case on this issue is United Brick & Clay Workers v. Deena Artware, 198 F.2d 637 (6th Cir.), cert. denied, 344 U.S. 897, 73 S. Ct. 277, 97 L. Ed. 694 (1952), where the court allowed a § 303 action by a primary employer against a union for illegal secondary picketing. In the process of making its decision, the court interpreted the phrase "Whoever shall be injured" in a highly literal fashion. The court based its extremely expansive view on its conclusion that:
If Congress considered the use of the secondary boycott in a labor dispute as unfair labor practice and illegal, as it did by the enactment of the Labor-Management Relations Act of 1947, it was entirely consistent with such decision to give a right of action to anyone who was injured in his business by a violation of the law thereafter.