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September 30, 1981


The opinion of the court was delivered by: HUYETT


This is a labor dispute between an owner of premises under construction at the time relevant to this case and labor organizations and one individual labor official. The plaintiff-owner alleges that the defendants violated § 8(b)(4) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4), by engaging in several activities relating to the construction of plaintiff's racquetball club. In addition, plaintiff asserts pendent state law claims. For reasons which follow, summary judgment will be granted for the defendants on some aspects of plaintiff's case. On others, there remain genuine issues of material fact and so summary judgment will be denied.

 The plaintiff is Allentown Racquetball and Health Club (ARC). It commenced this action under § 303 of the Labor Management Relations Act, 1947 (LMRA), 29 U.S.C. § 187, alleging that the defendants violated the secondary boycott provisions of § 8(b)(4)(i)(B) *fn1" by (1) engaging in picketing in violation of that act; (2) coercing, by threats of fines, members of the defendant locals from performing services for Duggan & Marcon, Inc. (D&M), a neutral employer which had a contract with ARC and with which the defendants had no dispute; and (3) by placing advertisements in local newspapers which failed to identify the primary employers with whom the defendants had disputes.

 The defendant Building and Construction Trades Council of Lehigh and Northampton Counties (BCTC) is a voluntary association of local unions such as carpenters, laborers, ironworkers, plumbers, and other practitioners of building trades. The committee within the BCTC with the authority to order strikes or picketing was the committee comprised of the Business Agents of affiliated local unions. Two locals affiliated with the BCTC are also defendants here: Local 401 of the Wood, Wire and Metal Lathers International Union of Allentown and Vicinity (Local 401) and Laborers District Council of Eastern Pennsylvania, Local 1174 of the AFL-CIO (Local 1174). The only individual defendant, James W. Sweeney, was the president of BCTC during most of the relevant time. He has been and is currently a member of Local 401. He was also a member of Local 1174. All of the defendants have moved for summary judgment.

 ARC selected Biehn Construction, Inc. (Biehn), a non-union general contractor, as the general contractor for the construction of the ARC complex at 601 Union Street, Allentown, Pennsylvania. Biehn in turn entered into subcontracts with both union and nonunion subcontractors. Semmel Excavating, Inc. (Semmel) and Robert Schilling, Inc. (Schilling) were two nonunion subcontractors who performed work at the ARC site. While Semmel was at work on the ARC project, pickets from BCTC appeared carrying signs which read: "NOTICE SEMMEL EXCAVATING, INC. IS DESTROYING BUILDING INDUSTRY STANDARDS WE PROTEST AGAINST NOT OBSERVING WAGES AND STANDARDS BUILDING AND CONSTRUCTION TRADES COUNCIL OF LEHIGH AND NORTHAMPTON COUNTIES AND VICINITY." When Semmel finished its work, the pickets changed the name on their signs from Semmel to Robert Schilling, Inc. which was then working on the site. When Schilling left the site, the pickets changed the reference from Schilling to Biehn, the general contractor. The pickets were present at the construction site from about May 31, 1979 to about January 10, 1980.

 To provide the lathing and plastering work needed on the interior of the racquetball club, Biehn entered into a subcontract with Duggan & Marcon, Inc. (D&M), a union contractor. On August 16, 1979 when D&M was to have begun work, Charles Marcon informed ARC that all of his employees who were union members of Local 401 refused to cross the BCTC picket lines. On August 20, 1979, ARC established a "neutral" gate for D&M employees only. D&M employees still refused to work. The record is unclear on whether the pickets respected the neutral gate. D&M filed an unfair labor practice charge against BCTC on August 22, 1979. This charge was settled without BCTC conceding liability but with an agreement that members of Local 401 would not be fined for performing work on the ARC site. Prior to approval of the settlement by the NLRB, employees of D& M who were members of Local 1174 refused to appear for work. Local 1174 members were laborers whose presence was required before members of Local 401 could do their work. As a result, D&M was not able to carry out its contract with Biehn. Biehn had to secure a different, nonunion subcontractor to do the lathing work. The plaintiff alleges that this caused a delay in the opening of the club which injured the plaintiff.

 On October 28, 1979, after D&M had surrendered its subcontract with Biehn, BCTC ran the following advertisement in the Allentown Sunday Call-Chronicle:

We would like to advise you that the Allentown Racquetball Club in Allentown was built in part by workmen who received wages and enjoyed working conditions which are below those prevailing in the Lehigh Valley area. Those workers who constructed the Allentown Racquetball Club did not receive the rates of pay or enjoy the working conditions customarily received by building tradesmen in the Lehigh Valley area. We ask the support of the general public in our efforts to maintain the high standards and decent wages and working conditions which we have established in this area. When the owners of the Allentown Racquetball Club construct a building and seek to have it done by workers who receive less than the prevailing rates, our jobs and our working conditions are adversely affected.
We ask the support of the general public in our efforts to have all workers engaged in the building and construction industry receive the wage rates and enjoy the working conditions which we have established. We ask your aid and support.
Andrew Cuvo, Pres., James W. Sweeney, Vice Pres.

 A second advertisement, identical to the first, ran in the same Allentown paper on December 16, 1979. ARC began partial operation on December 17, 1979 and full operation on January 20, 1980.

 Section 303 gives injured parties a claim for damages against a union where the party has been injured by union activity which amounts to an unfair labor practice under § 8(b)(4) of the NLRA. Section 8(b)(4) makes certain conduct (relating generally to secondary boycotts and jurisdictional disputes), when engaged in by labor organizations, an unfair labor practice. The NLRA provides a remedy for unfair labor practices by empowering the NLRB to prevent the union from engaging in the practice. See 29 U.S.C. § 160. Section 303 also provides a remedy for a violation of § 8(b)(4) by authorizing a suit for damages cognizable in either state or federal court. 29 U.S.C. § 187. The purpose of § 303 is to keep labor disputes confined to the parties between whom negotiations for settlement should properly take place. See generally Annot., 7 ALR Fed. 767 (1971). Section 8(b)(4)(B) reflects a congressional judgment that secondary boycotts *fn2" ...

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