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June 7, 1974

Whitman Electric Inc., Plaintiff
Local 363, International Brotherhood Of Electrical Workers, AFL-CIO, Defendant

Motley, D.J.

The opinion of the court was delivered by: MOTLEY

Memorandum Opinion and Order


 Plaintiff Whitman Electric, Inc., has brought this action against Local 363, International Brotherhood of Electrical Workers, AFL-CIO, pursuant to Section 303 of the National Labor Relations Act, 29 U.S.C. § 187(b) *fn1" for recovery of damages resulting from an alleged secondary boycott in violation of Section 8(b) (4) (i) and (ii) (B) of the Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (B). *fn2"

 Plaintiff further alleges that defendant has attempted to cause third parties to sever various contracts with plaintiff and that defendant has caused extensive damage to electrical wiring and fixtures installed by plaintiff at the site of one of the alleged unfair labor practices.

 Plaintiff previously moved for partial summary judgment on the ground that the National Labor Relations Board and this court had already decided some of the issues presented in this action against defendant. See Local 363, International Brotherhood of Electrical Workers, AFL-CIO, and Whitman Electric Incorporated, 201 NLRB No. 123 (1973); McLeod v. IBEW, Local 363, 72 Civ. 1627 (S.D.N.Y. May 10, 1972).

 This court, in the memorandum opinion and order dated July 17, 1973, held that this court's opinion in McLeod, supra, could not be given collateral estoppel effect.

 The court also ruled that it would not attach collateral estoppel effect to the NLRB decision, cited supra, while the Board's application to enforce its order, 29 U.S.C. § 160(e), was pending in the Court of Appeals.

 The Second Circuit, however, subsequently enforced the NLRB order on November 27, 1973 (Docket No. 73-1556) and plaintiff renews its motion for partial summary judgment. Plaintiff seeks a ruling that defendant engaged in an illegal secondary boycott as alleged in its first cause of action. Defendant in turn cross-moves for partial summary judgment dismissing the second cause of action set forth in the Supplemental Complaint. The court grants plaintiff's motion and denies defendant's cross-motion for the following reasons.

 Plaintiff Whitman Electric is a New York corporation engaged in the electrical contracting business. Abraham H. Maller, the NLRB Administrative Law Judge, found that Warwick Construction Company, a general contractor, had a contract with the Board of Education, Pine Bush Central School District #1, for the construction of an elementary school in Circleville, New York. On November 16, 1971, Whitman contracted with the Board of Education to perform the necessary electrical work in connection with that construction.

 On January 24, 1972, Local 363 set up a picket line in front of the job site in connection with a labor dispute with Whitman. Local 363 was protesting Whitman's recognition of a rival union, District 50, Allied and Technical Workers of the United States and Canada. The Administrative Law Judge found that Local 363 "threatened and attempted to coerce Warwick with an 'object' of forcing and requiring the Board of Education to cease doing business with Whitman," (Decision, 201 NLRB No. 123, p. 8) in violation of Section 8(b) (4) (i) and (ii) (B) of the Act.

 Plaintiff's Motion for Summary Judgment

 Plaintiff contends that the NLRB's findings should bar re-litigation of defendant's liability for illegal secondary activity. As the Supreme Court noted in United States v. Utah Const. & Mining Co., 384 U.S. 394, 16 L. Ed. 2d 642, 86 S. Ct. 1545 (1966), "When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." Id. at 421 (alternate holding); see also Safir v. Gibson, 432 F.2d 137, 143 (2d Cir.), cert. denied, 400 U.S. 942, 91 S. Ct. 241, 27 L. Ed. 2d 246 (1970). Moreover, in Safir, the Second Circuit noted that ". . . even determinations of questions of law are conclusive between the parties on a different cause of action unless injustice would result." 432 F.2d at 143. Res judicata, or collateral estoppel effect, can attach to administrative agency decisions in order to bar both proceedings before another administrative agency, Safir, supra, and relitigation of the same factual issues in subsequent judicial proceedings. Utah Constr., supra; Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970).

 The collateral estoppel doctrine, however, should not be applied to administrative findings in every case. Instead, a court must consider whether ". . . the factual disputes resolved were clearly relevant to issues properly before . . . and both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings." Utah Constr., supra, 384 U.S. at 422. *fn3"

 These conditions were satisfied in the NLRB proceedings. Both parties participated in the NLRB hearing, the Administrative Law Judge's findings were relevant to his determination that Local 363 had engaged in an illegal secondary boycott and the NLRB decision was reviewed, and enforced, by the Court of Appeals.

 It may be that a court also has discretion to decline to be bound by administrative findings whenever there is some good reason for a new judicial inquiry into the same facts. Cf. Old Dutch Farms, Inc. v. Milk Driv. & Dairy Emp., 281 F. Supp. 971 (E.D.N.Y. 1968). However, defendant has not suggested any reasons why a new evidentiary hearing should be required, other than his legal argument that the findings of an administrative agency are not res judicata.

 The court notes that the Second Circuit has said, in dicta, that an NLRB determination that a union has engaged in unlawful secondary activity ". . . does not bind the court confronted with the question of whether particular union activity violated § 8(b) (4) in a § 303 suit." Old Dutch Farms Inc. v. Milk Drivers & Dairy Emp. Union, 359 F.2d 598, 603 n. 7 (2d Cir.), cert. denied, 385 U.S. 832, 87 S. Ct. 71, 17 L. Ed. 2d 67 (1966). However, since the conditions *fn4" enumerated in Utah Constr., and Safir, supra, decisions subsequent to Old Dutch Farms, have been satisfied, the court concludes that collateral estoppel effect should attach to the NLRB's findings of fact. See Painters Dist. Coun. No. 38 v. Edgewood Contracting Co., 416 F.2d 1081, 1085 n. 5 (5th Cir. 1969); Note, The Applicability of Res Judicata and Collateral Estoppel to Actions Brought Under Section 8(b) (4) of the National Labor Relations Act, 67 Mich. L. Rev. 824 (1969).

 The next question is whether the NLRB's conclusion that Local 363's conduct constituted an illegal secondary boycott is binding on this court. Since there has been no showing that injustice would result, the NLRB's determinations of questions of law are conclusive between the parties. *fn5"

 However, even if the NLRB's determinations of questions of law were not conclusive, the court has determined that the Board applied the relevant legal standards correctly. The principal legal issue before the Board was whether the picketing was "primary" and, therefore, saved from the prohibition of § 8(b) (4) (B) by the proviso that "nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing."

 The Board, applying the standards set forth in Sailors Union of the Pacific, 92 NLRB 547 (1950), and approved by the Second Circuit in NLRB v. Service Trade Chauffeurs, 191 F.2d 65 (2d Cir. 1951), properly determined that the picketing was illegal secondary activity. *fn6"

 Defendant argues that attaching collateral estoppel effect to the NLRB decision would deprive it of its right to a jury trial on the issue of its liability for illegal secondary activity, the principal issue in the case. However, neither party has made a timely demand for a jury trial. Rule 38(b) (d) Fed. R. Civ. P. *fn7"

 Defendant's Cross-Motion for Partial Summary Judgment

 Defendant moves for partial summary judgment with respect to plaintiff's second cause of action set forth in the Supplemental Complaint. Plaintiff therein alleges, inter alia, that defendant on two separate occasions caused extensive damage to electrical wiring and fixtures that had been installed by plaintiff at the Pinebush Elementary School in Circleville, New York, pursuant to its contract with the Board of Education.

 In support of its motion, defendant has submitted an affidavit of Pat E. Damiani, business agent of the local, (see Memorandum in Support of Defendant's Motion for Partial Summary Judgment Pursuant to Rule 56(b)), denying that members of the local were responsible for any damage to plaintiff's property. It is unclear to what extent the affidavit is based on personal knowledge. Rule 56(e), Fed. R. Civ. P.

 However, assuming that it was based on personal knowledge, plaintiff has satisfied its burden of showing that there is a genuine issue for trial. In his deposition, Sanford Whitman, president of Whitman Electric, testified that, during the period of the labor dispute, he discovered that the wire had been damaged. (Deposition of Sanford Whitman, p. 76). While Whitman admitted that he had not seen who destroyed the wire -- the damage allegedly occurred at night -- the court cannot hold, on the basis of the evidence now before it, that the finder of fact on the trial would not be permitted to infer that the damage had been done by agents of defendant Local 363. On a motion for summary judgment, the inferences to be drawn from affidavits and exhibits "must be viewed in the light most favorable to the party opposing the motion." American Mfrs. M.I. Co. v. American Broadcasting Paramount Theatres, 388 F.2d 272, 279 (2d Cir. 1967).

 Plaintiff's motion for partial summary judgment is accordingly granted and defendant's cross-motion for partial summary judgment is denied.

 Trial of this action will be limited to the following matters: (1) damages sustained by plaintiff as a proximate cause of the illegal secondary boycott; (2) the claims alleged in plaintiff's second cause of action and (3) if the claims alleged in the second cause are proved, the damages caused thereby.

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