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WHITMAN ELEC. INC. v. LOCAL 363

June 7, 1974

Whitman Electric Inc., Plaintiff
v.
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

MOTLEY, D.J.:

 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 ...


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