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March 5, 1976


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, Chief Judge:

 The court of appeals has remanded this case for a reassessment of plaintiffs' damages. In this court's earlier decision 345 F. Supp. 248 (S.D.N.Y. 1972), plaintiffs' proof of "gross profits" was found to be "so speculative and unsupported as to require rejection." 345 F. Supp. at 271.

 In its remanding opinion, 512 F.2d 383 (2d Cir. 1975), the court of appeals wrote:

The district court obviously found Iodice's testimonial and documentary evidence insufficient to establish precisely how much profit was lost from 1963 until 1969. However, the court did find that during that time the union had engaged in a largely successful campaign to keep business away from Iodice. 345 F. Supp. at 254-55. On remand the district court should "make a just and reasonable estimate of the damage [suffered by Iodice and Thornwood] based on relevant data," Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-65, 66 S. Ct. 574, 580, 90 L. Ed. 652 (1946), including the testimony of Iodice and of customers, and evidence of profits realized by Pleasant Excavators after the unfair labor practices had ceased. 512 F.2d at 389.

 Plaintiffs Anthony Iodice and Thornwood Excavators and Movers, Inc. had been engaged in trucking operations in Westchester County, New York. They claimed damages under section 303 of the Labor Management Relations Act, 29 U.S.C. § 187 (1970). This court found that unfair labor practices had been committed against Iodice and Thornwood entitling them to seek damages under 29 U.S.C. § 187(b) to compensate for business lost due to defendants' acts.

 At trial both Iodice and Thornwood sought to establish that the defendant union's unlawful conduct diminished their profits. They sought to demonstrate the extent of this damage by comparing the profits of their business operations during the period 1963 to 1969 with the profits earned in 1969 by Pleasant Excavating and Equipment Rental Co., Inc. Iodice was employed by Pleasant at the time of trial. Pleasant had operated relatively free of union activities.

 To establish their respective profits during the relevant period, plaintiffs did not offer their books and records. There was testimony at trial that during the weekend after trial commenced, the office where the records were kept was burglarized and that all of the books and records were stolen. Supportive documentation, it was claimed, could not be produced. Proof of plaintiffs' gross income, costs and profits were primarily based on Iodice's testimony although a collection of invoices were introduced allegedly representing some business done by Thornwood.

 Iodice presented only imprecise figures based solely on his own admittedly indefinite recollection. In fact, Iodice intentionally did not look at the companies' records when preparing his testimony, although he had access to them. Rather, he testified, "I wanted to see how good I was," (Tr. 584) although he also testified that the books and records "are better than my recollection." Tr. 585. Later, in response to the court's question about Iodice's failure to review the records Iodice responded:

I didn't think it was really important. I thought the attorney would have the books and he would produce whatever was needed. I more or less just estimated what I thought would be correct.
THE COURT: Don't you think that if you were so concerned about being correct that you would have wanted to look at the books?
THE WITNESS: I thought it would be more important for the attorney to take care of all that than me. Tr. 635-636

  During 1963 and 1964 Iodice was in business for himself. He testified that he did $30,000 worth of business in each of those years. Tr. 523. In 1965, he began working for Thornwood, but he "was billing customers under Anthony Iodice." Tr. 524. He "transferred the company to [his] sister and people kept -- knew they were doing business with Anthony Iodice all these other years and every time we sent a bill they wanted them under Anthony Iodice because they wanted to continue doing business with Anthony Iodice, so we would bill them under Anthony Iodice, but the money was turned over to Thornwood Excavators. . . . There were some people that paid checks on Thornwood Excavators also." Tr. 525. Money he received as an individual he put in the account of Thornwood. Tr. 644. So that for 1965, 1966, 1967 and 1968 all receipts he received by customer billings were actually Thornwood income. Tr. 646-647. During 1965 and presumedly in the subsequent years he was receiving a salary from Thornwood. Tr. 644. Nevertheless, Iodice's testimony regarding 1965 through 1968 was first in terms of billings by Iodice and then by Thornwood billings. For the relevant years, he testified that he and Thornwood had the following gross income: Year Iodice Thornwood 1965 $22,000 $10,000 1966 $10,000 - $10,000 $12,000 1967 $22,000 $10,000 - 11,000 1968 $ 2,000 - $ 8,000 3,000

 Tr. 526-527, 529, 531-532

 Iodice testified that his cost of doing business in 1963 and in 1964 was $15,000 each year. Tr. 536. As to 1965 through 1968, Iodice testified that he was familiar with the cost of doing business individually for those years but that it would be hard to state that cost because "I combined everything as one operation, not as two different operations . . . . I did business as Anthony Iodice but I used a Thornwood trailer when it was being done, so it is really hard to break it down, but I can give it approximately, I guess. In '65, ...

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