The opinion of the court was delivered by: MCCURN
MEMORANDUM DECISION AND ORDER
Spancrete Northeast, Inc., commenced this action
pursuant to Section 303 of the Labor-Management Relations Act, 29 U.S.C. § 187, which creates a federal cause of action against labor organizations for damages to business or property caused by the unfair labor practices defined in Section 8(b)(4) of the Act, 29 U.S.C. § 158(b)(4). Specifically, Spancrete charges that defendant Local 40, International Association of Bridge, Structural and Ornamental Ironworkers threatened to engage in a jurisdictional strike unless Spancrete assigned certain construction work to the Ironworkers rather than to members of the Laborers Union.
Earlier, in separate but related administrative proceedings initiated by Spancrete, the National Labor Relations Board ("NLRB") determined first that the Laborers rather than the Ironworkers were entitled to perform the disputed work; and second, that although Local 40 did not induce any work stoppage through picketing or otherwise, the union nevertheless committed an unfair labor practice by threatening a jurisdictional strike. Invoking the principles of res judicata and collateral estoppel, Spancrete now moves for summary judgment against Local 40 on the liability issue, and seeks to recover as damages in this § 303 action the attorney and witness fees which it expended pursuing its prior administrative remedies before the NLRB.
Local 40 concedes that res judicata bars relitigation of any facts necessarily determined by the NLRB during the administrative stages of this controversy, but cross-moves for summary judgment or, in the alternative for an order dismissing the complaint for failure to state a claim upon which relief can be granted. In support of these motions, Local 40 contends that where, as here, the underlying unfair labor practice involves only a threat of a jurisdictional strike unaccompanied by picketing or work stoppage, the damages recoverable under § 303 do not include the attorney and witness expenses incurred by the employer in obtaining administrative rulings from the NLRB.
The Court believes that this case is ripe for summary judgment and, for the reasons discussed below, grants summary judgment in favor of Local 40 and the International Association of Bridge, Structural and Ornamental Ironworkers.
A brief review of the various mechanisms for resolving labor disputes will serve as a guide to the procedural history of this lawsuit and also illuminate some aspects of the pivotal substantive issue: whether attorney and witness expenses incurred in the successful pursuit of administrative remedies may routinely be recovered as damages in a subsequent § 303 suit against the losing union.
When an employer is faced with a jurisdictional dispute concerning which of two unions is entitled to a particular work assignment, there are commonly three forums available, each of which may provide the employer with different remedies. Moreover, the authority of all three forums may be invoked in the course of settling a single dispute.
First, the parties may agree to submit the jurisdictional dispute to the Impartial Jurisdiction Dispute Board, an arbitration panel established by various employer and union representatives in the construction industry. Where both the employer and the disputing unions have thus, "agreed upon methods for the voluntary adjustment of the dispute," 29 U.S.C. § 160(k), the IJDB's decision ordinarily is binding on the parties and may bar the employer from securing alternative remedies, at least against the successful union. See ACMAT Corp. v. International Union of Operating Engineers, 442 F. Supp. 772, 779-86 (D.Conn.1977) (IJDB decision that defendant unions were entitled to the disputed work is final and binding and bars employer's claim for damages under § 303). Where, on the other hand, the unions have submitted the claim to the IJDB but the employer has not agreed to be bound thereby, a work award by the IJDB is not binding on the employer and he may proceed along either of the remedial avenues created by the Labor Management Relations Act, 29 U.S.C. §§ 160(k), 187(b). See NLRB v. Plasterers' Local Union No. 79, 404 U.S. 116, 92 S. Ct. 360, 30 L. Ed. 2d 312 (1971) (upholding NLRB authority to determine merits of jurisdictional dispute notwithstanding an IJDB work assignment, where the competing unions but not the employer had agreed to be bound by the IJDB decision).
Second, the employer may file a § 8(b)(4)(D)
charge against the union which challenged the employer's work assignment. Where the charge is premised on a jurisdictional dispute, the NLRB is directed, under § 10(k) of the LMRA, to "hear and determine the dispute out of which such unfair labor practice shall have arisen....," unless the parties have agreed upon a method for voluntary adjustment of the dispute.
The Board's power to issue a work assignment order in a § 10(k) proceeding is triggered by a threshold finding that there is reasonable cause to believe that a § 8(b)(4)(D) violation has occurred. Plasterers' Local Union No. 79, supra, 404 U.S. at 123, n.10, 92 S. Ct. at 365, n.10. In that case the Supreme Court explained the limited impact of the Board's § 10(k) decision itself:
".... (T)he § 10(k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10(k) decision is felt in the § 8(b)(4)(D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10(k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer's § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10(k) decision, but both will lose their § 8(b)(4)(D) protection against the picketing which may ... shut down the job.
404 U.S. at 126-7, 92 S. Ct. at 367 (footnote omitted).
Third, the employer may sue the union under § 303 to redress injuries to business or property caused by the commission of certain unfair labor practices prescribed by § 8(b)(4). While § 303 is an alternative to the pursuit of administrative remedies, the employer may pursue both remedies at the same time or in sequence. International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 72 S. Ct. 235, 96 L. Ed. 275 (1952); see generally, R. Gorman, Basic Text on Labor Law 291-5 (1976). This Congressional provision of multiple remedies may produce anomalous results in particular cases. As Professor Gorman observed: "It is thus possible for the Board to hold that the union has not violated section 8(b)(4) at the same time as a judge and jury find the union to have violated section 303 on the same facts and to have both decisions affirmed on appeal." Id. at 294, citing, NLRB v. Deena Artware, Inc., 198 F.2d 637 (6th Cir. 1952), cert. denied, 345 U.S. 906, 73 S. Ct. 644, 97 L. Ed. 1342 (1953) and United Brick and Clay Workers v. Deena Artware, Inc., 198 F.2d 637 (6th Cir.), cert. denied, 344 U.S. 897, 73 S. Ct. 277, 97 L. ...