PAINTERS DIST. COUN. NO. 38, ETC. v. Edgewood Contracting Co.

• Decision Date: 07 October 1969
• Docket Number: No. 24791.,24791.
• Citation: 416 F.2d 1081
• Parties: PAINTERS DISTRICT COUNCIL NO. 38, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, Appellant, v. EDGEWOOD CONTRACTING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 1081 (1969)

PAINTERS DISTRICT COUNCIL NO. 38, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, Appellant, v. EDGEWOOD CONTRACTING COMPANY, Appellee.

No. 24791.

United States Court of Appeals Fifth Circuit.

October 7, 1969.

Joseph Jacobs, Atlanta, Ga., for appellant.

Donald B. Smith, Marietta, Ga., Smith, Currie & Hancock, Atlanta, Ga., for appellee.

Before GODBOLD and SIMPSON Circuit Judges, and McRAE, District Judge.

GODBOLD, Circuit Judge:

In this interlocutory appeal the issue for determination is whether the finding of the National Labor Relations Board that the appellant union violated section 8(b) (4) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4), by conducting a secondary boycott is res judicata on the issue of that union's liability in a subsequent damage suit brought under section 303 (29 U.S.C. § 187).

The original suit was filed by appellee (Edgewood) on February 21, 1965, against Painters District Council No. 38 and the International Union.¹ Edgewood sought damages alleging Painters violated section 8(b) (4) when in August, 1964, it picketed Edgewood's construction project, causing employees of union-affiliated subcontractors to strike with the intent to force Edgewood to cease doing business with a non-union subcontractor.

At the time the events which gave rise to this action occurred, Edgewood filed a complaint with the NLRB (on September 1, 1964) charging that the activities constituted an unfair labor practice. After a full hearing the trial examiner determined that Painters had violated section 8(b) (4) and ordered it to cease and desist. Painters filed exceptions with the Board. The ruling was affirmed and the trial examiner's findings, conclusions and recommendations adopted.² No petition for review was filed with a court of appeals.

In the damage suit, after issue was joined in the District Court, Edgewood moved for a partial summary judgment, claiming that the decision of the Board was res judicata as to liability and that the issue to be tried was that of damages. The District Court ruled that Painters had been given a full hearing with ample opportunity, fully utilized, to develop its position, and that the Board's finding had been made while acting in a judicial capacity and was supported by substantial evidence. Based on these findings, and the belief that the court should not "perpetuate the possibility of inconsistent holdings resulting from dual litigation of the same issue between the same parties," the court concluded that the Board's determination that Painters was guilty of a secondary boycott was res judicata as to liability. We affirm.

The union makes no claim that it was denied a full and fair hearing before the trial examiner or that his decision, or the action by the Board, was arbitrary or capricious or that the Board's determination was unsupported on the record as a whole.

Section 303 of the Act makes it unlawful "for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b) (4) § 8(b) (4)" and gives a cause of action for damages to "whoever shall be injured in his business or property by reason of any such violation." 29 U.S.C. § 187 (1965). Prior to the 1959 amendment of section 303 it contained a separate list of unlawful activities. Even then, "section 8(b) (4) and section 303 are substantially identical in the conduct condemned," International Longshoremen's and Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 243, 72 S.Ct. 235, 239, 96 L.Ed. 275, 281 (1952), and the identical words in the two sections were given the same meaning. International Bhd. of Electrical Workers Local 501 v. NLRB, 341 U.S. 694, 703, 71 S.Ct. 954, 95 L.Ed. 1299, 1306-1307 (1951). These constructions have been followed since the amendment. See e. g., Lescher Bldg. Serv., Inc. v. Local Union No. 133, Sheet Metal Workers International Ass'n, 310 F.2d 331 (7th Cir. 1962); Local 978, United Bhd. of Carpenters & Joiners v. Markwell, 305 F.2d 38 (8th Cir. 1962), where the courts stated that the law developed under section 8(b) (4) was to be consulted in a section 303 suit.

In United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S. Ct. 1545, 16 L.Ed.2d 642 (1966), the Supreme Court followed the more modern view that res judicata principles apply to administrative proceedings.

Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. 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.

384 U.S. at 421-422, 86 S.Ct. at 1559-1560, 16 L.Ed.2d at 660-661. In that case the Supreme Court found that the administrative agency was acting in a judicial capacity, that the factual issues were properly before the agency, and that the parties had fair and full opportunity to argue their versions of the facts and opportunity to seek court review of adverse findings. In the light of these conclusions the Court held that there was neither need nor justification for a second evidentiary hearing on the matters already resolved between the parties. This approach of analysis of underlying factors which may — or may not — make res judicata applicable is consistent with the approach of Professor Davis.

The unsound idea that res judicata does not apply to administrative determinations is gradually being replaced by the sound idea that res judicata properly applies to some administrative determinations and that degrees of relaxation of res judicata are often appropriate. The movement is toward a recognition that the reasons behind the doctrine of res judicata are fully applicable to some administrative proceedings, partially applicable to some, and not at all applicable to others.

2 Davis, Administrative Law, § 18.12 (Supp. 1965)³

The policy considerations which underlie res judicata — finality to litigation, prevention of needless litigation, avoidance of unnecessary burdens of time and expense — are as relevant to the administrative process as to the judicial. Old Dutch Farms, Inc. v. Milk Drivers and Dairy Employees Local Union No. 584, 281 F.Supp. 971, 974 (E.D.N.Y. 1968). Nor is there any difference in the underlying principles because the administrative decision is sought to be given effect in a judicial proceeding.

In this case the District Court carefully analyzed the factors appropriate to guide it to a determination of whether the Board's factual findings should be conclusive. The District Judge found that the Board had conducted a full hearing, with the present parties represented by counsel (the same counsel as in the instant action), with full opportunity to present evidence, and to call, examine and cross-examine witnesses. Both parties made oral arguments. There is only the pale shadow of an argument to us that there is any issue concerning liability that was undecided before the Board. This is the contention that since only the local union was a party to the unfair labor practice proceeding, and the instant suit charged that the local was acting as agent for the international union (as to which process was quashed), the local is deprived of the right to show it was acting a agent. But existence of agency is not a defense to liability of an agent for damages.

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.Ed. 694 (1952), antedated Utah Construction by fourteen years. And, in any event, it is not contrary to our conclusion. The Court of Appeals reviewed contemporaneously, and handed down decisions at the same time, on the Board's petition to enforce its order⁴ and the union's appeal from a jury verdict against it in a section 303 damage suit. The Board order found the picketing in question to be on the part of another union, and the Board's enforcement order was based on that finding. Nevertheless the court affirmed the jury's verdict based on an inconsistent factual finding. Res judicata was not involved. In...