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February 2, 1973

Shell Chemical Company, A Division Of Shell Oil Company, Plaintiff,
Teamsters Local Union No. 676, Defendant

Cohen, District Judge.

The opinion of the court was delivered by: COHEN

The sole issue presented upon the defendant-Union's motion for summary judgment, in this Labor-Management Relations case, is whether the determination of the National Labor Relations Board, relative to a Section 8(b) (4) (D) jurisdictional dispute 29 U.S.C. § 158(b) (4) (D) *fn1" is res judicata as to the Union's liability for damages in a subsequent suit by Management, pursuant to Section 303 of the National Labor Relations Act (29 U.S.C. § 187). *fn2"

 In its charge before the Board, as well as in its challenged complaint here, Shell alleges that the Union's picketing was designed to, and in fact did, induce employees of other employers to cease picking up, or delivering materials at Shell's plant, or to perform any services there. In an attempt to isolate the dispute, inasmuch as Pollinger -- Catalytic's employee, not Shell's -- was laid off by Catalytic, Shell designated one gate for the exclusive use of Catalytic employees and suppliers and another for the exclusive use of Shell employees and suppliers. Appropriate signs were posted by Shell at both gates indicating their designation and reservation and the Union was advised thereof by telegram. Nevertheless, the picketing initially conducted at both gates continued at the one reserved exclusively for Shell employees and suppliers. It was established before the Board that Shell had no control over Catalytic's labor relations or personnel.

 As a result of the Union's activity, unfair labor practice charges were filed by Shell with the Board alleging violations of the Act, namely, Sections 8(b) (4) (B), 29 U.S.C. § 158(b) (4) (B), *fn3" secondary boycott, 8(b) (4) (D), *fn4" unlawful jurisdictional dispute picketing, and 8(b) (7) (C) (29 U.S.C. § 158(b) (7) (C) *fn5" recognitional picketing. The charge alleging a violation of Section 8(b) (4) (B), secondary boycott, was ultimately withdrawn, without a determination by the Board. Comment thereupon will be made later in this opinion. The remaining two charges were the subject of a complaint issued by the Board against the Union.

 Upon application by the Board to the United States District Court for the District of New Jersey, Judge John J. Kitchen presiding, an injunction pursuant to Section 10(l) was granted, the Court finding reasonable cause to believe that the Union was engaged in unlawful recognitional picketing as well as in conduct in furtherance of an unlawful jurisdictional dispute objective.

 To be noted is that Shell was not a party to the injunction proceedings, the Union objecting to Shell's appearance on the record.

 After the grant of the injunction, a hearing was conducted by the Board, pursuant to 10(k) of the Act (29 U.S.C. § 160(k)), *fn6" on the Section 8(b) (4) (D) charge. On the Section 8(b) (7) (C) charge, all parties stipulated that in lieu of a full hearing thereon, the record before Judge Kitchen consisting of testimony supported by briefs and oral arguments, be submitted to the Board for its decision. That record was also to be utilized and incorporated into the 10(k) hearing on the Section 8(b) (4) (D) charge. The hearing was held on June 2, 1972. The Board concluded that Section 8(b) (4) (D) was not applicable and quashed the Notice of Hearing. On November 6, 1972 Shell filed a Motion for Reconsideration and Order Reopening the Record, which was denied on January 15, 1973. The Union's motion for Summary Judgment is based solely on the Board's decision in the jurisdictional dispute. In support thereof, the Union urges the application of res judicata to Shell's complaint for damages.

 At the outset, it should be pointed out that there is no clear precedent requiring the application of res judicata to the administrative proceedings of the NLRB. Conflict among the circuits which have considered the issue exists; two would apply the doctrine of res judicata and two would not. *fn7" Even those Circuits which recognize the applicability of the doctrine do not apply it pro forma. Its applicability is dependent upon the facts of each individual case and dependent upon whether the administrative agency was acting in a judicial capacity and whether the parties have had a full opportunity to present their version of the facts and to seek Court review of the Agency's findings. Painters District Council No. 38, etc. v. Edgewood Contracting Co., 416 F.2d 1081, 1083 (5th Cir. 1969). Perhaps the most expeditious analysis of this issue would be to focus upon the rationales employed by these courts, and to isolate any areas of disagreement.

 Courts which have considered this issue since 1966 have relied upon United States v. Utah Construction Company, 384 U.S. 394, 16 L. Ed. 2d 642 (1966). *fn8" The Court stated at pp. 421-22:

Occasionally courts have used language to the effect that res judicata principles do not apply in 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.

 It may be deduced from the language of the Supreme Court that the facts of each case must be examined microscopically to determine whether the principle of res judicata is applicable. The necessity for close scrutiny was perhaps best articulated in Paramount Transport Systems v. Teamsters Local 150, 436 F.2d 1064 (9th Cir. 1971). In affirming a district court application of the doctrine the Court of Appeals, Ninth Circuit, stated at pp. 1065-66:

We believe that the district court correctly applied United States v. Utah Construction & Mining Co., supra, to foreclose the union from litigating in this action those material issues of fact decided adversely to it in the proceedings culminating in a final order by the National Labor Relations Board. But we do not construe Utah Construction to require that the doctrine of collateral estoppel be applied across the board to all determinations of such issues by administrative agencies. Reading Utah Construction with United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S. Ct. 1409, 10 L. Ed. 2d 652 (1963), we conclude that collateral estoppel effect should be given only to those administrative determinations that have been made in a proceeding fully complying with the standards of procedural and substantive due process that attend a valid judgment by a court and further, that such effect should be accorded only to those findings upon material issues that are supported by substantial evidence on the administrative record as a whole. *fn9"

 In this Court's determination of the effect to be given to a Section 10(k) hearing by a hearing officer on a jurisdictional dispute charge, a study of the legislative scheme would be helpful. The language of the cases, cited supra, dictates that the court must review the nature of administrative procedure in jurisdictional disputes. It should be emphasized that it varies, depending upon the type of ...

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