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)),
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.
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).
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.