The opinion of the court was delivered by: BROTMAN
This action involves a claim for damages pursuant to section 303 of the Labor-Management Relations Act ("Act"), 29 U.S.C. § 187, for defendants' activity allegedly in violation of § 8(b)(4) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(b)(4). Currently before the court are two motions: one by defendant to dismiss plaintiff's claim on the ground that plaintiff does not have standing, and the other by plaintiff for partial summary judgment, pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, on the issue of liability. Each of these motions presents one issue. The dismissal motion rests on the question of whether a primary employer may bring a cause of action under section 303 of the Act against a labor organization for damages resulting from illegal secondary picketing. The partial summary judgment motion concerns the question of whether the prior Decision and Order of the National Labor Relations Board ("NLRB") that the defendants had violated § 8(b)(4) collaterally estops the defendants from litigating its liability in the present case. Based on the analyses which follow, the defendants' motion is denied and the plaintiff's is granted.
An examination both of the briefs and affidavits filed with respect to these motions and of the findings of fact adopted by the NLRB reveals a general agreement as to many of the relevant facts. The plaintiff, Jaden Electric, a division of the Farfield Company, is a non-union electrical contractor, and defendants, International Brotherhood of Electrical Workers, Local Union Nos. 211 and 334, are unincorporated labor organizations. On March 14, 1979, plaintiff was awarded a contract by the Atlantic County Improvement Authority ("ACIA") to perform electrical construction work at the construction site of the Federal Aviation Administration/National Aviation Facilities Experimental Center ("NAFEC") at Pomona, New Jersey. Unlike plaintiff, many of the other contractors on the project were union employers. In anticipation of some sort of picketing activity, a separate gate, gate 13, was established for the exclusive use of plaintiff and its suppliers while two other gates, gates 18 and 18(a), were reserved for the other building trades. Plaintiff and its suppliers were expressly prohibited from using these two gates, and these prohibitions were followed. On April 12, Local 211 and on April 25, Local 334 picketed gates 18 and 18(a).
On various dates between April 13 and April 27, 1979, plaintiff and ACIA filed unfair labor practice charges before the NLRB alleging that the picketing of Locals 211 and 334 was illegal secondary activity in violation of Section 8(b) (4)(i), (ii)(B) of the NLRA.
An Unfair Labor Practice Complaint based upon these charges was issued by the NLRB on May 31, 1979. On July 25 and 26, 1979, a hearing on the merits of this complaint was held before an Administrative Law Judge ("ALJ"). In an October 12, 1979 opinion, the ALJ concluded that Locals 211 and 334 had engaged in illegal secondary activity in violation of Section 8(b)(4)(i), (ii)(B) of the NLRA and he issued an order which included a cease and desist provision.
Thereafter, the charging parties (plaintiff and ACIA), the Respondents (Locals 211 and 334), and the General Counsel all filed exceptions to this decision with the NLRB accompanied by supporting briefs. On March 5, 1980, a three member panel of the NLRB specifically affirmed the rulings, findings and conclusions of the ALJ at 248 N.L.R.B. 34. Locals 211 and 334 did not appeal the NLRB's final determination of this issue to the appropriate Circuit Court of Appeals. On March 8, 1980, plaintiff commenced the present action.
Plaintiff asserts jurisdiction under § 303 of the Labor Management Relations Act ("Act"), 29 U.S.C. § 187, which provides:
(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title.
(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.
The defendants assert that the plaintiff does not have standing to sue since § 303 of the Act does not provide a basis for a claim for damages by a primary employer
who has been the object of secondary picketing by a labor union. The defendants' major arguments are that the legislative history of the statute, with particular reference to the unfair labor practice provisions, § 158(b)(4), and the logical structure of the statutory framework, supports their position that where primary employers such as the plaintiff may obtain relief through orders handed down by the NLRB and enforceable by the courts, these primary employers lack standing to sue for damages in the Federal Courts. They also contend that this result is particularly appropriate since the secondary boycott provisions of the Act were designed mainly for the protection and benefit of neutral or innocent third parties and not the primary employer.
With respect to the early legislative history of § 8(b)(4), 29 U.S.C. § 158(b) (4), the defendants cite two statements by Senator Taft as summarizing the congressional position as to whom this section was designed to protect. "This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees." 93 Cong.Rec. 4198 (1947). At a later date Senator Taft indicated that, "(t)he secondary boycott ban is merely intended to prevent a union from injuring a third person who is not involved in any way in the dispute or strike...." 95 Cong.Rec. 8709 (1949). The defendants also point out that at the time of the debates over the passage of these sections, much discussion centered around the damages to farmers from secondary boycotts by truckers. As Senator Ball explained, " "(F)arm producers and small businesses and their employees are the main victims of secondary boycotts, jurisdictional strikes, and organizational boycotts.... It is such persons and their rights that we are trying to protect.' " Di Giorgio Fruit Corp. v. National Labor Relations Board, 89 U.S. App. D.C. 155, 191 F.2d 642, 644 (D.C.Cir.), cert. denied, 342 U.S. 869, 72 S. Ct. 110, 96 L. Ed. 653 (1951).
The defendants conclude that the clear implication of statements such as those by Senators Taft and Ball is that it is the neutral party who is to be protected from secondary boycotts or picketing. This position has received other support: "The general purpose of the ban on secondary activity is to protect neutral employers, i. e., those not directly involved in a labor dispute, from direct union sanctions." Frito-Lay, Inc. v. Retail Clerks Union Local No. 7, 629 F.2d 653 (10th Cir. 1980). See 2 U.S.Code Congressional and Administrative News 2382 (1959).
In an effort to further support their attempt to limit a primary employer's relief to that provided by the NLRB, the defendants develop a cursory argument, based on legislative history from 1947, that the primary responsibility for policing such unfair labor practices as secondary boycotts was to remain with the NLRB; therefore, the union or employer involved in the dispute should not be allowed to bring suit for damages. As a supplement to this argument, the defendants point to the policy statement in 29 U.S.C. § 151 which states: "It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce...." Since the defendants complied with both the injunction temporarily restraining their picketing and the subsequent cease and desist order adopted by the NLRB at 248 N.L.R.B. at 34, the plaintiff has already received such relief as is consistent with this policy.
Thus, the defendants finally conclude that the history and structure of § 303 mandates that the term "whoever" should not be construed literally and that the plaintiff as a primary employer should not be allowed to obtain damages. The defendants express a deep concern that a literal interpretation of the statute would allow anyone alleging a harm, however remote, arising from the secondary activities of a union to bring suit. As a result, numerous unnecessary and vexatious claims would be brought against the unions, and the national policy of encouraging industrial peace would be undermined.
After assessing the defendants' various arguments and the available, albeit limited, case law, we cannot agree with the defendants' ultimate conclusions that the plaintiff does not have standing. Rather, we have decided that the provision, "Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States...," § 303(b) of the ...