Petition — United Brotherhood of Carpenters & Joiners of America v. Noranda Aluminum, Inc.

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

INTHE |

Supreme Courtof the Wl

OcToBER TERM, 1975

No. 75-1904

Unitrep BRoTHERHOOD OF CARPENTERS AND JOINERS OF

America, AF'L-C1O, anp UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF AMERICA, AF'L-CIO,

Loca. 618, Petitioners,

NorAnDA ALUMINUM, Inc., Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

Wim A. McGowan

101 Constitution Avenue, N.W.

Washington, D.C. 20001

Morris J. LEVIN

S. SHELDON WEINHAUS

1125 Arcade Building

812 Olive Street

St. Louis, Missouri 63101

GEORGE KAUFMANN

2101 L Street, N.W.

Washington, D.C. 20037

Attorneys for Petitioners

Press or Brronw S. Apams Parntine, Inc., Wasuinctron, D. C.

SS,

TABLE OF CONTENTS

Page

CERN THUD a dccocccecctinescescntcscesaveaqce 1

Gusathews PUOROMEGS 2.0. ccccccccsccccccevsescecese 2

rr ee wes otbeheeneeeeees 2

er ne, aids pn cnbaneveteeud 3

A. The Factual Background ................see0. 3

SE oe bes I iad dec chee ieanbaeas nee 3

2. The Features of an Aluminum Smelter ..... 4

3. The Strike, Noranda’s Theory of Damages,

and Defendants’ Principal Objections Thereto 5

a. The unacceptability of January 23, 1971 as

a reliable first metal projection .......... 6

b. Labor inefficiency, particularly among the

electricians, and resulting overtime ....... 8

i Te ONIN GOTT occ cccccecescscecces 10

Be ee PO FD nc dec vc cncceccscecncss 10

By Se I IE wckcdbces deve cucdeeuecus 10

ee GO I 6 kk bk cise cbccsicesens 12

Reasons for Granting the Writ .................... 13

I. The Decision Below Subverts the Congressional

Intent in Allowing Only Compensatory Damages

Under the Labor-Management Relations Act and

Ignores Accepted Tort Principles for Measur-

ing Recovery for Injury to Economic Interests

Caused by Violations of Federal Law ........ 13

II. The Decision Below Creates an Unprecedented

and Unsound Exception to the Specificity Re-

quirement of Rule 52(a), F.R.Civ.P. .......... 23

RN a a 28

AUTHORITIES CITED

CASES:

Albemarle Paper Co. v. Moody, 422 U.S. 405 ...... 14,15

Carpenters Local 1273 v. Hill, 398 F.2d 360 (C.A.9) .. 25

Dowagiae Mfg. Co. v. Minnesota Moline Plow Co., 235

Was GE cccvnncesediahsessceuceanwbetes dukes 19, 20

International Wire v. Local 38, 475 F.2d 1078 (C.A.6),

Oars. GEE. Se Wile GE 9 ov ante e004s0keneessss

Labor Board v. Carpenters Union, 365 U.S. 651 ...... 15

Mine Workers v. Gibbs, 383 U.S. 715 ................ 15

Painters District Council 38 v. Edgewood Contracting

oe gg § 8 eS ero rr re 24

Paramount Transport Systems v. Teamsters Local 150,

— £ es § § er re ene es 24

Phelps Dodge Corp. v. Labor Board, 313 U.S.177 .... 15

Plumbers & Fitters, Local 761 v. Matt J. Zaich Const.

oe Fe 8 gt errr re 25

Republic Steel Corp. v. Labor Board, 311 U.S.7...... 15

Sheet Metal Workers Local 223 v. Atlas Sheet Metal

Cis We a ae ee CREED viccdeccediescdvns 12, 22, 25

Sheldon v. Metro-Goldwyn Pictures Corp., 106 F.2d 45

(C.A.2), affirmed, 309 U.S. 390 ...... 15, 18, 19, 20, 22

Story Parchment Co. v. Paterson Parchment Paper

rere 25, 26

Teamsters Union v. Morton, 377 U.S. 252 ....14, 15, 20, 23

Trico Products Corp. v. N.L.R.B., 489 F.2d 347 (C.A.

DD okscccsdcdabinehsoutneessseednenesns 14, 17, 18, 20

Vulean Materials Co. v. United Steel Workers of

America, 430 F.2d 446 (C.A. 5), cert. denied, 401

Wale WUE ve d0d cabecewseetcenecddecontasecwes 24, 25

Westinghouse Electric & Mfg. Co. v. Wagner Electric

ees eS Pere 19, 20

Table of Authorities Continued iii

STaTuUTEs:

Judicial Code, 28 U.S.C. § 1254(1) ........... cece 2

Labor-Management Relations Act of 1947, as amended,

61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 141 et seq.:

DU Séd0cucdbassWediuvsedundwkdes<écane 14, 24

DT bs culvivevtsivecaesvesudeeeds 2, 3, 11

DT. cls eduuhot ulbse bebe eu esaeeaisis cme 14, 15

DUD uibekenseniewne cos 2, 12, 14, 15, 22, 23, 24, 25, 27

EE ie ten oe eed ee ee oe 2,3

DE sedis tu wkersnedes ceuerbeeeeeneeune 3

Federal Rules of Civil Procedure:

EE 6n0hoGdinenedusededeeseecd 2, 3, 23, 25, 27

MISCELLANEOUS:

A.L.I. Restatement of Torts, Second ............ 17, 18, 21

SP CU, TU, Ge CIPD vc cc cece coccccocccsidces 23

wwonnae, Torte COR OF, WAVE) .onccccvccccccccccecs 17, 21

IN THE

Supreme Court of the United States

OcroBER TERM, 1975

No.

Unitrep BRoTHERHOOD OF CARPENTERS AND JOINERS OF

America, AFL-CIO, anp UNrrep BROTHERHOOD OF

CARPENTERS AND JOINERS OF AMERICA, AFL-CIO,

Loca 618, Petitioners,

NorAnDA ALUMINUM, INC., Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

528 F.2d 1034 and is reproduced at pp. la-10a, infra.

The findings of fact and conclusions of law of the Dis-

trict Court are reported at 382 F.Supp. 1258 and are

reproduced at pp. 13a-25a, infra.

JURISDICTION

The judgment of the Court of Appeals was entered

on January 5, 1976 (p. lla, infra). A timely petition

fur rehearing was denied on February 17, 1976 (p. 12a,

infra). On May 4, 1976 and June 4, 1976 Mr. Justice

Blackmun entered orders extending the time in which

to file a writ of certiorari until June 15, 1976 and June

30, respectively. The jurisdiction of this Court rests

on 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. In a suit to recover damages sustained ‘‘by

reason of any violation of’? §303(a) of the Labor-

Management Relations Act of 1947, must the Court,

where possible, apportion plaintiff’s damages between

harms caused by the defendant’s violation and harms

due to causes for which the defendant is not respon-

sible ?

2. Does the requirement of Rule 52(a), F.R.Civ.P.

that the court ‘‘find the facts specially’’, apply to the

computation of damages in suits under § 303 of the

Labor-Management Relations Act?

STATUTE AND RULE INVOLVED

This case involves §§ 8(b)(4)(D) and 303 of the

Labor-Management Relations Act of 1947, as amended,

(hereafter LMRA) 61 Stat. 136, 73 Stat. 519, 29 U.S.C.

§ 158(b) (4) (D) and § 187. It also involves Rule 52(a)

of the Federal Rules of Civil Pocedure. These pro-

visions are set forth in Appendix F of this Petition,

pp. 27a-28a, infra.

- asec

STATEMENT OF THE CASE

A. The Factual Background

1. Introduction

Respondent Noranda Aluminum, Ine. (‘‘Noranda’’)

is a Delaware corporation formed to establish and op-

erate a 200-acre primary aluminum smelter in New

Madrid County, Missouri. Noranda entered into a

contract with Kaiser Engineers, Inc. (‘‘Kaiser’’) to

design and construct the smelter on a cost-plus-fixed

fee basis. Petitioner Local 618 is the labor organiza-

tion which represented the millwrights’ craft at the

Noranda project; petitioner United Brotherhood of

Carpenters and Joiners of America, AFL-CIO, is the

International Union with which Local 618 is affiliated.

(The petitioners will sometimes be referred to jointly

hereinafter as ‘“Carpenters’’ or ‘‘the unions’’).

This action was brought by Noranda under § 303(b)

of the LMRA for losses allegedly sustained by it due

to a strike by Local 618 to protest Kaiser’s assignment

of certain work to another craft in contravention of

Kaiser’s original assignment. Noranda contended, and

the courts below agreed, that the strike was in violation

of § 8(b) (4) (D) and thus of § 303(a) of the Act, and

that both the Local and the International were re-

sponsible therefor. While those liability issues were

vigorously contested below, we do not press them in

this Court. The questions of general public impor-

tance raised by this Petition relate to the propriety

of an award of $914,823.54 as damages sustained by

Noranda by reason of that violation. They concern

the trial court’s failure, in caleulating the award (a)

to make an apportionment between the losses due to

the Carpenters’ strike and those due to other causes

and (b) to find specially, as required by Rule 52(a),

F.R.Civ.P., the facts underlying its resolution of con-

tested elements of the damage award.

While the record is lengthy, and the evidence bear-

ing on damages is unusually complex, we shall curtail

our Statement to the minimum necessary to provide

background for these legal issues.

2. The Features of an Aluminum Smelter

In order to render intelligible the terminology used

herein an abbreviated description of the features of

an aluminum smelter is required. The smelter in this

case was designed and constructed to consist of 174

reduction (or electrolytic) cells called ‘‘pots’’ (A. 30,

176-177).’ These 174 ‘‘pots”’ are set up in two pot

rooms with 87 pots in each room; pot room is ‘‘a term

used in the aluminum industry to denote the reduction

ceil arrangement where aluminum oxide is smeltered

into primary aluminum metal’’ (A. 176-177, E. 46).

The two pot rooms are in two separate buildings

joined together at each end constituting a single pot

line (ibid.).

There are two stages in the construction of an

aluminum smelter. One is known as “‘first metal’’.

This is the stage at which the smelter first attains the

eapacity to produce primary aluminum through the

potroom. (A.195). The other is known as total physi-

cal completion of the plant, at which the smelter in its

entirety has been fully constructed; it includes such

matters as painting, road construction, and landscaping,

which are not critical to the start-up production. (A.

198, 242, 358-360. )

1‘* A’? refers to volumes I and II of the Appendix; ‘‘E.’’ re-

fers to volumes II and IV of the Appendix containing the exhibits.

a ee

3. The Strike, Noranda’s Theory of Damages, and

Defendants’ Principal Objections Thereto

The millwrights’ strike occurred from July 30 to

August 13, 1970, a period of 11 workdays (A. 72, 138,

337). Most crafts did not work during the strike (E.

143-144, A. 552-553, 246, 416). The theory underlying

most of Noranda’s damage claims was that this strike

had caused a 33-day delay, from January 23 to

February 25, 1971, in reaching ‘‘first metal’’ for

&8 pots. The major component of damages which

Noranda ascribed to that delay was the cost of

excess overtime of employees of Kaiser, Comstock-

Roper, the electrical contractor (a total of $626,361)

and Noranda’s fixed price subcontractors ($66,729).

Certain additional expenses consisting of additional

construction and raw material costs, salaried and utility

overhead payments, rental and depreciation costs of

equipment were also said to stem from this delay.

There were other items, most of them uncontested on

appeal, which were said to flow directly from the strike.

The unions presented two major objections to

Noranda’s theory, and the conclusion it drew there-

from: (1) the time target which was assertedly de-

layed by 33 days was based on a wholly unreliable and

arbitrary projection; (2) accepting the 33-day delay

premise, the unions could be charged with only a frac-

tion (calculated to be at most 35.5%) of the resulting

costs because it was caused also by the strike of an-

other craft, the laborers, and by labor inefficiency,

particularly among the electricians.’

? The claim for overtime to fixed price subcontractors was fur-

ther objected to because Noranda sought the entirety of such

overtime although some was incurred before the millwrights’ strike

and thus could not possibly be caused by it, and some was incurred

after February 25, 1971, the date to which the strike allegedly

delayed the attainment of first metal, and thus was not connected

to the strike even on that theory.

We now set forth in summary fashion the evidence

pertaining to these issues.

a. The Unacceptability of January 23, 1971 as a Reliable First

Metal Projection.

The projection of January 23, 1971, for 88 pots was

latest of a series of projections made by Kaiser by

utilizing a planning tool known as critical path method

(or CPM). The various inputs essential to the esti-

mate are programmed into a computer and the net

of these variables emerges as the milestone dates for

completion of particular phases of the work. One

important input is the anticipated efficiency of labor.

Kaiser developed an expected standard of labor effi-

ciency for the Noranda project. This projected stand-

ard which Kaiser estimates it will attain, is quantified

at 100%, and the efficiency actually achieved thereafter

is calculated as a percentage of that 100%. (A. 160-

163, 193, 215, 240, E. 382.)

Kaiser acknowledged, ‘‘All such conclusions . . .

depend on certain numbers of inputs. By varying the

input, of course, you can vary the conclusion’’ (A, 215).

Kaiser’s inputs into its CPM were demonstrably un-

sound based on the immense disparity between projec-

tions made and actually achieved.

Well before the millwrights’ July 30-August 13,

1970 strike, the first metal date had already been twice

revised, resulting in a total delay of two months and

three weeks to the latest date of January 23, 1971.

(A. 193-196, 216-217, E. 48) It is therefore perfectly

clear that there is nothing firm or infallible about

Kaiser’s first metal dates. The January 23, 1971 mile-

stone was of course not reached. First metal was not

attained until February 25, 1971, and then only on a

modified 88-pot basis (33 days late), and first metal on

the projected 174-pot basis was not attained until mid-

June 1971 (almost five months late). To ameliorate

the obvious lack of any rational cause-effect relation-

ship between an 11-day strike and a five-month delay,

Noranda ignored the failure to reach first metal on a

174-pot bk .sis until mid-June 1971, and acted instead

as if reaching first metal on an 88-pot basis February

25, 1971 was the achievement of its projected January

23, 1971 milestone. Through this sleight of hand it

reduced the delay to a more reasonable 33-day time

lag, making more palatable ascription of tie shorter

delay to the millwrights’ strike.

The unreliability of Kaiser’s CPM milestones is

further shown by the contrast between projected and

actual physical completion of the project. The June

30, 1970 CPM projected physical completion as of

March 1, 1971 (J 385, 387, A. 392), a four-month delay

(A. 219-220). But this revised date was not achieved.

Instead physical completion did not take place until

October 1, 1971 (E. 385, 387, A. 392). This seven-

month lag in completion could not rationally be as-

scribed to an 11-day strike. Indeed, as of June 30,

1970 (before the strike) completion was 20% behind

schedule; it was still 20% behind schedule as of No-

vember 30, 1970 (after the strike) (A. 219-220, 226-

227).

Yet another measure of the unreliability of the

JPM is the enormous cost overrun in the construction

of the smelter. Originally scheduled to be $85,000,000,

the cost actually came to $107,000,000, an overrun of

$22,000,000 (A. 476, 482). A cost error of this magni-

tude, of which even plaintiff sought to ascribe less

than 5% to the millwrights’ strike, plainly demon-

strates that Kaiser’s estimates of variables were seri-

ously deficient.

b. Labor Inefficiency, Parti ilarly Among the Electricians.

and Resulting Overtime.

As already noted, an important input into Kaiser’s

CPM projection is the expected standard of labor

efficiency. Kaiser admitted that the level actually

attained was ‘‘considerably below’’ its projection (A.

216); its progress report for June 1970 succinctly

stated, ‘‘The major portion of this increase in costs

ean be directly traced to the inefficiency of labor’? (A.

843).

Kaiser’s overestimation of labor efficiency was vast.

As of June 30, 1970, it reduced its expected cumulative

attainment of labor efficiency from 100% to 60%, and

later again reduced it to 52% (A. 409, 458-459, 509-

510). But its actual known attainment of cumulative

labor efficiency did not exceed 48.6% (KE. 382).

The cause-effect relationship between labor ineffi-

ciency and recourse to overtime to overcome it can be

concretely pinpointed. For Kaiser’s own reports show

in detail that it was primarily the inefficiency of the

electricians which eventuated in the heavy incurrence

of overtime work. ‘‘... [T]he electrical work in general

was important throughout the plant because this is an

electrolytic plant. Electrical work is a major part of

the total project and the total cost of the project .. .”’

(A. 384). And the electricians were found to be parti-

cularly inefficient (A. 461, see also, A. 228, 239).

For example, in its June 30, 1970 project status

review Kaiser pinpointed the inefficiency of the electri-

cians as a principal source of difficulty:

‘‘At the February meeting we had stressed that

critical control dates could and would be met. The

first of these dates were for the rail unloading

facility, the preparation of cathode blocks, and the

mixing of cathode paste for potlining. Their

original schedules were legitimate. We did not

meet them because of delays due primarily to lack

of efficiency on the part of the electricians. For

the same reason the dates are still not achieved.’’

(KE. 821, A. 220, emphasis added).

The problem with the electricians did not abate.

Kaiser’s project status review of October 15, 1970,

particularized the situation as follows (E. 860, A. 222-

223).

‘In our July review we had expected that during

the latter stage of the program, we would be ex-

periencing a gradual improvement in efficiency of

labor; it had been assumed that even though effi-

ciencies were lower at the time, there would be a

sufficient period when productivity would be better,

such that the accumulated average would be 60%

for the entire project.

The following graph portrays that this has not

heen the case. During the months of August and

September, we have only attained 48% and 46%

respectively, much of this due to the extremely low

productivity of the electricians. With the expec-

tation that there will be no improvement, it is now

projected that the accumulated average for the

entire project will be 52%, 8% below the 60%

previously envisioned. (emphasis added).

In October 1970, in an effort to increase the pro-

ductivity of the electricians, the electrical subeontrac-

tor (Comstock-Roper) laid off 100 of its 400 eleetri-

cians, separating those electricians it considered ineffi-

cient (A. 411-412, 430-431). The method chosen to

make up for the production lost by this decrease in the

the force, was recourse to scheduled overtime (FE. 868,

878, A. 412). On November 9, 1970, Kaiser scheduled

the electricians, pipefitters, and supporting crafts to

work five 10-hour days per week, ten hours in excess

of the regular 40-hour work week (A. 382, E. 878, 904,

A, 227-228, 241, 245, 385-368) .°

c. The Laborers’ Strike.

The laborers engaged in a three-day strike on July

23, 24, and 27, 1970, which caused a total stoppage of

work on the project for its duration. As reported by

Kaiser on August 12, 1970, the 3-day laborers’ strike

resulted in a loss of 43,464 man-hours, as compared

with the loss of 110,000 man-hours resulting from the

ensuing July 30-August 13, 1970 millwrights’ strike

of eleven working days. (A. 355-356, 404-406, E. 135,

142). The laborers’ strike was thus more intensive in

daily man-hours lost than the millwrights’ strike and

accounted for more than 28.3% of the man-hours lost

in the combined laborers’ and millwrights’ strikes of

14 working days.

B. The Proceedings Below

l. The District Court

The complaint was filed on August 15, 1970 (the day

the strike ended) and was amended as to damages only

on April 10, 1971.4 The case was tried to the court

(Meredith, J.). On December 28, 1973, the Court en-

8 On December 10 or 14 scheduled overtime was extended to all

crafts, but on a reduced basis, all crafts now working a 48-hour

work week. (A. 384-386, 415-416). The scheduled overtime was

again reduced in early January 1971, a 45-hour work week,

(A. 385-386, 415-416), until February 25, 1971, when all crafts

reverted to a 40-hour regular work week, with overtime thereafter

limited to ‘‘some spot overtime’’ (A. 200-201, 386, 416).

4 Both of the complaints caleulated damages on the basis of

injury suffered during the strike; originally Noranda claimed

$30,000 per day (A. 16) which was raised to $167,781 per day in

the amended complaint (A. 19).

tered judgment for Noranda against both defendants

in the amount of $914,823.54. In its accompanying

findings of fact and conclusions of law it determined

that the strike violated § 8(b)(4)(D) of the LMRA

and that both defendants were responsible therefor.

The trial court’s findings on the damage issues were

extremely sparse. The court found that Kaiser had

made a pre-strike projection of first metal for 174 pots

as of January 23, 1971, then after the strike, re-

ducing it to 88 pots; but it did not discuss the

unions’ critique of the method by which either

projection was reached. It arrived at the amount

of damages by listing, without further explana-

tion, six categories of injuries which it found the

plaintiff suffered ‘‘as a result of [defendants’ illegal]

conduct”’ (1 21, p. 21a, infra), and totalling them (id.,

p. 22a).° The entire $690,090.10 in increased overtime

payment to the employees of Kaiser, Comstock-Roper

and fixed price subcontractors ‘‘during and as a result

of the strike’? was lumped together in a single sub-

paragraph (id., 1 (c)).° The court’s sole discussion

of the unions’ objection to the damage claim and par-

ticularly to being charged for the entire delay is con-

tained in the following two sentences: ‘They also con-

tend that the damages were partially caused by a three-

day strike of the laborers in July of 1970, that the

premium time of $295,290.00 paid to the electricians

was not caused by the strike. The Court rejects all of

these contentions.’ (p. 22a, infra).

* The court rejected plaintiff’s claims for prejudgment interests,

attorneys’ fees in this suit, and ‘‘loss of cash flow caused by the

strike over a period of twenty-two years in the sum of $551,574.15”’

(23, p. 22a, infra).

* Other categories also subsumed, without even identifyi

1 th

several contested items. a

2. The Court of Appeals

The Court of Appeals affirmed. In an opinion by

Mr. Justice Clark, the Court approved the liability

determinations (pp. 5a-6a, infra). The court noted

the uiion’s acquiescence in the allowances of some

items of damages and sustained, as not ‘“‘clearly erro-

neous’? the controverted awards on the items other

than overtime (pp. Ta-8a, infra, nn. 1-3).

The court observed that in suits under § 303 damages

‘cannot be proven with exacting detail and the

proof is therefore quite sufficient where the evi-

dence supports a just and reasonable approxima-

tion. Sheet Metal Workers, Local 223 vy. Atlas

Sheet Metal Co., 384 F.2d 101, 109 (5th Cir.

1967).’’ (p. 9a, infra)

For that reason, although ‘‘it is true that the trial

court did not spell out in meticulous detail each item

of damage’’ (id.), the trial court’s findings were

deemed sufficient. See id., quoted at p. 24, infra.

With respect to the union’s position that plaintiff

was not entitled to recover all the losses resulting from

the delay, because that delay was caused also by the

laborers’ strike and the inefficiency of labor, partic-

ularly the electricians, the Court of Appeals reached

the same result as the District Court, but by its own

line of reasoning. The Court of Appeals determined

that labor inefficiency may have, and the laborers’

strike certainly did contribute to the delay But it

concluded that ‘‘the overall method of calculating

the damages was eminently just and fair to the Unions

and that the total amount allowed was a reasonable

approximation of the amount suffered by Noranda”’

(p. 10a, infra), because the trial court calculated the

ey “9 —_—

delay on the basis of 88 pots on January 23, rather

than the prior projection of 174 pots’ on that date:

“Perhaps some of this delay was occasioned by

imefficient labor and certainly some was occasioned

by the 3-day laborers’ strike, but the point is that

the trial judge chose February 25, 1971, as the

cut-off date, when only 88 pots were completed.

If he had chosen the mid-June date, when all pots

were completed, perhaps the items that the Unions

now complain about, as well as some others, would

have some weight in the final calculations. We

believe, however, that the course pursued was cer-

tainly a most reasonable and fair approximation.

Indeed, if a later date had been chosen, making

allowance for the expedition afforded the 88-pot

project, and if the trial judge would have meticu-

lously caleulated the percentages as the Unions

suszest, we ag 4 red = damages would have

otalled a much higher figure.’”’ (Pp. 9a-10 -

phasis added).* . - “ daca

REASONS FOR GRANTING THE WRIT

I. The Decision Below Subverts the Congressional Intent in

Allowing Only Compensatory Damages Under the Labor-

Management Relations Act and Ignores Accepted Tort Prin-

ciples for Measuring Recovery for Injury to Economic In-

terests Caused by Violations of Federal Law.

A. By charging defendant unions for the entire loss

resulting from the delay in reaching 88 pots, although

[perhaps some of this delay was occasioned by in-

efficient labor and certainly some was occasioned by the

* The reference to ‘‘176 pots’’ in the opinion is an inadvertent

error.

®*The Court also rejected Noranda’s cross-appeal. The loss

of cash flow was described as ‘‘reminiscent of the Rube Goldberg

cartoons that graphically transposed speculation into fact by a

series of drawings depicting causes and effects.’’ (p. 10a, infra.)

Pe eee

3-day laborers’ strike’’ (p. 9a, fra), the court below

undermined the Congressional determination, given

foree in Teamsters Union vy. Morton, 377 U.S. 252,

that under § 303 of the LMRA a plaintiff may recover

only for damages proximately caused by a violation of

§ 8(b) (4). The decision below is also in square conflict

with a holding of the Second Circuit that in comput-

ing back pay in a ease arising under § 10(c) of the

same Act, which likewise authorizes only compensa-

tory awards, the Labor Board must apportion the em-

ployees’ losses so as to exclude those which they would

have incurred even absent the unfair labor practice.

T'rico Products Corp. v. N.L.R.B., 489 F.2d 347 (C.A, 2,

Friendly, J.). And while the decision’s most immediate

and obvious effect is in the labor field, its principle

necessarily extends to the entire range of federal stat-

utes which allow one party to recover monetary dam-

ages from another for injuries proximately caused by a

statutory violation. For, as this Court observed in

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419:

‘** * * where a legal injury is of an economic character,

‘[t]he general rule is, that when a wrong has been

done, and the law gives a remedy, the compensa-

tion shall be equal to the injury. The latter is the

standard by which the former is to be measured.

The injured party is to be placed, as near as may

be, in the situation he would have occupied if the

wrong had not been committed.’ Wicker v. Hop-

pock, 6 Wall. 94, 99 (1867).”’

Viewed in that broader context, the holding below is

contrary to the established principles of the law of

torts, and a series of decisions in which this Court

exhaustively considered the apportionment of dam-

ages. Those decisions avoided, but the court below

reached, ‘‘the one certainly unjust course of giving

the plaintiffs everything, because the defendants can-

not with certainty compute their own share’’ (L. Hand,

J., in Sheldon v. Metro-Goldwyn Pictures Corp., 106

F.2d 45, 51 (C.A. 2), affirmed and quoted with ap-

proval, 309 U.S. 390, 398).

B. In Teamsters Union v. Morton, 377 U.S. 252,

this Court unanimously held it to be the Congressional

judgment ‘‘reflected both in the language of the Fed-

eral statute and in its legislative history, that recovery

for an employer’s business losses caused by a union’s

peaceful secondary activities proscribed by § 303 should

be limited to actual, compensatory damages’’ (id. at

260, footnotes omitted). That language, as quoted by

the Court, is: ‘‘[w]hoever shall be injured in his busi-

ness or property ... shall recover the damages by him

sustained. ...”’ (td. at n. 15, this Court’s emphasis).

Thus, Morton “‘permit[s] recovery under § 303 of

damages suffered during a strike characterized by pro-

scribed secondary activity only to the extent that the

damages claimed were the proximate result of such

activity.’”’ Mine Workers v. Gibbs, 383 U.S. 715, 731,

n. 17.

The same ‘‘make-whole”’ principle of relief is estab-

lished by § 10(¢) of the Act which governs the remedial

powers of the Labor Board, see particularly Phelps

Dodge Corp v. Labor Board, 313 U.S 177, 197 and

other cases cited in Albemarle Paper Co. v. Moody, 422

U.S. 405 at 419.° Thus, questions of recovery under

the Labor-Management Relations Act are governed by

the same principles as federal statutes generally (see

® See also e.g., Republic Steel Corp. v. Labor Board, 311 U.S.

7 and Labor Board v. Carpenters Union, 365 U.S. 651, which, like

Morton (377 U.S. at 260-261) expressly reject punitive relief.

id. at 418-419 and p. 14 supra). Indeed, the question

raised in this case, of assessing damages proximately

caused by tortious conduct where some of the injury

suffered by the plaintiff is due to causes (be they tor-

tious or nowtortious) for which the defendant is not

legally responsible is familiar to the law of torts, and

that law, as we next show, requires apportionment in

a ease like the present.

In the seetion of his treatise entitled ‘‘Apportion-

ment of Damages’’, Dean Prosser declared:

‘‘Once it is determined that the defendant’s con-

duct has been a cause of some damage suffered by

the plaintiff, a further question may arise as to

the portion of the total damage sustained which

may properly be assigned to the defendant, as dis-

tinguished from other causes. The question is

primarily not one of the fact of causation, but of

the feasibility and practical convenience of split-

ting up the total harm into separate parts which

may be attributed to each of two or more causes.

Where a logical basis can be found for some rough

practical apportionment, which limits a defen-

dant’s liability to that part of the harm which he

has in fact caused, it may be expected that the divi-

sion will be made. Where no such hasis can be

found, and any division must be purely arbitrary,

there is no practical course except to hold the de-

fendant for the entire loss, notwithstanding the

fact that other causes have contributed to it.’’ ”

1° The analysis continues:

‘*The distinction is one between injuries which are reason-

ably capable of being divided, and injuries which are not.

* * * There will be obvious difficulties of proof as to the ap-

portionment of certain elements of damages, such as physical

and mental suffering and medical expenses, but such difficul-

ties are not insuperable, and it is better to attempt some rough

division than to hold one defendant for the wound inflicted

by the other. Upon the same basis, if two defendants each

The foregoing views were adopted by the American

Law Institute in Restatement of Torts, Second. See-

tion 433A, entitled ‘‘Apportionment of Harm to

Cuuses’’ provides:

‘*(1) Damages for harm are to be apportioned

among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining

the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be appor-

tioned among two or more causes.”’

The rule stated in § 433A was followed by the See-

ond Cireuit to require apportionment in determining

the amount of back pay due to employees who were

discharged for illegal reasons, but who would have

been laid off in any event in a reduction in force caused

by the employer’s loss of business. Trico Products

Corp. Vv. N.L.R.B., 489 F.2d 347 (C.A. 2). Judge

Friendly, writing for the Court, reasoned:

‘*The Administrative Law Judge was far more

convineing in finding that the unfair labor prac-

tice merely accelerated the layoffs. The situation

is the one, familiar in other contexts, ‘where a

part of the harm caused would clearly have re-

sulted from the innocent conduct of the defendant

himself, and the extent of the harm has been ag-

gravated by his tortious conduct ;’ in such instance

pollute a stream with oil, it is possible to say that each has

interfered to a separate extent with the plaintiff’s rights in

the water, and to make some division of the damages. It is

not possible if the oil is ignited, and burns the plaintiff’s barn.

“In general, it may be said that entire liability will be im-

posed only where there is no reasonable alternative.’’ Prosser,

Torts (4th ed., 1971), pp. 313-314, footnotes omitted, em-

phasis added.

the damages should be apportioned as between the

tortious and the innocent conduct. Restatement

of Torts 2d § 433A at 437.”’™

Reversing the Labor Board, the Court of Appeals held

that the discriminatees were entitled to back pay only

up to the date (to be determined on remand) ‘‘when

the employees would have been laid off in the absence

of’’ the protected activity which prompted their dis-

charge. Id. at 354.

Even as the discharge of the employees in Trico

‘‘merely accelerated the lay off’ of the discriminatees,

so the unions’ strike herein only aggravated the delay

which was caused by the laborers’ strike and the fail-

ure of the work force as a whole, and particularly the

electricians, to achieve the projected labor efficiency

standard. And so, even as the employer in Trico was

chargeable with only a portion of the employees’ wage

losses, so the Carpenters here should have been assessed

only for that portion of the excess costs resulting from

the delay which was attributable to the millwrights’

strike. Thus, the Eighth Cireuit’s refusal to require

apportionment of plaintiff’s damages in this case is in

square conflict with the Second Circuit’s decision in

Trico.

This apportionment principle has been uniformly

approved by this Court in a series of decisions arising

under the patent and copyright laws, culminating in

Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S.

390. There the principal question was stated to be

‘‘whether, in computing an award of profits

against an infringer of a copyright, there may be

an apportionment so as to give to the owner of the

11489 F.2d at 353; Judge Friendly’s quotation is from the

‘‘Comment”’ on § 433A(1) of the Restatement, set forth above.

attributable to the use of the copyrighted material

as distinguished from what the infringer himself

has supplied,’”’ (Jd. at 396).

Writing for a unanimous Court, Mr. Chief Justice

Hughes answered this question in the affirmative. He

found persuasive the precedents which had held that

where the infringed patent covers only a part of a ma-

chine and creates only a part of the profits, it is only

that portion which the plaintiff-patentee may receive

as damages for the enforcement so that he must, un-

less it is impossible to do so, make an apportionment

between the contribution of his patent and that made

by the defendants. Jd. at 402-405." Chief Justice

Hughes rejected the plaintiff’s reliance on the fact

that the defendants had been ‘‘found guilty of delib-

erate plagiarism’’, perceiving

‘no ground for saying that in awarding profits

to the copyright proprietor as a means of compen-

'? The leading patent cases are Westinghouse Electric & Mfg. Co.

v. Wagner Electric & Mfg. Co., 225 U.S. 604, and Dowagiac Mfg.

Co. v. Minnesota Moline Plow Co., 235 U.S. 641. In the latter case,

the Court held:

‘‘In so far as the profits from the infringing sales were

attributable to the patented improvements they belonged to

the plaintiff, and in so far as they were due to other parts or

features they belonged to the defendants. But as the drills

were sold in completed and operative form the profits result-

ing from the several parts were necessarily commingled. It

was essential therefore that they be separated or apportioned

between what was covered by the patent and what was not

covered by it, for, as was said in Westinghouse Electric & Mfg.

Co. v. Wagner Electric & Mfg. Co., 225 U.S. 615: ‘In such

ease, if plaintiff’s patent only created a part of the profits, he

is only entitled to recover that part of the net gains.’’’ 235

pany at 646, emphasis added, quoted in Sheldon, 309 U.S. at

sation, the court may make an award of profits

which have been shown not to be due to the in-

fringement. That would be not to do equity but

to inflict an unauthorized penalty. * * * ’’ (Id. at

405-406 )

So too, in the present case, an award of damages for

the entire loss caused by delay in reaching the 88-pot

target, where only some of that delay was caused by

the Carpenters’ strike, would ‘‘inflict an unauthorized

penalty’’ contrary to the policy of the Labor-Manage-

ment Relations Act, and the express teachings of

Morton, 377 U.S. at 260-261, see p. 15 supra.

In Sheldon and its predecessors apportionment was

required unless ‘‘the act of the defendant had made it

‘not merely difficult but impossible to carry the burden

of apportionment’ ’’ (Sheldon, 309 U.S. at 403, quoting

Westinghouse, 225 U.S. at 618).% This too, is ac-

cepted tort doctrine. As Prosser has written:

“The difficulty of any complete and exact proof

in assessing such separate damages has received

frequent mention in all these cases, but it has not

been regarded as sufficient justification for entire

liability. The emphasis is placed upon the logical

possibility of apportionment, and the distinct and

138 See also 309 U.S. at 404, describing Dowagiac, and id. at 398,

observing that the Court of Appeals had ‘‘fully recognize[d] the

difficulty in finding a satisfactory standard, [but had] decided

that there should be an apportionment and that it could fairly

be made’’.

Likewise, in Trico Products, p. 17 supra, the Labor Board was

directed to make an apportionment even though reconstruction of

when the employees would have been laid off necessarily involved

several ‘‘lines of inquiry’’, some of which Judge Friendly set

forth ‘‘as illustrative and not by way of limitation.’’ 489 F.2d at

354.

;

separate invasion of the plaintiff’s interests which

may be attributed to each cause.’’ “

This difficulty has been met, not by permitting the

plaintiff to recover from the defendant for all of its

injuries, even though he has not caused them, but by

relaxing the requirements of proof on the issue of

causation, so that ‘‘general evidence as to the propor-

tion in which the causes contributed to the result will

be sufficient to support a verdict.’’

This is but an instance of the rule which permits

‘‘just and reasonable approximation of the actual

amount of damages’’ where the nature of the injury

renders greater certainty impossible. The question

whether to apportion is one of law,"* and the answer,

as we have seen, depends on whether an apportionment

is logically possible. The rule of ‘‘just and reasonable

Prosser, Torts (4th ed., 1971), p. 318. See also id. at 317:

‘‘Evidence may be entirely lacking upon which to apportion

some elements of the damages, such as medical expenses, or

permanent disability, or the plaintiff’s pain and suffering;

but this never has been regarded as sufficient reason to hold

one defendant liable for the damage inflicted by the other.’’

Td. at 318.

*Comment d to § 434 of the Restatement of Torts, Second (p.

448) states:

‘‘The question whether the harm to the plaintiff is capable

of apportionment among two or more causes is a question of

law, and is for the decision of the court in all cases. Once

it is determined that the harm is capable of being apportioned,

the actual apportionment of the damages among the various

causes is a question of fact, which is to be determined by

the jury, unless the evidence is such that reasonable men

could come to only one conclusion.’’

See also the black letter law, particularly §§ 434(1)(b) and (2)

(b), id. p. 447.

approximation’? comes into play in resolving ques-

tions of fact—in ascertaining the amount of the plain-

tiff’s total loss, and in apportioning that loss among

causes."

Thus, when the court below invoked that rule to sus-

tain the trial court’s failure to apportion (pp. 9a-10a,

infra), it confused two separate and distinct lines of

analysis. The very case cited by the Court of Appeals

for permitting approximation in calculating damages

recoverable under § 303, Sheet Metal Workers Local

223 vy. Atlas Sheet Metal Co., 384 F.2d 101 (C.A. 5),

demonstrates that the trier is not thereby relieved of

the duty to separate losses which are caused by the

defendants’ violation and those which are not. For

there, the Court laid down ‘‘guidelines to aid the

District Court”’ in a new trial on the issue of damages:

‘‘Sinee section 303 is purely compensatory, all

elements of damages must be directly related to

or eaused by the unlawful secondary activity.

Thus, long distance telephone calls may be recov-

ered only if they are attributable to the picketing,

and salaries of employees who did not refuse to

work may be.recovered only to the extent that

these employees were rendered unproductive as a

result of the picketing.’’ (Jd. at 110.)

This, too, the decisions show. See, e.g., Sheldon, supra, 309

U.S. at 408:

‘*What we said in the Dowagiae Mfg. Co. Case [255 U.S. at

647] is equally true here,—that what is required is not math-

matical exactness but only a reasonable approximation. That,

after all, is a matter of judgment; and the testimony of those

who are informed by observation and experience may be not

only helpful but, as we have said, may be indispensable.

Equity is concerned with making a fair apportionment so that

neither party will have what justly belongs to the other.’

Thus, while the Fifth Cireuit did not use the word

‘‘apportionment’’, it made clear that as to each item of

claimed damage the trier may allow recovery only for,

and thus must determine, that portion which is attrib-

utable to the defendants’ tort. It is this method alone

which accords with the tort principles which we have

discussed and which avoids frustration of Congress’

policy that the § 303 remedy was provided ‘‘only to re-

store to people who have lost something because of boy-

cotts and jurisdictional strikes the money they have

lost.”? Sen. Robt. A. Taft, explaining § 393, 93 Cong.

Ree. 4858, quoted and treated as authoritative in Mor-

ton, 377 U.S. at 260, n. 16.

II. The Decision Below Creates an Unprecedented and Un-

sound Exception to éhe Specificity Requirements of Rule

52(a), F.R.Civ.P.

A. As shown in the Statement (p. 11, supra),

the District Court’s findings of fact were wholly

conclusory; the trier simply identified those ele-

ments of plaintiff’s damage claim which it accepted,

without specifying the factual basis for that conclu-

sion or even why it awarded the precise amount

claimed where that was in controversy. The Court’s

findings thus failed to comply with the unequivocal

requirement of Rule 52(a): ‘‘In all actions tried upon

the facts without a jury ... the Court shall find

the facts specially ....’’ Nevertheless, the Court of

Appeals affirmed some of those findings on the basis of

the ‘‘clearly erroneous’’ review standard of that rule.

See pp. Ta-8a, nn. 1, 2 and 3, infra. And it tacitly

accepted, see pp. 9a-10a infra, the Critical Path method-

ology on which all delay claims depended, although

the trial court had made no findings with respect to the

unions’ detailed challenge to the validity of that

method. The Court said:

‘‘While is is true that the trial court did not

spell out in meticulous detail each item of damage,

he did clearly find that each item was caused by the

illegal srike and that each was a just and reason-

able approximation of the actual amount of the

damages. The cases on claims of this type require

no more. Vulcan Materials Co. v. United Steel

Workers of America, 430 F.2d 446, 457-58 (5th

Cir. 1970), cert. denied, 401 U.S. 963 (1971).”’

(p. 9a, infra)

The Court of Appeals thereby carved out a special

rule for cases on claims ‘‘of this type’’—that is, suits

for damages under § 303 of the LMRA. This holding

should be reviewed because of its recurring importance

in suits under § 303, and because it is clearly mistaken.

The importance of the question can be readily per-

ceived. The amount of damages caused by a strike in

violation of § 303 will almost invariably be a subject of

controversy in such suits precisely because, as the Court

of Appeals observed, they ‘‘cannot be proven with ex-

acting detail’’ (id. p. 9a, infra), the union is not likely

to take the emplover’s claim on faith. Indeed, since

some Circuits have held that a Labor Board finding

that a violation of §8(b)(4) has been committed is

binding on the defendant in a suit under § 303,” the

amount of damages issue will often be the only matter

in controversy.

18 See Painters District Council 38 vy. Edgewood Contracting Co.,

416 F.2d 1081 (C.A.5); International Wire v. Loval 38, 475 F.2d

1078 (C.A.6), cert. denied, 414 U.S. 867; Paramount Transport

Systems v. Teamsters Local 150, 436 F.2d 1064 (C.A.9).

The Court of Appeals’ view that the ordinary re-

quirements of clarity and specificity in findings are

excused in suits under § 303 finds no support in the

single case which ‘it cited, Vulcan Materials Co. v.

United Steel Workers of America, 430 F.2d 446, 457-

458 (C.A. 5), cert. denied, 401 U.S. 963. For while

that case did arise under § 303, the sufficiency of the

findings was nowhere discussed in the Vulcan opinion;

that case was apparently cited because it reaffirmed

and quoted with approval the holding in Sheet Metal

Workers (see p. 22 supra) that damages may be deter-

mined on the basis of a just and reasonable approxi-

ration, following (as the Vulcan court noted) Story

Parchment Co. vy. Paterson Parchment Paper Co., 282

U.S. 255.”

Indeed, the decision below is in direct conflict with

two decisions in the Ninth Circuit which have vacated

damage awards in § 303 suits because the trial court

had not complied with Rule 52(a). Carpenters Local

1273 v. Hill, 398 F.2d 360 (C.A. 9); Plumbers & Fit-

ters, Local 761 v. Matt J. Zaich Const. Co., 418 F.2d

1054 (C.A. 9). As the Court said in the latter case:

‘‘when it is possible to prove damages by definite

caleulation, they should be proved in detail.

Christiansen v. Mechanical Contractors Bid De-

pository, 230 F. Supp. 186, 194 (D. Utah 1964).

Cf. Story Parchment Co v. Paterson Parchment

Paper Co., 282 U.S. 555, 562”’ (Id. at 1059)

This citation of Story leaves no doubt that the Ninth

Cireuit was fully cognizant of the rule that a ‘‘just

The only other damage determinations in Vulcan were that

attorneys’ fees for removing pickets may be recovered and that the

failure to mitigate damages defense was without merit.

and reasonable approximation’’ of damages is per-

missible. But that Court correctly declined to treat it

as an excuse for inadequate findings. For that rule

is but an exception—albeit one which is significant

and unquestioned—to the overriding principle that

‘‘damages may not be determined by mere speculation

or guess’’, as the Story opinion shows, 282 U.S. at 562.

Thus, the law does not regard imprecision in the cal-

culation of damages as inherently desirable. Approxi-

mation is permitted solely in order to allow the plaintiff

some recovery even though ‘‘the tort itself is of such

a nature as to preclude the ascertainment of the amount

of damages with certainty’’ (id.). Given the reason

for the rule, the award should be as exact as the cir-

cumstances will allow. Precision in the fact finding

process is essential to that end. If the inherent uncer-

tainty bears at all upon the degree of specificity which

findings should achieve, it call for greater care. For

then the findings perform the indispensable function

of setting the upper and lower limits of the damages

which the evidence can justify; only if that is care-

fully done can a range be determined within which an

approximation will be just and reasonable. Unless

the individual components of the damage award are

carefully examined neither the trier nor the reviewing

court can determine that the total is anything but

speculative, and that the plaintiff’s failure to prove

greater damages is due to uncertainties created by the

defendant rather than the inherent weakness of the

plaintiff’s claim.”

” One example will illustrate our point, and also demonstrate the

prejudice to the defendants in this case:

The Court of Appeals opined that if the trial judge ‘‘had

chosen the mid-June date when all pots were completed’’ rather

than the date when 88 pots were completed ‘‘and if the trial

While the importance of this issue for the adjudica-

tion of suits under § 303, and the conflict with the § 203

cases in the Ninth Circuit amply justify certiorari,

the impact of the decision will not readily be confined

to its immediate statutory context. To excuse noncom-

pliance with Rule 52(a) in computing damages because

these are subject to just and reasonable approximation

is to invite error, and to frustrate appellate review

wherever the inherent uncertainty in the amount gives

rise to approximation, most notably in the antitrust

field where Story and its progeny are in fullest flower.

judge would have meticulously calculated the percentages as the

Unions suggest, we dare say the damages would have totalled a

much higher figure’’ (pp. 9a-10a, infra). This is admittedly

surmise (‘‘we dare say’’) and thus impermissible. Moreover, it is

inherently unlikely. The 88-pot theory originated not with the

trial judge, but with Noranda; Noranda presumably would have

presented its claim on the basis of the delay in reaching 174 pots

if it had thought that a larger recovery ould thereby result. In-

deed, one of the Unions’ major objections to the CPM method

was that by stating its claim on the basis that 88 pots should

be reached on January 23, 1971, whereas that day wa. originally

the target for 174 pots, Noranda had camouflaged the utter im-

plausibility of ascribing a five-month delay in completion to an

11-day millwright strike. Neither the trial court nor the Court

of Appeals dealt with this or any of the other objections to the

CPM projection. Thus, the Court of Appeals excused the in-

sufficiency of the findings by assuming the answer to one of the

critical issues which those findings should have addressed—the

validity of the method which was the essential predicate of the

major component of the entire damage award.

CONCLUSION

For the foregoing reasons, this Petition for Certio-

rari should be granted.

Respectfully submitted,

WittiamM A. McGowan a

101 Constitution Avenue, N.W.

Washington, D.C. 20001

Morris J. LEVIN

S. SHELDON WEINHAUS

1125 Areade Building

812 Olive Street

St. Louis, Missouri 63101 A P P } ) N D I

GEORGE KAUFMANN ,

2101 L Street, N.W.

Washington, D.C. 20037.

Attorneys for Petitioners

APPENDIX A

Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 741467

No. 74-1562

Noranpa ALuminuM, Ivc.,

Appellee and Cross-Appellant,

Unrirep BroTHEerHoop OF CARPENTERS AND JOINERS OF

America, AFL-CIO, and Unirep BrorHernoop or

CARPENTERS AND JoINeRS or America, AFL-CIO,

Locau 618,

Appellants and Cross-Appellees.

Appeal and Cross Appeal from the United States District

Court for the Eastern District of Missouri

Submitted: March 10, 1975

Filed: January 5 1976

Before Gisson, Chief Judge, CLtark, Associate Justice,*

and Lay, Cireuit Judge.

Mr. Justice CLARK.

Appellants and cross-appellees, United Brotherhood of

Carpenters and Joiners of America, Ai'L-CIO (Carpenters’

International) and Local 618 of the United Brotherhood of

Carpenters and Joiners of America, AFL-CIO (Local 618)

appeal from a judgment in the amount of $914,823.34 re-

covered against them by appellee and cross-appellant,

Noranda Aluminum, Ine. (Noranda), a Delaware corpora-

tion. The recovery was based on a jurisdictional strike

* Associate Justice Tom C. Clark, United States Supreme Court,

Retired, sitting by designation.

called and maintained by the Unions at the construction

site of a primary aluminum smelter being built by Noranda

in New Madrid, Missouri, in 1970. Jurisdiction was laid

under § 303(b) of the Labor Management Relations Act of

1947, as amended, 29 U.S.C. § 187, and § 8(b)(4) thereof,

99 U.S.C. § 158(b) (4). The District Court found the strike

to be illegal under § 158(b) (4) (D) for which compensatory

damages were recoverable under § 303(b) but denied pre-

judgment interest, reasonable attorneys’ fees incurred in

the prosecution of the suit, and damages for the loss of

cash flow. We affirm the judgment.

The smelter was being constructed for Noranda under a

contract with Kaiser Engineers, Inc. (Kaiser), during the

period between March, 1969, and February, 1972, on a cost-

plus-fixed-fee basis. Kaiser had collective bargaining agree-

ments on a national basis with the international unions op-

erating in the building trades. Its contract with Carpenters’

International provided, among other things, that Kaiser

would work the hours, pay the wages, and observe the work-

ing conditions established or agreed upon by Carpenters’

International and the recognized bargaining agent in the

locality where the work was performed. The Carpenters’

International further agreed with Kaiser that ‘‘there will

be no stoppage of work or any strike of its members either

collectively or individually until said dispute or misunder-

standing has been referred to the International Office of

the Union and arbitrated between such International Office

of the Union and the Home Office Representative of the

employer.’’ Preparatory to beginning construction, pre-

job conferences and ‘‘mark up’’ meetings were held to de-

termine the jurisdiction of the various unions involved in

the project. Subsequently, Kaiser issued a ‘‘Summary

of Jurisdictional Agreements, Joint Board Decisions, and

Work Assignments,’’ which included a section on work

assignments that were still in dispute. With reference to

the latter, Kaiser assigned the work ‘‘in accordance with

the National Joint Board procedure’’ by utilizing local

and other practices in the trade. Under this section the

pipefitters were assigned ‘‘air lift systems,”’ ‘recovery

systems,’’ and ‘‘air operated gates and valves,’’ while the

millwrights were assigned ‘‘dry material chutes”’ and ‘‘ rack

and pinion gates.’’ However, the cover letter transmitting

this Summary provided that the assignments were subject

to change by agreement between the disputing trades.

The record indicates that a number of jurisdictional dis-

putes arose, of which some were settled by international

representatives, othc:s by business agents and stewards

A list of disputes between the millwrights and the pipe-

fitters was prepared by Kaiser in October, 1969, and in-

cluded such work assignments as ‘‘anode paste equipment od

“dry material chutes,’’ and ‘‘rack and pinion gates.”’ The

pipefitters’ claim to jurisdiction over the latter two areas

arose through an interpretation by the pipefitters of the

“systems”? used in the Kaiser assignment. The pipefitters

aaunes that ‘‘chutes and gates’’ were included within

‘systems’’ and insisted that such work be assigned to them

Kaiser subsequently made such a transfer on the under-

standing that the respective stewards of the disputing

unions had agreed upon a division of the work in dispute

along the line of the ‘‘St. Louis Agreement.’’? This agree-

ment provided that millwrights or pipefitters or both in-

stall equipment depending on the ‘‘system’’ in which the

item functioned, its relation to other equipment and simi-

lar factors. In late June, a jurisdictional dispute arose at

the smelter site despite Kaiser’s claim to have reached

the understanding with the stewards. Both Local 618

and Carpenters’ International deny that they agreed to be

bound by the ‘‘St. Louis’ rules, and all parties conclude

that this is the crux of the controversy.

In an effort to settle the dispute, a meeting was held on

July 8, 1970, among representatives of the Internationals

and the business agents and stewards of the two locals.

No agreement was reached, however, and the controversy

was referred to the ‘‘ Presidents’ Committee.’’ The ‘‘ Presi-

dents’ Committee’’ was established to resolve this type of

controversy. However, no action was taken either by the

Presidents’ Committee or the Joint Board toward the set-

tlement of the controversy. Kaiser, on the contrary, re-

ceived a telegram from the Joint Board, directing it to pro-

ceed immediately with its initial work assignment since

there was no agreement between the trades involved. Kai-

ser advised the Board that ‘‘any changes [it made] were

at the job steward level at the job site.’’ Kaiser insisted

that the dispute be submitted to the Joint Board for deci-

sion on the merits, but appellants refused. Likewise, the

contractor’s suggestions that the parties arbitrate as pro-

vided in the contract between Kaiser and Carpenters’ In-

ternational fell on deaf ears. As the District Court spe-

cifically found, the record shows that the Business Agent

of Carpenters’ Local 618 had his ‘‘instructions’’ from Car-

penters’ International. See Findings 11 and 12.

On July 29, one day before the strike began, Kaiser

agreed to temporarily halt work on the disputed items if

the Business Agent of the Carpenters’ Local 618 would

meet with the Business Agent of the Pipefitters the next

day. Kaiser issued the order and the pipefitters halted

work on the 29th but the millwrights did not. The proposed

meeting between the Business Agents was never held be-

cause the pipefitters’ Business Agent was in an earlier

scheduled business meeting, and the millwrights refused

to wait until that meeting was over. They would not

reschedule the proposed meeting. The pickets came on

the next day, July 30, and continued through August 13,

1970. The object of the strike ‘‘was to force Kaiser to

put millwrights on the rack and pinion gates and chutes

and to remove the pipefitters therefrom.’’ Both Kaiser

and the Joint Board requested the President of the Car-

penter’s International to instruct Carpenters’ Local 618

to remove the picket line but the request was ignored.

IL.

Appellant-Unions’ first claim is that the strike was not

a jurisdictional dispute but on the contrary was caused by

Kaiser’s ‘‘failure to honor his own contractual assignment

of work to which he has committed himself.’’ Cf. Highway

Truckdrivers, Local 107, 134 N.L.R.B. 1320 (1961). Ap-

pellant Unions say that Kaiser’s August 1969 ‘‘Summary’”’

obligated it to assign dry material chutes and pinion gates

to the millwrights. However, the 14-day work stoppage

here was the direct result of the conflicting jurisdictional

claims of the pipefitters and the millwrights over that work.

The situation fits like a glove the prohibition of § 8(b) (4)

(D), regardless of whom the ‘‘Summary”’ favored. The

nature of the conflict was the same and the opposing claims

resulting in the strike were just as intolerable. Hence the

resulting strike is illegal simply because ‘‘both groups

persist in laying claim to the disputed work.’’ Laborers Lo-

cal 116 (E & S Masonry, Inc.), 187 N.L.R.B. 482, 76 LRRM

1052, 1053 (1970). As Mr. Justice Black so well said as

to a similar situation in N.L.R.B. v. Radio & Television

Broadcast Engineers Union, 364 U.S. 573 (1961):

It is true, of course, that employers normally select

and assign their own individual employees according to

their best judgment. But here, as in most situations

where jurisdictional strikes oceur, the employer has

contracted with two unions, both of which represent

employees capable of doing the particular task in-

volved. The result is that the employer is placed in a

situation where the finds it impossible to secure the

benefits of security from either of the contracts, not

because he refuses to satisfy the unions but because the

situation is such that he cannot satisfy them.... We

therefore are not impressed by the Board’s solicitude

for the employer’s right to do that which he has not

been, and most likely will not be, able to do. At 582-

583.

Here, in addition, the contract was ambiguous on the point

which makes it the more imperative that the purpose of

§ 8(b)(4)(D) not be frustrated. International Brother-

hood of Carpenters v. C. J. Montag & Sons, 335 F.2d 216,

220 (9th Cir. 1964), cert denied, 379 U.S. 999. However, we

need not decide the matter on such a basis for here the

trial court judge found against appellant unions deciding

that a local agreement between the stewards of the com-

peting unions had superseded the Kaiser agreement under

the ‘‘Summary.’’ We cannot say on the record here that

this finding is clearly erroneous.

The Carpenters’ International also argues that it cannot

be held liable for the action of Local 618. But the under-

lying facts were decided against the Carpenters’ Inter-

national. The trial judge found that the strike was the

result of the joint effort of the Carpenters’ International

and Local 618. The record also shows that the Carpenters’

International, although kept fully informed of the situa-

tion, did nothing to prevent the strike. On the contrary,

during its progress, the International continually ignored

the pleas of Kaiser and the Joint Board to call it off.

We have made a careful examination of the record and

find that substantial evidence supports the findings, and we

cannot conclude that they are clearly erroneous. See,

Findings 4, 5,6 and 7; N.L.R.B. v. International Longshore-

men’s and Warehousemen’s Union, Local 10, 283 F.2d 558,

565-66 (9th Cir. 1960); International Brotherhood of Car-

penters v. C. J. Montag and Sons, 335 F.2d 216, 221 (9th

Cir. 1964), cert. denied, 379 U.S. 999 (1965) ; Truck Drivers

Local Union 728 v. N.L.R.B., 332 F.2d 693, 697 (5th Cir.

1964) ; International Brotherhood of Electrical Workers

v. N.L.R.B., 181 F.2d 34, 38 (2d Cir. 1950), aff’d, 341 U.S.

694, 704 (1951).

ITI.

Finally, appellant-Unions attack the award of damages

as being totally unconnected to the strike and not caleu-

lated with reason and fairness. They downgrade the

Kaiser estimates. Those estimates were prepared at the

insistence of Noranda and base recovery on a comparative

study between the time the project should have been com-

pleted without the strike and the actual time it took with

the strike [C.P.M.]. They criticize the inclusion of certain

elements in these computations, such as the time to attain

‘*first metal’’ (January 23, 1971), the estimates of labor

efficiency, and the failure of Kaiser to give any weight

whatsoever to other significant events claimed to bear di-

rectly on the delay encountered.

We have carefully considered each of these claims.

Noranda’s final construction cost was $22 million over its

original estimate of $85 million. It employed a task force

of Kaiser professional personnel to determine the damages

suffered because of the carpenters’ strike. The experts

came up with a number of damage items, summarized in

Noranda’s Exhibit 80, wi. .: include: cost directed at

stopping the strike and picketing; railway demurrage, truck

detention, warehousing costs, and rehandling expenses;

construction and office equipment losses; salaries and util-

ity overhead paid to cost-plus-fixed-fee contractors; start-

up losses; and, the largest item, $693,090.10, covering pre-

mium payments of working manhours lost during, or as a

result of, the strike. The court denied recovery of pre-

judgment interest, attorneys’ fees, and loss of cash flow.

A judgment was entered for $914,823.54 covering the other

items above listed.

The appellant-Unions acquiesce in some of the allowances

of the trial judge, including: (a) salary and expense

amounts and ati orneys’ fees directed at stopping the strike;

(b) railway car demurrage, truck detention, warehousing

costs, ete., except for $9055'; (c) rental and depreciation

1 Appellant-Unions contest an item of $9055 of these costs result-

ing from ‘‘the unloading of bus materials on the ground at the

Noranda site.’’ The evidence as to it is not crystal clear.

costs of construction and office equipment, except two items

(office equipment overhead loss, $5345.33, and builders risk

‘nsurance premium, $2719.537; (d) salaries and utilities

overhead paid to cost-plus-fixed-fee contractors; and (e)

35.5 per cent * of construction and raw material costs in-

curred to minimize start-up delay and utility overhead pay-

ments for a trained production staff that was forced to re-

main idle for 33 days.

The Unions dispute item (c) of the trial judge’s findings

on damages which includes increased overtime premium

payments to work manhours lost by the craft construction

employees of Kaiser Engineers, Comstock-Roper, and fixed-

price subcontractors. Appellant-Unions break it down into

two parts: $626,361 ascribed to work performed for Kaiser

and Comstock-Roper, the electrical subcontractor, and over-

time in the sum of $66,729.10 ascribed to work performed

for fixed-price contractors. In essence the appellant-

Unions say that this extra cost is attributable to the in-

efficiency of labor and a three-day strike of laborers which

shut down work on July 23, 24, and 27, 1970. They, there-

fore, acquiesce in only 35.5 per cent of this item on the

same ground as in item (f).

Section 303(b) provides for the recovery of ‘‘damages

sustained and costs of suit’? in cases involving illegal

jurisdictional strikes. This includes all actual compensa-

tory damages. Teamsters Local 20 v. Morton, 377 U.S. 252,

2 Appellant-Unions reduce the ‘‘office equipment overhead loss’’

to the period of 15 days during which the strike lasted. Obviously

the strike caused a longer period of delay than the 14 days it ac-

tually existed, and we cannot say that the 30 days allowed was

clearly erroneous. The same is true as to the builders risk insur-

ance premium.

3 Appellant-Unions say that 64.5 per cent of this item is attrib-

utable to other causes, 7.e., 54.8 per cent to labor in efficiency and

9.7 per cent to a 5-day laborers’ strike. The trial judge found to

the coutrary and on this record we cannot say the finding was

clearly erroneous.

260 (1964). Experience in this field clearly shows that

damages resulting from illegal jurisdictional strikes can-

not be proven with exacting detail and the proof is there-

fore quite sufficient where the evidence supports a just

and reasonable approximation. Sheet Metal Workers, Local

223 v. Atlas Sheet Metal Co., 384 F.2d 101, 109 (5th Cir.

1967). While it is true that the trial court did not spell

out in meticulous detail each item of damage, he did clearly

find that each item was caused by the illegal strike and that

each was a just and reasonable approximation of the actual

amount of the damages. The cases on claims of this type

require no more. Vulcan Materials Co. v. United Steel

Workers of America, 430 F.2d 446, 457-58 (5th Cir. 1970),

cert. denied, 401 U.S. 963 (1971).

The Unions’ major criticism centers on Noranda’s reli-

ance upon Kaiser’s CPM method of computation which pre-

dicted January 23, 1971, as first metal date. In fact it was

not reached until February 25, 1971. But the Unions over-

look entirely the fact that this date was only first metal

date on a modified basis of 88 pots, barely 50 per cent

of the original projection. In calculating the damages the

court accepted this date which only permitted a 33-day

delay time when in fact it would have been much longer

for the entire 176 pots called for in the specifications. In-

deed, ‘‘total metal date’’ was not made until mid-June,

1971, almost five months later than originally projected.

Perhaps some of this delay was occasioned by inefficient

labor and certainly some was occasioned by the 3-day

laborers’ strike, but the point is that the trial judge chose

February 25, 1971, as the cut-off date, when only 88 pots

were completed. If he had chosen the mid-June date, when

all pots were completed, perhaps the items that the Unions

now complain about, as well as some others, would have

some weight in the final calculations. We believe, however,

that the course pursued was certainly a most reasonable

and fair approximation. Indeed, if a later date had been

chosen, making allowance for the expedition afforded the

10a

88-pot project, and if the trial judge would have meticu-

lously calculated the percentages as the Unions suggest,

we dare say the damages would have totalled a much

higher figure. We, therefore, conclude that the overall

method of calculating the damages was eminently just and

fair to the Unions and that the total amount allowed was

a reasonable approximation of the amount suffered by

Noranda.

IV.

On Noranda’s cross-appeal, we find that the trial judge’s

conclusion was also correct. The claimed depiction of cash

flow or profit is reminiscent of the Rube Goldberg cartoons

that graphically transposed speculation into fact by a

series of drawings depicting causes and effects. Likewise,

to award prejudgment interest would have been to run

contra to the prevailing rule. Here the damages were un-

liquidated and could not be ascertained prior to judgment.

It is claimed that a majority of the money expended by

Noranda was paid out by November 1, 1970. However, the

greater part of the damage suffered was in the premium

payments made for overtime which occurred between

November 9 and February 25, 1971.

As to the attorney fees, we do not feel that Noranda

brings itself within the class of exceptional cases warrant-

ing the allowance of fees as a punitive measure or for

reasons of justice. While the action of the Unions was not

in the best tradition of the trades, we feel that it would

be untoward for us to upset the considered judgment of

the trial judge who lived through the matter in all of its

stages.

The judgment is therefore affirmed.

lla

APPENDIX B

Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIL.CUIT

SerTeMBER Term, 1975

No. 74-1467

Noxanpa ALuminum, Inc.,

Appellee,

Vv.

Unitrep BrorHerHoop oF CARPENTERS AND JOINERS OF

America, AFL-CIO, anp Unirep Brotnernoop or Car-

PENTERS AND Jorners or America, AFL-CIO, Locat 618,

Appellants.

No. 74-1562

Noranpa ALuminuM, INc.,

Appellant,

Unitep BrorHerRHoop oF CARPENTERS AND JOINERS OF

America, AFL-CIO, anp Unrrep BrotHEerHoop or Car-

PENTERS AND Jotners Or America, AF'L-CIO, Locat 618,

Appellees.

Appeals from the United States District Court for the

Eastern District of Missouri.

These causes came on to be heard on the record from

the United States District Court for the Eastern District

of Missouri and were argued by counsel.

On Consideration Whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in these causes be and the same is hereby af-

firmed.

January 5, 1976

12a

APPENDIX C

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1975

74-1467

Noranpa ALuminuM, INc., Appellee,

Unitrep Brotuernoop or CARPENTERS AND JOINERS OF

America, AFL-CIO, et au., Appellants.

74-1562

Noranpa ALuMINuM, INnc., Appellant,

Unrrep BrotuEernoop or CARPENTERS AND JOINERS OF

America, AFL-CIO, er au., Appellees.

Appeals from the United States District Court

for the Eastern District of Missouri

Petition of appellee-appellant, Noranda Aluminum, for

rehearing filed in this cause having been considered, it is

now here ordered by this Court that the same be, and it is

hereby, denied.

February 17, 1976

13a

APPENDIX D

Findings of Fact and Conclusions of Law of the District Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 72 C 33 (1)

Noranpa ALuminuM, Inc.,

Plaintiff,

Vv.

Unrrep BrorHerHoop or CARPENTERS AND JOINERS OF

America, AFL-CIO, anp Unitep BrorHernoop or Car-

PENTERS AND Jorners OF Amenica, AFL-CIO, Loca.

No. 618,

vefendants.

FINDINGS OF FACT

(Filed in U.S. District Court December 28, 1973)

1. Noranda Aluminum, Inc. (hereinafter referred to as

‘‘Noranda’’), is a domestic wholly-owned subsidiary of

Noranda Mines, Ltd., a foreign corporation (which in the

course of the proceedings herein agreed that all its claims,

if any, against defendants are merged with plaintiff's

claims and that it would be bound by these proceedings

and the findings and judgment of this Court.)

2. Noranda was incorporated in Delaware in 1968 to

establish and operate a 200-acre primary aluminum smelter

in New Madrid County, Missouri.

Noranda entered into a contract with Kaiser Engineers,

Ine. (hereinafter referred to as ‘‘Kaiser’’), for the engi-

neering design and construction of its smelter on a cost-

plus-fixed-fee basis.

l4a

The contract called for the design and construction of a

smelter consisting of 174 reduction cells or ‘‘pots’’ with a

capacity of 70,000 tons per year production of primary

aluminum.

3. Under the contract between Noranda and Kaiser, the

employment of all subcontractors and building and con-

struction trades employees, as well as the work tasks to be

performed by those subcontractors and employees, were

to be and were performed and determined by Kaiser.

In the performance of its contract with Noranda, Kaiser

set up a field construction staff at the site in New Madrid

County, Missouri, to manage, direct, and support direct

construction activities. This construction staff assigned

work to and supervised the work performed by the labor-

ers, pipefitters, painters, teamsters, teamster operators,

operating engineers, surveyors, boilermakers, cement ma-

sons, carpenters, millwrights, and iron workers directly

employed by Kaiser, as well as the electricians employed

by Kaiser’s electrical subcontractor, Comstock-Roper, and

other subcontractors employed from time to time by

Kaiser. .

4. Pursuant to its collective bargaining agreements with

international building and construction trades unions,

Kaiser conducted a pre-job conference at the construction

site in February 1969, before actual construction activities

began. At this meeting, attended by both international

and local representatives of the various trades involved in

the work, Kaiser agreed to observe the terms and condi-

tions of employment established by the various trades in

the Southeast Missouri building trades area.

5. Pursuant to its collective bargaining agreements with

the respective international building and construction

trades unions, Kaiser obtained craft employees using the

local labor organizations of the respective internationals

as a hiring hall source for employment and first construc-

tion activities began in March 1969.

l5a

6. In July 1969, Kaiser held several ‘‘mark-up’’ meet-

ings to review local area and trade practices with respect

to the assignment of work among the trades in the con-

struction of the smelter. At these meetings, attended by

both international and local representatives of the various

building and construction trades, claims to particular work

performance and items of equipment were asserted by the

respective international and local representatives. Fol-

lowing these meetings, and on August 25, 1969, Kaiser

issued a Summary of Work Assignments to the interna-

tional and local union representatives in attendance at the

July 1969 meetings.

7. Kaiser’s August 25, 1969, Summary assigned certain

**systems’’ in the various facilities comprising the alumi-

num smelter to pipefitter members of the United Associa-

tion of the plumbing and pipefitting industry of the United

States and its Local Union No. 562. The Summary as-

signed to millwright members of the United Brotherhood

of Carpenters and Joiners of America and its Local 618

certain equipment items known as dry material handling

rack and pinion gates and dry material handling chutes;

in the case of the latter equipment items, the assignment

was in terms of a local ironworker-millwright agreement.

8. In late June 1970, Carpenters Local 618 representa-

tive, J. D. Morris, complained to Kaiser that pipefitters

were performing work on rack and pinion gates and mate-

rial handling chutes that had been assigned to millwrights

in the August 25, 1969 Summary. On July 8, 1970, inter-

national and local representatives of the millwrights and

pipefitters met with Kaiser to discuss the dispute. Failing

agreement the international representatives involved

agreed and informed Kaiser that the dispute would be

referred for determination by a special joint committee

established by the United Brotherhood of Carpenters and

the United Association to resolve jurisdictional disputes

between the trades without resort to the procedures of the

16a

National Joint Board for the settlement of jurisdictional

disputes. On July 16th, however, the United Brotherhood

also complained to the National Joint Board.

9. In November 1969 and January 1970, Ray Brown, the

millwright steward, informed Kaiser that he and United

Association Local 562 steward, DeWeese, had worked out

an arrangement covering the installation of rack and pin-

ion gates and material handling chutes which would cause

‘‘no problems’’ on the Noranda job. Other such arrange-

ments in the past had been worked out between various

crafts on the job from time to time.

10. The millwrights and pipefitters continued to work on

rack and pinion gates and material handling chutes at the

Green Carbon Plant in the period July 3-July 28, 1970.

11. At some time before July 28, 1970, Carpenters Local

618 business representative Morris, a representative of a

carpenter type of local who did not know or understand

millwright work, contacted Frederick Bull, the General

Executive Board member of the United Brotherhood, who

had been assigned by the United Brotherhood to advise and

assist Morris as the international union’s jurisdictional

expert on millwright work. Morris described to Bull the

work activities, as reported by Brown, being performed by

pipefitters on rack and pinion gates and chutes at the

Green Carbon Plant. On the basis of Morris’ descriptions,

Bull informed Morris that pipefitters were performing

work on gates and chutes at the Green Carbon Plant that

belonged to millwrights under the August 25, 1969, assign-

ments and in accordance with the claims of trade autonomy

contained in the Constitution of the United Brotherhood of

Carpenters.

12. On July 28, 1970, Morris confronted Al Gordon, a

representative of Kaiser’s labor relations department in

charge of the handling of jurisdictional disputes, and

demanded that Kaiser take pipefitters off the work they

17a

were then performing on gates and chutes at the Green

Carbon Plant and place millwright members of the United

Brotherhood of Carpenters and its Local 618 on the work;

Morris stated that he had talked with the International

and had his instructions. At the time of this conversation,

neither Morris nor the United Brotherhood of Carpenters

nor millwright steward Brown, upon whose observations

the demand was based, were aware that millwrights, in fact

were performing final installation work on Green Carbon

Plant gates and chutes or that they had been doing so since

July 3, 1970, along with pipefitters. Morris however, de-

manded the removal of pipefitters from the work and re-

quested Gordon to contact the General Office of the United

Brotherhood of Carpenters concerning Morris’ instructions

Gordon then telephoned the General Office of the United

Brotherhood of Carpenters and talked with Jimmy Jones

the assistant to General President Hutcheson and the

United Brotherhood’s international representative in

charge of its jurisdictional office. Jones, as had General

Executive Board member Bull on several occasions in the

past, demanded that Kaiser take pipefitters off the work

they were then performing on Green Carbon Plant gates

and chutes and replace them with millwrights, threatening

trouble on the job if Kaiser did not comply with Jones’

demand. Jones then instructed Morris, in the hearing of

Gordon, that if Kaiser did not remove pipefitters and re-

place them with millwrights on the disputed work, Morris

had authority to exercise his prerogative, which included a

strike and picket line under the provisions of the United

Brotherhood’s Constitution for job or shop strikes.

13. As of the July 28, 1970, meeting between Gordon

and Morris, Kaiser had not received any determination

of the dispute between the United Association and the

United Brotherhood of Carpenters from the special jur-

isdictional committee of those two internationals to which

the dispute had been referred on July 8, 1970, and had

received no job decision from the National Joint Board

18a

for the settlement of jurisdictional disputes with regard

to the dispute between United Association and the United

Brotherhood. Gordon explained to Morris that in the

absence of any determination from either the special juris-

dictional committee or the National Joint Board, Kaiser

could do nothing to change the way in which work on

rack and pinion gates and chutes was then being per-

formed by both pipefitters and millwrights other than

to direct discontinuance of all work on rack and pinion

gates and chutes at the Green Carbon Plant. Gordon then

informed Morris that United Association Local 562 busi-

ness representative Steska would be at the jobsite for

another jurisdictional meeting on July 29, 1970, and at that

time Gordon would attempt to set up a meeting between

Steska and Morris in an effort to resolve the problem at

the local level. Morris agreed to meet with Steska, which

to that date he had refused to do, because the dispute was

pending before the international’s special jurisdictional

committee. Gordon issued instructions that neither pipe-

fitters nor millwrights were to perform any further work

on rack and pinion gates or chutes at the Green Carbon

Plant until after the proposed meeting between Steska

and Morris on July 29th.

14. Due to a mix-up in schedules, Morris did not meet

with Steska at the jobsite and refused to meet with Steska

at Morris’ home, since Morris had already informed the

other construction trades on the project that a strike and

picket line would oceur on July 30, 1970.

15. At the beginning of the workday on July 30, 1970,

members of the United Brotherhood of Carpenters and

members of the United Brotherhood of Carpenters Local

618 went out on strike and picketed the Noranda construc-

tion project. During the continuance of the strike and

picketing, both Kaiser and the National Joint Board re-

peatedly requested General President Hutcheson to direct

cessation of the strike and picketing and either adjust the

19a

dispute directly with the Uniited Association or by sub-

mission for decision to the National Joint Board. Although

General President Hutcheson could! easily have done so,

neither he nor the United Brotherhow4 of Carpenters at

any time attempted to bring a stop to the’.Stvike and picket-

ing. The picketing ended on August 13, 1979, following the

filing of the lawsuit in this case, and was bought to an

end by the instructions of Carpenters’ General’ Executive

Board member Bull. After the strike and picketing’ ended,

and in October 1970, the dispute over rack and pinion gates

and material handling chutes at the Green Carbon Plant W285

settled by agreement between Carpenters Local 618 repre-

sentative Morris and United Association Local 562 repre-

sentative Steska in a meeting attended by Carpenters’

General Executive Board member Bull, who regularly

attended such meetings in participation with Morris and in

order to advise and assist Morris. The resulting agree-

ment adopted the agreement between the St. Louis District

Council of the United Brotherhood of Carpenters and the

United Association Local 562, and provided that work on

rack and pinion gates and material handling chutes would

be performed by pipefitters and millwrights in exactly the

= way it was performed in the period July 3-July 28,

16. As of July 30, 1970, construction craft manpower,

consisting of the employees of Kaiser, the employees of

Comstock-Roper, and the employees of ten fixed-price sub-

contractors actively at work on the project, was at its peak

of about 1,386, As of this date, with the physical areas of

many of the facilities more than fifty percent complete, con-

struction activities on plant areas critical to first metal and

Noranda’s start-up of production were on schedule for the

first smelting of primary aluminum on January 23, 1971.

Taking into account the twenty-five strike interruptions

which preceded the July 30th strike and the fifty-seven

percent level of productivity of all crafts employed on the

project, the status of construction activities and the sched-

20a

uled manning were timely to the start-up and operation of

174 pots by Noranda on January 23, 1971, and, for these

purposes, Noranda was in the process of training a produc-

tion staff for first operations.

17. When the strike began on July 30th, and through

the date of its discontinuance at the end of the workday on

August 13, 1970, painters, cement masons, carpenters, mill-

wrights, ironworkers, and boilermakers refused to cross the

picket line and perform any work. Following termination

of the strike and picketing on August 13, 1970, the con-

struction work forces were not remobilized and reorganized

to their pre-strike levels until August 27, 1970.

18. Kaiser made a detailed study of the effect of the

strike’s interruption and impact on the construction

schedule and the first metal date of January 23, 1971, which

would have occurred but for the strike interruption of J uly

30th. This study, completed about October 1970, showed

that as a result of the man-hours lost during the period

of the strike and picketing and the remobilization and reor-

ganization following it and the impact of (hose work losses

on schedule, first metal on the basis of the original plan of

174 pots could not be reached until October 1971, a delay

of nine months in Noranda’s start-up.

19. In order to minimize its delay in getting into produc-

tion, Noranda accepted the recommendation of Kaiser to

begin production with 88 pots and without the use of the

planned Green Carbon, Anode Press and Metal Services

Areas.

20. An overtime program implemented following the

July 30-August 13, 1970, strike and picketing succeeding in

limiting the delaying effect of the strike to thirty-three

calendar days for first metal on this modified 88 pot basis

without the Anode Press, Green Carbon and Metal Services

Area.

21. However, by reason of defendants’ wrongful and

2la

illegal conduct in striking and picketing for the objective

of forcing a work assignment, and as a result of such con-

duct, plaintiff suffered injuries in the following amounts:

(a) $13,534.23 incurred and paid in salary and ex-

pense amounts and attorneys’ fees for activities

directed te bringing a stop to the strike and picketing;

(b) $25,147.15 in railway car demurrage, truck de-

tention, warehousing costs, and material rehandling

costs, all as a result of the strike and picketing and the

unavailability of craft labor forces to unload or receive

railway cars and truck trailers;

ments to work the man-hours lost by the craft construc-

tions employees of Kaiser Engineers, Inc., Comstock-

Roper, and fixed price subcontractors during and as a

result of the strike and in an effort to limit the impact

and effects of the strike and picketing;

(d) $31,752.47 fer the rental and depreciation costs

of construction and office equipment required to be

kept on the job an additional 33 calendar days as a

result of the strike and picketing, which was the last

work interruption on the job;

(e) $57,216.15 in salaried and utilities | overhead

paid to cost-plus-fixed-fee contractors required to be

kept on the job an additional 33 calendar days because

of the strike and picketing, which was the last strike

and picketing or work interruption on the job;

(f) $94,083.44 consisting of $35,566.00 in additional

construction and raw material costs incurred to mini-

mize start-up delay and to limit the impact of the strike

and picketing on production start-up to 33 calendar

days and $58,517.44 in salaried and utility overhead

payments for a trained production staff forced to re-

main idle and non-productive because of the 33 calendar

day delay in start-up caused by the strike and picket-

mg;

22a

The total of these amounts is $914,823.54 and a judgment

will be entered for the plaintiff and against both defendants.

22. Defendants particularly contend that the interna-

tional union should not be held liable for any amount be-

cause they did not call the strike. They also contend that

the damages were partially caused by a three-day strike of

the laborers in July of 1970, that the premium time of

$295,290.00 paid to the electricians was not caused by the

strike. The Court rejects all of these contentions.

23. The plaintiff asks for additional damages of inter-

est on the damages from the time incurred to the date of

judgment; attorneys’ fees on the bringing of this suit in a

reasonable amount; loss of cash flow caused by the strike

over a period of twenty-two years in the sum of $551,574.15.

The Court rejects all of these contentions.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of this cause under section

303 of the Labor Management Relations Act of 1947, as

amended, 29 U.S.C. 187.

2. The plaintiff, Noranda, has standing to bring this law-

suit for injuries to it by reason of violation of section 8(b)

(4)(D) of the Labor Management Relations Act, 29 U.S.C.

158(b)(4)(D).

3. The United Brotherhood of Carpenters and Joiners of

America, AFL-CIO, and the United Brotherhood of Car-

penters and Joiners of America, AFL-CIO, Local No. 618

are labor organizations within the meaning of 29 U.S.C. 152.

4. From the beginning of construction activities by

Kaiser on the Noranda smelter through the completion of

those activities in February 1972, representatives of the

United Brotherhood of Carpenters and Joiners and repre-

sentatives of the United Brotherhood of Carpenters and

Joiners Local 618 acted jointly and in concert with regard

23a

to all matters of work jurisdiction under the collective

bargaining agreement between the United Brotherhood and

Kaiser and the trade autonomy claims of the United

Brotherhood. siuce the International and Local acted in

concert, they are responsible for the conduct not only of

their own agents but of each other’s agents. Vulcan

Materials Co. v. Steelworkers, 430 F.2d 446 (5th Cir. 1970).

5. On July 28, 1970, the assistant to the General Presi-

dent of the United Brotherhood of Carpenters, with full

authority to instruct and require obedience from Carpen-

ters Local 618, threatened Kaiser with trouble on the job if

Kaiser did not remove pipefitter members of the United

Association and United Association Local 562 from work

then being performed on rack and pinion gates and ma-

terial handling chutes on the construction site. At the same

time, the assistant to the General President of the United

Brotherhood of Carpenters, in no uncertain terms, advised

Carpenters Local 618 that if Kaiser did not replace pipe-

fitters with millwright members of the United Brotherhood

of Carpenters and Carpenters Local 618 on the disputed

work, Carpenters Local 618 was authorized to exercise its

prerogative, which included the establishment of a strike

and picket line under the provisions of the Constitution

of the United Brotherhood for job or shop strikes. By thus

provoking and instigating the strike and picketing which be-

gan July 30, 1970, United Brotherhood of Carpenters

through its assistant to the General President, is equally

liable with Carpenters Local 618 for the conduct of this

strike. Longshoremen’s Union v. Juneau Spruce Corp.,

189 F.2d 177 (9th Cir. 1951), aff’d 342 U.S. 237 (1952).

6. The strike and picketing which began July 30th and

lasted through August 13, 1970, was conducted under the

provisions of the Constitution of the United Brotherhood

of Carpenters covering assertions of Carpenters’ trade au-

tonomy and jurisdictional claims and the United Brother-

hood of Carpenters, at no time during the period July 30th

24a

—August 13th, took any of the steps readily available to it

to bring a stop to the strike and picketing. By this silence

and inaction, the United Brotherhood of Carpenters ac-

quiesced in and condoned the activity of Carpenters Local

618 at a time when there was full opportunity to prevent

such activity or bring a halt to its effects. United Brother-

hood of Carpenters is, therefore, liable as a principal actor

along with Carpenters Local 618. Local 984, 1BT v. Humko

Co., 287 F.2d 231 (6th Cir. 1961), cert. denied 366 U.S. 962

(1961).

7. Members of the United Brotherhood of Carpenters who

were not members of Carpenters Local 618 participated in

the strike and picketing activities and during the course of

the strike and picketing United Brotherhood of Carpenters

participated with and encouraged Carpenters Local 618 in

carrying out its strike and picketing activity. The United

Brotherhood, therefore, is liable to the same extent as is

Carpenters Local 618. Carpenters v. C. J. Montag & Sons,

Tnc., 335 F.2d 216 (9th Cir. 1964).

8. As of July 29, 1970, there existed a dispute between the

United Association and its Local 562 dnd the United

Brotherhood of Carpenters and its Local 618 over whether

pipefitter members of the United Association or millwright

members of the United Brotherhood were entitled to per-

form certain work for Kaiser on equipment items known

as rack and pinion gates and dry material chutes. The

United Association and United Association Local 562

claimed certain work on rack and pinion gates and chutes

in piping systems while the United Brotherhood of Carpen-

ters and Carpenters Local 618 claimed all rack and pinion

gates and chutes whether within or without a piping sys-

tem. In order to enforce their claim, the United Brother-

hood of Carpenters and Joiners and Carpenters Local 618,

through their respective officers, agents and stewards, en-

gaged in a strike and picketing from July 30, 1970 through

August 13, 1970, with the objective and purpose of forcing

25a

and requiring Kaiser to assign the work of installing rack

and pinion gates and dry material handling chutes to em-

ployees represented by the United Brotherhood and its

Local 618 rather than to employees working as pipefitter

members of the United Association and its Local 562. This

strike and picketing is an illegal jurisdictional dispute un-

der 29 U.S.C. 158(b)(4)(D) for which compensatory dam-

ages are recoverable under 29 U.S.C. 303. Carpenters v.

C. J. Montag & Sons, Inc., supra.

9. This project was originally scheduled to cost $85,000,-

000.00, but the cost overrun exceeded the scheduled cost by

approximately $22,000,000.00. Most of the overrun was

due to work stoppages and labor inefficiency. The plaintiff

Noranda has shown to a certainty that it sustained dam-

ages by reason of the illegal strike and picketing of the

defendants in violation of the collective bargaining agree-

ment between the United Brotherhood and Kaiser, upon

which agreement the plaintiff specifically relied in author-

izing Kaiser to perform construction activities on its

smelter. The fact that some of the amounts of damages

cannot be ascertained with certainty does not preclude re-

covery as to those amounts since the applicable measure of

' damages in a lawsuit of this kind is that of just and

reasonable approximation. Mason-Rust v. Laborers, Local

42, 435 F.2d 939 (8th Cir. 1970).

Dated this 28th day of December, 1973.

/s/ James H. Merepirn

James H, Meredith

United States District Judge

26a

APPENDIX E

Judgment of the District Court

Judgment

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 72 C 33 (1)

Noranpa ALuminuy, Ine., Plaintiff,

Vv.

Unirep BrorHERHOOD oF CARPENTERS AND JOINERS OF AMER-

ica, AFL-CIO, ann Unirep BrotHernoop or CaRPEN-

TERS AND Jotners or America, AF'L-CIO, Loca No. 618,

Defendants. |

JUDGMENT

(Filed in U.S. District Court December 25, 1973)

A memorandum dated this day is hereby incorporated in

and made a part of this judgment.

It Is Hereby Ordered, Adjudged, and Decreed that judg-

ment in the amount of $914,823.54 is granted to the plain-

tiff, Noranda Aluminum, Inc., and against both defendants,

United Brotherhood of Carpenters and Joiners of America,

AFL-CIO, and United Brotherhood of Carpenters and Join-

ers of America, AFL-CIO, Local No. 618. Plaintiffs’ costs

are assessed against both defendants.

Dated this 28th day of December, 1973.

/s/ James H. MerepitH

United States District Judge

27a

APPENDIX F

Statute and Rule Involved

Sections 8(b)(4)(D) and 303 of the Labor-Management

Relations Act of 1947, as amended, 61 Stat. 136, 73 Stat.

519, 29 U.S.C. §158(b)(4)(D) and § 187, provides as

follows:

§8(b) It shall be an unfair labor practice for a

labor organization or its agents * * *

(4)(i) to engage in, or induce or encourage any

individual employed by any person engaged in com-

merce or in an industry affecting commerce to en-

gage in, a strike or a refusal in the course of his

employment to use, manufacture, process, transport,

or otherwise, handle or work on any goods, articles,

materials, or commodities or to perform any serv-

ices; or (ii) to threaten, coerce, or restrain any

person engaged in commerce or in an industry af-

fecting commerce, where in either case an object

thereof is— * * *

(D) foreing or requiring any employer to assign

particular work to employees in a particular labor

organization or in a particular trade, craft, or class

rather than to employees in another labor organiza-

tion or in another trade, craft, or class, unless such

employer is failing to conform to an order or certifi-

cation of the Board determining the bargaining repre-

sentative for employees performing such work: * * *

§ 303:

(a) It shall be unlawful, for the purpose of this

section only, in an industry or activity affecting com-

merce, for any labor organization to engage in any

activity or conduct defined as an unfair labor practice

in section 8(b)(4) of this Act.

28a

(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 pro-

visions of section 391 of this Act without respect to

the amount in controversy, or in any other court hav-

ing jurisdiction of the parties, and shall recover the

damages by hii sustained and the cost of the suit.

Rule 52(a) of the Federal Rules of Civil Procedure

provides as follows:

52(a) Errecr. In all actions tried upon the facts

without a jury or with an advisory jury, the court

shall find the facts specially and state separately its

conclusions of law thereon * * * Requests for findings

are not necessary for purposes of review. Findings

of fact shall not be set aside unless clearly erroneous,

and due regard shall be given to the opportunity of

the trial court to judge the credibility of the witnesses.

* * * Tf an opinion or memorandum of decision is

filed, it will be sufficient if the findings of the fact and

conclusions of law appear therein. * * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.