The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.
DECISION AND ORDER ON DAMAGES
This is a suit for damages under Section 303 of the Labor
Management Relations Act of 1947, as amended (Title 29, United
States Code, § 187). On January 10, 1973, through a written
decision and order (352 F. Supp. 677), this court decided that
defendant, Local 627, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (hereinafter
"Local 627"), is liable to plaintiff for its provable damages,
if any, resulting from a strike which said defendant maintained
against plaintiff from June 17, 1971 through August 6, 1971. By
agreement, the issues of liability and damages had been
separated for trial,*fn1 and the damage question has now been
tried before the court, without a jury, on July 8, 1974 through
July 16, 1974. Proposed findings of fact and conclusions of law
have been filed by both parties.
The matter of damages is strongly contested, plaintiff
claiming over $416,000 and defendant conceding only about
$4,500 of specific out-of-pocket expenses clearly caused by
the strike. The main contest is over the claimed speculative
nature of plaintiff's asserted losses, it being clear that the
strike actually did prevent accomplishment of much work by
plaintiff on some 34 work days out of an eight-month
construction season, which was generally about the busiest and
most profitable season in the history of the industry in which
plaintiff is engaged. The courts have acknowledged that
precise calculation of damages is not possible in this
situation, but have also recognized that it would be
intolerable to pretend that substantial damages were not
suffered, or to let the party responsible
escape the obligation for reasonable indemnification for lost
profit, simply because determination of exactly what would
have happened but for the illegal strike cannot be positively
ascertained. See Abbott v. Local Union of Plumbers, No. 142,
429 F.2d 786 (5 Cir. 1970); United Steelworkers v. CCI Corp.,
395 F.2d 529 (10 Cir. 1968); Int. Union of Operating Engineers,
Local 653 v. Bay City Erection Company, 300 F.2d 270 (5 Cir.
1962); Osborne Mining Company, Inc. v. United Mine Workers,
279 F.2d 716 (6 Cir. 1960).
Having carefully considered the evidence adduced at the
trial herein on the issue of damages, as well as the scholarly
briefs and proposals submitted on behalf of the parties, the
court is as fully advised as possible and does make the
1. Plaintiff, Geo. E. Hoffman & Sons, Inc. (hereinafter
sometimes referred to as "Hoffman"), is a bituminous paving
contractor specializing in the patching, widening and
resurfacing of highways, roads and streets in the Illinois
counties of Peoria, Woodford, Tazewell, Fulton, McDonough and
2. 1971 was one of the best, if not the best, years in terms
both of weather conditions and work availability for
contractors performing the type of work engaged in by Hoffman
in the areas where Hoffman normally operates. The strike
period was an especially good period within the 1971 season
for performing such work, as well as for obtaining it.
3. Within the 91 1/2 days during the 1971 construction
season on which Hoffman did perform work, Hoffman produced
211,777 tons of asphalt for projects it had under contract.
Despite the strike, Hoffman's total sales in 1971 were
$5,514,089, which was the highest in its history to that time.
4. The strike of Local 627 caused failure of the Hoffman
organization to accomplish revenue-producing work on 34 work
days during the strike period, which but for the strike would
have been highly productive days.
5. During the strike period and but for the strike, Hoffman
would have made profit on over-the-counter sales of various
materials of $21,448.15.
6. As a result of the strike, Hoffman incurred certain
specific expenses, which it would not otherwise have
sustained, for space and equipment rental and utility charges
in the amount of $4,423.92.
7. Hoffman also incurred barge demurrage and barge pump
rental charges of over $12,500 on barges of stone which were
not unloaded until after the strike, but known reasonable and
possible steps could have been taken to have said barges moved
and unloaded during the strike, which would have saved at
least $9,500 in getting said stone to the place where it was
ultimately used. Accordingly, allowable damages on this item
of delayed stone delivery are limited to $3,000.
8. After and because of the strike, Hoffman was required to
perform certain preparatory work before construction work
could be resumed on projects that were in process at the
inception of the strike. The total labor cost necessary to
accomplish such preparatory work was $2,476.43.
9. Hoffman also suffered substantial expense in extra
charges for hauling "hot mix" after the strike on its project
near Princeville, Illinois, due to the election of C.A. Walker
Truck Lines, Inc. and Long Rock Co. not to resume this hauling
for Hoffman after the strike because they feared Teamster
grievances would be filed against them. The substitute trucker
charged Hoffman more. Though there may be substance to the
belief that the basic unfair labor practice herein of Local
627 was the impelling cause of this loss which Hoffman did
bear, there is no showing of efforts by Hoffman to collect it
from its subcontractors who apparently violated their prior
agreements for the hauling. Apparently neither Walker nor Long
Rock made any effort to perform its contract, and ...