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December 6, 1974


The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.


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 following:


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 Marshall.

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 ...

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