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holding that calculation of back pay is a question of fact
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Docket No. 56982.
Argued October 6, 1976 (Calendar No. 3).
Decided December 31, 1976. Rehearing denied 400 Mich. 953.
David N. Walsh (George Stone, of counsel) for plaintiffs.
Kermit G. Bailer, Corporation Counsel, and Anna J. Diggs and Linda D. Bernard, Assistants Corporation Counsel, for defendant.
The issue in this case is limited to the consideration of whether an unappealed determination by the Michigan Employment Relations Commission that plaintiff is not entitled to "back pay" for a determined unfair labor practice operates as collateral estoppel to the subsequent maintenance of a suit in circuit court to recover the same reimbursement as "damages" for breach of contract.
We hold that plaintiffs are barred from suing for "damages" under a breach of contract theory by the doctrine of collateral estoppel because the questions of fact necessary for determination of "damages" by the circuit court in this case would be identical to questions of fact already determined by the Michigan Employment Relations Commission in concluding "back pay" was improper in this case.
Accordingly, we uphold the circuit court and the Court of Appeals.
I — FACTS
This case was submitted to the Court of Appeals on an agreed statement of facts, in compliance with GCR 1963, 812.10. The Court of Appeals well summarized the pertinent facts as follows:
"Certain of the plaintiffs prior to 1970 were employed in various city departments where, pursuant to Ordinance 90-F and Ordinance 303-G, they were allowed a reduced work schedule of 35 rather than 40 hours per week. On July 17, 1970 the mayor of the City of Detroit ordered all employees to begin working 40 hours per week. This order was held in an action in the Wayne County Circuit Court to be ineffective because, under the ordinances, only department heads had the power to so alter the work schedule. A comparable order was subsequently issued by the appropriate department heads requiring these employees to work 40 hours for the same annual salary they had received for 35 hours of work per week.
"On August 24, 1970, many of the unions representing city employees affected by this change filed an unfair labor practice charge with the Michigan Employment Relations Commission. On December 28, 1970, a trial examiner rendered a decision and recommended issuance of a cease and desist order to compel the city to rescind its unilateral action, and also recommending that the employees' claim for back pay for the extra five hours per week be denied. On March 12, 1971, the full Michigan Employment Relations Commission affirmed the trial examiner's decision and order. The City of Detroit filed an application for leave to appeal to this Court which was denied. The affected employees and their unions made no effort to appeal the commission's decision.
"In July, 1973, 200 members of the Senior Accountants, Analysts and Appraisers Association brought a class action seeking to recover compensation for the extra time worked during the period of approximately nine months before the cease and desist order was entered. On February 19, 1974, the trial court granted defendant city's motion for a summary judgment accompanied by a letter to the attorneys indicating `that the defense of res judicata and/or collateral estoppel is valid for the reasons and grounds asserted by defendant city in its brief.'" 60 Mich. App. 606, 608-609; 231 N.W.2d 479 (1975).
On April 25, 1975, the Court of Appeals affirmed the trial court. Plaintiffs applied for leave to appeal. This Court granted leave on December 5, 1975.
The Court of Appeals noted:
"The grounds asserted in support of the motion were that the issues raised in the complaint were barred by a prior judgment. The motion should properly have been brought under the accelerated judgment provisions of GCR 1963, 116.1(5). Dunlap v Southfield, 54 Mich. App. 398, 399, 400; 221 N.W.2d 237 (1974)." 60 Mich. App. 606, 608, fn 1.
II — DISCUSSION
We granted leave in this case "limited to the consideration of this issue: Does an unappealed determination by the Michigan Employment Relations Commission, that plaintiff is not entitled to `back pay' for a determined unfair labor practice, operate as a collateral estoppel to the subsequent maintenance of a suit in circuit court to recover the same reimbursement as `damages' for breach of contract?"
In resolving this issue, it is essential that we keep in mind the precise questions of law and fact decided by the Michigan Employment Relations Commission (MERC) trial examiner. First, the trial examiner held, as a matter of law, that the city's unilateral increase of the work week to 40 hours "without notice and bargaining with the representatives of its employees violated § 10(a) and (e) of [the public employment relations act] PERA." Accordingly, the trial examiner recommended "the usual remedial order in such cases". This decision and order of the trial examiner was affirmed by the full Michigan Employment Relations Commission and is not in dispute in this appeal.
The order was to "require the city to cease and desist from unilaterally changing hours and other terms and conditions of employment of its employees without notice and bargaining with the collective bargaining representatives of said employees; restore the status quo by placing all employees whose hours were unlawfully increased back on the same work week which they were working prior to the unlawful increase in working hours; require the city to bargain collectively with the collective bargaining representatives of their employees with respect to hours and other terms and conditions of employment; and post appropriate copies of a notice to all employees, setting forth the terms of the recommended order herein."
Second, the trial examiner was asked by the charging parties "that the city be required to pay all employees affected by the increase in hours time and one-half for all hours worked between 35 and 40" as an additional remedial order to the order stated supra. Clearly, it was within the trial examiner's power to order such a "back-pay" remedy. As § 16(b) of the public employment relations act, MCLA 423.216(b); MSA 17.455(16)(b) provides in pertinent part:
"If upon the preponderance of the testimony taken the board is of the opinion that any person named in the complaint has engaged in or is engaging in the unfair labor practice, then it shall state its findings of fact and shall issue and cause to be served on the person an order requiring him to cease and desist from the unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act."
The trial examiner correctly noted that the legal test for determining whether a "back-pay" order (or monetary reimbursement) is appropriate is "whether or not the employee in question would have been paid absent the unlawful unilateral action". Hooker Chemical Corp, 186 NLRB No 49; 75 LRRM 1357 (1970). Applying this test to the case before him, the trial examiner made the following determinations of fact:
"The record in the instant case conclusively establishes that under the ordinances and the collective bargaining agreements applicable to employees working a 35 hour week, the practice has been that the pay week is computed on a 40 hour basis and no overtime is paid for work between 35 and 40 hours in a normal work week. The only exception to this policy and practice has been those instances where the employees involved worked a 35 hour week and were called in to work a sixth day of work. This exception to the policy of crediting overtime only for work in excess of 40 hours was designed to alleviate a hardship on employees required to work a sixth day without forcing them to work five hours without any compensation or compensatory time.
* * *
In the absence of any evidence to establish that under past practice, ordinance, or contract such payment has ever been made for the additional five hours work in a normal work week, or that such payment even could be made under existing city policy, the undersigned can find no basis for a reimbursement remedy herein. Therefore, the undersigned will refuse to recommend any monetary reimbursement or compensatory time as part of the remedy in this case."
The full MERC also affirmed this decision of the trial examiner. Furthermore, as mentioned in the facts, the affected employees and their unions made no effort to appeal the affirmance of the full commission.
Plaintiffs Senior Accountants, et al., then brought suit in circuit court against the city alleging breach of contract and asking the court to award damages "in an amount equal to five hours wages per, at overtime rates, for the full period they were forced to work 40 hours, plus interest at five percent (5%) from the date of work * * *", i.e. damages based on the extra 5 hours per week worked since the 40-hours work order went into effect (essentially the same remedy sought before MERC). The question before us is whether plaintiffs are barred from maintaining this suit because of the doctrine of collateral estoppel. In this particular case, the answer to this question is yes.
It is established law in this state that the doctrines of res judicata and collateral estoppel apply to administrative determinations which are adjudicatory in nature, where a method of appeal is provided, and where it is clear that it was the legislative intention to make the determination final in the absence of an appeal. Roman Cleanser Co v Murphy, 386 Mich. 698, 703-704; 194 N.W.2d 704 (1972), reversing and adopting Judge (now Justice) LEVIN'S dissent in Roman Cleanser Co v Murphy, 29 Mich. App. 155, 166-171; 185 N.W.2d 87 (1970).
The applicable test for collateral estoppel in this case is accurately stated in § 68 of the Restatement Judgments, p 293:
"Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between parties in a subsequent action on a different cause of action * * *."
The doctrine of collateral estoppel also requires that "the second action is between the same persons who were parties to the prior action". Restatement Judgments, § 68, p 294; see, also, Howell, supra, and Jones, supra. Plaintiff union was, of course, party to the action before MERC. The individual plaintiffs in this case do not dispute the Court of Appeals holding that "[t]he individual plaintiffs here are substantially identical to the labor organizations which represented them as charging parties before MERC", 60 Mich. App. 612. See Steelman v Portage, 12 Mich. App. 334; 162 N.W.2d 837 (1968), and cases cited therein.
See Howell v Vito's Trucking Excavating Co, 386 Mich. 37, 41-42; 191 N.W.2d 313 (1971); Jones v Chambers, 353 Mich. 674, 680-681; 91 N.W.2d 889 (1958).
In the instant case, if the trial court were to rule on whether plaintiffs are entitled to the "damages" for which they complain ("an amount equal to five hours wages per, at overtime rates, for the full period they were forced to work 40 hours"), the court would have to determine whether the legal basis of plaintiffs' employment relation — past practice, ordinance, contract, or existing city policy — required such monetary reimbursement. But the trial examiner made these precise determinations in finding "back pay" was improper in this case. See Joint Appendix, exhibit A, pp 48-50, and discussion supra. In other words, the questions of fact necessary for a determination of "damages" by the trial court in this case would be identical to the questions of fact already determined by the trial examiner in his conclusion that "back pay" was improper in this case. Consequently, plaintiffs are barred under the doctrine of collateral estoppel from re-litigating these same questions of fact in their subsequent action for "damages" based on a breach of contract theory.
We uphold the circuit court and the Court of Appeals.
No costs, a public question.
COLEMAN, FITZGERALD, and LINDEMER, JJ., concurred with WILLIAMS, J.
The issues in this circuit court action for money damages and in the earlier Michigan Employment Relations Commission unfair labor practice proceeding arise out of the city's action in increasing the work week of the plaintiff employees of the city from 35 to 40 hours.
The MERC found that the city was guilty of an unfair labor practice in unilaterally increasing the work week. A cease and desist order was entered. The MERC declined to award back pay for the five additional hours because there had been no history of paying for additional hours worked in a normal work week.
The circuit court dismissed this action seeking money damages for alleged breach of the collective bargaining agreements in requiring the employees to work additional hours on the ground that further litigation is barred under the doctrines of res judicata and collateral estoppel. The Court of Appeals affirmed as does this Court.
This Court declares that the employees are barred under the doctrine of collateral estoppel from "re-litigating" in the circuit court "questions of fact already determined" by the MERC when it refused to award back pay as part of the remedial order for the city's unfair labor practice.
The MERC construed the statute as permitting an award of back pay where the "employee in question would have been paid absent the unlawful unilateral action". "Back pay," in this construction of the act, means pay actually paid in the past — pay the employee would have received if there had been no unfair labor practice. The MERC concluded that where the unfair labor practice does not cause a stoppage of pay, there being no actual loss of pay, there is no past or back pay to award.
Hooker Chemical Corp, 186 NLRB No 49; 75 LRRM 1357 (1970).
The MERC found as a fact that there was no evidence in the instant case that " payment has ever been made for the additional five hours work in a normal work week" (emphasis supplied). Since there had been no stoppage or actual loss of pay as a result of the unfair labor practice, there was no past or back pay.
It is apparent that the employees do not seek to relitigate the MERC factual determination that there was no history of payment for additional hours worked. Indeed, this was never in dispute. They contend rather that contract damages, in contrast with back pay to remedy an unfair labor practice, do not depend on a showing that the employees would have been paid for the additional hours even if the city had not increased the work week (and in consequence they are out-of-pocket compensation they would have received but for the unfair labor practice), and that the factual and legal issues respecting their claim for compensation in a law action are sufficiently different from those in an unfair labor practice proceeding that decision in the administrative proceeding does not preclude a law action.
Further, the employees contend that where a remedy is denied, not on the merits, but because it is not available in the forum where it is sought, the doctrine of collateral estoppel does not bar an action to obtain a remedy in a forum where it is available.
We agree that the contentions of the employees are sound and therefore dissent.
I
The Court declares the trial examiner concluded and the MERC agreed that there was no basis for awarding back pay in the absence of
"`evidence to establish that under past practice, ordinance, or contract such payment has ever been made for the additional five hours work in a normal work week, or that such payment even could be made under existing city policy.'"
We agree with the foregoing statement.
The Court also declares if the employees were permitted to maintain an action for damages in the circuit court, that
"court would have to determine whether the legal basis of plaintiffs' employment relation — past practice, ordinance, contract, or existing city policy — required such monetary reimbursement. But the trial examiner made these precise determinations in finding `back pay' was improper in this case."
We agree that before awarding damages the circuit court would necessarily determine whether the asserted violation of the collective bargaining agreements provides a "legal basis" for a money judgment. The trial examiner did not determine, however, whether the "legal basis" of the employment relationship, the collective bargaining agreements, requires the entry of such a judgment. The MERC stated that the trial examiner did " not" "interpret the contract" and further stated that its decision affirming the trial examiner was " not a finding that [the collective bargaining agreements] have been, or have not been breached" (emphasis supplied).
The MERC declared:
"[T]he order finding that the City of Detroit breached §§ 10a and e of the public employment relations act by its failure to notify the several labor organizations and bargain with them concerning the proposed change is not a finding that the labor agreements between the City of Detroit and the several labor organizations have been, or have not been breached. Decision is limited to a finding that the City of Detroit violated the public employment relations act by unilaterally increasing the working hours of the salaried employees involved from 35 to 40 hours per week without first notifying and bargaining in good faith with the collective bargaining representatives of the involved employees. The trial examiner notified the parties at the hearing that he did not intend to interpret the contracts. He did not do so." (Emphasis supplied.)
In light of the foregoing, the trial examiner's statement, "[i]n the absence of evidence to establish that under past practice, ordinance, or contract, such payment has ever been made for the additional five hours" (emphasis supplied), cannot be read as a decision whether the collective bargaining agreements had been breached or whether damages were available for such breach.
The trial examiner's statement is concerned with whether payment for additional hours had in the past in fact been made. He found that it had not been made. His negative statement that such payment had not been made "under the contract" is not an affirmative finding or conclusion that the agreements did not, in this instance, require compensation or, their breach, an award of damages.
Any prior failure to make payment may itself have been a violation of the agreements. The circumstances of any prior failure to pay for additional hours may have been different from those in this case. This appears to have been the first time that a permanent increase in the length of the work week had been ordered. Construction of the contract would require an assessment of the entire history of the relationship (not just a single element in the limited context of a labor relations remedial order) which neither the trial examiner nor the MERC purported to, and indeed expressly declined to assume the responsibility of making.
The Court further declares:
"the questions of fact necessary for a determination of `damages' by the trial court in this case would be identical to the questions of fact already determined by the trial examiner in his conclusion that `back pay' was improper in this case."
Again, we disagree. Whether the employees had been theretofore paid for additional hours, although held to be determinative for back pay purposes, would not be determinative of their right to contract damages for being required, in asserted violation of the collective bargaining agreements, to work additional hours. The "questions of fact necessary for a determination of `damages'" would not "be identical to the questions of fact already determined by the trial examiner in his conclusion that `back pay' was improper in this case".
The question whether contract damages are recoverable would depend on whether it was a breach of the collective bargaining agreements to require the employees to work the additional hours or to require such additional work without compensation. Resolution of that question would depend on the terms of the agreements, all the pertinent facts, and the law of contracts, not on the historical fact whether "payment has ever been made" for additional hours in a normal work week or whether such payment could be made under existing city policy. Even if the employees had never been paid for working additional hours in a normal work week and could not be paid for those hours under existing city policy, damages would be recoverable if it was a breach of contract to require them to work the additional hours or to require such additional work without compensation.
II
The Court misperceives the issue in concluding that the MERC's finding that payment for additional hours had not historically been made and could not be made under existing city policy precludes a determination in a law action that the employees are entitled to money damages under the collective bargaining agreements for the additional hours worked.
The true issue is whether, when employees assert that an employer's action in requiring additional work constitutes both a breach of the collective bargaining agreement and an unfair labor practice, they are precluded from recovering money damages in a law action for breach of contract by seeking relief from the MERC and its decision in entering a cease and desist order but refusing to award back pay for the additional work.
When the city required the additional work without compensation, the employees protested, claiming that the city's action constituted an unfair labor practice and a violation of the terms of the collective bargaining agreements.
An unfair labor practice charge must be filed with the MERC; an action for breach of contract, in the circuit court.
The MERC has exclusive jurisdiction to determine whether an unfair labor practice has been committed. See Rockwell v Crestwood School District Board of Education, 393 Mich. 616, 630; 227 N.W.2d 736 (1975); Southgate Community School District v Morrison, 1970 MERC Lab Op 161, 178-179. To obtain a determination that the city had committed an unfair labor practice and a cease and desist order, the employees necessarily filed a charge with the MERC.
The doctrine of primary jurisdiction would probably require that a court refrain from exercising jurisdiction until after the conclusion of the administrative proceedings. See generally, 3 Davis, Administrative Law Treatise, § 19.01, pp 3-5.
Plainly, if back pay had been awarded and it was the functional equivalent of money damages, a law action could not be maintained; the employees may not obtain a double recovery. Also, if the MERC had declined to award back pay on the ground that the city had not required the employees to work the additional hours (e.g., they had as a matter of civic spirit volunteered the additional work), or that their claims of having worked additional hours were not factually supported, then a collateral estoppel would arise because the MERC would have found facts inconsistent with a finding of breach of contract.
But where the MERC's findings are not inconsistent with maintenance of a law action and it simply concludes that a back pay award is not available under the remedial standards it has developed, its conclusion does not preclude such an action.
The parties, however, would be barred from relitigating in this action for breach of contract any facts found by the MERC material to the issues arising in this action. See Roman Cleanser Co v Murphy, 386 Mich. 698, 703-704; 194 N.W.2d 704 (1972), and cases cited in fn 17 infra and accompanying text.
III
The policies of the PERA and of the law of contracts are different.
Treating the employees' petition for back pay as an election of remedies, precluding a subsequent action for damages, would be contrary to authority disfavoring the doctrine of election of remedies. See Friederichsen v Renard, 247 U.S. 207, 213; 38 S Ct 450; 62 L Ed 1075 (1918); Dobbs, Remedies, § 1.5, pp 3-23 (1973).
The doctrine of election of remedies is predicated on an inconsistency of remedies. Zimmerman v Harding, 227 U.S. 489, 493; 33 S Ct 387; 57 L Ed 608 (1913); United States v Oregon Lumber Co, 260 U.S. 290, 302; 43 S Ct 100; 67 L Ed 261 (1922) (Brandeis, J). See, generally, 5A Corbin, Contracts, § 1221, pp 471-473. There is no such inconsistency in the instant case.
The power to award back pay enables the MERC to further the act's purpose of promoting peaceful labor relations. The United States Supreme Court has observed, in reference to the back pay provisions of the National Labor Relations Act, the model for the corresponding provisions of the Michigan labor relations acts:
The MERC is empowered "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act". MCLA 423.216(b); MSA 17.455(16)(b). The MERC has entered back pay awards where employees have been wrongfully discharged (see Nick's Fine Foods, 1968 MERC Lab Op 307) and where an employer unilaterally changed the conditions of employment causing employees to suffer an actual loss of wages which they otherwise would have received (see Gibraltar School District, 1970 MERC Lab Op 379).
The language authorizing back pay awards is patterned after § 10(c) of the National Labor Relations Act, 29 U.S.C. § 160(c). This Court has frequently been guided by the construction of the NLRA:
"Although we cannot state with certainty, it is probably safe to assume that the Michigan Legislature [adopted the statute] in the form that it did with the expectation that MERC and the Michigan courts would rely on the legal precedents developed under the NLRA * * *." Detroit Police Officers Association v Detroit, 391 Mich. 44, 53; 214 N.W.2d 803 (1974).
"In construing the Michigan labor mediation act and the PERA, this Court has frequently been guided by the construction placed on the analogous provisions of the NLRA by the NLRB and the Federal courts." Rockwell v Crestwood School District, supra, p 636.
MCLA 423.216(b); MSA 17.455(16)(b).
See Virginia Electric Power Co v National Labor Relations Board, 319 U.S. 533, 543; 63 S Ct 1214; 87 L Ed 1568 (1943).
This power does not extend to compensating private injuries nor does it permit an award of "speculative" or punitive damages. Douglas Harvey, Sheriff of Washtenaw County, 1968 MERC Lab Op 364 (humiliation, injury to reputation and future employment); Gibraltar School District, supra, p 381 (physical and emotional ailments and social degradation allegedly caused by school board's unfair labor practices).
See fn 6, supra.
"To make an award, the Board must first be convinced that the award would `effectuate the policies' of the Act. `The remedy of back pay, it must be remembered, is entrusted to the Board's discretion; it is not mechanically compelled by the Act.' Phelps Dodge Corp v Labor Board, 313 U.S. 177, 198 [ 61 S Ct 845; 85 L Ed 1271; 133 ALR 1217 (1941)]. The power to order affirmative relief under § 10(c) is merely incidental to the primary purpose of Congress to stop and to prevent unfair labor practices. Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct." International Union, UAW v Russell, 356 U.S. 634, 642-643; 78 S Ct 932; 2 L Ed 2d 1030 (1958).
The Court held that the NLRA back pay provision did not preempt state court jurisdiction to award damages for an employee's wage loss attributable to an unfair labor practice.
The MERC is concerned with speedy and prompt restoration of peaceful labor relations. To achieve that objective it may only be necessary to issue a cease and desist order; there may be no need to award back pay. The back pay issue may not loom large at the time in the context of labor relations peace.
Whether the MERC would in all cases limit its back pay remedy, in this case it was apparently of the view that in order to effectuate the policies of the act it was not necessary to award back pay for the additional hours the city unilaterally required the employees to work. While they had labored additional hours, they received the same weekly pay they had theretofore received. There was no actual loss of pay.
The law of contracts takes a different view of the matter. Under that body of law, requiring an employee to give up his time and expend labor beyond the requirements of the employment contract may entitle him to compensation for the time and labor expended; payment to the employees of the full weekly wage agreed upon in the contract does not preclude an action for additional compensation for additional hours worked.
See 5 Corbin, Contracts, § 1109, pp 583-584.
See fn 2.
Given the distinctive nature of the administrative and judicial functions, inquiries, and remedies, the MERC's failure to award back pay does not bar a subsequent action for damages unless facts found by the MERC are inconsistent with a determination that the collective bargaining agreement has been breached. In the instant case, the "fact" that historically the employees had not been paid for additional hours in a normal work week is not inconsistent with a finding that the collective bargaining agreements had been breached, and therefore does not preclude a determination that the employees have a right to recover a money judgment under the provisions of those agreements.
See Cole v UAW, Local 509, 68 LRRM 2097 (D Cal, 1968), where the court said that the NLRB's finding that it was not an unfair labor practice to increase the amount of union dues was "persuasive" in announcing its conclusion that the union had not violated the collective bargaining agreement, and that the plaintiff-employee was not entitled to damages.
See also fn 17, infra, and accompanying text.
IV
The application of collateral estoppel in the instant case to bar the employees' action for damages treats the administrative remedy of back pay — a remedy the MERC found was not available — as the exclusive remedy. The United States Supreme Court has stated, however, that the remedies for an unfair labor practice, provided in the NLRA, do not exclude an action for breach of a collective bargaining agreement:
We all agree that the employees, in failing to appeal the MERC's decision, are bound by its determination that back pay would not be awarded.
"Congress `deliberately chose to leave the enforcement of collective agreements "to the usual processes of the law"'. See also HR Conf Rep No. 510, 80th Cong, 1st Sess, p 52. It is, of course, true that conduct which is a violation of a contractual obligation may also be conduct constituting an unfair labor practice, and what has been said is not to imply that enforcement by a court of a contract obligation affects the jurisdiction of the NLRB to remedy unfair labor practices, as such." Local 174, Teamsters, Chauffeurs, Warehousemen Helpers of America, v Lucas Flour Co, 369 U.S. 95, 101 fn 9; 82 S Ct 571; 7 L Ed 2d 593 (1962).
It is an established principle that the remedies available from an administrative tribunal are ordinarily not exclusive, and that where the labor board, or one of its examiners, dismisses unfair labor practice charges, a subsequent action for damages for breach of contract is not precluded by the doctrine of res judicata.
Linn v United Plant Guard Workers of America, Local 114, 383 U.S. 53, 63-64, 66-67; 86 S Ct 657; 15 L Ed 2d 582 (1966); International Union, UAW v Russell, 356 U.S. 634, 645; 78 S Ct 932; 2 L Ed 2d 1030 (1958); Kipbea Baking Co v Strauss, 218 F. Supp. 696 (ED NY, 1963).
"Recovery in the present suit must be based upon an existing contract, and its obligations. Issues as to those matters were not, and could not be, before the [National Labor Relations] Board. Its decisions deal solely with questions of unfair labor practices as defined in the Act * * *." Fibreboard Paper Products Corp v East Bay Union of Machinists, Local 1304, 344 F.2d 300, 304 (CA 9, 1965).
The court held that the board's dismissal of unfair labor practice charges, arising out of discharges and subcontracting of work, was not res judicata in a subsequent action seeking damages for breach of contract.
Similarly see Thomas v Ford Motor Co, 396 F. Supp. 52, 55-56 (ED Mich, 1973), aff'd 516 F.2d 902 (CA 6, 1975); Local Union No 59, Sheet Metal Workers International Ass'n v J E Workman, Inc, 343 F. Supp. 480, 483-484 (D Del, 1972); Thomas v Consolidated Coal Co, 380 F.2d 69, 78 (CA 4, 1967) (dictum). Compare In the Matter of National Electric Products Corp, 3 NLRB 475, 500 (1937) and In the Matter of New York State Labor Relations Board v Holland Laundry, Inc, 294 N.Y. 480, 495; 63 N.E.2d 68, 75 (1945), where after courts had held collective bargaining agreements to be valid, the respective labor relations boards held the contracts invalid. The board's decision in the New York case was upheld by its Court of Appeals, which stated: "A determination of the issues in an action between private parties cannot bar a contest to vindicate the public interest, as provided in the statute, just as a judgment in civil litigation between private parties does not bar a contest of the same issues by the State in a criminal action."
An administrative determination that an unfair labor practice has been committed, as in the instant case, may support, rather than preclude, a separate action for money damages. In a number of cases, employers have recovered damages in law actions based on labor board determinations, given res judicata effect, that the union had engaged in a secondary boycott, an unfair labor practice under the NLRA.
Texaco, Inc v Operative Plasterers Cement Masons International Union, Local Union No 685, AFL-CIO, 472 F.2d 594 (CA 5, 1973), cert den 414 U.S. 906; 94 S Ct 238; 38 L Ed 2d 144 (1973); Paramount Transport Systems v Chauffeurs, Teamsters Helpers, Local 150, 436 F.2d 1064 (CA 9, 1971); International Wire v International Brotherhood of Electrical Workers, Local 38, 82 LRRM 3063 (ND Ohio, 1972), aff'd 475 F.2d 1078 (CA 6, 1973). But see Old Dutch Farms, Inc v Milk Drivers Dairy Employees Local No 584, 359 F.2d 598 (CA 2, 1966), cert den 385 U.S. 832; 87 S Ct 71; 17 L Ed 2d 67 (1966).
It is also well established that judicial remedies may "fill out" administrative remedies — frequently of limited scope — when the latter are inadequate.
See United States v Brown, 348 U.S. 110; 75 S Ct 141; 99 L Ed 139 (1954), holding that the amount of a recovery for personal injury under the Veteran's Act, 38 U.S.C. § 501a, reduces, but does not preclude recovery under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.
The unavailability of the back pay remedy does not preclude this subsequent action seeking the alternative or supplemental remedy of damages. "Where a judgment is rendered in favor of the defendant because the plaintiff seeks a form of remedy which is not available to him, the plaintiff is not precluded from subsequently maintaining an action in which he seeks an available remedy." Restatement Judgments, § 65(2).
See Trans World Airlines, Inc, v Hughes, 317 A.2d 114, 120 (Del. Chancery, 1974), aff'd 336 A.2d 572 (Del, 1975); Porter v Nossen, 360 F. Supp. 527, 530-531 (MD Pa, 1973); Warren Co v Neel, 284 F. Supp. 203, 212-213 (WD Ark, 1968), aff'd 406 F.2d 775 (CA 8, 1969); 5A Corbin, Contracts, § 1225, pp 492-498. See also Holcomb v Bullock, 353 Mich. 514, 519; 91 N.W.2d 869 (1958). Cf. Carr v Kalamazoo Vegetable Parchment Co, 354 Mich. 327; 92 N.W.2d 295 (1958).
In sum, the failure to award back pay does not resolve the question of whether damages may be recovered for a breach of the collective bargaining agreements.
We would hold that the employees are not barred by collateral estoppel or res judicata from maintaining an action for money damages for breach of contract in the circuit court. We would reverse and remand for trial.
KAVANAGH, C.J., and RYAN, J., concurred with LEVIN, J.