United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2966

___________

Lonnie Gurley, *

*

 Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Michael Hunt; Painters District *

Council No. 3, of the International *

Brotherhood of Painters and Allied *

Trades, *

*

 Appellees. *

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Submitted: January 17, 2002

Filed: April 24, 2002

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Before LOKEN, HEANEY and MURPHY, Circuit Judges.

___________

HEANEY, Circuit Judge.

Appellant Lonnie Gurley appeals the district court’s decision granting summary

judgment in favor of Painters District Council No. 3 (“Union”) and its officials. The

district court concluded that Gurley’s claim was precluded by res judicata because of

a previous National Labor Relations Board (“NLRB”) proceeding based on the same

facts. We reverse.
1

Gurley also alleged a state law claim for tortious interference with an

employment relationship which he later moved to dismiss. 

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I. Background

Appellee Michael Hunt (“Hunt”) replaced Gurley as Executive Secretary of the

Union following a heated election in 1997. After the election, Gurley obtained

employment as a painter for Essex Corporation (“Essex”). Essex fired Gurley in

January of 1998. 

After his termination, Gurley filed charges with the NLRB alleging that his

dismissal from Essex occurred as a result of his opposition to Hunt and other current

Union officers in the previous election. The NLRB reviewed the charge and decided

to issue a complaint, alleging that the Union engaged in unfair labor practices in

violation of the National Labor Relations Act, 29 U.S.C. §§ 151-169 (1998)

(“NLRA”). The complaint asserted that Union officials fined Gurley and asked Essex

to lay him off as a result of his opposition to Union officers in the previous election.

An NLRB Administrative Law Judge (“ALJ”) held a hearing on the complaint

against the Union. The ALJ made various findings of fact and conclusions of law,

ultimately finding in favor of Gurley. As a result, the NLRB ordered the Union to

make Gurley whole for any lost earnings or benefits. It also issued a cease and desist

order and required the Union to post a notice informing members of the NLRB’s

unfair labor practice finding. The Union did not appeal the NLRB’s ruling and

complied with the remedy.

Following the issuance of the NLRB’s order, Gurley brought a civil action

against the Union and Hunt alleging violations of the Labor Management Reporting

and Disclosure Act (“LMRDA”), 29 U.S.C. §§ 401-531 (1998), and specifically 29

U.S.C. § 411, the Bill of Rights of Members of Labor Organizations.1

 The LMRDA
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claim arises out of the same events included in the NLRB complaint, that is, that the

Union and Hunt procured Gurley’s dismissal from Essex and improperly disciplined

him as a result of his opposition to current Union officers. The complaint seeks

damages for emotional distress and punitive damages. 

The Union and Hunt filed a motion for summary judgment, arguing that the

doctrine of res judicata bars Gurley’s continued litigation because he had already

received a make-whole remedy following the NLRB hearing. The court granted the

defendants’ motion, holding that Gurley’s LMRDA claim was barred by res judicata.

Gurley now appeals that decision.

II. Discussion

We review the grant of summary judgment de novo. Callas Enters., Inc. v.

Travelers Indem. Co., 193 F.3d 952, 955 (8th Cir. 1999). Summary judgment is

appropriate only if there are no genuine issues of material fact and the moving party

is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

“Under res judicata, a final judgment on the merits of an action precludes the

parties or their privies from relitigating issues that were or could have been raised in

that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980) (citation omitted). Courts

will apply res judicata and collateral estoppel to agency adjudicatory decisions when

the adjudication resolves “disputed issues of fact properly before it which the parties

have had an adequate opportunity to litigate.” United States v. Utah Construction &

Mining Co., 384 U.S. 394, 422 (1966). The test applied to determine whether res

judicata bars litigation of a claim is: (1) whether the prior judgment was rendered by

a court of competent jurisdiction; (2) whether the judgment was a final judgment on

the merits, and (3) whether the same cause of action and same parties or their privies

were involved in both cases. De Llano v. Berglund, 183 F.3d 780, 781 (8th Cir. 1999)

(citation omitted). 
2

Interestingly, § 160(c) does not refer to these NLRB orders as “relief” or

“remedies.” 

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Gurley argues that the district court erred in dismissing his LMRDA claim

because the first prong of this test was not met. He maintains that the NLRB did not

have jurisdiction over his LMRDA claim, that only federal district courts have such

jurisdiction; therefore, he did not have an “adequate opportunity” to litigate the claim.

We agree. 

The plain language of the LMRDA indicates that Congress did not intend for

the NLRB to have jurisdiction over LMRDA claims. The statute states that a

plaintiff, whose rights under the statute have been violated, “may bring a civil action

in a district court of the United States for such relief (including injunctions) as may

be appropriate.” 29 U.S.C. § 412. The federal courts are the only institution granted

jurisdiction by the statute; it does not give adjudicative authority to any

administrative agency. 

Furthermore, it would be inconsistent with the NLRB’s role in enforcing

federal labor laws for the Board to have jurisdiction in this case. The NLRA, which

created the NLRB, created an administrative system designed to prevent unfair labor

practices. 29 U.S.C. § 160(a). If the NLRB finds that an employer or a union has

engaged in an unfair labor practice, the Board is authorized to order it to cease and

desist from that conduct and to order “such affirmative action including reinstatement

of employees with or without backpay, as will effectuate the policies” of the NLRA.

29 U.S.C. § 160(c).2

 The NLRA only provides the NLRB with the authority to

redress unfair labor practices through such means as cease and desist orders, backpay, and reinstatement. Id. Courts have emphasized that the NLRB is not authorized

to award full compensatory or punitive damages to individuals affected by the unfair

labor practice. See International Union, United Automobile, Aircraft and Agricultural

Implement Workers, etc. v. Russell, 356 U.S. 634, 643 (1958); see also Packing
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House and Indus. Servs., Inc. v. NLRB, 590 F.2d 688, 697 (8th Cir. 1978) (“[T]he

Board’s remedies must be remedial, not punitive”). We also note that any relief

awarded by the Board is discretionary, not mandatory upon the finding of an unfair

labor practice. “To make an award, the Board must first be convinced that the award

would effectuate the policies of the Act. The remedy of backpay . . . is entrusted to

the Board’s discretion; it is not mechanically compelled by the Act.” Russell, 356

U.S. at 642 (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941)).

NLRB orders are not intended to vindicate private rights; rather, the orders are

designed to remedy public wrongs by preventing unfair labor practices, eliminating

industrial conflict, and restoring the status quo after an unfair labor practice has been

committed. See id. at 642-43 (citations omitted); NLRB v. J.H. Rutter-Rex Mfg. Co.,

396 U.S. 258, 263 (1970). 

The availability of an award of backpay before the NLRB “does not mean that

Congress necessarily intended this discretionary relief to constitute an exclusive

pattern of money damages for private injuries.” Russell, 356 U.S. at 645. Indeed, the

LMRDA, which was passed after the NLRA, authorizes federal courts to award “such

relief (including injunctions) as may be appropriate.” 29 U.S.C. § 412. Courts have

interpreted this provision to mean that punitive damages, compensatory damages, and

attorney fees may be available under the LMRDA. See generally Hall v. Cole, 412

U.S. 1, 9 (1973) (holding that a court may award attorney’s fees in a successful

LMRDA action); Vandeventer v. Local Union No. 513 of the Int’l Union of

Operating Eng’rs, AFL-CIO,, 579 F.2d 1373 (8th Cir. 1978) (affirming district court’s

award of punitive damages and remanding on the issue of attorney’s fees); Quinn v.

Diguilian, 739 F.2d 637, 651 (D.C. Cir. 1984) (holding that punitive damages may

be awarded for egregious violations of the LMRDA). As stated, however, the NLRB

is not authorized to award this type of relief. See 29 U.S.C. § 160(c); Shepard v.

NLRB, 459 U.S. 344, 351-52 (1983) (“The Board is not a court; it is not even a labor

court . . . . ‘Congress did not . . . authoriz[e] the Board to award full compensatory

damages for injuries caused by wrongful conduct.’”) (citations omitted). Because the
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plain language of the LMRDA gives jurisdiction to the federal courts, and because

the type of relief authorized by the LMRDA is inconsistent with the NLRA’s policy

of issuing relief that vindicates public, not private rights, we hold that the NLRB did

not have jurisdiction to hear Gurley’s LMRDA claim. Therefore, that claim is not

barred by res judicata.

Next, we clarify that our decision is consistent with prior decisions in our

circuit. The district court, in determining that Gurley’s claim was barred, relied on

this court’s opinion in Vandeventer, 579 F.2d 1373, for the proposition that the

NLRB and the federal courts have concurrent jurisdiction over claims brought under

the LMRDA. Vandeventer does not stand for the proposition that the NLRB has

jurisdiction over LMRDA claims. Rather, our court held that both the federal courts

and the NLRB have jurisdiction to hear disputes arising from certain conduct by

union officials – conduct that constitutes both an unfair labor practice and a violation

of the LMRDA Bill of Rights. Id. at 1378 (“Congress reaffirmed its understanding

that the LMRDA would afford remedies in federal court for conduct already within

the jurisdiction of the NLRB under provisions of the National Labor Relations Act.”).

Indeed, we stated that “Congress intended union members to have remedies before

both the federal courts and the NLRB.” Id. (emphasis added). Therefore,

Vandeventer is consistent with our decision today. 

Our decision today is also distinguishable from DeSantiago v. Laborers Local

Union No. 1140, 914 F.2d 125 (8th Cir. 1990). In that case, we noted that a plaintiff’s

claim for breach of the duty of fair representation was barred when that individual

had already had a full and fair opportunity for redress in an NLRB proceeding for the

same incidents. See id. at 130. The only damages available in a claim for a breach

of the duty of fair representation are make-whole damages, International Brotherhood

of Electrical Workers v. Foust, 442 U.S. 42, 49 (1979), which the NLRB had already

awarded to the plaintiffs in DeSantiago. See DeSantiago, 914 F.2d at 130. In this

case, Gurley did not have the opportunity for full and fair redress because the NLRB
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did not have jurisdiction to determine whether Gurley was also entitled to the punitive

damages that may be available under the LMRDA. 

III. Conclusion

Gurley could not have brought his LMRDA claim in the NLRB proceedings;

therefore, the doctrine of res judicata does not prevent him from bringing it in federal

court. We reverse the district court’s decision and remand the case for

reconsideration of Gurley’s motion for partial summary judgment.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.