Capeletti Brothers, Inc., et al., Plaintiffs-appelleescross-appellants, v. Local # 487 International Union of Operating Engineers,afl-cio, Defendants-appellants Cross-appellees, 514 F.2d 1239 (5th Cir. 1975)

Plaintiffs brought suit against defendant union for damages under § 303(b) of the Labor Management Relations Act, 29 U.S.C.A. § 187(b). The claim developed as one arising out of an alleged secondary boycott in violation of § 8(b) (4) (ii) (B), 29 U.S.C.A. § 158(b) (4) (ii) (B), wherein the owner of Miami Lakes, a large subdivision under construction in Dade County, Florida, was coerced and restrained by the union to the point of ceasing to deal with plaintiffs who were longtime non-union contractors on the job.¹ 

The district court found that the owner ceased using plaintiffs on the construction job because of picketing by the union and a "tacit, unspoken but well recognized understanding" between an official of the owner and an official of the union that work interruptions from the picketing would end when plaintiffs were removed from the job, and that plaintiffs were removed from the job. There is ample support in the record for these findings and thus of the conclusion that § 8(b) (4) (ii) (B) was violated. We also find an adequate basis in fact and law for the damages awarded against the union in the sum of $97,483.12.

Plaintiffs have taken a cross-appeal and urge thereunder that the district court erred in denying them additional damages based on work performed on the Miami Lakes job after their removal and in their stead by Lowell Dunn Company, Nash Brothers, Inc. and William Tisdol. They also contend that they were entitled to recover expenses incurred for additional guards employed to protect their property during the picketing by the union, and for losses suffered in the diversion of key personnel from the performance of their normal duties during the picketing. Except as to the William Tisdol claim, we find that the district court was not clearly erroneous in denying damages as a factual matter. There was sound reason for the denial in each instance.

The district court apparently overlooked making a finding as to the damages claimed from the alleged loss of work previously done by plaintiffs to William Tisdol in the gross amount of $37,331.26. Whether such a loss in fact occurred, whether it was proximately related to the union's conduct, and if so, the amount of damages due plaintiffs therefor, are questions to be resolved by the district court. As to this claim, the judgment will be vacated and the cause remanded for such resolution. Acme Boat Rentals, Inc. v. J. Ray McDermott & Company, 5 Cir., 1969, 407 F.2d 1324.

Lastly, plaintiffs contend that they were entitled to recover attorneys fees in bringing this § 303 suit. The court was of the view that there was no legal basis for awarding attorneys fees in a § 303 suit unrelated to effectuating a resumption of work. We agree. See Refrigeration Contractors, Inc. v. Pipefitters Local 211, 5 Cir., 1974, 501 F.2d 668, 671-72; Sheet Metal Workers Local 233 v. Atlas Sheet Metal Co., 5 Cir., 1967,384 F.2d 101, 110.² 

Affirmed on the appeal, affirmed on the cross-appeal except as to the William Tisdol claim. The judgment is vacated as to that claim and the cause is remanded for further proceedings as to it not inconsistent herewith. Each party shall bear its own costs.