                    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.         *
                                    ___________

                             Submitted: January 17, 2002

                                  Filed: April 24, 2002
                                   ___________

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.
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


      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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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).

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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, back-
pay, 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


      2
      Interestingly, § 160(c) does not refer to these NLRB orders as “relief” or
“remedies.”

                                          -4-
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

                                          -5-
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

                                          -6-
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.




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