                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2001

Taylor Milk Co v. International Brotherhood
Teamsters
Precedential or Non-Precedential:

Docket 00-1598




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Taylor Milk Co v. International Brotherhood Teamsters" (2001). 2001 Decisions. Paper 95.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/95


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed May 1, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 00-1598 and 00-1616

TAYLOR MILK COMPANY, a Pennsylvania Corporation,
Appellant in No. 00-1598

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
AFL-CIO, an unincorporated association and labor
organization; INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, DAIRY CONFERENCE - USA AND CANADA,
an unincorporated association and labor organization;
SERVICE PERSONNEL AND EMPLOYEES OF THE DAIRY
INDUSTRY TEAMSTERS LOCAL UNION NO. 205, an
unincorporated association and labor organization

TAYLOR MILK COMPANY, a Pennsylvania Corporation

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
AFL-CIO, an unincorporated association and labor
organization; INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, DAIRY CONFERENCE - USA AND CANADA,
an unincorporated association and labor organization;
SERVICE PERSONNEL AND EMPLOYEES OF THE DAIRY
INDUSTRY TEAMSTERS LOCAL UNION NO. 205, an
unincorporated association and labor organization

       International Brotherhood of Teamsters, AFL-CIO;
       International Brotherhood of Teamsters, Dairy
       Conference-USA and Canada,
       Appellants in No. 00-1616
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 95-cv-01663)
District Judge: Honorable D. Brooks Smith

Argued February 8, 2001

BEFORE: SCIRICA, MCKEE and STAPLETON,
Circuit Judges

(Opinion Filed May 1, 2001)

       David J. Armstrong
       Dickie, McCamey & Chilcote
       Two PPG Place, Suite 400
       Pittsburgh, PA 15222
        and
       John A. McCreary, Jr. (Argued)
       Babst, Calland, Clements & Zomnir
       Two Gateway Center, 8th Floor
       Pittsburgh, PA 15222
        Attorneys for Appellant/Cross
       Appellee

       Ernest B. Orsatti (Argued)
       Jubelirer, Pass & Intrieri
       219 Fort Pitt Boulevard
       Pittsburgh, PA 15222
        Attorney for Appellees/Cross
       Appellants

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Taylor Milk Company ("TMC") brought suit against the
International Brotherhood of T eamsters ("IBT"), the IBT
Dairy Conference of the USA and Canada ("Dairy
Conference"), and its own IBT Local Union No. 205 ("Local
205") (collectively "IBT") for unfair labor practices in

                               2
violation of 29 U.S.C. S 187. TMC alleged that appellees
violated the prohibition against secondary boycotts by
coercing a neutral party into not doing business with TMC.
The District Court found that the appellees had committed
such unfair labor practices and awarded TMC damages in
the amount of $50,000. TMC appeals this damage awar d as
too low. IBT cross-appeals the District Court's denial of
summary judgment and determination of liability.

I.

TMC was located outside of Pittsburgh in Ambridge,
Pennsylvania.1 In 1995, TMC was operating at a net loss
caused by meeting the demands of a customer base that
exceeded the processing and delivery capacities of the
Ambridge facility. During this same time, Bor den, Inc., the
well-known national dairy company, had deter mined that it
would abandon the fluid milk business east of the
Mississippi River. Borden operated afluid milk plant in
Youngstown, Ohio, which is about an hour's drive
northwest of Ambridge. The Borden plant had an
insufficient customer base and was slated to be sold.

In August of 1995, TMC entered into negotiations to
purchase this plant from Borden. TMC paid Borden
$50,000 in order to gain the exclusive right to purchase the
facility. Joseph Taylor, the pr esident of TMC, hoped that by
shifting production operations to Borden's Youngstown
plant, TMC would be able to turn a profit. The Borden
Youngstown facility was generally a superior facility from an
operational standpoint and the wages paid to the
Youngstown production workers wer e significantly less than
those paid to the workers in Ambridge. TMC planned to
eliminate the Ambridge production jobs after acquiring the
Youngstown facility but to keep the Ambridge plant as a
distribution facility.

The stipulated purchase price for the Y oungstown facility
was approximately $1,200,000. The finalization of the
agreement, however, was dependent upon TMC first
obtaining bank financing for the deal. The bankfinancing
_________________________________________________________________

1. TMC has now ceased operations.

                                3
was in turn contingent upon the existence of a stable, long-
term collective bargaining agreement ("CBA") between
Borden and its labor force, which TMC would then assume.

Toward its goal of forming such an agreement, TMC
traveled to Youngstown to meet with the Bor den's
Youngstown employees, represented by Teamsters Local
377 ("Local 377"), and Eben Byers, the union's business
agent. TMC proposed a new CBA with moderate increases
in wages and benefits. Local 377 seemed responsive to
these proposals, though Byers noted that since Borden was
the employer of Local 377, any current agr eement needed
to be negotiated with Borden rather than TMC. Byers
understandably hoped that some agreement could be
worked out with TMC so that Local 377's members could
remain employed following Borden's sale of the Youngstown
facility.

On August 25, 1995, representatives fr om Local 205 and
TMC met at a hotel. Local 205 was represented by its
principal officer, William Lickert. Local 205 had somehow
become aware of TMC's plans to shift pr oduction jobs to
Youngstown and terminate workers at Local 205. Local 205
had invited the Chairman of the Teamster's Dairy
Conference, Fred Gregare, to the meeting in order to
negotiate in its interest and preserve the jobs of workers at
Local 205.

The facts of the meeting are in dispute, but it is clear
that there were strong words exchanged. Joseph Taylor
began the meeting by announcing TMC's intentions to
relocate production jobs. William Lickert responded by
waving a copy of the union's CBA and stating that Local
205 had the contractual right to "follow its work" to the
Youngstown facility.

Lickert asserted that a no-subcontracting clause in the
CBA prevented TMC from implementing its plan to shift
production to Youngstown. The CBA specified that "all dairy
products . . . shall be manufactured, pr ocessed, packaged
and/or handled by the Employer's employees .. . . No work
or services presently performed or hereafter assigned to the
collective bargaining unit . . . will be subcontracted . . . ."
(emphasis added). TMC maintains that this pr ovision was

                               4
not dispositive of the plan, since Local 205 would still
"handle" the products which were manufactured in
Ambridge and an exception clause excluded ice cr eam and
some other products from the scope of this provision.

Discussions deteriorated further. Gregar e, chairman of
the Teamster's Dairy Conference, then stated that he was
"implementing Article 12, Section 2" of the T eamster
Constitution and "giving jurisdiction of the Bor den
Youngstown plant to Local 205." (The parties now agree
that section 2 of Article 12 conferred no such authority.)
Gregare instructed Borden to sell the plant to someone else.2
The meeting ended soon thereafter.

Gregare sent follow-up letters to Bor den's Local 377
stating that section 2 of Article 12 of the T eamster's
Constitution was being implemented. Gregar e further
stated that he was requesting in accordance with section 2
of Article 12 that prior approval be granted before Local 377
ratified any collective bargaining agr eement. Gregare then
contacted Byers directly by telephone and told Byers not to
re-negotiate the Local 377-Borden contract but to listen to
any proposals and fax them to Gregar e. At trial, Gregare
admitted that he had no authority to requir e Byers to
obtain his approval before re-negotiating a contract. The
District Court found that Byers complied with this directive
out of fear that Local 377 would be placed in trusteeship if
Byers disobeyed Gregare's orders.

On September 1, Borden offered a CBA proposal to Local
377 that Byers considered "ridiculous" but that would have
normally served as the basis for a counter -proposal from
Local 377. Per Gregare's instructions, Byers forwarded the
proposal to Gregare and did not r espond to the offer. Local
377 instead sent a letter to Gregare's superiors asking
whether Gregare truly had authority to negotiate on behalf
of Local 377 and requesting permission to proceed with
negotiations. No response was received.

On September 15, Borden again met with Byers and
_________________________________________________________________

2. At trial, Gregare denied invoking Article 12, Section 2, denied
awarding jurisdiction to Local 205, and denied telling Borden to sell its
plant to someone else. The trial court credited none of these denials.

                               5
informed Byers that Borden would have to close the plant.
Byers continued to follow Gregare's instructions not to
negotiate. Borden concluded that dealing with Byers was
not effective and that Borden would have to deal with
Gregare directly. On October 2, Bor den met with Gregare
on Gregare's home base in Wisconsin. Byers was present
for "a very short meeting," but was then excluded from
negotiations, which were conducted only by Gr egare and
Borden. When negotiations were finished, Gregare informed
Byers that a counter-proposal had been made, that the
counter-proposal had been rejected, and that the plant
would close. Byers expressed a desire to continue
negotiations but Gregare refused to negotiate further.
Consequently, the deal between TMC and Borden fell
through and the Youngstown plant was closed. All Local
377 employees at the Youngstown facility wer e terminated.

TMC filed suit against IBT under the Labor Management
Relations Act ("LMRA"), 29 U.S.C. S 187(a), seeking
damages for an alleged violation of the secondary boycott
provisions codified at 29 U.S.C. S 158(b)(4). The District
Court bifurcated the damage and liability trials. The trial
court found that the defendants were liable for violating 29
U.S.C. S 158(b)(4) and entered judgment for TMC in the
amount of $50,000 plus prejudgment inter est. TMC appeals
the damages verdict, alleging that it was entitled to a larger
damages award. IBT cross-appeals the liability verdict,
asserting that 29 U.S.C. S 158(b)(4) was never violated.

The District Court had jurisdiction over this case
pursuant to 29 U.S.C. S 187 and 28 U.S.C.S 1331. Our
appellate jurisdiction is pursuant to 28 U.S.C.S 1291.
Factual findings of the District Court are r eviewed for clear
error. Sheet Metal Workers Local 19 v. 2300 Group, 949
F.2d 1274, 1278 (3d Cir. 1991). The District Court's
application of legal precepts is subject to plenary review.
Holmes v. Millcreek Tp. Sch. Dist., 205 F .3d 583, 589 (3d
Cir. 2000).

II.

1. Liability

Local 205 and IBT state that they did not violate 29
U.S.C. S 158(b)(4)(ii)(B), and that the District Court erred by

                               6
concluding that they did so. That statute pr ovides, in
applicable part:

       (b) Unfair labor practices by labor or ganization. It
       shall be an unfair labor practice for a labor
       organization or its agents--

       (4) . . . . (ii) to threaten, coerce, or restrain any person
       engaged in commerce or in an industry af fecting
       commerce, where . . . an object ther eof is--

       . . . .

       (B) forcing or requiring any person . .. to cease doing
       business with any other person, . . . Provided, That
       nothing contained in this clause (B) shall be construed
       to make unlawful, where not otherwise unlawful, any
       primary strike or primary picketing;

29 U.S.C. S 158(b)(4).

We have summarized the purpose of the secondary
boycott provision in our opinion in Limbach Co. v. Sheet
Metal Workers Int'l Ass'n, 949 F.2d 1241, 1249-50 (3d Cir.
1991).

       Section 8(b)(4)(ii) of the NLRA prohibiting secondary
       boycotts by unions essentially prohibits union conduct
       designed to force a primary employer (the employer
       with which the union has a dispute) to bargain with a
       union or to force a neutral employer (an employer with
       which the union has no dispute) to cease doing
       business with the primary employer. The pr oscribed
       methods used to achieve the objectives include
       threatening, coercing, or restraining the secondary
       employer. See, e.g., Soft Drink Workers Union Local 812
       v. NLRB, 212 App. D.C. 10, 657 F.2d 1252 (D.C. Cir.
       1980). Coercion can include economic pr essure upon
       the neutral party. Allentown Racquetball & Health Club,
       Inc. v. Building and Constr. Trades Council of Lehigh
       and Northampton Counties, 525 F. Supp. 156 (E.D. Pa.
       1981). The purpose of the prohibition against
       secondary boycotts is to shield unoffending employers
       from pressures in disputes not their own, though
       preserving the rights of unions to bring pr essure to
       bear on offending employers in primary labor disputes.

                                7
       Anderson v. International Bhd. of Elec. W orkers, Local
       No. 712, AFL-CIO, 422 F. Supp. 1379 (W .D. Pa. 1976).

Id.

The District Court found that IBT violated this section
when Gregare, representing the interests of Local 205,
usurped Local 377's place in negotiations to pr event Borden
from continuing negotiations with TMC. The District Court
concluded that Borden was a neutral thir d party and that
Gregare's actions, in preventing negotiations between Local
377 and Borden, forced Borden to cease doing business
with TMC. IBT argues that this was an err oneous decision
for a number of reasons.

First, IBT suggests that because Local 377 was within its
rights in "following Gregare's advice" and deciding not to
negotiate with Borden, there was no unlawful activity. This
ignores the Limbach rule that we look to the intention of the
parties in coercing neutral parties, not to the general rights
of parties to take particular actions. See id. , 949 F.2d at
1252-53 (stating that the exercise of legitimate rights may
be unlawful if exercised "for the purpose of applying
economic coercion to achieve a prohibited secondary
objective"). IBT suggests that Gregar e was operating in the
best interest of Local 377 in rejecting its offer, but this is
contrary to the facts found by the District Court. The
District Court found that Gregare was not operating in the
interests of Local 377, but was instead inter fering in the
negotiations between Local 377 and Borden towar ds the
end of preventing Borden from continuing in its business
negotiations with TMC. This determination has adequate
support in the record.

Second, IBT suggests that Gregare could not have exerted
coercive economic influence on Borden because Borden
never intended to negotiate an agreement with Local 377.
For the same reason, IBT suggests that it was not the
proximate cause of any damages, since Bor den would not
have sold the facility to TMC. Again, there is no clear error
in the District Court's determination that this was not the
case. The District Court credited the testimony of Byers
that Borden's initial offer did not indicate an unwillingness
to negotiate but instead constituted an initial"wish-list"

                               8
which, through the process of negotiation, could have led to
more reasonable terms.

Third, IBT suggests that the District Court err ed by
concluding that Borden was a neutral party because
Borden was operating as the alter-ego of TMC. Therefore,
IBT argues, any coercive pressur e applied against Borden
was legitimate, since it was directed against TMC, not
Borden. The test of whether two employers constitute a
"single entity" under the secondary boycott pr ovisions of
the LMRA is based on: (1) common ownership; (2) common
management; (3) centralized control of labor r elations; and
(4) interrelationship of operations. Boich Mining Co. v.
NLRB, 955 F.2d 431, 434 (6th Cir. 1992). The District Court
did not err by concluding that Borden and TMC were not a
"single entity" under this test.

Insofar as Local 205 is merely suggesting that it was in
TMC's interest that Borden obtain a CBA with Local 377, it
is also true that successful negotiations wer e in Borden's
interest as well. Just because the inter ests of TMC and
Borden were aligned does not mean that Bor den and TMC
were the same entity for the purposes of the LMRA's
secondary boycott provisions. It is axiomatic that business
relationships exist in those cases wher e such relationships
operate to the mutual benefit of parties.

Fourth, IBT suggests that Borden was not "doing
business" with TMC because this was a case involving the
sale of a single asset. This is relevant because if TMC and
Borden were not doing business, it would be impossible for
IBT to have coerced them to cease doing business in
violation of 29 U.S.C. S 158(b)(4)(ii)(B). IBT cites Amax Coal
Co. v. NLRB, 614 F.2d 872, 885-86 (3d Cir . 1980), where
this Court stated:

       The phrase "doing business" refers to a continuing
       business relationship which is capable of being
       discontinued by one employer in order to for ce another
       employer to accede to union demands. Thus, as noted
       earlier, Section 8(e) was designed to pr otect neutral
       employers and their employees, not involved in a labor
       dispute, from being pressured to assist a union in a
       dispute with another employer.

                               9
In Amax, a union sought to bind its primary employer to a
commitment that any successor to the operation would
abide by the terms of the current bar gaining agreement.
This Court held such proposed successorship arrangements
do not constitute interference in "doing business." The
Court also held in the alternative that "even if the
conveyance of a portion of Amax's coal mining operations
. . . constituted `doing business' " the fact that the
employees of both businesses were identical made this a
primary rather than secondary boycott. Id. at 886.

The District Court concluded that Amax did not apply to
this case because a trademark licensing provision in the
proposed contract of sale between Borden and TMC
envisioned a continuing business relationship over several
years. IBT challenges this conclusion. It str essed that it had
no knowledge of the proposed trademark licensing
agreement and that, therefore, it could not have had as its
"object" the disruption of such a business r elationship. 29
U.S.C. S 158(b)(4)(ii). This point is well-taken. Because no
finding was made below that IBT was aware of the
trademark licensing provision, we cannot affirm the District
Court's decision on this basis.

We conclude, however, that the District Court's decision
on this issue can be affirmed on the alter native ground that
a continuing long-term negotiation over the purchase of a
new asset from a neutral party meets the "doing business"
requirements of 29 U.S.C. S 158(b)(4). As we stated in
Limbach, the secondary boycott provisions are directed at
preventing a union from leveraging a neutral third party's
relationship with a primary employer in or der to force the
primary employer to accede to the union's demands.
Limbach, 949 F.2d 1249-50. This clearly happened in the
present case. Gregare disrupted Bor den's negotiations with
Local 377 with the objective of preventing TMC from
negotiating to purchase the Borden facility. Gregare's
ultimate goal was to prevent TMC from cutting Local 205's
production jobs at Ambridge.

Amax, upon which IBT relies, is not helpful here. In
Amax, no third party had yet appear ed on the scene.
Therefore, in Amax, no neutral party could be leveraged in
order to aid the union in its primary dispute. Here a third

                               10
party did exist and was indeed successfully leveraged to
allow IBT to achieve its primary objective. Accor dingly, we
will affirm the District Court's decision on the issue of
liability.

2. Damages

TMC alleges that it was damaged to the extent that it lost
the benefit of purchasing the Youngstown facility. TMC
claims that had it purchased the Borden facility and cut
production jobs at Ambridge, it would have made a profit
from the resulting synergies. While the District Court
characterized the exact calculations of Joseph T aylor and
TMC's expert witnesses as "rosy," it apparently accepted
that some profits would have been likely to r esult from this
plan, dubbed "Plan A" by Taylor. Plan A, however, was
based on the premise that the CBA between Local 205 and
TMC would be interpreted at arbitration to per mit milk
production jobs to be moved to Youngstown.

Joseph Taylor testified that even if the CBA had been
interpreted in favor of Local 205, he would have still
purchased the Youngstown facility. T aylor had two
contingency plans based on this eventuality, and Joseph
Taylor testified some profits would have occurred under
these two contingency plans (dubbed "Plan B" and "Plan
C").

Damages here are claimed pursuant to 29 U.S.C.
S 187(b). That statute states:

       Whoever shall be injured in his business or pr operty by
       reason [of] any violation of subsection (a) may sue
       therefor in any district court of the United States
       subject to the limitations and provisions of[29 U.S.C.
       S 185] without respect to the amount in controversy,
       . . . and shall recover the damages by him sustained
       and the cost of the suit.

It is axiomatic that in the typical case "plaintiff bears the
burden of proving every element of his case, including
damages." Rochez Bros. v. Rhoades, 527 F.2d 891, 894 (3d
Cir. 1975). Violations of 29 U.S.C.S 158(b)(4)(ii) sound in
tort, and are in the nature of inter ference with
advantageous economic relations. Allied Int'l v. International

                               11
Longshoreman's Ass'n, 814 F.2d 32, 40 (1st Cir. 1987). The
statute here, 29 U.S.C. S 187(b), r equires proof of injury "by
reason" of an unfair labor practice. These two words must
be read as requiring that TMC prove some causal nexus
between IBT's activities and an injury TMC has suf fered.
Tresca Bros. Sand & Gravel v. T ruck Driver's Union, Local
170, 19 F.3d 63, 65 (1st Cir. 1994); Feather v. UMW & Dist.
2, 711 F.2d 530, 538 (3d Cir. 1983).

TMC points out, correctly, that if it has pr oven that some
damage occurred, a District Court is per mitted to award an
amount of damages that is "to some extent impr ecise."
Scully v. US Wats, Inc., 238 F.3d 497, 515 (3d Cir. 2001).
All that is required is that sufficient facts be introduced for
a court to arrive at an intelligent estimate without
speculation or conjecture. Id. "[T]he law does not command
mathematical preciseness from the evidence in finding
damages. . . ." Rochez, 527 F.2d at 895.

Although the District Court did characterize TMC's
damages claim as speculative, TMC mistakenly attributes
the District Court's uncertainty to an inability tofix a
precise amount of damages. Rather, the District Court was
skeptical as to whether TMC had suffer ed damages at all,
making the cases cited by TMC inapplicable. See Kemmerer
v. ICI Ams., Inc., 70 F.3d 281, 290 (3d Cir. 1995) (finding
that where "the very existence of damages" is in dispute,
equitable principles do not compel a damages awar d);
Blanche Road Corporation v. Bensalem Township , 57 F.3d
253, 265 (3d Cir. 1995).

Our review of the record reveals that the District Court
did not commit clear error insofar as it found that TMC had
failed to prove the profitability of Plan B and Plan C. TMC
was, however, entitled to a determination of whether it
could have implemented Plan A. If it was likely that Plan A
would have been successfully implemented, TMC would
presumably have suffered some damages. To determine if
Plan A could be implemented, the District Court was
required to examine all the evidence befor e it, including the
text of the CBA.

It is not clear that the District Court made such an
examination. Instead, the District Court declar ed that it

                                12
would be usurping the role of the arbitrators if it
interpreted the relevant portion of the CBA. The District
Court then relied on the following testimony of TMC's labor
counsel:

       If the whole thing hinged just on winning that
       arbitration, if it was a gamble, throwing the dice or the
       turn of the cards, on that alone, it would have been
       chancie [sic] at best under the circumstances at which
       we would have gone to the arbitration table. The
       language was definitely in favor of Taylor Milk's
       position. The "otherwise handled" language. However,
       there were no attorneys permitted unless both sides
       agreed. There were named arbitrators. And I believe
       had we had ad hoc arbitration with attorneys present,
       we would have had an excellent chance of winning.
       Under the burden under which we labored under that
       contract, I think it would have been a good possibility
       of winning, but it would not have been a sur e thing by
       any means.

Apparently, based upon the attorney's opinion that the
arbitration would be chancy and that there would have
been "a good possibility" of winning, the District Court
concluded that TMC had "proved only that it had some
possibility of winning an arbitration but not that a victory
was assured or even likely." We find two legal errors in the
District Court's analysis.

First, because TMC was entitled to prove damages, the
District Court was required to deter mine whether it was
more likely than not that TMC would have won the
arbitration. The District Court could not have done this
without considering the disputed text of the CBA. The
District Court erred insofar as it concluded that it was
precluded from considering the CBA because the parties
had agreed to arbitrate and it was not pr oper for the
District Court to opine as to the outcome of arbitration. To
the contrary, it is not uncommon for a District Court to be
called upon to determine what the result of a dispute
resolution process would have been if one party had not
forgone the opportunity to seek arbitration. 3
_________________________________________________________________

3. TMC was required by law to establish by a preponderance of the
evidence that it would have suffered damages. Given the District Court's

                               13
Second, we conclude the District Court erred insofar it
relied exclusively on the testimony of TMC's counsel to
conclude that TMC was not likely to prevail. In fact, the
testimony was consistent with the proposition that an
arbitration victory for TMC was more likely than not.
Although TMC's counsel did suggest that arbitration was
chancy, he later stated that TMC had a "good possibility of
winning." We do not see how these r emarks, taken as a
whole, can be interpreted as suggesting that it was unlikely
that TMC would have prevailed at arbitration.

We also note that the District Court awar ded $50,000 to
TMC in damages. This amount is equal to the amount paid
by TMC to Borden for the exclusive right to pur chase the
Youngstown plant. At the same time, the District Court
denied TMC $162,000 in out-of-pocket expenses associated
with TMC's efforts to purchase the facility. Both parties are
correct in arguing that this awar d was erroneous as it
appears internally inconsistent to awar d one sunk cost
associated with TMC's right to purchase the Bor den facility
yet deny other sunk costs related to the same transaction.

In the interest of administrative economy, we will clarify
what we feel to be the correct legal analysis in relation to
these expenses. If, upon remand, the District Court
determines that TMC would not have prevailed at
arbitration and maintains its determination that Plans B
and C would not have been profitable, it is clear that TMC
could have suffered no damage from IBT's actions, as the
loss of TMC's right to purchase the Bor den plant would
have placed it in no worse of an economic position than if
it had purchased the plant. In other wor ds, If TMC could
not have profited from purchasing the Borden plant, there
_________________________________________________________________

determination that TMC did not carry its bur den of proving the
feasibility of Plans B and C, TMC was requir ed to prove it would have
prevailed in the arbitration in order to prove damages. Only if Plan A was
feasible could TMC have suffered fr om the loss of the ability to
implement plan A. Thus, some analysis of the likely outcome of
arbitration was required. Local 205 was the only defendant that could
have required arbitration of this issue and its failure to do so should
not
operate to the detriment of TMC.

                               14
can be no basis for awarding TMC damages.4 If, on the
other hand, TMC can prove to the District Court's
satisfaction that it would have consummated Plan A and
made a profit, then the exclusive pur chase option and the
out-of-pocket expenses associated with that pur chase
cannot be directly recovered. Instead, they should be
factored as expenses counted against any calculation of
future profits.

III.

For the above reasons, we will reverse the District Court's
judgment and remand this matter to the District Court for
further proceedings consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

4. The District Court characterized the $50,000 as money which TMC
"indisputably lost." Though this is true, the statute is explicitly
limited
to losses which occur by reason of the defendant's unfair labor practices.
Even had IBT not violated the law, TMC would never have recovered the
cost of its purchase option. Plaintiff 's characterization of this award
as
"restitution" is both novel and err oneous. A theory of restitution could
not justify such an award, as IBT was never unjustly enriched by TMC's
payment. See ATACS Corp. v. Trans World Communs., 155 F.3d 659, 669
(3d Cir. 1998) ("Accordingly, restitution damages will require the party
in
breach to disgorge the benefit received by returning it to the partywho
conferred it.").

                                15
