facility for an extended time protecting equipment and performing other non-productive functions. This element of plaintiff's claim was proven by competent evidence.
2. Plaintiff seeks recovery for expenses for plant security in the amount of $ 24,661.80, an item of extra expense caused by the wildcat strike, and recoverable under Tenneco. The company procured services of outside security forces to protect its plant and personnel and, since the union offered no evidence to rebut the reasonableness of the expenses under the circumstances, the item should be allowed as proven.
3. Plaintiff incurred demurrage charges in the amount of $ 514 as a direct result of the wildcat strike, which expense is a recoverable item. International Union of Operating Engineers v. Dahlem Construction Co., 193 F.2d 470, 472 (6th Cir. 1951). Plaintiff incurred truck freighting charges in the amount of $ 331.50, diverse miscellaneous expenses in the amount of $ 4,079.92, plus an expense in the sum of $ 247.43 for storehouse consumables, which expenses all were directly attributable to the strike. These expenses were proven by competent evidence and are recoverable in this action. Wagner Electric Corp. v. International Union of Electrical, Radio & Machine Workers, 496 F.2d 954 (8th Cir. 1974); United Electrical, Radio & Machine Workers v. Oliver Corp., 205 F.2d 376 (8th Cir. 1953).
4. Plaintiff seeks recovery for Blue Cross and Blue Shield costs which it paid for both union and management employees idled by the strike in the amount of $ 15,525.04. Group health insurance is a recoverable fixed expense in a § 301 action for breach of a no-strike clause in a collective bargaining agreement, under Tenneco, and plaintiff has proven this element of damages by competent evidence. Accordingly, plaintiff is entitled to recovery.
5. Plaintiff incurred the cost of real property taxes, computed at $ 4,737.76, upon its idled property during the course of the strike. Plaintiff has proven its claim for such payments and is entitled to recovery of the same under Tenneco.
6. Plaintiff seeks recovery for reasonable legal expenses and disbursements in the sum of $ 5,035.37, which were incurred in an effort to end the illegal strike. Plaintiff established that all of this amount was incurred in connection with the work stoppage. Such expenses and disbursements are recoverable as an item of damages in a § 301 action. Eazor Express v. Teamsters, supra, at 520 F.2d 972; Sheet Metal Workers Local 223 v. Atlas Sheet Metal Co., 384 F.2d 101, 110 (5th Cir. 1967). This item must, accordingly, be allowed.
7. Plaintiff established by the weight of the evidence that the illegal strike resulted in higher power costs on a unit basis for the month of May, 1977, than for the preceding months in the amount of $ 14,243.84. In Electrical Workers v. Oliver Corp., supra, the court allowed recovery for unused power which had been purchased by the company. We find that this power expense claim has been proven and that plaintiff is entitled to recover such costs.
8. In support of its claim for recovery of depreciation expenses, plaintiff relies on Tenneco v. Teamsters, supra and Mason-Rust Corp. v. Building Material Local 682, 324 F. Supp. 839 (E.D.Mo.1971). Neither case however, holds that depreciation expenses are recoverable. In remanding the question of damages in Tenneco, the court observed that the item of depreciation "is of very small magnitude, i. e. $ 69." 520 F.2d at 949. In dicta, the court listed several items that other courts have included as elements of damages in similar suits such as actual costs of operation and overhead expenses. Even assuming that depreciation expenses resulting from an illegal work stoppage were an item of damages within the contemplation of the parties at the time they entered into their collective bargaining agreement, we find that plaintiff's claim is speculative in this case.
Plaintiff's depreciation figures were based on the out-of-pocket costs it expended to build the equipment, depreciating historical costs on a straight line basis. Each depreciable item of property was identified with a rate assigned to correspond to the actual expected useful life of the item. Plaintiff claims that total depreciation, as set forth in PX 23, reflected a figure of $ 224,095.18 per month or $ 7,228.87 for each of the 31 days of May. Plaintiff seeks recovery for incurred uncompensated depreciation costs during the eight day strike in the amount of $ 57,830.97. We find that this figure is speculative because it fails to reflect an actual monetary reduction in value of the equipment in plaintiff's facility during the eight day strike. By failing to differentiate between depreciating idle and productive equipment which sustains wear and tear, plaintiff equates compensated and uncompensated depreciation costs. Accordingly, plaintiff's claim for depreciation costs must be denied.
9. Finally, plaintiff seeks recovery for prejudgment interest from May 25, 1977, the date on which the strike ended. In Eazor Express v. Teamsters, supra, the court stated:
The general rule is that when the damages resulting from a breach of contract are ascertainable with mathematical precision prejudgment interest is awardable as of right. If, however, the claim is not for a liquidated sum but is nonetheless pecuniary rather than personal in its nature many courts will add prejudgment interest to the amount which they find would have been just compensation at the time of the breach, when in the exercise of their discretion it appears necessary to do so in order to arrive at fair compensation at the time of judgment. (Citations omitted). 520 F.2d at 973.
Eazor holds that this is an "appropriate rule for discretionary application as a matter of federal law in actions brought under section 301 of the Labor Management Relations Act for breaches of labor agreements." We find that plaintiff is entitled to prejudgment interest in this case in order to arrive at fair compensation at the date of judgment.
10. The defendant did not press the issue of mitigation of damages during trial. The doctrine of mitigation of damages has a limited application to situations in which a union or its members have breached a no-strike agreement by carrying on a strike in violation of the agreement. Eazor Express v. Teamsters, supra, at 969-970. It was not unreasonable for plaintiff to reject defendant's demand for amnesty; Airco is not required to take steps which it may reasonably regard as likely to have the effect of encouraging the strikers to repeat such contract-breaking breaches of industrial peace in the future. Plaintiff was justified in seeking immediate injunctive relief, to end the strike, particularly in view of the previous wildcat strike by members of Local 502 at the St. Marys facility. In the present case, the plaintiff did all that could reasonably be required of it to end the strike and thereby to mitigate the damages.
11. Defendant contends that allowance should be given to the union for a reasonable period of time within which it could have ended the strike. Defendant argues that there must be some time lag between the inception of the strike and the starting point of defendant's liability or the point at which the union was called upon and failed to exert all reasonable efforts to end the strike. Defendant relies on Eazor Express, wherein the court determined that such a time lag extended for a period of 48 hours from the time of the unions' notification of the wildcat strike to the point at which they should have known that their diplomacy and persuasive efforts had failed and that the strike demanded effective sanctions. Officials of each of the three defendant unions had informed those within their charge of the illegality of their action and had urged the men to return to work. The court concluded that within 48 hours of the inception of the strike the unions should have been aware of the fact that resort to halfway measures had failed. The court cautioned against adopting an ironclad rule under all circumstances. Allowance for a grace period is particularly inappropriate in this case where the officials of the defendant local were in a position to end the strike in its nascent stage or even prevent the walkout but failed to take any persuasive measures within 24 or 48 hours of the strike. Furthermore, one of the union stewards within the plant encouraged the men to strike and led the walkout of the crew members of the graphitizing department. While an international union may not be required to bring forth its most effective sanctions immediately upon notification of a strike, the defendant local should have escalated its measures to include more than the mere perfunctory responses which the evidence discloses. Defendant can not be given any credit for any period following the inception of the strike where it failed to take any effective action during the pendency of the strike.
CONCLUSIONS OF LAW
1. The plaintiff is an employer and the defendant is a labor organization within the meaning of the Labor-Management Relations Act, 29 U.S.C. § 141, et seq.
2. Jurisdiction in this court is based on section 301 of the LMRA, 29 U.S.C. § 185.
3. The defendant breached its contractual obligation to utilize all reasonable means within its power to bring the illegal strike which occurred on May 17, 1977, to an end, and is, accordingly, liable to the plaintiff for its proven damages.
An appropriate order will be entered.