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May 9, 1969


The opinion of the court was delivered by: WOOD

 WOOD, District Judge.

 This is a motion for a new trial or judgment notwithstanding the verdict. Suit was initially commenced by Roadway under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against the defendant union for damages in connection with an alleged breach of a collective bargaining agreement then in effect between them. Roadway contended that the union had violated the "no strike" provisions of the agreement when it caused a prolonged work stoppage at Roadway's shipping terminals in Philadelphia and Wilmington following a seemingly minor altercation over working conditions rather than resolving the matter through the grievance procedure without a work stoppage as it was obliged to do under the agreement. After trial from December 12-19, 1968, a jury found in favor of Roadway and awarded it a recovery of $980,000 for damages incurred while the union was on strike.

 We will consider the grounds raised by the defendant in resisting the verdict in the order that they appear in the brief in support of his motion. The defendant first contends that, pursuant to 43 P.S. § 206h *fn1" as well as Article 4 and Article 43, Section 7(a) of the collective bargaining agreement, the union could not be held accountable in a civil action for the acts of its individual members unless it was shown that the union itself or its officers participated in, sanctioned, or ratified such acts. It is asserted that we should have submitted to the jury the question of whether the union's officers or business agents *fn2" actually approved of the work stoppages from which Roadway's damages flowed.

 This request comes rather late. The issue of authorization by the union or its officers was not raised in the written points for charge submitted to us by the defendant. *fn3" Nor did he, after our charge and before the jury retired, specifically state any desire to have the issue of authorization submitted to the jury, as is required by Rule 51. *fn4"

 In any event, as can be demonstrated from a review of uncontradicted evidence, it would be beyond our credulity to suppose that the officers and the union did not sanction the strike here complained of. The mass work stoppage developed from a series of incidents at the Roadway plant on the afternoon and early evening of June 11, 1965. A Roadway employee who was also a member of the union refused to load a truck in the manner in which the company instructed him to. After giving the employee a warning, a company representative served the employee with an Intent to Discharge which, under the bargaining agreement, was to take effect in twenty-four hours unless the other party resorted to the grievance procedure. During the remainder of the afternoon and into the evening, union business agents and company representatives met to discuss the dispute. There was testimony that union officials arrived at this meeting saying they had authorization to strike and that employees had been ordered not to perform the loading operation in question until the matter was resolved to the union's satisfaction. No grievance papers were filed protesting the imminent discharge for failure to load the truck. *fn5" Sometime in the course of that evening, all the members of the union employed at the Roadway Philadelphia terminal left their work and did not thereafter return. Late that evening or early the next morning, Roadway sent telegrams to Local 107, to the Teamsters Eastern Conference, and to the National Headquarters of the Teamsters, inquiring whether the foregoing events constituted a strike sanctioned by the union, and requesting compliance with the terms of the collective bargaining agreement. There is no evidence that the union ever responded to these inquiries, or commanded its members to return to work or desist in their obstruction of activity at the gate of the terminal. The work stoppage continued through the succeeding weeks, and there was uncontradicted testimony that a considerable number of Local 107 members, including business agents of the union, congregated outside the gate of the terminal and effectively prevented use of the terminal by the company. When the company attempted to move some of its equipment to another location, a group of Local 107 members which also included business agents harassed the company entourage and compelled its return to the terminal. When company officials attempted to leave the terminal for a meeting with the state court concerning the strike, a large number of Local 107 members and officers located outside the gate of the terminal obstructed passage of the company's car. The strike continued without any demonstrable attempt on the part of the union or its officers to have Roadway employees return to work.

 If the foregoing circumstances do not demonstrate union sanction of the strike, the failure of the union or its officers to command its men to return to work or to desist from their obstruction of activity at the Roadway terminal, the closing of the Wilmington terminal, and the enlargement of the work stoppage to a city-wide strike in support of the walkout at Roadway, certainly constituted a ratification of earlier acts by members of the union. Furthermore, on June 20, the membership of Local 107 met in a meeting chaired by its President at the Hotel Philadelphia. According to the official minutes of this meeting, the Secretary-Treasurer moved that members of Local 107 "take a holiday until such time as the Roadway strike is settled." The minutes expressly stated that all officers and agents of the union were present at this meeting with the exception of one business agent.

 In view of the overwhelming evidence of participation, authorization and ratification of the strike by the union organization, its officers, and the mass of Local 107 members, we must conclude that even if the authorization issue had been submitted to the jury, they could not have returned with any other conclusion than that the strike was fully authorized.

 The defendant's second objection is that the admission of testimony concerning violence and other acts directed against Roadway's property and supervisory personnel was immaterial, irrelevant, and highly prejudicial. It is contended that evidence relating to such acts would only be relevant if it could be shown that they were condoned or approved of by the union through its officers or business agents. United Mine Workers of America v. Patton, 211 F.2d 742 (4th Cir.1954) is cited for the proposition that "evidence of an attempted dynamiting was held to be improperly admitted and prejudicial where there was no evidence to connect the union with the attempt."

 We think that this objection lacks merit even under this authority cited to us because in each case there was either circumstantial evidence or direct testimony to identify and implicate both union officers and the mass of union members with the acts in question. We considered the testimony which showed that members of Local 107 congregated outside the gates of the Roadway terminal and, frequently by violent means, obstructed Roadway equipment from entering or leaving the site was very relevant in demonstrating the nature of the work stoppage and the course of the strike. There was testimony identifying both large numbers of Local 107 members and officers of the union present outside the gates of the terminal. Moreover, the continuation of such acts of harassment with the knowledge of union officers, and after repeated protests to the union by the company, suggests a strong inference that they were sanctioned by the union. Therefore, the Patton case is not relevant because there "* * * It was not shown by circumstantial evidence or otherwise that the defendants or, for that matter, any union member, had any connection whatever with either the dynamiting or the attempted dynamiting. Neither of the incidents (in Patton) had any tendency to connect the defendants with the strikes of which plaintiffs complained or to establish the damages sustained by plaintiffs as a result of the strikes." 211 F.2d 742, 750.

 The defendant's third objection is that "no damages should have been awarded because the work stoppage was provoked by the company's own conduct." In this connection, he now for the first time invokes the doctrine of Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 76 S. Ct. 349, 100 L. Ed. 309 (1956) that under certain circumstances, as a matter of construction of a specific collective bargaining agreement it may be concluded that a "no strike" clause in that agreement was not intended to preclude strikes provoked by the employer's unfair labor practices protected by Sections 7 and 8(a) of the National Labor Relations Act. The defendant contends that the issue of provocation or unfair labor practices by the employer should have been submitted to the jury.

 This seems to us to be an after-thought. The first three points of the defendant's written points for charge stated generally the principle of the law of contracts that a repudiation of a contract by one party may excuse performance by the other party. No authority was cited and there was no mention of Mastro or unfair labor practices on the part of the employer Roadway. We stated to the defendant prior to his argument to the jury that the aforementioned three points were disapproved "not on the law but in the manner in which (they were) written." Following arguments and our charge, there was no specific objection to our failure to charge on excuse of performance due to provocation, repudiation or unfair labor practices, as required by Rule 51.

 In any event, there was no attempt on the part of the defendant to bring the Mastro doctrine into the case during the trial. We do not consider Mastro relevant here anyway because there was no showing that Roadway was attempting to destroy the union or the collective bargaining rights of its employees protected by Sections 7 and 8(a), and because in any case it could not be said that the strike was directed solely against any alleged unfair labor practices of the employer. *fn6"

 The defendant's fourth objection is that "the issue of mitigation of damages was never submitted to the jury, despite (his) request for points for charge on this question. The jury should also have been asked to consider whether the management decision to keep the terminal open until November, 1965 was a ...

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