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September 26, 1973


Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 I. Preliminary Statement

 This is a suit for damages arising out of breach of a no-strike clause of a collective bargaining agreement between Highway Truck Drivers and Helpers Local 107 (Local 107) and a large number of firms in the trucking industry in the Philadelphia area. *fn1" Plaintiffs are some eighteen trucking companies and two industrial concerns who were parties to the agreement. The events in question occurred between June 20 and June 25, 1965, and stemmed directly from a work stoppage that commenced on June 11, 1965, at the terminal of Roadway Express, Inc. (Roadway), whose employees were also represented by Local 107. The events occurring at Roadway have been detailed elsewhere and need not be repeated here. *fn2"

 In our Opinion of October 6, 1972, we addressed the question whether certain actions of Michael Hession, Local 107's chief executive officer, as they were presented to us in the record on the summary judgment motion, were as a matter of law insufficient to absolve the union from liability for the continued breach of the collective bargaining agreement from June 22 through June 25. We concluded that on that record there remained a genuine issue of material fact so that summary judgment could not be granted. The record at that time was simply that at a June 21 membership meeting, Hession admonished the membership that they would be in violation of a state court injunction if the stoppage continued, that he had "ordered" the union members to go back to work, and that they had refused to do so. We thereupon noted:

As a general proposition, a functioning union is held responsible for the mass actions of its members. Vulcan Materials Co. v. United Steelworkers, 430 F.2d 446, 455 (5th Cir. 1970), cert. denied, 401 U.S. 963, 91 S. Ct. 974, 28 L. Ed. 2d 247 (1971); United States v. Brotherhood of R.R. Trainmen, 96 F. Supp. 428, 431 (N.D.Ill.1951); United States v. UMW, 77 F. Supp. 563, 566-567 (D.D.C.1948), aff'd, 85 U.S.App.D.C. 149, 177 F.2d 29, cert. denied, 338 U.S. 871, 70 S. Ct. 140, 94 L. Ed. 535 (1949). This "rule" is not a statement of the law, but a common-sense proposition of logical factual inference. In United States v. UMW, supra, despite a lack of evidence that union leaders had called a strike, the court nevertheless inferred from a mass walkout that the union was responsible: "[Men] don't act collectively without leadership. The idea of suggesting that from 350,000 to 450,000 men would all get the same idea at once, independently of leadership, and walk out of the mines, is of course simply ridiculous." 77 F. Supp. at 566. Furthermore, when, as here, the union leadership instigates the decision to go out on strike, it can be inferred that the leadership also plays a role in the decision when work will resume. Mere failure to take substantial steps to get the membership back to work can constitute sufficient union involvement in the illegal strike to sustain its liability. Vulcan Materials Co. v. United Steelworkers, supra, 430 F.2d at 456-457; United States v. UMW, supra, 177 F.2d at 36; see United Constr. Workers v. Haislip Baking Co., 223 F.2d 872, 876 (4th Cir.), cert. denied, 350 U.S. 847, 76 S. Ct. 87, 100 L. Ed. 754 (1955); United States v. UMW, 89 F. Supp. 179, 181 (D.D.C.1950), appeal dismissed as moot, 88 U.S.App.D.C. 341, 190 F.2d 865 (1951). The court in Vulcan Materials Co., supra, articulated and applied the standard that a union cannot be exonerated from liability for an illegal strike unless its leaders take action which could reasonably be expected to effectuate a return to work. 430 F.2d at 457. And in United States v. Brotherhood of R.R. Trainmen, supra, the court found tacit union approval of an illegal strike in the union's failure to discipline striking members. 96 F. Supp. at 432. While the Union has the burden of demonstrating that it exerted very substantial and sincere efforts to get the men back to work if it is to avoid liability in these circumstances, the foregoing precedents refute the plaintiffs' contention that a union is responsible for any strike that it instigates, regardless of any unsuccessful effort it may make to terminate it.
The record before us is far from impressive as to the Union leadership's efforts to get the men back to work at the end of the first day of the strike. However, there is some indication that officials of Local 107 did make such an effort, and we have before us no countervailing evidence that Hession's communications to the Union rank and file were not made in good faith, see United States v. UMW, supra, 89 F. Supp. at 181, or that other communications were made by Union officers to the membership encouraging them to continue the strike, cf. Adickes v. S.H. Kress & Co., supra. And on a motion for summary judgment, unlike in a decision after trial in a nonjury case, we are not free to draw inferences unfavorable to the Union when other inferences are supportable. At the trial both parties will have the opportunity to present additional evidence, if any there be, bearing on the Union's responsibility for the continuation of the strike after the first day. Since on the present record we are unable to say that the facts are genuinely undisputed so that only legal issues remain, summary judgment is denied on the question of the Union's liability for continuation of the strike after June 21, 1965.

 In the course of our present deliberations, we have again reviewed the cases cited in the foregoing excerpt from our previous Opinion and certain additional cases which the parties have cited in their briefs after trial. *fn3" Having done so, we are satisfied that, in a situation where union leadership took action directed toward getting the rank and file back to work after commencement of a strike, authorized or not, there is not yet a definitive holding by a federal appellate court, or even a federal district court, that such action can absolve the union from liability for damages (as the union argues), or that it cannot (as the plaintiffs contend). Moreover, in this particular case, that fundamental, but as yet unresolved, issue is clouded by the existence of a contractual provision. Article 43, § 7 of the agreement between the parties provided:

(a) It is further mutually agreed that the Local Union will, within two (2) weeks of the date of the signing of this Agreement, serve upon the Employer and the Employer Association a written notice, which notice will list the Union's authorized representatives who will deal with the Employer, make commitments for the Union generally, and in particular have the sole authority to act for the Union in calling or instituting strikes or any stoppages of work, and the Union shall not be liable for any activities unless so authorized. It is further agreed that in all cases of an unauthorized strike, slowdown, walkout, or any unauthorized cessation of work in violation of this Agreement, the Union shall not be liable for damages resulting from such unauthorized acts of its members.
(b) A properly designated officer of the Eastern Conference of Teamsters shall, within twenty-four (24) hours after request is made, declare and advise the party making such request, by telegram, whether the Conference has authorized any strike or stoppage of work. The Eastern Conference of Teamsters shall take immediate steps to terminate any strike or stoppage of work which is not authorized by it without assuming liability therefor.
It is understood and agreed that failure of the Eastern Conference of Teamsters to authorize a strike by the Local Union members shall not relieve such Local Union of liability for a strike authorized by it and which is in violation of this Agreement.

 This provision raises the question whether the parties have contracted away liability of the union for actions of the membership at the point at which they become unauthorized (see note 8 infra).

 As to the fundamental legal issue which we have described, it would seem to be a keystone of our national labor policy that a union not be permitted to absolve itself from liability when its membership has acted en masse in breach of an agreement; on the other hand, we cannot gainsay that there may be a meritorious case where bona fide and substantial, indeed Herculean, efforts of the union leadership would justify such absolution because of unique or special circumstances giving rise to the continuance of a work stoppage. Fortunately, it is not necessary that we reach, hence we do not decide, those difficult questions in this case, even though the ...

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