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Penn Packing Co. v. Amalgamated Meat Cutters and Butcher Workmen of North America

decided: May 31, 1974.

PENN PACKING CO., INC., APPELLANT
v.
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 195, AND JOE SIMON, CHARLES COLE, JAMES T. O'MALLEY, ALBERT FRANKENFIELD APPELLEE



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil Action No. 71-2416.

Hunter and Weis, Circuit Judges and Miller, District Judge.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

The recurring question of a union's responsibility for losses incurred by an employer as a result of a wildcat strike is before us in this appeal. We conclude that the district court's resolution of factual issues in favor of the union was not erroneous and that a proper interpretation of the collective bargaining agreement supports the judgment in favor of the defendant.

Two hundred members of Local 195 participated in an unplanned and unexpected work stoppage at the plaintiff-employer's plant in Philadelphia, Pennsylvania in the forenoon of October 6, 1971. At 10:00 P.M. on that same day, the district court issued a restraining order to end the walkout. However, the workers did not return until two days later, resulting in substantial loss to the plaintiff. The employer thereafter sought damages from the union alleging that it violated a no-strike clause in the contract.

The trouble at the plant began when the 4:00 A.M. cutting room shift, which ordinarily had its "lunch" break at 8:30 A.M., was ordered by the plaintiff's foreman to begin 15 minutes earlier. The foreman took this action because a conveyor belt had malfunctioned and had brought operations in the cutting room to a halt.

Some of the employees objected and their newly elected steward, Joseph Simon, so advised the foreman. After some discussion, the foreman called the company president, Martin Lipoff, to the scene, and Simon requested the plant's steward, Charles Cole, to join in the negotiations. Lipoff advised the stewards that they would be discharged if they did not abide by the foreman's order. When they failed to change their positions, Lipoff carried out his threat. It was then about 8:30 A.M., the regularly scheduled time for the lunch break, and all employees walked out. They did not return at 9:00 A.M. when the usual half hour lunch period ended.

In the interim, both Cole and Lipoff spoke by telephone to Albert Frankenfield, the union business agent, advising him of the problem.

Cole and Simon then spoke to the employees standing outside the plant and recommended a return to work. At this time Frankenfield and the union secretary-treasurer, James T. O'Malley, arrived at the plant and also urged the men to end the walkout. The employees, however, refused to do so, boisterously asserting that they would not return until Cole and Simon were reinstated.

Frankenfield and O'Malley went into the plant to negotiate with company officials, but Lipoff refused to rescind his discharge order. The union officers returned to the area outside the plant where the employees were assembled and again urged an end to the walkout. They were unsuccessful, the crowd emphatically refusing to follow instructions. Later that morning, on a third occasion, the union's efforts to get the men back to work had a similar, unsatisfactory result.

A meeting of the employees was scheduled to be held in the union hall at 10:00 A.M. on the following morning, October 8, 1971. Sentiment of the many who attended was to continue to remain away from work and was not changed until the officers, in a most unusual action, proposed that the union pay the salaries of Cole and Simon until an arbitrator had ruled on the propriety of their discharges.*fn1 This unprecedented suggestion was acceptable to the assembled workmen, and work resumed on the following day at 4:00 A.M.

The contract between the company and Local 195 included a no-strike clause which had been incorporated in various successive agreements between the parties for about twenty-five years. Apparently, its wording during that time had not been changed. It reads as follows:

"The Union for itself and for its individual members agrees and guarantees that there shall be no strike, stoppage of work, slowdown or other interference with production. The Employer agrees that he shall not lockout his employees ...


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