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December 17, 1974


The opinion of the court was delivered by: BECHTLE


 The Celotex Corporation ("Celotex") commenced this action under § 301 of the Taft-Hartley Act, 29 U.S.C. § 185, against the International Union of District 50, Allied Technical Workers of the United States and Canada ("International") and Local 12829 ("Local"), to recover damages sustained as a result of the breach of a no-strike clause contained in the collective bargaining agreement entered into by the above-captioned parties. *fn1" The case proceeded to a bifurcated trial before a jury of eight. After the International and the Local were both found to have breached the collective bargaining agreement, the trial was reconvened on the issue of damages. At the close of testimony on damages, *fn2" the jury awarded the plaintiff $40,000 in total damages. Presently before the Court is the defendants' motion for a new trial on the issue of liability only. For reasons hereinafter stated, the motion will be denied.


 At all times material to this action Celotex owned and operated an industrial plant located at 36th Street and Grays Ferry Avenue, Philadelphia, Pennsylvania. The plant, which consisted primarily of two production departments known as the Felt Mill and the Roofing Mill, employed approximately 250 persons on an hourly basis and was engaged in the manufacturing of roofing materials. The roofing materials produced at the plant were sold on a regular basis to customers of Celotex.

 The collective bargaining agreement between Celotex, the International, and the Local contained the following provision:

"During the period of this agreement, the Company agrees there will not be any lockout and the Union agrees that the Union will not authorize, call, support, sanction or approve any slowdown or stoppage of work in any form except in case of a refusal by the Company to comply with the grievance procedure set forth in Article V of this agreement." *fn3"

 In accordance with established company practice, the Felt Mill was scheduled to be shut down beginning March 7, 1970, for a two-week annual maintenance overhaul. Because the Felt Mill provides the Roofing Mill with products and supplies used in the manufacturing of roofing materials, sufficient materials were inventoried so as to enable the Roofing Mill to operate throughout the planned maintenance and repair shutdown. During the overhaul period, only maintenance employees were scheduled to work in the Felt Mill. Production employees were temporarily transferred to other departments, took their vacations, or were laid off for a brief period of time. The major repair and maintenance work was to be done by independent contractors who had entered into fixed-price contracts with Celotex. The outside contractors had no connection with the plaintiff or the labor unions involved herein other than the contractual agreement to perform certain repair work on plant machinery. In order to complete the repairs and maintenance work provided for in the contract within the two-week period, the employees of the independent contractors were required to work overtime.

 From March 5 to 11, inclusive, brief unauthorized walkouts of the maintenance employees in the Felt Mill occurred. The evidence adduced at trial demonstrated that the apparent cause of the work stoppages was the dissatisfaction of the Felt Mill employees with the fact that the employees of the independent contractors were working overtime at the plant and the regular Celotex employees were not. The Celotex employees believed they were being unfairly deprived of the opportunity to work overtime because of the overtime work of the contractors. On March 12, 1970, a significant number of Celotex employees (members of the Local) engaged in another walkout to protest the lack of overtime. At approximately 11:00 a.m. on March 12, Albert D. Plusch, Assistant Regional Director of the International, and other union officials went to the office of the General Manager of the Celotex plant, Gerald L. Talbot, where an informal discussion of the overtime problem in the Felt Mill was held. What transpired at the meeting was the subject of much dispute at the trial. Plusch testified that he was advised by Talbot that there was a need for experienced maintenance men in the Felt Mill and that the Celotex employees could work "as much as sixteen hours a day." The plaintiff admitted that Talbot made the above statement, but contended at trial that the offer of overtime was conditioned on confirmation of actual need for extra work and the approval of Alfred Connor, the plant maintenance supervisor. In any event, Plusch left the office and promptly relayed his version of the overtime offer to the men who had walked off the job on the morning of March 12. The employees immediately went into the plant and began to work. However, at the close of the day shift on March 12, insufficient overtime was scheduled for the maintenance employees at the Felt Mill to satisfy employees at the Celotex plant.

 At a regularly scheduled grievance meeting conducted the next day, at approximately 9:00 a.m., the overtime issue was again raised. Tempers flared and a heated discussion between union officials and management ensued concerning the failure of the company to provide the opportunity for overtime allegedly promised the previous day. Talbot attempted to explain to Plusch and the other Local officials present that overtime could not be assigned indiscriminately but that it would be given when needed and to those workers who possessed the requisite skills. The meeting ended abruptly. According to Talbot's testimony (introduced via the witness' deposition at p. 53), Plusch made the following statement in the presence of all those people who attended this meeting:

"If all of maintenance people aren't asked to work overtime tonight, then he [Plusch] acting for the union would sanction the people walking out, and I don't care if I don't have a job tomorrow."

 Plusch denied making the above statement.

 The 4:00 p.m. shift did not report to work on the afternoon of March 13. Following shifts also failed to report to work as scheduled. The evidence established that the unauthorized work stoppage continued from 4:00 p.m. on Friday, March 13, until Thursday, March 19, at which time the plaintiff secured an injunction from the Court of Common Pleas of Philadelphia County. The order issued by the State Court enjoined the Celotex employees from striking in violation of the "no-strike" clause. In light of scheduling and other related difficulties, the plaintiff decided not to begin full plant operations until Monday, March 23.

 In addition to the statement allegedly made by Plusch at the conclusion of the March 13 meeting, plaintiff introduced evidence to show that, shortly after the inception of the March 13 work stoppage and throughout the unauthorized walkout, striking employees carried signs bearing the legend "District 50 on Strike" in and about the Celotex plant. Plaintiff contended that Plusch distributed the above-described strike signs to the striking employees from the trunk of his car. Plusch ...

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