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AIRCO SPEER CARBON-GRAPHITE

September 24, 1979

AIRCO SPEER CARBON-GRAPHITE, a division of Airco, Inc. LOCAL 502, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, AFL-CIO.


The opinion of the court was delivered by: KNOX

MEMORANDUM OPINION

The plaintiff, Airco Speer Carbon-Graphite, a division of Airco, Inc., brought suit, basing jurisdiction upon Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. ยง 185, against the defendant, Local 502, International Union of Electrical, Radio & Machine Workers of America, AFL-CIO, seeking to recover compensatory damages allegedly resulting from an illegal work stoppage or wildcat strike in violation of the collective bargaining agreement then in effect between the parties. The case was tried to the court nonjury on February 20-22, 1979, and, in accordance with Fed.R.Civ.P. 52(a), the court makes the following findings of fact.

 FINDINGS OF FACT

 1. Plaintiff Airco Speer Carbon-Graphite, a division of Airco, Inc. (hereinafter "Airco"), is a corporation incorporated under the laws of the State of Delaware. Airco maintains a place of business in St. Marys, Pennsylvania, where it produces carbon and graphite products for use in the steel industry.

 2. Defendant Local 502, International Union of Electrical, Radio & Machine Workers of America, AFL-CIO (hereinafter "the Union"), is a labor organization which represents, for the purposes of collective bargaining the union members employed by Airco at its St. Marys facility.

 3. Plaintiff and the Union were parties to a collective bargaining agreement, effective June 9, 1975 until June 11, 1978, covering the Airco employees at the St. Marys facility, which agreement was in effect at all times material herein.

 4. Articles XVIII and XIX of the agreement contain a detailed grievance procedure including, as its last step, a provision for binding arbitration. Article XXII contains a no-strike clause which provides, as follows:

 
1. The Union will not cause or officially sanction its members to cause or take part in any strikes (including sit-downs, stay-ins, slowdowns or any other stoppages of work) and will cooperate with the Company in every way possible to prevent any such stoppages of work and to terminate such stoppages that may occur as soon as possible. The Company agrees not to lock out any of the employees.

 5. In May, 1977, the officers of the Union included Alfred A. Didonato, President; Jerome Vollmer, Vice President; Harry Yetzer, Treasurer; John V. Petrilli held the position of Field Representative of the International. William R. Smith, Chief Steward, was the highest ranking union official in plaintiff's St. Marys facility and William Allshouse held the position of Assistant Chief Steward. James Metrovich, Lynn A. Crosby and Joseph P. Cardoni were members of the Shop Committee who assisted the Chief Steward at the St. Marys plant.

 7. The production of graphitized electrodes at the St. Marys facility includes a graphitizing process which is accomplished in an Acheson furnace in the following way: a furnace is loaded with thirty-four 29 inch electrodes and, it is then connected to an electrical energy source and submitted to a two phase firing process which generates internal temperatures in the range of 2800 degrees Centigrade. The furnace is then disconnected from its energy source and the cooling process commences. After the furnace has been cooling for approximately ten days the pack material is shoveled away from the electrodes. Upon the completion of this procedure, known as "undermining," slings are placed around the electrodes and they are lifted from their beds by an overhead crane. ( n*13-20, *43-48, *63-64, *78).

 8. On May 4, 1977, Furnace # 1407 was disconnected from its energy source and on May 17, 1977, the furnace, having cooled for thirteen days, was prepared for undermining. James Majors and Al Dempsey, two of the workmen assigned to the graphitizing department for the second shift of the workday, were ordered to undermine Furnace # 1407 and began work shortly after 2:30 p.m. At 2:38 p.m. Majors reported to Roger M. Yeager, the foreman of the graphitizing department, that he was disabled due to a nagging chest injury and he was then relieved of his duties and taken to the hospital. ( *74, *84-86).

 9. At approximately 3:00 p.m. Dempsey complained to Yeager that the furnace was "too hot" to undermine and he was reassigned, pending an investigation. Yeager and the other foreman of the graphitizing department, Richard Caruso, examined the furnace and found that it had cooled sufficiently for undermining. They picked up the pack material and touched the electrodes with their bare hands and determined that Furnace # 1407 was cooler than many other furnaces at the undermining stage of the graphitizing process. ( *78, *87-92).

 10. In accordance with work seniority rules, Ed Auman and Ray Rowles, two of the other crew members, were assigned to undermine # 1407 and, approximately twenty minutes later, they also complained to Yeager that the furnace was too hot and refused to continue undermining it. The furnace was then examined by Frank A. Asti, the General Foreman, and Bertil B. Anderson, the Safety Engineer. They determined, from their direct observation, that the furnace was safe for undermining. James Gausman, the Superintendent of the Graphitizing Department, then met with the workmen and Union Steward for the crew, Bernard Heiberger, and reported that the inspections revealed that the furnace had sufficiently cooled and that the crew members would face disciplinary action if the assigned work were not performed. ( *49, *93, *96, *97, 7-9, 21-22, *95).

 11. Pursuant to their instructions, Dempsey and Rowles returned to undermine # 1407, and, at approximately 5:10 p.m., they again complained that the furnace was too hot and refused to undermine it. Caruso and Yeager instructed them to punch out and report to the Personnel office the following morning. Before the suspended workmen punched out at 5:19 p.m., they conferred with their steward, Bernard Heiberger. Heiberger told Yeager and Caruso that, if the men were suspended, "I'm going to take this whole place and shut it down. Go out and take everybody with me." ( *100-*104, 10-11).

 13. Chief Steward Smith and Assistant Chief Steward Allshouse learned of the undermining complaints at approximately 3:00 p.m. on the day of the walkout when Daugherty related the problem to them during the course of a grievance meeting. At approximately 4:00 p.m. Anderson informed Smith of the Gausman directive. Smith and Anderson then inspected the furnace together. Smith neither confirmed nor denied that the furnace was fit for undermining. Smith overheard discussion in the lunchroom at approximately 4:30 p.m. including a statement from Heiberger that the crew had to do something about the working conditions and that they weren't going to work under the present conditions. When Klaiber informed him that the graphitizing crew had walked out, Smith went to the graphitizing department office and remained there for approximately an hour until Daugherty arrived. ( *170-177, 29, 244-247, 262-263).

 14. Daugherty dispatched Smith and Allshouse to locate the graphitizing crew, advise them of their contract violation, and instruct the union officials to report to him before 8:00 p.m. Shortly after Smith and Allshouse left the plant and at approximately 6:48 p.m. the picketing commenced. ( *173, *177, 87-89, 249-250, 264).

 15. Smith and Allshouse drove to Heiberger's home and failing to locate him, they returned to St. Marys, stopping for ten or fifteen minutes at a softball field because Smith's wife and daughter were there. They next telephoned Didonato and failing to reach him, they telephoned Vollmer, received a busy signal, and then drove the eleven miles to Kersey to reach him at home. Smith and Allshouse then returned to the plant, arriving shortly after 8:00 p.m. (251, 265, 266, 251, 252, 267-268).

 16. When Smith and Allshouse failed to return to the Airco plant by 8:00 p.m., Daugherty called Didonato at his Ridgway residence advising him of the walkout and requesting action. Didonato immediately proceeded to the union hall in St. Marys and, upon his arrival at 9:00 p.m., called the Airco plant. The union officials who were assembled at the union hall agreed that the strike and picketing were illegal activities. Shortly before the third shift was scheduled to report at 10:30 p.m., an in-plant meeting was held between union and management officials. Airco demanded the removal of the pickets before 10:30 p.m. as a condition to negotiations. The pickets failed to disperse, however, and workers on the second shift, in large numbers, joined the picket line at the end of their shift. The third shift personnel either joined the pickets or did not attempt to cross the line. Production throughout the entire plant was then shut down. A further meeting between management and union officials was held after the third shift failed to report. Allshouse successfully dispersed the pickets at the Theresia gate entrance to the plant before the negotiations began. At this meeting the union demanded amnesty for all union personnel involved in the walkout, which demand the company rejected. Union officials then vacated the plant and mass picketing resumed. The union took no further action that evening. ( *178-181, 300-301, 302, 253, 277, 303, 254, *186-187, 304, *139, *141, 187-188, *141-142, *188-189, 305, *143, *190, 305-306, *190-191, 257, 306-307).


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