immediately resumed. While Carbon Fuel holds there is no implied in law duty to take affirmative action to terminate an unlawful strike, where, as here, the parties have contracted to act jointly to end such a strike, the union must initiate some minimal efforts or take some responsive action to do so. We need not explore the limits of this obligation since the union wholly failed to do anything to terminate the work stoppage.
We next consider the union's argument that imposition of liability under the mass action theory is inappropriate in this case since Local 502, an amalgamated union which serves as the collective bargaining representative for employees of ten different companies, is analagous to a district union. In U. S. Steel Corp. v. United Mine Workers of America, 534 F.2d 1063 (3d Cir. 1976), the Court stated that application of the mass action theory is appropriate where "substantially all of the members of an entity act in concert." Id. at 1080 n. 4, and liability under this theory cannot be imposed on "a larger union entity" such as a district or international union. Id. at 1074. Further, according to Local 502, union members did not refuse to report to work but were prevented from doing so because access to the plant was blocked by the pickets.
While these arguments would be deserving of careful analysis, we believe, contrary to the views of the parties, that Carbon Fuel precludes a finding of union liability under the mass action theory. We agree with Judge Teitelbaum of this District that the mass action theory does not survive Carbon Fuel, inasmuch as the Supreme Court has clearly defined the limits of union liability under Section 301. See Lakeshore Motor Freight Co. v. Teamsters, 483 F. Supp. 1150, 1153 n. 1 (W.D.Pa.1980). Although review of the judgments against the local unions was not sought in the Supreme Court and the mass action theory was not discussed in the Opinion of the Court, Carbon Fuel limits the responsibility of unions for strikes in breach of contract to cases when the union may be found responsible according to the common-law rule of agency. We conclude, therefore, that the mass action theory, a concept first articulated by Judge Goldsborough in United States v. U.M.W.A., 77 F. Supp. 563 (D.C.1948), cannot form the basis of recovery in this action.
We next consider defendant's argument that the record does not support a finding of union liability under the common law rule of agency. Local 502 asserts that this court manifestly relied on the union's failure to act in holding the union liable on this basis. We disagree.
The evidence clearly shows that the acts of the union officials fell within the actual or apparent scope of the acting person's authority. Local 502's constitution provides that elected officers, including Chief Stewards, shall compose the Executive Board. One of the enumerated duties of the Chief Stewards is to see that all provisions of the contract are carried out. Shop Stewards are elected in every department of all plants and, among other duties, are required to represent the members, by whom they have been chosen, in dealings with the foremen and to report important matters affecting their groups to the Shop Committee or the union officers. Bernard Heiberger, a Shop Steward assigned to an undermining crew, directed his crew members to refuse undermining Furnace # 1407 purportedly for safety reasons which we find did not exist. His decision precipitated the walkout. At the hearing on the company's motion for a preliminary injunction in state court and in the initial stages of this suit, defendant maintained that the work stoppage was a protected safety strike. See Gateway Coal Co. v. U. M. W., 414 U.S. 368, 94 S. Ct. 629, 38 L. Ed. 2d 583 (1974). Chief Steward Smith learned of the undermining complaint prior to the walkout and, following his personal inspection of the furnace, neither confirmed nor denied that # 1407 was fit for undermining. Assistant Chief Steward Allshouse was observed delivering beer to the Theresia gate pickets on May 20, 1977, and Shop Steward Bennett joined the first shift employees on the picket lines on the evening of May 17, 1977.
Having creating the Steward's power, the Local must take the responsibility if it is wrongly used. The absence of a union policy supporting the actions taken by the Stewards against the plaintiff is inconclusive. There is something shown by the fact that different people holding the office of Steward gave the same kind of orders and indulged in the same kind of conduct. This is good circumstantial evidence to show that these actions were within the general scope of authority notwithstanding the fact that the Stewards were not empowered to call a strike. Moreover, we could properly draw an adverse inference from the union's failure to call any of the Stewards or any other person as witnesses. N. L. R. B. v. Local 815, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, Independent, 290 F.2d 99 (2d Cir. 1961). See also the discussion in Airco Speer Carbon-Graphite v. Local 502, etc., supra, 479 F. Supp. at 255.
The Third Circuit has suggested that the union steward is in a position of agency comparable to that of the employer's foreman. N. L. R. B. v. Brewery & Beer Distributor Drivers, etc., 281 F.2d 319, 321-322 (3d Cir. 1960). Certainly a union is not responsible for every act of a steward, simply by virtue of his position, but where, as here, the conduct falls within the apparent or actual authority of the steward, defendant is liable to the company under the common law of agency. In short, the actions of these union officials constitute sufficient inducement, encouragement and condonation of the strike to expose the union to damages.
Finally, defendant argues, that liability cannot be imposed on the basis of union inaction under the doctrine of ratification. Defendant has attempted to blur the distinction between the discredited best efforts theory and the doctrine of ratification expressly made available to the parties to a breach of contract suit pursuant to Section 301(a) and (e). Defendant's assertion that a union cannot be held liable for its failure to act under the doctrine of ratification finds no support in Carbon Fuel or any other decision of the Court. See e.g. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
It is hornbook law that the acts of an agent can be ratified by inaction which manifests consent and there are cases in which the result rests wholly upon a finding of fact that the failure to take action indicated the consent necessary for ratification. Seavey, Agency § 37; Gregory v. Fassett, 178 Pa.Super. 599, 116 A.2d 304 (1955). See also Restatement (Second) of Agency § 94 (1957): "Failure to Act as Affirmance. An affirmance of an unauthorized transaction can be inferred from a failure to repudiate it. A principal manifests his consent by doing nothing after learning of an unauthorized act, when the failure to take action is evidence of a willingness to become a party to the action." The period during which the inaction lasted, the difficulty in communicating dissent, the loss which might result from failure to act promptly, are all relevant since ratification depends upon consent in fact and not upon whether a reasonable person would give consent. Seavey, Agency § 37.
The behavior of the President of Local 502 alone is sufficient to impute to the union "forgiveness" of the strike. Not only did he cut off negotiations when Airco refused his demand to grant amnesty for the instigators, he failed to disavow or censure the actions of the striking union members. Bail bonds for eighteen arrested pickets, which were authorized by the Union Executive Board, were signed by either the President or the Treasurer of Local 502. Defendant's reliance on United Steelworkers of America v. Lorain, supra, in support of its contention that the union's failure to discipline the instigators was not evidence of ratification is misplaced. In Lorain, the court found that disciplinary measures were both legally and practically unavailable to the union during the course of the strike. There is no such evidence in this case, defendant having chosen to forego calling witnesses or producing any evidence bearing upon this issue. Even assuming that the actions of the Stewards, in leading the walkout and picketing, were outside the scope of their authority, the facts clearly show that the union condoned the illegal strike, through its inaction.
Defendant's remaining contentions pertain to damages and have either been addressed in our prior opinion or are without merit. An appropriate order will be entered.