Appeal from Order, Court of Common Pleas, Civil Division, Bucks County, Nos. 80-6719-09-2, 80-6720-11-2, 80-6721-12-2
Thomas W. Jennings, Philadelphia, for appellants.
Gregory T. Magarity, Philadelphia, for appellees.
Cavanaugh, Olszewski and Hoffman, JJ.
[ 350 Pa. Super. Page 289]
The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (IBT or union) and Highway Truck Drivers and Helpers Local Union No. 107 (Local 107 or union) appeal from the denial of post-verdict motions which sought a new trial or judgment N.O.V. The motions were filed following a bifurcated liability and damage trial at which the jury first found in favor of all appellees and, thereafter, awarded damages for personal injuries and loss of consortium to the three injured claimants, Francis Gajkowski, Ronald Schipske and William Abate, and the spouses of Abate and Gajkowski.*fn1 Numerous issues are raised on appeal. Since we decide that there was insufficient evidence to support the verdicts against either appellant, we reverse and enter judgment N.O.V.
[ 350 Pa. Super. Page 290]
This case arises out of a tragic incident which occurred on January 25, 1980 at the site of the Minnesota Mining and Manufacturing Co. (3M) facility in Bristol Township, Bucks County, Pennsylvania. On that date, in the evening hours, the appellees received bullet wounds from a .22 caliber revolver which was apparently fired by one Robert Ballinger. Ballinger, Gajkowski and Schipske were all employees of 3M and members of Local 107 who were involved in a strike action against 3M. Abate was a security guard in the active employment of 3M and was not a member of Local 107. Suit was brought against the appellant unions on the basis that the shootings were the result of the negligence of the unions in failing to control the picket line. Appellants defended on the grounds, inter alia, that the right to recovery was delimited by provisions of the Pennsylvania Labor Anti-Injunction Act, 43 P.S. § 206h; that there is no duty in the unions to control the picket line so as to form the basis for appellees' action in tort; and that the shooting was unforeseeable and beyond the ambit of the unions' responsibility. In order to grasp the thrust of appellees' claim at trial it is first necessary to review the evidence and to examine the competing arguments which arose.
Local 107 is a union which represents some 400 to 500 employees of 3M in twelve departments at 3M's Bristol, Pennsylvania plant. Local 107 and its parent affiliate IBT are both unincorporated associations. On November 18, 1979 the members of Local 107 at 3M voted to reject a "final" company offer and to commence a lawful economic strike on the next day. This was just short of ten weeks before the shooting episode. The union commenced picketing the next day, and continued doing so on a daily basis around the clock. It is clear from the evidence that during the course of this extended strike, the picket line operation was essentially incident free. Numerous witnesses attested to the fact that the picketing was "peaceful" and even "friendly" in its operation. During this period, 3M did not seek any injunctive relief to limit the number, location or
[ 350 Pa. Super. Page 291]
manner of picketing. There was, however, evidence that picketers had engaged in drinking alcoholic beverages while on picket duty and that this was against union policy and instructions. Nevertheless, there was no evidence that the drinking led to any serious incidents, at least until the night of the shooting.
On January 25, 1980, Officer Stephen Whiteman of the Bristol Township Police Department was on duty and as was his practice, he routinely checked the picket site. There had been some reports of bottle throwing and other misconduct during the evening but when he checked the scene at 8:30 P.M. he found no problems to be present. It was, however, only minutes later that he was called back and discovered that Schipske and Gajkowski had been shot. He found them lying in a driveway. Abate had also been shot and was found on the floor in a guardhouse. While emergency aid was being given to the victims, Whiteman began questioning the strikers and had the strike captain, William Miesznek call the workers over to him in pairs. The workers, for the most part, gave their names only and did not describe what had happened. Finally, Whiteman went to the group of strikers when individuals had ceased voluntarily appearing and said that they should come to be interviewed or face being taken to the station house. When he got to Robert Ballinger, Ballinger said "I did it" and "I'll go for it." At that time, he reported this to James Swope, who was the detective on the scene. Swope testified that when he interviewed Ballinger, Ballinger told him that he was trying to shoot out the lights at the guardhouse and apparently hit the three individuals.
Earlier in the day, strikers Ballinger, William Crossan and Robert Kendig had been together for an extended luncheon period at a tavern where they had been drinking beer. It was their intention to return to the 3M plant to distribute leaflets. The mood of the strikers was apparently heightened by the fact that a few days later there was to be a motorcade demonstration in Philadelphia to support the strikers' cause. Later, Kendig had stopped at his residence
[ 350 Pa. Super. Page 292]
and when he returned to the scene he had with him a .22 caliber revolver. William Crossan was aware that Kendig had the firearm in his possession. After returning to the scene, leaflets were distributed, activities escalated, and beer drinking among many of the strikers continued. A number of union members threw bottles at the guardhouse during the time before the shooting, but soon this activity subsided. It is clear that Kendig displayed his revolver and at some stage he was attempting to shoot parking lot lights out and, in particular, was seeking to strike a light and camera above the guardhouse. During the bottle throwing, a hurled bottle struck a flag and came down on the head of Ballinger who received a cut on the head, but sought no medical attention. At one time Crossan told Kendig to put the gun away "in no uncertain terms."
There was evidence that the weapon was handed from Kendig to Ballinger and while Ballinger was in possession of it the triple shooting occurred (Ballinger, called in the plaintiff's case, however, stated that he did not do the shooting.)
The theory upon which appellees ground their claim is that the unions negligently maintained the picket line; that they encouraged, condoned, acquiesced and participated through their agents in the violent behavior of the striking employees which led to the shooting. In furtherance of their theory, much of the extensive testimony elicited by plaintiffs at the liability phase of the bifurcated trial related to the relationship between the unions and various members. The trial court denied the unions' motions for a non-suit and a directed verdict and submitted the case to the jury.
THE APPLICABILITY OF THE PENNSYLVANIA LABOR ANTI-INJUNCTION ACT
We first address the unions' defense that the sole applicable standard of proof to be applied in determining a labor organization's liability for violence occurring during
[ 350 Pa. Super. Page 293]
the course of a labor dispute is that which is set forth in § 8 of the Pennsylvania Labor Anti-Injunction Act.
§ 206h. Liability of officers and members of labor organizations
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute as herein defined, shall be held responsible or liable in any civil action at law or suit in equity or in any criminal prosecution for the unlawful acts of individual officers, members or agents, except upon proof beyond a reasonable doubt in criminal cases, and by the weight of evidence in other cases, and without the aid of any presumptions of law or fact, both of -- (a) the doing of such acts by persons who are officers, members or agents of any such association or organization; and (b) actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof by such association or organization. 1937, June 2, P.L. 1198, § 8.
Act of June 2, 1937, P.L. 1198 § 8, 43 P.S. § 206h.
Thus, the argument is that the above Act shields the unions from the plaintiffs' claim unless it can be shown that the offending acts were done by officers, members or agents of the union and that there was "actual participation in or actual authorization of" or "ratification of" the acts by the union. Our Supreme Court has recognized that the Pennsylvania Labor Anti-Injunction Act was patterned after § 6 of the Norris-LaGuardia Act, 47 Stat. 71, 29 U.S.C. § 106, and adopted the language of the United States Supreme Court in describing the purposes of § 206h.
". . . whether § 6 should be called a rule of evidence or one that changes the substantive law of agency . . . its purpose and effect was to relieve organizations . . . and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization, without clear proof that the organization or member charged with responsibility for the offense actually
[ 350 Pa. Super. Page 294]
participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration."
Philadelphia M.T. Ass'n v. International Long. Ass'n., 453 Pa. 43, 52, 308 A.2d 98, 103 (1973), quoting from Brotherhood of Carpenters v. United States, 330 U.S. 395, 403, 67 S.Ct. 775, 780, 91 L.Ed. 973, 982-83 (1947). The United States Supreme Court later, in discussing § 6, stated:
Ramsey v. United Mine Workers, 401 U.S. 302, 91 S.Ct. 658, 28 L.Ed.2d 64 (1971). The legislative history is in accord. S.Rep. No. 163, 72 No. Cong. 1st Sess. 19 (1932).
To hold that an officer or member of a labor organization, or the organization itself, should be liable for damages for unlawful acts committed while a strike is on, without clear, actual proof of authorization, participation in, or ratification of such ...