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BARDANE MFG. CO. v. JARBOLA

August 30, 1989

BARDANE MANUFACTURING CO., AND CHAMBER OF COMMERCE OF THE UNITED STATES, Plaintiffs
v.
ANDREW J. JARBOLA, DISTRICT ATTORNEY FOR LACKAWANNA COUNTY, IN HIS OFFICIAL CAPACITY, PENNSYLVANIA AFL-CIO, AND ERNEST D. PREATE, JR., ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA, Defendants



The opinion of the court was delivered by: CONABOY

 Richard P. Conaboy, Chief United States District Judge

 I

 This is a civil action for declaratory and injunctive relief by which the Plaintiffs seek to invalidate Section 5 and the related provisions set forth in Section 6 of the Pennsylvania Strikebreakers Act, 43 Pa. Stat. Ann. § 217.25-217.26. The pertinent provisions involved are as follows:

 
Section 5. It shall be unlawful for any person, partnership, agency, firm or corporation, or officer or agent thereof, knowingly to recruit, solicit or advertise for employees or refer persons to employment in place of employees involved in a labor dispute without adequate notice to such person or in such advertisement that there is a labor dispute at the place at which employment is offered and that the employment offered is in place of employees involved in such labor dispute. (43 Pa. Stat. Ann. § 217.25)
 
Section 6. Any person, partnership, agency, firm or corporation violating § 5 of this Act, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred ($500.00) dollars, or imprisonment for a term not exceeding one year, at the discretion of the court. (43 Pa. Stat.Ann. § 217.26)

 By way of summary judgment, the Plaintiffs would have us nullify the foregoing provisions of the Pennsylvania Statute, arguing the such provisions are preempted by the National Labor Relations Act or arguing, in the alternative, that those provisions of the Act are unconstitutionally vague. The Defendants, in turn, seek summary judgment, arguing that the sections of the Act are not preempted by federal law and that the statute is not unconstitutionally vague. We will decline to nullify these sections of the Act and therefore will deny Plaintiffs' motion for summary judgment and grant Defendants' motion for summary judgment.

 II

 In December of 1986 the employees at Bardane Manufacturing Company, one of the Plaintiffs herein (hereinafter Bardane), represented by Local 128 of the International Association of Machinists (hereinafter IAM), went on strike. In the Spring of 1987, Bardane decided to hire strike replacement employees. Thereafter, on several dates in April, May, July, and August of 1987, Bardane advertised in the Scranton Times newspapers for job applicants. None of the advertisements contained a notice that a labor dispute was in progress at the Bardane plant, or that those hired in response to the advertisement, would replace employees involved in a labor dispute.

 In the late Summer of 1987 a representative of IAM initiated a private complaint against Bardane, charging that the advertisements violated Section 217.25 of the Pennsylvania Strikebreakers Act referred to above.

 The complaint was approved by the District Attorney's Office for Lackawanna County, Pennsylvania, on August 16, 1987. At a preliminary hearing held on October 19, 1987, it was agreed that a stay of prosecution would enter pending resolution of a lawsuit initiated in federal court attacking the constitutionality of the foregoing statute.

 This action was initiated on December 31, 1987 by Bardane and the Chamber of Commerce of the United States. The original Defendants were the Commonwealth of Pennsylvania, the then Attorney General of Pennsylvania, Leroy S. Zimmerman, the then District Attorney for Lackawanna County, Ernest D. Preate, Jr., and the then Assistant District Attorney for Lackawanna County, who initiated the criminal action, Andrew J. Jarbola. All individual Defendants were sued in their official capacities only. The District Attorney and the Assistant District Attorney of Lackawanna County filed answers on February 25, 1988. The Commonwealth and the then Attorney General moved to dismiss the complaint as to them, on February 1, 1988, and on the same date the Attorney General filed a motion to proceed as amicus curiae. The Pennsylvania AFL-CIO also moved on March 28, 1988, to intervene as a Defendant.

 Several of the parties sought to have this Court abstain from considering this case because, they argued, it was a matter of peculiar state interest. After these motions were duly briefed the Court held a case management conference on May 26, 1988, and heard arguments and discussed the various motions. On November 17, 1988, this Court denied the request to abstain and entered an Order (1) dismissing the Commonwealth of Pennsylvania and then Attorney General Zimmerman from the suit; (2) granting the Attorney General leave to proceed as amicus curiae; and (3) granting the motion of the Pennsylvania AFL-CIO to intervene as a Defendant. At the same time, a schedule was entered allowing for further preparation and procedures in this case. *fn1"

 On March 17, 1989 all parties filed cross motions for summary judgment and a joint statement of undisputed facts.

 The motions have been fully briefed and on August 2, 1989, this Court heard oral arguments from all parties on the motions.

 The following are the relevant undisputed facts in this case.

 (1) On December 20, 1986, bargaining unit employees of Bardane Manufacturing Co. ("Bardane"), who were members of District 128 of the International Association of Machinists Union, began an economic strike against Bardane.

 (2) Bardane advertised in The Scranton Times newspaper on several dates in April through August of 1987 for employees to ...


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