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September 19, 1984


The opinion of the court was delivered by: Foreman, Chief Judge:


Before the Court is plaintiff's Motion for Summary Judgment on the issues of liability. Plaintiff sues Local Union Number 1487 (hereafter Local) of the United Mine Workers of America and certain individuals for damages allegedly incurred due to the breaches of the collective bargaining agreement. The breaches alleged are that the Local engaged in a strike or work stoppage over arbitrable disputes in violation of the collective bargaining agreement's arbitration provision. Liability is sought to be imposed upon the Union under two theories: mass action and common law agency. Before reaching the issue of whether any material factual dispute exists, the Court will resolve the legal issue of whether the mass action theory is still viable after the Supreme Court's decision in Carbon Fuel Company v. Mine Workers, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979).

  The Courts that have faced the issue of whether the mass action
theory survived Carbon Fuel have been anything but unanimous in
their conclusions. According to the mass action theory, the union
is liable for an unauthorized strike engaged in by a large number
of its members; the rationale behind the theory is that "large
groups of men do not act collectively without leadership and that
a functioning union must be held responsible for the mass action
of its members." Eazor Exp. Incorporated v. International
Brotherhood of Teamsters, 520 F.2d 951, 963 (3rd Cir. 1975). In
Carbon Fuel, the Court was faced with the issue of whether
International and District Unions could be liable for
unauthorized work stoppages or strikes if they failed to use all
reasonable means available to prevent or terminate the stoppages
or strikes. The liability of the local unions was not at issue.
After examining the liability Congress imposed upon labor
organizations under § 301 of the Labor Management Relations Act,
29 U.S.C. § 185 (1947), a unanimous Court concluded that the
legal responsibility of the unions was limited by common law
agency principles:

   . . Congress gave careful attention to the problem
  of strikes during the term of a collective-bargaining
  agreement, but stopped short of imposing liability
  upon a union for strikes not authorized, participated
  in, or ratified by it. Rather to effectuate §
  301(a), the Taft-Hartley Act provided in § 301(b)
  that a union "shall be bound by the acts of its
  agents," and in § 301(e) provided that the common
  law of agency shall govern "in determining whether
  any person is acting as an `agent' of another
  person." In explaining § 301(e), Senator Taft
  stated, 93 Cong.Rec. 4022 (1947):
  "If the wife of a man who is working at a plant
  receives a lot of telephone messages, very likely it
  cannot be proved that they came from the union. There
  is no case then. There must be legal proof of agency
  in the case of unions as

  in the case of corporations . . ." (Emphasis

444 U.S. at 217, 100 S.Ct. at 414 (emphasis supplied).

The Court also rejected the argument that an obligation of the union to use all reasonable means to prevent or end an unauthorized strike should be implied from the collective bargaining agreement provision obligating the union to "maintain the integrity of this contract." The Court stated that since an earlier version of the collective bargaining agreement containing a clause obligating the union to use their best efforts to prevent work stoppages was purposely deleted by the union, the parties agreed not to impose such a duty on the union. 444 U.S. at 220, 100 S.Ct. at 415. The Court also noted that after the deletion, but before the 1968 or 1971 agreements were enacted, the contracts were construed as not imposing liability on the unions for wildcat strikes; had not this been the parties' understanding, the parties had ample opportunity to change the agreement. 444 U.S. at 222, 100 S.Ct. at 416. (The Court also noted the Seventh Circuit has adopted a similar reading of the contracts since 1971. 444 U.S. at 222 n. 10, 100 S.Ct. at 416 n. 10, citing Old Ben Coal Corporation v. Local Union No. 1487, 457 F.2d 162 (7th Cir. 1972).) The Court stressed the strong Congressional policy in favor of unrestricted collective bargaining, and noted the union's hesitation "to surrender its freedom to decide what measures to take or not to take in dealing with unauthorized strikes." 444 U.S. at 219-220, 100 S.Ct. at 415. Thus, the Court implied that parties to the collective bargaining agreement could have bargained for greater union liability than that imposed by § 301.

Cases subsequent to Carbon Fuel which have held that the mass action theory is still viable have sought to limit the Court's decision as inapplicable to local unions, since local liability was not in issue in the case. See Consolidation Coal Company v. Local 1702, United Mine Workers, 709 F.2d 882, 884-885 (4th Cir. 1983) cert. denied, ___ U.S. ___, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983); New York Time Company v. Newspaper & Mail Deliveries' Union of New York and Vicinity, 517 F. Supp. 662, 666 (S.D.N Y 1981); Keebler Company v. Bakery Workers Local 492-A, 104 LRRM 2625, 2628 (1980), or have applied or acknowledged the principles of mass action theory without discussing the implication of Carbon Fuel. See Alabama By-Products v. Local No. 1881, Etc., 690 F.2d 831, 833 (11th Cir. 1982); North River Energy Corp. v. United Mine Workers of America, 664 F.2d 1184, 1193-94 (11th Cir. 1981); Dresser Industries v. United Steel Workers of America Local 4601, 110 LRRM 2661, 2664 (W.D.N.Y. 1981). In the Court's opinion, the better reasoned cases hold that the rationale of Carbon Fuel cannot be limited to International or District Unions.

In Consolidation Coal v. United Mine Workers of America, 725 F.2d 1258 (10th Cir. 1984), the Court of Appeals examined Carbon Fuel's reasoning and stated as follows:

  Although the Court addressed only the cases involving
  the international and district unions, the
  applicability of the rule announced by the Court does
  not depend on the level of union hierarchy involved.
  In stating that `Congress limited the responsibility
  of unions for strike, in breach of contract cases
  when the union may be found responsible according to
  common law of agency,' 444 U.S. at 216, 100 S.Ct. at
  413 (emphasis added), the Court fashioned a rule of
  union liability without differentiating among local,
  district or international unions. And no such
  distinction is made in the statutory language or in
  the legislative history relied on by the Court.

725 F.2d at 1263. The Court agrees. The clear language relied on by Carbon Fuel in limiting the union's liability to that imposed by common-law agency principles applies to "any labor organization." 29 U.S.C. § 185(b). Additionally, the parties are free to negotiate as to whether additional union liability for unauthorized strikes will be imposed. 725 F.2d 1263 n. 11. Other Courts are in accord. See Hardline Electric, Inc. v. International Brotherhood of Electrical Workers, Local 1547, 680 F.2d 622 (9th Cir. 1982) (where injunction against wildcat strike is sought, district court should consider whether union is responsible under agency principles, Id. at 626 n. 4); California Trucking Association v. Brotherhood of Teamsters, 679 F.2d 1275 (9th Cir. 1981) (for local liability, "law still requires proof of agency in order to impose liability for damages resulting from wildcat strikes; recovery denied absent instigation, support, ratification or encouragement of work stoppages." Id. at 1287 c.f. n. 17, at 1287); Davis Company v. United Furniture Workers Etc., 674 F.2d 557 (6th Cir. 1982) (union not liable for illegal strike absent showing of authorization, participation, or ratification, Id. at 564-565); Shimman v. Frank, 625 F.2d 80 (6th Cir. 1980) (Union liable on agency theory only. Id. at 95-96); Airco Speer Carbon-Graphite v. Local 502, Etc., 494 F. Supp. 872 (W.D.Pa. 1980); Lakeshore Motor Freight v. International Brotherhood of Teamsters, Etc., 483 F. Supp. 1150 (W.D.Pa. 1980). c.f. T.W. Helgesen v. International Association of Bridge, Etc., 548 F.2d 175, 184 (7th Cir. 1977) (Pre-Carbon Fuel case implying sole measure of union responsibility is agency principles).

The Court's decision in this regard is also buttressed by references to Carbon Fuel in the subsequent case of Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 101 S.Ct. 1836, 68 L.Ed.2d 248 (1980). In Complete Auto Transit, the Supreme Court was faced with the issue of whether a cause of action against union members existed for breach of a no-strike agreement. The Court concluded as follows:

  The legislative debates and the process of
  legislative amendment demonstrate that Congress
  deliberately chose to allow a damages remedy for
  breach of the no-strike provision of a collective
  bargaining agreement only against unions, not
  individuals, and, as to unions, only when they
  participated in or authorized the strike. See Carbon
  Fuel Co. v. Mine Workers, 444 U.S. 212, 216 [100
  S.Ct. 410, 413, 62 L.Ed.2d 394] (1979). Congress
  itself balanced, the competing advantages and
  disadvantages inherent in the possible remedies to
  combat wildcat strikes, and `we are strongly guided
  by its choice.'

451 U.S. at 416, 101 S.Ct. at 1845 (emphasis supplied). The Court's language in the above quoted material broadly referring to all unions, not just those on the international or district level, is indicative that Carbon Fuel was meant to apply to locals as well. Accordingly, the Court holds the mass action theory is no longer viable as a separate theory of liability. However, the Court believes it would be unrealistic to hold that the mass action of a large number of union members is irrelevant when making a determination as to a Local Union's liability. The rationale behind the mass-action theory is that "large groups of men do not act collectively without leadership." Eazor, supra at 963. Thus, the mass action theory has in actuality served a legal device by which agency liability on the part of the Local Union was presumed where mass action by its members occurred. The dictates of Carbon Fuel would seem to preclude a conclusive presumption of this sort. However, logic would not exclude evidence of a mass action as being irrelevant to an inference of agency liability on the part of the Local under the principles of Carbon Fuel. Plaintiff may introduce evidence of mass action and argue to the jury that such mass action could not have occurred absent ratification, authorization or participation by union agents acting within the scope of their authority. Defendant may introduce evidence and argument to the contrary. What weight should be given to any such evidence of mass action as indicative of agency liability will be for the jury to determine, depending on the facts of the case.

Thus, the Court will proceed to examine whether summary judgment is appropriate solely on an agency theory. Under the theory of common-law agency espoused by the Supreme Court, a union is liable only for strikes which it authorized, participated in, ratified or encouraged. Consolidated Coal, supra, 725 F.2d 1258 at 1263. The "all reasonable means" test which plaintiff refers to was rejected by Carbon Fuel and has no place in a theory of common law agency. ...

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