616 F.2d 919 (6th Cir. 1980), 77-1678, United Steelworkers of America v. Lorain

Docket Nº:77-1678, 77-1679.
Citation:616 F.2d 919
Party Name:UNITED STEELWORKERS OF AMERICA et al., Appellant-Cross-Appellee, v. LORAIN, A DIVISION OF KOEHRING COMPANY, Appellee-Cross-Appellant.
Case Date:February 14, 1980
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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616 F.2d 919 (6th Cir. 1980)

UNITED STEELWORKERS OF AMERICA et al., Appellant-Cross-Appellee,



Nos. 77-1678, 77-1679.

United States Court of Appeals, Sixth Circuit

February 14, 1980

Argued Dec. 6, 1979.

Rehearing and Rehearing En Banc Denied April 4, 1980.

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George C. Longshore, Cooper, Mitch & Crawford, Birmingham, Ala., James D. Robinson, Goins, Gammon, Baker, Robinson & Grisham, Chattanooga, Tenn., for appellant-cross-appellee.

Alfred W. Vadnais, Humphreys, Hutcheson & Moseley, Chattanooga, Tenn., for appellee-cross-appellant.

Before WEICK, KEITH, and KENNEDY, Circuit Judges.


Appellee Lorain filed suit July 20, 1976, against the United Steelworkers of America (International Union), its staff representative Crawford, Local Union No. 8164, and a number of local officers, alleging an illegal strike involving arbitrable issues in violation of a no-strike clause of a collective bargaining agreement with the International Union. Lorain prayed for a temporary restraining order and damages against all defendants incurred as a result of the strike. A temporary restraining order was granted the same day suit was filed. That evening the local union's officers read the court's order to the striking workers at the picket line, and they returned to their jobs the next morning.

Subsequently, a trial was held on the issue of damages. The District Judge ruled that individual union members were not liable in damages for breach of a no-strike clause regardless of whether the union was liable, relying upon Sinclair Oil Corporation v. Oil, Chemical and Atomic Workers International Union, 452 F.2d 49 (7th Cir. 1971), and dismissed the damage claim against them. Although denying damages for the first few days of the strike, he found the International Union liable for losses suffered Monday, July 19, and Tuesday, July 20. He concluded that from

"after Sunday, July 18, 1976, the International Union, acting through its International Representative as well as through the officers of the Local Union, breached the no-strike clause of its collective bargaining contract with the Company by the failure and refusal of its agents from and after that date to take any further action whatever to seek, induce or procure a termination of the illegal work stoppage that had commenced upon the previous Thursday."

In reaching this conclusion, the trial judge interpreted the collective bargaining agreement to require the union actively to endeavor to prevent or terminate any strikes, a best efforts standard. The no-strike clause of the collective bargaining agreement provides in part:

(T)he Union will not cause, sanction, or approve any employees represented by it to cause or participate in any strike . . . . On the contrary, the Union will actively discourage and endeavor to prevent or terminate any stoppage, slow-down, or other interruptions of work, and participation in such activities during this Agreement (or extension) shall result in discharge of all those employees responsible for such occurrences. . . . The Union shall not be liable for monetary damages for unauthorized strikes, work stoppages, etc. or other interruptions of work which are not authorized, supported, encouraged or ratified by it . . . .

Art. II. The trial judge interpreted the words "actively endeavor to terminate" as increasing the duty contracted for by the

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union beyond that imposed by operation of law.

On the morning of the walkout, Thursday, July 16, 1976, the president of the local met with company representatives concerning an employee's vacation and temporary transfers of employees. No resolution of the problem was reached. The District Court found that when word of the results of this conference circulated among the employees, there were rumors about a walkout. His finding that the local union representatives were in no manner involved in initiating or promoting a walkout but used their influence to attempt to avoid it is supported by substantial evidence. The District Judge further found that the International took positive action, such as President I. W. Abel's telegram asking that the strikers return to work and various acts of staff representative William Crawford in cooperation with local officers directed toward ending the strike.

The trial judge held, however, that the failure and refusal of the union agents to take any action after Sunday to try to terminate the admittedly illegal work stoppage constituted a ratification of the strike after that date. The failure of the union, after termination of the strike, to discipline those members who initiated it, was, he found, further evidence of ratification. Finally, the trial judge dismissed an item of damages claimed by the company.

Both parties have appealed the trial court's ruling. The International Union asks this Court to find that the District Judge erred in interpreting the contract to require it to take affirmative action to end the strike. It also asks that his finding that the union ratified the work stoppage be set aside as clearly erroneous and without foundation in the record. The company asks this Court to add as damages, additional sums for losses during the earlier days of the strike or, in the alternative, to enforce liability for these additional sums on those defendants whom the trial judge dismissed.

Congress has provided that a union is not to be subjected to liability for a strike "except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof." 29 U.S.C. § 106. "Clear proof" means proof which is clear, unequivocal, and convincing. Ramsey v. UMW, 401 U.S. 302, 311, 91 S.Ct. 658, 664, 28 L.Ed.2d 64 (1971); UMW v. Gibbs, 383 U.S. 715, 737, 86 S.Ct. 1130, 1144, 16 L.Ed.2d 218 (1966); James R. Snyder Co. v. Edward Rose & Sons, 546 F.2d 206, 209 (6th Cir. 1976). It is not the law in this circuit that a union is required to take affirmative action to end a strike, absent exceptional circumstances, UMW v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Buckeye Power Co. v. Utility Workers Union, 607 F.2d 759 (6th Cir. 1979); Carbon Fuel Co. v. UMW, 582 F.2d 1346 (4th Cir. 1978), aff'd, --- U.S. ----, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979). The best efforts doctrine of Eazor Express, Inc. v. Teamsters, 520 F.2d 951 (3d Cir. 1975), cert. denied, 424 U.S. 935, 96 S.Ct. 1149, 47 L.Ed.2d 342 (1976), has been repeatedly disavowed in this circuit; see, e. g., Southern Ohio Coal Co. v. UMW, 551 F.2d 695, 701 (6th Cir. 1977), cert. denied, 434 U.S. 876, 98 S.Ct. 227, 54 L.Ed.2d 155 (1977); North American Coal Corp. v. UMW, 497 F.2d 459, 467 n.3 (6th Cir. 1974).

It is impossible to apply the concepts of ratification, authorization, or participation...

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