Alabama Power Co. v. Local Union No. 1333, Laborers' Intern. Union of North America, 83-7157

• Citation: 734 F.2d 1464
• Decision Date: 25 June 1984
• Docket Number: No. 83-7157,83-7157
• Parties: 116 L.R.R.M. (BNA) 3209, 101 Lab.Cas. P 11,088 ALABAMA POWER COMPANY, Plaintiff-Appellant, v. LOCAL UNION NO. 1333, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1464

734 F.2d 1464

116 L.R.R.M. (BNA) 3209, 101 Lab.Cas. P 11,088

ALABAMA POWER COMPANY, Plaintiff-Appellant, v. LOCAL UNION NO. 1333, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, Defendant-Appellee.

No. 83-7157.

United States Court of Appeals Eleventh Circuit.

June 25, 1984.

John Richard Carrigan, Birmingham, Ala., for plaintiff-appellant.

Clarence F. Rhea and Donald R. Rhea, Gadsden, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and HATCHETT, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

GARZA, Senior Circuit Judge:

This is an appeal from an action for the alleged breach of a labor contract. The district court, following a bench trial, found for the defendant Union. Plaintiff Alabama Power Company ("APCO") appeals.

FACTS and PROCEDURAL HISTORY

APCO is a public utility producing and selling electric power in Alabama. APCO entered into a construction contract with Manhattan-Walton, a contractor, for construction of the R.L. Harris Hydro Plant at Lineville, Alabama. Manhattan-Walton was party to a labor contract with several unions, including the defendant. The labor contract prohibited the Union from striking, and obligated the Union to "take meaningful action" to promptly end any unauthorized strike. Although APCO was not a party to the labor contract, it was a third party beneficiary thereunder. ¹

The Union's business manager and recognized representative, James Vickery, resides in Gadsden, Alabama, where the Union's office is located. Vickery had appointed three stewards at the Harris Plant site, which is some 80 miles from Gadsden. The chief steward, Jimmy Suggs, was authorized by Vickery to file grievances on behalf of the Union.

On Thursday, September 17, 1981, Manhattan-Walton Superintendent Joe Cannon discharged several workers. Many of the laborers became upset over the firings and began talking about striking. By Friday, September 18, Suggs had learned that there might be a walkout on Monday the 21st. Suggs called Vickery and informed him of this possibility on Sunday, September 20. Vickery instructed Suggs to do On Monday the 21st, Suggs met with the first shift Union members after a routine safety meeting. Suggs informed the workers that he had talked with Vickery and that a work stoppage was illegal and would not be authorized by the Union. He further explained that if the workers walked off the job they could be fired and the Union could be sued. Nevertheless, someone in the crowd called for a show of hands and a majority of those present voted to strike. At the conclusion of the meeting, Suggs picked up his lunch box and walked out to the parking lot. The Union members walked off the job and congregated outside the main entrance to the construction site. Union members not at the meeting learned of the walkout and also left their jobs, as did employees represented by other unions. At least one sign was placed in the road, proclaiming "Manhattan-Walton unfair".

everything he could to keep the Union members working and directed him to meet with the members for that purpose.

Suggs testified that he drove his car from the parking lot to the Manhattan-Walton trailer and telephoned Vickery, informing him of the walkout. Vickery again told Suggs to talk to the striking members and try to persuade them to return to work. Suggs went out to where the strikers were congregating, where he remained until Vickery and Bruce Carr, a representative of the Laborer's International Union of North America, arrived late that afternoon.

Less than an hour after the strike began, and at the Union's request and expense, the local radio station began periodic broadcasts telling strikers that the walkout was unauthorized and to return to work. When Vickery and Carr arrived at the site they further attempted to persuade the strikers to go back to work. They did not attempt to remove the sign placed in the road by the strikers, however. Their efforts to talk the strikers into ending the strike proved unsuccessful. Vickery, Suggs, and Carr met with Manhattan-Walton's Superintendent Cannon twice that evening and once the next morning in an effort to resolve the strike. They discussed some fourteen complaints the strikers had presented to Suggs and resolved all except the firing of worker Susan Butler. During these discussions, Vickery offered to replace all of the striking workers. ² Cannon testified that he clearly understood that Vickery and Carr did not condone the strike and wanted to get the workers back on the job.

Following their meeting with Cannon on Tuesday morning, Vickery, Carr, and Suggs returned to the strike site and told the strikers that Susan Butler's case would be expedited through the normal grievance procedure. Ms. Butler then told the strikers that she did not want them to lose their jobs and that she felt the matter of her discharge could be sufficiently handled through the grievance system. At that point, Suggs told the strikers he was going in to work; the majority of the strikers followed him in and the strike ended, some twenty-six hours after it had begun.

None of the strikers were disciplined for taking part in the strike. Suggs later testified that he had done nothing to get the second and third shift Union members back to work.

APCO filed this action against the Union as a third-party beneficiary of the labor contract between the Union and Manhattan-Walton. The Union filed a third party complaint against Manhattan-Walton alleging that Manhattan-Walton was responsible for the breach. The district court dismissed the third party complaint. As stated, a bench trial of APCO's complaint resulted in a judgment in favor of the Union. On appeal, APCO claims that the district court erred in not holding the Union liable for the strike under the "mass action" theory, and further erred in finding that the Union fulfilled its contractual obligation to take meaningful action to end the strike. APCO also claims that the trial court's

findings of fact concerning the agency of steward Suggs are clearly erroneous.

"MASS ACTION" THEORY

APCO first urges the court to find the Union liable under the "mass action" theory. That theory of liability provides that "as long as a union is functioning as a union it must be held responsible for the mass action of its members." Vulcan Materials Company v. United Steelworkers, 430 F.2d 446, 455 (5th Cir.1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971); North River Energy Corp. v. United Mine Workers, 664 F.2d 1184, 1193 (11th Cir.1981). As explained by the Third Circuit in Eazor Express, Inc. v. International Bhd. of Teamsters, 520 F.2d 951 (3rd Cir.1975), cert. denied, 424 U.S. 935, 96 S.Ct. 1149, 47 L.Ed.2d 342 (1976):

When all the members of a union employed by a given employer engage in a concerted strike not formally authorized by the union, as happened here, many courts hold the union responsible on the theory that mass action by union members must realistically be regarded as union action. The premise 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.

520 F.2d at 963. APCO argues that the Union members were "functioning as a union" when they voted to strike and walked off the job, and contends that these actions, without more, are sufficient to hold the Union liable.

We first note that our determination of each of these points of error necessitates a review of the district court's findings of fact, which may not be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a). A finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Wiring, Inc., 646 F.2d 1037, 1041 (5th Cir.1981), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). Furthermore, the findings made and inferences drawn by the trial court are to be given great weight. Croy v. Campbell, 624 F.2d 709, 710 n. 1 (5th Cir.1980). The clearly erroneous standard does not apply to the determination of ultimate facts, however, which we may independently determine. United States v. Wiring, Inc., 646 F.2d at 1041.

In declining to hold the Union responsible under the mass action theory, the trial court quoted extensively from United States Steel Corp. v. UMWA, 519 F.2d 1249 (5th Cir.1975), to the effect that concerted action by union members alone does not provide liability:

The fact that the strike took place is not sufficient in itself to raise the presumption that the Union, as an entity separate from its members, is responsible. No federal appellate court case has held unions to the high standard of vicarious liability here urged by United States Steel. Clearly, a union is not responsible for an unauthorized strike.... The Court of Appeals for the Third Circuit has held that even when the union, in its contract, "guarantees that there shall be no strike, stoppage of work, slowdown, or other interference with production," the company must show that the Union did "sanction, approve, or incite the strike." [Penn Packing Company, Inc. v. Meatcutters Local 195, 497 F.2d 888, 891 (3rd Cir.1974) ].

519 F.2d at 1253. APCO, however, argues that this position has been substantially undermined by two subsequent cases, Jim Walter Resources, Inc. v. International Union, UMWA, 609 F.2d 165 (5th Cir.1980) and Alabama By-Products v. Local No. 1881, 690 F.2d 831 (11th Cir.1982). Both cases are readily distinguishable. We first note that both cases involved work stoppages in direct contravention of temporary restraining orders and subject to the close scrutiny given actions taken in derogation of a court's order. In Jim Walter Resources, a union local was...