WL Mead, Inc. v. INTERNATIONAL BROTHERHOOD, ETC.

• Decision Date: 17 March 1955
• Docket Number: Civ. A. No. CA-54-797-A.
• Citation: 129 F. Supp. 313
• Parties: W. L. MEAD, Inc. v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, etc., LOCAL UNION NO. 25, A.F.L.
• Court: U.S. District Court — District of Massachusetts

129 F. Supp. 313

W. L. MEAD, Inc. v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, etc., LOCAL UNION NO. 25, A.F.L.

Civ. A. No. CA-54-797-A.

United States District Court, D. Massachusetts.

March 17, 1955.

Bernard B. Gould, Boston, Mass., and Daniel J. Buckley, Jr., Arlington, Mass., for plaintiff.

Stephen J. D'Arcy, Jr., Boston, Mass., for defendant.

ALDRICH, District Judge.

This case of a strike against a motor carrier engaged in exclusively interstate transportation of commodities between points in Ohio and Springfield, Massachusetts, Boston, Massachusetts and Providence, Rhode Island, has twice been before this court. The first was in denying a preliminary injunction, D.C., 125 F.Supp. 331, affirmed 1 Cir., 217 F.2d 6; and the second in determining the defendant's liability for damages, D.C., 126 F.Supp. 466. Before now assessing these damages, it would be well to fix certain dates and events.

On the morning of Friday, September 10, 1954 the defendant, in what I have found to be a breach of its collective bargaining contract, refused a request to arbitrate thereunder and called all its men off the job at Boston because of a dispute over the hours and working conditions of one Smith. These men immediately began picketing the Boston terminal. Thereafter the plaintiff discharged them. This was for not returning to work, and for picketing and was, I have found, an entirely proper act on its part. On September 13th the plaintiff wrote the defendant requesting twenty new men, pursuant to Article I of the agreement. It also appealed to the State Department of Labor and Industries to try to terminate the work stoppage.

On September 14th the defendant offered at a conference before a State Labor conciliator to return the original twenty men and arbitrate the question of Smith before the State Labor Board. This was refused. The plaintiff said Smith was discharged and that it would not arbitrate him before anybody. At the same time the plaintiff offered to take back a substantial number of the original men, but as new employees. It did not say how many it meant, and the defendant did not inquire. The defendant said all must go back. On September 17th the plaintiff lodged charges against the defendant before the National Labor Relations Board, and the defendant alleged counter-charges. On September 20th the defendant offered in writing to return the original twenty men and to arbitrate the question of Smith before Judge Coddaire, the seventh, or independent, member of the contractual panel. This offer was not accepted. On September 29th the defendant called off the men in the plaintiff's Springfield terminal, and on September 30th at Providence.

On October 11th the plaintiff brought this suit. On October 14th there was another meeting before a State Labor conciliator. There is a dispute as to what took place. The defendant's representative testified that the defendant abandoned its request to arbitrate Smith and offered to return the original twenty men "with no strings attached," or "unconditionally." He admits that he did not explain what these terms meant, but says that the plaintiff did not indicate any interest, or inquire. The plaintiff denies that any such offer was made. A witness called by the defendant to corroborate the making of this offer conceded that its meaning was not abundantly clear to him. It is open to me to find that the so-called unconditional offer was made, or that it was not made, or, perhaps, that it was not made clearly enough.

On October 15th, the next day, there was a hearing before me on the plaintiff's motion for a preliminary injunction. In view of the fact this motion was based on the defendant's allegedly continuing wrongful conduct, and that defendant's counsel was the same person who allegedly made the unconditional offer the day before, I note with some interest that the defendant did not tell me about that offer, although it spoke in detail about some less substantial offers.¹ Thereafter the defendant filed a complaint before the Joint Committee. When this came on for hearing on October 29th the plaintiff declined to proceed because, it said, it had no employees.

On November 1st there was a repetition of the October 14th conference before a State conciliator. The testimony was the same. Again, the defendant now says, it made an unconditional offer to return all the men as new employees. The following day it filed its answer in this court. Again it is interesting to note that the answer contained no mention of unconditional offers on either October 14th or November 1st, although it did set out with particularity the much less substantial offers of September 14th and September 20th (erroneously identified as September 17th).

There was admitted in evidence, offered by the defendant for the limited purpose of showing "what the defendant told the N.L.R.B." a complaint filed on November 12, 1954 by the Regional Director, Paragraph 8 of that complaint alleges that "On or about October 14 and November 1, 1954 the employees named * * * applied for reinstatement to their former or substantially equivalent positions". For what it is worth I do not construe this as meaning they applied to go back without strings, as new employees.

On November 10th the defendant filed a motion for specific performance of the agreement to arbitrate. On November 18th or 19th the plaintiff offered to take all the men back,² not merely as new employees, but as old employees, provided the defendant would drop its charges before the National Labor Relations Board. The defendant refused. On November 22nd the defendant's motion for specific performance was heard and denied. At that hearing I heard for the first time that the defendant claimed to have made oral offers on October 14th and November 1st to return the men "with no strings attached." The plaintiff immediately denied this.

On all the evidence I conclude without hesitation that the defendant did not make unconditional offers on October 14th and November 1st. I find that the defendant never made any offer to perform that was any more substantial than its offer on September 14th, and that so far as the plaintiff's alleged duty to mitigate damages by accepting the defendant's offers is concerned, the case must stand or fall on what transpired that day.

I do not find that, as now contended by the defendant, the plaintiff had a duty to arbitrate the strike. The defendant, having broken its contract and gone on strike because it refused to arbitrate an individual dispute, is not in a position to contend that the plaintiff should then have insisted on arbitrating the strike as well.³

I will review the occurrences of September 14th. The defendant's position was that the plaintiff must take back all of the men in their original status with seniority, etc., Smith to have temporarily his new and inferior position, and the question of this reduction to be arbitrated before "anyone agreeable to both parties." I find that this phrase under the circumstances meant immediate arbitration before anyone the defendant thought suitable other than the contractual Joint Committee.⁴ The plaintiff's position was, Smith is no longer an employee; therefore there was nothing to arbitrate about him. It would take twenty new men from the defendant, and it would include in that number an unspecified, but substantial number of its former employees. Each party was unwilling to explore the other's offer, because neither would concede any further.

The defendant, in its brief, asks what right the plaintiff had to insist on a different standard of performance than it was entitled to prior to September 10th. This whole misconception, if it can be called that, apparently actuated the defendant from the outset. A man who in violation of his contract walks off the job and pickets the plant without excuse, can not return when he wishes and call the tune that he chooses. The men who left their employment were lawfully discharged by the plaintiff. N. L.R.B. v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; In Matter of United Elastic Corp., 84 N.L.R.B. 768. The defendant under its collective bargaining contract did not have, prior to September 10th, the right to tell the plaintiff which of its members were to fill vacancies. On the contrary, the plaintiff could select, and if it did not choose any, it could take non-union men, provided they applied for membership in 30 days. However, the defendant after September 10th, at a time when it was in default under its contract, not only insisted on which of its members the plaintiff should employ to fill the vacancies then existing, but took what steps it could to see that if the plaintiff did not accept the defendant's selections, and on the defendant's terms, it should have no one.⁵ The plaintiff was not insisting on rights which it did not have, — the defendant was.⁶

The defendant says repeatedly that if its strike on September 10th was unlawful, it became lawful on September 14th because "the employees were then striking to get their jobs back." They were not then entitled to get their jobs back on their own conditions. The picketing and interference on September 15th was just as unlawful as it was on September 10th.

During the course of the trial I took evidence in certain alternative forms in case I should conclude that at some point prior to December 9, 1954, when the strike actually terminated, the plaintiff failed in its duty to mitigate damages, or that something else occurred that should be treated as a cut-off. I now find and rule that there was no such occurrence, and that the defendant is liable, under applicable principles, for all appropriate damages resulting from its wrongful activities as aforesaid.

The consequences of a strike which is at all prolonged in the motor freight transportation business are very serious. It is not unlike a strike in a barber shop. Customers cannot and do not wait for service until...