# Petition — International Brotherhood of Teamsters v. Eazor Express, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 935

## Text

oh. a a

DEC si 1975

= a CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No %5-930

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, ET AL.,
Petitioners

v.

EAZOR Express, INC., ET AL.,
Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

SipNEY DICKSTEIN

GEORGE KAUFMANN

1735 New York Avenue

Washington, D.C. 20006

Attorneys for Petitioner International
Brotherhood of Teamsters,
Chauffeurs, Warehousemen and
Helpers of America

BEN PAUL J UBELIRER
2000 Lawyers Building
Pittsburgh, Pennsylvania 15219

Attorney for Petitioner Local No. 249

EUGENE GREEN
602 Stambaugh Building
Youngstown, Ohio 44503

Attorney for Petitioner Local No. 377

Pauses or Brrnon S. Adams Parvrrinc, Inc., Wasmincron, D. C.

=,

TABLE OF CONTENTS

Page
ee ee ee eed gedcebena ae’ 1
I oe ep pueden enaaee waueues 1
SE cdc ccascnddvesséseucwensens 2
SraTuTE aND Rute INVOLVED .............cccccccees 3
Srarvesewe OF TMB CaGm ......ccccccccccccccccccces 3
I. The Factual Background .................... 5
A. The Parties and the Agreements .......... 5

B. The Unauthorized Work Stoppage and the
Unions’ Efforts To Terminate It .......... 8
De ee ee SD ies icccdbosedenses 8

2. The Unions’ Efforts To Terminate the
Bde FER tig be ERS Seer Fe 10
ee nnn ic cacensesesdeneees 11
i i eeduioanus 11
Ei Cn uxceunhes tdeubanckueuaeusduas 11
ED back c dadkadecakbexkvsencnseue 12
ee ee ee Oe Do vcvcdcdpecsccancen 14
Reasons FOB GRANTING THE WRIT ................:: 16

I. In Imposing Liability on Petitioners the Court
Below Decided Questions of Almost Universal
Impact on the Application and Negotiation of
Collective Bargaining Agreements and Violated ,
the Precepts of Congress and This Court ..... 16

ii Table of Contents Continued

Page

II. In Awarding Damages and Interest in the Ab-
sence of Special Findings as Required by Rule
52(a), F.R. Civ. P. the Courts Below Departed
From the Usual Course of Judicial Proceedings

and the Teachings of This Court ............. 34
D, Geatiee EMGGOD oc cccccccsesccscccccescesces 34
i EE . nt awestdapebssasenensedasenean 36
i 8 onc nen tatnsdadvied daudesceseessanes 39

Arrenpix (Opinions Below, ete.) (Separately Bound) 1a
BearvTony APPBMBEE 2... ccccssccccccccccccccvccees 1b

TABLE OF AUTHORITIES
CASES:

Albermarle Paper Company v. Moody, 422 U.S. 405 .. 37
Alexander y. Nash-Kelvinator Corporation, 261 F.2d _
187 (2 Cir.), modified, 271 F.2d 524 ............ 35
Bangor Punta v. Chris-Craft Industries, pet. for cert.
pending, NO. 75-355 22... ee eee e eee este ene 38
Board of Commissioners v. United States, 308 U.S. = =
Boys Markets v. Retail Clerks, 398 U.S. 235 ........ ; 17
Carpenters Local 1273 v. Hill, 398 F.2d 360 (9 Cir.) . .35, 36
Coronado Coal Co. v. United Mine Workers, 268 U.S. ™
BK oc pu0bssccneasdbaneeeses tees 5 ened teneseees 2
Gateway Coal Co. v. Mine Workers, 414 U.S. 368 .... i7

H. J. Heinz & Co. v. Labor Board, 311 U.S. 514 ...... 17 ’
Hatahlev v. United States, 351 U.S. 173 ............ 35
Howard Johnson v. Hotel Employees, 417 U.S, 249 ‘i?
Labor Board vy. General Motors, 373 U.S. 754 ....... 22
Labor Board v. Insurance 4 gents, 361 U.S. 477 ..... 25
Labor Board v. Sands Mfg. Co., 306 U.S. 332 ...... 21, 23

Lewis v. Benedict Coal Co., 259 F.2d 346 (6 Cir.), aff’d
in part and reversed in part, 361 U.S. 459 ....... 29
Lewis v. Pennington, 400 F.2d 806 (6 Cir.), cert. de- h
nied, 393 U.S. 983 0... 6... cece cece eee e seen es 89
Mastro Plasties Corp. v. Labor Board, 350 U.S. 270... 20

Table of Authorities Continued iii

Page

McCrea v. Harris County Houston Ship Channel Navi-
gation District, 423 F.2d 605 (5 Cir.), cert. denied,

PA ene dudedeivetuked + ciavuateceetens 37

McManus v. Midland Valley Lumber Company, 348
I I a i ad 35
NLRB vy. Allis-Chalmers Mfg. Co., 388 U.S. 175 ..... 22
NLRB v. Burns Security Services, 406 U.S. 272 ..... 25
NLRB v. Draper Corporation, 145 F.2d 199 (4 Cir.) . .20, 23
NLEB v. Weingarten, 420 U.S. 251 ................. 31

eee Popsicle Corp. v. Ieyelair, 119 F.2d 799 (9
| PP aR Sie aS ee cee oneeae as ae 35

Norte & Co. v. Huffines, 288 F. Supp. 855 (S.D.N.Y.),
aff’d, 416 F.2d 1189 (2 Cir.), cert. denied sub nom.

Muscat v. Norte Co., 397 U.S. 989 ............. 37, 38
North American Coal Corp. v. Local Union 2262, etc.,

BE OR RE Se ne ee 16, 29
Plumbers & Fitters, Local 761 v. Matt J. Zaich Const.

oe pe FF le ree 35
Porter Co. v. NLRB, 397 U.S. 99 .................. 25, 27
Quality Mfg. Co., 195 NLRB 197 .................5. 31
Radio Officers v. Labor Board, 347 U.S. 17 ......... 22

Robert C. Herd & Company v. Krawill Machinery
Corp., 256 F.2d 946 (4 Cir.), aff’d, 359 U.S. 297 .. 37
Teamsters Union v. Lucas Flour Company, 369 U.S.

TP <sedienuenbeneiean cine akacon 16, 17, 18, 19, 25, 26
Teamsters Union v. Morton, 377 U.S. 252 ........... 33
Textile Workers v. Lincoln Mills, 353 U.S. 448 ..... 24, 25
Traylor v. United States, 396 F.2d 837 (6 Cir.) ...... 35

United Construction Workers v. Haislip Baking Co.,
223 F.2d 872 (4 Cir.), cert. denied, 350 U.S. 847.. 16,
17, 20, 24, 25, 29, 30
United States v. Federal Insurance Company, 483 F.2d
Fs SRT Pea eee 35
United States v. International Union, 89 F. Supp. 179
CD 6 oGtetelic. . cence keen oe eee eh oS
United States v. United Mine Workers, 77 F. Supp.
563 (D.D.C.), aff’d, 177 F.2d 29 (D.C. Cir.), cert.

UE nee 28
United States Steel Corn. v. United Mine Wkrs. of

PS pe § ff 5 eee 17
Wessel v. Buhler, 437 F.2d 279 (9 Cir.) ............ 37

Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118
SE EEE Caddouanedininds Loekedetwiadecaebineu 26

iv Table of Authorities Continued
Page

STATUTES AND RULEs:
Federal Rules of Civil Procedure:

Be GND . oo scceceveusseneennn 2, 3, 4, 34, 35, 36, 37
Judicial Code:

33 UALS. § ISBGERD 2k cccscevenkenaneeee 2
National Labor Relations Act of 1935, 49 Stat. 449:

BBLS) .ccccccccssecscceseesena eee 24

National Labor Relations Act of 1935, as amended by
Labor-Management Relations Act of 1947, 61 Stat.
136, 29 U.S.C. § 151 et seq.:

BMI 25

Cl): Spe 22
Butoh Beer 22
§ DEG) .cccccceccecdncesabouneneue 17, 25
DS OD ncccvcccsccccevvceeeeeceeunnnne 25
Fe 11, 30, 32
G TRECe) ...ccccccescccenesucucunn nl 3
6 SERCD) .ncccccsccsccceseueuueusnaee 2, 3, 27
G FERCO) .cccccccdiccévcescecauaneniee 24, 27, 28
§ SBlep(E)-(B) .. cn cc cvccccecceseuwieneee 17
kk. Pere 33, 35

Norris-La Guardia Act, 47 Stat. 70, 29 U.S.C. § 101
et seq.:

B Perrin 24

MISCELLANEOUS:

American Law Institute, Restatement of Contracts .. 17

Brief for American Federation of Labor and Congress
of Industrial Organizations, U.S. Sup. Ct. No. 73-

GEE occ ccvccceseesensesssn6ke nnn eee 26
Brief for Respondent, U.S. Sup. Ct. No. 73-631 ...... 26
1 Corbin, Contracts (1960) .............c.ccccecces 17

Cox, Some Aspects of the Labor Management Rela-
tions Act 1947, 61 Harv. L. Rev. 274 (1948) ....22, 23

Table of Authorities Continued v
Page

Gould, The Status of Unauthorized and ‘“*Wildcat”’
Strikes under the National Labor Relations Act,

52 Corn. L. Q. 672 (1967) .......-- ee eeeee - “ .
Legislative History of the Labor Management Rela-
“ Cems Bab, BO occ cccausccccecccccccess 21, 23, 24, 27
Prosser, Torts (4th ed., 1971) .......--e cece eeeees 32
S. Rep. No. 105, 80th Cong., 1st Sess. (1947)..... 21, 23, 24

U.S. Bureau of Labor Statistics, Dept. of Labor, Bull.
No. 1822, Characteristics of Agreements Covering
1,000 Workers or More, July 1, 1973 (1974)... .16, 18

Williston, Contracts, § 3 (3d ed. 1957) ........-+.+5. 17

IN THE

Supreme Court of the United States

OctToBEerR TERM, 1975

No.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, ET AL.,

e Petitioners

EAzor Express, INC., ET AL.,
Responaents

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

OPINIONS BELOW

The opinion of the District Court on liability is re-
ported at 357 F. Supp. 158 and is reproduced at pp. 2a-
20a. of the separately bound appendix to this petition
(‘‘App.’’). The opinion of the District Court on dam-
ages is reported at 376 F. Supp. 841 and is reproduced
at App. 21a-37a. The opinion of the Court of Appeals
is reported at 520 F.2d 951 and is reproduced at App.
39a-7T7a.

JURISDICTION

The judgment of the Court of Appeals was entered
on July 31, 1975 (App. 78a-79a). A timely petition for
rehearing was denied on August 29, 1975 (App. 80a).

2

On November 7, 1975 and December 19, 1975, Mr.
Justice Brennan entered orders extending the time
within which to file a petition for a writ of certiorari
until December 29, 1975 and December 31, 1975,
respectively. The jurisdiction of this Court rests on
28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. (a) Where the members of a union engage in a
work stoppage unauthorized by the union, but in vio-
lation of the no-strike clause of the applicable collec-
tive bargaining agreement, does the union have a duty,
enforceable by the employer in a suit under § 301 of
the Labor Management Relations Act of 1947, to use
every reasonable means to terminate the strike?

(b) In a suit against a labor union permitted by
§ 301(b) of the Act which provides that a union ‘‘shall
be bound by the acts of its agents,’’ may the union be
held liable for an unlawful strike by all its members
employed by a particular employer, when those mem-
bers constitute 6% or less of the union’s total member-
ship and the union did not authorize the strike?

(c) Where a union has a contractual duty, express
or implied, to use every reasonable means to terminate

an unauthorized strike, by what standards should the ~

union’s performance of that duty be measured? In
the event of a breach of that duty, how are the em-
ployer’s damages to be determined ?

2. (a) Where the measure of a plaintiff’s damages
is his loss during a particular period, and trial of that
issue has consumed weeks of conflicting testimony,
does the trial court comply with the requirements of
Rule 52(a), Federal Rules of Civil Procedure, by
simply stating its conclusion as to the amount lost,

without making any subsidiary findings which show
how conflicts were resolved, what competing account-
ing theories were adopted, and what computations
were made to reach that conclusion?

(b) Where an award of prejudgment interest is per-
missible as an exercise of equitable discretion by the
district court, must the court make findings which dis-
close that it has exercised its discretion and the equi-
table basis for granting interest ?

(ec) When a court of appeals substantially increases
the amount of a judgment to which the district court
had appended prejudgment interest, is remand re-
quired for a renewed exercise of the district court’s
discretionary power with respect to the grant or denial
of prejudgment interest? If not, may the court of
appeals grant prejudgment interest on the increased
judgment without disclosing that it has exercised its
discretion and the equitable basis for granting inter-
est ?

STATUTE AND RULE INVOLVED

This case involves §§301(a), (b) and (e) of the
Labor-Management Relations Act of 1947, (hereafter
‘‘the Act’’) 61 Stat. 136, 156, 29 U.S.C. §§ 185 (a), (b)
and (e), and Rule 52(a) of the Federal Rules of Civil
Procedure. These are set forth in the statutory ap-
pendix to this brief at pp. 1b-2b, infra.

STATEMENT OF THE CASE
Introduction

This Petition seeks review of a judgment in excess of
one million dollars plus prejudgment interest, for dam-
ages allegedly suffered by an employer during a work
stoppage which the courts below found was not au-

4

thorized by any of the defendant unions. The theory
of the judgment was that the unions breached their
agreement with the employer by failing to use every
reasonable means to terminate the strike and that they
could also be held liable for the ‘‘mass action”’ of all the
unions’ members employed by a particular employer,
although those members were but a minute fraction of
each defendant’s total membership. In concluding, with
hindsight, that the union should have taken ‘‘stronger
measures’’ to terminate the strike (App. 59a) than de-
claring the strikes to be illegal and instructing and per-
suading the striking members to return to work, the
courts did not take into account the fact that the em-
ployer did not call upon the union to take such meas-
ures, nor other surrounding circumstances which ten-
ded to show that these would have been unsuccessful,
if not indeed, as the union officials believed, counter-
productive. The plaintiff was awarded all its strike
losses after the first two days of the strike, although
there was no finding that if the unions had not breached
the agreement, the strike would have ended then, or any
time before it actually did. Although there was a
lengthy and complicated trial to determine the amount
of the plaintiffs’ strike losses, the District Court sim-
ply stated a figure which represented its conclusion on
that issue, providing the parties and the appellate
courts with no explanation as to how that figure was
reached; the Court of Appeals affirmed despite the spe-
cificity requirements of Rule 52(a) F.R.Civ.P. and al-
though the absence of underlying findings made mean-
ingful review impossible. The District Court added
prejudgment interest, without stating whether it did so
under a felt compulsion of law, or in the exercise of dis-
eretion, and if the latter, the basis of that exercise;
again the Court of Appeals affirmed despite the absence

5

of findings and although its decision on the merits
approximately doubled the original judgment, raising
prejudgment interest alone to above $350,000.

Il. THE FACTUAL BACKGROUND

A. The Parties and the Agreements

Respondent, Eazor Express, Ine. (Eazor) and re-
spondent, Daniels Motor Freight, Inc., (Daniels) which
is now wholly owned by Eazor, are motor carriers en-
gaged in interstate commerce. (They will sometimes
be referred to jointly as ‘‘the employer’’). Petitioners
Loeal 249 and Local 377 are labor organizations aftili-
ated with petitioner International Brotherhood of
Teamsters (hereafter ‘‘IBT’’). Local 377 was the ex-
clusive bargaining representative of the drivers and
other employees at Daniels’ terminal in Warren, Ohio;
Local 249 was the exclusive representative of drivers
and other employees working out of, or at Eazor’s
Pittsburgh terminal. Eazor, Daniels and the locals
were parties to the National Master Freight Agree-
ment in foree between April 1, 1967 and March 31, 1970,
(‘‘NMFA’’); it is, as the name implies, a nationwide
agreement covering employers and unions in the truck-
ing industry. To this master agreement there were
various regional supplements binding upon certain em-
ployers and local unions. The Teamsters Joint Council
No. 40 Freight Division Over-the-Road Supplemental
Agreement and the Teamsters Joint Council No. 40
Freight Division Local Cartage Supplemental Agree-
ment were the supplements binding on Eazor and Local
249: the Central States Area Over-the-Road Motor
Freight Supplement with Ohio rider and the Central
States Area Local Cartage Supplemental Agreement

6

bound Daniels and Local 377." The courts below de-
termine that the IBT was also a party to and obligor
under the NMFA and its supplements (App. 17a-18a
and 46a-48a).?

The NMFA contains no no-strike clause. Moreover,
the NMFA contains the following exculpatory provi-
sion:

‘Job Stewards and alternates have no authority
to take strike action, or any other action inter-
rupting the I:mployer’s business, except as author-
ized by official action of the Local Union. The
Employer recognizes these limitations upon the
authority of job stewards and their alternates, and
shall not hold the Union liable for any unauthor-
ized acts. The Employer in so recognizing such
limitations shall have the authority to impose
proper discipline, including discharge, in the event
the shop steward has taken unauthorized strike
action, slowdown or work stoppage in violation of
this Agreement.’’ (App. 52a-53a)

Each supplemental agreement contains substantially
the following no-strike clause:
‘The Unions and the Employers agree that there
shall be no strike, lockout, tie-up, or legal proceed-
ings without first using all possible means of settle-
ment, as provided for in this Agreement, of any
controversy which might arise.”’ (App. 42a)
The Central States Supplement also contains the fol-
lowing language:
‘Section 2. It is further mutually agreed that the
Loeal Union will, within two weeks of the date of

' They will be referred to herein as the ‘‘Joint Council No. 40
Supplement’’ and ‘‘Central States Supplement’’ respectively.
. *IBT disagrees with this holding, but in order to narrow the
issues in this Court, does not seek review thereof.

7

the signing of this Agreement, serve upon the Em-
ployer a written notice, which notice will list the
Union’s authorized representatives who will deal
with the Employer, make commitments for the Un-
ion generally, and in particular have the sole auth-
ority to act for the Union in ealling or instituting
strikes or any stoppages of work, and the Union
shall not be liable tor any activities unless so au-
thorized. ... It is further agreed that in all cases
of an unauthorized strike, slow-down, walk-out, or
any unauthorized cessation of work in violation of
this Agreement, the Union shall not be liable for
damages resulting from such unauthorized acts of
its members.

‘*While the Union shall undertake every reason-
able means to induce such employees to return to
their jobs during any such period of unauthorized
stoppage of work mentioned above, it is specifically
understood and agreed that the Employer during
the first twenty-four (24) hour period of such un-
authorized work stoppage shall have the sole and
complete right of reasonable discipline short of dis-
charge, and such Union members shall not be en-
titled to or have any recourse to any other provi-
sions of this Agreement. After the first twentv-
four (24) hour period of such stoppage, and if such
stoppage continues, however, the Employer shall
have the sole and complete right to immediately
discharge any Union member participating in any
unauthorized strike, slow-down, walk-out, or any
other cessation of work, and sueh Union members
shall not be entitled to or have any recourse to any
other provision of this Agreement... .’’ (App.
53a-54a)

The Joint Council No. 40 Supplement contains no un-
dertaking with respect to unauthorized strikes.

8

B. The Unauthorized Work Stoppage and the Unions’ Efforts
To Terminate It

1. The Work Stoppage *

On August 17, 1968, Daniels discharged one Roper, a
member of Local 377, and on the 19th it discharged
another, one Eekley. On the morning of the 20th,
meetings were held to resolve the grievances arising
from these terminations. When they proved fruitless,
Roper and Eckley began to picket the Daniels Warren
terminal. The members of Local 377 then walked off
their jobs and the strike began. The next morning
members of Local 377 established a picket line at
Eazor’s Pittsburgh terminal which the members of
Local 249, employed by Eazor, refused to eross. The
discharged employees did not exhaust the contractual
grievance procedure, the strikes were unauthorized by
the unions, and were in direct violation of the no-strike
clauses of the respective supplements to the NMFA.
The local union stewards and committeemen at the
Warren and Pittsburgh terminals took no steps to dis-
suade their fellow employees from striking, but par-
ticipated in and led them.

The strikes were characterized by an accelerating
pattern of violence which persisted, despite efforts to
enforce injunctions issued by the Court of Common
Pleas at Pittsburgh and the United States District
Court at Cleveland to control it. The violence included
commandeering on the highway plaintiffs’ drivers not
involved in the strikes and compelling them to abandon
their equipment, large scale destruction of Eazor
equipment, threats of violence, and shootings, and,

’ This deseription of the cireumstances of the work stoppage is
taken from the Court of Appeals’ narration ( App. 42a-45a).

finally, on September 16 an open assault by hundreds
of persons on a convoy of Eazor trucks operated from
the Pittsburgh terminal under police protection pur-
suant to a specific order of the Court of Common Pleas.
Eleven of these persons, all members of Local 249, were
arrested, convicted and imprisoned for criminal con-
tempt by the Court of Common Pleas.

Within two or three days of the beginning of the
strike Daniels discharged the two union stewards, two
union committeemen and 26 other employees. At a
hearing before District Judge Lambros in Cleveland
the union officials proposed that Daniels permit all em-
ployees to return to work without penalty, including
the employees whose discharge triggered the work stop-
page, whose reinstatement would then be subject to the
grievance procedure.

Daniels rejected this offer and indicated that it was
unwilling to negotiate the status of the discharged em-
ployees until the employees not discharged returned to
work. Shortly after this meeting the plaintiffs offered
to reinstate all the Local 377 strikers who had been dis-
charged except Roper, Eckley, the stewards and the
ecommitteemen, but this offer, which was recommended
by Local 377’s chief officer and the striking union mem-
bers’ counsel, was rejected by the strikers at Warren.
On the same day Eazor at Pittsburgh discharged a 249
steward, a 249 committeeman and one member of 249.
Daniels and Eazor then sent letters to all striking Local
377 and 249 members, respectively, other than Roper,
Eckley, the stewards and the committeemen, offering
them the opportunity to return to work without pen-
alty if they returned on September 11 and with a three-
day penalty for each day’s participation in the strikes
if they returned on September 16. The strikers, how-

10

ever, rejected this offer and on September 17 Daniels
sent letters of discharge to 157 striking employees at
Warren and permanently closed that terminal thereby
ending the strike there. On September 24 the striking
members of Local 249 took a vote, for the first time by
secret ballot, and voted to return to work. The next
day, September 25, they went back to work at the Pitts-
burgh terminal and the strike there was over.

2. The Unions’ Efforts To Terminate the Strike

The Court of Appeals acknowledged that ‘‘There is
no doubt that officers of the two local unions and of the
Teamsters International Union repeatedly character-
ized the strikes as unauthorized and illegal and made a
series of appeals, both written and verbal, to their strik-
ing members to return to work.’’ (App. 43a) This bland
description fails to convey the vigor of their actions or
the stiff resistance of the members employed by Daniels
and Eazor. From the very first the strikers reacted
angrily against the union officials who urged and di-
rected them to return to work, booing them, and threat-
ening violence against them. (7JA 2537-2538, 2542-
2543, 8JA 2882).* Their defiance of the union of-
ficials, of their employer, and even of the courts, as well
as their widespread violence more than justified the
District Court’s characterization of the strikers’ mood
as ‘‘ugly’’ (App. 16a). It was not until after the strike
leaders had been jailed for contempt of court ¢»d many
of the men discharged, and the Warren terminal «'osed,
that the men who remained realized the futility of con-
tinuing their strike.

Perhaps the strongest evidence that the unions did all
that was expected from them under the contract is what

4** JA" refers to the Joint Appendix in the Court of Appeals.

11

the company said during the strike. Thomas Eazor tes-
tified concerning a meeting with Local 249 and Joint
Council officials on August 21, the day the picket line
was put up in Pittsburgh:
Q. Did you make any specific suggestions to them
(Union officials) as to what they should do to termi-

nate the strike as the strike proceeded ?

A. Yes, sir.

Q. What were some of the suggestions that you
made ?

A. I told them they should have their people go
down and get on that line and do everything in their
power, what I mean, to get these boys to listen to
them, to go back to work. I suggested they call
meetings with them up in the union hall, and per-
suade them, I mean, to listen to them, to take their
orders and go back to work, and handle what griev-
ances they had under the terms and conditions of
the contract. (9JA 3135)

On August 27, Eazor acknowledged both the unions’
role in attempting to end the strike and everyone’s
difficulty in achieving that goal, when it wrote to the
striking employees: ‘‘You have defied the Interna-
tional Union. You have defied the Local Union. You
have defied the law.’’ And on September 6, Eazor’s
labor relations representative wrote to the Assistant
to the International’s General President conveying his
‘*nersonal thanks for your help in this endeavor’’ and
expressing the hope that ‘‘this thing reaches a head
soon.’’ (2JA (Exhibits) 362a; 4JA (Exhibits) 1158a)

II. PROCEEDINGS BELOW
| A. The District Court
1. Liability
Eazor and Daniels brought these actions under § 301
of the Act. Trial in the District Court was without a

12

jury and was bifurcated for separate determination of
liability and damages. On March 30, 1973 the District
Court decided that defendants had breached the agree-
ments. The court rejected plaintiffs’ contention that
Local 377 autuhorized the strike. But he concluded that
defendants were obligated to ‘‘use ‘every reasonable
means’ to end the strike’’ (App. 8a). He concluded
that none of the defendants had satisfied that duty.
In his view ‘‘the circumstances called for the polities
of power rather than the politics of persuasion.’’ (App.
16a). And he expressly refused to give any weight to
the unions’ judgments as to what means were ‘‘rea-
sonable.’’ ®

2. Damages

The damage phase of the trial occupied weeks of
conflicting testimony, including that of accounting ex-
perts, principally dealing with the question as to how
much loss was sustained by Eazor-Daniels during the
strike period. The answer to this question turned on
such subsidiary issues as whether the loss sustained
during the strike should include the full cost of deferred
maintenance performed during the strike; whether
depreciation should be allowed on rolling stock during
the time in which it was not rolling; whether a subse-
quent settlement of warranty claims against Ford
Motor and Mack Truck should be credited back in
part to the strike period; whether losses sustained in
branches of plaintiffs’ operation which were not af-
fected by the strike should be included in strike period
losses; whether monies paid during the strike for ex-
penses incurred before the strike commenced should
be included in strike period losses, and if so, to what

5 App. 18a-19a, n. 18.

13

extent; whether plaintiffs’ or defendants’ accounting
experts were the more credible and the more expert.

In deciding the damage issues the trial court de-
clined to explain how it resolved any of the ‘‘disputes
over the intricate mysteries of accounting techniques’”’
(App. 23a), but simply stated that ‘‘ Plaintiff submits
and the Court finds that during the period [of the
strike] Eazor lost a total of $1,079,322.00’’ which be-
came the ‘‘starting point’’ of the strike loss calculation
(Id. 26a). (While plaintiff did so submit on brief, its
own accounting expert had testified, and its own Ex-
hibits showed that those losses were a maximum of
$696,255.° Plaintiff’s post-trial submission was based
on the original consolidated statement which plaintiff’s
counsel had previously represented to the court had
‘*substantially overstated the losses for those months”’
and disregarded all of the adjustments which had been
made by Eazor’s accountants in attributing revenues
and expenses to proper periods.)’ The trial judge then
adjusted this ‘‘starting point’? (App. 26a, 30a) for
two days of non-culpability, for seventeen days of non-
mitigation and for the exclusion of non-recoverable
legal fees, thereby producing the amount of the judg-
ment. Moreover, without a single word of explanation
as to why he was doing so, the trial judge simply tacked
prejudgment interest to the judgment (App. 38a), a
matter of approximately $175,000.

® Eazor Ex. 183 and Int. Ax. Y-2 (prepared by Eazor, 3JA
(Exhibits 855a, 4JA (Exhibits 1176a).

‘Exhibit P-180, 3JA (Exhibits 853a).

14

B. The Court of Appeals

The Court of Appeals held that ‘‘necessarily implied
in the unions’ agreement that there should be no strike
was an obligation on their part to use every reasonable
means to bring to an end a strike begun without their
authorization.’”’ (App. 50a). It also held that the
unions were liable also on the ‘‘so-called mass action
theory[: ] When all the members of a union employed
by a given employer engage in a concerted strike not
formally authorized by the union * * * mass action by
union members must realistically be regarded as union
action.”’ (Id. 57a). The court agreed with the trial
court that the unions had failed to use all reasonable
means to end the strikes, because they did not use
‘‘stronger measures’? which were ‘‘available’’. It
held that these were: to discipline or remove the job
stewards and committeemen who were organizing and
leading the strikes; to suspend or fine the striking
union members; to impose a temporary trusteeship on
the local unions; and to take an earlier secret ballot
vote of the striking members. (App. 59a). The court
asserted also that the unions ‘‘cannot now be heard to
urge that the measures to which they did not resort
would not have proved successful,’’ (App. 64a) that is,
that their ‘“‘breach’’ did not prolong the strike and
ee was not the proximate cause of the strike
osses,

The court held that Eazor was entitled to recover,
as damages, its total strike loss after the unions first
failed to take one of these ‘‘stronger measures.’’ In
so doing, the court in effect converted the ‘‘every rea-
sonable means’’ obligation into a duty to hold Eazor
harmless for any damages resulting from the strike.

15

‘‘The unions’ no-strike pledge was not an aleatory
promise conditional upon the happening of a fortui-
tous event in the future. It was rather an undertaking
that there should be no strike by union members dur-
ing the term of the agreement in violation of the no-

strike pledge.’’ (App. 63a).

The court acknowledged the ‘‘great deal of evi-
dence”’ offered on the amount of plaintiffs’ losses
resulting from the strike and that such ‘‘evidence was
in many respects sharply conflicting’? (App. 65a).
But it both sanctioned the trial court’s failure to make
findings resolving these issues and refused to re-
examine them. Instead, it accepted that court’s
$1,079,332 figure. It then rejected his adjustments
for non-mitigation and disallowed legal fees (App.
74a), allowed the two-day adjustments for non-culpa-
bility and entered a modified judgment for $1,032,580
(App. 76a). Purporting to answer the Unions’ com-
plaint that the trial court’s award of prejudgment
interest was improper and totally unsupported by
findings, the court below tacitly assumed that the award
was the result of trial court’s exercise of its discretion,
and although the basis, if any, upon which the trial!
eourt had exercised that discretion, was unknown, held
that it was not abused. (App. 77a). And it further
determined, without discussion, or even any indication
that this result was not automatic, that interest should
still be awarded although by doubling the judgment on
appeal interest alone was increased to over $350,000.

(App. 79a).

16

REASONS FOR GRANTING THE WRIT
1. IN IMPOSING LIABILITY ON PETITIONERS THE COURT

BELOW DECIDED QUESTIONS OF ALMOST UNIVERSAL IM-

PACT ON THE APPLICATION AND NEGOTIATION OF COLLEC.

TIVE BARGAINING AGREEMENTS AND VIOLATED THE PRE-

CEPTS OF CONGRESS AND THIS COURT.

A. Over 93 percent of major collective bargaining
agreements contain a no-strike clause.* This alone
would warrant review of the unprecedented holding
below that necessarily implied in the union's agreement
that there should be no strike was an obligation on their
part to use every reasonable means to bring to an end
a strike begun by their members without their authori-
zation.

In United Construction Workers v. Haislip Baking
Co., 223 F.2d 872, cert. denied, 350 U.S. 847, the Fourth
Cireuit held unanimously that absent evidence that
its officers ‘‘ participated in, ratified, or encouraged the
continuance of the strike’’ the union could not be held
liable for breach of that promise even if those officers
had done nothing to get the men back to work. Id. at
877. So too, the Sixth Cireuit in North American Coal
Corp. v. Local Union 2262, etc., 497 F.2d 459, 467, n.3
expressly ‘‘decline[d] to follow Eazor’’, referring to

* This figure is calculated from U.S. Burean of Labor Statistics,
Dept. of Labor, Bull. No. 1822, Characteristics of Agreements Cov-
ering 1,000 Workers or More, July 1, 1973 (1974) Table 72, p. 65.
The Labor Department Study revealed that of the 1,339 agree-
ments covering 6.7 million workers analyzed, 779 agreements cov-
ering 4.7 million workers were subject to limited no-strike bans
(defined as ‘‘a statement prohibiting strikes or lockouts except
under given cireumstances or for specific uses.”’ Id. at n.2).
In addition, 474 agreements covering 1.6 million workers contained
absolute no-strike clauses (defined as ‘‘an unmodified statement
prohibiting strikes or lockouts.’’ Jd. at n.1), yielding a total of
1,253 agreements covering 6.3 million workers which contain some
form of express no-strike clause.

17

the District Court’s decision herein. Although the
District Court herein candidly cited Haislip as ‘‘con-
tra’ (App. 12a, n.13), the Court of Appeals sought
to distinguish Haislip on the ground that there the
obligation not to strike had been implied from the
promise to submit contract disputes to final and bind-
ing arbitration (presaging Teamsters Union v. Lucas
Flour Co., 369 U.S. 95, 105), whereas here the no-strike
obligation was expressed in so many words. (App. 51a).
While that distinction has since been endorsed by the
Fifth Cireuit,® it has no basis in Haislip or Lucas
Flour,* has already been rejected by this Court in a
related context, * is contrary to accepted principles of
contract interpretation, ** and represents exceedingly
poor labor relations policy as well, given the impor-
tance which the Act attaches to written agreements,
see §8(d) codifying the rule of H.J. Heinz & Co. v.
Labor Board, 311 U.S. 514, 523-526, and §§ 302(c) (4)
and (5). At best, the validity of the distinction prof-
fered by the Court of Appeals is itself a question of law
under § 301 of the Act which this Court should now

® United States Steel Corp. v. United Mine Wkrs. of Am., 519
F.2d 1249, 1254-1255.

1” Neither Judge Parker in Haislip nor this Court in Lucas
Flour, even remotely suggested that the no-strike duty implied
from the promise to arbitrate contract disputes differs in any
respect from the duty to which the union is subject under an ex-
press promise not to strike over such disputes.

11 Gateway Coal Corp. v. Mine Workers, 414 U.S. 368, 381
squarely decided that the rule of Boys Markets v. Retail Clerks, 398
U.S. 235 governs whether the contractual undertaking not to strike
is express or implied.

12‘*Contracts are often spoken of as express or implied. The dis-
tinction involves, however, no difference in legal effect, but lies
merely in the mode of manifesting assent’’. Restatement of Con-
tracts, §5, Comment a. See also Williston, Contracts, § 3, pp. 8-9
(3d ed. 1957); 1 Corbin, Contracts § 18, pp. 39-42 (1960).

18

decide because it directly affects not only the soundness
of the decision below with respect to agreements which
contain no-strike clauses, but also those 6% of major
agreements which do not, but which do provide for final
and binding arbitration, and from which the no-strike
Obligation is therefore implied under Lucas Flour,
leaving untouched by the decision below only 1% of all
collective bargaining agreements presently in force.

Additionally, the decision below will inevitably bur-
den the negotiation of new collective bargaining agree-
ments. Henceforth unions will be reluctant to aecept
a no-strike clause, lest they thereby unwittingly com-
mit themselves also to the duty to police strikes which
they have not authorized, participated in or ratified.
Their reluctance will be compounded by the standard
which the court below established for judging perform-
ances of that duty, a standard which does not take into
account the surrounding cireumstances, such as the legal
limitations on union’s authority, the failure of the em-
ployer to demand action by the union or the reasonable-
ness of the union officials’ judgment that their actions
would aggravate rather than terminate the work stop-
page. Nor will unions readily jeopardize their assets
by submitting to the regime imposed by the court below,
whereunder the plaintiff employer is relieved of the
need for establishing that the breach proximately
caused the damages claimed, because the union ‘‘cannot

13 See the Labor Department Study cited at p. 16, n.8, supra at
Tables 70-72. Petitioners obtained a computer print-out of the
data underlying these tables and determined therefrom that of
the 1,339 contracts covering 6.7 million workers ineluded in the
Study, 83 contracts, or 6 percent of the total (covering 411,000
workers) did not contain no-strike clauses, but provided for binding
arbitration of some or all issues.

19

be heard to say’’ (App. 64a) that the strike would have
continued even if it had emp'oyed all reasonable means
to terminate it.

On the other hand, it will frequently be impossible
for parties to express their full intentions without
including some express no-strike commitment in the
agreement. For example, since Lucas Flour did ‘‘not
** * suggest that a no-simke agreement is to be implied
beyond the area which it has been agreed will be
exclusively covered by compulsory terminal arbitra-
tion’’ 369 U.S. at 106, parties who intend to submit
only some disputes to final and binding arbitration, but
intend to forbid the union from striking over any
disputes, can do so only by spelling out that no-strike
obligation in terms. Precisely because of their im-
portance to both sides, no-strike clauses are commonly
drafted in considerable detail to define the kinds of
work stoppages which the union may not authorize.
The process will be complicated enormously, if, by
including an express no-strike obligation (without
which such definition is impossible), the parties will
run the risk that they will be deemed to have created
the additional union duty to terminate unauthorized
strikes. ** That risk will be nationwide because even a
eourt which disagrees with the Third Cireuit’s analysis
in Eazor might well reason that parties who, while

14The opinion below leaves considerable doubt as to how the
parties could, by the express terms of their agreement, successfully
exclude such liability. For while the court accorded the fullest
sweep of implication to the no-strike clause, it gave the narrowest
possible breadth to the contractual language of exoneration, such
as, for example, the employers’ disavowal of claims against the
union for unauthorized acts (App. 52a-54a). This erroneous and
unbalanced approach to contract interpretation raises additional
problems for collective bargaining which independently merit this
Court’s attention and correction.

20

Eazor is on the books, enter into an agreement which
contains a no-strike clause, thereby intend to create
the duty which Eazor implies. ‘‘Like other con-
tracts, [a labor agreement] must be read as a whole
and in the light of the law relating to it when made.”’
Mastro Plastics Corp. v. Labor Board, 350 U.S. 270,
279.

B. On the merits, we submit that the court below
was wrong in this case, and Judge Parker was right in
Haislip, where he wrote:

There is nothing in the contract making defend-
ants liable for ‘‘wild cat”’ strikes or requiring that
they take any action with regard to them. This
court has pointed out that employees who engage in
‘wild eat’’ strikes lose the protection of the [Na-
tional Labor Relations] Act and may be discharged
by their employers with impunity for so doing.
N.L.R.B. v. Draper Corporation, 4 Cir., 145 F.2d
199, 156 A.L.R. 989. We have never held, however,
that there is any respousibility on the part of a un-
ion for a strike with which it has had nothing to do;
and there manifesily is no such liability. If [the
union agents] had done nothing when plaintiff
called on them to get the men back to work, there
would have been no liability on the part of the de-
fendants. This being true, defendants were not
rendered liable by the efforts which these men

made to bring about an adjustment of the diffi-

culty, even if they did not do everything that they
might have done to that end. The question is not
whether they did everything they might have done,
but whether they adopted, encouraged or prolonged
the continuance of the strike. There is no evidence
of any sort that they did. (223 F.2d at 877-878,
emphasis added).

But the Court of Appeals herein said that:

a no-strike agreement would be illusory indeed
were a union to be permitted to avoid all respon-

21

sibility under it for the duration of a prolonged
strike which was being carried on by the concerted
action of all its members employed in the struck
operation, merely because the strike was not
initially authorized or called by the union as an
organization or by those of its officers who were
specially empowered to do so. Rather than to con-
strue a contract as producing such a result, the
courts will favor a construction making the mutual
promises binding and giving the contract legal
effect.’’ (App. 50a)

The principle of contract interpretation invoked by
the court is entirely sound, but has no proper appli-
eation to this case, for a no-strike agreement is far
from ‘‘illusory”’ if it is understood, as it hitherto has
been, as a promise by the union that it will not author-
ize, participate in or ratify work stoppages during the
life of the agreement. That management regards this
promise to be a substantial benefit is evidenced most
clearly by the prevalence of no-strike clauses, and the
almost universal insistence thereon by employers in the
many years before the Court of Appeals implied
therefrom the additional union duty to police un-
authorized strikes. Management has relied for protec-
tion against unauthorized strikes on its privilege to
discharge or otherwise discipline those who lead or
participate therein. That privilege was confirmed in
1947 by an amendment to §13 of the Act which pre-
served the ‘“‘limitations’’ and ‘‘qualifications’’ on the
right to strike, one of which is the rule of Labor
Board v. Sands Mfg. Co., 306 U.S. 332, 344, that the Act
does not prohibit the discharge or other discipline of
‘“employees who strike in breach of contract.’’** It is

15 §. Rept. No. 105 on S.1126, 80 Cong. Ist Sess., p. 28, 1 Legis-
lative History of the Labor Management Relations Act, 1947 (here-
after ‘‘Leg. Hist.’’) 434.

22

in this sense that the no-strike promise was **binding
upon the individual union members on whose behalf the
union signed the agreement”’ (App. 52a); to reason as
the court below did, that the union (the bargaining
agent) was responsible for the breach by the members
(its principal) is to create liability on the novel prin-
ciple of respondeat inferior. Moreover, the court be-
low also failed to appreciate that in 1947 Congress re-
duced the disciplinary powers of unions even over their
own members. As was explained in NLRB v. Allis Chal-
mers Mfg. Co., 388 U.S. 175, 184-185 (the case mis-
takenly relied on below (App. 52a)), Congress by
§§8(a)(3) and 8(b)(2) deprived unions of the
right to cause their members to lose their jobs because
they violated a membership obligation.

Professor Cox accurately prophesied the effect of
this enactment on the problem of unauthorized strikes:

The most disturbing aspect of Section 8(a) (3),
however, is the provision making it an unfair labor
practice to discharge an employee pursuant to an
authorized union shop agreement for any reason
other than non-payment of dues. By depriving
the majority representative of power to expel
from the plant individuals seeking to under-
mine its position, this provision eneourages the
growth of the dissident groups and dual unionism:
that breed jurisdictional strife. By depriving the
union of its most effective means of disciplining
workers who disregard their obligations under a
collective agreement, the provision also disables
the union from accepting responsibility for the
employees’ observance of the other terms of a
collective agreement. For example, under a true
union shop arrangement, a labor union could take

See also Radio Officers v. Labor Board, 347 US. 17, 40-41;
Labor Board v. Gencral Motors, 373 U.S. 734, 742-743.

23

ive action to halt wildeat strikes. It could
po the men back to work and, if they disobeyed,
suspend or expel them, thus bringing about their
lay-off or discharge. Under Section 8(a)(3) the
back-to-work order would be an empty gesture,
for the union would have no effective sanction by
which it could be enforced. Under such cireum-
stances it is unlikely that unions will voluntarily
accept any responsibility for the conduct of the

employees they represent. **

In this legal context it cannot be maintained that in
order to ‘‘mak[e] the mutual promises binding and to
give the contract legal effect’? (App. 50a) the union
must be bound to enforce the no-strike clause through
its sharply circumscribed authority ; rather it becomes
clear that, as the Fourth Circuit understood, parties
who place a no-strike commitment into their agree-
ment intend that it will be enforced against the strik-
ing employees by the employer, who may discharge
them ‘‘with impunity’? 223 F.2d at 877, citing \ TRB
v. Draper 145 F.2d at 199, a case which followed Sands,
id. at 204.

rv to the view of the court below, the impli-
ge duty to police unauthorized strikes does
not ‘“‘accord with the Congressional intent.” (App.
57a). The only legis!ative material on which the court
relicd to discover that policy, a section of the 1947
Senate Report referred to at App. 56a and quoted at
App. 52a, does not even remotely support that step.
This section is entitled ‘‘ Enforcement of Contract Re-
sponsibilities’’."* It shows that Congress’ primary
eoneern”’? was that collective bargaining agreements

17 Cox, Some Aspects of the Labor-Management Relations Act,
1947, 61 Harv.L.Rev. 274, 298-299 (1948).

18. Rept. No. 105, p. 15, 1 Leg. Hist. 421.

24

should be legally binding and judicially enforceable
png Bap sides; see Textile Workers v. Lincoln
Mills, 353 U.S. 448, 453-454, discussing and quoting the
Senate Report in extenso. This was, of course, achieved
primarily by providing in § 301 for federal jurisdic-
_ over suits to enforce union-employer contracts
by effectuate § 301 (a), Congress declared in § 301(b)
at any (covered) union ‘“‘shall be bound by the acts
of its agents” and ‘‘may sue or be sued as entity;”’ in
§301(e) it provided that the common law of agen
shall govern ‘‘in determining whether one person is
acting as an ‘agent’ for another person’’. Congress
thereby eliminated both the very loose test of res ~
bility under § 2(2) of the original NLRA and the diff
culties of establishing union responsibility under $6
of the Norris-LaGuardia Act. See the explanation b
Senator Taft at 2 Leg Hist. 1622 quoted in full in
sta A Prtagte 223 F.2d at 878-879, and his deserip-
ows A ows
ed : <i a — responsibility quoted at p.
. ‘Congress was also interested in pr
tive bargaining that ended with i ae é‘
strike”, Lincoln Mills, 353 U.S. at 453. But ev ;
this major objective was not to be accomplished by

reading a no-strike promise into every agreement;
hs

consistent with the overall philosophy of the Bill, the
Senate Report made clear that inclusion or exclusion
ofa no-strike promise was ‘‘a point to be bargained
over. All the less can that Report be read as just-
ifying the imposition of the more onerous d fj

police unauthorized strikes. mail

~~ short, § 301 is concerned with the procedure for
enforcing collective agreements, not with their content

a —_

9 Td. p. 424.

25

That is left to collective bargaining. For, ‘‘the funda-
mental premise on which the Act is based [is] private
bargaining under governmental supervision of the pro-
eedure alone, without any official compulsion over the
actual terms of the contract.’’ Porter Co. v. NLEB,
397 U.S. 99, 108 quoted with approval in NLRB v.
Burns Security Services, 406 U.S. 272, 287. That
policy, embodied in § &(d), (and implicit in §§ 7 and
13, see Labor Board v. Insurance Agents, 361 U.S.
477) is binding on the judiciary in suits under § 301.
In Howard Johnson v. Hotel Employees, 417 U.S. 249,
this Court met and rejected the contention that § 8(d)
(and thus the rule of the Burns case, su pra) was appli-
eable only to the NLRB. This court held:

Although this distinction was in fact suggested
by the Court’s opinion in Burns, we do not believe
that the fundamental policies outlined in Burns
can be so lightly disregarded. In Textile Workers
y. Lincoln Mills, 353 U.S. 448 (1957), this Court
held that § 301 of the Labor Management Rela-
tions Act authorized the federal courts to develop
a federal common law regarding enforcement of
eollective-bargaining agreements. But Lincoln
Mills did not envision any free-wheeling inquiry
into what the federal courts might find to be the
most desirable rule, irrespective of congressional

ronouncements. Rather, Lincoln Mills makes
clear that this federal common law must be ‘*fash-
ionfed] from the policy of our national labor
laws.’’ Id., at 456. (417 U.S. at 255, emphasis

The court below acknowledged that there are limita-
tions to the courts’ authority to imply contractual
obligations, but found precedent for its course in
Teamsters Union v. Lucas Flour Co. 369 U.S. 95 and
Haislip, supra. But Lucas Flour was heavily and

26

unsuccessfully relied on by the respondent union and
the amicus AFL-CIO in Howard Johnson.” In Lucas
Flour itself, the Court took pains to stress that its
holding was applicable in only a narrow class of cases;
See p. 19, supra, quoting 369 U.S. at 106, and id. at
105, n.14, expressly rejecting the proposition ‘‘that a
strike during the term of a collective bargaining agree-
ment is ipso facto a violation of the agreement’’.

The basis for distinguishing between those obliga-
tions which may and those obligations which may not
be implied is not articulated in Lucas Flour, Howard
Johnson or any other decision of this Court, but
the line can be discerned from what has actually been
decided: Where the implication of a duty is necessary
in order to give meaning to a promise which is made
that duty may properly be implied, but not otherwise.
Thus the promise to submit disputes to final and bind-
ing arbitration is ‘instinct with an obligation imper-
fectly expressed’’ not to strike over such disputes. ™
On the other hand, since a collectiv. bargaining agree-
ment provides benefits to both sides even absent a no-
strike obligation, and provides benefits to a union even
if a successor employer is not bound thereby, this Court
properly refused to go further in Lucas Flour or to
adopt the union’s interpretation in Howard Johnson.
Since, contrary to the view of the court below, the
implication of a duty to use every reasonable means
to terminate unauthorized strikes is not necessary to
give meaning and effect to the no-strike clause, see
p. 21, supra, such implication is not permitted, but

*°See Brief for Respondent, No. 73-631, pp. 32-37; Brief for
American Federation of Labor and Congress of Industrial Organ-
izations, td., p. 7.

*1 Cf. Cardozo, J. in Wood v. Lucy, Lady Duff-Gordon, 222 N.Y.
88, 90, 118 N.E. 214 (1917).

27

rather gives one party to the agreement more than it
was able to obtain in collective bargaining, contrary to
the ‘‘fundamental premise of the Act’’. Porter Co.,
supra.

C. The ‘‘so-called mass action theory’? (App. 57a)
which was also invoked by the Court of Appeals,
imposes liability on unions for the action of its mem-
bers, notwithstanding Congress’ determination in
§301(b) and (e) that they would be liable only for
the acts of their ‘‘agents’’ according to the common
law. See p. 24, supra. In describing union liability
under his bill, Senator Taft twice gave the most ex-
plicit assurance possible that unions would not be held
responsible for the actions of their members. In re-
sponse to a direct inquiry by Senators Smith (N.J.)
and Ferguson (who took the same view) he said:

I think the word ‘‘agent’’ used here, as used in the
contract section, and as used in other places in the
bill, means an agent under the ordinary rules of
agency, an agent of the labor union, the organiza-
tion, as such. The fact that a man was a member
of a labor union in my opinion would be no evidence
whatever to show that he was an agent. 2 Leg.
Hist. 1204-1205. See also id. at 1026-1027, repro-
duced in the margin. ™

22 Mr. Tart. What is a labor organization? It is an organiza-
tion with officers, exactly like a corporation.

I admit it may be difficult to prove the responsibility of a union.
It is sometimes difficult to prove in the case of an employer. 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
ageney in the case of unions as in the case of corperations; but I
do not think there is anything in the fact that a union is an un-
incorporated association which would bring about a condition in
law that the act of every member is necessarily charged to the
labor organization. No; I think not.

The foregoing leaves no room under this Act for
imposing liability on the premise 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.’”’ (App. 57a). Even
if it is to be accepted as an immutable truth, subject to
judicial notice, that men do not act without leaders, it
is still a matter of proof whether in a particular work
stoppage those leaders were the officers and agents
chosen and authorized to act by the union rather than
ad hoe leaders whose illegal acts generated a sponta-
neous following among the men. Only for the acts of
the former has Congress subjected unions as entities
to liability. Neither the court below nor any of the
other courts which have adopted the ‘‘mass action”’
theory mention § 301(e), or Senator Taft’s explanation
thereof; they do not even stop to consider that by its
action Congress has withdrawn from the courts the
authority to impose liability on some judicially created
‘“‘theory’’.* It is not surprising, therefore, that the

*3 In the court below, we described the unruly growth of the
‘‘mass action theory’’ in detail which cannot be duplicated in
a Petition for Certiorari. Suffice it to say that the eases which ac-
cept the theory are almost entirely devoid of analysis, resting al-
most exclusively on the supposed authority of earlier cases in the

line tracing back to Judge Goldsborough’s oral opinion in U.S. v.-

United Mine Workers, 77 F.Supp. 563, 566. Those decisions failed
even to consider whether his reasoning was sapped of all authority
when the case was ‘‘affirmed on other grounds’’ (App. 57a) by the
Court of Appeals (177 F.2d 29 (D.C. Cir.) cert. denied, 338 U.S.
871). It will be remembered that in Mine Workers, the District
Court had originally enjoined continuation of a strike and ex-
pressly mandated the UMW to ‘‘forthwith instruct its members to
cease the strike and immediately return to their employment”’
(id. at 33). It was the union’s failure to obey that mandate which
the Court of Appeals deemed to be contemptuous. That court
also said that if Lewis, the President, had at the beginning sent
the members a telegram directing or advising their return ‘‘nei-
ther he nor the Union would have been guilty of contempt of the

29

result which they reach is diametrically opposed to
that reached by the courts which have decided accord-
ing to the statute, such as the Fourth Circuit in
Haislip, supra, and the Sixth Circuit in a series of
eases including Lewis v. Benedict Coal Co., 259 F.2d
346, 351-352 (Stewart, J.)** and North American Coal
Corp. v. Local Union 262, 497 F.2d 459, 467. Even if
Senator Taft had not been so explicit, the federal law
of agency as declared by Chief Justice Taft in Coro-
nado Coal Co. v. United Mine Workers, 268 U.S. 295,

would be controlling:

In our previous opinion we held that a trades
union, organized as effectively as this United Mine
Workers’ organization was, might be held liable,
and all its funds raised for the purpose of strikes
might be levied upon to pay damages suffered
through illegal methods in carrying them on; but
certainly it must be clearly shown in order to im-
pose such a liability on an association of 450,000
men that what was done was done by their agents
in accordance with their fundamental agreement
of association. Id. at 304.

The wisdom of this rule, and the dangers of a harsher
standard of responsibility, are given point by facts
of this ease of which the court below took no note. The
consequence of holding the unions responsible for ‘‘all
the members of a union employed by a given employer”’

court’s order’’ (id. at 36), even though the members continued
to strike. For this reason, Judge Keech two years later refused to
hold the same International in contempt of court for violating an
almost identical strike injunction although 370,000 members were
on strike, United States v. International Union, 89 F.Supp. 179,
181 (D.D.C. 1950).

24 This case was affirmed in part and reversed in part on other
issues in 361 U.S. 459.

30

(App. 57a, emphasis added) is that only 200 of Local
249’s approximately 10,000 members (5JA1704) and
395 of Local 377’s approximately 6500 members (6JA
2011; 7J.A2509) have subjected their unions’ treasury
to judgments of $655,793 and $366,786 respectively ; and
while these empleyees are but 1/40 of 1% of the IBT’s
total membership, their ‘‘mass action’’ has subjected
the IBT to a judgment of over one million dollars. *

D. Part and parcel of a contractual duty te use
‘‘every reasonable means”’ to terminate a strike .3 the
standard by which performance of that duty is to be
measured. * We submit that the term ‘‘reasonable”’
in an agreement, or in any rule of law created under
§ 301, must be interpreted as declaring an objective

7° See also, Gould, The Status of Unauthorized and ‘‘Wildeat”’
Strikes Under the National Labor Relations Act, 52 Corn. L. Q.
672 (1967). In applauding the Haislip decision, supra, Professor
Gould wrote:

** * While it would seem proper to say that a union must

vigorously disavow striking stewards, section 301 cannot be
read to require that the union purge itself and discipline the
offending members.

As a matter of good sense, there are very sound reasons for
a narrow concept of union liability. The union bargains for
all employees in an appropriate unit, but it does not neces-
sarily have the loyalty of all employees. Even in a union
shop, the willingness to follow union leadership on economic
questions, as well as matters of discipline of individual em-
ployees, may be of varying degrees and intensity. The union
may not even be in a position to discipline employees who are
non-members. And it is somewhat extreme to hold the union
liable for damages when it takes a position opposite to that

taken by the striking employees and does not encourage the
strike. °° ®

*6 Of course, we believe that the standard is the same whether the
duty is express or implied, see text at p. 17, n.12, supra.

31

standard which requires consideration of all the cir-
cumstances. This is the meaning which this Court
recently gave the term in another context under this
Act: ‘‘ ‘Reasonable ground’ will of course be meas-
ured, as here, by objective standards under all the
circumstances of the case.’”’ NDIRB vy. Weingarten,
Ine., 420 U.S. 251, 257, n.5 quoting with approval,
Quality Mfg. Co., 195 NLRB 197, 198, n.3.

This is not remotely the test applied by the court
below. It held that the fact that ‘‘ [n]Jo stronger meas-
ures from the unions’ arsenal [than instructions and
persuasions] were ever employed, * * * although they
were available’? (App. 59a) was sufficient to establish
the breach.” The court did not consider that Con-
eress had depleted the unions’ ‘‘arsenal of powerful
weapons” (App. 63a) in 1947, and had left only the
employers with the heavy hardware—the power to de-
prive strikers of their jobs. Nor did it consider that
neither Eazor’s threats to exercise that power nor its
actual exercise brought the strike to a halt; nor did
the court consider that while government’s disciplinary
authority is far greater than that of any private party,
neither an injunction, which of course threatened
fines and jail as sanctions for contempt, nor even the
imposition of those sanctions terminated the strike.

27 Later, the court actually held that only ‘‘[i]f the unions had
made a showing of the use of strong and punitive measures with-
out result it would have been for the district court to determine
whether they had exhausted all reasonable measures available to
them to end the strike,’’ and even then, ‘‘the sole test would be
whether available measures were within the power of the unions
to employ and might be likely to be effective to end the strikes.’’
(App. 64a).

32

In short, the court looked only to whether ‘‘stronger
measures’’ were ‘‘available’’, not to those external cir-
cumstances which showed that they would be bootless.
Nor did the court consider whether use of ‘‘stronger
measures’” would be counter-productive—that is,
would risk prolonging the strike, or at least dis-
abling the unions from taking any useful role. Rea-
sonable men do consider all the circumstances when
they plan a course of conduct; specifically, they con-
sider the potential risks as well as the potential benefits
of their actions.* Moreover, it is obviously not in the
interest of promoting industrial peace or any of the
other publie policies which must be considered under
§ 301, to induce union officials to take actions which
might exacerbate strikes, at the risk of damage suits if
they fail to act.”

The same error of law also infected the court’s de-
cision to hold the unions liable for Eazor’s total strike
damages after the first two days. Having approved
the finding that ‘‘the unions used only rhetorie and
wholly abstained from the use of any more powerful
measures, thus, in practical effect, acquiescing in the

28 That is the standard to which the law holds our cld friend,
‘*the reasonable man’’: ‘*The standard of conduct which the com-
munity demands must be an external and objective one, rather
than the individual judgment, good or bad, of the particular
actor; and it must be, so far as possible, the same for all persons,
since the law can have no favorites. At the same time, it must
make proper allowance for the risk apparent to the actor, for his
capacity to meet it, and for the circumstances under which he
must act.’’ Prosser, Torts § 32, ‘‘The Reasonable Man”’ p. 150
(4th ed. 1971).

*° A further objective manifestation of the reasonableness of the
unions’ approach is Eazor’s contemporaneous approval, see p. 11,
supra.

strike situation,’’ it held that ‘“‘they cannot now be
heard to urge that the measures to which they did not
resort would not have proved successful.’’ (App. 64a,
emphasis added). Thus, although the court acknowl-
edged that ‘‘the liability which the unions incurred was
for the damages proximately caused by the breach of
their contractual obligation to use every reasonable
means to end the strikes,’’ (App. 62a-63a) it not only
relieved the plaintiff of the duty to establish that dam-
ages flowed from that breach, but refused even to hear
the unions’ contention that the strike would have con-
tinued and the strike losses incurred, even if the unions
had fully performed.”

But most serious of all, the court proceeded from its
erroneous view of the union’s powers to a further en-
largement of the union’s promise:

In view of the arsenal of powerful measures
available to them it is highly probable that the
unions could have ended the strikes promptly,
given the will to do so. We think that the plain-
tiffs were entitled to rely upon the unions’ doing
so, this being the only way in which, in the case
of unauthorized strikes such as these, they could
perform their no-strike promise. To hold other-
wise would make a hollow mockery of the unions’
no-strike pledge and would leave the plaintiffs
without any remedy in damages if, as it has been
held, the individual union members are not answer-
able in damages for illegal strike activity. (App.
63a-64a)

3° There is no warrant in the record, or the findings, for the
eourt’s innuendoes, here and elsewhere (App. 59a, 63a) that
the unions’ breach was willful, but the point is irrelevant since
proof of proximate cause may not be dispensed with even where
there is a willful breach of contract or even where defendants’
conduct is tortious. Cf. under § 303 of this Act, Teamsters Union
v. Morton, 377 U.S. 252, 261-262.

34

Thus, in order that the employer could recover its
strike losses from someone, the court having first read
the no-strike pledge as including a duty to use every
reasonable means to terminate a strike, transmuted it
into a promise to hold the employer harmless for the
members’ breach of the agreement.

In Howard Johnson, p. 25, supra, this Court ad-
monished against just such a ‘‘free-wheeling inquiry
into what the federal courts might find to be the most
desirable rule’’ and thereupon to give a party protec-
tion it could not secure at the bargaining table. 417
U.S. at 255.

Il. IN AWARDING DAMAGES AND INTEREST IN THE
ABSENCE OF SPECIAL FINDINGS AS REQUIRED BY
RULE 52(a), F.R. CIV. P. THE COURTS BELOW DE-
PARTED FROM THE USUAL COURSE OF JUDICIAL
PROCEEDINGS AND THE TEACHINGS OF THIS
COURT.

A. Strike Losses
Rule 52(a), F.R.Civ.P., unequivocally requires that:

‘*Tn all actions tried upon the facts without a jury
... the court shall find the facts specially ... .”

But in this ease, the trial court’s resolution of weeks
of conflicting evidence simply states that Eazor had
lost $1,079,332. The court sought to justify its failure
to specially find the facts by saying that the task would
be ‘‘of Augean dimensions.’’ (App. 23a).

Of course, the complexities of the evidence and
multiplicity of subordinate issues made finding the
facts specially all the more indispensable as part of
the decision-making process of the trier and to make
meaningful appellate review possible. It was grave
error for the Court of Appeals to excuse the trier’s

35

non-compliance with Rule 52(a). As this Court held
in Hatahley v. United States, 351 U.S. 181:

‘“*[I]t is necessary in any case that the findings of
damages be made with sufficient particularity so
that they may be reviewed.’’ (Jd. at 182)

Absent relevation of the trial judge’s subordinate
factual findings, there is no way for an appellate court
to know whose testimony he credited, which accounting
theories he found to be appropriate, how he resolved
the challenges to expenses for deferred maintenance
and for items purchased prior to the strike; in short,
whether he made missteps as he ‘‘threaded [his] way
through this maze.’’ (App. 65a).

The decision of the court below is also in conflict
with the decisions of other courts of appeals, which
have been meticulous in their policing of trial courts
to assure adequate compliance with Rule 52(a). See,
e.g., Alexander v. Nash-Kelvinator Corporation, 261
F.2d 187, 190 (2 Cir.), modified 271 F.2d 524; MeManus
v. Midland Valley Lumber Company, 348 F.2d 898,
900 (4 Cir.) ; United States v. Federal Insurance Com-
pany, 483 F.2d 153, 158 (5 Cir.); Lewis v. Penning-
ton, 400 F.2d 806, 817-18 (6 Cir.), cert. denied 393 U.S.
983; Traylor v. United States, 396 F.2d 837, 839 (6
Cir.) ; National Popsicle Corp. v. Icyclair, 119 F.2d
799, 800 (9 Cir.) ; Carpenters Local 1273 y. Hill, 398
F.2d 360 (9 Cir.) ; and Plumbers & Fitters, Local 761
v. Matt J. Zaich Const. Co., 418 F.2d 1054 (9 Cir.).

In each of these cases the Court of Appeals concluded
that the district courts had failed to find the facts with
the specificity mandated by Rule 52(a) and reversed
and remanded with instructions to make such findings.
Plumbers and Carpenters, both of which involved
damages for violations of § 303 of the Act, are espe-

36

cially instructive. Here, as in Carpenters, “‘the testi-
mony and trial briefs [were] of a highly detailed and
technical nature.’’ 398 F.2d at 363. In Plumbers, the
court said:

Our court has held that when damages are claimed
for several distinct elements and the trial court
has made a lump sum award, the case should be
remanded for supplemental findings of fact on the
issue of damages. Carpenters Local 1273 of
United Brotherhood of Carpenters and Joiners
of America v. Hill, 398 F.2d 360 (9th Cir. 1968).
In that case, the lump sum was less than the total
of each of the claimed elements of damages so that
we had no adequate basis for review as to each
element. Here, the award was equal to that
claimed, but there is nothing which reveals a
specified amount attributable to each element.
418 F.2d at 1059.

A remand for supplemental findings of fact on the
issue of damages, as was ordered in Plumbers, was all
the more necessary here since ‘“‘the award was equal
to that claimed”’ originally by plaintiff, an amount
totally discredited by plaintiff’s own accountant and
exhibit. See p. 13 supra.

B. Interest

This Court has not heretofore decided whether the
findings requirement of Rule 52(a) applies to the basis
for a discretionary award or denial of prejudgment
interest. The question is obviously of continually re-
curring importance in suits under a whole panoply of
federal statutes which give one private party a cause
of action for damages against another. ‘‘The cases
teach that interest is not recovered according to a rigid
theory of compensation for money withheld, but is
given in response to considerations of fairness. It is

37

denied when its exaction would be inequitable.’’ Bd. of
Commissioners v. United States, 308 U.S. 343, 353. This
Court has recently reminded that “discretionary choices
are not left to a court’s inclination, but to its judgment;
and its judgment is to be guided by sound legal prin-
ciples. * * * That the court’s discretion is equitable
in nature * * * hardly means that it is unfettered by
meaningful standards or shielded from thorough ap-
pellate review.”’ (Albemarle Paper Company v. Moody,
422 U.S. 405, 416). Accordingly, Rule 52(a), which
makes meaningful appellate review possible, should
be adhered to with respect to prejudgment interest, at
least where the amount is not de minimis. And so the
courts of appeals other than the court below, have
held and have reversed and remanded where a district
eourt failed to adequately delineate the basis for the
grant or denial of prejudgment interest. Robert C.
Herd & Company v. Krawill Machinery Corp., 256
F.2d 946, 953 (4 Cir.), aff’d on another question, 359
U.S. 297; McCrea v. Harris County Houston Ship
Channel Navigation District, 423 F.2d 605, 610 (5 Cir.)
cert. denied 400 U.S. 924; Wessel v. Buhler, 437 F.2d
279, 284 (9 Cir.).

The decision below is in even sharper conflict with
Norte & Co. v. Huffines, 416 F.2d 1189, 1191-92 (2
Cir.), where a district court’s elaborate articulation of
the basis for an award of prejudgment interest (288
F.Supp. at 865), was held inadequate since it did not
show that the district court had considered all the
factors which the Court of Appeals deemed relevant.
Yet here, the Court of Appeals approved the award
of pre-judgment interest although it could not know
whether the District Court had considered any, much
less all, relevant factors (or for that matter, factors

38

which were impermissible), and also could not even
know that the District Court had exercised its discre-
ton, and had not awarded prejudgment interest on the
erroneous premise that it was required to do so.

This case also presents an important and recur-
ring variant on the problem of findings concerning
discretionary prejudgment interest awards—whether
a Court of Appeals which substantially increases a
judgment may award prejudgment interest on the
total judgment, rather than remand to the trial court
for renewed exercise of its discretion, in light of the
changed circumstances, and if the appellate court may
act, whether it must set forth the basis for its decision.
Here, the Court of Appeals doubled the judgment,
raising the interest to $350,000 and the entire total
award against the defendants in excess of $1,400,000.
Even if the original award of interest was proper, it
by no means follows that the award on the much greater
judgment still ‘‘is compensatory and * * * , in light
of the substantial sum involved, [and] is in accord
with ‘fundamental fairness.’’’ Norte & Co., supra,
416 F.2d at 1191, following Board of Commissioners,
supra.

Since it is the trial court’s discretion which is called
for, we submit, as do petitioners in Bangor Punta
Corp. v. Chris-Craft Industries, now pending on peti-
tion for certiorari No. 75-355 (id. pp. 3, 33) that the
court should have remanded the question of interest
to the trial court for the exercise of that court’s dis-
eretion. But if it was proper for the Court of Ap-
peals to decide the issue in the first instance, that Court
should surely have set forth the basis, if any, for its
belief that the award was still equitable. Yet for
aught that appears, that Court thought the award was

39

automatic given its approval of the trial court’s (sup-
posed) exercise of discretion on the original judgment.
The award of such substantial sums without the slight-
est indication that the equitable standard declared by
this Court has been followed is the antithesis of proper
judicial procedure, and calls for correction by this
Court.

CONCLUSION

For the foregoing reasons this Petition for Certior-
ari should be granted.

SIDNEY DICKSTEIN

GEORGE KAUFMANN

1735 New York Avenue
Washington, D. C. 20006

Attorneys for Petitioner International
Brotherhood of Teamsters,
Chauffeurs, Warehousemen and
Helpers of America

BEN Pav. JUBELIRER
2000 Lawyers Building
Pittsburgh, Pennsylvania 15219

Attorney for Petitioner Local No. 249

EUGENE GREEN
602 Stambaugh Building
Youngstown, Ohio 44503

Attorney for Petitioner Local No. 377

‘Ib
STATUTORY APPENDIX

This case involves § 301 of the Labor-Management
Relations Act of 1947, 61 Stat. 136, 156, 29 U.S.C. § 185,
which provides in pertinent part:

(a) Suits for violation of contracts between an
employer and a labor organization representing
employees in an industry affecting commerce as de-
tined in this chapter, or between any such labor or-
ganizations, may be brought in any district court
of the United States having jurisdiction of the par-
ties, without respect to the amount in controversy
or without regard to the citizenship of the parties.

(b) Any labor organization which represents
employees in an industry affecting commerce as
defined in this chapter and any employer whose
activities affect commerce as defined in this chapter
shall be bound by the acts of its agents. Any such
labor organization may sue or be sued as an entity
and in behaif of the employees whom it represents
in the courts of the United States. Any money
judgment against a labor organization in a district
eourt of the United States shall be enforceable
only against the organization as an entity and
against its assets, and shall not be enforceable
against any individual members or his assets.

* * *

(e) For the purposes of this section, in deter-
mining whether any person is acting as an ‘‘agent’”’
of another person so as to make such other person
responsible for his acts, the question of whether
the specifie acts performed were actually author-
_ or subsequently ratified shall not be control-
ing.

Rule 52(a) of the Federal Rules of Civil Procedure
provides in pertinent part:

(a) Errectr. In all actions tried upon the facts
without a jury or with an advisory jury, the court

2b

shall find the facts specially and state separately
its conclusions of law thereon * * * Requests for
findings are not necessary for purposes of review.
Findings of fact shall not be set aside unless clearly
erroneous, and due regard shal! be given to the op-
portunity of the trial court to judge the credibility
of the witnesses.* * * If an opinion or memorandum
of decision is filed, it will be sufficient if the find-
ings of the fact and conclusions of law appear
therein. * * *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1514%3A1. Public record. Not legal advice.