Petition — United Mine Workers of America v. Kerry Coal Co.
Supreme Court brief1981
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80- 1 891 . ene G 7
NO. MAY 8 1981
new B 4. SIEVAS,
t Toe
CLERK
IN THE
Supreme Court of the United States
October Term, 1981
UNITED MINE WORKERS OF AMERICA,
and DISTRICT NO. 5 OF THE UNITED MINE
WORKERS OF AMERICA and ESTEL TAYLOR
Petitioners
vs.
KERRY COAL COMPANY
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
AND APPENDICES
LLOYD F. ENGLE, JR. HARRISON COMBS
KUHN, ENGLE & STEIN 900 Fifteenth Street, N.W.
1512 Frick Building Washington, D.C. 20005
Pittsburgh, PA 15219
Counsel for Petitioners
SMITH BROS., LAW PRINTERS. 620 SECOND AVENUE, PITTSBURGH, PA. 15219
Petitioners, United Mine Workers of America, Dis-
trict No. 5 of the United Mine Workers of America, and
Estel Taylor, respectfully pray that a Writ of Certiorari
issue to review the decision of the United States Court
of Appeals for the Third Circuit filed in the above-en-
titled case on January 8, 1981, as to which an Order
Amending Opinion was entered on January 28, 1981 and
a further Order Amending Opinion was entered on Feb-
ruary 5, 1981, and Petition for Rehearing and Sugges-
tion for Rehearing en Banc was denied on February 9,
1981, affirming the denial of Petitioners’ Motions for
Judgment Notwithstanding the Verdict and for New
Trial by the Opinion and Order of the United States
District Court for the Western District of Pennsylvania
filed on March 25, 1980.
QUESTIONS PRESENTED
1. Are labor organizations liable under Section 303
of the Labor-Management Relations Act of 1947 for al-
leged violations of Section 8(b) (4) (i, ii) (B) of that Act
in the absence of clear proof or, at least, substantial evi-
dence of the labor organizations having instigated, sup-
ported, ratified, or encouraged same?
2. Are labor organizations liable under pendent
state tort claims, for alleged unlawful acts in the absence
of clear proof that the labor organizations participated
in, or actually authorized, or ratified such acts after
actual knowledge thereof?
3. Under the common law of agency and the doc-
trine of respondeat superior, are labor organizations
liable for all acts of their agents in the absence of clear
proof that the labor organizations authorized or ratified
such acts after actual knowledge thereof?
4. Where a Court of Appeals perverts the evidence
as to a crucial and essential factor, is that not such a
ii
Parties in the Court Below.
departure from the accepted and usual course of judicial
proceedings as to call for the exercise of the supervisory
power of this Court?
5. When a Court of Appeals fails or refuses to
effect and abide by the law of its own prior decision on
the same matter, is that not such a departure from the
accepted and usual course of judicial proceedings as to
call for the exercise of the supervisory power of this
Court?
PARTIES IN THE COURT BELOW
In addition to the Petitioners and Respondent in this
Petition, other parties-Appellant in the Court below were
Jerry (Gary) Ashton and Brian Short.
iii
Table of Contents.
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED . .. . . . . . .. i
PARTIES IN THE COURT BELOW . . ii
, 1
,,, TTTTkT—TT—dd 1
STATUTORY PROVISIONS INVOLVED .................. 1
STATEMENT OF THE CASE... . . 2
ARGUMENT; REASONS FOR GRANTING THE
// 20
.. cee „„ —A 1a
Appendix A, Opinion of the United States Dis-
trict Court for the Western District of
0 — 1a
Appendix B, Order of District Court 57a
Appendix C, Opinion of the United States Court
of Appeals for the Third Circuit .................. 58a
Appendix D, Petition for Rehearing and Sugges-
tion for Rehearing en Banne 81a
Appendix E, Order of the Court of Appeals
— . ²⁵ͤ¹“d]]50000 92a
Appendix F, Order of the Court of Appeals
— Ö QQ 95a
Appendix G, Denial of Petition for Rehearing
and Suggestion for Rehearing en Banc........ 98a
iv
Table of Authorities.
TABLE OF AUTHORITIES
CASES PAGE
Buckeye Power, Inc. v. Utility Workers Union, 607
n ( ᷣ K 11, 15
Carbon Fuel Co. v. United Mine Workers, 444 US.
rr 11,12
Coronado Coal Co. v. United Mine Workers, 268 U.S.
c ee 12
Slater v. Erie-Lackawanna Railroad Company, 300
F.Supp. 1 (W. D. Pa. 1968), aff’d. 411 F.2d 1015
eee 13
Steelworkers v. Lorain, 616 F.2d 919 (6th Cir. 1980)
SE REE MRS Se ee eee PRE OPO EDP 11, 12, 15
United Mine Workers v. Coronado Coal Co., 259 U.S.
rr peasensiesnes 11,12
United Mine Workers v. Gibbs, 383 U.S. 715 (1966)
William B. Tanner Co., Inc. v. WIOO, Inc., 528 F.2d
R 12, 16, 18, 19, 20
STATUTES
,t! 883 1
Norris-La Guardia Act
eee 12
JJ NE, BIE saicivcdaecscnssnznrursscncsenscessensossonnsi 12, 15
Labor-Management Relations Act
ee Be CAs SRC CED vsesscsvressisescenseccsiess 1, 2, 9, 15
Title 29 U.S.C. §158(b) (4) (i) (ii) (B) ....9, 11, 14, 15
Title 29 U.S.C. §185 (Labor Management Rela-
, cars Vas caendunGepenceetscnoicidaincies
Title 29 U.S.C. §187 (Labor-Management Rela-
rr 1, 9, 11, 12
Civil Rights Act
„ 0 2
OPINIONS BELOW
The opinion of the United States District Court for
the Western District of Pennsylvania (Appendix A, pp.
la-56a) is reported at 488 F.Supp. 1080. The opinion of
the United States Court of Appeals for the Third Cir-
cuit (Appendix C, pp. 58a-80a), as amended by subse-
quent Orders (Appendix E, pp. 92a-94a, and Appendix F,
pp. 95a-97a) is reported at 637 F. 2d 957.
JURISDICTION
The opinion of the Court of Appeals was filed on
January 8, 1981 (Appendix C, pp. 58a-80a) , was amended
by Order filed on January 28, 1981 (Appendix E, pp.
92a-94a), and was amended further by Order filed on
February 5, 1981 (Appendix F, pp. 95a-97a) . Petition for
Rehearing and Suggestion for Rehearing en banc (Ap-
pendix D, pp. 81a-91a), timely filed, was denied on Feb-
ruary 9, 1981 ( Appendix G, pp. 98a-99a).
The jurisdiction of this Court is invoked under 28
U.S.C. $1254(1).
STATUTORY PROVISIONS INVOLVED
This case involves Section 8(b)(4) (29 U.S.C.
§158(b) (4)), and Section 303 (29 U.S.C. §187) of the
Labor Management Relations Act of 1947 (hereinafter
the Act“). They are printed in Appendix C, Footnote 1,
pp. 60a-63a, infra.
Statement of the Case.
STATEMENT OF THE CASE
1. Procedural History
This case arose in the District Court for the Western
District of Pennsylvania from a Complaint filed by Re-
spondent, Kerry Coal Company, on January 31, 1978,
and an Amended Complaint filed by Respondent on Feb-
ruary 13, 1978, alleging that the United Mine Workers
of America (the International Union, hereinafter
“UMWA”), Arnold Miller, District No. 5 of the United
Mine Workers of America (hereinafter “District 5’),
Louis A. Antal, Estel Taylor, Jerry Ashton, James
Beachem, Brian Short, et al. had violated Section
8(b) (4) of the Act (Count I) ; alleging that Respondent
was entitled to exemplary and punitive damages on
account of the alleged violation of Section 8(b) (4) of
the Act (Count II); alleging a conspiracy and acts
against Respondent in violation of 42 U.S.C. $1985
(Count III); alleging a state tort claim of conspiracy
to interfere with contractual relationships of Respond-
ent (Count IV); alleging a state tort claim of inter-
ference with contractual relationships of Respondent
(Count V); and alleging, generally, an entitlement to
exemplary and punitive damages as punishment and
a deterrent to others (Count VI). As a result of various
motions, before and during trial, Counts II, III, and V
were dismissed; all Counts were dismissed as to Arnold
Miller and Louis A. Antal; and Count I was dismissed
as to the remaining individuals.
Near the end of a lengthy trial, the District Court
proposed certain special interrogatories to the jury. Dur-
ing the better part of one and one-half (11%) days, they
were argued about between counsel and the District
Court, were redrawn by the District Court, were deter-
Statement of the Case.
mined in their ultimate form by the District Court (Ap-
pendix A, pp. 1a-6a, footnote 1), and were objected to by
counsel for the UMWA and District 5 (Appendix D, p.
88a). The jury returned its verdict in the form of an-
swering the special interrogatories to the effect of a ver-
dict in the sum of $1,200,000.00 against the UMWA and
District 5 on Count I; in the sum of $1,200,000.00 against
the UMWA, District 5, Taylor, Ashton and Short on
Count IV, all of which amount the jury determined to be
included in the amount of its verdict on Count I; and
made no award of punitive damages (Appendix A, pp.
la-6a, Footnote 1).
Post-trial Motions filed by the UMWA, District 5,
Taylor, Ashton and Short for Judgment Notwithstand-
ing the Verdict and for New Trial were denied by the
District Court (Appendix A, pp. 1a-56a and Appendix B,
p. 57a), and timely appeal was filed to the Court of Ap-
peals with bond in the amount of $1,500,000.00 being
posted on behalf of the UMWA and District 5, no bond
being required by the District Court for Taylor, Ashton
and Short. Oral argument was had before a panel of the
Court of Appeals, consisting of Gibbons and Rosenn, Cir-
cuit Judges, and Hannum, District Judge sitting by des-
ignation, on October 14, 1980. On January 8, 1981, the
panel of the Court of Appeals filed its Opinion (Appen-
dix C, pp. 58a-80a) affirming the denial of the post-trial
Motions by the District Court. On January 20, 1981, the
UMWA, District 5 and Taylor filed Petition for Rehear-
ing and Suggestion of Rehearing In Banc (Appendix D,
pp. 81a-91a) which was joined in by Ashton and Short.
On January 28, 1981, the Court of Appeals filed an Order
Amending its Opinion. (Appendix E, pp. 92a-94a.) On
February 5, 1981, the Court of Appeals filed another
Order Amending its Opinion. (Appendix F, pp. 95a-97a. )
Statement of the Case.
On February 9, 1981, the Court of Appeals denied the
Petition for Rehearing. (Appendix G, pp. 98a-99a.) Upon
Motion, timely filed, the Mandate of the Court of Appeals
was stayed. This Petition for Writ of Certiorari followed.
2. Factual Background
The UMWA is an international labor organization
representing coal miners throughout the United States
and Canada for purposes of collective bargaining. Dis-
trict 5 is a labor organization representing coal miners
for collective bargaining in a lesser geographical area
of the UMWA, namely southwestern Pennsylvania.
Taylor was a District 5 Executive Board Member. Ash-
ton and Short were members of Local Unions within
District 5. Respondent is a non-union producer of coal
from surface mines within the geographical area of Dis-
trict 5.
On December 6, 1977 the National Bituminous Coal
Wage Agreement of 1974 (hereinafter the Agreement“)
expired and a national strike began which extended to
March 28, 1978 (hereinafter the “strike period”). The
UMWA did not direct or authorize any picketing of non-
union operations during the strike period. Considering
that some of the members of Local Unions in District 5
might picket during the strike period, the Executive
Board of District 5 met on November 30, 1977 along with
Kenneth Yablonski, their attorney, and prepared guide-
lines for picketing of employers who were signatory to
the Agreement, in the event that they operated, and
guidelines for informational area standards picketing of
other producers of coal which might operate. Taylor was
assigned by District 5 to patrol picketing which might
occur in that portion of District 5 wherein Respondent’s
operation was situated.
Statement of the Case.
The UMWA Organizing Department has certain em-
ployees, known as organizers, who have, as part of their
function, the conducting of surveys of non-union coal
mining operations to develop sufficient information from
which it can be determined whether or not organizing
should be attempted. The organizers have no authority
to direct or assist in any picketing excepting where a
survey has been completed, a determination to attempt
organizing has been made, and an organizing campaign
is in progress. At a time prior to the commencement of
the strike period, there being a substantial number of
unorganized coal-producing operations in District 5, the
UMWA was requested to send an organizer to survey
those unorganized operations and the UMWA assigned
Jay Kolenc for that purpose.
Prior to the commencement of the strike period, the
Organizing Department notified each of the organizers
in writing that, in the event there should be a strike, they
were directed to remain on their present assignment and
were not to participate in any other activities. In the
course of his survey work, Kolenc first met Ashton who
told him that he (Ashton) wanted some information on
setting up a picket line at Respondent’s operation near
Ashton’s house. Kolenc told Ashton that he would see if
someone from District 5 would provide such information,
since Kolenc was not involved in such matters. There-
after, Taylor contacted Ashton and arranged for several
persons to picket peacefully near the entrance from the
public road into one of Respondent’s operations. This
picketing commenced January 5, 1978 and continued only
until January 9, 1978, during which period, in the course
of his travels for the survey purposes, Kolenc stopped
and talked to the pickets no more than twice and advised
them that they must not interfere with ingress or egress
Statement of the Case.
of any trains or other vehicles or employees going to
or from Respondent’s operation. Kolenc received direc-
tions from the Organizing Department transferring him
to the Western Region in Denver, Colorado, and left the
area of District 5 permanently on January 21, 1978.
Vernon Kerry, President of the Respondent corpora-
tion, testified he heard reports on his CB radio that there
had been damage at a non-union site of a competitor
(never identified) and, because of this, shut down his
operations from December 12, 1977 to December 20, 1977.
He stated further that on January 22, 1978 some of Re-
spondent’s equipment was damaged; that on January
25, 1978 a large number of unidentified persons and cars
appeared on the road near the entrance to another site
of Respondent and he shut down that operation for that
day; and that on February 27, 1978 when he was making
a delivery with several trucks to a customer, St. Joe
Mineral Company, they were confronted by many un-
identified persons near the customer’s plant who threw
rocks, and had difficulty making the delivery and leaving,
but did. He was permitted to testify, over objection, that
Respondent’s employees were “nervous and afraid” dur-
ing the strike period. Substantially, this was the total
evidence of any “interruptions” of Respondent’s opera-
tion.
Respondent had Price-Waterhouse do a work-up of
damages for alleged lost profits based upon the premise
that Vernon Kerry told him the Respondent could have
sold all the coal it could have produced during the strike.
(Appendix A, p. 39a and Appendix D, pp. 87a, 89a.) The
alleged lost profits accounted for all but approximately
Statement of the Case.
$10,000.00 of Respondent’s alleged damages.! The Price-
Waterhouse witness, Mr. Kilzer, testified that he pro-
ceeded on this basis and, from examination of Respon-
dent’s records, chose the month of February, 1978, ex-
clusive of February 1, 1978 when Respondent went to
State Court for an injunction, and exclusive of February
27, 1978 when the alleged St. Joe Minerals incident oc-
curred. He said he chose February, 1978, with those ex-
clusions, as a base period because it was a relatively
uninterrupted period of operation according to Mr.
Kerry. He admitted, however, that his examination of
Respondent’s records over a period of several years
showed that it was much the largest volume sales period
which Respondent had ever experienced. When con-
fronted with the fact that Respondent’s records also
showed that the tonnage sold in that period exceeded
the tonnage produced in that period by 19,000 tons, he
considered that the excess must have come from stock-
piles accumulated by respondent before commencement
of the strike. He made a different calculation for alleged
lost profits from lack of auger production because there
was no auger production during the strike period. As to
this, Mr. Kerry testified that he had scheduled auger
production for some months during the strike period but
the augering contractor did not come. It was not shown
why. Nevertheless, for his calculation of alleged lost
profits—auger,” Mr. Kilzer selected some months from a
previous year for his base.
1. It is to be noted that the total damage calcula-
tion amounted to $1,100,978.00 (Appendix A, p. 39a)
whereas the verdict was in the sum of $1,200,000.00 (a
difference of $99,022.00) with a specific refusal of the
jury to award any exemplary or punitive damages.
(Appendix A, pp. 5a, 6a, Footnote 1, part 18.)
Statement of the Case.
Having selected the aforementioned period in Febru-
ary, 1978, Mr. Kilzer then selected certain purchasers of
coal from Respondent in that period and designated them
as a “representative customer mix,” albeit that at least
one of them had never purchased coal from Respondent
before late in January, 1978. He then utilized the price
per ton to these purchasers reduced by the cost of pro-
duction per ton and came up with “lost profit,” which he
then applied on a daily basis throughout the entire strike
period, rather than limiting its application to the mini-
mal periods of alleged interruption shown by the evi-
dence as discussed hereinbefore. He justified this on the
basis that Mr. Kerry had told him Respondent’s opera-
tion was interrupted “every day of the strike.”
When asked what customers and amount of orders
for coal Respondent had or could have had in December,
1977, and January and March, 1978 which were equiv-
alent to the so called customer mix” constructed for
February, 1978, Mr. Kilzer didn’t know of any. Neither
did Mr. Kerry. Mr. Kilzer merely answered that, if it
hadn’t been the customers and the amounts used in the
February, 1978 “customer mix” it would have been some
other. Further, there was no showing of what the price
per ton would have been on the orders which Respondent
didn’t have in December, 1977, and January and March,
1978.2 Finally, there was no evidence offered to show
what amount of coal Respondent could have produced
during the strike period through continuous, uninter-
rupted operation.
2. It is to be noted that the price per ton was wide-
ly variant as between different customers in the so-called
“customer mix” for the same quality coal, i.e. from
$17.50 per ton to $32.50 per ton.
Reasons for Granting the Writ.
REASONS FOR GRANTING THE WRIT
A. The Court of Appeals Decided a Federal Question in
a Manner Conflicting with Applicable Decisions of
This Court and Conflicting with Decisions of An-
other Court of Appeals
1. THe SecTION 8(b) (4) CLAIMS
Count I of Respondent’s Complaint was based on
alleged violation of Section 303 of the Act and, therefore,
had as its gravamen alleged violation of Section 8(b) (4)
of the Act. Only subpart (B) of Section 8(b) (4) is per-
tinent for consideration in this case. Reduced to its rele-
vant essentials, it provides that it shall be an unfair
labor practice for a labor organization or its agents:
1.
To induce or encourage any employee to engage
in a strike or to induce any employee to refuse
to use or otherwise handle goods or perform
services where an object is forcing any person
to cease using, handling or dealing in the prod-
ucts of any other producer, or to cease doing
business with any other person; or
To threaten, coerce or restrain any person
where an object is forcing any person to cease
using, handling or dealing in the products of
any other producer or to cease doing business
with any other person.
During argument on the Motions of UMWA and
District 5 for Directed Verdict on Count I (they being
the only Defendant parties then included therein) the
District Court stated:
10
Reasons for Granting the Writ.
THE COURT: Well, as I see it, we are not in the
secondary boycott situation, I agree with you that
the Plaintiff hasn't shown a secondary boycott situa-
tion. It seems to me that what is here involved is
proof by the Plaintiff that both the International
and the District set out to prevent the movement
of all coal in the District 5 area and that that is,
in fact, what happened.
a. The International Union
As to the UMWA, the only possible connection with
any activity pertaining to Respondent would have to be
established through some act of Kolenc, authorized or
ratified after actual knowledge. Virtually all evidence
regarding Kolenc was produced by Respondent in its
case and is binding upon Respondent. The testimony of
Taylor, called as for cross examination by Respondent,
established that Kolenc had no part in any decision to
picket Respondent; that Kolenc had no authority to
direct anything in District 5; and that Kolenc stopped on
a “couple” of occasions at the picket line which Taylor
had set up and once told them they should not interfere
with ingress or egress of any persons or vehicles. By
other evidence in the case, it is established that Kolenc
and all of the organizers were given written direction
from the UMWA Organizing Department to stay on their
present assignments and not participate in any other
activities; that Kolenc had no authority to authorize or
direct any picketing; and that his only assignment was
to make surveys of unorganized coal mines so that it
could be determined, at a later time, whether an attempt
should be made to organize any of them.
11
Reasons for Granting the Writ.
The circumstances pertaining to the UMWA, Kolenc
and Respondent are virtually identical to those in Buck-
eye Power, Ino. v. Utility Workers Union, 607 F.2d 759
(6th Cir. 1979) wherein local union members were con-
ducting picketing at places where it was alleged to com-
prise secondary activity. An officer of the national union
came to the picket line and had discussions with the
pickets. When asked, he . dvised the local union officers
that they should not picket in some of the places where
they were, but took no action and did nothing to stop
them. There, the Court of Appeals for the Sixth Circuit
held that the national union was not liable for the activi-
ties of the local union or its members which it did not
authorize or ratify and that the statutes upon which the
action there was based (Sections 303 and 8(b) (4) (i)
(ii) (B)) contained no language equating inaction to
inducing, acquiescing in, or encouraging a secondary
boycott. To the same effect is Steelworkers v. Lorain,
616 F. 2d 919 (6th Cir. 1980).
The Court of Appeals in this case held it permis-
sible to infer that Kolenc instigated, supported, ratified,
or encouraged the activity complained of” and to infer
that, in so doing, he was acting as the agent of the
UMWA. (Appendix C, pp. 70a-72a.) This is in conflict
with the decisions in Carbon Fuel Co. v. United Mine
Workers, 444 U.S. 212 (1979) ; Steelworkers v. Lorain,
supra; Buckeye Power, Inc, v. Utility Workers Union,
supra; and United Mine Workers v. Coronado Coal Co.,
259 U.S. 344 (1922). At the very least, any showing
of instigation, support, ratification or encouragement
must be by “substantial evidence,” not inference, United
Mine Workers v. Coronado Coal Co., supra, and, at the
very most, it must be shown by clear, unequivocal and
convincing proof, United Mine Workers v. Gibbs, 383 U.S.
12
Reasons for Granting the Writ.
715 (1966) and Steelworkers v. Lorain, supra. “Infer-
ence” does not fall within the range of those extremes.
There are only two (2) types of agency authority
recognized in law—actual and apparent—and in the
strict sense, neither can be inferred. Each type has its
genesis in and flows from the principal, either through
clear expression and grant ef actual authority by the
principal or by conduct of the principal which justifiably
leads others to believe that authority exists. See William
B. Tanner Co., Inc. v. WIOO, Inc., 528 F.2d 262, 266 (3rd
Cir. 1975). Here, as to the UMWA vis-a-vis the Respon-
dent, neither Kolenc nor any other person in this case
fits those categories, even if it had been shown by “sub-
stantial evidence” that Kolenc instigated, supported,
ratified or encouraged the activity complained of.
Subsequent to the pronouncement in United Mine
Workers v. Coronado Coal Co., supra, and the pronoun-
cement in Coronado Coal Co. v. United Mine Workers,
268 U.S. 295 (1925), Congress passed the Norris-La-
Guardia Act, 29 U.S.C. S101 et seq., and, in Section 6
thereof (29 U.S.C. 8106), provided that no union shall
be held liable for unlawful acts of its officers, members
or agents, except upon clear proof of actual participa-
tion in, or actual authorization of such acts, or of rati-
fication of such acts after actual knowledge thereof.
Thereafter, by enactment of Sections 301 and 303 of the
Labor Management Relations Act of 1947, Congress fol-
lowed the reasoning of Chief Justice Taft in the Corona-
do Coal Case, supra, posturing corporations and labor
organizations in like positions as to vicarious liability,
by applying to both the common-law agency test, and
with it the doctrine of respondeat superior. Carbon Fuel
Co. v. United Mine Workers, supra. However, the com-
13
Reasons for Granting the Writ.
mon-law doctrine of respondeat superior is not the equi-
valent of absolute liability and has never been held to
render the principal (master) an insurer against all
acts of an agent (servant). For example, if an agent com-
mits an intentional tort, such as a battery upon some
person, no vicarious liability attaches to the principal,
there being no express authority and, certainly, no pos-
sibility of apparent authority for such an act.
In the instant case, Respondent produced evidence,
through the testimony of Taylor, that Kolenc had no
authority to direct anything in District 5 and had no
part in the picketing of Respondent. Since Respondent
offered no contradiction, since the testimony was not
inherently improbable, and since it was not a mere
guess, Respondent is bound by that. See Slater v. Erie-
Lackawanna Railroad Company, 300 F.Supp. 1 (W. D. Pa.
1968), aff'd. 411 F.2d 1015 (3rd Cir. 1969). Further
testimony by Sam Church, President of the UMWA, es-
tablished the limited authority or scope of employment
of Kolenc, to survey unorganized coal mining operations
with a view toward determining the reasonableness of
attempting to organize them at a later time. Docu-
mentary evidence ( Defendants’ Exhibit“ G“) established
that Kolenc was instructed by the UMWA to remain on
his assignment and not become involved in other activi-
ties. Even if all of that evidence were disbelieved, an
unsupported and diametrically opposed inference, to the
effect that Kolenc had authority to picket, threaten, co-
erce or commit unlawful acts is not permitted, since
inference cannot arise from a vacuum. If Kolenc had
done any of those things, of which there is no evidence
in this case, they would have been intentional acts with-
out indicia of authority, express or apparent, and the
14
Reasons for Granting the Writ.
UMWA could not be vicariously liable absent subsequent
ratification.
b. The District
As to District 5, it was shown that there was
authorization given by it to Taylor to conduct informa-
tional picketing in accordance with specific guidelines
developed and printed by District 5 (Appendix A, pp. 9a,
10a and Plaintiff’s Exhibit No. 13), which activity is
protected by the Act and the Constitution of the United
States. It was shown also that Taylor did conduct picket-
ing at one of Respondent’s sites from January 5, 1978 to
January 9, 1978. Other than one occasion, when a train
stopped for a relatively short period through voluntary
action of the train crew, there was no showing that there
was any cessation of ingress or egress, or of doing busi-
ness with any other person, or of producing, processing,
handling or dealing in the products of Respondent or any
other person.
Both the District Court and the Court of Appeals
jumped over the “where an object thereof is” language
of Section 8 (b) (4) (B) of the Act and landed upon
where an effect thereof was. Then, by inference, the leap
was made to an object thereof must have been. That is
not only a non sequitur but, in almost every instance,
would abrogate the express protection of the Act and the
United States Constitution. That is to say, the most anti-
septic informational campaign would be transformed
immediately into an unfair labor practice by a chance
happening which was totally beyond the control of and
not sought by the labor organization. It ought not to
become established, by a judicially constructed infer-
ence, that Congress intended the clear language of Sec-
15
Reasons for Granting the Writ.
tion 8(b) (4) (B) of the Act to negate the express pro-
tection preserved by Congress in the second proviso to
Section 8(b) (4) of the Act, or that such inference can
frustrate the paramount protection of the United States
Constitution. Further, these gymnastics of inference are
in conflict with the clear proof requirement of United
Mine Workers v. Gibbs, supra, Buckeye Power, Inc.
v. Utility Workers Union, supra, and Steelworkers v.
Lorain supra.
2. THE STATE TorRT CLAIMS
Count IV of Respondent’s Complaint was based
upon the alleged tortious interference with contractual
relations between Respondent and others by alleged
illegal and violent acts of Petitioners in violation of the
law of Pennsylvania. Liability of Petitioners thereon
was upheld by the Court of Appeals as being grounded
on the same facts as the Section 8 (b) (4) claims of
Count I. (Appendix C, pp. 73a, 74a.) Assuming that the
entertaining of these pendent claims was discretionarily
permissible, their proof, nevertheless, relates back to the
same inferences addressed hereinbefore and, therefore,
does not satisfy the clear proof requirements of Section
6 of the Norris-LaGuardia Act. The Court of Appeals
has decided this question in conflict with United Mine
Workers v. Gibbs, supra, Steelworkers v. Lorrain, supra,
and Buckeye Power, Inc. v. Utility Workers Union,
supra.
16
Reasons for Granting the Writ.
B. The Court of Appeals Has So Far Departed from the
Accepted and Usual Course of Judicial Proceedings
and Has So Far Sanctioned Such a Departure by the
District Court as To Call for the Exercise of This
Court’s Power of Supervision and the Court of
Appeals Has Rendered a Decision in Direct Conflict
with Its Prior Decision on the Same Matter.
These questions pertain to the matter of the dam-
ages as to all Petitioners and are complicated by the fact
that the Court of Appeals perverted the evidence and,
even then, rendered a decision in conflict with its own
decision in Tanner v. WIOO, Inc., supra. As mentioned
hereinbefore and in Appendix D, p. 87a, Respondent’s
entire theory of damages was founded on the premise
that it “could have sold all the coal it could have pro-
duced” by uninterrupted operation through the strike
period. This was twice stated by Mr. Kilzer, Respondent’s
expert witness from Price-Waterhouse, as having been
told him by Mr. Kerry, and it was the foundation for his
work-up of alleged damage. Then, as earlier noted, Mr.
Kilzer chose the month of February, 1978 (exclusive of
the 1st and 27th day), constructed his “customer mix”
of four (4) purchasers, at least one (1) of which had
never purchased coal from Respondent before late in
January, 1978, and developed the net profit per ton from
surface mining for the chosen twenty-six (26) day
period on the basis of sales. Then he calculated the net
profit per ton from auger mining, utilizing a totally dif-
ferent period of months from outside the strike period.
Finally, he applied the so-calculated net profits per ton
to assumed equivalent tonnage on each of the eighty-five
(85) other days, exclusive of the above-mentioned base
17
Reasons for Granting the Writ.
period, during the strike,? on the basis of assumed
equivalent sales to an assumed equivalent “customer
mix” for each of the said days. The shortfall of this pro-
cedure was obvious. There was no showing of how much
coal Respondent could have produced and, therefore, the
keystone of the theory was totally missing. The figures
used by Mr. Kilzer for the base period in February, 1978
were tons sold, not tons produced, and afford no assist-
ance to fill this evidential void, in that the records of
Respondent in evidence showed that it sold 19,000 tons
more than it produced in February, 1978.
Although this problem was raised in the District
Court and it was aware of the faulty premise (Appendix
A, p. 39a), it did not deal with it, other than by use of
the inapplicable platitude that “it is not necessary to
prove the exact amount of the damage suffered. It is
sufficient if the evidence supports a just and reasonable
approximation.” (Appendix A, pp. 41a, 42a.) The matter
was raised again in the Court of Appeals and, peculiarly,
that Court perverted the stated premise into “it could
have sold. .. all the coal it could ship.” (Appendix C,
p. 76a.) No such theory is set forth at any place in the
evidence, or in the Opinion of the District Court. How-
ever, when this was called to the attention of the Court
of Appeals (Appendix D, p. 87a), it failed to correct the
3. Mr. Kilzer applied his figures for net profits per
ton from auger mining to the months of January, Feb-
ruary and March, 1978, on the premise that Mr. Kerry
had told him no augering was scheduled in December,
1977, even though Mr. Kerry testified that augering was
scheduled throughout the entire strike period but the
augering contractor did not come. This discrepancy was
never cleared up, nor was there any evidence as to why
the augering contractor didn’t come.
18
Reasons for Graniing the Writ.
misstatement. (See Appendices E and F.) The serious-
ness of this is, simply, that if the keystone of the theory
had been as the Court of Appeals misstated it, the dam-
ages calculated by Mr. Kilzer would have been consistent
with it, though invalid for the reasons mentioned here-
inafter.
In its own decision in Tanner v. WIOO, Inc., supra,
the Court of Appeals determined that there was no
evidence on the record that the plaintiff had potential
customers for the product, nor any evidence of a price
at which it could have sold the product, and stated:
Although the record reveals the prices at which
WIOO offered to sell spots during various time
periods, that evidence alone cannot suffice to meet
Tanner’s burden of proof. First, the record is barren
as to whether WIOO actually sold spots during the
relevant contract periods at its published sales
prices. Second, and of more importance, the record
is completely silent as to whether Tanner could sell
spots at the same price listed by WIOO. Although
WIO0O’s sales price may be relevant in the proof of
Tanner's damages, it does not provide the “hard
evidence” required for a calculation of Tanner's
damages with “reasonable certainty“.
(Id. at 272)
In the instant case the situation is identical, in that
Respondent failed to show that it had any orders for
coal, or customers to whom it “could have sold” such
coal, or the price at which it could have sold” coal dur-
ing the month of December, 1977 and the months of
January and March, 1978.
19
Reasons for Granting the Writ.
Though the decision in Tanner v. WIOO, Inc., supra,
was raised in the District Court as the applicable law of
damages in the Third Circuit, the District Court took no
notice of it. (See Appendix A.) It was raised again on
appeal to the Court of Appeals and again in the Petition
for Rehearing (Appendix D, p. 89a), but the Court of
Appeals either failed or refused to consider it. Petition-
ers are entitled to the benefit of the law of the Circuit
and that law is decisive of this case in favor of Peti-
tioners. For the Court of Appeals to fail or refuse to
apply that law and to sanction the District Court’s fail-
ure in the same regard constitutes a lack of due process
and is such a departure from the accepted and usual
course of judicial proceedings as to call for the exercise
of this Court’s power of supervision.
C. The “Two-Court Rule“ Does Not Apply
The so-called “two-court rule“ is not applicable to
this case because: (1) upon review of virtually identical
facts, the decisions of the Sixth Circuit and the Third
Circuit are in conflict; (2) the Court of Appeals did not
concur in the finding of the District Court that the basis
for Respondent’s damage calculation was that Re-
spondent could have sold all the coal it could have pro-
duced” but, rather, the Court of Appeals constructed its
own “fact” to the effect that the basis was that Re-
spondent could have sold all the coal it could ship”; and
(3) neither the District Court nor the Court of Appeals
considered the failure of Respondent to show orders or
customers or prices for coal during December, 1977 and
January and March, 1978, to which void each Court
should have applied, but did not even mention, the law of
the Circuit as enunciated in Tanner v. OO, Inc., supra.
Conclusion.
CONCLUSION
The questions discussed herein were wrongly de-
cided by the Court of Appeals. They are important issues
in Federal Law involving conflicts between the Circuits
and departure from the accepted and usual course of ju-
dicial proceedings which should be settled by this Court.
Respectfully submitted,
HARRISON COMBS
900 Fifteenth Street, N.W.
Washington, D.C. 20005
LLoOovD F. ENGLE, JR.
KUHN, ENGLE & STEIN
1512 Frick Building
Pittsburgh, PA 15219
Counsel for Petitioners
APPENDIX
Appendix A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Kerry CoaAL COMPANY, )
Plaintiff
v.
UNITED MINE WORKERS OF AMERICA,
District No. 5 oF THE
UNITED MINE WORKERS OF AMERICA, q Civil Action
JERRY ASHTON, ESTEL TAYLOR, No. 78-108
JAMES BEACHEM, BRIAN SHORT,
JOHN Dok, RICHARD ROE,
and all others acting in concert with
them or otherwise participatin
with them or acting on their behalf,
Defendants |
Opinion
SNYDER, J.
This matter is before the Court on the Defendants’
Motions for Judgment Notwithstanding the Verdict and
for New Trial. The Motions will be denied.
I. THE PROCEDURAL BACKGROUND
Kerry Coal Company (“Kerry Coal“) brought suit
against the United Mine Workers of America (Inter-
national“), District No. 5 of the United Mine Workers of
America (“ District“), Estel Taylor, District No. 5 Board
Member, James Beachem, Brian Short and Jerry (Gary)
Ashton, Members of the United Mine Workers, and the
matter was tried to a jury on three counts of a six count
complaint. The jury answered special interrogatories!
1. The Special Interrogatories and Answers there-
to were:
2a
Appendix 4.
and awarded the Plaintiff compensatory damages in the
amount of $1,200,000, against all Defendants except
James Beachem.
Count I of the Complaint charged the International
and the District with a violation of Section 8(b) (4)
of the Labor Management Relations Act, 29 U.S.C.
§158(b) (4), which makes it unlawful for a labor orga-
Footnote (continued)
Count I
A. As To THE EMPLOYEES
1. Did the United Mine Workers of America
(International) induce or encourage one or more
employees of the Kerry Coal Company, or of the
trucking companies hauling for Kerry Coal Com-
pany, or of the Railroad, to refuse to process, trans-
port or handle Kerry coal?
Answer Yes
2. Was an object of the aforementioned con-
duct by the International to require or force the
employer, Kerry Coal Company, to cease doing
business, or the trucking companies hauling Kerry
coal, or the Railroad to cease processing, transport-
ing, or handling Kerry coal?
Answer Yes
3. Were the actions of the International a
proximate cause of damage to the Kerry Coal Com-
pany?
Answer Yes
4. Did the United Mine Workers of America,
District No. 5, induce or encourage one or more
employees of the Kerry Coal Company, or of the
trucking companies hauling for Kerry Coal Com-
pany, or of the Railroad, to refuse to process, trans-
port, or handle Kerry coal?
Answer Yes
oa
Appendia A.
nization or its agents to engage in, or to induce or
encourage any individual employed by any person en-
gaged in commerce. to engage in a strike or a refusal
in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities”, or to
threaten, coerce, or restrain any person engaged in com-
merce” where an object thereof is a “secondary boy-
Footnote (continued)
5. Was an object of the aforementioned con-
duct by District No. 5 to require or force the em-
ployer, Kerry Coal Company, to cease doing busi-
ness, or the trucking companies hauling Kerry coal,
or the Railroad to cease processing, transporting,
or handling Kerry coal?
Answer Yes
6. Were the actions of District No. 5 a proxi-
mate cause of damage to the Kerry Coal Company?
Answer Yes
B. As To THE EMPLOYERS OR CUSTOMERS
7. Did the United Mine Workers (Internation-
al) threaten, coerce, or restrain Kerry Coal Com-
any, or the trucking companies which hauled
rry coal, or the customers of Kerry Coal Com-
pany, to cease doing business with Kerry Coal Com-
pany?
Answer Yes
8. Were these acts of the United Mine Work-
ers (International) done with an object, purpose,
or intent to 4 — or force Kerry Company
to cease doing business with any other person?
Answer Yes
9. Were the actions of the International a
proximate cause of damage to the Kerry Coal Com-
pany?
Answer Yes
4a
Appendi A,
cott“. The Act provides for money damages, including
the costs of suit. 29 U.S.C. 6187.
Count IV was a pendent state claim against the
International, the District and the Individual Defendants
for tortious interference with business relationships.
Count VI, pertaining to punitive damages arising
from the allegations of Count IV, was sent to the jury
which declined to make such an award.
In essence, the Plaintiff contended at trial that
there was a pattern of unlawful picketing, violence, and
Footnote (continued)
10. Did the United Mine Workers, District No.
5, threaten, coerce, or restrain Kerry Coal Company,
or the trucking companies which hauled Kerry coal,
or the customers of Kerry Coal Company, to cease
doing business with Kerry Coal Company?
Answer Yes
11. Were these acts of the United Mine Work-
ers, District No. 5, done with an object, purpose,
or intent to require or to force Kerry Coal Company
to cease doing business with any other person?
Answer Yes
12. Were the actions of District No. 5 a proxi-
mate cause of damage to the Kerry Coal Company?
Answer Yes
13. We award as compensatory damages to
the Kerry Coal Company the su. of $1,200,000.00.
Count IV
14. Has Kerry Coal Company established by
clear eS in or ratification of violent
acts directed against the Kerry Coal Company with
regard to its contractual or business relationships,
which were a substantial factor in directly causing
damage to the Kerry Coal Company, on the part of:
5a
Appendia 4.
intimidation engaged in by the Officers and Agents of
the International, the District, and the various individ-
uals named as defendants, aimed at disrupting and halt-
ing the nation's coal supply during the winter of 1977-78
(including Kerry Coal, a non-union operation) to bring
about the acceptance of a new contract for the United
Mine Workers of America. „
The motlons presently under consideration here gen-
erally allege that there was insufficient evidence to sup-
Footnote (continued)
a. United Mine Workers of America (Interna-
tional) Yes
b. United Mine Workers of America District
No.5 Yes
15. Has — Coal Company established by
clear proof Berry ation in vlolent acts directed
against the oal Company which were a sub-
stantial factor is in directly causing the damages as
claimed, on the part of any of the following in-
dividuals?
a. Estel Taylor Yes
b. Jerry Ashton Yes
c. James Beachem No
d. Brian Short Yes
16. We award as compensatory dama A
the Kerry Coal Company the sum of $1,200,
A. Of the above amount, $1, ee
(all) is included in Question 13.
17. In addition to com = pred damages
awarded, do you wish to awa itive damages?
Answer No
18. We award as punitive damages to the
Kerry Coal Company the sum of (none),
against:
6a
Appendix 4.
port the verdict; that the damage award is inconsistent
with the special interrogatories and against the weight
of the evidence; that withholding of documents by the
Plaintiff severely and irreparably prejudiced the Inter-
national and the District; that the admission of certain
evidence was severely and irreparably prejudicial; that
the Court erred in allowing certain testimony; that the
Court improperly questioned witnesses; and that the
Court erroneously instructed the jury with respect to
the damage award.
Defendants Ashton and Short filed an Amended
Motion for Judgment Notwithstanding the Verdict or
for New Trial, claiming that the verdict was excessive
as a matter of law; that the Trial Court abused its dis-
cretion in exercising pendent jurisdiction; and that it
was error for the Court not to direct the jury to appor-
tion the damage award.
The International and the District filed a Supple-
mental Motion for New Trial claiming that the Court
erred in admitting certain exhibits into evidence, in re-
fusing to grant their Motion for Mistrial made during
the closing arguments, and in refusing to grant their
Requests for Points for Charge and Supplemental Points
for Charge.
Footnote (continued)
United Mine Workers of America (Interna-
tional) No
United Mine Workers of America, District No.
5 No
Jerry Ashton No
Estel Taylor No
James Beachem No
Brian Short No
7a
Appendix A.
II. THE SCENARIO
The evidence, viewed most favorably to the Plain-
tiff, indicated that Kerry Coal was a non-union surface
coal operation, shipping its coal by rail and truck to in-
dustrial and domestic customers in Pennsylvania and
Ohio. During the national coal strike by the United Mine
Workers, from December 6, 1977 to March 16, 1978,
Kerry Coal was operating five sites in Butler, Beaver
and Lawrence Counties, Pennsylvania.?
The District had a membership of 15,000 and juris-
diction over Washington, Allegheny, Westmoreland, But-
ler, Mercer and Venango Counties, Pennsylvania. It was
split geographically into four Sub-Districts; each Sub-
District elected a member to the District Executive
Board. Estel Taylor was the Executive Board Member
for Sub-District One and District President Louis Antal
assigned him to the Enon Valley area (which included
Kerry Coal’s sites) for the strike.
In November 1977, with a nationwide strike appear-
ing inevitable, and apparently pursuant to a well thought
out plan, District President Antal asked International
President Arnold Miller to send in one of the Interna-
tional’s Organizers, Thomas Pysell, to do a “survey” of
the Western Pennsylvania coal fields. In particular, he
wanted the non-union coal strippers “surveyed” because
“our members kept coming back to us and raising heck
that there were all kinds of strip mines popping up over
night. And I couldn’t go out and look at that, I didn’t
have the time.” (T.237) Mr. Pysell was given responsi-
2. The five sites were: “Perkins” in Franklin
Township, Beaver County; “Leonhardt” and “Ketterer”
in Lawrence County; and two in Muddy Creek Town-
ship, Butler County.
8a
Appendix A.
bility for such a survey in Western Pennsylvania by the
Organizing Department of the International. (T.208)
Pysell left the area prior to the beginning of the strike,
and was thereafter replaced by Jay Kolenc, also an In-
ternational Organizer. The expense vouchers of Kolenc,
P.Ex. 49, indicate that on November 25, 1977 Kolenc met
with Pysell to check non-union mines. Kolenc remained
in the area, surveying non-union mines, until January 21,
1978.
Steve Segedi, a District Executive Board Member,
recalled seeing Pysell and Kolenc in the District offices
just prior to the strike, and Segedi, along with John
Chach, Estel Taylor and Peter Sabo, other District Board
Members, lunched with Pysell and Kolenc. (T.1476,
1502) The expense vouchers of Kolenc, P.Ex. 49, reflect-
ed meetings with District Officers on several occasions,
and the telephone records of Estel Taylor, P.Ex. 100C,
showed phone calls to Kolenc at the Holiday Inn in
Beaver Falls as early as December 6, 1977.
Under date of November 28, 1977, President Antal
notified Kerry Coal and its President, Vernon Kerry, as
well as every other non-union coal company within the
District, that (P. Ex. 11):
We are aware that you are not maintaining
area wage and benefits standards, there“ obtaining
an unfair competitive advantage. We demand that
you immediately raise your current standards to
match those prevailing in the coal mining industry
in this area.
We expect to hear from you that you have
raised your standards as soon as this has been ac-
complished. If, in fact, we do not hear from you
concerning this matter, we will assume that it is
9a
Appendix A.
not your intention to raise your standards at this
time.
Please reply to me at the above address.”
These letters were sent without any knowledge of the
wage and benefits standards paid by Kerry Coal and the
others except, of course, that they were non-union oper-
ations.
On November 30, 1977, a meeting of the District
Executive Board was called by President Antal to make
preparations for the strike and to draw up “guidelines”
for both “strike” and “informational” pickets. Kenneth
Yablonski, the attorney for the District, was also pres-
ent at this meeting and aided in the preparation of the
guidelines. Specifically, informational picketing at inde-
pendent non-union mines was discussed and guidelines
presented.“ The District arranged for the informational
3. Kerry Coal, in fact, had a Fhe sharing plan,
full paid benefits for medical to $250,000, and a long
record of no layoffs. (T.464)
4. These read as follows (P.Ex.13):
“INSTRUCTIONS For INFORMATIONAL PICKETS
Distributed by the United Mine Workers of America
for use by its authorized, informational pickets.
As a picket for the United Mine Workers of America
ou are issued the following instructions concerning
informational picket duty. They must be followed
to the letter or the union may suffer serious legal
consequences:
1. The only picket signs to be used are
those provided by the United Mine Workers
of America.
2. All informational pickets while en-
gaged in informational picketing should carry
the picket signs provided by the United Mine
Workers of America.
10a
Appendix A.
pickets to receive $3.00 for meals and, if they drove, 20¢
per mile.5
Between December 66 and 12, 1977, Vernon Kerry
observed men in vehicles driving around his sites, ap-
parently as “surveillance crews”. Then, on the morning
of December 12th, he received reports by CB radio and
by telephone that several thousand dollars worth of
damage had been done to a non-union competitor’s site
Footnote (continued)
3. You are to picket only where an au-
thorized representative of the United Mine
Workers of America has directed you to per-
form your picket duty.
4. If you are asked any questions concern-
ing your picket activity, you should say noth-
ing! You should simply point to the picket sign
and refer all questions to the United Mine
Workers of America.
5. Picketing must be conducted in a
peaceful manner. Do not speak to any employ-
ees entering or leaving the picketed premises.
Do not attempt to stop anyone. You are there
to publicize the fact that this coal mine opera-
tor is destroying area standards by paying sub-
standard wages and benefits.
Do Not Say ANYTHING To ANYONE
Do Not SHOW THESE INSTRUCTIONS To ANYONE”
It is interesting to note that picketing was to be carried
on only where an authorized representative of the
United Mine Workers directed.
5. The District’s 1977 Labor Management Report
showed payments to pickets at non-union operations of
$5,000 in December, and in 1978, $37,833 was paid for
picketing of non-union operations in January, February
and March.
6. Vouchers for travel by United Mine Workers
members revealed five cars containing 16 people. Four
11a
Appendix A.
(later identified as the Veon site) and, for safety rea-
sons, he shut down all Kerry Coal sites on the morning
of December 13th, with the exception of some mainte-
nance crews.
After receiving numerous calls for coal from his
customers, Vernon Kerry resumed operations on Decem-
ber 20, 1977. It was not long before picketing activity
began and, with the activity, acts of intimidation to his
employees. Roofing nails were thrown across the en-
trances to some of the Kerry Coal sites (10 pounds of
nails were picked up, T.344), and there was general
chaos in the coal fields. On December 27, 1977, Gary
Ashton and James Beachem, during the course of scout-
ing activity, threatened Vernon Kerry that if he did not
shut down, they would bring in 200 men to wreck his
equipment, and Beachem added, “we can do this with
one phone call.” (T.341, 566) In addition, Ashton, who
lived near Kerry Coal’s tipple site, picketed the railroad
crossing with a sign “UMW on Strike—No Contract—-
No Work” whenever a train came to pick up coal, and
the train would leave. (T.343, 568). This effectively
stopped Kerry Coal from shipping coal to its customers.
Prior to that time, Kerry Coal had shipped coal on a
daily basis (T. 341) and 80% of its coal was shipped by
rail.
In the beginning, picketing was not continuous but
it later became 24 hours a day. (T.343) During the
picketing, Vernon Kerry recognized Jay Kolenc, the
International Organizer, at the site on more than one
occasion.
cars traveled the same 222 miles, and one traveled 126
miles, on December 6, 1977 in Western Pennsylvania.
(P.Ex. 44-1, 2, 3, 4, 5)
12a
Appendix A.
It was shortly after Christmas and after his en-
counter with Vernon Kerry, Gary Ashton testified, that
he learned Kerry Coal was not going to be closed and
called his Local President, Edward Lytle, to obtain help
in setting up pickets at Kerry Coal. Lytle said he would
get in touch with someone and let him know. The next
day, Lytle called and told Ashton he would bring some-
one to meet him. Ashton stressed he wanted to set up
pickets because the strip mines were running. A meeting
was arranged at a firehall where Ashton, Beachem and
Lytle discussed briefly with Jay Kolenc setting up pick-
ets at Kerry Coal. Kolenc told them there were papers
and instructions from the District and that someone
would deliver these to him. Later, Estel Taylor, District
Board Member, arranged a second meeting at Felix’s Bar
in Zelienople, some six or seven miles from Kerry Coal’s
Franklin Township site. Brian Short appeared at this
meeting, and Taylor asked Ashton to “scout” the Kerry
Coal operation (Ashton described scouting as seeing
what operations were running and who was hauling coal
where). After Ashton scouted Kerry Coal, he reported
to Taylor that the sites were still operating and another
meeting was called at Felix’s Bar in which Short and
Taylor participated. Taylor gave out the instructions
drawn up at the November 30, 1977 meeting (see Foot-
note 4), and picketing then proceeded on a 24 hour basis
from January 5 to January 9, 1978. Ashton remembered
seeing Kolenc on this picket line.
During the picketing, the pickets harassed inde-
pendent truckers bringing the coal to the tipple. On one
occasion the pickets stopped a train trying to get into
the site, as the train crew refused to cross the picket line.
13a
Appendix A.
Brian Short, a past Local President, was a close
friend of Estel Taylor and became involved in picketing
operations at Kerry Coal, as well as in scouting activi-
ties. Prior to establishment of a formal picket line at
Kerry Coal (described by Brian Short as one for a
period of 24 hours), informational pickets were put at
Kerry Coal at Taylor’s request. Short said that on one
occasion they stopped, milled around the railroad siding,
and left. Short considered this to be only informational
picketing. On another occasion, Vernon Kerry observed
Brian Short’s vehicle, a Ram Charger, near the gas
pumps on his property. At this time, Short threatened
physical violence if Vernon Kerry did not shut down his
operations.
Both Short and Taylor recalled Jay Kolenc being on
the picket lines. Full time pickets continued until Janu-
ary 9, 1978 and were then withdrawn.
On January 20, 1978, Taylor, Short, and two other
United Mine Worker members, Sewoc and Lucas, drove
past Kerry Coal's site. Short said he thought Kerry Coal
was still working. They drove past Kerry Coal into the
Beaver Falls area and breakfasted with Jay Kolenc.
On January 22, 1978, a Sunday morning, at about
8:30 A.M., Vernon Kerry was called to his tipple site be-
cause of damage done to his equipment during the night.
When he arrived he observed extensive damage to a
dragline, three bulldozers, a pan scraper and a fuel
tank.7 Vernon Kerry described the scene as follows
(T.351) :
7. The dragline had a 120 foot long boom with a
7 yard bucket attached capable of — up 40,000
pounds of overburden at one time, and costing $750,000.
The bulldozers weighed about 50 tons each and had 16
foot wide by 6 foot high blades on the front. The pan
was used for removing and replacing the top soil.
Appendia 4.
“Q. Tell the jury what you saw.
A. Broken windows, smashed turbochargers, fuel
lines broken, radiators had holes punched in
them. Most of the destruction was done with
bars or sledges. The radio was destroyed—the
two way radio, The controls were smashed, The
antifreeze and the fuel was all over the ground.
They had broken lines on the fuel truck and
just left the fuel run on the ground. The con-
trols inside of the motor—the motor—the
motor—the injector lines on the dragline was
smashed. Air cleaners were broken. Most of the
controls were broken.
Q. Did you see where any foreign substances had
been put into your equipment?
A. At various places on the machinery there is
places where oil or fuel can be added to main-
tain the necessary levels to operate. Inside those
areas, you could see where sand and mothballs
had been placed. Dirt and sand were placed in
the radiator caps where the radiators were
completely filled.”
At the scene, Vernon Kerry observed tire marks in the
new fallen snow which he identified as being made by
Brian Short’s Ram Charger. He went in search of Short
and when he encountered him in an apartment house
parking lot in Library, Pennsylvania, Kerry accused
Short of “being seen last night“. Short's only reply was,
“TI don’t think so”. (T. 592)
Some replacement parts were not immediately avail-
able and the Kerry equipment was not operational for
over two months, It was also necessary to take produc-
15a
Appendia A.
tion men away from their usual work in order to perform
the repairs, and Vernon Kerry hired private security
guards.
On January 25, 1978, twelve carloads of pickets
came to the Kerry Coal tipple site and, standing shoul-
der-to-shoulder, completely blocked access to the prem-
iges. Vernon Kerry called the state police and while he
was waiting for their arrival, two of the pickets came
into his office, identified themselves as members of the
United Mine Workers, and told him to stop shipping in-
dustrial or electrical utility coal during the remainder of
the strike. Kerry agreed to do so and testified (T.346) :
“... It was a wise decision on my part because with-
in five minutes there was a caravan came past my
office in a show of force. There were some 80 cars
in the caravan in addition to the cars that were
already at my site.“
By the time the state police arrived, the pickets had
gone. The police told Vernon Kerry to get his men out of
there, expecting the pickets to return. Within about five
minutes, the pickets were back but, when they saw the
police, only shouted and made gestures.
The coal trucks were followed on many occasions
and at one attempted delivery at St. Joe Mineral Com-
pany, a regular Kerry Coal customer, on February 27,
1977; pickets threw rocks and damaged these trucks.
After the coal was dumped they could not leave because
the pickets were swarming at the exit. They finally
escaped when they were escorted by the police. This inci-
dent ended deliveries to St. Joe Mineral for the period of
the strike.
Estel Taylor, District Executive Board Member,
acknowledged he had been given the Enon Valley area
16a
Appendia A.
by District President Antal (the area of Kerry Coal's
operations). His calendar of activities showed that he
was in that area on January 26, 1978 “performing legiti-
mate official duties“. He denied being in the Kerry Coal
area during any relevant period of time, although he had
been paid by the District for this particular date, and his
voucher showed he had been in Zelienople. He acknowl-
edged knowing Jay Kolenc, seeing him at the Kerry Coal
site, and meeting him through Ashton to set up the
pickets at Kerry Coal, thus contradicting his own testi-
mony.
A. The Union’s Testimony In Plaintiff’s Case
Much of the Plaintiff's case was established after
lengthy pretrial depositions by calling various union
members on cross examination. Vernon Kerry's testi-
mony was thus strongly corroborated and many details
added.
The first of these witnesses was Michael Encrapera,
who testified that before the strike began, he was asked
by District President Antal to become the administrator
of a legal defense fund (CMLDF), the purpose of which
was to pay fines for the people who would get in trouble
over the strike, and the source of this money would be
contributions solicited from other mine workers and
other unions. District Officers were to announced [sic]
through the jurisdiction that the District could not pay
the fine for those getting into trouble, nor could money
be received from the International. Obviously, tuls was
8. The discrepancy of one day between January 25
and January 26, 1978 was never clarified in the testi-
mony. Because of the vagueness of his 1 the
jury could well have concluded that he was in the Kerry
Coal area on January 25, 1978.
17a
Appendiæ A.
made to prevent any implication of participation by the
District or the International, or ratification of any such
conduct, contrary to its purpose.
How transparent the situation was could be deter-
mined from a letter written by Michael Encrapera and
later sent to many other unions by the District, which
read as follows (P. Ex. 27):
“District 5 COAL MINERS
THE NEED Is GREAT
GIVE
During our contract strike, the Coal Miners
Legal Defense Fund (CMLDF) was formed to help
District 5 miners who were harrassed or prosecuted.
Dozens of miners were arrested on all kinds of
criminal charges, As chairman of CMLDF, I ar-
ranged for the miners to have free legal representa-
tion and I’m proud to tell you that no District 5
miner was sent to jail. However, in some of the hard
core anti-union counties, judges imposed huge fines.
Many fines have already been paid, but thousands of
dollars are still due. If the fines are not paid, the
men will go to jail. District 5 can’t pay the fines be-
cause if it does, it will be subject to coal company
law suits and federal prosecution. These men need
help and all coal miners should help them—I urge
you to help by giving a generous donation to the
CMLDF when a collection is taken at your mine, I
promise you as a long time coal miner and union
member that all money will be used properly and
strictly accounted for.
Fraternally
Michael Encrapera,
Chairman
Coal Miners Legal Defense Fund”
18a
Appendia 4.
(Emphasis added in original.)
The evidence was clear that Encrapera did pay crim-
inal fines and attorney fees in several instances. For
example, there was included a bill for services by Ken-
neth Yablonski, the District’s attorney, for services
rendered for Ashton, Short and Beachem, and this bill
referred to Kerry Coal Company.
District President Antal acknowledged that he was
responsible for insuring that signatories to the Union
Contract lived up to their obligations, that the member-
ship enjoyed the rights given to them under the Consti-
tution, and directing whatever was needed in the way of
services by various District Board Members to benefit
the members. Mr. Antal admitted asking International
President Miller to send in an International Organizer,
Thomas Pysell, to survey the non-union strips because
Antal’s men were complaining of non-union operations in
the District’s jurisdiction. Antal claimed that Pysell did
not give him any report before 2 ae left the area prior
to the strike.
Antal acknowledged there was an Executive Board
meeting on November 30, 1977, when the strike plans
were drawn up and the guidelines for informational
pickets and union mine pickets were distributed. He said
that informational pickets were to be paid $3.00 a meal
and, if they drove, 20¢ per mile, and that the District
was to pay these expenses. He estimated that approxi-
mately $5,000 was spent for non-union pickets during the
strike but could not explain the figure of $37,833 in the
District’s Report to the National Labor Relations Board
as having been spent in January, February and March
of 1978. Responsibility for the picket lines in each sub-
district was on the Executive Board Member of the par-
19a
Appendix 4.
ticular sub-district. Antal disclaimed knowledge of any
violence in the area, and particularly denied having seen
any newspaper reports of violence in the area, or of
having seen the telegram sent by the International on
March 8, 1978, addressed to him at District Headquar-
ters, and reading (P. Ex. 66):
“Upon a petition filed by the Regional Director of
the National Labor Relations Board, the United
States District Court for the Eastern District of
Tennessee issued an order enjoining any picketing
or any like or related activity, at any non-union mine
with whom the International Union does not have a
primary labor dispute and any employer under con-
tract with any other union, including trucking com-
panies and railroads. Similar federal court injunc-
tions have been issued in the state of Kentucky and
the state of Indiana against several Districts and a
number of Local Unions. Therefore, you should ad-
vise all the officerg and representatives of your Dis-
trict, and all of the Local Unions within your Dis-
tricts, that they should avoid any such picketing or
any other like or any related activity at these types
of operations within your District. Full compliance
with the policy of the International Union in this
regard is of the utmost importance to the integrity
and the welfare of our union and its members.
/s/ Arnold Miller
President“
In addition, President Antal denied authorship or
knowledge of a press release issued February 22, 1978 by
the District which stated (P.Ex.25) :
Appendix A.
“On December 6, 1977 when we began our
strike, there were very few people who cared about
our problem. The industry and the general public
thought we were weak and divided. With very few
exceptions, we have shown the entire world what
coal miners are made of—we won’t be broken by
any unfeeling and arrogant industry, nor will we be
divided from within. There are a few of our mem-
bers who are bitter because of election defeats both
in the District 5 and the International Unions....
Those who would depart from our tradition of com-
plete unity during a national strike are traitors to
our cause and we, the District 5 Executive Board, so
label them. We call on all of our members to remain
strong and we will succeed,
We equally condemn irresponsible Congressmen
and other politicians who would interfere in our
internal affairs. We promise that they will hear from
us in the future.
We will continue our program of legitimate in-
formational and others types of picketing... .”
It was clear from the evidence that while Antal did
not administer the CMLDF, he was fully aware that the
funds were being used to pay criminal fines of strikers.
For example, P.Ex.194 was a letter from Antal instruct-
ing Encrapera to take care of a criminal fine for a United
Mine Workers’ member.
The testimony by Ashton and Short corroborated
that Jay Kolenc and Estel Taylor were responsible for
the men being on the picket lines at the Kerry Coal sites.
While they denied any illegal activity, threats or harass-
ment, their credibility was a question for the jury.
21
Appendix A.
According to James Beachem, and apparently be-
lieved by the jury, his only involvement was in scouting
the strip mines; and, on one occasion, picketing a rail-
road siding on the Kerry Coal site (the train had already
turned around and departed before Beachem appeared).
Thus, the jury found in his favor.
Peter Sabo, Secretary-Treasurer of the District, paid
pickets out of the District’s General Fund. (T.1199)
Many of the vouchers submitted for payment included
such descriptive phrases as “shut down trucking”
(P.Ex.44-39) ; “Kerry Coal tipple” (P.Ex.44-42) ; “made
check on these strips in afternoon—roving pickets shut
them down” (P.Ex.44-45) ; “left Bentleyville truck stop
at 4:30 A.M. covered three gates at J&L stockpile. There
are five altogether. Informed all people entering that
UMWA are on strike. We informed them that we would
appreciate no coal being moved. No coal moving at 8:30
A.M. when we left.” (P.Ex.44-46). Sabo admitted that
the District spent $38,000 to $40,000 on pickets but de-
nied that he had anything to do with the fines, although
two of his checks were apparently cashed in a District
Magistrate’s office for two of his union members. He
paid for both the “no contract—no work” signs and the
informational picketing signs.
Steve Segedi, a District Executive Board Member,
was responsible for Sub-District 2, which included Alle-
gheny, Washington, and parts of Greene and Westmore-
land Counties. A miner by the name of Filla was arrested
and charged with violence and Segedi discussed the pay-
ment of Filla’s fine with Encrapera, and sent Filla to him.
He made no investigation of the problem but simply re-
ferred Filla to the CMLDF. The closeness of the CMLDF
to the District was crystal clear.
22a
Appendix A.
As was previously noted, Estel Taylor was the Dis-
trict Board Member making the decisions with respect
to the picketing at the Kerry Coal site. He made the de-
cision to set up the picket line, and to take it down on
January 9, 1978, because of the very cold weather and
because intermittent picketing at the railroad siding
seemed to be shutting off the rail shipments. He acknowl-
edged that Ashton wanted to get people from his Local
to set the picket line up again but was never really told
why. (T.1053) He said he rode by the Kerry Coal site on
January 20th when he was trying to make up his mind
whether to institute the picket line again. Brian Short
and two other men were with him, and they discussed
the situation with Kolenc. He claims he first became
aware of the damage to Kerry Coal’s equipment on Jan-
uary 22, 1978 when on that afternoon Short called to tell
him of Vernon Kerry’s accusations. Taylor also called
Ashton, who lived nearby, to find out what he knew
about it, but was unable to find out anything.
B. The Union’s Defense on Liability
Samuel Church, formerly Executive Assistant to
International President Miller and Vice President of the
International after December 22, 1977, was in active
charge of the day-to-day operations of the International
after President Miller suffered a stroke in July of 1977.
He described the extensive negotiations which started in
early October 1977 and lasted until March 16, 1978. He
denied any personal knowledge of violence in the Dis-
trict’s area, saying that he first learned about it when
he came to a District rally held in Soldiers and Sailors
Memorial Hall in Pittsburgh on January 30, 1978.
(T.1906) He said the strike began December 6, 1977
when there was no contract, in accordance with the
23a
Appendix A.
United Mine Workers’ tradition. While not knowing any-
thing about the violence, he did acknowledge having read
the telegram sent to all District Presidents after the Ten-
nessee injunction proceeding. He claimed he first learned
about the violence at Kerry Coal when he was informed
that an action had been filed and that he would have to
give a deposition. He denied any discussion at the Inter-
national level to try to shut down or disrupt the flow of
non-union coal, claiming that if all coal was stopped, it
would then have been a national problem which could be
remedied under a Taft Hartley injunction. The Inter-
national did not want that. Church did, however, ac-
knowledge that Jay Kolenc was an International Organ-
izer and that he had been paid by the International for
surveying non-union mines in Western Pennsylvania.
(T.1936) Church stated that the International’s Report
showed that in 1977 Kolenc was paid $20,002.36 in salary
and $15,952.05 for expenses, for a total of $35,954.51.
(T.1943) The 1978 Report showed he was paid a total of
$43,255.79, the second highest amount in the group of 40
employees of the International. He admitted that under
the Constitution of the United Mine Workers, the Inter-
national Executive Board would have the power to re-
move, or to suspend and/or limit the autonomy of a local
union that was not carrying out its legitimate objectives,
including imposition of trusteeships on the Districts, but
said that no investigation was carried out with respect to
the District’s activities during the strike. Despite letters
being sent to the International Headquarters, Church
said no action was taken to insure there would be no
United Mine Worker violence at the non-union mines.
(T.1990)
24a
Appendix A.
III. PLEADINGS
The Amended Complaint filed February 13, 1978,
after alleging jurisdiction and identifying the parties,
set forth in Count I a cause of action under Section 303
of the Labor Management Relations Act, 29 U.S.C. §187,
in that the Defendants, acting in concert, committed an
unfair labor practice, a violation of Section 8(b) (4), 29
U.S.C. 8158 (b) (4), by forcing Kerry Coal to cease doing
business.
Count II was a claim for exemplary and punitive
damages for the Defendants’ “wanton and wilful” viola-
tions of Section 8(b) (4), 29 U.S.C. §158(b) (4). By
order dated June 25, 1979 (with stipulation of counsel) ,
all Individual Defendants were granted summary judg-
ment as to Counts I and II. The Court granted a directed
verdict for the International and the District on Count
II, at the close of the Plaintiff's case.
Count III alleged a cause under 42 U.S.C. $1985, in
that the Defendants illegally interfered with the Plain-
tiff’s rights to be free from unfair labor practices. By
opinion and order of August 10, 1978, Defendants Ash-
ton, Beachem and Short were granted judgment on the
pleadings on Count III. By order dated June 25, 1979,
Defendants Miller, Antal and Taylor were granted sum-
mary judgment as to Count III for the reasons given
in our opinion of August 10, 1978. The Court granted a
directed verdict in favor of the International and the
District on Count III at the close of the Plaintiff's case.
Count IV was a pendent state law claim for violent
and tortious interference with existing contracts and
existing and prospective business relationships between
Kerry Coal and others with whom it did or would do
25a
Appendix 4.
business, The Court granted a directed verdict in favor
of Defendant Miller on Count IV at the close of the
Plaintiff's case, and granted a directed verdict in favor
of Defendant Antal at the close of the case.
Count V alleged that Defendants interfered with the
Plaintiff and Plaintiff’s employees, and thereby inter-
fered with the rights of such employees to work at their
lawful vocation. The Court granted a directed verdict in
favor of all Defendants on Count V at the close of the
Plaintiff’s case.
Count VI was a claim for exemplary and punitive
damages for Defendant’s wanton and wilfull [sic] inter-
ference with Plaintiff's contractual relationships. The
Court granted a directed verdict in favor of Defendant
Miller on Count VI at the close of the Plaintiff's case. The
Court, in effect, granted a directed verdict in favor of
Defendant Antal on Count VI when it directed a verdict
in his favor on Count IV.
IV. APPLICABLE LAW
A. Judgment Notwithstanding the Verdict
A judgment notwithstanding the verdict under Fed-
eral Rule of Civil Procedure 50(b) is properly granted
if, without weighing the credibility of the evidence, there
can be only one reasonable conclusion as to the proper
judgment, and it is contrary to the verdict. See Thomas
v. E. J. Korvette, Inc., 476 F.2d 471, 474 (3rd Cir, 1973);
Carpenter v. Koehring Oo., 391 F.Supp. 206, 208 (E. D. Pa.
1975), aff'd 527 F. 2d 644 (3rd Cir. 1976). The court, as a
matter of law, must determine whether the evidence was
sufficient to create an issue of fact for the jury, and in
26a
Appendix 4.
doing so, the court may not weigh the evidence, pass on
the credibility of witnesses, or substitute its own judg-
ment of facts for that of the jury. Wright & Miller,
Federal Practice d Procedure; Civil §2524 at 541-544.
The evidence must be viewed in the light most favorable
to the party securing the verdict, and all inferences must
be drawn in that party’s favor. Monsen v. Consolidated
Dressed Beef Co., Inc., 579 F.2d 793, 796 (3rd Cir. 1978) ;
Thomas v. E. J. Korvette, Inc., supra, The jury verdict
may be overturned only where the facts and all infer-
ences would not permit a reasonable man to come to the
conclusion reached by the jury. Marder v. Conwed Corp.,
75 F.R.D. 48, 54 (E. D. Pa. 1977).
B. NEw TRIAL
The court has considerable discretion under Federal
Rule of Civil Procedure 59 to order a new trial to pre-
vent a perceived miscarriage of justice, and there are
many possible grounds for such a decision. See generally
6A Moore’s Federal Practice {159.08 (2d ed. 1979). A
motion for new trial imposes the duty on the court to
insure that the verdict was not influenced by partiality
or prejudice, and that there is no miscarriage of justice.
University Marketing d Consulting, Inc. v. The Hartford
Life d Accident Co., 413 F.Supp. 1250, 1262 (E. D. Pa.
1976) ; Southeastern Pennsylvania Transportation Au-
thority v. Transit Casualty Co., 412 F.Supp. 839, 842
(E.D.Pa. 1976). However, the court must not interfere
with the verdict unless it is quite clear that the result
reached by the jury was seriously erroneous. The credi-
bility of witnesses is a matter for the jury, and a new
trial may not be granted merely because the evidence is
sharply in conflict, Barrett v. Robinson, 65 F.R.D. 652
(E. D. Pa. 1975), or because the jury could have drawn
27
Appendiæ A.
different inferences or conclusions. Gregory v. South
Hills Movers, Inc., 477 F.Supp. 484, 487 (W. D. Pa. 1979).
In a case such as the one presently before us, it is the
function of the jury to determine the credibility of the
witnesses, that is, what testimony is to be believed. See
Lind v. Schenley Industries, Inc., 278 F.2d 79 (3rd Cir.),
cert. denied 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60
(1960).
In deciding a motion for a new trial, the court must
insure that there is no miscarriage of justice, but at the
same time, it must respect a plausible jury verdict. This
necessarily involves a commonsense determination, such
as that articulated by Wright and Miller: “If, having
given full respect to the jury’s finding, the judge on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed, it is to be ex-
pected that he will grant a new trial.” Wright & Miller,
Federal Practice & Procedure: Civil 52806 at 49.
Furthermore, 2 new trial should not be granted on
the basis of asserted errors which, in the circumstances,
were not prejudicial. See F.R.Civ.P. 61. Given these well-
known general principles, we turn to the contentions of
the Defendants.
V. THE MOTIONS
A. The Procedural Problem
In its Motion for Directed Verdict, made at the close
of the evidence, the International asserted two grounds
under Count I:
(1) There was no evidence the International
coerced or restrained any person, or induced or en-
couraged any individual employed by any person to
engage in a strike or cease doing business.
Appendix A.
(2) There was no evidence the International
ever engaged in such activity with an object thereof
to force any person to cease doing business with any
other person. (T.2287)
The Motion for Directed Verdict as to Count IV was
based on the grounds that:
(1) There was no evidence pertaining to any
violent acts.
(2) There was no proof of authorization by
the International. (T.2290-91)
Although the International asserted fourteen
grounds in its Motion for Judgment Notwithstanding
the Verdict filed after the trial, such a Motion may be
based only upon the grounds included in its original
Motion for Directed Verdict. See C. Albert Sauter Co. v.
Richard 8. Sauter Co., 368 F.Supp. 501 (E.D.Pa. 1973) ;
Lewis v. Mears, 189 F.Supp. 503, 509 (W.D.Pa. 1960),
aff'd 297 F.2d 101 (3rd Cir. 1961), cert. denied 369 U.S.
873, 82 S.Ct. 1142, 8 L.Ed.2d 276 (1962); 5A Moore's
Federal Practice 50.08 at 50-86 (2d ed. 1979). See also
Lowenstein v. Pepsi Cola Bottling Co., 536 F.2d 9 (3rd
Cir.), cert. denied 429 U.S. 966, 97 S.Ct. 396, 50 L.Ed.2d
334 (1976) ; Dudding v. Thorpe, 47 F.R.D. 565 (W. D. Pa.
1969).
Further, on January 14, 1980, more than three
months after the verdict and the entry of judgment,
Defendants International and District filed a Supple-
mental Motion for New Trial asserting four additional
grounds. This procedure was unavailing to the Movants
for this Court may not consider grounds belatedly as-
serted. Arkwright Mutual Insurance Co. v. Philadelphia
Electric Co., 427 F.2d 1273 (3rd Cir. 1970); Massaro
29a
Appendix A.
v. United States Lines Co., 307 F.2d 299, 303 (3rd Cir.
1962); Russell v. Monongahela Railroad Co., 262 F.2d
349, 354 (3rd Cir. 1958). The district court is without
authority to grant a new trial for reasons assigned after
the mandatory ten day period under F.R.Civ.P. 59(b).
However, none of the reasons assigned have merit, as
we will later discuss.
B. The International’s Motions
The International first argues that the only evi-
dence against it related to the activities of International
Organizer Jay Kolenc, and that these activities were
insufficient on which to base liability. It points to the
express instructions to Kolenc to “remain on (his)
present assignment”, which did not include establishing
or participating in a picket line. It contends that if
Kolenc was merely an employee of the International, the
evidence would be insufficient to support the verdict
since Kolenc would have been acting outside the scope
of his authority.
Kerry Coal, however, contends there was sufficient
evidence upon which the jury could base a finding of
liability. They point to the fact that Kolenc was em-
ployed by the International and was sent into the West-
ern Pennsylvania area to assist or to take over for
Thomas Pysell. (P.Ex.49) He was in constant contact
with District Executive Board Member Estel Taylor, and
was the person making the decision to establish the
picket line at the Kerry Coal site. Kolenc came to Ash-
ton’s home, advised Ashton on establishing a picket line
at Kerry Coal (T.1851), and directed Taylor to call
Ashton to finalize plans for picketing. The plans for es-
tablishing the picket line at the rail siding where Kerry
30a
Appendix A.
Coal’s equipment was later destroyed were finalized at
the meeting at Felix’s Bar which Kolenc attended.
Kolenc was at the picket line on several occasions when
Plaintiff’s employees were threatened and violence oc-
curred. More importantly, on January 20, 1978, two days
before Kerry Coal’s heavy mining equipment was de-
stroyed, Taylor, Short and other union members again
surveyed the Kerry Coal sites and, immediately there-
after, they met with Kolenc. During the evening of the
next day, the damage was done to the equipment at the
Kerry Coal site. Kolenc left the area a few hours before
Kerry Coal’s mining equipment was destroyed. (T. 1994)
Kerry Coal contends Kolenc’s connection with the inci-
dent is a matter for the jury to determine.
In our view, Kolenc’s activities could be the basis
for the International’s responsibility when and if they
were committed within the scope of his general au-
thority, whether or not they were specifically authorized
or ratified. This is consistent with Section 301(b) and
(e) of the Labor Management Relations Act, 29 U.S.C.
§185(b) and (e), which provides in pertinent part:
“(b) Any labor organization .. shall be bound by
the acts of its agents.
* * *
(e) For the purpose of this section in determining
whether any person is acting as an agent' of
another person so as to make such person re-
sponsible for his acts, the question of whether
the specific acts performed were actually au-
thorized or subsequently ratified shall not be
controlling.“ ꝰ
9. We note the Supreme Court's discussion in
Carbon Fuel Co. v. United Mine Workers of America,
3la
Appendix A.
Thus, in White Oak Coal Co. v. UMW, 318 F.2d 591,
508 (6th Cir. 1963), cert. denied 375 U.S. 966, 84 S.Ct.
484, 11 L.Ed.2d 415 (1964), it is stated:
“The Union was responsible for the acts of
their representatives only if the latter were engaged
within the scope of their employment or authority;
but actual authorization of specific acts was un-
necessary.”
See Vulcan Materials Co. v. United Steelworkers, 430
F.2d 446, 457 (5th Cir. 1970), cert. denied 401 U.S. 963
(1971) ; UMW v. Osborne Mining Co. 279 F.2d 716 (6th
Cir.), cert. denied 364 U.S. 881, 81 S.Ct. 169, 5 L. Ed. 2d
103 (1960).
Kolenc could be found to have exhibited a pattern
of conduct in direct cooperation with Estel Taylor, Dis-
trict Executive Board Member, and, if they were acting
in concert, they are responsible for each other’s conduct
and the conduct of each other’s agents. See Vulcan Ma-
terials Co. v. United Steelworkers, supra. Whether
Kolenc was acting within the scope of his employment
was a question for the jury to determine, and the Court
so instructed the jury. 10 See Chuy v. Philadelphia
— US. ——, 62 L.Ed.2d 394, 399 n.6 (1979), where
the court noted: “Congress applied to unions the com-
mon-law doctrine of — 2 superior rather than
the more restrictive test of union 2 under
§6 of the Norris-La Guardia Act, which requires ‘clear
proof of actual participation in, or actual authorization
of such acts, or of ratification of such acts after actual
= thereof.’ 29 U.S.C. 8106 (emphasis sup-
p ”
10. Although the duties of Kolenc were never ex-
— explained, we believe the jury could reasonably
ave found that part of his duties included the organ-
izing of pickets and other activity against non-union
mines during the strike.
32a
Appendix A.
Eagles Football Club, 595 F.2d 1265, 1276 (3rd Cir.
1979) (en banc). No exception was taken to the Court’s
charge on this matter.
Our case is very different from Carbon Fuel Co. v.
United Mine Workers of America, —— U.S. ——, 62
L.Ed.2d 394 (1979), where local labor unions engaged
in an [sic] number of unauthorized or “wildcat” strikes
at petitioner-employer’s coal mines in violation of a col-
lective bargaining agreement between petitioner and the
respondent international union. The court held that the
international and district had no obligation under the
maintenance of the integrity of the contract clause to
use reasonable means to prevent and end unauthorized
strikes because, the Court said, Congress had limited
the union’s responsibility to cases where the union may
be found liable according to the common law rule of
agency. In the instant case, there was evidence of Ko-
lenc’s extensive and active participation in, and leader-
ship of, the illegal activity. Therefore, Carbon Fuel does
not support the Defendants’ Motion for Judgment Not-
withstanding the Verdict in this case.
Buckeye Power, Inc. v. Utility Workers Union of
America, 607 F.2d 759 (6th Cir. 1979), is also inapplic-
able. There, a representative of the national union was
present at the scene of the strike on the first day of the
walkout, and the only evidence of his involvement was
that he warned the local union that picketing of the
gates was prohibited. This was found to be insufficient
evidence of actual involvement and control. The limited
involvement by the national’s agent in Buckeye is in
sharp contrast to the role played by Kolenc in the in-
stant case.
33a
Appendix A.
We believe there was sufficient evidence for the jury
to have concluded that the International, through the
actions of its Organizer Jay Kolenc, induced or en-
couraged the employees of Kerry Coal, or of the rail-
road, or the trucking companies to refuse to process,
transport or handle Kerry coal with an object thereof
to force Kerry Coal to cease doing business, or to force
the trucking companies or the railroad to cease process-
ing, handling, or transporting Kerry coal.
Count IV, the pendent state claim, was based on
tortious interference with a contractual relationship,
and thus, under Section 6 of the Norris-LaGuardia Act,
29 U.S.C. §106, clear proof of actual participation or
actual authorization of violent acts was required, and
the jury was so instructed. The International argued
in its Motion for Directed Verdict at the close of evi-
dence that there was no proof of violence and no proof
of International authorization. However, the testimony
did indicate that threats, obscene gestures, and intimi-
dation occurred on the picket line (T.345), and on Janu-
ary 20, 1978, one day before the Kerry Coal equipment
was destroyed, Kolenc met with Estel Taylor and other
union members. This was a sufficient basis from which
the jury could draw the inference that Kolenc was ac-
tively involved in both violent activities on the picket
line, as well as in the actual planning of the destruc-
tion of the Kerry Coal equipment. Kolenc did not deny
his activity.
C. District’s Motion for Judgment Notwithstanding
the Verdict
At the close of the evidence, the District moved for
a directed verdict. Under Count I they claimed there
34a
Appendix A.
was no evidence the District coerced or restrained any
person, or induced or encouraged any individual em-
ployed by any person to engage in a strike or cease doing
business, or engaged in such an activity with an object
to force any person to cease doing business with any
other person. As to Count IV, the District claimed that
there was no evidence of violence on its part. The over-
whelming evidence however indicated that the District,
with the know-how provided by the International Organ-
izers, planned and implemented the campaign to inter-
fere with the production and sale of non-union coal dur-
ing the strike, including Kerry coal, and that Kerry
Coal’s damages resulted therefrom.
It was District President Antal who wrote the let-
ter to all non-union operators charging that they failed
to meet wage and benefits standards. It was also Antal
who directed the distribution of picketing instructions
to District members, which stated that they were to
picket “only where an authorized representative of the
United Mine Workers of America has directed you to
perform your picket duties. You are there to publicize
the fact that this coal mine operation is destroying area
standards by paying substandard wages and benefits.”
The District authorized payments for picket duty at non-
union operations and paid the pickets some $40,000. De-
fendant Executive Board Member Estel Taylor was as-
signed responsibility for strike activity in the area of
Kerry Coal’s mining sites; he discussed with Kolenc and
Ashton, Kerry Coal’s operation and their intent to stop
the movement of coal by Kerry. The District furnished
pickets with picket signs, and District Officers directed
the attack on Kerry Coal’s operation. Taylor ordered
the picket line to be manned on a 24-hour basis and was
present on the picket line when a coal train was stopped.
35a
Appendix A.
Taylor signed and approved vouchers for “scouting”.
Nails were thrown across the entrances to Kerry Coal
sites; Kerry Coal’s employees, truck drivers, and cus-
tomers were harassed; United Mine Worker members,
paid by the District, mobbed Kerry Coal’s tipple and
ordered Vernon Kerry to cease hauling coal which
brought about the closing of the Kerry Coal operations.
Kerry Coal’s equipment was destroyed in the early
morning hours, just as Ashton and Beachem had threat-
ened. Short’s car tracks were seen in the snow on the
morning of the day the damage was done; Short did
not deny having been involved but only states that he
did not think he had been seen. Violence and threats by
United Mine Worker members prevented Kerry Coal
from shipping to its customer, St. Joe Mineral; again,
the pickets there were paid by the District, and these
pickets destroyed Kerry Coal’s trucks. The evidence in-
deed was strong against the District as to its responsi-
bility for the picketing and violence in the area.
D. Estel Taylor’s Motion
Estel Taylor moved for a directed verdict at the
close of the evidence contending that under Count IV
there was insufficient evidence to show clear proof of
participation in violent acts directed at Kerry Coal
which were a substantial factor in causing the damage
claimed. We have previously discussed Taylor’s partici-
pation in connection with the District’s Motion. The
jury could have found sufficient evidence of Taylor’s
involvement in violence through his actions in planning
and establishing the picket line, by his signing and ap-
proving vouchers for scouting activities, and by his
contact with Kolenc and Short prior to the destruction
of the Kerry Coal equipment.
36a
Appendix A.
E. Ashton and Short’s Motion
In their Motion for Directed Verdict, Defendants
Ashton and Short contended there was no proof es-
tablished as to their participation in violent acts. As to
Ashton, the evidence showed he lived near the Kerry
Coal’s Franklin Township site, and that he urged
Kerry’s employees to cease working. Later, concerned
with Kerry’s continuing operations, Ashton and his
friend Beachem sought to prevent Kerry’s operations
and stopped a truck hauling Kerry coal, telling the
driver he should advise his employer that, as a sensible
man, he should immediately cease hauling. (T.1536-37)
Whether this constituted a threat was a matter for the
jury to determine.
On the same day, Ashton and Beachem confronted
Vernon Kerry and threatened if he did not shut down,
they would make a phone call and bring in 200 men “to
wreck [his] equipment”. (T.562) Ashton contacted
Kolenc, the International Organizer, and, within a
month, the Kerry Coal equipment was destroyed. Late
in December 1977, Ashton himself began to picket the
Kerry Coal rail siding, and the picket line which Kolenc,
Taylor and Ashton had established was characterized
by violence and intimidation. Ashton remained in close
contact with Taylor, and Taylor phoned Ashton on Janu-
ary 20, 1978, after the surveillance of Kerry Coal’s
Franklin Township site and the meeting with Kolenc.
At 7:18 P.M. on January 21st, Taylor again phoned
Ashton and later that evening the mining equipment
located just below Ashton’s house was substantially
destroyed. Ashton maintained that he was asleep until
11 A.M. on Sunday, but the telephone records showed
that Taylor spoke with Ashton about 9:26 A.M., after
37a
Appendix A.
the damage had been done. With this evidence, the jury
could well have determined that Ashton employed vio-
lence and intimidation to tortiously interfere with
Kerry Coal’s contractual and business relationships, and
his credibility was sorely tested.
As to Short, the evidence indicated he met with
Taylor, Ashton and Kolenc to plan the picketing. He
followed coal trucks and conducted surveillance at the
Kerry Coal operation. He confronted Vernon Kerry with
the threat of physical violence if Kerry continued to
operate, and he was with Taylor during the surveillance
of the Franklin Township site on the morning of Janu-
ary 20th and was present at the meeting with Interna-
tional Organizer Kolenc several hours later.
It was finding the tracks of Short’s Ram Charger
encased in the fresh snow that led Vernon Kerry to ac-
cuse Short of having been seen at the site of the dam-
aged Kerry equipment, to which Short replied only I
don’t think so.” There was no denial of being involved
and, instead, after Kerry confirmed that the tracks he
saw belonged to Short’s vehicle, Short later removed
and retreaded the tires. Again, a jury could reasonably
have found from this evidence that Short had been in-
volved in tortious and violent interference with Kerry
Coal’s business relationships.
VI. THE DAMAGE AWARD
A. Plaintiff’s Method of Calculation
Kerry’s expert accounting witness, James R. Kil-
zer, a certified public accountant, of the independent
accounting firm of Price Waterhouse (“P. W.“), holds a
Masters Degree in Business Administration from the
University of Pittsburgh and had four years prior ex-
38a
Appendix A.
perience as a Cost Analyst for the United States Steel
Corporation. Kilzer testified he reviewed Kerry Coal’s
books and records and determined four types of damage
suffered, i.e., (1) lost profits from business interrup-
tions, (2) excess labor costs incurred, (3) lost interest
income on profits, and (4) out-of-pocket expenses from
the picketing.
As to lost profits—surface mining, a base period
of February 1978 (except the Ist and 27th) was con-
sidered representative. Kilzer determined from produc-
tion and sales records the tonnage Kerry Coal could have
produced and sold over the strike period (T. 1694); the
two days (February 1 and 27) were excluded because
of the low level of activity on those days. He calculated
the profit per ton by determining the “customer mix”
(T.1696), i. e., a breakdown of the sales for each cus-
tomer as the prices per ton varied (T.1698), to which
was applied the cost of production as accumulated from
the most recent cost records (to September 30, 1977).
The final calculation then was the total estimated sales
tonnage for the period of the strike, less the amount
of tons sold; the customer mix was applied and the lost
profit calculated, customer by customer; the lost profits
per customer were added to total the lost profits-surface
mining.
As to lost profits—auger mining (mining by auger
from face of coal done by contractors), since there was
no augering in February 1978, a base period of the year
before was used (to October 31, 1977). The calculation
again was made of lost auger sales tonnage during the
strike period against which was applied a cost figure
to arrive at lost profit-auger. The month of December
1977 was not included for augering was not scheduled
then.
39a
Appendix A.
Lost man hours was equated to excess labor cost
incurred by Kerry Coal during the strike period, i. e.,
labor not utilized for productive purposes. Kilzer com-
pared the normal labor cost per ton with the labor cost
per ton during the strike. The excess labor cost per ton
was multiplied by the number of tons produced during
the strike.
Lost interest income was calculated from the
amount of money Kerry Coal would have earned on the
profits prevented by the strike. Kilzer used the experi-
enced interest rate applied to profits as if received even-
ly over the period.
Out-of-pocket expenses included expenses for equip-
ment repairs, calculated by adding the invoices for cer-
tain replacement equipment and repairs, and the costs
of security guards and attorney fees for obtaining a
state court injunction.
The damages then developed were as follows:
Lost Profits—Surface Mining $ 661,167
Lost Profits Auger 186,305
Lost Man Hours 152,631
Lost Interest Income (to 5/1/79)
($28,000 more to 10/1/79) ........ 90,963
Equipment Repairs .................0ccce 6,739
eee essen ese 3,173
—— . $1,100,978
The basis of the testimony was that all the coal
Kerry Coal could produce would have been sold, and
the calculation was made “using the best means avail-
able to make the calculations.” (T. 1755)
40a
Appendix A.
B. Defendants’ Damage Testimony
Defendants called Farrell Rubenstein as their ex-
pert witness. Mr. Rubenstein had been an accounting
partner of Bachrach, Sanderbeck & Company from 1962
to 1970, at which time the company merged into Touche
Ross & Company. Mr. Rubenstein became a member of
its National Board of Directors. He reviewed the report
and the documentation of Kerry Coal.
Mr. Rubenstein opined that P.W. had insufficient
documents on which to base a valid opinion (T.2056) ;
he felt he needed financial statements which would pro-
vide production costs during the months following the
fiscal year ending September 30, 1977. (T.2128) ; and he
wanted sales history by customer for three years; he
faulted the assumption that February 1978 was a proper
base month and claimed it was improper to apply costs
for a different period (Kilzer said he used a different
period because they were the most recent cost figures
available). Rubenstein disagreed with the assumption
that augering would have been done in January, Feb-
ruary and March, and contended P.W. used the wrong
comparative figures.
He concluded that P.W.’s calculations were mathe-
matically correct (T.2143), but that the back-up for the
figures were not available since P.W. did not have them
either. He concluded the use of February as the base
month was solely to enhance the damages, (T.2145)
As to lost man hours, Rubenstein objected to the
calculations used of average cost per ton based on the
year before instead of the cost in February 1978, which
was an unimpaired month. And, as to the non-productive
man hours, he objected on the basis that back-filling,
41a
Appendiæ 4.
one of the non- productive operations performed by
Kerry Coal's employees during the strike, is a non- pro-
auctive cost which was not properly credited. (T. 2161).
In addition, he claimed that the period immediately prior
to the strike was a high activity period when customers
were building inventories, and that February was the
next period of stockpiling. Thus, Kerry Coal could not
have maintained its February sales through the period.
Finally, he concluded that no ultimate conclusion could
be made as to damages from P.W.’s Report. (T.2180)
C. The Court’s Review
The jury could well have found that Kerry Coal was
forced to close its mining operations in December 1977
because of United Mine Worker violence in the area.
Kerry Coal’s employees were later intimidated, trains
stopped, truckers harassed, land owners “talked to”, and,
finally, Kerry Coal’s mining equipment so badly damaged
that production was seriously affected. Once the Plain-
tiff established that its business and property were dam-
aged, it is not necessary to prove the exact amount of
the damage suffered. It is sufficient if the evidence sup-
ports a just and reasonable approximation. Thus, in
Sheet Metal Workers International Association, Local
223 v. Atlas Sheet Metal Co., 384 F.2d 101, 109 (5th Cir.
1967), it is stated:
“Section 303 of the NLRA, 29 U.S.C. 5187, per-
mits any person injured in his business or property
as a result of a Section 8(b) (4) violation to bring
suit to recover the damages he has sustained plus
the costs of suit. The statute is compensatory in
nature., and damages may only be recovered for
actual losses sustained as the result of the unlawful
42a
Appendix A.
secondary activity. While the employer must prove
that he has sustained some injury to his business or
property, he need not detail the exact amount of
damages suffered. It is sufficient if the evidence sup-
ports a just and reasonable approximation. Story
Parchment Co. v. Paterson Parchment Paper Co.,
282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931).”
Kerry Coal succeeded in proving that it was, in fact,
damaged as a result of the Defendant’s conduct. The
testimony of its accountant from P.W. supported its
theory of lost profit damage. Given the testimony con-
cerning high demand for coal throughout the strike
period and Kerry Coal’s use of its actual sales data in
computing lost profits, the P.W. damage testimony was
entirely proper.
Plaintiff's P.W. expert testified to the selection of
February 1978 as the base period, giving a very detailed
explanation of his reasons for so doing. He calculated
the losses as $1,100,978, and said his figure was conserva-
tive, not including $28,000 interest to date of trial. We
cannot see in this calculation where there is any serious-
ly erroneous result reached by the jury. Defendants con-
tend that the Kerry Coal damage is dependent upon an
express finding of business interruption during every day
of the strike. But Kerry Coal’s theory of damages was
based on a course of conduct which was to cause a de-
crease in the level of monetary return. Whether the
damages were attributable to customer decisions to can-
cel or curtail orders in the face of widespread United
Mine Worker violence and intimidation would not lessen
Kerry Coal’s right of recovery. Kerry Coal’s theory of
damages assumed only that it would have sold as much
coal during the strike period as it did during the Febru-
*
43a
Appendix A.
ary base period, if the Defendants had not interfered
with its operations. The validity of the base period was
a matter for the jury.
VII. THE SPECIAL ARGUMENTS
A. The Discovery Claims
This Court has carefully reviewed Defendants’ con-
tention that the Court prevented them from inquiring
into the substance of Kerry Coal’s damage claims during
discovery. We find this argument to be without merit.
Plaintiff, on March 5, 1978, filed a comprehensive
statement of monetary damage, including a six-page
letter from its damage expert relating to the methodol-
ogy used in calculating damages and a 13-page docu-
ment detailing the calculation. Defendants were thus
apprised of the nature of the monetary damage claimed
by Kerry Coal substantially prior to trial. Further, Plain-
tiff made available to Defendants’ counsel on April 5,
1978 all the business records intended to be marked
exhibits. On May 10, 1978, this Court heard argument on
Defendants’ Motion to Exclude certain of these business
records at trial which Kerry Coal had not produced. Over
the Plaintiff’s objections, this Court ordered Kerry Coal
to produce all documents reviewed by its expert witness.
These were thereupon produced. Thus, the Court went
the full distance required by the law to compel, prior to
trial, the complete disclosure of the methodology and
calculations of Kerry Coal which the Defendants could be
expected to meet at trial.
B. The Evidentiary Rulings
The Defendants contend that the Court erred in
permitting District Executive Board Member Steve
442
Appendiæ A.
Segedi to testify that the District was instrumental in
securing payment for arrested District members.
The evidence showed that Segedi was aware of the
arrest of his friend, Gerald Filla, for dumping trucks
loaded with non-union coal. Filla advised Segedi that he
had been fined and Segedi sent him to Michael Encra-
pera, the Administrator of the CMLDF, and instructed
Encrapera to make a check payable to Anna Shriner to
cover Filla’s fine. Segedi admitted approving vouchers
to reimburse Filla for following coal trucks going to a
zinc works in Burlington; this is where Filla was ar-
rested. The proof was relevant to the relation between
the District and the CMLDF, which was used to pay
Filla’s fine at Segedi’s direction. It was also admissible
as ratification of specific acts of strike violence.
The Defendants contend that the Court erred in
admitting Plaintiff’s Exhibits 70 and 71. Plaintiff’s Ex-
hibit 71 is a letter, dated January 31, 1978, from the
General Counsel of the National Labor Relations Board,
John Irving, to Harrison Combs, General Counsel of the
International, alleging involvement of the International
Executive Board members, agents and employees in il-
legal activity at non-union mines. Sam Church, the Vice
President of the International, and the man in charge of
the day-to-day operations of the union, denied ever see-
ing this letter, but the authenticity of the letter had been
admitted and the only objection related to relevancy.
Clearly, the letter was relevant. Plaintiff’s Exhibit 70 was
also a letter, dated February 2, 1978, from Willard
Owens, Associate General Counsel of the International
to John Irving. Both of these letters related to the activi-
ties of the International and the International’s knowl-
edge with respect to activities being conducted against
45a
Appendi A.
non-union mines during the strike. Sam Church, as noted,
on behalf of the International, denied any such knowl-
edge, as had District President Anta! before him. At this
point, the Court ruled they were relevant to the deter-
mination of that issue. Since both bore direct relation-
ship to knowledge by the chief administrative officers of
each, these exhibits were used to impeach the credibility
of these assertions. Accordingly, the Court did not err in
admitting into evidence Plaintiff's Exhibits 70 and 71.
C. The Veon Coal Company Incident
Defendants allege error in permitting cross exam-
ination of Estel Taylor as to his knowledge of violence
at Veon Coal Company, a competitor of Kerry Coal. The
questioning was permitted after Vernon Kerry had testi-
fied that he had heard about violence at a competitor's
operation, to show his frame of mind concerning the
necessity of closing his own operations. (T.337) The
examination of Estel Taylor was not assuming the facts
of any violence, but was simply to show that he had
heard of this violence as well, so that it was not just a
figment of Vernon Kerry’s imagination, The Defendants
cannot possibly assert that admission of this evidence
was “to instill in the jury’s mind the fact that the equip-
ment at Veon was destroyed.” The evidence was rele-
vant to the testimony of Vernon Kerry, and the necessity
of the December work stoppage.
D. The International’s LM-2 Report
The International argues that it was error to admit
into evidence the International’s Labor Management
Year End Report which showed a contingency litigation
fund of $8,000,000. In the first place, the Report was ad-
mitted into evidence without objection (T.1938) and
46a
Appendia A.
cross examination of Sam Church with respect thereto
was done without objection. Furthermore, this fund was
established early in 1977, before the strike began and
was relevant to the relationship of the International to
the expected activities of its members.
E. The Testimony that Plaintiff’s Employees
were Afraid
Defendants have alleged that the Court erred in
overruling their objection to Vernon Kerry’s testimony
that his employees were afraid; counsel objected to testi-
mony as to the emotional or mental state of people that
were not at trial to testify. The contention is that there
was no exception to the hearsay rule which would permit
such testimony. However, Vernon Kerry was testifying
concerning his own observations of the physical and
mental condition of his employees, based upon his first-
hand knowledge of how they were acting. This is clearly
not hearsay. Sunderland v. Pittsburgh d Lake Erie Rail-
road, 344 F.2d 960, 961 (3rd Cir. 1965) (per curiam) ;
see also Cole v. United States, 327 F.2d 360, 361 (9th Cir.
1964). Thus, Vernon Kerry’s testimony was admissible.
F. The Court’s Participation in Interrogation
of Certain Witnesses
Under Fed. R. Evid. 614(b), “the Court may interro-
gate witnesses, whether called by itself or by a party.”
The Court assiduously throughout this lengthy trial,
covering 16 days and with a transcript of 2636 pages,
interjected questions where it considered that matters
were not clear to the jury. An examination of the record,
we believe, will indicate no such questioning as is claimed
by the Defendants, The objection was made in regard to
questions asked of Brian Short after he had testified he
47a
Appendix 4.
had not been subject to anyone’s direction in setting up
the picket line, particularly from the District or the
International. Earlier, the Court had understood Short
to say, and understood Estel Taylor to say, that there
was no question that the District, through Taylor, had
ordered the picket line to be set up, and that it had been
done directly at District President Antal’s request and at
Taylor’s direction, and that they had ordered Short to
do it. While Short was on the stand and subject to cross
examination of counsel for the International, and in the
context as above set forth, the Court asked the following
questions (T.1333-34) :
“Court: Let me just ask, didn’t you say that the
picket line was set up, the formal picket line, on
directions of Mr. Taylor. Wasn’t it Mr. Taylor
that determined that the picket line should go
up?
Witness: Yes sir,
Court: Well, who is Mr. Taylor associated with?
What was his position?
Witness: Are you asking me, your Honor?
Court: Surely. You are the one that is on the wit-
ness stand,
Witness: OK. He is the District Board Member, sir.
Court: Where?
Witness: At District 5.
Court: Alright.[sic]”
The following discussion then took place between
the Court and Counsel for the International (T.1334-35) :
48a
Appendiæ A.
“Counsel: I don’t understand, your Honor. I never
asked him whether anybody from District 5
ever told him to picket or not. I asked him about
an International representative or anybody
from the International telling him to picket.
Court: And you also said District 5.
Counsel: Oh no, not with regard to picketing. I
asked him with regard to—
Court: Well, the jury will recall the testimony. It
will be for the jury to remember what the testi-
mony was.”
These questions were certainly proper in every re-
spect. They were necessary to bring out matters which
were important and which had not been sufficiently
touched on by counsel. See United States v. Stirone, 311
F.2d 277, 279 (3rd Cir. 1962), cert. denied 372 U.S. 935,
83 S.Ct. 881, 9 L.Ed.2d 66 (1963) ; United States v. Os-
tendorff, 371 F.2d 729, 732 (4th Cir.), cert. denied 386
U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229 (1967). In addi-
tion, this was apparently an afterthought since it was
not brought to the Court’s attention until the next day,
which, by the express terms of Fed.R.Evid. 614(c), was
untimely.
G. Plaintiff’s Counsel’s Closing Arguments
Plaintiff’s counsel had stated “The Veon Coal Com-
pany, right next to the Kerry Coal Company, was hit
with violence on December 12. We closed down December
13. Short was at Veon. Taylor was at Veon. We have to—
then they destroyed Veon’s equipment and he tells you
there’s no causal relation between us closing on the 13th
and what went on at Veon.” (T.2560) It is true, as
49a
Appendix A.
Kerry’s counsel argues, that he did not say that either
Short or Taylor were at Veon when the equipment was
destroyed. Counsel merely stated they had been at Veon,
and this is borne out by the record. Taylor admitted he
was present at Veon during the strike (T.798, 1293,
1366) and admitted he was aware of violence at Veon.
The contention that the Plaintiff’s closing gave a wrong
impression is of no merit.
H. Defendants’ Objections to the Special
Interrogatories
The International and the District argue that the
Court erred in submitting special interrogatories 1, 2, 4,
5, 7, 8, 10 and 11 to the jury, in failing to require the jury
to identify with whom it was the Defendants’ object to
force the Plaintiff to cease doing business. Objection on
these grounds was only obscurely raised during the dis-
cussion on the points for charge and it need not be con-
sidered now. See C. Albert Sauter Co. v. Richard 8.
Sauter Co., supra. Thus, in Chuy v. Philadelphia Eagles
Football Club, supra, the defendant, in a motion for new
trial, argued that the special interrogatories were mis-
leading and contained improper and inadequate instruc-
tions. The court held that this issue was not before it
because specific objections to the interrogatories were
not properly made prior to their submission to the jury.
In any event, the objections to the instant inter-
rogatories are wholly without merit. Interrogatory 1,
set forth previously, focused on whether or not the Inter-
national induced or encouraged the employees of Kerry
Coal, or of the trucking companies, or of the railroad to
refuse to process, transport or handle Kerry coal. In
Interrogatory 2, the jury was asked to determine
50a
Appendix A.
whether the object of that conduct was to force Kerry
Coal to cease doing business, or the trucking companies,
or the railroad to cease transporting or handling Kerry
coal, Interrogatories 4 and 5 asked similar questions as
to the District.
The Defendants’ objection assumes that the jury
could have found that the Defendants forced Kerry Coal
to cease doing business without finding that it could have
been forced to cease doing business with any other per-
son. Particularly in light of the Court’s instructions
(T.2587-89), confusion could not possibly have resulted
and the Defendants’ objections are groundless.
In this regard, we consider Ashton and Short’s con-
tention that the answers of the jury to the special inter-
rogatories were so inconsistent as to require the grant-
ing of a new trial. This issue was raised for the first time
in the Defendants’ Amended Motion for Judgment Not-
withstanding the Verdict or for New Trial and need not
be considered. See Arkwright Mutual Insurance Co. v.
Philadelphia Electric Co., supra. The Defendants argue
that the jury’s answer to Special Interrogatory 16A is
inconsistent with the other answers. The Court had in-
structed the jury (T.2610-11) that the damages awarded
in Interrogatory 13 under Count I should not be added
with the damages awarded under Count IV, in order to
come up with the answer to Interrogatory 16, saying:
“What you must find is the compensatory damage due
under each one.” The Defendants assume that the 1.2
million dollars are for damages which could not be
awarded under Count I. However, the jury’s answers to
the Special Interrogatories do not support that assump-
tion. The Special Interrogatories did not request the jury
to specify the type of damages, nor did Defendants Ash-
5la
Appendix A.
ton and Short request such a breakdown. Their assump-
tion that the jury, by awarding the same amount under
Count I and Count IV, awarded damages for non-violent
activity under Count IV is wholly at odds with the jury’s
answers to Special Interrogatory 15, The Defendants
admit that the jury’s answers are susceptible to different
interpretations. There is a perfectly consistent interpre-
tation that may be given to the answers as hereinabove
set forth.
I. Defendants Ashton and Short’s Objection to
Plaintiff's Exhibit 197A
Defendants Ashton and Short have objected to the
admission of Plaintiff’s Exhibit 197A (referred to by
their counsel as P-196) , a bill submitted by their counsel
to the District’s CMLDF. Relevance is questioned as
Michael Encrapera, the Fund’s Administrator, had testi-
fied that the CMLDF did not consist of the District’s
money; furthermore, even if the District was the source
of the funds, the evidence would not be relevant. These
Defendants also object to the admission of the bill as
being highly prejudicial, confusing or misleading. See
Fed.R.Evid. 403.
District President Antal testified that he had re-
quested his longtime friend and United Mine Worker
Member, Michael Encrapera, to establish the CMLDF in
anticipation of the strike. Much of the money sent di-
rectly to the District’s Strike Fund and to the Interna-
tional was diverted to the CMLDF. Antal and other Dis-
trict Board Members on occasion asked Encrapera to
“take care of” various problems which were encountered.
It was thus for the jury to decide if the CMLDF was a
separate fund, or if it was a method used by the District
52a
Appendiæ A.
to take care of the criminal fines of its members who got
into trouble. The payment of Ashton and Short’s legal
fees by the District aided the jury’s understanding of the
relationship of the District to the violence, particularly
in light of the fact that the CMLDF was set up before
the strike even began.
At trial, counsel never objected to the bill on the
grounds set forth in Fed.R.Evid. 403, but asserted that
the bill was not relevant to the facts in issue and was
subject to an attorney-client privilege. (T.128, 130) The
Defendants chose not to press objection to a bill paid by
a third party on the grounds of attorney-client privilege,
nor could they. There was thus no error in admitting the
bill.
J. The Apportionment of Damages
Defendants Ashton and Short contend that the
Court erred in refusing to apportion damages among the
Defendants. This issue as such was first raised in De-
fendants’ Amended Motion and would not need to be
considered by the C irt. Arkwright Mutual Insurance
Co. v. Philadelphia Electric Co., supra.
Prior to the charge of the Court, the parties were
advised of the charge and Ashton and Short vaguely ob-
jected because of the potential for joint and several
liability; however they did not propose any points for
charge with respect to the apportionment of damages.
See Frankel v. Burke’s Excavating, Inc., 269 F.Supp.
1007 (E. D. Pa. 1967), aff’d 397 F.2d 167 (3rd Cir. 1968)
(holding that alleged defects in special interrogatories
could not be the basis for a new trial when counsel had
not pointed out the alleged defect to the court).
53a
Appendiz A.
In any event, under Section 433(b), Restatement 2d
of Torts, it is provided:
“(1) Except as stated in Subsections (2) and
(3), the burden of proof that the tortious conduct
of the defendant has caused the harm to the plain-
tiff is upon the plaintiff.
(2) Where the tortious conduct of two or
more actors has combined to bring about harm to
the plaintiff, and one or more of the actors seeks to
limit his liability on the ground that the harm is
capable of apportionment among them, the burden
of proof as to the apportionment is upon each such
actor.
(3) Where the conduct of two or more actors
is tortious and it is proved that harm has been
caused to the plaintiff by only one of them, but there
is uncertainty as to which one has caused it, the
burden is upon such actor to prove that he has not
caused the harm.”
Section 433(b) has been adopted in Pennsylvania. Som-
mers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974).
The jury apparently found that the Plaintiff had
established by clear proof participation in violent acts
by the Defendants Ashton and Short against Kerry Coal
which were a substantial factor in directly causing dam-
age. (Special Interrogatory 15) Defendants Ashton and
Short cannot now argue that the verdict against them
should be overturned because the damages were not ap-
portioned, when it was their burden to convince the jury
of the appropriateness of such apportionment and to
propose applicable jury instructions to the Court. This
they failed to do.
54a
Appendix A.
K. Plaintiff's Pendent Claims Against Ashton and Short
In their Amended Motion for Judgment Notwith-
standing the Verdict or New Trial, Defendants Ashton
and Short raised the ground that this Court abused its
discretion in exercising pendent jurisdiction over Plain-
tiff’s claims against them.
There was a substantial federal claim asserted
against the International and the District. The alleged
activities of the Individual Defendants, which formed
the basis of the pendent claim, were an integral part of
this substantial federal claim. Thus, consistent with
Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d
276 (1976) and UMW v. Gibbs, 383 U.S. 715, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966), we think the Court could
exercise pendent jurisdiction over the state claims
against the Individual Defendants arising out of a com-
mon nucleus of operative fact.
Furthermore, we think the Court properly exercised
its discretion in retaining jurisdiction over the pendent
state claims. Summary judgment was granted on the
Plaintiff's federal claims against Ashton and Short on
June 25, 1979, almost one and a half years after the filing
of the Plaintiff’s Complaint and just a couple of months
prior to trial. A review of the record clearly discloses
that Ashton and Short would have been called in this
action against the other Defendants, even if the Court
had dismissed the pendent claims against them. The
same facts would have been introduced into evidence and
in the interests of judicial economy and convenience, the
Court was warranted in exercising its pendent jurisdic-
tion. Trensok Pipeline Co. v. Darks, 565 F.2d 1150, 1154-
55 (10th Cir. 1977) cert. denied 435 U.S. 1006 (1978). See
also Boudreaux v. Puckett, 611 F.2d 1028 (5th Cir. 1980).
Appendiz A.
VIII. CONCLUSION
The Court has reviewed the Motions for Judgment
Notwithstanding the Verdict and has concluded that the
evidence was sufficient for the jury to reasonably find,
without resort to prejudice or guess, that illegal picket-
ing and violence in the coal fields in Western Pennsyl-
vania was brought about by the International and the
District, participated in by officials acting within the
scope of their employment, and by the Individual De-
fendants as determined by the jury. Therefore, the Mo-
tions for Judgment Notwithstanding the Verdict will be
denied.
We have also examined the Motions for New Trial
alleging that the verdict was against the evidence, and
in particular have concluded that the jury’s verdict was
not only permissible under the evidence, but was strong-
ly indicated thereby. In other words, there was no
seriously erroneous result when leaving to the jury the
determination of the credibility of the testimony, what
testimony was to be believed, and the inferences that it
56a
Appendix A.
should chose [sic] to deduce therefrom. Thus, the Mo-
tions of all Defendants for New Trial will be denied.
An appropriate Order will be entered.
DANIEL J. SNYDER, JR.
United States District Judge
Dated: March 25, 1980
ec: JOHN ELLIorr, Esq. and WILLIAM MILLER, Esq.
DILWORTH, PAXSON, KALISH, LEVY & COLEMAN
2600 Fidelity Bank Building
Philadelphia, Penna. 19109
LLOYD ENGLE, IR., Eso. and PAUL PusKAR, Esq.
KUHN, ENGLE & STEIN
1512 Frick Building
Pittsburgh, Penna. 15219
MELVIN VATZ, Esq.
728 Fifth Avenue
Pittsburgh, Penna. 15219
57a
Appendiæ B.
Appendix B
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KERRY COAL COMPANY, )
Plaintiff
V
UNITED MINE WORKERS OF AMERICA,
DisTRIcT No. 5 OF THE UNITED MINE Civil Action
WORKERS OF AMERICA, JERRY ASHTON, No
ESTEL TAYLOR, JAMES BEACHEM, BRIAN 78-108
SHORT, JOHN DoE, RICHARD ROE, and
all others acting in concert with them
or otherwise participating with them
or acting on their behalf,
Defendants |
TS
Order
AND Now, to-wit, this 25th day of March, 1980,
after hearing and due consideration of the briefs and
arguments of counsel, and for the reasons set forth in
the accompanying Opinion.
Ir Is ORDERED, ADJUDGED AND DECREED that the Mo-
tions of All Defendants for Judgment Notwithstanding
the Verdict and/or for New Trial be and the same are
hereby denied.
DANIEL J. SNYDER, JR.
United States District Judge
ec: JOHN ELLIOTT, Esq. and WILLIAM MILLER, Esq.
LLOYD ENGLE, Esq. and PAUL PuskAR, Esq.
MELVIN VATZ, Esq.
Appendix C.
Appendix C
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 80-1733/4/5/6
KERRY COAL COMPANY,
v.
UNITED MINE WORKERS OF AMERICA, ARNOLD
MILLER, DISTRICT #5 of the United Mine Work-
ers of America, LOUIS A. ANTAL, JERRY
ASHTON, ESTEL TAYLOR, JAMES BEACHEM,
BRIAN SHORT, JOHN DOE, RICHARD ROE, and
all others acting in concert or otherwise participat-
ing with them or acting in their aid or behalf,
United Mine Workers of America,
Appellant in No. 80-1733
Estel Taylor,
Appellant in No. 80-1734
District 5, United Mine Workers of America,
Appellant in No. 80-1735
Jerry (Gary) Ashton, Brian Short, et al.
Appellants in No. 80-1736
(D.C. Civil No. 78-0108)
On APPEAL IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Argued October 14, 1980
Before: GIBBONS, ROSENN, Circuit Judges and
HANNUM* District Judge
(Opinion Filed January 8, 1981)
*Honorable John B. Hannum, United States District
Judge for the Eastern District of Pennsylvania, sitting
by designation.
Appendix C.
Harrison Combs, Esquire
General Counsel
United Mine Workers of America,
900 Fifteenth Street, N.W.
Washington, D.C. 20005
Lloyd F. Engle, Jr., Esquire (Argued)
Paul M. Puskar, Esquire
Kuhn, Engle & Stein
1512 Frick Building
Pittsburgh, Pennsylvania 15219
Attorneys for United Mine Workers
of America, Estel Taylor, District 5,
United Mine Workers of America,
Appellants in Nos. 80-1733/4/5
Melvin L. Vatz, Esquire ( Argued)
728 Fifth Avenue
Pittsburgh, Pennsylvania 15219
Attorney for Jerry (Gary)
Ashton and Brian Short,
Appellants in No. 80-1735
John M. Elliott, Esquire (Argued)
Stephen C. Braverman, Esquire
Henry F. Siedzikowski, Esquire
Dilworth, Paxson, Kalish & Levy
2600 The Fidelity Building
Philadelphia, Pennsylvania 19109
Attorneys for Kerry Coal Company
Appendia O.
Opinion of the Court
Grssons, Circuit Judge.
This is an appeal from an order denying defendants’
motions for judgment notwithstanding the verdict or for
a new trial. The successful plaintiff is Kerry Coal Com-
pany (Kerry Coal), a non-union coal producer. The de-
fendants against which verdicts were returned are the
United Mine Workers of America (the International),
District No. 5 of the United Mine Workers of America
(District 5), Estel Taylor, Brian Short, and Jerry Ash-
ton. The trial court, using special verdict interroga-
tories, submitted three counts of a six count amended
complaint to the jury. One of those counts, seeking puni-
tive damages, resulted in a verdict for the defendants,
and is not before us. On Count I, in which Kerry Coal
sought damages pursuant to section 303 of the Labor
Management Relations Act of 1947 for violations of sec-
tion 8(b) (4) of that Act, the jury returned a verdict of
$1,200,000 against the International and District 5.1 On
1. Section 303 provides:
(a) It shall be unlawful, for the purpose of
this section only, in an industry or activity affect-
ing commerce, for any labor organization to engage
in any activity or conduct defined as an unfair labor
ractice in section 8(b) (4) of the National Labor
lations Act, as amended.
(b) Whoever shall be injured in his business
or property by reason of any violation of subsection
(ay may sue therefor in any district court of the
United States subject to the limitations and provi-
sions of section 301 hereof without respect to the
amount in controversy, or in any other court having
jurisdiction of the parties, and shall recover the
damages by him sustained and the cost of the suit.
29 U.S.C, §187 (1976).
61a
Appendix C.
Count IV, in which Kerry Coal sought damages under
Pennsylvania law for interference with its business and
contractual relationships, the jury returned a verdict in
the same amount against the International, District 5,
Taylor, Short, and Ashton. The district court refused to
set these verdicts aside. We affirm.
Footnote (continued)
Section 8(b) (4) provides:
(b) It shall be an unfair labor practice for a
labor organization or its agents—
(4) (i) to engage in, or to induce or en-
courage any individual employed by any per-
son engaged in commerce or in an industry af-
fecting commerce to engage in, a strike or a
refusal in the course of his employment to use,
manufacture, process, transport, or otherwise
handle or work on any s, articles, mate-
rials, or commodities or to perform any serv-
ices; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry
affecting commerce, where in either case an
object thereof is—
(A) forcing or requiring any em-
r or self-employed — to join any
abor or employer organization or to enter
into any agreement which is prohibited by
subsection (e) of this section:
(B) forcing or requiring any person
to cease using, selling, handling, transport-
ing, or otherwise dealing in the products
of any other producer, processor, or manu-
facturer, or to cease doing business with
any other person, or forcing or requiring
— Apgar employer to recognize or bargain
with a labor — as the representa -
tive of his employees unless such labor or-
ganization has been certified as the repre-
sentative of such employees under the pro-
visions of section 159 of this title: Pro-
62a
Appendix C.
I.
The Facts
Between December 6, 1977 and March 27, 1978 the
International District 5, and the other local unions of
the United Mine Workers engaged in an economic strike
against members of the Bituminous Coal Operators’ As-
sociation, with whom they had a collective bargaining
Footnote (continued)
vided, That nothing contained in this
clause (B) shall be construed to make un-
lawful, where not otherwise unlawful, any
primary strike or primary picketing:
(C) forcing or requiring any em-
ployer to recognize or bargain with a par-
ticular labor organization as the represent-
ative of his employees if another labor or-
ganization has been certified as the repre-
sentative of such employees under the pro-
visions of section 159 of this title;
(D) forcing or 9 any em-
ployer to assign particular work to em-
ployees in a particular labor organization
or in a cular trade, craft, or class
rather than to employees in another labor
organization or in another trade, craft, or
class, unless such employer is failing to
conform to an order or certification of the
Board determining the bargaining repre-
— for employees performing such
work:
Provided, That nothing contained in this sub-
section shall be construed to make unlawful a
refusal by any person to enter upon the prem-
ises of any employer (other than his own em-
ployer), if the employees of such employer are
engaged in a strike ratified or approved by a
representative of such employees whom such
employer is required to recognize under this
subchapter;
63a
Appendix C.
relationship. Kerry Coal, a coal producer whose facilities
are located in the region for which District 5 has organi-
zational responsibility, has never had such a bargaining
relationship. During a part of the national bituminous
coal strike Kerry Coal’s facilities were closed down, and
at one point partially destroyed. In this lawsuit Kerry
Coal seeks to recover for the resulting damage to its
business. Viewing all the evidence, and inferences drawn
therefrom, in the light most favorable to Kerry Coal,
the party with the verdict,2 the jury could have found
on liability as set out hereafter.
In November, 1977, prior to the commencement of
its economic strike against those operators with which
Footnote (continued)
Provided further, That for the purposes of this
paragraph (4) only, nothing contained in such
—— shall be construed to prohibit pub-
city, other than picketing, for the purpose of
truthfully advising the public, including con-
sumers and members of a labor organization,
that a product or — are produced by an
employer with whom the labor organization
has a primary dispute and are distributed by
another employer, as long as such publicit
does not have an effect of inducing any individ-
ual employed by any person other than the pri-
mary employer in the course of his employment
to refuse to pick up, deliver, or transport any
goods, or not to perform any services, at the
establishment of the employer engaged in such
distribution;
. . . 29 U.S. C. §158(b) (1) (1976).
2. E. g., Chuy v. Philadelphia Eagles Football Club,
595 F. 2d 1265, 3 (3d Cir. 1979) (en banc), citin
Kademenos v. Equitable Life Assurance Society, 51
F.2d 1073, 1074 (3d Cir. 1975).
64a
Appendix C.
it had a bargaining relationship, District 5 wrote to all
other coal operators in its region, charging them with
failure to meet area wage and benefit standards. These
letters were sent without any knowledge of the actual
wages and benefits paid by the non-union operators.
Also in November, the District 5 president asked the
International to send an International organizer to “sur-
vey” the non-union mines in the area. There was never,
however, during the strike any attempt to organize
Kerry Coal, or, so far as the record discloses, any other
non-union coal operator in District 5’s region. Two In-
ternational organizers were sent to the area in Novem-
ber, one of them being Jay Kolenc. Kolenc, the second
highest paid official of the International, was instructed
by the International to stay on “present assignment,”
and remained in the District 5 region until January 21,
1978. While he was in the District 5 region Kolenc was
paid a salary by the International which also reimbursed
him for expenses incurred there. Vouchers for those ex-
penses disclose that he and Thomas Pysell, former Inter-
national Director of Organizing, appeared at non-union
mines, and that he met frequently with District 5 Board
members.
On November 30, 1977 the Executive Board of Dis-
trict 5 met and formally decided to conduct what it re-
ferred to as “informational” picketing at non-union min-
ing operations during the anticipated strike. The Board
authorized payment from District 5 funds to compensate
picketers. Vouchers for such payments contained nota-
tions such as “made check on these strips in afternoon
after having pickets shut them down” (App. at 1970)
and “shut down trucking cos.” (App. at 1966), from
which the jury could reasonably infer that the picketing
was not intended as area standards informational picket-
65a
Appendia C.
ing, but was for the purpose of interrupting production
at the non-union mines. District 5 had a caravan of 16
roving pickets in the vicinity of Kerry Coal’s operations.
There was situs picketing at Abrosia Coal Company and
Veon Coal Company, non-union operations near Kerry
Coal, in early December. Having learned that the picket-
ing at Veon Coal Company was accompanied by violence,
Kerry Coal shut down its operations between December
13 and 20, 1977, but then resumed production.
On December 27, 1977 Vernon Kerry, president of
the plaintiff, was threatened by defendant Ashton, and
by a United Mine Workers member, Beachem, that if he
did not shut down, they would bring 200 men to wreck
his equipment, Beachem adding, We can do this with
one phone call.” Ashton, who lived nearby, began situs
picketing at Kerry Coal’s railroad siding with a sign
saying “UMW ON STRIKE— NO CONTRACT — NO
WORK”. For the picketing he was paid by District 5.
Ashton also called UMW local president Lytle to ask for,
and was promised, help. After this phone conversation
Ashton, Beachem, and Lytle met with Kolenc. Between
January 5 and 9 picketing at the rail siding was carried
on 24 hours a day. The result was that trains coming to
pick up coal did not violate the picket line, and left
empty.
International organizer Kolenc was an encouraging
presence at the picket lines at Kerry Coal’s place of busi-
ness on several occasions between January 5 and 9,
when pickets threatened Kerry Coal’s employees. More-
over, late in December Kolenc had arranged to put Ash-
ton in touch with Taylor, the District 5 Board member
in charge of the sub-district where Kerry Coal was
located. Kolenc advised Ashton that he needed instruc-
66a
Appendix C.
tions about the picketing, and that someone would de-
liver them. At a later meeting among Ashton, Taylor,
and Short, a past local president, Tayor asked Ashton to
“scout” the Kerry Coal operation. Ashton did so, and
Kolenc accompanied Ashton on the scouting trip. Ash-
ton reported back to Taylor and Short that Kerry Coal
was still operating, and a decision was made to insti-
tute 24 hour picketing. Kolenc was present at the meet-
ings at which this decision was made and steps taken
to implement it.
Short, who owned a Ram Charger vehicle, was ob-
served by Vernon Kerry on the Kerry Coal property
near the gas pumps. On this occasion Short threatened
physical violence if Kerry Coal did not shut down its
operations. During the picketing, roofing nails were
strewn across the entrance to Kerry Coal’s site, and the
picketing was accompanied by intimidating gestures
toward Kerry’s truckers and employees.
On January 20, 1978, Taylor, Short, and two other
union members drove past Kerry Coal’s site and con-
cluded that the company was still working. They then
drove to Beaver Falls where they had a breakfast meet-
ing with Kolenc. District 5 paid Short’s and Taylor’s ex-
penses for the trip. Kolenc abruptly left Pennsylvania
the next day. On January 22, 1978, between 3:00 a.m.
and 8:00 a.m., extensive damage was done to Kerry
Coal’s equipment at its loading area. Vernon Kerry,
arriving at the scene, observed in the newly fallen snow
tire marks which he identified as having been made by
Short’s Ram Charger. He went in search of Short, en-
countering him in Library, Pennsylvania, where he
accused Short of having been “seen last night.” Short’s
only reply was, “I don’t think so.” Short then replaced
67a
Appendix C.
a virtually new set of tires on the Ram Charger. On
January 26, after learning what Vernon Kerry had said
to Short about someone having been seen wrecking the
equipment, Taylor traveled to the area and made in-
quiries as to possible witnesses.
On January 25, 1978, twelve carloads of UMW pick-
ets arrived at Kerry’s coal tipple, and, standing shoulder
to shoulder, completely blocked access to the premises.
Vernon Kerry called the state police, but before their
arrival two picketers, identifying themselves as United
Mine Workers members, came into his office and told
him to stop shipping industrial or electrical utility coal
for the duration of the strike. Within five minutes an
additional caravan of 80 cars cruised past the Kerry
Coal site. Vernon Kerry, frightened, agreed to stop
shipping industrial and electrical utility coal. When the
police arrived the pickets had left, but the police told
Vernon Kerry to get his men out of there, since they
could not be protected if the caravan returned.
During the course of the strike coal trucks hauling
Kerry coal were frequently followed and the drivers
harassed. At one regular Kerry Coal customer, St. Joe
Mineral Company, pickets threw rocks, damaging the
trucks. After the delivery was completed, pickets
swarmed at the St. Joe plant gates. Vernon Kerry,
his drivers, and his trucks finally escaped under police
escort. This delivery, on February 27, 1978, was the last
requested by St. Joe for the duration of the strike. Dis-
trict 5 vouchers show payments to pickets at the St. Joe
plant.
District 5 used its funds for the creation of a legal
defense fund to be available to members such as Ash-
68a
Appendix C.
ton, Taylor, and Short for legal problems resulting from
activity they might engage in during the strike.
The defendants offered evidence which would argu-
ably support factual inferences more favorable to them.
We emphasize that the foregoing summary is what the
jury could, from the evidence, have found.
II.
THE 58 (b) (4) CHARGE
Both the International and District 5 contend that
they are entitled to a judgment notwithstanding the
verdict on the 58 (b) (4) charge. Neither urges that the
picketing, harassment of employees, or destruction of
equipment which the jury could have found was lawful
protected activity. It is clear that the activity com-
plained of was not primary; that is, that it was aimed
at preventing the railroads from handling Kerry coal,
and at preventing Kerry from selling coal to industrial
and electrical utility customers. Rather, both the In-
ternational and District 5 contend that, assuming the
threats, coercions and restraints occurred, they were
not responsible.
Section 301(b) of the Labor Management Relations
Act, 29 U.S.C. $185(b), provides that labor organiza-
tions shall be bound by the acts of their agents. More-
over “the question of whether the specific acts per-
formed were actually authorized or subsequently rati-
fied shall not be controlling.” 29 U.S.C. §185(e). The
issue, as to both the International and District 5, is
whether mindful of the agency principles referred to
in section 301, a jury could find that they should be
held liable. A separate analysis must be made for each.
69a
Appendiz C.
Carbon Fuel Co. v. UMW, 444 U.S. 212 (1979).
A. District 5
Before the strike began, District 5 sent letters to
the non-union operators complaining of violations of
area standards. A jury could find that these were pre-
texts for later picketing. District 5 authorized such
picketing on November 30, 1977. The Executive Board
of District 5 was intimately involved in the secondary
activity directed against Kerry Coal. It is undisputed
that Taylor, an Executive Board member, had authority
to conduct picketing operations on behalf of the District,
to approve and submit vouchers for picket travel and
meal allowances, and to see to their payment. It is un-
disputed that Taylor authorized the establishment of a
picket line at Kerry Coal between January 5 and 9, 1978,
and that the District paid the pickets. Moreover, the Dis-
trict paid Ashton for earlier picketing, and paid Taylor
and Short for the expenses incurred in their scouting ex-
pedition on January 20, 1978, a short time before Kerry
Coal’s equipment was sabotaged. There is, besides, the
evidence of massive concert of action by stationary and
roving pickets in the region of District 5’s responsibility,
and of similar concert of action by stationary pickets at
the place of business of a Kerry Coal customer. There is
ample evidence of meetings among officials of District 5
at which the picketing of Kerry Coal was discussed and
set in motion. Short of a certified copy of a resolution. by
the full membership of District 5, it would be difficult to
imagine evidence more strongly suggesting that Ash-
ton, Short, and Taylor were acting as agents for District
5, carrying out its decision to engage in secondary
activity directed at Kerry Coal. There was ample evi-
dence justifying the submission of the agency issue to
70a
Appendix C.
the jury, and a judgment notwithstanding the verdict
would be clearly improper.
District 5 also urges that because no Kerry Coal
employees actually stopped working and no Kerry Coal
customers actually ceased doing business with it, no
section 8(b) (4) violation was shown. That contention
flies in the face of the record evidence supporting the
jury’s award of damages, discussed hereafter. But more
significantly, it is irrelevant. There is ample evidence
of secondary coercive activity, and it is such activity
that section 8(b) (4) proscribes.
B. The International
Liability of the International for the section
8(b) (4) violation depends upon the jury’s assessment
of the role of Kolenc. Relying on Carbon Fuel Co. v.
UMW, 444 U.S. 212 (1979), the International urges that
it cannot be held responsible for the acts of Ashton,
Taylor, Short, or the other pickets absent evidence that
it “instigated, supported, ratified, or encouraged” the
picketing activities. That is undoubtedly the correct
legal standard for measuring the International’s lia-
bility. But when considering the propriety of a judg-
ment notwithstanding the verdict, our task is to
determine whether, considering all the evidence, a ra-
tional factfinder could infer such instigation, support,
ratification, or encouragement. The task can be broken
down further by asking (1) could the jury find that
Kolenc instigated, supported, ratified, or encouraged
the activity complained of, and (2) if so, was he acting
for the International?
The answer to the first question is simple. Kolenc
could be found to be not only an active participant, but
71a
Appendiæ C.
one of the prime movers in the activity directed against
Kerry Coal. Kolenc put Ashton in touch with Taylor,
scouted the Kerry Coal operation with Ashton, at-
tended the meetings of District 5 officials at which the
decision to picket Kerry Coal, and the implementation
of that decision, were discussed, was present at the
Kerry Coal site during the picketing, met with Taylor
and Short after their January 20, 1978 scouting expedi-
tion, and left the area shortly after that meeting and
immediately before Kerry Coal’s equipment was van-
dalized.
But was Kolenc, while involved quite directly in the
secondary activity against Kerry Coal, acting as an
agent for the International? In November, about the
same time District 5 was making the decision to engage
in picketing of the non-union coal operators, its presi-
dent asked the president of the International to send
an organizer to “survey” those operators. The Interna-
tional sent Kolenc, its second highest paid official. The
International suggests that the “survey” was for the in-
nocent purpose of determining whether the non-union
operators were doing a sufficiently large volume of busi-
ness to be able to pay UMW standard wages and benefits.
The jury did not have to credit this explanation, how-
ever, especially in the absence of any evidence of organi-
zational activity in the District 5 region during the
strike. The only evidence with respect to Kolene's activ-
ity was that relating to his participation in the secon-
dary activity directed against Kerry Coal. The Interna-
tional paid his salary during the time he was in the Dis-
trict 5 region, and paid his expense vouchers for travel-
ing to the Kerry Coal situs. No organizational effort was
made there. There is no record evidence that in the criti-
cal time period Kolenc submitted vouchers for organiza-
72a
Appendix C.
tional as distinct from secondary picketing activity.
Finally, it can reasonably be inferred, and undoubtedly
was, that the International and District 5 shared a com-
mon economic interest in interruption of the flow of
non-union industrial and electrical utility coal while
the strike continued.
While the evidence of Kolenc’s status as an agent
of the International is not as overwhelming as is that
of the status of Ashton, Taylor, and Short as agents of
District 5, we conclude that there was enough to go to
the jury. From the collection of circumstances outlined
above a reasonable factfinder could infer that the presi-
dent of the International sent Kolenc to District 5 not
for an organizational purpose, but in order to assist that
district in interrupting the flow of non-union coal during
the impending strike, and that Kolenc had authority to
support and encourage, if not facilitate, Ashton’s, Tay-
lor’s, and Short’s actions against Kerry Coal. On this
record a jury, one supposes, could have concluded that
Kolenc was off on a frolic of his own. The jury did not
do so, and it was not compelled to do so. The Interna-
tional’s motion for judgment notwithstanding the ver-
dict on the section 8(b) (4) claims was properly denied.
III.
THE PENNSYLVANIA INTERFERENCE CHARGE
The International, District 5, and the three individ-
ual appellants, Ashton, Taylor, and Short, all contend
that the court erred in failing to grant a judgment not-
withstanding the verdict on Kerry Coal’s Pennsylvania
law claim of intentional interference with contractual re-
lationships. Pennsylvania has adopted the standard of
73a
Appendix C.
the Restatement (Second) of Torts $766.3 See Franklin
Music Co. v. American Broadcasting Cos., 616 F.2d 528
(3d Cir. 1979); Adler, Barish, Daniels, Levin and
Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978).
The parties agree that in pursuing such a state law
claim against members of a labor organization, the
“clear proof” standard of proof of section 6 of the Nor-
ris-LaGuardia Act, 29 U.S.C. §106, applies. UMW v.
Gibbs, 383 U.S. 715 (1966). The court instructed the jury
that it must find by clear proof actual participation or
actual authorization of violent acts. Thus the case comes
before us in the posture that the jury was satisfied there
was clear proof of such tortious interference. Once the
jury has been properly charged as to the governing
standard of proof, our role in assessing the propriety
of a judgment notwithstanding the verdict is no differ-
ent in such a case than in any other.
Our conclusion that the liability verdict against the
International and District 5 for the section 8(b) (4)
claim must stand makes any discussion of the tortious
interference verdict against those defendants somewhat
of an academic exercise. But since further review is at
least possible, we note that the same evidence which sus-
tains the verdict on the section 8(b)'(4) claim sustains
that based on Pennsylvania law. There was evidence of
threats and intimidation against Kerry Coal’s work-
3. The Restatement (Second) of Torts provides:
One who intentionally and improperly interferes
with the performance of a contract (except a con-
tract to marry) becween another and a third person
by inducing or otherwise causing the third person
not to perform the contract, is subject to liability to
the other for the pecuniary loss resulting to the
other from the failure of the third person to per-
form the contract.
Restatement (Second) of Torts §766.
74a
Appendix C.
force, and of violence to its equipment, directed at pre-
venting Kerry Coal from fulfilling its contractual ob-
ligations to its customers. There was also evidence of
similar intimidation and violence directed at Kerry
Coal’s truckers and at least one of its customers, St. Joe
Mineral Company. The state law claim against the In-
ternational and District 5 arose, moreover, out of the
same operative facts as did the section 8 (b) (4) claim.
UMW v. Gibbs, 383 U.S. 715, 725 (1966). Thus the mo-
tion by these defendants for judgment notwithstanding
the verdict on the tortious interference claim was prop-
erly denied.
The contentions of the individual defendants re-
quire a somewhat more specific treatment. They, too,
urge that the evidence against them was insufficient as
a matter of law. Extended discussion of that contention
need not detain us. The jury could have found that Ash-
ton, Taylor, and Short acted in concert and separately
to interfere with Kerry Coal’s delivery of coal.
Ashton, Taylor, and Short also contend, however,
that the district court lacked subject matter jurisdiction
of the state law claim asserted against them. They quite
correctly point out that, as individual union members,
they were not proper defendants in the section 303(b)
suit against the International and District 5. Atkinson v.
Sinclair Refining Co., 370 U.S. 238 (1962). Since this
was so, even though the state law claim arose out of the
same operative facts as that for which section 303 con-
ferred jurisdiction, they are, so they urge, at best pend-
ent parties as to whom there exists no independent basis
for federal jurisdiction. See Aldinger v. Howard, 427
US. 1 (1976).
75a
Appendix C.
The conclusion that section 303(b) jurisdiction is
insufficient, absent some other federal question jurisdic-
tion, to sustain a pendent state law claim against individ-
ual union members may be sound. The premise, however,
that there was no other basis for federal question juris-
diction against the individual defendants is on this rec-
ord unsound. Kerry Coal also pleaded a non-frivolous
federal claim against the individual defendants under
42 U.S.C. 51985 as well as a federal claim that the in-
dividuals were as a matter of federal common law liable
for exemplary and punitive damages for wanton and
willful violations of section 8 (b) (4). These claims
against the defendants were of “sufficient substance to
confer subject matter jurisdiction on the court.” Len-
tino v. Fringe Employee Plans, Inc., 611 F.2d 474, 478
(3d Cir. 1979). See also Gagliardi v. Flint, 564 F.2d 112
(3d Cir. 1977). Shortly before trial these claims against
the individual defendants were dismissed on motion.
The dismissal was not, however, final. The “‘[c]onstitu-
tional power to adjudicate a pendent claim is ordinarily
to be determined by reference to the pleadings, not on
the facts as they may eventually be established.” Len-
tino v. Fringe Employee Plans, Inc., supra, at 478, citing
Elberti uv. Kunsman, 376 F.2d 567, 568 (3d Cir. 1967).
See also UMW v. Gibbs, 383 U.S. at 727.
Had the trial court, when it dismissed the federal
law claims against the individual defendants, been pre-
sented with a motion for dismissal of the pendent state
law claim against them, we suppose that such a dismiss-
al would have been a permissible exercise of that court’s
discretion. No such motion was made. Instead the indi-
vidual defendants gambled on trying the state law claim
to a federal jury, and only long after the verdict raised
the objection that it should have been dismissed in an
76a
Appendix C.
amended motion for a judgment notwithstanding the
verdict. In such circumstances we cannot say that refu
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