Appendix — United Mine Workers of America v. Gibbs

Supreme Court brief1966

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TABLE OF CONTENTS OF APPENDIX.

Page

i Ga elas deb s'es a kao eee hg eek oe to la

SIL, de neuwnneendneecded earned Cheon deee EN 10a

Answer to original complaint .................... lia

Plaintiff’s answers to interrogatories .............. 17a

ee ee 20a

Motion to dismiss by defendant .................. 23a

Order amending complaint, Paragraph IX ......... 23a

Opinion on motion to dismiss .................... 24a

Order amending complaint, Paragraph X .......... 30a

ED Sinha biG a owe h eh ede Abe kee heen ceaa a 3la

Motion of United Mine Workers of America for judg-

ment in accordance with motion for directed verdict

or, in the alternative, motion for a new trial ...... 34a,

Judgment, November 27, 1962 .............2.-.00. 4la

Cesta eu twokh ack h knw hn bud ves Cake ween 42a

pa ee ee ee rer 59a

Consent to vedues verdict .........cecscvccsscivss 6la

Order correcting clerical error in judgment ........ 6la

Notice of appeal by defendant .................... 62a

Notice of appeal by plaintiff ..................... 63a

Summary of proceedings in chambers ..... PD Sr 63a

Hearing in chambers, November 13, 1962 .......... 67a

Proceedings in the District Court ................. 88a

i ane tere cri a eae ae eg ede saan 88a

EEE OEE EEE EE ETE TEE OT EE 88a

sai

CO ORSES

eae

Witnesses for the Plaintiff.

Paul Gibbs—

aoc ah ay po peedenedcaeeewes 88a

I on nog wahaneree eae ue 136a

ee a: 148a

John D. Cain, Jr.—

Ce i venvvekd sees xabe nies 150a

Paul Gibbs (Recalled)—

ee cys ieck bas seas unxbeaneaben 155a

William Clyde MecClain—

SPOR GUNIIIOD nn cece cee nceevewccssine 158a

Samuel W. Swope—

SN. gos cana cue eke rndssedere ews 159a

I ON ago sins ow yb & cn ce de 6 ¥ 8 bus l6la

I ook awe kas ce oendwen 162a

I MII oo od cco se ow wand aeee abies 162a

Clyde Meeks—

ce ewe Cewcekewekas 162a

ee 170a

Ardin Clint Forsyth—

n - e o e ewawlaw eae 170a

ea a a hao wae kaw a weed 175a

Willie Carl Fults—

Pipes GIO go gc ce cece ve nsdacvcvcucss 175a

CRE 4g kk vi ove nnd ascveediveens 179a

Alfred David Anderson—

i A Oe pekbu Nene sua rhe 179a

EE SS SFL OEE EEE OPE OEE POON 183a

Dempsey Campbell—

SR Oo. co aweubu saw wma ean 184a

re ct ber wanes Neaene yes 185a

iil

Desmer Church—

ey I a cs weld maen ode vues 186a

A a eS ee ee 189a

George Ramsey—

ey ee ew eae ue es 190a

Houston Beaumont—

TP ee eat 193a

a a ne ae 207a

BE IOS, ok vk sv vow cu'een eee ecdecnun 214a

John Higgins—

EO er om: 216a

PRT Fe a te 221a

Howard Higgins—

Sa ee ae 22° a

FOO 224a

Paul B. Callis—

Sy es ae eee 225a

es ule Walad bela ck wewes 235a

William B. Allison—

Bewet @meeBTIOR jj... ccc ccc cecccoccecess 246a

FFE OEE SO 252a

Jim Campbell—

I 20 en ee ea ee 256a

CIEE. gos cc one veer vctuvenvevecvee 258a

Paul Gibbs (Recalled)—

cig dada eee 259a

ne ieuses enue 266a

a 275a

TROOWOOU-ORGUNIMOTIOR gn ok soc ccc cececccecccers 277a

John E. Marshall—

EA ROR SI ee NN ae 279a

EI a Raa TER Pe oe he 0 282a

‘*

C. H. Kilby—

ee E.'s so Ch ceaaanee dueseuaee 283a

Co. canes ts eeee vaeuwens 287a

Defendant’s motion to dismiss at the close of plain-

re SE os sr seced eee nies Reena Saee ee eres 2934

Defendant’s motion to dismiss overruled .......... 294a

Witnesses for the Defendant.

Albert Pass—

a a Snke va ba waene 294a

NS SSS POF EPET TEEPE RE COOOL Se 307a

ee Ns eno dake ee en eee weeks 317a

i 2s... sb g haven neweebea on 320a

ee ds vere eer icrecee hands 324a

IE be icine sce raewes cee daeee 324a

George Gilbert—

ee en cand dd eueetweakeca 325a

ee eons ound 340a

sei micermiel aenlee 348a

William Jennings Bryan Parmlee—

Oa ie Fo en se lea 348a

RE SSS LONEE OTE TEE OO EOE 353a

a A 355a

Howard C. Human—

i fc d aia 5 ad aa See eee 355a

0 SE ESI per rere ASIP OPEN 366a

os ne wo Wed cup waa a mene 376a

ee L -. v wnk se eee ed eeeev ewes 379a

H. D. Ross—

i rN SG a dea ob bdo Bae OOH 38la

ET ed nr ee ene eer 387a

Clarence MeGovern—

SEE OEE EP MAP 391a

OE SEO POE EEO EE OE 406!

— |

Vv 3

Louis Tate—

EEE Pena Ht PE a Meee 4l4a 3

rE og ss dick ons cobb nce be deeheeds 426a

Harvey Brown—

Be ho Con Ciel va Sevuusfeee ne 428a

Te ee OREN ERD apse: 435a

Robbie Vance—

re: Wn io ck knicks decrensdenncewes 436a

CII oboe Swcbre Seka Ucecewsaias 446a

John R. Conry--

So IN 7 5 po kop kk pee ce ce oe 449a

sc as eaveron eke 452a

TEOIIOOE COIIRETION ... 5 5 oc vice cencwccccnecess 453a

Walter Schrum—

ee I i a hed bwcdedaaedas 455a

en he oe al 464a

William J. Turnblazer—

Se MIE 3 Sh nh bcxd sce cesebeedesaxeed 47la

I as psa cd kines neue aaborees 475a

oF: 478a

III ig 0a G5 'au es ben ee BAR 479a

Portion of Deposition by Mr. Gibbs .............. 479a

ee ee rn oD 48la

Charge of the Court to the jury ................... 493a

Hearing in chambers, November 14, 1962 .......... 51l6a

OY 3. ss i cca SGeilavaecincasenbeneeben wanes 52la

Plaintiff’s Exhibits.

2—National Bituminous Coal Wage Agreement of

1950 as amended, effective December 1, 1958 .... T2a

3—Photograph OE SP Soe Pet re yr oe (Da

re,

SCV aia eee Bt

15—Portion of 1956 Income Tax Return .......... 76a

16—Portion of 1957 Income Tax Return .......... 77a

17—Portion of 1958 Income Tax Return .......... 78a

18—Portion of 1959 Income Tax Return .......... 79a

19—Portion of 1960 Income Tax Return .......... 80a

290—Portion of 1961 Income Tax Return .......... 8la

30—Letter dated January 12, 1960 to United Mine

Workers from Tennessee Consolidated Coal Co... 82a

31—Letter to District 19, UMWA, dated January 14,

1960, signed, W. A. Boyle ............-+--eeeeee 83a

Stuf stunet to heed G00 oko na ncaebseceeeceatens 84a

Defendant’s Exhibits.

38—Letter to Mr. Paul Gibbs, dated September 7,

1961, signed, Tennessee Products and Chemical

Corporation, by Howard C. Human ............ 85a

39—Letter to Mr. Paul Gibbs, dated September 7,

1961, signed, Tennessee Products and Chemical

Corporation, by Howard C. Human ............. 86a

40—Letter dated September 26, 1961, to Mr. Paul

Gibbs, signed, Howard C. Human .............. 87a

Appendix A—Part of the discussion between the

Court and counsel on the special verdict form —- 522 522

Procevdings in the United States Court of Appeals

for the Sixth Circuit 524 523

Minute entry of argument and submission —_..... 524 523

Opinion, O’Sullivan, J. 525 524

Judgment - aa 538 540

Clerk’s certificate (omitted in printing) — 539 540

Order allowing certiorari . ; 540 541

—

Date

1961

8-23

8-28

9-19

10- 4

1962

2-26

3- 6

4-17

6-27

9- 5

DOCKET ENTRIES.

Proceedings

Complaint filed.

Summons issued and mailed to U. S. Marshal for

service.

Summons returned from the Marshal’s Office, as they

could not make the service, and summons mailed to

Secretary of State for service.

Summons returned executed as to the United Mine

Workers of America and filed. Service through Sec-

retary of State.

Order, Wilson, D. J., granting defendant twenty

days from this date within which to answer or

make defense, filed. C. O. Bk, 12, p. 138.

Answer filed. Service of copy made by counsel.

Interrogatories propounded by defendant, United

Mine Workers of America, to plaintiff, filed. Serv-

ice of copy made by counsel.

Order, Wilson, D. J. that plaintiff be granted 15

additional days within which to prepare and file

answers or otherwise plead te interrogatories pro-

pounded by the defendant UMWA, filed. C. O. Bk.

12, p. 445.

Answers of Paul Gibbs to interrogatories, filed.

Service by Counsel.

Discovery Deposition of Paul Gibbs, filed.

Motion of defendant for an order relative to plain-

tiff’s answers to interrogatories, filed, together with

brief in support thereof. Service by counsel.

SG NEES ES oe ie SES ud

: eee PAE hte

9-21

9-25

9-27

10- 1

10- 3

10- 9

Docket Entries

Proceedings

Pre-trial Conference, Wilson, D. J.

Brief in reply to deft’s motion for an order relative

to the plaintiffs’ answers to interrogatories, filed.

Service by counsel.

Plaintiff’s answers to defendant’s interrogatories

filed. Service by counsel.

Plaintiff’s Memorandum Brief Pertaining | to pre-

trial order, filed. Service by counsel.

Plaintiff’s motion for production of documents filed.

Service by Counsel. Brief in support of motion filed.

Interrogatories propounded to defendant by plain-

tiff filed. Service by Counsel.

Pretrial Order, Wilson, D. J. filed.

Motion of defendant, United Mine Workers, to dis-

miss action, together with brief in support of mo-

tion to dismiss, and motion for oral hearing, filed.

Service by counsel.

Order, Wilson, D. J. Extending time through Oct.

10, 1962 for defendant to object or answer the 31

interrogatories served upon it by plaintiff and also

granting an extension of time thru Oct. 10, 1962 for

deft. to file objections and supporting brief to the

request for an order requiring it to produce and

permit inspection and copying of the documents

listed in motion recently served upon it, filed. En-

tered C. O. Bk. 14, p. 73. Service of copies by Clerk

to both counsel.

Plaintiff’s notice to take deposition of Howard

Madewell filed.

10-18

10-26

10-29

11- 1

Docket Entries

Proceedings

Plaintiff’s brief resisting defendant’s motion to dis-

miss filed.

Deft’s objections to granting of motion to produce

filed.

Defendant’s Answers to interrogatories of plaintiff

filed.

Brief of defendant on objections to interrogatories

propounded to it by plaintiff filed. Service by

counsel.

Order, Wilson, D. J. amending complaint by strik-

ing certain paragraph and inserting a new para-

graph filed. Entered C. O. Bk. 14, p. 132. Service

by Clerk to both counsel of record.

Defendant’s motion to dismiss heard, argued &

taken under advisement.

Deposition subpoena for witness for pltf. returned

executed and filed. C. O. Smith, DUSM—$6.10.

Notice from defendant of taking of depositions of

James Miller, Howard Human, Desmer Church,

filed.

Opinion on Motion to Dismiss, Wilson, D. J., over-

ruling motion and requiring plaintiff to amend com-

plaint within five days, order will enter accordingly,

filed.

Supplemental answers of defendant to interroga-

tories propounded by the plaintiff filed.

Deposition subpoenaes for 3 witnesses for deft. re-

turned executed and filed. C. A. Smith, DUSM—

$3.56.

PSR OE re eer ote See Ee ee

| a Bere TSO Ree, Rog ASR

11-7

11- 8

11-8

11- 9

Docket Entries

Proceedings

Depositions of Stanlee Hampton, Paul V. Collis,

N. B. Allison and C. Houston Beaumont filed.

Depositions of Ted K. Gibbs, Paul Gibbs, George

Ramsey, Howard Higgins, Howard Cecil Human,

Howard Madewell & Geo. Gilbert filed.

Order, Wilson, D. J. amending complaint as to

paragraph IX & X, filed. Entered C. O. Bk. 14, p.

194. Service by Clerk by handing copies to both

counsel.

Came the parties in person and by counsel, and the

trial of this cause to a jury was begun as part of

plaintiff’s proof was presented and the jury was

respited until 9:00 a. m., Thursday, Nov. 8, 1962.

Wilson, D. J. Entered C. O. Bk. 14, p. 197-A.

Five subpoenaes for 14 witnesses for plaintiff re-

turned executed and filed. J. M. Irwin, DUSM—

$4.40.

Came the parties in person, and by counsel, and

came the same jury as of yesterday and the trial

of this cause was resumed. Part of plaintiff’s proof

heard and the jury was respited to 9:00 a. m., Fri-

day, Nov. 9, 1962. C. O. Bk. 14, p. 199.

Subpoena for witness for plaintiff returned exe-

cuted and filed. J. H. Stephens, DUSM—43.10.

Came the parties in person and by counsel and came

the same jury as of yesterday and the trial of this

cause was resumed. Plaintiff’s proof completed.

Defendant made motion to dismiss and also motion

for directed verdict. Both motions overruled by the

Date

1962

11-10

11-12

11-13

11-14

11-15

_—

Docket Entries

Proceedings

Court. Part of defendant’s proof heard. Jury re-

spited to Monday, Nov. 12, 1962, at 9:00 a. m. C. O.

Bk. 14, p. 201.

Subpoenaes for 14 witnesses for plaintiff returned

executed and filed. C. A. Smith, DUSM—$54.60.

Came the parties in person and by counsel and

came the same jury as of Friday, and the trial of

this cause was resumed. Defendant’s proof com-

pleted. No rebuttal. Jury respited until Tuesday,

Nov. 13, 1962 at 9:00 a.m. C.O. Bk. 15, p. 1.

Hearing on motions this date: Defendant, by coun-

sel, made six motions to dismiss the case; Court

overruled motions one, five and six and sustained

motions two, three and four, hearing adjourned

until Wednesday, November 14, 1962.

Came the parties in person and by counsel and

came the same jury as of yesterday and the trial of

this cause was resumed. Defendant made motion

for a mis-trial; overruled. Argued by counsel.

Charge of the Court. In arbitration. Jury respited

until Thursday, November 15, 1962, at 9:00 a. m.

Entered C. O. Bk. 15, p. 15.

Four subpoenaes for witnesses for plaintiff returned

executed and filed. C. A. Smith, DUSM—#7.50.

Two subpoenaes for witnesses for defendant re-

turned executed and filed. C. A. Smith, DUSM—

$1.00.

Came the parties in person and by counsel and came

the same jury as of yesterday, and the trial of this

Pee Te Pics © TIP es rt

er SREB BU cote ais,

Pi eines

Date

1962

11-16

11-23

11-27

11-28

1963

1-25

Docket Entries

Proceedings

cause was resumed. The jury returned with a ver-

dict in favor of the plaintiff in the amount of

$74,500 for compensatory damages and $100,000 for

punitive damages. Entered C. O. Bk. 15, p. 19.

Lodged: Judgment Order.

Motion of United Mine Workers of America for

judgment in accordance with motion for directed

verdict or in the alternative motion for a new trial

(filed in Knoxville Office). Service by Counsel.

Judgment: Wilson, D. J. Plaintiff, Paul Gibbs, re-

cover of UMW iotal sum of $174,500.00 with inter-

est at 6% from date of judgment filed. C. O. Bk.

15, p. 41. Service by Clerk to counsel for plaintiff

and to counsel for defendant.

Memorandum on behalf of defendant, United Mine

Workers of America, filed. Certificate of service by

counsel.

Order, Wilson, D. J., upon agreement of parties that

defendant shall have to and including Feb. 1, 1963

to file brief in support of its motion for judgment

or a new trial and plaintiff shall have until Feb. 15,

1963 to its brief in opposition thereto filed. C. 0.

Bk. 15, p. 208. Service by clerk to both counsel of

record. (Mr. E. H. Rayson and Joe Vanderveer)

Order, Wilson, D. J. upon agreement of parties that

defendant is allowed until February 11, 1963, in

which to file its brief in support of its motion for

judgment in accordance with its motion for directed

Date

1963

2-11

aw 18 aw

Docket Entries

Proceedings

verdic’ and in the alternative for a new trial, and

the plaintiff is allowed until March 1, 1963, in which

to file its reply brief, filed. C. O. Bk. 15, p. 244.

Service by counsel.

Defendant’s motion for leave to file brief in support

of motion for new trial, together with brief, filed.

Service by counsel.

3- 1 Plaintiff’s motion for ieave to file a reply brief re-

3-14

7- 2

7-18

sisting the defendant’s motion for a judgment

n. 0. v. or in the alternative for a new trial filed.

(Proposed brief submitted herewith)

Hearing on defendant’s motion for new trial, argued

and taken under advisement by the Court.

Supplemental Brief of plaintiff filed. Service by

counsel.

Opinion, Wilson, D. J., that verdict of jury should

be set aside as to issue of loss of plaintiff’s employ-

ment contract due to statutory secondary boycott.

Also, that jury verdict awarding damages to the

plaintiff on the issue of loss of his trucking contract

by reason of boycott and conspiracy, should be set

aside. Defendant’s motion for judgment n. o. v.

upon the two above issues should be sustained.

And unless plaintiff agrees to accept remittitur of

$30,000 on issue of damages by reason of loss of

plaintiff’s employment contract as a result of con-

spiracy, and to accept a remittitur of $55,000 in the

jury verdict on the issue of punitive damages, the

issues should be submitted to another jury and a

new trial ordered. Service to counsel by clerk.

ape

Date

1963

7-23

7-26

8-26

Docket Entries

Proceedings

Lodged: Proposed judgment order. Filed by attor-

neys for defendant.

Lodged: Proposed judgment order. Attorneys for

Plaintiff.

Filed: Objection to form of judgment lodged by

plaintiff; and memorandum on form of judgment

submitted for entry, by deft. Service by counsel.

Judgment, Wilson D. J., (1) that the defendant’s

motion for judgment n. o. v. on the issue of the loss

of plaintiff’s trucking contract, be sustained and

judgment heretofore entered modified accordingly

so as to eliminate the award of $14,500.00 made by

the jury to the plaintiff. (2) Defendant’s motion

for judgment n. o. v. on the issue of loss of plain-

tiff’s employment contract is sustained insofar as

said motion is directed to the assertion of said claim

upon the basis of secondary boycott, but said mo-

tion for judgment n. o. v. is overruled insofar

as this claim is based upon alleged common law

conspiracy. (3) Verdict of the jury in awarding

$60,000 to plaintiff for loss on his employment con-

tract is excessive by $30,000.00 and punitive dam-

ages is excessive to the extent of $55,000.00. Ac-

cordingly, a remittitur in the sum of $30,000.00 on

issue of loss in connection with employment con-

tract; and a remittitur in the sum of $55,000.00 upon

the issue of punitive damages is suggested. (4)

Plaintiff, Paul Gibbs is to recover from defendant,

UMW, $75,000.00 with interest thereon at the rate

of 6% per annum from and after date of entry of

this judgment, clerk to pay this to law firm of Van

——

8-26

9-25

10- 4

— ee

Docket Entries

Proceedings

Derveer, Brown and Siener, when paid into the

court. (5) Various grounds of the motion for judg-

ment n. o. v. and for new trial are referred to in

this judgment and overruled. Service by clerk.

Entered C. O. Book 17, pp. 276, 277.

Consent to reduce Verdict filed by attorneys for

plaintiff. Service by counsel.

Order, Wilson, D. J. correcting clerical error in

judgment order entered 8/26/63, filed. Entered C. O.

Bk. 18, p. 1. Service of copies by Clerk to both

counsel of record.

Notice of appeal by deft., U. M. W., with cost bond

in sum of $250.00 filed. Service of copy made by

counsel.

Notice of appeal by pltf., Paul Gibbs, with cost

bond, filed. Service by counsel.

Motion (Petition) of U. M. W. for an order pre-

venting and staying issuance of any execution on

the judgment herein rendered, such stay to remain

in full force and effect until after final adjudication

by Court of Appeals on appeal prayed by the pltf.

filed.

Agreed Order, Wilson, D. J. that execution shall

not issue on judgment entered, except upon failure

of deft. to post supersedeas bond after 10 days

notice of demand therefor by pltf. filed. Entered

C. O. Bk. 18, p. 94.

Envelope of Exhibits.

SSRI GP AR in SE Seon he RS

— 10a —

Complaint

In the

DISTRICT COURT OF THE UNITED STATES

I’or the Eastern District of Tennessee,

Southern Division.

PAUL GIBBS,

Plaintiff, )

vs. Civil Action,

BiScac See ce

—

THE UNITED MINE WORKERS,

OF AMERICA,

Defendant. 7

COMPLAINT—FILED AUGUST 23, 1961.

Comes the plaintiff, Paul Gibbs, by his attorneys, and

sues the defendant, The United Mine Workers of America,

for the sum of Two Hundred Fifty Thousand Dollars

($250,000.00) as compensatory damages, and One Hundred

Thousand Dollars ($100,000.00) as punitive damages and

for cause of action says: ,

) §

That he is a citizen and resident of Grundy County,

Tennessee. That the defendant is an unincorporated labor

organization or union maintaining its principal place of

business outside the State of Tennessee, but whose activi-

ties extend into Marion County, Tennessee. That the

plaintiff lives within, and the defendant’s activities extend

into the Southern Division of the Eastern District of Ten-

nessee,

II.

That this is a civil action, and the amount in contro-

versy, exclusive of interest and costs, exceeds the sum of

Ten Thousand Dollars ($10,000.00), and the grounds upon

—lla—

Complaint

which the jurisdiction of this Court depends is the afore-

said diversity of citizenship of the party-plaintiff, the

party-defendant and the amount in controversy and in

addition thereto depends upon 29 U. S. C. A. 187 or the

Secondary Boycott provision of the Labor Management

Relations Act.

ITI.

That the Tennessee Consolidated Coal Company, a Dela-

ware corporation, has for many years maintained an office

and place of business at Tracy City, Tennessee, where it

engaged in the business of mining, processing and selling

coal. That some time prior to the date hereinafter men-

tioned, the Grundy Mining Company was established as

a wholly owned subsidiary of the Tennessee Consolidated

Coal Company. Pursuant to a contract, the Tennessee

Consolidated Coal Company had leased certain land to

the Grundy Mining Company and by the terms of the con-

tract agreed to sell all coal produced by the Grundy Min-

ing Company. That some time prior to the date herein-

after set forth, the Tennessee Consolidated Coal Company

was awarded a contract by the United States Navy for

coal produced by the Grundy Mining Company valued at

more than One Hundred Fifty Thousand Dollars ($150,-

000.00) and that in addition thereto there was an avail-

able market for all coal to be produced by Grundy Min-

ing Company.

IV.

That some time prior to the date hereinafter set forth

the Grundy Mining Company employed the plaintiff, Paul

Gibbs, as its mine superintendent for five mines located

in Marion County and known as the Gray’s Creek Mines,

with full authority to supervise and oversee the operation

of the mines. That his monthly salary was to be Six

— 12a —

Complaint

Hundred Doliars ($600.00) per month. That in addition

thereto the Grundy Mining Company had agreed with the

plaintiff, Paul Gibbs, that he would be paid for all ‘‘haul-

age’’ of coal away from the mines, That the mines would

have produced approximately two thousand (2,000) tons

per day and that the plaintiff, Paul Gibbs, would be paid

at the rate of Seventy-Kight Cents ($.78) per ton, furnish-

ing, of course, his own trucks and equipment.

That the events hereinafter complained of took place

on the 15th day of August, 1960, and early in the morn-

ing of the 16th day of August, 1960.

VI.

That the defendant having heard that the Grundy Min-

ing Company was about to open certain new mines gath-

ered near the site on the date first above mentioned and

formed a certain ‘‘picket line’. That the plaintiff, Paul

Gibbs, was then and there told and advised in no uneer-

tain terms that he, the Grundy Mining Company, nor any-

one else would open or operate these mines. That the

following morning a ‘‘mob’’ of approximately one hun-

dred (100) men were at or near the site and among those

present and actively furthering the ‘‘mob’s’’ activities

were members of the defendant. That most, if not all

members of this ‘‘mob’’ were armed, most of them car-

rying shot guns. That the plaintiff had made arrange-

ments for approximately eighteen or twenty miner-em-

ployees to work the mines and these miner-employees

were to report on this date. That as these miner-em-

ployees approached the site of the mines, they were

stopped by the ‘‘mob’’, cursed, threatened and told that

they could not work this particular mine, that if the mine

SE RS es ENCE hy oR se i ae

)

_—_

— 13a — ‘

Complaint

was to be worked, the members of the defendant union

would work it and that the miner-employees were warned

that they had the choice of leaving or being killed. Dis-

eretion caused the miner-employees to leave at once, hur-

ried on their way by the blasts of shotguns behind.

Shortly thereafter the plaintiff, Paul Gibbs, arrived upon

the scene where he was immediately stopped by the

‘“mob’’. One of the defendant’s members informed the

plaintiff, Paul Gibbs, that he was about to be killed and

reached into the cab of the plaintiff’s, Paul Gibbs, truck

to pull him out. For some time thereafter the ‘‘mob’’

ruled, running rampant, cursing, discharging firearms and

otherwise. Shortly thereafter the plaintiff, Paul Gibbs,

was ordered back into his truck and by the ‘‘mob’’ es-

corted to a point some two or three miles distant to a road

leading to another mine. There, and in the presence of the

plaintiff, Paul Gibbs, members of the defendant union did

violently beat and whip a person not a member of the

defendant union.

VIN.

That in addition to the acts hereinabove set forth and

complained of the defendant went to and told, advised

and instructed others with whom the Grundy Mining Com-

pany and/or the plaintiff herein, Paul Gibbs, were doing

business, or would have done business that if they did any

business with the Grundy Mining Company and/or the

plaintiff herein, Paul Gibbs, that they would suffer a simi-

lar fate.

VIII.

That by reason of the hereinabove complained of acts

the plaintiff, Paul Gibbs, and/or the Grundy Mining Com-

pany has never been able to open or operate its mines

and to this date they remain closed.

fie BARR ENG Se the oats Spe Bat pra fae ‘ mos geey iis raat as jai cae so cca ae i at ‘Spaanescou

St een neat

pears

PRs

— l4a —

Complaint

IX.

That the defendant has continued making threats of

dynamiting, killing, beatings and otherwise to the Grundy

Mining Company and the Tennessee Consolidated Coal

Company, that if either of these companies employed the

plaintiff, Paul Gibbs, or utilize his services in any way,

that the officials of the Grundy Mining Company and/or

the Tennessee Consolidated Coal Company and/or the prop.

erties of these companies will be dynamited, blown up

or otherwise destroyed.

The plaintiff, Paul Gibbs, avers that the defendant is

and was guilty of an unlawful conspiracy aimed at him

and the Grundy Mining Company to maliciously, wan-

tonly and wilfully interfere with his contract of employ-

ment. That the defendant is therefore liable to him for

both compensatory and punitive damages.

Wherefore, the plaintiff, Paul Gibbs, sues the defendant

for Two Hundred Fifty Thousand Dollars ($250,000.00)

as compensatory damages and for One Hundred Thousand

Dollars ($100,000.00) as punitive damages and demands a

jury to try the case.

s/ JOE VAN DERVEER,

VAN DERVEER, BROWN & SIENER,

The James Building,

Chattanooga, Tennessee.

— 15a —

Answer to Original Complaint

In the

UNITED STATES DISTRICT COURT

For the Eastern District of Tennessee,

Southern Division.

PAUL GIBBS 5

be q No. 3771.

| NITED MINE WORKERS OF

AMERICA. '

ANSWER TO ORIGINAL COMPLAINT—FILED

OCTOBER 4, 1961.

For answer to the complaint filed herein, defendant

says:

First Defense.

This Court is without jurisdiction over the subject mat-

ter of the controversy set forth in the complaint.

Second Defense.

This Court is without jurisdiction over the person of

the defendant.

Third Defense.

The Complaint fails to state a claim upon which relief

ean be granted.

Fourth Defense.

For further answer to the complaint, and each para-

graph thereof, defendant says:

Fa ao NT Ec att

— l6a —

Answer to Original Complaint

1. For answer to Paragraph 1 defendant is without

knowledge of plaintiff’s residence and neither admits nor

denies the same; the other allegations are admitted.

2. For answer to Paragraph 2 defendant admits that

this is a civil action and that the amount sued for exceeds

Ten Thousand Dollars; it denice plaintiff’s allegations of

jurisdiction.

3. For answer to Paragraph 3 defendant is without

knowledge or information sufficient to form a belief as

to the truth of the allegations contained therein.

4. For answer to Paragraph 4 defendant is without

knowledge or information sufficient to form a belief as

to the truth of the allegations contained therein.

5. For answer to Paragraph 5 defendant is without

knowledge or information sufficient to form a belief as

to the truth of the allegations contained therein.

6. For answer to Paragraph 6 defendant is without

knowledge or information sufficient to admit or deny

whether acts as described therein occurred; but defend-

ant denies, if such acts did in fact occur, that such acts

were committed or participated in by defendant or by

any person or group of persons authorized by or acting

on behalf of the defendant.

7. Defendant denies the allegations of Paragraph 7.

8. Defendant denies the allegations of Paragraph 8.

9. Defendant denies the allegations of Paragraph 9.

10. Defendant denies the allegations of Paragraph 10.

Defendant denies that it is liable to plaintiff in any

amount.

—17a —

Answers to Interrogatories

Defendant denies each and every allegation of the com-

plaint not admitted or denied herein and denies that plain-

tiff is entitled to recover any amount from defendant.

HARRISON COMBS,

900 Fifteenth Street, N. W.,

Washington, D. C.,

Burwell Building,

Knoxville, Tennessee.

ANSWERS TO INTERROGATORIES —FILED

APRIL 17, 1962.

Comes the plaintiff herein, Paul Gibbs, and for answer

to the interrogatories propounded to him says:

* * * * * * *

3. What was plaintiff’s income during each year from

1950 to date? Kindly file copies of plaintiff’s income tax

returns for the years 1956 to date as an exhibit to your

answer.

Tax returns for years 1950 and 1951 not available.

1952 profit $6,468.33; 1953 profit $14,685.90; 1954 profit

$5,748.68; 1955 profit $10,971.83; 1956 profit $17,084.36;

1957 loss $2,658.41; 1958 loss $23,476.87; 1959 profit

$577.64; 1960 loss $44,713.33. Copies of tax returns for

1956 to date are attached hereto.

6. Was. plaintiff’s contract with Grundy as a mine

superintendent a written or oral contract? If it was a

— 18a —

Answers to Interrogatories

written contract, kindly file a copy thereof herewith. If

it was an oral contract, state precisely what the terms

of the contract were.

Oral.

7. State whether plaintiff’s alleged haulage contract

with Grundy was in writing or oral. If it was in writing,

file a copy thereof as an exhibit to the answer. If it was

oral, state precisely the terms thereof.

Oral. Seventy eight cents (78¢) per ton.

9. State whether the ‘‘five mines’’ referred to in para-

graph IV of the Complaint were operating mines at the

time of the matters complained of herein.

No.

10. If the answer to question 6 is ‘‘No’’, state what

plaintiff was to do with respect to the ‘‘five mines’’ and

when it was contemplated the mines would be in opera-

tion.

Mine Superintendent to operate the mines.

11. Had plaintiff performed any part of the work con-

templated by his haulage contract with Grundy as of the

time of the matters complained of herein? If your answer

to this interrogatory is ‘‘Yes’’, state in detail that part

of the work which had been performed.

No.

12. As of August 15-16, 1960, and with respect to plain-

tiff’s haulage contract with Grundy Mining Company.

(a) What equipment did plaintiff intend to use in the

performance of the haulage contract?

Kight (8) dump trucks.

—

— 19a —

Answers to Interrogatories

(b) What items of such equipment did plaintiff then

own?

Eight (8) dump trucks.

when and from whom plaintiff acquired such equipment

and the price paid for each item thereof. File as an

exhibit to your answer copies of the bills of sale evi-

dencing such purchases.

Five (5) Tandom trucks from Alison Motors priced

at $16,233.36 each. Two (2) trucks purchased from Alison

Motors priced at $8,500.00 each. One (1) truck purchased

at Truck & Trailer and priced at $16,801.00. Only one

Bill of Sale available, copy attached hereto, others essen-

tially same.

(d) Where was such equipment located as of August

15-16, 1960?

Marion County, Tennessee.

(e) If such equipment was not then being used on the

haulage contract, in what work, if any, was such equip-

ment then being used?

Work at Pikeville Coal Company.

(f) How many persons did plaintiff employ or intend

to employ in the performance of the haulage contract?

Eight (8) or ten (10).

(g) If plaintiff had employed any persons who were

to work on the haulage contract, identify them by name

and present address.

Would have used same drivers.

My Commission expires: ...............

Sec PERE PINION, CUR YEN GRIN TOE Te RUN ta a ei Mor a ah ins Leah eae PRE MRE SS oe ea NOT ad EER kn ae

— 20a —

Pre-Trial Order

Certificate.

I, Joe Van Derveer, certify that a true and exact copy

of these answers to interrogatories has been served upon

counsel for the defendant by placing a true and exact

copy of said answers to interrogatories in the United

States mail, addressed to said counsel at his office, with

sufficient postage thereupon to carry the same to its desti-

nation.

.. Eee day of April, 1962.

JOE VAN DERVEER.

PRE-TRIAL ORDER—FILED SEPTEMBER 27, 1962.

This matter having come before the Court upon Sep-

tember 8, 1962, at a pre-trial conference held before Frank

W. Wilson, United States District Judge, pursuant to

Rule 16 of the Federal Rules of Civil Procedure and Joe

Van Derveer and Harold E. Brown having appeared as

counsel for the plaiatiff and E. H. Rayson and Donaldson

Leake having appeared as counsel for the defendant, the

following action was taken:

(1) Jurisdiction: This is an action for damages alleged

to have been sustained by the plaintiff by reason of a

secondary boycott under the provisions of Title 29,, Sec-

tion 187, as amended. It is further contended by the

plaintiff that the Court having jurisdiction by reason of

a federal question under the foregoing statute, the Court

would have ancillary jurisdiction of the plaintiff’s alleged

cause of action for tortious interference with the plaintiff’s

contractual rights and obligations. The jurisdiction of the

Court is disputed by the defendant. It is the contention

—

— 2la —

Pre-Trial Order

of the plaintiff that the secondary boycott forming the basis

of the jurisdiction was (a) the action of the Union against

Tennessee Consolidated Coal Company, (b) the action

of the Union against Tennessee Products and Chemical

Corporation, and (c) others to be identified by the plain-

tiff in answers to interrogatories as hereinafter ordered.

The parties are to seek to resolve the jurisdictional issues

by appropriate motions prior to the trial of the ease.

(2) General Nature of the Claims of the Parties: The

plaintiff contends that sometime prior to August 15, 1960,

the Tennessee Consolidated Coal Company organized a

wholly owned subsidiary known as Grundy Mining Com-

pany, which Company in turn contracted to employ the

plaintiff at $600.00 a month as its mine superintendent

for five mines it proposed to open in the Grays Creek Area

of Marion County, Tennessee. The plaintiff further held

a contract with the Grundy Mining Company for hauling

all coal mined at 78¢ per ton. It is alleged that a ready

market existed for all of the coal to be mined and that the

mines would have produced approximately 2,000 tons per

day. The plaintiff further alleges that. upon August 15,

1960, he and some 18 or 20 miners whom he had employed

attempted to report to begin mining operations for Grundy

Mining Company but that the defendant Union had organ-

ized a picket line that was in fact an armed mob, who

by violence and threats of violence prevented the plaintiff

or the miners he had employed from entering upon the

mine property or beginning work. It is further alleged

that the defendant likewise advised others with whom

Grundy Mining Company and the plaintiff were doing

business that they would receive the same violent treat-

ment if they did any business with either Grundy Mining

Company or the plaintiff, and that these threats have con-

tinued, resulting in Grundy Mining Company never having

~ sen

— 22a —

Pre-Trial Order

been able to open or operate its business. It is alleged

that the defendant is guilty of an unlawful conspiracy

against the plaintiff and the Grundy Mining Company to

maliciously interfere with the plaintiff’s employment

contract and the plaintiff claims both compensatory and

punitive damages as a result thereof.

The defendant, in addition to denying any jurisdiction,

has entered a general denial of all charged by the plaintiff.

(3) Admissions, Stipulations and Uncontroverted Facts:

The following facts are established by admissions in the

pleadings or by stipulations of counsel at the pre-trial

conference:

(a) It is agreed and stipulated that Grundy Mining

Company was a wholly owned subsidiary of Tennessee

Consolidated Coal Company.

* * * * * * *

(6) Requests for Jury Instructions: Requests for jury

instructions shall be submitted to the Trial Court at the

commencement of the trial, but there is reserved to the

counsel for the respective parties a right to submit supple-

mental requests for instructions during the course of the

trial or at the conclusion of the evidence, or at the conclu-

sion of the charge, upon matters that cannot be reason-

ably anticipated.

* * * * * * *

Approved for Entry.

FRANK W. WILSON,

United States District Judge.

* * * * * * *

Bis ost coeaiindacnciete

—

— 23a —

Order Amending Complaint

MOTION TO DISMISS—FILED OCTOBER 1, 1962.

Comes the defendant, United Mine Workers of America,

and moves the Court as follows:

1. To dismiss this action because the complaint fails

to state a claim against the defendant upon which relief

can be granted in that the complaint fails to set forth a

cause of action under 29 USC 187, as amended.

2. To dismiss the complaint insofar as plaintiff pur-

ports to assert therein a cause of action based on State

Law on the ground that this Court is without jurisdiction

to hear and determine the same.

Wherefore, defendant prays the judgment of the Court

hereon.

* * * * * * *

ORDER AMENDING COMPLAINT—

FILED OCTOBER 18, 1962.

Upon application of the plaintiff and for good cause

shown, it is Ordered that the Complaint, heretofore filed,

be and is hereby amended by striking therefrom para-

graph IX and inserting therein a new paragraph IX, as

follows:

That the defendant has continued making threats of

dynamiting, killing, beatings and otherwise to Paul

Gibbs and the Grundy Mining Company and, in addi-

tion thereto, has made threats to the Tennessee Prod-

ucts and Chemical Company, a neutral employer, that

if they continued doing business with the plaintiff,

Paul Gibbs, that they would suffer a similar fate. In

addition to these complained of acts the defendant

has also (encouraged and induced) other employees

—- 24a —

Opinion on Motion to Dismiss

of neutral employers as well as other persons not to

do business with the plaintiff, Paul Gibbs.

Approved for Entry:

FRANK W. WILSON,

United States District Judge.

+ * * * * * *

OPINION ON MOTION TO DISMISS—FILED

OCTOBER 26, 1962.

By motion to dismiss the defendant has raised the issue

of the jurisdiction of the Court in this case. The complaint

purports to allege a cause of action for damages as a re-

sult of a secondary boycott arising out of a labor dispute

and for damages as a result of an unlawful conspiracy

to injure the plaintiff in his employment and otherwise.

Jurisdiction purports to be alleged in the complaint upon

the grounds of diversity of citizenship and jurisdictional

amount and upon the grounds that a federal question ex-

ists under 29 U. S. C. A. 187, the secondary boycott pro-

vision of the Taft-Hartley Act. The motion to dismiss

is based upon two grounds, first that the complaint fails

to allege a cause of action under federal law (29 U.S. C. A.

187), and second that the Court is without jurisdiction

to try the alleged common law action of tort or conspiracy.

For the exact allegations of the complaint it is of course

necessary to refer verbatim to the complaint. By way of

summary, however, it appears that the complaint purports

to allege that the plaintiff had an employment contract

to act as mine superintendent with Grundy Mining Com-

pany at a salary of $600 per month, and in addition a

truck hauling contract with the same company to haul

all coal mined’ at 78¢ per ton, and that the plaintiff was

deprived of the benefits of both the employment contract

r PARE ROE oy HEATERS ion ae eee

SAO ance ae ane ae

— i

Opinion on Motion to Dismiss

and the trucking contract by action of the defendant

Union in preventing the opening of the Grundy Mining

Company mines by mob action and violence. Some lack

of clarity in this respect is caused by the omission in the

final paragraph of the complaint of any reference to the

loss of the trucking contract, the plaintiff’s damages there

being confined to the interference ‘‘with his contract of

employment.”’

In addition to the above rather specific allegations, by

amendment to the complaint the plaintiff alleges that the

defendant has threatened, induced and encouraged other

‘neutral employers,’’ including Tennessee Products and

Chemical Company, ‘‘not to do business’’ with the plaintiff.

As indicated above, the complaint purports to allege

federal jurisdiction on the grounds of diversity of citizen-

ship and jurisdictional amount. However, the defendant

is alleged to be an unincorporated association and for

jurisdictional purposes in diversity cases, the unincorpo-

rated association can have no citizenship apart from that

of its members and proper citizenship of all members must

be alleged to exist before diversity will exist. 2 Barron

& Holtzoff, Federal Practice and Procedures, see. 487.

Upon the basis of the allegations of the complaint, the

defendant contends that there is no allegation of an action-

able secondary boycott under 29 U. S. C. A. 187, in that

(1) any alleged loss or damage to the plaintiff was a

result of primary action of the Union toward Grundy

Mining Company and not a secondary boycott, and that

the alleged existence of violence does not in any way

affect the existence or non-existence of a secondary boy-

cott, (2) the plaintiff, as a supervisory employee of Grundy

Mining Company, was not such a ‘‘person’’ as is referred

to in 29 U. S. C. A. 187 as having a cause of action by

pit ion !

Oe oe er ee te ce rete em a tence ce eee re

— 26a —

Opinion on Motion to Dismiss

reason of a secondary boycott, (3) the primary dispute

was between the defendant and Grundy Mining Company,

and that the plaintiff was acting as a part of the primary

employer, and therefore no secondary boycott existed, (4)

the alleged actions of the defendant to get others ‘‘not to

do business’’ with the plaintiff is unconnected with any

loss alleged by the plaintiff, and therefore not an action-

able allegation of a secondary boycott. It is further con-

tended by the defendant that, there being no jurisdiction

by reason of a federal question, the Court is without juris-

diction of the alleged common law conspiracy or tortious

conduct allegations.

On the basis of the allegations in the complaint, the

plaintiff asserts more than one interpretation of the com-

plaint. He contends that a secondary boycott under 29

U. S. C. A. 187 is alleged (1) in that the primary dispute

was between Gibbs and the Union, and the union activity

as to Grundy Mining Company insofar as it affected

Gibbs was therefore secondary, (2) in that the primary

dispute was between Gibbs and the Union, and the union

activity as to employees of Gibbs was therefore secondary,

(3) in that union activity and threats toward Tennessee

Products and Chemical Company to induce it not to do

P business with Grundy Mining Company and the plaintiff

was a secondary boycott as to both the plaintiff and

5 Grundy Mining Company, (4) in that the Union activity

i and threats toward ‘‘others’’ to induce them not to do

business with the plaintiff was a secondary boycott, (5)

in that union activities and threats toward employees of

Grundy Mining Company was a secondary boycott as to

the plaintiff, and (6) in that union activities and threats

toward employees of Southern Labor Union was a sec-

ondary boycott as to the plaintiff. It is further contended

by the plaintiff that the Court, having jurisdiction over

— 27a —

Opinion on Motion to Dismiss

the secondary boycott phase of the case, therefore has

ancillary jurisdiction over the common law conspiracy

for tortious conduct allegations of the complaint. The

Court has difficulty in reading into the complaint all of

the various theories advanced by the plaintiff. Part of

the difficulty is occasioned by the fact that the complaint

is quite specific as to the employment and trucking con-

tracts of the plaintiff with Grundy Mining Company and

the union activities toward Grundy Mining Company de-

priving the plaintiff of the benefits of these contracts, but

any other theory of the plaintiff’s cause of action must

be based upon either (1) a general allegation that ‘‘others’’

were involved, or (2) a specific allegation that Tennessee

Products and Chemical Company was involved. No al-

legation of damage is alleged with respect to the latter

two allegations except that they were induced ‘‘not to

do business’’ with the plaintiff. The specifieness of the

complaint in some respects, coupled with its extreme

generality in other respects, can be misleading.

Although the Court is unable to read into the complaint

all of the theories advanced by the plaintiff with respect

to the allegations of a secondary boycott, and, although

the Court would be unable to accept each of the plaintiff's

theories as constituting a secondary boycott under 29

U.S. C. A. 187, even if they were read into the complaint,

nevertheless it does appear to the Court that a secondary

boycott may be sufficiently alleged so that the plaintiff

should not be put out of court on a motion to dismiss.

(This conclusion is fortified by the practice of general

pleading permitted in the federal courts.)

First it appears that the allegation that the defendant

induced or encouraged Tennessee Products and Chemical

Company and ‘‘others’’ ‘‘net to do business’’ with the

plaintiff might allege a secondary boycott within the Act.

Tita RCE ie nr

Mas etens Fae Shotts

Day,

— 28a —

Opinion on Motion to Dismiss

It is pointed out by the defendant that there is no alleged

connection between this allegation and the Grundy Min-

ing Company or any damages which the plaintiff sustained,

Under See. 187 (b) only damages that are a result of the

secondary boycott would be recoverable. Although no

specific damages are alleged to have resulted from the

defendant’s having induced or encouraged Tennessee

Products and Chemical Company or ‘‘others’’ not to do

busine with the plaintiff, damages might be inferred

from such an allegation. In view of the fact that other

specific injuries and damages are alleged in the complaint,

and in view of the fact that the plaintiff will be required

on the trial to establish by evidence such injury before

the case can be submitted to the jury on this theory of

a secondary boycott, it is the opinion of the Court that

the plaintiff should be required to further amend his com-

plaint to allege what, if any, injury the plaintiff sustained

as a result of the matters alleged in paragraph IX of the

amended complaint. If no injury or damage can be al-

leged or proven as a result of the union activity toward

Tennessee Products and Chemical Company or ‘‘others,”’’

then this theory of jurisdiction should be removed from

the case without the necessity or expense of a trial.

It further appears to the Court that a secondary boy-

cott may be alleged or inferred from the complaint so

as to grant jurisdiction upon the theory that a primary

labor dispute existed between the plaintiff and the de-

fendant, and that one object of the Union in its activities

toward Grundy Mining Company was unlawfully to induce

or persuade Grundy Mining Company to cease doing

business with the plaintiff. It is contended by the de-

fendant that the primary dispute alleged is between

Grundy Mining Company and the Union. A prohibited

secondary boycott is defined at 29 U. S. C. A. 158 (b) (4)

fo INS eee) at q

RO TNES Paeiaeee %

— 29a —

Opinion on Motion to Dismiss

as the inducing or encouraging of others if the ‘‘object’’

thereof is to cause them to cease doing business with an-

other. The crux of the matter therefore is as to whether

any part of the ‘‘object’’ of the Union in its activities

involving Grundy Mining Company was to cause it to

cease doing business with the plaintiff. The fact that it

may have had other or additional purposes does not re-

lieve it of the charge of a secondary boycott. As stated

in the case of Flame Coal Company v. United Mine Work-

ers of America, 303 F. 2d 39 at 42, ‘‘This Union cannot

escape the charge of secondary boycott because it chose

to attack on all fronts at once, claiming its desire and

objective to be the recognition of all involved, whether

producers, transporters or processors of coal.’’ What the

object of the Union may have been in its activities toward

Grundy Mining Company may be in dispute and therefore

a motion to dismiss should not be sustained upon this.

The defendant relies upon the case of Seeley v. Brother-

hood of Painters (C. A. 5), ... F. 2d ..., 51 L. R. R. M.

2042, wherein the Court held that a supervisory employee

was not such a ‘‘person’’ as would be entitled to a cause

of action under the secondary boycott provision of the

Taft-Hartley Act for his discharge by his employer as

a result of the Union’s inducing or encouraging his em-

ployer to do so. Without passing upon the rationale of

the Seeley case at this time, it is sufficient to point out

in the present case that the injury to the plaintiff may

be in his capacity as a trucker and not merely as an em-

ployee. It would appear that in his capacity as an inde-

pendent trucker the plaintiff would be such a ‘‘person’’

as would be entitled to assert rights under the Federal

Boycott Law.

Having determined that the defendant’s motion to dis-

miss upon the ground that no federal question is involved

PBR ce ET em eres a eee VSR LENTIL LP LLLLIE LOL IGEE OLE SLE ESTE OLS

— 30a —

Order Amending Complaint

should be overruled, it would follow that the defendant’s

motion to dismiss the common law charge of conspiracy

or tort for lack of jurisdiction should likewise be over-

ruled. Under the case of Hurn v. Ousler, 89 U. S. 238,

the Court, having jurisdiction of the federal question,

would have ancillary or pendent jurisdiction of the com-

mon law allegations.

The defendant’s motion to dismiss will therefore be

overruled. However, the plaintiff will be required to

amend his complaint to allege more specifically any dam-

ages claimed to have resulted by reason of the matters

alleged in paragraph IX of his complaint as amended, or

otherwise this paragraph will be stricken from the com-

plaint. This amendment shall be made within five (5)

days.

An order will enter accordingly.

FRANK W. WILSON,

United States District Judge.

ORDER AMENDING COMPLAINT—

FILED NOVEMBER 7, 1962.

Upon application of the plaintiff and for good cause

shown, it is Ordered that the complaint heretofore filed

be and hereby is amended as follows:

(1) By adding to Paragraph IX as follows:

‘‘That by reason of the said secondary boycott he has

been unable to obtain contracts of haulage that he other-

wise would have gotten, has been unable to hire employees

that he otherwise would have been able to hire, has had

certain leases of coal lands cancelled so that he was un-

able to continue in business, and has been unable to obtain

— 3la —

Verdict Form

Jeases of coal lands that he otherwise could have obtained

and has lived in constant fear and under a constant eco-

nomic pressure.”’

(2) By striking Paragraph X and inserting a new Para-

graph X as follows:

“The plaintiff, Paul Gibbs, avers that the defendant is

and was guilty of an unlawful conspiracy and an unlaw-

ful boycott aimed at him and the Grundy Mining Com-

pany to maliciously, wantonly and willfully interfere

with his contract of employment and with his contract of

haulage. The defendant is therefore liable to him for

both compensatory and punitive damages.’’

Approved for Entry.

FRANK W. WILSON,

United States District Judge.

VERDICT FORM.

(1) Did the defendant or any person or persons for

whom it was legally responsible commit any activities or

engage in any conduct directed toward Grundy Mining

Company which damaged the business or property of Paul

Gibbs and which were a violation of 29 U. S. C. A. see.

158 (b) by reason of

(a) engaging in a strike of Grundy Mining Company

Yes

Yec—No

(b) inducing or encouraging employees of Grundy

Mining Company to engage in a strike or a refusal in the

course of their employment to perform any services Yes

Yes—No

ay ee nt rs y

Es los _ — , ite N AMEE RES IRE LAL RI PRS NNR

ies a g

— 32a —

Verdict Form

Company? Yes

Yes—No

(29 U. 8. C. A. 158 (b)—It shall be unfair labor

practice for a labor organization or its agents—

(4) (ii) to engage in, or to induce or encourage any

individual employed by any person engaged in com-

merce or in an industry affecting commerce to engage

in, a strike or a refusal in the course of his employ-

ment to use, manufacture, process, transport, or other-

wise handle or work on any goods, articles, materials,

or commodities, or to perform any services; 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—

(B) forcing or requiring any person to cease... .

doing business with any other person . . .: Provided,

That nothing contained in this clause (B) shall be

construed to make unlawful, where not otherwise un-

lawful, any primary strike or primary picketing .. ..)

(2) (if your answer to question 1 (a) (b) or (c) was

‘‘Yes’’) Was an object of the defendant or its agents to

force or require Grundy Mining Company to cease doing

business with Paul Gibbs (a) with respect to his contract

of employment Yes (b) with respect to his truck hauling

Yes—No

contract? Yes

Yes—No

(3) (If your answer to question 1 (a) (b) or (c) was

‘¢Yes’’?) Was such activity or conduct a primary strike

or primary picketing of Grundy Mining Company? No

Yes—No

(4) (If your answer to question 1 (a) (b) or (c) and to

question 2 (a) or (b) was ‘‘Yes,’’ and if your answer to

— 33a —

Verdict Form

question 3 was ‘‘No’’) Was Grundy Mining Company en-

gaged in commerce or in an industry affecting commerce

as these terms were defined in the charge of the Court?

Yes

Yes—No

(5) Was there a wrongful interference with the plain-

tiff’s contract of employment with Grundy Mining Com-

pany in violation of the common law of Tennessee? Yes

Yes—No

(6) Was there a wrongful interference with the plain-

tiff’s coal hauling contract with Grundy Mining Company

in violation of the common law of Tennessee? Yes

Yes—No

(7) (If your answer to either or both 5 or 6 was ‘‘ Yes’’)

Was the defendant a party to a conspiracy to commit the

said wrongful interference? Yes

Yes—No

(8) (If your answer to question 1 (a) (b) or (c) and to

questions 2 (a) and 4 was ‘‘Yes’’, and if your answer to

question 3 was ‘‘No’’; or of your answer to 5 was ‘‘Yes”’

and your answer to 7 was ‘‘Yes’’) What damages did

the plaintiff sustain by reason of the loss of or interfer-

ence with his employment contract with Grundy Mining

Company? $60,000.00

(9) (If your answer to question 1 (a) (b) or (c) and to

questions 2 (b) and 4 was ‘‘Yes’’, and if your answer to

question 3 was ‘‘No’’; or if your answer to 6 was ‘‘Yes’’

and your answer to 7 was ‘‘Yes’’) What damages did the

plaintiff sustain by reason of the loss of or interference

with his hauling contract with Grundy Mining Company?

$14,500.00

(10) (If you have answered ‘‘Yes’’ to either 5 or 6, and

if you have answered ‘‘Yes’’ to 7, and if you have

awarded compensatory damages in either 8 or 9) Is the

DTI LN ESRI RNR SAUNAS SO eR al

— 34a —

Motion for Judgment, etc., or for New Trial

plaintiff entitled to recover punitive damages from the

defendant? Yes

Yes—No

(11) (If-your answer to 10 is ‘‘Yes’’) We assess punitive

damages against the defendant in the sum of $100,000.00,

GORDON M. HUNTLEY,

Foreman.

MOTION OF UNITED MINE WORKERS OF AMERICA

FOR JUDGMENT IN ACCORDANCE WITH MOTION

FOR DIRECTED VERDICT OR, IN THE ALTER.

NATIVE, MOTION FOR A NEW TRIAL—FILED

NOVEMBER 23, 1962.

The defendant, United Mine Workers of America, moves

the Court to set aside the verdict of the jury and to enter

judgment in its favor in accordance with its motions for

directed verdict on the following grounds and reasons:

1. Under the law and the state of the pleadings, this

action cannot be maintained against the defendant, United

Mine Workers of America, under Section 303 of the Labor

Management Relations Act, 29 U. 8S. C., Section 187, as

amended.

2. The evidence is insufficient in law to sustain a verdict

for the plaintiff under Section 303 of the Labor Manage-

ment Relations Act, 1947, as amended.

3. This Court is without jurisdiction to adjudicate the

asserted cause of action predicated upon the law of the

State of Tennessee.

4. The evidence is insufficient in law to sustain a ver-

dict for the plaintiff under the law of the State of Ten-

nessee.

prin 5 nae Lact Antal pc Raenabhaiiay apie ogo oh

— 35a —

Motion for Judgment, etc., or for New Trial

5. Under the applicable law and the proof in this record,

plaintiff is not entitled to a judgment for ¢

(a) damages based upon his alleged contract of

employment with Grundy Mining Company;

(b) damages for the loss of his alleged haulage

contract with Grundy Mining Company; or for

If the foregoing Motion be denied, the defendant, United

Mine Workers of America, moves in the alternative that

the verdict be set aside and that it be granted a new trial

on the following grounds or reasons, among others:

1. The evidence is insufficient to sustain the verdict

on any of the three items of damages on which judgment

has been awarded.

2. The verdict is contrary to the weight of evidence.

3. There is not sufficient, in fact, there is no substantial

evidence, to support the amount of the jury’s award as to

. each of the items of damages for which the verdict was

rendered.

4. The verdict manifests passion, prejudice and caprice

and is the result thereof.

5. The amount of the verdict manifests passion, preju-

dice and caprice and is the result thereof as to each item

of damages for which the verdict was rendered.

6. The amount of the verdict to the extent that it

awarded punitive damages, manifests passion, prejudice

and caprice and is the evident result thereof.

7. The verdict of the jury is contrary to the charge of

the Court and to the law applicable to this case insofar

as the jury found that defendant violated Section 303

of, the Labor Management Relations Act, 1947, as amended,

in that

— 36a —

Motion for Judgment, etc., or for New Trial

(a) defendant’s alleged activity relative to plaintiff

was primary and not secondary in contemplation of

that act;

(b) plaintiff, as an employee of the employer in-

volved in the alleged labor dispute, was not harmed

by any conduct prohibited by that section of said

Act; and

plaintiff under his alleged contract of employment

and haulage with Grundy Mining Company, were in-

tegrated with tne operations of Grundy Mining Com-

pany to the eatent that there were no primary and

neutral employers or persons involved in the alleged

labor dispute and therefore there was no violation of

the Act.

8. The verdict of the jury, to the extent that it purports

to have been predicated on the law of Tennessee, is void

in that it is manifestly not predicated solely upon the

direct consequences of violent conduct or threat thereof;

and this Court is without jurisdiction in this case to enter

judgment based on state law for other than the direct

consequences of violent conduct or the threat thereof.

9. Plaintiff is not entitled to recover for alleged inter-

ference with his alleged contract of haulage with Grundy

Mining Company in that performance of such contract by

plaintiff would have been unlawful under the law of Ten-

nessee.

10. The Court erred in admitting the testimony of the

witness Beaumont relative to certain alleged events, said

to have occurred on the evening of August 16-17, 1960,

with reference to the movements of Paul Gibbs; with refer-

ence to the actual and contemplated production of mines

opened in the Grays Creek area in 1962; with reference

—

— 37a —

Motion for Judgment, etc., or for New Trial

to the fact that Grundy Mining Company did not employ

Paul Gibbs in 1962 and the reason therefor.

11. The Court erred in admitting the testimony of the

witness Callis concerning certain alleged events said to

have occurred on August 17, 1960 in Palmer, Tennessee,

and the actions of one M. L. Gary at or near a commis-

sary; and in regard to the fact that Grundy Mining Com-

pany did not employ Paul Gibbs in 1962 and the reason

therefor.

12. The Court erred in admitting the testimony of the

witness Allison concerning certain alleged events said to

have oecurred on the evening of August 16, 1960 relative

to the movements of Paul Gibbs; and of the fact that

Gibbs was not employed by Grundy Mining Company in

1962 and the reason therefor.

13. The Court erred in admitting Exhibit 34 and also

in failing to strike this exhibit on motion of the defendant.

14. A new trial should be directed because of the highly

inflammatory and prejudicial closing argument made on

behalf of the plaintiff and especially to that portion

thereof which was wholly outside of the record. In par-

ticular, the following statements made by counsel are

called to the attention of the Court:

(a) ‘‘You see, ladies and gentlemen, this is what

started, what is known in this nation, as industrial

warfare, and that is what they were doing over there.

Now, what they are doing is what I eall legal war-

fare. They will do what they please, the law doesn’t

mean (snaps fingers) that to them.’’...

(b) Now, on this conspiracy, certainly Mr. Kramer

and Mr. Rayson, the able lawyers that they are, have

done a magnificent job, but ladies and gentlemen, I

point an accusing finger at that Mr. Owens because

SL eT IST Fina ONS R RN AE

— 38a —

Motion for Judgment, etc., or for New Trial

it is his father who is the secretary-treasurer of the

International, and this Mr. Owens is just as aware of

what is taking place in this case as anyone could be

after years and years of study, .. .”’

it get these contracts, how does it get them? Ladies

and gentlemen, you do it with shotguns, and you do it

with fears that you’ve heard right here.’’

(d) Now, this poverty in the coal field that Mr,

Kramer was talking about, the testimony in this ree-

ord, and I think some of you know it from general

knowledge, everybody in this courtroom is, and I’m

sure should be, proud of the Tennessee Valley Au-

thority, and the testimony in this record that some of

this coal was going to be used by them. The Ten-

nessee Valley Authority needs coal. We’ve got coal,

and we’ve got men who want to work and mine coal.

Now, who is the bugger? The bugger is the United

Mine Workers of America, for the simple reason that

they are going to pass work on their terms or else.

And if a few people starve in the midst, what differ-

ence does that make .. .’’

(e) Now, what this International Union has done,

using these locals, has conspired to destroy that man,

to bludgeon him, the same thing as taking a baseball

bat and say we defy you, Paul Gibbs, to prove this

case. We’ll beat you to a bloody pulp before you are

through. If we can’t do it with shotguns, we’ll use

every legal means to do it, and we’ll either bludgeon

you out of this case or we’ll starve~you out, one of

the two. Now, that is malicious, that’s malicious,

and you know we ask for $100,000 in punitive dam-

ages. Ladies and gentlemen, we don’t ask for

$99,999.99, we want $100,000, and I’ll tell you why.

_ - a ey

RIE Ya ee ae OS rn

—e

— 39a —

Motion for Judgment, ete., or for New Trial

That is all we sued for, to start with, but in addition

even if you awarded $100,000, they would chuckle in

their sleeves and walk out of this courtroom and

laugh. They will pay oft the $100,000 and say, oh,

well, so what. We've got mixed up, it cost us this

much, now let’s go back and do the same thing

again. I give you my word that that is exactly what

this Union is counting on.”’

(f) Certainly they want you to be light on them, so

they can pay it back and go over there and blow up

another mine, or conduct similar activities.”’

(g) Now, by your verdict you are going to put the

stamp of approval on what this Union—yes, these

locals—yes, what these locals did with the Interna-

tional’s approval. You are going to say it is all

right, and you have the approval, for armed mobs

pulling people out of automobiles, shooting in the

rear end of a car, conducting beatings, and putting

economic pressure, the terrific power of the Interna-

tional Union, against one lone American, Mr. Gibbs.

That will be your verdict if you turn this Union

loose.’’

These portions of the Argument, and other similar

parts of the Argument, taken in context with the whole

were designed, outside of issues with which the jury was

concerned, to arouse extreme resentment, passion and hos-

tility towards defendant.

15. The learned Court erred in failing to give to the jury

the following special request:

‘*You are further instructed that if you award to

the plaintiff damages based upon interference with

his employment as a supervisor or manager of the

Grundy Mining Company mines such damages cannot

yas,

— 40a —

Motion for Judgment, etc., or for New Trial

cover loss of such employment for a period of more

than eight (8) months’’.

16. The learned Court erred in failing to give to the

jury the following special request:

‘‘T further charge you that the secondary boycott

provisions of the Taft-Hartley Act require the in-

volvement of (1) an employer and (2) a second em-

ployee or person. This requirement of the Act is not

met, however, where the second employer or person

is neutral in the labor dispute as respects the position

of the first employer in said dispute or where the

second employer is acting as a part of the first em-

ployer’s business.’’

17. The learned Court erred in failing to give to the

jury the following special request:

‘*T charge you that you may not find the defendant

liable to the plaintiff under the state law unless you

find that the International Union, through duly au-

thorized individuals, engaged in acts of violence or

threats of violence in breach of the peace relative to

plaintiff’s mine and trucking operations, and _ that

such conduct damaged plaintiff.’’

18. The learned Court erred in failing to charge the

jury as requested by defendant, that for the purpose of

assessing punitive damages, the malice of an agent will

not be imputed to the principal except in limited instances.

19. The Court erred in its charge to the jury with ref-

erence to primary picketing and secondary picketing

solely in terms of the object of such picketing and did

not consider the place or situs of the picketing.

20. The Court erred in its charge to the jury in failing

to define what constitutes an agency agreement as to

PS BO i ORTEGA YH RINNE, SELENE FM Sa a

—

— 4la —

Judgment—November 27, 1962

whether or not the pickets and the defendant entered into

such an agreement or whether the pickets were acting in

their individual capacities or as representatives or agents

of their local union.

Wherefore, defendant prays the Court for judgment

notwithstanding the verdict of the jury or in the alterna-

tive for a new trial.

JUDGMENT—FILED NOVEMBER 27, 1962.

This cause came on for trial before the Court and a jury

on the 7th day of November, 1962, and the succeeding days,

and the jury having heard all of the evidence, the argu-

ment of counsel and the charge of the Court, and having

considered of the case and of the special issues submitted

to it by the Court, and having found that the plaintiff was

entitled to have and recover of the defendant damages in

the amount of Sixty Thousand Dollars ($60,000.00) by rea-

son of loss or interference with his employment contract

with Grundy Mining Company and the sum of Fourteen

Thousand Five Hundred Dollars ($14,500.00) by reason of

the loss of or interference with his hauling contract with

Grundy Mining Company; and the jury having further

found that the plaintiff is entitled to recover of the defend-

ant nunitive damages in the amount of One Hundred Thon-

sand Dollars ($100,000.00) ;

It Is, Therefore, Hereby Ordered, Adjudged and Decreed

that the plaintiff, Paul Gibbs, have and recover of the de-

fendant, United Mine Workers of America, the total sum

of One Hundred Seventy-four Thousand Five Hundred

Dollars ($174,500.00) with interest thereon at the rate of

six (6%) pereent per annum from the date of this judg-

ment until the same is paid, together with the costs of this

action.

YETI LILIES Y TERME NTL ES SY “MH an a tan atte

RIG

SATA DUTP SINE RE INS RRL eGR

= ROAR

— 42a —

Opinion

The Clerk of this Court is directed to pay the amount of

this judgment to the law firm of Van Derveer, Brown &

Siener, attorneys for the plaintiff, when said sum and its

accrued interest thereon has been paid into the hands of

the Clerk.

Approved for entry.

FRANK W. WILSON,

United States District Judge.

* * * * ” * *

OPINION—FILED JULY 18, 1963.

This case is now before the Court upon the motion

of the defendant, United Mine Workers of America, for

either a judgment notwithstanding the verdict or for a

new trial. Upon trial of the case the jury found in re-

sponse to special issues that the defendant, United Mine

Workers of America, hereinafter referred to as ‘‘UMW”’,

had violated the so-called secondary boycott provisions

of the Taft-Hartley Act (29 U.S. C. 187) and had com-

mitted the tort of unlawful interference with the plain-

tiffs’ contract rights, and awarded the plaintiff compensa-

tory and punitive damages in the total sum of $174,500.

Some of the background to this lawsuit is undisputed

in the record and may be stated as follows. Tennessee

Consolidated Coal Company, hereinafter referred to as

‘‘Consolidated’’, owns extensive coal lands in the South-

eastern Tennessee Coal Fields and over a period of many

years has engaged both directly in the mining of coal

and in the leasing of coal lands to others to mine. Prior

to March 15, 1960, Consolidated had operated a mine

in Marion County, Tennessee, known as the Coal Valley

Mine, this mine being operated under a collective bar-

gaining agreement with the UMW. The Coal Valley Mine

— 43a —

Opinion

was closed down by a strike upon that date when nego-

tiation of a new collective bargaining contract failed

after termination of the former contract by Consolidated

in accordance with its terms.

In August of 1960 Grundy Mining Company, herein re-

ferred to as ‘‘Grundy’’, a wholly owned subsidiary of

Consolidated, took steps to open new mines in the Gray’s

(reek Area of Marion County, Tennessee, within the

general vicinity of the Coal Valley Mine and upon Con-

solidated coal lands. In preparation for opening these

new mines Grundy agreed to employ Paul Gibbs, the

plaintiff herein, as mine superintendent at a salary of

$600 per month. At the same time Gibbs asked for the con-

tract to haul the coal from the new mines at a price of 78¢

per ton and this was also agreed upon by the parties.

Both the employment contract and the trucking contract

were for an indefinite period. Gibbs’ background was

that of a coal operator and trucker.

Grundy proposed to open the new mine in the Gray’s

Creek Area without a contract with the UMW. Upon

Monday, August 16, 1960, the first day work was scheduled

to begin, Gibbs and a few others appeared for work,

but picketing and a show of force took place by UMW

members who were former employees of the Coal Valley

Mine and no work was done. Violence or threatened vio-

lence continued the next day and all efforts by Grundy

to open the mines in the Gray’s Creek Area appear to

have ceased after the second or third day. The picketing

continued from August, 1960, until the following May,

1961. Gibbs drew one check of $300 under his salary

agreement. He never got to haul any coal under his

trucking contract with Grundy. In May of 1961 Consoli-

dated contracted with a firm by the name of Allen &

Garcia, an engineering firm, as operators to reopen the

~ a

— 44a — .

Opinion

Coal Valley Mine and this was done by Allen & Garcia

under a collective bargaining agreement with UMW. This

lawsuit was begun in August of 1961, but to carry events

down to the time of the trial, it appears that the Coal

Valley Mine continued in operation by Allen & Garcia

under contract with the UMW until it was closed in the

early summer of 1962 when a fault in the coal seam was

struck. Thereupon Allen & Garcia opened a new mine

in the Gray’s Creek Area and moved the Coal Valley

equipment and personnel to the new mine. In September

of 1962 Allen & Garcia terminated its operating contract

with Consolidated and gave notice of termination of the

UMW contract. Grundy thereupon took over the Gray’s

Creek operation, and in addition opened some seven or

eight hand loading mines in the area, but did not further

employ Gibbs in any of these operations.

This lawsuit was begun upon August 23, 1961, when

the plaintiff, Gibbs, filed suit herein against the UMW

seeking to recover compensatory and punitive damages

and alleging that UMW had violated Section 303 of the

Taft-Hartley Act (29 U. S. C. 187) and was guilty of

a common law conspiracy aimed at him. The case was

tried by the plaintiff upon the theory that the UMW had

directed its unlawful activities toward various coal op-

erators with whom Gibbs had business dealings or with

whom he anticipated doing business, including Grundy,

Consolidated, Tennessee Products and Chemical Company,

and one George Ramsey, in an alleged effort to cause

them to cease doing business with him or to refuse to

do business with him. At the conclusion of all of the

evidence the Court concluded that the evidence was in-

sufficient to warrant submitting to the jury the issues

with reference to any losses sustained by the plaintiff

by reason of any UMW activities directed toward in-

— 45a

Opinion

ducing Consolidated, Tennessee Products & Chemical

Company and George Ramsey to either cease or refuse

to do business with Gibbs, but rather that the case should

be submitted to the jury only with reference to any

compensatory or punitive damages the plaintiff might

be entitled to recover by reason of UMW activities al-

leged to have been directed toward having Grundy termi-

nate its employment contract and its trucking contract

with Gibbs.

The case was submitted to the jury upon a number

of special issues. The jury found all issues in favor of

Gibbs and against the UMW and awarded compensatory

damages to Gibbs in the sum of $60,000 for termination

of his employment contract with Grundy, and in the

sum of $14,500 for termination of his trucking contract

with Grundy and awarded punitive damages to Gibbs in

the sum of $100,000, for a total award of $174,500 to the

plaintiff.

A number of grounds in the defendant’s motion for

a judgment notwithstanding the verdict, or in the alter-

native for a new trial, are directed toward alleged errors

in the jury verdict in finding that the defendant violated

the secondary boycott provisions of the Labor-Manage-

ment Relations Act. It is the contention of the defendant

in this regard that under the evidence in this case there

either was no secondary boycott as a matter of law, or

that the evidence preponderates against such a finding.

It is the contention of the defendant that no violation

by it of 29 U. S. C. 187 (See. 303 of the Labor-Manage-

ment Relations Act as amended) was shown in the evi-

dence as (1) there was no evidence that the defendant

was responsible for the activity alleged to constitute

a secondary boycott, and (2) any loss oceasioned the

plaintiff was at most the result of primary union activity

nag

— 46a —

Opinion

and not the result of any secondary activity for the

reason that (a) such activity was limited to the premises

of Grundy Mining Company, the employer with whom

the dispute existed, (b) the object of the activity was

clearly to further claimed job rights with Grundy, and

not to induce Grundy to cease doing business with Gibbs,

not such ‘‘other’’ or ‘‘neutral’’ person as to be the object

of a proscribed secondary boycott, but rather was a part

of Grundy, the primary employer.

Considering the defendant’s contentions in the order

stated above, the Court is of the opinion that there was

sufficient evidence in the record to warrant submitting

to the jury the issue of the defendant’s responsibility

for activity alleged to constitute secondary boycott. By

stipulation UMW admits its responsibility for acts of

its field representative, George Gilbert, performed in the

scope of his employment. Without now determining

whether the evidence was sufficient to permit a jury

finding that UMW was responsible for the activities and

violence testified to as having occurred in the Gray’s

Creek Area upon August 15 and 16, 1960, it appears un-

disputed that the UMW became aware of such activities

by the 16th. There is evidence upon which the jury

could find that thereafter Gilbert participated in and

supported, if not controlled, the picketing that occurred.

The witness, Swope, testified that George Gilbert gave

instructions to the pickets to permit Swope to pass

through the picket lines. The witnesses, Gibbs, Campbell,

and Higgins, each testified to conversations with George

Gilbert during the course of the picketing indicating his

support of the picketing and his direction of union ac-

tivities toward the end of preventing Gibbs from working

for Grundy or from bringing into the Gray’s Creek Area

— 47a —

Opinion

- the Southern Labor Union, a competitive union. Whether

Gilbert or the UMW was or was not responsible for any

violence or threats of violence that may have occurred

either before or after August 16 is not controlling on the

issue of secondary boycott, as it is the object of the

union activity that constitutes the essence of the unfair

labor practice involved in a proscribed secondary boy-

ecott. As stated in the case of NLRB v. International Rice

Milling Co., 341 U. S. 665 at 672:

«| , Violence on the picket line is not material

(and) . . . would not in itself bring the complained

of conduct into conflict with Section 8 (b) (4). It is

the object of union encouragement that is proscribed

. rather than the means adopted to make it felt.’’

The UMW next contends that Gibbs’ loss of employ-

ment and loss of his trucking contract would at most

be the result of primary union activity directed toward

Grundy, and therefore not actionable under 29 U.S. C.

187, as the union activity was limited to the premises

of Grundy. In support of its position in this regard, the

defendant relies principally upon the case of Electrical

Workers v. Labor Board (cited as Local 761 v. NLRB),

366 U. S. 667, which it is contended holds that picketing

at the situs of the primary employer does not violate

the secondary boycott provisions of Sec. 8 (b) (4) (A)

of the National Labor Relations Act [29 U. S. C. 158 (b)

(4) (A)]. It is believed by the Court that the holding

in the Electrical Workers case is not controlling under

the facts and circumstances of the principal case. That

ease involved a review of a National Labor Relations

Board decision that held that picketing of the primary

employer, General Electric Company, that extended to

a gate not used by employees of the primary employer,

but which was rather used only by employees of inde-

IUCN BC rot irate aaa st

— 48a —

Opinion

pendent contractors of General Electric Company, was

an unfair labor practice under Sec. 8 (b) (4) (A) in a

labor dispute between the union and General Electric

Company. The Supreme Court affirmed this holding with

the proviso that should it be made to appear that the

independent contractors’ employees performed work to a

substantial extent that contributed to the normal opera-

tions of General Electric Company, then the picketing

of such employees’ gate would not constitute an unfair

labor practice. In distinguishing the case it must be

remembered that a Board decision and not a jury verdict

was there involved and the appellate review is not the

same. Even if the Electrical Workers opinion were, as

contended by UMW, authority for the proposition that

picketing at the situs of the primary employer could

not constitute a See. 8 (a) (4) (B) unfair labor practice

though it had a secondary effect upon others, this is not

decisive of the issues in the principal case. No issue

was involved in the Electrical Workers case but that

General Electric was the object of the primary activity,

whereas whether Grundy was the object of primary or

secondary activity or both is one of the disputed issues

in the principal case. No issue was there involved but

that all union activity occurred on the premises of Gen-

eral Electric Company, the primary employer, whereas

the activity complained of in the principal case occurred

at various places at various times. The statement in the

Electrical Workers case that ‘‘the distinction between

legitimate ‘ primary activity’ and banned ‘secondary ac-

tivity’ does not present a glaringly bright light’’ is an

effective understatement of the complex and vague word-

ing of the sections of the Act here involved. The Court

there likewise pointed out that the meaning of the sec-

ondary boycott provisions of the Act must be worked

out with reference to the facts of a particular case rather

— 49a —

Opinion

than in the statement of all-inclusive principles when it

stated:

‘“‘The nature of the problem, as reveaied by un-

folded variant situations, inevitably involves an evo-

lutionary process for its rational response, not a

quick, definitive formula as a comprehensive answer.”’

While the situs of the union activity would be evidence

which the Jury might properly consider in determining

the object of such activity, where the object is in issue,

the situs is not itself controlling in establishing a see-

ondary boycott.

The essence of the statutory language pertinent to the

issues of this lawsuit, when stripped of all non-applicable

phrases and when stripped of references to interstate

commerce, is as follows:

‘*(b) It shall be an unfair labor practice for a

labor organization or its, agents .

‘**(4) (i) to engage in or to induce or encourage

any individual . . . to engage in, a strike or refusal

in the course of his employment . . . to perform

any services or (ii) to threaten, coerce, or restrain .

any person . . ., where in either case an object

thereof is

(B) forcing or requiring any person to . . . cease

doing business with any other person . . . provided

that nothing contained in this clause (b) shall be

construed to make unlawful, where not otherwise un-

lawful, any primary strike or primary _picket-

Pees

When viewed in its essence, it is apparent that the speci-

fied union activity becomes unlawful and therefore ac-

tionable as a secondary boycott, when an object of such

uion activity is to force or require any person to cease

doing business with any other person, provided that the

— 50a —

Opinion

activity is not a primary strike or primary picketing,

having only an incidental or secondary effect upon the

other person. In this regard it is necessary to distinguish

between primary activity having a secondary effect upon

others, which is not actionable,! and activities directed

toward one person and having as an object the causing

of that person to cease doing business with another person

with whom a primary labor dispute exists, which is ae-

tionable.?

The UMW next contends that under the facts of the

principal case any union activity would in no event be

actionable under 29 U. S. C. 187, as the object of the

activity was clearly to further claimed job rights with

Grundy, and not to induce Grundy to cease doing busi-

ness with Gibbs. As stated above in discussing the issue

of UMW’s responsibility for any activity, the witnesses,

Gibbs, Campbell, and Higgins, each testified to statements

having been made by George Gilbert that would indicate

that his purpose or object was to prevent Gibbs from

working for Grundy or from bringing into the Gray’s

Creek Area the Southern Labor Union. This evidence

would support the jury verdict when it found that an

object of the union activity was to cause Grundy to

cease doing business with Gibbs with respect to both

his employment contract and his trucking contract. The

fact that the union may have had some object or objects

other than and in addition to causing Grundy to cease

1 Electrical Workers v. Labor Board, 366 U. S. 667 (1961); Seafarers

International Union v. NLRB, 265 F. 2d 585 (D. C. Cir., 1959).

2 United Mine Workers of America v. Meadow Creek Coal Co., 263

F. 2d 52 (C. C. A. 6, 1959) cert. denied 359 U. S. 1013; United Mine

Workers of America v. Osborne Mining Co., 279 F. 2d 716 (C. C. A. 6,

1960) cert. denied 364 U. S. 881; Gilchrest v. United Mine Workers of

America, 290 F. 2d 36 (C. C. A. 6, 1961) cert. denied 368 U. S. 875;

Flame Coal Co. v. United Mine Workers of America, 303 F. 2d 39 (C. C.

A. 6, 1962); Sunfire Coal Co. v. United Mine Worke>s of America, 313

F. 2d 108 (C. C. A. 6, 1963); White Oak Coal Co., inc. v. United Mine

Workers of America (Opinion May 24, 1963), ... F. 2d ... (C. C. A. 6,

1963); Joe R. Allen et al. v. United Mine Workers of America (Opinion

June 26, 1963), ... F. 24... (CC. C. A. 6, 1963).

SLR BLD LEA RENTPRR SLOAN

— 5la —

Opinion

doing business with Gibbs would not prevent the activity

from constituting a secondary boycott insofar as Gibbs

was concerned, and therefore actionable by him as such.

As stated in the case of Flame Coal Co. v. UMW, 303 F.

9d 39 (C. C. A. 6, 1962).

‘‘This union cannot escape the charge of secondary

boycott because it chose to attack on all fronts at

once, claiming its desire and objective to be the

organization of all involved, whether producers, trans-

porters, or processers of coal. United Mine Workers

of America v. Osborne Mining Co., 279 F. 2d 716,

723.”

Finally, upon the issue of secondary boycott it is con-

tended by the defendant that any union activity here

involved would in no event constitute an actionable sec-

ondary boycott as to Gibbs for the reason that, as mine

superintendent for Grundy, he was not such an ‘‘other

person’’ within the contemplation of See. 8 (b) (4) (B)

as to be the object or victim of a proscribed secondary

boycott, but rather he was a part of Grundy, the primary

employer. The relationship of Gibbs to Grundy, namely

that he was hired as mine superintendent for Grundy

and as a contract coal hauler, is undisputed in the record.

Therefore, whether he or is not such ‘‘other person’’,

the ceasing of business with whom may constitute an

actionable secondary boycott, is a question of law.

If the language of the statute is to be literally inter-

preted, then Gibbs is clearly an ‘‘other person’’ from

Grundy, as would be any officer or employee of Grundy.

However, as stated in Electrical Workers v. Labor Board,

366 U. S. 667:

‘‘This provision could not be literally construed;

otherwise it would ban most strikes historically con-

sidered to be lawful, so-called primary activity.”’

itis cat onicsrninte re geereieal aaah re ae ee

o2a —

Opinion

Likewise, as noted in Seafarers International Union y.

NLRB (1959), 265 F. 2d 585, when read literally, the

Act would outlaw picketing at the primary employer’s

premises so that the language must be construed in the

light Congressional intent and in the light of the proviso

that nothing in the Act shall be construed to make any

primary strike or primary picketing unlawful.

In support of its contention that Gibbs is not such

‘‘other person’’ from Grundy as to be the object of a

secondary boycott for activities directed at Grundy, the

defendant relies principally upon the case of Seeley y,

Brotherhood of Painters, 308 F. 2d 52 (5 C. C. A., 1962).

In that ease the plaintiff, in one of several counts, alleged

that he had a cause of action against the defendant union

under 29 U. S. C. 187, in that the defendant caused the

plaintiff’s employer to discharge him. The Court, in

holding that the count failed to state a cause of action,

stated that discharging an employee did not constitute

‘‘eeasing to do business with any other person,’’ stating

further, ‘‘We do not think the relation of employer and

employee, including one employed as a supervisor, is that

of ‘any other person’ within Section 158 (b) (4).’’ The

Court reached this conclusion on the ground that ‘‘no

secondary boycott was involved in this ease,’’ which is

rather unsatisfactory reasoning in that it begs the ques-

tion.

The defendant relies upon other authority as requiring

that the plaintiff be a ‘‘neutral’’ before he is entitled

to the benefit of the statutory secondary boycott action.*

That this is not an accurate statement of law is apparent

when it is recalled that 29 U. S. C. 187 (b) provides that

8 Truck Drivers and H. Local 728 v. Empire State Express, 293 F. 2d

414 (5 C. C. A. 1961) cert. denied 368 U. S. 931 (1961):Building Service

Employees v. NLRB, 313 F. 2d 880 (D. C. Cir, 1963): International

Brotherhood of Electrical Workers v. NLRB, 181 F. 2d 34 (C. C. A. 2,

1950).

Opinion

«whoever shall be injured’’ by a secondary boycott may

recover, including the employer with whom the primary

dispute exists. While the word ‘‘neutral’’ may be useful

in identifying a case of secondary boycott in a clear and

classical ease of secondary boycott, little help is needed

in identifying a clear and classical secondary boycott.

The word ‘‘neutral’’ can be misleading in other situa-

tions, as for example where the union strikes on all fronts

at onee, as was the case in Flame Coal Co. v. United

Mine Workers of America, 303 F. 2d 39 (C. C. A. 6, 1962),

where the Court held that such union activity did not

escape the charge of secondary boycott. If two employers

each simultaneously has a dispute with the same union,

they may be neutral as to each other’s dispute, but they

are in no sense neutral as to the union.

While a correct result may have been reached in each

of the foregoing cases relied upon by the defendant as

authority for excluding an employee or supervisor from

the meaning of ‘‘other person’’ in See. 8 (b) (4) (B),

the reasons given for reaching such conclusion are often

unsatisfactory. Reference to the full wording of the sec-

tion will more properly reveal the meaning that must

necessarily be placed upon the words ‘‘other person’’.

When it is noted that the proviso expressly excludes

primary strikes and primary picketing, it is apparent

that employees and supervisors of any struck or picketed

primary employer who may lose their employment are

| not within the meaning of ‘‘other persons’’ and would

have no statutory action for any loss so occasioned.

It is apparent from the foregoing that Gibbs, in his

capacity as mine superintendent for Grundy, would not

be an ‘‘other person’’ as those words are used in the

statute. Although, as found by the jury, an object of the

picketing of Grundy was to cause it to cease employment

4 See cases cited in Footnote No. 2, supra.

— ia —

Opinion

of Gibbs, and Grundy may have been ‘‘neutral’’ or gee.

ondary to the dispute between UMW and Gibbs, there

also clearly existed a primary dispute between UMW and

Grundy. It follows that the verdict of the jury awarding

damages to Gibbs upon his statutory claim for loss of

employment must be set aside.

It does not necessarily follow, however, that, even

though Gibbs in his capacity as a mine superintendent

and in his claim for loss of employment is not an ‘‘other

person’’ from Grundy, that he is therefore in his capacity

as a coal trucker and in his claim for loss of the trucking

contract not an ‘‘other person’’ from Grundy. The evi-

dence is undisputed that Gibbs was an _ independent

trucker engaged in this business with and for persons

and companies other than Grundy. He did not work

only for Grundy in this respect. It would therefore ap-

pear that in his capacity as an independent trucker he

would be an ‘‘other person’’ from Grundy and would

be entitled to a statutory action under the secondary boy-

cott law upon this claim.

Having determined that the jury verdict should be

sustained as to the statutory cause of action for loss by

Gibbs of his trucking contract, it would follow that the

defendant’s contention that the Court was without juris-

diction of the common law conspiracy action must fail.’

Even though the federal statutory action should fail both

upon the employment and the trucking claim, it cannot

be said that the federal question was plainly wanting

in substance. Under these circumstances, in accordance

with the case of Hurn v. Cursler, #89 U. S. 238, the Court

would retain jurisdiction te dispose of the non-federal

common law claim.

5 United Mine Workers of America v. Meadow Creek Coal Co.. 243

F. 2d 52 (C C. A. 6, 1959) cert. denied 359 U. S. 1013; Flame Coal Co.

v. United Mine Workers of America, 303 F. 2d 39 (C. C. A. 6, 1962).

—

Opinion

Another series of grounds in the defendant’s motion

for a judgment n.o.v. or a new trial are directed toward

alleged errors in the jury verdict in finding that the

defendant conspired to wrongfully interfere with the

plaintiff ’s employment contract and coal hauling contract

with Grundy. It is the contention of the defendant in

this regard that the evidence fails to support the jury

verdict, particularly in view of the legal principles that

(a) the evidence must be clear and convincing for a

labor union to be held responsible in a federal court

action, in view of Section 6 of the Norris-Laguardia Act;

(b) a union is under no legal obligation to disavow un-

lawful acts of its members; (c) welfare assistance given

members, including pickets, by the union does not con-

stitute ratification of any unlawful conduct by such mem-

bers or pickets; and (d) federal law has preempted the

field of non-violent picketing so that no verdict could

be awarded upon a state common law conspiracy charge

not based on violence. The jury was correctly charged

upon all of these matters. The Court is of the opinion

_ that there is evidence in the record, when the testimony

is viewed as a whole, to support the verdict of the jury

in this respect. The contention that 29 U. S. C. 187 and

the other provisions of the National Labor-Management

Relations Act preempted the field of labor controversy

or precluded any common law action of conspiracy has

been decided against the UMW in several cases in this

circuit, the most recent being the case of White Oak Coal

Co. v. United Mine Workers of America, ... F. 2d ...

(C. C. A. 6, decided May 24, 1963). Moreover, there was

evidence of violence, threats of violence, and mass picket-

ing, any of which was sneh unlawful conduct as to sup-

port a verdict based upon common law conspiracy.

A further series of errors alleged by the defendant are

directed to the Court’s charge to the jury. It is the con-

— 56a —

Opinion

tention of the defendant that the Court was in error jy

declining a special request of the defendant relating to

a requirement that a neutral exist before an actionable

secondary boycott would exist. The Court has herein-

above dealt with the possible misleading nature of the

word ‘‘neutral’’ when used in defining a See. 8 (b) (4)

unfair labor practice. It is believed that the charge as

given correctly defined the statutory claim. Moreover,

the action of the Court in setting aside the jury verdict

on the statutory claim of interference with the plaintiff’s

employment contract would render this ground of the

defendant’s motion moot. The other alleged errors in the

charge were matters not raised at the time of the trial

as required by Rule 51, Federal Rules of Civil Procedure.

It is believed that in any event no error was committed

in the matters complained of.

A further ground for new trial relied upon by the de-

fendant is the alleged improper argument of the plain-

tiff’s counsel in his closing argument. Among other re-

marks, counsel for the plaintiff accused the defendant

of not caring a snap of the fingers for the law and of

attempts to bludgeon or starve his client out of the law-

suit. The Court is of the opinion that the argument was

improper. While an advocate may share his client’s

prejudices against an adversary, he cannot properly share

them with the jury, particularly when they do not relate

to any matters in evidence. However, the Court is of the

opinion that the argument was not so prejudicial as to

warrant a new trial, but should rather be taken into con-

sideration by the Court upon the issue of excessiveness

of the verdict.

Further grounds relied upon by defendant in its motion

relate to the alleged lack of evidence on the issue of

damage and the alleged excessiveness of the verdict in

this respect. The only evidence in the record that might

Opinion

support any recovery of damage with reference to the

loss of the plaintiff’s trucking contract was the plaintiff’s

own estimate of the profit he would have made on the

contract, as set forth in Plaintiff’s Exhibit No. 34, in the

amount of $14,029. His actual experience in the coal

trucking business reflected substantial losses, rather than

profits, for preceding years. Not only is there an absence

of credible evidence to support the estimate but the

estimate is admittedly based upon carrying loads sub-

stantially in excess of the permissible weight limits ap-

plicable to the plaintiff’s trucks under the laws of Ten-

nessee. The issue here is not the validity or invalidity

of the coal hauling contract, or the right of a third party,

the UMW, to assert its invalidity, as apparently argued

in the plaintiff’s brief. The issue here is as to the pro-

bative value of the evidence of the loss of prospective

profits when based upon prospective violation of truck

weight laws. The Court is of the opinion that such evi-

dence has no probative value.* Under these circumstances

the record is devoid of any evidence upon which a jury

might return a verdict awarding any damages for loss

by the plaintiff of his trucking contract and the defend-

ant’s motion for a directed verdict upon this issue made

at the conclusion of the evidence should have been sus-

tained.

With respect to the verdict awarding damages unto

the plaintiff for loss of his employment contract, the

Court is of the opinion that there is evidence in the

record upon which a verdict might be sustained. How-

ever, without here reviewing the evidence relating to

damages sustained by reason of loss of the employment

contract, other than to note that the employment con-

tract was terminable at will by either party, the Court

is of the opinion that the verdict of the jury upon this

6 Shelley v. Hart, 297 P. 82 (Calif., 1931). See also 25 C. J. S., Dam-

ages, Sec. 42(B) and 15 Am. Jur., Damages, Secs. 158, 159.

ong

— 58a —

Opinion

issue is clearly excessive to the extent of $30,000. Like.

wise in reviewing the evidence and reflecting upon the

argument of the plaintiff’s counsel to the jury, the Court

is of the opinion that the jury verdict upon the issue of

punitive damages is clearly excessive to the extent 95f

$55,000. A remittitur in the sum of $30,000 upon the

issue of loss of the plaintiff’s employment contract and

in the sum of $55,000 upon the issue of punitive damages

is therefore suggested, or otherwise a new trial will be

ordered.

The Court has reviewed Grounds 10, 11, 12, and 13 of

the defendant’s motion relating to the admissibility of

various items of evidence upon the trial, and is of the

opinion that these grounds are without merit and should

be overruled.

It therefore results that the verdict of the jury in favor

of the plaintiff on the issue of loss of the plaintiff’s

employment contract by reason of a statutory secondary

boycott will be set aside. The verdict of the jury award-

ing damages unto the plaintiff on the issue of loss of the

plaintiff’s trucking contract by reason of both a statutory

secondary boycott and a common law conspiracy will be

set aside. The defendant’s motion for a judgment n.o.v.

upon these issues should be sustained. Unless the plain-

tiff shall agree to accept a remittitur of $30,000 in the

jury verdict on the issue of damages by reason of loss

of the plaintiff’s employment contract as a result of a

common law conspiracy and to accept a remittitur of

$55,000 in the jury verdict on the issue of punitive dam-

ages, the Court believes that these issues should be sub-

mitted to another jury and a new trial will be ordered.

An order will enter accordingly.

FRANK W. WILSON,

United States District Judge.

— 59a —

Judgment—August 28, 1963

JUDGMENT—FILED AUGUST 28, 1963.

This cause having heretofore been heard by the Court

on the motion of the defendant, United Mine Workers of

America, for a judgment notwithstanding the verdict of

the jury and in the alternative for a new trial, and the

Court having fully considered said motion and each ground

thereof hath filed herein its Opinion setting forth fully

the conclusions reached, which Opinion is made a part

of the record in this case.

It is accordingly Ordered, Adjudged and Decreed that

the defendant’s motion for judgment n. o. v. on the issue

of the loss of plaintiff’s trucking contract, which issue is

based upon alleged statutory secondary boycott and also

upon alleged common law conspiracy, be and the same is

hereby sustained and the judgment heretofore entered is

accordingly modified so as to eliminate therefrom the

award of $14,500.00 made by the jury to the plaintiff on

the aforesaid claim of loss on his trucking contract.

It is Further Ordered, Adjudged and Decreed that, in

accordance with said Opinion, the defendant’s motion for

judgment n. o. v. on the issue of loss of plaintiff’s employ-

ment contract be and the same is hereby sustained insofar

as said motion is directed to the assertion of said claim

upon the basis of secondary boycott but said motion for

judgment n. o. v. on this issue is overruled insofar as this

claim is based upon alleged common law conspiracy.

The Court is further of the opinion and for the reasons

set forth in its said Opinion doth find and decree that

the verdict of the jury in awarding $60,000.00 to the plain-

tiff for loss on his employment contract is clearly exces-

sive to the extent of $30,000.00, and is also of the opinion

and for the reasons set forth in its Opinion doth find and

decree that upon the issue of punitive damages the ver-

me — 60a —

bel CA

Judgment—August 28, 1963

dict of the jury is clearly excessive to the extent of

$55,000.00. Accordingly, a remittitur in the sum of $30,

000.00 upon the issue of loss in connection with the plain-

tiff’s employment contract, and a remittitur in the sum

of $55,000.00 upon’ the issue of punitive damages is sug-

gested.

The plaintiff has now filed a written acceptance of the

suggested remittitur. It is therefore Ordered, Adjudged

and Decreed that the plaintiff, Paul Gibbs, have and re-

cover of the defendant, United Mine Workers of America,

the sum of $75,000.00 with interest thereon at the rate

of 6% per annum from and after the date of entry of this

judgment.

The various grounds of the motion for judgment n. o. v.

and for new trial are referred to in this judgment and

overruled as shown in the Opinion of the Court filed

herein.

The clerk of this court is directed to pay the amount

of this judgment unto the plaintiff and the law firm of

VanDerveer, Brown & Siener, attorneys for the plaintiff,

when the said sum and its accrued interest thereon have

been paid into the hands of the clerk of this court.

Approved for Entry.

FRANK W. WILSON,

United States District Judge.

Civil

Filed Aug. 26, 1963.

Ent’d. Order Bk. 17, pp. 276, 277.

JAMES W. PARROTT, Clerk,

By HATTIE SAULPAW, Dep. Clk.

“ * * * * * +

— 6la —

Order Correcting Clerical Error in Judgment

CONSENT TO REDUCE VERDICT—

FILED AUGUST 26, 1963.

Comes Paul Gibbs, the plaintiff in the above styled ac-

tion, by and through his attorneys, Van Derveer, Brown

& Siener, and accepts the remittitur suggested by the

Court in its Memorandum Opinion filed July 18, 1963, and

consents that the verdict of One Hundred Seventy-Four

Thousand Five Hundred Dollars ($174,500.00) rendered

in favor of the plaintiff and against the defendant may

be reduced to the sum of Seventy Five Thousand Dollars

($75,000.00).

VAN DERVEER, BROWN & SIENER,

By: JOE VAN DERVEER.

ORDER—FILED SEPTEMBER 4, 1963.

Upon it being made to appear to the Court in this cause

that a clerical error was made in entering the judgment

herein under date of August 26, 1963, whereby the next

to the last paragraph of the judgment reads as follows:

‘“‘The various grounds of the motion for judgment

n. o. v. and for new trial are referred to in this judg-

ment and overruled as shown in the Opinion of the

Court filed herein.’’

and the same should be corrected to read as follows:

‘“‘The various grounds of the motion for judgment

n. o. v. and for new trial not referred to in this judg-

ment are overruled as shown in the opinion of the

Court filed herein.’’

It is therefore Ordered that the next to the last para-

graph of the judgment entered in this cause under date

of August 26, 1963 be corrected to read as follows:

—

— 62a —

Notice of Appeal by Defendant

‘‘The various grounds of the motion for judgment

n. o. v. and for new trial not referred to in this judg-

ment are overruled as shown in the opinion of the

Court filed herein.’’

Approved for Entry.

FRANK W. WILSON,

United States District Judge.

* * * 7 * * *

NOTICE OF APPEAL—FILED SEPTEMBER 24, 1963.

Notice is hereby given that the United Mine Workers of

America, the defendant in the above-styled case, hereby

appeals to the United States Court of Appeals for the Sixth

Circuit from the judgment entered on November 27, 1962,

and from the judgment overruling the defendant’s motion

for judgment notwithstanding the verdict and defendant’s

alternative motion for a new trial, which judgment was

entered in this action on August 26, 1963, and thereafter

modified by order dated September 4, 1963, to correct a

clerical error.

WILLARD P. OWENS,

900 Fifteenth Street, N. W.,

Washington 5, D. C.,

EK. H. RAYSON,

R. R. KRAMER,

904 Burwell Building,

Knoxville, Tennessee,

Attorneys for Defendant, United

Mine Workers of America.

* * * * . * *

————

Summary of Proceedings in Chambers

_ on

NOTICE OF APPEAL—FILED SEPTEMBER 25, 1963.

Notice Is Hereby Given that Paul Gibbs, the plaintiff in

the above-styled case, hereby appeais to the Circuit Court

of Appeals for the Sixth Circuit, from the final judgment

entered in this action on the 26th day of August, 1963.

This 25th day of September, 1963.

VAN DERVEER, BROWN & SIENER,

By: JOE VAN DERVEER,

The James Building,

Chattanooga, Tennessee.

SUMMARY OF PROCEEDINGS IN CHAMBERS.

Gibbs v. U. M. W. A.—U. 8S. D. C., E. D. Tenn.,

8. D. No. 3771.

11/ 7/62 Conference in Chambers prior to the beginning

of the trial. (Not reported.)

“ Conference in Chambers following swearing of

the jury. (Not reported.)

* Conference in Chambers at the end of Mr. Gibbs’

testimony (first appearance) with regard to Mr.

Kramer’s objection to admission of Exhibits

P-13 and P-14. Motion heard and argued. Rul-

ing: Exhibits 13 and 14 admitted and allowed

to be filed.

n Conference in Chambers prior to beginning of

the afternoon session. (Not reported.)

11/ 9/62 Conference in Chambers following testimony of

Mr. Gibbs, re:

my,

roa

| ee aR EN ER REE Rw ec:

11/ 9/62

— 64a —

Summary of Proceedings in Chambers

1st, with respect to defendant’s objection to the

admission of Exhibits P-27 and P-28 (objection

heard and argued). The Court said:

‘‘T think in this instance, on these two ex-

hibits, 27 and 28, that the objection of the

defendant should be sustained, at least to this

extent, and that is that any projection of profit

from the hauling contract should be limited

to the coal for which there has been estab-

lished a market in the proof, not to the pro-

ductive capacity. . . . So what I am say-

ing is that you will be permitted to make a

projection such as this, to the limit of 35,000

tons, but beyond 35,000 tons I feel that it is

too speculative to allow the jury to consider

it. Now as to the other grounds of the objec-

tion, some of them I think should be de-

veloped in cross-examination as to the ques-

tion of the accuracy of the cost that they have

deducted.’’

2nd, with respect to defendant’s motion with re-

gard to the absence of evidence as to plaintiff’s

obtaining State certificate as a coal-hauling con-

tractor. (Motion heard and argued.) The Court

said:

‘“*As to the legal questions that you have

raised about the statute, the certificate of a

contract hauler, I think that is a matter that

we can give careful attention to after the trial,

and it should not prevent the plaintiff from

going forward at this time.”’

3rd, with respect to defendant’s objection to the

admission of Exhibit P-33 on the issue of future

11/13/62

— 65a —

Summary of Proceedings in Chambers

profits or damages based on any Taft-Hartley

violation. (Objection heard and argued.) The

Court said:

‘‘Of course, I understand your objection at

this point to this exhibit is based upon the

proposition that there is no evidence in the

record from which there could be a jury issue

on any Taft-Hartley violation or any con-

spiracy that caused the termination of these

leases; therefore any evidence on this issue is

not material. Now, if you have any other

basis for objecting . . .”’

Mr. Kramer: Yes, we do, your Honor. (Further

argument heard.) The Court said:

‘‘All right. Well, I believe the objection to

the Exhibit P-33 should be overruled, and we

will proceed accordingly. Again, we can

always pass on this problem at the time we

consider what issues we submit to the jury.’’

(See Appendix B.)

Conference in Chambers at 8:00 a. m. prior to

the resumption of the trial in open court, re:

1st, Mr. Kramer’s motion to dismiss the entire

action, first, on jurisdictional grounds, etc. (Mo-

tion heard and argued.) The Court said:

‘*All right. With respect to the overall mo-

tion of the defendant, I fee! the Court should

overrule the motion. Now, with respect to

those four possible bases of having a sec-

ondary boycott—in other words, I’m in a

quandary here whether by ruling on the mo-

tion with respect to the overall motion you

have made, whether I am at the same time

— 66a —

Summary of Proceedings in Chambers

ruling upon the possible existence under the

proof of all four of the suggested boycotts.”

Mr. Kramer: May it please the Court, your

Honor might reach some such conclusion. |

have four additional motions reaching each of

these possible .

The Court: Well, I think that I shall overrule

the motion of the defendant with respect to

there being no jurisdiction, either alleged or

established in the proof, of any—by any viola-

tion of the Taft-Hartley Act.

2nd, Mr. Kramer’s motions with reference to

whether or not a secondary boycott existed as

to George Ramsay, Grundy Mining Co., Tennes-

see Consolidated, and Tennessee Products. (Mo-

tions heard and argued.) The Court said:

‘‘Its the opinion of the Court that the evi-

dence does not establish that a violation—

there’s no evidence upon which a jury might

find that a violation of the Taft-Hartley Act

existed insofar as George Ramsay was con-

cerned. . . . So that motion will be sus-

tained insofar as the secondary boycott is

claimed toward George Ramsay (C-7-23).

‘‘Well, with respect to the motion insofar as

Tennessee Products is concerned, I believe the

motion should be sustained (D-3-23)

Any conclusion by the jury on either of those

issues, it seems to me, would have to be

speculation. I believe the motion should be

sustained (D-4-22).

‘*T am unable to see where there is any evi-

dence in the record that would warrant sub-

—

— 67a —

Hearing in Chambers

mitting the case on the issue of damages as

to the Tennessee Consolidated (D-11-7).

‘I believe, however, as to that motion, un-

less there is something further on it, that the

motion as to Grundy (Mining Co.) should be

overruled and the jury can be ready to pass

upon the question—as to whether or not there

was a secondary boycott, as to whether or not

there was a conspiracy, as to whether or not

there were damages’’ (E-3-19).

11/18/62 Also, at this conference in Chambers, special

requests to charge were discussed, and the rul-

ing of the Court as to each request was noted

thereon by the Court.

Also at this conference, the matter of the form

of the verdict was discussed and resolved.

11/14/62 Conference in Chambers following charge re re-

quests for additional requests to charge. See

Ap. F for verbatim report of the conference pro-

ceedings.

HEARING IN CHAMBERS NOVEMBER 13, 1962.

1* Mr. Kramer: May it please the Court, the defendant

moves to dismiss this entire action because in this case

jurisdiction of this court is based entirely upon the alleged

violation of the Taft-Hartley Act. And the plaintiff has

not asserted a substantial cause of action either in the

pleadings or under the proof under this Taft-Hartley Act.

And jurisdiction of the Court to hear and determine the

alleged cause of action based upon plain violation of the

* Numbers appearing in outer edge of text indicate page numbers of

original stenographic transcript of testimony.

Maes ns # 4 * 4 Re ee e Csew- BEM NPVOINOAD SSA

RRR GS RC

oe eae

— 68a —

Hearing in Chambers

Tennessee common or statutory law, that it is based upon

conspiracy, if existing, is based upon the theory of ancillary

or pendant jurisdiction, and such jurisdiction does not and

cannot exist in this case in as much as the substantial

cause of action under the federal act is not here asserted

either in the pleadings or in the proof. And this motion

goes to the dismissal of the entire cause or case.

The Court: Now that motion is based upon both the

pleading and on the proof?

Mr. Kramer: It is, your Honor.

The Court: . . . the jurisdiction.

Mr. Kramer: We heretofore had the motion on the

2 pleadings alone. And it is now based upon both.

The Court: All right.

7 The Court: If not, it’s the opinion of the Court that

the evidence does not establish that a violation—

there’s no evidence upon which a jury might find that a

violation of the Taft-Hartley Act existed in so far as

George Ramsey was concerned. First, in that there is no

evidence upon which the jury might find that the Union

activity was directed toward Ramsey in violation of the

Act. And second, there is no evidence of any legally

established damages or injuries. The prospective loss

of contracts or haulage agreements which never had in

fact existed would be so speculative, so remote, as to not

to establish any issue that the jury could pass on with

regard to damages, it seems to me. So that the motion

will be sustained in so far as the secondary boycott is

claimed toward George Ramsey. All right.

Mr. Kramer: Our next motion, your Honor, is to the

same effect and directed to the claim of the secondary

boycott against Tennessee Products and Chemical Com-

pany. We do not think there is a sufficient affirmant in the

— 69a —

Hearing in Chambers

pleadings and that the proof does not establish a basis

upon which a jury could find that a secondary boycott

was directed toward Tennessee Products and Chemical

Company.

3 The Court: Well, with respect to the motion in so far

as Tennessee Products is concerned, I believe the mo-

tion should be sustained. It seems to me that—lI can’t re-

call any evidence in the case which would form a

4 basis in the evidence for concluding that first, that

the termination of the leases were as a result of the

Union activity directed toward Tennessee Products. There

is nothing in the record, it seems to me, other than just pure

speculation as to why the lease may have been terminated in

January, or a lease may have been terminated in January.

At any rate, it’s my recollection of the testimony that at-

tempted termination was not in fact accomplished, and when

the termination was actually accomplished, it was accom-

plished by Mr. Human, whose testimony was rather defi-

nite and positive that it was terminated for reasons other

than Union activity. It seems to me, too, that the problem

of damages here is so speculative and so uncertain. One

of these mines had been—the testimony appears to be clear

—had been worked out. The only evidence of production

or potential profits was a record that was introduced of an

operation more than a year prior to that time. There’s

no evidence in the record whatsoever of what the profit or

loss experience was at a time reasonably close to the time

when it’s contended that the lease or leases were ter-

minated. I don’t see how the jury could find that, first,

there was a termination by reason of unlawful union ac-

tivity on basis of the evidence in the record, nor do I see

how they could find any damages. Any conclusion by the

jury on either of those issues, it seems to me, would have

— 70a —

Hearing in Chambers

to be speculation. I believe the motion should be sus.

tained. All rigut.

Mr. Kramer: We have a similar motion, your Honor,

5 as to Tennessee Consolidated Coal Company. I am

trying to think that we not consider Tennessee Con-

solidated and a similar motion as to Grundy made sepa-

rately, but considered together at this time in the hope of

saving a little time, and . ‘

The Court: Well, I really wonder if we would. Yes,

I can tell you quite frankly what’s concerning me and

then the plaintiff can respond. On the Tennessee Consoli-

dated, I am unable to see where there is any proof of any

damage in the record so far as Tennessee Consolidated.

What is contended is that Tennessee Consolidated did not

give him further leases or further work. Wherein is that

an actionable damage—the failure to give a prospective

lease or prospective employment in the future. I’m not

aware of that being a legally actionable element of dam-

age. Now, do you have any authority for a proposition?

This was not a situation, so far as Tennessee Consolidated

was concerned, and under the record in this case where

an existing contract or an existing right was interfered

with, but rather the testimony could only establish that

a prospective right or a prospective lease of property, or

prospective employment was interfered with.

* * * * * * *

11 The Court: Well, anything further? Without at this

time passing on the question as to whether there is

evidence to go to the jury on the actions of the Union in so

far as it may or may not have been directed toward Ten-

nessee Consolidated, as the Court reads the cases, not only

the cases that are referred to in the plaintiff’s brief with

respect to similar actions, such as this, against United

Mine Workers, but other cases, I am unable to see where

Piet ———

—Tla —

Hearing in Chambers

there is any evidence in the record that would warrant

submitting the case ou the issue of damages as to the

defendant, Tennessee Consolidated. I believe the motion

should be sustained as to Tennessee Consolidated.

* * * * * 7 *

3 The Court: Except for the fact that we are, as you

know, running a little bit on time this morning, I

would want to give you every opportunity to debate the

matter fully, because it’s very helpful to me for you all to

state your position. This is not an easy case. It’s difficult.

It’s difficult to keep everything in mind at one time. There

are so many different elements to it. I believe, however,

as to that motion, unless there is something further on it,

that the motion as to Grundy should be overruled and the

jury can be ready to pass upon the question—as to whether

or not there was a secondary boycott, as to whether or

not there was a conspiracy, as to whether or not there

were damages.

Mr. Kramer: Now, your Honor, I do want to make

4 another motion.

The Court: All right.

Mr. Kramer: We move to dismiss the portion of this

suit that is based upon an alleged common law conspiracy

arising under the state statute, because the facts nec-

essary...

The Court: The state statutes?

Mr. Kramer: The state statutes—or state law. The

state law. In other words, the conspiracy portion of the

claim which was based not on secondary boycott but on

common law. That is a separate cause of action. The

factual situation is not identical with the factual situation

that is involved in the secondary boycott, and we respect-

fully insist that ancillary or pendant jurisdiction could

not attach to a secondary boycott claim or a violation of

ED Mei, SSP PETIT SGP EOE IE AF LIE AOL AEL NL I ASE OIE I TE OIL ONS LL ES Ih IED

— 72a —

Plaintiff’s Exhibit 2

the Taft-Hartley so as to give this court jurisdiction of

this claim. It’s separate and independent, and ancillary

or pendant jurisdiction principles should not carry that

case into and part of the jurisdiction of the federal court.

The Court: All right.

Mr. Kramer: And furthermore, as another basis for that

motion, the rule of law applicable with reference to agency

and the degree of proof required to establish that agency

has not been met.

* * * * * * *

5 The Court: I believe that the motion should be over-

ruled.

PLAINTIFF’S EXHIBIT 2.

National Bituminous Coal Wage Agreement of 1950

as Amended Effective December 1, 1958.

Protective Wage Clause.

The United Mine Workers of America (which, as used in

this Clause, includes all of its Districts, Local Unions,

Officers or Agents) and the Operators signatory hereto

affirm their intention to maintain the integrity of this

contract in all of its parts. The objective of this contract

is to provide the maximum possible continuity and sta-

bility of employment under the conditions set forth herein.

The parties hereto agree that bituminous coal mines shall

be so operated as not to debase or lower the standards of

wages, hours, safety requirements and other conditions

of work, established by this contract. The parties recog-

nizing their obligation each as to the other to exercise

all possible efforts and means to attain these objectives

further agree as follows:

A. During the period of this Contract, the United

Mine Workers of America will not enter into, be a

UIST Hy SP aay * PERI Lee RA Dey. SPs NRT NNR TS eR DS

ee 5:

Plaintiff’s Exhibit 2

party to, nor will it permit any agreement or under-

standing covering any wages, hours or other condi-

tions of work applicable to employees covered by

this Contract on any basis other than those specified

in this Contract or any applicable District Contract.

The United Mine Workers of America will diligently

perform and enforce without discrimination or favor

the conditions of this paragraph and all other terms

and conditions of this Contract and will use and exer-

cise its continuing best efforts to obtain full com-

plianece therewith by each and all the parties signa-

tory thereto.

B. It is recognized that when signatory operators

mine, prepare, or procure or acquire under subcon-

tract arrangements, bituminous coal mined under

terms and conditions less favorable than those pro-

vided for in this contract, they deprive employees

of employment opportunities, employment conditions

and other benefits which these employees are entitled

to have safeguarded, stabilized and protected. Ac-

cordingly, the Operators agree that all bituminous

coal mined, produced, or prepared by them, or any

of them, or procutred or acquired by them or any of

them under a sulbcontract arrangement, shall be or

shall have been mained or produced under terms and

conditions which are as favorable to the employees as

those provided for in this Contract.

‘‘Procured or acquired under a subcontract arrange.

ment’’ means any contract, lease, license, agreement,

arrangement or understanding pursuant to which the

signatory operator acquires coal, either as principal

or agent, directly or indirectly from a producer other

than such signatory for delivery to a person other

than such signatory.

EE OGRA REMI RGR LS ALLE ILL IE IL ET IONE TS TM IL RS NE TR

— 74a —

Plaintiff’s Exhibit 2

The obligation assumed hereunder shall not affect

any agreement in effect as of the date of execution

of this contract: Provided, however, that any operator

signatory hereto who is a party to any agreement

inconsistent with the obligations assumed hereunder

shall not maintain such inconsistent agreement in ef-

fect beyond the first date at which such agreement

may be terminated by him in accordance with its

terms. .

The Operators signatory to this agreement shall so

conduct their own operations (whether operated di-

rectly or indirectly, or through subsidiaries or af-

filiates) so as to fully comply with their obligations

under this Clause. The obligation of each Operator

signatory hereto, which is several and not joint, to

fully perform all the conditions in this paragraph B

contained, shall be a direct and continuing obligation

of said Operator during the life of this Agreement.

As a part of the consideration for this Agreement,

the Operators signatory hereto agree that this Clause

covers the operation of all the coal lands, coal pro-

ducing or coal preparation facilities owned or held

under lease by them, or any of them, or by any sub-

sidiary or affiliate at the date of this Agreement, or

acquired during its terms which may hereafter (dur-

ing the term of this Agreement) be put into produc-

tion or use. The said Operators agree that they will

not lease, license, or contract out any coal lands, coal

producing or coal preparation facilities as a subter-

fuge for the purpose of avoiding the application of

this Clause.

Be nA ee ee ae OT

— joa —

PLAINTIFF’S EXHIBIT

— 76a — ee

PLAINTIFF’S EXHIBIT 15.

8. Treasury D. Int J Revenue Service ee

ae PROFIT ‘COR LOSS) FROM BUSINESS OR PROFESSION 1958

Ter Computation of Self-Employment Tux, s00 Page 3)

Attach this schedule to your =o Return, Form 1040 — Partnerships, Joint Ventures, Etc. Must File On Form |

For Calendar Year 1956, or other beginning , 1996, and ending ry

Name dd on £< Form 1040 :

aH,

Item (see instructions <page 2)

A. Principal business activity: ......

(umber o

@ IMPORTANT—Ii you hod more than one business, a separate page |

Line (eee instructione—page 2)

i Fea I asain einige ccc sccsccneny lees allowances, rebates, and returns $. .-

2. Inventory at pnaruubeay Ro NCS AP “it. veovwmnemmencnenanl

3. Merchandi h as. fot ors ay. tary Nore within om

hadinden tor alntsiel wan ¢... Sat rind Seeeel ALLEL

. Cost of labor (do not include aes eoitineneml. eS ae ee _LO4 fos

: a, cae. Ahsuenecetesiweressennhy Goa cs A725 23

i i MIN i os aadcccucddanevecsevesuedncsvnaee 3.260/89.3[

@. Inventory at ond of year 6... 6... c eee cece cece eee ereeeeeseeeseeeres

9. Cost of goods sold (line 7 ‘ess line 8)

10. Gross profit (line 1 less line 9)... 6... cece cece cece eee nee e ener eneeereneeeneeeeteres

OTHER BUSINESS DEDUCTIONS —

11. Solaries and wages not included on line 4 (do not include any paid to yourself). ./$.....

12. Rent on business property... 2... 6 0 cece eee e eter teense erect es [eeeemeesceseeeenenenenes

13. Interest on business indebtedness... 6.6 cece eee eee eeeeeeeee

M4. Taxes on busi and busi EE, ca cddcdweddsd evens qoutes svenksecssemvens TYRTY

18. Losses of business property (attach staterment) ........ «2... eee eee eens

16. Bad debts arising from sales or services... 0.66.66 e eee eet eens fenewenn : =

17. Depreciation and obsolescence (explain in Schedule C-l)................--. mets tia

Sh, Mercier Geeta Ws DATE... 5. occ occneceecneceersecconeseeeese LA, LEE ES

19. Depletion of mines, oil and gas wells, timber, etc. (attach schedule)............

21. Other business expenses (enplain in Schedule C-8)...........0..ccseceeeeee | GORY 3 Vat

22. I oo iy an enkiv day xensensavenvcdanenesieoins 3 Ys

23. Net profit (or loes) (line 10 lees line 22). Also enter on line 24, Sp sebiclaeabecnanie: and on line 8, '

page |, Form 1040..........,.........-. ee en es ad as a ; ’ 8 17,0#4.

ILE IE EE AIEEE LITER ORE I MERITS ES ————

— 77a —

PLAINTIFF’S EXHIBIT 16.

exons | PROFIT (OR LOSS) FROM BUSINESS OR AmORESSON’| 195 1957

ot Self-Employment Tax,

Income on. Return, —— 1040 — Partnerships, Joint Ventures, Etc. Must File On Form 1065

ra _, » 1957, and ending 4

7 Lddress 92-Gg"”

eo FT, are LX rami om

——eE ”

— : * lswyer etc. iF \pal product or service

|p. Susiness -E F

a oe SE a ooo bates

@ separa

Ss ies ebatae teadanioein 1 of Schedule C must be completed for each b

|, Total receipts $.... ceveeereessee-+---, hous ottomeances, rebates, and returns $... rs Ra stanreicivorsnets \s_....YOU 7G 747. ,

scan oh beginemng ot Leccarecesuecs «seseuse :

et ig re "F3I°GGl ~~ bap enn Gene einen bie | | |

tainan for personal we $.. panies bf FO6OL. |

Cost of labor (do not include eilne guth e youn... | GFE

er teackatissices As |e, 700.

Other costs (explain in Schedule C-2) | hort t

(Total of Vinge 2 through 6.62... ...e ee eceeeecceeee seen: es

eet One? tan ten Pee teessa e¥ve Sas Guiemipoa pone , } -: GV IYVNY

Geese profit (line 1 lees line 9)... Rehteatieeewenae a tae

OTHER sUsurEss pEDUCTIONS

ee re Oe.

ngetn Geapadn ts Guhedulle O-8) 0... 6... eee eee. (ace fo aa — AFIT.

Toe ine 1 HOG Too a Ba 2,6 FFE

10 less line 22). Enter here: on line 24, page 3, and.on line 8, page I, Form 1040._|s 2432 4/

Se 52 SR SARS NIE EEG FILE LEE OPULENCE RRS,

— 78a —

PLAINTIFF’S EXHIBIT 17.

U. 8. Tr a lies a ee,

(rorm 1048), PROFIT T (OR L0SS) FRO FROM BUSINESS OR PROFESSION 1958 a=

Security Self-Employment Tax on Page 3)

Attach ths schedule to your a — —— Form 1040 — Partnerships, Joint Ventures, Etc., Must File On Form iii

For Calendar Year 188, or other taxable year “a -

Narre as shown cn page | Form 1040 .

It you. had mere ‘han one business, or husband and wife had separaie nena 4 a ponneion page 1

for each business.

A. Principal business activity: . z 2 “4 A ie ites

cca ire

(Number and street or rural

D. Did you file an aa! Quarterly Tax Return, Form 941." for any quarter of 19587 UOT T No. £. Employer's Identiticasoun iat!

Number, if any oki li Ge . FP. Isthis within the legal boundaries of a municipality? C) Yee (haw ‘prento

@. Did you own ‘his business on December 31, 1958? feos (No. 98. How many months in 1958 did you own this buanes? ./ ‘

1. Total receipts $... scnnengliatwn ., leas allowances, rebates, antommmna®. saan eens te IG 9d 18K

2. inventory at beqinaing of SL anes Cisne eacseknees y re sci icaataaltbantaleden iwatie

3. Mer-handise purchased ohne ‘is. 99.936,1¥ .. . lees any items withdrawn |

from business for personal use $.. Veivtenlion Rew eae ers per en eer. 9 GY 426.97 |

4. Cos: of labor (4+ not include salary —_ to icant. a ans nn Oner.

5. Motenal and supplies SOE ree Ce erm rir er Tey Ly 2276.87.

a tile alana RRA; ...-<s0vsesecieroreseseeesss Yam deal

Sg a cn caer eaesrbnpkuboonetnass Is LE a |

8. Inventory at end of year .. 6.2... cee eee cece cence ene nen ee neers cceeees

Sh Mah teintet Gee VINTON ioe ci ecscneco ce vecccereyavesecnss svactanncennesonerss ro

Meta A MAMRINEE. 0... 02+. cecenese<hundenscecs ses sa>onr ees «dss sonerennenses | Weececeeee3.Ly..2 OF

OTHER BUSINESS DEDUCTIONS ~

oe, Siteenes ead een attache en tan 6 ndiats any dat GUND « -- Piceennrercctresnorene~

12. Rent on business property... 6... c cece cee cece e ence n ere n ence cence: [eensaneneenneeaameneenanecaess

13. Interest on tndlobtednees. .. 6... 55 o Ko revcccccccces Pannreds ee. oe eoteiaiaiaiitiaieds |

44. Tones on by ciness and business property...........s.cccccecccssveesece sof ccvcsned Gb0b

18. Losses of business property (attach statement) .............6 66. cece eens

16. Bad debts arising from sales or services... 0.0... eee eee ee eeenenenreee —

S. Deprectoten Geanintn Oe Gtabialin OM... --2eccececceceereseeefeors EEE

$8. Bepairs (explain in Gahedule C-B) 2.2... eee ee cece neces seemneneesetii 23...

1%. Depletion of mines, ot] and gas wells, timber, etc. (attach schedule) wee

28. Amortzation (attach statement)... 6... eee nent oe

21. Other business expenses (explain in Schedule C-2) él ATT

22. Total of lines 11 through 21.

23,_ Net proBt (or loss) (line 10 less line 22). Enter hare; on line 24. page 3.andon|ine 8, pagel, Form 1040.8 3, 476 |

(BOM GOALS EES SRO ER AE OTH a OF jp me rer setae

mss Ws or

— 79a —

PLAINTIFF’S EXHIBIT 18.

U. & Treasury Depart 1

joes | PROFIT (OR LOSS) FROM BUSINESS OR PROFESSION | 1959

ifesme 1000) (Compute Social Security Self-Employment Tax on Page 3)

your Income Taz Return, Form 1040 — Partnerships, Joint Ventures, Etc., Must File On Form 1088

Q 2 at —_ _

AP) #?. —_-o—:—

; SS load Nome, we pee i sated name aie leted

Mh Se f Number 6% OF/ +198

: caer ee. 0 ed

Otumber and street or rural route)

a caainiahienclacntuneileay lees allowances, rebates, rE " is FoRRETEE.

oo i

eee eCeee ee ee eee eee Peer ee Cee ee ee eee eee eee ee

1. bez. OF

PoePee PERO OSC OCC OSE eee e eee Cee eee,

eee Peer eee eee eee eee e eC Cee Cee eee eee eee

CORO O OREO OOOO EET HEHEHE HEHE HEHEHE EEE

ie v5o

4760-7

TOP eee e COUR C OSC CS CS See eee eee

OUP eeEREO OSES CS CSCC eee eee

eee eee eee eee eee eee ee

BR sitesionosoree caves feshtolaeeeenn

LE PB-26

eee e reer eee ee ee eee eee eee eee ee

—- WAY TFL

AEE A RTT NEE RELI IIR L151, 43! \64

) Cine 10 less line 22). Enter here: on line 24, page 3: and on line @, page 1, Form 1040. .|8 P is

—,,

Se IA SEE OY IE TUNIS NLS MUTANS ALERTS EOS REIN TS EI ANSE RE ITD

— 80a —

PLAINTIFF’S EXHIBIT 19.

—

PROFIT (OR LOSS) FROM BUSINESS Off PROFESSION

ipts $. Iw TC = ee. 4

2 ain abecry! 1.295.707 $2 a |

from business for personal use $0000 ' ghee hed

4. Cost of labor (do not include salary paidt youl)... tt eatle |

8. Materia! ond supplies

Total of lines 2 through 6

8. Inventory at end of year

POU HEOCHL ESSEC EVOVSTSCSEC SECC SCHL CODE CC CEES

VEEP COSHH OTUSREHESCOSCOECES OOO ODES SC OCS CEC EEOC TS

11. Salaries and wages not included on line 4 (exclude any paid to yourself)

12. Rent on business property ..............

CPO TORO CFO OCCT ESE SEO eee eee eesee

18. Repairs (explain in Schedule C-@)..............!

18. Depletion of mines, oi! and gas wells, timber, etc. aunesinmaenes

38. Amortization (attech statement)

COCCCCOC Ceo OHer EO Keer esresoversereseCeee

mat

2. Total of lines 11 through 21

23. Net pro®t (or loss) (line 10 lees line 22). Enter here: on line 24, poge 3: and on line 6, page |. Form 1040 .

mae fr

4S 377 4

CLS OSI es Re Kes yy

PEW) LEIS ————

—8la— -

PLAINTIFF’S EXHIBIT 20.

wwe | PROFIT (OR LOSS) FROM BUSINESS OR PROFESSION

ty Dare Se ee ee

196

———

| his Schedule to your Income Tex Return, Fesm 106 — Partnesships, Joint Ventures, Dts., Must File On Form 1088

148 OS3 99

OE --+- -=++, less allowances, retates, and returns S$ _ 4 $

scare began of year (2 dilarent then last your's closing taventary Series: ees jee

toch explanation) ................... - Seah huwexvdern@desane pe aaeen Ws j #& ee | tad

ehondise purchased s £h63 ary iene witdra wn ‘9

pap usin for porecmal wae Sac sees —h str!

1 wer (do tet Unisde salary paid to yourself)... ................ LAE EY..

SO rc cresexdeveceterscevecevtosoecsscceoes | aa

een ORDO ...cccesscssesecvvevsvesveseees * aia t

I | ¥h,? o

onscreen te ee ceewereereeeereresceceseesserees er ‘

of goods wold (ine 7 les lime G ..... 6 ccc wecereeeereceeeewee eee n eee e eee en eee eee ee eens

cm and wages ot imobuded om line 4 (acbude amy patd t yourset)

ME on od) DELLE LEE EEE

put on business incebtedheees. ... 2... . 6. sec c cee enees cvesccesccocess

mn business and business property...........+ Salamaniied datsiateeiee 1059.9

Whe r74e

gestation (explain in Schedule C-1) .. 2.0.6 c cc ceeecceeceeeeeeueeeees

min (explain tn Schadhully O-2) oo... eee c cece esc ceueeeeenees LLSte.47

wrteation (altach statement)... 6.6.6. cece cece e eee eceweeeneeeeeues

i preltt (or leas) (subtract line 25 from line 10). Enter here: on line |. Schedule C-~% and on line 6,

mpi form 1000. PESTLE IE LIE NIT LI RIIGN. SLITS ST

Sy Abi /3

17, G63 \9

i. —-t OTD RT PEGE INGE LG DINE Fi SN tag Epa PONTO IME OLS tonite eT | eit éy

— 82a —

Plaintiff’s Exhibit 30

PLAINTIFF’S EXHIBIT 30.

Stanlee Hampton Paul Callis Everett Roberts Houston Beaumont

President Vice-President Vice-President Secretary

Tennessee Consolidated Coal Company

(Monogram)

607 Commerce Union Building

Nashville 3, Tennessee

January 12th, 1960.

United Mine Workers of America

Washington, D. C.

Re: National Coal Wage Agreement of 1950 as

amended effective December 1, 1958.

Gentlemen:

Pursuant to action taken by the Board of Directors of

our company and in accordance with the paragraph provid-

ing for termination of the December 1, 1958 amendment to

the collective bargaining contract by and between the

United Mine Workers of America and the Tennessee Con-

solidated Coal Company, you are hereby notified that the

said Tennessee Consolidated Coal Company elects to ter

minate said contract effective March 15, 1960.

Yours very truly,

TENNESSEE CONSOLIDATED COAL, CO.,

By STANLEE HAMPTON,

President.

(C:

United Mine Workers of America

District No. 19

Middlesboro, Kentucky

Palmer Local

Palmer, Tennessee

—

— 83a —

Plaintiff’s Exhibit 31

PLAINTIFF’S EXHIBIT 31.

January 14, 1960

Mr. James Ridings, President

District 19, UMWA

Box 116

Middlesboro, Kentucky

Re: Tennessee Consolidated Coal Co.

Tracy City, Tennessee.

Dear Sir and Brother:

Enclosed herewith is a copy of a self-explanatory com-

munication dated January 12, 1960, from Stanlee Hampton,

President, Tennessee Consolidated Coal Company, which is

signatory to the National Bituminous Coal Wage Agree-

ment of 1950 as Amended, effective December 1, 1958, by

membership in the Southern Tennessee Coal Producers’

Association.

Would you please advise this office with respect to the

contractual status of the Tennessee Consolidated Coal Com-

pany subsequent to March 15, 1960.

Sincerely yours,

W. A. BOYLE,

Assistant to the President.

B/d/t

Enclosure

“tho

pss Fe sco

pair. waver Si ae } PELE TOS RALLIES AE LM FAG LEC IEEE AE LLENS LEE IONE USACE

— &4a —

Plaintiff’s Exhibit 34

PLAINTIFF’S EXHIBIT 34.

Paul Gibbs.

Contract to Haul Coal From Grundy Mining Company

for Redstone Arsenal.

Estimated Income—

35,000 Tons at $.78 a Ton (at rate of 10,000 tons a week,

would require 3% weeks to deliver)..................... $27,300.00

Estimated Expense—

Labor (3142 weeks X $1,609.60 a week)............ $5,633.60

Gasoline (3% weeks X $1,120.00 a week).......... 3,920.00

Oil and Grease (3% weeks X $48.00 a week)...... 168.00

Tires and Tubes (3% weeks X $153.84 a week).... 538.44

Truck Repairs (3% weeks X $222.87)............. 780.05

Workmen’s Compensation Insurance ($2.00 per

SEGRE FPO ee BONOE TS csi kance aden sees cues 112.67

Truck Insurance (3% weeks X $37.65 a week).... 131.78

Payroll Taxes (6%% X $5,633.60)................ 345.06

Truck Tags (3% weeks X $41.04 a week)......... 143.64

Telephone (3% weeks X $5.77 a week)........... 20.20

Depreciation (3% weeks X $422.08 a week)....... 1,477.28

I titres cea w sa Vise Kees NONee eeeK es 13,270.72

Estimated Net Profit on Contract................... ccc ee eee $14,029.28

— 85a —

Plaintiff’s Exhibit 38

DEFENDANT'S EXHIBIT 38.

Whitwell, Tennessee,

September 7, 1961.

Mr. Paul Gibbs,

Tracy City, Tennessee.

Dear Mr. Gibbs:

It has just come to my attention that a mine (number

2-074) that was formerly leased by you is presently being

worked in your name. In checking through our files I note

that a lease cancellation letter for this mine was sent to

you on January 5th of this year. This is to advise you that

since no lease is in existence covering this mine all work

in and around 2-074 should be stopped immediately.

Please contact me at our Reel’s Cove office if there are

any questions concerning this matter.

Yours truly,

TENNESSEE PRODUCT'S & CHEMICAL

CORPORATION,

HOWARD C. HUMAN,

Assistant to Vice President—Mining.

HCH/wme

— &a —

Plaintiff’s Exhibit 39

DEFENDANT'S EXHIBIT 39.

Whitwell, Tennessee,

September 7, 1961.

Mr. Paul Gibbs,

Tracy City, Tennessee.

Dear Mr. Gibbs:

As you know we have been having considerable prob-

lems with the quality of our outside coal that is being put

in on the Marquette Cement Plant contract. After going

over our latest analysis covering this coal it appears that

the hoped for improvements have not been forth coming

and that quality problems will continue to problem with

this coal.

In order to try to improve this situation we are going to

eliminate the delivering of purchased coal from mines or

companies that are operating outside of the Tepco lease

holdings. Effective Monday, September 18th, all coal de-

livered on the Marquette contract must come from mines

that are operating on the Tepco lease hold.

This should give you ample time to make the necessary

arrangements to purchase coal from the small mines on

our property in an amount equal to that which you pres-

ently- purchase from various outside sources.

Please contact me at our Reel’s Cove office if you have

any questions on this matter.

Yours truly,

TENNESSEE PRODUCTS & CHEMICAL

CORPORATION,

HOWARD C. HUMAN,

Assistant to Vice President—Mining.

HCH/wme

- 4 ae a ~

DEFENDANT’S EXHIBIT 40.

— &ia —

Plaintiff’s Exhibit 40

Whitwell, Tennessee,

September 26, 1961.

Mr. Paul Gibbs,

Tracy City, Tennessee.

Dear Mr. Gibbs:

During the past several weeks there has been consider-

able discussion concerning the ash analysis of the outside

coal being delivered on the Tepco coal contract at the

Cowan Cement Plant.

On September 7, 1961, you were notified verbally and by

letter from this office that effective September 18th all de-

liveries made on this contract must be of coal mined from

the Tepco lease holdings. According to our recorded scale

weight tickets this was not carried out during the week

ending September 22, 1961. As a result this is official noti-

fication that no further deliveries of coal from any source

will be accepted on the Cowan Cement Contract. This will

confirm our phone conversation of last evening.

Should you have any further question on this matter,

please contact me at the Whitwell office.

Yours truly,

HOWARD C. HUMAN,

Assistant to Vice President, Tennessee

Products & Chemical Corporation.

HCH/wme

ec: Mr. R. E. Merryman

Mr. H. I. Allen

Mr. W. A. Moody

— 88a —

Testimony of Paul Gibbs

In the

UNITED STATES DISTRICT COURT

For the Eastern District of Tennessee,

Southern Division.

PAUL GIBBS 7

vs.

UNITED MINE WORKERS OF

AMERICA.

. No. Civil 3771.

Transcript of proceedings and evidence introduced in

the trial of the case, beginning 7th day of November,

1962, before the Honorable Frank W. Wilson, U. S. Dis.

trict Judge, and a jury.

Appearances:

Joe Van Derveer, Esq., and Wm. Ables, Esq., attor-

neys for the plaintiff.

R. R. Kramer, Esq., E. H. Rayson, Esq., and Willard

P. Owens, Esq., attorneys for defendant.

* * * * * * *

Mr. Rayson: Ladies and gentlemen, I will say this: that

we represent the International Union of the United Mine

Workers, a defendant in this case.

* * * * * * *

2 MR. PAUL GIBBS,

having first been duly sworn, testifies as follows:

Direct Examination,

By Mr. Van Derveer:

Q. Will you state your name please?

A. Paul Gibbs.

— 89a —

Testimony of Paul Gibbs

Q. Where do you live, Mr. Gibbs?

A. Tracy City, Tenn.

Q. Now, how long have you been engaged in the coal,

or coal mining or coal hauling business?

A. 32 years.

Q. Practically you’re entire——

3 A. Since I was 15 years old.

4 Q. Now, let’s get back prior to the events that hap-

pened in that particular area. For a number of

years, have you been operating mines over in that area?

A. Well, since July of 1953 the last time.

Q. Who owned the land upon which these mines were

located ?

A. Tennessee Products and Chemical Corporation.

Q. What arrangement existed between you and Ten-

nessee Products whereby you were mining these lands?

A. I had leased the Tennessee Products’ mine and coal

and delivered it to them, and they sold it themselves.

Q. Generally, where were those mines located?

A. Well, I, at one time, had about 5 mines in that area.

Q. What——

A. I had three, what we called ‘‘employed haulers’’ in

the pocket.

Q. When you say ‘‘the pocket’’ that’s the area that

you-—

\. That’s about a mile further on down this blacktop

road from where I pointed out ‘‘Dogwood Flat’’.

Q. Now, to lay the background on this general area,

where over in that area are these good coal mining lands?

A. Well, the best thing that’s left in that area now that

hasn’t been worked out is in the Gray’s Creek area.

— 90a —

Testimony of Paul Gibbs

Q. Uh-huh, and you had some mines with Tennessee

5 Products in and around that area. Is that correct?

A. Yes, sir. On adjoining property with the high.

way going into the pocket, there’s a yellow painted line

there, Tennessee Consolidated owns on the right, Ten.

nessee Products on the left, and during the present time,

I was operating on Products on the left hand side of the

road.

* * * a * * *

Mr. Van Derveer: O. K. I think, ladies and gentlemen

of the jury, we might point that out a little more carefully

at this time, because I know it was confusing to the court

in discussing the proceedings and it may be to the jury.

As you will see from time to time in the trial of thiy

case, there will be a reference to Tennessee Consolidated

and there will be a reference to Tennessee Products. Now,

these are two separate and distinct companies or corpo-

rations, so keep that in mind when they talk about Ten-

nessee Consolidated or when they talk about Tennessee

Products.

Q. Now, Mr. Gibbs, first on Tennessee Products, did

Tennessee Products operate some mines of their own, or

did they get their entire production by leasing out

6 the land to fellows like yourself?

_ A. They had one mine that they operate themselves

and the rest was lessee mines.

Q. All right, now, let’s talk about Consolidated. Did

Consolidated operate their own mines, or did they operate

through lessees?

A. Same way, just like Tennessee Products.

Q. Now, but those two companies are competitors, are

they?

A. That’s right.

Q. And they are distinct companies, are they?

A. That’s right.

STRSTR NEG EE LORIE LOT EY A et

— 9a —

Testimony of Paul Gibbs

Q. Separate companies. Well, let’s lead up toward the

15th and 16th of August of 1960. Now, sometime prior

to that or immediately before that, did you have any

rolling stock or equipment?

A. Yeah.

Q. Just tell the court and jury, just, let’s say there

on the 10th, 12th, and 13th of August, 1960, what trucks

and equipment did you have?

A. I had eight dump trucks at that time.

Q. Now, when you say dump trucks, explain to the

jury. Some of them probably understand, sae I am sure

that I don’t?

A. They’re regular coal trucks with coal bodies and

hoists on them. We call them dump trucks.

7 Q. Now, what size trucks were they?

A. Well, ordinarily they’re listed as two and one-

half tons, but we haul about 20 or 22 tons on them.

Q. How many wheels do they have on them?

A. Ten.

Q. At that time, and we are still referring to that period

of time immediately before the 15th of August, 1960, how

many employees did you have in your mines and in your

trucks?

A. Well, during that time, around the 15th and 16th

of August, 1960, I had eight truck drivers.

* * * * * * aod

A. And I couldn’t say positive how many men I had

employed in the mines at that time, but I’d say somewhere

in the neighborhood of 15 or 20.

Q. Now, at that time, how many mines were you run-

ning or operating?

A. Two.

Q. Uh-huh. And those two were on the lands leased

from The Tennessee Products Chemical Company, is that

correct ?

— 92a —

Testimony of Paul Gibbs

A. Yes, sir.

Q. Now, where were you hauling the coa] that was being

used, or hauled in these eight trucks?

A. Well, I was only using about 2 of the trucks jpn

8 my own operation, and I was hauling coal to

Bennett Lake or down into Woodville Ramp, where.

ever The Tennessee Products and Chemical Corporation

advised me to take the coal.

* * * * * * *

Q. And the remainder of your trucks, the other six,

were being used for what now?

A. Hauling coal from Pikeville Coal Company on a

strip-logger job under Tennessee Products lease.

* * * * * * *

Q. Uh-huh, then if I understand you correctly, two of

your trucks were in your own mines and you were hauling

on the other six, is that correct?

A. Yes, sir.

Q. Now, on or about the 10th, 11th, or 12th, or some-

where in that area, state whether or not you were con-

tacted by anyone with Tennessee Consolidated Coal Com-

pany or The Grundy Mining Company, in regard to doing

anything for them?

~ A. On Friday afternoon, August 12th, 1960, Mr.

9 Judson Harwood was up from Nashville.

Q. Just a moment now. Who is Mr. Judson Har-

wood?

A. He is an attorney over there, and he was president

of the Grundy Mining Company at that time.

* * * * * * *

The Court: Yes, it’s agreed and stipulated, ladies and

gentlemen, between the parties, that Grundy Mining Com-

— 98a —

Testimony of Paul Gibbs

pany was a wholly owned subsidiary of Tennessee Con-

solidated Coal Company.

Q. Now prior to the time that Mr. Judson Harwood, the

Nashville Attorney, contacted you, had you ever heard

of The Grundy Mining Company?

A. No, sir. I had not.

Q. So far as you know, it was a new company, a new

concern?

A. Yes, sir.

Q. At that time, did you know Mr. Judson Harwood?

A. No, sir, I never even heard of him.

Q. How were you contacted by him?

A. He called me on the phone at home.

Q. Now, what was the purpose of his calling you?

10 <A. He told me that he wanted to start up some

mines in Gray’s Creek, and I had recommended as

a mine superintendent, and asked me if I would be in-

terested in the job.

Q. And you told him what?

A. I asked him what would be the results out of it—

what—would I be assured of a job, and during the con-

versation he said ‘‘ Well, what about starting off at $600.00

a month?’’ I said ‘‘that won’t interest me.’’ I said ‘‘I

have some trucks and I couldn’t just walk off and leave

those trucks and these other two little mines that I have

going’’, I said ‘‘they’ll] soon be worked out, but I couldn’t

accept $600.00 and just leave my trucks over there for

nobody to look after’’, and then I asked him what about

considering taking the job as the mine Superintendent if

he would give me the hauling from these mountains. He

said, ‘‘I’ll do it.’’ I said, well, what will you pay on

the haulage? He said, ‘‘seventy-eight cents a ton is the

regular price.’’—and I accepted.

Q. Now, what arrangement, if any, was made regarding

the maintenance and upkeep of your trneks?

— 94a —

Testimony of Paul Gibbs

A. Well, that was left up to me entirely.

Q. In other words, the seventy-eight cents was gross,

You were the——

A. That’s right. That was the gross receipts that |

was drawing from Grundy Mining Company for one haul.

Q. Did you accept the terms of that contract of em.

ployment?

A. Yes, sir.

11 Q. And you were instructed by Mr. Harwood to

begin work at what time?

A. Seven o’clock on Monday morning on August the

15th.

Q. Now, let’s stop right there just a moment, Mr. Gibbs,

and go back a bit. In the past, had you had difficulty

with The United Mine Workers of America in that area?

A. Nothing more than just a little strike, occasionally.

Something probably come up between the men, and they’d

go out for maybe one day, and sometimes they’d be gone a

month.

Q. But you continued in business?

A. Yes, sir.

Q. At that time, who was the Field Representative, I

believe he is described, in your Whitwell, Tracy City,

Palmer area, for The United Mine Workers of America?

A. Mr. George Gilbert.

Q: Did you know Mr. George Gilbert?

A. Yes, sir.

Q. What were his duties?

A. Well, he was to settle strike disputes, get you to sign

the contract, and settle all grievances that might rise be-

tween the employes and the operators.

Q. Prior to Mr. Gilbert coming into the area, who had

preceded him?

A. I think, Mr. Matt Bunch.

Q. Mr. Bunch?

RATER EAR ERE! LOA ELLIO ELI LOOSE RII

— 95a —

Testimony of Paul Gibbs

12 A. Mr. Matt Bunch.

Q. Now, for-purposes so that the jury will under-

stand, is Mr. Gilbert still over there today?

A. No, sir, he isn’t.

Q. And who is in that area now?

A. Howard Madewell.

Q. Now each of these gentlemen, Mr. Bunch, Mr. Gilbert,

and Mr. Madewell were described as what? What were

they?

A. District Nineteen Representatives is the way I’ve

always understood.

Q. Now what do you mean when you say District

Nineteen Representatives?

A. Well, the way I understand it is that they sit out a

set for certain years for these men to control, and as far

as I know, at that time, Mr. Giibert had the Palmer,

Whitwell, and Tracy City area under his control.

Q. But worked out of District Nineteen?

A. Yes, sir.

Q. And where is District Nineteen?

A. Middlesboro, Kentucky.

Q. Middlesboro, Kentucky. At the time that you ac-

cepted this contract of employment from Mr. Judson Har-

wood, state whether or not the Tennessee Consoli-

13. dated Coal Company was operating under a contract

with The United Mine Workers of America?

A. They was out on strike at that time.

Q. State whether or not, at that time, The Tennessee

. Products and Chemical Company was operating under a

contract with The United Mine Workers of America?

A. Yes, sir.

Q. Now, Mr. Gibbs, you have seen this contract that is

referred to as The National Bituminous Wage Agreement

of 1958, as Amended, have you not?

— 9a —

Testimony of Paul Gibbs

A. Yes, sir.

(). What contract is that?

A. What kind of contraet——

Mr. Van Derveer: Now, by agreement of the parties,

may it please the court, Mr. Rayson and Mr. Turnblazer,

has furnished us with a copy of the contract, which we

would like to introduce into evidence, and at this time,

have it marked and then show it to Mr. Gibbs.

(Plaintiff’s Collective Exhibit No. 2 received in eyj-

dence.)

Q. Now, Mr. Gibbs, before you there, identified, is the

Plaintiff’s Exhibit No. 2, is what purports to be a contract

with The United Mine Workers of America. Now my

question, sir, is that the same contract that all the mines

had?

A. Yes, sir—with all these amendments from 1950

14 on up through the last one, I believe, was signed

in 1958.

(). That is correct, sir. Then if any of the mines had

the contract with The United Mine Workers of America it

is that particular contract, is it?

A. That’s right.

Q. Is there any variance for it? What I mean is do

they have one contract for one mine, a different one with

another mine, a different with another mine?

&. No, sir. This is all the same contract, if everybody

works under the same contract.

Q. Sir?

A. That’s the same contract that everybody signed but

nobody paid—to get the same thing at each mine.

Q. Yes, sir. Well, I mean that’s the same contract that

every mine had?

A. That’s right.

Q. And you told us that at the time, immediately be-

fore August 15 and 16, 1960, that The Tennessee Con-

— 97a —

Testimony of Paul Gibbs

solidated Coal Company did not have a contract. Is that

correct?

A. They wasn’t working. No, sir.

Q. They were not working?

A. No, sir.

Q. Do you know how long The Tennessee Consolidated

(‘oal Company had been down, or how long the strike

had been going on, or how iong it had been since they

were working?

15 <A. Prior to August of 1960?

Q. Prior to August 15, 1960?

A. To the best of my knowledge, since March of 1960.

Q. Since March. All right, sir. Now, getting back to

the morning of the 15th, which was on a Monday morn-

ing, in conformity with Mr. Harwood’s agreement or con-

tract, did you go to the area where you were to begin

work?

A. Yes, sir, I did, on August the 15th on Monday morn-

ing.

(). Had the area been dozed off over there, or

A. Yes, sir.

Q. Just tell the jury how a new mine is opened, and

how you knew where to go?

A. Well, this road was graded in to this area where

the mine was supposed to be opened up, and I was ad-

vised where to go, which I knew the directions, being

familiar with this country over there. I drove down in

there that morning, and on my left, going in, there was a

place where they had taken a dozer and ju

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.