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Kerry Coal Co. v. United Mine Workers of America

decided as amended february 5 1981.: January 8, 1981.

KERRY COAL COMPANY,
v.
UNITED MINE WORKERS OF AMERICA, ARNOLD MILLER, DISTRICT #5 OF THE UNITED MINE WORKERS OF AMERICA, LOUIS A. ANTAL, JERRY ASHTON, ESTEL TAYLOR, JAMES BEACHEM, BRIAN SHORT, JOHN DOE, RICHARD ROE, AND ALL OTHERS ACTING IN CONCERT OR OTHERWISE PARTICIPATING WITH THEM OR ACTING IN THEIR AID OR BEHALF, UNITED MINE WORKERS OF AMERICA, APPELLANT IN NO. 80-1733 ESTEL TAYLOR, APPELLANT IN NO. 80-1734 DISTRICT 5, UNITED MINE WORKERS OF AMERICA, APPELLANT IN NO. 80-1735 JERRY (GARY) ASHTON, BRIAN SHORT, ET AL, APPELLANTS IN NO. 80-1736 (D.C. CIVIL NO. 78-0108)



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Before Gibbons and Rosenn, Circuit Judges and Hannum,*fn* District Judge

Author: Gibbons

Opinion OF THE COURT

This is an appeal from an order denying defendants' motions for judgment notwithstanding the verdict or for a new trial. The successful plaintiff is Kerry Coal Company (Kerry Coal), a non-union coal producer. The defendants against which verdicts were returned are the United Mine Workers of America (the International), District No. 5 of the United Mine Workers of America (District 5), Estel Taylor, Brian Short, and Jerry Ashton. The trial court, using special verdict interrogatories, submitted three counts of a six count amended complaint to the jury. One of those counts, seeking punitive damages, resulted in a verdict for the defendants, and is not before us. On Count I, in which Kerry Coal sought damages pursuant to section 303 of the Labor Management Relations Act of 1947 for violations of section 8(b)(4) of that Act, the jury returned a verdict of $1,200,000 against the International and District 5.*fn1 On Count IV, in which Kerry Coal sought damages under Pennsylvania law for interference with its business and contractual relationships, the jury returned a verdict in the same amount against the International, District 5, Taylor, Short, and Ashton. The District Court refused to set these verdicts aside. 488 F. Supp. 1080 (W.D.Pa. 1980). We affirm.

I.

The Facts

Between December 6, 1977 and March 27, 1978 the International, District 5, and the other local unions of the United Mine Workers engaged in an economic strike against members of the Bituminous Coal Operators' Association, with whom they had a collective bargaining relationship. Kerry Coal, a coal producer whose facilities are located in the region for which District 5 has organizational responsibility, has never had such a bargaining relationship. During a part of the national bituminous coal strike Kerry Coal's facilities were closed down, and at one point partially destroyed. In this lawsuit Kerry Coal seeks to recover for the resulting damage to its business. Viewing all the evidence, and inferences drawn therefrom, in the light most favorable to Kerry Coal, the party with the verdict,*fn2 the jury could have found on liability as set out hereafter.

In November, 1977, prior to the commencement of its economic strike against those operators with which it had a bargaining relationship, District 5 wrote to all other coal operators in its region, charging them with failure to meet area wage and benefit standards. These letters were sent without any knowledge of the actual wages and benefits paid by the non-union operators. Also in November, the District 5 president asked the International to send an International organizer to "survey" the non-union mines in the area. There was never, however, during the strike any attempt to organize Kerry Coal, or, so far as the record discloses, any other non-union coal operator in District 5's region. Two International organizers were sent to the area in November, one of them being Jay Kolenc. Kolenc, the second highest paid organizer of the International, was instructed by the International to stay on "present assignment," and remained in the District 5 region until January 21, 1978. While he was in the District 5 region Kolenc was paid a salary by the International which also reimbursed him for expenses incurred there. Vouchers for those expenses disclose that he and Thomas Pysell, former International Director of Organizing, appeared at non-union mines, and that he met frequently with District 5 Board members.

On November 30, 1977 the Executive Board of District 5 met and formally decided to conduct what it referred to as "informational" picketing at non-union mining operations during the anticipated strike. The Board authorized payment from District 5 funds to compensate picketers. Vouchers for such payments contained notations such as "made check on these strips in afternoon after having pickets shut them down" (App. at 1970) and "shut down trucking cos." (App. at 1966), from which the jury could reasonably infer that the picketing was not intended as area standards informational picketing, but was for the purpose of interrupting production at the non-union mines. District 5 had a caravan of 16 roving pickets in the vicinity of Kerry Coal's operations. There was situs picketing at Abrosia Coal Company and Veon Coal Company, non-union operations near Kerry Coal, in early December. Having learned that the picketing at Veon Coal Company was accompanied by violence, Kerry Coal shut down its operations between December 13 and 20, 1977, but then resumed production.

On December 27, 1977 Vernon Kerry, president of the plaintiff, was threatened by defendant Ashton, and by a United Mine Workers member, Beachem, that if he did not shut down, they would bring 200 men to wreck his equipment, Beachem adding, "We can do this with one phone call." Ashton, who lived nearby, began situs picketing at Kerry Coal's railroad siding with a sign saying "UMW ON STRIKE NO CONTRACT NO WORK". For the picketing he was paid by District 5. Ashton also called UMW member Lytle to ask for, and was promised, help. After this phone conversation Ashton, Beachem, and Lytle met with Kolenc. Between January 5 and 9 picketing at the rail siding was carried on 24 hours a day. The result was that trains coming to pick up coal did not violate the picket line, and left empty.

International organizer Kolenc was an encouraging presence at the picket lines at Kerry Coal's place of business on several occasions between January 5 and 9, when pickets threatened Kerry Coal's employees. Moreover, late in December Kolenc had arranged to put Ashton in touch with Taylor, the District 5 Board member in charge of the sub-district where Kerry Coal was located. Kolenc advised Ashton that he needed instructions about the picketing, and that someone would deliver them. At a later meeting among Ashton, Taylor, and Short, a past local president, Taylor asked Ashton to "scout" the Kerry Coal operation. Ashton did so, and Kolenc accompanied Ashton on the scouting trip. Ashton reported back to Taylor and Short that Kerry Coal was still operating, and a decision was made to institute 24 hour picketing. Kolenc was present at the meetings at which this decision was made and steps taken to implement it.

Short, who owned a Ram Charger vehicle, was observed by Vernon Kerry on the Kerry Coal property near the gas pumps. On this occasion Short threatened physical violence if Kerry Coal did not shut down its operations. During the picketing, roofing nails were strewn across the entrance to Kerry Coal's site, and the picketing was accompanied by intimidating gestures toward Kerry's truckers and employees.

On January 20, 1978, Taylor, Short, and two other union members drove past Kerry Coal's site and concluded that the company was still working. They then drove to Beaver Falls where they had a breakfast meeting with Kolenc. District 5 paid Short's and Taylor's expenses for the trip. Kolenc abruptly left Pennsylvania the next day. On January 22, 1978, between 3:00 a. m. and 8:00 a.m., extensive damage was done to Kerry Coal's equipment at its loading area. Vernon Kerry, arriving at the scene, observed in the newly fallen snow tire marks which he identified as having been made by Short's Ram Charger. He went in search of Short, encountering him in Library, Pennsylvania, where he accused Short of having been "seen last night." Short's only reply was, "I don't think so." Short then replaced a virtually new set of tires on the Ram Charger. On January 26, after learning what Vernon Kerry had said to Short about someone having been seen wrecking the equipment, Taylor traveled to the area and made inquiries as to possible witnesses.

On January 25, 1978, twelve carloads of UMW pickets arrived at Kerry's coal tipple, and, standing shoulder to shoulder, completely blocked access to the premises. Vernon Kerry called the state police, but before their arrival two picketers, identifying themselves as United Mine Workers members, came into his office and told him to stop shipping industrial and electrical utility coal for the duration of the strike. Within five minutes an additional caravan of 80 cars cruised past the Kerry Coal site. Vernon Kerry, frightened, agreed to stop shipping industrial and electrical utility coal. When the police arrived the pickets had left, but the police told Vernon Kerry to get his men out of there, since they could not be protected if the caravan returned.

During the course of the strike coal trucks hauling Kerry coal were frequently followed and the drivers harassed. At one regular Kerry Coal customer, St. Joe Mineral Company, pickets threw rocks, damaging the trucks. After the delivery was completed, pickets swarmed at the St. Joe plant gates. Vernon Kerry, his drivers, and his trucks finally escaped under police escort. This delivery, on February 27, 1978, was the last requested by St. Joe for the duration of the strike. District 5 vouchers show payments to pickets at the St. Joe plant.

District 5 used its funds for the creation of a legal defense fund to be available to members such as Ashton, Taylor, and Short for legal problems resulting from activity they might engage in during the strike.

The defendants offered evidence which would arguably support factual inferences more favorable to them. We emphasize that the foregoing summary is what the ...


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