434 F.2d 767 (6th Cir. 1970), 19622, South-East Coal Co. v. Consolidation Coal Co.

• Citation: 434 F.2d 767
• Party Name: SOUTH-EAST COAL COMPANY, Plaintiff-Appellee, v. CONSOLIDATION COAL COMPANY, Defendant-Appellant. SOUTH-EAST COAL COMPANY, Plaintiff-Appellee, v. UNITED MINE WORKERS OF AMERICA, Defendant-Appellant.
• Case Date: November 18, 1970
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

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434 F.2d 767 (6th Cir. 1970)

SOUTH-EAST COAL COMPANY, Plaintiff-Appellee,

v.

CONSOLIDATION COAL COMPANY, Defendant-Appellant.

SOUTH-EAST COAL COMPANY, Plaintiff-Appellee,

v.

UNITED MINE WORKERS OF AMERICA, Defendant-Appellant.

Nos. 19622, 19623.

United States Court of Appeals, Sixth Circuit.

November 18, 1970

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Harold R. Schmidt, Pittsburgh, Pa., for Consolidation Coal Co.; Anthony J. Polito, Rose, Schmidt & Dixon, Pittsburgh, Pa., Amos H. Eblen, Eblen, Howard & Milner, Lexington, Ky., on brief.

Edward L. Carey, Washington, D.C., for United Mine Workers of America; Harrison Combs, Willard P. Owens, Washington, D.C., H. B. Noble, Hazard, Ky., E. H. Rayson, Knoxville, Tenn., M. E. Boiarsky, Charleston, W. Va., on brief.

John A. Rowntree, Knoxville, Tenn., for appellee; C. Gibson Downing, Stoll, Keenon & Park, Lexington, Ky., Fowler, Rowntree, Fowler & Robertson, Knoxville, Tenn., on brief.

Before PHILLIPS, Chief Judge, and CELEBREZZE and BROOKS, Circuit judges.

BROOKS, Circuit Judge.

These are appeals by defendants-appellants, United Mine Workers of America (UMW or Union) and Consolidation Coal Company (Consol or Consolidation), ¹ from a jury verdict imposing civil liability for alleged violation of Sections 1 and 2 of the Sherman Anti-Trust Act (15 U.S.C. 1 and 2). Plaintiff, South-East Coal Company (South-East), contended that a conspiracy to restrain trade existed between UMW, Consol and other large coal companies and the Bituminous Coal Operators Association (BCOA) which was designed to force South-East and other small coal producers in Eastern Kentucky out of the bituminous coal business. After a trial lasting six weeks, the jury returned a verdict for plaintiff, South-East Coal Company, in the amount of $2,410,452. This amount was tripled ($7,231,356) as required by 15 U.S.C. 15, and attorneys' fees of $335,000 were allowed, bringing the total judgment to $7,566,356. We affirm.

On numerous occasions this Court has considered similar alleged conspiracies between the UMW and large bituminous coal producers and for a general explanation and description of the nature of the contended conspiracy in this case, the following cases are particularly illuminating. United Mine Workers of America v. Pennington, 381 U.S. 657 at 664, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Tennessee Consolidated Coal Company v. United Mine Workers, 416 F.2d 1192 at 1193 (6th Cir. 1969); Ramsey v. United Mine Workers, 265 F.Supp. 388 at 392, 393 (E.D.Tenn.1967); Pennington v. United Mine Workers, 325 F.2d 804 at 806, 807 (6th Cir. 1963).

While recognizing that the present case is factually distinguishable from these cited cases ² and that differing proof was employed by the plaintiff, South-East, in attempting to establish the existence of this conspiracy, this opinion would, however, be unduly lengthened by an elaborate discussion of plaintiff's case and proof. Therefore, the specific and unique facts involved in this case which bear on issues raised on this appeal will be considered in conjunction with those issues. Both appellants have taken issue with certain conduct at trial which allegedly prejudice them jointly, and these issues will be consolidated for consideration. Issues

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raised by appellants which explore alleged errors having only singular significance will be dealt with individually.

I. ALLEGED ERRORS IN INSTRUCTIONS

A. The Standard of Proof Required to Impose Liability

Consol and the Union argue that the District Court erred in its charge to the jury on the necessary degree or standard of proof which plaintiff must meet in order for the jury to conclude that appellants violated the Sherman Act. The Union, relying upon Lewis v. Pennington, 400 F.2d 806 (6th Cir. 1968) ³ and Ramsey v. United Mine Works of America, 416 F.2d 655 (6th Cir. 1969), ⁴ contends that the District Court did not adequately or accurately instruct the jury that to impose liability on the Union every essential element of the violation, except damages, must be established by 'clear proof'. ⁵ Consol joins in and

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maintains that it too should get the benefit of this more stringent standard of proof. This Circuit is somewhat in disagreement as to the proper degree of proof required to hold a labor union liable for violating the Sherman Act. In the en banc hearing in Ramsey v. United Mine Workers, supra, the Court divided evenly on the issue. Four judges held that to impose liability on a labor union for a Sherman Act violation Section 6 of the Norris-LaGuardia Act ⁶ requires that every element of the unlawful act except damages be shown by 'clear proof'. Four judges construed this section of the Norris-LaGuardia Act to provide that the 'clear proof' standard applied only in proving that the Union participated in, authorized or ratified the unlawful acts of its officers with actual knowledge. They concluded that after this was shown by 'clear proof' the remaining elements of the antitrust violation-- formation of the antitrust conspiracy, the unlawful acts, causation and damages, and all the other elements-- required proof only by a preponderance of the evidence.

Because a major coal company has been named a defendant as a coconspirator with the UMW in this antitrust case, a unique problem is presented with respect to the standard of proof question. That problem is what standard of proof must be met by the plaintiff to hold a company liable for an antitrust violation if it conspired with a labor union. If it is assumed that the correct standard of proof to be applied in holding a labor union civilly liable for a Sherman Act violation is 'clear proof' of all essential elements, the question then is: 'Should a company which is fortuitously joined as a coconspirator of a labor union in an antitrust case get the benefit of the stricter standard of proof afforded the union?' There is no basis in either the Sherman Act or the Norris-LaGuardia Act to indicate that to impose liability on a company, named as a coconspirator of a labor union for an antitrust violation, anything more than a preponderance of the evidence is necessary. To hold that a company should get the benefit of this more strict standard, simply because it was named with a labor union as a coconspirator in a scheme to restrain trade, would be to grant such a company a more advantageous position than other companies would have, which might violate the antitrust laws but are not joined with a union. The law does not provide such an arbitrary advantage. The standard of proof applicable to a company in attempting to show it violated the antitrust laws, regardless of whether it is joined as a coconspirator with a labor union, is the preponderance of the evidence. Bigelow v. RKO Radio Pictures, 150 F.2d 877, 883 (7th Cir. 1945); reversed on other grounds, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946).

Having concluded that the standard of proof needed to be met to hold a company civilly liable for an antitrust

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violation is preponderance of the evidence, another legal hurdle is encountered when, as in this case, a company is joined as a coconspirator with a union. Again, assume that the correct standard of proof applicable to a labor union under these circumstances is 'clear proof.' Hypothetically, a situation could exist where only a union and a single company have conspired to restrain trade. Suppose that in this hypothetical case it could be shown by a preponderance of the evidence that the company did conspire to violate the antitrust laws, however, while a preponderance of the evidence also showed the union conspired, it could not be shown by 'clear proof.' Therefore, the union would be exonerated and, by force of the fact that a Sherman Act violation is an actionable wrong only when committed under an unlawful conspiracy by two or more, the company would also escape liability. United States v. Socony-Vacuum Oil Company, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Standard Oil Company of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148. Thus, the company by indirect method would have received the benefit of the more strict standard of proof. While the chances of a situation as this occurring are perhaps remote, this explains the type of problem which may result when parties to an actionable wrong like conspiracy have their respective ultimate liabilities gauged by different standards of proof.

This leads to the question of whether all essential elements of an alleged antitrust conspiracy against a labor union must be shown by 'clear proof.' The en banc decision of this Court in Ramsey did not resolve this controversy. Without a repetitive discussion of the rationale behind this panel's conclusion on this issue, already extensively explored in Judge O'Sullivan's opinion in Ramsey, it is concluded that while 'clear proof' is necessary to show that the Union participated, authorized, or ratified the acts of its officers, the essential elements of the conspiracy necessary to resolve the ultimate issue of liability need be shown only by a preponderance of the evidence. (See n. 4). The jury charge on the standard of proof issue could have been more clear, however, the parties were given the benefit of a partial instruction which was more stringent than required by this Court's conclusion on what is the proper standard of proof. ⁷ Thus, the parties were not prejudiced by the instruction even if it was erroneous.

B. The Reasonableness of the Restraint

UMW and Consol claim they were prejudiced by the absence of an instruction to the jury that only undue or unreasonable restraints of trade or competition are grounds for finding a Sherman Act violation. Usually, to find that a violation of the Sherman...