Consolidation Coal Co. v. Disabled Miners of So. W. Va., 15173

• Decision Date: 12 May 1971
• Docket Number: No. 15173,No. 15396-15402.,15173,15396-15402.
• Citation: 442 F.2d 1261
• Parties: CONSOLIDATION COAL COMPANY, a corporation, Appellee, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellants. CONSOLIDATION COAL COMPANY, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees. UNITED STATES STEEL CORPORATION, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees. YOUNGSTOWN MINES CORPORATION, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees. EASTERN ASSOCIATED COAL CORPORATION, and Sterling Smokeless Coal Company, corporations, Appellants, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees. OLGA COAL COMPANY, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees. RANGER FUEL CORPORATION, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees. Elmer BROWN et al., Appellants, v. CONSOLIDATION COAL COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

442 F.2d 1261 (1971)

CONSOLIDATION COAL COMPANY, a corporation, Appellee, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellants.

CONSOLIDATION COAL COMPANY, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees.

UNITED STATES STEEL CORPORATION, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees.

YOUNGSTOWN MINES CORPORATION, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees.

EASTERN ASSOCIATED COAL CORPORATION, and Sterling Smokeless Coal Company, corporations, Appellants, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees.

OLGA COAL COMPANY, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees.

RANGER FUEL CORPORATION, a corporation, Appellant, v. DISABLED MINERS OF SOUTHERN WEST VIRGINIA, etc., et al., Appellees.

Elmer BROWN et al., Appellants, v. CONSOLIDATION COAL COMPANY et al., Appellees.

No. 15173, No. 15396-15402.

United States Court of Appeals, Fourth Circuit.

Argued April 7, 1971.

Decided May 12, 1971.

Herbert J. Rogers, Wheeling, W. Va., and Kenneth J. Yablonski, Washington, Pa. (Donald L. Pitts and Clarice Fieldman, Washington, D. C., on the brief), for appellants in No. 15173.

Harold R. Schmidt, Pittsburgh, Pa. (Karl Alexander and Rose, Schmidt & Dixon, Pittsburgh, Pa., on the brief), for appellee in No. 15173.

Charles A. Tutwiler, Welch, W. Va., Russell L. Furbee, Fairmont, W. Va., Harold R. Schmidt, Pittsburgh, Pa. and Charles M. Love, Charleston, W. Va. (Crockett, Tutwiler & Crockett, Welch, W. Va., Furbee, Amos, Webb & Critchfield, Fairmont, W. Va., Karl Alexander and Rose, Schmidt & Dixon, Pittsburgh, Pa., Campbell, Love, Woodroe & Kizer, Charleston, W. Va., and Thomas B. Miller, Schmidt, Laas, Schrader & Miller, Wheeling W. Va., on the brief), for appellants in Nos. 15396 through 15401 and for appellees in No. 15402.

Ray E. Ratliffe, Jr. for appellees in Nos. 15396 through 15401.

Richard M. Bank, Beckley, W. Va. (Naomi W. Cohen, Charleston, W. Va., Harvey M. Cohen, Huntington, W. Va., and Joseph F. Flynn, Heidrick, Ky., on the brief), for appellants in No. 15402.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

These consolidated appeals arise from litigation instituted when disabled miners and their dependents picketed, and threatened to picket, plaintiffs' bituminous coal mines in the Northern and Southern Districts of West Virginia. Preliminary injunctions to enjoin picketing were entered in both district courts. The disabled miners and their dependents had resorted to this form of selfhelp to redress their alleged grievances against the trustees of the United Mine Workers of America Welfare and Retirement Fund of 1950 (the "Fund"). The Fund was established by collective bargaining, under the authority of § 302 of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 186, to receive royalties from the mine owners on coal mined and to establish and administer a program of benefits for the miners and their dependents. In essence, the disabled miners and their dependents claim that they have been denied benefits to which they are, or ought to be, entitled.

In No. 15,173 (from the Northern District of West Virginia) and in No. 15,402 (from the Southern District of West Virginia), the disabled miners and their dependents appeal from the entry of preliminary injunctions enjoining picketing. In Nos. 15,396-15,401 (from the Southern District of West Virginia), the plaintiffs, mine owners, appeal from the dismissal, as a party defendant, of the Association of Disabled Miners and Widows, Inc. (the "Association") in their several suits to enjoin actual and threatened picketing. The dismissal was granted on the ground that the Association had not been properly served.

We affirm the preliminary injunction entered in the Southern District of West Virginia appeals, although we will require it to be modified. We reverse the dismissal of the Association as a party defendant in the Southern District of West Virginia cases. We vacate the preliminary injunction in the Northern District of West Virginia cases on the grounds of procedural irregularities. We remand all cases to the respective district courts in which they originated for further proceedings and final determination.

- I -

The facts from which the legal issues are derived may be briefly stated. The Fund is administered by three trustees — one who is a representative of the coal companies (employers), one who is a representative of the union (United Mine Workers of America), and the third a neutral party selected by the other two. The Fund receives from the mine owners a royalty of forty cents per ton for each ton of coal mined. In accordance with the contract and the Act, the royalties received are used to make payments, from principal or income, or both, of (1) benefits to employees, their families and dependents, for medical care, pensions or retirement or death, and compensation for injuries or illness (or insurance to provide such compensation), (2) benefits for wage losses not compensated for by state or federal law, (3) benefits for sickness, temporary or permanent disability, death or retirement, and (4) other benefits as may be agreed upon, from time to time, by the trustees. The establishment of precise benefits and their administration are matters committed to the authority of the trustees. In the administration of existing benefits and in the establishment of new benefits, the disabled miners and their dependents claim that they have received unfair and unequal treatment.

The mine operators are engaged in mining bituminous coal for sale and shipment in interstate commerce to customers who use the coal principally to generate electricity and to produce steel. Over thirty million tons of coal are mined a year and thousands of coal miners are employed.

The disabled miners and their dependents have no direct grievance with the coal operators or with the union. What they seek is a more liberal administration of the benefits currently established under the Fund and/or the establishment of new benefits. To accomplish this purpose, the disabled miners and their dependents have relied on what is asserted to be a well-established tradition among members of the United Mine Workers of America that a coal miner will not cross a picket line, irrespective of the objective of the picketing. Thus, from June 21 to June 24, 1970, the disabled miners and their dependents picketed coal mines in the Southern District of West Virginia and succeeded in shutting down the mines for that period. The theory of the disabled miners and their dependents was that if they exerted economic pressure on the mine operators and the union, the operators and the union would exert pressure on the trustees of the Fund, designated by them, to establish the benefits sought. For a period after June 24 picketing was discontinued, in part because the annual vacation period in the industry ensued, but then it was resumed in July, when the mine owners each instituted suit and obtained a temporary restraining order. Later the cases were consolidated and a preliminary injunction granted.

On or about August 10, it became known that the disabled miners and their dependents planned to carry their work interference to miners located in the Northern District of West Virginia. Picketing actually resulted at two mines in that district, and there was a threat that picketing would be extended to other mines. In the Northern District, two of the mine owners also instituted suit and obtained a temporary restraining order against picketing. The temporary restraining order was obtained on August 14 and expired on August 24; and, on the latter date, that order was extended until September 3. A hearing on an application for a preliminary injunction began on the afternoon of September 3, and, when it became obvious that it could not be completed prior to the expiration hour of the order, the district judge, on his own motion, extended the order for an additional ten days, issued a preliminary injunction and set the matter for further hearing for September 8. Before September 8, however, the district judge suffered an accidental injury and the hearing on September 8 could not be held. Thereafter, the disabled miners appealed and no further proceedings on the merits have been conducted. The preliminary injunction has continued.

- II -

Very recently we decided West Virginia Highlands Conservancy v. Island Creek Coal Company, 441 F.2d 232 (4 Cir., 1971), which restated the principles governing the grant of preliminary injunctions by district courts and the scope of review on appeal. These principles control here.

With regard to scope of review, we stated "the decision to grant a preliminary injunction is discretionary with the district judge and may not be set aside on appeal unless an abuse of discretion is shown." With regard to when a district judge may grant a preliminary injunction, we will repeat what we said in the Conservancy case. There, the Conservancy sought and obtained a preliminary injunction to restrain a forest supervisor (Dorrell) from granting a permit to engage in logging in a wilderness area. We said (441 F.2d at 235):

it is not necessary that Conservancy demonstrate an absolute right to the relief it seeks in order to sustain the issuance of this preliminary injunction; it need establish only "probable right". It is apparent that Conservancy has raised substantial issues concerning the application of recent federal conservationist legislation to the administration of the National Forest system. Such issues are of great current public concern. They should be fully developed and litigated at the trial level in order to insure their proper resolution. It is at that stage that the various defenses raised by Dorrell should be

...