Kayser-Roth Corporation v. Textile Workers Union of America, 72-2175.

• Decision Date: 31 May 1973
• Docket Number: No. 72-2175.,72-2175.
• Citation: 479 F.2d 524
• Parties: KAYSER-ROTH CORPORATION, Plaintiff-Appellee, v. TEXTILE WORKERS UNION OF AMERICA AFL-CIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

479 F.2d 524 (1973)

KAYSER-ROTH CORPORATION, Plaintiff-Appellee, v. TEXTILE WORKERS UNION OF AMERICA AFL-CIO, Defendant-Appellant.

No. 72-2175.

United States Court of Appeals, Sixth Circuit.

Argued April 6, 1973.

Decided May 31, 1973.

Wilkes T. Thrasher, Jr., Thrasher, Sherrill & Anderson, Chattanooga, Tenn., Patricia E. Eames, Joel Ronald Ax, Textile Workers Union of America, New York City, for defendant-appellant.

O. W. McKenzie, Dayton, Tenn., J. W. Alexander, Jr., B. H. Boswell, Blakeney, Alexander & Machen, Charlotte, N. C., for plaintiff-appellee.

Before PECK and LIVELY, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

JOHN W. PECK, Circuit Judge.

On January 19, 1969, the Kayser-Roth Company filed this action against the appellant Textile Workers Union of America in the Circuit Court of Rhea County, Tennessee, seeking recovery for damages arising from a strike that occurred at the Kayser-Roth hosiery plant in Dayton, Tennessee, in 1968. The company's complaint presented three theories for recovery: tortious interference with business, conspiracy to interfere with business, and violation of the federal secondary boycott laws. On February 10, 1969, the appellant union caused the action to be removed to the Federal District Court for the Eastern District of Tennessee, and filed a counterclaim charging the company with an unlawful conspiracy to incite litigation, to induce perjury and to prevent the union from carrying out its lawful activities. The company denied the allegations of the counterclaim.

A trial was had to the District Court sitting without a jury, and the Court made extensive findings of fact and conclusions of law which are reported at 347 F.Supp. 801 (E.D.Tenn.1972), and which need not be repeated here. The Court found that the company had sustained losses and damages of $1,158,632.46 as a direct result of violence and unlawful strike activity which the union either participated in, authorized or ratified. The Court found that the evidence was insufficient to establish an unlawful secondary boycott, and also found that the union failed to establish its counterclaims. The union has perfected this appeal from the judgment of the District Court.

The union's first contention is that the District Court lacked jurisdiction over the non-federal causes of action when it denied relief to the company upon its only federal claim, the violation of the secondary boycott provisions of the Taft-Hartley Act, 29 U.S.C. § 158(b)(4). At this point, the union contends, it became clear that the state claim was the real body of the case and that it should have been dismissed from the federal court.

The only findings necessary to support the District Court's exercise of pendant jurisdiction over the nonfederal causes of action are that the federal claim has apparent substance and that the state and federal claims derive from a common nucleus of operative fact. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Although the evidence did not warrant a finding for the company on the issue of secondary boycott, the evidence did indicate that there was substance to the company's allegations. For example, the company offered evidence tending to show that the union violently intimidated employees of neutral common carriers to the extent that they ceased to do business with the company, 347 F.Supp. at 805-806. And not only did the union not contest the jurisdiction of the District Court, the case was removed from the state court upon the union's motion. Given the expenditure of judicial time and energy on this case, and given the common nucleus of operative fact, we cannot say that the exercise of pendant jurisdiction by the District Court was an abuse of its discretion. Gibbs, supra, 383 U.S. at 725-726, 86 S.Ct. 1130; Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933); Ritchie v. United Mine Workers, 410 F.2d 827, 831-832 (6th Cir. 1969); Connecticut General Life Ins. Co. v. Craton, 405 F.2d 41, 48 (5th Cir. 1968); Price v. United Mine Workers, 336 F.2d 771, 776 (6th Cir. 1964); Rumbaugh v. Winifrede Railroad Company, 331 F.2d 530, 539 (4th Cir. 1964).

Secondly, the union contends that the evidence did not warrant the judgment because the company failed to show that the union was responsible for, participated in, authorized or ratified the acts complained of. Such a showing is necessary under the Norris-LaGuardia Act, which provides:

"No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members or agents, except on clear proof of actual participation in, or actual authorization of such acts, or of ratification of such acts, after actual knowledge thereof." 29 U.S.C. § 106. (Emphasis supplied.)

The statutory requirement of "clear proof" lies somewhere between the traditional burdens of reasonable doubt and preponderance of the evidence. Gibbs, supra, 383 U.S. at 737, 86 S.Ct. 1130. A review of the relevant evidence and of the reported findings of the District Court indicates that the company did meet this burden of proof on the issues of participation, authorization and ratification of numerous acts of violence by the strikers.

The involvement of the union in the violence and other unlawful and damage causing activities during the strike is demonstrated most clearly by the actions of Adolph Benet, the union's International Vice President, and Ted Benton and Walter Rainey, its International Representatives. During the course of the strike, these union officials personally participated in, observed, supervised and controlled the activities of the strikers. They leased property adjacent to the plant site for use as a strike headquarters; a mobile office was moved onto this property, and a shelter for the strikers was also provided. Other evidence indicated that Benton instructed the pickets to walk in such a manner as to make entrance to the plant difficult. Rainey instructed them that they should stop non-strikers from entering the plant by any means they could, including stripping off their clothes. Benton admitted that he was at the picket line from the beginning of the strike until the plant was closed supervising strike activities; Rainey spent about one-half of his time assisting Benton in the supervision of the strikers. During this period, numerous acts of extreme violence occurred which are fully recounted in the opinion of the District Court. In their capacity as strike supervisors for the union, Rainey and Benton observed groups of strikers while they blocked, stoned, and in some cases overturned vehicles bearing non-strikers attempting to enter or leave the plant.

Benton admitted that he was aware of the systematic daily implantation and re-implantation of nails and broken glass on company driveways, and when the company sought to provide bus service for non-striking workers, Benton personally directed the strikers to jam the buses to prevent boarding by non-strikers. The company eventually capitulated to the violence, and the plant was closed on June 24, 1968. Thereafter, the...