Kinty v. United Mine Workers of America

• Decision Date: 21 October 1976
• Docket Number: Nos. 75-1462-75-1466,s. 75-1462-75-1466
• Citation: 544 F.2d 706
• Parties: 93 L.R.R.M. (BNA) 3040, 79 Lab.Cas. P 11,728 Cecil L. KINTY, d/b/a Kinty Trucking Company, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant. Ruth M. KITTLE, Individually and as Administratrix with will annexed of theEstate of Bertsell Kittle, Deceased, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant. Thomas J. GATES, d/b/a Dorothy Coal Company and Gates Trucking Company, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant. Lawrence LAYMAN, d/b/a Layman Coal Company, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant. Josephine LACARE, widow of original plaintiff Orlanda LaCare, et al.,Appellees, v. UNITED MINE WORKERS OF AMERICA, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 706

544 F.2d 706

93 L.R.R.M. (BNA) 3040, 79 Lab.Cas. P 11,728

Cecil L. KINTY, d/b/a Kinty Trucking Company, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant.

Ruth M. KITTLE, Individually and as Administratrix with will

annexed of theEstate of Bertsell Kittle, Deceased, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant.

Thomas J. GATES, d/b/a Dorothy Coal Company and Gates

Trucking Company, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant.

Lawrence LAYMAN, d/b/a Layman Coal Company, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant.

Josephine LACARE, widow of original plaintiff Orlanda

LaCare, et al.,Appellees, v. UNITED MINE WORKERS OF AMERICA, Appellant.

Nos. 75-1462-75-1466.

United States Court of Appeals, Fourth Circuit.

Argued March 3, 1976.

Decided Oct. 21, 1976.

Willard Owens, Washington, D. C. (Harrison Combs, Steven B. Jacobson, Washington, D. C., Ellen P. Chapnick, Washington, D. C., and Michael Tomasky, Morgantown, W. Va., on brief), for appellant.

John A. Rowntree, Knoxville, Tenn. (Fowler, Rowntree, Fowler & Robertson, Knoxville, Tenn., Charles G. Johnson, Clarksburg, W. Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge.

The defendant United Mine Workers of America (UMW) appeals from five judgments, entered after jury verdicts, in actions alleging damages arising out of a "secondary boycott" on the part of the UMW in violation of § 187, 29 U.S.C. ¹ The five actions in which judgments were entered were among twelve similar actions begun against the defendant. Because liability in all the cases rested on the same general factual background, with a great mass of testimony common to all the cases, the actions were consolidated for trial. Prior to trial, two of the plaintiffs however, voluntarily dismissed, leaving ten cases remaining for trial. Following a jury trial, verdicts were equally balanced in favor of the defendant and the plaintiffs, the defendant prevailing in five cases and the plaintiffs in five. ² The plaintiffs in the cases in which the verdicts were in favor of the defendant have not appealed from the judgments entered on the basis of such verdicts. The defendant has, however, appealed in the five cases in which the jury found it liable and in which judgment was entered against it. It is that appeal which represents the issues for review here. Since the cases were tried together, we have heard the appeals together and decide them in this single opinion.

We affirm in part and reverse in part.

The evidence adduced at the trial of the combined cases was that in early 1958 several small, unorganized, independent mines located in Taylor and Barbour Counties, West Virginia, became the object of an intensive organizing campaign on the part of the defendant. The defendant contended such organizational campaign in the area was prompted initially by the request of the employees of the C & P Coal Company (often referred to in the record as the Railings), one of the original plaintiffs who did not prevail at trial, to represent them as a bargaining agent in their relationship with their employer. Whether the campaign by the defendant in the area began under these circumstances or not, the fact is that it quickly developed into an all-inclusive and all-pervasive effort to close down not simply the nine mine operators whose employees the defendant was seeking to organize and with whom alone the defendant had a labor dispute ³ but also any coal activity or movement in the entire area. It was seemingly directed at all mines, all tipples and all haulers throughout the area. There was no attempt made to distinguish between mines, with whom the defendant had a labor dispute, and those with whom it had none and intended none. It treated alike the hauling operations, without regard to whether the operators were independent haulers, operating under state certificates, whose employees the defendant did not even seek to and was actually unwilling to represent. It was not a half-hearted campaign but a campaign in which, to quote the language of the Trial Examiner in the Labor Board proceedings, "(t) he whole weight of the UMW organization was thrown." Its active direction was under one Myers, who was the field representative of District 31 of the UMW and chairman of its organizing committee. Four International representatives had been detailed to assist Myers in carrying on this campaign to force the targeted employers to sign union contracts and, in order to bring pressure on such employers to do so, to close down all coal activities in the area, according to plaintiffs' testimony.

As the first step in its campaign, the defendant approached the targeted mines and, as one of the mine operators testified, demanded the acceptance then and there of the standard UMW contract by the mine operators under the threat that if the latter did not accept and sign such contract, they would "never load another truck of coal." To give force to this threat, the representatives of the defendant added, according to the testimony of the operator first approached by the defendant's representatives, that "we have got a million dollars to break you guys and we will do it." This account does not, of course, accord with the testimony adduced by the defendant but it does find some support in the testimony of a member of the State police, who testified that Myers told him, during the picketing engaged in as a part of the campaign, that "he (meaning Myers) had a million and a half tons of non-union coal cut off and he was going to unionize them or keep it cut off."

When the mine operators who were the object of the organizational drive refused to sign the defendant's contract as submitted, active picketing began in April, 1958. It shortly took on a coercive character and it was extended rapidly throughout the whole area wherever there was any mining, transportation or shipping of coal. It was not confined to the entrances of the struck mines nor was it, as we have said, directed simply at the workers in the mines, where the defendant sought a labor contract. The pickets roamed the roads wherever any coal activity could be found. In order to cover the vicinity and to make effective a complete termination of all coal business therein, pickets were gathered at convenient vantage points, which constituted marshalling areas from which pickets would be dispatched quickly to those places where coal trucks might be traveling, etc. It was, in short, a well-organized program for closing down all coal activity in the area.

The picketing itself was not limited to persuasion. It assumed almost immediately an ugly character. There was massed picketing consisting of several hundred picketers. The pickets blocked roads throughout the area, threatened workers attempting to go into the mines or engaged in hauling coal, assaulted and beat workers not participating in the work stoppage found along the public roads, without regard to whether the workers were employed by a struck employer or by one not involved in a labor dispute with the defendant. Trucks attempting to haul coal in the area or cars carrying workers thought to be going to the struck mines were rocked and shot at. Workers engaged in any coal activity were threatened. Cars of workers were dynamited. Shovels at the mines and tipple machinery were blown up. In summary, a climate of terror and fear was created throughout the area. And that climate enveloped both the "struck mines" and those not involved in defendant's organizational campaign; it involved all truckers of coal, including truckers who were independent employers.

There was ample testimony that such picketing was conducted under the defendant's supervision. This testimony was direct and positive. According to the testimony of a State police officer, Myers told him at one time during the height of the strike that "they (the pickets) were his men and he was responsible for them." Moreover the pickets were all being paid $30 per week by the defendant. ⁴ There was accordingly clearly sufficient evidence in the record for the jury to conclude that the defendant had responsibility for the pickets and their conduct.

The defendant offered testimony, it is true, that neither it nor its representatives on the spot knew of any improper conduct on the part of the pickets. It went further and claimed that it gave specific instructions that no force at all was to be used by the pickets. Both Myers and the International representatives, however, were very evident during the picketing. They were seen often with the pickets. There was actually testimony, though denied by Myers, that Myers was responsible for at least some of the dynamiting and gunfire that occurred during the picketing. Some witnesses put Myers either at or near the scene when pickets assaulted and beat workers. He was also identified as present when road blocks were established. In any event, the defendant's responsibility was, under the evidence, a question for the jury and the jury resolved the issue against the defendant. ⁵ Both we and the defendant are bound by that resolution of the issue by the jury.

Despite the vigor and force with which the defendant pressed its campaign, some mining continued in the area for a number of months after the defendant began its picketing. State troopers were called into the area and controlled at times the picketing. At some point, though, any real coal activity ground largely to a halt in the area. Some of the mine operators, however, had in the meantime filed charges (under § 10(b) of the National Labor Relations Act against the defendant with the National Labor Relations Board.) The Board issued a complaint on these charges sometime in either the latter part of 1958 or first part of 1959, and a full hearing on such charges was held during February and March, 1959. The Trial Examiner thereafter filed in July,...