P.G. & H. Coal Co., Inc. v. International Union, United Mine Workers of America, No. 17516

CourtSupreme Court of West Virginia
Writing for the CourtMILLER; McHUGH; McHUGH; BROTHERTON
Citation182 W.Va. 569,390 S.E.2d 551
Parties, 115 Lab.Cas. P 56,222 P.G. & H. COAL COMPANY, INC. v. INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, etc.
Decision Date23 November 1988
Docket NumberNo. 17516

Page 551

390 S.E.2d 551
182 W.Va. 569, 115 Lab.Cas. P 56,222
P.G. & H. COAL COMPANY, INC.
v.
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, etc.
No. 17516.
Supreme Court of Appeals of
West Virginia.
Nov. 23, 1988.
Dissenting Opinion Feb. 28, 1990.
Concurring Opinion March 23, 1990.
Syllabus by the Court

1. A contemnor cannot be convicted of contempt for an incident on which he was never charged.

2. It is possible for a contemnee to file additional contempt charges after the original filing and these may be consolidated with or tried separately from the original charges.

3. "Where jurisdiction over a labor dispute has not been preempted by National Labor Relations Board jurisdiction, a state may regulate picketing by injunction if the injunction has a reasonable basis in

Page 552

[182 W.Va. 570] prevention of disorder, protection of life or property, or promotion of the general welfare as defined by state law; however, such injunction must be specifically directed to acts or conduct which are designed to accomplish an illegal purpose, and not include those which keep within the protected area of free speech." Syllabus Point 1, United Maintenance and Mfg. Co., Inc. v. United Steelworkers of Am., 157 W.Va. 788, 204 S.E.2d 76 (1974).

4. A union cannot be held liable on the theory that it did not take all reasonable efforts to prevent or terminate a strike or to control illegal picketing. For liability to attach against a union, it must be shown that through its officials, the union participated in, encouraged, or ratified the misconduct.

James M. Haviland, Webster J. Arceneaux, II, McIntyre, Haviland & Jordan, Grant Crandall, Crandall, Pyles & Crandall, Charleston, for appellants.

George G. Guthrie, Charles L. Woody, Charleston, for appellee.

MILLER, Justice:

The defendants in this proceeding are the International Union (International), District 17 (District), and Local Union No. 2404 (Local) of the United Mine Workers of America (collectively Unions) and twelve individual union members. The defendants were found in civil contempt for the violation of a temporary injunction order issued in the Circuit Court of Kanawha County. They were held jointly and severally liable for a compensatory fine in the amount of $127,446.85, payable to P.G. & H. Coal Company, Inc. (PG & H). The defendants contend (1) that adequate notice was not given of over thirty alleged acts of contempt, (2) that the jury instructions were erroneous as to the responsibility of the Unions for the actions of its members, (3) that joint and several liability was erroneously imposed on the Unions and the twelve individual members thereof, and (4) that the compensatory damages allegedly sustained by PG & H were not proven to a reasonable certainty.

I. FACTS

This appeal grows out of a strike authorized by the International at the mining operations of PG & H located in Cabin Creek, Kanawha County, West Virginia. PG & H had been a signatory to the 1981 National Bituminous Coal Wage Agreement, which expired in September, 1984. When PG & H did not sign the 1984 national wage agreement and resumed partial operations in early 1985, a strike was begun and picketing ensued. 1 On February 8, 1985, PG & H filed a complaint in the Circuit Court of Kanawha County against the Unions and twelve officers and members of the local union, alleging that the defendants had engaged in mass picketing, unlawful acts of violence, and other unlawful activities interfering with PG & H's right to conduct business. The complaint sought compensatory damages and injunctive relief. 2

PG & H continued to experience problems at its mining operations and on April 25, 1985, petitioned the circuit court for a temporary injunction order prohibiting the International, the District, the Local, and twelve named individuals from, among other things: blocking ingress and egress to the company's operation; making, assaulting, or threatening its employees or others seeking to enter their property in order to

Page 553

[182 W.Va. 571] do business; and engaging in mass picketing, limiting the number of pickets to six. The trial court granted a temporary injunction the same day. 3

Four days later, on April 29, 1985, PG & H filed a petition for a rule to show cause why the defendants should not be found in civil contempt for violation of the temporary injunction order. The petition was accompanied by an affidavit from PG & H's vice president, John S. Griffin. This petition alleged that the defendants had knowingly violated the temporary injunction by engaging in prohibited activities, such as: (1) damaging and destroying company property and the personal property of its employees; (2) obstructing ingress to and egress from the company's mine and related facilities; and, (3) mass picketing in and around the mine entrance and roads leading thereto for the purpose of threatening and discouraging the plaintiff's employees from reporting to work. A rule to show cause was promptly issued and, thereafter, the defendants filed various pretrial motions.

The proceedings were bifurcated as to the issues of liability and damages. The liability aspect of the contempt proceeding began on May 15, 1985. PG & H introduced evidence to demonstrate that picketing in excessive numbers had occurred on some eleven occasions in violation of the temporary injunction, that company property and motor vehicles had been damaged, and that abusive language and isolated personal injuries had been sustained by security guards. At the close of its case, PG & H filed an addendum to its bill of particulars, enumerating the factual details of other alleged contemptuous acts which had been shown at trial, but not alleged in its pleadings. It then moved the court to conform the pleadings to the evidence.

The defendants moved for a directed verdict. The International and District stressed the lack of evidence of its involvement either in the picketing or in any of the incidents shown in the contempt proceedings. These motions for a directed verdict were denied. The individuals and the Unions introduced testimony by union officials as to the steps taken to control the picket line. The circuit court, at the close of all the evidence, directed verdicts against five of the individual defendants for violation of the temporary injunction.

The circuit court left the liability of the Unions and the remaining seven individual defendants to the jury. The court, over objection, instructed the jury in accordance with the company's proffered instructions. The jury returned a verdict with special interrogatories against the Unions and the remaining seven individual defendants on May 24, 1985. The trial court subsequently

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[182 W.Va. 572] denied the defendants' post-verdict motions and entered a broadened injunction order on June 4, 1985.

On June 7, 1985, a hearing on the damage issue was held before the circuit court. Based on the evidence introduced by PG & H, the trial court awarded damages as follows: (1) vandalism and related damages-$6,709.46; (2) financial damage to PG & H's business (lost contribution to fixed cost)-$59,157.05; (3) security costs-$30,748.34; and (4) attorney's fees and litigation costs-$30,832.00.

On July 15, 1985, the circuit court entered a final judgment order holding the defendants jointly and severally liable for the compensatory fine. This appeal followed.

II. NOTICE OF CONTEMPT CHARGES

The threshold issue in this proceeding concerns the adequacy of the notice given the defendants. The affidavit by the vice president of PG & H alleged that beginning on the evening of April 25, 1985, the date when the temporary injunction order was issued, and continuing until April 29, 1985, certain named and unnamed individual defendants in the civil action had violated the injunction by committing the following acts:

"a. Discharging, on at least three occasions, a weapon thought to be a small caliber rifle which, on one such occasion, destroyed a large halogen light around the watchman's trailer;

"b. Bombardment of said watchman's trailer, company vehicles, and personal vehicles owned by plaintiff's employees, with steel balls propelled from slingshots, and rocks of varying sizes. Certain of plaintiff's employees have had their personal vehicles substantially damaged as a result of this conduct and have expressed to me their extreme concern for their own personal safety and that of their families.

"c. Picketing in numbers far in excess of six in and around the mine entrance and along the access roads thereto;

"d. Using mirrors to blind plaintiff's employees traveling to and from the mine site while on the roadways leading thereto;

"e. Placing 'jack rocks' and related items in and around the roadways leading to and from plaintiff's mine, as a result of which several tires have been punctured and otherwise damaged;

"e. [sic] Propelling smoke bombs at the watchman's trailer;

"f. Chaining the gate leading to the plaintiff's mine and related facilities shut under circumstances requiring the plaintiff to cut the chain off of its gate with a torch prior to gaining access to its own property; and

"g. Engaging in certain other conduct related to the foregoing, the details of which are not set forth herein." 4

On May 9, 1985, six days before the liability phase of the proceeding commenced, PG & H submitted a summary of the incidents about which it intended to introduce evidence at trial. This summary provided some specifics concerning the charge of mass picketing and the acts of violence to company-owned and employee-owned property. Some names and dates were given, and the paragraphs of the temporary injunction allegedly violated were identified.

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[182 W.Va. 573] PG & H, in response to the defendants' request for a bill of particulars, filed an affidavit by its vice president which appears to be based on information and belief, rather than personal knowledge. It charged the...

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3 practice notes
  • State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, No. 23838
    • United States
    • Supreme Court of West Virginia
    • July 16, 1997
    ...jurisdiction of the court in any pending proceeding." P.G. & H. Coal Co., Inc. v. International Union, United Mine Workers of America, 182 W.Va. 569, 579, 390 S.E.2d 551, 561 (1988) (McHugh, J. concurring), quoting Chesapeake and Ohio System Federation v. Hash, 170 W.Va. 294, 299, 294 S.E.2......
  • Wheeling Park Com'n v. Hotel and Restaurant Employees, Intern. Union, AFL-CIO, AFL-CIO
    • United States
    • Supreme Court of West Virginia
    • November 18, 1996
    ...W.Va. 788, 204 S.E.2d 76 (1974). See also syl. pt. 3, P.G. & H. Coal Co., Inc. v. International Union, United Mine Workers of America, 182 W.Va. 569, 390 S.E.2d 551 11 This Court noted in State v. Imperial Marketing, 196 W.Va. 346, 352 n. 8, 472 S.E.2d 792, 798 n. 8 (1996) that [t]he custom......
  • Trecost v. Trecost, No. 24507.
    • United States
    • Supreme Court of West Virginia
    • April 3, 1998
    ...to follow proper contempt procedure is reversible error." P.G. & H. Coal Co. v. International Union, United Mine Workers of America, 182 W.Va. 569, 390 S.E.2d 551 (1988). Therefore, we conclude that the circuit court committed reversible error in allowing the Appellee's private lawyer to pr......
3 cases
  • State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, No. 23838
    • United States
    • Supreme Court of West Virginia
    • July 16, 1997
    ...jurisdiction of the court in any pending proceeding." P.G. & H. Coal Co., Inc. v. International Union, United Mine Workers of America, 182 W.Va. 569, 579, 390 S.E.2d 551, 561 (1988) (McHugh, J. concurring), quoting Chesapeake and Ohio System Federation v. Hash, 170 W.Va. 294, 299, 294 S.E.2......
  • Wheeling Park Com'n v. Hotel and Restaurant Employees, Intern. Union, AFL-CIO, AFL-CIO
    • United States
    • Supreme Court of West Virginia
    • November 18, 1996
    ...W.Va. 788, 204 S.E.2d 76 (1974). See also syl. pt. 3, P.G. & H. Coal Co., Inc. v. International Union, United Mine Workers of America, 182 W.Va. 569, 390 S.E.2d 551 11 This Court noted in State v. Imperial Marketing, 196 W.Va. 346, 352 n. 8, 472 S.E.2d 792, 798 n. 8 (1996) that [t]he custom......
  • Trecost v. Trecost, No. 24507.
    • United States
    • Supreme Court of West Virginia
    • April 3, 1998
    ...to follow proper contempt procedure is reversible error." P.G. & H. Coal Co. v. International Union, United Mine Workers of America, 182 W.Va. 569, 390 S.E.2d 551 (1988). Therefore, we conclude that the circuit court committed reversible error in allowing the Appellee's private lawyer to pr......

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