Tungsten Mining Corporation v. DISTRICT 50, ETC.

• Decision Date: 12 February 1957
• Docket Number: No. 7293.,7293.
• Parties: TUNGSTEN MINING CORPORATION, Appellant, v. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

242 F.2d 84 (1957)

TUNGSTEN MINING CORPORATION, Appellant, v. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Appellee.

No. 7293.

United States Court of Appeals Fourth Circuit.

Argued November 20, 1956.

Decided February 12, 1957.

Rehearing Denied March 25, 1957.

Whiteford S. Blakeney, Charlotte, N. C. (F. L. Fuller, Jr., Durham, N. C., and A. W. Gholson, Jr., Henderson, N. C., on brief), for appellant.

Banks Arendell, Raleigh, N. C., Yelverton Cowherd, Washington, D. C., and Charles P. Green, Louisville, N. C. (Alfred D. Treherne, Washington, D. C., and Armistead J. Maupin, Raleigh, N. C., on brief), for appellee.

Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and R. DORSEY WATKINS, District Judge.

R. DORSEY WATKINS, District Judge.

Plaintiff-appellant Tungsten Mining Corporation (Tungsten) sued Defendant-appellee District 50, United Mine Workers of America (District 50) for damages under Section 303 of the Labor Management Relations Act, 29 U.S.C.A. § 187(a) (3) and 187(b). Tungsten claimed that in January 1953 District 50, through an unlawful strike, caused damage to Tungsten's business; and that the strike was unlawful because one of its objects was to force Tungsten to recognize District 50 as bargaining representative of Tungsten's employees, although at that time United Stone & Allied Products Workers of America, C.I.O. (Stone Workers) was then the labor organization certified by the National Labor Relations Board (Board) as exclusive collective bargaining representative for such employees. At the conclusion of the trial before the district judge, without a jury, judgment was entered in favor of District 50.

In April 1946 the Board conducted an election among Tungsten's employees and issued a certification in favor of Stone Workers. Shortly thereafter, Tungsten and Stone Workers executed a collective bargaining agreement which was followed by an uninterrupted succession of such agreements, the fourth of which was effective until January 15, 1953, and from year to year thereafter unless modified or terminated by 60 day notice. In October 1952 Holloman, an employee¹ in Tungsten's mines, with the help of District 50, organized the Tungsten Mining Local of District 50 at the Tungsten plant and Holloman was elected president of the new local.

While Tungsten Mining Local was being organized and thereafter, meetings were held with Tungsten's employees. At these meetings representatives of District 50 made a series of speeches in which they pointed out that District 50 did not use² the facilities of the Board to settle representation questions and that District 50 would probably resort to a strike or series of strikes with picketing if it could not obtain recognition in any other way. After one of these meetings, statements were made by some of the employees that efforts to pass through a picket line might result in houses being dynamited "and things like that."

In October 1952 Robert Fohl, Regional Director of District 50, and Walter A. Shuey and Lucien L. Wood, Field Representatives of District 50, came to Tungsten and conferred with the vice president and general manager of Tungsten. These District 50 representatives asserted that their Union held authorizations from a majority of Tungsten employees. They stated that District 50 did not use the Board's facilities, but offered to have District 50's status verified through other media. They explained that where they were unsuccessful in obtaining representation by other means, they would resort to strike. Purported lists of requests that Stone Workers "no longer be the certified Bargaining Agent at the Tungsten Mining Corporation," of the withdrawal of check-off authorizations on behalf of Stone Workers, and of applications for membership in District 50, were mailed to Tungsten on January 21, 1953.

Shortly after the conference with the District 50 representatives, Tungsten examined its files and finding unrevoked dues deductions authorizations in favor of Stone Workers executed by more than a majority of employees in the unit, advised District 50 that Stone Workers had been certified by the Board as bargaining agent; that this certification had never been rescinded; and that Tungsten would continue to recognize Stone Workers until some other bargaining agent had been properly certified after an election duly held under the National Labor Relations Act. On October 30, 1952, District 50 wrote the Board, with a copy to Tungsten, reviewing in part the claims of District 50 and Tungsten, and concluding:

"We are merely advising your Board of this situation as a matter of record because this Organization intends to fully support and protect the interests and desires of the workers of this Mining Company, by every moral and legal means at our disposal, including that of strike action, if necessary."

In November 1952 Stone Workers notified Tungsten that it wished to terminate the existing contract and proposed that a new contract be negotiated. Because of "raids" on the membership of Stone Workers, an administrator appointed pursuant to the Constitution of Stone Workers International Union, was sent to the plant to endeavor to bring the employees back into Stone Workers' organization. Largely³ through the administrator's efforts, a new contract between Tungsten and Stone Workers was executed on December 18, 1952, to become effective on January 15, 1953, the terminal date of the current contract. On January 9, 1953 Tungsten discharged two employees, including Holloman, for alleged violation of working rules. They spoke to other employees of the company and a strike began at 6 p. m. At 7 p. m. representatives of District 50 arrived at the Tungsten plant. On January 10, Holloman and Fohl prepared a press release describing the strike as due to a spontaneous walk out because of the discharges which they attributed to union activity on behalf of District 50 by the discharged employees. The release also stated:

"In addition to a strike for the two discharged workers, it will also be a strike for recognition of the United Mine Workers of America and a new contract with proper wages, hours and working conditions from January 15, 1953, on."

"On strike" signs were made available by District 50 to the striking employees and after January 15, signs indicating that the strike was for recognition of District 50 were also supplied.

The strike was accompanied by violence, including the discharge of fire arms and dynamiting of a power pole. On January 14, 1953 the Superior Court of Vance County, North Carolina, issued a temporary restraining order directed against District 50, Holloman and others, enjoining interference with free ingress and egress; assaults, threats, abuse or damage; and also set up provisions with respect to picketing. This order was on the evening of January 14 read by Wood to the strikers, and Wood, in conjunction with State Police, laid out the picket stations in accordance with the order of court.

On January 15, 1953 Tungsten's old contract with Stone Workers expired and District 50 formally adopted the strike for purposes of recognition. Strike headquarters were established at a rented building some distance from the mine. Bail was furnished through District 50 for persons arrested for acts of violence during the course of the strike. An injunction issued by the district court on February 3, 1953, to which further reference is made in this opinion, brought an end to the strike.

Tungsten's suit was brought under U.S.C.A. Title 29, § 187, the pertinent parts of which read as follows:

"(a) It shall be unlawful, for the purposes of this section only * * * for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike * * * where an object thereof is —

* * * * * *

"(3) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees * * *

* * * * * *

"(b) Whoever shall be injured in his business or property by reason or of any violation of subsection (a) of this section may sue therefor in any district court of the United States * * *."

Whether or not District 50 induced the employees of Tungsten initially to strike, it certainly encouraged them in the strike, and was itself engaged in the strike at least after January 14, 1953.⁴ One of the purposes of the strike was to force or require Tungsten to bargain with District 50 as the representative of Tungsten's employees. During all the time in question, another labor organization, Stone Workers, had been certified by the Board as the exclusive collective bargaining representative of Tungsten's employees. That certification had not and has not been revoked.

The case would seem to come literally and exactly within the coverage of section 187(a) (3) supra. Nevertheless the district court 142 F.Supp. 806 entered judgment for District 50 saying:

"I am adjudging that District 50 is not liable to Tungsten because Stone Workers, despite its certification, was no longer a going concern, nor did it represent the overwhelming majority of Tungsten\'s employees — a situation of which Tungsten had every reason to be well aware * * *."

The proposition that despite the provision of section 187(a) (3) making unlawful a strike having as "an object" the forcing or requiring of any employer to recognize or bargain with a particular union if another labor organization has been certified as the representative of employees, such strike is not unlawful if the certified union (after one year from its certification) has ceased to represent a majority of the employees in the bargaining unit, was based completely and exclusively upon the decision in Kennedy, Regional Director, National Labor Relations Board v. Warehouse & Distribution Workers Union, Local 688, 37 L.R.R.M. 2496, (D.C.Mo., Jan. 27, 1956). That...