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March 25, 1980

UNITED MINE WORKERS OF AMERICA, DISTRICT NO. 5 OF THE UNITED MINE WORKERS OF AMERICA, JERRY ASHTON, ESTEL TAYLOR, JAMES BEACHEM, BRIAN SHORT, JOHN DOE, RICHARD ROE, and all others acting in concert with them or otherwise participating with them or acting on their behalf, Defendants

The opinion of the court was delivered by: SNYDER

This matter is before the Court on the Defendants' Motions for Judgment Notwithstanding the Verdict and for New Trial. The Motions will be denied.

I. The Procedural Background

 Kerry Coal Company ("Kerry Coal") brought suit against the United Mine Workers of America ("International"), District No. 5 of the United Mine Workers of America ("District"), Estel Taylor, District No. 5 Board Member, James Beachem, Brian Short and Jerry (Gary) Ashton, Members of the United Mine Workers, and the matter was tried to a jury on three counts of a six count complaint. The jury answered special interrogatories *fn1" and awarded the Plaintiff compensatory damages in the amount of $ 1,200,000, against all Defendants except James Beachem.

 Count I of the Complaint charged the International and the District with a violation of Section 8(b)(4) of the Labor Management Relations Act, 29 U.S.C. § 158(b)(4), which makes it unlawful for a labor organization or its agents "to engage in, or to induce or encourage any individual employed by any person engaged in commerce . . . to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities", or "to threaten, coerce, or restrain any person engaged in commerce" where an object thereof is a "secondary boycott". The Act provides for money damages, including the costs of suit. 29 U.S.C. § 187.

 Count IV was a pendent state claim against the International, the District and the Individual Defendants for tortious interference with business relationships.

 Count VI, pertaining to punitive damages arising from the allegations of Count IV, was sent to the jury which declined to make such an award.

 The motions presently under consideration here generally allege that there was insufficient evidence to support the verdict; that the damage award is inconsistent with the special interrogatories and against the weight of the evidence; that withholding of documents by the Plaintiff severely and irreparably prejudiced the International and the District; that the admission of certain evidence was severely and irreparably prejudicial; that the Court erred in allowing certain testimony; that the Court improperly questioned witnesses; and that the Court erroneously instructed the jury with respect to the damage award.

 Defendants Ashton and Short filed an Amended Motion for Judgment Notwithstanding the Verdict or for New Trial, claiming that the verdict was excessive as a matter of law; that the Trial Court abused its discretion in exercising pendent jurisdiction; and that it was error for the Court not to direct the jury to apportion the damage award.

 The International and the District filed a Supplemental Motion for New Trial claiming that the Court erred in admitting certain exhibits into evidence, in refusing to grant their Motion for Mistrial made during the closing arguments, and in refusing to grant their Requests for Points for Charge and Supplemental Points for Charge.

 II. The Scenario

 The evidence, viewed most favorably to the Plaintiff, indicated that Kerry Coal was a non-union surface coal operation, shipping its coal by rail and truck to industrial and domestic customers in Pennsylvania and Ohio. During the national coal strike by the United Mine Workers, from December 6, 1977 to March 16, 1978, Kerry Coal was operating five sites in Butler, Beaver and Lawrence Counties, Pennsylvania. *fn2"

 The District had a membership of 15,000 and jurisdiction over Washington, Allegheny, Westmoreland, Butler, Mercer and Venango Counties, Pennsylvania. It was split geographically into four Sub-Districts; each Sub-District elected a member to the District Executive Board. Estel Taylor was the Executive Board Member for Sub-District One and District President Louis Antal assigned him to the Enon Valley area (which included Kerry Coal's sites) for the strike.

 In November 1977, with a nationwide strike appearing inevitable, and apparently pursuant to a well thought out plan, District President Antal asked International President Arnold Miller to send in one of the International's Organizers, Thomas Pysell, to do a "survey" of the Western Pennsylvania coal fields. In particular, he wanted the non-union coal strippers "surveyed" because "our members kept coming back to us and raising heck that there were all kinds of strip mines popping up over night. And I couldn't go out and look at that, I didn't have the time." (T.237) Mr. Pysell was given responsibility for such a survey in Western Pennsylvania by the Organizing Department of the International. (T.208) Pysell left the area prior to the beginning of the strike, and was thereafter replaced by Jay Kolenc, also an International Organizer. The expense vouchers of Kolenc, P.Ex. 49, indicate that on November 25, 1977 Kolenc met with Pysell to check non-union mines. Kolenc remained in the area, surveying non-union mines, until January 21, 1978.

 Steve Segedi, a District Executive Board Member, recalled seeing Pysell and Kolenc in the District offices just prior to the strike, and Segedi, along with John Chach, Estel Taylor and Peter Sabo, other District Board Members, lunched with Pysell and Kolenc. (T.1476, 1502) The expense vouchers of Kolenc, P.Ex. 49, reflected meetings with District Officers on several occasions, and the telephone records of Estel Taylor, P.Ex. 100C, showed phone calls to Kolenc at the Holiday Inn in Beaver Falls as early as December 6, 1977.

 Under date of November 28, 1977, President Antal notified Kerry Coal and its President, Vernon Kerry, as well as every other non-union coal company within the District, that (P.Ex. 11):

"We are aware that you are not maintaining area wage and benefits standards, thereby obtaining an unfair competitive advantage. We demand that you immediately raise your current standards to match those prevailing in the coal mining industry in this area.
We expect to hear from you that you have raised your standards as soon as this has been accomplished. If, in fact, we do not hear from you concerning this matter, we will assume that it is not your intention to raise your standards at this time.
Please reply to me at the above address."

 These letters were sent without any knowledge of the wage and benefits standards paid by Kerry Coal and the others except, of course, that they were non-union operations. *fn3"

 On November 30, 1977, a meeting of the District Executive Board was called by President Antal to make preparations for the strike and to draw up "guidelines" for both "strike" and "informational" pickets. Kenneth Yablonski, the attorney for the District, was also present at this meeting and aided in the preparation of the guidelines. Specifically, informational picketing at independent non-union mines was discussed and guidelines presented. *fn4" The District arranged for the informational pickets to receive $ 3.00 for meals and, if they drove, 20( per mile. *fn5"

 Between December 6 *fn6" and 12, 1977, Vernon Kerry observed men in vehicles driving around his sites, apparently as "surveillance crews". Then, on the morning of December 12th, he received reports by CB radio and by telephone that several thousand dollars worth of damage had been done to a non-union competitor's site (later identified as the Veon site) and, for safety reasons, he shut down all Kerry Coal sites on the morning of December 13th, with the exception of some maintenance crews.

 In the beginning, picketing was not continuous but it later became 24 hours a day. (T.343) During the picketing, Vernon Kerry recognized Jay Kolenc, the International Organizer, at the site on more than one occasion.

 It was shortly after Christmas and after his encounter with Vernon Kerry, Gary Ashton testified, that he learned Kerry Coal was not going to be closed and called his Local President, Edward Lytle, to obtain help in setting up pickets at Kerry Coal. Lytle said he would get in touch with someone and let him know. The next day, Lytle called and told Ashton he would bring someone to meet him. Ashton stressed he wanted to set up pickets because the strip mines were running. A meeting was arranged at a firehall where Ashton, Beachem and Lytle discussed briefly with Jay Kolenc setting up pickets at Kerry Coal. Kolenc told them there were papers and instructions from the District and that someone would deliver these to him. Later, Estel Taylor, District Board Member, arranged a second meeting at Felix's Bar in Zelienople, some six or seven miles from Kerry Coal's Franklin Township site. Brian Short appeared at this meeting, and Taylor asked Ashton to "scout" the Kerry Coal operation (Ashton described scouting as seeing what operations were running and who was hauling coal where). After Ashton scouted Kerry Coal, he reported to Taylor that the sites were still operating and another meeting was called at Felix's Bar in which Short and Taylor participated. Taylor gave out the instructions drawn up at the November 30, 1977 meeting (see Footnote 4), and picketing then proceeded on a 24 hour basis from January 5 to January 9, 1978. Ashton remembered seeing Kolenc on this picket line.

 During the picketing, the pickets harassed independent truckers bringing the coal to the tipple. On one occasion the pickets stopped a train trying to get into the site, as the train crew refused to cross the picket line.

 Brian Short, a past Local President, was a close friend of Estel Taylor and became involved in picketing operations at Kerry Coal, as well as in scouting activities. Prior to establishment of a formal picket line at Kerry Coal (described by Brian Short as one for a period of 24 hours), informational pickets were put at Kerry Coal at Taylor's request. Short said that on one occasion they stopped, milled around the railroad siding, and left. Short considered this to be only informational picketing. On another occasion, Vernon Kerry observed Brian Short's vehicle, a Ram Charger, near the gas pumps on his property. At this time, Short threatened physical violence if Vernon Kerry did not shut down his operations.

 Both Short and Taylor recalled Jay Kolenc being on the picket lines. Full time pickets continued until January 9, 1978 and were then withdrawn.

 On January 20, 1978, Taylor, Short, and two other United Mine Worker members, Sewoc and Lucas, drove past Kerry Coal's site. Short said he thought Kerry Coal was still working. They drove past Kerry Coal into the Beaver Falls area and breakfasted with Jay Kolenc.

"Q. Tell the jury what you saw.
A. Broken windows, smashed turbochargers, fuel lines broken, radiators had holes punched in them. Most of the destruction was done with bars or sledges. The radio was destroyed the two way radio. The controls were smashed. The antifreeze and the fuel was all over the ground. They had broken lines on the fuel truck and just left the fuel run on the ground. The controls inside of the motor the motor the motor the injector lines on the dragline was smashed. Air cleaners were broken. Most of the controls were broken.
Q. Did you see where any foreign substances had been put into your equipment?
A. At various places on the machinery there is places where oil or fuel can be added to maintain the necessary levels to operate. Inside those areas, you could see where sand and mothballs had been placed. Dirt and sand were placed in the radiator caps where the radiators were completely filled."

 At the scene, Vernon Kerry observed tire marks in the new fallen snow which he identified as being made by Brian Short's Ram Charger. He went in search of Short and when he encountered him in an apartment house parking lot in Library, Pennsylvania, Kerry accused Short of "being seen last night". Short's only reply was, "I don't think so". (T.592)

 Some replacement parts were not immediately available and the Kerry equipment was not operational for over two months. It was necessary to take production men away from their usual work in order to perform the repairs, and Vernon Kerry hired private security guards.

 On January 25, 1978, twelve carloads of pickets came to the Kerry Coal tipple site and, standing shoulder-to-shoulder, completely blocked access to the premises. Vernon Kerry called the state police and while he was waiting for their arrival, two of the pickets came into his office, identified themselves as members of the United Mine Workers, and told him to stop shipping industrial or electrical utility coal during the remainder of the strike. Kerry agreed to do so and testified (T.346):

". . . It was a wise decision on my part because within five minutes there was a caravan came past my office in a show of force. There were some 80 cars in the caravan in addition to the cars that were already at my site."

 By the time the state police arrived, the pickets had gone. The police told Vernon Kerry to get his men out of there, expecting the pickets to return. Within about five minutes, the pickets were back but, when they saw the police, only shouted and made gestures.

 The coal trucks were followed on many occasions and at one attempted delivery at St. Joe Mineral Company, a regular Kerry Coal customer, on February 27, 1977, pickets threw rocks and damaged these trucks. After the coal was dumped they could not leave because the pickets were swarming at the exit. They finally escaped when they were escorted by the police. This incident ended deliveries to St. Joe Mineral for the period of the strike.

 Estel Taylor, District Executive Board Member, acknowledged he had been given the Enon Valley area by District President Antal (the area of Kerry Coal's operations). His calendar of activities showed that he was in that area on January 26, 1978 "performing legitimate official duties". *fn8" He denied being in the Kerry Coal area during any relevant period of time, although he had been paid by the District for this particular date, and his voucher showed he had been in Zelienople. He acknowledged knowing Jay Kolenc, seeing him at the Kerry Coal site, and meeting him through Ashton to set up the pickets at Kerry Coal, thus contradicting his own testimony.

 A. The Union's Testimony In Plaintiff's Case

 Much of the Plaintiff's case was established after lengthy pretrial depositions by calling various union members on cross examination. Vernon Kerry's testimony was thus strongly corroborated and many details added.

 The first of these witnesses was Michael Encrapera, who testified that before the strike began, he was asked by District President Antal to become the administrator of a legal defense fund (CMLDF), the purpose of which was to pay fines for the people who would get in trouble over the strike, and the source of this money would be contributions solicited from other mine workers and other unions. District Officers were to announce through the jurisdiction that the District could not pay the fine for those getting into trouble, nor could money be received from the International. Obviously, this was made to prevent any implication of participation by the District or the International, or ratification of any such conduct, contrary to its purpose.

 How transparent the situation was could be determined from a letter written by Michael Encrapera and later sent to many other unions by the District, which read as follows (P.Ex. 27):




During our contract strike, the Coal Miners Legal Defense Fund (CMLDF) was formed to help District 5 miners who were harassed or prosecuted. Dozens of miners were arrested on all kinds of criminal charges. As chairman of CMLDF, I arranged for the miners to have free legal representation and I'm proud to tell you that no District 5 miner was sent to jail. However, in some of the hard core anti-union counties, judges imposed huge fines. Many fines have already been paid, but thousands of dollars are still due. If the fines are not paid, the men will go to jail. District 5 can't pay the fines because if it does, it will be subject to coal company lawsuits and federal prosecution. These men need help and all coal miners should help them I urge you to help by giving a generous donation to the CMLDF when a collection is taken at your mine. I promise you as a long time coal miner and union member that all money will be used properly and strictly accounted for.
Michael Encrapera,
Coal Miners Legal Defense Fund"

 (Emphasis added in original.)

 The evidence was clear that Encrapera did pay criminal fines and attorney fees in several instances. For example, there was included a bill for services by Kenneth Yablonski, the District's attorney, for services rendered for Ashton, Short and Beachem, and this bill referred to Kerry Coal Company.

 District President Antal acknowledged that he was responsible for insuring that signatories to the Union Contract lived up to their obligations, that the membership enjoyed the rights given to them under the Constitution, and directing whatever was needed in the way of services by various District Board Members to benefit the members. Mr. Antal admitted asking International President Miller to send in an International Organizer, Thomas Pysell, to survey the non-union strips because Antal's men were complaining of non-union operations in the District's jurisdiction. Antal claimed that Pysell did not give him any report before Pysell left the area prior to the strike.

 Antal acknowledged there was an Executive Board meeting on November 30, 1977, when the strike plans were drawn up and the guidelines for informational pickets and union mine pickets were distributed. He said that informational pickets were to be paid $ 3.00 a meal and, if they drove, 20( per mile, and that the District was to pay these expenses. He estimated that approximately $ 5,000 was spent for non-union pickets during the strike but could not explain the figure of $ 37,833 in the District's Report to the National Labor Relations Board as having been spent in January, February and March of 1978. Responsibility for the picket lines in each sub-district was on the Executive Board Member of the particular sub-district. Antal disclaimed knowledge of any violence in the area, and particularly denied having seen any newspaper reports of violence in the area, or of having seen the telegram sent by the International on March 8, 1978, addressed to him at District Headquarters, and reading (P.Ex. 66):

"Upon a petition filed by the Regional Director of the National Labor Relations Board, the United States District Court for the Eastern District of Tennessee issued an order enjoining any picketing or any like or related activity, at any non-union mine with whom the International Union does not have a primary labor dispute and any employer under contract with any other union, including trucking companies and railroads. Similar federal court injunctions have been issued in the state of Kentucky and the state of Indiana against several Districts and a number of Local Unions. Therefore, you should advise all the officers and representatives of your District, and all of the Local Unions within your Districts, that they should avoid any such picketing or any other like or any related activity at these ...

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