The opinion of the court was delivered by: KNOX
This suit was filed by eleven Western Pennsylvania coal haulers seeking damages on two separate theories. First, plaintiffs contend, in Count I of their amended complaint, that defendants engage in an illegal strike, an object of which was to force plaintiffs to sign a collective bargaining agreement containing a hot cargo clause in violation of § 8(e) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(e). Second, in Counts II and III, plaintiffs allege that defendants conspired to restrain trade and create a coal hauling monopoly in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, by engaging in the strike. Jurisdiction of this court has been properly invoked under 29 U.S.C. § 187 and 15 U.S.C. § 4.
On September 13, 1977, we determined that this case should proceed as a class action pursuant to Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure. We defined the class to include:
We reject defendants' contentions that this class was improperly certified for the reasons set forth in the memorandum opinion and order of this court filed September 13, 1977.
On May 7, 1979, we denied cross motions for summary judgment. Feather v. United Mine Workers of America, District No. 2, et al., 470 F. Supp. 606 (W.D.Pa.1979). The case was tried to the court non jury on the issues of liability only on October 9-12, 1979. Having carefully reviewed the evidence and considered the arguments of counsel, the court makes the following findings of fact and conclusions of law in accordance with FRCP 52(a).
1. The plaintiffs are individuals, partnerships and corporations, who, at any time from on or about November 1, 1974, have been engaged in the business of coal hauling from locations in Western Pennsylvania to places within and without Western Pennsylvania. The geographical area of Western Pennsylvania is comprised of the 40 western most counties of the Commonwealth. The principal place of business of the estimated 1,000 plaintiffs is located in this geographical area.
2. Defendants, United Mine Workers of America (UMWA) District No. 2 of the UMWA, and Local Union No. 1600 of the UMWA are unincorporated associations and labor organizations within the meaning of Section 2(5) of the NLRA, 29 U.S.C. § 152(5). Defendants represent employees who haul coal and work in and around coal mines.
3. The primary function of the UMWA is to periodically negotiate agreements on behalf of its members regarding wages, hours and conditions of employment. For more than twenty years the UMWA has engaged in collective bargaining with a multi-employer bargaining unit, the Bituminous Coal Operators Association. (BCOA). The collective bargaining agreement negotiated from time to time between the BCOA and the UMWA is known as the National Bituminous Coal Wage Agreement (NBCWA). The NBCWA is a master collective bargaining agreement. Although the BCOA negotiates the contract, the Association neither administers nor executes its terms on behalf of its members.
4. Prior to 1974, the NBCWA had not contained an express work jurisdiction clause which defined the overall scope of the UMWA jurisdiction. See the 1968 NBCWA (DX H) and the 1974 NBCWA (PX 2).
I. THE UMWA BCOA NEGOTIATIONS
5. In anticipation of the expiration of the 1971 NBCWA on November 12, 1974, the UMWA began preparations for the negotiations of the successor agreement. During the spring of 1974, thirteen district collective bargaining conferences involving nine hundred locally elected delegates from local unions in nineteen UMWA districts were held. At these conferences, UMWA officials solicited recommendations for the 1974 NBCWA.
6. The elimination of subcontracting of the hauling of coal by truck to non-union coal haulers was an important goal of the defendants in their negotiations of the 1974 NBCWA. Tom Bethell, a UMWA official, summarized the general viewpoint of the participants of the district conferences, as follows:
"In non-economic areas, . . . there were generally very strong feelings on the need to determine seniority on length of services alone, with no continuation of "qualifications'; district-wide or company-wide seniority; elimination of subcontracting especially in maintenance and contract haulage; . . . " (PX 6, p. 2)
7. On September 3, 1974, the formal bargaining process commenced. At the first session, the UMWA presented the BCOA with a gray bound volume of policy statements and proposals (the "Gray Book", PX 8). Under "Scope and Coverage", Section 24 of the Gray Book, the UMWA comments, as follows:
"With the possible exception of Article XIII (Seniority), there is probably no other article in the current agreement which has caused more problems, more disputes, more work stoppages and mora rank and file discontent than Article II. It is a literal mine field of explosive issues. It is confusing to the miner and to mine management. It says too much in some sections, too little in others. It is out of date in some areas, and is not designed to remedy critical issues which regularly arise."
Under the subsection, "Subleasing and Subcontracting", the UMWA commented:
"During the term of the present agreement, the jurisdictional rights of UMWA have repeatedly been infringed upon and undermined by the subcontracting of work. Because of serious problems which may result in any attempt to limit subcontracting, other than to impose an absolute ban on subcontracting, the UMWA proposes that subcontracting of unit work be absolutely prohibited. Furthermore, the Union reserves the right to resort to free collective bargaining when any employer attempts to evade the prohibition on subcontracting."
The UMWA made additional comments under the subsection, "Work Jurisdiction":
"Section (f) (of Article II of the 1971 NBCWA) is entirely inadequate to cover the existing jurisdiction of the UMWA. It does not deal with problems which have regularly recurred during the term of the 1971 agreement such as the trucking of coal from mine sites, the removal of overburden and reclamation of strip sites and the maintenance of mine roads. This section should be redrafted in its entirety to make it clear that all work related to or incident to the removal of coal from the earth, its processing, the hauling of coal from the mine site, the removal of coal waste and maintenance of gob piles, the restoration and reclamation of the mine site, the maintenance of mine roads, and all repair and maintenance work in and around the mine or at a central repair shop shall be performed solely by members of the UMWA employed by the mine owner or operator."
8. During the sixth session of the negotiations held on September 10, 1974, Rick Bank, a UMWA bargaining representative, stated that the UMWA sought to terminate the subcontracting of coal hauling to independent haulers. (PX 9A: Collective Bargaining Notes, UMWA-BCOA, 6th Session, pp. 11-12) (hereinafter "Notes").
9. On October 2, 1979, the BCOA tendered counterproposals to the UMWA proposals covering several areas of disagreement. The BCOA proposal in the scope and coverage area was taken verbatim from the 1971 NBCWA. The BCOA proposal provided, in pertinent part, as follows:
Article II Scope and Coverage
Section (f) Work Jurisdiction
The following work shall be performed solely by members of the United Mine Workers of America and will be covered by this agreement:
(1) All hauling of coal, overburden, mine refuse in or about the mine, including hauling to a screening crushing, washing or other preparation facility, or other contiguous mine-related operation.
(2) All repair and maintenance work in and around the mine to the extent that the Employer has the necessary equipment at such mine or at a central repair shop where such work is normally performed and regular employees with the necessary skills available to do the work.
The UMWA rejected the BCOA counterproposals, including the "scope and coverage" proposal, and walked out of negotiations. (PX 9A, "Notes" 8th-14th Sessions).
10. At the request of the BCOA, negotiations resumed on October 14, 1974. On October 18, 1974, the UMWA, in response to the BCOA objections to a complete ban on subcontracting, offered the following proposal (PX 11):
Section (a) Work Jurisdiction: Classified Work
The following work is covered by the terms of this agreement and shall be performed, in accordance with the provisions of this Agreement, exclusively by members of the United Mine Workers of America: (1) all work which is related or incident to the removal of coal from the earth; the screening, crushing, washing or processing of coal; the hauling or transporting of coal from the mine site, preparation facility or loading facility; the removal of coal waste and overburden; maintenance of gob piles on waste embankments; the restoration and reclamation of mine sites; and the maintenance of all mine roads; (2) all repair and maintenance work in and around the mine or at a central repair shop where such work is normally performed.
Nothing in this Section shall be construed or applied to diminish the exclusive work jurisdiction otherwise expressed or implied by this Agreement.
Section (g) Subcontracting of Classified Work
Except as expressly provided herein, the employer shall not, during the term of this Agreement, contract out any work within the exclusive jurisdiction of the United Mine Workers of America:
(1) An employer may continue existing arrangements with trucking companies or operators who presently provide trucking services provided that the labor costs of such trucking contractors, including both hourly rates and fringe benefit payments to their employees, are not less than those required by this Agreement.
(a) Repair work which is performed by a machine manufacturer under warranty or work which has heretofore been performed either on or off the mine site by other employers may be continued unless the employers signatory hereto have or can readily obtain without substantial expense the equipment necessary to perform such work and currently have available either regular employees or panel members who have the necessary skills to do the work.
11. From October 24 to November 8, 1974, the parties exchanged formal proposals on the scope and coverage issue, but made little head way in their negotiations. (See PX 12-15). On November 9, 1974, the BCOA proposed a separate work jurisdiction clause (PX 17) which provided, in pertinent part:
The production, preparation and trucking of coal, and work customarily related thereto is the work of the United Mine Workers and shall be performed by classified employees of the employer under this agreement, and may be contracted out only in the circumstances and under the conditions set forth in section (g) of this article.
Section (g) Contracting and Subcontracting
(2) Trucking of Coal The trucking of coal around the mine site, from the mine site to a preparation plant or loading facility may be contracted out to a contractor employing members of the UMWA under this agreement and where such contracting out is consistent with prior custom and practice.