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C & K COAL CO. v. UMW

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF PENNSYLVANIA


March 17, 1982

C & K COAL COMPANY; Cambria Coal Company; Shannon Coal Company; W. P. Stahlman Coal Company; and Vantage Coal Company; and Fred L. Myers, Debra M. Campbell, Laura Mays, Sandra K. Towers and Ralph E. Morrison, individually and on behalf of all others similarly situated, Plaintiffs,
v.
UNITED MINE WORKERS OF AMERICA, et al., Defendants

The opinion of the court was delivered by: ZIEGLER

FINDINGS OF FACT and CONCLUSIONS OF LAW

I. Part One-Liability

 (1) This is a civil action for money damages filed by C & K Coal Company, Cambria Coal Co., Shannon Coal Co., W. P. Stahlman Coal Co. and Vantage Coal Co., against the United Mine Workers of America, hereinafter referred to as the International, Districts 5 and 2, Locals 1269, 4426, 6132 and 1362, and 20 officers or members of these labor organizations. The plaintiffs are non-union companies, who are wholly owned subsidiaries of Gulf Resources and Chemical Corp.

 (2) The instant litigation arises from events which occurred during the economic strike between the International, the Districts and other Local Unions of the United Mine Workers of America, and the members of Bituminous Coal Operators Association, with whom they had a collective-bargaining relationship. The strike began on December 6, 1977, and ended on March 27, 1978, when a new contract was executed. Plaintiffs are non-union companies located in Western Pennsylvania and did not have, at any time, a collective-bargaining agreement or relationship with defendants. Plaintiffs were not members of the B.C.O.A. and, at no material time, did defendants have a labor dispute with plaintiffs. Plaintiffs are therefore neutral or secondary employers. See NLRB v. Retail Store Employees Union, 447 U.S. 607, 100 S. Ct. 2372, 65 L. Ed. 2d 377 (1980); NLRB v. Fruit and Vegetable Packers, 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964).

 (3) In Count 1, C & K, Shannon, Stahlman and Vantage have filed suit against the International, Districts 5 and 2, the four local unions and officers Miller, Antal, Sabo, Taylor, Chach, Scarton, Harris, Michel, Taranto, Mulhollen, Matter, Valauri, Black and Ponce, contending that these defendants violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act and Section 303 of the Labor Management Relations Act of 1947, commonly referred to as the Taft-Hartley Act.

 

(4) Section 303 of that Act provides as follows:

 

(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 8(b)(4) of the National Labor Relations Act, as amended.

 

(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) may sue therefor in any district court of the United States subject to the limitations and provisions of section 301 hereof without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit. 29 U.S.C. § 187 (1976).

 

(5) Section 8(b)(4) of the National Labor Relations Act provides:

 

(b) It shall be an unfair labor practice for a labor organization or its agents-

 

(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting 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 perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is-

 

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

 

Provided, That nothing contained in this sub-section shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees who such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution; .... 29 U.S.C. § 158(b)(4) (1976).

 (6) The Supreme Court formulated the following three-part test to identify a violation of Section 8(b)(4) in Local 1976, United Brotherhood of Carpenters v. NLRB, 357 U.S. 93, 98, 78 S. Ct. 1011, 1015, 2 L. Ed. 2d 1186 (1958):

 

Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person.

 (7) Recently the Court of Appeals for the Second Circuit, in discussing the reach of Section 8(b)(4), explained:

 

It has long been recognized that section 8(b)(4) was enacted for the purpose of "shielding unoffending employers and others from pressures in controversies not their own.' National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 627 (87 S. Ct. 1250, 1259, 18 L. Ed. 2d 357) (1951). Balanced against this congressional objective is the "right of labor organizations to bring pressure to bear on offending employers in primary labor disputes.' Id. This competing concern is reflected in the proviso of section 8(b)(4)(ii)(B)-which exempts from the section "any primary strike or primary picketing'-and in the affirmative protection accorded primary union activity under the NLRA. Thus, unions are protected when engaging in primary activity no matter how severe the impact on neutral employers, id., at 627 (87 S. Ct., at 1259), but are forbidden from pressuring an employer when the pressure is "calculated to satisfy union objectives elsewhere.' Id. at 644, 87 S. Ct. at 1268. See also NLRB v. Enterprise Association & General Pipefitters, 429 U.S. 507, 528, 97 S. Ct. 891, 902, 51 L. Ed. 2d 1 (1977).

 Allied International, Inc. v. International Longshoremen's Assoc., 640 F.2d 1368, 1377 (2d Cir. 1981).

 (8) In Count 2, Cambria Coal Company has filed suit against the International, District 2, Locals 1269 and 1368, and officers Miller, Scarton, Harris, Taranto and Mulhollen contending that these defendants violated Section 8(b)(4)(i) and (ii)(B) of Section 303 of the Labor Management Relations Act of 1947.

 (9) In Count 3, C & K, Shannon, Stahlman, Vantage and Cambria have filed suit against the 29 defendants appearing in the caption contending that these defendants, and others, conspired to unreasonably restrain interstate commerce, by violence and intimidation against the non-union mines in the Western District of Pennsylvania including plaintiffs, in violation of Section 1 of the Sherman Act. 15 U.S.C. § 1. Plaintiffs also seek treble damages under Section 4 of the Clayton Act, 15 U.S.C. § 15, and counsel fees, interest and costs.

 (10) Plaintiffs' anti-trust allegations arise out of a meeting which occurred on December 14, 1977, at the Sheraton Inn at Clarion, Pennsylvania. Plaintiffs contend that defendants conspired to coerce plaintiffs to enter an agreement to restrain trade when defendants offered, and plaintiffs agreed, not to ship coal in interstate commerce during the period of the strike between the United Mine Workers of America and the members of the B.C.O.A.

 (11) Section 1 of the Sherman Act provides as follows: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal ...."

 (12) Section 4 of the Clayton Act provides as follows: "Any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws may sue therefor in any district court of the United States ..., without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."

 (13) Count 4 was dismissed by the court against all defendants in its pre- trial bench memorandum dated Dec. 11, 1981.

 (14) In Count 5, C & K, Shannon, Stahlman and Vantage have filed a state law claim for tortious interference with a business relationship against the International, Districts 5 and 2, the four locals and 14 officers of these organizations. In this regard Pennsylvania law and the Restatement (Second) of Torts provide:

 

§ 766A. Intentional Interference with Another's Performance of His Own Contract

 

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.

 (15) In Count 6, C & K, Shannon, Stahlman and Vantage have filed a state law claim for the tort of conspiracy against the defendants referred to in the previous finding. In this regard Pennsylvania law provides:

 

A conspiracy is a combination of two or more purposes to do an unlawful act, or to do a lawful act by unlawful means. One of the essential elements of this tort is that one of the conspirators perform one overt act in furtherance of the conspiracy.

 See, 7 P.L.E. 187, Conspiracy § 1, et seq.

 (16) In Count 7, C & K, Shannon, Stahlman and Vantage have filed a state law claim for the tort of trespass against the defendants referred to in finding number 14. In this regard, Pennsylvania law and the Restatement (Second) of Torts provide:

 

§ 158. Liability for Intentional Intrusions on Land

 

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally

 

(a) enters land in the possession of the other, or causes a thing or a third person to do so, or

 

(b) remains on the land, or

 

(c) fails to remove from the land a thing which he is under a duty to remove.

 (17) In Counts 8, 9, and 10, Cambria Coal Co. has filed similar state law claims against the International, District 2, Locals 1269 and 1368, and 5 officers of these organizations. The state law claims of all plaintiffs in Counts 5-10 seek compensatory and punitive damages, as well as counsel fees and costs.

  (18) Jurisdiction of this court is predicated on 29 U.S.C. § 187 with respect to Counts I and II. Jurisdiction is based on 15 U.S.C. § 15 and 28 U.S.C. § 1337 with respect to Count III. Counts 5-10 are pendent state law claims, which this court has the power to adjudicate against all defendants, as we noted in our bench memorandum of Dec. 11, 1981, at pages 35-36. We there articulated the appropriate precepts and exercised our discretion to consider and determine these claims, along with the other non-frivolous federal claims asserted by plaintiffs. See Kerry Coal Co. v. United Mine Workers, 637 F.2d 957, 965 (3d Cir. 1981). Finally, we note that 29 U.S.C. § 187(a), on which Counts 1 and 2 are based, requires a showing of a relationship with interstate commerce as part of an unfair labor practice claim for damages based on Section 8(b)(4). The court finds that plaintiffs have proved that they were engaged in interstate commerce, or activity affecting such commerce.

 (19) In our bench memorandum of Dec. 11, at pages 33-36, we noted that the claims of plaintiffs, predicated on Sections 8(b)(4) and 303 of the Labor Management Relations Act, 29 U.S.C. § 187, may not proceed against the individual defendants named in the complaint. See Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S. Ct. 1318, 8 L. Ed. 2d 462 (1962). Defendants Miller, Antal, Sabo, Taylor, Chach, Scarton, Harris, Taranto, Mulhollen, Michel, Cleaver, Connor, DePellegrin, Eshenbaugh, Lash, Montgomery, Riggatire, Ponce, Black, Matter, Valauri, Nemeth, Doe and Roe were dismissed as parties in the claims asserted by plaintiffs in Counts 1 and 2. Thus we turn to the question of the burden of plaintiffs proof against the International, Districts 5 and 2, and Locals 1269, 4426, 6132 and 1368, as asserted in Counts 1 and 2. We will treat each count in the order presented in the complaint against each defendant as that party appears in the caption.

 (20) The question of the burden of proof in a claim posited on Sections 8(b) (4) and 303 of the Labor-Management Relations Act of 1947 has been resolved. Plaintiffs must prove their claims against these labor organizations by a preponderance of the evidence. See United Mine Workers v. Gibbs, 383 U.S. 715, 736, 86 S. Ct. 1130, 1144, 16 L. Ed. 2d 218 (1966). The more stringent standard of "clear proof" under Section 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106, is not applicable.

 (21) Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 100 S. Ct. 410, 62 L. Ed. 2d 394 (1979), and Kerry Coal Co. v. United Mine Workers, 637 F.2d 957, 963 (3d Cir. 1981) teach that, with respect to the liability of the International, we must determine whether the plaintiffs have established by a preponderance of the evidence that the International "instigated, supported, ratified, or encouraged" illegal secondary conduct. The test can be further distilled by determining: (a) whether any employee of the International "instigated, supported, ratified or encouraged" the activity complained of, and (b) if so, was he acting for the International? Kerry Coal Co., supra at 963. To repeat, plaintiffs must establish each position by a preponderance of the evidence.

 (22) Reference should also be made to Section 301(b) of the Labor Management Relations Act. 29 U.S.C. § 185(b). Section 303 of the Act refers to Section 301(b), which provides that labor organizations shall be bound by the acts of their agents. Moreover, "the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." 29 U.S.C. § 185(e). Thus under the common law of agency, the questions of express, implied and apparent authority are relevant considerations in our separate analysis of the liability of each labor organization that is a defendant in this case. However, the mass action theory of liability articulated in Eazor Express Inc. v. Teamsters, 520 F.2d 951 (3d Cir. 1975) was repudiated by the Supreme Court in Carbon Fuel.

 (23) Plaintiffs argue that the evidence establishes that certain employees of the International, acting within the scope of their employment, directed, authorized, instigated, supported, encouraged or ratified illegal activity at the plaintiffs' facilities. Plaintiffs are, as we have noted, secondary employers. Plaintiffs rely primarily upon the following evidence in support thereof:

 (A) The testimony of Estel Taylor that International employee Jay Kolenc supplied him with maps and information regarding the names and locations of non-union mines at the Meadowlands Hilton and the Beaver Falls Holiday Inn;

 (B) The testimony of Estel Taylor that International employee Jay Kolenc was on the picket line with him, on one occasion, at the New Castle Power Plant, a customer of plaintiffs;

 (C) The evidence that Kolenc was on the picket line at Kerry Coal Co., another secondary employer;

 (D) The evidence that Miller Savage, William Corfont, Steve Paronish, Marion Ladisic, Nick Cecil, James Mullen, and others, submitted vouchers during the strike to the International bearing such notations as "on picket duty" or "checking on non-union strips or mines;"

 (E) The voucher of George O'Bush, an International employee, marked Exhibit 25D, indicating that on December 11, 1977, he was "showing men how to get to non-union mines;"

 (F) The evidence that Miller Savage, an employee of the International, engaged in picketing at Duquesne Light Co. and made a coercive threat to an employee of that company, and Veon Coal Co., and also that he participated in unspecified picketing from December 6 to 12, 1977;

 (G) The evidence that Paul Bitcko attended a meeting at the Sheraton Inn in Clarion, Pennsylvania on December 14, 1977, with Scarton, Harris, Hailman, Barkley and others;

 (H) The statement of one Wolliver that he had been given maps by International employees of non-union mines;

 (I) The testimony of Troopers Haskins and DeWire that International employee, Nick Cecil, was in the parking lot of Forresters Bar following the incident at the Rimersburg Tipple on February 1, 1978. Cecil demanded to know why Cleaver and Lash, members of the U.M.W., had been arrested. Cecil also presented a card displaying his position with the International;

 (J) The entry of a preliminary injunction by the Court of Common Pleas of Cambria County, Pennsylvania, against the International and others, on Dec. 22, and a permanent injunction on Dec. 28, 1977. Suit was instituted by plaintiff, Cambria Coal Company;

 (K) The entry of a preliminary injunction by the Court of Common Pleas of Clarion County, Pennsylvania, against the International and others on Dec. 13, and a permanent injunction on Dec. 19, 1977. Suit was instituted by plaintiff, C & K Coal Company; and

 (L) The article which appeared in the Journal of the U. M. W. in November of 1977 urging the establishment of picket committees with the statement "We know how to arrange a program that is both fair and effective."

 (24) Our itemization represents a selection of the facts deemed most significant by the court, as presented by plaintiffs on this issue. It is not all inclusive. Suffice to say we have considered all the facts of record presented by the parties. The facts we mention here are only those which form the basis of our judgment. After 13 weeks of trial, 99 witnesses, and hundreds of exhibits, we can do no more. It would be impossible to discuss every fact or exhibit of record.

 (25) We find that the plaintiffs have failed to establish by a preponderance of the evidence, that the International directed, authorized, instigated, supported, encouraged or ratified illegal secondary activity. We find that the fair weight of the credible evidence preponderates on behalf of the International.

 (26) We find the evidence that Jay Kolenc supplied Estel Taylor with maps and the location of non-union mines in Western Pennsylvania fails to establish, by a preponderance of the evidence, that the International directed, authorized, instigated, supported, ratified or encouraged illegal secondary activity toward plaintiffs. International organizers use such information in their organizational efforts and it is reasonable to infer, and we so find, that Taylor intended to employ the information to assist Kolenc in lawful organizing efforts at non-union mines. Further, the fair weight of the credible evidence establishes that Kolenc never directed, authorized or ratified illegal activity with regard to plaintiffs, either during the meeting at the Meadowlands Hilton or at the Beaver Falls Holiday Inn. We find the evidence of plaintiffs in this regard to be neutral at best and non-probative in particular; and since, plaintiffs bear the burden of proof, they have failed to sustain their burden by a preponderance of the evidence. Finally, we find that after giving the information to Taylor, Kolenc was not required to take affirmative actions if District 5 subsequently used the information for illegal secondary activities directed at plaintiffs. Carbon Fuel Co., supra, teaches that there is no obligation, implied by law, on the part of an international union to use all reasonable means to prevent illegal activity by its members, so long as it does not instigate, support, ratify or encourage illegal activity. We find that plaintiffs have failed to meet the test of Carbon Fuel, by a preponderance of the evidence.

 (27) The right to picket peacefully is a lawful activity, unless it threatens, coerces or restrains a secondary or neutral party within the meaning of § 8(b) (4). See, NLRB v. Retail Store Employees, 447 U.S. 607, 100 S. Ct. 2372, 65 L. Ed. 2d 377 (1980); NLRB v. Fruit Packers, 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964). Informational picketing of secondary employers is a lawful activity, under some circumstances. NLRB v. Fruit & Vegetable Packers, supra. Thus vague testimony that Jay Kolenc, who was an International employee at the time, was on a picket line at one of plaintiffs' customers, on one isolated occasion, without more, does not establish liability on the part of the International. We find that the evidence of the activity of Jay Kolenc at New Castle Power Co., on one occasion, to be insufficient to carry plaintiffs' burden of proof. Plaintiffs failed to prove that, on the unspecified date of Kolenc's presence at plaintiffs' customer he did or did not carry a sign; or the extent of his participation; or that he was engaged in mass picketing; or that he engaged in any violence; or the location of the picketing; or that he blocked ingress or egress to the plant; or the object or reason for such picketing; or that he threatened, coerced or restrained any employee or employer; or that he engaged in any act proscribed by Section 8(b)(4) or federal law. See Buckeye Power, Inc. v. Utility Workers, 607 F.2d 759 (6th Cir. 1979). We emphasize that plaintiffs have failed to prove, by a preponderance of the evidence, that Kolenc's activities were coercive in any manner, including the means employed, or the purposes intended. We also find there is no evidence that on the days certain truckers, such as William Hanna and James Guth, were prevented from making deliveries to New Castle Power, from C & K, was the day on which Kolenc was present. Thus we find that plaintiffs have failed to prove, by a preponderance of the evidence, that Kolenc participated in any illegal secondary activity. Finally, the fact that he was paid a salary at the time by the International is not significant because as, we have found, he was not engaged in illegal activity. Moreover, we also find that, with respect to Jay Kolenc, plaintiffs have failed to prove that he was acting for the International and within the scope of his employment, by a preponderance of the evidence, on the date of his only appearance at New Castle Power Co.

 (28) Plaintiffs' evidence that Kolenc met with Gary Ashton concerning the picketing of Kerry Coal Company, and was observed on the picket line of Kerry's Franklin site, is insufficient to establish the liability of the International in this case. Kerry Coal Company is not a party in this case and therefore his activity with respect to Kerry, does not establish that the International instigated, supported, ratified or encouraged the events about which plaintiffs complain, by a preponderance of the evidence. Although Federal Rule of Evidence No. 406 authorizes the admission of such evidence to establish a pattern or practice, and this court received that evidence for such a purpose, we now find that plaintiffs have failed to establish, by a preponderance of the evidence, a pattern or practice by the International, which establishes the liability of that party to plaintiffs.

 (29) The evidence that Miller Savage, William Corfont, Steve Parovich, Marion LaDizek, and others, submitted vouchers to the International, during the strike, bearing such notations as "checking on non-union strips or mines," and "on picket duty," we find does not establish that the International is liable, by a preponderance of the evidence. We find that the phrase "checking on non-union strips or mines" meant just that. And we find that they were checking on the strips for the purpose of locating and organizing those companies at a later date. The evidence preponderates that the most advantageous period for an organizer to locate nonunion companies is during a strike at the union mines, since only the non-union companies are operating. Further, we find that the statement in the vouchers "on picket duty" fails to establish that the International instituted, supported, ratified or encouraged illegal secondary activity. The fair weight of the credible evidence is to the contrary. We find that the words "on picket duty" referred to picketing of primary employers, and it is insufficient to support the inference that it involved the plaintiffs, or other non-union companies. Our finding is based on the impressive evidence of the International, and the denial of the International employees that they picketed plaintiffs' facilities. We find these witnesses to be credible and the weight of the evidence preponderates on behalf of the International in this regard.

 (30) The voucher of George O'Bush, an International employee, reflects that he was "showing men how to get to non-union mines" and we find that it is insufficient evidence to meet the first prong of the test explicated in Kerry Coal Co. v. United Mine Workers, 637 F.2d at 963. The phrase is subject to varying interpretations and inferences, and we note that the statement makes no reference to picketing, illegal conduct or the plaintiffs. We find the testimony of Mr. O'Bush to be persuasive and credible that he never instructed any member of District 2 to conduct any picketing at plaintiffs' facilities. Further, we find that plaintiffs have failed to establish by a preponderance of the evidence that Mr. O'Bush was acting within the scope of his employment or that the International ratified any act.

 (31) The evidence is even less persuasive with regard to the activities of Miller Savage. Savage readily admitted picketing at Duquesne Light Co. in Washington County. But Duquesne Light was a primary not a secondary employer. Therefore his activities were lawful. While it appears that Mr. Savage may have threatened an employee of Duquesne Light Co., this conduct is of no benefit to plaintiffs. It is not probative of plaintiffs' theory of liability against the International because there is no credible evidence that Mr. Savage engaged in illegal secondary activity involving the plaintiffs. The same reasoning obtains with respect to his activities at Veon Coal Company. Veon is not a party to this action and whatever Mr. Savage may have said to Jack S. Courtney on December 12, 1977, at Veon's Hostetler Pit, does not establish that the International instigated, supported, ratified or encouraged illegal secondary conduct, by a preponderance of the evidence, vis-a-vis the plaintiffs. There is no credible evidence that the International orchestrated the illegal conduct of which plaintiffs complain. The clear weight of the credible evidence supports the position of the International.

 (32) The meeting at the Sheraton Inn in Clarion on December 14, 1977, involving Paul Bichko, does not satisfy plaintiffs' burden of proof. The evidence establishes that, while present, he said nothing. He was asked by Mr. Scarton to attend as a courtesy to Mr. Bichko's position with the International. There is no evidence that he made any comments, or performed any act violative of § 8(b)(4) of the Act. Carbon Fuel Co., supra, teaches that there is no affirmative duty on the International to act, so long as it does not instigate, support, ratify or encourage illegal conduct. We find that the presence of Mr. Bichko at the meeting, without more, does not satisfy plaintiffs' burden of proof by a preponderance of the evidence. We find that Mr. Bichko was a credible witness and his explanation of the event is persuasive. The International presented evidence which establishes that it did not violate the National Labor Relations Act by its conduct. The mere presence of an International employee at a meeting when a coercive threat is made by a member of another labor organization does not premise liability upon the International by a preponderance of the evidence.

 (33) The statement of Mr. Wolliver is to the same effect. To supply maps and information concerning the location of non-union mines does not establish, on this record, that the International directed, authorized, etc., the use to which the information was put. The fair weight of the credible evidence preponderates to the contrary.

 (34) Evidence that Nick Cecil was present in the parking lot of Forresters Bar on February 1, 1978, is equally unpersuasive in our view. There is no evidence that he was engaged in the activities at Rimersburg Tipple, and we cannot conclude that his interest in the well-being of two miners is somehow violative of federal labor law. We find that the acts of Mr. Cecil failed to establish by a preponderance of the evidence that the International, acting through Nick Cecil, instigated, supported, or ratified, illegal secondary activity.

 (35) The entry of injunctions against the International by the Courts of Common Pleas of Clarion and Cambria Counties, Pennsylvania, is of no significance. A careful reading of the decrees indicates that the International, and others, were ordered to avoid certain conduct with respect to plaintiffs. But as we have found there is insufficient evidence, on this record, that the International engaged in such conduct either prior to, or following the entry of these orders. Consistent with our findings is the fact that plaintiffs never cited the International for contempt following the orders of Dec. 13 or December 22, 1977.

 (36) Our finding of want of liability by the International is required by the clear weight of the credible evidence. Plaintiffs have presented, at best, isolated instances and strained inferences which pale when considered with the direct, credible evidence to the contrary. Examples of the evidence presented by the International, which we find persuasive, are as follows: The International did not:

 (A) Authorize or direct picketing of plaintiffs' facilities prior to or during the strike; or

 (B) Authorize or direct violence or mass picketing at plaintiffs' facilities; or

 (C) Participate in any act of violence, mass picketing; coercion or threats of secondary employers or employees; or

 (D) Encourage, instigate, support, promote or ratify illegal acts by its employees, members or subordinate labor organizations; or

 (E) Encourage or induce secondary employers, or employees, to cease work, strike or refuse to handle plaintiffs' product; and

 (F) The International did not: Pay or provide counsel for picketers, or pay fines, bonds or court costs for miners charged with violation of state criminal laws; or pay money for illegal purposes; or pay money to strikers for any illegal purpose;

 (G) The Constitution of the UMW establishes various autonomous labor organizations, and there is no evidence that the International transgressed any provision of its constitution, or that it was empowered by that document to discipline any labor organization, or member thereof, under the circumstances. There was no official sanction of the unauthorized acts of the membership and the provisions relied upon by plaintiffs simply do not accord the International the power and duty to act; and

  (H) The article that appeared in plaintiffs' Ex. 54, the November issue of the UMW Journal, is not probative. It makes no reference to picketing of neutral employers and we find that the reference to picketing indicates primary employers.

 (37) Plaintiffs' contend that the International paid the salary of various organizers and other employees, such as Miller Savage, William Corfont, Steve Paronish, Marion LaDizek, Nick Cecil, and others, despite knowledge that they were engaged in illegal secondary activity, and thereby ratified that activity. But the evidence preponderates to the contrary. The vouchers submitted by these employees indicate, at most, that they were engaged "on picket duty" or "checking on non-union strips or mines" in Districts 2 and 5 during the strike. Picket duty is lawful for informational purposes, under some circumstances, and it was clearly lawful for these employees to picket the primary employers during this strike. Thus the term "picket duty" meant from the perspective of the International, when the work sheets were reviewed in Washington, that these men were engaged in lawful primary picketing. Thus we perceive no notice of illegal activity to the International in the use of these terms and we find no ratification of illegal activity for none existed. We find the fair weight of the credible evidence establishes that the employees of the International were not involved in illegal secondary activity.

 (38) The only information reaching the International through the vouchers of its employees was that they were engaged in lawful activity during the strike. Indeed, as the evidence establishes, International organizers use a strike as a time to scout or locate non-union, unorganized companies for future organizational efforts, since these are the only companies operating during a strike. Thus we find that plaintiffs have failed to establish by a preponderance of the evidence that the International instigated, supported, ratified or encouraged any illegal secondary activity. We find the clear weight of the credible evidence establishes that James Varney, Director of Organizing for the International, and his deputy, Dennis Estep, and Edgar Gilbert instructed all International organizers and employees not to become involved in strike related activity, and we find the preponderance of the evidence establishes that no employee of the International was involved in any illegal activity in the relevant geographic area. Further, we find that plaintiffs have failed to establish by a preponderance of the evidence that any employee of the International was authorized or directed by the International to engage in any picketing of plaintiffs' facilities during the strike period, and thus had no authority to do so. Any such activity would therefore be without the scope of his employment. As a result, judgment will be entered for the International and against the plaintiffs at Counts 1 and 2.

 (39) We now turn to the question of the liability of District 5 as asserted in Count 1. We find that plaintiffs have established, by a preponderance of the evidence, that District 5 instigated, supported, ratified and encouraged illegal secondary activity in violation of Section 8(b)(4) of the N.L.R.A. and the L.M.R.A. Further, we find that employees and Board Members of District 5, acting within the scope of their employment and with the intent of furthering the interests of that labor organization, directed and authorized conduct that threatened, coerced and restrained the employees of plaintiffs, the plaintiffs, customers of plaintiffs and their employees, and various trucking companies and their employees, for the object of forcing them to cease using, handling, transporting or otherwise dealing in the one product of plaintiffs, namely, coal, and/or to cease doing business with plaintiffs. Plaintiffs have met the test of Carbon Fuel, supra, by a preponderance of the evidence.

 (40) As Estel Taylor testified, prior to the 111-day strike between the United Mine Workers and the B.C.O.A., the Executive Board of District 5 met and approved the picketing of non-union companies in District 5, including plaintiffs. We find that the purpose of the Board's action was to threaten, coerce and restrain the employees of plaintiff in violation of Section 8(b)(4) of the N.L.R.A. and Section 303 of the L.M.R.A. District 5, acting through its employees and various local unions, their members and employees, set in motion a chain of events designed to coerce neutral employees, force plaintiffs to close its facilities during the strike, and interdict the shipment of plaintiffs' coal. The plan was sophisticated and well-coordinated.

 (41) The Executive Board first agreed that it would compensate the members of District 5 for picketing, including mass picketing of plaintiffs' facilities in order to end production and shipments. A fee was established by the Board for drivers of pickets and meal money of $ 3/day for the pickets. A voucher system was established by the Board whereby members of the District could claim compensation for illegal activities. See Ex. 62. When a voucher was submitted to the Board for picketing plaintiffs' facilities, and coercing their employees, payment was made from a fund entitled the Dist. 5 General Fund. Board member Taylor, and other officers, delivered checks from the fund to officers of local unions in Dist. 5, who in turn paid the picketers. For example, Mr. Taylor, himself, delivered such compensation on December 18, 1977, January 11, and January 25, 1978. There are other examples. Moreover, despite the entry of a preliminary injunction on December 13, 1977, and a permanent injunction on December 19, against Dist. 5 by the Court of Common Pleas of Clarion County, which limited the number of pickets to three, President Peter Sabo continued to approve the payment of vouchers for mass picketing designed to threaten and coerce plaintiffs employees. In 1977, Dist. 5 paid from its general fund $ 5520 for this expense, and $ 37,883 in 1978. See Exs. 56 & 57.

 (42) It is a reasonable inference and we find that District 5 instigated, encouraged and supported the coercive conduct, with respect to plaintiffs, at the bi-weekly meetings at the Elks Club in New Kensington, Pennsylvania. The Club served as a hub for meetings with members of the Executive Board, local union presidents and members of the District for the purpose of coordinating and implementing the coercive conduct directed at plaintiffs, a large non-union producer in Western Pennsylvania. John Chach testified that he attended these meetings and also collected vouchers from representatives of Locals 4426, 4963, 1488, 6132, 3506, 1993 and 6986, and then delivered them for payment to Peter Sabo, Secretary-Treasurer of District. Mr. Chach was aware of the illegal events of December 12, 1977, and nevertheless continued to dispense funds to the picketers for continuous coercive activities. Despite these facts, as well as the discussion of the injunctive decree against the District at the special meeting of the Board on December 21, 1977, the Board continued to support and encourage the illegal activities directed at plaintiffs. We find that the Board never made any effort to deter the illegal conduct of their membership, which it had instigated from the outset. The members of the Board acted at all times for that labor organization and within the scope of their employment.

 (43) We also find that the President of District 5, acting within the scope of his employment, and with the approval of the Executive Board, established a Legal Defense Fund for the payment of fines, counsel fees and court costs for its members on December 14, 1977, as encouragement for illegal activity. Michael Encapera was appointed by Mr. Antal to administer the fund. We find that the fund was created by the Executive Board to instigate, support and encourage its members to coerce and threaten plaintiffs' employees for the purpose of closing plaintiffs' facilities. Moreover, we find that plaintiffs have established by a preponderance of the evidence that Dist. 5 ratified illegal secondary conduct by its members, with respect to plaintiffs, when it paid the fines, attorney fees and court costs with knowledge of the illegal activity concerning plaintiffs. See Kayser-Roth Corp. v. Textile Workers, 479 F.2d 524, 527 (6th Cir. 1973), cert. denied, 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219.

  (44) The type of picketing directed, instigated, and encouraged by the Executive Board of District 5, against plaintiffs' facilities and employees is distinguishable from the secondary picketing sanctioned by the Supreme Court in NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964). Here the conduct was coercive and threatening, and designed to totally shut down plaintiffs' operations. It included mass picketing and violence, which we also find was encouraged and supported by the Executive Board. Thus it is immaterial whether we apply either the holding of Tree Fruits or Retail Store Employees because this is precisely the type of conduct that Congress intended to proscribe when it enacted Sec. 8(b)(4). The argument that Sec. 8(b)(7) is somehow applicable to these facts is without merit.

 (45) We wish to emphasize that our finding of liability by the District is not based solely upon the finding that the District intentionally and knowingly instigated, supported and encouraged illegal secondary conduct. We also find that the payment of money to the membership from the General Fund was done with knowledge that the pickets had engaged in illegal conduct. And the payment of fines, court costs and counsel fees by the Board was done with full knowledge that its members had engaged in illegal conduct with respect to plaintiffs. Thus we find that District 5 ratified illegal conduct with full knowledge of the illegality. See, Kayser-Roth v. Textile Workers, 479 F.2d at 527.

 (46) The Restatement of Agency (Second) at Section 82, page 210, provides that "ratification is the affirmance by a person of a prior act which did not bind him but which was done ... on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him." Able counsel for District 5 has culled from the record certain vouchers which he contends establish that the Board neither knew, nor should have known, that the Board was ratifying illegal conduct when it approved the vouchers. See Dist. 5 Exs. 5B-5H. But counsel has presented a sanitized version of the facts. We find that plaintiffs have established, by a preponderance of the evidence, that the Board knew of the illegal activities of its members at Rimersburg, Sligo, and plaintiffs' Clarion office on December 12, 1977, and diverse locations thereafter; knew of the illegal activities of its employees and members at the Bullion Mine on Jan. 24, 1978; knew of the acts directed at plaintiffs' spur tract at Lawsonham on January 31, 1978; knew of the acts by its employees and members at Rimersburg on February 1; knew of the acts at Stahlman Tipple on Feb. 22; knew of the acts of its members at the Van Ormer crossroads and other locations of plaintiffs throughout the strike, and thereafter knowingly paid its employees for food, fuel, coercive picketing, and also fines, court costs and counsel fees. The acts were done throughout the strike by employees of District 5, and its members, and the Board acting within the scope of its employment, intentionally ratified this conduct. We find no merit to the contention that plaintiffs somehow waived their rights under federal law when they agreed to a state court injunction limiting picketing to 3 members of the District, in light of the facts of record.

 (47) Judgment will be entered on behalf of plaintiffs, C & K, Shannon, Stahlman and Vantage Coal Co., and against District 5 at Count 1. District 5 is not a defendant at Count 2.

 (48) We now turn to the question of the liability of District 2 at Counts 1 and 2. We find that plaintiffs have established, by a preponderance of the evidence, that District 2 instigated, supported, ratified and encouraged illegal secondary activity in violation of Section 8(b)(4) of the National Labor Relations Act. Further we find that employees and Board members of District 2, acting within the scope of their employment and with intent of furthering the interests of District 2, directed, authorized and engaged in conduct that threatened, coerced and restrained plaintiffs, their employees, customers of plaintiffs and their employees, and various trucking companies and their employees, for the object of forcing them to cease using, handling, transporting or otherwise dealing in the one product of plaintiffs, namely, coal, and/or to cease doing business with plaintiffs. Plaintiffs have met the test of Carbon Fuel, supra, by a preponderance of the evidence.

 (49) We base our finding of liability against District 2 on the following facts, and inferences therefrom, which we find persuasive:

 (A) The coercive statements, threats and conduct of District President, Valerio Scarton, directed at Jack Heilman, President of C & K on December 14, 1977, at the Sheraton Inn, Clarion, Pennsylvania. The coercive statements followed the invasion of C & K's headquarters by members of Districts 2 and 5 on December 12, 1977. Scarton stated that plaintiffs could backfill and maintain their equipment during the strike, but they could not ship coal. If they did, the picketing would continue in order to stop all deliveries to customers;

 (B) The trespass to plaintiff's facilities of December 12, 1977, by a large group of miners with the direction and participation of Executive Board member Steve Bender. Bender was a trespasser at plaintiffs' office building and served as one of five leaders, selected by the miners, to deliver ultimatums to William Barkley. Plaintiffs were threatened with a total shut-down of operations, and Bender was present and made no effort to discourage the threats or conduct;

 (C) The establishment by the Executive Board of a plan on December 8, 1977, whereby members would be compensated by the District to picket non-union mines and plaintiffs in particular. The vouchers for fuel and food were paid from the General Fund of the District in Ebensburg. The plan was established on December 8, 1977, by the Board to instigate and direct the coercion of plaintiffs' employees by the members of District 2. In short, the plan was approved to insure that sufficient manpower was available to close plaintiffs facilities; it was not for the purpose of picketing primary employers;

  (D) The meetings on a regular basis at the Ebensburg Courthouse chaired by President Scarton and attended by the presidents of the Locals in District 2. (See Ex. 5F). From the outset, Scarton directed and authorized the coercive picketing and conduct at plaintiffs' facilities because they were the largest non-union producer in the District and the U.M.W. had lost a hotly contested certification election approximately one year before. The purpose of these meetings was to direct the closing of non-union mines during the strike.

  (E) The evidence of record that members of the Board actually participated in coercive picketing of plaintiffs' facilities throughout the strike. For example, Donald Rocco was engaged in such conduct on December 12, 19, and 20, 1977, and January 3, 1978. He stated that the object was to close the non-union mines. Steve Bender was also engaged in coercive conduct at C & K headquarters and at the Van Ormer crossroads. He was present in the caravan of cars to Rimersburg Tipple on December 12, and admitted that he knew his conduct was illegal. He picketed at Van Ormer with members of Local 1619 on February 21, 1978. Board member Joseph Taranto assisted the pickets on December 9, 1977, checked on the non-union mines, and reported to the Board at the meetings in Ebensburg. Board member Rorvolo Mastrini participated in a roving caravan with members of Locals 860 and 1386 and checked on the operation of non-union mines on January 11, 1978. Mastrini is quoted in the minutes of the meeting of Local 860 as follows: "Ray Mastrini said that C & K was the only real problem-since pickets doing real well." (See Ex. 212). And when Mastrini led pickets to Clearfield County he was aware that a state court had enjoined District 2 from such activity. The evidence that Board member Lundberg and Vice President Kulish visited the pickets at the Van Ormer crossroads and that Lundberg showed the members four locations at which to picket. He also led a group to Fallen Timber on December 18. (See Ex. 211). And finally, the conduct of Mr. Scarton at the Sheraton Inn on December 14, along with the Treasurer of District 2, Walter E. Harris. Each Board member was paid a salary during the strike, and all expenses were paid from the general funds of District 2 despite the events discussed.

  (F) The establishment of a plan by the Board whereby the fines and court costs of convicted miners would be paid, and the plan to secure counsel for all miners charged with crimes, at no costs to them. These inducements were conveyed to the picketers in District 2 from the Executive Board to the Local presidents, and then to the membership. (50) Our finding of liability by District 2 is not based solely upon our finding that it directed and authorized illegal secondary conduct. We also find that plaintiffs have established by a preponderance of the evidence that the Board, acting within the scope of its employment and with intent to further the interests of that labor organization, knowingly ratified the illegal conduct of its employees and members directed at plaintiffs. The Board approved the payment of fines and court costs from the Strike Relief Fund, on behalf of the following members: Danny A. Smith Keith Kephart William Thompson John Rietscha Kenneth Wargo Richard Boring Douglas Horne Edward S. Zatorsky Paul Bbutvan David Hallow Lindsay Cleaver John Croyle Larry Midock Jeffrey Lash John Kotelnicki Clarence E. Keith Richard Mulhollen Angelo Marra Allen Lutz James J. Tarranto Stefan Molinick Zeb Waite Harry Korinchak James McAnulty Jerry Albright George Williams Richard Riddell Norman R. Conner

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