The opinion of the court was delivered by: ZIEGLER
FINDINGS OF FACT and CONCLUSIONS OF LAW
(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. ...