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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