M. W. Ritchie, Sr., Mark Cann, B. C. McClanahan and Henry C. Kelly, D/B/A Ritchie Coal Co. v. United Mine Workers of America
410 F.2d 827
6th Cir.
1969
Check Treatment

*3 Before EDWARDS, PHILLIPS and Judges, Circuit KENT, District Judge.* PHILLIPS, Judge. Circuit appeal judgment This is from a for .an damages appellees entered in favor of (Ritchie) against the United Mine (UMW). Workers of America The action was filed under both federal Kentucky. law and the common law of jurisdiction upon Federal is based Management of the Labor Relations Act (LMRA).1 of 1947 This action also * Kent, Judge Honorable employees W. Wallace any Chief employer to en- gage in, the United States District for Court a strike or a concerted re- (cid:127) sitting Michigan, the Western District employment fusal in the course their by designation. use, manufacture, process, transport, any or otherwise Management handle or work on Section 303 of the Labor goods, articles, materials, Act, 1947, or commodi- Relations 29 U.S.C. § perform any services, ties or to provides: where which was effect at the time object “(a) thereof unlawful, is— Sec. It shall be purposes only, for (1) section forcing requiring any employ- industry activity affecting in an self-employed person join any er or commerce, any organization for employer labor organization labor or engage encourage in, employer to induce or person or other to cease us- tort com- tract known as National Bituminous based claim under the Wage Agreement wrongful as in- Coal mon law spring, amended in 1958. In the summer Ritchie’s business. terference with approximate- and fall there were of 1959 against returned a verdict ly operators had coal who small $14,000 destruction UMW for sign refused to the contract. tipple, $150,000 for loss of coal Ritchie’s punitive profits, $250,000 dam- 16, 1959, previous March On against ages. judgment rendered A opera- UMW contract with some of $414,000. For set out UMW for reasons expired called. tors strike was judgment we reverse the below Local District Members District Court. opera- began picketing of intense all Ritchie, operated a partnership, day opening tors. On the strike Perry Sassafras, tippling business *4 numbering large pickets, group of UMW Kentucky. County, purchased coal It 1,000, the came Ritch- between 500 and to independent mines. The from various the con- ie and demanded transported to Ritchie’s coal signed operation tract be or else the independent by truckers. or mine owners Through- tipple be down. closed tip- processed the There it was county of three area members out a ple railroad into cars and loaded vigorous program of conducted a UMW Kentucky points oth- shipment and to in picketing interspersed with vio- mass er States. Approximately the one-half of lence. Kentucky police force was under con- entire State Ritchie was In 1959 only high- any assigned keep three It had the union. to to tract with employees, this area Only open ways a member none of whom was curtail violence. and During any police in- other union. and or the of of UMW with aid State by junction negotiating the United States issued with time UMW was this Louisville & was the District Court operators the coal fields of of coal the operated Railroad, get trains attempt with Kentucky Nashville to in an Eastern by management personnel,2 to serve bargaining able sign operators con- a to failing ployer transporting, handling, to to an or- ing, selling, or is conform any products dealing La- or of the National der certification of in the otherwise determining producer, processor, Board bor Relations or manufac- other representative bargaining doing em- turer, with business or cease Nothing ployees performing any work. person; such other any requiring shall be (2) forcing contained in this subsection other or recognize bargain employer to make unlawful a refusal construed or prem- by any person representative organization to enter as labor any employer (other his employees than or- ises of labor such of his unless employees employer), of ganization own if the such as certified has been employer engaged employees representative in a strike rati- are under of such by representative approved of provisions fied or 9 of the Na- of section employer employees Act; such whom such Labor Relations tional recognize any employ- required requiring forcing the Na- (3) under or par- bargain recognize tional Labor Relations Act. or with a er to injured (b) repre- organization his shall be in Whoever as ticular labor any property or employees or reason business if another his of sentative may (a) organization of subsection sue violation certified has been labor any of therefor in district court employees representative such of subject limitations United States to the provisions of section of under provisions of hereof section 301 Act; Relations Labor National respect in amount con- without any employ- requiring (4) forcing having troversy, or in other court particular assign em- work to er jurisdiction parties, shall of particular organiza- ployees in labor damages him sustained recover trade, craft, particular tion or cost of the suit.” and the employees an- rather than to class 2. organization railroad brotherhoods Members another labor other picket lines. trade, craft, cross em- refused to unless such or class Cir.), tipples denied, operators cert. of other U.S. Ritchie and S.Ct. 123, 21 L.Ed.2d 113. on schedule. mines a curtailed police un- found themselves State When injunctions upon After the issuance of order, able to maintain Governor applications of the National Labor Rela- Guard. called out National tions Board and the Louisville & Nash- Railroad, police county ville mass area State ceased but In the three dy- numerous record of six cases incidents violence documented a continued throughout utilities; namiting twenty public cases the area the summer and shooting tipples, or rail- fall of 1959. trucks into dynamit- facilities; cases road sixteen 5, 1959, shortly On October after mid- augers property tipples, or mine night, destroyed the Ritchie dynamiting private fifteen cases completely by per- fire set unknown houses, property, places of trucks sons. business; burning six cases of of coal against filed this suit tipples; tipples or fires and ten cases February 27, UMW on including peace, breach against returned its verdict the UMW flourishing deadly weapons. on November 1966. UMW has made repeated record discloses instances assignments of error. shall dis- We beatings threats, profane name-calling, only necessary, cuss those issues for the shootings tipple operators, truck disposition proper appeal. *5 mines. One truck driver drivers and the hand en was shot while 1) tipple. Pendent Jurisdiction route to the Another Ritchie truck driver was killed at the Little alleging Ritchie instituted action this Shepherd tipple. a A man was killed both a of 303 of the violation LMRA policeman. State and of the common law. State UMW con- description tends that the District in er- Court was A further of the mass exercising jurisdiction ror in its in over which occurred and violence along county common Ken law claim three State this area of Eastern opin tucky federal claim and should have dis- in in 1959 is set forth part arising of the of in missed that action ions this Court Sunfire Coal Co. v. Cir.), UMW, (6th under common de law. 313 F.2d 108 cert. State 268, nied, 924, L. 84 11 375 U.S. S.Ct. Before federal court can aff’d, 166, trial 335 Ed.2d denial of new properly pendent jurisdiction, exercise 990, 958, denied, 85 F.2d cert. 379 U.S. de “the claims must state and federal 610; 701, Flame S.Ct. 13 L.Ed.2d and operative from common rive nucleus 39, UMW, 303 F.2d A.L. Coal Co. v. 97 Gibbs, fact.” Mine Workers United v. denied, (6th Cir.), 371 R.2d cert. 1136 1138, 715, 725, 1130, 383 86 U.S. S.Ct. 891, 186, L.Ed.2d 125. 83 S.Ct. U.S. 9 nucleus 16 L.Ed.2d 218. The “common styled proceeding La In the National la in the us fact” case before UMW, the Board Board v. bor Relations dispute bor the related incidents UMW, directing an entered order that vicinity place took in the violence which agents their officers and District 30 and of the Ritchie If federal commit of vio not exert force or acts state the claims be disre character of particulars. specified in lence various garded “plaintiff’s still claims The of the Board was enforced order ordinarily he ex are such that would unpublished de in consent judicial Court pected try to them all in one May 20, Thereafter then, assuming proceeding, cree dated substantiali UMW, adjudged District power ty issues, this Court there is federal in and certain to be civil individuals in to hear the whole.” Id. federal courts contempt the decree. violation at at 1138. Based S.Ct. (6th UMW, allegations F.2d 265 complaint N.L.R.B. v. in the and the presented trial, alleged profits that we hold Ritchie also loss of boycott secondary proximate direct result of the federal issue acts 8(a) (2), Fed.R.Civ.P., warrant had sufficient substance to UMW. Rule jurisdic- requires only plaintiff Court’s that the exercise District set forth ju- [pendent plain “Its short and statement of the tion over both claims. showing justification in consider- to lies claims that he is entitled re- risdiction] economy, designation judicial convenience lief. counts ations * * litigants Id. to controlling interpretations and fairness to be applica- at 1139. S.Ct. placed plead- Federal on these claims. sound within the tion of this doctrine is ings liberally in are construed order we are of Court and discretion draftsmanship prevent errors did opinion Court the District 8(f), barring justice litigants. Rule submitting its discretion not abuse construing In so the com- Fed.R.Civ.P. the com- related to the issues us, reject plaint case we before applying Kentucky, the doc- mon law of argument that the law UMW’s State jurisdiction. United pendent trine of conspiracy claim was founded supra. Gibbs, Mine Workers v. year lim- therefore controlled the one period. necessary itation All the aver- 2) Limitations Statute of present complaint ments were in the that count two UMW contends bring the State the five claim within alleged an complaint, which of Ritchie’s year period. limitation destroy conspiracy” its “unlawful business, by the was barred Judge major Chief Weick in the for con year of limitations one statute ity opinion Co., in Riverside Inc. Coal spiracy. 413.140.3 K.R.S. § UMW, 267, (6th Cir.) 410 F.2d said: although argues “unlaw words complaint by “While the an amend com conspiracy” used in ful were alleged ment the acts *6 claim plaint, law of the State the basis conspira also constituted unlawful an wrongful tort the common law was cy, plaintiffs’ it is clear that cause Thus, con business. interference with action under the of Ken common law tip Ritchie, destruction tends tucky wrongful was for interference resulting damage to its busi ple plaintiffs’ This is a business. governed by 413.120.4 are K.R.S. § ness recognized long tort which has been complaint one of amended Count by Kentucky. the courts of United alleges part that: Burn Construction Workers New duly through its defendant, “[T]he Veneer, (Ky. side 274 S.W.2d 787 representatives, agents and authorized 1955).” scope acting course and' within agents and authority such as their 3) The Clear Proof Standard dyna- destroy by representatives, did not UMW that Ritchie did contends of the said fire the mite and/or " * * * proof, required by establish clear as Company. Coal 4. “413.120 3. “413.140 commenced brought five cause tion, “(1) criminal promise of [*****] “(e) years. of action An within conspiracy, Actions conversation [* within action following marriage.” accrued: one * to be for malicious one year. *] arrest, actions year brought Actions breach seduction, after shall prosecu- within be ing ing damages menced or property. of action accrued: “(5) “(6) “(4) “The personal property. [*****] injuring personal property, An An action for the An within five following action for action for action for withholding actions years specific recovery.” trespass real or after taking, shall be com- profits the cause personal on detain- includ- real Act,5 carefully 6 of the that We Norris-La Guardia have reviewed § representatives transcript presented its UMW field entire evidence participated recognizing or the officers of Local 30 this case. While that burning in, proof authorized or ratified difficult standard of can be tipple. evidence, met circumstantial we con “clear, unequivo clude that there is not In Mine Workers v. United cal, convincing proof” in the record Gibbs, supra, Supreme Court said: jury’s findings to sustain the that “Plainly, applies court to federal § responsible for the destruc adjudications tort aris of state claims resulting tion of Ritchie’s and the disputes, out of labor whether of business due to the loss absence of they claims not are associated with tipple. does 303 to section under which § burning was de- apply.” 86 S.Ct. not at U.S. night scribed Ritchie's as watchman 1144. at follows: the clear Gibbs no that leaves doubt “Q. you employed by 5. Were applies standard of § Company any Ritchie Coal time claim under the common law of during Yeah, 1959? A. when arising apply claim but does not to the on; I strike come worked them under 303 of LMRA. § four about or five months there. “Q. you 6. What did at? work meaning of the As to the Night A. watchman. proof” Supreme term “clear “Q. your Court said in Gibbs: Jury 7. Tell the what Well, duties consisted of. A. I was “Although de- the statute does not stay keep anybody there and proof,’ history ra- fine ‘clear its coming destroying in there and Congress suggest meant tionale meaning signify like at least commonly “Q. such similar you accorded Did have troubles phrases ‘clear, unequivocal, Yes, they there? A. fellows convincing proof.’ pass by Under this stand- you. and throw slander at Fi- ard, plaintiff nally day a civil case is about 5th October satisfy required they up the criminal stand- come in there and held me on the issue reasonable doubt gun ard of point burned it. *7 participation, rati- or of fication; authorization “Q. you 9. Where were that may prevail he neither night? job A. I was there on as meeting ordinary civil burden Sassafras, Kentucky. required per- persuasion. He is “Q. you? 10. Who margin, was with A. suade a substantial They crippled boy awas there with bare ‘more than a come with forward Epperson boy. me. pre- preponderance evidence to of the States, “Q. v. United vail.’ Schneiderman Jury- exactly 11. Tell 1336, 118, 125, happened 63 S.Ct. night 320 U.S. what on that and 737, 86 U.S. at 87 L.Ed. 1796.” 383 approximately. time what it was A. Well, 1145. S.Ct. at it was between 12:00 1:00 and dispute, responsi- 106: § 29 U.S.O. in a labor shall be held Responsibility any and members of officers ble or liable in court of the United organizations or associations thier States for the unlawful acts of individual officers, members, agents, except upon individual offi- unlawful acts of or members, agents cers, participation in, and clear of actual or of, associa- acts, or member “No officer actual or authorization such organization, no association and tion or ratification of such acts after actual participating organization knowledge or interested thereof.” alleged ant, by plaintiffs Count the lower down to I walked o’clock. complaint. I, paragraph edge tipple, 8 of the the railroad down of the come around and and turned track no knowl- “Answer—Plaintiffs have walking They fellows some was back. might persons edge who have I turned around the track and down repre- agents knowledge of which coming up the they some then and destroying of the defendant sentatives them. had me between track and plaintiffs’ tipple.” gun point made got They and atme emphasized the burn- It that gas they lay and carried and me down tipple place until take did not tipple and throwed a poured on 5, 1959, months seven almost October run it, me then made into and torch picketing Ritch- on mass after UMW track, up Yellow up the railroad property previous March 16. ie’s Creek. picketing no at the discloses The record “Q. you pistol have a 12. Did April 30, when Ritchie after a .45 I had you time? A. at injunction the N.L. obtained they it. took automatic R.B. get it you “Q. ever 13. Did judgment support In No, sir. A. back? upon state- Court Ritchie relies District recognize any “Q. you 14. Did meetings in officials at ments UMW you No, couldn’t men? A. these Washington, Frankfort, Kentucky, and They recognize hoods had them. tipple operators C., if the D. something their face. down over sign the of coal mines would owners go you “Q. 15. Where did contract, Ken- in Eastern UMW violence went I there and A. left there? relies tucky also would cease. Ritchie tipple burned. home after upon field and statements of UMW acts next there the over Police come State representatives of Local and officers Po- morning the State throughout and I went tipples mines and at coal headquarters general in Hazard. pattern lice area Even when mass and violence. “Q. happened 16. What light to Ritch- viewed in a most favorable Why, boy? he went Epperson A. does ie we hold that evidence he is I don’t know where home. “clear, unequivocal, and con- constitute now.” vincing proof” 6 of the under Norris- policemen investi- who state responsi- LaGuardia Act that UMW was tip- gated of the Ritchie the destruction burning ble for they learned the ple never testified that persons identity person did who placed upon the is also Reliance Ritchie, burning. Sr. Marion W. masked armed and evidence that who he did not know testified guard gunpoint men held the who “didn’t that he burned guard called the burned any leads.” have pre used This term had been “scab.” charges complaint referring by pickets that the viously to em *8 in repre- agents operators. authorized ployees its of non-contract scope sentatives, acting commonly by per the within used is word “scab” destroyed authority, disputes. the of their The use course in labor sons involved interrogatories tipple. by were the term the men who burned of this Various proof Ritchie, tipple that the UMW by is not clear to one the UMW submitted participated in, ratified or an- authorized its set below with of which is out the act. : swer by proof 6 “Interrogatory of created § the standard 6—Give No. one, especially knowledge a a difficult persons is indeed have names of who pickets involving by of hundreds situation of the destruction large geographical spread area. agents representatives over a of defend- or Congress Ritchie, the standard of intended that as a mines, customer of the to proof handling ordi- product more difficult than in the cease (coal) the Gibbs, nary primary employers (the civil the Court mines). case. In activity squarely This said: is within the meaning secondary boycott. Local required proof, either that “What is is 761, Electrical, International Union of approved the which the union occurred, violence N.L.R.B., Radio & Machine Workers v. participated or that it ac- 667, 1285, 366 U.S. S.Ct. L.Ed.2d knowing tively by in fur- tolerance 592. ther in themselves ac- acts which were law intention- tionable under state ally contends that the activi previous drew violence primary ties at Ritchie’s were for their 383 U.S. force.” picketing persuading aimed at Ritchie’s S.Ct. at 1146. employees join three to the Union. A satisfy In to there must be order § jury justified refusing would be to showing definite and sub- evidence some 1,000 pickets believe to that from 500 the UMW connection stantial between property were massed on Ritchie’s tipple. We destruction obtaining purpose the sole three new to such evidence are unable find objective Union organizing members with "of present record. employees the three of this tipple. that the We therefore hold verdict arising jury under the on the claim UMW, supra, In Flame Coal Co. v. support- not law of common this Court said: proof. clear ed escape charge “This union cannot secondary boycott because it chose Secondary Boycott 4) once, to attack on all fronts at claim- ing objective its desire and to be the picket- that the Ritchie claims organization involved, of all whether ing tipple amounted to secon- of its producers, transporters processors dary boycott 303 of in violation § of coal. United Mine Workers of (N. 1, supra.) UMW contends LMRA. Mining Co., America v. Osborne [6 present- appeal evidence on this that the 279 F.2d 723.” Cir.] 303 F.2d at did not warrant submission ed 42. jury. to We conclude that this issue evidence record contains substantial The record contains finding support jury that there was representatives UMW pickets instructed the meaning secondary boycott within they stop must the coal complexity “Faced with moving get order the mine separated picketings at numerous operators sign the contract. Interfer locations, defendant inaccessible mine operations, ence harassing with Ritchie’s closing simpler chose the course forcing truck dump drivers and them to provided pro- numerous outlet their highway, loads of coal on * * Coal Co. v. ducers Sunfire picketing the railroad at the entrance of UMW, supra, at 110. 313 F.2d permissive present outlet primary In the case the secondary picket but sought pickets to be forcing operators closed aimed at the mine sign The record is suffi the Ritchie Co., the contract. Riverside Coal support conclusion UMW, supra; cient Inc. v. Sunfire Coal Co. v. primary objective the UMW UMW, supra; UMW, Flame Coal Co. v. *9 supra; get produc UMW, the coal this strike to in was Gilchrist v. 290 F.2d 36 Union, (6th sign Cir.), denied, the the with 875, ers to contract cert. 368 U.S. 82 120, picketing 76; Ritchie was secon S.Ct. 7 and that L.Ed.2d UMW v. Os accomplishing dary activity Mining Co., at borne (6th aimed 279 F.2d 716 objective. Cir.), force undertook to denied, 881, this UMW cert. 364 U.S. 81 S.Ct.

836 103; ele- 169, der the facts of UMW v. Meadow this case these two 5 L.Ed.2d (6th damages Co., Inc., 52 ments of are the 263 F.2d related to Coal Creek burning 1013, denied, tipple Cir.), of the not to S.Ct. the sec- cert. 359 U.S. boycott. ondary 1149, contends UMW 3 L.Ed.2d 1038. overruled four cases were the latter that Although the we find evidence Gibbs, supra. by Mine Workers v. United damages by record of suffered Ritchie disagree the contention. We with secondary boycott, the of the as a result jury verdict for limited its actual re-emphasized It is to be damages compensatory to the value of proof 6 of clear standard of that the § tipple subsequent in- the loss the of ap Act does not the Norris-LaGuardia de- found have resulted from its come to finding secondary boycott ply un a of to struction. re Ritchie of LMRA. der § damages preponderance quired prove by of of sustained a Illustrative to boycott, respon secondary Ritchie due to the evidence that the UMW was Halcomb, operator, tip secondary boycott coal mine for a at Manius sible ple he less coal to in evidence ran The record abounds testified site. 16, 1959, during period sponsored picketing from March the mass 1959, prior 5, There is than October and controlled the UMW. Breeding, support Bradley had that operated who time. substantial evidence to responsible tipple, finding for to the four coal trucks UMW was place hauling “be- picketing quit the Ritch he to Ritchie’s that took said get just tipple. I ie cause didn’t want involved Ed- picket there.” in that gar bunch down accordingly hold that there is We suf- Ritchie’s, employee Whitaker, an secondary boycott ficient evidence of a pickets: “Well, of that because testified of LMRA for sub- violation § them, many of no so we there was had jury. to the mission of issue this * * just quit *. work alternative. We operations had the other been 5) Damages [A] closed down.” damages Punitive cannot of a In the event new trial un arising recovered claims under § der 303 of LMRA hold that we § of LMRA. Mine United Workers damages proof of should be limited to Gibbs, supra. damages can be Punitive proxi which are the direct and those recovered, however, law State secondary boycott. proof 6 mate result of claim if the clear standard UMW, supra. has Act been Norris-LaGuardia Gilchrist v. The secon Gibbs, dary boycott place met. United Mine su during Workers v. took the time pra. that this picketing. picketing Since we have held stand All had ceased met, punitive 30, 1959, long April prior burning ard was not award of dam to the ages against tipple.6 cannot stand. This UMW of the Thus under facts damages brings question case, us the loss and the regard resulting profits part destruction of are not loss profits. against damages and loss of the measure resulting secondary boy The record that most discloses cott. damages presented by Ritchie begin- period related to the of time was ning Reversed remanded. tipple. with the destruction of Judge EDWARDS, (concur- Circuit damages These included value dissenting ring part; part). resulting and the structure itself profits in- anticipated to the I concur with the result due reached loss of court, join ability operate Judge Phillips’ Un- and I also without recovery allowed, place tipple, burning de- took 6. The of the Sunfire while peak. was at for which mass its scribed at 313 F.2d *10 opinion respects except that of all

secondary boycott issue. record, Ritchie As I this understand operator of a coal

was the Mine had

whom the Workers United primary dispute. fact

lawful labor illegal mass record discloses this illegal vi- of Ritchie’s certainly it olence at or near bears charged conspiracy

the common law change do But such case. facts secondary dispute primary into a labor dissenting boycott. my opinion See (Jes- Co., Coal Inc. v. Riverside Workers), sup F.2d v. Mine United (6th 1969). ei- I Nor do believe Cir. ther, by an of a the instance strike against a number

industrial union picket- operators, that the fact that might operation other at one affect pri- change operations struck serves to activity.

mary activity secondary into TURNER, Rapp Appellant,

Bill America,

UNITED STATES of Appellee.

No. 25906. Appeals

United States Court of

Fifth Circuit.

April