ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before: GIBBONS, HIGGINBOTHAM and BECKER, Circuit Judges
These appeals arise out of a multi-count civil action in the United States District Court for the Western District of Pennsylvania by a group of affiliated non-union coal companies*fn1 and their employees seeking damages for interruption of their operations during the strike by the United Mine Workers of America from December 6, 1977 to March 27, 1978. The defendants are United Mine Workers of America (the International), District 2 and District 5 of that organization, and Locals 4426, 6132, 1265 and 1368. After a bench trial, judgment was entered in favor of the International on all counts, against District 2, District 5, and each of the Locals on one count, but in their favor on the remaining counts. The judgment awards damages to the Companies in the aggregate amount of $1,447,189, but nothing to their employees.*fn2 Districts 2 and 5 and the Locals appeal from that judgment. The Companies and the employees cross-appeal. Except as to one element of damages, we affirm.
The Claims and Their Disposition
Between December 6, 1977 and March 27, 1978, the International and its affiliated Districts and Locals engaged in an economic strike against members of the Bituminous Coal Operators Association, with whom they have a collective bargaining relationship. During that strike those members ceased production. The Companies are not members of the Bituminous Coal Operators Association and their employees are not members of the United Mine Workers. Thus they attempted to continue production during the strike, until production was interrupted as a result of picketing activities of United Mine Workers members. On October 15, 1979 the plaintiffs' companies and five employees filed a complaint seeking individual relief, and class action relief on behalf of over 950 employees. The complaint contains ten counts, of which the first four are predicated upon federal law, and the remaining six on Pennsylvania law. The federal law counts include:
(1) claims for compensatory damages under section 303 of the Labor Management Relations Act, 29 U.S.C. § 187 (1976), for violations of section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(i) and (ii)(B) (1976) (Counts I and II);
(2) claims for treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15 (1976 & Supp IV 1980), for violation of section 1 of the Sherman Act, 15 U.S.C. § 1 (1976) (Count III);
(3) claims for compensatory and punitive damages for the tort of trespass (Counts VII and X).
The count based upon 42 U.S.C.§ 1985(3) was dismissed in a pretrial ruling. Since that count was the only one in which relief was sought on behalf of emnployees its dismissal meant that no evidence was offered at trial on their behalf. All the other claims were tried in a 34 day non-jury trial, at the end of which, after making detailed findings of fact, the court held:
(1) that the International was not liable on any claim;
(2) that both Districts and all four Locals engaged in activities which violated sections 8(b)(4)(i) and (ii)(B), and were liable for damages caused by those activities;
(3) that no defendant violated section 1 of the Sherman Act; and
(4) that no defendant was liable under the Pennsylvania law prohibiting tortious interference with a business relationship, conspiracy or trespass.
Although the evidence offered in support of the pendent Pennsylvania law claims was essentially the same as that offered under section 303 of the labor Management Relations Act, the court reached a different factual conclusion. While concluding that by a preponderance of the evidence the Companies established liability under section 303 against all defendants except the International, the court held that they failed to meet the more exacting clear proof standard applicable to those pendent state tort law claims by virtue of section 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106 (1976). See United Mine Workers v. Gibbs, 383 U.S. 715, 741, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). The Sherman Act claim was dismissed because the Companies failed to prove by a preponderance of the evidence that there was an agreement to restrain trade to which any non-labor organization was a party, and alternatively because the Sherman Act is preempted by section 8(b)(4) of the National Labor Relations Act.
In calculating damages on section 303 counts the court allowed recovery of out-of-pocket expenses incurred by virtue of the defendants' activities, lost profit on lost production, and pre-judgment interests. The court refused to award as an element of damages lost profits on inventory available for shipment but not shipped because of the defendants' activities. Those defendants found liable were held to be jointly and severally liable to each company.
Each District and Local appeals from the section 303 judgment against it. The Companies appeal: (1) from the judgment in favor of the international on the section 303 count; (2) from the judgment in favor of all defendants on the Sherman Act count; and (3) from the judgment in their favor to the extent that it excluded certain elements of damage. The class representatives appeal from the dismissal of the section 19853(3) count.
Defendants' Section 303 ...