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R. G. Johnson Co. v. Marchiando.

September 13, 1950

R. G. JOHNSON CO.
v.
MARCHIANDO.



Author: Duffy

Before KERNER, DUFFY and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

This is an appeal from a preliminary injunction issued May 25, 1950, as well as from a temporary restraining order theretofore issued, whereby the defendants individually and the Progressive Mine Workers of America, District No. 1, its officers, agents, servants and employees, were enjoined and restrained in the particulars hereinafter set forth.

The plaintiff is a Delaware corporation. The individual defendants are residents of Illinois.Defendant Progressive Mine Workers of America, District No. 1 (hereinafter called "Progressive Mine Workers"), is an unincorporated labor union with principal offices in Springfield, Illinois. Freeman Coal Mining Corporation 'hereinafter called "Freeman") is an Illinois corporation.

Freeman owned a coal mine site near Farmersville, Montgomery County, Illinois. On April 21, 1950, plaintiff entered into a written contract with Freeman to construct a main hoisting shaft and an auxiliary shaft on said premises. The contract provided that Freeman was to pay plaintiff $400,000 and that "contractor (plaintiff) shall furnish all labor and material (with the exception of the material to be supplied by Owner as provided in the specifications hereinbefore referred to)."*fn1 In Paragraph 2 it was provided, "Contractor shall furnish all equipment, tools and facilities which may be required * * *." The contract also provided: "10. Contractor has represented that his personnel are members of The United Mine Workers of America. Contractor shall at all times enforce strict discipline among his employees and shall not employ on the work any unfit person or anyone not skilled in the work assigned to him or any person not acceptable to Owner."

At the time Freeman acquired the coal mine site in 1949 it was the operator of two large coal mines in southern Illinois, both mines being operated under labor agreements with the United Mine Workers of America (hereinafter called "United Mine Workers"). Early in 1950, representatives of the Progressive Mine Workers, in conference with top officials of Freeman at Chicago, represented that about 125 miners in Montgomery County belonging to their organization were at that time unemployed, and they urged employment of such miners. The Freeman officials informed them that they (Freeman) would have to do business with the United Mine Workers because they were afraid of trouble at their other Illinois mines if they did otherwise.

Charles Haberlen, an engineer, was in charge of the project for Freeman. He started his work at the mine site on December 1, 1949, where he thereafter conducted tests and made surveys. He, James Fox, a mining engineer, and the latter's assistant were the only employees at the mine site until April 30, 1950. Shortly before April 30 Haberlen determined that he needed the services of additional men, and asked Herman Lisse, board member of the United Mine Workers, to furnish a list of prospects. From the list furnished Haberlen selected ten men, all of whom were members of the United Mine Workers, and nine of whom were then employed in various mines located outside of Montgomery County, the tenth man being unemployed. The ten were notified to report for work at the mine site on May 1, which they did.The nine who had been employed gave up their jobs in order to accept employment at the Freeman Mine site. Those reporting expected to have permanent work in the digging of the shaft and in the mine after mining was started. Plaintiff planned to use about 70 men in digging the shaft, of which 20 would be skilled workmen which they intended to bring from Pennsylvania, and 50 workers were to be hired locally.

Although the contract itself is not in the record, it is conceded that on or about May 3, 1950, Freeman signed a contract with the United Mine Workers making that organization exclusive bargaining agent for its employees at its Montgomery County mine.

None of the plaintiff's employees were at the mine site prior to May 9, the date of the commencement of this action; hence none were interfered with in any way by defendants. However, three carloads of equipment had been shipped by plaintiff for use at the Freeman premises but had not arrived.

The Progressive Mine Workers organization regarded Montgomery County as their exclusive territory and desired to prevent, if possible, what they regarded as an invasion of their territory by United Mine Workers. Commencing April 24, 1950, the mine site was picketed by members of the Progressive Mine Workers, assisted by men belonging to several American Federation of Labor unions. No violence of any kind was experienced through May 3. On May 1, without molestation on the part of the pickets, a truckload of reinforcing steel, to be used in the mine shaft, was unloaded by the ten men who reported for work on that day.

On May 4 only six of the ten new employees reported for work. On that day Herman Lisse and six other officials or members of United Mine Workers arrived in an automobile and drove onto the premises.None of these men were employees of the plaintiff or Freeman. There was testimony that firearms were seen in the Lisse automobile. A large number of pickets had assembled. Haberlen and Lisse later started to leave the coal mining property to ascertain why the other four employees had not reported for work, and their car was stopped by pickets, some of whom threatened to take Lisse from the car. Some threats were made and profanity used, but no-one laid hands on Lisse.A short time later two trucks drove to the mine site loaded with steel which plaintiff intended to use to reinforce the concrete walls of the shaft. Although there is considerable testimony that the trucks were not unloaded because the truck drivers refused to cross the picket lines, there is some credible evidence which sustains the court's finding that the pickets prevented the unloading of the steel at the mine site, and we must accept that version. The trucks were then driven to Kincaid, about twenty miles distant, where they were unloaded without molestation.

As the tension mounted on May 4, defendant Marchiando telephoned Haberlen at the mine site and told him that if the men then on the Freeman premises desired to leave he would guarantee their safe conduct through the picket line. Haberlen agreed and, as Lisse and the United Mine Workers officials drove away, a window in one of the cars was broken. Testimony from several witnesses was that the driver of the automobile attempted to run down a picket who was whirled about, breaking the window with his arm. However, in view of the trial court's findings we accept the view that it was broken by a stone thrown by a picket. Again pickets shouted threats and used profanity. Sheriff Whitlock of Montgomery County and at least one State police officer were present at or near the entrance to the mine site. Pickets also were stationed near the mine site from May 5 to May 9, but did not cause any acts of violence or disturbance during that period.

The complaint herein was filed on May 9. On the same day, without notice or hearing, the court granted a temporary restraining order enjoining the defendants in various respects. On May 15 the court overruled defendants' motion to vacate the temporary restraining order, and overruled defendants' motion to dismiss the complaint. On May 17 a hearing was had on plaintiff's motion for a temporary injunction.On May 25 such injunction was issued.

On the hearing witness Johnson, the manager for plaintiff, testified: "* * * we have agreed with the Coal Mining Corporation to hire the men who belong to the Union they are working with. * * * We agreed with the Coal Company we would hire United Mine Workers. * * * My instructions have been ...


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