author: SIMMONS, District Judge.

text:
    Charles L. FEATHERS t/a Feather Trucking; Thomas V. Patterson; Lawton Trucking, Inc.; D.P. Zimmerman, Jr.; Michael D. Rose; David B. Smoygi; Donald Benyack; Ruth A. Cordes, Adm. Est. Edward Cordes, Jr.; Everett C. Teeter, Jr., t/a Everett C. Teeter Trucking; William Nileski and Robert C. Ermin, Plaintiffs, v. UNITED MINE WORKERS OF AMERICA and District 2, United Mine Workers of America, and Local 1600, United Mine Workers of America, Defendants.
    Civ. A. No. 76-955.
    United States District Court, W.D. Pennsylvania, Civil Division.
    Oct. 21, 1985.
    Paul Hirschfield, Pittsburgh, Pa., Luther Weaver, Howard K. Trubman, Herbert L. Olivieri, Philadelphia, Pa., for plaintiff.
    Michael Holland, Kurt Kobelt, United Mine Workers of America, Washington, D.C., Melvin P. Stein, Pittsburgh, Pa., for defendants.
   OPINION

SIMMONS, District Judge.

I. INTRODUCTION

This action was originally filed on July 23, 1976, as a class action by eleven Western Pennsylvania coal haulers against the Defendants United Mine Workers of America [UMWA], District 2 of the United Mine Workers of America, and Local 1600 of the United Mine Workers of America [hereinafter collectively referred to as “Defendant” or “Defendant Union”]. The Plaintiffs sought to recover damages resulting from the Union’s attempts to force them to sign the 1974 National Bituminous Coal Wage Agreement [hereinafter referred to as the “NBCWA” or the “Wage Agreement”] and to prevent the Bituminous Coal Operator’s Association [hereinafter “BCOA”] from using non-signatory haulers to transport coal. Count One of the Complaint, brought under section 303 of the National Labor Relations Act (NLRA), 29 U.S.C. § 187, alleged that the Union violated sections 8(b)(4) and 8(e) of the Labor Act, 29 U.S.C. §§ 158(b)(4) and (e), because Article 11(g) of the 1974 Wage Agreement contained an unlawful hot cargo clause. Specifically, the Plaintiffs claimed that the Defendant Union engaged in an illegal strike to compel them to sign a collective bargaining agreement with the United Mine Workers of America, by using a hot cargo clause in the contract with the BCOA, which prevented the BCOA from subcontracting with coal haulers, such as Plaintiffs, who failed to sign the 1974 Wage Agreement. Plaintiffs alleged that the use of Article 11(g) by the Union caused a secondary boycott of the coal haulers. Counts Two and Three of the Complaint charged that the Union violated the federal antitrust laws.

On September 13, 1977, the above-captioned case was certified as a class action under Rule 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, and the class was defined to include: “All coal haulers whose principal place of business was or is now located in Western Pennsylvania who, at any time from on or about November 1, 1974, have been engaged in the business of coal hauling from points in Western Pennsylvania to locations in Western Pennsylvania and other locations in the United States. Feather v. United Mine Workers of America, 494 F.Supp. 701, 704 (W.D.Pa. 1980).

This case was originally assigned to the late Judge William Knox of this Court, who conducted a bench trial on the liability issues, and in an opinion dated June 27, 1980, found the Union to be liable as to Count 1, but found them to be exempt from liability as to Counts 2 and 3. The matter was then referred to the United States Magistrate for a calculation of damages. The case was reassigned to this Judge after the death of Judge Knox, and this Judge adopted the recommendations of the Magistrate with respect to damages in an Order dated June 23, 1982. Both sides then appealed, and on June 30, 1983, the United States Court of Appeals for the Third Circuit affirmed the district court’s conclusion that the Union was exempt from liability under the antitrust laws, and also affirmed the Union’s section 8(b)(4) liability for the period of the BCOA strike, but vacated the damage award and remanded for additional findings of fact on the issue of causation.

Our affirmance of the Union’s section 8(b)(4) liability for the period of the BCOA strike does not mandate a conclusion that the plaintiffs are entitled to recover damages under section 303 for all losses that might be attributable to that strike, regardless of causation. Section 303(a) makes it unlawful for a labor union to violate section 8(b)(4), 29 U.S.C. § 187(a). See Local 20, Teamsters Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). When a union strikes, and one purpose of that strike is to obtain or enforce a hot cargo agreement, sections 8(b)(4) and 303(a) are violated. National Labor Relations Board v. Denver Building & Construc tion Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). In a companion case to [Denver Building & Construction ], the Court stressed that “it was sufficient that an objective of the picketing, although not necessarily the only objective of the picketing, was to force [the employer] to ... cease doing business with [another employee].” 341 U.S. at 700, 71 S.Ct. at 957. In the case before us, Article 11(g) of the 1974 NBCWA was a hot cargo clause, and one of the objectives of the BCOA strike was to seek agreement on that clause. Therefore, by engaging in that strike, the UMWA violated section 303(a):

Feather v. United Mine Workers of America, 711 F.2d 530, 537 (3d Cir.1983).

The Court of Appeals went on to say with respect to the issue of the causation requirement of section 303(b):

To receive a damage award under [section 303], the plaintiffs in this case must demonstrate not that the unlawful hot cargo clause was an object of the BCOA strike, but that it was a substantial factor in or materially contributed to the Union’s decision to call and maintain that strike. The mere fact that the agreement the Union sought to obtain by striking contained a hot cargo clause is not enough, without more, to support a finding that the clause was a substantial factor.
The prior opinions in this case have not resolved this issue. The district court’s liability opinion is confined to a discussion of sections 8(b)(4) and 303(a). It contains no determination of the proximate cause issue presented by the section 303(b) damage claim.

711 F.2d at 538.

The Court directed that the matter be considered de novo, and that additional evidence be taken if necessary. The parties have deposed Richard Banks, who had previously testified as a witness for the Defendants at the non jury trial on liability. The issue presently before this Court is whether Article 11(g) of the 1974 NBCWA was a substantial factor in, or materially contributed to the Union’s decision to call and maintain the BCOA strike.

The clause in the 1974 Wage Agreement which was previously found by the district court to be an illegal hot cargo clause provides as follows:

Article II: Scope and Coverage
Section (g) — Contracting and Subcontracting.
(1) Transportation of Coal —The transportation of coal as defined in paragraph (a) may be contracted out only to a contractor employing members of the UMWA under this Agreement and only where contracting out such work is consistent with prior practice and custom of the employer.
(2) Repair and Maintenance Work —Repair and maintenance work customarily performed by classified employees at the mine or central shop shall not be contracted out except (a) where the work is being performed by a manufacturer or supplier under warranty or (b) where the employer does not have the available equipment or regular employees with necessary skills available to perform the work at the mine or central shop, provided, however, that the work at the mine or central shop shall be performed by UMWA members to the extent and in the manner permitted by law.

The relevant statutory provisions are contained in 29 U.S.C. §§ 158 and 187. 29 U.S.C. § 158 provides in relevant part:

(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—
(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e) [subsec. (e) of this section];
(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 9 [29 U.S.C. § 159]: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

29 U.S.C. § 158(b)(4).

29 U.S.C. § 187 provides:
§ 187. Unlawful activities of labor union — Right of action for injury.
(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 [29 U.S.C. § 158(b)(4) ].
(b) Whoever shall be injured in his business or property by reason or [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 [29 U.S.C. § 185] 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.

II. APPLICABLE LAW

In its June 30, 1983 opinion, the Third Circuit determined that the prior district court opinion contained no determination of the proximate cause issue presented by the section 303(b) damage claim, vacated the damage award, and then remanded the case to this Court for a specific finding on the issue of causation during the period of the BCOA strike and a determination of the agency question with respect to the Magistrate’s recommendation relating to the H & H damage award.

Section 303(b) of the National Labor Relations Act requires that there be a causal nexus between the unlawful secondary activity and the injury suffered by the Plaintiff. The Third Circuit, in Feather v. United Mine Workers, supra, has determined that the causal requirement as articulated by the Ninth Circuit in Mead v. Retail Clerks International Association, 523 F.2d 1371 (9th Cir.1975), is the proper standard to be used in determining the proximate cause issue presented by a section 303(b) damage claim. In Mead, supra, the Union had proposed that an agreement between the Union and grocery stores contain a “demonstrator clause” which provided that food demonstrators who distributed product samples to customers must be covered by the collective bargaining agreement whether or not the demonstrators were employed by the grocery store or by the supplier of the product being promoted. When the grocery store owner rejected the proposed contract and objected to the demonstrator clause as well as the wage, health and welfare benefits and pension provisions, the Union called a strike and began picketing.

The Mead Court held that under section 303, injury occurs “by reason of” particular unlawful conduct if that conduct materially contributes to the injury or is a substantial factor in bringing it about, 523 F.2d at 1376, and stated as follows:

Nor were the Meads required to establish the fact of resultant injury to their business with certainty. “Regarding the quantum of proof required to establish the fact of damage, the rule is that the plaintiff is required to establish with reasonable probability the existence of some causal connection between the defendant’s wrongful act and some loss of anticipated revenue.” [Citations omitted]. It is sufficient if the evidence “supported] a just and reasonable inference that [the Mead’s] were damaged by [the Union’s] action.” Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 266, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946).

523 F.2d at 1377.

III. REVIEW OF THE EVIDENCE

A thorough review of the record indicates that prior to 1974 the NBCWA did not contain a work jurisdiction clause, and that work jurisdiction was a prime concern of the Defendants throughout the history of the negotiations between the UMWA and the BCOA. The two issues of work jurisdiction and subcontracting were treated as similar objectives by the UMWA throughout the negotiations, and the record clearly indicates that the UMWA strongly bargained for Article 11(g) so that it could expand both the subject matter jurisdiction of the Union as well as the number of its members. When the UMWA was unable to obtain what it considered to be an acceptable form of Article 11(g) prior to the expiration of the 1971 Wage Agreement, the strike against the BCOA began. This Court’s review of the record reveals the following relevant information with respect to the history of the negotiations between the parties.

In 1973 and 1974, a series of district collective bargaining conferences was held to familiarize district representatives with the 1971 Wage Agreement, and to solicit information, feedback and recommendations for the negotiation of the 1974 collective bargaining agreement. Tom Bethell, a UMWA official, submitted a confidential memorandum to the UMWA on June 14, 1974, in which he reported on the concerns that had been expressed to him in the district collective bargaining conferences. With respect to non-economic concerns, Mr. Bethell reported as follows:

In non-economic areas, the greatest concerns not suprisingly focus on seniority and the grievance procedure. Again, detailed summaries available next week will be more helpful than a simplification here; however, there are generally very strong feelings on the need to determine seniority on length of service alone, with no continuation of “qualifications;” district-wide or company-wide seniority; elimination of subcontracting, especially maintenance and contract haulage; ...

P.Ex. 6, p. 2. Thus, as early as June of 1974, the elimination of subcontracting was seen as an important objective of the collective bargaining process.

The UMWA issued its proposals to the Bituminous Coal Industry prior to the 1974 collective bargaining sessions, which proposals constitute Plaintiffs’ Exhibit 8. In the Scope and Coverage section of that proposal, the UMWA stated:

SCOPE AND COVERAGE
•With the possible exception of Article XIII (Seniority), there is probably no other article in the current agreement which has caused more problems, more disputes, more work stoppages and more rank-and-file discontent than Article II. It is a literal mine field of explosive issues. It is confusing to the miner and to mine management. It says too much in some sections, too little in others. It is out-of-date in some areas, and is not designed to remedy critical issues which regularly arise.

P.Ex. 8, p. 24/1.

With respect to subleasing and contracting, the proposal stated:

During the term of the present agreement, the jurisdictional rights of the UMWA have repeatedly been infringed upon and undermined by the subcontracting of work. Because of serious problems which may result in any attempt to limit subcontracting, other than to impose an absolute ban on subcontracting, the UMWA proposes that subcontracting of unit work be absolutely prohibited. Furthermore, the Union reserves the right to resort to free collective bargaining when any employer attempts to evade the prohibition on subcontracting.

P.Ex. 8, p. 24/5.

The UMWA also sought to expand its work jurisdiction:

Section (f) is entirely inadequate to cover the existing jurisdiction of the UMWA. It does not deal with problems which have regularly recurred during the term of the 1971 agreement such as the trucking of coal from mine sites, the removal of overburden and reclamation of strip sites and the maintenance of mine roads. This section should be redrafted in its entirety to make it clear that all work related to or incident to the removal of coal from the earth, its processing, the hauling of coal from the mine site, the removal of coal waste and maintenance of gob piles, the restoration and reclamation of the mine site, the maintenance of mine roads, and all repair and maintenance work in and around the mine or at a central repair shop shall be performed solely by members of the UMWA employed by the mine owner or operator.

P.Ex. 8 p. 24/6. '.

It is evident that from the beginning of the negotiations the UMWA wished to expand its work jurisdiction and eliminate all subcontracting by non-union personnel. The district conferences had previously recommended that the jurisdiction clause be amended to cover independent truckers. (P.Ex. 7, 9). At a September 10, 1974 bargaining session, William Hartman of the BCOA brought up the question of subleasing, subcontracting and work jurisdiction. The notes of this main table session reflect the following exchange between William Hartman (WH), Guy Farmer (GF), and Walter Wallace (WW) of the BCOA, and Rick Bank (RB) and Chip Yablonski (JY) of the UMWA:

WH: Subleasing and Subcontracting and Work Jurisdiction are pretty much the same thing. We’ve contracted trucking historically. How would that be viewed under your proposal?
JY: It would be included in our jurisdiction.
WH: Can you say that the applicability of the subcontracting clause would be selective?
JY: We’d start from a blanket position and hear your objections and ideas.
GF: This would prevent independent contract hauling?
RB: Yes.

P.Ex. 9A, Notes of Main Table Session.

The issue of subleasing and subcontracting was a hotly contested issue throughout the negotiations, and had not been resolved prior to the time the 1971 Wage Agreement expired. In a November 10, 1974 memo prepared by the International Bargaining Counsel, the UMWA noted that there were areas of disagreement in Article II, Sections (a) and (g), many of which were critical to reaching final agreement. The UMWA found Article 11(g) as proposed to be unacceptable, because the BCOA proposal placed no limitations on subcontracting practices. P.Ex. 19; Ex. 16 of Docket Entry No. 88.

At the 40th Collective Bargaining Session of Sunday, November 10, 1974, Chip Yablonski of the UMWA indicated that there was substantial disagreement in the area of subcontracting. (Ex. 17) The UMWA proposed that the following language be adopted:

Section (g) Subcontracting of Classified Work
Except as expressly provided herein, the Employer shall not, during the term of this Agreement, contract out any work covered by this Agreement:
(1) An Employer may continue existing arrangements with trucking companies or operators or other transportation companies who presently provide haulage services provided that the labor costs of such contractors, including both hourly rates and fringe benefit payments to their employees, are not less than those required by this Agreement, and, in the manner and to the extent permitted by law, are members of the UMWA covered by this Agreement.

P.Ex. 21; Ex. 18 of Docket Entry No. 83.

At the 41st Collective Bargaining Session of November 11, 1974, the BCOA had proposed language limited to trucking operations. The UMWA wanted to encompass modes of transporting coal and said that trucking was not the only method of transporting coal. It is clear, then, that on the eve of the strike, there was still no agreement with respect to the contents of Article 11(g). The UMWA constitutional policy of “No contract, no work”, meant that when the 1971 NBCWA expired on November 12, 1974, the UMWA authorized the cessation of work of all of its members working at any mine and for any coal hauler who did not have a collective bargaining agreement with the UMWA.

The parties continued to discuss proposed language concerning Article 11(g) on November 13, 1974, after the strike had started. At this time, the UMWA made the following proposal regarding Article H(g):

Section (g) Contracting and Subcontracting
(1) Haulage of Coal — The haulage of coal may be contracted out only to a contractor employing members of the UMWA under this Agreement and where contracting out such work is consistent with the prior custom and practice of the Employer.

P.Ex. 23; Ex. 20 of Docket Entry No. 83.

The BCOA proposed language dealing with the transportation of coal rather than the haulage of coal:

(1) Transportation of Coal — the transportation of coal as defined in paragraph (a) may be contracted out only to a contractor employing members of the UMWA under this Agreement and only where contracting out such work is consistent with the prior custom and practice of the Employer.

When the UMWA International Bargaining Council met on November 14, 1974, the importance of Article II was discussed:

I think that the first two Articles, Enabling Clause and Scope and Coverage, where there was a fight — and I mean a real dog fight — over each word, each word that went into that contract — because each word that went in there, it meant something that we took away from the coal operators and the management of the mines.

Harry Patrick Remarks, Nov. 14, 1974, P.Ex. 26; Ex. 60 of Docket Entry No. 83 at 5.

Mike Trbovich, a UMWA Vice President, stated:

I think, you know, when you look at this contract and you look at the Enabling Clause and you look at the Scope and Coverage, I know that there’s thousands of people in our Union, even some officers and I wasn’t too educated on this— on these two articles, but these are the two most important articles in this contract.
These articles protect the United Mine Workers and I think that Chip just explained to you the Enabling Clause. And after negotiating over there for days, and arguing with coal operators, I got an education on it and this is why I say that these are the most two important articles in this contract, to protect our jurisdiction and to protect our Union, as Chip has said.

P.Ex. 26 at 280; Ex. 60 of Docket Entry No. 83.

Chip Yablonski reported with respect to Article II:

We faced this thing in terms of trying to do two things: trying to recapture work that had previously been farmed out, without trying to wreck the industry and without trying to dislocate the industry; but trying to prevent abuses, particularly in the subcontracting areas.
It is very difficult to write limitations on subcontracting, as a matter of fact, without violating the hot cargo provisions of the National Labor Relations Act, to draft anything in this area without having jurisdiction clearly defined.
A major issue, and I think with all that went on here in the Executive Board over subcontracting out, and removal of overburden, I feel pretty good to say that that is clearly defined as work that is within our jurisdiction.

P.Ex. 26 at 280-82; Ex. 60 of Docket Entry No. 83.

Because the BCOA and the UMWA failed to reach a contract before the 1971 agreement expired at midnight on November 11, 1974, the Defendants immediately began a work stoppage on November 12, 1974, and picketed all coal producing facilities, and as a result, coal haulers were unable to conduct their business as all coal production ceased.

IV. FINDINGS OF FACT

1. The Plaintiffs are individuals, partnerships, and corporations, who, at any time from on or about November 1, 1974, have been engaged in the business of coal hauling from locations in Western Pennsylvania to places within and without Western Pennsylvania. The geographical area of Western Pennsylvania is comprised of the 40 western-most counties of the Commonwealth. The principal place of business of the estimated 1,000 Plaintiffs is located in this geographical area.

2. Defendants, United Mine Workers of America (UMWA), District No. '2 of the UMWA, and Local Union No. 1600 of the UMWA are unincorporated associations and labor organizations within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5). Defendants represent employees who haul coal and work in and around coal mines.

3. The primary function of the UMWA is to periodically negotiate agreements on behalf of its members regarding wages, hours and conditions of employment. For more than twenty years, the UMWA has engaged in collective bargaining with a multi-employer bargaining unit, the Bituminous Coal Operator’s Association (BCOA). The collective bargaining agreement negotiated from time to time between the BCOA and the UMWA is known as the National Bituminous Coal Wage Agreement (NBCWA). The NBCWA is a master collective bargaining agreement. Although the BCOA negotiates the contract, the Association neither administers nor executes its terms on behalf of its members.

4. Prior to 1974, the NBCWA had not contained an express work jurisdiction clause which defined the overall scope of the UMWA jurisdiction. (See the 1968 NBCWA [D.Ex. H], and the 1974 NBCWA [P.Ex.2]).

5. In anticipation of the expiration of the 1971 NBCWA on November 12, 1974, the UMWA began preparations for the negotiations of the successor agreement. During the spring of 1974, thirteen district collective bargaining conferences involving nine hundred locally elected delegates from local unions in nineteen UMWA districts were held. • At these conferences, UMWA. officials solicited recommendations for the 1974 NBCWA.

6. The elimination of subcontracting of the hauling of coal by truck to non-union coal haulers was one of the prime goals of the Defendants in the negotiations of the 1974 NBCWA. The UMWA district conferences recommended that the work jurisdiction clause of the NBCWA should be amended “to cover independent truckers.”

7. On September 3, 1974, the formal bargaining process commenced. At the first session, the UMWA presented the BCOA with a grey-bound volume of policy statements and proposals. In the Scope and Coverage section of that proposal, the UMWA stated:

SCOPE AND COVERAGE
With the possible exception of Article XIII (Seniority), there is probably no other article in the current agreement which has caused more problems, more disputes, more work stoppages and more rank-and-file discontent than Article II. It is a literal mine field of explosive issues. It is confusing to the miner and to mine management. It says too much in some sections, too little in others. It is out-of-date in some areas, and is not designed to remedy critical issues which regularly arise.

P.Ex. 8, p. 24/1.

With respect to Subleasing and Contracting, the UMWA proposed that subcontracting of work be prohibited:

During the term of the present agreement, the jurisdictional rights of the UMWA have repeatedly been infringed upon and undermined by the subcontracting of work. Because of serious problems which may result in any attempt to limit subcontracting, other than to impose an absolute ban on subcontracting, the UMWA proposes that subcontracting of unit work be absolutely prohibited. Furthermore, the Union reserves the right to resort to free collective bargaining when any employer attempts to evade the prohibition on subcontracting.

P.Ex. 8.

The UMWA also sought to expand work jurisdiction:

Section (f) is entirely inadequate to cover the existing jurisdiction of the UMWA. It does not deal with problems which have regularly recurred during the term of the 1971 agreement such as the trucking of coal from mine sites, the removal of overburden and reclamation of strip sites and the maintenance of mine roads. This section should be redrafted in its entirety to make it clear that all work related to or incident to the removal of coal from the earth, its processing, the hauling of coal from the mine site, the removal of coal waste and maintenance of gob piles, the restoration and reclamation of the mine site, the maintenance of mine roads, and all repair and maintenance work in and around the mine or at a central repair shop shall be performed solely by members of the UMWA employed by the mine owner or operator.

P.Ex. 8.

8. At the sixth session of the negotiations held on September 10, 1974, a UMWA bargaining representative stated the UMWA’s goal was to terminate the subcontracting of coal haulers to independent haulers. (P.Ex. 9A, Collective Bargaining Notes, 6th Session, pp. 11-12).

9. At the request of the BCOA, negotiations resumed on October 14, 1974. On October 18, 1974, the UMWA, in response to the BCOA objections to a complete ban on subcontracting, offered the following proposal (P.Ex. 11):

Article II
SCOPE AND COVERAGE
Section (a) Work Jurisdiction: Classified Work
The following work is covered by the terms of this agreement and shall be performed, in accordance with the provisions of this Agreement, exclusively by members of the United Mine Workers of America: (1) all work which is related or incident to the removal of coal from the earth; the screening, crushing, washing or processing of coal; the hauling or transporting of coal from the mine site, preparation facility or loading facility; the removal of coal waste and overburden, maintenance of gob piles on waste embankments; the restoration and reclamation of mine sites; and the maintenance of all mine roads; (2) all repair and maintenance work in and around the mine or at a central repair shop where such work is normally performed.
Nothing in this Section shall be construed or applied to diminish the exclusive work jurisdiction otherwise expressed or implied by this Agreement.
Section (g) Subcontracting of Classified Work
Except as expressly provided herein, the employer shall not, during the term of this Agreement, contract out any work within the exclusive jurisdiction of the United Mine Workers of America:
(1) An employer may continue existing arrangements with trucking companies or operators who presently provide trucking services provided that the labor costs of such trucking contractors, including both hourly rates and fringe benefit payments to their employees, are not less than those required by this Agreement.
(a) Repair work which is performed by a machine manufacturer under warranty or work which has heretofore been performed either on or off the mine site by other employers may be continued unless the employers signatory hereto have or can readily obtain without substantial expense the equipment necessary to perform such work and currently have available either regular employees or panel members who have the necessary skills to do the work.

10. From October 24 to November 8, 1974, the parties exchanged formal proposals on the issue of Scope and Coverage but made little headway in their negotiations. On November 9, 1974, the BCOA proposed a separate work jurisdiction clause which provided, in pertinent part:

Work Jurisdiction (a)
The production, preparation and trucking of coal, and work customarily related thereto is the work of the United Mine Workers and shall be performed by classified employees of the employer under this agreement, and may be contracted out only in the circumstances and under the conditions set forth in section (g) of this article.
Section (g) Contracting and Subcontracting
(2) Trucking of Coal — The trucking of coal around the mine site, from the mine site to a preparation plant or loading facility may be contracted out to a contractor employing members of the UMWA under this agreement and where such contracting out is consistent with prior custom and practice.
(3) Repair and Maintenance Work— Repair and maintenance work customarily performed by classified employees at the mine or central shop shall not be contracted out except (a) where the work is being performed by a manufacturer or supplier under warranty, or (b) where the Employer does not have available equipment or regular employees with skills available to perform the work at the mine or central shop, provided, however, that the work shall be performed by UMWA members to the extent and in the manner permitted by law.

Guy Farmer, the Chief Negotiator and General Counsel for the BCOA testified that:

[W]e explained to the union, in presenting this proposal, that, if a contractor, in accordance with prior custom and practice, contracted out this work to a nonunion operator, that it would not be, in our opinion, a violation of the contract because if we contracted it out to a nonunion operator for business reasons, we felt that he had a legal right to do that, and therefore, it would not be a violation of the contract for him to do it, and that we intended to interpret and administer the contract that way.
Bear in mind, BCOA does not administer the contract. It is the individual coal operator’s responsibility to administer the contract. We simply — BCOA simply negotiates the contract and gives interpretations of the contract, either on its own initiative or at the request of a coal operator member. (Tr. 715-716).

11. The UMWA rejected the BCOA proposal of November 9, 1974. In a November 10, 1974 memo, the UMWA noted that there were areas of disagreement in Article II, Sections (a) and (g), many of which were critical to reaching final agreement. The UMWA found Article 11(g) as proposed to be unacceptable, because the BCOA proposal placed no limitations on subcontract practices.

12. On November 10, 1974, the UMWA indicated there was substantial disagreement in the area of subcontracting and submitted its counterproposal (P.Ex. 18), which provided, in pertinent part:

Section (g) Contracting and Subcontracting
(1) Trucking of Coal — The trucking of coal around the mine site, from the mine site to a preparation plant or loading facility may be contracted out to a contractor employing members of the UMWA under this agreement and where such contracting out is consistent with prior custom and practice of the Employer.
(2) Repair and Maintenance Work — Repair and maintenance work customarily performed by classified employees at the mine or central shop shall not be contracted out except (a) where the work is being performed by a manufacturer or supplier under warranty, or (b) where the employer does not have available equipment or regular employees with necessary skills available to perform the work at the mine or central shop, provided however, that the work shall be performed by UMWA members to the extent and in the manner permitted by law.
(3) The Employer may not contract out the rough grading in mine reclamation work.

In the negotiation session that followed the BCOA offer, the UMWA negotiators argued that the phrase “trucking of coal” contained in Section 11(g)(1) of the BCOA proposal could be interpreted to exclude all other forms of transportation from the mine site to a preparation plant or loading facility. (See Notes, P.Ex. 9C, 41st Session, p. 14-23). The UMWA negotiators concluded that the proposed language did not contain an acceptable description of the union’s work jurisdiction and, accordingly, rejected the BCOA proposal.

13. Throughout the entire course of negotiations between the parties, the issues of work jurisdiction and subleasing and subcontracting were considered to be intertwined.

14. With the expiration of the 1971 NBCWA on November 11, 1974, the UMWA strike began the following day in accordance with the Union’s constitutional mandate of “No contract, no work.” There was no agreement with respect to Article 11(g) prior to November 11, 1974. On November 12, 1974, the BCOA presented a package proposal which covered all outstanding economic and noneconomic issues including the scope and coverage issues. The term, “trucking of coal”, which had been included in Section 11(a) of prior proposals was deleted, and the language, “Haulage of coal”, and “removal of overburden”, was substituted in its place. In Section 11(g)(1), the term “haulage of coal”, was substituted for the term “trucking of coal.” (P.Ex. 20). On November 13, 1974, the parties agreed to substitute the term “transportation of coal” in lieu of “haulage of coal” in Article II, Sections (a) and (g) of the BCOA proposal of November 12, 1974. The parties reached an agreement on a tentative contract on or about 9:30 P.M., November 13, 1974.

15. The union negotiators then submitted the tentative contract for approval to the International Bargaining Council of the UMWA pursuant to Article XIX of the UMWA Constitution. The Council raised several objections to the terms of the tentative contract and directed the negotiators to renegotiate changes in five areas. No changes or modifications were requested in the Scope and Coverage provisions. On November 14, 1974, at one of the meetings of the International Council, Harry Patrick, Secretary-Treasurer of the UMWA stated:

I think that the first two Articles, Enabling Clause and Scope and Coverage, where there was a fight — and I mean a real dog fight — over each word, each word that went in there, it meant something that we took away from the coal operators and the management of the mines.

Mike Trbovich, Vice President of the UMWA stated:

I think, you know, when you look at this contract and you look at the Enabling Clause and you look at the Scope and Coverage, I know that there’s thousands of people in our Union, even some officers and I wasn’t too educated on this— on these two articles, but these are the two most important articles in this contract.
These articles protect the United Mine Workers and I think that Chip just explained to you the Enabling Clause. And, after negotiating over there for days, and arguing with coal operators, I got an education on it and this is why I say that these are the most two important articles in this contract, to protect our jurisdiction and to protect our Union, as Chip has said.

Chip Yablonski, A UMWA negotiator and an attorney, stated:

It is very difficult to write limitations on subcontracting, as a matter of fact, without violating the hot cargo provisions of the National Labor Relations Act, to draft anything in this area without having jurisdiction clearly defined.
A major issue, and I think with all that went on here in the Executive Board over subcontracting out, and removal of overburden, I feel pretty good to say that that is clearly defined as work that is within our jurisdiction.

P.Ex. 26, 280-282.

16. On November 24, 1974, the BCOA and the UMWA agreed to various changes in the terms of the tentative contract, none of which are relevant in this case. Following the vote of approval of the revised tentative contract by the Bargaining Council, it was then submitted to the rank and file. A majority of the members of the UMWA ratified the agreement, and on December 6, 1974, the union terminated striking activities directed at those companies which had executed the 1974 NBCWA.

17. In the spring of 1974, a group of coal haulers who were signatory to the 1971 NBCWA, the Western Pennsylvania Coalhaulers Association, sought to negotiate with the UMWA for a separate coal hauling agreement. Although the parties engaged in sporadic discussions throughout the year, the UMWA refused to recognize the association as a multi-employer bargaining agent, and consequently, the discussion never culminated in any kind of an agreement. When the 1971 NBCWA expired on November 11, 1974, the employees of the coal hauler signatories ceased working under the UMWA constitutional mandate, “No contract, no work.” The UMWA and the coal hauler signatories agreed to a thirty-day extension of the 1971 NBCWA, the thirty-day period commencing December 30, 1974.

18. Frank Kulish, the President of District No. 2, directed the local union officials within District No. 2, by letter dated January 7, 1975, to advise “all independent truck owner-operators who are not signatory to the 1974 Wage Agreement ... to come to the District No. 2 and sign a contract with the UMWA if they desire to continue working in and around UMWA mines.” (P.Ex. 35). UMWA President Miller advised Kulish by letter dated May 29, 1974 (P.Ex. 55), to organize trucking companies in District No. 2 which:

1. Haul coal, overburden or mine refuse in or about the mine, including hauling to a screening, crushing, washing or other preparation facility or other mine related operation;
. 2. Haul raw coal from surface mine pit areas to ultimate consumers;
3. Haul coal on an essentially full-time basis.

19. On January 29, 1975, negotiations between the coal haulers and the Defendants having broken down, the Defendants authorized a strike against those coal haulers who had refused to sign the 1974 NBCWA. President Miller appointed John Lyons, Wilbur Geary, George O’Bush and Robert Rorabaugh as temporary UMWA International Representatives to District No. 2. Miller authorized them to enlist coal haulers signatories to the 1971 NBCWA to sign the 1974 NBCWA. (P.Ex. 41, 42). Defendants attempted to organize coal haulers and urge them to sign the 1974 NBCWA regardless of whether or not they had been signatory to the prior agreements.

20. President Miller appointed a UMWA International Commission consisting of Frank Clements, John Kelly and J.B. Trout to direct the strike and negotiating efforts. Frank Kulish circulated a memorandum to all local union officers, committeemen and members of District No. 2 concerning the strike by Local 1600. In the memorandum, Kulish stated that the strike must be “limited to coal haulage companies and independent truckers who have not signed the agreement.” (P.Ex. 46). Kulish further stated that the International Commission had authorized picketing at the “entrance to private property used by the unsigned truckers.” (P.Ex. 46). Pursuant to these instructions, agents of the Defendants picketed the entrances to numerous mines worked by unsigned coal haulers.

21. On several occasions, from early December 1974, through April, 1975, Defendants coerced coal haulers into signing the 1974 NBCWA by means of picketing, enlisting the aid of coal mine companies to boycott non-signatories, and threatening to prohibit Plaintiffs from hauling any coal unless they signed the agreement. (T. 46, 63-65, 70, 112-113, 123-128, 136-138, 143-145, 172-174, 180-184, 186, 188, 415, 417-431, 440-445).

22. During the winter months of 1974-1975, the Defendants held various strike-related meetings in Ebensburg, Marion Center, Kittanning, New Alexandria, Clyde and Mundys Corner. At these meetings, representatives of the Defendants informed the coal haulers that they must either sign the 1974 NBCWA or cease hauling coal. (Tr. 66-71, 136, 139, 143-148, 180-184, 209-221, 251-255, 417-418, 440-445, 566-567).

23. Pursuant to their plans to encourage coal haulers to sign the 1974 NBCWA, the Defendants conducted a truck survey at numerous mines in Western Pennsylvania. The purpose of the survey was to determine whether coal haulers had signed the agreement. The unsigned truckers were told that they must sign the 1974 NBCWA. (Tr. 445-454).

Robert Rorabaugh, the Recording Secretary of Local No. 1600, served as a Special Representative of the UMWA from January 25, 1975 through March, 1975. In his capacity as Special Representative, Rorabaugh’s sole responsibility was to urge coal haulers to sign the 1974 NBCWA.

24. The Defendants’ attempts to force the coal haulers to sign the 1974 NBCWA continued through the spring of 1975. As a result of Defendants’ efforts, 366 coal haulers became signatory to the 1974 NBCWA. Thirty-nine coal haulers were signatory to the 1971 NBCWA. (P.Ex. 61, 62).

V. DISCUSSION

It is apparent that the matter of jurisdiction as set forth in Article II and Article 11(g) of the 1974 Wage Agreement was an area of prime concern to the Defendant UMWA. Throughout the course of the negotiations between the parties, the themes of work jurisdiction and subcontracting were interwoven, and even prior to the start of the 1974 negotiations, it was recommended that Article II be amended to cover independent non-union truckers. Article 11(g) as finally adopted was strongly bargained for in its initial proposal the UMWA sought to make it clear that all work related to, or incident to, the removal of coal, including the hauling of coal from the mine, should be performed solely by members of the UMWA. The history of the negotiations between the BCOA and the UMWA illustrates that the issues of subleasing and subcontracting and work jurisdiction were viewed synonymously, and there was clearly dissatisfaction with the manner in which jurisdiction had been previously defined in the 1971 agreement. The UMWA wanted to limit subcontracting in the areas in which the UMWA felt that the UMWA should have primary jurisdiction; the work jurisdiction issue was a substantial factor in the decision to call and maintain the UMWA-BCOA strike, and was also related to the Defendant UMWA’s efforts to ban subcontracting entirely, or alternatively, to obtain a clause which the Defendant UMWA could use to coerce the coal haulers into signing the same agreement. Article II was of major concern to the parties during the negotiations, and the failure of the UMWA to obtain what the UMWA considered to be satisfactory wording materially contributed to the decision to call and maintain the BCOA strike.

The Defendant argues that the BCOA strike was called as a result of other issues, that Article 11(g) was a non-issue prior to the commencement of the strike, and that the language of Article 11(g) as ultimately adopted had been agreed to pri- or to the commencement of the strike. However, the Court finds these contentions to be without merit, for it is obvious that the ratification procedure of the Union required a minimum of eight to ten days, during which time the “no contract, no work” policy was in effect. Thus, even if an agreement between the UMWA and the BCOA negotiators had been reached on November 13, 1974, the strike against the BCOA would have continued until November 23, 1974 at the earliest. In fact, there was no agreement reached prior to the expiration of the 1971 Wage Agreement and it was not until December 6, 1974, that the rank and file ratified the proposed contract, and no agreement was obtained until that date.

The Defendant also contends that Article 11(g) was not a factor in the strike against the coal haulers. However, the thrust of Article 11(g) was clearly targeted to the coal hauler, and the Union struck both the coal haulers and the BCOA in their efforts to obtain Article 11(g) and to expand the UMWA’s jurisdiction. The history of the negotiations between the parties establishes that there was substantial disagreement, even on the eve of the strike, as to the scope of Article 11(g), and after the strike was called, the UMWA and the BCOA were still submitting proposals and counter-proposals regarding the issue of subcontracting. The scope of Article 11(g) was still being negotiated even after the strike was called, and the UMWA obviously felt that the articles concerning work jurisdiction and subcontracting were the two most important articles in that contract. Article 11(g) was a substantial factor in and materially contributed to the Union’s decision to call and maintain the strike.

The Defendant does not dispute its liability for damages, if any, proximately caused by the enforcement of Article 11(g) at the UMWA mines after December 6, 1974, but contends that there can be no damage award for the strike period of November 12 through December 6. In support of this contention, Defendant argues that Article 11(g) could not have played a causal role in the continuation of the strike because the parties had already agreed to the clause on November 13. However, the Court of Appeals has previously considered the propriety of imposing liability for the period of the BCOA strike, and has concluded that such liability was proper

The Union’s argument fails to take into account the district court’s ultimate conclusion of law with regard to the secondary boycott issues. The district court held that the Labor Act was violated by the UMWA’s “striking to force coal mine companies and coal haulers to sign the agreement. ...” 494 F.Supp. at 720 (emphasis added). Thus, it must have meant to impose liability under section 8(b)(4) for the period of the BCOA strike. We reach this conclusion even though the district court followed this holding with a citation to section 8(b)(4)(B), the enforcement provision, and not to section 8(b)(4)(A), the clause governing attempts to obtain hot cargo agreements. The district court apparently did not distinguish between the two provisions, and understood section 8(b)(4)(B) to cover “[a] strike to force an employer to sign an agreement which contains a hot cargo clause in violation of section 8(e).” 494 F.Supp. at 710. Since the import of the decision by the district court is clearly that the Union’s conduct both during and after the BCOA strike constituted unlawful secondary activity, we will not invalidate that determination merely because of a failure to cite all the relevant subsections of the Act.

711 F.2d at 536-37.

The Court of Appeals then remanded to this Court for a determination of the issue “whether the hot cargo clause materially contributed to the decisions to call or maintain the BCOA strike.” 711 F.2d at 538. This Court, on remand, concludes that it did. The work jurisdiction issue, which encompasses the issue of subcontracting, was clearly a strike issue on November 12, 1974, when the strike commenced. The hot cargo clause materially contributed to the decision to call and maintain the BCOA strike, and even if there had been an “understanding” with respect to Article 11(g) on November 13, 1974, there was still no contract settlement on that date because there was no way of knowing whether the membership of the UMWA would accept or reject the proposed language, and there was, in fact, no settlement by the UMWA with the BCOA until December 6, 1974, when the rank and file finally ratified the entire agreement.

VI. CONCLUSIONS OF LAW

1. Jurisdiction of this Court is properly invoked under 29 U.S.C. § 187.

2. The provisions contained in Article 11(g) of the 1974 NBCWA are illegal hot cargo clauses under 29 U.S.C. § 158(e).

3. Defendants’ desire to obtain the illegal hot cargo provision contained in Article 11(g) of the 1974 NBCWA was a substantial factor in and materially contributed to the Defendants’ decision to call and maintain the strike against the BCOA from November 12, 1974, through December 6, 1974.

4. By striking to force coal mine companies and coal haulers to sign the agreement containing the illegal hot cargo clause, Defendant violated the secondary boycott provisions of Section 8(b)(4) of the NLRA.).

5. The Union’s conduct both during and after the BCOA strike constituted unlawful secondary boycott activity.

6. Defendants, by their action in calling and maintaining a strike from November 12, 1974 through December 6, 1974, that had continuing effects in Defendant’s strike against the coal haulers, violated the secondary boycott provisions of the Section 8(b)(4) of the NLRA.

7. The effects of the Defendants’ strike against the BCOA, which was called and maintained substantially to obtain the illegal hot cargo clause contained in Article 11(g), went beyond December 6, 1974, the end of the strike, in that when the Defendant’s strike against the BCOA terminated December 6, 1974, the Defendants continued their strike against the coal haulers in order to coerce the coal haulers to sign the 1974 NBCWA by use of the illegal hot cargo clause.

8. Plaintiffs are entitled to recover damages under section 303, 29 U.S.C. § 187(b), for the period after the Defendants’ strike against the BCOA during which time the Defendants continued their strike against the coal haulers in order to coerce the coal haulers to sign the 1974 NBCWA by use of the illegal hot cargo clause, in that Plaintiffs were injured by reason of a violation of section 8(b)(4) of the NLRA, as amended, 29 U.S.C. § 158(b)(4).

9. Plaintiffs are entitled to recover damages under section 303, 29 U.S.C. § 187(b), for the period of November 12, 1974 through December 6, 1974, in that the illegal hot cargo clause of Article 11(g) was a substantial factor in and materially contributed to the Defendant’s decision to call and maintain the strike against the BCOA, and Plaintiffs were injured by reason of a violation of section 8(b)(4) of the NLRA, as amended, 29 U.S.C. § 158(b)(4).

      . Generally, a "hot cargo” agreement applies pressure on an employer, directly or indirectly, to require him to cease doing business with a third party in order to persuade the third party to accede to the Union's objectives. See Lewis v. Seanor Coal Co., 382 F.2d 437, 440 (3d Cir.1967).

      . The matter was previously referred to a Special Master for disposition of the causation and agency issues, as well as for a determination of the damage claims, but that Special Master died before the issues could be determined; thus the matter is once again pending before this Court.

      . With respect to the H & H damage award, the Court of Appeals held that there was no finding that the UMWA authorized or supported the individuals who threatened the Hannas, and on that basis, none of the Union entities could be held responsible absent a separate showing of agency as to each Defendant. The matter was remanded to this Court for the determination of the agency issue. 711 F.2d at 539.
      The parties have agreed to refer the above-captioned case to a Special Master to resolve the damage claims, and the Special Master will decide the remaining agency issue as well as presiding over the trial of the damage claims of the class. The matter of selection of the Special Master and the Order of Reference will be considered at a later date, after this Opinion and Order have been entered.


source: Caselaw Access Project

author: HAIGHT, District Judge:

license: Public Domain

text:
    Curtis W. HALE, Jr., Plaintiff, v. NEW YORK STATE DEPARTMENT OF MENTAL HEALTH, Civil Service Employees Association, Defendants.
    82 Civ. 3518-CSH.
    United States District Court, S.D. New York.
    Oct. 22, 1985.
    Apfelbaum & Lafazan, New York City, for plaintiff; Stanley Lafazan, of counsel.
    Robert Abrams, Atty. Gen., New York City, for N.Y. State Dept. of Mental Health; Randolph Volkell, Asst. Atty. Gen., of counsel.
    Roemer & Featherstonhaugh, Albany, for Civil Service Employees Asso.; Pauline F. Rogers Kinsella, of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Plaintiff Curtis Hale, Jr. brings this action under Title VII of the Civil Rights Act of 1964, claiming that his discharge from his position as a Mental Hygiene Therapy Aide at the Bronx Children’s Psychiatric Center, a state-run facility, was motivated by racial discrimination. Plaintiff’s complaint, liberally construed, also alleges that the defendant Civil Service Employee Association (“the Union”) failed to provide him with adequate representation on the charges that led to his termination, and that the defendant New York State Department of Mental Health (the “State”) breached its contractual obligations to him.

The State now moves to dismiss the complaint against it for failure to state a claim, pursuant to F.R.Civ.P. 12(b)(6). Because I consider certain exhibits attached to defendant’s motion papers, I treat defendant’s motion as one for summary judgment, pursuant to F.R.Civ. 56. The relevant uncontroverted facts appear from plaintiff’s complaint and defendant’s exhibits.

On December 8, 1978, the Director of the Bronx Children’s Psychiatric Center sent Hale a letter informing Hale that he would be discharged from his position, effective December 22, 1978, due to Hale’s alleged misconduct and incompetency. The Director indicated that Hale had failed to make bed. checks on his patients every half hour during the night shift as was required and that as a result, one patient’s escape from the facility had not been detected until the next shift of staff arrived. Hale claims he sought to have the charges preferred against him referred to arbitration, but the Union refused to assist him and the State refused to arbitrate the matter. After certain grievance proceedings under the collective bargaining agreement, plaintiff was finally terminated on October 5, 1979.

On June 25, 1980, Hale filed a complaint alleging racial discrimination against defendants with the Equal Employment Opportunity Commission (“EEOC”). On July 25, 1980, he filed a similar complaint against the State defendant only with the New York State Division of Human Rights. The instant action was filed on May 28, 1982.

The State asserts that those portions of his complaint alleging Title VII violations are time-barred since he failed to file his EEOC complaint within one hundred and eighty (180) days after the unlawful discriminatory act occurred. 42 U.S.C. § 2000e-5(e). Defendant argues that the relevant date for measuring the limitations period is December 8, 1978, the date Hale was notified he was to be terminated. Hale contends that the relevant date is October 5, 1979, the date he was actually discharged from his job following an unsuccessful attempt to resolve his complaint under the grievance procedure provided in the collective bargaining agreement governing his position.

It is well-settled that the existence and utilization by plaintiff of grievance procedures does not toll the running of Title VII’s limitations period. International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 240, 97 S.Ct. 441, 449, 50 L.Ed.2d 427 (1976). That limitations period begins to run on the date the plaintiff receives notice of the allegedly discriminatory act, not the date the decision takes effect. Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); O’Malley v. GTE Service Corp., 758 F.2d 818, 820 (2d Cir.1985). The timeliness of plaintiff's filing of his EEOC complaint in the case at bar must therefore be measured from the date he received definite notice of his termination, not the date of his actual discharge. Miller v. International Telephone and Telegraph Corporation, 755 F.2d 20, 23 (2d Cir.1985); Shipper v. Avon Products, Inc., 605 F.Supp. 701, 705 (S.D.N.Y.1985).

Thus the date on which the alleged discriminatory act occurred in the instant action was December 8, 1978, when Hale received a letter from the Director of the Center, notifying him that he would be terminated from his position on December 22, 1978. In order for Hale’s EEOC complaint to be timely under the 180-day limitations period, it would have had to have been filed not later than June 22, 1979. Its filing on June 25, 1980 was therefore untimely, and plaintiff’s assertion of his claims under Title VII are thus barred by the statute of limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982).

Even under the more generous 300-day period for filing which applies when a complaint has initially been filed with a state or local agency, 42 U.S.C. § 2000e-5(e), Hale would still have been required to file his EEOC complaint not later than October 22, 1979. Since he failed to file until 1980, his Title VII claims would be time-barred in any event.

Nevertheless, plaintiff argues that his complaint against the State should not be dismissed in its entirety because he also asserts certain non-Title VII claims against it. In particular, Hale alleges that he has stated a claim for breach of contract against the State, along with a claim against the Union for breach of duty of fair representation. Hale asserts that “actions against an employer for breach of its contractual obligations coupled with the Union’s breach of duty to represent the employee pursuant to those contractual violations are governed by a six year statute of limitations” (Plaintiff’s brief in opposition at 1), and therefore that portion of plaintiff’s complaint against the State is not time-barred.

Plaintiff may indeed have a valid breach of contract claim against the State. But this Court lacks subject-matter jurisdiction over such a state law claim in the absence, as here, of diversity of citizenship between the parties.

Nor can the Court exercise pendent party jurisdiction over the State assuming, without deciding, that some valid federal cause of action is stated against the Union. See, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Eleventh Amendment bars assertion of state law claims against state officials in federal court even under theory of pendent jurisdiction); Aldinger v. Howard, 427 U.S. 1, 14-15, 96 S.Ct. 2413, 2420-21, 49 L.Ed.2d 276 (1976) (pendent jurisdiction not available over a party against whom only a state law claim is asserted, where no independent basis of federal jurisdiction over that party exists).

The defendant State’s motion is granted. Plaintiff and defendant Union are directed to proceed in accordance with the Scheduling Order separately entered.

The Clerk of the Court is directed to dismiss the complaint as to defendant New York State Department of Mental Health without costs to either party.

It is SO ORDERED.

      . I assume without deciding, as it makes no difference to the result in this case, that Hale’s filing of a complaint with the State Division of Human Rights one month after his filing of the EEOC complaint still gives him the benefit of the lengthier limitations period set forth in 42 U.S.C. § 2000e-5(e).

      . Although plaintiff’s allegations could also be construed as a claim for the State’s alleged breach of a collective-bargaining agreement, no federal question under the Labor Management Relations Act of 1947, 29 U.S.C. §§ 141 et seq. is raised thereby since states and their political subdivisions are specifically excluded from the definition of employers who are subject to the Act's provisions, 29 U.S.C. § 152(2). Cf. Meisch v. United States Army, 435 F.Supp. 341, 342-43 (E.D.Mo.1977) (federal government agencies not employers within the meaning of the Act).


author: BARRINGTON D. PARKER, District Judge:

text:
    Sylvia ANDERSON, Plaintiff, v. GROUP HOSPITALIZATION, INC., Defendant.
    Civ. A. No. 83-2016.
    United States District Court, District of Columbia.
    Oct. 23, 1985.

      James H. Heller, Irving Kator, Kator, Scott & Heller, Washington, D.C., for plaintiff.
    Anne M. Magruder, Susan L. Shor, Whiteford, Hart, Carmody & Wilson, Washington, D.C., for defendant.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

This is a race-discrimination-in-employment proceeding. The plaintiff, Ms. Sylvia Anderson, a black and former employee of Group Hospitalization, Inc. (“GHI”) sought damages and equitable relief under both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-l et seq. Before trial plaintiffs counsel dismissed companion claims under 42 U.S.C. § 1985(3) and the District of Columbia Human Rights Act.

The § 1981 claim was tried to a jury. The jury returned a verdict of $100,000 damages for plaintiff. Judgment for plaintiff was entered on the verdict. GHI made a timely motion for judgment notwithstanding the verdict which the Court denied.

The Court’s findings of fact and conclusions of law which follow, relate to the plaintiff’s Title VII claims.

FINDINGS OF FACT

1. Ms. Anderson began her employment with GHI in October 1972, directly after finishing high school and secretarial school. She began as a Grade 4 Clerk earning $5,784.00 a year.

2. During the next 5V2 years because of the quality of her performance, plaintiff was promoted successively to MT/ST Operator (Grade 5), Secretary (Grade 6), Assistant to the Supervisor (Grade 7), Training Instructor (Grade 8) and Assistant Supervisor (Grade 10). She held the last title and grade from May 14, 1978 until her termination on July 31, 1981. In addition to these promotions she regularly received salary increases based on annual performance appraisals of “competent” or better. Her final salary on July 31, 1981 was $19,-462 per year. (PX 2-6; Stip. 1 to 3.)

3. In her initial position as Assistant Supervisor within the Marketing Services Department of GHI’s Marketing Division plaintiff assisted in supervising a clerical and support staff for marketing and sales of health insurance to small groups. In the summer of 1979 the Manager of the Marketing Services Department, Kay Viverette, a white supervisor, asked plaintiff to transfer to the Small Groups Section of that Department headed by Reba Sue Dodd. Ms. Viverette told her that she would be “an asset” in her new job. Plaintiff agreed and the transfer was completed in October 1979. (PX 2; Stip. 7-9.)

4. Plaintiff worked as Assistant Supervisor to Reba Sue Dodd, a white, until May of 1980 when Ms. Dodd resigned. The two worked well together — consulting regularly and jointly sharing supervisory responsibilities. This was a time of stress for their section as well as for the entire Marketing Division because GHI had been steadily losing sales because of increased competition. Moreover, the Small Groups Section had been reorganized and given greatly increased sales responsibilities with more complicated coverage options to offer customers. This, in turn, caused a corresponding increase in paperwork and overall work for the Small Groups Section. (Stip. 4-6.)

5. Plaintiffs annual performance appraisals at GHI were rendered on a November to November cycle. In 1978 she received a “superior” rating from her supervisor with the majority of her performance indicators either “superior” or “outstanding.” In 1979, because of her mid-year transfer, Kay Viverette prepared plaintiffs performance appraisal and gave her a “competent + ” with 50 percent of her performance indicators as “superior.” The new Vice-President of the Marketing Division (white) had announced that, because of the need to improve sales performance, everyone in that Division would initially be rated “competent” until they proved otherwise.

6. When Reba Dodd left GHI in May 1979, she recommended that plaintiff be appointed as her successor. However, Kay Viverette informed plaintiff that she lacked sufficient experience for the position. The position was later filled by Susan Feist, a white from another Division of GHI. Susan Feist and Viverette had previously worked together in the past. Unlike plaintiff, Ms. Feist had no previous experience in marketing. (Stip. 11-13.)

7. In June 1979, just after Ms. Feist’s appointment, Ms. Viverette gave plaintiff a 6-month interim performance review of “competent + ” with 7 of 10 indicators “superior” or “competent +.” Ms. Dodd testified for the plaintiff and stated that she would have given her an “outstanding” rating for the preceding six months.

8. When Feist arrived to supervise the Small Groups Section, she declined plaintiff’s and Ms. Dodd’s offers for a briefing on the current work and personnel, stating that she intended to make her own judgments and considered briefings a waste of time. Ms. Feist promptly reallocated the supervisory functions. She worked mainly with the sales and service representatives in the section and assigned the plaintiff to the responsibility for the increased and time-consuming paperwork. After a brief period she stopped taking plaintiff to staff meetings in Viverette’s office or even to other outside meetings as the plaintiff had experienced before Feist became supervisor. Her stated reasons were that one of them should be in the section at all times. Feist also refused to meet separately with plaintiff to discuss performance appraisals of section employees even though the plaintiff was their immediate supervisor according to the staffing patterns.

9. Ms. Feist’s supervisory style was very different than that of her predecessor, Ms. Dodd, or the style of the plaintiff. In her testimony and in the testimony of other witnesses, Ms. Anderson presented herself as a calm, poised, clear thinking person. Her performance appraisals also describe her in these terms. (PX 2-6.)

10. In contrast, Susan Feist was described by witnesses as loud and frequently profane. She described herself as “tough.” On the witness stand her demeanor was overbearing and authoritarian.

11. There was undisputed testimony that Susan Feist openly made within the unit several remarks that were heard and construed as racial. They were resented by some black employees. There was also testimony that she gave more praise to white employees than to blacks, for similar performance.

12. On January 7, 1981, Susan Feist gave plaintiff her 1980 performance appraisal signed by Ms. Feist. The rating had been approved by Kay Viverette some two months earlier. She was given an overall rating of “competent” and noted as eligible for promotion. Ms. Feist did not recall why the appraisal was presented to plaintiff several months late but acknowledged that she had not indicated any deterioration in plaintiff’s work during those months when she discussed the appraisal with plaintiff in early January. (PX 6.)

13. On March 6, 1981, Susan Feist and Kay Viverette called plaintiff to a meeting with them and Ms. Viverette’s deputy. Plaintiff was given a new interim performance appraisal prepared by Ms. Feist and approved by Ms. Viverette. Plaintiff was surprised, since she had not expected to receive an interim performance rating. Her overall interim performance rating was “marginal.” A written commentary-included a number of sharply worded criticisms of plaintiffs performance which were in marked contrast to the annual appraisal which Feist had given two months earlier. (PX 7.)

14. The March 1981 interim performance review contained the statement that plaintiff “may be suited for a different line of work.” During the meeting, Ms. Viverette told plaintiff that if she transferred out of the Small Groups Section the “marginal” review would not be entered in her Personnel File. The file would then only include a positive 1980 performance review. A marginal review is a serious matter and the plaintiff having no prior warning or indication of this type of performance on her part, said she needed to think it over.

15. On Monday, March 9, 1981, plaintiff gave Kay Viverette a written memorandum soliciting her supervisors’ support for no less than a lateral transfer, listing five other areas of GHI operations as her areas of interest. Ms. Viverette said she would check with the managers of those areas for plaintiff. Plaintiff, at the time, was a grade 10 employee and the five areas she listed involved grade 11 positions.

16. Plaintiff also interviewed with GHI’s Personnel Manager, Janet La Marre, to seek her help in securing a transfer. Ms. La Marre, a white, knew of her interim “marginal” performance rating. She asked plaintiff if she would accept a demotion and indicated that it might be necessary for her to do so. Plaintiff replied that she was not seeking a demotion but would be willing to consider one, depending on the position and salary. Plaintiff is the divorced mother of a young boy who received little support from his father.

17. Before 1981 several white supervisors in the GHI Marketing Division had been demoted without loss of pay and transferred to other positions because of dissatisfaction with their performance. During 1981 four white employees, grade 13 and 14 service and marketing representatives in the Marketing Division, were also demoted and transferred without loss of pay because of supervisors’ beliefs that they would perform better in other jobs. (PX 22; Stip. 59.) The plaintiff was interested in receiving similar treatment from GHI as they afforded the white employees.

18. Plaintiff heard nothing further from Janet La Marre about transfer possibilities. However, on July 10, 1981 Kay Viverette advised plaintiff that no positions were available in the areas mentioned in her March 9 memorandum.

19. Prior to March 6, 1981, Susan Feist had never communicated to the plaintiff any criticisms of her work performance. She received the negative criticism for the first time that day. Moreover, before Feist came to the Small Group Section, Kay Viverette had told her and Reba Dodd not to help the Section’s telephone marketing representatives answer the telephones. Now, however, this was a major criticism by Susan Feist, as was the fact that plaintiff mostly stayed at her desk handling the section’s paperwork which Ms. Feist had assigned to her. In the period following the March 6 meeting, plaintiff adjusted her behavior in response to these criticisms.

20. In late April 1981 having heard nothing about any transfer possibilities and not having received any feedback from Susan Feist on her performance since the March 6 meeting, plaintiff asked for a meeting to discuss the matter of her performance. Ms. Feist advised that her performance had improved, asked her to prepare a log of her daily activities for the next month, and assigned her some specific tasks. Plaintiff turned in the log and carried out the other assignments. She had no further communication about her performance until early July 1981.

21. In July 1981, Kay Viverette and Susan Feist asked for plaintiff’s resignation from GHI. They, in turn, informed Janet La Marre who approved the action. (Stip. 38.)

22. On July 10, 1981, plaintiff met with Kay Viverette and Susan Feist. Ms. Viverette advised her that there were no transfer possibilities, that her performance had not improved, and that she had the choice of resigning effective July 31, 1981 or being terminated immediately for unsatisfactory performance. When the plaintiff responded “I guess I don’t have much choice,” Ms. Viverette replied, “That’s right.” Plaintiff signed the resignation form but did not put any reason on the line provided for that purpose. (Stip. 39-47; PX 10.)

23. At the time plaintiff was employed, GHI had a policy of formally counseling and giving written warning to employees with performance problems. Janet La Marre viewed the March 6, 1981 meeting as an informal counseling and warning session and said that no more was required in the case of employees at grade 9 and above, although she admitted it was desirable. Ms. La Marre had known plaintiff longer than either Ms. Viverette or Ms. Feist. She testified that she was surprised at the claimed sudden deterioration in plaintiff’s performance but asked no. questions about that when termination was discussed. (PX 9.)

24. Although Susan Feist claimed she had repeatedly discussed plaintiff’s performance with her but the only such discussion she could recall was her testimony concerning the March 6, 1981 meeting. Her memory in many respects was generally selective and questionable. Plaintiff recalled only three such discussions with Ms. Feist in a full year: the January 7, 1981 meeting on her 1980 annual performance appraisal; the March 6, 1981 meeting; and the April 1981 meeting which she initiated. The plaintiff’s testimony was not disputed.

25. At the time of her termination plaintiff was the only black among seven supervisors under Kay Viverette. She was one of only three blacks in supervisory or managerial positions out of 17 such persons in the entire Marketing Division. One of the three had just been hired from outside. There were no training, education, or other barriers' to promotions within that Division, and GHI, with a 52% black work force in 1981, had a policy favoring promotion from within whenever possible. (PX 23, 24; Stips. 60, 62.)

26. On May 12, 1981, GHI was notified that its contract to process Medicare Part B claims would not be renewed after September 30, 1981. Some 149 GHI employees were affected by this action, 20 of whom resigned. Between May 12 and September 30, 1981, the other 129 Medicare B employees, both white and black were reassigned. GHI argued that the need to place these employees made it impossible to transfer plaintiff in view of her “marginal” interim performance review. However, that review was supposed to have no effect if plaintiff transferred out of the Small Group Section. The reassignment of the 129 GHI employees affected by the loss of the Medicare contract demonstrated that GHI could exercise flexibility and discretion in reassigning employees at a time when it professed that nothing could be done for the plaintiff. (DX 42-44.)

27. The evidence of racial remarks and different treatment of whites and blacks by Susan Feist, the under-representation of blacks in supervisory positions within the Marketing Division and within Kay Viverette’s department, and the disparate treatment of plaintiff versus white employees of that Division with respect to transfers without loss of pay, the Court finds that race was the effective and controlling reason for plaintiff’s termination by GHI and that she would not have been so terminated but for her race.

28. In returning a verdict for the plaintiff, it is clear that the jury found that plaintiff’s performance had not deteriorated; that her termination in July 1981 was not justified; that she was treated differently than white employees similarly situated; and that the reasons GHI gave for terminating her and refusing to reassign her to another position were a pretext.

29. If the plaintiff had continued her employment at GHI after July 31, 1981, as Assistant Supervisor of the Small Groups Section of GHI’s Marketing Division from which she was discharged on that date and had not been subjected to discriminatory treatment by defendant, she would have received “competent” or better performance appraisals; and her position would have been upgraded from a Grade 10 to a Grade .11 in January 1982 and she would be earning an annual salary of $27,495 (PX 21, 24; Testimony of Janet La Marre).

30. The plaintiff would have also been entitled to other employment benefits in addition to higher pay if she had continued her employment with GHI from August 1, 1981 including, but not limited to, cost-free health insurance for herself and her son and cost-free group term life insurance.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of this matter.

2. The Court concludes that the plaintiff has sustained by a preponderance of the evidence that she was a victim of racial discrimination and that she was unlawfully terminated from her employment with Group Hospitalization, Inc. on July 31, 1981, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-l et seq.

3. That the plaintiff is entitled to reinstatement to the position she held at the time of her unlawful termination or an equivalent position, together with all the entitlements and benefits she would have received during the period of her unlawful termination.

JUDGMENT AND ORDER UNDER TITLE VII

In accordance with the Memorandum Opinion and the findings of fact and conclusions of law set out therein, filed on this date, the Court enters the following judgment and order on the claim of the plaintiff Sylvia Anderson, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-l et seq. (Title VII); and it is

ADJUDGED and ORDERED as follows:

1. That the plaintiff Sylvia Anderson is awarded judgment against the defendant Group Hospitalization, Inc., because of the defendant's wrongful termination of her employment on July 31, 1981. The termination of the plaintiffs employment was based on her race, in violation of Title VII of the Civil Rights Act of 1964.

2. That the defendant shall reinstate plaintiff, retroactive to August 1, 1981, to the position of Assistant Supervisor, or its equivalent, at a current grade and annual salary of Grade 11 earning $27,495 per year. The defendant shall also provide and pay to the' plaintiff all wage, retirement and other employment emoluments that would have accrued to her benefit as a as Grade 10 Assistant Supervisor until January 1982 and as a Grade 11 Assistant Supervisor since that date.

3. That the defendant is hereby enjoined from discriminating against plaintiff in the terms and conditions of her employment because of her race or because of her past opposition to such discrimination, including the filing of this suit.

4. Plaintiff is entitled to cover the costs of this action, including reasonable attorneys’ fees. She shall file her request for any non-taxable costs and attorneys’ fees within 15 days after the time for appeal from this Court’s final judgment expires or within 15 days after any mandate of the Court of Appeals affirming that judgment, whichever is later.

      . Record references are as follows: Testimony, by name of witness; Plaintiffs Exhibits, "PX _’’; Defendant’s Exhibits, "DX _; Paragraphs of the Stipulation of Facts, "Stip.--”