UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN ASSOCIATED COAL
CORPORATION, a corporation,
Plaintiff-Appellee,

v.
                                                                No. 98-1047
LOCAL 781, UNITED MINE
WORKERS OF AMERICA, an
unincorporated labor association,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-96-1944-2)

Submitted: November 17, 1998

Decided: January 6, 1999

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Kevin F. Fagan, DISTRICT 17, UMWA, Charleston, West Virginia,
for Appellant. Steven P. McGowan, Irene P. Keeley, STEPTOE &
JOHNSON, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Local Union 781 of the United Mine Workers of America
("Union") appeals from a district court judgment order entered pursu-
ant to a jury verdict finding the Union liable to Eastern Associated
Coal Corporation ("employer") for damages resulting from an illegal
work stoppage. Employer operates various coal mines and coal facili-
ties in Boone County, West Virginia, that are known as the "Wells
Complex." Employer's union employees engaged in a three-day work
stoppage at the Wells Complex between October 30 and November
1, 1996. Of the 370 union employees scheduled to work on those
days, one hundred eighteen worked on the first day of the stoppage,
seven on the second, and 59 on the third.

Employer filed a complaint in federal district court on the first day
of the stoppage, seeking injunctive and compensatory relief in the
form of its fixed daily costs during the stoppage. Employer alleged
that the stoppage violated provisions of the 1993 Bituminous Coal
Wage Agreement requiring the parties to submit workplace disputes
through grievance and arbitration procedures. The Union eventually
conceded that the work stoppage was unlawful, but contested its lia-
bility for the stoppage.

Before trial, employer filed a motion in limine to exclude presenta-
tion by the Union of evidence that, on the second day of the strike,
employer issued a notice pursuant to the Worker Adjustment and
Retraining Notification Act ("Warn Act"), 29 U.S.C. § 2101, et seq.
The statute requires all employers subject to it to give employees'
representative 60 days notice where a plant or facility closure will
result in layoffs for 50 or more employees. Employer's motion argued
that the evidence was both irrelevant and overly prejudicial. The court
eventually excluded the evidence on relevancy grounds.

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During discovery, the Union requested employer to produce "all
documents supporting a computation of any category of damages
claimed, including said computation and all documents on which said
computation is based." Employer responded to this request by produc-
ing a compilation of all of its damages, together with a computer
printout purporting to reflect all of the hundreds of categories of dam-
ages resulting from the stoppage. All of these categories were taken
from employer's Objective Cost Report ("OC327"), a report incorpo-
rated into the employer's general ledger. Due to employer's particular
accounting system, the data associated with four of the categories
were recorded elsewhere and thus were not reflected on the summary
version of the general ledger.* The court admitted the evidence relat-
ing to the compilation of employer's damages into the record as
Exhibit 11, and the source of the data, OC327, as Exhibit 10.

There was one other problem with these exhibits. The figures relat-
ing to employer's power costs in Exhibit 11 did not jibe with the
source figures provided by the company for this category of damages
in Exhibit 10, because Exhibit 10 reflected employer's costs when
operating at full capacity, and employer realized that it would be inac-
curate to use the full power costs when assessing damages for a
period when its facilities were not operating at full capacity. Hence,
at trial, employer's expert witness, Kent Hartsog, testified that the
power costs reflected in Exhibit 11 were calculated and provided to
him by employer's Engineering Department, and that the source data
for this information could be found in Exhibit 13.

During Hartsog's direct examination, the Union objected to the
admission of Exhibits 11 and 13, because it had not received all of
the underlying source data prior to trial. The Court directed employer
to provide the Union with the supporting documents and recessed in
order to permit the Union to review the documents and consult with
Hartsog prior to preparing its cross examination. On the next day of
trial, the Union renewed its objection to the admission of the evi-
dence.
_________________________________________________________________
*These categories were "Combined Fund Contributions," "Group
Health Insurance Retired (hourly)," "Group Health Insurance Retired
(salaried)" and "Federal Provision Occupational Disease."

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The court denied the motion for two reasons. First, during discov-
ery, employer objected to the Union's request for all supporting docu-
ments supporting its compilation of damages as overly broad, and the
Union did not respond by filing a motion to compel. Second, the court
determined that it had cured any possible error by ordering production
of the documents and a recess. The trial then proceeded, and the jury
ultimately awarded employer damages in the amount of $166,923.

On appeal, the Union first contends that the district court erred by
excluding evidence of the employer's Warn Act notice. The Union
avers that this evidence was relevant to its liability under either of the
two theories of liability presented to the jury: the common law agency
theory of liability, and the "mass action" theory of liability. We need
not address whether the evidence was relevant to the first theory of
liability because the jury in this case found liability exclusively under
the mass action theory.

Under the mass action theory of liability, "as long as a union is
functioning as a union it must be held responsible for the mass action
of its members." Consolidation Coal Co. v. Local 1702 UMWA, 709
F.2d 882, 885 (4th Cir. 1983) (quoting United States v. International
Union, UMWA, 77 F.Supp. 563 (D.D.C. 1948)). Consistent with this
statement of the law relating to the theory, the district court in this
case instructed the jury that when members of a union act collectively
as a union, then liability for their illegal acts may be imputed to their
local union, even if officers of the union made attempts to urge the
workers to return to work. The district court thus instructed the jury
that "if you find that all or substantially all of the local union mem-
bers participated in the work stoppage alleged and that such work
stoppage brought production at Eastern's facilities to a halt, then you
may find . . . [that] . . . the action involved by the union members was
the action of the local union itself." The Union has at no point argued
that this instruction erroneously characterized the law.

We review the district court's evidentiary rulings for abuse of dis-
cretion. Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1383 (4th Cir.
1995). Employing this standard, we find that the district court com-
mitted no error in excluding the Warn Act evidence in this case on
relevancy grounds. The evidence did not bear on whether all or virtu-
ally all of the union members participated in the work stoppage.

We also find no error in the district court's decision to permit
employer's expert witness to rely on the supporting documents that

                     4
employer failed to provide to the Union prior to trial. Employer
moved the court for a protective order under Fed. R. Civ. P. 26(c).
Although the court did not rule on this order, had the Union truly
desired production of the few documents employer failed to produce,
it could have filed a motion to compel pursuant to Fed. R. Civ. P.
37(2)(A). More importantly, however, we think the district court
properly concluded that employer's failure to fully comply with dis-
covery in this case did not prejudice the Union.

The Union received the documents and an opportunity to review
them and consult with the employer's expert prior to resumption of
the trial. While the Union contends that the recess was insufficient to
cure its prejudice because the brief delay afforded it no time to
acquire its own expert, it fails to address how its acquisition of its
own expert might have changed the outcome of the case. Signifi-
cantly, the Union possessed the employer's figures reflecting the
amounts of its fixed cost damages prior to trial; it lacked only a few
of the supporting source documents. Moreover, even after receiving
the documents and consulting with employer's expert-- indeed, even
at this stage of the litigation -- the Union has never identified any
reason to suspect that employer's figures are inaccurate. Therefore,
because the district court acted to cure any surprise to the Union
resulting from the undisclosed documents, because the Union has
failed to demonstrate prejudice, and because there is no dispute that
employer's failure to produce the documents in question was inadver-
tent, we find that the court did not abuse its discretion in permitting
employer's expert witness, whose testimony was highly important to
the issue of damages, to rely on the undisclosed documents to support
his testimony. See Adalman v. Baker Watts & Co. , 807 F.2d 359, 369
(4th Cir. 1986) (discussing factors relevant to decision to admit or
exclude expert testimony).

Accordingly, the judgment order of the district court is affirmed.
We dispense with oral argument in light of our prior order granting
the Union's motion to submit this case on briefs, and because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED

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