# Lewis v. Quality Coal Corp. > Court of Appeals for the Seventh Circuit · August 18, 1959 · 270 F.2d 140 URL: https://www.frixlaw.com/law-library/cases/6918340 ## Case - **Full name:** John L. LEWIS, Henry G. Schmidt and Josephine Roche, as Trustees of the United Mine Workers of America Welfare and Retirement Fund v. QUALITY COAL CORPORATION, an Indiana Corporation - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** August 18, 1959 - **Citations:** 270 F.2d 140; 44 L.R.R.M. (BNA) 2704 - **Precedential status:** Published - **Opinion:** Dissent by Schnackenberg - **Judges:** Castle, Duffy, Schnackenberg - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6918340 ## How later opinions describe it (automated extraction) - finding the phrase “to the extent and in the manner permitted by law” required “conformity to existing or future law” ## Opinion text SCHNACKENBERG, Circuit Judge. I must dissent. I believe we are required by the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., to hold this agreement unlawful, and that the defense of illegality is good. It is admitted that sec. 158(a) (3) of said Act forbids a closed shop agreement. The agreement upon which plaintiffs sue provides: “* * * ii is further agreed that as a condition of employment all employees shall be, or become, members of the United Mine Workers of America, to the extent and in the manner permitted by law. -* * *» Moreover, admitted facts 1 in the record show that in the operation under the agreement at Quality’s mines a closed shop has been rigorously maintained. Faced with the defense of illegality, plaintiffs seek refuge in what they call a “savings clause” reading: “to the extent and in the manner permitted by law”. Here is a group of vague words which may have been fashioned to accommodate a general form of contract to the diverse labor laws of various states, i. e., Lewis v. Fentress Coal & Coke Co., D.C., 160 F.Supp. 221, 227 . Certainly the language of sec. 158(a) (3) of the federal act does not “permit” a closed shop to any extent or in any manner, and no one argues that it does. Hence, the words of the “savings clause” exclude their applicability to the prohibition of sec. 158(a) (3) of the federal act. Moreover, the meaning of this ambiguous language is settled for the purposes of this case by the interpretation which the Union and Quality have, in performance, placed upon it. By their strict maintenance of a closed shop, they have realistically interpreted it as “saving” the closed shop, the federal act to the contrary notwithstanding. Of course, in a court of law, where a federal act and a private contract conflict, the contract must fall. It becomes wholly unenforcible, especially where, as here, it contains a provision to the effect that all parts are dependent on each other. 2 The effect of this very provision was emphasized by Judge, now Justice, Stewart, in Lewis v. Benedict Coal Corp., 6 Cir., 259 F.2d 346, 354 . Moreover, the agreement before us lacks a separability clause, such as appeared in the contract in the Rockaway case (N. L. R. B. v. Rockaway News Supply Co., 345 U.S. 71, 78 , 73 S.Ct. 519 , 97 L.Ed. 832 ) unjustifiably relied on by plaintiffs here. The term “saving clause” is well known to legislative draughtsmen. It is used to save pending matters from the effect of amendatory or repealing legislation. 82 C.J.S. Statutes § 440, p. 1014. In its unique application to this case, however, its venerable purpose is perverted and it is being used to breathe *145 life into a private contract which admittedly, but for the saving clause, contains a provision violating an act of Congress. This contract is now sanctioned by this court. As far as this case is concerned, by judicial decision a part of a federal act has in effect been repealed. The act was not saved; a contractual provision in violation of the act is saved. The majority opinion would rely upon the possibility of a union shop being permissible under the agreement before us. The term union shop is used to indicate the situation where the employer is permitted to employ non-union workers, but such workers are required to join the union as a requisite to continuing work. 90 C.J.S. p. 1044. The right to make an agreement for a union shop is recognized by a proviso in § 158(a) (3) of the federal Act: “* * * That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization * * * to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, * * (Italics supplied.) However, there is no contention by anyone in the case at bar that the Union and Quality ever made an agreement for a union shop, which is necessary under the foregoing proviso, and as recognized by analogy in the recent case of Railway Employes’ Dept. v. Hanson, 351 U.S. 225, 231, 232 , 76 S.Ct. 714 , 100 L.Ed. 1112 , construing 45 U.S.C.A. § 152 , Eleventh (a). No agreement for a union shop was made. An act of congress does not create an agreement. No union shop agreement exists in this case. There is only an invalid closed shop agreement, and the parties, by their conduct, have shown that that is the only agreement which they recognize. I agree with the reasoning of the Second Circuit, in N. L. R. B. v. Gottfried Baking Co., 210 F.2d 772 , at page 779: The preferential hiring clause contained in the three contracts above-described was clearly illegal as it excludes new applicants at the threshold if they are not members of the Union in good standing, and deprives them of the thirty-day grace period within which they might become members after being hired. We think that the mere execution of a contract containing such a provision, even apart from its actual enforcement, constitutes ‘discrimination in regard to hire’ on the part of an employer and hence falls squarely within the prohibition of Section 8(a) (3). For, as this Court, in so holding, stated in Red Star Express Lines of Auburn v. N. L. R. B., 2 Cir., 196 F.2d 78, 81 , ‘the existence of such an agreement without more tends to encourage membership in a labor organization. The individual employee is forced to risk discharge if he defies the contract by refusing to become a member of the union.’ See also N. L. R. B. v. Childs Co., 2 Cir., 195 F.2d 617 . Since the Union joined in the execution of the contracts containing these illegal provisions and assisted in enforcing them, it follows that the Union ‘cause[d] * * * an employer to discriminate against an employee in violation of [Section 8] (a) (3)’, thus violating Section 8(b) (2). N. L. R. B. v. National Maritime Union of America, 2 Cir., 175 F.2d 686 , certiorari denied 338 U.S. 954 , 70 S.Ct. 492 , 94 L.Ed. 589 . a “Nor is it of consequence, as the respondents contend, that each of the contracts contained a ‘saving clause,’ the intended effect of which was to salvage as much union security as possible should the preferential hiring provisions be invalidated. The inclusion of this vague ‘saving clause’ in each contract does not purge the preferential hiring provisions of their illegal effect. Red Star Express Lines of Auburn v. N. L. R. B., supra; N. L. R. B. *146 v. Gaynor News Co., 2 Cir., 197 F.2d 719 , certiorari granted 345 U.S. 902 , 73 S.Ct. 640 , 97 L.Ed. 1339 , reargument ordered 345 U.S. 962 , 73 S.Ct. 947 , 97 L.Ed. 1382 , affirmed by Supreme Court on February 1, 1954.” 3 To the same effect is the recent case of N. L. R. B. v. Broderick Wood Prod. Co., 10 Cir., 261 F.2d 548 , 557. I would reverse. . An employee when hired had to join the Union by the morning of the third day or get fired, and, if a nonunion employee refused to join, then the union employees would refuse to work on instructions from the Union. The constitution of the Union states simply:— “That all members of the organization- shall refuse to work in and around a mine where a man or men work that does not belong to the Union.” No new employees were permitted to work for Quality more than three days (not thirty days) if they did not join the Union. . INTEGRATED INSTRUMENT — This Agreement is an integrated instrument and its respective provisions are interdependent * * *. . See Radio Officers’ Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B., 347 U.S. 17, 44, 45, 46, 51, 52 , 74 S.Ct. 323 , 98 L.Ed. 455 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6918340. Public record. Not legal advice.