Amicus Brief — United Mine Workers of America v. Windsor Power House Coal Co.

-- «~ +r eee. G -

_ ——

IN THE i] MICHAEL RODE:

Supreme Court of the Untied States

OctroBeR TerM, 1975

No. 75-1894

—

UNITED MINE WORKERS OF AMERICA, ET AL.,

Petitioners,

V.

Winpsor Power House CoaL CoMPANny,

Respondent.

oe

On Petition for a Writ of Certiorazi

to the United States Court of Appeals

for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AND BRIEF OF THE BITUMINCUS COAL

OPERATORS’ ASSOCIATION, INC..,

AMICUS CURIAE

Guy FARMER

Farmer, Shibley, McGuinn & Flood

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorney for Bituminous Coal

Operators’ Association, Inc.

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

INDEX

Page

MOTION FOR LEAVE TO FILE BRIEF ......... 1

BCOA’s INTEREST aNnD Wuy THE Fminc 1s DeEsrr-

OO obdbnse00ebeeeteendescdncensecedesese 1

BRIEF AMICUS CURIAE ........ccccccccccccecs 5

pos LR PTET TeTrTT TTT eT TT TTT Tree 5

Tue Nature or Wiupcat STRIKES IN THE CoaL INpDustrRY 11

QueETTe PRMMBWTED 2. cccccccccccccccccccccceccece 12

En RE Ee eae 13

Reasons For GRANTING THE WRIT ..............ee0:% 14

A. Boys Markets Not Buffalo Forge Should Con-

trol the Equitable Right to Injunctions Against

Wildcat Strikes in the Coal Industry ........ 16

1. The Court in Buffalo Forge reaffirmed

rather than overruled Boys Markets ...... 16

2. The original precipitating strike in Buffalo

Forge was primarily a legal strike, whereas

here the original precipitating strike was in

derogation of the arbitration procedure and

GID. oh co cceepesoddcseencnceeseeses 17

3. The more widespread the strike the greater

the injury to the arbitration process ..... 18

4. There was no ‘‘sympathy”’ strike here be-

cause all local unions and their members

had a common and direct interest in the out-

OR Ae Ge Se 6-0 cc nsdccccsncecsces 18

B. The Footnote Reference in Buffalo Forge to

Armco Steel and Other Appellate Court Deci-

sions Was Not Intended to Bar Injunctions

Against Wildcat Strikes ...............046. 19

6k pekde beekssciesdaneuesebaaanes 21

i CITATIONS

Page

Armco Steel Corp. v. UMW4A, 423 U.S. 877 (1975),

Pere 19, 21

Boys Markets, Inc. v. Retail Clerk’s Local 770, 398

Ss SE ED ic i dekdd cee og pee 14, 16-18, 20

Buffalo Forge v. United Steelworkers, —— U.S. —.,

Oe TGA, GEG CIITOD oc ccc cccvcccccccccocsses 2, 13-21

Island Creek v. UMWA, 423 U.S. 877 (1975), 96 S.Ct.

GP te ME Nekon dcdcundncedenccsensecdecs 20

United Mine Workers, 179 NLRB 479 SD aovhuous 19

IN THE

Supreme Court of the Untied States

Ocrosrr TERM, 1975

No. 75-1894

Unitep Mine WorKERS OF AMERICA, ET AL.,

Petitioners,

v.

Winpsor Power Hovse Coat Company,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Bituminous Coal Operators’ Association, Inc.,

herein called ‘‘BCOA’’, not having received consent

of the Petitioner, hereby requests leave of the Court

| to file the enclosed Brief, Amicus Curiae, in the above

case.

BCOA’S INTEREST AND WHY THE

FILING IS DESIRABLE

BCOA is a national association of bituminous coal

producers, organized in 1950 and continuing in being

until the present time. BCOA has approximately 50

2

direct members and some local coal association mem-

bers, including the major coal producers in all of the

bituminous coal mining states. Its members produce

about 75 percent of the coal mined under the National

Bituminous Coal Wage Agreement. BCOA negotiates

and assists in interpreting this Agreement.

BCOA was organized for the purpose of attempting

to help bring stability out of chaos in employer-em-

ployee relations in the coal industry. These efforts

have been successful to a large degree, but the con-

tinued increase in the incidence and magnitude of

wildeat strikes in recent years has presented an im-

minent threat to the production of coal and to the

stability of employment in the coal industry.

This case is before the Court on a Petition for a

Writ of Certiorari by the United Mine Workers of

America, and Respondent, Windsor Power House

Coal Company, will file on this date a Response join-

ing in the request for the Writ. If the Writ is issued,

the decision should establish legal guidelines to de-

termine the application of the recent Buffalo Forge

decision, USS. , 96 §.Ct. 3141 (1976), to the

recurring wildcat strikes in the coal industry. This

will have substantial and even crucial impact on the

effectiveness and integrity of the agreements between

BCOA and the United Mine Workers of America,

and on the ability of the bituminous coal industry to

meet the Nation’s need for coal.

BCOA’s members have over a period of years felt

the costly impact of recurring wildeat strikes, some

affecting virtually the entire industry. Miners, wi-

dows, and pensioners have al8@ suffered great losses.

The industry has just completed a four-week wildcat

tet ont ere

tee eR | Ares RE —_

3

strike which had idled over 100,000 coal miners in all

the bituminous coal producing states.

All BCOA members will be affected by the decision

of this Court.

WuererorE, BCOA moves the Court to allow the

filing of the Brief, Amicus Curiae, which is submitted

herein with the requisite number of printed copies.

Respectfully submitted,

Guy FARMER

Farmer, Shibley, McGuinn & Flood

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorney for Bituminous Coal

Operators’ Association, Ine.

August 18, 1976

ee

_

IN THE

Supreme Court of the Untied States

OcToBER TERM, 1975

No. 75-1894

UniTep Mine Workers OF AMERICA, ET AL.,

Petitioners,

v.

Winpsor Power Hovse Coat Company,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

| BRIEF AMICUS CURIAE

OF BITUMINOUS COAL OPERATORS’, INC.

BCOA’S INTEREST

The Bituminous Coal Operators’ Association, Inc.,

herein called ‘‘BCOA’’, is a national association of

coal operators, organized in 1950 for the purpose of

negotiating and assisting in interpreting BCOA’s na-

tional agreements with the United Mine Workers of

America, herein called ‘‘UMWA.’’ BCOA has ap-

proximately 50 members who operate in all of the

bituminous coal mining states and who collectively

produce approximately 75 percent of the bituminous

coal mined under the National Bituminous Coal Wage

Agreement of 1974, herein called the ‘‘1974 Agree-

ment.”’

6

BCOA was formed against the backdrop of the

labor strife in the coal industry during the 1940’s, a

period characterized by strikes and Government seiz-

ures of the coal mines. BCOA’s purpose was to create

more stable labor relations and to establish and main-

tain harmonious relationships between the coal opera-

tors and their employees and their employee repre-

sentative, the UMWA. These efforts were successful

in that since the early 1950’s a succession of national

labor agreements have been negotiated between BCOA

and the UMWA without any seriously prolonged or

crippling economic strikes. However, during recent

years, particularly from 1974 to the present, escalating

wildcat strikes are threatening to create labor chaos in

the coal industry.

The latest contract renewal was the 1974 Agree-

ment which became effective in December 1974 to run

for a three-year period. This Agreement was hailed

as one of the most progressive labor agreements ever

negotiated. It provides for wage and benefit levels

which are at least as beneficial to the miners as those

in any other industry. It also contains provisions for

the handling of grievances and for various types of

expedited arbitration over a broad range of issues.

All local grievances, disputes or local trouble of any

kind is subject to final and binding settlement through

the grievance-arbitration procedures of the Agree-

ment. There is no labor agreement of record that con-

tains any broader grievance-arbitration clause.

The provisions for grievance handling and arbitra-

tion in the 1974 Agreement are not moribund. They

are alive and functioning. Since September 1975, over

2,000 grievances have been submitted to arbitration

7

under the Agreement. This is in contrast to earlier

years when about 600 to 700 grievances were arbi-

trated each year. The grievance-arbitration procedures

are equitable and readily available to the miners, and

they are being used by the vast majority of the coal

miners. One new feature of the arbitration process

added in 1974 was the provision for a National Arbi-

tration Review Board established for the purpose of

reconciling conflicts in panel arbitrator decisions and

for bringing about uniformity in the interpretation

of the National Agreement.

But, unfortunately, there are a few coal miners

who from time to time take the law in their own

hands and engage in and foster wildcat strikes over

an arbitrable local grievance or dispute. These local

strikes are sometimes escalated into a widespread

national wildcat strike. Such escalation is normally

accomplished by roving ‘‘stranger’’ pickets.

Despite the bright promise of the 1974 Agreement,

labor stability in the coal industry has steadily wors-

ened since that Agreement was signed. There were

more wildcat strikes in the bituminous coal industry

in 1975 than ever before in history, and 1976 will be

the worst year yet. In 1975, approximately 16 million

tons of production were lost due to wildcat strikes;

the miners’ health and benefit funds lost approxi-

mately 22 million dollars in revenue; coal miners lost

approximately 79 million dollars in wages; and the

ability of the bituminous coal industry to meet the

nation’s increasing fuel requirements was, and con-

tinues to be, placed in jeopardy.

As this brief is being written, there is a wildcat

strike in progress going into its fourth week, engulf-

8

ing all or part of the major coal producing states.

It is estimated that over 100,000 coal miners have

been idled by this wildeat strike which started at a

single mine in West Virginia because of a dispute

over the classification of one job.

This local dispute was over a clearly arbitrable is-

sue, and was in fact arbitrated. Yet it has been the

precipitating cause of the shutdown of about two-

thirds of the total national production of bituminous

coal. It has already inflicted severe losses on the coal

miners, the coal industry, the Benefit and Pension

Funds, the coal communities, the coal states, and the

Nation.

Apart from the other astronomical economic losses

arising from these wildcat strikes, they pose an im-

minent threat to the pension and health benefits of

the active miners and the 80,000 pensioners.

In the 1974 Agreement, the mine operators agreed

to double their contributions to these Trust Funds and

dramatically increased the pensions both for present

pensioners and for the future pensions of active

miners. The health and medical benefits plans in the

bituminous coal industry are among the most liberal

in the Nation.

But, the contributions to these Trust Funds by em-

ployers are based on a combination of tons of produc-

tion and cents per hour for hours actually worked.

Consequently, their financial stability has been threat-

ened by the rising level of wildcat strikes to the point

where the two 1950 Trusts (the Pension Trust and the

Benefit Trust for Retired Miners) are already in

serious trouble. The 1950 Benefit Trust is now bank-

rupt, and the 1950 Pension Trust is running a deficit.

9

The Board of Trustees, the Chairman of which is ap-

pointed by the UMWA, on four occasions has issued

public statements giving warning of the damage to

the Trust Funds arising from the recurring incidence

of wildcats. In a release, dated July 30, the Trustees

state that the 1950 Benefit Trust (providing benefits

for retired miners) is operating at a deficit and has

no financial reserves. It also states that the loss to

the Trusts arising from the current strike is esti-

mated at $800,000 per day. This has since risen to 1.2

million dollars a day.

BCOA and its members have a grave and continuing

interest in preserving the integrity of the periodic

agreements negotiated with the UMWA. BCOA and

its members also have a grave and continuing interest

in preserving the grievance-arbitration procedures of

those agreements and in maintaining employment sta-

bility and production in the bituminous coal industry.

BCOA and its members have a similar direct interest

in the stability of the Pension and Benefit Trusts.

BCOA believes that these interests should be shared

by the UMWA and its members and constituent bodies

throughout the industry; and finally, the threat which

wildcat strikes present to these interests should be

the concern of the public as well.

Recurring and escalating wildcat strikes, to our

knowledge, are rare in other industries, but are a

serious and mounting threat to the stability of the

coal industry.

BCOA is dedicated to encouraging the use of the

grievance-arbitration procedures of the 1974 Agree-

ment to settle disputes, and generally these proce-

dures are being used. BCOA knows of no instance

10

where a mine operator has failed or refused to arbi-

trate a local dispute of any kind. The problem of the

wildeat strike arises where a few strong-willed men

for reasons known only to them flaunt these proce-

dures, and engage in spreading wildcat strikes.

These wildcat strikes are usually spread by roving,

or ‘‘stranger’’, pickets. In the normal case, as is true

here, these ‘‘stranger’’ pickets conceal their identities.

They are aided in their destructive conspiracy by the

tradition of UMWA members to cease work when-

ever a picket or pickets appear at their mines, re-

gardless of from whence they come, their identities,

or the equity or lack thereof of their cause. Thus is

the stage set for a handful of men to create havoc

and industrial anarchy in the bituminous coal in-

dustry.

BCOA does not believe in nor advocate the settle-

ment of labor disputes in the courts. BCOA encour-

ages the settlement of disputes by the grievance-arbi-

tration procedures of the agreement. BCOA is aware

that some miners in West Virginia have attacked the

courts and have attacked the industry for taking court

action against wildcat strikes. BCOA can only say

that these attacks are unwarranted and based on dis-

torted reasoning. In the bituminous coal industry, until

the coal miners accept it, the grievance-arbitration sys-

tem, as experience has shown, will not work without

the aid of the courts. BCOA members only have gone

to the courts in order to attempt to channel arbitrable

issues away from the picket line and into the peaceful

procedures which were mutually agreed upon between

BCOA and the UMWA. Recourse to the courts to

preserve the integrity of the agreement has always

been a last resort. But it is at times a necessary one.

Without the courts, resort to arbitration will be volun-

11

tary, although written as mandatory; and wildcat

strikes will go unchecked until they destroy the in-

tegrity of the national agreement which all parties

have pledged to uphold, and undermine the stability

of employment and production in the bituminous coal

industry.

Because of its direct and overriding interest in im-

proving labor relations, promoting labor peace, in-

suring stability of employment, and encouraging re-

spect for the agreement, BCOA files this brief to

respectfully bring to the attention of this Court the

scope and seriousness of the issues which are here

brought before it.

Without intent to overstate, BCOA believes that

the future stability of labor relations and employment

in the bituminous coal industry, the future of the

United Mine Workers, and the future of the concept

of a national labor agreement, will, to a large extent,

depend upon the ultimate resolution of the issues here

presented.

The Nature of Wildcat Strikes in the Coa) industry

Wildcat strikes typically start with a strike at a

mine over some grievance or dispute which is clearly

arbitrable under the national agreement. The local

union, or a union member, chooses not to arbitrate and

goes on strike. One or more men walk out and the

others blindly follow. The mine is then on strike.

Unless the strike is spread by roving pickets, the

single mine strike normally lasts a day or two and

the men return to work. Several wildcat strikes like

these occur without fail nearly every day.

The second phase of a typical wildcat strike occurs

when the strikers at the originating mine fan out and

12

picket out other mines. They do not picket openly,

but covertly. They do not carry signs or proclaim

their cause. They do not picket in the customary

sense. They come to a mine in roving caravans, shut

it down, and move on to another mine, returning later,

if necessary, to shut it down again. Their tactics are

successful largely because of the miners’ tradition of

ceasing work when a ‘‘picket’’ appears at their mines.

Fear also plays its part. It is common practice for

the miners at a mine closed by roving pickets to in

turn picket out neighboring mines so that there is a

growing momentum and a snow-balling effect. This

explains why in the current work stoppage (August

1976) fewer than 200 miners at one mine of Cedar

Coal in Boone County, West Virginia, did, within

a few days, cause the shutdown of most of the bitumi-

nous coal mines in the seven bituminous coal produc-

ing states and idled over 100,000 miners.

We now turn to a discussion of the case presently

before this Court.

QUESTION PRESENTED

BCOA adopts the statement of the question pre-

sented in the Windsor Power response to the Peti-

tion for a Writ of Certiorari.

Perhaps more simply stated the question is:

Whether a wildcat strike in the bituminous coal

industry—precipitated over an arbitrable issue—is

enjoinable against all local unions participating in

the strike where all local unions and their members

have a direct interest in the underlying arbitrable

dispute by reason of the existence of a single multi-

employer unit and multi-employer contract containing

terms and provisions common to all.

13

STATEMENT OF THE CASE

Shortly after the 1974 Agreement was executed in

December 1974, a dispute arose between North Amer-

ican Coal Corporation, a member of BCOA, and the

UMWA over the meaning and application of the

‘Helper Clause’’ in the 1974 Agreement. This pro-

vision was new in the 1974 Agreement and appears in

Article V. It provides, in effect, for the employment

of helpers on certain mining machines and equipment.

North American and the Union disagreed on the

meaning of this provision as applied to a machine

called a ‘‘Roof Bolter.’”’ When the dispute could not

be resolved through the grievance procedure, the

Union, rather than arbitrate the issue, went on strike.

When the North American locals went on strike,

they sent out pickets to the mines of otiicr companies

and shut them down as well.

One of these mines was the Beech Bottom Mine of

Windsor Power House Coal Company. When the

pickets showed up at the Beech Bottom Mine, the

miners at that mine failed to show up for work. The

pickets did not identify themselves and neither the

Beech Bottom local nor the UMWA District made any

effort to identify them or to determine who they were

or why they were picketing. Union members testified

that the Beech Bottom miners were simply following

a tradition of not crossing a picket line. Other wit-

nesses testified that they refrained from work be-

cause of fear of violence. Another union witness testi-

fied that he thought the pickets were college students.

The essential element of Buffalo Forge of a “‘sym-

pathy”’ strike was not present.

14

Under the facts, and after a full hearing, the Dis-

trict Court issued a preliminary injunction under

Boys Markets which was upheld by the Fourth Cir-

cuit Court of Appeals.

The Union petitioned for review and Windsor

Power joined in the Petition. BCOA joins in the re-

quest that the Court grant the Writ.

REASONS FOR GRANTING THE WRIT

BCOA joins in the Petition for a Writ because it

strongly urges the Court to review this case and

clarify Buffalo Forge as it applies to this recurring

type of wildcat strike in the bituminous coal industry.

The issue is one of national importance. An expedi-

tious resolution is imperative in the national interest.

Unlike other unionized industries where wildcat

strikes are a rarity, the coal industry has become in-

creasingly victimized by wildcat strikes arising over

arbitrable disputes. This is despite the fact that the

national agreement has one of the broadest and most

available grievance-arbitration procedures in exist-

ence. Every contract dispute and ‘“‘local trouble”’ of

any kind is subject to grievance-arbitration. Moreover,

as already stated, the 1974 Agreement provides for a

national Arbitration Review Board to reconcile dif-

ferences between panel arbitrators as to the meaning

and interpretation of the national agreement.

By and large, the UMWA members observe and

follow this procedure. But, on occasion, employees at

a particular mine spurn these arbitration procedures

and resort to economic force to gain their demands.

When this happens, a few recalcitrant men are able

to spread the wildcat strike to other locals and to

15

shut down an entire UMWA District, or an entire

state, and even the entire bituminous coal industry.

The result has been disastrous. There have been

regularly recurring wildcat strikes in the coal in-

dustry, and they have been escalating. It is not an

overstatement to say that we are nearing industrial

anarchy in the coal fields.

The ink was hardly dry on Buffalo Forge, which

was issued on July 6, when on July 19, a strike broke

out in West Virginia over a grievance that was both

arbitrable and arbitrated. The Union did not like the

result and, by the use of roving pickets, shut down

practically the entire industry for four weeks. The

costs to all concerned were enormous and irremedi-

able. Yet, for the most part, District Judges, over-

reacting to Buffalo Forge, refused either to issue or

to enforce injunctions.

While this strike eventually will end, there can be

no doubt that similar destructive stoppages will recur

at frequent intervals and, if experience in recent

years is any guide, they will escalate.

As previously stated, in 1975, approximately 16

million tons of production were lost due to wildcat

strikes, and 1976 will exceed these losses. The loss of

wages to miners is disastrous; and the Benefit and

Pension Funds for iiiners have suffered grave losses

which now pose an immediate threat to their financial

stability, and to the health and pension benefits of

current and retired miners.

The International Union has proven itself incapable

or unwilling to take effective action to stem this tide.

16

The fact is that only the courts can provide a rem-

edy. BCOA does not believe that the Court in Buffalo

Forge intended to grant to a few willful men a roving

license to destroy the bituminous coal industry, the

coal miners, their Union, and to endanger the public

welfare.

A. Boys Markets Not Buffalo Forge Should Control the Equitable

Right to Injunctions Against Wildcat Strikes in the Coal

Industry

l. The Court in Buffalo Forge reaffirmed rather than overruled

Boys Market

Some of the district courts appear to have con-

strued Buffalo Forge as overruling Boys Markets.

This is not the case. Buffalo Forge reaffirmed the basic

thrust of Boys Markets which endorses the use of the

Federal Courts to uphold the sanctity of the arbitra-

tion process.

Buffalo Forge simply holds that where there is no

underlying arbitrable dispute which is being under-

mined by a sympathy strike, Boys Markets does not

apply.

There was no underlying arbitrable dispute in Buf-

falo Forge. In that case, there were two separate local

unions representing two separate groups of employees

in two separate bargaining units. One had its own

separate contract and the other was negotiating one.

The dispute over the negotiation of an agreement was

not arbitrable and the union striking in sympathy had

no arbitrable dispute other than the sympathy strike

itself.

Thus, there was no underlying arbitrable issue of

any kind, and the majority held that for this reason

the integrity of the arbitration process was not under-

mined or endangered by the sympathy strike.

~

17

Here, the strike started and spread over an arbi-

trable dispute. Since the original strike at the orig-

inating mine was arbitrable, the spread of the strike

was designed solely for the purpose of increasing the

pressure on the industry to yield. This undermined

and threatened the integrity of the arbitration proce-

dure, and was therefore enjoinable against all partici-

pating locals.

2. The original precipitating strike in Buffalo Forge was pri-

marily a legal strike, whereas here the original precipitating

strike was in derogation of the arbitration procedure and

enjoinable

The original strike in Buffalo Forge was a legal

strike, not over an arbitrable issue, and therefore not

enjoinable. Just the opposite was true here. The orig-

inal precipitating strike was in derogation of the ar-

bitration process and enjoinable. It would defy all

logic and commonsense to hold that where the original

strike is enjoinable under Boys Markets, a strike in

support of the unlawful enjoinable strike is itself law-

ful and unenjoinable. Both are equally in opposition

to the national policy favoring the arbitration of

disputes.

In Buffalo Forge, the Court stated:

‘“*. .. The District Court found, and it is not now

disputed, that the strike was not over any dispute

between the Union and the employer that was

even remotely subject to the arbitration provi-

sions of the contract. The strike at issue was a

sympathy strike in support of sister unions nego-

tiating with the employer; neither its causes nor

the issue underlying it were subject to the settle-

ment procedures provided by the contract between

18

the employer and respondents. The strike had

neither the purpose nor the effect of denying or

evading an obligation to arbitrate or of depriving

the employer of his bargain.’’ (emphasis added)

The situation presented here is wholly distinguish-

able from Buffalo Forge. Overriding all else, the es-

sential difference between Buffalo Forge and this case

is the one emphasized by the Supreme Court in the

above quote from the majority opinion. In Buffalo

Forge, the strike had neither the purpose nor effect of

evading an obligation to arbitrate or of depriving the

employer of his bargain. In this case, that was the

whole purpose of the strike and the accompanying

picketing. That conclusion flows so patently from the

facts that there is no possible basis for refuting it.

3. The more widespread the strike the greater the injury to the

arbitration process

It is obvious that the strikers were, willy-nilly,

supporting a massive assault on the arbitration proc-

ess. To hold that such a widespread strike immunizes

the local union from Boys Markets is purely and

simply to condone mass lawlessness.

4. There was no “sympathy” strike here because all local

unions and their members had a common and direct interest

in the outcome of the dispute

A sympathy strike, as Justice Stevens said in Buf-

falo Forge, ‘‘does not directly further the economic

interests of the members of the striking union or con-

tribute to the resolution of any dispute between that

local, or its members, and the employer.” Slip

Opinion, p. 17.

19

The NLRB has held that BCOA constitutes a single

multi-employer bargaining unit, 179 ALRB 479

(1969). There is also a single national agreement with

uniform terms and conditions.

Given the existence of a single agreement in a single

multi-employer bargaining unit, and an arbitration

procedure designed to insure conformity of interpre-

tation and application, BCOA submits that all mem-

bers of the Union employed by members of BCOA

are mutually bound to abide by the common griev-

ance-arbitration procedures. In this unitary relation-

ship, the concept of a sympathy strike does not exist.

The term ‘‘sympathy strike’’ connotes separateness

of unions, separateness of bargaining units, and sep-

arateness of employee interests. That is not the situa-

tion here. All coal miners under BCOA’s national.

agreement with the UMWA have a direct and common

interest in all disputes involving the interpretation

and application of the national agreement. When any

of them initiates a strike over an interpretation of the

agreement, and others go out in support of the orig-

inal union’s demands, they are all, in truth and in

fact, striking over a dispute in which they all have a

common interest.

B. The Footnote Reference in Buffalo Forge to Armco Steel and

Other Appellant Court Decisions Was Not Intended to Bar

Injunctions Against Wildcat Strikes

A question may arise as to footnote 10 in the Ma-

jority Opinion in Buffalo Forge. But this footnote

must be read with care. It has only a narrow applica-

tion. Wha. it states is that to the extent that this and

other Courts of Appeals have assumed that a manda-

tory arbitration clause implies a commitment not to

engage in “‘sympathy”’ strikes, they are wrong.

20

This statement is carefully drawn. It does not say

that Boys Markets injunctions can no longer be issued

against wildcat strikes in the coal industry. It does not

state that the decisions of the Appellate Courts up-

holding such injunctions were necessarily wrong.

These decisions were only declared to be wrong to the

extent that the Appellate Courts may have assumed

that there was an implied commitment not to engage

in sympathy strikes. In the same term in which the

Supreme Court granted review and decided Buffalo

Forge, the Court denied certiorari in both Island

Creek v. UMWA, and Armco Steel v. UMWA, 423

U.S. 877 (1975), allowing to stand the decision of the

lower courts upholding the issuance of injunctions

against wildcat strikes in the coal industry.

In our opinion, footnote 10 is not applicable to this

ease for the reason that, as we have shown, what this

Court has before it is not a sympathy strike within

the meaning of Buffalo Forge. Because of the unity

of contract and the commonality of interests among

UMWA members, and their direct and continuing

interest in the underlying dispute, the members of the

Beech Bottom local have an equally direct interest in

this dispute, as did the North American locals where

the dispute was first precipitated.

This strike was not a sympathy strike by a sister

union supporting another union which was striking

over contract negotiations for its own separate agree-

ment, or engaging in any other legal primary sirike.

This strike was part of a coordinated effort to force

upon Windsor Power, and in consequence upon all

companies party to the national agreement, the union’s

interpretation of a substantive contract provision com-

mon to all UMWA members and to all BCOA com-

21

panies. Viewed in this correct light, all participating

locals were combined in striking to evade their obliga-

tion to arbitrate the dispute.

CONCLUSION

For the above reasons, BCOA supports the Appeals

of Windsor Power House Coal Company, and ur-

gently requests the Court to grant the Writ so that the

application of Buffalo Forge to wildcat strikes in the

coal industry may be expeditiously clarified.

Respectfully submitted,

Guy FARMER

Farmer, Shibley, McGuinn & Flood

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 331-7311

Aitorney for Bituminous Coal

Operators’ Association, Inc.

August 18, 1976