Petition — United States Steel Corp. v. United Mine Workers of America

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In THE |

Supreme Court of the United States "="

OCTOBER TERM, 1976

7671467

UNITED STATES STEEL CORPORATION,

Petitioner,

v.

UNITED MINE WORKERS OF AMERICA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT and APPENDICES

JAMES H. MCCONOMY

HARLEY N. TRICE II

LAWRENCE E. FLATLEY

REED SMITH SHAW & McCLAY

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner,

United States Steel Corporation

Of Counsel:

BILLy M. TENNANT

SMITH BROS. LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

PAGE

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Reasons for Granting the Writ

The Decision Below Is Contrary To Federal

Labor Policy And In Direct Conflict With Deci-

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TABLE OF CITATIONS

CASES PAGE

Boys Markets, Inc. v. Retail Clerks Union, 398 U.S.

ER LR ATER Se OE A AE 11, 12,15

Buffalo Forge Co. v. United Steelworkers of Amer-

ica, — U.S. —, 44 U.S.L.W. 5346 (1976) ............

seaastaneslanieamndanaatiemindaisaiall 8, 9, 10, 11, 12, 13, 14, 15, 16

Gateway Coal Co. v United Mine Workers, 414 U.S.

SET MII dcuinissiesucscibiiadialiaiamshbiheniliaaetiabinaainndiessiedl 9, 15, 16

Republic Steel Corp. v. UMW, — F.Supp. —, No.

76-92 (W.D.Pa. March 21, 1977) .............0......... 12

Southern Ohio Coal Co. v. UMW, — F.2d —, No. 76-

2031 (6th Cir. February 11, 1977)............000........ 12

Steelworkers v. Warrior & Guif Co., 363 U.S. 574

ET TE TALI IE SCE LI EA RE TO 13

Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95

SUIIIIIEY cccsnhlesiieiesnajicensedduaianiiantimaninpinipneanisuiédnedl 14, 15, 16

STATUTES

Labor-Management Relations Act of 1947, as

amended (61 Stat. 136 et seq.) (29 U.S.C. §141

Er -TIED: ‘viisbiedcadieneninistiintscenbainindnieadiieniiiaiiednieieeuaiseren 3

Section 203(d) (29 U.S.C. §173(d) ) .............0...... 3, 14

Section 301 (29 U.S.C. §185) ..................00.. 2, 3, 4,15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

UNITED STATES STEEL CORPORATION,

Petitioner,

Vv.

UNITED MINE WORKERS OF AMERICA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT and APPENDICES

United States Steel Corporation, Petitioner, re-

spectfully prays that a writ of certiorari issue to review

the decision of the United States Court of Appeals for

the Third Circuit entered in the above-entitled case on

December 20, 1976, rehearing denied January 25, 1977,

in which the court reversed the district court and re-

manded the cause with directions to enter judgment in

favor of all respondents! notwithstanding the jury ver-

dict.

1. Respondents are individually designated in the

Statement of the Case, infra, p. 4.

Jurisdiction.

OPINIONS BELOW

The Opinion and Order of the district court dated

November 15, 1975, is unpublished. (Appendix A, infra,

pp. 1a-10a). The Opinion of the United States Court of

Appeals for the Third Circuit is reported at 548 F.2d 67,

and was filed on December 20, 1976. ( Appendix B, infra,

pp. 11a-28a).

JURISDICTION

The judgment of the court of appeals was entered

on December 20, 1976, ( Appendix C, infra, pp. 28a-29a).

A petition for rehearing, timely filed, was denied without

opinion on January 25, 1977. ( Appendix D, infra, p. 31a).

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1). The jurisdiction of the district court

was by virtue of 29 U.S.C. §185.

e.9

Statutes Involved.

QUESTIONS PRESENTED

Where a national labor agreement between an inter-

national union on behalf of itself and its members and

an employer association on behalf of its member-em-

ployers contains both an unusually broad arbitration

clause and a separate promise to maintain the integrity

of the agreement by exclusive resort to arbitration for

settlement of unresolved disptites, but dces not contain

an express no-strike clause,

1. Does a strike by one local union in sympathy

with the illegal strike of a sister local over an arbitrable

dispute constitute a breach of that agreement?

2. Does a finding of inaction in terminating a

strike in sympathy with an illegal strike over an arbi-

trable dispute render the international union liable in

damages for permitting the spread of the illegal strike?

3. Does the general verdict in favor of the em-

ployer entitle it to an inference that the jury found the

instant strike was over a safety dispute as claimed at

trial by the Union, and that the Union’s failure to arbi-

trate was not excused by the existence of abnormally

dangerous conditions for work?

STATUTES INVOLVED

This case involves the interpretation and applica-

tion of Sections 203(d) and 301 of the Labor-Manage-

ment Relations Act of 1947, as amended, 61 Stat. 136

et seq., 29 U.S.C. §141 et seq. (hereinafter the “Act’’).

Relevant portions of the Act are set forth in Appendix E,

infra, p. 31a.

Statement of the Case.

STATEMENT OF THE CASE

On August 19, 1969, Petitioner, United States Steel

Corporation (the “Company”) brought this action

against the United Mine Workers of America Interna-

tional (“International”), United Mine Workers of

America District 4 (“District 4”), and United Mine

Workers of America Local 6321 (‘Local 6321”), (here-

inafter collectively referred to as the “Union” ), pursuant

to Section 301 of the Labor-Management Relations Act

of 1947, as amended, 29 U.S.C. §185, seeking, inter alia,

monetary damages against the Union for losses result-

ing from a work stoppage at the Company’s Robena Mine

complex in Greene County, Pennsylvania.”

At all times material to this proceeding, the Com-

pany and the Union were parties to the National Bi-

tuminous Coal Wage Agreement of 1968 (the “Agree-

ment”), Exhibit A to the Complaint, relevant portions

of which are reproduced in Appendix F, infra, pp. 32a-34a.

The “Settlement of Local and District Disputes” provi-

sion of the Agreement contained a detailed grievance

procedure and a broad arbitration clause which provided

for compulsory, final and binding arbitration of “differ-

ences between the Union and the Company as to the

meaning and application of the provisions of [the]

Agreement...” and “... differences... about matters

not specifically mentioned in [the] Agreement...” and

“ .. any local trouble of any kind [arising] at the mine.

...” Appendix F, infra, pp. 32a-33a. The Agreement addi-

tionally contained a pledge to “maintain the integrity of

2. The Company also sought a preliminary injunc-

tion ordering the Union to cease the work stoppage.

After the work stoppage ended, the Company abandoned

its request for injunctive relief.

Statement of the Case.

this contract” wherein the parties agreed that all dis-

putes and claims which were not settled by agreement

would be settled “by the machinery provided in the

‘Settlement of Local and District Disputes’ article of

[the] Agreement... .” Appendix F, infra, p. 34a.

The work stoppage, which began on August 17, 1969,

resulted from the appearance of six individuals, who were

not employee-members of Respondent Local 6321, at the

entrance to two of the four Robena Mines of the Com-

pany shortly before a scheculed shift change. (Ap. 23a;

Tr. 96, 113).

It was uncontested, and the district court found that

these individuals were United Mine Workers members

from Christopher Coal Company’s Humphrey No. 7 Mine

in West Virginia. (Appendix A, infra, p. 2a). The pickets

were protesting the discharge of five local union officers

and committeemen. (Tr. 31-32, 63-66, 274 and 287). The

dispute at the Humphrey Mine arose over a job bidding

grievance. (Tr. 35). After the discharge, Humphrey

employees began picketing other mines throughout West

Virginia and Pennsylvania. (Tr. 63).

3. Reference to pages of the transcript of testi-

mony printed in the appendix before the court of ap-

peals are hereinafter cited as “Ap. ......a”; references to

pages of the transcript not printed in the appendix are

hereinafter cited as “Tr. ....”’.

4. The arbitrability of the underlying dispute caus-

ing the prim strike was not contested at trial, and

the record fairly establishes that the dispute was over

an arbitrable issue-job bidding. (Tr. 306, 324-327; Re-

spondents’ trial ibit A and Appendix A, infra, p.

2a). Moreover, job bidding and discharge disputes are

expressly made arbitrable under the Agreement. Ap-

pendix F, infra, p. 33a.

Statement of the Case.

Although no stranger pickets were present at any of

the four Robena Mines or coal preparation plant from

and after 4:00 p.m., Monday, August 18, 1969, until the

work stoppage ended on August 24, 1969, employee-

members of the Union failed to report for work as

scheduled at the Robena Mine complex throughout this

period. (Tr. 114-115, 119, 127, 135, 153-158, 271-272, 354

and 357).

During the entire work stoppage, no employee-mem-

ber of the Union reported any threats, violence or van-

dalism to the Company. (Tr. 98-101, 103, 112, 115, 119,

126, 153-154, 156, 161, 316-317).

On and after Sunday, August 17, 1969, the Company

notified the International and the District of the strike

and requested them to take immediate action to termi-

nate it. (Ap. 16a-20a, 34a; Tr. 338, 346) .5 The Company

was advised by District 4 officers, however, that no action

would be taken to terminate the Robena strike until

after the Union learned what action had been taken to

resolve the Humphrey dispute. (Ap. 34a). Cecil Metcalf,

Secretary-Treasurer of District 4, advised the Company

on Wednesday, August 20, 1969, that “we are not going

to set a meeting [for Local 6321] until we find out what

the Humphrey miners are going to do.” (Ap. 35a, 62a) .®

5. At the time of this strike, District 4 was in

trusteeship; officers of District 4 were appointed by the

International, and the International otherwise con-

trolled government of the District. (Ap. 20a; Tr. 322-

323, 347-348 and 352).

6. Traditionally, members of the Union will not re-

turn to work while a meeting is in recess (Ap. 34a; Tr.

275), and the Local meeting held the day before, and

attended by Humphrey miners, had been recessed. (Ap.

29a-30a; Tr. 257).

Statement of the Case.

District 5 representative Roland Nuccetelli reported

to the Company on August 20, 1969, that the presidents

of United Mine Workers locals in District 5 refused to

hold local meetings until the Humphrey miners returned

to work. (Ap. 36a-38a).

On Saturday, August 23, 1969, Metcalf advised the

Company that progress was being made in the resolution

of the Humphrey strike, and that he planned to attend

the Robena Local meeting scheduled for that evening.

(Ap. 38a-39a). At that meeting, the Robena local voted

to return to work at 12:01 a.m. the following Monday.

(Ap. 39a).

During this conversation, Metcalf mentioned that

the Humphrey miners had threatened violence. (Ap.

40a). However, in prior conversations between Metcalf

and the Company, the only reason stated for the strike

had been the Humphrey dispute; in particular, on August

18, 1969, Metcalf stated to Elkins Payne, the Company’s

then superintendent of personnel services for the Frick

District, that once the Robena miners went out in sym-

pathy with the Humphrey miners, it would be difficult

to get them back to work. ( Ap. 28a, 40a-41a).

At trial, the Company contended that the work

stoppage was in sympathy with the Humphrey strike,

and therefore violated the Union’s implied obligation not

to strike. The Company further claimed that the Inter-

national and District 4 were liable for damages by reason

of their failure to take all reasonable action to end

the work stoppage. The Union contended that the work

stoppage was excused by reason of justifiable fear of

the employee-members for their personal safety and,

second, that the Union made every reasonable effort to

end the strike. The Union denied at trial that the work

Statement of the Case.

stoppage was motivated by sympathy for the cause of

the Humphrey miners. Appendix B, infra, p. 15a.

The district court judge charged the jury that the

grievance-arbitration provisions of the Agreement im-

pliedly prohibited work stoppages by employee-members

of the Union over arbitrable disputes, and that a work

stoppage in sympathy with the strike at the Humphrey

Mine would violate the Agreement. The judge further

charged that if employee-members stopped work “be-

cause of good faith apprehension of physical danger due

to abnormally dangerous conditions for work existing at

their place of employment, such conduct .. . would not

violate the contract.” Finally, the court instructed the

jury that if the work stoppage were “unauthorized,” all

three Respondents were obligated to use every reasonable

means to end the strike.

The jury returned a verdict in favor of the Company

and against all three Respondents. Subsequently, the

district court denied the Union’s Motion for Judgment

Notwithstanding the Verdict, or, in the Alternative, for a

New Trial, and the Union appealed.

On appeal, the United States Court of Appeals for

the Third Circuit reversed the judgment of the district

court and remanded the cause with directions to enter

judgment in favor of all three Respondents notwith-

standing the verdict.

The court of appeals, relying on this Court’s recent

decision in Buffalo Forge Co. v. Steelworkers, 44

U.S.L.W. 5346 (July 6, 1976),7 held that absent an ex-

7. Buffalo Forge, supra, was decided after the

Union’s coneal from the decision of the District Court

on post-trial motions.

9

Statement of the Case.

press no-strike clause, there was no possible basis for

implying from the existence of an arbitration clause a

promise not to strike that could have been violated by

the Robena strike. The court refused to acknowledge

any distinction between the bona fide, legal sympathy

strike in Buffalo Forge and the stranger picket “synil-

pathy” strike in the instant case, stating “... the Robena

strike was not over any dispute ‘between the Union and

the employer’ — between UMW and U. S. Steel — that

was subject to arbitration.” (Citation omitted). Appen-

dix B, infra, p. 23a.

The court of appeals also concluded that neces-

sarily implicit in the jury’s verdict were the factual

findings that the Robena strike was in Sympathy with

the Humphrey strike, and a rejection of the Union's

safety defense.’ By concluding that the jury had found

the strike to be a “sympathy” strike, the court below

avoided deciding the applicability of this Court’s deci-

sion in Gateway Coal Co. v. Mine Workers, 414 U.S. 368

(1974), to a refusal by union members to cross a

stranger picket line because of alleged threats of vio-

lence.

Finally, the court of appeals rejected the Com-

pany’s argument that, regardless of the liability of the

Local, the International and District 4 were liable to it

for their failure to take all reasonable steps to prevent

8. It is submitted that the Company, as verdict

winner, is entitled to the inference that the jury found

that the reason for the strike was the alleged fear of

the stranger pickets, but that such fear was not

prompted by an objectively ascertainable cause and

hence the stoppage was not justified. The Opinion of the

Court of Appeals deprived the Company of the benefit

of that inference.

10

Reasons for Granting the Writ.

the spread of an unauthorized and allegedly illegal strike

against another employer under the common labor agree-

ment. The court reached this conciusion on the principal

ground that the liability of the International and District

4 had been tried on a different theory—liability for in-

action in terminating the Robena strike.

Circuit Judge Garth, in his concurring opinion, simi-

larly applied Buffalo Forge, and concluded that a sym-

pathy strike cannot, as a matter of law, violate a con-

tract which does not contain an express no-strike clause.

REASONS FOR GRANTING THE WRIT

The Decision Below Is Contrary To Federal

Labor Policy And In Direct Conflict With

Decisions Of This Court

1. By its holding that a strike in sympathy with

an illegal strike over an arbitrable dispute under a com-

mon labor agreement cannot, as a matter of law, con-

stitute a breach of contract absent an express no-strike

clause, the decision of the court of appeals not only

misinterprets this Court’s decision in Buffalo Forge, but

also significantly and adversely affects the basic policy

of federal labor law favoring peaceful resolution of in-

dustrial disputes as a substitute for economic strife.

In Buffalo Forge, this Court held that notwithstand-

ing the arguable illegality of a strike in sympathy with

a concededly legal primary strike to secure a labor

agreement, such a sympathy strike was not enjoinable

pending arbitration of its legality under a labor agree-

ment containing an express no-strike clause. The Court

reasoned that the accommodation of the federal policy

11

Reasons for Granting the Writ.

favoring arbitration to the anti-injunction provisions of

Norris-LaGuardia, as articulated in Boys Markets v.

Retail Clerks Union, 398 U.S. 235 (1970), limited the

jurisdiction of federal courts to issue injunctions to

those cases where the arbitral process was jeopardized.

Vindication of the arbitral process by an injunction

pending arbitration was therefore unnecessary in Buf-

falo Forge, since the dispute between the parties was

the result of the strike, rather than the cause of the

strike, and the union offered to arbitrate the legality of

the strike.

This Court also observed, however, that absent an

express no-strike clause, there would have been no basis

for implying an obligation not to engage in a sympathy

strike which could have been violated by the Buffalo

Forge sympathy strike:

“Thus, had the contract not contained a no-

strike clause or had the clause expressly excluded

sympathy strikes, there would have been no possible

basis for implying from the existence of an arbitra-

tion clause a promise not to strike that could have

been violated by the sympathy strike in this case.”

(Citation omitted, emphasis added.) 44 U.S.

L.W. 5349-5350.

Ignoring the express limitation of this language to

strikes in sympathy with legal primary strikes, the

court of appeals concluded that Buffalo Forge estab-

lished that the absence of an express no-strike clause is

fatal to a claim that a sympathy strike constitutes a

breach of contract, notwithstanding the legality or

illegality of the primary strike:

12

Reasons for Granting the Writ.

“Where an obligation not to honor a stranger

picket line could arise only from the duty to arbi-

trate, however, it is unnecessary to arbitrate the

issue that Buffalo Forge settles in the Union’s

favor: whether a mandatory arbitration clause im-

plies a commitment not to engage in sympathy

strikes.”’

Appendix B, infra, fn. 13, p. 23a.

While the rationale of Boys Markets and Buffalo-

Forge may permit the conclusion that illegality of the

primary strike is irrelevant for purposes of determining

whether a sympathy strike may be enjoined, there is

no basis for concluding that the issue of whether the

sympathy strike is itself illegal under the contract is

not even arbitrable. In fact, Buffalo Forge never decided

the legality of the sympathy strike:

‘“‘Whether the sympathy strike the Union called

violated the no-strike clause, and the appropriate

remedies if it did, are subject to the agreed-upon

dispute-settlement procedures of the contract and

are ultimately issues for the arbitrator.”

44 U.S.L.W. at 5349.

It should be noted that the Sixth Circuit in Southern

Ohio Coal Co. v. UMW, .... F.2d ...., No. 76-2031 (6th Cir.

February 11, 1977), although conceding that the arbi-

tration provision of the 1974 agreement, which in rele-

vant part is virtually identical to the provision of the

instant Agreement, “could, on its face, include the re-

fusal to cross a picket line. . . ,” also incorrectly con-

strued Buffalo Forge as barring arbitration of the legal-

ity of a strike in sympathy with an illegal strike over an

arbitrable dispute. See also Republic Steel Corporation

13

Reasons for Granting the Writ.

v. UMW, ....F.Supp. ...., No. 76-92 (W.D.Pa. March 21,

1977), for a similar result. Moreover, the court of ap-

peals’ determination of non-arbitrability, based on its

reading of Buffalo Forge, directly conflicts with this

Court’s decision in Steelworkers v. Warrior & Gulf Co.,

363 U.S. 574 (1960), which established a firm presump-

tion of arbitrability for contract disputes.

By applying enjoinability as the test for illegality

of a sympathy strike where the labor agreement does

not contain an express no-strike clause, the court of ap-

peals ignored the important differences between the

Robena strike and the strike in Buffalo Forge:

1) The stranger picket line here was illegal, .

being an extension of an illegal strike over an arbi-

trable dispute. In Buffalo Forge, the primary dispute

and stoppage were legal; moreover, the sympathy

stoppage there was not solely the result of the pres-

ence of pickets but of avowed sympathy with the

purposes of the legal primary dispute;

2) The arbitration provisions undermined by

the illegal Humphrey strike were further under-

mined by the Robena strike, since those provisions

are contained in the common national Agreement.

Separate labor agreements and bargaining units

were involved in Buffalo Forge;

3) In addition to an unusually broad arbitra-

tion provision, the common labor agreement contains

a promise by the Union to maintain the integrity of

the contract by exclusive reliance on arbitration for

resolution of all disputes not settled by agreement.

Such language does not appear in the Buffalo Forge

agreement;

14

Reasons for Granting the Writ.

4) The Robena Union made no simultaneous

offer to arbitrate the legality of the strike. In Buf-

falo Forge, the union offered to arbitrate the legal-

ity of the strike immediately; and

5) The Robena Union denied the strike was

in sympathy with the Humphrey strike and denied

responsibility for it at trial. In Buffalo Forge, the

union authorized and espoused the stoppage.

These differences become even more important when

considered together with Section 203(d) of the Labor-

Management Relations Act of 1947, as amended (the

“Act’’), which provides that:

“(fjinal adjustment by a method agreed upon by

the parties is hereby declared to be the desirable

method of settlement of grievance disputes arising

over the application or interpretation of an existing

collective-bargaining agreement.”

In Teamsters Local 174 v. Lucas Flour Co., 369 U.S.

95 (1962), this Court found an implied obligation not to

strike over disputes which were subject to resolution

under agreed-upon contractual procedures notwithstand-

ing the absence of an express no-strike undertaking. The

obligation not to strike was implied in order to give

meaning to the agreement of the parties and to foster the

“basic policy” of federal labor law, emphasized in the Act,

favoring peaceful settlement of industrial disputes as a

substitute for economic warfare.

The same considerations present in Iwcas Flour are

present in this case, and require that an obligation not

to strike in sympathy with the illegal strike of a sister

union over an arbitrable dispute under a common labor

agreement be implied, especially where, as here, the com-

mon agreement contains both a broad arbitration pro-

15

Reasons for Granting the Writ.

vision and an express central obligation to maintain the

integrity of the labor agreement by submitting all dis-

putes not settled by agreement to arbitration.®

By not only preventing an employer from obtaining

equitable relief, but also barring an action by him under

Section 301 of the Act against his employees for damages

resulting directly from their participation in the illegal

strike of a sister union, the decision below condones the

spread of an illegal strike to neutral employers, thereby

undermining the very policy the federal courts have an

obligation to preserve.

In any event, legitimating a strike in sympathy with

the illegal strike of a sister union over an arbitrable

dispute is simply contrary to both federal labor policy

and the obligations, express and implied, of the Union

under the Agreement.

2. The decision of the court below, that a strike in

sympathy with an illegal strike over an arbitrable dis-

pute under a common labor agreement is not itself a

strike over an arbitrable dispute, is in conflict with this

Court’s decisions in Boys Markets, Inc. v. Retail Clerks

Union, 398 U.S. 235 (1970), as well as Teamsters Local

174 v. Lucas Flour Co., 369 U.S. 95 (1962) and Gateway

Coal v. UMW, 414 U.S. 368 (1974).

As a result of its misreading of Buffalo Forge, the

court of appeals concluded that sympathy strikes are

per se legal absent an express no-strike clause. Accord-

9. The Court of Appeals recognized that the Union

could be liable for failure to take all reasonable action to

prevent the spread of an unauthorized and allegedly

illegal strike at another employer under the Agreement,

but refused to decide the question, since in its view the

case had been tried to the jury on a different theory,

i.e., the liability of the Union for inaction in terminating

the Robena strike. Appendix B, infra, p. 24a-25a.

16

Reasons for Granting the Writ.

ingly, the court ignored the critical and controlling dis-

tinction between the sympathy strike in Buffalo Forge

and the “sympathy” strike in the instant case; the exist-

ence here of a single national labor agreement binding on

both striking unions.

By virtue of the national labor agreement, all

United Mine Workers members have a unity of interest

and a commonality of rights and obligations. Within the

commonality of obligations binding upon members of

the Humphrey and Robena locals was the duty to settle

all unresolved disputes arising under the national Agree-

ment by arbitration, especially in view of their promise

to maintain the integrity of the Agreement.

Thus, while appropriate in the context of Buffalo

Forge, the analysis utilized by the court below, concerning

whether there existed a dispute which the Company and

the Union were bound to arbitrate between themselves, is

inappropriate where, as here, the members of both strik-

ing unions are bound by a single labor agreement pro-

viding for arbitration of all unresolved disputes arising

under the common national Agreement. In such a case,

a strike in sympathy with an illegal strike over an

arbitrable dispute arising under the common labor

agreement clearly has the effect, if not the purpose, of

adopting the goals of the illegal strike, and frustrating

the agreed-upon dispute settlement mechanisms of the

labor agreement.

Since the Robena strike was clearly an enlargement

of the illegal Humphrey strike over an arbitrable dispute

arising under the national Agreement, the Robena strike

was a violation of the implied no-strike obligation of the

Agreement for which damages were properly awarded

by the jury under the authority of Lucas Flour, Boys

Markets, and Gateway Coal.

17

Conclusion.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this petition for a writ of certiorari should

be granted.

JAMES H. McCoNoMyY

HARLEY N. TRIcE II

LAWRENCE E. FLATLEY

REED SMITH SHAW & MCCLAY

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner,

United States Steel Corporation

Of Counsel:

BILLY M. TENNANT

Dated: April AA 1977

APPENDIX

|

la

Appendix A.

APPENDIX A—OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES STEEL CORPORATION,

Plaintiff

Vv . . .

. Civil Action

UNITED MINE WORKERS OF AMERICA; DIs- . No. 69-970

trict No. 4, UNITED MINE WORKERS OF

AMERICA; UNITED MINE WORKERS OF

AMERICA LOCAL No. 6321, Defendants.

Opinion

MILLER, J.

Pursuant to Section 301 of the Labor-Management

Relations Act (Act), 29 U.S.C. §185, United States Steel

Corporation (USS) sought and obtained monetary dam-

ages from the various defendant United Mine Workers

of America (collectively UMW) for breach of the 1968

collective bargaining agreement. The suit was brought

because of a work stoppage by employee-members of

defendants in August 1969 at one of plaintiff's coal min-

ing sites. During and at the close of trial defendants’

motions for a directed verdict were denied and the jury

returned a verdict for plaintiff in the amount of

$44,409.00. Presently before the Court are defendants’

amended motions for judgment notwithstanding the

verdict or, alternatively, for a new trial. We shall state

the facts in a light most favorable to the verdict winner.

Appendix A.

FACTS

. For approximately one week in August 1969, plain-

Uiff's Robena Mine Complex in Greene County, Pennsyl-

vania was shut down because employee-members of the

defendant United Mine Workers Local 6321 refused to

cross stranger picket lines set up by certain West Vir-

ginia coal miners.! This refusal caused a cessation of

work at Robena which in turn caused USS to suffer pro-

duction losses.

The collective bargaining agreement in force at the

time of this incident was the National Bituminous Coal

Wage Agreement of 1968.2 This labor contract does not

expressly prohibit strikes or honoring of picket lines. It

does however contain final and binding arbitration pro-

visions the first of which reads as follows:

Should differences arise between the Mine

Workers and the operators as to the meaning and

application of the provisions of this agreement, or

Should differences arise about matters not specifi-

cally mentioned in this agreement, or should any

local trouble of any kind arise at the mine, an earn-

est effort shall be made to settle such differences

immediately .. . .3

The arbitration provisions are given greater effect by

the Miscellaneous provisions of the contract:

1. The pickets were members of Local 1058 Uni

nit

Mine Workers and employees of the Christopher Coal

and Christopher was over job-bidding.

2. PX 1.

3. Id. at p. 14.

3a

Appendix A.

The United Mine Workers of America and the

operators agree and affirm that they wii! maintain

the integrity of this contract and that all disputes

and claims which are not settled by agreement shall

be settled by the machinery provided in the “Set-

tlement of Local and District Disputes” section of

this agreement unless national in character in which

event the parties shall settle such disputes by free

collective bargaining as heretofore practiced in the

industry, it being the purpose of this provision to

provide for the settlement of all such disputes and

claims through the machinery in this contract pro-

vided and by collective bargaining without recourse

to the courts.

It is undisputed that the work stoppage at Robena by

members of Local 6321 was not related to any purely

local dispute or grievance.

Throughout the trial, USS contended that the em-

ployees’ refusal to work was out of sympathy for the

West Virginia miners’ dispute whereas the UMW main-

tained that the work stoppage was induced by fear and

threats of harm generated by the roving bands of

stranger pickets.

DISCUSSION

Defendants’ assertion that it is entitled to judg-

ment notwithstanding the verdict squarely rests on the

premise that the honoring of a stranger picket line is

not an actionable wrong under the 1968 labor contract

because that agreement does not expressly prohibit a

strike or the respecting of such picket lines. Since there

4. Id. at p. 22, 3.

4a

Appendix A.

was no such promise there was no breach and, the argu-

ment follows, if there was no breach there can be no

action under $301. While all of the above is true we can-

not agree with defendants that such an obligation can-

not be implied. Teamsters Local 174 v. Lucas Flour Co.,

369 U.S. 95 (1962). The issue then becomes whether the

“Implication Doctrine’ is applicable here.

It is not disputed that the instant labor contract

provided for a mandatory grievance procedure which

culminated in binding arbitration. And this Court does

not have to cite for the parties those authorities stand-

ing for the proposition that federal labor policy favors,

wherever there is doubt, utilization of the arbitration

machinery. In essence defendants’ argument here is that

the obligation not to strike or honor picket lines cannot

be implied because the primary dispute spawning the

work stoppage, not being between members of Local

6321 and USS, was not arbitrable. In this regard the

UMW places reliance on the fact that the work stoppage

was due solely to the appearance of stranger pickets.

Since they characterize the dispute as “not local’’ the

argument follows that it does not fall within the arbitra-

tion provisions of the labor agreement. It is upon this

foundation which rests the bold assertion that the work

stoppage, “. .. whether for reasons of fear or sympathy,

did not breach the 1968 agreement’’.® Reduced to bare

essentials the UMW is telling this Court that there was

nothing to arbitrate.

While there does exist authority to support de-

fendants’ contention we are convinced that this precise

5. Defendants’ Brief in Support of Motions for

Judgment Notwithstanding Verdict or in the Alternative

for New Trial, p. 15.

5a

Appendix A.

issue has been laid to rest in this jurisdiction. /sland

Creek Coal Co. v. UMW, 507 F. 2d 650 (3 Cir. 1975), cert.

denied, 44 U.S.L.W. 3192 (October 6, 1975) ; see Bethle-

hem Mines Corp. v. UMW, 375 F. Supp. 980 (W.D. Pa.

1974). Island Creek leaves no doubt that, even in the

absence of both a no-strike clause and a reference to

honoring of picket lines, the work stoppage becomes

the subject of arbitration. Notwithstanding the fact that

Island Creek construed the 1971 National Bituminous

Coal Wage Agreement we believe it to be dispositive of

this issue because that contract’s “settlement of dis-

putes” language is virtually identical to the language

quoted above. From the inception of this lawsuit plain-

tiff has steadfastly maintained that the work stoppage

was a matter for arbitration. It is clear to this Court

that under the facts of the case at bar the refusal of

Local 6321 to work was an arbitrable issue.

Since the question of whether the duty to work de-

spite the appearance of foreign pickets can be implied

in the subject contract the work stoppage was actionable

as a breach of contract because arbitration — not indus-

trial strife — was the desired ‘mode of resolution. The

defendants’ motion for judgment notwithstanding the

verdict must therefore be denied.

In requesting a new trial the UMW contends that

the Court made various errors with regard to admissibil-

ity and non-admissibility of certain testimony.

The first assigned error relates to the testimony of

Mr. Elkins Payne, plaintiff’s then Superintendent of Per-

sonnel Services. This Court permitted Mr. Payne to tes-

tify to conversations he had during the strike with two

representatives of District 5, UMW, the substance of

these conversations indicating that the work stoppage

6a

Appendix A.

in that district was motivated by reasons other than

fear and coercion. This testimony, it is argued, was hear-

say and highly prejudicial because it tended to discredit

defendants’ evidence pointing to a proper purpose for

the walk out. While that may well have constituted

hearsay we believe it to be admissible, in view of the

fact that the strike was spreading to other coal mines

operated by USS and located in District 5, under the

res gestae exception. Henry, Pennsylvania Evidence $466

at p. 465 (4th Ed. 1953) ; see McMahon v. Edward Budd

Mfg. Co., 108 Pa. Super. Ct. 235 (1933). The evidence

was introduced for the purpose of showing the intent

of neighboring union districts within which plaintiff had

similar coal processing facilities. This evidence merely

corroborated the other testimony adduced by USS to

show that the work stoppage at the Robena complex

(District 4) was being waged for wrongful reasons.

Moreover there was ample evidence te support the

jury's finding of wrongful purpose in accord with our

charge thus the disputed testimony, being cumulative,

was harmless in our view at any rate. See Masterson v.

Pennsylvania R. Co., 182 F. 2d 793, 797-98 (3 Cir. 1950).

Next it is argued that the Court erred in not per-

mitting certain testimony by Nick Bosser, President of

Local 6321, which pertained to a special meeting of the

membership called while the strike was in progress.

Specifically we granted plaintiff’s objection, on grounds

of hearsay, to Bosser’s testifying as to remarks made at

the meeting by unnamed rank and file workers concern-

ing threats from the pickets. On brief defendants assert

6. See TR 34-35, 39-40, 72, 98-99, 101, 112, 126 and

161 which support plaintiff’s contention that the work

stoppage was borne more of sympathy than fear for

safety.

Ta

Appendix A.

that the extra-judicial utterances to be related by Bosser

do not constitute hearsay evidence because they were

not offered for their truth and veracity, but rather for

the purpose of showing that such statements were made

at the meeting. Commonwealth v. Ricci, 332 Pa. 540

(1939) ; Wagner v. Wagner, 158 Pa. Super. Ct. 93 (1945).

Since such threats were reported at the meeting the

contention surfaces that these reports led to apprehen-

sion on the part of the local’s membership and therefore

the UMW was improperly denied the opportunity to

persuade the jury that the work stoppage was due to

fear of physical harm and reprisal. Defendant’s point is

well taken however it does not warrant a new trial.

Apart from our observation—and presumably the

jury’s—that the evidence shows no more than a few

West Virginia pickets at any one Robena mine entrance

as compared to hundreds of Local 6321 employees, recent

law concerning the threat-to-safety defense leads us to

believe that admission of such testimony today would be

clear error. Gateway Coal Co. v. UMW, 414 US. 368,

386-87 (1974), rev’g. 466 F. 2d 1157 (3 Cir. 1972), held

that a union must prove such a defense by objective

evidence. We read that decision to render the employees’

subjective state of mind in this case immaterial. “If the

courts require no objective evidence that such conditions

actually obtain, they face a wholly speculative inquiry

into motives of the workers.” Gateway supra, at 386.

(Emphasis added.) In the absence of actual threats or

violence defendants’ primary position regarding the

Robena work stoppage cannot be sustained.

Next it is urged that the Court’s charge misstated

the evidence in summarizing plaintiff’s theory of the

case. Specifically we stated:

8a

Appendix A.

The plaintiff contends not only [that] there

existed a dispute between the parties by virtue of

the work stoppage and the grievance procedures in

the existing contract which was the sole means of

resolving that dispute and they were violated by

defendants, but that the work stoppage was en-

couraged, authorized, prolonged, called and ratified

by the defendants as an act in sympathy with the

miners at the Humphrey mine.?

Because the record is devoid of evidence showing

that defendants “called’”’ or “authorized” the work stop-

page, it is claimed that the above remarks are inaccurate.

The fact is that the Court was not stating (or mis-

stating) the evidence but merely summarizing the legal

contentions of the parties. Since it was obvious through-

out the proceedings that the issue was not whether de-

fendants formally ‘‘called” or “authorized” this strike

we do not think the jury was misled in any way.

Plaintiff’s theory, as stated, under the facts of this case

was one in which inferences could be drawn from de-

fendants’ conduct. The nub of the theory here was con-

structive authorization. The clear import of the whole

charge does no more than capsulize that theory. More-

over, the Court’s instruction on the law removes any

doubt as to whether the jury was misguided by the

summary.® This claim too is meritless and, in any event,

would not justify a new trial.

7. TR 400.

8. See TR 403.

9a

Appendiz A.

Finally the UMW submits that the Court erred in

denying its seventh point for charge” and, instead charg-

ing as follows:

In considering this claim, you are instructed it

is the duty of the defendants under the contract to

undertake every reasonable means to put an end to

an unauthorized work stoppage.

Therefore, members of the jury, it is for you to

determine whether or not the work stoppage was

unauthorized, and if you so find, whether the defend-

ants acted responsibly in discharging their obliga-

tions to use every reasonable means, under all the

circumstances to end the unauthorized work stop-

page. 10

We believe that this charge is proper and in accord with

the law of this Circuit. See Eazor Express, Inc. v. Inter-

national Bhd. of Teamsters, 520 F. 2d 951 (3 Cir. 1975) ;

Penn Packing Co., Inc. v. Amalgamated Meat Cutters

Local 195, 497 F.. 2d 888 (3 Cir. 1974).

Based on our discussion of the foregoing points and

a review of the record and applicable law the Court does

not perceive any error in the trial of this case. If there

were any improprieties they certainly do not arise toa

level inconsistent with substantial justice under Rule 61

of the Federal Rules of Civil P:’ccedure. Defendants’

motion for a new trial shall therefore be denied.

An appropriate order shall be entered.

9. Point seven reads:

You are instructed that the International and

District Unions, by entering into the National Bi-

tuminous Coal Wage Agreement of 1968 which pro-

vided for the settlement of some types of disputes

by arbitration did not thereby become liable for

damages resulting from a wildcat or unauthorized

strike. (Citations omitted.)

10. TR 402-03.

10a

Appendix A.

Order of Court

Anp Now, to-wit, this 13th day of November, 1975,

it is hereby ORDERED and DIRECTED that the defendants’

motions, as amended, for judgment notwithstanding the

verdict or, in the alternative, for a new trial be and the

same hereby are denied.

JOHN L. MILLER

United States District Judge

cc: James H. McConomy, Esq.

Reed Smith Shaw & McClay

P. O. Box 2009

Pittsburgh, Pennsylvania 15230

Melvin P. Stein, Esq.

Kuhn, Engle, Blair and Stein

1512 Frick Building

Pittsburgh, Pennsylvania 15219

lla

Appendix B.

APPENDIX B—OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 76-1060

UNITED STATES STEEL CORPORATION

v.

UNITED MINE WORKERS OF AMERICA;

DISTRICT NO. 4, UNITED MINE WORKERS

OF AMERICA;

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 6321,

Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

D.C. Civil Action No. 69-970

12a

Appendiz B.

Argued September 7, 1976

Before ADAMS, ROSENN and GaRTH, Circuit Judges

HARRISON ComBs, Esquire

United Mine Workers of America

900 Fifteenth Street, N.W.

Washington, D.C. 20005

MELVIN P. STEIN, Esquire

Kuhn, Engle, Blair and Stein

1512 Frick Building

Pittsburgh, Pa. 15219

Attorneys for Appellants

JaMEs H. McConomy, Esquire

HARLEY N. Trice II, Esquire

Reed Smith Shaw & McClay

747 Union Trust Building

Pittsburgh, Pa. 15219

Attorneys for Appellee

Opinion of the Court

(Filed December 20, 1976)

ROSENN, Circuit Judge

This case presents a question of increasing impor-

tance in industrial relations: whether a union can be held

liable to an employer in money damages for the refusal of

union members to cross a stranger picket line! when the

collective bargaining agreement between the union and

the employer provides a detailed grievance-arbitration

1. A “stranger picket line” is a picket line estab-

lished by a union other than the union which is a party

to the employer’s collective bargaining agreement.

1

Appendix B. =

procedure but contains no express no-strike clause. A

jury rendered a verdict in favor of the plaintiff employer,

United States Steel Corporation (“U.S. Steel’), and

against the defendant International Union, United Mine

Workers of America (“UMW”), its District 4, and its

Local Union 6321. The district judge, relying on this

court’s decision in /sland Creek Coal Co. v. UMW, 507

F. 2d 650 (3d Cir.), cert. denied, 423 U.S. 877 (1975),

denied the defendants’ motion for judgment notwith-

standing the verdict, or, in the alternative, for a new

trial.2 Because we believe that the Supreme Court’s

recent decision in Buffalo Forge Co. v. United Steel-

workers, 44 U.S.L.W. 5346 (U.S. July 6, 1976), undercuts

the vitality of sland Creek, we reverse.24

I.

| In August 1969, U.S. Steel’s Robena Mine Complex

in Greene County, Pennsylvania, was closed down for

approximately one week because employee-members

UMW Local 6321 refused to cross staat ce poeta

by certain West Virginia coal miners. The pickets, who

were members of UMW Local 1058 and employees of the

Christopher Coal Company, were protesting the dis-

charge of five local union officers and committeemen

from Christopher’s Humphrey mine in northern West

Virginia.’

2. United States Steel Co wi

970 (W.D. Pa., Nov. 13, 1975). rp. v. UMW, Civil No. 69-

2A. See Latrobe Steel Co. v. Uni Stee

No. 76-1080 (3d Cir. Nov. 15, 1976). a

3. The dispute at the Hum i rose

. | phrey mine a

job-bidding grievance. After the us alam cfiewe end

co aon ee See, Humphrey employees

= ell ~~ other mines in West Virginia and

14a

Appendix B.

At the time of this incident, the collective bargain-

ing agreement in force between UMW and USS. Steel

was the National Bituminous Coal Wage Agreement of

1968.4 That contract did not expressly prohibit strikes

or the honoring of picket lines. The agreement did, how-

ever, provide for detailed grievance-arbitration proce-

dures covering “differences ... as to the meaning and

application of the provisions of this agreement, .. . dif-

ferences ... about matters not specifically mentioned in

this agreement, or . . . any local trouble of any kind.

. .”5 These arbitration provisions were given even

greater effect by the parties’ agreement that they would

“maintain the integrity of [the] contract” and that all

disputes which were not settled by agreement would be

settled “by the machinery provided in the ‘Settlement of

Local and District Disputes’ section of [the] agreement

unless national in character... .”6

U.S. Steel brought an action for money damages

founded on section 301 of the Labor-Management Rela-

tions Act of 1947, 29 U.S.C. $185, against the Interna-

tional UMW, its District No. 4, and Local Union No.

6321.‘ The corporation claimed that the week-long work

stoppage at the Robena complex was in fact a sympathy

4. This is the same collective bargaining agreement

that was construed by the Supreme Court in Gateway

Coal Co. v. UMW, 414 U.S. 368 (1974).

5. National Bituminous Coal Wage Agreement of

1968, “Settlement of Local and District Disputes.”

6. Id., “Miscellaneous,” {3.

7. U.S. Steel’s complaint also sought a preliminary

injunction ordering the defendants to cease the work

stoppage. After the Robena employees returned to work,

U.S. Steel did not proceed with the request for an in-

junction.

15a

Appendix B.

strike in support of the Humphrey miners, and that the

failure of the defendants to invoke the grievance-arbi-

tration procedures to resolve the problem breached the

collective bargaining agreement.

At the trial in November 1973, the defendants

denied that the Robena work stoppage was a sympathy

strike. Rather, they asserted, the union members had re-

fused to cross the stranger picket line because the

Humphrey pickets had allegedly threatened violence

should the Robena employees return to work. The de-

fendants claimed that because the Robena work stop-

page resulted from the employees’ fear for their safety,

resort to the grievance-arbitration procedures was not

obligatory. In making this claim, the defendants relied

on Gateway Coal Co. v. UMW, 466 F.2d 1157 (3d Cir.

1973), which held that absent an express provision in the

collective bargaining agreement, a union has no con-

tractual duty to submit a safety dispute to arbitration.

Subsequent to the trial in the instant case, the Supreme

Court reversed this court’s Gateway decision, 414 U.S.

368 (1974).

The district judge charged the jury that the griev-

ance-arbitration procedures provided in the collective

bargaining agreement impliedly prohibited work stop-

pages by the defendants’ members, and that a work stop-

page in sympathy with the strike at the Humphrey mine

would violate the contract. He further charged, how-

ever, in accordance with this court’s Gateway decision,

that if the defendants’ members stopped work “because

of good faith apprehension of physical danger due to

abnormally dangerous conditions for work existing at

their place of employment, such conduct . . . would not

violate the contract.” The district judge also instructed

162

Appendix B.

the jury that if the Robena work stoppage was “un-

authorized,” then all three defendants had an obligation

to use every reasonable means under the circumstances

to end that work stoppage.

The jury returned a verdict in favor of the plain-

tiff, U.S. Steel, and against all three defendants. The

defendants then moved for judgment notwithstanding

the verdict, or, in the alternative, for a new trial, con-

tending that an obligation not to strike could not be im-

plied because the primary dispute that caused the work

stoppage, not being between members of Local 6321 and

U.S. Steel, was not arbitrable. When the district judge

denied the motion in 1975, he acknowledged the exist-

ence of authority to support the defendants’ contention

but followed this court’s decision in Island Creek Coal

Co. v. UMW, 507 F.2d 650 (3d Cir.), cert. denied,.423 U.S.

877 (1975).8 Island Creek held that a dispute over

whether a union had contracted away its members’ right

to honor a stranger picket line was arbitrable under the

grievance-arbitration provisions of the National Bitumi-

nous Coal Wage Agreement of 1971, provisions which,

for practical purposes, were identical to the grievance-

arbitration provisions of the 1968 Agreement.

While this appeal was pending, the Supreme Court

decided Buffalo Forge Co. v. United Steelworkers, 44

U.S.L.W. 5346 (U.S. July 6, 1976). At our request, the

parties submitted supplemental briefs considering the

applicability of Buffalo Forge to this case.

8. United States Steel Corp. v. UMW, Civil No. 69-

970 (W.D. Pa., Nov. 13, 1975), ted op. at 4.

17a

Appendix B.

II.

In Buffalo Forge, production and maintenance em-

ployees honored picket lines established at their employ-

er’s plants by “office clerical-technical” (“O&T’’) em-

ployees during an economic strike. The production and

maintenance employees were parties to a collective har-

gaining agreement which contained an express no-strike

clause and which provided a grievance-arbitration pro-

cedure covering “differences .. . as to the meaning and

application of the provisions of [the] Agreement” and

“any trouble of any kind” arising at the plant. 44

U.S.L.W. at 5347.

The employer brought suit under section 301 of the

Labor-Management Relations Act, 29 U.S.C. §185

(1970), claiming that the strike by production and main-

tenance employees was a violation of the express no-

strike clause and contending, in the alternative, that

the question whether the work stoppage violated the

no-strike clause was itself arbitrable. The employer re-

quested both injunctive relief and damages. The union

asserted that the work stoppage did not violate the no-

strike clause.

The district court in Buffalo Forge found that the

production and mainteaance ersnicvees were engaged in

a sympathy action in support of the striking O&T em-

ployees. The district court then held that section 4 of the

Norris-LaGuardia Act, 29 U.S.C. $104 (1970), forbade

the issuance of an injunction because the production and

maintenance employees’ strike was not over an arbitra-

ble grievance and thus was not within the narrow ex-

ception to the Norris-LaGuardia Act established in Boys

Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 (1970).

The Court of Appeals for the Second Circuit affirmed the

denial of a preliminary injunction.

18a

Appendix B.

The Supreme Court of the United States affirmed

the decision of the Second Circuit. Boys Markets injunc-

tions, the Court held, are limited to situations in which a

strike has been “precipitated by” or is “over” an arbi-

trable dispute between the employer and the striking

union. Although finding that the question whether the

strike by production and maintenance employees vio-

lated their express no-strike undertaking was arguably

arbitrable, even though the strike was not enjoinable,

the Supreme Court recognized that this was a secondary

dispute which was a result and not a cause of the strike:

Boys Markets plainly does not control this case.

The District Court found, and it is not now dis-

puted, that the strike was not over any dispute be-

tween the Union and the employer that was even

remotely subject to the arbitration provisions of the

contract. The strike at issue was a sympathy strike

in support of sister unions negotiating with the em-

ployer; neither its causes nor the issue underlying

it were subject to the settlement procedures pro-

vided by the contract between 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 bar-

gain. Thus had the contract not contained a no-

strike clause or had the clause expressly excluded

sympathy strikes, there would have been no possible

basis for implying from the existence of an arbitra-

tion clause a promise not to strike that could have

been violated by the sympathy strike in this case.

44 U.S.L.W. at 5349-50 (emphasis in original).

Buffalo Forge’s specific holding that a district court

is without power to enjoin a sympathy strike pending an

19a

Appendix B.

arbitrator’s decision as to whether the strike is for-

bidden by a no-strike clause of a collective bargaining

agreement rests ultimately on the terms of the Norris-

LaGuardia Act, 29 U.S.C. §$101-15 (1970). Because the

instant case, unlike Buffalo Forge, was tried on the

issue of liability for money damages resulting from a

breach of contract rather than on the issue of entitle-

ment to injunctive relief, the Norris-LaGuardia Act has

no application to this case. That does not mean, however,

that Buffalo Forge is not dispositive of the present ap-

peal. The Supreme Court’s decision indicates that in

order for a work stoppage to be enjoinable pending arbi-

tration, the collective bargaining agreement must pro-

vide arbitration procedures and the dispute that pre-

cipitates the stoppage must be subject to binding arbi-

tration under the terms of the contract. The propriety

of an award of monetary damages resulting from a work

stoppage, on the other hand, depends on the determina-

tion whether the union is under a contractual duty not

to strike. Because the collective bargaining agreement

in the instant case did not contain an express no-strike

clause, that determination in turn depends on whether

the dispute underlying the work stoppage was arbitrable.

Gateway Coal Co. v. UMW, 414 U.S. 368 (1974). In both

cases, therefore, arbitrability is a key issue. What Buf-

falo Forge establishes regarding the arbitrability of

sympathy strikes is as applicable to this particular suit

for monetary damages as it is to a request for injunctive

relief.

20a

Appendiz B.

Il.

We reject U.S. Steel’s contention in this court that

the work stoppage at the Robena mine was not a sympa-

thy strike in support of the Humphrey employees, but

rather was a dispute between the parties as to the safety

of conditions for work. Buffalo Forge has enabled U.S.

Steel to find grist in the union’s argument in the district

court: what the employer characterized in the heat of

trial as a sympathy strike” it urges in this more temper-

ate appellate climate to have been a safety dispute.1°

U.S. Steel’s candor in acknowledging its earlier miscon-

ception of the essence of the controversy is admirable

but unavailing. We must scrutinize the factual issues as

they were submitted to the jury, not as they are por-

trayed in the light of recent legal developments. The

district judge charged the jury that if the defendants’

members stopped work in sympathy with the strike at

the Humphrey mine, such conduct would violate the

contract, but that if the defendants’ members stopped

work because of “good faith apprehension of physical

danger due to abnormally dangerous conditions for work

existing at their place of employment,” such conduct

9. See,e.g., Transcript at 239-40:

MR. McCONOMY [counsel for plaintiff]: . . . There

is no question it was a sympathy strike.

10. Appellee’s Brief in Response to the Court’s

Request of July 30, 1976, Concerning the Implications of

Buffalo Forge at 5:

(T}he work stoppage arose over a dispute between

the parties as to the safety of conditions for work,

thereby establishing a clear breach of the implied

no-strike obligation of the labor agreement under

the Supreme Court’s decision in Gateway Coal Co. v.

United Mine Workers, 414 U.S. 368 (1974).

21a

Appendiz B.

would not violate the contract. Implicit in the jury’s

verdict for the plaintiff was the factual finding that the

Robena work stoppage was a sympathy strike in support

of the Humphrey employees and a rejection of the

“safety” theory advanced by the union.

On appeal from the granting or denial of a motion

for judgment notwithstanding the verdict, we are bound

to view the evidence in the light most favorable to the

verdict winner and to give that party the benefit cf all

inferences that the evidence fairly supports. See, e.g.,

Fireman’s Fund Insurance Co. v. Videfreeze Corp., Nos.

75-2405, -2406 (3d Cir. Aug. 25, 1976), slip op. at 12;

O’Neill v. Kiledjian, 511 F. 2d 511, 513 (6th Cir. 1975) ;

Cockrum v. Whitney, 479 F. 2d 84, 85-86 (9th Cir. 1973) ;

5A J. Moore, Federal Practice { 50.07, at 2356-57 (1975).

The record adequately supports the jury’s implied

factual finding that the work stoppage at the Robena

mine was a sympathy strike. We must therefore treat

the Robena work stoppage as a sympathy strike, and

determine whether that strike was arbitrable under the

National Bituminous Coal Wage Agreement of 1968 and

the principles established by Buffalo Forge.!!

In this case, as in Buffalo Forge, the strike was not

“over any dispute between the Union and the employer

that was even remotely subject to the arbitration pro-

visions of the contract.” 44 U.S.L.W. at 5349 (emphasis

in original). The Robena strike, like the strike in Buffalo

Forge, “was a sympathy strike .. .; neither its causes

11. Consequently, we have no occasion to consider

the applicability of Gateway Coal to a refusal by union

members to cross a stranger picket line because the

pickets have allegedly threatened violence. See note 10

supra.

22a

Appcondixz B.

nor the issue underlying it were subject to the settlement

procedures provided by the contract between the em-

ployer” and the union. Jd. The job-bidding dispute at the

Humphrey mine? which precipitated the Robena work

stoppage was a dispute between the Christopher Coal

Company and members of UMW Local 1058; that dispute

could not possibly have been arbitrated by the United

States Steel Corporation and UMW Local 6321. Had the

contract in the instant case contained a no-strike clause,

the issue whether the sympathy strike violated the

union’s no-strike undertaking might have been arbi-

trable. In the absence of a no-strike clause, however,

Buffalo Forge establishes that there is “no possible basis

for implying from the existence of an arbitration clause

a promise not to strike that could have been violated by

the sympathy strike” in this case. 44 U.S.L.W. at 5349-50.

To the extent that Island Creek Coal Co. v. UMW, 507

F. 2d 650 (3d Cir.), cert. denied, 423 U.S. 877 (1975),

suggests otherwise, it seems clear that that decision

cannot survive Buffalo Forge. The Supreme Court ob-

served in the latter case that

[t]o the extent that the Court of Appeals... and

other courts, Island Creek Coal Co. v. United Mine

Workers, 507 F. 2d 650, 653-54 (CA3), cert. denied,

423 U.S. 877 (1975) ..., have assumed that a manda-

tory arbitration clause implies a commitment not to

engage in sympathy strikes, they are wrong.

pes U.S.L.W. at 5350 n.10. Quite simply, the work stoppage

at the Robena mine presented no arbitrable issue.i3 We

12. See note 3 supra.

13. U.S. Steel attempts to circumvent Bu

alo

Forge by arguing that the defendants are liable’ for

breach of their duty to arbitrate. The union had a con-

tractual obligation, the employer asserts, to arbitrate the

23a

Appendix B.

conclude, therefore, that the Robena sympathy strike

was not a breach of the National Bituminous Coal Wage

Agreement of 1968.

U.S. Steel contends that the Robena work stoppage

was in fact “over” an arbitrable dispute. The controversy

between Local 1058 and the Christopher Coal Company

which precipitated the Robena strike was over job

bidding and employee discharges. These types of dis-

putes, the employer argues, “are typically and tradition-

ally subject to resolution under the arbitration provisions

of the 1968 labor agreement” to which Local 1058 and

Christopher were parties. U.S. Steel thus attempts to

distinguish this case from Buffalo Forge on the ground

that the Humphrey strike, which triggered the Robena

work stoppage, was an illegal work stoppage over a dis-

pute subject to arbitration, whereas the primary dispute

in Buffalo Forge was concededly legal.

The record contains little evidence regarding the

dispute at the Humphrey mine, and we are unwilling to

assume, without more, that that dispute was arbitrable

and the Humphrey strike illegal. We think it sufficient

to dispose of U.S. Steel’s contention by observing that

the Robena strike was not over any dispute “between the

Union and the employer”—between UMW and U.S. Steel

—that was subject to arbitration. Buffalo Forge, supra,

44 U.S.L.W. at 5349.

dispute over whether union members had the right to

honor the stranger picket line. Had the contract con-

tained an express no-strike clause, this contention might

have merit. Where an obligation not to honor a stranger

picket line could arise only from the duty to arbitrate,

however, it is unnecessary to arbitrate the issue that

Buffalo Forge settles in the union’s favor: whether a

mandatory arbitration clause implies a commitment not

to engage in sympathy strikes.

Appendix B.

IV.

U.S. Steel contends that even if the Robena strike

did not violate the Local Union’s implied no-strike obliga-

tion, we must nevertheless affirm the district court’s

judgment as to the International and the District Union.

Under the National Bituminous Coal Wage Agreement

of 1968, the employer asserts, the International and the

District were obliged to take all reasonable steps to

terminate the allegedly illegal Humphrey strike and to

prevent its spread. The jury, the argument concludes,

found the International and the District vicariously

liable for the conduct of the members of Local 6321 and

primarily liable for their own failure to take all reason-

able steps to prevent the spread of the Humphrey strike

to the Robena mine. U.S. Steel relies on Eazor Express,

Inc. v. International Brotherhood of Teamsters, 529

F. 2d 951, 959 (3d Cir. 1975), cert. denied, 424 U.S. 935

(1976), which held that an express no-strike undertak-

ing pending arbitration implies an obligation on the part

of the union parties to use every reasonable means to

bring an end to a strike begun by their members without

their authorization, and on United States Steel Corp. v.

UMW, 534 F. 2d 1063, 1072-73 (3d Cir. 1976), which ex-

tended Eazor Express to no-strike obligations implied

by binding arbitration provisions. |

We decline to consider whether the rationale of

Eazor Express would permit an employer to recover (am-

ages for the failure of a union to take all reasonable steps

to prevent the spread of an unauthorized and allegedly

illegal strike against another employer. This case was

not tried on that theory. As we have previously pointed

out, the record presents little evidence regarding the

dispute at the Humphrey mine. U.S. Steel argued in the

25a

Appendix B.

district court not that the International and the District

Union were liable for failing to take reasonable action

to prevent the spread of the Humphrey dispute, but

rather that the International and the District Union were

liable for inaction in terminating the Robena strike.

Because we have concluded that the Robena work

stoppage did not breach the collective bargaining agree-

ment, and because the issue of the union’s liability for

the spread of the Humphrey strike was not tried in the

district court, the judgment as to the International and

the District cannot stand.

V.

Accordingly, the judgment of the district court will

be reversed and the cause remanded with directions to

enter judgment in favor of all defendants notwithstand-

ing the verdict.

TO THE CLERK:

Please file the foregoing opinion.

PPT TTTTTPTPETEPeTI rl

Circuit Judge

26a

Appendix B.

UNITED STATES STEEL CORPORATION V. UNITED

MINE WORKERS OF AMERICA; DISTRICT NO. 4

UNITED MINE WORKERS OF AMERICA; UNITED

MINE WORKERS OF AMERICA LOCAL NO. 6321,

APPELLANTS, NO. 76-1060

GARTH, Circuit Judge, concurring:

Based on my understanding of the teaching of Buf-

falo Forge Co. v. United Steelworkers, 44 U.S.L.W. 5346

(July 6, 1976), I concur in the result reached by the

majority. I believe that Buffalo Forge can best be under-

stood by examining its implication with respect to three

categories of labor contracts.

The urst category consists of contracts which ex-

pressly forbid sympathy strikes, as well as all other

strikes, and which provide for mandatory arbitration of

all grievances. When a contract in this category is in

force, the reasoning of Buffalo Forge clearly suggests

that the legality of a sympathy strike would be immedi-

ately arbitrable and that such a strike could be enjoined

pending the outcome of the arbitration. Damages for

such an illegal strike would undoubtedly be recoverable.

The second category consists of contracts — like the

one involved in Buffalo Forge — which contain general

“no strike” clauses and provisions for mandatory arbi-

tration of grievances. Contracts in this category differ

from those in the first category in one important re-

spect: whereas the contracts in the first category ex-

pressly forbid sympathy strikes, those in the second

simply forbid all strikes generally. Buffalo Forge holds

that when contracts in this category are involved, the

legality of a sympathy strike is clearly subject to arbi-

tration but that the sympathy strike cannot be enjoined

27a

Appendix B.

pending the arbitrator’s decision. Buffalo Forge also in-

dicates that should_the arbitrator eventually determine

that the strike was illegal, it could be enjoined at that

time. 44 U.S.L.W. at 5349. Although Buffalo Forge did

not discuss whether an employer could recover damages

for a sympathy strike under a contract of this sort it

would appear that damagescould be recovered in those

cases in which it was ultimately determined that the

strike was illegal. -

The third category consists of contracts — like the

one involved in Island Creek Coal Co. v. United Mine

Workers, 507 F.2d 650 (3d Cir. 1975), cert. denied, 423

U.S. 877 (1975) — which corriain provisions for manda-

tory arbitration of grievances but whieh do not contain

an express “no strike” clause of any sort. With respect

to these contracts, Buffalo Forge stated flatly: ‘To the

extent that the Court of Appeals... have assumed that

a mandatory arbitration clause implies a commitment

not to engage in sympathy strikes, they are wrong.” 44

U.S.L.W. at 5350 N.10. Justice White also stated that

under such a contract there would be “no possible basis

for implying from the existence of an arbitration clause

a promise” not to engage in sympathy strikes. Jd. at

5349-50. In other words, Buffalo Forge established as a

matter of law that a sympathy strike does not violate

a labor contract which falls into this category. Of course,

it goes without saying that a sympathy strike could not

be enjoined under this type of contract. In addition, the

legality of such a strike would not even be subject to

arbitration, since Buffalo Forge established that such

strikes are legal. Furthermore, since as a matter of law

sympathy strikes cannot violate contracts in this cate-

gory, damages could not be recovered.

28a

Appendix C.

The labor contract involved in the instant case quite

clearly falls into the third category. Hence, there having

been no contract violation by UMW Local 6321 and

therefore no damages allowable to United States Steel

Corporation, judgment should have been entered in

favor of the Union.

APPENDIX C—JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1060

UNITED STATES STEEL CORPORATION

vs.

UNITED MINE WORKERS OF AMERICA; DISTRICT

NO. 4 UNITED MINE WORKERS OF AMERICA;

UNITED MINE WORKERS OF AMERICA LOCAL

NO. 6321, Appellants

(D. C. Civil Action No. 69-970)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Present: ADAMS, ROSENN and GARTH, Circuit Judges

Judgment

This cause came on to be heard on the record from

the United States District Court for the Western Dis-

trict of Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the

said District Court, filed November 13, 1975, be, and the

29a

Appendix C.

same is hereby reversed and the cause remanded with

directions to enter judgment in favor of all defendants

notwithstanding the verdict in accordance with the

opinion of this Court. Costs are taxed against the ap-

pellee.

Attest:

THOMAS P. QUINN

Clerk

December 20, 1976

30a

Appendix D.

APPENDIX D—ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

DENYING APPELLEE’S PETITION FOR

REHEARING

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1060

UNITED STATES STEEL CORPORATION

v.

UNITED MINE WORKERS OF AMERICA; DISTRICT

NO. 4, UNITED MINE WORKERS OF AMERICA;

UNITED MINE WORKERS OF AMERICA LOCAL

NO. 6321, Appellants

Sur Petition for Rehearing

Present: SEITZ, Chief Judge, VAN DUSEN, ALDISERT,

ADAMS, GIBBONS, ROSENN, WEIS, and GARTH,

Circuit Judges

The petition for rehearing filed by UNITED

STATES STEEL CORPORATION in the above entitled

case having been submitted to the judges who partici-

pated in the decision of this court and to all the other

available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision hav-

ing asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied.

By the Court,

MAX ROSENN

Judge

Dated: January 25, 1977

» --newnenatiil

7 3la

Appendix E.

APPENDIX E—STATUTES INVOLVED

Labor Management Relations Act

(29 U.S.C. §173(d))

$ 173. FUNCTIONS OF SERVICE.

(d) Final adjustment by a method agreed upon by

the parties is declared to be the desirable method for

settlement of grievance disputes arising over the appli-

cation or interpretation of an existing collective-bargain-

ing agreement. The Service is directed to make its con-

ciliation and mediation services available in the settle-

ment of such grievance disputes only as a last resort and

in exceptional cases.

Labor Management Relations Act

(29 U.S.C, §185(a))

§ 185. SUITS BY AND AGAINST LABOR ORGANIZATIONS.

(a) Venue, amount, and citizenship.

Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter, or

between any such labor organizations, may be brought in

any district court of the United States having jurisdic-

tion of the parties, without respect to the amount in

controversy or without regard to the citizenship of the

parties.

32a

Appendix F.

APPENDIX F—RELEVANT PROVISIONS OF THE

NATIONAL BITUMINOUS COAL WAGE

AGREEMENT OF 1968.

SETTLEMENT OF LOCAL AND DISTRICT DISPUTES

Should differences arise between the Mine Workers

and the operators as to the meaning and application of

the provisions of this agreement, or should differences

arise about matters not specifically mentioned in this

agreement, or should any local trouble of any kind arise

at the mine, an earnest effort shall be made to settle

such differences immediately: (The parties wiil not be

represented by legal counsel at any of the steps below.)

1. Between the aggrieved party and the mine man-

agement.

2. Through the management of the mine and the

mine committee.

3. Through district representatives of the United

Mine Workers of America and a commissioner repre-

sentative (where employed) of the coal company.

4. By a board consisting of four members, two of

whom shall be designated by the Mine Workers and two

by the operators. Neither the Mine Workers’ representa-

tives on the board nor the operators’ representatives on

the board shall be the same persons who participated in

steps (1), (2), or (3) of this procedure.

5. Should the board fail to agree the matter shall,

within twenty (20) days after decision by the board, be

referred to an umpire to be mutually agreed upon by

the operator or operators affected and by the duly

designated representatives of the United Mine Workers

of America, and the umpire so agreed upon shall ex-

33a

Appendiz F.

peditiously and without delay decide said case. The de-

cision of the umpire shall be final. Expenses and salary

incident to the services of an umpire shall be paid

equally by the operator or operators affected and by

the Mine Workers.

A decision reached at any stage of the proceedings

above outlined shall be binding on both parties hereto

and shall not be subject to reopening by any other party

or branch of either association except by mutual agree-

ment.

DISCHARGE CASES

When a mine worker has been discharged from his

employment and he believes he has been unjustly dealt

with, it shall be a case under the “Settlement of Local

and District Disputes” clause. In all discharge cases

should it be decided under the rules of this agreement

that an injustice has been dealt the mine worker, the

operator shall reinstate and compensate him at the rate

based on the earning of said mine worker prior to such

discharge. Provided, however, that such case shall be

taken up within five days from the date of discharge.

SENIORITY

12. Grievances which arise under the provisions of

this section shall be processed under the “Settlement of

Local and District Disputes” clause of this agreement.

Appendiz F.

MISCELLANEOUS

3. The United Mine Workers of America and the

operators agree and affirm that they will maintain the

integrity of this contract and that all disputes and claims

which are not settled by agreement shall be settled by

the machinery provided in the “Settlement of Local and

District Disputes” section of this agreement unless na-

tional in character in which event the parties shall

settle such disputes by free collective bargaining as here-

tofore practiced in the industry, it being the purpose of

this provision to provide for the settlement of all such

disputes and claims through the machinery in this con-

tract provided and by collective bargaining without re-

course to the courts.