Petition — International Union, United Mine Workers v. Cedar Coal Co.

Supreme Court, U. $,

FILED

dec 8 977

IN THE

Supreme Court of the United States

INTERNATIONAL UNION, UNITED MINE WorKERS oF

AMERICA, et al.,

Petitioners

Vv.

Crepar CoaL COMPANY and SouTHern Onto CoA

COMPANY,

Respondents

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For The Fourth Circuit

Ross MARUKA HARRISON Comas

610 Deveny Bldg. 900 Fifteenth Street, N.W,

Fairmont, WV 26554 Washington, D, C, 20005

H, Jonn TAYLOR James M, HAVILAND

1108 Union Building 1108 Union Building

Charleston, WV 25301 Charleston, WV 25301

COUNSEL FOR PETITIONERS

December 6, 1977

ATP > severe revmrine comrany, cnamienron, @. va.

INDEX

Page

Prayer l

Opinions Below |

Jurisdiction 2

Question Presented 2

Statutes Involved 2

Statement of the Case 2

Reasons for Granting the Writ 5

Conclusion 17

Appendix A—Opinion of United States Court of

Appeals for the Fourth Circuit _ A-l

Appendix B—Statute Involved B-1

Appendix C-—-Grievance and arbitration provision

of National Bituminous Coal Wage a

of 1974 . Cl

Appendix D—Cases pending in the United States

District Court for the Southern and Northern Dis-

tricts of West Virginia in which United Mine

Workers of America labor organizations are being

sued for damages on account of work stoppages

caused by the appearance of stranger pickets ........ D-1

Cases Cited

Affiliated Food Distributors, Inc. v, Local 229,

Teamsters, 483 F.2d 418 (3rd Cir, vane cert,

CE EE a es 9, 10

Page

Alexander v, Gardner-Denver Co,, 415 U.S. 36

(1974) | : 12

Atkinson v, Sinclair Refining Co., 370 U.S. 238

(1962) . 6,11

Bliss & Laughlin Industries v, Int, Assn, of Ma-

chinists, 513 F.2d 987 (7th Cir, 1955) oe

Boys Markets v, Retail Clerks Local 770, 398 U.S.

235 (1970) coeds

Buffalo Forge Co, v, Steelworkers, 428 U.S, 397

(1976) aes ee

Drake Bakeries v, Local 50, Bakery Workers, 370

U.S, 254 (1962) 5, 8, 11

E. T, Simonds Construction Co, v, Hod Carriers,

315 F.2d 291 (7th Cir, 1962) : 9)

Friedrich v, Local 780, Electrical Workers, 515 F.2d

225 (5th Cir, 1975) reocvedy By OO

G. T, Schjeldahl Co, v. Lodge 1680 Machinists, 393

F.2d 502 (1st Cir, 1968) » OF

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

(1974) eg

General Dynamics Corp. v. Industrial Union of

Marine Workers, 469 F.2d 848 (1st Cir, 1972) 9

H. K, Porter Co. v, Steelworkers, 400 F.2d 691, 29

ALR 3d 679 (4th Cir, 1968) 9)

Howard Electric Co, v, Electrical Workers, 423 F. 2d

164 (9th Cir, 1970) my i)

Jefferson City Cabinet Co, vy. antevnational Blectri-

cal Workers, 313 F.2d 231 (6th Cir, 1963) i)

ii

Page

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

95 (1962) Hs)

Los Angeles Paper Bag Co, v. Printers District

Council 2, 345 F.2d 759 (9th Cir, 1965) i)

Minnesota Joint Board, Clothing Workers v, United

Garment en Co., 338 F.2d 195 (8th

Cir, 1964) ........ at 9

Scalzitti Co, v. Reena hie Local 150, 351

F.2d 576 (7th Cir, 1965) 1)

Southern Ohio Coal Co. v. UMWA, 551 F.2d at 703

(6th Cir, 1977), cert. denied 46 USLW 3219 (Oct.

4, 1977) 11,14

Textile Workers v. Lincoln Mills of Alabama, 353

U.S, 448 (1957)... 12

U. S. Steel v. UMWA, (48 F.2d 67 (1976), cert.

denied 45 USLW 2318 (June 13, 1977) 11,14

United Steelworkers v. American Mfg, Co,, 363 U.S.

564 (1960) . i)

United Steelworkers v. Enterprise Wheel & Car

Corp., 363 U.S, 593 (1960) 9

United Steelworkers v. Warrior & Gulf Nav, Co.,

363 U.S. 574 (1960) atl Aiea 6,9

Valmac Industries v. Meatcutters, 519 F.2d 263 9

Cir, 1975), remanded 428 U.S, 910 (1976) .. ) i)

Vulean-Cincinnati, Inc. v. Steelworkers, 289 F.2d

103 (6th Cir, 1961) . . 4 8,9

Yale & Towne Mfg. Co. v. International Assn, Ma-

chinists, 299 F.2d 882 (3rd Cir, 1962) .. a i)

ili

Statutes Cited

Labor Management Relations Act:

§ 203(d), 29 U.S.C, 173(d)

§ 301(a), 29 U.S.C, 185(a)

iv

Page

12

2, 12

IN THE

Supreme Court of the United States

OcTOBER TERM, 1977

TD uiciiinadteiaieataled

INTERNATIONAL UNION, UNITED MINE WORKERS OF

AMERICA, et al.,

Petitioners

v.

Crepar Coat COMPANY and SOUTHERN OHIO COAL

COMPANY,

Respondents

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

For The Fourth Circuit

Petitioners, International Union, United Mine Work-

ers of America; District 17, United Mine Workers of

America; Local Union 1766, United Mine Workers of

America; District 31, United Mine Workers of America;

and Local Union 1949, United Mine Workers of America,

respectfully pray that a writ of certiorari issued to re-

view part of the judgment of the United States Court of

Appeals for the Fourth Circuit entered in this case on

July 6, 1977,

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit appears at 560 F.2d 1154 and is ap-

pended at App. A., pp. A-1 to A-42, infra. The District

Courts for the Southern and Northern District of West

Virginia did not render opinions.

2

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit was entered on July 6, 1977. Peti-

tioners’ timely petition for rehearing was denied by order

filed September 6, 1977, and this petition was filed within

90 days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the claim of coal operators that the honoring

of a stranger picket line by coal miners is a breach of a

judicially created implied no-strike duty, can be arbi-

trated when: (1) the grievance and arbitration ma-

chinery is not open to any coal operator grievances and

(2) the collective bargaining agreement sued upon

neither contains an express no strike duty nor mentions

picket lines.

STATUTE INVOLVED

This case involves § 301 (a) of the Labor Manage-

ment Relations Act (LMRA), 61 Stat. 156, 29 U.S.C.

185 (a), appended at App. B., p. B-1, infra.

STATEMENT OF THE CASE

1. Federal Jurisdiction

These cases arose when respondents Cedar Coal Com-

pany and Southern Ohio Coal Company (“coal oper-

ators”)' invoked the jurisdiction of the District Courts

'The coal mines of respondent Cedar Coal Compuey are located

in Kanawha County in the Southern District of West V Cedar

filed case no. 76- in the Southern District of West Virginia and

case no. 76-1785 in the Court of Appeals. Hereinafter that case will

at times be referred to as “the Cedar Coal case”. Respondent Southern

Ohio Coal Company operates mines in Marion County, West Virginia

in the Northern District of West Virginia. Southern Ohio filed case

no. 76-167-E in the Northern District of West Virginia and case no.

76-1846 in the Court of -_ +4 Hereinafter at times that case will

be referred to as the “Southern Ohio Coal case”. Ohio Power Com-

y is the parent of Southern Ohio and although petitioners do not

lieve it is a proper party to this case, it is named in accordance

with recommended practice.

ee

PROP RRIET A +

3

under § 301, LMRA, to secure injunctive relief and

damages on account of work stoppages at their mines.

The stoppages were alleged to have resulted from the

refusal of miners e:uployed by the coal operators to cross

foreign picket lines set up by persons not employed at

the mines.

2. The Parties

The petitioner United Mine Workers of America labor

organizations (“the unions’) represent for collective

bargaining and other purposes the coal miners employed

by the coal operators. The unions and the coal oper-

ators are parties to the National Bituminous Coal Wage

Agreement of 1974.

3. Proceedings Below and Factual Background

In the summer of 1976 widespread picketing prompted

by political protest* resulted in the closing of coal mines

of the respondent coal operators. The single collective

bargaining agreement in question does not contain a

written no-strike agreement or any provision concerning

picket lines. The coal operators alleged breach of the

implied in law no strike clause and sought injunctions

?The aay ey “developed into protests over real or imagined

wro y the federal court” as found by then District Judge Hall in

the r Coal case. The facts and allegations of Cedar Coal case

are stated in Part II of the — of the Court of Appeals, A-9 to

A-11 infra, the facts of the Southern Ohio Coal case are stated at

Part III of the same opinion, A-12 to A-14.

Another case involving Cedar Coal and Local Union 1759, United

Mine Workers of America, United States District Court for the

Southern District of West Virginia No. 76-0440, Court of A +: No.

76-1793, is not the subject of this petition. For the record it should

be noted that the petitioners have consistently taken clear exception

to the characterization by the Court of Appeals of the facts of that

case, as stated in Part I of the opinion of the Court of A (A-3 to

A-9). The District Court never made any reviewable determination

as to the cause of the stoppage at Local 1759. The statements in Part

I of the opinion of the Court of Ap are not based on any findings

of fact but are based upon affidavits which were presented most

cases, initially to the Court of Appeals ostensibly for the purpose of

ruling on the Rule 8, FRAP, on for injunction pending appeal.

4

and damages. The District Court for the Southern Dis-

trict of West Virginia in the Cedar Coal case denied in-

terlocutory relief and dismissed the complaint of Cedar

Coal Company. The District Court for the Northern

District of West Virginia denied the motion of Southern

Ohio Coal for a preliminary injunction. Both coal oper-

ators appealed to the Court of Appeals for the Fourth

Circuit. The opinion was issued nearly eleven months

after oral argument and was written by the only active

Judge of the Court of Appeals on the panel.’

The Court of Appeals discussed principally the ques-

tion of Boys Markets’ injunctive relief. (A-31 to A-40)

This petition does not concern the denial of injunctive

relief. It is only concerned with the surprising and

unexplained directive by the Court of Appeals that on

remand of the cases the district courts, as a prelude to

the damage claims, must “forthwith” direct arbitration

of the central question of whether or not the refusal

of the miners to cross the picket lines was a breach of

contract. Item IX of the opinion, (A-40 to A-41). Peti-

tioners sought rehearing primarily on the grounds that

(i) the directive to remand was contrary to well estab-

lished principles of federal labor law, discussed infra,

and (ii) none of the coal operaters expressly sought or

argued in favor of a remand to arbitration without a

Boys Markets injunction. After the petition for rehear-

*Although the operators’ motions for immediate injunctive relief

were denied, the appeals were accorded expedited treatment and

oral argument was held within weeks after the cases were appealed.

“All but two active Judges of the Fourth Circuit disqualified them-

selves from the appeals. footnote 1 of Order denying rehearing

en banc filed by the Court of y= on September 6, 1977. The

merits of the appeal were actually heard by one active Judge of that

court, the Honorable Emory E. Widener, and by two Judges specially

designated, the Honorable Pierce oe United States Circuit Judge

for the Sixth Circuit and the Honorable John A. MacKenzie, United

States District Judge for the Eastern District of Virginia.

‘Boys Markets v. Retail Clerks Local 770, 398 U.S. 235 (1970).

)

ing was denied, petitioners obtained a stay and initiated

this proceeding.

REASON FOR GRANTING THE WRIT

I. The Decision Below Conflicts Directly With This Court’s

Holdings in Atkinson v. Sinclair Refining Co., 370 U.S. 238

(1962) and in Buffalo Forge Co. v. Steelworkers, 428 U.S.

397 (1976).

The contract sued upon does not contain a written

no strike clause nor does it contain any promise con-

cerning picket lines. The grievance and arbitration pro-

visions of the contract are appended at App. C., pp. C-1

to C-8, infra. Accordingly, the coal operators’ sole

basis for seeking strike damages is breach of a no-strike

clause implied from an agreement to arbitrate on the

basis of the federal! labor policies favoring arbitration by

this Court in Lucas Flour.*

Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962),

states the primary rule that it is the duty of the courts

to determine “whether the reluctant party has breached

his promise to arbitrate”, because, “arbitration is a mat-

ter of contract and a party cannot be required to submit

*Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). In

Lucas, this Court held that a union, even in the absence of an express

“no strike” agreement, could be liable for damages—but only in the

limited situation of:

... @ strike to settle a dispute which a collective bargaining

agreement provides shall be settled exclusively and finally by

compulsory arbitration .. .

What has been said is not to suggest that a no-strike agreement

is to be implied beyond the area which it has been agreed will

be exclusively covered by compulsory termination arbitration.

369 U.S. 105-6. This Court has consistently applied this confined

formulation of the implied no strike duty. Drake Bakeries 9 Local

50, Bakery Workers, 370 U.S. 254, 262 n. 8. (1962); Boys Markets v.

rine Workers Ti U8 aah and 3 (HNO) Se Sef Pose

. Mi ers, S. an : alo F

Co. v. Steelworkers, 428 U.S. 397, 407, 408 n. 10 (1976). —

6

to arbitration any dispute which he has not agreed to

so submit”.’ The Court of Appeals departed from this

principle when it remanded to arbitration, rather than

decide for itself, as required by Atkinson, the question

of whether the Lucas Flour implied no-strike duty had

been breached. Certiorari is sought primarily on the

basis of that departure.

This departure from the rule of Atkinson is docu-

mented by the absence of any analysis by the Court of

Appeals of the two secondary questions which must,

according to Atkinson, be evaluated and answered by

the Courts when deciding the primary question. The

two secondary questions applied to this case are: (1)

whether the “reluctant partlies]”, the unions, were

bound to arbitrate the employers’ claim and (2) whether

the refusal to cross picket lines created an arbitrable

issue. 370 U.S. at 241. The remand to arbitration was

directed by the Court of Appeals without consideration

of (i) those secondary questions or (ii) the primary

question of whether the unions had breached any agree-

ment to arbitrate.

’The full quotation is:

Under our decisions, whether or not the company was bound

to arbitrate, as well as what issues it must arbitrate, is a matter

to be determined by the court on the basis of the contract

entered into by the parties. ‘The Congress has by § 301 of the

Labor-Management Relations Act [ U.S.C. 185], assigned

the Courts the duty of determining whether the reluctant party

has breached his promise to arbitrate. For arbitration is a

matter of contract and a party cannot be required to submit

to arbitration any dispute which he has not agreed so to sub-

mit.’ United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S.

574, 582 (1960). See also United Steelworkers v. American Mfg.

Co., 363 U.S. 564, 570-571 (1960) (concurring opinion).

Atkinson, supra, 370 U.S. at 241 (emphasis added).

7

A. Since the Union Did Nut Agree to Arbitrate Claims of

the Coal Operators, the Directive to Arbitrate Squarely Con-

flicts With This Court’s Holding in Atkinson That a Union

Should Not Be Required to Arbitrate Employer Claims in the

Absence of an Agreement (Not Present Here) To Do So.

The reality of arbitration of only employee claims

under the UMWA contract was restated succinctly by

Southern Ohio’s personnel manager. When asked if

Southern Ohio “contemplated filing a grievance”, he

replied “inlo, the company doesn’t file grievances as

99 6

you well know”.

Atkinson and all the decisions applying it examine

the wording of the grievance and arbitration machinery

in a labor agreement before deciding whether the party

resisting arbitration should be required to submit a

dispute to arbitration. Although the term “grievance”

was broadly defined, this Court noted (i) the wording

limiting the initiation and processing of grievances to

the “individual employee” and (ii) the fact that it was

only those individual employee grievances which were

eligible for arbitration and concluded:

There is not a word in the grievance and arbi-

tration article providing for the submission of

grievances by the company ... At no place in

the contract does the union agree to arbitrate

at the behest of the company. The company is

? take its claims elsewhere, which it has now

one.

Atkinson, supra, 370 U.S. at 243. Atkinson held that

*Testimony of Forrest Skidmore in Southern Ohio Case (see foot-

note 1, supra), p. 35 of transcript of hearing of July 26, 1976. The

Court of Appeals specifically recognized that Local 1949 did not

refuse to arbitrate. “... [A]fter evidence was taken, plaintiffs’ counsel

conceded there had been no refusal [by the union] to arbitrate.” A-13.

the strike damage question should be determined solely

by the Courts,’

In this case, as the Court found in Atkinson, the arbi-

tration agreement is not susceptible to a construction

that the parties agreed to arbitrate employers claims for

strike damages against the union, The grievance and

arbitration procedure in the UMWA contract are “em-

pioyee-oriented”, The language of the procedure itself

is limited to complaints of “the employee” who has the

right to “make his complaint to his immediate foreman”

at step 1, At step 2, the grievance is identified as “the

Employee's grievance”, (C-3)"" Steps 3 and 4 of the

grievance procedure and arbitration at step 5 are limited

to complaints which are processed at steps 1 and 2,"

The total absence of any reference to employer griev-

*By contrast, in Drake Bakeries v. Local 50, Bakery Workers, 370

U.S, 254, 257-8 (10960), decided the same day as Atkinson, the griev-

ance procedure stated that “either party” had the right to submit a

matter to arbitration, The citation of Drake by the Court of Appeals

and the omission of any reference to the companion Atkinson case

(see p, A«4l, infra) suggest that the Court of Appeals either thought

(i) that the labor agreement in question provided for the pro-

cessing of employer grievances or (ii) that the court did not cor-

rectly identify the proponent of the unexplained grievance,

*ePursuant to Atkinson, 370 U.S, at 243, leading decisions of the

Court of Appeals have recognized that, despite broad initial langu

of a grievance procedure, the scope of the grievance ure

limi to complaints which can actually be p r the

language of the gevanee ure, Friedrich v, Local 780, Electrica

Workers, 515 F.2d 225, 227-8 (Sth Cir, tn obi Bliss & ny. In-

dustries Vv. Int. Asen. of Machinists, 613 F.2d 987, 901-2 (7th Cir, 1985),

'°'The Courts of Appeals have also properly recognized that com-

plaints which can be processed at the later steps of grievance and

arbitration are only those which ane processed at the earlier prape,

G. T. Sehjeldaht Co, v. Lodge 1680 Machinists, 303 F.2d 505 ( a

Cir, 1068); Friedrich, supra, note Oa, 515 F.2d at 229, Even

both parties to the UMWA contract can apply to an Arbitration Re-

view rd, which exercises discretionary jurisdiction over arbitra-

tion decisions, each party is nevertheless 4 ying | r review of the

‘employees’ grievance”, See C-3 and Vulecan-Cincinnati, Ine. v.

Steelworkers, 280 F.2d 103, 108 (6th Cir, 1961),

ances in the UMWA contract is also decisive, Atkinson,

370 U.S, at 243,"

The Steelworker’s Trilogy” “presumption of arbitra-

bility” does not make any strike damages’ claims in this

'The ca which order arbitration of strike damage questions

uniformly do so because the employer can file a grievance, For ex-

ample, all of the post Steelworkers Trilogy (1960) (see note 12,

infra) decisions of the Courts of Appeals cited in the Annotation,

‘Matters Arbitrable vnder Arbitration P verges of Collectiy bor

ontract, § 13 Breach pe iconjrect enerall amages", 24 2nd

52, as supplemented Later Case Service (yal 1977 Supp.), which

cupresely rule on the proper forum for stri 4 damage questions

order arbitration of strike damage questions on the basis of a finding

a grievance procedure open to both employer ape ome ee.

_ K, Porter Co, vy. Steelwor oy 400 F.2d 601, 20 ALR 3d 6 4th

Cir, ert Yale & Towne Mfg, Co. v, International Ase’n Machinists,

200 F.2d 482, 885 (3rd Cir, 1962) (B.D, Pa, 1961); Jeferson t

Cabinet Co, vy. International Electrical Workers, 318 F.2d 231, 233-

i ae Cir, 1963); Minnesota Joint Board, Clothing Workers v, United

arment Manufacturing 0, 998 F.2d 195, 198-9 Cath Cir, 13e*) cal-

ritti Co, v, Operating ngineers Local 150, 351 F.2d 676, 677 (7th Cir,

1965); General Dynamics Corp. v, Industrial Union of Marine Work-

ers, 409 F.2d 848, 859-4 (ist Cir, 1072); Howard Electric Co. v, Blec-

trical Workers, 423 F.2d 164, 167 (Oth'Cir, 1970), In EB. T. Simonde

Construction Co. v, Hod Carriers, 315 Fad 201 (7th Cir, 1962)

arbitration of strike damages was ordered ause the union waived

ite right to a of yaielel stay of arbitration, Valmac Industries v. Meat-

cutters, 519 F.2d 265, -8 (8th Cir, 1075), cited at opinion, A-41,

did not decide the question of the proper forum for the strike dam-

age question, Neither party objected to the arbitration forum (by

requesting a stay, ete.) nor to the arbitrability of the strike damage

question, The employer caper tially claimed that arbitration was

unnecessary since it believed the district court had already decided

the merits of breach of contract question, The court held ha

a was ha — Riy. | arbitre ility jul in , aigee

effect reve s Court in andlers Local 4 ,

Valmae ‘nd, Ine., 428 us 10 (1976), vhs

butors, Ine, Vv, Local 229, Teamsters, 483 F.2d 418, 420-1

Cir, 1973), cert. denied 415 U.S, 916; Bliss & Laughlin Vadussrign x

spostaston 4 aenintete, 5613 Fld (7th Cir

1s 5); Los Ange es Paper ag,

2d 769 (Oth Cir, 1 BD) . T. Schjeldaht c

Sreslworkere. 305" ad 109 “eth ¢ tripe) Woltan e Lees Tbe:

. r, ; Vv. 0,

10K, 818 Fed 225, 23 (8th a we sth ons

eelworkers Vv. Ame n » CO, 5, 1 : -

workers v, apterprice Wheel if rad , 363 U.S, 593 (00) steal

workers Vv, Warrior & Gulf Nav, Co,, 303 U.S, 574 (1960),

"As hereinafter, the term “strike damages" refers to all issues

arising a claim by an employer against union for a strike,

ese issues include breach of contract, the question the Court of

ls pompanced to arbitration, one issues such as union respon-

a ay, vf A amount of damages which are not the subject of the

10

case arbitrable, because there is no “doubt”, to which

the presumption might apply, that the coal operators

can not file grievances,” Therefore, the conclusion this

Court reached in Atkinson, immediately after citing the

Steelworkers Trilogy, applies herein as well, Atkinson

concluded that the contract was;

. not susceptible to a construction that the .

[reluctant party! was bound to arbitrate [al claim

for damages .. . for breach of the undertaking not

to strike,

370 U.S. at 241, Since, as documented above and pro-

claimed by Southern Ohio's personnel manager, “the

company doesn't file grievances”, the directive of the

Fourth Circuit to arbitrate the employer's claims con-

flicts squarely with Atkinson,

B. The Directive to Arbitrate the Question of Breach of an

Implied No Strike Clause Directly Conflicts With the Holding

of This Court in Buffalo Forge That an Implied No Strike

Clause Provides “No Possible Basie for implying From the

Existence of an Arbitration Clause a Promise Not to

Strike ...”., 428 U.S, at 408,

Buffalo Forge conclusively establishes the non-arbi-

trability of any claim of breach of an implied no strike

clause, Keeping in mind that the contracts in Buffalo

Forge contained an express no-strike clause, this Court

stated:

Thus, had the contract not contained a no-strike

‘The Courts of Appeals have mnowsse ruled that the

of arbitrability does not apply to make employer claims for ike

damages arbitrable when collective bargaining agreemen

rovide for the processing of employer grievances, A lat Food

istributors, Ine. v. Local 229, Teamsters, 483 F.2d 418, Srd Cir.

1079); Bliss & Laughlin Industries supra, note 11, 513 F.2d 060-00;

Friedrich, supra, n, 11, 615 Fad at bo9.

11

clause''"’ , . ., there would have been no possible

basis for implying from the existence of an arbi-

tration clause a promise not to strike which could

have been violated by the sympathy strike in

this case, Gateway Coal Co, v. Mine Workers,

(414 U.S, 368) 382 (1974)),

428 U.S. at 408 text at n, 10. Footnote 10 of Buffalo

Forge, noi mentioned in the opinion of the Court of Ap-

peals, held that Courts of Appeals with similar UMWA

contracts before them were “wrong” “to the extent”

they assumed “a mandatory arbitration clause implies

a commitment not to engage in sympathy strikes. . .”

(emphasis added).’ The dissent in Buffalo Forge spe-

cifically referred to the above text and, after citing foot-

note 10, agreed: “in particular, an implied no-strike

clause does not extend to sympathy strikes”, 428 U.S.

at 425 n, 17,"

'*Underscoring added, Although the underscored portion oe Buf-

falo Forge ae wo say “express no-strike clause”, that portion

pm could ony mean an express ne-strine clause, All of

n the text of foot ote 10 (428 U.S. at “ gavesye

~ J. genes, Gites implied no-strike clauses.

10 ronty it xplain why the sto in Birpore ee fx tala

not enjoined er A) - rity o be r Gateway l Cov,

UMWA, 414 US. “308 a) r Locat 17 yg J v. Flour

Co, 960 U8. 04 (1000). The inte out that Looe Gate-

neerned the lied | ke Suty. It sone be A Be in

mind that the qreure LY, of the Boo et line question was conceded

by the yatens | aS alo Forge. tioners have stea —~ ay nae

tained th stoppa herein were not over arbitrable

Although the ‘Cou A ls does refe t to footnote ® of Bi Jato

forge. 8 + Sompenion to footnote 10, it did not refer to footnote 1

wstelioner +. une te to legate any Bey procoden 4 omens op im

sym 8 0

lucas Flour no-serike clause. Bate et of the Ay ts Detore

this Court in Atkinson and Drake Bakeries con tained express no-

8] nts. ha iy supra, 370 U.S, at 280, n. n, 4; menses, cunts,

seat dain anes cited at note 11, supra, invol

damage liability SY Wane on express no-stri fe, Involved a

” runt yt ee + ot, the cinunen t has direct

, shown in reo

ruled that ~~ oe LY cross XN 2, ~) not ns UMWA

capt thy Pat ee v. Cifcul hae ee v0). ntert

3, 19775:

WA Voi Fad oe 008, M04 Me Cl ’ cert

October 4, 1977 (No.7 od ath eimaees w at,

12

In addition to the impossibility of directing arbitra.

tion of claims which are themselves not arbitrable, the

order of the Court of Appeals to arbitrate on remand

forces the parties to arbitrate a public right in a private

forum. In the absence of an agreement to the contrary,

not present on this record, arbitration, is reserved for

private right questions,

Any duty to cross picket lines (which is denied)

would only originate from the Lucas Flour implied no-

strike clause, discussed at note 6, supra, That duty

exists solely by operation of law from federal labor

statutes, §§ 203 (d) and 301 of Taft-Hartley, 29 U.S.C,

173 (d) and 185, and in particular on policies created

under § 301° by this Court, It has no basis in bargaining

history, contractual language or prior practice. Hence,

there is no arbitral subject matter upon which an umpire

could possibly determine the nature of the alleged duty.

The specialized confidence of arbitrators pertains

primarily to the law of the shop, not to the law

of the land... [Tlhe resolution of statutory .. .

issues is a primary responsibility of the courts...

Alexander v. Gardner-Denver Co,, 415 U.S, 36, 57 (1974)

(emphasis added),””

In sum, the remand order of the Court of Appeals

Textile Workers v. Lincoln Mille of Alabama, 353 U.S, 4486 (1987)

found § 301 to be authority for the federal courts to fashion a

apply federal substantive law from_the policy of the national labor

laws, Not only Lucas Flour, and Gateway Coal, supra note 6, but

alo, the Steelworkers Trilogy, supra note 12, Drake and Atkinson,

supra note 9, and Boys Markets, supra note 5, are federal substantive

law created thereunder,

Notwithstanding the central role of labor arbitration, the Court

nized that the “arbitrable processes [are| comparatively in-

ferior to the judicial processes .. .", Alexander v, Gardner-Denver

Co., 415 U.S. 46, 57 (1074), Gardner also stressed the limited judicial

review of arbitration decisions, 415 U.S, at 34, Arbitration decisions

are not reviewable on the merits but only subject to successful judi-

cial review when they are arbitrary, fraudulent or without authority,

13

conflicts with Atkinson, supra, because it directs arbi-

tration by a party who did not agree to arbitrate. The

directive also conflicts with the square holding of Buf-

falo Forge that the claim is not arbitrable, Certiorari

should, therefore, be granted because the Court of Ap-

peals has directed arbitration contrary to these funda-

mental rulings that arbitration should be ordered only

when the reluctant party agreed to arbitrate and, then,

only as to claims which both parties agreed to arbitrate,

Il, The Decision Below Presents an Important Statutory

Question on Which the “ourts of Appeal are in Direct Conflict.

In the Cedar Coal case the action of the district court

in dismissing the complaint, including the coal oper-

ator’s damage claim, was found to have been an error

by the Court of Appeals. The Court of Appeals “as-

sumled| the arbitrability of the question of whether or

not [the Cedar Coal local) might be required to cross .. .”

the picket lines. Part VIII (d) of opinion, A-39 (em-

phasis added), That assumption, coupled with the direc-

tive to arbitrate, amounts to a ruling that the coal oper-

ator claiming a sympathy strike has a cause of action

for breach of the Lucas Flour implied no strike clause—

at least pending a judicially directed determination of

arbitrability, and hence actionability, by the arbitrator.

The holding conflicts squarely with a decision of the

Third Circuit, under a substantially identical UMWA

contract,” that the refusal to cross picket lines does not

give rise to a damage action for breach of the implied

» ae Steel involved the 1968 UMWA agreement. The of

a tration yr a sag i quoted by the Third Circuit, 548

, a nguage

in the contract before this court. See C-3 to na) acanten

14

no-strike clause, U, S, Steel vy. UMWA, 548 F.2d 67, 73

(1976), cert, denied 45 USLW 2318 (June 13, 1977)."

The ruling of the Fourth Circuit also conflicts in prin-

ciple with a recent ruling of the Sixth Circuit upholding

the denial of injunctive relief for a sympathy strike.

The crux of the Sixth Circuit's decision was that the

stranger picket line question was not “arbitrable” and

hence not enjoineble, Southern Ohio Coal Co, v, UMWA,

551 F.2d at 703, 715 (6th Cir,, February 11, 1977), cert.

denied 46 USLW 3219 (October 4, 1977). This conflict

is particularly compelling and needful of resolution be-

cause it involves the same stoppage, some of the same

parties” and the same contract as the decision of the

Fourth Circuit,

The holdings of the Third and Sixth Circuits, which

were decided well before the decision of the Fourth Cir-

—— <<

"The Third Cireuit held:

Had the contract in the instant case contained a no-strike

clouse, the iseve whether the sympathy strike violated the

t

union's no-strike undertaking mig ve been rbitrable

In the absence of the no-atrike clause, however, alo Forge

ertabliches that there ie “no possible basis for implying from

the existence of an a bitration clause @ promise not to strike

thet could have been violated by the sympathy strike” in_ this

case... . Quite simply, the work stoppage at the U. 8. Steel

mine presented no arbitrable issue.

548 F.2d at 73.

The Sixth Cireuit held:

Buffalo Forge also uirer us to reject the Company's conten-

tion that the arbitration claure in the collective rgaining

agreement is broad enough to encompass the issue of whether

the union had contracted away the employees’ right to honor

icket lines... . The Bituminous Coal Wage Agreement of

074 does not contain an express no-strike clause so the issue

of the union's right to refuse to cross a picket line is not even

arguably arbitrable... . [Tjhe unions’ refusal to cross the

stranger picket line did not involve an arbitrable dispute...”

551 F.2d at 704 Although the determination of non-arbitrabilit

was made as to the issue of enjoinability, it also means that the wor

stoppage caused by pickets is not actionable under Lucas Flour as

the strike would not over an arbitrable matter. See note 6, supra.

“The International Union, '/nited Mine Workers of America and

coal operator, Southern Ohio Coal Company are parties in both cases,

15

cuit of July 1977,” are expressly based on this Court’s

ruling in Buffalo Forge. Since all of these holdings at-

tempt to apply the federal labor policies derived from

§ 301 of LMRA the decision of the Fourth Circuit pre-

sents an important statutory question on which the

Courts of Appeals are in direct conflict.

Ill, The Conflicts of the Decision of the Court of Appeals

for the Fourth Cireuit with Decisions of This Court and With

Decisions of Other Courts of Appeals Creates a Substantial and

Serious Hindrance to the Effective Administration of Justice.

This petition seeks review of only one of many errors”

committed by the Court of Appeals.” The directive to

arbitrate the Lucas Flour question, if allowed to stand

is an anomaly (see parts I and II, supra) in an actively

litigated area of federal labor law. Work stoppages re-

sulting from picketing in the coal industry are a matter

of numerous damage claims pending within the juris-

diction of the Fourth Circuit and other circuits.” For

example, the nearly 100 picketing cases * pending in

the District Courts of West Virginia would, if they were

in the Third or Sixth Circuits, be the subject of disposi-

tive motions.

The opinion of the Court of Appeals requires remand

"Both decisions were heavily relied u b tioners

pocsenses to the Court of Appeals at eas and ity,.-

at was denied.

tioners believe that all of the ruli of Se Couns Of Sapents

Ait) companion case involving Local U ay (A-16, A-31, and

and enjoinability (A-39) Mt the Cedar/Loenl 1766. Ky

Certiorari is not sought on those issues due to variety

factors: (i) the contract sued vpon has expired, (ii) the — a.

reumstances which apparently caused the are unlikely

2 a r, (iii) Ge ane & Ge ae, A v) the circum-

errors can be raised, consistent judicial

gad grepe \ commons undue hardship on petitioners, at the time cf

"In tion to the Fourth, Third and Sixth Circuits, similar liti-

gation is pending in the Seventh Circuit. - ”

*"Bee Appendix D, pp. D-1 - D-3, and footnote 30, infra.

16

of these cases to the uncertainties of arbitration for deter-

mination of the Lucas Flour question. District Courts

in the Fourth Circuit now faced with coal operator

requests for remands to arbitration” may be required

by the decision of the Fourth Circuit to direct, errone-

ously, remands to arbitration even though federal courts

in the neighboring Sixth and Third Circuits would dis-

miss the lawsuits. Since the unmistakable error will

inevitably pervade and infect this multitude of cases,

it must be corrected sooner or later.

In addition to burdening the judiciary, erroneous

remands to arbitration will overload the arbitration

process, which is, after all, the forum which every case

cited herein is attempting to promote. Arbitration is

ill equipped and ill suited, especially in the coal industry,

to process strike damage claims, which can amount, as

is shown above at note 30, to multi-million dollar claims.

The uncertainty created by the fundamental and clear

cut error of federal labor law committed by the Fourth

Circuit can only be, and should be, removed by this

Court in the interest of the prompt and economic termina-

tion of these two and a multitude of similar cases.

One case now pending before the Fourth Circuit, set for oral

argument on December 7, 1977, involves verdicts for work sto es

caused by cro gf excess of $458,000. UMWA et al. v. Carbon

Fuel, No. 77-1422. e brief of the coal operator, Carbon Fuel Com-

pany, specifically seeks a remand to arbitration of the above noted

stoppages and “[{u]pon receipt of the arbitrator’s opinion, the dis-

trict court can then either reinstate or vacate its judgments [of more

than $485,000] as to the strikes involved.” Brief filed on or about

August 4, 1 at p. 13. In another claim, this one for 2.5 million

dollars in damages, substantially identical to Carbon Fr el, now pend-

ing on summary judgment before the Southern District of West

Virginia, the operator has requested remand to arbitration identical

to that sought in the Carbon Fuel case. Youngstown Mines C -

tion v. U A, et al., U.S.D.C., S.D. W. Va. Civil No. 75-0 CH,

Motion for Partial Summary Judgment and Order to Arbitrate filed,

on or about October 10, 1977, p. 5.

17

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the order and opinion of the Fourth Circuit.

Respectfully submitted,

HARRISON COMBS

900 Fifteenth Street, N.W.

Washington, D. C. 20005

JAMES M. HavILanp

1108 Union Building

Charleston, WV 25301

COUNSEL FOR INTERNATIONAL UNION,

UNITED MINE WORKERS OF AMERICA

H. JoHN TAYLOR

1108 Union Building

Charleston, WV 25301

COUNSEL FOR DISTRICT 17; and LOCAL

UNION 1766, UNITED MINE WORKERS

OF AMERICA

Ross MARUKA

610 Deveny Bldg.

Fairmont, WV 26554

COUNSEL FOR DISTRICT 31; and LOCAL

UNION 1949, UNITED MINE WORKERS

OF AMERICA

APPENDIX

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A-l

APPENDIX A

Anited States Court of Appeals

For THE Fourtu Circuit

No. 76-1785

CeparR CoaL ComMPANY,

a Corporation

v. Appellant

UNITED MINE Worrers oF Amenica; et al.

Appellees

BITUMINOUS COAL OPERATORS’

ASSOCIATION, INC.

Amicus Curiae

APPEAL FROM THE UNITED STATES District COURT FOR

THE SOUTHERN DistRICT OF WEST VIRGINIA, AT

CHARLESTON. K. K. HALL, District JUDGE.

No. 76-1793 (also Misc. No. 76-8239)

CrepAR CoAL COMPANY,

a Corporation

v. Appellant

UNITED MInE WorKERS or AMERICA; et al.

Appellees

BITUMINOUS COAL OPERATORS’

ASSOCIATION, INC.

Amicus Curiae

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA, AT

CHARLESTON. DENNIS R. Knapp, DIsTrRIcT JUDGE.

A-2

No. 76-1846

SOUTHERN OHIO CoAL COMPANY,

a Corporation, and Ox10

Power Company, a Corporation

Appeliants

V.

UNITED MINE WorKERS OF AMERICA, et al.

Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF WEST VIRGINIA, AT ELKINS.

Rospert E. MAXWELL, DISTRICT JUDGE.

Argued August 10, 1976 Decided July 6, 1977.

Before WIDENER, Circuit Judge, LIVELY, Circuit

Judge,* and MacKENZIE, District Judge.**

WIDENER, Circuit Judge:

This appeal is a consolidation of three related cases.

In all three, plaintiff coal companies sought damages

and injunctive relief in the federal district courts against

striking union locals. Relief was denied for various

*United States Circuit Judge for the Sixth Circuit, sitting by

designation.

**United States District Judge for the Eastern District of Virginia,

sitting by designation.

A-3

reasons and by various procedures. In each case the

appellant is the coal company.

The facts of each case will first be discussed separately.

I

Case No. 76-1793 involves Cedar Coal Company (Ce-

dar) and the United Mine Workers of America, Local

Union No. 1759 (Local 1759). Cedar is a West Virginia

Corporation engaged in the production, preparation,

and shipment of bituminous coal. Local 1759 is a local

union which represents the employees who work at five

mines owned by Cedar: Grace No. 3, Ridgeroad No. 5,

Coal Fork Nos. 1 and 2, and Slaughter’s Creek No. 1.

Cedar and Local 1759 are signatories to the National

Bituminous Coal Wage Agreement of 1974 which con-

tains _specific arbitration procedures, and, in Article

XXVIII ‘the following clause:

ARTICLE XXVII—MAINTAIN INTEGRITY OF

CONTRACT AND RESORT TO COURTS

The United Mine Workers of America and the

employers agree and affirm that, except as pro-

vided herein, they will maintain the integrity of

this contract and that all disputes and claims

which are not settled by agreement shall be set-

tled by the machinery provided in the “Settle-

ment of Disputes” Article of this Agreement un-

less national in character in which event the

parties shall settle such disputes by free collec-

tive 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

A-4

and by collective bargaining without recourse to

the courts.

Prior to June 1976, a dispute arose at Grace No, 3

mine over the meaning of Subparagraph III, (a) (7) of

the 1974 Agreement:

“The Employer shall station a responsible em-

ployee on the surface to communicate at all times

with the employees when they are at work under-

ground,”

The dispute was whether this provision required this

job, the “responsible employee,” be given to a member

of the bargaining un't, and if so, whether the company

was required to create a new bargaining unit job to be

posted for job bidding under the collective bargaining

agreement or whether the duty could be assigned as an

additional duty to an employee holding an existing

bargaining unit job. The parties submitted the dispute

over the meaning of subparagraph (7) to arbitration.

On June 3, 1976, the arbitrator decided the contract

required Cedar to assign the job to a bargaining unit

member, a decision vindicating the Union's position.

But parhaps because the arbitrator misunderstood

the full scope of the dispute, he did not decide whether

the provision required Cedar to create a new job and

to post it for bidding by bargaining unit members, The

dispute continued over this undecided issue and on June

22 employees at Grace No, 3 mine went on strike in

support of their continuing demand that the company

create and post a new job for bidding.

The District and Local Unions filed suit in the United

States District Court on June 23, seeking injunctive

relief to enforce the arbitrator's decision as they inter-

preted it, that is, as requiring a new job classification

A-5

and posting. The hearing on the TRO-preliminary in-

junction against Cedar was scheduled for June 23, but

because of a continuing jury trial, the district judge

rescheduled the hearing for the following morning. The

employees of Grace No. 3 returned to work on June 23,

but apparently dissatisfied with the postponement of

their case in the district court, the Union continued

striking the following morning, June 24, when employees

at all of Cedar’s mines, whose employees were members

of Local 1759, struck, and Local 1759 decided not to

pursue further its request for injunctive relief in the

courts although a hearing had been set. The record in

that case discloses that it is still pending.

On June 24, Cedar suspended, subject to discharge,

two employees of Grace No. 3 mine who allegedly in-

stigated and encouraged the strike by picketing. The

employees filed a grievance over the suspensions and

the parties submitted the matter to arbitration, The

arbitrator, on July 1, upheld the suspension of the two

Grace No. 3 mine employees for two weeks without

pay, but rejected their discharge as too severe. A pro-

test over the suspension of these employees and a demand

that the suspension be rescinded became additional

reasons for the strike, which continued unabated.

Between June 26 and July 10, the strike was inter-

rupted by the miners’ regularly scheduled vacation.

During this time, the arbitrator rendered a written de-

cision on the posting issue which had been decided and

delivered orally July 1. On July 9, he announced in

writing that Cedar could assign the communications task

to a bargaining unit member as an ancillary dviy and

did not have to post a new job for bidding by bargaining

unit members.

A-6

On July 12, the first work day after vacation, Grace

No, 3 and Coal Fork mines did not return to work, re-

suming the strike. The Coal Fork mines returned to

work on July 13, but all Cedar employees (including

those at the Coal Fork mines) represented by Local 1759

(and by Local 1766) resumed the strike on July 14 and

remained continuously on strike to the time this appeal

was heard,

On July 12, Cedar filed suit for injunctive relief and

damages under § 301 of the Labor Management Relations

Act of 1947, as amended, 20 U.S.C. § 185. Cedar alleged

that the unions and employees followed a “pattern and

practice of refusing to submit... disputes... to peaceful

settlement through grievance and arbitration proce-

dures,’ that this pattern would continue, and that the

present strike was over the arbitrator's rulings both as

to the discharged employees and as to the job posting

of the communication job. At the same time, Cedar

moved for a preliminary injunction and a temporary

restraining order. The TRO issued on July 13, to expire

ten days later, and the hearing on the preliminary in-

junction was set for July 21. The employees protested

the company’s action in obtaining the restraining order

and disputed the company’s right to resort to the courts

to enforce the arbitrator's decisions and the arbitration

and implied no-strike provisions of the collective bar-

gaining agreement. They indicated to Cedar’s personnel

manager that these actions were additional reasons for

striking at all of the company’s mines.

Although copies of the TRO were posted and served

upon the employees, the strike continued and spread

to other mines, At a hearing on civil contempt before

the district court on July 16, two individual employee

defendants were found guilty of contempt and fined $50

A-7

each, The judge imposed on the union a $25,000 per day

coercive civil contempt fine and a $50,000 compensatory

fine.

On July 20, Local 1759 filed a motion to vacate the

TRO, emphasizing the three points to its position:

1. It argued the dispute was not arbitrable under

Buffalo Force Co. v. United Steelworkers of America,

AFL-CIO, 428 U.S. 397 (1976), because the strike, it

said, since at least July 18, was to protest federal labor

injunctions and was in response to pickets from other

locals who prevented employees from returning to work

by “asking ‘all UMWA miners to strike to stop the in-

junctions.’'’ Therefore, it argued the district court

lacked jurisdiction for an injunction under the Norris-

LaGuardia Act, 29 U.S.C. §§ 101-15,

2. It argued that because of threats of violence and

the likelihood of personal injury created by an abnorm-

ally dangerous condition at the mine, the employees’

refusal to return to work was not a strike under section

502 of the Labor Management Relations Act, 29 U.S.C,

§ 143, and therefore not enjoinable under 29 U.S.C,

§ 185.

3. Because the strike was not authorized by the de-

fendant labor unions, it was a “wildcat” strike, and the

unions could not be held responsible for it.

On July 22, Cedar suspended another three members

of Local 1759 for picketing their own operations. Ac-

cording to an affidavit by Cedar’s personnel manager,

those discharges have since been an additional cause of

the strike. The grievances filed in response to those

suspensions are now pending before the arbitrator.

July 22 was also the day scheduled for the hearing

A-8

on Cedar’s preliminary injunction. But the attorneys

for both partics were not available because of court

appearances related to other litigation over the strike.

The district judge therefore continued the hearing to

July 27, and extended the TRO until that day. But on

July 23 the Judge continued the hearing indefinitely

without stating any reasons. On that day, according to

an affidavit of the personne] manager of Cedar, Hayes

Holstein, the President of Local 1759 called him to say

that at a Local meeting, 1759 decided to continue strik-

ing until four additional demands were met, These

demands were:

1. That the UMWA receive justice equal with that

given coal companies in the federal courts.

2. That the judges of the United States District

Court for the Southern District of West Virginia be

investigated to see whether they have been improperly

influenced to side with coal operators against the UMWA,

3. That Cedar Coal Company dismiss and abandon

all of its cases in federal courts, including all contempt

actions, and further abandon and withdraw all contrac-

tual disciplinary action taken against any members of

Local 1759, and

4. That all coal operators including Cedar pledge

not to take any further legal or contractual actions

against members of the UMWA for their actions relating

to the strike.

Cedar applied for an injunction pending appeal under

Rule 62 FRCP. The district court denied the motion,

saying:

wht tee plaintiff may be entitled to such

on the basis of the allegations in the verified com-

A-9

plaint and the affidavit attached to the motion,

such an injunction would not serve to end the

strike; but would be unenforceable, and might

aggravate and prolong the strike by further an-

tagonizing the miners engaged in the strike.”

Cedar then applied for an injunction pending appeal

to the writer of this opinion, acting as a single judge

under FRAP 8 “in an exceptional case where reference

to a panel would be impracticable due to the require-

ments of time’, who granted an injunction ordering

Local 1759 to refrain from striking over any dispute

concerning the arbitrator's decisions relating to the

outside communication job or the discharge of the two

employees.

Cedar now appeals the district court's continuance

indefinitely of the hearing for a preliminary injunction,

under 28 U.S.C, § 1292(a) (1).

II

Case No, 76-1785 concerns another local union of the

United Mine Workers of America within District 17,

Local 1766, whose members are employees of Cedar

Coal Company and are signatory to the National Bitumi-

nous Coal Wage Agreement of 1974. Members of Local

1766 work at Cedar’s Denny Surface and Grace No, 2

mines.

On June 24 and 25, members of Local 1766 encountered

pickets at the mouth of Slaughter’s Creek Hollow, the

main entrance to mines under the jurisdiction of Local

1766. Local 1766 employees did not cross the picket

lines and did not report to work on those days. Accord-

ing to the Union, the pickets told members of Local 1766

that they were striking in protest of federal court in-

A-10

junctions in labor disputes. It is admitted that these

initial pickets were from Local 1759.

After the regular apnual vacation from June 26 to

July 10, members of Local 1766 returned to work for

two days. On July 14, pickets again appeared at the

beginning of the work shifts. Local 1766 members did

not report for work that day and have remained out up

to the time of the argument of this case.

On July 20, Cedar filed suit against Local 1766, and

the district and international unions, under 29 U.S.C,

§ 18. The complaint included allegations that the

miners had for a long time followed a pattern and prac-

tice of refusing to submit arbitrable disputes to peaceful

settlement through the arbitration procedures, and of

engaging repeatedly in work stoppages instead, It also

alleged a pattern and practice of the defendants to treat

arbitrable disputes arising at any mine of any signatory

operator as their own, as disputes between all employees

and all signatory operators, and as directly involving the

terms and conditions of employment of all employees

at all mines. This strike, the complaint alleged, was

over the arbitrator's rulings in the disputes of Local

1759.

Although a district judge of the court, as before re-

cited, had entered a TRO restraining Local 1759 “and all

persons acting in concert and participation with it, from

continuing to engage in the strike,” Local 1766 did not

return to work. As a result, all of Cedar’s mines served

by Locals 1759 and 1766 were shut down and rendered

idle.

Filed with Cedar’s complaint against Local 1766 was

a motion for a TRO. On July 20, the district judge

denied the motion, giving three reasons:

A-11

1. Since the dispute originally arose between Cedar

and Local 1759, it was not 1766’s dispute even though

they might profit from its resolution. As far as 1766 was

concerned, it was, instead, a sympathy strike.

2. “I understand from Buffalo Forge, when they said

that the Armco case was plainly wrong, or whatever the

words were, it was my understanding that that meant

that whether or not to cross a picket line was not an

arbitrable issue and therefore they couldn’t be compelled

to cross a picket line,” and

3. Whatever its original cause, the strike developed

into protest over real or imagined wrongs by the federal

courts.

After the court announced that it intended to rule

against Cedar on the motion for a TRO, counsel for

Local 1766 moved the court to dismiss the complaint for

failure to state a claim upon which relief could be

granted. The court granted the motion and dismissed

the complaint, not just as against Local 1766 but as

against all defendants.

Cedar immediately moved for an injunction pending

appeal, which was denied, and then applied to the writer

again, sitting as a single judge under FRAP 8, who denied

the application, saying the outcome of the appeal in view

of the recent Supreme Court case of Buffalo Forge Co. v.

United Steelworkers of America, AFL-CIO, 428 U.S.

397 (1976), was not certain enough to warrant an in-

junction pending appeal.

Cedar, in case No. 76-1785, appeals the dismissal of

its complaint for failure to state a claim upon which

relief could be granted.

A-12

Ill

Case No. 76-1846 involves employees of Southern Ohio

Coal Company: (Southern), a coal mining corporation

in Marion County, West Virginia. Local 1949 is the

labor organization representing Southern’s production

and maintenance employees working at the Martinka

Mine. Southern is a signatory to the National Bitumi-

nous Coal Wage Agreement of 1974 with the UMWA,

of which defendants District 31 and Local 1949 are

members.

A work stoppage at the Martinka mine began at 12:01

a.m., Monday, July 26, when employees met, at the access

road to the mine, twelve to fifteen pickets who were

passing out handbills reading as follows:

“UMWA STRIKE AGAINST INJUNCTIONS

“UMWA LOCAL UNION 1759, CEDAR COAL

COMPANY HAS A FEDERAL INJUNCTION

AGAINST THEM. THEY ARE BEING FINED

$50,000 and $25,000 A DAY FOR STRIKING.

“WE ARE SICK AND TIRED OF THE FEDERAL

COURTS TAKING THE SIDE OF THE COAL

OPERATORS. HUNDREDS OF LOCALS ALL

THROUGHOUT THE COAL FIELDS KNOW

HOW UNJUST THE USE OF FEDERAL IN-

JUNCTIONS ARE.

“ALL UMWA MINERS ARE ASKED TO

STRIKE TO STOP THE INJUNCTIONS AND

TO END ALL FINES AND SENTENCES.

“Paid by UMWA members, Combined Miners,

Robert Nelson, Chairman”

Some of these pickets were drinking and some ap-

peared to be drunk. The district court found the pickets

were not members of Local 1949, but were UMWA

SSE en

A-13

members. In its oral opinion the court stated that the

Southern employees “perhaps from fear or perhaps from

exercise of a right not to cross picket lines, or perhaps

for other reasons, respectful of the picket line and its

meaning to them,. . . did not cross it either at the mid-

night shift or at the 8:00 a.m. [shift].” It went on to find

that the resulting work stoppage was “one of failure to

cross a picket line maintained by others than the mem-

bers of this particular local union.”

On July 26, Southern filed suit against District 31 and

Local 1949 in the district court under 29 U.S.C. § 185,

asking for damages and injunctive relief. The complaint

alleged that the work stoppage was the result of refusal

to cross a picket line, and took the position that this

was a dispute resolvable under the arbitration provisions

of Article XXIII of the collective bargaining agreement.

The complaint further alleged that defendants refused

to submit the matter to arbitration, and that they “en-

gaged in a willful and deliberate pattern of refusing and

avoiding compliance with the arbitration and grievance

procedures,” resorting instead to work stoppages, a con-

clusion based on fifteen other work stoppages by this

local and district under the 1974 contract. There was

nothing to indicate, the complaint continued, that such

past pattern would not continue. But, after evidence

was taken, plaintiffs’ counsel conceded that there had

been no refusal to arbitrate. Just as importantly, al-

though given the opportunity, the union did not agree

to arbitrate without concurrently striking, although

arbitration was demanded.

Motions for a preliminary injunction and TRO accom-

panied the complaint. At a hearing on both,’ the district

'The district judge adopted a commendable procedure. He heard

both motions together heard oral evidence.

A-14

court took testimony and then denied the motions, rely-

ing on Buffalo Forge v. United Steelworkers of America,

AFL-CIO, 428 U.S. 397 (1976). Southern then appealed

from the denial of injunctive relief and applied for an

injunction pending appeal. As with Locals 1759 and

1766, Local 1949 had remained on strike until the argu-

ment of those cases with this one.

After the case was argued on the issue of an injunction

pending appeal, we inquired of the parties if the issue

of the denial of a preliminary injunction should be de-

cided now, rather than deferring the matter, and they

graciously agreed and filed additional authorities, all

recognizing that that issue had to follow regardless of

the outcome of a ruling on the injunction pending appeal.

IV

We may not close our eyes to the fact freely argued

by the parties that the strike which commenced with

the grievance of Local 1759 spread to affect at least a

substantial part of the bituminous coal industry. It has

since ceased and we have received additional briefs on

mootness.

Vv

In case No. 76-1785 concerning Local No. 1766, et al,

the unions take the position that the order dismissing

the complaint is not an appealable order under 28 USC

§ 1291.

The full text of the order is as follows:

“On motion of the defendants under Rule 12(b)

(6) of the Federal Rules of Civil Procedure, it is

hereby ordered that plaintiff’s complaint be, and

it hereby is, dismissed with prejudice for failure

to state a claim upon which relief can be granted.

“Enter: This 20 day of July, 1976.”

A-15

The gist of the unions’ argument is that, because the

order dismisses the complaint, rather than adjudicates,

and might leave room open for later amendment, it is

not an appealable order within the contemplation of §

1291. We do not agree. Not only does the transcript

indicate that the order was intended to be in all respects

final, we think an order dismissing a complaint with

prejudice for failure to state a claim upon which relief

can be granted, with no mention of amendment, and

no attempt at amendment shown in the record, is a final

appealable order under § 1291.

VI

In case No. 76-1793 concerning Local No. 1759, et al,

the unions contend that the indefinite continuance of the

motion for a preliminary injunction is not a denial of

injunctive relief and thus is not an appealable order

under 28 USC § 1292(a) (1).

It must be remembered that the temporary restraining

order issued by the court was to expire on July 23rd and

that the hearing on the preliminary injunction had been

set for July 22nd but was not heard on motion of the

unions because the attorneys for both sides were not

available due to court appearances related to other liti-

gation concerning the strike. On that account, the court

had continued the hearing on the preliminary injunction

to July 27th and had extended the TRO until the 27th.

But on July 23rd the judge continued the hearing on

the preliminary injunction indefinitely, that is to say

“until the further order of . . . [the] court,” stating no

reason, and the matter has never been heard, although

it was bound to have been brought to his attention by

the application for an injunction pending appeal which

was asked for in that court. So the failure to hear the

A-16

motion for the preliminary injunction cannot be taken

as inadvertence; rather, it may only ke construed as a

conscious denial of a hearing on the motion for a pre-

liminary injunction and a similarly conscious allowing

of the expiration of the TRO.

We hasten to add that by use of the word “conscious,”

we attribute no improper motive to the district judge,

rather using the word to distinguish between acts which

are voluntary on the cne hand and inadvertent on the

other.

We think the indefinite continuance amounted to the

refusing of an injunction and is appealable as such under

28 USC § 1292(a). In indistinguishable circumstances,

the Fifth Circuit has held such action appealable in

United States v. Lynd, 301 F2d 318 (5th Cir. 1962), and

noted the holding with approval in Kennedy v. Lynd,

306 F2d 222, 229, n. 3 (5th Cir. 1962). See also McCoy

v. Louisiana, etc., 332 F2d 915 (5th Cir. 1964). We follow

those precedents. See also Wright and Miller, Federal

Practice and Procedure, Vol. 11, § 2962. Were an appeal

not allowed under the facts as they are presented to us

in this case, it would permit a plain denial of even the

bare consideration of whether to consider injunctive

relief to go unaccounted for by virtue of an indefinite

continuance. We are aware, of course, that the mere

expiration of the TRO gives no ground for appeal. See

Wright and Miller, supra.

Since we treat the district court’s action as the refusal

of a preliminary injunction, the question before us is

whether the refusal was an abuse of discretion.

vil

The next defense the unions assert to these cases is

that they are moot so far as the injunctive aspects of

A-17

them are concerned. It is not contended that the dam-

ages question in case No. 76-1785 (Local 1766) is moot.

Their principal argument is that the mootness issue

is controlled by Oil Workers Local 8-6 v. Missouri, 361

U.S. 363 (1960), which followed Harris v. Battle, 348

U.S. 803 (1954).

In our case, the strike ended after the argument of

the case and the day before a hearing for Local 1759 on

a civil contempt citation before this court.

We think the cases are not moot, it being remembered

that the questions before us in No. 76-1793 (Local 1759)

and No. 76-1846 (Local 1949) are the denials of pre-

liminary injunctions, while the question before us in

No. 76-1785 (Local 1766) is the denial of any relief,

temporary restraining order, preliminary or permanent

injunction, or damages.

We begin with the proposition that mootness is a juris-

dictional question going to the existence of a case or

controversy under Article III of the Constitution. The

rule is stated in North Carolina v. Rice, 404 U.S. 244

(1971), that courts are not empowered to decide moot

questions or abstract propositions, but the exercise of

judicial power depends upon the existence of a case or

controversy. The suit must be definite and concrete,

touching the legal relations of parties having adverse

legal interests and be a real and substantial controversy

admitting of specific relief through a decree of conclusive

character as distinguished from an opinion of what the

law would be upon a hypothetical statement of facts.

Neither side would take exception, we think, to the

just stated proposition. The unions, however, claim that

under Oil Workers these cases are required to be moot

A-18

because the strike has ended. In that case, the State of

Missouri seized, under a Missouri statute, a public utility

which had been the subject of a strike by the union.

After the seizure, the State procured an injunction

against the strike in a State court, and the strike ter-

minated a day later. A month after that, a new collective

bargaining agreement was signed, and two months later,

the governor ended the seizure. During the course of

the litigation, the injunction had expired by its own

terms. The court held the case moot, stating that a judg-

ment at that late date would be wholly ineffectual for

want of a subject matter on which to operate, and an

affirmance would ostensibly require something to be

done which had already taken place, while a reversal

would ostensibly avoid an event which had already

passed beyond recall.

The Oil Workers’ opinion did not discuss Southern

Pacific Terminal v. ICC, 219 U.S. 498 (1911), stating

that the application of that case to a similar fact situatiun

had been rejected in Harris v. Battle, 348 U.S. 803 (1954).

Oil Workers differs from our case in that there a new

collective bargaining agreement was signed which had

removed the cause for the strike. Here, the same collec-

tive bargaining agreement is present. In Oil Workers,

the court said that adjudicating the merits would be an

adjudication of a cause which no longer exists. In our

case, as we show, the controversy is very much alive.

Oil Workers, however, was followed by Bus Employ-

ees v. Missouri, 374 U.S. 74 (1963), which involved the

validity of the same Missouri statute at issue in Oil

Workers. In Bus Employees, the governor had seized a

bus company under the same statute utilized in Oil

Workers. After the filing of the jurisdictional statement

in the Supreme Court, the governor, however, termi-

A-19

nated the seizure order, leaving the labor dispute unre-

solved. The Court held the case was not moot and dis-

tinguished Oil Workers because in Oil Workers the un-

derlying dispute had been settled and a new col-ective

bargaining agreement had been executed. The Court

added that there existed in Bus Employees not merely

the speculative possibility of the invocation of the statute

in some future labor dispute, but the presence of an

existing unresolved dispute which continued subject to

all the provisions of the statute involved. The report

does not indicate whether or not the strike which had

previously been enjoined by a State court in Missouri

started up again after the executive order of the gov-

ernor dissolving the seizure order.

In arriving at our conclusion, we have kept in mind

the anti-injunction policy of the Norris LaGuardia Act

and that we should avoid the at-largeness which brought

it on. See Sinclair Refining Company v. Atkinson, 370

U.S. 195, 215, 219 (1962) (Mr. Justice Brennan dis-

senting). We have also been mindful of the often re-

peated admonition that we should not lend ourselves to

becoming potential participants in a wide range of arbi-

trable disputes under existing and future collective bar-

gaining agreements for the purpose of preliminarily

dealing with the merits of the factual and legal issues

that are subjects for the arbitrator. See Buffalo Forge

Co. v. United Steelworkers of America, AFL-CIO, 428

U.S. 397 (1976). As stated in Buffalo Forge, p. 409, there

is no general federal anti-strike policy, and the Supreme

Court has never indicated that the courts may enjoin

actual or threatened contract violations despite the Nor-

ris LaGuardia Act, which of course is subject to Boys

Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235

(1970).

A-20

The mootness doctrine is nothing new, and years ago,

in Southern Pacific Terminal, the Court held a contro-

versy not moot which was capable of repetition, yet

evading review. In that case, the Interstate Commerce

Commission had issued an order to cease granting one

Young an undue rate preference for a period of not less

than two years. The period as extended had expired

prior to the hearing of the case by the Supreme Court.

The Court recited the mootness rule as that when “‘pend-

ing an appeal something occurs without any fault of the

defendant which renders it impossible, if our decision

should be in favor of the plaintiff, to grant him effectual

relief, the appeal will be dismissed.” p. 514. It stated

that in such cases the acts sought to be enjoined had been

completely executed and there was nothing that the

judgment of the court could have effected. A part of the

reasoning was that the ICC usually operated by con-

tinuing orders and that it ought not to be able to defeat,

by short term orders issued from time to time, the judi-

cial construction of its orders which affected both the

government and a carrier. The Court also mentioned

the rights of the public which the government had en-

deavored to procure by the judgment of a court. Follow-

ing Southern Pacific Terminal, numerous cases have

considered the “capable of repetition, yet evading re-

view,” rule. The ones which immediately concern us

are Sosna v. Iowa, 419 U.S. 393 (1975), and Weinstein

v. Bradford, 423 U.S. 147 (1975). Sosna did not involve

a labor union, rather holding not moot a claim contesting

the validity of an Iowa divorce residency statute where

a class of plaintiffs had been certified although the named

plaintiff had completed her residency and, indeed, been

divorced elsewhere. The significance of Sosna to this

opinion is that it is construed in Weinstein v. Bradford

A-21

(a prisoner’s rights case) in the context of application

of the capable of repetition, yet evading review doctrine.

The doctrine is there construed as limited to a situation

where two elements combined: (1) the challenged ac-

tion was in its duration too short to be fully litigated

prior to its cessation or expiration, and (2) there was a

reasonable expectation that the same complaining party

would be subjected to the same action again. The second

part of that standard is not substantially different from

the one applied by us only shortly before in Linkenhoker

v. Weinberger, 529 F2d 51, 52-53 (4th Cir. 1975).

The complaint in case No. 76-1785 (Local 1766)

charges that the unions have for a long time past followed

a pattern and practice of refusing to submit arbitrable

disputes or differences to peaceful settlement through

the grievance and arbitration procedures provided by

said contracts and have repeatedly engaged in strike

and work stoppages with an object to forcing and re-

quiring Cedar and other signatory operators to settle

such disputes and differences in accordance with the

demands of the unions and in violation of said contracts.

It also charges that since the effective date of the col-

lective bargaining agreement the unions had repeatedly

threatened and engaged in strikes and work stoppages

with an object to forcing and requiring Cedar and other

signatory operators to settle differences and disputes

which are required to be settled under the termis of the

collective bargaining agreement by the grievance and

arbitration procedure in accordance with the demands

of the unions. The complaint also charges that there is,

and has been for many years, a pattern and practice of

the unions to treat and consider arbitrable disputes and

differences arising at any and all mines of signatory

operators covered by the collective bargaining agree-

A-22

ment as their own, and to adopt as their own and as

matters directly involving their own self-interest any

and all disputes and differences arising at any mine of

any operator signatory to said collective bargaining

agreement, to engage in strikes and work stoppages in

connection therewith in derogation of the collective bar-

gaining agreement grievance procedures in order to

coerce the operators into interpreting, applying, and ad-

ministering the terms and provisions of the collective

bargaining agreement favorably to the unions. The

complaint further charged that the unions engaged in a

strike over and in protest of the arbitrator’s rulings with

respect to the job posting dispute and consequent dis-

charges which we remember took place in the mines

served by Local 1759, the sister union of Local 1766.

The complaint alleges irreparable injury and damages

and prays for injunctive relief to halt the strike, to re-

quire the present dispute to be submitted to arbitration,

to require future arbitrable disputes to be submitted to

arbitration, and for damages.

The complaint in case No. 76-1793 (Local 1759) alleges

that the unions had for a long time past followed a prac-

tice of refusing to submit local or district disputes or

differences at plaintiff's mines or related facilities to

peaceful settlement through the grievance and arbitra-

tion procedures provided by the collective bargaining

agreement but had repeatedly engaged in strikes and

work stoppages with an object to forcing and requiring

plaintiff to settle such disputes and differences in accor-

dance with the demands of the unions. It is alleged they

continue such pattern and practice. The complaint then

alleges the disputes over the outside communications

job and the discharge of the two employees, with the

A-23

resulting arbitrator’s awards and the resulting strike

over the awards.

The complaint alleges that Cedar has been and now

is ready, willing, and able to submit to arbitration any

and all matters giving rise to the dispute and work stop-

page. It alleges irreparable injury and prays for injunc-

tive relief to halt the strike, to submit the present dis-

putes to arbitration, to submit future arbitrable disputes

to arbitration, and for damages.

In case No. 76-1846 (the Southern Ohio and Local 1949

case), the verified complaint was in two counts. The

first count alleged a work stoppage as a result of the

refusal to cross the picket line previously described, the

members of which picket line being later found by the

district court to be members of the UMW4 but not of

Local 1949. It alleged that Southern Ohio was ready,

willing, and able to arbitrate the dispute of whether or

not the Local 1949 members had to cross the picket line,

irreparable injury, and damages.

The second count repeated the allegations of the first

count and added thai there was a likelihood that the

unions might repeatedly and willfully engage in work

stoppages in specific disregard of the collective bargain-

ing agreement’s provisions in that under the existing

1974 agreement there had been a total of 15 work stop-

pages or strikes previous to the existing strike, which

had resulted in the loss of in excess of 5,000 man days

of work. The complaint alleged a willful and deliberate

pattern o/ refusing and avoiding compliance with the

arbitration procedures of the collective bargaining

agreement, and resorting instead to the economic pres-

sure of strike and work stoppages for the purpose of

coercing accession to demands of the unions which were

A-24

subject to the arbitration procedures of the collective

bargaining agreement. It alleged that Southern Ohio

was and had been ready, willing, and able to arbitrate

the disputes but that the unions had refused so to do.

The complaint charged that the continuing resort to

strikes rather than to arbitration would likely continue

into the future.

The complaint, as to the first count, prayed for in-

junctive relief to stop the strike, to submit the dispute

to arbitration, and to take such further action as might

be necessary to comply with the collective bargaining

agreement. As to the second count, the complaint

prayed for injunctive relief to stop the strike, to submit

present and future arbitrable disputes to arbitration,

and to take action necessary to assure compliance with

the terms of the collective bargaining agreement. Dam-

ages were asked for under the first count.

In ascertaining whether these cases are moot, because

the complaint was dismissed in No. 76-1785 (local 1766),

the allegations of the complaint must be taken as true.

Kossick v. United Fruit Growers, 365 U.S. 731, 732

(1961). We think the same principle must apply in case

No. 76-1793 (Local 1759), where the district court, by

its indefinite continuance, denied injunctive relief with-

out a hearing which deprived Cedar of any chance to

present facts other than those alleged in the complaint

as surely as if the case had been dismissed. A similar

principle, albeit somewhat different, should apply in

case No. 76-1846 (Local 1949). In the case concerning

Local 1949, a hearing was held, so we should consider

both the allegations of the verified complaint and the

facts shown at the hearing should they be different

from the complaint in any essential element, which they

are not.

A-25

It is, of course, admitted by all that the strike ended

during the pendency of this appeal and only a short

while after the argument of the cases. It is therefore

apparent that the first element of the test in Weinstein

was met, that is to say, the challenged actions in each

case were in their duration too short to be fully litigated

prior to their cessation or expiration. The challenged

action of each of the unions is its strike which ended

prior to the time it was fully litigated.

In case No. 76-1785 (Local 1766), Cedar has alleged

that the unions have followed a pattern and practice of

refusing to submit arbitrable disputes or differences to

peaceful settlement through the grievance and arbitra-

tion procedures provided by the collective bargaining

agreement, and that they have repeatedly engaged in

strikes and work stoppages with an object to forcing

and requiring Cedar to settle such disputes in accordance

with the demands of the unions rather than through

arbitration as required by the collective bargaining

agreement. Cedar also charges a pattern and practice

of treating and considering arbitrable disputes and

differences arising at other mines of signatory operators

covered by the collective bargaining agreement as their

own and adopting the same as matters involving their

own self interest, and to that end engaging in strikes

and work stoppages in connection with such disputes in

violation of the collective bargaining agreement griev-

ance procedures.

In case No. 76-1793 (Local 1759), Cedar has alleged

that the unions had for a long time past followed a prac-

tice of refusing to submit local disputes and differences

to settlement through the grievance and arbitration

procedures provided by the collective bargaining agree-

ment and that they had repeatedly engaged in strikes

A-26

and work stoppages with an object to forcing and re-

quiring Cedar to settle such disputes and differences

in accordance with the demands of the unions rather

than through the grievance procedures provided by the

collective bargaining agreement. Cedar alleges they

continue such pattern and practice and that the strike

under consideration is an example.

In case No. 76-1846 (Local 1949), Southern Ohio

alleges a willful and deliberate pattern of refusing and

avoiding compliance with the arbitration and grievance

procedures and instead a resort to the economic pressure

of strikes and work stoppages for the purpose of coercing

accession by Southern to demands of the unions instead

of subjecting the disputes to the arbitration procedures

of the collective bargaining agreement. It alleges that

the unions not only have failed and refused to subject

the present dispute, which it says is arbitrable, to the

grievance procedure of the collective bargaining agree-

ment, but that the unions have, under the present agree-

ment, engaged in 15 strikes over arbitrable issues in-

stead of arbitrating them, and it alleges this pattern is

likely to continue.

Cedar invites us to consider its affidavits filed with

its applications for injunctions pending appeal in the

ascertainment of whether or not these cases are moot.

We think they may be considered in ascertaining

whether the cases are moot, although they should not

be considered in ascertaining the merits. This is so

because there was no mootness question before the dis-

trict court, so we are not reviewing that. Rather, we

are deciding whether the cases are now moot, and just

as the end of the strike during the pendency of the appeal!

is a fact which we should consider in deciding the moot-

ness question, we should also consider other undisputed

A-27

relevant facts. As we have stated, mootness as we con-

sider it here arises when “something occurs” “pending

an appeal.” Southern Pacific Terminal, p. 514. One affi-

davit filed by Cedar with respect to Locals 1759 and 1766

shows that there have been 15 strikes by Cedar employ-

ees and local unions under the 1974 agreement over

arbitrable issues; that 7 of those strikes were engaged in

by employees at mines other than the mine at which

the dispute causing the strike arose, as well as by the

employees at the mine where the dispute arose. The

other affidavit shows there have been 26 strikes by Cedar

employees and local unions under the 1974 agreement,

12 of which were engaged in by employees at inore than

one of the company’s mines, and all of the 12 strikes

were engaged in by employees in both Locals 1759 and

1766. While these affidavits may seem, on their face,

to possibly be somewhat inconsistent, they are not nec-

essarily so, which further points out the difficulty caused

by the district courts’ failures to grant hearings in either

of these proceedings. These facts in all events are essen-

tially undisputed by the unions as they may relate to

our examination of the mootness question.

We think the allegations of a pattern and practice of

strikes over arbitrable issues instead of resorting to the

grievance procedures of the contract, coupled with the

allegations in these three cases, of repeated specific in-

stances of striking over such issues rather than arbi-

trating, are facts sufficient to show that there was a

reasonable expectation that the same complaining

parties (Cedar and Southern Ohio) would be subjected

to the same action again, and thus that the second con-

dition of the doctrine as set out in Weinstein has been

complied with.

In this context, we note that in at least two cases the

A-28

Supreme Court has noted, in cases involving labor rela-

tions and strikes, that a factor to be considered is that

“.. authorizing the issuance of a temporary injunction

as is frequently true of a temporary injunction in labor

disputes, may effectively dispose of . . . [litigants] rights

and render entirely illusory his right to review .. . lin

the Supreme Court] as well as his right to a hearing

before the Labor Board.” Liner v. Jafco, Inc., 375 U.S.

301, 308 (1964). That principle was alluded to in Liner

in holding a case not moot in an appeal by a union. The

same principle was relied on in Super Tire Engineering

Company v. McCorkle, 416 U.S. 115 (1974), and espe-

cially as that case was construed in Weinstein, p. 148.

The principle quoted from Super Tire in Weinstein, at

p. 148, is that “ ‘the great majority of economic strikes

do not last long enough for a complete judicial review

of the controversies they encounter,” see Super Tire,

125-126.

The unions next argue that even if the issue is one

properly framed as capable of repetition, yet evading

review, that the cases only allow this view of mootness

when a governmental interest is involved. See Super

Tire, p. 122. We think this position is a too narrow view

of the mootness doctrine. As a matter of principle, we

doubt that a court is any less obliged to do justice between

man and man than between citizen and sovereign. It

is true that in the cases involving governmental entities,

there will ordinarily be a policy, statute, or regulation

which, unless not revoked or repealed, will continue to

exist and which may indeed make more likely a repeti-

tion of the event which brought on the controversy in

question. Super Tire phrases it as a brooding presence.

But the Supreme Court, in Carpenters Union v. Labor

Board, 357 U.S. 93 (1958), in note 2, has applied the

A-29

rule of United States v. W. T. Grant, 345 U.S. 629 (1953),

to a dispute between companies and unions before the

Labor Board over the hot cargo provisions of union con-

tracts. The “sole question” in that case was whether

the hot cargo provisions of the collective bargaining

agreements involved amounted to an unfair labor prac-

tice in violation of 2 USC § 158(b) (4) (A). The W. T.

Grant holding applied in the Carpenters Union case was

that the case was not moot since the court could not say

there was no danger of recurrent violation. No analysis

of mootness in a case involving a labor dispute would

be complete without the consideration of Buffalo Forge

at note 8. In that case, the sympathy strike of a produc-

tion and maintenance union took the form of those em-

ployees refusing to cross a picket line established by

office and technical workers. Although the dispute

between the office and technical workers and the com-

pany continued, the production and maintenance em-

ployees’ sympathy strike had ended prior to the hearing

of the case, but the strike might have been “resumed

at any time in the near future at the direction of the

international union or otherwise.” 45 L.W. at 5348.

The court held the case was not moot despite the return

of the production and maintenance employees to the job,

relying on Super Tire and Bus Employees. It stated that

“(tlhe presence of an existing dispute makes this a live

controversy. ...” 45 L.W. at 5348, note 8.

The importance of the holdings in Buffalo Forge and

Carpenters Union are that in each of them the court

applied, to disputes between companies and unions, the

same mootness rules applicable in the cases in which

there appeared a public interest such as the enforcement

of a statute. And in both of those cases, which were

suits between private parties over the construction of

A-30

collective bargaining agreements and involving strikes

which had ended during the pendency of the actions, the

Court relied upon cases which had been decided in the

context of the presence of a public order, statute, regula-

tion, etc. This leads us to believe that the rules for

ascertaining mootness in public interest and private

cases should be essentially the same. While it is true

that courts may take a longer look at cases involving a

public policy, statute, or regulation because of the con-

tinuing presence of such, we do not think it is true that

different rules are applied. Indeed, since mootness is a

jurisdictional principle, no sense of urgency brought

about by the application of a public law, etc., should

be able to confer jurisdiction on a court where it has

ceased.

In this respect, we also note that the collective bar-

gaining agreement here in question affects a substantial

part of the entire bituminous coal industry in the United

States. All signatory operators throughout the country

are considered a single bargaining unit. See United

Mine Workers, 179 NLRB 479 (1969). The Bureau of

Mines weekly coal report of March 18, 1977, for example,

shows that West Virginia produces more than 15% of

the nation’s bituminous coal, 2,086,000 tons in that week.

The plan on file in this court for the disposition of cr .a-

inal cases from the Southern District of West Virginia

shows that in fiscal 1975 there were about 300 Boys

Market injunction cases in the Southern District of West

Virginia alone involving wildcat strikes. So, if the

public interest is a sine qua non in determining whether

or not the capable of repetition, yet evading review

doctrine is to be applied, and we doubt that it is, we

think the public has an interest in having decided the

questions which have arisen again and again between

A-31

the parties here and which in the strike involved in

these cases directly affected almost the entire bitumi-

nous coal industry of the nation.

Accordingly, we hold that the questions are not moot.

Accord, Atlantic Richfield Co. v. Oil and Chemical Work-

ers Int. Union, 447 F2d 945 (7th Cir. 1971).

Vill

A.

In each of the cases before us, there is no argument

but that, aside from the question of the construction

of Buffalo Forge, the necessary prerequisites for the

issuance of Boys Markets’ injunctions have been met as

set out in that opinion at page 254, and no discussion of

those various factors is either necessary or appropriate

here.

B.

Our principal problem is to construe Buffalo Forge

and apply it to the facts of these cases.

Certiorari was granted in Buffalo Forge because the

Courts of Appeals were divided in their construction of

Boys Markets, and the Court set Buffalo Forge in the

context of a statement by the Court of Appeals that the

strike in that case was not “ ‘over a grievance which the

union has agreed to arbitrate’”’. 428 U.S. at 404 (1976);

417 F2d at 1210 (2d Cir. 1975). In Buffalo Forge, two

office and technical workers’ locals of the United Steel-

workers had been certified to represent the office and

technical employees but were unable to consummate

their first collective bargaining agreements with the

company. They struck and established picket lines, as

they had a right to do, in the prosecution of their de-

mands. The office and technical workers’ strike and

A-32

pickets were, of course, a part of a classically legitimate

strike. Two other locals of the United Steelworkers,

representing the production and maintenance employees

of the company, refused to cross the office and technical

workers’ picket lines. The production and maintenance

workers had no separate quarrel with the company,

but maintained they had a right to refuse to cross the

picket lines despite a no-strike clause in their contracts

with the company. The only dispute the company had

with the production and maintenance locals was whether

or not they had a right to refuse to cross the office and

technical locals’ picket lines. The contracts of the pro-

duction and maintenance locals also contained broad

arbitration clauses. While the Court held, p. 410, that

the issue of whether or not the production and mainte-

nance locals’ refusal to cross the office and technical

picket lines was arbitrable under the contract: “{clon-

cededly, that issue was arbitrable,” the Court went on

to hold that an injunction should not issue pending

arbitration and stated that “. . . it does not follow that

the district court was empowered not only to order

arbitration but to enjoin the strike pending the decision

of the arbitrator. .. .”

The Court reasoned that “(nleither its [the strike of

the production and maintenance locals] causes nor the

issue underlying it was subject to the settlement pro-

cedures provided by the contracts between the employer

and... [the production and maintenance locals], p. 407,

408.

We think the Court meant to tie together the non-

arbitrability of the underlying cause with the cause of

the strike at issue so that, when the underlying cause

is not subject to arbitration, a refusal to cross a picket

line, generated by a strike over the underlying cause,

A-33

is not a violation of a no-strike clause which is enforce-

able by injunction against the strike'’* although it may

be by arbitration. In our opinion, the Court meant thus

to restrict the holding of Boys Markets, which many

cases had taken to be that if an issue were arbitrable,

assuming other conditions were met, an injunction might

issue to prevent a strike pending arbitration of the arbi-

trable issue. Following Buffalo Forge, it seems that

where the underlying issue is not arbitrable, then a

refusal to cross a picket line set up on account of that

underlying issue, although the refusal may be arbitrable,

may not be prevented by injunction pending arbitration.

Our analysis is supported by note 9 in Buffalo Forge

as it deals with the cases of the various circuits which

are overruled at least by strong implication. In NAPA

Pittsburgh,’ Altoona Local 110, in a dispute over recog-

nition, picketed the Pittsburgh location where Local

926 was the bargaining agent. The underlying dispute

between Local 110 and NAPA Pittsburgh, representa-

* tion, of course was not arbitrable, especially as between

Local 926 and the company. In Island Creek,* a dispute

arose between Local 680 and Florence Mining Company.

Local 680 picketed Island Creek, which had as its local

988, both of the UMW. The nature of the dispute be-

tween Local 680 and Florence is not divulged in the

opinion, but it is obvious that Island Creek could not

have arbitrated an issue between Florence and Local

680. In Armco, the pickets were to protest federal and

State allocation of gasoline, a matter obviously not sub-

‘aPending arbitration of course.

chr ana is Gi ntasmentow 92 Fad 21 a

ie yd wr aa Workers, 507 F2d 650 (3rd Cir. 1975),

an eS , » a Workers, 505 F2d 1129 (4th Cir. 1974),

A-34

ject to arbitration in any context. In Pilot Freight Car-

riers, Local 512, from Jacksonville, Florida, was in dis-

pute with Pilot over recognition. On account of that

dispute, the employer was picketed at its Kernersville,

North Carolina installation, which had as its local 391,

both Teamsters Locals. The underlying recognition dis-

pute, of course, was not arbitrable in any context. In

Wilmington Shipping Company,’ employees of the Port

Authority struck and picketed the Port of Wilmington.

Local 1426 of Wilmington Shipping Company refused to

cross the picket line, as it had a right to do if the picket

line were bonafide. The dispute was over whether or

not the picket line was bonafide, and the parties agreed

that this was an arbitrable matter under the contract.

It is seen, though, that Wilmington Shipping Company

could not have agreed to arbitrate with Local 1426 the

underlying dispute between the Port Authority and

its employees. In Monongahela,’ Local 2357 was in a

dispute with the employer at Clarksburg over recogni-

tion and as a result picketed the employer at Panhandle,

which had as its local 2332, both IBEW. It is seen that

Local 2332 and the employer cou’» not have arbitrated

a dispute over recognition between Local 2357 and the

same employer. In Valmac,’ Local 425 had separate con-

tracts with the employer at four towns in Arkansas. As

a result of contract expirations at two of the towns and

the resulting dispute, the employer’s operations at the

other two towns were picketed. The renewals of the

contracts, of course, were not subject to arbitration.

‘Pilot Freight Carriers, Inc. v. Teamsters, 497 F2d 311 (4th Cir.

1974), cert. den. 419 U.S. 869 (1974).

‘Wilmington Shipping Co. v. Longshoremen, 86 LRRM 2846 (4th

Cir. 1974), cert. den. 419 U.S. 1022 (1974).

e ?Monongahela Power Co. v. Electrical Workers, 484 U.S. 1209 (4th

ir. 1973).

*Valmac Industries v. Food Handlers, 519 F2d 263 (8th Cir. 1975),

vacated 428 U.S. 906 (1976).

A-35

In Associated General Contractors,” Local 110, IBEW,

picketed a job site on which the electrical subcontractor

was paying lower wages than Local 110 contracts would

have provided for had it been on the job instead of Local

84 of the Christian Laborers Association, which had

the electrical subcontracting labor. In a suit brought

by the general contractor and the mechanical subcon-

tractor against their locals which refused to cross 110’s

picket lines, it is seen that the underlying dispute, that

of the lower wages paid to members of Local 84, was

not subject to arbitration between the general and mech-

anical contractors and their locals.

The theme of all of these cases just named, and over-

ruled at least by implication by the Supreme Court in

note 9, is that either the underlying dispute was not

subject to arbitration at all or at least it was not subject

to arbitration by the defendant union and the company.

Put another way, the central question to these cases

seems to be: Is the object of the strike at hand to compel

the company to concede an arbitrable issue?

Our conclusion as to the central question in cases

such as the ones we have before us is further strengthened

by the decisions listed in note 9 of Buffalo Forge as having

been correctly decided.

In Amstar,'° the company’s installation at Arabi,

Louisiana (Meat Cutters Local No. P-1101) was picketed

by ILA pickets presumably in furtherance of an eco-

nomic dispute with Amstar, whose contracts with long-

shoremen’s locals had expired at Brooklyn, Philadelphia,

and Boston. The underlying dispute, an economic one

over contract expiration, was not arbitrable, of course.

*Associated General Contractors v. Operating Engineers, 519 F2d

269 (8th Cir. 1975).

'°Amstar Corp. v. Meat Cutters, 468 F2d 1372 (5th Cir. 1972).

A-36

In Plain Dealer,'' the Newspaper Guild was engaged in a

lawful economic strike and picketed the paper. The craft

unions representing some of the other employees would

not cross the picket lines. While neither the district

court's opinion nor the per curiam affirmance of the

denial of injunctive relief discloses the cause of the

underlying strike of the Newspaper Guild, it seems to

us doubtful that a lawful economic strike would be

arbitrable at all. Thus, Amstar could not concede an

arbitrable issue because there was none, and neither

could the Plain Dealer.

Since the Supreme Court, at p. 407 of Buffalo Forge,

has stated, in effect, that Boys Markets is not overruled,

“Boys Markets plainly does not control this case,’ we

take it that a correct construction of Buffalo Forge is to

limit the application of Boys Markets so that it does not

apply in cases where the only dispute between the com-

pany and the union is over the meaning or application of

the no-strike provision, express or implied, which dispute

has been brought about by a dispute which is mot arbi-

trable. The production and maintenance locals’ refusal

to cross the picket lines in Buffalo Forge was plainly

brought about by the dispute between the company and

the office and technical locals, which underlying dispute’

was not arbitrable. So, although the production and

maintenance strike obviously was in an effort to compel

the company to concede an issue to the office and tech-

nical locals, it was not to compel the company to concede

an arbitrable issue.

We next apply these principles to the controversies

between the unions and their respective companies here.

''Plain Dealer Pub. Co. v. Cleveland Typographical Union, 520 F2d

1220 (6th Cir. 1975).

‘See Kentuc West Va. Gas Co. v. Oil, Chemical and Atomic

Workers, No. 76-1852 (6th Cir. 1977).

A-37

C.

Case No. 76-1793 involving Local 1759 and Cedar Coal

Company.

The best light that can be put on the strike by Local

1759 is that it commenced over the arbitrator’s award

in the dispute concerning the communications job and

was accentuated by the discharge of the two employees

for taking part in that strike. Not only were both of

these disputes plainly subject to arbitration, they were

in fact arbitrated. Indeed, the union filed a suit in the

district court to enforce one of the awards.

Extended discussion of this as part of this case is not

necessary because of a passage in Buffalo Forge, which is:

“Contrary to the Court of Appeals, the employer

claims that despite the Norris LaGuardia Act’s

ban on federal-state injunctions in labor disputes,

the district court was empowered to enjoin the

strike by § 301 of the Labor-Management Rela-

tions Act as construed by Boys Markets v. Retail

Clerks Union, supra. This would undoubtedly

have been the case had the strike been precipitated

by a dispute between union and management

that was subject to binding arbitration under the

provisions of the contracts.” p. 406.

The facts of Local 1759’s strike fit squarely into this

language, and it is clear that, on the facts alleged in the

complaint, the refusal to hear the preliminary injunction

was error.

We do not think valid the unions’ defense that the

nature of the strike changed. Their contention is that,

following the district court’s restraining order, additional

causes to those just above set forth were that the com-

pany had filed a suit in the federal court to enforce the

contract under Boys Markets and that the district court

A-38

had issued its TRO pursuant to the company’s suit. Were

we to hold valid a defense in such cases, that the union

may strike over the actions a court has taken in its con-

sideration of the matter, such would amount to nothing

more nor less than an overruling of Boys Markets by

the unilateral act of one of the parties and would abandon

completely the function of the courts in these cases as

set forth in Boys Markets. It would be just as tenable for

a company which had been ordered to arbitrate by a

court to refuse to do so as for a union to do the same

thing.

D.

Case No. 76-1785, Local 1766 and Cedar Coal Company.

Local 1706 is the sister local of Local 1759, and it

should be remembered that the dispute between Local

1759 and Cedar commenced this whole controversy. The

facts in the complaint, which we must treat as true,

allege that the strike of Local 1766 was over the arbi-

trator’s rulings between 1759 and Cedar.

While the dispute may not technically have been “over

a grievance which both parties are contractually bound

to arbitrate,” Boys Markets, p. 254, see Buffalo Forge, p.

404, because it is at least arguable that Cedar could not

have conceded the arbitrable issue to Local 1766, it

rather being engaged in arbitration with Local 1759, we

think that construction of Boys Markets is too narrow

here. Here, the employer is the same as to both Locals;

the collective bargaining agreement is the same; the

bargaining unit is the same; the locality of employment

is the same; and, most importantly, the purpose of 1766’s

refusal to cross the 1759 picket lines was not to coerce

Cedar into conceding an issue to Local 1759 which was

not arbitrable; rather, the purpose of the 1766 strike

A-39

was to coerce Cedar into conceding an issue to Local 1759

which was admittedly arbitrable. We also bear in mind

that under the two-tier arbitration provisions of the

collective bargaining agreement, Article XXIII, the

award in the 1759 case apparently would affect also Local

1766, for there are only three grounds of appeal to the

Arbitration Review Board: that the decision of a panel

is in conflict on the same issue with other panels; that

the decision involves a new question of a substantial

contractual issue; and that the panel decision is arbi-

trary, etc.

We think, then, that since the purpose of the strike

of Local 1766 was to compel Cedar to concede an arbi-

trable issue to Local 1759, with the same employer, the

same collective bargaining agreement, the same bar-

gaining unit, and the cause of Local 1759 made its own,

that the Buffalo Forge exception to Boys Markets should

not apply, and assuming the arbitrability of the question

of whether or not Local 1766 might be required to cross

Local 1759’s picket lines, it was error to dismiss the

complaint.

E.

Case No. 76-1846, Local 1949 and Southern Ohio Coal

Company.

The district court, in this case, found that the resulting

work stoppage was “one of failure to cross a picket line

maintained by other than the members of this particular

local union.”

The court did not find whether the purpose of the

strike was merely to express sympathy for Local 1759’s

position or to require the concession of an arbitrable

issue by either Cedar or Southern. But we do not think

that a lack of more specific findings should justify recon-

A-40

sideration of that point. In this case, there was no dispute

between Southern and Local 1949 which had anything

to do with the picket line, or not crossing it, until after

the picket line appeared. And, while the refusal to cross

the picket line may have been an arbitrable dispute, it

was the only dispute between Southern and Local 1949.

Even considering that the underlying purpose of 1949’s

strike may have been to put indirect pressure on Cedar

to concede an arbitrable issue to Local 1759, Southern

could concede nothing to Local 1759 because it was not

bound to it by a collective bargaining agreement, and

there was no dispute between Southern and Local 1759.'”

Accordingly, we think the district court correctly de-

nied a preliminary injunction pending arbitration in

that case.

IX

This leaves the procedure on remand.

Our opinion is a rather narrow one, going only to the

denial of injunctive relief pending arbitration in all

three cases and in only one, No. 76-1785 (Local 1766)

going to the outright dismissal of the complaint.

We think the issue of whether Local 1766 might be

required to cross Local 1759’s picket line was an arbi-

trable issue, and we think the same should be said of

the refusal of Local 1949 to cross the picket line made

up of UMW members, not necessarily from Local 1759.

On remand, the district courts involved should direct

those issues to be arbitrated forthwith, and when such

arbitration has been completed, then consider those

cases (No. 76-1785, Local 1766) (No. 76-1846, Local

1949) in the light of this opinion.

~“19The facts of this case are remarkably similar to Island Creek,

supra, which the — Court has indicated was decided wrongly in

Buffalo Forge, note 9.

A-41

In these same cases involving Locals 1766 (No. 76-

1783) and 1949 (No. 76-1846), the arbitration of the

matter of whether those locals might be required to

cross the picket lines established should be decided by

the arbitrators prior to proceeding with the damages

aspects of the cases. Drake Bakeries v. Bakery Workers,

370 U.S. 254 (1962); Valmac Industries, Inc. v. Food

Handlers, 519 F2d 263, 269 (8th Cir. 1975), vacated on

other grounds, 428 U.S. 906 (1976).

».4

The employees involved in all of these cases are long

since back at work and for that reason alone, no pres-

ently existing need being shown, in our discretion we

deny the request for an injunction pending appeal in

case No. 76-1785 (Local 1766).

For the same reasons, in our discretion we dissolve

the injunction previously issued in case No. 76-1793

(Local 1759), it being obvious that the district courts

may grant temporary injunctive relief if otherwise au-

thorized after remand in any of the cases.

An injunction pending appeal is denied in case No.

76-1846 (Local 1949) for the reasons expressed in this

opinion affirming the denial of injunctive relief by the

district court.

XI

It should not be implied that, because injunctions may

have been authorized against Locals 1759 and 1766,

such are presently required. As to that point, we express

no opinion, as we also do not as to the various claims

made for permanent injunctive relief and damages.

A-42 B-1

XII APPENDIX B

In case No. 76-1785 (Local 1766), the judgment of STATUTE INVOLVED

the district court is vacated and the case is remanded Section 301(a) of the Labor Management Relations

for action not inconsistent with this opinion. Act of 1947, 61 Stat. 156, 29 U.S.C. § 185(a) provides:

In case No. 76-1793 (Local 1759), the case is remanded Suits for violation of contracts between an em-

for action not inconsistent with this opinion. ployer and a labor organization representing

; | employees in an industry affecting commerce as

In case No. 76-1846 (Local 1949), the judgment of ‘aetoot in this chapter, rd fa sn yA such labor

the district court is affirmed and the case is remanded organizations, may be brought in any district

for action not inconsistent with this opinion. court of the United States have jurisdiction of

; aa ; the parties, without respect to the amount in

Paragraph X of this opinion and a separate order this controversy or without regard to the citizenship

date entered will dispose of case No. 76-8239 ( Misc.) of the parties.

concerning the injunction pending appeal in case No.

76-1793 (Local 1759).

C-1

APPENDIX C

Grievance and arbitration provisions of the National

Bituminous Coal Wage Agreement of 1974.

ARTICLE XXIII—SETTLEMENT OF DISPUTES

Section (a) Mine Committee

A committee consisting of at least three (3) Employees

shall be elected at each mine by the Employees at such

mine. Each member of the mine committee shall be an

Employee of the mine at which he is a committee mem-

ber, and shall be eligible to serve as a committee member

only so long as he continues to be an Employee of said

mine. The duties of the mine committee shall be con-

fined to the adjustment of disputes arising out of this

Agreement that the mine management and the Employee

or Employees fail to adjust. The Mine Committee shall

have no other authority or exercise any other control nor

in any way interfere with the operation of the mine;

for violation of this section any and all members of the

committee may be removed from the committee.

A Mine Committee member shall not be suspended or

discharged for his official actions as a mine committee

member. An Employer seeking to remove a mine com-

mittee member shall so notify the affected mine com-

mittee member and the other members of the mine com-

mittee. If the Mine Committee objects to such removal,

the matter shall be submitted directly to arbitration

within 15 calendar days from such objection. If the other

members of the mine committee so determine, the

affected member shall remain on the mine committee

until the case is submitted to and decided by an arbi-

trator. If the Employer requests removal of the entire

Mine Committee, the matter automatically shall be sub-

C-2

mitted to arbitration within 15 calendar days after such

request, and the Mine Committee will continue to serve

until the case is submitted to and decided by an arbi-

trator.

Section (b) Arbitration Review Board

1. Within 60 days following the effective date of this

Agreement, the United Mine Workers of America and

the Bituminous Coal Operators’ Association will establish

an Arbitration Review Board composed of one repre-

sentative of the UMWA, one representative of the Em-

ployer, and a chief umpire to be jointly selected by both

parties. This 60-day period may be extended by mutual

agreement.

2. The chief umpire jointly selected by the parties

shall serve for the balance of this Agreement, unless re-

moved by formal resolution adopted by either the Inter-

national Executive Board of the United Mine Workers of

America or the Board of Directors of the Bituminous

Coal Operators’ Association.

3. In the event of removal, resignation, death or in-

capacity of the chief umpire, the president of the UMWA

and the president of the B.C.O.A. shall endeavor to select

a mutually acceptable successor within 15 days. In the

event the parties fail to agree, they shall request the aid

of the Federal Mediation and Conciliation Service in

selecting a mutually acceptable successor. The composi-

tion of the panel may be considered by the parties at the

time when renewal agreements are being negotiated.

4. The presidents of the UMWA International Union

and the B.C.O.A. shall jointly establish a panel of im-

partial arbitrators for each UMWA district. These panels

may be changed, augmented or supplemented by mutual

C-3

consent of the appointing parties. Arbitrators may be

removed from a panel by either party upon 10 days ad-

vance written notice.

Section (c) Grievance Procedure

Should differences arise between the Mine Workers

and the Employer as to meaning and application of the

provisions of this Agreement, or should differences arise

about matters not specifically mentioned in this Agree-

ment, or should any local trouble of any kind arise at the

mine, an earnest effort shall be made to settle such differ-

ences at the earliest practicable time.

Disputes arising under this Agreement shall be re-

solved as follows:

1. The Employee will make his complaint to his im-

mediate foreman who shall have the authority to settle

the matter. The foreman will notify the Employee of his

decision within 24 hours following the day when the

complaint is made.

2. If no agreement is reached between the Employee

ana his foreman, the complaint shall be taken up within

seven (7) working days of the foreman’s decision by the

mine committee and mine management. Where the com-

mittee consists of more than three members, the Em-

ployer shall have the right to meet with a maximum of

three (3) (to be, chosen by the mine committee). The

committee and management will complete the standard

grievance form stating the Employee’s grievance and the

response of management.

3. If no agreement is reached by the committee and

management within seven (7) working days after the

complaint is taken up by them, the grievance shall be

referred to a representative of the UMWA district, desig-

C-4

nated by the Union, and a representative of the Employer

within seven (7) working days of the time the grievance

is referred to them. The representative of the Union and

the Employer shall review the facts and pertinent con-

tract provisions in an effort to reach agreement. Unless

both parties consent, no verbatim transcript of testimony

shall be taken. Following the meeting, should they fail

to settle the grievance, ‘he representatives shall prepare

a concise, joint statement. In the joint statement the

Union and Employer will each set forth its views of the

facts and its position on the contractual issues. The joint

statement shall be signed by the representative of the

UMWA district and the representative of the Employer.

Neither the Union’s representative nor the Employer’s

shall be persons who participated in steps one or two of

this procedure.

4. In cases where the district representative and the

representative of the Employer fail to reach agreement,

the matter shall, within ten (10) calendar days after

referral to them, be referred to the appropriate panel

arbitrator who shall decide the case without delay. Cases

shall be assigned to panel arbitrators in rotation. Unless

testimony has been taken at step 3, at the earliest possible

time, but no later than fifteen (15) days after referral to

him, the arbitrator shall conduct a hearing in order to

hear testimony, receive evidence and consider arguments.

In cases where a transcript has been made at step 3,

the arbitrator shall have the discretion to conduct a

supplementary hearing at or near the mine site. In cases

in which the parties have made no transcript at step 3,

and the joint statement indicates that there is no question

of fact involved in the grievance, the arbitrator may

decide the case without a transcript and upon the basis

of the joint statement of the parties, exhibits and briefs.

C-5

The arbitrator’s decision shall be final except as provided

in paragraph 5 herein, and shall govern only the dispute

before him. Expenses and fees incident to the service of

an arbitrator shall be paid equally by the Employer or

Employers affected and by the UMWA district affected.

5. Either party to an arbitration, upon receiving a

final award by a panel arbitrator, may petition the Arbi-

tration Review Board to appeal the decision of the panel

arbitrator. Such petition shall include a statement of the

grounds for the appeal, which shall consist of one or more

of the following:

(i) That the decision of the panel arbitrator is in

conflict with one or more decisions on the same issue

of contract interpretation by other panel arbitrators.

(ii) That the decision involves a question of con-

tract interpretation which has not previously been

decided by the Board, and which in the opinion of the

Board involves the interpretation of a substantial con-

tractual issue.

(iii) That the decision is arbitrary and capricious,

or fraudulent, and therefore, must be set aside.

Upon receipt of such petition, the Arbitration Review

Board shall review the decision of the panel arbitrator

to determine whether grounds for appeal exist. If not,

the Board will so inform the parties. If so, the Board shall

review the decision of the panel arbitrator making what-

ever changes are necessary to assure that the final deci-

sion correctly resolves all contractual questions and

issues presented, and is consistent with prior decisions of

the Board. The Board’s decision shall be made by ma-

jority vote and it shall issue its decision within fifteen

C-6

(15) days. Following review, the Beard shall counter-

sign its decision and transmit a copy to each party.

Section (d) Fifteen Day Limitation

Any grievance which is not filed by the aggrieved

party within fifteen (15) calendar days of the time when

the Employee reasonably should have known of it, shall

be denied as untimely and not processed further.

Section (e) Earnest Effort to Resolve Disputes

An earnest effort shall be made to settle differences at

the earliest practicable time. Where an Employee makes

a complaint during work time, the foreman shall, if re-

quested to do so, and if possible, consistent with continu-

ous production, discuss the matter briefly on the spot.

Section (f) Employee’s Right to Presence of Member of

Mine Committee

Except where it will interfere with production, an

Employee shall be entitled, at his request, to have a

member of the Mine Committee present to assist him at

any discussion with his foreman held pursuant to section

(c)(2) of this Article.

Section (g) Right of Grievant to be Present

The grievant shall have the right to be present at each

step of the grievance procedure until such time as all

evidence is taken.

Section (h) Finality of Decision or Settlement

Settlements reached at any step of the grievance proce-

dure shall be final and binding on both parties and shall

not be subject to further proceedings under this Article

except by mutual agreement. Settlements reached at

C-7

steps 2 and 3 shall be in writing and signed by appropri-

ate representatives of the Union and the Employer.

Section (i) Exclusion of Legal Counsel

Neither party will be represented by an attorney

licensed to practice law in any jurisdiction in any of the

steps of the grievance procedure except by mutual agree-

ment applicable only to a particular case.

Section (j) Expenses of Chief Umpire and Panel Umpires

The expenses of the chief umpire, and his necessary

office and staff expenses will be shared equally by the

BCOA and the UMWA.

Section (k) Circulation of Approved Decisions

Panel arbitrator: shall be furnished promptly with

copies of all decisions entered by the Board. The chief

umpire through his staff shall prepare a looseleaf binder

which shall contain summaries of the Board’s decisions

with respect to contractual issues arising under the

Agreement. The binder shall be organized along the lines

of the Agreement and shall be indexed by subject matter

and case title. The binder shall be maintained by the

chief umpire through his staff on a current basis and

copies of any pages changed to reflect new decisions shall

be provided to the parties on a monthly basis.

Section (l) Waiver of Time Limits

By agreement the parties may waive the time limits

set forth in each step of the grievance procedure.

Section (m) Settlement of Differences or Disputes Dur-

ing the First Sixty Days of this Agreement

During the first sixty (60) days of this Agreement, or

thereafter by a mutually agreed extension, the parties

C-8

hereto agree to resolve differences or disputes covered by

this Article in accordance with the Settlement of Dis-

putes provisions of Article XVII of the National Bitumin-

ous Coal Wage Agreement of 1971 which is adopted and

incorporated herein by reference.

D-1

APPENDIX D

Cases pending in the United States District Court for

the Southern and Northern Districts of West Virginia

in which United Mine Workers of America labor orga-

nizations are being sued for damages on account of work

stoppages caused by the appearance of stranger pickets.

Southern District

No. Civil Docket No. Plaintiff (s)

1 72-333 CH U.S. Steel Corp.

2 72-1340 BL U.S. Steel Corp.

3 72-1398 BL U.S. Steel Corp.

4 72-1407 U.S. Steel Corp.

5 72-1451 BL U.S. Steel Corp.

6 72-2985 HN U.S. Steel Corp.

7 73-21 BL U.S. Steel Corp.

8 73-22 BL U.S. Steel Corp.

9 73-64 BL U.S. Steel Corp.

10 73-355 CH Westmoreland Coal Co.

11 74-11 BL U.S. Steel Corp.

12 74-18 BL U.S. Steel Corp.

13 74-19 BL U.S. Steel Corp.

14 74-79 CH Armco Steel Corp.

15 74-81 CH U.S. Steel Corp.

16 74-95 CH U.S. Steel Corp.

17 74-96 CH Amigo Smokeless Coal Co., et al.

18 74-156 CH U.S. Steel Corp.

19 74-245 CH U.S. Steel Corp.

20 74-273 CH Central Coal Co.

21 74-282 CH Bethlehem Mines Corp.

22 74-289 CH US. Steel Corp.

23 74-342 CH Central Appalachian Coal Co., et al.

24 74-370 CH Bethlehem Mines Corp.

25 74-449 CH Southern Appalachian Coal Co.

26 74-469 CH Youngstown Mines Corp.

27 74-523 CH Armco Steel Corp.

28 74-524 CH Southern Appalachian Coal Co.

29 74-525 CH Bethlehem Mines Corp.

No.

57

SSSER@PSELZSSS

Civil Docket No.

74-528 CH

74-529 CH

74-538 CH

74-545 CH

74-546 CH

74-547 CH

74-550 CH

75-0283 CH

75-0286 CH

75-0311 CH

75-0325 CH

75-0330 CH

75-0494 CH

75-0499 CH

75-0533 CH

75-0538 CH

75-0541 CH

75-0544 CH

75-0546 CH

75-0562 CH

75-0563 CH

75-0566 CH

75-0572 CH

75-0585 CH

76-0018 CH

76-0019 CH

76-0021 CH

76-0050 CH

76-0314 CH

76-0317 CH

76-0318 CH

76-0327 CH

76-0333 CH

76-0476 CH

76-0111 CH

76-0112 CH

76-0117 CH

76-0120 CH

76-0121 CH

D-2

Plaintiff (s)

Bethlehem Mines Corp.

Island Creek Coal Co.

U.S. Steel Corp.

Youngstown Mines Corp.

Cannelton Industries, Inc., et al.

kanger Fuel Corp.

Allied Chemical Corp.

Armco Steel Corp.

Eagle Coal & Dock Co.

National Coal Mining Co.

Sycamore Mining Co.

Pond Creek Coal Co.

Carbon Fuel Co.

Brushy Fork Mining Co.

Youngstown Mines Corp.

Olga Coal Co.

U.S. Steel Corp.

Westmoreland Coal Co.

US. Steel Corp.

US. Steel Corp.

Armco Steel Corp.

Westmoreland Coal Co.

Bethlehem Mines Corp.

Westmoreland Coal Co.

Snapcreek Coal Co.

Elkay Mining Co.

Elkay Mining Co.

Brushy Fork Mining Co.

U.S. Steel Corp.

Armco Steel Corp.

Bethlehem Mines Corp.

Norma Coal Co., et al.

Cannelton Industries, Inc.

U.S. Steel Corp.

Youngstown Mines Corp.

Armco Steel Corp.

Bethlehem Mines Corp.

Omar Mining Co.

Cannelton Industries, Inc.

No.

69

70

71

72

73

74

75

76

Civil Docket No.

76-0122 CH

76-0140 CH

76-0141 CH

76-0142 CH

76-0163. CH

77-2048 CH

74-297 CH

75-0108 CH

Northern District

S

8]

BSERESS

75-189-E

75-180-E

75-176-E

74-279-E

74-275-E

74-278-E

75-191-E

75-179-E

75-8 W

75-9 W

74-32 W

74-14 C

D-3

Plaintiff(s)

Cannelton Industries, Inc.

Southern Appalachian Coal Co.

Eastern Associated Coal Corp.

Eastern Associated Coal Corp.

Hawks Nest Mining Co.

Consolidation Coal Co.

Island Creek Coal Co.

Island Creek Coal Co.

Bethlehem Mines Corp.

Bethlehem Mines Corp.

Southern Ohio Coal Co. and

Ohio Power Co.

Island Creek Coal Co.

Consolidation Coal Co.

Badger Coal Co.

Consolidation Coal Co.

Consolidation Coal Co.

Windsor Power House Coal Co.

Consolidation Coal Co.

Windsor Power House Coal Co.

Windsor Power House Coal Co. and

Bethlehem Mines Corp.