Petition — Carbon Fuel Co. v. United Mine Workers

Supreme Court, U.&.-\,

FILED

78-1183 om sone

| MICHAEL RODAK, JR. CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

PS oe

CARBON FUEL COMPANY,

Petitioner,

VS.

UNITED MINE WoRKERS OF AMERICA;

District 17, UNITED MINE WORKERS

or AMERICA; AND LOCAL UNrions Nos.

6572, 7626 AND 2236, UNITED MINE

WORKERS OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For the Fourth Circuit

Davip D. JOHNSON

Forrest H. ROLES

JACKSON, KELLY, HOLT & O’FARRELL

1500 One Valley Square

Charleston, West Virginia

Counsel for Petitioner

Ca JARRETT PRINTING COMPANY, CHARLESTON, W, VA.

ITI.

<

TABLE OF CONTENTS

RN IO

SUM Bue

QUESTION PRESENTED SE

When, if Ever, May a Union be Held Liable

for Unauthorized Strikes in Violation of a

Collective Bargaining Agreement Because of

the Union’s Failure to Take Reasonable Steps

to End or Prevent the Strikes?

STATUTE INVOLVED ~_ 4.

STATEMENT OF THE CASE

BD MOININ, cau oh

2. Proceedings in the District Court -.....

3. Proceedings in the Fourth Circuit

REASONS FOR GRANTING THE WRIT __.

1. The Decision Below is in Direct and Ac-

knowledged Conflict with the Decisions

of Other Courts of Appeals

2. The Issue of the Obligation of a Union

With Regard to Unauthorized Strikes by

its Members in Violation of Collective

Bargaining Contracts is an Important and

Recurring Question of Federal Law Which

Has Not Been, But Should Be, Decided by

7 Ca oa

Page

3. The Decision Below Conflicts With the

Principles Enunciated in the Decisions of

This Court in Fashioning Substantive Fed- —

eral Labor Law From the Policy of Our

National Labor Laws ...

Vale SAO

APPENDIX

A. Opinion of the Court of Appeals

B. Section 301 of the Labor-Management Relations

ii

12

13

Al

Bl

a ey R=:

TABLE OF CASES AND STATUTES

Cases: Page

Bituminous Coal Operators’ Association v. Inter-

national Union, UMWA, 585 F.2d 586 (3rd Cir.

1978) CA ee Dene AMEN Ae Sa BR RUE Dace Mw Ps Mid HON TE IEG 6, 10, 11

Bituminous Coal Operators’ Association v. Inter-

nationa. Union, UMWA, 431 F.Supp. 774 (W.D.

POs ASC Se eae 10

Consolidation Coal Co., et al. v. International Union,

UMWA, 431 F.Supp. 787 (W.D. Pa. 1977) _.. 10

Eazor Express, Inc. v. Teamsters, 520 F.2d 951 (3rd

Cir.,1975), cert denied, 424 U. S. 935 (1976) __.. 7

Gateway Coal Co. v. UMWA, 414 U.S. 368 (1974) 3

Old Ben Coal Corp. v. Local Union No. 1487 of

UMWA, 457 F.2d 162 (7th Cir. 1972) 7

Republic Steel Corp. v. UMWA, 570 F.2d 467. (3rd

Cir. 1978) ..--=- 6, 11

Southern Ohio Coal v. UMWA, 551 F.2d 695 (6th

Cir. 1977), cert. denied, 434 U.S. 876 C1977) 7

Teamsters Union v. Lucas Flour Co., 369 U.S. 95

Ce oes Par ear tes ea, 9, 10

Textile Workers Union v. Lincoln Mills, 353 U.S.

448 (1957) _. 12

United Construction Workers v. Haislip Baking Co.,

223 F.2d 872 (4th Cir. 1955), cert. denied, 350

US, 847 (1965): — 5

United States Steel Corp. v. UMWA, 519 F.2d 1249

(hth Cir, 1979), 7

United States Steel Corp. v. UMWA, 526 F.2d 377

ean (ats AOOeP sl Th

United States Steel Corp. v. UMWA, 534 F.2d 1063

(3rd Cir. 1976)

Wagner Electric Corp. v. Local 1104, IUE, 496 F.2d

954 (8th Cir. 1974) : ne

Statutes:

28 U.S.C. § 1254(1) _ afer

USS..§ 186...

iv

Page

a

ee

In THE

Supreme Court of the United States

OcrToBer TERM, 1978

CARBON FUEL COMPANY,

Petitioner,

vs.

UNITED MINE WORKERS OF AMERICA;

District 17, UNtITED MINE WorKERS

oF AMERICA; AND LOCAL Untons Nos.

6572, 7626 anv 2236, Unrrep MINE

WORKERS OF AMERICA,

Respondents.

Petitioner, Carbon Fuel Company, prays that a writ

of certiorari issue to review a judgment of the United

States Court of Appeals for the Fourth Circuit (Fourth

Circuit) entered in this case on October 31, 1978.

I. OPINION BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit has not yet been published. It is

appended to this petition as Appendix A, pp. Al—A10

infra, The District Court for the Southern District of

West Virginia did not render an opinion.

Il. JURISDICTION

The opinion of the Fourth Circuit was announced on

September 21, 1978. Petitioner’s timely petition for re-

hearing was denied by order filed October 31, 1978, and

this petition was filed within ninety days of that date.

=

2

The Court’s jurisdiction is involved under 28 USC §

1254(1).

Ill. QUESTION .PRESENTED

When, if ever, may a union be held liable for

unauthorized strikes in violation of a collec-

tive bargaining agreement because of the

Union’s failure to take reasonable steps to end

or prevent the strikes?

IV. STATUTE INVOLVED

This case involves § 301 of the Labor-Management

Relations Act (LMRA), 61 Stat. 156, 29 USC § 185,

printed in the Appendix at App. B, B1, 2 infra.

V. STATEMENT OF THE CASE

1. INTRODUCTION.

This is an action under § 301 of the LMRA by Carbon

Fuel Company (the Employer) against the labor orga-

nizations representing its production and maintenance

employees (Unions), the International Union, United

Mine Workers of America (International), which is the

_. duly recognized collective bargaining agent for the Em-

ployer’s production and maintenance employees, and its

administrative sub-divisions, District 17, United Mine

Workers of America (the District) and Local Unions

Nos. 6572, 7626 and 2236, United Mine Workers of

America (the Locals). The action seeks damages for a

series of forty-eight strikes occurring during the years

1969-1973, inclusive, allegedly in violation of the terms

of the two coliective bargaining agreements between the

unions and the employer, the National Bituminous Coal

Wage Agreement of 1968 and the National Bituminous

Coal Wage Agreement of 1971 (contracts). The con-

tracts, while containing no express “no-strike” clause,

3

both contain a mandatory grievance and arbitration pro-

cedure encompassing all imaginable disputes between

the parties together with an express promise “to main-

tain the integrity 6f their contract and that all disputes

and claims which are not settled by agreement shall be

settled by the [grievance] machinery ... .”"

2. PROCEEDINGS IN THE DISTRICT COURT.

The case was tried in March and April, 1976, in the

United States District Court for the Southern District of

West Virginia (K. K. Hall, Judge), before a jury. The

evidence showed, without substantial contradiction, the

occurrence of forty-eight separate strikes; and that each

was engaged in by all of the members of the unions em-

ployed at the involved locations. It further showed that

none of the strikes was formally called or authorized by

the unions; that the unions had a policy against such

. Strikes, and upon their occurrence tried to persuade and/

or direct the strikers to return to work; but, although

often threatening to do so, took no disciplinary action or

other means which were available to them to end or

prevent the strikes. There was substantial evidence that

the means employed by the Unions were, and known-to

them to be, futile. The evidence further showed that

thirty-one of the strikes were over disputes between the

employer and the union involving the application and

interpretation of portions of the contracts dealing with

wages, hours and other terms and conditions of employ-

ment, and that seventeen of the strikes, while involving

a dispute over the extent of the no-strike obligation un-

der the contracts, arose from disputes not between the

employer and the unions, but instead from matters out-

'These provisions of the 1968 contract were held in Gateway Coal

Co. v. UMWA, 414 U.S. 368 (1974) to give rise to an implied no strike

clause as to strikes over disputes settleable under the grievance and

arbitration procedures. Id. at 381 and 384.

4

side the employment relationship, such as internal union

disputes, political protests, and sympathy for strikers

from other coal operator employers.

At the conclusion of the evidence, the District Court

refused the motions of the International and District for

a directed verdict based upon their claim that there was

insufficient evidence of their liability. It further directed

the jury to find that all the strikes were violations of the

contracts and that the locals were responsible for those

strikes because of the mass actions of their members and

officers in engaging in them. The Court submitted the

questions of the amounts of damages, and the responsi- |

bility of the District and International, to the jury. Its

charge relating to International and District liability told

the jury that the District and International had a respon-

sibility under the contracts to use all reasonable means

available to them to prevent and end strikes in violation

of the contracts, and that from such time as they had an

opportupity to use such means and failed to do so, they

were liable for the strikes.

After extensive deliberations, the jury returned in-

dividual verdicts as to each strike, awarding damages

against the locals in a total amount of $722,347.43, against

the District in the total amount of $242,130.80 and against

the International in a total amount of $206,547.80. The

verdicts were joint and several, rather than cumulative.

The verdicts reflected an obvious determination by the

jury under the Court’s “all reasonable means” instruc-

tion that the District and International were responsible

for only some of the strikes, and only a portion of the

damages as to those strikes. The Unions’ motion to set

aside the verdicts and award a new trial was denied, and

they appealed. $

5

3. PROCEEDINGS IN THE FOURTH CIRCUIT.

Upon appeal, the Fourth Circuit reversed the judg-

ments as to the seventeen strikes over disputes not arising

from the employment relationship as to all of the unions;

and affirmed the judgments as to the remaining thirty-

one strikes as to the locals. In addition, the Appeals Court

reversed all judgments as to the District and Interna-

tional on the grounds that the instruction relating to

their duty to use all reasonable means available to them

was erroneous, and that the law of the Fourth Circuit

with regard to union liability for “wildcat” strikes is as

stated in the case of United Construction Workers vy.

Haislip Baking Co., 223 F.2d 872, at 877-78 (4th Cir.

1955), cert. denied, 350 U.S. 847 (1955). Quoting from

that case, the Court said:

“Tf [the representatives of UMWA] had done

nothing when plaintiff called on them to help get

the men back to work, there would have been no

liability on the part of the defendants. This being

true, defendants were not rendered liable by the

efforts which these men made to bring about an

adjustment of the difficulty, even if they did not

do everything that they might have done to that

end. The question is not whether they did every-

thing they might have done, but whether they

adopted, encouraged or prolonged the continuance

of the strike. There is no evidence of any sort that

they did.’ ”

(App. A, pp. A9, 10.]

Upon that holding, the Court further held:

“In our opinion the present case falls squarely

within the four corners of Haislip. There was no

evidence presented in the district court that either

the District or International Union instigated,

supported, ratified, or encouraged any of the work

stoppages, and under these circumstances it was

6

error for the court to deny the motions of these

defendants’ for directed verdicts.”

[App. A, pp. A10]

It is these holdings which are contested here.

The Employer timely filed a petition for rehearing

and suggestion of rehearing en banc. That petition was

denied October 31, 1978. On November 13, 1978, the

Fourth Circuit stayed its mandate pending application

to this Court for a writ of certiorari, and final decision

of this Court upon the case. This petition followed.

VI. REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW IS IN DIRECT AND

ACKNOWLEDGED CONFLICT WITH THE DE-

CISIONS OF OTHER COURTS OF APPEALS.

In reaching its holding that if the International and

District had “done nothing”, they would not have violated

the contracts, the Fourth Circuit recognized that its

decision was in direct conflict with those of the United

States Court of Appeals for the Third Circuit applying

identical contract language, in United States Steel Corp.

v. UMWA, 534 F.2d 1063 (3rd Cir. 1976), and Republic

Steel Corp. v. UMWA, 570 F.2d 467 (3rd Cir. 1978),

App. A, pp. A7, 8. Since the decision below, the Third

Circuit has reaffirmed its holding that the International

“has a particularly grave responsibility to employ all

reasonable means to insure that unlawful [wildcat strike]

actions be halted.’ ”’ Bituminous Coal Operators’ Associa-

tion v. International Union, UMWA, 585 F.2d 586, 596

(3rd Cir. 1978), quoting from Republic Steel, supra,

570 F.2d at 479.

The Fourth Circuit’s holding is likewise in conflict with

the decision of the United States Court of Appeals for

the Eighth Circuit in Wagner Electric Corp. v. Local

7

1104, IUE, 496 F.2d 954 (8th Cir. 1974), where the Court

said: “A union is required to use its best efforts to return

striking workers to their jobs if it is not to be held

responsible for their actions.” Id. at 956. On the other

hand, the Fourth Circuit’s position is supported by the

decisions of the United States Court of Appeals for the

Sixth Circuit. As noted in the decision below, that Court,

in Southern Ohio Coal v. UMWA, 551 F.2d 695 (6th Cir.

1977) cert. denied, 434 U.S. 876 (1977), refused to hold

the International responsible for failure to act to end

wildcat strikes.’ App.A, p. A8.

This conflict between the Circuits is square and irrec-

oncilable. In particular, the Third and Fourth Circuits,

interpreting identical language, and in some instances

?The positions of the United States Courts of Appeals for the Fifth

and Seventh Circuits are not clear. As noted in the opinion below

(App.A, pp. A8, 9), the Seventh Circuit in Old Ben Coal Corp. v. Local

Union No. 1487 of UMWA, 457 F.2d 162 (7th Cir. 1972), interpreted the

language contained in both agreements in this case which abrogate

express “no strike” clauses contained in prior agreements as protect-

ing “the Union from liability for spontaneous or ‘wildcat’ strikes

which would be the kind of work aye gee subject to the settlement

= gee ag of the agreements.” 457 F.2d at 165. [Emphasis added}

at the Seventh Circuit means by this emphasized language is a

mystery. Surely it does not mean that employers may grieve over

such strikes, as it is universally recognized that the grievance proce-

dures of the contracts are employee oriented and only the unions or

its members may file grievances. At any rate, there is no indication

in that decision, or other decisions of the Seventh’Circuit, that the

Court considered whether there existed an obligation on the Interna-

tional or any of its subdivisior to take affirmative action.

The Fifth Circuit did consider the point in United States Steel

Corp. v. UMWA, 519 F.2d 1249 (5th Cir. 1975). There the Court —

the Third Circuit’s decision in Eazor Express, Inc. v. Teamsters, 5

F.2d 951 (3rd Cir. 1975) cert. denied, 424 U.S. 935 (1976), and ap-

sete 4 adopted its holding requiring the exercise of all reasonable

means by a union to avoid liability. United States Steel Corp., 519

F.2d at 1255. Later it apparently limited that application of the

paper ey to situations where, as here, there is a pattern of strikes when

it said:

“Furthermore, a series of unauthorized strikes should put the

union on notice, and as suggested, raise the level of effort

ie) to exculpate themselves from liability.” [519 F.2d at

However, upon rehearing, the Court appeared to direct the lower

court upon remand to decide whether to adopt the doctrine. United

States Steel Corp. v. UMWA, 526 F.2d 377, 378 (5th Cir. 1976).

8

identical contracts, have reached diametrically opposite

results. The issue is very much alive as the present Na-

tional Bituminous Coal Wage Agreement of 1978 con-

tains the same language. None of the conflicting decisions

have been superseded, OF have lost any weight by reason

of subsequent decisions.

Moreover, this case is perfectly suited for resolution of

the conflict. The issue has been fully tried in the District

Court, with the issue raised and decided on motion to

dismiss the complaint, and motion for directed verdict

and judgment notwithstanding the verdict. The District

Court either received or permitted by avowal testimony

all evidence which the parties wished to introduce re-

lating to the issue. No issue as to the refusal of testimony

on this issue was raised on appeal in the Fourth Circuit.

The Fourth Circuit clearly and unequivocally decided

the issue. Its resolution is essential to the outcome of the

case, in that a resolution of the question would necessar-

ily either result in reinstatement of the judgment upon

the jury’s verdicts against the International and District

or affirmance of the Fourth Circuit direction that the

International and District be dismissed.

In short, the conflict between decisions of the various

circuits justifies the grant of certiorari to review the

judgment below.

2. THE ISSUE OF THE OBLIGATION OF A UNION

WITH REGARD TO UNAUTHORIZED STRIKES

BY ITS MEMBERS IN VIOLATION OF COLLEC.-

TIVE BARGAINING CONTRACTS IS AN IMPOR-

TANT AND RECURRING QUESTION OF FED-

ERAL LAW WHICH HAS NOT BEEN, BUT

SHOULD BE, DECIDED BY THIS COURT.

The importance of the question presented is so obvious

9

as to require little argument. It deals with the effective-

ness of the process of collective bargaining in achieving

the chief objective of the nation’s labor laws—the main-

tenance of industrial peace.

As this Court pointed out in another context in Team-

sters Union v. Lucas Flour Co., 369 U.S. 95, at 103-04

(1962), (citations omitted):

“More important, the subject matter of § 301-

(a) ‘is peculiarly one that calls for uniform law.’

The possibility that individual contract terms

might have different meanings under state and

federal law would inevitably exert a disruptive_in-

fluence upon both the negotiation and administra-

tion of collective agreements. Because neither

party could be certain of the rights which it had ob-

tained or conceded, the process of negotiating an

agreement would be made immeasurably more

difficult by the necessity of trying to formulate

contract provisions in such a way as to contain the

same meaning under two or more syst2ms of law

which might someday be invoked in enforcing the

contract. Once the collective bargain was made,

the possibility of conflicting substantive interpre-

tation under competing legal systems would tend

to stimulate and prolong disputes as to its inter-

pretation. Indeed, the existence of possibly con-

flicting legal concepts might substantially impede

the parties’ willingness to agree to contract terms

providing for final arbitral or judicial resolution

of disputes.

The importance of the area which would be

affected by separate systems of substantive law

makes the need for a single body of federal law

particularly compelling.”

The effect of the present lack of uniformity is just the

10

sort of substantial uncertainty, with its resulting un-

happy consequences, described in Lucas Flour.

That effect is best demonstrated by the case of Bitumin-

nous Coal Operators’ Association v. International Union,

U.M.W.A. supra. In that case, Bitumnious Coal Opera-

tors’ Association (BCOA), the employers’ association

representing operators in collective bargaining with the

‘ International, filed a suit in the United States District

Court for the Western District of Pennsylvania seeking

a declaration interpreting the language here in issue and

an injunction against the International enforcing its

alleged obligations to prevent and end unauthorized

strikes by its members at the operations of operator mem-

bers uf BCOA. In a companion case, Consolidation Coal

Co., et al. v. International Union, U.M.W.A., 431 F.Supp.

787 (W.D. Pa. 1977), individual operator members of

BCOA who had operations in the Third and other Circuits

sought similar relief. The District Court dismissed the

complaint of BCOA for, among other reasons, that its

members have operations in other circuits where the

availability of relief is “quite different”. Bituminous Coal

Operators Association v. International Union, U.M.W.A.,

431 F.Supp. 774, 784 (W.D. Pa. 1977). The individual

operators’ case was dismissed as to the claim for injunc-

tive relief upon the same grounds. Consolidation Coal Co.

v. International Union, U.M.W.A., 431 F.Supp. at 791-92.

Upon consolidated appeals, the Third Circuit reversed the

dismissals and remanded the cases for a determination as

to the declaratory relief sought by BCOA and the injunc-

tive relief and damages sought by the individual opera-

tors. Bituminous Coal Operators’ Association v. Interna-

tional Union, U.M.W.A., 585 F.2d (3rd Cir. 1978). In so

. doing, the Court of Appeals acknowledged the fact that

some operations of the operator plaintiffs are in different

11

circuits which have different views as to this issue and

that this fact raised a difficulty which “might, in the end,

be a reason for denying some of the requested relief’.

However, the Court held that this difficulty was not ‘a

reason for refusing to hear the case.” Id. at 592. More-

over, the Court suggested that as Republic Steel Cor-

poration was a signatory to the 1974 National Bituminous

Coal Wage Agreement, the holding which it obtained in

Republic Steel Corporation v. U.M.W.A., supra, “can be

relied upon aot only by the Republic Steel Corporation

but also by other signatories to the same contract, since

the International is collaterally estopped on the issues

actualiy litigated and determined against it.” Bituminous

Coal Operators’ Association, 585 F.2d at 596. No mention

is made of the potential collateral estoppel effort of con-

trary decisions involving other signatories, such as the

Employer here, in other circuits.

The District Court, upon remand of those cases, has a

difficult, if not impossible job. That difficulty occurs not

from the lack of clarity of the law in the Third Circuit,

but instead from issues of comity and collateral estoppel

between different circuits, reaching different results in

interpreting identical language in collective bargaining

agreements between identical parties or their privies in

contract. That same difficulty is shared by the parties to

the contract, which is applied in one way in one geograph-

ical location, and another in a different one.

So far as research has determined, this Court has not

decided the issue here involved. Because of its obvious

importance, and the obvious ill effects of differing deci-

sions as to it upon the administration of National Labor

Policy, certiorari should be granted in this case to resolve

the conflict.

12

3. THE DECISION BELOW CONFLICTS WITH

THE PRINCIPLES ENUNCIATED IN THE DE-

CISIONS OF THIS COURT IN FASHIONING

SUBSTANTIVE FEDERAL LABOR LAW FROM

THE POLICY OF OUR NATIONAL LABOR

LAWS.

In Textile Workers Union v. Lincoln Mills, 353 U.S.

448 (1957), at page 456, this Court held that: “the sub-

stantive law to apply in suits under § 301(a) is federal

law which the courts must fashion from the policy of our

national labor laws.” As held in that case, the primary

concern of Congress in enacting § 301 was: “that unions

as well as employers should be bound to collective bar-

gaining agreements .. . [and] that there be a procedure

for making such agreements enforceable in the Courts

.... Id. at 453. This purpose is readily deducible from

the Senate Report on the Act. quoted in Lincoln Mills,

supra, at 454:

“Tf unions can break agreements with relative

impunity, then such agreements do not tend to

stabilize industrial relations. The execution of

an agreement does not by itself promote industrial

peace. The chief advantage which an employer

can reasonably expect from a collective labor

agreement is assurance of uninterrupted opera-

tion during the term of the agreement. Without

some effective method of assuring freedom from

economic warfare for the term of the agreement,

there is little reason why an employer would de-

sire to sign such a contract.

‘Consequently, to encourage the making of

agreements and to promote industrial peace

through faithful performance by the parties, col-

lective agreements affecting interstate commerce

should be enforceable in the Federal courts. Our

amendment would provide for suits by unions as

legal entities and against unions as legal entities

13

in the Federal courts in disputes affecting com-

merce.’ ”’

The decision by the Lower Court negates this policy.

If a union, such as the International, can sign a collective

bargaining agreement promising to refrain from striking

over issues arbitrable under that agreement; delegate

the performance of that promise to its judgment proof

locals; and then, with impunity, do nothing when those

locals repeatedly and flagrantly violates the promise,

then the agreement is illusory, and the policy of our

national labor laws to promote industrial peace through

the execution and enforcement of agreements, is defeated.

VIII. CONCLUSION

For all the reasons above asserted, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

Davip D. JOHNSON

Forrest H. Ro.eEs

JACKSON,°KELLY, HOLT & O’FARRELL

1500 One Valley Squaré

Charleston, West Virginia

Counsel for Petitioner

APPENDIX

A-1

APPENDIX A

United States Court of Appeals

For THE FourtH CIRcuIT

No. 77-1422

CaRBON FuEL Company,

Vv. Appellee,

UniTED Mine WorkKErS OF AMERICA:

District No, 17,

United Mine Workers of America;

Loca. Union No. 6572,

United Mine Workers of America;

LocaL UNION No. 7626,

United Mine Workers of America; and

Loca. UNION No. 2236,

United Mine Workers of America,

Appellants.

APPEAL FROM THE UNITED STATES District COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA,

AT CHARLESTON.

K. K. Hauu, District JupGer.

Argued: December 7, 1977 Decided: September 21, 1978

Before HAYNSWORTH, Chief Judge; BUTZNER, Cir-

cuit Judge, and FIELD, Senior Circuit Judge.

FIELD, Senior Circuit Judge:

Carbon Fuel Company filed an action under Section

301 of the Labor-Management Relations Act of 1947, as

4

A-2

amended, 29 U.S.C. §185, against three local unions of

“the United Mine Workers of America (UMWA)', UMWA

District 17, and the International Union, seeking injunc-

tive relief and damages incident forty-eight work

stoppages which occurred dtirihg the years 1969 through

1973 at various mines of Carben Fuél in southern West

Virginia. Carbon Fuel and UMWA were parties to a

collective bargaining contract known as the “National

Bituminous Coal Wage Agreement of 1971”, which con-

tract became effective on November 12, 1971, but which

expired prior to the trial of this case, leaving only the

question of damages to be tried. The issues at trial were

whether the alleged stoppages had occurred, whether

they were actionable, and the damages allocable to each

actignable stoppage. Under the agreed procedure, the

jury considered the evidence and returned a separate

verdict for each stoppage. Verdicts were returned by

the jury aggregating $206,547.80 against the Interna-

tional Union, $242,130.80 against District 17, and $722,-

347.43 against the three local Unions. Judgments were

entered pursuant to the verdicts with respect to each

stoppage, and all of the UMWA defendants have ap-

pealed.

The case came on for trial after our decision in Armco

Steel Corp. v. UMWA, 505 F.2d 1129, cert. denied 423

U.S. 877 (1975), but prior to the Supreme Court’s deci-

sion in Buffalo Forge v. Steel Workers, 428 U.S. 397

(1976), and was tried and evidence presented on the

basis of Armco. The district court, relying upon Armco,

ruled as a matter of law that each of the stoppages was

violative of the collective bargaining agreement. Seven-

teen of the forty-eight stoppages were “sympathy

a local unions named as defendants were Nos. 6572, 7626, and

A-3

strikes”,’ and Carbon Fuel now concedes that in the light

of Buffalo Forge it was error for the court to direct the

jury that these seventeen stoppages violated the. collec-

tive bargaining agreement. Despite this concession,

however, Carbon Fuel contends that its judgments with

respect to these stoppages should not be vacated and dis-

missed, but rather that they should be remanded to the

district court with directions that they be referred to

arbitration upon the issue of whether the action of the

UMWA members in refusing to cross picketlines or in

engaging in the various work stoppages violated the

collective bargaining agreement. Carbon Fuel suggests

that upon receipt of the arbitrators’ decision the district

court can then either reinstate or finally vacate the judg-

ments as to these stoppages.

In our opinion, the answer to this contention of Carbon

Fuel is found in Buffalo Forge itself. In that case the

arbitrability of the question of whether the production

employees were required to cross the picketline was

conceded, 428 U.S., supra, at 410, due to the fact that

the agreement contained an express no-strike clause.

The Court made it clear, however, that in the absence

of such a clause, a sympathy strike is neither actionable

nor arbitrable;

“The strike had neither the purpose nor the

effect of denying or evading an obligation to

arbitrate or of depriving the employer of its bar-

gain. Thus, had the contract not contained a no-

strike clause or had the clause expressly excluded

sympathy strikes, there would have been no

possible basis for implying from the existence of

"None of these stoppages was in support of any “sister unions”, but

they did qualify as a yg strikes” under Buffalo Forge since

were not the result of any dispute between the Union and the

company. The reasons for these stoppages ranged from political

protests to intraunion disputes.

A-4

an arbitration clause a promise not to strike t

could have been violated by the sympathy stri

in this case.” (Emphasis supplied). Ba

e,

428 U.S., supra, at 408. This statement of the Court is

clarified by its observation in footnote 10, Id, that the

courts of appeals, including our court in Armco, whe had

“assumed that a mandatory arbitration clause implies a

commitment not to engage in sympathy strikes,’ were

wrong.

Our conclusion on this point is in accord with decisions

of the Third and Sixth Circuits. In United States Steel

Corp. v. United Mine Workers, 548 F.2d 67 (3 Cir. 1976),

the court stated:

“Had the contract in the instant case contained

a no-strike clause, the issue whether the sympathy

strike violated the union’s no-strike undertaking

might have been arbitrable. In the absence of a

no-strike clause, however, Buffalo Forge estab-

lishes that there is ‘no possible basis for implying

from the existence of an arbitration clause a

promise not to strike that could have been violated

by the sympathy strike’ in this case.

Id. at 73. The court further observed that “Lwlhat

Buffalo Forge establishes regarding the arbitrability of

sympathy strikes is as applicable to this particular suit

for monetary damages as it is to a request for injunctive

relief.” Id. at 72. Similarly, in Southern Ohio Coal Co.

v. U. M. Wkrs. of America, 551 F.2d 695 (6 Cir. 1977),

the court found that the absence of a no-strike clause was

fatal to the company’s claim of arbitrability, stating:

“The Bituminous Coal Wage Agreement of

1974 does not contain an express no-strike clause

so the issue of the union’s right to refuse to cross

a picketline is not even arguably arbitrable.”

*

ee a

SR mee eT a ee ee

A-5

Id. at 705.

We do not find our recent decision in Cedar Coal Co.

v. United Mine Wkrs. of America, 560 F.2d 1153 (1977),

at odds with our conclusion on this point. In Cedar Coal

we recognized that there was a question as to whether

the object of the strike was to compel the company to

concede an arbitrable issue and address ourselves only to

the denial of injunctive relief pending arbitration. Upon

the record before us we discern no such issue in the

present case and, accordingly, the judgments based upon

these seventeen stoppages are reversed.

The remaining thirty-one work stoppages were con-

cededly precipitated by disputes between members of

the UMWA and Carbon Fuel which were subject to the

arbitration provisions of the collective bargaining agree-

ment. However, all of these stoppages were properly

characterized as wildcat strikes and, accordingly, it is

necessary to consider the responsibility, if any, of the

several defendants for the resultant damages. The dis-

trict court directed verdicts of liability against the Locals

for the majority of these strikes on the basis of the “mass

action” theory of responsibility. The genesis of this

theory is generally attributed to Judge Goldsborough’s

decision in United States v. International Union, U.M.W.

of A., 77 F.Supp. 563 (D.C. 1948), where he stated “that

as long as a union is functioning as a union it must be

held responsible for the mass action of its members.” Id.

at 566. Over the years this theory of responsibility has

been refined and applied by a number of courts,’ and its

rationale was recently stated by the Third Circuit in

Eazor Exp., Inc. v. International Bro. of Team., 520°F.2d

951 (1975), as follows:

%3See e. g. Vulcan Materials Co. v. United Steelworkers of America,

430 F.2d 446 (5 Cir. 1970); United Textile Workers v. Newberry Mills,

Inc., 238 F.Supp. 366 (W.D. S.C. 1965).

x i

“When all the members of a union employed

by a given employer engage in a concerted strike

not formally authorized by the union, as hap-

pened here, many courts hold the union responsible

on the theory that mass action by union members

must realistically be regarded as union action.

The premise is that large groups of men do not

act collectively without leadership and that a

functioning union must be held responsible for

the mass action of its members.”

Id, at 963. However, responsibility for wildcat strikes

under this theory will ordinarily be limited to the local

union. This was recognized in U. S. Steel Corp. v. United

Mine Workers of America, 534 F.2d 1063 (3 Cir. 1976):

“Consistent with theory, however, the liability

must be limited to the entity whose membership

acts in concert. In most cases, as here, that entity

will be the local union. Thus absent a showing

of complicity on the part of a larger union entity

—the District or International Union, for example

—only the local can be held liable under the mass

action theory.”

Id. at 1074.

In our opinion the “mass action” theory, properly ap-

plied, represents a sensible and pragmatic approach tu

this difficult problem in the area of labor relations. In

view of the uncontradicted evidence that all of the mem-

bers of the defendant Locals, including their officers,

participated in the strikes, the theory was properly em-

ployed by the district court in placing responsibility upon

the Locals. Accordingly, the judgments against the

Locals growing out of these thirty-one work stoppages

are affirmed.

In regard to District 17 and the International Union,

the district court charged the jury that these defendants

had the duty and responsibility to use all reasonable

ee No

A-7

means to prevent or terminate the wildcat strikes, and

that the failure to do so would render them liable for

the work stoppages. The court further instructed the

jury that the District and International could be held

liable if the jury found that the Locals were acting with-

in the scope of their authority as agents of the District

and International. The defendants contend that these

instructions ignored the history of the collective bar-

gaining agreement and misconstrued its terms. Addi-

tionally, they urge that in giving such instructions the

district court failed to follow the controlling precedent in

this circuit, United Construction Workers v. Haislip

Baking Co., 223 F.2d 872 (4 Cir. 1955).

The bargaining history which was chronicled in Inter-

national U., U.M.W. of A. v. National Lab. Bd., 257 F.2d

211 (D.C. Cir. 1958), discloses that as late as 1941, the

contract contained an express agreement not to strike.

' However, following the passage of the Taft-Hartley Act,

29 U.S.C. § 141, et seq., the 1947 agreement rescinded all

“no-strike”, “penalty”, and “illegal suspension of work’’

clauses which had been contained in earlier agreements.

The reason for this was to protect the union from potential

law suits under Taft-Hartley. Thereafter, during the brief

period from 1950 to 1952 the contract contained an ex-

press clause which required the Union to exercise its

“best efforts” to prevent work stoppages. However, that

provision was eliminated two years later. The bargain-

ing history shows that the agreements from 1972 through

1977 neither imposed any “best efforts” duties on the

International nor did they contain any indemnity obliga-

tion which would make the International vicariously

liable for local wildcat stoppages. In instructing the jury

in this fashion, the district court apparently followed

Eazor Exp., Inc. v. International Bro. of Team., supra,

520 F.2d 951, and U. S. Steel v. United Mine Workers,

A-8

supra, 534 F.2d 1063. In the latter case the Third Cir-

cuit stated that “lal covenant to maintain the integrity

of the contract necessarily embraces a reasonable efforts

obligation to comply with the [implied] no-strike prom-

ise.” Id., at 1073. In all deference, we cannot agree with

this conclusion. In the light of the bargaining history,

it appears to us that such an interpretation, in effect,

rewrites the terms of the contract upon which the parties

had agreed.“

‘The rationale of the Third Circuit in Eazor has not

been generally accepted. In Southern Ohio Coal v. U. M.

Wkrs., supra, 551 F.2d 695, the Sixth Circuit declined to

follow Eazor, stating that “there is no authority in this

circuit for the proposition that a union may be held

responsible * * * for failure to use its ‘best efforts’ in

curtailing [unauthorized strikes]. On the contrary this

Court has repeatedly held that a union may only be held

responsible for the authorized or ratified actions of its

officers and agents.” Id., at 701. Similarly, in Old Ben

Coal Corp. v. Local U. No. 1487 of United Mine Wkrs.,

457 F.2d 162 (1972), the Seventh Circuit referred to the

bargaining history and stated:

“Implying a no-strike obligation in the 1968

agreement does not render the express abrogation

of previous no-strike clauses meaningless as then

Circuit Judge Stewart indicated in [Lewis v.

Benedict Coal Corporation, 259 F.2d 346 (6 Cir.

1958)]. By virtue of that language, the Union has

preserved the right to strike with respect to all

disputes not subject to settlement by other methods

made exclusive by the agreement. In addition

the language protects the Union from liability for

spontaneous or ‘wildcat’ strikes which would be

the kind of work stoppages subject to the settle-

“We also decline to follow the rationale applied in the recent case

oa Steel Corp. v. U.M.W. of America, 570 F.2d 467 (3 Cir.

1978).

ee

A-9

ment procedures of the agreement.” (Emphasis

Supplied).

Id at 164.

The position of the Sixth and Seventh Circuits accords

with our decision in Haislip which has been described

as “a major case in this area.’””’. In Haislip Judge Parker

stated the law of this circuit clearly and unequivocally:

“What we are dealing with is, not a case where

circumstantial evidence points to instigation of a

strike by defendants or the agents who represented

them, but a ‘wild cat’ strike of local origin, without

anything to suggest that defendants or their agents

had anything to do with bringing it about. [The

representatives of UMWAI] were called in to try

to end the strike and get the men to go back to

work, and everything that they did was directed

to that end. Even if the testimony as to their ad-

vising the men to go back to work be disregarded

and it be assumed that they did nothing of the

sort, there is no evidence to support the view that

they adopted the strike, that they encouraged it

or that they prolonged it.

* * * * * * * *

There is nothing in the contract making de-

fendants liable for ‘wild cat’ strikes or requiring

that they take any action with regard to them.

This court has pointed out that employees who

engage in ‘wild cat’ strikes lose the protection

of the Fair Labor Standards Act and may be

discharged by their employers with inpunity for

so doing. N.L.R.B. v. Draper Corporation, 4 Cir.

145 F.2d 199, 156 A.L.R. 989. We have never

held, however, that there is any responsibility

on the part of a union for a strike with which it

has had nothing to do; and there manifestly is no

such liability. If [the representatives of UMWAI

5United States Steel Corp. v. United Mine Wkrs. of A., 519 F.2d 1249,

1253 (5 Cir. 1975).

A-10

had done nothing when plaintiff called on them

to help get the men back to work, there would

have been no liability on the part of the defendants.

This being true, defendants were not rendered

liable by the efforts which these men made to

bring about an adjustment of the difficulty, even

if they did not do everything that they might have

done to that end. The question is not whether

they did everything they might have done, but

whether they adopted, encouraged or prolonged

the continuance of the strike. There is no evidence

of any sort that they did.”

223 F.2d 872, 877-878.

Cc >

In our opinion the present case falls squarely within

the four corners of Haislip. There was no evidence pre-

sented in the district court that either the District or

International Union instigated, supported, ratified, or

encouraged any of the work stoppages, and under these

circumstances it was error for the court to deny the

motions of these defendants’ for directed verdicts.

We have carefully considered the other issues raised

on this appeal, and are of the opinion that the district

court’s conduct of the trial, including its evidentiary

rulings and modified “Allen charge’, fell well within the

acceptable limits of judicial discretion. Accordingly, the

judgments against District 17 and the International Union

are vacated and remanded with directions to dismiss as

to these defendants. The judgments against the Locals

on the seventeen sympathy stoppages are also vacated.

The remaining thirty-one judgments against the Locals

are affirmed.

AFFIRMED in part;

VACATED and

REMANDED in part.

es

7 OO an ee Nt ae a atte

B-1

APPENDIX B

STATUTE INVOLVED

§ 185. Suits by and against labor organizations

Venue, amount, and citizenship

(a) Suits for violation of contracts between an em-

ployer and a labor organization representing employees

in an industry affecting commerce as defined in this

chapter, or between any such labor organizations, may

be brought in any district court of the United States hav-

ing jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizen-

ship of the parties.

Responsibility for acts of agent; entity for purposes of suit;

enforcement of money judgments

(b) Any labor organization which represents em-

ployees in an industry affecting commerce as defined in

this chapter and any employer whose activities affect

commerce as defined in this chapter shall be bound by

the acts of its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the employees

whom it:represents in the courts of the United States.

Any money judgment against a labor organization in a

district court of the United States shall be enforceable

only against the organization as an entity and against its

assets, and shall not be enforceable against any indi-

vidual member or his assets.

Jurisdiction

(c) For the purposes of actions and proceedings by or

against labor organizations in the district courts of the

United States, district courts shall be deemed to have

jurisdiction of a labor organization (1) in the district in

which such organization maintains its principal office,

or (2) in any district in which its duly authorized officers

B-2

or agents are engaged in representing or acting for em-

ployee members.

Service of process

(d) The service of summons, subpoena, or other legal

process of any court of the United States upon an officer

or agent of a labor organization, in his capacity as such,

shall constitute service upon the labor organization.

Determination of question of agency

(e), For the purposes of this section, in determining

whether any person is acting as an “agent” of another

person so as to make such other person responsible for

his acts, the question of whether the specific acts per-

formed were actually authorized or subsequently ratified

shall not be controlling.