Petition for Writ of Certiorari — Ball v. Eastern Coal Corp.

SUPREME COURT : ed

JOHN F. DAVIS, 61

~. SEP 28’ 19:

Py > a

664

- SUPREME COURT OF THE UNITED STATES

ee a

GEORGE LESTER BALL, ET AL, - Petitioners,

versus.

EASTERN COAL CORPORATION, ET AL., Respondents:.

_ PETITION FOR WRIT OF CERTIORARI TO THE.

COURT OF APPEALS OF. KENTUCKY.

ABISHI C. CUNNINGHAM,

Merchants & Miners Bank Bldg.,

Welch, West Virginia,

JEAN L. AUXIER,

First National Bank Bldg.,

- Pikeville, Kentucky,

Attorneys for Petitioners.

WESTERFIELD-BONTE cO., INCORPORATED,’ LOUISVILLE, KY.

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“TABLE OF CONTENTS. .

’ —— PAGE

meeuenutiane il eevbeyenes ae 1

Gs 46 Décccctecdacbedsensseoereuns See >‘.

Questions Presented ues eet eunaees Rem g

Statute Involved . . . ereondiges iviesind ae eens

Statement of the Case... cubaeas enone ia Vewanus 3-20

‘Argument .... BPR AMET ANTI ANE

Conclusion... ..... EET fe. aed ae 39

Certification ses possetactesdebeneabean Salas 40

Appendices... ... i pivaescis sack seudeeees aiaaine 41-62

:: me

29 USC Lax(b),. Renate SO ener

Herbert Bridges v. F. H, McGraw ¢ ‘Company (Ky.

1957), 502 S. W. 24 109....... nee adschnseusnay

: Hill v. United Public Workers of America Cay. me” e

236 8. W. 2d 887......+ SSashxeacenrseyedepanenes

S. W. Bivdibscuscédecasssdusscens ales pauedins

NLRB v. Union Pacific; 99 F. od De decnasesnstes*

Gatlif, Coal Company v. Cox (Ky. ),-142 Fed. ‘2d 876.

Oa 6d 6 ocd chad ud OC kena ede babe Kayes

International Lenushecnemeil s & Warchousemen’ 8

Union v. Kuntz, 334 F. 2d 165, sO A OR Rae

United Steel Workers of America v. Warrior & Gulf

| Navigation Company, 80 S. Ct. 1347, 363 U: S. 574

CRUE 0's Shseduaneccccdtheccicsdpendstennesees av

Ford Motor Co. v. Huffman, 345 U. 8. 330, 97 L. Ed.

1046, 73 &. Cl. GBL (1968). cccccccccccccccccccen

| Humphrey v. Moore, 375 U. ‘8. 335, 84 8. Ct. 363

MG ee

. Aevitatied Ledee’ v. Campbell, 337 U. S. 521, 93

_ L, Ed. 1513, 69 S. Ct. 1287 (1948) ee hoa

20 |

‘SUPREME COURT OF THE UNITED STATES

“Grorce Lester BALL, Br Au, - - Petitioners,

. ‘Eastern Coa CorporaTION, Er AL., - Respondents. -

a

PETITION FOR WRIT OF CERTIORARI TO THE

COURT oF APPEALS OF KENTUCKY.

‘@.

7 The: petitioners pray that a Writ of Oertiorati i issue

to review the decision of the Court of ae © of Ken-

tucky: in ths case, - ;

OPINION. BELOW.

On March\ 24, 1967, the Court of Appeals of Ken- .

tucky announced the decision sought to be reviewed and

its opinion is published 1 in 415 S. W. 2d 620-627. It'is”

appended - (Appendix D, p..48). Petition for reheat-

ing was Genee on June 30, 1967.

; -ypRIspIeTION.

Petitioners claim jurisdiction to grant certiorari is

conferred by 28 USC 2101(¢) and by the Labor Man-

agement Relations Act, 1947, a mnie): codified

as 29 USC 185.

+ We.

2 ‘

QUESTIONS PRESENTED.

"he following questions are to be presented by this

petition: — am

1.. Where an employer ‘engaged in an shausizy

affecting commerce, as defined in Labor Management |

‘Relations Act, 1947, has a contract with a labor organ-

ization representing his employees in that industry

-may the officers « or the majority of the members of'a

‘local union waive, abrogate and déprive a minority. of...

employee members of. their seniority rights under the

éxisting collective bargaining agreement; there being -

no -néw agreement and no amended or supplemental

a epg on to support such privation.

’ 2. Did officers of. Labor Union 5737 of the United i

Mine Workers of America have authority to enter into

a local seniority agreement involving job or,mine ~

senority, while the parties were under the terms and

conditions of the ‘National Bituminous. Coal Wage

Agreement of 1950, as amended September 29, 1952,

effective October I, 1952, and as amended thereafter. ”

«3. The further. question presented is whether the. “

te provision for ‘Management of Mines,”’-as set out in

the collective bargaining agreement above referred to,

gave the employer the authority to determine the num- -

ber of mines that it would operate, and the authority to

assign its employees to work in the mines so designated.

- 4, The final question to be presented is did the

Court of Appeals of Kentucky misapply the principles

of Aeronautical Lodge v. Campbell, 337 U. S. 512, 93.

* r

4:

L. Ed. 1513,'69 8. Ct. 1287 (1948); Ford Motor Com-— a

pany v.. Huffman, 345 U. S. 330, 97 L. Ed. 1048, °73.

_§. Ot. 681 (1952) and Humphrey v. Moore, 94 8. Ct. »

"363, 375 U. 8. 335. (1964), in this case. ~ .

Bae STATUTE INVOLVED. 7

‘The. rights claimed by the petitioners were created

by the National Bituminous C al/Wage Agreement of —

1950, as.amended September 29, 1952, effective October

1, 1962. Pe ce Maen IR teal

The Labor Management Relations Act, 1947, de-

clares the policy of the United States to protect such:

‘rights in the portion of. the act codified as 29 USC | >

141(b), which saysin part: | !

“Tt is the purpose and policy of this Act in

-ordér. to. promote the full flow of Commerée, to

‘prescribe the legitimate rights of both employees - :

and employers in their relations affecting com-

merce, to provide orderly ind peaceful procedures

for preventing the interference by either with the

legitimate rights of the other, to protect the rights

~ of individual employees in their relations with |

labor organizations whose activities affect com-

ee Ee eke : |

STATEMENT: OF THE CASE.

a

Before proceeding with the facts involved it is

proper to point out. that the original complaint in the’

Court of first instances relied upon the Labor Manage-

ment Relations Act, 1947 (Transcript, Kentucky Court ©

of Appeals, p. ....). The decision of the Court of first

a Cmecnenmneeenensees eee urmnar sien te | | ) eae ’ ¥

; ; . 4 . | : : oF ce b

instances specially undertook to apply the principles -

‘.. of Humphrey v. Moore, 375 U. §. 335, 84 8. Ct. 363),°

(Appendix “H”’, p. 56), and Court of last resort in

Kentucky, in ruling on the case, held specially that

. “This action, though brought in a State Court, comes

- within the ambit of Section 301 (a) of the Labor Man- ©

agement Relations Act of 1947, 29 USCA Section

-185(a), and is cone by federal law” (Appendix

fs om. p. 55).

Kastern Coal Caiesdiaiie a corporation created

and existing under the laws of the State of West Vir-

ginia, and authorized to do business in. the Common-

wealth of Kentucky owned and operated certain coal is

mines in Pike County, Kentucky. In 1954, Eastern,

Coal Corporation operated its mines Nos. 4 and 8 both

being located at McAndrews, ‘Kentucky, and its mm

No. 7, located at McVeigh, Kentucky. :

Prior to ‘April 1954, each of the plaintiffs was an

employee of Eastern Coal Corporation—some being

employed at Eastern’s Mine No. 4, and some being em-

. ployed at Eastern’s Mine No. 8. - -e |

Plaintiffs were me™bers of the United Mine Work-

_ ers of America, the latter being their exclusive bar-

gaining agent, and Eastern was signatory to’ the

National Bituminous Coal Wage Agreement of 1950,

as amended September 29, 1952, effective October 1,

1952, hereinafter referred to as the. “ Agreemient. ne

The agreement rules all of the parties hereto.

Some of the provisions are so vital in this case that

. We now quote them and with the indulgence of the court

shall later repeat them. | |

é

5)

MANAGEMENT OF MINES.

“<The management of the mine, the direction of —

the working force, and the right to hire and dis-

charge are vested exclusively in the operator, and

the United Mine Workers of America shall not

abridge these rights.’ (Emphasis ours.) (See

_ % * 33° and 60, of Agreement—United Mine

Workers of America—District 30—Big Sandy—.

1941-49 through. Sept. 30, 1968, and amendments

attached er and made a part hereof. )

This provision was cumied forward and made a’

- part of the National Coal Wage Agreement of 1950, as

amended September 29; 1952, effective October 1, 1952,

- and in all subsequent supplemental agreements and

amendments to the Agreement to date.

‘This Agreement also provided :

“DISTRICT “AGREEMENTS.

“This Agreement supersedes all existing and

. previous contracts except as incorporated and ear-

ried forward herein by. reference; and ail local

agreements, rules, regulations and customs here-

tofore established in-conflict with this. agreement

are hereby abolished. Prior practice and customs:

not. in conflict with this agreement may be con-

tinued, but any provisions in District or Local

Agreements providing for the levying, assessing

or collecting of fines or providing for ‘no strike,’ —

‘indemnity’ or ‘guarantee’ clauses or provisions are

hereby expressly * sepealed and shall not be appli-

eable during the terms of this agreement. . .

“Wherever a conflict arises between this Agree-

ment and any Local or District Agreement, this .

Agreement shall prevail. When day men are ~-

& - si y : 6'

transferred to loading coal the individual affected,

if aggrieved, shall have the right of review under

settlement of disputes procedures provided for in

this Agreement.

“No District Contract or Agreement negotiated

hereinafter shall become effective until approval

of such contract by the International Union, .

United Mine Workers of America, has first been

obtained.”” (Emphasis’ ours.) (See: p. 74 of. -

‘Agreement United Mine Workers of America—

“District No. 30—Big ti: gail ia

_ Sept. 30, 1968" and Amendments.’’)

This provision was carried forward and madé a part

of the 1951 Amendment, and of the National Bitumin-

ous Coal Wage Agreement of. 1950, as amended Sep-

_ tember 29, 1952, effective October 1, 1952.

. This Agreement also provided :

“SETTLEMENT OF LOCAL AND DISTRICT

DISPUTES.

‘“‘Should differences arise between the Mine

~ Workers and the Operators as to the meaning and

_ application of the provisions of this Agreement, or

should differences arise about matters not specifi-—

» ¢ally mentioned in this Agreement, or should any,

- Joeal trouble of any kind arise at the mine, an

‘earnest effort shall be made to settle such differ-

‘ences immediately :

. 1, Between the aggrieved party and the mine

management.

‘9. Through the management of the mine ied

“Mine Committee. .

“3. Through District representatives of the

United Mine Workers of America and a commis-

SR ERENT BARTON LAOS a

be net POR ENED

a e

me

sioner representative (whiere employed) of the ~

coal company. : ae ;

"¢, By a board consisting of four members,

two of whom shall be designated by the Mine Work-

ers and two by the Operators. __.

65, Should the board fail to agree the matter

shall, within thirty (30) days after decision by the

Board, be referred to an umpire to be mutually

- agreed upon by the Operator or Operators affected

and by the duly designated representatives of the

United Mine Workers of America, and the umpire

- go agreed upon shall expeditiously and without

delay decide said case. The decision of the umpire —

_. shall be final. Expenses and salary incident to the :

services of an umpire shall be paid equally by the

Operator or Operators affected: and by the Mine

' Workers. ,

‘A decision reached at any stage of the pro-

ceedings above outlined shall be binding on both

parties hereto and shall not be subject to reopening

by any other party or branch of either association

except by mutual agreement (R. 59-62).’’ See pp.

74 and 75 of Agreement—United Mine Workers

of America—District 30-—Big Sandy—1941-49

through Sept. 30, 1968 and amendments. )

This Agreement also provides:

4, Seniority in principle and practice shall

be recognized in the industry.

«2, In all cases where the working force is to

be reduced, employees in each job classification at

a mine with the. least service, shall be laid off first.

“3, Employees who are idle because of a re-

duction in the working force shall be placed in a

} | | i :

panel from which they shall be returned to employ-

_ment,on the basis of seniority. .

‘4. Seniority established by the situa

previous to the layoff shall be retained and con-

~ Utinned upon re-employment from the panel.

«5. The re-employment of any idle person in caer '

a new classification is recognized fully providing

such person is qualified and is entitled otherwise to.

the. position by reason of his seniority.

_ “6, The superintendent of the mine and the |

secretary of the local union Shall be joint: cus- —_—_——

_ todians of the panel record. ;

“7. In two or three shift operations the ques- -

tion of seniority with regard to work on the repec- + ||

tive shifts shall be left to the discretion of the °.

contracting parties at the mine in question. "

“8. GRIEVANCES under the seniority arrange-

ments shall.be handled in the usual- way under the

‘machinery of the contract providing.for the con-

sideration and disposition of grievances.

‘“‘9, Any person in, the panel list who secures ©

casual or intermittent employment during the

period when no work is available for*him at the

operation shall in no way jeopardize his seniority.

rights ‘while engaged in such temporary employ-

ment. However, any person on the panel list who

secures regular employment at another operation,

or outside the industry, and does not return to work

when there is available employment at the mine for

those in said panel, shall sacrifice his seniority

rights at the operation-and shall have his name re-

moved from the panel list.” (Emphasis ours.)

(See pp. 82 and 83 of Agreement—United Mine

_ Workers of America—District 30—Big' Sandy—

_ -1941-49 through Sept. 30, 1968 and amendments. )

9

Prior to 1952, neither of the, mines involved here

were connected by underground haulway or other-

wise. Eastern’s Mine No.4 and 8, were and are now

located at McAndrews, Kentucky. Eastern’s Mine

No. 7, was and is now located at MeVeigh, Kentucky,

approximately two (2) miles distant from McAndrews, .

Kentucky.

Before 1952, the coal mined at Eastern’s Mine No. 4

‘and its Mine No. 8, was processed in-a-tipple located at.

~——McAndrews, Kentucky. Coal:mined at Eastern’s Mine

No. 7, was-processed in a — located at McVeigh,

Kentucky. | ;

. During the year 1952, Eastern Coal iii

erected a modern cleaning plant at McAndrews, Ken-

tucky. Coal mined at Eastern’s Mines Nos. 4 and 8, was

- processed in the central cleaning _— located at Me-

Andrews, Kentucky.

In the same year Eastern Coal Corporation began

driving an underground haulway between its mine

No. 7, at McVeigh, Kentucky, and its Mine No. 8, at

McAndrews, Kentucky. In constructing the under-

ground haulway, Eastern drove through its old No. 5 °

Mine located at Pinsonfork, Kentucky, and into its

Mine No. 8 located at McAndrews, Kentucky.. -

The project was completed on or about the 17th day

of May, 1953. Upon completion of the underground

haulway between the Mine No. 7 and Mine No. 8,

Eastern abandoned its tipple at Mine No. 7, at Me- .

Veigh, Kentucky, and hegan transporting coal mined"

at its Mine No. 7, through the underground haulway

and began processing the coal so mined at its Mine

eo

10

- No. 7; in its central cleaning plant located at. Me-

Andrews, Kentucky.

These plaintiffs were sisal by maken Coal:

Corporation long before May 1953, at its Mines Nos. 4 ,

and 8, and assigned to work in said Mines in various

job classifications. — : f |

During the month of June 1953, ‘Eastern. began

transferring some of its employees from its No. 7 Mine

at MeVeigh, . Kentucky, to its Mines Nos. 4 and 8

— located at McAndrews, Kentucky. - '

_* On or about the 16th day of June 1953, District

Seventeen (17) of the United Mine Workers of Amer-

ica caused the charter of Local.Union No. 5729, to. be

_ surrendered, and the employees transferred from

Eastern’s Mine No. 7 to its mines Nos. 4 and 8, and the

employees. remaining in Eastern’s Mine No. 7, became.

members of Local Union No. 5738.

On or about the 31st day of March, 1954, Eastern

Coal Corporation began reducing its working forces at

_its Nos. 4 and 8 Mines. |

'In reducing its working forces Eastern usea the

payroll seniority plan im lieu of the mine seniority plan

as provided for in the contract. (Appendix ‘A”,

Report of Pete Phillipi and Joseph Yablonski, bearing

date on the 16th day of November 1955.)

The employer, Eastern Coal Corporation, became

dissatisfied with the method that it was required to use _

in furloughing the plaintiffs and filed complaint with —

the International Union. (See Appendix ‘‘B’’, Report

of Tom Raney, International Executive Board Mem-

ber, dated June 7, 1955.)

whom they were being replaced.

-—

‘ 3 iO ; : - : se ig : :

_. Phese plaintiffs were cut-off or furloughed from em- -

ployment at Eastern’s. Mines Nos. 4 and 8, and were

replaced by employees of Eastern Coal Corporation

~ that had been transferred from Eastern’s Mine No. 7,

in June 1953, and thereafter. The employees retained

in the places of these plaintiffs had less service in

mines Nos. 4 and 8 than the plaintiffs. ~ -

These aggrieved plaintiffs acting through and by a

~ eommittee met with Eastern’s Mine Management and

Officials and requested that the terms of the contract

_ be honored, and that they be retained in the. employ- -

ment of Hastern because they had more service in

Eastern’s Mines Nos. 4 and 8, than the employees by

On each visit with the officials and management of

“the Mines, these plaintiffs were told that it, Eastern

Coal Corporation, had to go along with the Officials of.

the Local Umion.. | 3

Eastern refused to honor its contracts with the

plaintiffs. and refused to retain them in its employ- _

ment. eiits ,

The committee representing the plaintiffs appealed

to the “Mine Committee’’ requesting that a grievance

pe filed as provided for in the National Bituminous

Coal Wage Agreement of 1950, as amended September

29, 1952, effective October 1, 1952, as amended, for

settlement of Local and District disputes.

‘The “Mine Committee” arbitrarily refused to take

the matter up with mine management, and refused to

file a giievance. The ‘‘Mine Committee”’ informed

‘the plaintiffs that the’ question of seniority had been

12

_ settled with Eastern under a. Local Seniority Agree-

: ment, and that a grievance referable to the District did

not exist.

Upon refusal of the ‘Mine ‘Committee’ | to. pre-

sent formal grievances, the plaintiffs appealed. to Dis-

trict 17, requesting that the ‘‘Mine Committee’ be re-

’ quired to present formal grievances so that the dispute

_could be settled and determined in the manner provided

for in settlement of Local and District. disputes as set.

out in paragraph eight (8) of the seniority provision of

- * the contract.

District 17, of the. United Mine Watkets of Amer-

ica sustained the ruling of the ‘“‘Mine Committee’’ and:

held that the dispute was properly settled according to

the alleged Local Seniority Agreement made and en--

tered into: between Eastern Coal Corporation and the

'- Local Union: (See Appendices ‘A and B’’.)

The decision of District 17, was appealed to the

International Executive Board of the United Mine

Workers of America. The International Executive

Board appointed commissioners to investigate and « fy

make report of its findings concerning the dispute ex-

isting at Eastern’s mines. On June 7, 1955, and on

_ November 16, 1955, the commissioners made findings :

and reported to the International Executive Board that

there was in existence a Local Seniority Agreement be- |

tween Eastern Coal Corporation and the Local Union

Officials. (See Appendices ‘‘A and B’’.) ee :

Further, in his report of June 7, 1955, Mr. ‘Tom

Raney, Executive Board Member, in reporting his

findings, reported that representatives of District 17,

13 .

. and ails the Local Umon Officers ‘i Eastern Coal

Corporation in writing up:and agreeing to the Local

: Seniority Agreement in existence at Eastern Coal Cor--

poration. mines. (See. Appendix 6A.) .

_ The International Executive Board sustained the

ruling of District 17, as a result of which the plaintiffs

were denied the right to have the dispute settled as

provided for in the contract for the settlement of Local ;

and District disputes. | : |

_ As it had i in the past, Eastern Coal Cosianiion con-

" tinued mining in Pike County, aanideieid in its three

(3) separate mines.

. On June 24, 1954, Eastern certified to the Kentucky

Department of Mines and Minerals that it operated ©

Mine No. 4, at McAndrews, Kentucky; ; that it operated.

2 shifts per 24 hours; that it employed 164 men at its

Mine No. 4; that-its average production was 1500 tons

per 24 hours operation; that its foreman was “J, ohn

O’Brien”’; that: there was no change in the name and

designation of the mine.

On May 11, 1954, Eastern Coal Corporation certified |

to the Kentucky Department of Mines and Minerals

that it operated its Mine No. 7, at McVeigh, Kentucky; ~

that it emplayed 140 men in the mine; that it worked

two (2) shifts; that its average production was 1500

tons per 24 hours;.that its foreman was ‘‘Harold Brod-

gon’’; and that there was no change in name or desig- -

_nation.

On or about April 22, 1954, Eastern Coal Corpora-

tion certified to the Kentucky. Departmgnt of Mines

2 Minerals that it employed 234 m

at its Mine

14

No. 4; that it operated 2 shifts; that its foreman was

_ John O’Brien; and that there was no change in name

or designation. |

~ On September 23, 1954, astern Coal Cor: oration

‘certified the Kentucky Department of Mines and Min- ©

erals that its Mine No. 7, was located at MeVeigh, Ken- ,

tucky; that it employed 170 men in the mine; that it:

- operated ‘two (2) shifts at the mine; that its average

production was 1450 tons per’ 24 hours; that its fore-

man was Harold Brodgon ; ‘and that there ‘was no

change in name.or designation. Rae

On June 22, 1955, Eastern Coal iad certi-

fied to the Kentucky Department of Mines and Min-

- _ erals that it operated its Mine No. 4; at McAndrews, .-

oe. Kentucky ; ; that it employed 290 men in the mine; that ;

it operated three (3). shifts per 24 hours; and Set its si

foreman was Harold Brodgon.”

On February 22, 1955, Eastern Coal Conpentiiess

certified to the Kentucky Department of Mines and

Minerals that it operated its mine No. 4, at McAndrews,

Kentucky ; that it employed 232 men in the mine ; that

it operated 3 shifts per 24 hours; that its average pro-

duction was 1800 tons per 24 hours; that its foreman

was “‘John O’Brien’”’; and that there was no change i in

_ Mame or designation. . e

_ On March 14, 1955, Eastern Coal Corporation certi-*.

fied to the Kentucky Department of Mines and Min-

. erals that it operated its Mine No. 7, at. McVeigh, 4

Kentucky; that it employed 226 men. in the mine;

- that it workéd two (2) -shifts per 24 hours; that

sits | cocman was John O'Brien; that its wreenge pro-

ad

~ duction was: 1500 tons per 24 hours; and that coal from

said mine was processed at the central cleaning plant

located at its Mine No. 4.

‘On September 23, 1955, Eastern Coal Corporation

certified to the Kentucky Department of Mines and

Minerals that it operated its Mine No. 7, at McVeigh, ©

| Kentucky ; : ‘that it employed: 274 men in the mine; that

it worked ‘three (3) shifts; that it averaged producing

2200 tons per 24 hours; that its foreman was Bill, Phil-

"3 lips ;'and that there was no > change m asiaicngert or”

name.

On mahewasy. 17, 1956, Eastern Coal Corporation

certified to. the Kentucky Department of Mines and

4 Minerals that it operated its Mine No. 4, at McAndrews,

Kentucky ; that it employed 305‘men in the mine; that

it worked three (3) shifts per 24 hours ; that it averaged

| _ producing 2800 tons per 24 hours and that its —_—

was Harold Brodgon. |

On March 30, 1956, Eastern Coal ietisiauiie oaths

fied. to the Kentucky Department of Mines and Min-

erals that it operated its Mine No. 7, at McVeigh, Ken-

tucky; that it employed 227 meni in the mine; that it

_ operated three (3) shifts per 24 hours; that it averaged

producing 2100 tons per 24 hours; that its foreman was

Wm. Phillips; as and to surfdet-equipment. ‘(See No. 4

| _Mine Inspection Report.).

. On August 15, 1956, Eastern Coal Corporation cer-

tified ‘to the Kentucky Department of Mines and Min-

; erals that it operated its Mine No. 4, at McAndrews,

Kentucky; ; that it employed 270 men at the miné; that |

it- worked three (3) shifts per 24 hours; that it at the:

16

_

that its foreman was Harold Brodgon.

‘On August 17, 1956, Eastern Coal Corporation cer- a

tified to the Kentucky, Department of Mines and Min-

erals that it operated itsMifes N 0. 7, at MeVeigh, Ken-

tucky; that it employed 234 men in the mine; that it

is worked three (3) shifts per 24 hours; that it averaged

producing 2100 tons per 24 hours; and that its foreman

. was Mr. Phillips.

On January 1, 1957, Eastern Coal Sinssiaitil cer-

-tifiéd to the Kentucky Department of Mines and Min-

erals that it operated its Mine No. 4, at McAndrews,

Kentucky ; that it employed 270 men at the mine; that

it operated three (3) shifts per 24 hours; that its aver-

- age production was 2600 tons per 24 hours; and that its

foreman was Harold Brodgon.

‘On June 21, 1957, Eastern Coal. Corporation non

fied to the Kentucky: Department: of Mines and Min-

erals that it operated Mine No. 7, at McVeigh, Ken-

tucky ; that it employed 235 men; that it worked three -

(3) shifts; that it averaged producing 2300 tons per

24 hours; and that its foreman was Wm. Phillips.

On August 7, 1957, Eastern Coal Corporation certi-

fied to the Kentucky Department of Mines and Min-

-erals that it operated Mine No. 4, at McAndrews, Ken-

tucky; that it employed 290 men at the mine; that it

operated three ( 3) shifts per 24 hours; that it averaged

producing 2700 tons per 24 hours; and that ite foreman ,

was Harold Brodgon. |

Mine; that it worked three (3) shifts per 24 hours; |

that it.averaged producing 2500 tons per 24 hours; and

9

ie 17

~ On November 18, 1957, Eastern Coal Corporation

certified to the Kentucky Department’ of Mines and

Minerals:that it operated its Mine No. 7, at McVeigh, —

Kentucky ; that it employed 300 men at the mine; that »

ityworked two (2) shifts per 24 hours; that it averaged

producing 2000 tons per 24 hours, and that the foreman

of the mine was Wm. Phillips..

On January 21, 1958, Eastern Coal Corporation cer-

tified to the Kentucky Department of Mines and Min-

erals that it operated Mine No. 4, at McAndrews,

Kentucky ; that ‘it employed 280 men in’ mine; that it

worked two (2) shifts per 24 hours; that it averaged

producing 2700 tons per 24 hours; and that the foreman

of the mine was Harold Brodgon. .

On January 22, 1958, Eastern Coal Corporation cer-

tified to the Kentucky Department of Mines and Min-

erals that it operated. its Mine No. 8,. McAndrews, *

Kentucky ; ; ‘that it employed 40 men; that it operated

the mine two (2) shifts per 24 hours; that it averaged

producing 700 tons per 24 hours; that its foreman was

Harold ‘Brodgon ; and that its name and designation |

«was unchanged. |

On October 7, 1958, Eastern Coal Corporation ¢ cer--

tified to the Kentucky Department of Mines and Min-

erals that.it operated its Mine No. 4, at McAndrews,

Kentucky ; that it employed 246 men in the mine; ‘that

it worked two (2) shifts per 24 hours; that it averaged ~

producing 3100 tons per 24 hours; that its foreman was

- Harold Brodgon; and that its name was unchanged.

~ .- On December 12, 1958, Eastern Coal Corporation

, certified to the senate ep of Mines and

18 ©

Minerals that it operated Mine No. 7, at MeVeigh,

Kentucky ; that it employed 116 men in the mine; that _

it operated two (2) shifts; that it averaged producing -

1000 tons per 24 hours; and that its foreman was

~ Wm. Phillips. , :

| On January 27, 1959, Bastevi Coal Corporation cer-

tified to the Kentucky Department of Mines and Min-

erals that it operated its Mine No. 4, at McAndrews,

Kentucky ; that it employed ‘246 men in the mine ; that

it worked two (2) shifts; that it averaged producing

3200 tons per 24 hours; that its foreman was Harold

Brodgon; and that theye was no. change in name or

designation.

On March 24, 1959, Eastern Coal Gorporation cer-

tified to the Kentucky. Department of Mines and °°

Minerals that. it operated Mine No. 7, at McVeigh,

‘Kentucky ; that it employed 94 men in the mine ; that

it worked two (2) shifts; that it averaged ‘producing

1100 tons per 24 hours; and that the foreman of the

mine was Wm. Phillips.

On March 29, 1959, Eastern Coal Corporation cer-

tified to the. Kentucky Department of Mines and

: Minerals that it operated Mine No. 8, at McAndrews,

Kentucky ; ; that it employed 84 men; that it worked

two (2) shifts; and that it averaged producing 1000

- tons per 24 hours; and that its foreman was. sae

_ Brodgon.

On, April 17, 1956, on Coal en cer- |

tified to the Federal Bureau of Mines that it operated

Mine No. 7, at McVeigh, Kentucky; that it worked

,

f

_ a | °

‘

overran ton cme Maan

, 19.

_ three: (3) shifts; that it averaged producing. 2100 tons

per 24 hours; and that it employed 265 men in the mine.

| On July H, 1956, Eastern Coal Corporation cer-

| tified to the Federal Bureau of Mines that it operated

- Mine No. 4, at McAndrews, Kentucky ; that it employed

315 men in the mine; that it averaged producing 2400 -

tons per 24 hours; and that it worked three (3) shifts.

On December 3, 1956, Eastern certified to the Fed-

eral Bureau of Mines that it operated Mine No. 4, at_

McAndrews, Kentucky; that it worked three (3)

. shifts; that it ernployed 315 men in the mine; and that

it averaged producing 2700 tons per 24 hours.

- On December 10, 1957, Eastern Coal Corporation

certified to the Federal Bureau of Mines that it oper-

ated Mine No. 4, at McAndrews, say oy that item-

ployed 278 men in the mine ; that it worked three shifts ;

and that it averaged producing 2500 tons per 24 hours. —

‘ On December 19, 1957, Eastern Coal Corporation

certified to the Federal Bureau of Mines that it oper-

ated Mine No. 7, at McVeigh, Kentucky ; that it worked .

three (3) shifts; that it employed 258 men in the mine;

and that it averaged producing 2360: tons per 24 hour

shift. :

. (For all of the above see Mine Inspection Reports,

Exhibits ‘‘D’’, ‘“‘E’’, “F,” “@’’, and ‘‘H”’ in the orig-.

inal record transmitted to this Court.)

Upon rehiring men from the idle panel in February

_ 1962, Eastern continued its practice of assigning men

_ to “work in its separate mines Nos. 4 and 7. . (See

Eastern Coal Corporation’s Form No. 21, Exhibit C,,

C-1 and Cc 2 in the — record transmitted to this

: Court.)

e-

_ 20

The United Mine Workers of America acting |

through its District President, R. O. Lewis, recognized

and acknowledged the existence of Eastern’s separate

mines through January 1961. . See Appendices * ",

i “op”, and “h”)

_ ARGUMENT.

- PROPOSITION No. 1.

| The Officers of Local Union No. 5737, did not:havé °

the authority, to waive, abrogate or deprive the plain-

tiffs of seniority rights accrued under the terms of the

then existing @llective bargaining agreement during .

the existence of said agreement without the benefit of

amended or supplemental agreement.

| _ Authorities.

Herbert Bridges v. F. H. MeGraw &. Company, ,

(Ky., 1957), 502.8. W. 2d 109.

Hill v. United Public Workers of America ( Ky. a

1950), 236 S. W. 2d’ 887.

Piercy v. Louisville & N ashville Ry. Co. (Ky. ); }

248 S. W. 1042.

_N.L.R.B. v. Union Pacific, 99 Fed. 2d 153.

_ Gatliff Coal Company v. Cox (Ky. dy 142 2 Fed. 2d.

876 (6th Cir.). -

Discussion. .

- Collective bargaining agreements « are made for the

_ benefit of the individual members as well as to stabilize

industry. During the existence of a‘collective bargain- 7

ing agreement the individual member has the right to _

sae ee rat

a

| rely upon its terms in being informed as to what his

rights thereunder are. He has the right to the benefits —

obtained by reason of the agreement until the agree-

ment has been amended, supplemented or changed. If-

_ this were not true, the collective bargaining agreement

would be meaningless to the worker.. The rights of

bertefits thought to be his. could be wiped out by the

majority of the union | members without notice or r Justi-

fiable reason. ~ ,

These plaintiffs do not question the right of the col-

lective bargaining agent to negotiate amended, supple-

mental or new collective bargaining -agreements in

which including seniority provisions are changed. * Fur-

ther, they realize that the collective bargaining agent is

to represent the whole membership. However, it is

their contention that until an amendment or change has

been effected that they as individuals have the right |

to enjoy the benefits obtained under the terms of the

existing contract.

In the case before the Court the ecllective bargain-

ing agreement was in existence and its provisions per-

taining to seniority. remained unchanged until 1964.

There is mention of a local seniority agreement in

Appendix ‘‘A,”’ but its existence has never confirmed.

In making preparation for the reduction of its

working forces at its Mines Nos. 4 and 8, Eastern Coal

Corporation knowing that it operated three (3) mines

in Pike County, Kentucky, undertook to comply with

the terms of the Agreement and furloughed the men

that: were last transferred to its N os. 4 and 8 mines.

~o

_ The ‘‘Mine Committee’”’ with the assistance of the

officers of District Seventeen (17) insisted that the

payroll seniority plan be put in effect. Although East~

ern later complied with this request, it filed a complaint

with the International Executive Board. (See Appen-

dix * A”) | ; |

It has been consistently held in Kentucky that

unions and their officers are agents of members for the

purpose of securing for its principals (members) fair

and just remuneration for their labor and favorable

conditions under which to perform it. They are not

agents of the members for the purpose of adjusting the

individual rights acquired by members in their con-

tracts with employers, nor can the union or its officers

change or waive any personal rights of members. __

| In Hill, et al. v. United Public Workers of America,

et al. (Ky., 1950), 236 S. W. 2d 887, the Court said:

“*These several labor unions which are volun-

tary unincorporated associations, are entities for

limited contractual purposes only. They are

clothed with power by their members to make

agreements with employers respecting - wages,

working: conditions and related labor questions, -

and within their legitimate scope such‘are binding

_ upon the union as an entity and the membership

‘thereof. Saulsberry v. Coopers International

Union (Ky.), 143 S. W. 1018. The necessity of

stability demands that without it there would be .

_no security or permanency. But the Union may

not act. in any particular way;so as to effect in-

juriously .the personal rights of. its members. ~

aw oll

23

A metnber does not have to submit to the determi-

nation of the Union in any question involving his

personal rights. Piercy v. Louisville & Nashville

R.R. Co. (Ky.), 248 S..W. 1042. As recently ex-

pressed in Louisville Ry. Co. v. -Louisyille Area

Transport Workers Union (Ky.),. 228 S. W. 2d

652 the Union.is the agent and servant of its mem--

bers, and-the membership does not exist for the

benefit of the union.- Some courts regard a bar-

gaining agreement as one made by the Union for

the benefit of third persons, its members, but we ..

are committed to the concept of agency.. Aulich v. .

_Craigmyle (Ky.), 59 S. E. 2d 560.”

In Herbert Bridges v. F. H. McGraw “ Company

(Ky., 1957), 302 S. W. 2d 109 the Court said:

' “The -agreement establishes no concrete con- 2

_ tract between the employer and employee, but is

only an agreement as to the terms on which con-

tracts of employment may be satisfactorily made

and carried out. 31 Am. Jur. Labor Sec. 97. It is

contemplated that those terms are. to be incorpo-

rated in separate contracts of hire with each em- |

ployee. McKay v. Lowes, Inc., 182 F. 2d 170, 18

ALR 2d 348. When one accepts employment

under the collective bargaining agreement, he

thereby ratifies and accepts its terms, and his

rights and his.employers rights are to be measured

and adjudged by that contract. McGregor v.

Louisville & Nashville Ry. Co. 244 Ky. 696, 51

S. W. 2d 1953. In some relations the Union con-

tracts as a principal but,.as we have written a labor

‘union exists for the benefit of its members, and

is their servant in securing fair and just wages and

ea ; .

24

) good working conditions though it may not binds -

the member in the exercise of his personal rights. _

Piercy ‘v. Louisville & Nashville Ry. Co. ( Ky. ), \

248 S. W. 1042; Hill v. United Public Workers of \

America (Ky. y, 236 S. W. 2d 887.” |

In Piercy v. ‘Louisville & Nashyille Ry. Co. (Ky.,

1923), the Court said:

‘The primary purpose of the organization of

labor unions and kindred organizations is to pro-

tect their individual members and to secure -for

them fair and just remuneration for their labor

and favorable conditions under which to perform —

it. Their agreements with employers looks always

to the securing of some right or privilege for their

individual members, and the right or privilege, so

secured by the agreement is the individual right of

the individual member and such organization can

no more by its arbitrary act deprive that individual

member of his right so secured than can any other

person. The organization is not the agent of the - —

member for the purpose of waiving any personal

right .he may have, but is only his representative

_ for the limited purpose of securing for him, to-

- gether with all other members, fair and just wages

- and working conditions. Hudson v. O.N. 0. & T.P.

Ry, Co., 154 8. W. 47.

“If the right of seniority. may be changed or

. waived or otherwise dispensed with by the act of

a bare majority of an organization to which the

one entitled thereto is a member, it would be

builded on a flimsy foundation of sand which-might —

slip from under him at anytime by the arbitrary

action of members, possibly to serve their own

selfish ends in displacing him.’ ager

| 25

PROPOSITION No. 2.

“The officers of Local Union: No. 5737 did not have «

the authority to enter into a local seniority agreement

with Eastern involving mine seniority, and in fact were ~

forbidden to do so under the terms and provisions of

the ‘National Bituminous Coal Wage. Agreement of

1950 as amended September 29, 1952, effective Octo-

_ber 1, 1952, and as amended theweatter. m bo

; Authorities.

International Longshoresman’s & Warehousemen’s

Union v. Kuntz, 334 F. 2d 165, aft.

: eit.

In the National Bituminous Coal Wage Agreement

* of 1950, effective March 5, 1950, the following provision .

was inserted :

“This Agreement supereodes all existing. and

previous contracts except as incorporated and car-

ried forward herein by referénce; and all local- ° .

agreements, rules, regulations, ‘and customs here-

tofore established in conflict with. this agreement

are hereby abolished.

‘Wherever a conflict arises bebwidn this Agree- .

ment and any Distri¢t or Local Agreement, this:

Agreement shall prevail.”

ee X

This provision was carried forward as a a of the

Collective Bargaining Agreement of 1950, as amended.

September 29, 1952, effective October 1, 1952." \

\

2 % \ *

»,

4

~

26

The National Bituminous Coal Wage iiieleeid of .

1950, as amended September 29, 1952, contained the

seniority provision ‘giving rise to the —_— in

question. ©

In paragraph two (2) of the seniority svethinn of the

contract it was provided that, ‘‘In ail cases where the

working force is to be reduced, employees in each job

- classification at a mine with least service shall be lad -

off first:’’? (Emphasis ours. ) :

Further, in paragraph 7; of the nies section

of the contract it states that, “in two or three-shift op- ~.

erations-the question of seniority with regard to work

on the respective shifts shall be left tothe discretion of

the contracting parties at the mine in tee ”? (Em-

phasis ours. ) ;

It is clear that the euliveding parties intended to, |

and did eliminate the necessity the exercise of. discre-

tion i in determining seniority rights. By its terms the

.:. parties were required to look at the hiring dates of men

in the affected mine and furlough those With least serv-

ice in that mine. , The parties bargained against the

- exercise of the use of discretion.

Further, it is clear from the terms of the contract

that local union authority respecting seniority to shift

seniority. It is specifically set out therein in the ques- -

' tion of shift seniority could be agreed upon by the local

union and the operator. Also, by enumerating this

authority (to be vested in the local union the contract

limited the local ‘union’s authority” and forbade it to

negotiate with respect to mine + ene

en

i *

Any local payroll seniority agreement in existence

or thereafter created was in conflict with the National’

Wage Agreement and void. The Local Union was for-

biddenrto act in this area, but did so undertake to act

‘to the detriment of these plaintiffs.

PROPOSITION No. 3.

- Under the terms National Bituminous Coal Wage

Agreement of 1950, as amended September 29, 1952,

effective October 1, 1952, management retained the —

right to determine the number of mines, and the loca-

tion of the mines that it would —— without union

interference. ie se

, ‘ Authorities.

United Steel Workers of Ameriea v. Warrior &

Gulf Navigation aes (1960), 80 5. Ct.

~ 1347, 363 U. 8, 574.

, Discussion. va

. Collective bargaining agreements may regulate or

restrict the exercise of management functions; they do.

not oust management from the performance of them.

and plans. All of these are a part of its function, and

absent a collective bargaining. agreemerit to the con-

trary, it may be exercised freely except as limited by

public law and by-the willingness of employees to work,

The National Coal’ Wage Agreement of 1950,. as

amended September 29, 1952, carried forward and.

preserved the provision in the contract entitled “‘Man-

, Management hires, fires, pays, promotes, supervises ee

- ae |

agement of Mines.’’ The Agreement provides that

“the management- of the. mine, the direction of the

working force, the right to hire and discharge are

vested exclusively in the operator and United Mine

-Workers of America shall not abridge these rights.”

(Emphasis: ours. ) ae

Eastern Coal Corporation’s reservation of the right

to manage inchided its right to determine how many

producing units it would operate i in Pike County, Ken-. |

_tucky. In this same contractual provisiop, the union — .

’ contracted against its right to interfere with manage-

“>. ment in area.

Upon negotiating the contract, in question it is pe

that “the United Mine Workers of America and the

operator’s. ‘association recognized the fact’ that there

were in existence -employexs or an “employer such as

- Eastern.that operated two. or more mines.

In their consideration of the question of seniority,

a decision had to be made between the choice of mine

seniority or payroll seniority. |

In the National Bituminous Coal Wage po

- of 1950, as hmended September 29, 1952, effective Octo-

ber 1, 1952, the parties to the contract agreed upon. the

~ mine seniority provision. “

As to those employers operating two or more desig-

~ nated mines, it is clear that the seniority provision,

Section 2 contemplated that each of said employers

agreed with each employee that he would have and

‘acquire seniority in each designated mine based upon .

his employment: in a. -particular or designated mine.

De te chee Zien,

29

The 1 mine referred to was one so designated by the em-

ployer. There was no provision in the contract, for the

designation of mines by the United Mine Workers.

In the case before the Court, Eastern Coal Corpo-

‘ration operated mines‘in Pike County, Kentucky and

designated them as being mines Nos.. 4, 7, and 8. In

United Steel Workers of America v.. Warrior & Gulf

Navigation Company, 80 8., Ct. 1347, 363 U. S. 574 .

‘ (1960), the United States Supreme Court recognized

certain rights of management. In that case the Court

Mi ee Pate eee ee

- “Q6llective bargaining agreements regulate or

restrict the exercise of management function ; they

do not oust management from the performance of

- them. Management hires and fires, pays and pro-

motes, supervises and plans. All of these are a

part of its function.” |

That Eastern had the right.to plan the operation of

its mines and distinguish between them as it did is

beyond question. Prior to and after the underground

connection of Mines Nos. ‘Land 8, Eastern Coal Corpo-

ration continued to operate and designate them as ‘sep-

arate and distinct mines.

Eastern: Coal Corporation continued separate inine

inspection reports to the Department of Mines of the

Commonwealth of Kentucky, and.to the Federal

Bureau of Mines. Eastern Coal Corporation reported

tonnage mined and working conditions i in its inspection

report as to each of its mines. Eastern employed sep-

~ arate mine foremen for its Mines Nos. 8 and 7, and as |

late as 1962; the records show that Eastern. Coal Cor-

. 30

_ poration upon hiring men assigned them. to work in its

specific numbered mines. It is inconceivable that all of

these records are incorrect with respect to the manner

in which Eastern operated its mines in Pike County.

We find nothing in the contract giving the union

power to determine how the employer.:should operate

its mines so long as it complies with the provisions con-"

tained in the contract. These appellants were com-

pelled to abide by the decision of the employer with re- |

-spect to the mine to which they were assigned for work.

They had the right to seniority based upon the employ-

ers assignment to work in one of its designated mines.

It is not the contention of the appellants that East-

ern’s Mine No. 7 lost its identity at any time, as men-—

tioned by the Appellate Court in its opinion. To the

contrary, the- documented evidence clearly establishes

that Eastern continued the operation of its No, 7 Mine.

The inspection reports, designation of mine foreman,

and Eastern’s ‘‘Form 21,’ all support the position of

‘the appellants that management continued the opera- |

tions of its Nos. 4, 7 and 8.mines through February,

1962. Further, it is evident that the Union knew of

Eastern’s continued operation of its separate mines

as attested by correspondence of the Union addressed

to its local union relating to safety inspection reports.

PROPOSITION No. 4

The Court of Appeals of Kentucky misapplied the

principles of Aeronautical Lodge v. Campbell, Ford —

Motor Company v. Huffman and Moore v. Humphrey

to the facts in this case. ag

31

Authorities.

Ford ‘iin Co. v. Huffman, 345 U. g, 330, 91

' L, Ed. 1048, 73 S. Ct. 681 (1952). ; x

Mumphrey v. Moore, 375 U. 8. 335, 84 S. Ct. 363

(1964)...

Aeronautical Lodge v. Campbell, 337 U. S. 521, 93

L. Ed. 1513, 69'S. Ct. 1287 (1948).

*

Discussion.

In rendering its judgment in this case the Court of

Appeals of Kentucky relied heavily upon the decision

of the Supreme Court’ of the United States in Ford

Motor Co. v. Huffman, Aeronautical Lodge v. Camp-

bell, and Moore v. Humphrey. In its opinion the Court

said:.

‘But we need not pen Sree the ar eer pet

selves. Applying the Federal Law as we construe

it from the principles stated in the Supreme Court

opinions herein cited: (referring Ford Motor Co. v.

Huffman, Aeronautical Lodge v.-Campbell and

Moore -v. Humphrey), and there. being neither

fraud no bad faith, as bargaining representative

- for its members the union had the right and power

“to resolve this purely intra-union, problem and,

in the course of ‘so doing, to effect an agreement

with Eastern either interpeting or ‘amending the

‘ contract accordingly. If a bargaining representa-

tive may alter seniority rights secured by both con- °

tract and statute, as in Ford Motor Co. v. Huff-:

man, 345 U. S. 330, 97 L. Ed. 1048, 73'S. Ct. 681

(1952) surely it may do so when the rights are

secured by contract only.”

+ 32

_ The facts in the case before the Court are so differ-

ent that the above quotation clearly establishes the mis-

application of principles. In the. cases relied upon

__ there were amended and supplemental collective bar-

gaining agreements made and exhibited to the Courts._ -

Those decisions did not alter rights secured by the selec- -

tive training and service act. The Court found that the

Act intended to preserve such seniority rights as pro-

vided for in the agrement. |

These appellants have not, do not now contend that

collective bargaining agerits do not have the authority

- to amend collective bargaining agreements from time to —

time as conditions may dictate. However, they do con-

tend that they are entitled to benefits contracted for

during the existence of the contract.

_ In Aeronautical Lodge v. Campbell, 337 U. S. 531,

93 L. Ed. 1513, 69'8..Ct. 1287; the-pertinent facts were

that Aeronautical Industrial Lodge No. 727, was the

' duly recognized collective bargaining agent for the em-

‘ployees at Lockheed Aircraft Corporation, 1941, the

‘union or bargaining agent had negotiated anagreement ~

with Lockheed covering the range of subjects touching

conditions of, employment typical of such agreements

in the aircraft industry. This agreement contained .

seniority provisions. This agreement was in effect -

when the aggrieved employees entered the employ of

Lockheed Aircraft Corporation in August, 1942. Upon

entering the employ of Lockheed the aggrieved em-

ployees joined the union and remained members |

- throughout the controversy. Two years later the ag-

grieved employees left the employment of Lockheed

AE EEE RE to OR

33

and entered the army. . “While they were in the service

the union negotiated a new contract that included a

change in: the seniority provisions or which modified

the 1941 Agreement. Upon discharge from the service

i the aggrieved employees were restored to their jobs in

aceordance with the Selective Service Act. In the

latter part of 1946, the aggrieved employees were fur-

| loughed and they attacked the right of the union to

change or modify the seniority provisions of the 1941

Agreement. Also, they asserted their right te protec-

tion under the Selective Service Act.

In Ford Motor Co. v. Huffman, 345 U. S. 330, 97

L.. Ed. 1948, 73.8. Ct. 681, the pertinent facts are that

_ Huffman, the aggrived émployee entered the employ

of Ford Motor Company in September, 1943. At: the

_ time of his employment, there was in existence a collec- -

_ tive bargaining. agreement entered into between Ford

Motor Company and the International Union, United

Automobile, Aircraft and Agricultural. Implement °

Workers of America, that contained certaix seniority

provisions based upon length of employment with Ford

Motors and with credit for military service. Huffman

was inducted into the army in November, 1944, and was

discharged July, 1946, and within 30 days was re-

employed by Ford Motors with seniority dating from

September, 1943, the date of his employment.

On the 30th day of July, 1946, Ford and the Inter-

national Union executed a supplementary agreement

‘containing the totlowing language in Section. 13,

thereof: .

34.

‘‘(C@) Any veteran of World War II who was

'; not employed by any person or. company. at the

time of. entry into the service of the land or naval

forces or the merchant marine and who is a citizen

of the United States and served with the allies and

who has been honorably discharged from such

training and service and who is hired by the com-

- pany after he is relieved from training and service

in the land or naval forces or after completion of

service in the merchant marine, shall upon having

been employed for six. months and not before,

receive seniority service credit for the period of

Ke such service aemnegnens to June 21, 1941. a

The effect of this provision was that whereas, Huff-

man’s seniority, and-that of members of his class was

computed from the respective dates: of employment oe

with Ford, and having been credited with their military

service, if any, were surpassed in seniority, in many -

instances, by employees who entered the employ of

Ford after they did, but who had entered the service

before the date of employment of Huffman by Ford

and given credit for the time so spent in service.

Huffman complained of the seniority provision in

the supplementary agreement of July 30, 1946, assert-

ing that the same was an unauthorized amendment of

the collective bargaining agreement and prohibited by

the Selective Service Agreement. :In each of the cases -

the Court sustained the right of the bargaining agent to

amend agreements and the seniority provisions therein

: contained. The Court reiterated its findings that the ~

Selective Service Act did not purport to create senior-

ity rights but, merely to secure unto servicemen such

/

/

/

/

35

. seniority provisions as were contained in collective bar- ©

gaining agreements. Further, the Court held that the

provision was legitimate and that the union had the

authority to accept the provision. ;

Int each of the above cases the aggrieved persons

sought to invoke the provisions of the Selective Service

Act in their behalf, ‘The Court merely held that the

Congress was not creating a system of seniority but

recognized. its operation as a | part of. the process of

collective bargaining.

It is extremely noticeable that i in each of the above

eases that there had been an amended or supplementary -

agreement entered into between the employer company -

and the union as agent for each of its members. Each

of the employees was appraised: of the rights secured

to him under the provisions of the negotiated contract

and upon entering or remaining in the employment of

the employer under*the contract ratified, accepted and —

was bound by the terms thereof. To have held that

labor contracts cannot he amended or supplemented

would haye been unreasonable.

In the ease before the bar, it is very noticeable that

the contract was not amended, nor was there a supple-

mentary agreement entered into. The appellant—em-

ployees are not complaining of the right to amend or .

supplement but, of the authority to waive or disregard

the rights secured unto each of them under the terms.

of a then existing contract in clear and unambiguous

language.

The evidence is that the Executive Committee of

the United Mine Workers of America appointed a com-

36

‘mission composed of William Blizzard, Gacwge Titler,

and Tom Raney, to investigate a complaint made by

Lawrence E. Tierney, President of Eastern Coal Cor-

poration,. wherein he complained of the method in ;

which the senior ity. agreement was being applied. On

June 7, 1955, Tom Raney acting for the commission,

reported that upon evidence as submitted by the mine

committee and local officers that there had been a local -

- seniority agreement. ‘between the management of the |

company and the mine ‘committee and local union, and .

that district 17 had assisted in writing up and agreeing

to the local seniority agreement. (See Exhibit D. )

Also the commission appointed on July 7; 1955, in mak-

ing a report of.its findings stated that the president

of Local Union No. 5737, stated that there was an un-

derstanding on seniority between mine management

and officers and committees of. both Local Union.’

Neither ef the reports indicate that there was an

authorized amendment to contract, affecting seniority,

nor has the United Mine Wor kers offered the alleged

writing referred to in the report. of June 7, 1955, for

the consideration of the Court. Further, by the terms ;

of the contract (Seniority Section 7) the authority of —

the Local’ Unions to act on matters of seniority was

_expressly restricted to matters of work on respective

shifts.

In Humphrey V; Moore, ibid, the question to, be,

resolved was whether the ‘‘Local Joint Committee”’

and the “Joint Conference Committee” exceed the

authority vested i in them by the Collective Bargaining

$

i - 37

Agreement by dovetailing seniority between the em-

ployees of: Dealers and the former employees of E. & I.

Transport Companies. Article 4, Section 5, of the con-.

tract in question in that case provided among other

things as follows:

“Tn the event that the sulin absorbs, the

‘business of another private, contract or common

carrier, or is a party.to a merger of lines, the

seniority of ‘the employees absorbed ‘or affected

- thereby shall be determined by mutual agreement

between the Employer and the Unions involved. |

Any controversy with respect to such matter shall |

be submitted to the joint: grievance procedure.’’

The Court held that the provisions of the contract

conferred upon Local Joint Committee and the Joint

Conference Committee to exercise discretion in absorp-

tion” cases, and that the committee did not abuse the -

authority vested in them. The case before the Court

is’quite different.

In the National Bituminous Coal Wage ‘Agreement

of 1950 astfmended September 29, 1952, effective Octo-

ber 1, 1952, the parties expressly contracted against the

use of discretion in Cotermanng, the ¢ senior ity rights of

-an employee.

In the seniority provision, Section 2, it provided

that, ©

* Tn all eases where the working force is to be

reduced, employees in each job‘classification at a

mine with least service, shall be laid off first.’’

In Section 6, of the same provision it is provided

that, : od 7

38 7

“The Superintendent of the mjne and the

Secretary of the Local Union shall be joint cus-.

todians of the panel record.”

By lariguage of the agreement the question of de-

my termining eniority became ministerial. The only act

required was consulting the panel or employment _rec-

ord: with a view of ascertaining who had most service

ina mall i mine. The contract left nothing uncer-

~ tain or over’ which to-bargain. ie

Further, in Section 7, of the same provision. (senior-

_ity) ‘the parties limited the authority .of the Local

. . Union in dealing with seniority. to shift seniority. It

was not vested with the authority to negotiate or deter- -

mine job seniority and any effort to do so constituted an

_ abuse of its power to the detriment of these plaintiffs

without any further showing. The local union /under-

took to do something that it was forbidden to do.

* . he union undertook to justify its action in: ‘the

- matter on the basis of necessity because’ of the provi-

sion in: the United Mine Worker’s Constitution which

provides that no mine shall be under-the 2 jurisdiction of

more than one Local Union. The consideration of the

. Local Union was purely a matter for union determina-

tion. However, we wish to point out that there isn’t

any. prohibition of one or more mines being under the

jurisdiction of one’Local Union. In fact, it is very...

prevalent in the mining industry where two or more —

mines of a common employer in ‘elose proximity to: each

other are under the jurisdiction of a single Local Union.

It appears from the record that one Local Union served

two (2) or more of Eeastern’s mines for a long-space

90.

of time. Since Eastern continued the operation, of its

7 separate mines there existed no. necessity for consoli-

dation. Notwithstanding, the’ merger or consolidation

of local unions did not prevent the union from recog- —

nizing the provisions of the contract Yelating to miné

_ seniority, ‘.

CONCLUSION.

| Upon the record, and the law as it has ‘often been

r - decided by the Supreme Court of the United States of .

| | America, we respectfully submit that this Court should.

grant the writ prayed’ for and reverse the cause and

* render judgment’ that Eastern violated its contracts

with the plaintiffs, and that the United Mine Workers:

of America wrongfully interfered with the plaintiffs’ |

| - gontragts, and in so doing violated its fiduciary obliga-'

Bae tion a their —

4 oa. Respectfully submitted; - —

° ABISHI C. CUNNINGHAM,

7 . . ‘ Merchants & Miners Bank Bldg.,

vast Welch, West va

| : ) JEAN 'L. Auxmr, .

ey, | First National Bank ; Blag.,

: ' Pikeville, Kentucky, ;

Counsel for Petitioners.

a

.

Certificate of Service.

“Tt is hereby certified that the foregoing Petition has

been served upon the opposing counsel by mailing a copy

‘thereof. to John M. Stephens, Esquire, Attorney at Law, |

Pe

Pikeville, Kentucky; to George Richardson, Jr., Esquir a |

_Attorriey at Law, Law & Commerce Building, Blue

West Virginia; to Albert S. Kemper, Jr., Attorney at“Law,

. Box 370, Bluefield, West Virginia; to J. Erwin Sanders, »

Esquire, "Attorney at Law, Pikeville, Kentucky; to Harrison

Combs, Esquire, Attorney at Law, 990 Fifteenth Street

- Northwest, Washington, D. C.; to H. B. Noble, Esquire,

- Attorney at Law, Hazard, Kentucky, and to M. E. Boiarsky,

Esquire, Attorney at Law, 511 Kanawha Valley Building,

Charleston, West Virginia, and to the Honorable James B.

en trial judge, Pikeville, Kentucky.

f. This day of September, 1967.

JEAN L. AUXiER,

Attorney for. Petitioners.