# Petition for Writ of Certiorari — Ball v. Eastern Coal Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0932%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 985 ## Text 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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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. “ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0932%3A1. Public record. Not legal advice.