Petition for Writ of Certiorari — United Mine Workers of America v. Riverton Coal Co.

Supreme Court brief1972

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In THE

Supreme Court of the United States

OCTOBER TERM, 1971

we. T- 1316

: 8

- .

UNITED MINE WORKERS OF AMERICA,

Petitioner,

RIVERTON CoAL COMPANY and

DAVISON FUEL AND Dock COMPANY

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EDWARD L. CAREY

HARRISON COMBS

900 Fifteenth Street, N. W.

Washington, D. C. 20005

E. H. Rayson

Valley Fidelity Bank Building

Knoxville, Tennessee 37901

ROBERT I. DOGGETT

2222 Kroger -Building

1014 Vine Street

Cincinnati, Ohio 45202

M. E. Botarsky

012 Kanawha Valley Building

Charleston, W. Va. 25301

Attorneys for United Mine

Workers of America

cst JARRETT PRINTING COMPANY, CHARLESTON W VA

INDEX

TABLE OF CONTENTS

Permissive Under the Act’s Section 8(e)

Page

Opinions BELoOw 2

~ JURISDICTION 2

QUESTIONS PRESENTED 2

STATUTORY PROVISIONS AND FEDERAL

RULE INVOLVED 4

STATEMENT OF THE CASE 4

A. Kind of Action and the Judgments of the Dis-

trict Court and the Sixth Circuit 4

B. Facts and the District Court’s Findings and

Conclusions Concerning UMW’s Restrictions

on Subcontracting :

1. The Litigants and Their Activities 6

2. ‘oe History of Collective Bargaining in,

and Relevant Economic Facts of, the Bifu-

minous Coa! Industry : i)

3. UMW’s Historical Efforts to Preserve Work

Opportunities for its Members Through

Contractual Restrictions 11

4. The District Court Found and Concluded

that PWC, the 80-cent Clause and the Coal

Lands Clause of the 1964 and 1966 Agree-

ments Sought to Protect the Jobs and Work

of Signatory Employees and to Maintain

the Welfare Fund’s Integrity, and Were

Page

5. The District Court’s ‘Conclusions Concern- .

ing the Validity of the Challenged Clauses 15 _

C. Facts and the District Court’s Findings and

-Conclusions Concerning the 1964 and 1966

Work Stoppages 16

- 1. The 1964 Work Stoppage 16

2. The 1966 Work Stoppage 22

3. The District Court’s Conclusions Concern-

ing the 1964 and 1966 Work Stoppages 24

D. The Sixth Circuit’s Opinion and Judgments 26

1. As to the Challenged Clauses 26 -

2. As to the Work Stoppages 287

a. The 1964 stoppage and its purpose 27

b. The 1965 stoppage | 29

3. As to Damages. | | "30

4.. As to Davison 80.

E. Pursuant to the District of Columbia Circuit’s

~ Indicia, NLRB Has Sustained the Validity of

PWC and the 80-cent Clause as Permissive

Under Section 8(e)- : 31

1. NLRB Has Validated PWC 31

2. NLRB Has Validated the 80-cent Clause 32

REASONS FOR GRANTING THE WRIT 34

A. The Sixth Circuit’s Holdings Concerning the

Challenged Clauses Conflict with Prior Im-

the District of Columbia Circuit and NLRB 34

B. The ‘Sixth Circuit's Reversal of the District

Court’s Findings That the Challenged Clauses

Were Permissive Under the Act’s Section 8(e)

Conflicts with Rule 52(a), Federal Rules of

Civil Procedure _ 40

C. The Sixth Circuit’s Holdings with Reference to

UMW’s Responsibility for the Work Stoppages

Contravene Prior Important Decisions and

Principles of This Court and Other Federal

’ Courts, Including Prior Decisions of the Sixth

Circuit

1. The 1964 stoppage ~ 41

2. The 1966 stoppage 43

D. The Sixth Circuit’s Holding That Davison Is A

Proper Party to the Instant Action Is Erroneous 47

ConcLusion 20

TABLE OF CASES

Page

Bale v. Glasgow Tobacco Bd. of Trade, Inc., 6 Cir.,

339 F.2d 281, 287 _ _ 40

Browning v. Crouse, 10 Cir., 356 F.2d 178 _ 43

Busby v. Electric Util. Employees’ Union, D.C. Cir.,

See wee ee ee 3 46

C. & O. Ry. Co. v. Martin, 283 U.S. 209, 219-20 43

_ Page

portant Decisions and Principles of This Court,

‘lil

Page

Comm’r of Internal Revenue v. Duberstein, 363

A OT Pe et 40

Coronado Coal Co. v. UMWA, 268 U.S. 295, 304-05. «6,

22, 25, 41, 42

Dixie Mining Co. Pet. v. NLRB, Resp. and W. A.

Boyle, et al., Intervenors, Case No. 23,947 in the

District of Columbia Circuit (pending) 39

Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S.

203 (1964) | 29, 36

Franklin Electric Construction Cooperative, 121

NLRB 143, 145-46 «. 46

Garmeada Coal Co. v. Int. Union, UMWA, 6 Cir.,

230 F.2d 945, affirming 122:F.Supp. 512,518 6, 46

General: Electric v. Sciaky Bros., 6 Cir., 415 F.2d :

1068 40

Goldlawr v. Heiman, 369 U.S. 463 (1962) . 47

Great Northern Ry. Co. v. Delmar Co., 283 U.S.

686, 691 (1931) 36

_ Griggs v. Duke Power Co., 401 U.S. 424 (1971) — 639

Harnischfeger Corp. v. Sheet Metal Workers, etc.,

6 Cir., 486 F.2d 351, 355 (1970) 41, 42, 45, 46

Int. Bro. of Teamsters v. Humko, 6 Cir., 287 F.2d

231 bak 46

Int. Ladies Garment Workers Union v. NLRB, D.C. -

Cir., 237 F.2d 545, 551, 552. © 41, 42, 44

Int..Union, UMWA, et al., 165 NLRB 467, 468 (1967) 33

Int. Union, UMWA, et al., 188 NLRB No. 121, 76

LRRM 1394, 1395, 1396 (February 26,1971) 26,

34, 38, 39

Page

Int. Union, UMWA, et al., Pet. v. NLRB, Resp. and

Dan S. Davison, et al., Intervenors, Case No.

21, 129 in the District of Columbia Circuit |

(pending) — . | 39

Int. Union, UMWA v. NLRB, et al., D.C. Cir., 399

F.2d 977, 980 (1968 ) Shs eee 33, 39

Lewis, et al. v. NLRB, D.C. Cir.,; 350 F.2d 801

(1965) , : ny ey Oe

Local 357, Teamsters v. NLRB, 365 U.S. 667, 676

(1961) dente tee S Bd Tacanete 36

Moore v. C. & O. Ry. Co., 340 U.S. 573, 578 43

Morgan Driveway, Inc. ‘Vv. Teamsters, 7 Cir., 268

F.2d 871 (1959) — | | 46

NLRB, Pet. v. BCOA, Resp. and Int. Union, UMWA;

et al., Intervenors, Case No. 21, 226 in the Dis-

tric of Columbia Circuit (pending ) 39

NLRB v. Marshall Car Wheel, etc., 5 Cir., 218 F.2d

409, 417 42

NLRB vy. Miami Coca-Cola Bottling Co., 5 Cir., 222

F.2d 341 - fe a 42

NLRB v. News Syndicate Co., 365 U.S. 695 (1961) 36

NLRB v. Truck Drivers Local No. 449, Teamsters,

353 U.S. 87 (1957) e 37

National Woodwork Mfgrs. Assn. v. NLRB, 386 U.S.

612, 619-25, 632, 644, 645, 646 (1967) __. 36, 37, 38

Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333,

340-41 sussterh atte Sauiit nate sdeense ted -. 43

Page

Raymond O. Lewis, et al., 144 NLRB 298 (August

i, anti ... * &

Raymond .O. Lewis, 4t al., 148 NLRB 249, 255,

|. Sprcacmiese Merete ai Oe 31, 32

Retail Clerks Union, Local 770 vy. NLRB, D.C. Cir.,

296 F.2d 368, 374 ( 1961) 38

Riverton Ceal Company and Davison Fuel and Dock

Company, Plaintiffs-Appellants v. United Mine

Workers of America, Defendant-A ppellee, Case

_ No. 71-1021, 6 Cir., 453 F.2d 1035 (January 21,

1972) | fhe ee 27,

28, 29, 30, 31, 35, 37. 38. 3), 40, 41,

42, 43, 44, 45, 46. 47, 48, 49, 50

Riverton Coal Company and Davidson Fuel and Dock

Company, Plaintiffs-Appellees y. United Mine

Workers of America, Defendant-A ppellant, Case

No. 71-1022, 6 Cir., 453 F.2d 1035 (January 21,

1972) 2, 3, 4, 5, 6, 26, 27. 28,

29, 30, 31, 35, 37, 38. 39, 40, 41,

42, 43, 44, 45, 46. 47, 48, 49, 50

T. S. Ragsdale Co., Inc., v. General Drivers, etc.,

Loca! No. 599, and Jnt. Bro. of Teamsters, DC.

D.S.C.,1972, F Supp. , 79 LRRM 2219.

2222, 2293 . 46

Teamsters, Local 710 v. NLRB, DC. Cir., 335 F.2d

709, 713-14 (1964) 37, 38

UMWA vy. Coronado Coai Co., 259 U.S. 344. 371, 387,

391, 394, 395. 66 1 Ed. 975, 981 6, 22, 25, 41.

42, 44. 45. 46

UMW v. Gibbs. 383 U.S. 715, 739. 743 21, 44

Page

UMW v. Osborne Mining Co., 6 Cir., 279 F.2d 716,

727-29 if | ite at _. 48, 49

United Construction Workers v. oe Baking Co.,

‘4 Cir., 223 F.2d 872, 877. 42

U.S. v. White, 322 U.S. 694 41

W. A. Boyle, et al., 179 NLRB No. 80, 72 LRRM 1426,

1428-29 (1969) _ ; 7 32

Walters v. Int. Assn. of Plumbers, 6 Cir., 323 F.2d

578 - 42

STATUTES

Labor Management Relations Act, 1947, as amended:

Section 2 (29 USCA 152) 4,5

Section 2(13) [29 USCA 152(13)] 4. 41

Section 8(b) [29 USCA 158(b)] 4,5

Section 8(b)(4) [29 USCA 158(b)(4)] 27, 34,

35, 36, 38

Section 8(b)(4)(i)(ii)(A) and (B) [29 USCA

158(b)(4)(i)(ii)(A) and (B) 3, 4, 6, 25, 34, :

Section 8(d) [29 USCA 158(d)] 4,29

Section 8(e) [29 USCA 158(e)] 3.4.5 . 13, 14, 31, 32,

34, 35, 36, 37, 38, 39

Section 301 (29 USCA 185) 4. 16, 29

Section 301(¢) [29 USCA 185(e)] 4, 6, 25, 41

Section 303 (29 USCA 187) 3, 4, 5, 27, 42, 45, 49

Section 303(a) [29 USCA 187(a)]

Section 303(b) [29 USCA 187(b)] 4,5, 47

vii

. Page

28 USCA 1254(1) | 2

28 USCA 2101(c) 2

RULE

' Federal Rules of Civil Procedure:

Rule 52(a) ee 3, 4, 26, 40

MISCELLANEOUS

73 Harvard Law Rev. 1086. 1119 a

Legislative History of the Labor Management Reia-

tions Act, 1947 (Government Printing Office, 1948): .

p. 1204 41, 42

Vol. II, p. 1627, °3 Congressional Record, A. 3233 42

62 Mich. L. Rev. 1176, 1187 ( May, 1964) 39

INDEX TO APPENDICES

- APPENDIX A:

Opinica of the United States District Court for

the Southern District of Ohio, Western Division,

filed October 8, 1970. la

Final- Judgment of the United States District

Court for the Southern District of Ohio, Western

Division, filed October 26. 1970 6la

viii

Page

APPENDIX B: :

Opinion of the United States Court of Appeals for

the Sixth Circuit, decided and filed January 21,

tet eee ON A ®t ; 64a

Judgment of the United States Court of Appeals

for the Sixth Circuit in Case No. 71-1021, filed

January 21,1972 - 78a

Judgment of the United States Court of Appeals

for the Sixth Circuit in Case No. 71-1022, filed

January 21, 1972 79a

APPENDIX C:

Labor Management Relations Act. 1947, as

amended:

29 USCA 152(13) [Section 2(13) of the Act] 81a

29 USCA 158(b) (4) [Section 8(b) (4) of the

Act! 8la

29 USCA 158(d) [Section 8(d) of the Act] 82a

29 USCA 158(e) [Section 8(e) of the Act] 84a

29 USCA 185(c) [Section 301(e) of the Act) 85a

29 USCA 187 [Section 303 of the Act] 85a

APPENDIX D:

73 Harvard Law Review 1086. 1119 87a

62 Michigan Law Review 1176, 1187 (May, 1964) 87a

In THE

Supreme Court of the United States

OcTOBER TERM, 1971

No.

UniTED Mine Workers OF AMERICA,

Petitioner,

RIVERTON CoAL Company and

DAVISON FUEL AND Dock Company

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

To the Honorable, The Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Petitioner United Mine Workers of America prays that

a Writ of Certiorari issue to review:

1. The Judgment and Opinion of the United States

Court of Appeals for the Sixth Circuit entered January

21, 1972 in Case No. 71-1021, stvled Riverton Coal Com-

pany and Davison Fuel and Dock Company, Plaintiffs-

Appellants v. United Mine Workers of America, Defend-

ant-Appellee; and

2. The Judsment and Opinion of said United States

Court of Appeals also entered January 21, 1972 in Case

No. 71-1022, styled Riverton Coal Company and Davison

Fuel and Dock Company, Plaintiffs-Appellees v. United

Mine Workers of America, Defendant-Appellant.'

The Sixth Circuit remanded the cases to the district

court for ent:y of judgment in plaintiffs’ favor for $159.-

312.50, with intcrest and costs. —

Petitioner has requested the Sixth Circuit to transmit

to this Co:rt a certified roeord in said cases. together with

p oceedings in said Sixth Circuit.

OPINIONS BELOW.

The district court’s Opinion appears in Appendix A

hereto (A. 1-69a), in the certified record and is » ported

in 79 LRRM 2348. The Sixth Circuit’s Opinion appears

in Appendix B hereto (A. 64-78a), in the certified record

and is reported in 453 F.2d 1035."

JURISDICTION

Judgments of the Sixth Circuit in both Cases Nos.

71-1021 and 71-1022 were entered on January 21, 1972.

This Petition for Certiorari is filed within 90 days of that

date. This Court's jurisdiction is invoked under 28 USCA

1254(1) and 2101(c).

QUESTIONS PRESENTED

1. Where, in an action brought by a coal producer

against a labor union. both signatories to collective bar-

‘Herein the United States Court of Appeals for the Sixth Circuit is

called “Sixth Circuit”; the United States District Court for the South-

ern District of Ohio, Western Division, “trial court” or “district

court”; Riverton Coal Company, “Riverton”: Davison Fuel and Dock

Company, “Davi:on”: collectively Riverton and Davison are called

“plaintiffs”; and United Mine Workers of America, “UMW” or “peti-

tionecr”’.

Unless otherwise indicated, all emphases are supplied.

*Though separate Judgments were entered in said cases by the Sixth

Circuit (A. 78-80a), the Sixth Circuit issued a single Opinion covering

both Cases Nos. 71-1021 and 71-1022.

;

gaining agreements in the bituminous coal industry, for

damages under Section 303 of the Labor Management

Relations Act, 1947, as Amended, charging a violation

of secondary activity thereunder and under the Act’s

section 8(b)(4)(i)(Gi)(A) and (B), and Section 8(e),

by unlawfully cocreing the signatory coal producer by

strike action into signing the agreements, and a district

court found and concluded that .clauses in said labor

agrcements were work preservation clauses and therefore

primary and permissive under the Act’s Section 8(e),

based upon undisputed facts relating to said industry’s

collective bargaining history and economic facts and the

labor organization’s historical cfforts through contractual!

restrictions to preserve work opportunities for its mem-

bers, did the Court of Appeals commit reversible errer

in holding that the clauses involved secondary activity

banned under Section (e) because some coal purchased

as supplemental coal from nonsignatory suppliers in-

volved some work never performed by the coal producer's

own employees, so that the challenced clauscs were

addressed to nonsignatory suppliers and not to the labor

relations of the contracting employer’s own employees?

2. Did the Court of Appeals commit reversible error

when, in reversing the district court’s findings and con-

clusions relating to the challenged clauscs, it failed to

find that such findings were clearly erroneous pursuant

to the command cf Rule 52(a), Federal Rules of Civil

Procedure?

3. Under applicable law and the substantial evidences

in the record, did the Court of Appeals commit reversible

error in“holding that UMW’ was responsible for the 1964

and 1266 work stopnaces?

Called “Act”.

4. Did the Sixth Circuit commit reversible. error in

holding that Davison is a proper party plaintiff to the -

instant actions under the Act’s Section 303(b)?

0. Was there substantial evidence, under applicable

law, to warrant the Court of Appeals’ holdings and judg-

ments that the defendant union had committed unfair

labor practices under the Act’s Sections 8(b)(4)(i),

(ii)(A) and (B), 8(e) and 393 and its award of damages

under the Act’s Section 303? °

STATUTORY PROVISIONS AND

FEDERAL RULE INVOLVED |

Statutory provisions involved are Sections 2, 213),

8(b), 8(b)(4)(i)(ii)(A) and (B), 8(d), 8(e), 301,

301(e) and 303(a) and (b) of the Labor Management

Relations Act, 1947, as Amended [29 USCA 152, 152(13),

158(b), 158(b)(4)(i) (iit) (AY and (B), 158(d), 158(e),

185, 185(e) and 187(a) and (b)] (called “Act” ); as well

as Rule 52(a), Federal Rules of Civil Procedure.

Relevant statutory provisions appear in Appendix C

hereto (A. 81-86a). ’

STATEMENT OF THE CASE

A. KIND OF ACTION AND THE JUDGMENTS OF THE DIS-

TRICT COURT AND THE SIXTH CIRCUIT.

Riverton and Davison sued UMW for damages under

the Act’s Section 303, charging UMW committed unfair

labor practices under the Act’s Section 8(b)(4) (i) (ii)

(A) and (B) and Section 8(e) by unlawfully coercing

Riverton by strike action into signing the National

Bitumineus Coal Wage Agrecment of 1950, As Arnended

Effective April 2, 1964 and April 1, .1966, respectively,

containing the “Application of Contract to Coal Lands”

clause and the 80-cent Welfare Fund clause [A. 1-2a

{32° |

UMW denied (1) liability, (2) damages, and (3) that

Davison fell within the scope of the Act’s Section 303(b)’s

term “Whoever” so as to be entitled to recover for any

alleged injury LA. 2a (32)]. The case was tried by the dis-

trict court without a jury.” In an October 26, 1970 Judg-

ment, the district court was of opinion, from Findings of

Fact and Conclusions of Law, that Riverton and Davison

“failed to establish their alleged causes of action” against

UMW under the cited statutes, ordered plaintiffs’ actions

dismissed with prejudice and taxed costs against plain-

tiffs in favor of UMW IA. 61-63a (89-90)].

‘The district court's judgment was based upon, inter

alia, its conclusions that the 80-cent and coal lands clauses

of thé 1964-1966 Contracts did not violate the Act’s

Section 8(e). Plaintiffs’ appeal was considered by the

Sixth Circuit in Case No. 71-1021.

UMW filed a notice of appeal and cross-appeal insofar

as the district court’s conclusions of law and findings of

fact provided that “if there be a reversal on liability”

and “If the 80-cent clause did violate 8(e)” and the ap-

pellate court so held, plaintiff should recover damages

from UMW, and insofar as the district court found and

concluded that Davison is an employer “within the mean-

ing of” 29 U.S.C. 152 and 187, and an affiliate of Riverton

and “‘as such is includible within the meaning of the word

‘whoever’ ” in Section 187 and entitled to assert damages

thereunder and Section (b) of 29 U.S.C. 158; and insofar

“The abbreviation “A. _ a” refers to the Appendix to the Petition

for Certiorari, while page references enclosed in parentheses refer to

the Joint Appendix or to the Supplemental Appendix, both filed in

the Sixth Circuit and in this Court’s Clerk’s office as a part of the

certified record herein.

*United States District Judge Timothy S. Hogan presided at the trial.

also as the district court-found and concluded that UMW

in 1964 induced’ and encouraged Riverton employees “to

engage in a strike and a refusal to perform services for

Riverton in the course of their cmployment and also

threatened, coerced and restrained Riverton, as those

words are used in 8(b)(4)(A) and (B)”, that “In con-

cluding that the 1964 strike was union-authorized, we

have applied Coronado, as modified by 29 U.S.C. $185(e)

[sce Garmeada, 122 F.Supp. 512 (£.D. Ky. 1954) at 517]

and have applied that subsection, l.e., 29 U.S.C. $185(e)”,

and that “plaintiff has shown by a preponderanee that

the defendant, through its District 17, authorized the 1964

strike” (J.A. 91-92),

UMW’s appeal was considered by the Sixth Circuit

in Case No. 71-1022. ?

On January 21, 1972, the Sixth Circuit, in each of said

Cases, reversed the district court’s judgment and re-

manded the case to the district court for entry of a judg-

ment in favor of plaintiffs for $150,312.50. ples interest

and costs (A. 78-80a).

B. FACTS AND THE DISTRICT COURT'S FINDINGS AND

CONCLUSIONS CONCERNING UMW’S RESTRICTIONS ON

SUBCONTRACTING.

1. The Litigants And Their Activities

The district court found, on undisputed evidence (A.

I-6a, 10a, 30a):

In 1956, Riverton, a bituminous coal producer [A.

2a (140)], became a wholly-owned subsidiary of Davison

and continued as such until July 1, 1969 LA. 2a (100)1.

_ Both had offices at Sunsct Avenue, North Bend, Ohio

[A. 2a (101-02)]. Riverton operated coal mines on leased

properties in Kanawha and Fayette Countics, West Vir-

ginia, and operated coal loading docks on the Kanawha

River at Crown Hill and Marmet, West Virginia, and at

all times material herein has been signatory to the Na-

tional Bituminous Coal Wage Agreements (A. 6-7a).

Lewis A. Davison, Jr. was Riverton’s President from

1959 or 1960 until 1969 (J.A. 183) and Davison’s Vice

President. Dan S. Davison was Davison’s President and

Riverton’s Vice President. While the Davison family

_ owns the majoriiy interest in Davison LA. 2a (108)], the

Stock is owned by various shareholders (J.A. 108).

In the 1963-64 period, and preceding. April, i964,

Riverton employed approximately 155 employees who

worked under the 1950 Agreement, as amended effective

October 1, 1958, in Riverton’s West:Vircinia coal mines

and docks and were represented by UMW (J.A. 105-06)‘

Davison’s primary business during 1955-68 was exclu-

sive-sales agent for Riverton’s coal, receiving a commis-

sion of from 6% to 8% of coal sales prices, and keeping

Riverton’s books [A. 3a (101, 108, 138-39)]; it owned

some coal land but produced no coal, participated in no

collective bargaining negotiations with UMW and ex-

ecuted no UMW contracts [A. 3a (142, 317, 139, 318)].

As of January 1, 1964, Davison had no UMW employzes

in West Virginia [A. 4a (106)]. Its ten employees at the

North Bend, Ohio plant were represented by District 50,

with: whom it had a collective bargaining agreement

(A. 4a (106)].

Riverton owncd no coal property but operated mining

properties and produced: coal at three mines in Kanawha

and Iayette Counties, West Virginia, on land leased by

Riverton from third parties. None of Riverton’s leased

“UMW members produced from 75% to 82% of total production in

the bituminous coal industry since the early 1940’s [A. 4a (334) ].

properties were owned by Davison [A. 3a (144, 103-04,

140, 142, 104)].’

At all times Riverton had sufficient coal reserves on

property it leased to satisfy all orders and calls from

customers—this was true quantity-wise and also grade

or quality-wise. It did not increase its production to fill

its orders and calls because Piverton “could not finan-

cially put in any more coal mines” (A. 4a (146, 203-04 )).

Riverton’s projected costs would have exceeded what it

cosi to acquire added coal through contracts with small

operators, some union and some not, and some operating

under subleases on land controlled by Riverton. But for

the finaxycial limitations, Riverton’s coal reserves were

sufficient to produce all coal necessary to fill all of River-

ton’s and/or Davison’s requirements to supply all its

customers or contractees LA. 4-5a (318-19, 919)].

Riverton did not mine ali the coal it needed or that

Davison needed to fulfill its contracts and it was cus-

tomary “to buy supplemental coal” from various pro-

ducers, some operating on Riverton’s lands LA. 5a (107)].

Riverton had first refusal on coa! produced by them

(A. 5a (107)]. Riverton also bought coal from other pro-

ducers operating on lands other than Riverton’s (A. 5a

(319)]. All coal so purchased, of varying qualitics and

grades, except for lump coal, was. commingled [A. 5a

(107-08)]. Most purchased coal wes produced by com-

panies not signatory to the UMW contract. There is no

evidence that “supplementa!” coal purchased was pur-

chased because Riverton-produced coal did not meet the

type or quality demands of "ts custumers. The only sup-

plementing was in quantity. Prior to January, 1964,

"While undisputed evidence shows that Davison owned rene of

Riverton’s !eased properties, the district court found “Some of River-

ton’s leased properties were owned by Davison” [A. 3a (33) }.

Davison purchased coai from its wholly-owned Ficlds

Creek Mining Co., which ceased production when its

No. 3 mine worked out [A. 5a (307)).

The district court found that Riverton, during 1959-61,

bought substantial amounts of coal from 32 operators

(some union and some non-union ) whose workers worked

under less favorable conditions than did Riverton’s em-

ployees who worked under UMW contracts [A, 36a (60)):

that Riverton “was doing substantial leasing (or sub-

contracting ..) and that the Ieasing bore some relation-

ship with sub-union-standard wages and working condi-

tions” (A. 3la); and that in 1962 and 1963, of over 2,170,-

600 tons of ceai sold by Davison, 44! 2°. er $67,354 tons,

had been acquired by Davison and Riverton from third —

persons not ewncd or controlled by them or any affiliate;

that during the nine calendar months before April, 1964,

78°o of coal purchased by Riverton came from non-

signatory mines and 22° came from signatory mines

[A. 10a (40)].

Further, found the district court, “when the 89 cent

constraint caused Riverton to cease buying from noen-

union opcrators, Riverton increased its own overall pro-

duction so that the total tonnage handled by Riverton

“in 1964 and 1965 compared favorably (a little less)

with what was handled in 1963 and 1962” and. furter,

“This record does net explain why financial ability to

expand production (1964 65) was missing in 1962-63”

(A. 12-13a).

2. The History of Collective Bargaining in, and Relevant

Economic Facts of, the Bituminous Coal Industry.

The district court found, on undisputed evidence, and

premised upon National Bituminous Coal Wage Agrece-

ments, that collective bargaining in the bituminous coal

industry has long followed a multiemployer pattern and

that UMW agreements hays been on-a uniform, industry-

wide basis LA. 5-6a (946-53, 957-83, 1079-76, 359)1. This

Was true as to the 1964 and 1966 Agreements, with the

exception of captive mines which use their own coal and

do noi purchase other coal {A. Ga (369-62)]. Similarly,

the district court found. on undisputed evidence (A. 7-

9a), thai releyant cconemic fects of tho bituminous coal

industry showed the industry's capacity in 19583 was 625

million tons, the idl-« capacity was 215 miilion tons. while

toe percentaces of capacity utili cd was 65.7°;- that 1863's

capacity was 627 million tons, carried an jdl- capacity

of 168 million tons. so that the percentage of capacity

utilized was 73.2% LA. 8-9a (450-515): and that coal pro-

ducers were able to “produc. far more coal than the

country could com cme. up until the last six months”.

Wicd was truc fo~ ye drs prior to 1458 and 1964 1A. 8

(30-49, 459-51, 2455). -

Similarly, the district cour found, on undisputed

evicence, that prior to the 1953 ..fecmoent legiimate

commercial practices gave rise ty abuse, irising from

the fact that coal produced in mines with substandard

labor conditicas could usually*be pirchas < at prices

bolow production costs in unionized mines. This -csult: d

fom lower waee- paid in substandord mines and absones

of contributian: to any weilare fund. lax observane- of

cafe ty requirement: and sencrally lowered Stendarcs of

wo ling conditiens and fringe benefts p+ vailing in these

mines. Before Decem’.er 1, 1298, some >rodne: S, Signa-

tories to UMW’s National Agreement, reazlerly pur-

chased coal from substandard mines sclely because of the

cost differential, cven though in many instances the

purchesing producer had ample production capacity

evcilable to satisfy c:.stomers’ requirements. and there

were employees on lay-off status who were deprived of

employment opportunities which would haye been avail-

able had their employer elected to produce all the coal

to be delivered to this customer rather than to purchase

some from a substandard Supplier LA. 9-10a (319-20 )].

Wages paid in signatories’ mines are materially greater

than those paid by operators in non-signatory operations

[A. 10a (986-92 )].

3. UMW’s Historical Efforts to Preserve Work Opportuni-

ties for Its Members Through Contractual Restrictions.

The district court found, on undisputed evidence, that

historically and prior to the 1958 Agreement UMW

sought to preserve work opportunities for its employee

members by negotiating contractual restrictions upon the

“contracting out” of work; the National War Labor

Board directed that each UMW agreement provide that

“Operators agree that they will not let any operating

mines subject to this Agreement as a subterf uge” to avoid

the agreement’s provisions; an identical clause was con-

tained in UMW’s 1945 Agreement: the 1952 amendment

to UMW’s 1950 Agreement provided that “Operators

signatory hereto agree that this Agreement covers the

operation of all the coal lands owned or held under lease

by them, or any of them. or by any subsidiary or affiliate

at the date of this Agreement or acquired during its term

which may hereafter . . be put into production,” as well

as the “subterfuge” provision: the 1952 Agreement’s pro-

visions were carried forward in the 1958 Agreement; and

the 1964 and 1966 Agreements were expanded and pro-

vided (A. 11-12a):

“As part of the consideration for this agree-

ment, the Operators sisnatory hereto agree that

this agreemcnt covers the operation of all of the

coal lands, coal producing and coal preparation

facilities owned or held under Jease by them, or

any of them, or by any subsidiary or affiliate at

the date of this agreement, or acquired during its

term which may hereafter (during the term of

this agreement) be put into production or use”

and, further,

“The Operators agree that they will not lease,

license or contract out any coal lands, coal pro-

ducing or coal preparation facilities for the pur-

pose of avoiding the application of this agreement

or any section, paragraph or clause thereof.”

The district court found, too, that on December 3, 1958,

UMW and Bituminous Coal Operators Association

(BCOA) executed the 1958 Agreement which was subse-

quently signed by Southern Coal-Producers Association

and other producers, including Riverton, under which

some 80° of total production was produced in the bitu-

minous coal industry {A. 13a (43)]. The 1958 Agreement

contained the Protective Wage Clause (PWC) which

provided [A. 13a (957-59, 960)] that:

“. . the Operators agree that all bituminous coal

mined, produced, or prepared by them, or any of

them, or procured or acquired by them, or any

of them under a subcontract arrangement, shall

be or shall have been mined or produced under

terms and conditions which are favorable to the

employees as those provided for in this Contract.”

A further provision of the clause provided iA. 13a

(960)1:

“". any operator signatory hereto who is a party

to any agreement inconsistent with the obligations

assumed hereunder shall not maintain such in-

consistent agreement in effect beyond the first date

at which such agreement may be terminated by

shim in accordance with its terms.”

~ *A. lla (451, 940-42; 452, 943-44; 453, 944-46; 453-54, 946-47; 454-55,

947-53: 608, 612, 469-71, 1070-76).

On August 27, 1963, the National Labor Relations

Board’s Chairman and two members found the 1958

Agreement’s PWC banned by the Act’s Section 8(e)

[Raymond O. Lewis, et al., 144 NLRB 228 (August 27,

1963)!. On December 12, the Board,‘on reconsideration

en banc, officially recorded its ‘inability to arrive at a

majority decision [A. 18-19a (48-49)].”

Then, because of NLRB’s holding that PWC violated

the law, yet ever mindful of the need to protect the work

opportunities of UMW members: by contractual provi-—

sions, UMW suggested to coal operators that UMW ought

to have a contractual clause providing for $1.00 payments

into the Welfare Fund; the operators rejected this sug-

gestion and finally agreed on 80-cents a ton (A. 19a).

Contract signatories signed for “all of the production and

acquired production” (J.A. 331).

4. The District Court Found and Concluded that PWC, the

80-cent Clause and the Coal Lands Clause of the 1964

and 1966 Agreements Sought to Protect the Jobs and

Work of Signatory Employees and to Maintain the Wel-

fare Fund’s Integrity, and Were Permissive Under the

Act’s Section 8(e).

Premised upon undisputed evidence, the district court

found ‘the 1964 Agreement’s 80-cent clause’) was the

“Subsequent proceedings before NLRB and the United States Court

of Appeals for the District of Columbia are discussed, post. pp. 31-34.

'J.A. 324-36, 343-46.

''The 80-cent clause in the 1964 and 1966 Agreements provides that

(J.A. 606-07):

“During the life of this agreement there shall be paid into such

Fund by each Operator signatory hereto the sum of forty cents (40¢)

per ton of two thousand (2.000) pounds on each ton of bituminous

coal produced by such Operator for use or for sale. On all bituminous

coal procured or acquired by any signatory Operator for use or for

sale, (i.e., all bituminous coal other than that produced by such

signatory Operator) there shall, during the life of this Agreement, be

paid into such Fund by each Operator signatory hereto or by any

subsidiary or affiliate of such Operator signatory hercto the sum of

eighty cents (80¢) per ton of two thousand (2,000) pounds on each

ton of such bituminous coal-so procured or acquired on which the

aforesaid sum of forty cents (40¢) per ton had not been paid into

said Fund prior to such procurement or acquisition.”

“direct and inseparable result of an effort by the Union

to devise a ‘legal’ substitute and ‘collectively bargain’

it through”, and “The result was the inclusion of the

80-cent clause and ‘application to coal lands’ clause in

the contract” [A. 16a (46)]; that the challenged clauses

“were bargained for by UMW in a sincere effort to stop

the employers’ practice—which was prevalent—of avoid-

ing the burdens (to the employer ) of a union contract by

the legalistic subterfuge of ‘leasing’ or ‘dummying’” [A.

12a (42)] because the contractual provisions up to 1964

“did not do much good” [A. 12a (42)]; that prior to and

when PWC was negotiated in 1958, and “to and at the

times the 80-eent clause was negotiated (at the multi-

employer levels) in 1964 and 1966 ‘subcontracting’ . .

was a real and not fancied problem”: that “The primary

target of the union—intent—in bargaining. out PWC was

unquestionably subcontracting”; that “The clause was

directed at (1) job security, (2) welfare fund integrity;

that whatever the unit, that was the real primary intent”;

and “the primary purposes of the somewhat enforced

substitute (80¢ clause) were the same as the original

(PWC), i.e., to protect the jobs and work of signatory

employees and maintain the integrity of the Welfare

Fund” [A. 19-20a (49)]; and that UMW’s purpose and

intent in negotiating the clause “was primary and not

secondary” [A. 12a (42)].

The district court held “neither PWC nor the 80-cent

clause ran afoul of 8(e)”: that their purpose clearly was

“to tackle in a successful way a legitimate problem of

subcontracting and work preservation which had existed

for decades and had been attacked for decades in un-

srecessful contractual methods”: that a secondary effect

of cach clause “was the protection of the Welfare Fund--

clearly a lesitimate primary (in a labor sense) target”;

that though a “secondary cffect’” was unionization of

some non-union employers, it was “foreseeable and in

that sense was a purpose at the time the clauses were

negotiated”; and that the secondary purpose was an inci-

. dent to the primary purpose, which was work preserva-

tion, and “obvious on the record that the unionization

effect was a matter of choice, even to neutral employers”,

not a matter of compulsion [A. 55a (83-84)]. Specifically,

with reference to Riverton, the district court concluded,

“On this record, one could only conclude that, the 80-cent

clause did exactly what it was designed to do—it resulted

in the employer producing more with his own employees

than he ever had before by substantial percentages” [A.

99a (84)], noting “This record does not explain why

financial ability to expand production (1964-65) was

missing in 1962-63” [A. 13a (42-43)]. It agreed, too, there

was nothing secondary about the coal lands clause [A.

44a (73)].

5. The District Court’s Conclusions Concerning the Valid-

ity of the Challenged Clauses.

Regarding the crucial inquiry to be “whether the 80-

cent and ccal lands clauses of the 1964-66 contracts vio-

late” the Act’s Section 8(e), the district cocrt held

“neither PWC nor the 80-cent clause ran afoul ef 8(c)”:

that the purpose clearly was “to tackle in a successful

way a lovitimate problem of subcontracting and work

preservation which has existed for decades and had

been attacked for decades in unsuccessful contractual

methods”; that a secondary effect of each clause “was the

protection of the Welfare Fund—clearly a legitimate

primary (in a labor sense) target”; that though a “sec-

ondary effect” was unionization of some non-union em-

ployers, it was “foreseeable and in that sonse was a

purpose at the time the clauses were negotiated”; that

the secondary purpose was an incident to the primary

_ Purpose, which was work preservation, and “obvious on

the record that the unionization effect was a matter of

choice, even to neutral employers”, not a matter of com-

pulsion; and that the 80-cent clause “resulted in the

employer producing more with his own employees than

he ever had before by substantial percentages”; and there

was nothing secondary akovt the coal lands clause [A.

42a, 55a, 44a (72, 83, 84, 73)1.

C. FACTS AND THE DISTRICT COURT’S FINDINGS AND

CONCLUSIONS CONCERNING THE i964 AND 1966 WORK

STOPPAGES.

I. The 1964 Work Stoppage.

The 1958 Agreement was subject to termination after

November, 1959 by a 60-day written notice [A. 14a, 20a

(957-67 )]. Though UMW gave no termination notice to

Riverton, undisputed evidence is that if a signatory oper-

ator refused to sign the new 1964 Agreement, a 60-day’

notice was given [A. 20a (50, 363)]. As the district court

found, Bituminous Coal Operators ASsociation and

Southern Coal Producers Association waived the notice

LA. 20a (50, 341-42)], but Riverton did not.’

The district court found that in the fall of 1963 UMW,

through District 17, called Riverton’s attention it was

doing business with non-union operators, operating under

leases from Riverton on lands controlled by it and the

purpose was to secure Riverton’s “help” in organizing

these operators in exchange for a UMW “eonsent” to a

business enterprise Riverton was interested in LA. 20-21a

(50)1.

Though the district court declared Riverton’s union employees

“in fact and law” had a binding contract extending to April 15, 1964,

the district court declared the instant action was not one for breach of

contract under the Act’s Section 301 [A. 20a, 57-58a (50, 86)}.

Uncontradicted evidence is that the strike was not

called or ratified by UMW or District 17 or by any officer

or representative thereof (J.A. 439).

As the district court found [A. 4a (616-40)], Riverton

employees were members of UMW Local 1209, chartered

by UMW under Article VI of its Constitution.

Despite a denial by District 17’s field representative

Emery McCoy, Riverton’s president testified that about

April 2, 1964 the representative warned him “there

probably will be trouble” when Riverton employces

learned Riverton had not signed the new agreement [A.

21a (50).

Prior to the strike, Riverton employees had contacted

District 17’s field representative on April 3 and April 9,

1964 to inquire if Riverton had signed the 1964 amend-

ment which BCOA signed on April 2 and was also signed

on KCOA’s behalf.

McCoy advised the men Riverton, which had not au-

thorized BCOA to execute the agreement for it, had not

signed. On both occasions, McCoy was: apprised by

Riverton: employees they intended to strike, and espe-

cially so on April 9, when the men were aware numerous

other operators in the area had signed the agreement.

On both occasions, McCoy insisted the men keep working,

saying he was confident Riverton would sign. The strike

occurred on April 10, notwithstanding McCoy’s instruc-

tions (J.A. 367-76).

It is undisputed that on April 11 (a Saturday) McCoy

was notified by District 17 President Humphreys the

Riverton mine was down and was instructed by Hum-

phreys, to do what he could to get the mine in operation.

McCoy attempted unsuccessfully to arrange a meeting

of the men, and insisted to those he could locate they

return to’'work. They told him, as they had told River-

ton’s President on the evening the strike started, they

would return only upon being advised Riverton had

signed the agreement (J.A. 367-76 ).

On April 13, Riverton officials met with District 17

President Humphreys, who stated in his opinion the

Riverton mine would return to work if the agreement

was signed (J.A. 187, 350). Riverton thereupon wired

UMW’s President advising UMW of its willingness to

sign the 1964 Agreement if UMW ‘would eliminate the

sections thereof amending provisions dealing with con-

_ tributions to the UMW Welfare and Retirement Fund

(the “80-cent” clause) and the “Application of Contract

to Coal Lands” clause, both of which Riverton asserted to

be illegal (J.A. 807-09). UMW’s then Vice President,

R. O. Lewis, denicd the union’s involvement in the strike,

which he termed “a voluntary protest” of employees

against Riverton’s failure to execute the then current

agreement. Lewis also denied the provisions in question

were illegal and expressed the hope Riverton would sign

the agreement whicl! had then been signed by the major-

ity of coal companies in the country (J.A. 810). On April

15, Riverton advised UMW it would sign the agreement

and asked that Representative McCoy be sent to its office

for that purpose. McCoy went to Riverton’s office, where

he was presented with the agreement form, as executed

by Riverton. Riverton advised McCoy the agreement was

signed under protest. The mine thereupon returned to

work (J.A. 188, 376-77).

Arby McCoy (not related to Emery McCoy), Local

Union 1209’s Financial Secretary and Mine Committee

Chairman elected by members working at the mines

(J.A. 423-24), whose testimony is unrefuted, testified he

learned of Riverton’s failure to sign the 1964 Contract

from District 17 when he was told-that Riverton hadn’t

signed the contract yet “but they are going to” and the

District advised that the men continue to work, which

he reported at a local union meeting on April 4, 1964, and

was instructed there to ascertain whether Riverton in-

tended to sign the contract (J.A. 425-26). Arby McCoy’s

further unrefuted testimony is that he was pressed by

the working miners for an answer to the inquiry, “when

are we going to strike? Let’s strike, we are going to come

out, we don’t have a contract yet” (J.A. 426); on Friday,

April 10, Arby McCoy and the local’s President Perry

visited Lewis Davison, Riverton’s President (denied by .

Davison, J.A. 475-76). where they were told that River-

ton was not going to sign the new agreement because of

the “land clause in there, which is the 80 cents” (JA,

426), to which Arby McCoy replied he had never worked

without a contract and did not intend to work without

one (J.A. 426).

Henry Oakes, Chairman of the Mine Committee of

Transport, Inc., which hauled coal for Riverton and was

under contract with UMW at the time, corroborates Arby

McCoy’s testimony that upon being advised of Davison’s

intention not to sign the contract, he declared he would

not “scab cither” and that the trucks quit hauling coal

about nine o’clock on Friday,.April 10 (J.A. 426-27, 437-

38). As Oakes related, “no contract, no work”, that “we

had already worked a few days there, the men was pretty

hot”, and “if you have ever been around coal miners ,

when they get hot, sometimes they get furious” (J.A.

438).

Despite corroborative evidence, the district court found

the April, 1964 strike was to force or require Riverton to

enter into the proposed agreement, and force or require

it and Davison to cease dealing in production of coal

producers not signatory to UMW’s agreement and to

cease doing business with them. But, the district court

declared that “Another effect of the said strike was to

encourage coal producers selling coal to Riverton or

Davison to recognize or bargain with the defendant Union

as the representative of the employees of such produc-

ers”, even though UMW had not been ccrtified as such

LA. 25a (55)).

Following Riverton’s execution of the 1964 Agreement

on April 15, 1964, Riverton bought no more coal from

non-sitnatory suppliers (A. 26a) and its prosident in-

formed all suppliers that it had so signed and that be-

cause thereof “they would have to become signatory to

the contract and furnish me wit a letter saying they

were a signator before I could buy any more coal from

them” (J.A. 194).

The district court found (A. 25a) after Riverton signed

the 1964 Agreement, and as a result thereof, some 15

non-union producers from which Riverton bought sup-

plemental coal became signatories to UMW’s contract

but 22 did not: hence, the district court found “the effect

was not to ‘force’ or ‘compel’ but to encourage” and “Such

‘encouragement’ was not a primary object of the strike- -

it was a recognized incident” and “The design or purpose

or object remained—job protection” \|A- 25a (55)).

In holding UMW responsible for the 1964 stoppage, thy

district court rejected unrefuted testimony and found

UMW and its District 17 agents had knowledge on and

before April 10 that UMW members employcd by River-

ton believed their collective bargaining agreement wa:

about to terminate and that members might not work

without a contract “i.e., the officials know that the men

working in the mines, on learning of the end of the

BCOA-UMW negotiations in March, 1964, and the con-

tract formalization in early April, concluded that ended

all existing contracts and made ‘scabs’ of them if they

worked for any opérator who had not ... signed the

newly negotiated contract”: that “These « gents also knew

that the Riverton contract had not been terminated, that

no termination notice had been given by either party, .

and that the contract would remain in ful! force and effect

for at least sixty days after sich a notice was given” and

that “With full knowledge of the men’s belief they took

no stens to advise the members that the ontract had not

been terminated and wovld continue +. remain in fel!

foree and effect” [A. 23a (53)1.

The district court further. found field representative

McCoy was authorized by UMW and it. Dictrict 17 to

handle the Riverton matter and “the Uaion’s ‘men’ in

charge on the spot, threatened ‘trouble’ if Riverton did

not sign the new printed form of agreenme nt”: that “When

Riverton employees in effect asked” th: representative

“if Riverton and UMW still had a contract he ‘told them

that they didn’t have one’ ”: and that for nany years, as

the representative knew, UMW “has had a tradition ‘no

contract, no work’ ” LA. 23-24a (53)).

As an ultimate finding of fact. the district court de-

_ clared “the action of the District represe»tatives. in its

context, was equivalent of a ‘siqnal’ to ‘<+rike’ and was

so intended” by them and the men and ‘hat the “Union

instrected its members to strike. not by ¢ rect viva voce

but in ‘xnion lingo’—as well understood }» all concerned

..” TA, 24a (54)1.

While avowing, under UMW v. Gibbs 383 US. 729.

and “that part of Coronado, 259 U.S. 344 (1921)” and

“268 U.S. 295 (1925), which survived subsequent statu-

tory enactments” the district court could not hold UMW

responsible under any theory of passivity (failure of

defendant's agents to end the strike), or to take dis-

ciplinary measures against “Union focal officer or mem-

ber for participation in an ‘unauthorized’ strike”, none-

theless the district court, finding “Something affirmative

is required before a conclusion of ‘union authorization’

is justified”, found such requirement in the 1958 Agree-

ment's “integrity” provision and not “the quasi-affirma-

tive expression of District 17 on April 10, 1964, that there

was no contract between Riverton and the Riverton

workers” declaring, “There was” [A. 24-25a (54-55 )1.

2. The 1966 Work Stoppace. -

The 1964 Agreement continued effective until March

3i, 1966, and was terminable thereafter by a 60-day

notice. UMW gave Riverton no termination notice. A

strike beginning on April 12. 1966 asain she Riverton

down. It ended about April 27, 1966. when Riverton

agreed to sien the 1966 Arreemont, which it exe t-d on

May 3 of that year, after informinz UMW th~ [-cent

clase was unlawful aad Riveston was sienin< “under

protest” [A. 26a (605-09 )}. .

The stoppege’s immediate cause was a pi-’--t line at

Riverton and elsewhere by dissident membors ef UMW

Local Union 8843 1A. 27a (407, 414-16)]. The indirect

cause of the unrest which affected not_oniy Riverton wt

other area mines as well, was dissatisfaction with a con-

This provicion provided that UMW and the Signatory operator:

“agree ond atirm that th-y will maintain the integrity of thi< contract”

ond ¢ ms met setiled by agreement. ral! bx

‘ : , of Local and District D+ putes”

section. unless nations! in character. in which event the port. « shall

settle such di<putes by free collective bargaining as ber: toior- pra-

ticed in the industry.

tract which they had understood had ‘been negotiated in

the industry on er about April 1, 1966, and which it was

believed was to become the basis for other UMW con-

tracts [A. 27a (439, 441). At the time of the stoppage,

UMW was in negotiations with DCOA for a new agree-

ment. In fact, neither the stoppage nor wage negotiations

_ then underway or which thereafter occurred in 1966 was

concerned with the 80-cent clause or the-Land Lease .

clause; they were concerned with other economic factors

{A. 27-28a (441, 993-95 )].

UMW did not, nor did District 17 or any of its agents,

authorize or ratify the work stoppages at Riverton or

elsewhere, nor did either party authorize or ratify the

picket lines of Local Union 8843. As of April-11, 1966,

several area mines were involved in the stoppaz>.

UMW’s International Officers directed District 17, by

telegram, to instruct the men to return to work pending

outcome of negotiations (A. 28a). District 17 had its

representative, Emery McCoy, thus advise the groups of

men involved. McCoy read the International Officers’

tclegram to the men and repeatedly called upon them to

return to work (J.A. 383). He also called upon the offi-

cers of Local Union 8843 (J.A. 413). The men refused to

return in spite of his efforts (J_A. 384, 410-11). While this

Situation prevailed, UMW succeeded in reaching an

agreement with BCO.A. Most area mines, including

Riverton, made known their intention to sign the agreo-

ment and thereupon the Riverton men resumed work. As .

in 1964, Riverton signed the wage agreement individ-

ually, and although the so-called “80-cent” provision hed

not been an item of dispute in 1966 negotiations, Riverton °

again noted in a letter to District 17 that execution of the

amendment on its part was under protest because of the

provision (J.A. 811).

The 1966 Agreement carried forward and preserved

the terms and conditions of the 1950 and 1952 Agree-

ments as amended or supplemented thereby including,

as the district court found, “the 40-80 cent welfare

clauses” and the “Application of Contract to Coal Lands”

clause. As the district court found further “At the multi-

employer-Union level the 1966 negotiations were not

concerned with the 80-cent clause”, which caused the

sporadic and wildcat strikes in general in April of 1966

(A. 26-27a).

As the Bureau of Labor Statistics, United States De-

partment of Labor, reports in its Bulletin No. 1558 deal-

ing with wage chronology in the bituminous coal mines.

1933-68 recites LA. 28-29a (993-95 )):

“On April 11, 1966, in the absence of agreement

on the union's proposals, about half of the indus-

trys mines were closed by a walkout, and re-

mained closed until an agreement reached on April

24 was ratified by the workers and signed by the

parties on April 27. The parties to the earlier

settlement at mines in the midwest rescinded that

agreement on Apri! 27 and on the same date signed

an agreement identical to that negotiated by the

Bituminous Coal Operators’ Association.”

Riverton did not, after execution of the 1966 amend-

ment, purchase coal produced by operators who had not

signed the current UMW agreement (A. 29a).

3. The District Court’s Conclusions Concerning the 1964

and 1966 Work Stoppages.

The district court concluded none of the “proximate

results and foreseeable effects . . nor the collection of

them, constituted the primary purpose for exacting the

80-cent clause bargain” which: was to “prevent ‘subcon-

tracting, preserve Riverton’s employees’ work, maintain

union standards in the production of coal which could

just as well have been produced by Riverton and proicct

the integrity of the Welfare Fund” [A. 56a (85)],

although it also concluded UMW “induced and encour-

aged individuals employed by” Riverton “to engage ina

strike and a refusal to perform services for Riverton in

the course of their employment and also threatened,

coerced and restrained Riverton, as those words are used

in 8(b)(4)(A) and (B)” [A. 55-56a (84)]: that “An

object, and by far the primary object, of such conduict

was to force and require Riverton to enter into the 1964

Agreement containing the 80-cent clause” LA. 56a (84)}..

which proximately resulted in forcing Riverton to cease

dealing in products of other coal producers, not union-

ized, and of forcing “some then non-union producers to

unionize”, thus bargaining as the representative of em-

ployees UMW did not represent as a matter of certifica-

tion [A. 56a (84-85)1.

In concluding the 1964 strike was union-authorized.

the district court “applied Coronado as modified by 29

U.S.C. §185(e)”; and in applying that section, the district

court, declaring it had “not held the plaintiff to proof of

specific authority”, nonetheless declared “the authoriza-

tion of the Field Rep. McCoy to represent the District

on the spot included an authorization to call a strike,

"which he did as effectively as if he had used that language

when he gave the signal, ‘I told them that they did not

have one’—meaning a contract” [A. 56-57a (85)1. and

that plaintiffs had shown by a preponderance of evidence

that UMW, “through its District 17. authori-cd the 1964

strike” [A. 57a (85)).

With respect to the 1966 strike, the district court con-

cluded “there is no evidence . . based on which this Court

could say” plaintiffs maintained the burden of proving

by a preponderance thet “District 17, or the defendant,

either authorized or ratified the 1966 strike at Riverton”

and that “There is certainly no connection whatever

between the 8)-cent clause in either the 1964 -or

1966 contract and the 1966 strike” [A. 57a (86)].

D. THE SIXTH CIRCUIT’S OPINION AND JUDGMENTS.

1. As to the Challenged Clauses.

In total disregard of the district court’s findings and

conclusions concerning the challenged clauses and the

limitation imposed upon the Sixth Circuit by Rule 52(a),

Federal Riles of Civil Procedure, the Sixth Circuit held

“The eighiy cent penalty clause was not directed at job

security, because Riverton could comply therewith by

closing its mines, discharging all of its employees, and

filling its entire requirements with coal from other signa-

tory mines” and “Furthermore, Riverton could purchase

coal from a ‘signatory mine supplicr whose employees

were operating under substandard wages and working

conditions” and, further, “The trouble is that the clauses

in question here were not ‘addressed to the labor relations

of the contracting employer {Riverton] vis-a-vis his own

employees’, but on the contrary, to the boycotted cm-

ployers (nonsignatory suppliers)” (A. 71a).

Rejecting the district court’s and UMW’s reliance on

NLRP’s Int. Union, UMW, et al., 188 NLRB No. i121,

76 LRRM 1394, 1396 (1971), the Sixth Circuit pointed

out “the Board has not been consistent in its rulings on

“Rule 52(a), F.R.C.P. provides, in part:

“In all actions tried upon the facts without a jury or with an ad-

vicory jury, the court shall find the facts snecially and stato sepa-

fately its conclusions of law thereon, and judgment shall be entered :

pursuant to Rule 58 . . Findings of fact shall nbt be set aside unless

clearly erroneous, and due regard shall be given to the opportunity

of the trial court to judge of the credibility of the witnesses.”

either the eighty-cent or the PWC clause”: that NLRB

“first held that PWC was illegal” and “The following

year .. it held the eighty-cent clause illegal”; and, though

noting the remand of the District of Columbia Circuit

as to PWC and the 80-cent clause. as well as NLRB’s

subseavent imprimatur of both PWC and the 80-cent

clause, the Sixth Circuit held “In our view, the Board

decisions holding the two clauses to be illegal, appear to

be better reasoned decisions”, observing that “Seven

Board mem ers have held the dati lov clause invalid”

and that “Only three Board members and no frial ex-

aminer have held otherwise” (A. 73a).

Further, the Sixth Circuit opined, “We do not regard

the decisions of the Board as controlling on us in damage

actions under Section 303” (A. 74a).

In Riverton, declared the Sixth Cireuit. “the supple-

mental coal which Riverton and Davidson were purchas-

ing from signatory and nonsignatery suppliers involved

work which was never performed by their own em-

ployees” and that “Riverton was operating at all times

at full capacity, but because of lack of working capital |

and of mining equipment, it could not run additional

mines, and it wes necessary for Riverton to purchase

coal to fill its orders” (A. 71a). :

2. As to the Work Stoppages.

a. The 1964 stoppage and its purpose.

The Sixth Circuit emphasized that “If any object of

the strike is forbidden by Section 8(b)(4), it is a sec-

ondary boycott” and “it is not necessary to jind that it

was the sole object”; and, pointing to the district court's

finding that “an object” of the 1864 strike was to force

Riverton to sign the aereement containing the 80-cent

28 ©

clause while another object was to compel Riverton and -

Davison to cease doing business with, and to cease using

the products of other coal producers who were non-

signatories (A. 70a), the Sixth Circuit declared “The

forsecable purpos> of the eighty cont clause was ‘the

unionization of some non-union employers’” (A. 70a).

Sisnificantly, however, in quoting the district court’s

findings of “another object”, detailed herein (ante,

pp. 19-22), the Sixth Circuit failed: to include the

. district court's further finding that “Some twenty-two

did not—-so the effect was not to ‘force’ or ‘compel’ but to

encourage” and “Such ‘encouragement’ was not a pri-

mary object of the strike--it was a 2 cotnized incident”

and, ferther, “The design or purpose or object remained

—job protection” (A. 25a),

Disagreeing with UMW that the district court's finding

that UMW authorized or ratified the 1964 strike is not

supported by substantial evidences snd is clearly evrone-

ous, the Sixth Circuit declared (A. 72-73):

“The District Court detailed the evidence to

support its iindings, which included the conduct

of Ficld Representative Emery McCoy and oiher

UMW azonts who, although they knew that the

1850 contract was still in full force and effect, led

Riverton employees to believe that they did not

have a contract. As these agents well knew, UMW

members had a tradition of ‘no contract. nu worl,

To tell them that they had no contract was the

‘signal’ for ther to strike. The strike was setticd

only when Riverton signed under. protest the new

agreement containing the eighty cent penalty

clause. Thus UMW also ratified the strike. The

testimony to the contrary of UMW agents was not

credited by the, District Court. The testimony of

the McCoy’s was characterized by the Court as

‘less than candid.’ ”

The Sixth Circuit also held the 1964 strike violated

the 1958 Contract which the district court he!d contained

a ‘no strike’ clause (A. 72a); but the Sixth Cirenit ignored

the district court’s further finding that “Since . . this

Court attaches no significance to any union inaction”’;

and “this is not a 201 case this finding No. 45 had no

effect on the decision of this Court” (A. 30a).

b. The 1966 stoppage

Rejecting UMW’s argument that subcontracting is a

bargainable issue, as held in Fibreboard Paxer Prods.

Corp. v. NLRB, 379 US. 203 (1964), the Sixth Cirevit

held “This case is inapposite for it involved the contract.

ing .ovt of maintenance work previously performed by

the company’s employces and such contracting out would

have adversely affected them by reason of discharges’

and laycffs” (A. 71a), whereas the Sixth Circuit further

held the 1966 strike also i'lesal. “violaicd the provisions

of the 1°64 ‘no strike’ contract” and the Act’s Section

8(d) CA. 74al.

Noting Riverton could terminate th> 1966 strike only

by signing the 1966 amendment, which it did under

protest and which, a: the Sixth Circuit stated. “contained

the illegal eighty-ecnt penalty clause”, the Sixth Circuit

declared UMW dic not':inz to perssade its members to

return to work other than to send a telegram and “did

not even tell them that they had a valid contract which

was being violated by their work stoppage” (A. 74a).

Further, declared the Sixth Circuit, UMW “did not

undertake to discipline the strikers”, characterizing its

inaction as “a form of influence and persuasion” (A. 74a).

To the Sixth Circuit, “UMW bencfited by the strike and

took advantage of that fact to get a new contract” (A.

74a).

The Sixth Circuit likewise attributed responsibility

for the 1966 stoppage to UMW because, as it declared,

“Local 1209 was not an autonomous labor organization

separate and apart for UMW” but “was an administrative

arm” of and “was supervised, dominated and contralled

by UMW” because “UMW had the right ‘to reverse the

action of the Local Union’” and with power to correct

the local union’s unlawful action and deciding to accept

the benefit of it instead of taking appropriate action to

halt the strike as it was required to do under the Con-

tract, UMW thereby induced and encouraged both the

1964 and 1966 strikes (A. 75a). :

According to the Sixth Circuit, “The findings of fact

by the District Court that UMW did not induce or en-

courage the 1966 strike, and did not thereby violate the

Act, are not supported by evidence and are clearly crrone-

ous” (A. 75a).

3. As to Damages and Judgments.

Having held the challenged clauses to be illegal, the

Sixth Circuit noted the district court had rejected dam-

ages claimed by plaintiffs “except to the extent” of

$150,312.50, pius interest (A. 76a). ° As indicated (ante,

p. 6), the Sixth Circuit dlvccted entry of judgment there-

for. The Sixth Cirezit rejceted UMW’s claim of exces-

siveness to be “elearly without merit” (A. 78a).

4. As to Davison.

Agreeing with the district court (A. 42a), the Sixth

'SThis amount included (A. 59-60a):

1. Lost profits of $64,000.09.

2. Amount paid Ford Coal Company in compromise of a suit brought

by it for a breach of contract of $15,000.00, and incurred attorneys’ fees

and expenses of $1,793.46 in defense of the case.

3. Damages from the 1964 strike of $13,095.57.

4. $36,128.50 from the 1966 strike.

5. Attorneys’ fees and expenses of $20,294.97 in prosecution of unfair ,

labor practice proceedings against UMW with respect to the same

factual matters now before the Ccurt.

Circuit was of opinion that “Riverton and its parent cor-

‘poration Davison are proper parties to bri ing the action”

(A. 78a).

E. PURSUANT TO THE DISTRICT OF COLUMBIA CIRCUIT’S

INDICIA, NLRB HAS SUSTAINED THE VALIDITY OF

PWC AND THE 80- CENT CLAUSE AS PERMISSIVE UNDER

SECTION 8(e). — :

1. NLRB Has Validated PWC.

The district court found (A. 18-19a):

As noted (ante, p. 13), on August.27, 1963, three

NLRB members of NLRB found the 1958 Agreement’s

PWC banned by the Act’s Section 8( e) 1144 NLRB 228];

and on December 12. 1963, NLRB, on reconsideration ‘én

bane, officially recorded its inability to arrive at a major-

ity decision. -chiphaealai in Raymond O. Lewis, et al., 148

NLRB 249, PWC was again held by a Board pane! to fall

within Section 8(e)’s k ne even though NLRB had char-

acterized PWC as a “union standards clause”. Upon

appeal, the District of Columbia Circuit, noting its prior

holdings that such a clause would not cissmpnded violate

section 8(¢) so long as it was germane to the economic

integrity of the principal work unit or sought to protect

and preserve the work and oma? the union had

bargained for, remanded the ° *, NURB to cdnsider

the cffect of the union standar * clause, 10 determine the

unit size to which it applied and to bear in mind the prob-

lems of “substitute” and “supplemental” coal in sub-

Berg: in the bituminous coal industry. Lewis, et al.

. NLRB, D.C. Cir., 350 F.2d 801. Upon remand and ap-

proving an NLRB trial cxaminer’s findings or conclusions

that the work unit was the bargaining unit, that PWC’s

invalidity was not established merely by showing it

might have a secondary impact on occasion, that PWC

did not compel the industry’s unorganized segment to

sign the contract and that PWC’'s intention was to enco r-

age but not compel unorganived operators to sign, NUNB

found PWC “was adopted "iy the contrecting parties .

to protect and preserre the ‘unit work’ of employecs

covered by the contract by precluding the subcontra tirg

of ‘unit -cor!” to operators who did not maintain wnion

standards anc, accepting Urc District of Columbia Cir-

cuit’s view “of the legality of protecting unit -vor'.

Lirourh the modiuun of . union standards ciause”, Leld

PWC “does not contrarenc Section Se)". W. A. Boyle.

et ol., 179 NLEB No. 30, 72 LRRM 1426, 1428-29 (1969).

2 NLRB Uas Validated the 80-cent Clause.

Includ.di in the Jisirict covrt’s conchrsions is a history

of the 80-cent clavse before the District of Colum >ia Ci-

cuit and the NLEB:

Thé validity of the 80-<ccnt clause was first posed to

NLNB following its inclusion in the 1964 Agrocment.

NLIB, with Board memb«r Jenkins dissenting, found

that “Given the operative cconomic and industrial factors

in the industry, the inclusion of the instant clause in the

1964 Agreement constitutes secondary pressure on vn-

signed Operators” and that “The instant clause . . is . .

an implied union signatory arreement restricting the

subcontracting of work to operators under contract with

the UMW, without regard to unit considcrations” [Rey-

mond O. Lewis, et al., 148 NLRB 249, 255 (1964).

Meanwhile, in June, 1967, NLRB (with Board member

Jenkins dissenting) held the 80-cent clause “oes not

qualify as a wage-standards provision because a penalty

is imposed whenever unit work is subcontracted to non-

signatory operators without regard to the wage standards

“Both PWC and the 80-cent clause were before the Di-trict of

Columbia Circuit in Lewis v. NLRB, 350 F.2d 891, in which, as already

noted (antic, p. 31), that Court remended t'c case to NLEB,

of such employers” Unt. Union, UMWA, et a!., 165 NLRB

467, 468 (1967)). But, upon review, the Dist: et of Colum-

bia Circuit declared that “Since the 80-cent clause is by

ereryonc’s admission and our characteri-ation a substi-

tite for the union standards cla: se” and :craanded the

case to NLRB, “io carcfully consider whether in fact”

the clause functioned as on. and that “If it is a union

standards clause and the Board affirms Boyle, the 20-

cent union standards cleuse would seem to be a valid

provision” lint. Union, UMIVA v. NLEB. et al., D.C.

Cir., 399 T.2d 977, 980 (1965 )1.

With PWC's validity established in Boyle (ante, p. 32),

NLRB undertook to determine the 80-cent clause’s legal-

ity status. :

Upon remand, a Board majority (with Chairman

Miller and Member Brown dissenting). in agreement

with its examiner, found the evidence established that

(1) the parties’ intent in adopting the %9-cent clause

“was to equalize the differences in the costs of wage and

fringe benefits gencrally ex'sting between mines signa-

tory” to the National Agreement and “those which are

not in order to protect the work opportunities end stan-

dards provided UMW members employed by signatory

overators”, (2) wage, fringe and working condition

standards of employocs in nonsignatory mines are gen-

erally lower than those established in the National Agree-

ment; and (3) the 0-cont payment to which signatorics

are obligated on nonsignatory coal purchases bears a

reusonable relationship to the wage and fringe benefit

"Since plaintif™s Den S_ Davieon wos an intervenor in Int. Union.

UMWA v. NLRB. ect al.. D.C. Cir. 299 F.2d 977, 980 (1968). it is

obvious the Di-trict of Columbia Circuit's reference to “everyone's

admission” included plaintiff: Davison.

After the paises of Counts eet semend of PUC to MRAM,

the style of the case was changed from “Lewis” to “Boyle”.

differentials between employees of signatory and non-

signatory operators. Int. Union, UMWA, et al., 188

NLF-B No. 121, 76 LRRM 1394, 1395 ¢ February 26, 1971).

NLRB concluded “the 36-cent clause. functions as a

union standards cl ruse in protecting and preser-ing the

wor’: of employces working urder the UMW ayreement

and the standards under which such work is performed

by removing the economic incentive to subcontract soch

work steraming from: the lower ware and fringe benefit

cost of nonsignatury mines” (p. 1395). NLRB’s General

Counsel held the coal lands clause not to be secondary

(A. 442).

As NLNB's Int. Union. U MWA, et al. recites, “As the

allegations of Sec. 8(b)(4)¢i). (i1)(A) and (B) viola-

tions are dependent on our Sinding that Ux S0-c. nt clause

Violates Sem. 84). we shall aleo dismiss th se al! t2tiens

of the complaint” (76 LRM 1396. fn. 12).

Under the Act's Section 303(a) LA. 85al, it is unlawful

for a labor or tanivation “to engage in any activity o> con-

duct defined as an unfair labor practice in” Section

§(b)(4).

The Act’s Section 8(b)(4)(A) 1A. 81-82a] makes it

an unfair labor practice for the unien to engage in. or

ind::ce or encovraze employees to engage in, a strike or

refusal in the course of the employees’ employment to

perform services, or threaten, coerce or restrain an em-

ployer where an object is to foree or require any em-

ployer to enter into an agreement prohibited by Section

8(c). Section 8(b)(4)(B) (A. 82a] makes it an unfair

labor practice for a union either to strike to force any

person to cease doing business with any other person or

forcing any other employer to recognize or to bargain

with the union as representative of its cmplovecs unless

the union has been ‘certified as « ‘ch, bui the proviso

therein states, “That nothing contained in tiis clause (B)

shall be construed to ma}-e lawful, where not otherwise

unlawful, any primary strike or primary picketing.” —

Undtr the Act’s Section &(e) (A. 8i-85al, Congress

forbids, as an unfair labo- practice, atreemenis between

a labor organization and an employer by which the latter

agrees to cease or refrain from dealing in the products

of another* emplover, or to cease. doing business wit)

such employer. Tie Sixth Circuit rejected UMW’s argu-

meni the 80-cent Welfare Fund and the coal lands clauses

re primary and lawful because their purposes or aims

are to protect the negotiat.d labor Siandards of those

emplovecs wiose employers are signatorics to UMW"s

National Agreement, sad to preserve their employment

opportunitics (A. 722),

A Sixth Circuit basic error is its ignoring that for a

labor orvanivation to - intate S. ation of5\(2) the nro.

hibited cond» ct thereynder m ist be for a banned obicct

which, under 8(b)(1)¢.., ) requires the bargaining agrec-

ment to be prohibited under the Act’s 8c). and that

under 3(b}/4 (B)ya primary sirike does not constitute

an unfair labor practice.

The Sixth Circuit's holdings that the chalienged

clauses were not “addressed to the labor relations of tire

contracting employer [Riverton] vis-a-vis his own em-

ployees’ but, to the contrary, “to the boycotted employers

(nonsignatory suppliers)”, and tiiat the 80-cent clause

“was not directed at job Security” (A. 71a), conflict with

this Court’s avewed disinclination to condemn labor

agreements as illegal per se and to “ussume that a union

conducts its operations in violation of stl anti 357,

Teamsters v. NLEB, 365 U.S. 667, 676:-NLRB v. News

Sundicaie Co.. 365 U.S. 695. Trcse enunciations are con-

sistent wit Great Northern Ry. Co. v. Delmar Co., 283

U.S. 686. 691. whieh declares “where “two reasonable

constructions of a written contract can be made, prefer-

eee is given to thet constinction .. that docs noi result

in 2 viclation of law.” ‘

Ad@itionaliv, National Woodwork Mfgrs. Assn. v.

NLFRB, 386 US. 6Gi2 (1267) admonis*es lower federal

courts that the determination whether a union-manage-

ment agreement fal!s witsin the scope of Sections ?2/¢)

and 8(b)(4) “cannot be made without an inquiry into

whether, under all the sv:roundine ‘circ’ mstanccs, the

Union's obicctive was pres. ation of work . .. er whether

the agrccments and beycoti were tactically calculated to

satisfy union obicctives elsewhere” (p. 644).

rollowing the above mandate of this Court, the district

court’s findings and conclusions that the challenged

clauses were permissive under Section 8(¢) were predi-

cated upon undisputed facts relating to the hituminoris -

coal industry's history ef collective bargaining and its

relevant economic facts (ante, pp. 9-11), UMW’s his-

torical «fforts to preserve work opportunitics for its mom-.

bers through contractual restrictions (ante, pp. 11-13),

UMW s achievcment of the challenged clauses (ante, pp.

13-15) and its being concerned with the same economic

reasons and the necd for protectint work opportunitics

and security of erplovecs as confronted it in demandinz

PWC in the 1958 Agreement. Furthermore, it had this

Court's word that subcontracting was a bargainable issue

[Fiberboard Paper Prods. Corp. vy. NLRB. 379 U.S. 203

(1964)] and that multiemployer collective bargaining

was permissive (NLPB y. Trick Drivers Loca! No. 449.

Teamsters, 353 U.S. 87).

The Sixth Circuit's failure to ingcive “whether, under

all tuc surrounding ci-cumsiances, th Union’: oO d]Jective

was preservation of work” (356 U.S. 644), in disobedi-

ence to this Court’s mandate in Natioas! \/codworl:,

readily explicates-the Sixth Circuit's error in rejecting

the district court's approval of the challenged clauses

and for roga-dine as Liapplicable Natienal Wood:co-!.’s

Classic suidelincs, namely, tiat “The touchston> is

whether U.o agreement or its maintcnar cz is ade>cssed two

the laher relations of the contracting employer 7 is-a-- is

his ow: empleyecs” (p. €45) aud that Section S(2) was

Gesiencd to condemn subcontracting clauses possessiv 4

secov dairy pressure cherecteristics (pp. 645-46 ).

Further, the Sixth Circuit's efforts to condemn the

challenged clauses on the basis that “supplemental coal

which Riverton and Davison were purchasing from

signatory and nonsignatory suppliers involved work

which was never performed by their own employees”

are answered, first, by the undisputed evidence that

Riverton covenanted in the 1964 and 1966 Agreements

that “the operation of all the coal lands. coal producing

and coal preparation facilities owned or held under

lease by them” and that Riverton would not “lease,

license or contract out any” thereof “for the »urpose of

avoiding the application of this agreement or ny sec-

ton, paragraph or clause thereof’ (A. 11-i2a) and.

secondly, undisputed evidence was that contract signa-

tories signed for “all of the production and acquired

predinetion” (J.A. 331). Furthermore. as the District of

Columbia Circuit's Teamsters, Local 710 v. NLRB. 335

. 38

F.2d 709, 733-14 (1964) held “Activity and acresment

which directly protect fairly claimab!e jobs are orimary

under the Act.”

- Since the district court found that “wages paid in

signatory mines are materialiv greater than those paid

by eperators in non-signatory operations” (ante, p. 11),

Retai! Clerks Union, Locol 770 v. NLRB, D.C. Cir.. 296

F.24 3€6 (1961) challenges the validity of the Sixth Cir-

cuts holding herein in its appropriate recognition that

where a union seeks “to remove the economic incentive

for contract'ng out”, it thus endeavors “to preserve the

work ior the contracting employees” (p. 374). Accord:

int. inion, UMWA, et al., 188 NLRB No. 121, 76 LRRM

1395.

Additionally, tre Cont will recall the district ¢ urt’s

findins, with ref-renes to Rivcvton. that Rivcric- pvo-

s4t. $46 — — - s @has § ° a5 :. ,*

duced mere with its own employees than it had wrody ¢

previous'v, notine “This rees-d docs not exsist: ~ 'V

fmancial ability to expand production (1£5°-G5 wes

missing in 1962-63" (A. 13a).

Moreover a further challenge to the Sixth Circuit's

attributing to the challenged clauses a “secondary boy-

eott™ status (A. 79%) and to Piverton’s nonsiona.> y Ss 'p-

pliers a “boycotted * mployers” status (A. 7'2) is Nat'onal

Woedwork’s holdings thet Section 8(¢) is not subiect to

literalism (386 U.S. 619-25) and that the Act’s Section

8(b)(4) is “not to be read as supvorting a eenstruction

of the statute as prohibiting the incidertel effects of

traditional primary activity” (p. 632). Teamsters, Local

710 v.. NLRB, 335 F.2d 709, 713-14, consistent with

National Woodwork, declares “Incidental secondary ef-

fects of such activity and agreement do not render them

illegal” and “Thus, the ‘cease doing business’ language

39 . -

in $8(e) cannot be read literally because inherent in all

subcontracting clauses, even those admittedly primary,

is refusal to deal with at least some contractors”. Accord:

73 Harvard L. Rev. 1086; 1119: 62 Mich. L. Rev. 1176,

1187 (May, 1964) [See Appendix D herein, p. 87al.

NLRB’s variant conclusions concerning the &0-cent

clause have been detailed (ante, pp. 32-34): and while the

Sixth Circuit accurately noted that NLRB “has not been

consistent in its rulings on either the eighty-cent or the

PWC clause”, as well as its recital of the ultimate valida-

tion thereof by NLRB (A. 73a), it omitted a crucial fact

that in refusing NURB’s invalidation of the 89-cent claus.

the District of Columbia Circuit's Int. Union. UMWA v.

NLBEB, et al., 399 F.2d 977. 980. declared that “Since the

80-cent clause is by everyone’s admission and our

characterization a substitute for the union standards

clause” (ante, p. 33) and, as already noted, plaintiffs’

Dan S. Davison was an intervenor therein, so that the

phrase, “everyone's admission” included plaintiffs’ inter-

venor Davison. In any event, the fact remains that both

the District of Columbia Circuit in Lewis, et al. v. NLRB.

350 F.2d 861 (1965), and NLRB in Int. Union. UMWA. et

al., 183 NLRB No. 121, 76 LRRAI 1394. 1395 (1971), have

characterized the 80-cent clause as a union standards

clause and both have regarded the clause as permissive

under Seciion 8(e) in Int. Union, UMWA v. NLRB.

et «f., D.C. Cir., 399 F.2d 977, 980 (1968) and Int. Union,

UMVA. et al., sepra, at p. 1396."°

Moreover, the Sixth Circu't’s express =reference for

‘*Both PWC and the 8(-cent clause are scheduled for argurrent in

the District of Columbia Circuit on May 25, 1972 in Case No. 23.947,

styled Dixie Mining Co., Pet. vy. NLRB. Resp. and W. A. Boyle, et al.,

Interrenors: Case No. 21,129, styled Int. Union, USIWA, et al.. Pet. v.

NLRB, Resp. and Dan S. Davison, et al.. Intervenors: and Case No.

21,226, <tyled NLRB, Pct. vy. BCOA, Resp. and Int. Urion. UMWA, ct al.

Intervenors.

prior Board decisions conflicis with this Court’s Grigas

Vv. Luke Power Co., 401 U.S. 424 (1971). that “The

acmin'sirative interpretation of the Act by the enforcing

agency is entitled to great deference.” .

The Sixth Ci:e:it’s failure to foliow this Court’s previ-

ous enunelations and its conflicts with rulince and indicia

of the District of Columbia Cie: it and with NLRB’s

rulin’s conesrning the challenged clauses. stress the

importane of this Conrt’s award of te. “tiorari herein.

B. THE SIXTH CIRCUIT'S REVERSAL OF THE DISTRICT

COURT'S FINDINGS THAT THE CHALLENGED CLAUSES

WESE PERMISSIVE UNDER THE ACT’S SECTION 8ie)

CONPHICTS WITH RULE 52(a), FEDERAL RULES OF

CIVIL PROCEDURE.

Under Rule 52(a), Federal Rules, “Findings of fact

shali not be sect aside unicss clearly erroneows”. This

Court's Comm’r. of Internal Reren-:c Vv. Duberstein, 363

U.S. 278, 291, as well as tha Sixth Circuit’s Bale vy. Glas-

goo Tocacco Bd. of Trade, Inc.. 339 P24 Zul, 267 and

General "lectric y. Sciaky Bros., 415 F.2d 1968. have

given indicial recognition to Rule 32(a)’s command.

The Sixth Circuit’s conflict wit!: the Rule and the

cited cases, UMW submits, warrants the award of cer-

tiorari hercin.

C. THE SIXTH CIRCUIT'S HOLDINGS WITH REFERENCE TO

UMW’'S RESPONSIBILITY FOR THE WORK STOPP*GES

CONTRAVENE PRIOR IMPORTANT DECISIONS AND

PRINCIPLES OF THIS COURT AND OTHER FEDERAL

COURTS, INCLUDING PRIOR DECISIONS OF THE SIXTH

CIRCLIT.

The Sixth Circuit premised its iolding that UMW was

responsible for the 1964 work stoppage on t>> ground

that District 17’s field representative Emery McCoy and

other UMW agents knew ‘that UMW membce- had a

tradition of ‘‘no contract, no work” and “To tell them that

they had no contract was the ‘signal’ for them to strike”

(A. 72a). Although the district court had found UMW

not responsible for the 1966 Stoppage, the Sixth Circuit

held such findings “not Supporied by evidence” and

“clearly erroneous” (A. 79a), and premised its liability

holding on the ground that UMW did nothing to p< -suade

its members to return to work other than to send thom

a telegram and, in failing to discip!tine the Sivlkers “Its

inaction was a form of influence and persuasion” by

which UMW be ncfited (A. 74a); and that Local 1299 wns

not an autonomotis labor orgenizstiocn Separate and anart

“for UMW” but “an administrative arm” of, “arid was

supervised, dominated and controlicd by UMW” with

the rie ot “to reverse the action of the Local Union” (A.

79a). UMW discusses these grounds seriatim:

1. The 1964 Stoppacge.

Ever since the Coronado cases,” federal courts have

regarded labor unions as entiuies distinct from union

membership. Similarly, U. S. y. White, 322 U.S. 694,

distinguished union membership irom the unien as an

entity. In defining the term “agent” in the Act,’ Con-

gress intended to adopt the common law rinies of accney,

as held in Hearnischfeger Corp. v. Sheet Metal Workers,

etc., 6 Cir., 436 F.2d 351 (1273 )—a Section 303 action.

In frst Coronade (253 0S 235). proof of- “actual

agency” was devlared a prercovisite to union responsi-

bility. The Act's chi-f B°oponcnt. Senator Taft. declared.

“The fact that a man was a member of a labor union |.

would be no evidene- Whatever to show that he was an

agent”. Int. Ladies Ga-ment Workers Union vy. NLRB,

D.C. Cir., 237 F.2d 545, 551. held that “Impvtation ef the

*UMWA v. Coronado Coal Co., 259 U.S. 344, 387, 391; Coronedo

Coal Co. v. UMWA, 268 US. 295, 304-05. ;

?'The Act’s Section 301(e) [29 USCA 185(e)] and 2(13) [29 USCA

152(13)] appear in Appendix C hereto (A. 8la, 85a).

??See Legislative History of the Labor Mangement Relations Act.

1947 (Government Printing Office, 1948), p. 1204.

42 *

acts of one person to another” is forbidden “exeept when

the one is acting as agent for the other.”

Since there is no claim that UMW authorized or

participated in the 1964 stoppage, relevantly Section

303’s legislative history,” as well as the federal judi-

ciary’s interpretation of the Act’s “agency” definition,

negates a parent organization’s liability for wildcat

strikes. As stated in United Construction Woriers v.

Haislin Baking Co., 4 Cir., 223, F.2d 872, 877,-“We have

neror held, however, that there is any responsibility on

the part of a union fer a strike with which it has had

nothin to do: and there manifestly is no such liability . .”

Walters v. Int. Assn. of Plumbers.’6 Cir., 323 F.2d 578,

rejected a judement against a parent organization. be-

cause “There is ne evidence . . that [the parent organiza-

or ratified the picketing” and, therefore, “The judgment

against it has no support”.

The Sixth Circuit’s opinion cites no judicial authority

for its theory that advising Riverton employees “they

had no contract was the ‘signal’ for them to strike” be-

cause of UMW’s tradition of ‘no contract, no work”, but

its hoiding conflicts with this Court’s Coronado, the Sixth

Circuit’s Harnischfeger and the Act's legislatis2 history,

all showing congressiona! and judicial policy to regard

unions as leval entitios and as juristie persons, separate

and apart from their membership, and conjoining to chal-

lenge the employment of the Sixth Circuit’s principle

Where unrefuted evidence affirmatively demonstrates

*“Accord:. NLRB v. Miami Coca-Cola Bottling Co.. 5 Cir., 992 F.2d

341;NLRB v. Mar:hall Cer Wheel, etc., 5 Cir., 218 F.2d 409, 417.

“Legislative History of the Labor Management Relations Act, 1947

(Government Printing Office), Vol. IT, p. 1627, 93 Congressional Record

A. 3233. See also Senator Teft’s statement, “The President says that

a union will be liable if any of its members engaged in an unauthorized

wildcat strike. This is simply not so.”

efforts to have Riverton employees return and continue

to work (J.A. 1065-69) and uncontradicted evidence is

that strike action was voluntary on the part of Riverton

employees (ante, pp. 16 et seq.).

Even though, as the Sixth Circuit noted, the district

‘court characterized the testimony of the two McCoys

(ante, pp. 17-19) as “less than candid” (A. 73a), the

absence of any variant testimony of necessity invites this

Court’s recall of principles followed in C. & O. Ry. Co. v.

Martin, 283 U.S. 209, 219-20, that:

“It is not proper to submit uncontradicted testi-

mony to a lfactfinder] for the sole purpose of giv-

ing the [factfinder] an opportunity to nullify it by

discrediting the witness, when nothing more than

mere interest in the case exists upon which to

discredit such witness . .”

and Moore v. C. & O. Ry. Co., 340 U.S. 573, 578, that

“Speculation cannot supply the place of proof’. Indeed,

Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 340-

41, precludes use of inferences as proof where there is

“uncontradicted testimony of unimpeached witnesses . .

that the fact sought to be inferred did not exist”. The

Tenth Circuit in Browning v. Crouse, 356 F.2d 178, ex-

presses it thus:

“Unimpeached, positive testimony may not be

disregarded, even though adduced from interested

witnesses, and no question of credibility or issue

of fact is presented for determination by a trier

of fact”.

2. The 1966 Stoppage.

The Sixth Circuit’s ground for holding UMW responsi-

ble for the 1966 stoppage, namely, that “It did not under-

take to discipline the strikers” and “Its inaction was a

form of influence and persuasion” (A. 74a) violates this

Court’s UMW v. Gibbs, 383 US. 715, 739, holding “There

can be no rigid requirement that a union” disavow strike

activity which it had not authorized, and the declaration

in Mr. Justice Harlan’s concurrence that «@ 1:nion’s fail.:re

“to take afirmative action to dispel misconduct are Shot

in themselves proof of authorization cr ratification of tire

wrongdoing’ (p. 743). Further, Ladies Garment Work-

ers (237 F.2d 552) cites first Coronado (259 U.S. 395)

as support for its ine'din there is no need for disavowing

misconduct by a pa:ty which has not initiated or par-

ticipated therein: “silence provides no rational basis for

inferring” UMW acaviescence in the stoppases.

This Court’s rs t Coronado rejected the Sixth Cir-

cuit’s theory and record: 2 coal company’s contention

(253 U.S. 371, 66 L. Ed. 975, 881) that where union

officers and members. of whom the ion has disciplinary

control, in the course of a strike, do ijlegal acts‘in further-

ance of the union cause, the fact that the union takes no

affirmative and public action disapprovine what they

have done, and suspending or exp: a irdm mem-

bership, is of itself the strongest ‘ind of evidences tha

the acts were authorized or niihond at by the union,

and that they were done on the union’s behalf and for

its benefit. But this conduct was rejected by first Coro-

nado, which held “We do not conccive that such responsi--

bility is imposed on the national body” that “it is ik a

question of contract or of ‘holding out an appearance of

authority on which some third person acts” but “It is

amere question of actual agency, which the constitutions

of the two bodies settle conclusively” (259 U.S. 395).

2°This discussion is equally apposite to the 1964 strike situation in

light of the Sixth Circuit’s holding that UMW’s inaction induced and

encouraged the 1964 strike, as well as the 1966 strike (A. 74a).

“ven though in frst Coronado UMW’s president Mad

reported to UMW’s Executive Board his sympathy with

the purpose of the local unien’s strike, the Court declared

this did not “imply or prove on his part any pricr initia-

tion, or indicat> a desire to ratify the transaction as his

“work”; that “It wou'd be going very far to consider such

actions of the president alone a ratification by the Inter-

national Sad creating liability for a past tort’; that

“The president had not authority to order or ratify a local

strike” and that “Only the iors ion

which the leard did not take (259 U.S. 394).

Additionally, the Sixth Circuit grounded UMW re-

sponsibility for the 1966 stoppage on the theory that

“Local 1209 was not an autonomous labor organization

separate and apart for UMW” but “an administrative

arm” thereof and was supervised. dominated 2nd con-

trolled by UMW (A. 75a). This holding is challenged

by undisputed evidence and the district court’s finding

that under UMW’s Constitution, local union officers are

elected by scerct ballot of local union members and local

union officers are paid from dues allocated to a local union

pursuant to UMW’s Constitution: that regular local union

meetings are scheduled pursuant to by-laws of local

unions; and special mectines are called cither by the

‘local union’s president or members thereof who reauest

the snecial meeting called (A. 29a).

It is in conflict with the Sixth Circuit’s holding in

Harnischfeger Corp. v. Sheet Metal Workers. etc.. 436

F.2d 351 (1970)—a Section 303 action—that a parent

organization is not liable for picketing by a local union

where it did not authorize picketing and its representa-

‘tives did not assert authority ¢« terminate the picketing.

Since the Sixth Circuit indicated the applicability

herein of Int. Bro. of Teamsters v. Humko, 6 Cir., 287

F.2d 231, it is relevant that in Harnischfeger the Sixth

Circuit pointed out that in Humko it “relied in part upon

the provisions of the international union’s constitution in

finding that the international participated as a ‘principal

actor’ in the secondary boycott there in question” (p. 355).

The Sixth Circuit’s holding concerning Local 1209 is

at variance with its Harnischfeger and Garmeada Coal

Co. v. Int. Union, UMWA, 6 Cir., 230 F.2d 945, affirming

122 F.Supp. 512, 518, but it also conflicts with the Dis-

trict of Columbia Circuit’s Busby v. Electric Util. Em-

ployees’ Union, 147 F.2d 865, the Seventh Circuit’s

Morgan Driveway, Inc. v. Teamsters, 268 F.2d 871 (1959). —

It likewise is challenged by T. S. Ragsdale Co. Ine. v.

General Drivers, etc., Local No. 509 and Int. Bro. of

Teamsters, DC, D. S.C., 1972, F.Supp. ;79 LRRM

2219, which, recognizing Coronado’s doctrine that “‘sub-

ordinate bodies are entities apart from the parent” (p.

2222), noted that NLRB “has consistently recognized the

separate features of the two entities” (p. 2223), and

quoted in part from Franklin Electric Construction Co-

operative, 121 NLRB 143, 145-46, that NLRB wrote

« «The overwhelming weight of judicial author-

ity, including the Supreme Court of the United

. States, is that a local wnion is a legal entity apart

from its international . .’” (p. 2223).

While the Sixth Circuit regarded the district court’s

exoneration of UMW for the 1966 stoppage as being

clearly erroneous, it is noteworthy that its opinion did not

dispute, factually or otherwise, a single finding upon

which that exoneration was based, including the district

court’s corroboration by the United States Department

26For other haldings disparate to the Sixth Circuit’s holding herein,

see Ragsdale, 79 LRRM 2223.

of Labor (ante, p. 24). Hence, it is manifest the Sixth

Circuit’s reversal was based upon legal principles which

have been demonstrated to be wholly erroneous.

Lack of consistency in the Sixth Circuit’s implementa-

tion of the Act’s agency provisions and its cor ‘lict with

its own and with other appellate courts’ impler~entation

thereof invite the award of certiorari herein. Goldlawr

v. Heiman, 369 U.S. 463 (1962).

D. THE SIXTH CIRCUIT’S HOLDING THAT DAVISON IS A

PROPER PARTY PLAINTIFF TO THE INSTANT ACTION

IS ERRONEOUS.

The Act’s Section 303(b) provides that “Whoever shall

be injured in his business or property by reason of sub-

séction (a) may sue therefor in any district court of the

United States . . and shall recover the damages by him

sustained and the cost of the suit” (A. 85-86a).

Undisputed facts show that Riverton is a wholly-

owned subsidiary of Davison, and that Davison’s Presi-

dent is Dan S. Davison and Riverton’s Vice President;

but Davison’s primary business during 1955-1968 was

exclusive sales agent for Riverton’s coal on a commission

basis and keeping Riverton’s books. It is conceded that

Davison produced no coal, participated in no collective

bargaining with UMW and executed no UMW contracts

(ante, p. 7). Further, Davison owned none of River-

ton’s leased properties (A. 3a). Davison’s 10 employees

were represented by District 50, with whom it had

entered into a collective bargaining agreement (A. 4a).

As the district court found (A. 32a), while prior to Janu-

ary 1, 1964 purchased. coal was loaded and shipped

through both the Crown Hill Dock, operated by Riverton,

and the Marmet Dock, operated by Davison, after Janu-

ary 1, 1964 almost all coal purchased was shipped through

the Marmet Dock, then operated by Riverton.

TEL APL SO IIS a 5

The 1964 and 1966 Agreements’ “Application of Con-

tract to Coal Lands” clause provided that (A. 27a):

“As part of the consideration for this. agree-

ment, the Operators signatory hereto agree that

this agrcement covers the operation of all of the

coal lands, coal producing and coal vreparation

facilities owned or held under lease by them, or

any of thei, or by any subsidiary or offilicte at

the date of this agreement, or acquired during iis

term which may hereafter (during the term of

this agreement) be put into production or use. The

Operators agree that they: will not lease, license

or contract out any coal lands, coal producing or

eoal preparation facilities for the purpose of avoiu-

ing the application of this agreement or any sec-

tion, paragraph or clause thereof.”

Thus, it is evident that under the contract terms to be

an “affiliate” a party plaintiff must possess the character-

istics that would permit it to be an owner, a [cssoo,

licensee or contractee, or a coal producer ‘or operator of

a coal preparation facility. Under undisputed facts, Davi-

son was neither: It produced no coal, participated in no

UMW bargaining and executed no UMW contract; it

owned none of Riverton’s leased properties; and during

the material period it neither owned nor operated a coal

preparation facility; and none of, its employees were

covered by UMW’s contract with coe

Contrary to the Sixth Circuit’s sanction of Davison as

a party plaintiff herein, in UMW v. Osvorne Mining Co.,

6 Cir., 279 F.2d 716 (1960), Osborne’s sales agent, Love

& Amos, who was not a coal producer or operator but

-sold Osborne’s coal for which it was paid a commission;

and, like Davison herein, had no employees, and par-

ticularly none whom UMW sought to organize, or for

whom it endeavored to secure a labor contract. Under

these circumstances, the Sixth Circuit held UMW did not

induce or encourage the sales agent’s employees to strike

to compel Osborne to bargain with UMW and rejected

the sales agency’s right to recover as a “avhoever” under

Section 293 (pp. 727-29).

The issue presented in this discussion has not been,

but it is submitted, should be decided by this Court be-

cause of its importance in the administration cf the Act’s

Section 303.

CONCLUSION .

For the reasons assigned, Petitioner prays that the

Petition for Writ of Certiorari should be granted and that

the Writ issue to review the Judgments and Opinion of

the United States Court of Appeals for the Sixth Circuit

entered January 21, 1972, in Cases Nos. 71-1021 and

71-1022, as aforesaid. Petitioner intends to urge each of

the questions presented, even if not specifically argued

herein.

Respectfully submitted,

EDWARD L. CAREY

HARRISON COMBS

900 Fifteenth Street, N. W.

Washington, D. C. 20005 .-

E. H: Rayson

Valley Fidelity Bank Building

Knoxville, Tennessee 37901

RosBeErRT |. DOGGETT

2222 Kroger Building

1014 Vine Street

Cincinnati, Ohio 45202

M. E. Borarsky

012 Kanawha Valley Building

Charleston, W. Va. 25301

Attorneys for United Mine

Workers of America

April, 1972

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.