# Petition for Writ of Certiorari — United Mine Workers of America v. Riverton Coal Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0775%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 407 U.S. 915 ## Text In THE Supreme Court of the United States OCTOBER TERM, 1971 we. T- 1316 : 8 - . UNITED MINE WORKERS OF AMERICA, Petitioner, V. 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) i 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 13 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- ii 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 40 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 iv 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 vi 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, : 39 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)] 4 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 ix 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 s 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 * 2 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 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. e 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 7 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) ]. 8 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) }. 9 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 10 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 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 11 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 12 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). 13 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.” 14 “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”; 15 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 16 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)}. 17 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 18 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 19 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 20 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 21 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 ‘. 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). 24 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 25 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 26 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.” 27 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.’ ” 29 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). 30 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. 31 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 32 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- 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 35 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 36 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 37 [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, > 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 41 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 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 46 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. 47 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 48 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 49 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. 50 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0775%3A1. Public record. Not legal advice.