Petitioners Reply Brief — United Mine Workers of America v. Riverton Coal Co.

In THE

Supreme Court of the United States

OcToBER TERM, 1971

No. 71-1346

UNITED MINE WORKERS OF AMERICA.

Petitioner,

Vv.

RIVERTON COAL COMPANY and

DAVISON FUEL AND Dock COMPANY.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS eos

THE SIXTH CIRCUIT

PETITIONER'S REPLY TO OPPOSITION BRIEF

Epwarp L. CAREY

HARRISON COMBS

900 Fifteenth Street. N. W.

Washington, D. C. 20005

E. H. Rayson

Valley Fidelity Bank Building

Knoxville. Tennessee 37991

RoperT i. DocceTt

2222 Kroger Building

1014 Vine Street

Cincinnati. Orio 45202

M. E. Bolarsky

512 Kanawha Valley Building

Charleston. W. Va. 25391

Attorneys for Petitioner.

United Mine Workers af America

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INDEX

TABLE OF CONTENTS

‘Page

UMW’S Repity to RESPONDENTS’ STATEMENT

OF THE CASE

UMW’S Repiy to REsPonDENTS’ ARGUMENT

THAT THE SixTH Circuit’s HoLpING CONCERNING

THE CHALLENGED CLAUSES Dors Not Conr.Lict

WitH APPLICABLE DECISIONS OF THIS CovRT

A. Contrary’ To Respondents, the Sixth Cir-

cuits Opinion Herein Conflicts With This

Court’s National Weodwork, And With

Opinions Of the D. C: Circuit

B. The Sixth Circuit's Prior Canada Dry Case

Conflicts With the Sixth Circuit’s Opinion

Herein

C. Contrary to Respondents. UMW’s Objectives

Were Primary and Not Secondary, and the

District Court So Found

oe

‘

There Is No Conflict Between the

Circuits”

UMW’S REPLY TO RESPONDENTS’ ARGUMENT

THat UMW Corrcrep Riverton anp Davison,

AND THAT THERE 1s No Conriict WITH THE

CORONADO Casts

The 1964 Work Stoppage

The 1966 Work Stoppage

11

13

13

13

Page

IV. UMW’S Repty Concerninc Tue Sixta Circuit's

FaiLure To Fo.tow Rute 52(a), Fenerat Ruies

or Civit Procepure 22

V. UMW’S Repty-to Responpents’ CLaim Tat

Davison 1S A Proper Party 22

CONCLUSION -23

TABLE OF CASES

Brentwood Markets, 171 NLRB 1018 (1968) 8

Browning v. Crouse, 10 Cir., 356 F.2d 178 18

C. & O. Ry. Co. v. Martin, 283 U.S. 209, 219-20 18

Cala Foods, 172 NLRB No. 200, 69 LRRM 1189 8

Canada Dry Corp. v. NLRB, 6 Cir., 421 F.2d 907

* (1970) 8,13

Coronado Coal Co. v. UMWA. 268 U.S. 295, 303-05 14,

16, 19

Garmeada Coal Co. v. UMW, DC, E.D. Ky., 1954,

122 F.Supp. 512, aff'd. 6 Cir., 230 F.2d 945 21

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 12

Harnischfeger Corp. v. Sheet Metal Workers,6 Cir. _

436 F.2d 351, 355, 356 (1970) 15, 20, 21, 22

Houston Insulation Contractors Assn. v. NLRB, 386

U.S. 664 (1967) - 10

Int. Ladies Garment Workers Union v. NLRB, DC.

_ Cir., 237 F.2d 545, 552 17

Page

Int. Union, UMWA, 76 LRRM 1396 13

Int. Union, UMWA v. NLRB, DC. Cir., 399 F.2d

977, 980 ( 1968) ae it

Lewis v. Benedict Coal Co., 6 Cir., 259 F.2d 346

(1958) Imodified on other grounds, 261 U.S.

459 (1960)) 17

Lewis v. NLRB, D.C. Cir., 350 F.2d 891 (1965) ll

Lewis v. Penninoton, 400 F.2d 806, 814 (1968) cert.

‘den. 393 U.S. $33, reh. den. 393 U.S. 1945 il

Loco! $61, Electrical Workers v. NLRB, 365 U:S. 667.

J72, C80 4,7

Local 1976, Carperts’s v. NLRB, 357 U.S. 93. 98

(1958) : 10

Moore v. C. & O. Ry. Co., 349 U.S. 573, 573 i9

NLKEB v. Local 825, Operating Cngineers, 409 US.

| 297, 304 7

National Woodirorl: Mfgre. Assn. v. NLRB, 386 U.S

612, 644 (1967) 4.5, 10

Pennsy!rania R. Co. y. Chamberlain, 288 US. 333,

349-43 ; 19

Ramsey v. UMW, 416 F.2d 655 (1969), reversed on

other grounds 401 U.S. 302 11, 12

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

296 F.2d 363, 373, 374 (1961) 6,7

Seafarers Int. Union v. NLRB, D.C. Cir., 265 F.2d

585, 590 4

Teamsters v. Humko. 6 Cir., 287 F.2d 231. 242 20

*

Page

Tewrst Leal 710 ¥. NLRB, D.C. Cir.. 335 F.2d

Sie, F13-14 61964) 6. 7.3

ted Coat Company v. UMWA,

1192. 1198. 1199 12

: Comatract Workers v. Haislip Baking Co.,

2 at 15

7 Co.. 2759 US. 334. 353

14, 16, 17, 19

OMT v.C U.S 715. 343 ¢ 1966) 17

' ' d Coal Compary,

a % jte i? ” ‘ wl 12

ty S j r. es ‘i ‘ : _@ DdC.. 1948. yi F. Supp.

Set Md. D.C. Cin, 177-¥.2d 29 (1949) " «16

U.S. +. int. Union, U IW. DC. D.C.. 1955S 89 F_Supn.

17 16, 20

U.S. +. tnt. Union, UII, D.C. Cir.. 190 F.2d 865

(195i) 17

United Steelworkers of America v. NLRB, 376 US.

492 7

United Teatile Workers v. Newberry Mills. Inc.. 315

F 2d 217 (1963), cert. den. 375 US. 818 (1963) 18

Vulcan Materials Co. y. Steelworkers, 5 Cir., 430

F.2d 446. 456 (1970) 18

Walters v. Int. Assn. of Plumbers, 6 Cir., 323 F.2d 578 15

Page

STATUTES

Labor Management Reiations Act, 1947,as amended 4

Section 8(b)(4) 129 USCA 158(b)(4)) 5, 10

Section 8(b)(4)(€i)Gii)(A) [29 USCA 158(b)

(4)CiM PCA) 10, 12, 13, 14

Seciton 8¢b)(4)(i)(ii)(B) 129 USCA 158/b)

(4)Ci)CifB)! 10, 12. 13, 14

Section 8(d) 129 USCA 158(d)] : i9

Section 8(¢) [29 USCA 158(e)] 2, 3, 5, 6, 7, 8.

11, 12. 22

Seciion 9 (29 USCA 159)

Section 301 (29 USCA 125) ' i9

Section $03 (29 USCA 187) 11,13

MISCELLANEOUS

Federal Rules of Civil Procedure:

Rule 52(a) - 2. 13, 22

In THE

Supreme Court of the Wuited States

Octosper TERM, 1971

No. 71-1516

Unitep Mine WorKERS OF AMERICA,

Petitioner.

Vv.

Riverton Coat Company and

Davison FUEL AND Dock Company,

Respondents.

ON PETITION FOR WRIT OF CERTIOR ARI TO

THE UNITED STATES COURT OF APPLALS FOR

THE SIXTH CIRCUIT

PETITIONER'S REPLY TO OPPOSITION BRIEF

I. UMW’S REPLY TO RESPONDENTS’

STATEMENT OF THE CASE.*

Despite Respondents’ charge in its opposition brief

(p. 6) that UMW’s statement “is laced with irrele-

vancies, misstatements of fact, expressions of opinion

and significant omissions”, UMW believes that compari-

son of the record with its Statement of the Case will

disclose it to be both accurate and fair. On the other hand,

critical omissions‘ and inaccuracies in Respondents’

statements and arguments prompt UMW’’s instant reply,

*Parties and —— references are referred to herein as in the

certiorari petition, og, the abbreviation-“J.A. ” refers to pages

in the Joint Appendi ¢ opposition brief is referred to as “O.B._.

All emphases herein are supplied, unless otherwise indicated.

2

although time permits UMW to point out only the most

blatant examples thereof.

The opposition briefs statement concerning the 1964

strike and Agreement (O.B. 9-14) is to be compared

with Potitioner’s statement concernins the 1964 work

Sioppage (Pet. 16-22); Respondents’ statement con-

cerning the 1966 strike and Agreement (O.B. 14-16) is

to be compared with that of Petitioner (Pet. 22-24),

including the corroborative evidence furn’shed by the

Bureau of Labor Statistics, United States Department of

Labor, concerning the 1966 steppace, which Respondents

ignore: and the opposition brief’s statement of the

district court’s decision (O.B. 19-21) is to be compared

with Petitioner’s statement of the district court's con-

clusion concerning the two work stoppages (Pet. 24-26).

Not only does Respondents’ opposition brief assid-

uously avoid directing the Court's attention to numerous

undisputed facts, including, but not limited to, the

bituminous coal industry’s history’ of collective bargain-

ing and its relevant economic facts (Pet. 9-11), UMW’s

historic efforts to preserve work opportunities for its

members through contractual restrictions (Pet. 11-15),

but also the district court’s findings pertaining thereto

(Pet. 9-15), as well as to many of the district court’s

findings and conclusions of law that PWC, the 80-cent

‘The district court affirmatively concluded that “the history of the

union negotiations going back dozens of years (multiple and singular)

which led to PWC and/or the 80-cent clause is relevant”, avowing that

“Any work preservation clause or any uniorg standards clause will of

necessity limit the right of an emplover to deal with other employers

or to handle their products” and “It is difficult to imagine such a

clause which would not run afoul of 8(e)” [A. 47a (76) ].

The Sixth Circuit was, as insensitive to the requirement of Rule

52(a), Federal Rules of Civil Procedure, that “Findjngs of fact shall

not be set aside unless clearly erroneous” relating to the foregoing

finding as it was as to all other district court findings pertaining to

the validity of the challenged clauses in the 1964 and 1966 Agreements.

3

clause, and the coal lands clause of the 1964 and 1966

Agreements sought to protect the jobs and work of

signaicry employees and to maintain the Welfare Fund’s

iniegrity, and were permissive under the Act's 8(e).

The district court’s findings and conclusions appear in

the certiorari petition (pp. 13-16), to which reference

is made. Though all of said findings and conclusions are

cogent, crucially worthy of repetition. are ihe district

court's findings and conclusions that “neither PWC nor

the 80-cent clause ran afoul of 8(e)”: that their purpose

clearly was “to tackle in a successful way a logitimate

problem of subcontracting and work preservation which

had exisied for decades and had been attacked for

decades in unsuccessful contractual methods”; that a

secondary effect of each clause “was the protection of

the Weifare Fund—clearly a legitimate primary (in a

labor sense) target”; that though a “secondary effect”

was unionization of some non-union employers, it was

“foresecable and in that sense was a purpose at the time

the clausts were negotiated”; and 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 mattc. of compulsion [A. 55a

(83-84)1. 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. 55a (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)1.

4

il, UMWS REPLY TO RESPONDENTS’ -ARGUMENT

THA? Ti:E S'TH CiRCUIT’S HOLDING CON-

CERNING THE CHALLENGED CLAUSES DOES

NOY CONPLICT WITH APPLICABLE DECISIONS

OF THIS COURT. y

ororary To Respondents. the Sixth Cireuii’s

eran phan Conflicts “\,ith This Couri’s

vevenel 8 eedwork., Avid With Opinions Of the

By a. Cireuit.

In contending the Sixth Circuit's opinien ‘herein docs

not conhice with applicabie opinions of this and oth

. ? ’ 7t 4 e yet - as “ TN}

leacral spnocilaie courts (O.B. 24, 38. 45- 30), eee.

ents ignore th's Court's teaching in Loc 761, Elee-

lt

trical Workers v. NLRB, 366 U.S. 667, 672. that the

Act's secondary boyeott provisions are not to be literally

construed because such construction would “ban most

Strikes historically considered to be lawful. so-called

primary activity’. Therein, this Court cautioned that

“Important as is the distinction between legitimate ‘pri-

mary activity’ and banned ‘secondary activity,’ it does

not present a glaringly bright line” and that “The

objectives of any picketing include a desire to influence

others from withholding from the employer their

services or trade” and it quoted, with approval, lantuage

from Seafarers Int. Union v. NLRB, D.C. Cir.. 265 F.2d

0895, 590, that “ ‘It is clear that, when a union pickets an

employer with whom it has a dispute, it hopes. even

if it docs not intend, that all persons will honor’ ”

the union’s activity, including “employees of neutral

employers”.

In reversing the district court and directing judg-

ment for Respondents, Respondents support the Sixth

Circuit’s action by an argument (O.B. 38-42) which

ignores the district court’s findings and conclusions that

PWC, the 80-cent clause and the coal lands clause of

5)

the 1964 and 1966 Agreements sought to protect the

jobs and work of signatory employees and to maintain

the Welfare Fund’s integrity, and were permissive |

under the Act’s Section 8(e), discussed in the certiorari

petition (pp. 13-16).

. Nor does Respondents’ argument concern itself with

Ne‘lonal Weedwork Mfgrs. Assn.’s? admonishment to

lower. federal courts that esas whether Sec-

ticn &(c) and Section 8(b)(4) is violated “eannot be

without ap inquiry inte whether, under all the

Surrounding circumstances, the Un‘on’s ve was

preservation of w ae .. or whether the agreements and

bovcott were tactica!ly Soyer to satisfy union .ob-

ject ves clsowhere” (386 U.S. 644). Further. Respend-

ents cisreacrd UMVW’s charge of the Sixth Circuit’s

iailvrve to ineuire “whether, under all the surrounding

Circ stances,

| td

O

he Union’s ebjective was nresernation

oF werd” awken the district court’s findings end- con

Clusions that the challenaed clauses were pormissive.

under Soction 8) were prediccted unon undisnuted

fects relating to the bituminous coal industry's histor

of collective baracining and its relevant economic facts,

UMW's historical efforts to preserve work opporiunities

for i‘s members through contractual restrictio ms, and

UMV/'s achievement of the challenged clauses (Pet.

§-15).

Morcover, Respondents were similarly unresponsive

to UMW’s answers (Pet. 37-38) to the Sixth Circuit's

condemnation of the challenged clauses on the basis

that “supplemental coal which Riverton and Davison

were purchasing from signatory and nonsignatory

*National Woodwork Mfgrs. Assn. v. NLRB. 386 US. (12 (1967).

6

suppliers involved work which was never performed

by their own employees”.

- Because. Respondents would deprecate (O.B. 48)

UMW ’s citations of Teamsters, Local -710 v. NLRB,

D.C. Cir., 335 F.2d 709, 713-14 (1964) and Retail Clerks

Union, Local 770 v. NLRB, D.C. Cir., 296 F.2d 368, 374

(1961) on their assertion that therein secondary ob-

jectives were not commingled, it becomes important.to

reiterate that in support of its finding that the challenged

clauses did not violate Section &(c), the district court

found that a secondary effect of each clause “was the pro-

tection of the Welfare Fund—clearly a legitimate pri-

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

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

ployers, it was “forseeable and in that sense 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 that record that the unionization effect was a matter

of choice, even to neuircl employers”, not a matter of

compulsion [A. 55a (63-384)1. Specifically, with reference

to Riverton, the district court concluded, “On this

record, one could only conclude that the 89-cent clause

did exactly what was designed to do—it resulted in

the employer producing more with his own employees

than he ever had before by substantial percentages”

[A. 55a (84)1, 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)].

Even if, as the Sixth Circuit declared (A. 7la), the

coal “Riverton: and Davison were purchasing from

7

signatory and nonsignatory suppliers involved work

which was never performed by their own. employees”,

nonetheless it involved work -which Riverton’s em-

ployees had the skills and experience to perform.

Teamsiers, Local 710 recognizes that where the em-

-ployees have the skills and experience to perform work

claimed—as is true in the instant situation—even if

the clause covered non-traditional work.

“It would be. difficult to deny that ‘lal clause

covering non-traditional work may be just as

consecrated to the primary objective of bettering

the lot of the bargaining unit employees and

just. as foreign to. the congressional purpose for

section &(e) as those clauses involving only the

work traditionally done within the bargaining

unit ” (335 F.2d Fis). |

In addition to the quoted language in the certiorari

petition (p. 38), Retail Clerks makes clear that when

an employer “agrees in good faith to terms and condi-

tions, he represents: that if the employees accept and

abide. those terms they will have this employment.

We thiftk employees, even absent a_ specific anti-

subcontracting provision, could enforce their right to

the work contemplated by a bargaining agreement”

(296 F.2d 373)..

NL?B v. Local §25, Operating Engineers, 400 U.S. 297,

304, declared, “Some disruption of business relationships

is the necessary consequence of the purest form of

primary activity” and that “These foreseeable disrup-

tions are, however, clearly protected”, citing United

Steelworkers of America v. NLRB, 376 U.S. 492, and

Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 682.

These pronouncements are consonant with the recogni-

tion in Teamsters, Local 71 0, that “Thus the ‘cease doing

8

business’ language in $3(e) cannot be read literally be-

cause inherent in all subcontracting clauses, even those

admittediv primary, is refusal to deal with at least some

contractors” (335-F.2d 714).

B.° Pise Sixth Cirenit’s Prior Canela Dry Case Con-

fliets With the Sixth Cireaii’s Gpinion Herein.

Heretofore and conirary to the Sixih Circuit's rejec-

tion yeas of UMW’s “ciaimable work” contention, the

Sixt: Circuit's Cenada Dry Corp. v. NLRB, 6 Cir., 421

F.2d 907 (1970), -efused an employer's claim that a

union scught “work acquisition”, as distinguished from

“work preservation”, saying “these were the type of

jobs which the clerks had traa.iionally done and for

which thes nad the skills and experience” and that:

“Although the tasks of initially handling and

shelving the particular brand name preducts in

issue had not been traditionaily nerfarmed by

the store clerks, we do not regard the clerks claim

to these jos as representing in any r calistie Ssonse

an attempt to.. ai re new job tasks” (p. 909).

€. Contrary to Respordes MW s Objecti ves Were’

Pri Hoary ond Not Sec rentary. and Uae PPi<iriet

‘surt So Fennd.

In urging upon this Court that UMW’s ccercion had

secondary objects (O.B. 29-35}, Respondents, in auoting

from Gisirict court findings and conciusions, have jailed

to include cther crucialiy relevant portions thereof.

>

Illustrative thereof: Respondents qucte (O.B. 32) as

follows:

“Another object oi the said strike was to force or

require Riverton and Davison to cease using, sel-

Notably, the Sixth Circuit's Canada Dry opinion affirm: NLRB’s

holding. Additionaliy, the Sixth Circuit's Cenada Dru o-inion (p.

910) cites, with approval, NLRB’s holdings in Brentwood Merkets, 171

NLRB 1018 (19€8) and Cala Foods, 172 NLRB No. 290, 69 LRR*M 1189.

9

ling, handling, transporting or otherwise dealing

in th e products of coal producers who were not

signatories to an agreement with the defendant

Tnion and to cease doing business with such

preducers”’;

that

“Another effect of the said strihoe * was to encourage

coal producers selling coal to Riverton or Davison

io recognize or bargain with the defendant Union

as the represeniative of the employees of such

producers even though the defendant Union had

not been certified as the representative of such em-

ployees under the provisions of Section 9 of the

Act”,

and that

“An object of the April, 1964, strike at Riverton

Was to force or require Riverton to enter into the

proposed 1964 printed form amendment to the

National Bituminous Coal Wage Agreement of

1950”,

but STE en carefully avoid directing this Court’s

attention to paragraph 39’s additional lenguage, reading:

“After Riverton signed the 80-cent clause, and

as a result thereof, some fifteen non-union pro-

ducers from which Riverton had been buving

supplemental coal became signatories to the UMW

agreement. Some twenty-two did not—so the

effect was not to ‘force’ or ‘compel’ but to en-:

courage. Such ‘encouragement’ was not a primary

object of the strike—it was a recognized incident.

The design or purpose or object remained—job

protection” (A:25a).

Similarly, Respondents quote ( OB. 32) from the dis-

trict court’s conclusion as follows:

“A proximate result of the 80-cent clause [in the

agreement] to Riverton was to force it to cease

10

dealing in the products of other producers of coal

i.e., producers who were not unionized”,

but again Respondents are careful not to apprise this

Court that the district court’s conclusion continued with

the following language:

“While these were proximate results and fore-

sceable effects, none of them, nor the collection

of them, constituted the primary purpose for °

exacting the 80-cent clause bargain. That was to

prevent subcontracting, preserve Riverton’s em-

ployees’ work, maintain union standards in the

production of coal which could just as well have

been produced by Riverton and protect the in-

tegrity of the Welfare Fund” (A.56%a).

Respondents’ admission (O.B. 32-33) that the Sixth

Circuit “relied upon the above findings of the District

Judge in reversing and directing the entry of judgment

for the Respondents” clearly demonstrates the applica-

bility of UMW’s reliance upon “claimable work” and the

authorities cited by it in support of its contention.

A basic error of Respondents in pressing upon this

Court that UMW is guilty of secondary objectives is

their ignoring that to be guilty of a Section 8(b)(4)

violation, there is a positive necessity that the con-

demned conduct relate to a concomitant banned objec-

tive. Local 1976, Carper.ters v. NLRB, 357 U.S. 93, 98

‘ (1958). The discussion herein has demonstrated that

Section 8(b)(4)(i)(ii)(A)’s objective is permissive

under National Woodwork. Similarly, Houston Insula-

tion Contractors Assn. v. NLRB, 386 U.S. 664 (1967),

holds that collective activity of employees of a primary.

employer, the objective of which is to affect labor policies

of that employer is protected primary activity under the

Act’s Section 8(b)(4)(B) and “A boycott cannot be-

11

come secondary because engaged in by primary em-

ployees not directly affected by the dispute.”

- DP. UW's Response to Respondents’ Claim ‘There

is No Conflict Between the Circuits”

Arguing the Sixth Circuit’s decision to be “the first —

and only decision in any Circuit” in a Section 303 damage

action involving the validity of the UMW’s 80-cent and

coal iand clauses (O.B. 46), Respondents concede the

District of Columbia. Circuit’s concern with the 80-cent

clause in Lewis v. NLRB, 350 F.2d 801 (1965) and

Int. Union, UMWA v. NLRB, 399 F.2d 977 (1968).

Though arguing the district court’s assertion that “an

admitted substitute is the equivalent of what it was

substituted for” to be a basic error (O.B. 47), Re-

spondents do not deny that their Dan S. Davison was

an intervenor in Int. Union, UMWA v. NLRB, D.C. Cir.,

399 F.2d 977, 980, and that the District of Columbia Cir-

cuit’s reference to “everyone’s admission and our char-

acterization a substitute for the union standards clause”

(meaning PWC) included Respondents’ Davison. Nor do

Respondents challenge UMW’s certiorari petition state-

ment (Pet. 31-34, 39) that pursuant to the District of

Columbia Circuit’s indicia, NLRB has declared the

validity of PWC and the 80-cent clause as permissive

under Section 8(e). Further, if, as the Sixth Circuit

quoted, NLRB “has not been consistent in its rulings on

either the 80-cent or the PWC clause” (A. 73a), neither’

has the Sixth Circuit been consistent with reference to

PWC, since in both Lewis v. Pennington, 400 F.2d 806,

814 (1968). cert. den. 393 U.S. 983; reh. den. 393 U.S.

1045, and Ramsey v. UMW, 416 F.2d 655 (1969), re-

versed on other grounds 401 U.S. 302, the Sixth Circuit

has validated PWC."

12

In any event, as UMW asserts in its petition (pp. 31-

34), NL2RB has sanci‘oned the challenged clauses’ validity

pursuance to the District of Columbia Circuit’s indicia

which condemned ihe Sixth Circuit’s preference for

NUNRDB's prior decisions, and, as the certigrari petition

(p. 40) pointed out, such preference conflicts with this

Court’s Griggs v. Duke Power Co., 401 U.S. 424 (1971)

that “The administrative interpr aio of the Act by the

enforcing agency is entitled to great deference”

The foregoing discussion demonstrates the Sixth Cir-

cuits reversal of the district court’s findings and conclu-

sions portaining to the Act’s Section 8(e) resulted from

its failure to recognize UMW’s contention of “claim-

able work’, to its willingness te segregate portions of

such findings and conclusions rather than premise its

decision on them in their entirety, and by its preference

f adopting NLRB decisions which the District of Colum-

bia eee t rejected rather than accepting NLRB’s valida-

tion thereof.

Furthermore, since UMW’s objectives were primary

and not secondary, UMW could not have. violated Sec-

tion ®(b)(4)(i) (ii) (A) and (B), by reason whereof

the district court appropriately dismissed the action and

complaint, just as NLRB did upon validating the 80-

“While the Sixth Circuit's Tennessee Consolidated Coal Company

v. UMWA, 416 F.2d 1192. 1198, found PWC “to boycott coal not

produced in conformity with the National Agreement” (O.B. 47), its

finding reloted to a jury finding as to an antitrust violation. While

the district court sanctioned the jury finding, its belief that PWC

was valid is expressly reflected in its statement that, “If this Court

were sitting as a trier of the facts in the present case, it would make

the same findings of fact on the present record as it mode unon the

record in the Ramsey case”’—wherein it found PWC valid-—ind_ that

its approval of the jury verdict “does not indicate . . the Court

concurs in the verdict” (See petition for certiorari, Case No. 1163,

October Term, 1969, styled UMWA v. Tennessee Consolideted Coal

Company, et al., Appendix, pp. 50a and 58a, and 416 F.2d 1199).

13

cent clause in Int. Union, UMWA (76 LRRM 1396,

fn. 12). Had the Sixth Circuit pursued prior im-

portant decisions and principles of this Court, the D. C.

Circuit and NLRB, and indeed the principles accepted

by it in its own Canada Dry case, and had it followed °

the command of Rule 52(a), Federal Rules of Civil Pro-

-cedure, it would have approved the district court’s find-

ings and conclusions with reference to the challenged

clauses and UMW’s objectives. Its failure so to do has

resuited in the Sixth Circuit's conflict therewith, there-

by inviting this Court’s award of certiorari herein.

I. UMW’S REPLY TO RESPONDENTS’ ARGUMENT

THAT UMW COERCED RIVERTON AND DAVESON,

AND THAT THERE IS NO CONFLICT WITH THE

CORONADO CASES, :

The 1964 Work Stoppage.

Facts and the district court’s findings and conclusions

with respect to the 1964 stoppage, found in tho ecrtiorari

petition (pp. 16-22), in the Sixth Circuit’s holdings with

reference thereto (Pet. 27-29) and argued thercin as a

predicate for this Court’s award of certiorari (Pet. 40-

43), are to be compared with facts (O.B. 9-14), district

court findings (O.B. 19-21), the Sixth Circuit’s holdings

with reference thereto (O.B. 21-22) and argument (O.B.

25-30) with respect to the 1964 stoppage. found in Re-

spondents’ opposition brief.” Relevantly, UMW directs

the Court’s attention that the district court found the

1964 stoppage’s design, purpose or object remained “job

protection” (A. 25a).

The 1966 Work Stoppage.

Facts and the district court’s findings and conclusions

°UMW concedes its error pointed out by Respondents (O.B. 26, fn. 3)

that the word in the quoted language therein is properly “in” rather

than “not”, as stated in the certiorari petition (p. 22).

14

with respect to the 1966 stoppage, found in the certiorari

petition (pp. 22-26) and the'Sixth Circuit’s holdings re-

lating thereto (Pet. 29-30) and argued therein as a

predicate for the award of certiorari herein (pp. 43-47),

are to be compared with facts (O.B. 14-16), district

court findings (O.B. 20), the Sixth Circuit’s holdings |

relating thereto (O.B. 21) and argument (O.B. 28-30)

_with respect to the 1966 work stoppage. found in Re-

-spondents’ opposition brief.

Even if District 17 is a UMW agent, UMW submits

‘that Respondents’ assertion (O.B. 27), “It is clear . .

that District 17’s officers and representatives, including

R. R. Humphreys and Emery McCoy, were acting as

agents of the UMW in 1964 and that UMW is respon-

sible for their actions” is a non sequitur, and UMW’s

discussion (Pet. 40-43) is a challenge to Respondents’

statement (O.B. 27), “On the basis of the substantial

evidence summarized above, directly linking the UMW

through its authorized agents with the 1964 strike, the

District Judge properly. found and concluded -that”

- UMW “in 1964 induced and encouraged individuals em-

ployed by the plaintiff to engage in a strike and a re-

fusal to perform services for Riverton in the course of

their employment and also threatened, coerced and re-

strained Riverton, as those words are used in 8(b) |

(4)(A) and (B)” (O.B. 27-28).

Contrary to Respondents’ claim that “There is no

conflict with the Coronado decisions” (O.B. 42), UMW’s

certiorari petition (pp. 41-45), dealing with the 1964

and 1966 work stoppages and UMW’s non-responsibility

therefor, demonstrates the Sixth Circuit’s conflict with

UMWA v. Coronado Coal Co., 259 U.S. 344, and Coronado

Coal Co. v. UMWA, 268 U.S. 295; and nothing in Re-

spondents’ brief (pp. 42:43) differs from UMW’s basic

15.

position that in a Section 303 action the ordinary rules

pertaining to the law of agency obtain.

_ Respondents’ opposition brief (pp. 42-45) is totally

silent concerning UMW’s charge that the Sixth Cir-

cuit’s opinion conflicts with Walters v. Int. Assn. of

Plumbers, 6 Cir., 323 F.2d 578, which rejected a judg-

ment against a parent organization because

“There is no evidence . . that [the parent organi-

zation! participated in any way in the placing of

the picket: or ratified the picketing”.

Nor is there Respondent contention of the inapplicability

of Harnischfeger Corp. v. Sheet Metal Workers, 6 Cir.,

436 F.2d 351 (1970)—a Section 303 action—which ap-

proved district court findings as “not clearly erroneous”,

which held, inter alia, “the International Union did not

authorize the picketing” and “the international repre-

sentative did not assert or claim to assert authority to

terminate the picketing” (436 F.2d 356).° :

Since Respondents premise UMW’s responsibility for

the 1964 work stoppage on the conduct of Emery McCoy,

District 17’s field representative (O.B. 10-11), the

Court’s attention is directed to the Fourth Circuit’s

United Construction Workers v. Haislip Baking Co.,

223 F.2d 872, which, in contrast to Respondents’ claim

herein, rejected the doctrine of imputed liability for the.

acts of a regional director and field representatives on

the ground that they did not have iraplied authority to

*Harnischfeger noted instances of a parent laber organization’s being

held liable where it “engaged in a joint enterprise with a local or

* responsible for the activities of the local and its agents”. or “when the

International admitted having joined the local in authorizing the gen-

eral conduct”, or “when the International through its constitution or

bylaws or by some other means commanded or required the activities

resulting im the unfair labor practices”. or “when the International

controlled the operations of the local” (436 F.2d 356). :

Unrefuted evidence herein is that neither District 17 nor UMW

had anything to do with the stoppage (J.A. 439).

16

adopt, on the parent union’s part, a “wildcat” “strike

conducted by a local union. Thus, UMW submits that

its cited authorities, and particularly its discussion of

Coronado ¢Pet. 44-45) in relation to the work stoppages

and UMW’s responsibility therefor, are apposite herein.

Respondents’ cited authorities to support their con-

tention that when Emery McCoy told union members

there was no contract, the statement was a “sional” for. .

strike action (O.B. 44, fn. 6), are discussed below:

_ Though U. S_ vy. Int. Union, UMW, DC, D.C., 1948, 77

F.Supp. 563, aff'd. D.C. Cir., 177 F.2d 29 (1949), held a °

functioning union to be responsible for its members’.

mass action, the instant case differs totally from the

factual situation therein where, in an industrywide

stoppage, the district court found the parent union

(UMW) responsible because it had provoked the strike.

There is neither plaintiff contention nor district. court

finding that in the instant case UMW authorized, particie

pated in, or ratified the 1964 stoppage so as to render

applicable U. S. v. Int. Union, UMW. Moreover, the

mass action theory may not be considered as a statement *

of principle in isolation from the factual situation, but

‘must be treated as cognate to the finding therein that

UMW had devised “a new method of avoiding responsi-

bility” by means of a “nod, or a wink, or the use of a

code in order to call a strike”. First Coronado rejects the

mass action theory, avowing responsibility “is a mere

question of actual agency” (259 U.S. 395).

Moreover, in U. S. v. Int. Union, UMW, DC, De.

1950, 89 F.Supp. 179, the district court, though recog-

nizing the mass action doctrine, refused to apply it, even

though, as herein, UMW failed to revoke local union

charters but, as herein, instructed its members to return

; 17

forthwith to work and there was an absence that strike

benefits had been used to aid striking miners.’

Resvondents misconceive (O.B. 44-45) UMW’s purpose

in citing UMW v. Gibbs, 383 U.S. 715 (1966) [Pet. 21.44]

which was in fact responsive to the Sixth Circuit’s

holding that UMW “did not undertake to discipline the

strikers” and “Its inaction was a form of influence and

persuasion”. UMW pointed (Pct. 44) to Gibbs’ holaing

that “There can be no rigid chal that a ution

disavow sirike epee ee -had not cuthorized.

YNACT bf p= re lire ay Ey | me be nr i.

UMW likewise directed attention (Pet. 44) to Mr. Justice

ee

Harilan’s concurrence in Gibbs that a union's failure “io

take a iriative aciion te disvel misconduct are not nm

theniseives proof. of authorization or ratifcaticn of the

wrondgdcing”’ (p. 743).

eo

Relovently; just as eer opposition brief contains no

response to the Gibbs quotations, the same is true of

UMW’s qustation (Pct. “14) from Int. Ladies Garment

Workers Union v. tues De -Ciws: 231 F220) 545.2552,

which cites frst Coronado (259 U.S. 395) as support for

its holding that there is no need. for cisavowing mis-

concuct by a party which has net initiated or participated

there'n and that “silence provides no rational basis for

inferring’ UMW acquiesced in the stoppages

Lewis y. Benedict Coal Co,, 6 Cir., 259 F.2d 346 (1958)

[modified on other grounds. 361 U.S. 459 (1930)] did not

involve the doctrine of “mass action” but made clear

that “w ldcat” strikes could not serve as a predicate for

a parent union’s liability. Benedict’s inapplicability is.

emphasized by the fact that it did not concern, as does

;

the instant case, unrefuted evidence affirmatively demon- -

"Sub. equently, the District of Columbia Circuit in U. S. v. Int. Union,

UMW; 190 F.2d 865 (1951) dismissed the action as “moot”.

18

strating efforts to have Riverton employees return and

continue to work (J.A. 1065-69), and uncontradicted

evidence that strike actiom was voluntary on the part of

Riverton employees (Pet. 16, et seq).

These same factors emphasize the inapplicability of

Vulcan Materials Co. v. Steelworke7s, 5 Cir., 430 F.2d

446 (1970), where the Fifth Circuit declared “It is

equally clear that the Unions, through their agents, in-

_duccd and encouraged the Vulcan employees to refuse

to royyrt to work ..” (p. 450).

Similarly inapposite is the Fourth Circuit's United

Textile Workers v. Newberry Mills, Inc., 315 F.2d 217

(1963). cert. den. 375 U.S. 818 (1963), where the union

contended the stoppage was a “wildcat” strike, under-

taken without union sanction and actively opposed by it,

its issue was whether the union could enforce arbitration

of discharged employees engaged therein; and the Fourth

Circuit held the employer's “argument against arbitra-

tion cannot prevail” and the union was exonerated of

liability. |

Notably, while the certiorari petition (p. 43) observed

the district court’s characterization of the two McCoys’

testimony as “less thay candid”, the certiorari petition

pointed to this Court’s C. & O. Ry. Co. v. Martin, 283

U.S. 209, 219-20, thai:

“It is not proper to submit uncontradicted

testimony to a [factfinder] for the sole purpose

of giving 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 the Tenth Circuit’s Browning v. Crouse, 356 F.2d

178, expresses ii thus:

19

“Unimpeached, positive testimony may not be

disregarded, even though adduced from inter-

- ested witnesses, and no question of credibility or

issue of fact ‘is presented for determination by

a trier of fact”.

Significantly, Respondents’ opposition brief makes

no challenge of the relevancy of these cases, nor is it

responsive to Petitioner’s citations of Moore v. C. & O.

Ry. Co., 340 USS. 573, 578, that “Speculation cannot

supply the place of proof” and Pennsylvania R. Co. y.

Chamberlain, 288 U.S. 333, 340-41, which precludes the

use of inferences as proof where there is “uncontradicted

testimony of unimpeached witnesses . . that the fact

sought to be inferred did not exist”.

UMW submits Respondents’ contention that the Sixth

Circuit's decision presents no conflict with Coronado is

erroneous and should be rejected.’ al

UMW’s certiorari petition (p. 46), challenging the

Sixth Circuit's reversal of the district court’s exonera-

tion of UMW for the 1964 and 1966 stoppages. notes the

Sixth Circuit's failure to dispute a single finding upon

which that exoneration was. based, including the dis-

trict court’s corroboration by the United States Denpart-

ment of Labor (Pet. 24). Since. as the certiorari petition

(pp. 22-24) shows, the Burean of Labor Statistics is

corroborative of UMW’s position and the district court’s

findings and conclusions that “With respect to the 1966

‘Since Reepondents’ opposition brief directed attention that the

Sixth Circuit found the 19*4 contract “‘was in effect a no-strike

contract’. so the 1966 strike like that in 1964 was in breach of con-

tract and also violated Section 8(d) of the Act” (O.B. 28), it ix crucial

that the Court note the district court's declaration that the instant

that. concerning the “no-strike contract”, its findings “had no effect

on the decision of this Court” [A. 30a (60)}. Indeed. neither in plead-

ings. the evidence nor in crguments did the issue of no-strike contract

strike, the district court concluded ‘there is no evi-

dence . . based on which this Court could say’ plaintiffs

maintained the burden of proving by a preponderance

that ‘District 17, or the defendant, either authorized or

ratified the 1966 strike at Riverton’ and that ‘There is

certainiy no connection whaterer between the 8%-cent

cleuse in either the 1964 or 1966 contract end the 1966

strili2’” (Pet. 25-26), it becomes .sigrificant that Re-

spondents’ apposition brief contzins no response thereto.

Pi w.« “d nd aa * * r8 t to ett-9 eet 4% > Sixt’ ' Crevit’s

s ef - 4 .%

rovercal on the basis that the district courts “ndings of

non sducoment or enceurs? wert wore “Ns sup ited

by Gon d are clearly erroncaus” by ming to

the Sixih C’reuit’s heiaine thot by TMSV's {allure to

‘ c- 6 > ? -« 4%. o“~ f 7 y ? ‘

en eeecpt ne? hencfhits in J em treroc. UMW “hereby

ied . 7 oe ; ey ‘ Pe té : hb *h ty : 1°44 and t! . 1956

tutte." ane ths j estes ere . TPteene ad -sneennde ’

str -", and that tine enm'y \: Riverton could t. rminate

, 7 i + ‘ **

s & : . + . -* ‘ 7 ¥ hich

- F

1. uA £ ia \ (G.! - . =

* . '. . ; 7 a ** ‘ Pied i

Rvs. te ‘us. be i > & PPPS L YS we: mm Pot udicial

re "4 . 7% *ti?T » a ° ~~ 90% ft i ° «+ ec a“ See

PoaGsS tC. es OF ae cert: wir neti yn f . & s-4: } 34as

asuntcont v saown. end os the Gist yt cour. i rr, &. W.

; -.- . tear ne OC. 1059 €9 F , -)

Jat, Vivien, UMW. ol. D.C... 1979 @S F Supp. 179. recog-

nizct (enie, p. it?. “orceve' Pespendents’ citation

of Teciasiers ¥. Hi ac.» Cir., 227 ¥.2d 231, is answered

by UMVW's showing (Pet. 4.) that the Sixth Circuit's

Hoerricebfeger pointed out thet Irmalzs “relied in vart

uror the provisions of the ‘nternati orl union's constitu-

tron in Eindirg thet th: ‘stopaaiionsl rorticts2: ec a

‘principal arting’ in the scecndary hye“! there ‘n cues-

tion” (436 F.26 355). indecd. Huwko emph.s- 27s that

‘the international union exorcised a degre2 of « ym inion

over the Iecal un-on. Cepriving it of tet degree oi inde-

21

pendence associated with autonomous organizations (287

F.2d 242), a situation which is totally dissimilar herein. -

Contrary to Respondents’ contention that UMW was

responsibie for the 1966 stoppage “because of its control

of and domination of its Locals, which have no real

autonomy” (O.B. 39, 43), under UMW’s Constitution,

local union officers are clected bx secret hellot of local

union members and are paid jrom dues allocaied to a

local union pursuant ‘to UMW’s Constitution (J.A. 424,

440). Regular local union meetings are scheduled pur-

suant to by-laws of local unions; and snecia!l meetings are

celled cither by the local union’s presi‘lent or members

thereof who request the calling cf such special meeting

(J.A. 616-04, 424, 440. 444).

Respondents’ effort to dissipate UMW's contention iat

the Sixth Circuit's holding cencernin

flicts with Hernischfegex and cther cited cases (Pet. 46:

0.3. 48, fn. 8),.on the premise, as Responcaents siated

that “None of the above decisions involve tic” UMW

is not of juridical relcvance. The Sixth Circuit, tne

Court will recall, grounded UMW respens'biiiiv for the

stoppages on the theory that “Local 1209 was not on

autonomous labor organization separate and apart for

UMW” and “an administrative arm” thereof and was

supervised, dominated and controlled by UMW (A. 75a).

Yet, each of the cited cases, including the Sixth Circu't's

Harnischfeger and Garmeada Coal Co. v. UMW, DC,

E.D. Ky., 1254, 122 F.Supp. 512. aff'd. 6 Cir.. 230 F.2d 945,

judicially proclaim a local union is a legal entity. apart

from its parent international organization. ~

“Respondents citations (O.B. 30) do not support their allecation of

UMW’s control over and domination of its locals (J.A. oe-ee. 436-44)

but, to the contrary, support UMW’s position of local union automony.

See Appendix A hereto for “Additional Findings santa Conclusions”

in the district courts’ Garmeada.

4

Respondents seek to disarm this Court by asserting

“The 1966 strike is of minor importance in the case”

(O.B. 30). It admits nonetheless that the Sixth Circuit

included in its award of damages $36,128.50 as attribu-

table to the 1956 strike. Hence UMW chailenges Re-

spondenis’ characterization of the 1966 strike as “of

minor importance’.

Tne tceregoing discussion emphasizes UMW’s reasons

(Pet. 47) for the award of certiorari herein.

IV. UMIWs REPLY CONCERNING THE SIXTH CIR-

CUIT’S FAILURE TO FOLLOW RULE 52(a), FED-

ERAL RULES OF CiVIL PROCEDURE.

UXMW’'s certiorari petition (p. 40) complains that the

Sixth Circuits reversal of district court findings that

the challenged clauses were permissive under the Act’s

Section 8(e) conflicts with Rule 52(a), Federal Rules.

Respondents undertake to avoid such failure on the

ground that the Sixth Circuit “relied on the findings, of

fact of the trial court” (O.B. 33, fn. 5); but, as already

shown (ante, pp. 8-10), those findings were wholly in-

complete and thus did not meet the Rule’s requirements

that “Findings of fact shall not be set aside unless clearly

erroneous’.

At variance with the Sixth Circuit’s action herein,

it implemented the Rule’s mandate in Harnischfeger

(436 F.2d $98).

Vv. UMW’'S REPLY TO RESPONDENTS’ CLAIM THAT

DAVISION IS A PROPER PARTY.

UMW’s certiorari petition (pp. 47-49) contains its posi-

tion that the Sixth Circuit holding that Davison is a

proper party plaintiff is erroneous. UMW believes: its

23

discussion therein suffices as an appropriate answer to

Respondents’ contrary claim (O.B. 36-38).

CONCLUSION

For the reasons assigned in its Petition for Certiorari

and herein, UMW (Pctitioner) prays that the Petition

for Writ of Cortiorari should be granted and that the

Writ issue to review ithe judgments and opinion of the

United States Court of Appeals for the Sixth Circuit

entered January 21, 1972. in Cases Nes. 71-1021 and

71-1022, as set forth in sa'd Petition. UMW (Petitioner)

intends to urge cach of the questions presented, even if

not specifically argued in ‘ts Petition or herein.

Respectfully submitted.

Epwarp L. Carey

HARRISON COMBS

900 Fifteenth Street. N. W.

Washington, D. C. 20005

E. H. Rayson

Valley Fidelity Bank Building

Knoxville, Tennessee 37901

‘e Rosert I. Doccett

"2222 Kroger Building

1014 Vine Street

Cincinnati, Ohio 45202

M. E. Borarsky

512 Kanawha Valley Building

Charleston, W. Va. 25301

Attorneys for Petitioner,

United Mine Workers of America

June 1, 1972