Opposition Brief — Ramsey v. United Mine Workers

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SUPREME COURT, U. 8.

OCT 9 1873

MICHAEL RODAK, JR..C

In THE -

Supreme Court of the United States

OctToBER TERM, 1973

No. 73-503

GEORGE Ramsey, et al.,

Petitioners,

Vv.

UNITED MINE WorKERS OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF OF RESPONDENT UNITED MINE

WORKERS OF AMERICA IN OPPOSITION

JOSEPH A. YABLONSKI

HARRISON COMBS

WILLARD P. OWENS

900 Fifteenth Street, N. W.

Washington, D. C. 20005

E. H. Rayson

Valley Fidelity Bank Building

Knoxville, Tennessee 37901

M. E. Botarsky

511 Kanawha Valley Building

Charleston, W. Va. 25301

Counsel for Respondent,

United Mine Workers of America

SS JARRETT PRINTING COMPANY, CHARLESTON, W. VA.

LPN. ae

ae Sas. ert We emer Nora e a LATOR SF te

INDEX _

TABLE OF CONTENTS

Page

NN TI. sinsiscssccsisiesinenissnlchoiiciabiamanits cceniadte nisi tenia 1

JURISDICTION AND BASIS FOR FEDERAL JURISDICTION

IN THE UNITED States District Court... 2

STATUTES AND RULES INVOLVED Pitekecatenaketaacee 2

COUNTERSTATEMENT OF QUESTIONS PRESENTED __ 2

COUNTERSTATEMENT OF THE CASE... ti (itsté‘t«S

A. LEGAL PRINCIPLES INVOLVED... «ss ss i iC

1. The Standard of Proof Enunciated in This

Court’s First Ramsey. __.

B. Kinp oF AcTION AND UMW’s DEFENSES

1. Kind of Action

2. UMW’s Defenses .

C. First RAMSEY RULINGS .

1. In First Ramsey the District Court Exoner-

ated UMW of Any Sherman Act Conspiracy

a. Evidence of matters other than PWC ___-

b. The district court validated PWC under

the facts and the Sixth Circuit’s ~~

in first Pennington _ 9

2. The Sixth Circuit Divided Evenly on the

Standard of Proof Required to Prove a

Sherman Conspiracy _. oe

3. This Court’s First Ramsey 7 . 14

D. In SEconp Ramsey, APPLYING THE PREPONDER-

ANCE RULE, THE DistRIcT CourT EXONER-

NO oan

a4)

Page

ATED UMW or Any SHERMAN Act Con-

SPIRACY ae . &

1. The District Court Denied Petitioners’ Mo-

tion to Reopen... dient at

2. The District Court’s Second Ramsey aan

ion and Judgment... pee 15

a. The district court’s second Ramsey con-

cluded that its first Ramsey findings

were correct, even under the cunamoagl

ance rule... Raia eNerictieden arcane aa

b. The district court’s second Ramsey vali-

dated PWC’s language 7 _. 16

c. The district court’s second Ramsey,

under the preponderance rule, rejected

the contention of an implied agreement 17

d. The JICC minutes and the Moody depo-

sition conclusively support the district

ee

The JICC Minutes __ 19

The Moody Deposition ——

E. THe SrxtH Crrcurt’s SECOND RAMSEY RULINGS 24

ARGUMENT ...——ss—.... & pees 26

I. THERE Is No SUBSTANTIAL FEDERAL QUESTION

|, eee x ee?

A. Contrary to Petitioners, the Sixth Circuit

Majority and the District Court Alike Com-

plied With This Court’s Remand in First

Ramsey

Page

B. The Sixth Circuit Majority Correctly Held

That the District Court’s First Ramsey

Statement Concerning the Preponderance

Rule Did Not Constitute the Law of the

Case 28

C. The Sixth Circuit Majority Correctly Held

That the District Court’s Findings of Fact

Exonerating UMW of a Sherman Conspir-

acy Are Supported by Substantial Evidence

and Are Not Clearly Erroneous 30

1. The Sixth Circuit majority properly

validated PWC’s language and rejected

Petitioners’ “New Theory” 31

2. Second Ramsey correctly held the evi-

dence failed to establish an implied

agreement 33

3. The Sixth Circuit’s holding that the

district court’s second Ramsey findings

of fact are supported by substantial

evidence and are not clearly erroneous

are warranted under applicable law and

the preponderance of evidence... 35

D. The Sixth Circuit Majority Properly Ap-

proved the District Court’s Refusal to

Admit in Evidence Petitioners’ Proffered

Exhibits and Depositions 37

Petitioners Concede They Have No Fur-

ther Evidence to Offer... . 38

E. There Is No Conflict Between the Sixth

Circuit Majority’s Holding and the Third

Circuit’s Solar Fuel Case...» ===> 39

iii

Page

F. Petitioners Seek This Court’s Review of

Evidence Which Both the District Court

and the Sixth Circuit Majority Have Held

Did Not Support the Charge That UMW

Conspired in Violation of the Sherman Act 40

CONCLUSION 41

TABLE OF CASES

Adams Dairy Co. v. St. Louis Dairy Co., 8 Cir., 260

F.2d 46 ee

Allen Bradley Co. v. Union, 325 U.S. 797, 806, 809,

811 5, 14, 32

Banco Nacional de Cuba v. Farr, 2 Cir., 383 F.2d 166,

177 (1967) 29

Barney v. Winona, etc. R.R. Co., 117 U.S. 228... 29

Byrd v. Blue Ridge Rural Electric Cooperative, 356

U.S. 525, 540 (1958) 28

Great Northern Ry. Co. v. Delmar Co., 283 U.S. 686,

691 12

In re: Clemens, 6 Cir., 472 F.2d 939, 941, n. 1 (1972) 37

J. W. Bateson Co., Inc. v. Romano, 6 Cir., 266 F.2d

360, 362. 39

Lewis, et al. v. NLRB, D. C. Cir., 350 F.2d 801_. 30

Lewis v. Pennington, DC, E.D. Tenn., N.D., 1966,

257 F.Supp. 815, 862 31, 36, 37

Lewis v. Pennington, 6 Cir., 400 F.2d 806, 814 (1968),

cert. denied 393 U.S. 983 rehearing denied, 393

U.S. 1045 (1969) 12, 25, 31, 33, 36

iv

AERA AY ook LC ath IIR ES OS

‘gS

eee ee CE AD BERTI I PL AI EN

Page

Local 357, Teamsters v. NLRB, 365 U.S. 667,676. 31

NLRB v. McGahey, 5 Cir., 233 F.2d 406... 31

NLRB v. News Syndicate Co., 365 U.S. 695, 699___. 31

NLRB v. Rockaway News Supply Co., 345 U.S. 71,

78, 79 34, 35

Perry Coal Co. v. NLRB, 7 Cir., 284 F.2d 910,914... 12

Ramsey, et al. v. The UMWA, DC, E.D. Tenn., S.D.,

1967, 265 F.Supp. 388, 404, 406, 407, 408, 409, 410,

412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422,

423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433,

MN coticoiccsece aenctnatens 1, 3, 4, 7, 8, 9, 12, 13, 15, 16, 17, 18,

25, 27, 28, 29, 30, 31, 35, 36, 37

Ramsey, et al. v. UMWA, DC, E.D. Tenn., S.D., 1972,

344 F Supp. 1020__....__ 1, 6, 15, 16, 17, 18, 19, 26,

28, 30, 31, 35, 37, 38, 40

Ramsey, et al. v. UMWA, 6 Cir., 416 F.2d 655, 657,

670, fn. 3 (1969)_.1, 2, 4, 13, 15, 17, 24, 25, 29, 31, 33, 36

Ramsey, et al. v. UMWA, 6 Cir., 83 LRRM 2545,

2546, 2547, 2548, 2549, 2550, 2551, 2552, 2553,

2554, 2555, 2556, 2557, 2558, 2559 2560, 2561

NAR ie Sort MRA 2, 24, 25, 26, 27, 28, 30, 31,

33, 35, 36, 37, 38, 39, 40

Ramsey, et al. v. UMWA, No. 1179, October Term,

I IN aie echaniccocdin cs ee actuaries nese 8, 27

Ramsey, et al. v. UMWA, No. 88, October Term,

1970, 401 U.S. 302, 304, 305, 308, fn. 5, 309, 312,

313, 314 (decided February 24, 1971)_____.3, 4, 5, 6, 14,

15, 26, 27, 29, 31, 32, 33, 39

Solar Fuel Co. v. UMW, DC, W.D. Pa., 1972, 346

F.Supp. 789, aff’d., 3 Cir., 478 F.2d 1401 — 6,

BIE | sk iret siecceicdaniacialae tcp amauta sae .

Vv

PEEP ERI IME IH i kk a nil EEE ROR AE SOY mes A CPE EF

LANES OR DY PIR PE ET OT ay

15" IATL LI IM IES:

Page

South East Coal Co. v. Consolidation Coal Co., 6 Cir.,

434 F.2d 767 (1970) 19

Suburban Tile Center, Inc. v. Rockford Bldg. and

Construction Trades Council, 7 Cir., 354 F.2d 1, 3,

cert. denied, 384 U.S. 960,385 U.S.490......... «30

UMW v. Pennington, 381 U.S. 657, 661, 662, 664,

665, fn. 2, 666, 667, 668, 669___..___4, 8, 14, 32, 33, 37

U. S. v. General Motors Corp., 384 U.S. 127, 141,

142, fn. 16 (1966) 37

U. S. v. Gypsum Co., 333 U.S. 364, 394 36

U. S. v. Johnston, 268 U.S. 200, 227 40

W. A. Boyle, et al., 179 NLRB 479 30

STATUTES

Clayton Act 2, 5, 7, 16, 32, 33

Section 4 (15 USCA 15) 2

Section 6 (15 USCA) 17) 2,7

Section 20 (29 USCA 52) 2,4, 7

Labor Management Relations Act, 1947,AsAmended

(Taft-Hartley Act) 2, 30, 34

29 USCA 141 2

29 USCA 151 2

29 USCA 157 2

29 USCA 158(b) 2

29 USCA 158(e) 2, 30, 34

Landrum-Griffin Act. 13, 22

Norris-LaGuardia Act (29 USCA 101, et seq)__.__.2, 4, 5,

7, 12, 13, 32 33

Section 2 (29 USCA 102) 2

vi

Page

Section 4 (29 USCA 104) ) 2, 4°

Section 6(29 USCA 106) 2, 4, 12, 13

Sherman Antitrust Act (15 USCA 1-7)____2, 3, 4, 5, 7,

8, 9, 13, 14, 15, 16, 27, 30, 32, 33

Section 1 (15 USCA 1) 2, 3, 5

Section 2 (15 USCA 2) 2, 3,5

RULES

Federal Rules of Civil Procedure:

Rule 52(a) 2, 3, 36, 37

Rule 61 2, 26, 39

MISCELLANEOUS

5 Am. Jur. 2d, Appeal and Error, §753, pp. 196-7. 29

5 Am. Jur. 2d, Appeal and Error, §955_ 29

INDEX TO APPENDIX

Appendix A:

Rule 52(a), Federal Rules of Civil Procedure._____—»«_ la

Rule 61 la

In Tue

Supreme Court of the United States

Octroser Term, 1973

No. 73-503

GeorcE Ramsey, et al.,

Petitioners,

v.

UniTep Mine Workers OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF OF RESPONDENT UNITED MINE

WORKERS OF AMERICA IN OPPOSITION

OPINIONS BELOW

The certiorari petition accurately notes (p. 5) that

“This is the second appeal in these two cases”. The dis-

trict court’s' opinion in first Ramsey (Ramsey, et al. v.

The UMWA) is found in 265 F.Supp. 388, while the

district court’s opinion in second Ramsey (Ramsey, et al.

v. UMWA) dismissing the complaints appears in 344

F.Supp. 1029.

The Sixth Circuit’s’ first Ramsey (Ramsey, et al. v.

UMWA) [a split decision of the full Court] is found in

‘The United States District Court for the Eastern District of Tennes-

see, Southern Division (at Chattanooga), District Judge Frank W.

Wiison presiding, is referred to as “district court”.

*The United States Court of Appeals for the Sixth Circuit is referred

to as “Sixth Circuit”.

416 F.2d 655 (the affirming opinion, per Circuit Judge

Edwards, at pp. 656-67, with the dissenting opinion of

Circuit Judge O’Sullivan at pp. 667-76), while the Sixth

Circuit’s opinion in second Ramsey (Ramsey et al. v.

UMWA) affirming the complaints’ dismissal appears in

83 LRRM 2545 (the affirming opinion of Circuit Judge

Edwards at pp. 2545-54 and the dissenting opinion of

Circuit Judge Weick at pp. 2554-61). It is unreported

in the Federal Reporter.

JURISDICTION AND BASIS FOR FEDERAL JURIS-

DICTION IN THE UNITED STATES DISTRICT COURT

Jurisdictional requisites are adequately set forth in

the certiorari petition (p. 3).

STATUTES AND RULES INVOLVED

The certiorari petition (p. 5) correctly lists the statu-

tory provisions involved as being Sections 1 and 2, Sher-

man Antitrust Act (15 USCA 1, 2); Sections 4 and 6,

Clayton Act (15 USCA 15, 17); Section 20, Clayton Act

(29 USCA 52); Sections 2, 4 and 6, Norris-LaGuardia Act

(29 USCA 102, 104 and 106); and the Labor Management

Relations Act, 1947 [29 USCA 141, 151, 157 and 158(b)

and (e)].° Also involved are Rules 52(a) and 61, Federal

Rules of Civil Procedure.“

COUNTERSTATEMENT OF QUESTIONS PRESENTED

UMW does not accept the Statement of Questions

Presented, as set forth in the Petition (p. 4). In lieu

thereof, UMW submits the following:

These statutes are herein called Sherman, Clayton, Norris-

Laguardia and Taft-Hartley, respectively, and are found in the certio-

rari petition in Appendix D, at pp. 115-28.

“Rules 52(a) and 61 are found in Appendix A to this brief.

1. Did the Sixth Circuit properly hold that the district -

court on remand was not bound by its previous statement

that if it were trying the case under the preponderance

of the evidence rule, it would conclude that UMW had

impliedly entered a conspiracy and that such statement

did not constitute the law of the case?

2. Did the Sixth Circuit and the district court, under

applicable law and the evidence, properly hold that the

Protective Wage Clause contained in the National Bitu-

minous Coal Wage Agreement of 1950, As Amended

Effective December 1, 1958, did not constitute a violation

of the Sherman Act?

3. Was the Sixth Circuit’s affirmance of the district

court’s dismissal of the antitrust claims proper under

Rule 52(a), Federal Rules of Civil Procedure?

4. Did the Sixth Circuit properly approve the district

court’s refusal to receive in the record the additional

exhibits and deposition tendered by Petitioners on their

motion for opening the record for additional evidence?

COUNTERSTATEMENT OF THE CASE

A. LEGAL PRINCIPLES INVOLVED

The legal guidelines involved respecting liability of

labor unions under the Sherman Act (15 USCA 1, 2)

appear in the district court’s first Ramsey,’ which con-

tinue to be applicable herein, except as corrected by this

Court’s first Ramsey (Ramsey, et al. v. UM WA, 401 USS.

302 (1971)].

ae et al. v. The UMWA, DC, ED. Tenn., S_D., 1967, 265 F.Supp.

4

1. The Standard Of Proof Enunciated

In This Court’s First Ramsey

Though UMW v. Pennington, 381 U.S. 657, held Clay-

ton’s Section 20 and Norris-LaGuardia’s Section 4 “per-

mitted a union, acting alone, to engage in the conduct

therein specified without violating the Sherman Act”

(pp. 661-62) and announced (p. 665) that forfeiture of

a labor union’s exemption from antitrust laws results

only when it is clearly shown” the union has entered

into an extra-unit agreement, this Court’s first Ramsey

(Ramsey, et al v. UMWA, 401 U.S. 302), in a 5-4 opinion,

reversed the holdings of both the district court* and the

affirming opinion of the Sixth Circuit’ that the “clear

proof” standard applies to an action wherein a labor or-

ganization is sought to be charged with a Sherman Act

violation and held Norris-LaGuardia’s Section 6’s “clear

proof” use limited to issues relating to “the Union’s au-

thorization, participation in or ratification of the acts

allegedly performed on its behalf”, but held the prepond-

erance rule applicable to “factual issues concerning the

commission vel non of acts by union officers or by mem-

bers alleged to constitute a conspiracy, or the inferences

to be drawn from such acts, or concerning overt acts in

furtherance of the conspiracy, the impact on the relevant

market or the injury to plaintiffs’ businesses” (401 U.S.

309).

Stating the issues to be whether UMW conspired “with

various coal producers to drive” Petitioners “out of busi-

ness” (401 U.S. 304), this Court’s first Ramsey adhered to

first Pennington’s holding (381 U.S. 664) that there is

no liability under the antitrust laws when a labor organi-

zation concludes “a wage agreement with a multi-em-

*Ramsey, et al. v. The UMWA, DC, E.D. Tenn. S.D., 1967, 265

F.Supp. °

388.

7Ramsey, et al. v. UMWA, 6 Cir., 416 F.2d 655 (1969).

=

Ne ATL tae ARES a,

NG

ployer bargaining unit . . and . . as a matter of its own

policy, and not by agreement with all or part of the

employers of that unit, seek(s) the same wages from

other employers” (401 U.S. 312-13) and reaffirmed its

holding in Allen Bradley Co. v. Union, 325 U.S. 797, that

(401 U.S. 313):°

“unilateral conduct by a union of the type pro-

tected by the Clayton and Norris-LaGuardia Acts

does not violate the Sherman Act even though it

may also restrain trade ‘[T]hese congressionally

permitted union activities may restrain trade in

and of themselves. There is no denying the fact

that many of them do so, both directly and indi-

rectly’. But ‘the desirability of such an exemption

of labor unions is a question for the determination

999

of Congress’ ”’.

B. KIND OF ACTION AND UMW’S DEFENSES

1. Kind Of Action

Petitioners are 18 coal producers in southeastern Ten-

nessee” who sued the United Mine Workers of America

(UMW), seeking damages for an alleged violation of

Sections 1 and 2 of the Sherman Antitrust Act (15 USCA

1, 2). While the certiorari petition (p. 5) accurately

recites that “This is the second appeal in these two cases,

which were tried without a jury on the same record”,

the first appeal concerned only determination of the

appropriate standard of proof required to prove a Sher-

man conspiracy.

As this Court’s first Ramsey (401 U.S. 304) recites,

Petitioners accused UMW of violating Sherman by con-

spiring with various coal producers to drive Petitioners

®Unless otherwise indicated, all emphases are supplied.

*Petitioners herein (called “Petitioners” or “Companies”, except

as substituted and, further, as to Marshall Meeks (not a Petitioner

herein) were Petitioners in this Court’s No. 88, styled Ramsey, et al.,

oo v. UMWA, decided February 24, 1971, and reported in 401

Eee re ee

Se ee ee

6

out of business by expressly or impliedly agreeing with

“major producers to impose . . the National Bituminous

Coal Wage Agreement (NBCWA), first executed by the

Union and certain coal companies in 1950, on all coal

mine operators, knowing that small and nonmechanized

operators would be unable to meet the contract’s terms”,

the alleged conspiracy’s purpose being “to eliminate the

marginal operators, control production, and reserve the

market for larger concerns” (401 U.S. 304).

Petitioners claim, declared this Court’s first Ramsey, of

express agreement rested on the Protective Wage Clause

(PWC) added to the National Agreement by amend-

ment in 1958 and that a conspiratorial arrangement

between UMW and major operators could be implied

from PWC, the course of negotiations between the two

from 1950 forward, the ensuing organizational and strike

activity against Petitioners and other southeastern Ten-

nessee operators aimed at securing agreement to and

compliance with the National Agreement as amended

from time to time, as well as UMW’s purchase of a con-

trolling interest in West Kentucky Coal Company and

the latter’s allegedly predatory pricing in the TVA coal

market (401 U.S. 304-05).

Upon this Court’s reversal and remand (post, p. 15),

the district court’s second Ramsey (Ramsey, et al. v.

UMWA, DC, E.D. Tenn., S.D., 1972, 344 F.Supp. 1029)

stated its duty was to “reconsider and reweigh each ele-

ment of evidence”, applying the appropriate standard

enunciated in this Court’s first Ramsey (Pet. 87; ante,

p. 4).

2. UMW’s Defenses

Summarized, UMW’s contentions are: UMW denied

the conspiracy charges. It asserted UMW is a labor

0 EA mew a el Ener, ag RL INA 5 »

organization within Clayton’s Section 6, that by virtue '

of Clayton’s Sections 6 and 20 (15 USCA 17, 29 USCA

52) and the Norris-LaGuardia Act (29 USCA 101

et seq.), the negotiations and execution of agreements by

UMW and its acts and conduct in connection with the

enforcement thereof do not constitute a Sherman viola-

tion. It further asserted all agreements were obtained

by its independent efforts, acting unilaterally and in its

own self-interest, free of alliance or combination with

any employer or groups of employers for a predatory,

anticompetitive purpose and that its acts were motivated

by legitimate labor goals to secure uniformity of labor

standards of wages and working conditions for its

members,

C. FIRST RAMSEY RULINGS

1. In First Ramsey The District Court Exonerated UMW

Of Any Sherman Act Conspiracy

a. Evidence of matters other than PWC

The district court’s first Ramsey exonerated UMW of

any Sherman conspiracy in the 1950-58 period. Noting

UMW’s consistent policy and goals since 1890 to establish

uniformity of wages and labor standards, its consistent

opposition to wage-cutting to meet competition, and the

uncontradicted denials of the conspiracy charge, the dis-

trict court exonerated UMW from the conspiracy charge

that the 1950 contract was conspiratorial, finding it was

“negotiated under intense national interest, intense pub-

licity, and intense supervision by and pressure from the

Federal Government” (265 F.Supp. 406). It rejected

Petitioners’ contention that peaceful bargaining in the

post-1950 period evidenced a conspiracy and refused to

read a Sherman conspiracy into the UMW-BCOA (Bitu-

minous Coal Operators Association) negotiations in

negotiating and executing the 1950, 1952, 1955 and

CALI RER Ree ene

SE Fae ee ee

8

1956 contracts, declaring (265 F.Supp. 408), “That

these more peaceful procedures suggest a Sherman Act

conspiracy . . is not reasonably to be inferred”, and “A

contrasting peaceful and orderly pattern of collective

bargaining following a prior pattern of industrial war-

fare and strife does not become suspect nor serve as an

evidentiary predicate for a Sherman Act conspiracy

charge”.

The district court refused to infer a conspiracy on the

basis of the wage scale negotiated in 1950, avowing to

do so engages “in unwarranted speculation” and disre-

gards UMW’s undeniable right, consistent with first

Pennington not to “gear its wage demands to wages

which the weakest unit in the industry can afford to pay”

(265 F.Supp. 407).

Of economic pressures resultant from wage increases

and mechanization, the district court declared (265 F.

Supp. 409), “economic pressures created by technologi-

cal advances and the competition engendered thereby do

not equate to a Sherman Act violation. Upon the con-

trary, the Sherman Act is designed to keep the market

open so that such competitive pressures may operate.”

The district court’s analysis led it to declare it unable

“to infer” any Sherman conspiracy in the 1950-58 period

(265 F.Supp. 410)."°

Likewise, in first Ramsey the district court rejected

evidence of events in southeastern Tennessee coal fields

and pricing of coal upon the TVA market as proving a

Sherman conspiracy (265 F.Supp. 412-34). Relevantly,

the district court’s conclusion, viewing the evidence as a

'°Page references supporting the district court’s first Ramsey find-

ings are to be found in UMW's Opposition Brief to the Petition for

Writ of Certiorari in this Court’s No. 1179, October Term, 1969, in

footnotes on pp. 6-7.

MN ae aed aU EPRI “BE.

whole, was that Petitioners “woes and misfortunes” are '

explicable by many factors not demonstrative of a Sher-

man conspiracy (265 F.Supp. 434), which included pyra-

miding of leases with resulting increased royalty or

rental payments, adverse geological conditions, under-

capitalization with the resulting attempt to mine coal by

antiquated methods in an era when not only coal but all

fuel energy is produced on a mechanical and mass pro-

duction basis (265 F.Supp. 434), management policies,

the nature of the TVA coal market, lax practices and

attitudes upon the workers’ part and collective bargain-

ing as practiced in the field (265 F.Supp. 424).

b. The district court validated PWC under the facts and

the Sixth Circuit's ruling in first Pennington

The record establishes that PWC (Pet. 7-8) had its

genesis in 1943 contract negotiations when UMW sought,

and the National War Labor Board directed, that each

agreement contain a clause to protect the contract and

preserve the interests of the miners (935a)."' It read:

“operators agree that they will not let any operating

mines subject to this agreement as a subterfuge” to avoid

the Agreement’s provisions (936a). A 1943 labor agree-

ment, negotiated by the Secretary of the Interior and

"The filed record includes 3 sets of appendices in the Sixth Circuit:

(1) 3 volumes of Plaintiffs- ppstionts in Cases Nos. 17,878 and

(2) 3 volumes of Defendant-Appellee (UMW) and a type-

written “Defendant-Appellee’s Supplemental Appendix”, Pages

1339-40b, reference to which will be by page numbers followed

by the letter “b”,

meee ta me ee.

10

known as the Ickes-Lewis Agreement, contained an

identical clause (938a). Subsequent agreements nego-

tiated annually from 1943 through 1951 carried the anti-

lease clause (938-39a).

The clause was expanded in the 1952 amendment to

the 1950 Agreement when signatory operators agreed

that:

“operators signatory hereto agree that this agree-

ment covers the operation of all of 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 (during the term of this

agreement) be put into production. The said

operators agree that they will not lease out any

coal lands as a subterfuge for the purpose of avoid-

ing the application of this agreement” (940a).

This same language was carried forward in the 1955, 1956

and 1958 Agreements (935-41a).

For six years following the 1952 Agreement’s execu-

tion, UMW believed signatory operators were “chiseling”

on the contract (941a).

During negotiations for the 1958 Agreement, UMW

proposed, and BCOA rejected, a protective wage clause.

A revised proposal on November 25, 1958, accompanied

a letter setting forth the clause’s purpose and the reasons

therefor: “. . . it has become mandatory that the union

find a way in which to protect its members employed in

the .. . industry against the ever-encroaching evils and

practices of subcontracting, the production and procure-

ment of coal not mined in accordance with the wage

scales and other terms and conditions of the national

agreement, and other companion evils flowing there-

from” (943a). Continuing, the letter recited: “Sub-

SPI LIEN

2 ART AE TSO SLR SAN SINS SRENE BOI 9 NE 5 SHO PPAR MRatE I Plc. aoge:

11

contracting by signatory operators is nothing more than:

pure evasion of their contractual obligation to pay and

maintain the agreed standards of wages and ... vitally

affects our members because it progressively undermines

our members’ tenure of employment and results in re-

‘moving and withdrawing from them more and more

work and hence more and more jobs are lost to them”

(943a). The letter charged, “many signatories of the

present national agreement, indeed members of your

own association, have been, and presently are, guilty of

such nefarious practices”, thereby becoming assisting

parties “to those who seek to debase and lower our

standard of wages, hours, safety requirements, work

opportunities and other benefits” which UMW members

are entitled to have protected (943a).

Agreement reached on PWC required coal mined, pro-

duced, prepared, procured or acquired by signatory oper-

ators shall be mined under labor standards as favorable

to employees as those in UMW’s contract (944a). UMW’s

John L. Lewis announced that labor standards and job

opportunities to which UMW members are contractually

entitled have been achieved after long years, and UMW

seeks to safeguard these by PWC (945a). Reluctantly,

BCOA agreed, to avoid an interruption in the supply of

coal (947a).

Operators complained UMW was not enforcing con-

tracts already signed among particular signatories, caus-

ing them to ask UMW for a reciprocal contractual com-

mitment, and UMW’s senior counsel testified that UMW

acquiesced it would enforce the Agreement as to all

signatories thereto equally (1029a).

There are undisputed positive denials that UMW en-

tered into any agreement other than the collective bar-

PEARS OIE PSO CC AT

PELL ARE IG SIE A ENR RRR ise

ADS gio.

12

gaining agreement (824a, 1029a). Uncontradicted evi-

dence of UMW witnesses shows UMW free to negotiate a

labor agreement at variance with the National Agree-

ment (508a, 636-37a, 1034a). Consistent testimony of

George H. Love for management (825a), denied there

was any agreement on UMW’’s part to impose the nego-

tiated agreement upon any other group of employers.

Consistent with the Sixth Circuit’s second Pennington

(Lewis v. Pennington, 6 Cir., 400 F.2d 806, 814 (1968)],

the district court approved the legal principle that

“Where two reasonable constructions of a written con-

tract can be made, preference is given to that construc-

tion . . that does not result in a violation of law”, citing

Great Northern Ry. Co. v. Delmar Co., 283 U.S. 686, 691,

and Perry Coal Co. v. NLRB, 7 Cir., 284 F.2d 910, 914.

Though the district court’s first Ramsey held that

PWC did not constitute an express commitment by UMW

to BCOA “not to bargain with any other coal operator”

upon terms other than the National Agreement, it posed

the quaere whether UMW “did in fact, though not ex-

pressly, so contract with” BCOA (265 F.Supp. 412).

Implementing the standard of proof found in Norris-

LaGuardia’s Section 6 (29 USCA 106), the district court

held the record “does not establish such clear and

unequivocal proof as to warrant the Court in finding”

UMW “pursued its policy of uniformity of wage and

labor standards by agreement with one or more em-

ployers, as distinguished from pursuing such policy on

its own” (265 F.Supp. 412). Further, it declared, “The

only direct evidence in the record is to the effect that the

Union pursued such policy upon its own, and not in

agreement with any employer” (p. 412).

Of PWC’s Paragraph B., the district court said it “has

ee - “Se

13

to do with the obligation of the operators in regard to

subcontracting and leasing”, while PWC’s subsequent

paragraphs “have to do with the functioning of a joint

industry contract committee in disposing of reported

cases of violation” of PWC (p. 410).

PWC was not to become effective until April, 1959. It

was never enforced (88la). Originally delayed by

mechanics of setting up the Joint Industry Contract Com-

mittee (JICC), created by PWC, its activities were sus-

pended on November 4, 1959 because of doubt concern-

ing its legality under the Landrum-Griffin Act which

barred “hot cargo” clauses (947-48a). PWC was specifi-

cally eliminated from the 1964 Agreement dated March

23, 1964 (477a, 493a, 1030a). JICC was dissolved March

31, 1964 (884a).

2. The Sixth Circuit Divided Evenly On The Standard Of

Proof Required To Prove A Sherman Conspiracy

The district court’s judgment was affirmed by an

equally divided court, the affirming opinion agreeing

with the trial court that Norris-LaGuardia’s Section 6

reyuired “clear proof”, with the dissenting judges in-

sisting that the ordinary preponderance of evidence

standard was applicable in civil antitrust actions against

labor unions [Ramsey v. UMW, 6 Cir., 416 F.2d 655

(1969)]. Notably, the dissent made clear that the dis-

senting judges “do not reach consideration of whether

the District Judge’s findings were ‘clearly erroneous’.

We hold only that the ‘clear proof’ standard which the

Judge applied in making his findings was improper”

(416 F.2d 670, fn. 3). The standard of proof to which

Norris-LaGuardia’s Section 6 did and did not apply has

already been related (ante, p. 4).

rer ivee eee OST RINE

ree ee ee

PRY

M4

3. This Court’s First Ramsey

This Court’s first Ramsey adhered to first Pennington’s

holding (381 U.S. 664) that there is no liability under

the antitrust laws when a labor organization concludes

“a wage agreement with a multi-employer bargaining

unit . . and . . as a matter of its own policy, and not by

agreement with all or part of the employers of that unit,

seek(s) the same wages from other employers” (401 US.

312-13) and it reaffirmed its Allen Bradley holding (ante,

p. 5), following which this Court declared

“But neither do we retreat from the ‘one line

which we can draw with assurance that we follow

the congressional purpose. We know that Con-

gress feared the concentrated power of business

organizations to dominate markets and prices . .

A business monopoly is no less such because a

union participates, and such participation is a

violation of the Act’. Id., at 811 . . Hence we

also adhere to the decision in Pennington: ‘{Tlhe

relevant labor and antitrust policies compel us to

conclude that the alleged agreement between

_ UMW and the large operators to secure uniform

labor standards throughout the industry, if

proved, was not exempt from the antitrust laws’.

381 U.S. 669, . . Where a union, by agreement

with one set of employers, insists on maintaining

in other bargaining units specified wage standards

ruinous to the business of those employers, it is

liable under the antitrust laws for the damages

— by its agreed-upon conduct” (401 US.

13).

Additionally, this Court, urged to construe PWC as

itself being an illegal bargain for which UMW is not

exempt under Sherman, rejected Petitioners’ position

because it found “no reference to this aspect of the case

in” opinions of the lower courts and deemed “it inappro-

priate to consider it in the first instance” (401 US. 312).

Der eee aio +

15

It reversed the Sixth Circuit’s judgment and remanded’

“the case for further proceedings consistent with this

opinion” (401 U.S. 314).

D. IN SECOND RAMSEY, YING THE PREPO

R DISTRICT COURT EXO UMW OF ANY

ACT CO cY

Petitioners moved, over UMW objections (J.A. 180-

82a), to reopen the record for “Additional Evidence on

the Issue of Liability”, attaching JICC minutes under

PWC and depositions of Joseph E. Moody, formerly

Southern Coal Producers Association president and then

president of BCOA (J.A. 19-179a). The District court

denied the motion to reopen the proof, noting “The Court

has read and considered all” of the proffered evidence

and that, though voluminous, the additional proof “is in

very substantial measure cumulative to the proof offered

upon the trial” and “offers no new theories of liability”

and “no significant alteration of the evidence as pre-

sented upon the trial” (J.A. 200a).

2. The District Court’s Second Ramsey

Opinion and Judgment

Noting it made “a full review of the record upon the

trial of the case, . . re-studied the original trial briefs’,

“read and considered the evidence submitted upon”

Petitioners’ “offer of proof in support of their motion to

reopen”, the district court declared “nothing in this re-

study of the record has revealed . . any error in the state-

ment of proven facts . . in its former opinion in 265

F.Supp. 388” and that “the Court remains of the view

that the facts, other than those to be inferred, and other

than as may be supplemented herein, are correctly set

forth in its former opinion” (Pet. 85). It therefore

PIR VTA

a EP RET TSN I OR eRe CTD RSS Ps

Tee ae ee ew

P

SEY SER AIS SILT ET BIE: SO A aa aera

16

adopted its former opinion “except as it may be expressly

corrected or supplemented in this opinion” (Pet. 85)

and, on June 30, 1972, by final judgment, denied Peti-

tioners’ motion to be allowed to reopen the proof and

dismissed the “causes of action alleged” under Sherman

and Clayton “with prejudice” but with costs against

Petitioners (J.A. 204-05a).

Subsequently, the district court denied Petitioners’

motion to clarify findings of fact and conclusions that

PWC is illegal under UMW’s construction of PWC’s

Paragraph A, to which UMW had objected (J.A. 209a).

a. The district court’s second Ramsey concluded

that its first Ramsey findings were correct,

even under the preponderance rule.

Under the preponderance rule, second Ramsey, as in

first Ramsey, exonerated UMW from any conspiratorial

conduct in the 1950-58 period (ante, pp. 7-9). Like-

wise, under the preponderance rule and treating the

evidence as a whole, second Ramsey sanctioned first

Ramsey’s conclusion with reference to activities in the

southeastern Tennessee coal field and the pricing of coal

on the TVA market (Pet. 95-96). Second Ramsey’s final-

izing paragraph reads:

“There is an absence of direct evidence of a

conspiracy in this case”

and

“For the reasons stated in this and its former

opinion, the Court is of the opinion that there is

an insufficiency of indirect evidence to establish

a conspiracy, even when viewed in light of the

preponderance of the evidence rule” (Pet. 102).

b. The district court’s second Ramsey

validated PWC’s language.

In light of directions given upon the Supreme Court’s

remand, the district court declared it “appropriate to

17

consider further” that portion of its former opinion deal-.

ing with PWC. With regard thereto, the district court

believed “These matters were carefully considered” and

noted its conclusion that PWC “was limited to signatories

only and did not commit or limit the Union in its bargain-

ing with non-signatory coal operators”; and pointed out

its conclusion had the Sixth Circuit’s sanction in first

Ramsey, 416 F.2d 655, 657 (Pet. 90).

Rejecting Petitioners’ “new theory” concerning PWC,

namely that PWC would by its express terms limit UMW

in its future negotiations with all previous signatories

of the National Agreement, thereby removing its exemp-

tion from the antitrust laws as a labor union, at least as

to previous signatories and that PWC constituted an

express commitment violative of the antitrust laws, the

district court declared that “PWC refers neither to future

previous signatories, but rather to ‘signatory operators’

and to ‘employees covered by this contract’” and that

Petitioners’ contention “would appear to be partially

self-defeating in that most, if not all, of the [Petitioners]

were themselves parties to that Agreement until Decem-

ber of 1962” (Pet. 90-91). As in first Ramsey, the district

court concluded that “PWC did not constitute an express

commitment” by UMW “to bargain with other coal oper-

ators only upon terms set forth in the contract made

with” BCOA (Pet. 91).

c. The district court’s second Ramsey,

under the preponderance rule, rejected

the contention of an implied agreement.

As in first Ramsey (265 F.Supp. 432), second Ramsey

declared “there is no direct evidence in the record of a

conspiratorial agreement between UMW and the BCOA”,

noting denials by every officer and representative of

UMW and of BCOA who testified at the trial (Pet. 93-

18

94). Pointing to the “newly offered” testimony, second

Ramsey found “Even Mr. Moody, who as President of the

Southern Coal Operators Association from 1946 to 1950

represented competitors of the BCOA in negotiations

with the UMW, vehemently denies any such conspiracy”

(Pet. 93-94).

Second Ramsey undertook to determine from infer-

ences to be drawn from PWC, as well as when consider-

ing the record as a whole, whether PWC “by implication”

did what it did not expressly do (Pet. 97).

Explaining its first Ramsey dictum of an implied agree-

ment under the preponderance rule, because motivated

by UMW’s adherence to its National Contract, the com-

petitive motive of BCOA members, aud operator com-

plaints to UMW of nonsignatory advantage, second Ram-

sey stated: (1) “It appears that national uniformity in

wage rates and labor standards in the coal industry has

been a consistent” UMW policy and goal “since its incep-

tion in 1890” (265 F.Supp. 404; Pet. 98); (2) BCOA and

its members had a competitive motive and “it is ap-

parent that in a competitive economy a competitive

motive will be universal to all coal producers” and “To

draw an inference of antitrust conspiracy from this mo-

tive would be somewhat of an anomaly” (Pet. 98); and

(3) concerning inferences from signatories’ registering of

complaints of competit: ve disadvantage with UMW, they

“were universal in their origin and included the plaintiffs

themselves” and, declared the district court, “Perhaps

one operator best summed up the attitudes of all opera-

tors when at a bargaining session he stated: ‘All I want

is a fair advantage’ ” (Pet. 98).

'2The foregoing district court findings challenge Petitioners’ state-

ment in their Appendix C (p. 104). that the district court’s findings

do not touch “upon in any shape or form” the Moody testimony.

—

i

!

;

re ee ad 2 an

19

Then, observing that “inferences to be drawn from

the PWC are as consistent with unilateral action as they

are with conspiratorial action”, second Ramsey noted

this would “leave the Court to speculate in making the

choice” and that “Where equal inferences can be drawn

and the Court is left to speculate, the plaintiffs have

failed to carry their burden of proof”, citing South East

Coal Co. v. Consolidation Coal Co., 6 Cir., 434 F.2d 767

(1970) (Pet. 98-99].

d. The JICC minutes and the Moody deposition conclu-

sively support the district court’s findings

Since Petitioners stress that the documentary evidence

attached to its motion to reopen the record proved con-

clusively an implicit deal made by UMW and the cir-

cumstances and intentions of the parties in writing PWC

into the National Agreement in 1958, as well as the

practical construction given PWC by individuals who

drafted it in their activities as JICC members (Pet. 12),

a summary of such evidence follows:"

The JICC Minutes

A detail of the JICC minutes discloses: At the meeting

on January 21, 1959, Union members were John L. Lewis,

Thomas Kennedy and John Owens; while operator mem-

bers were Hamilton K. Beebe, Edward G. Fox and J oseph é

E. Moody, representing BCOA, Southern Coal Producers f

Association, Illinois Coal Operators Association, Indiana 3

Coal Operators Association, Indiana Coal Producers :

Association and Western Kentucky Coal Producers Asso-

Oe a eT ee: wd Be ae

'’Petitioners’ Appendix C contains not only the JICC Minutes and :

the Moody Deposition, but also other material, including argumenta- 3

tive metters. As a'readyv nected ante. p. ). contr’ rv to Petitioners’ ;

statement (Pet. 104) that the Moody testimony is “not touched upon

in any shape or form in the District Court’s findings” is its finding that

oon Mr. Moody . . vehemently denies any such conspiracy” (Pet.

ciation (J.A. 22a, 43-44a); and that Lewis was chosen

chairman and Beebe, secretary pro tem (J.A. 22a). The

Committee's adopted form of operator compliance reads

(JA. 46a):

“)) This Company is in full risa op with

all of the | hw of the Protective Wage Clause

of the said National Bituminous Coal Wage Agree-

ment of 1950, as amended;

“2) Each employee of this company covered

by the National ment is receiving the full

wages due him under the terms of the said agree-

ment;

“3) This Company is paying to the UMWA

Welfare and Retirement Fund the full 40¢ pay-

ment required by the National Agreement to be

d on each ton of coal produced for use or for

sale by this company, and

“4) That the Company has complied fully with

all other provisions of the said National Agree-

ment”

while the adopted union certification form reads (J.A.

46a):

“In accordance with the provisions of Paragraph

D of the Protective Wage Clause of the National

Bituminous Coal Wage Agreement of 1950, as

amended effective December 1, 1958, I, TEE

President of District , International Union,

United Mine Workers of America, do hereby

certify that as of , 1959 the following is

a complete list of all Operators and Mines engaged

in the production of bituminous coal within Dis-

trict and whose operations are under con-

tract to the said union:”

February 26, 1959 minutes disclose UMW’s willingness

to request each union district president to file with the

21

Committee a certified list of operators and mines engaged

in bituminous coal production within his district “whose

operations are under contract with the Union” was

adopted and the Committee’s executive director was in-

structed “to inform any signatory making request there-

for as to whether or not a specified operator or mine was

80 listed,” but “complete lists were not to be made avail-

able to any signatory” (J.A. 48-49a).

At the April 14, 1959 meeting, the executive director

reported operator certification forms had been mailed to

3,228 signatories of which 745 forms had been returned,

and forms were mailed to 192 names received from UMW

(J.A. 52a). The Committee ordered expansion of the

operator’s certification form to include the signatory’s

address, the union district or districts in which the mines

are located, and the local association, if any, of which

the signatory is a member (J.A. 53a). At the meeting

“procedures to be followed in the processing of com-

plaints alleging violations of” PWC were adopted (J.A.

54a), which provided the director refer all complaints

to counsel for an initial screening “as to whether the

subject matter thereof is properly within the scope of”

PWC and “to secure Counsel’s recommendations as to

the further processing of complaints by way of dismissal,

further investigation, etc.” (J.A. 55a).

The Committee instructed its director on May 20, 1959,

to send to approximately 2,000 operators a letter (J.A.

61-62a) that failure to file certification of compliance

with terms and conditions of the 1958 Agreement con-

stituted “a prima facie violation of’ PWC, that since

PWC required notice of any alleged violation, the letter

“provides you with such notice and opportunity which,

under the Clause, is a condition precedent to any final

determination that a violation has occurred” and that

Te OT ee

“prompt filing of the required certification will terminate

this particular matter”.

The director, at JICC’s meeting on June 24, 1959,

presented a list of 455 operators who had failed to file

the certification form that each was in full compliance

with the Agreement’s terms (J.A. 63a).

Subsequent meetings of JICC dealt with signatories

who had failed and refused to comply with its obligation

“to certify in writing to the committee that it is in full

compliance with all of the terms and conditions of such

agreement” (J.A. 68-77a). At the November 4, 1959

meeting, “The members of the Committee then discussed

the status of the Committee with reference to the re-

cently enacted Landrum-Griffin Bill”; and because of

uncertainties and other factors derivative from that Bill,

the Committee suspended further proceedings and the

administration and enforcement of PWC pending appro-

priate clarification and interpretation of the sundry

problems until May 1960 (J.A. 78-80a). At the March 31,

1964 meeting, it was reported that PWC had been deleted

from the National Agreement effective April 2, 1964 and

“accordingly the basic authority for the existence of”

JICC “would terminate as of that date”; and the Com-

mittee proceeded to dissolve itself (J.A. 95a).

The Moody Deposition

Joseph E. Moody was president of Southern Coal Pro-

ducers Association (SCPA)—a group of operators in

Tennessee, Kentucky, Virginia and West Virginia “pri-

marily for the administration and negotiation of con-

tracts” in the bituminous coal industry—-from 1946 until

1960 (J.A. 100-01a).

Pan

LP OME A SoA Mh RO IN a a tN, “~

23

Though SCPA minutes profess “industry-wide bar-

gaining impractical and undesirable from the standpoint

of the Southern Operators; and in their judgment not

beneficial to the country itself” (J.A. 102a), nonetheless

Moody admitted “there was an inconsistency” by de-

manding entrance into some negotiations (J.A. 103a),

noting in particular SCPA’s request to join Northern

operators in the 1949 negotiations (J.A. 104a). Moody

noted that conditions are different among Southern oper-

ators and there are labor problems peculiar to southern

fields (J.A. 110a).

Moody admitted that, following BCOA’s formation, he

was kept advised concerning contract negotiations and

that “if we had at any time been cognizant of what we

thought was an illegal—cutting us out or keeping us

away by agreement, we would have raised the devil

from here to West Virginia and back again” (J.A. 112-

13a). Indeed, Moody attributed good faith bargaining

to UMW’s Lewis o* the 1952 Agreement (J.A. 114-16a).

Though Moody ‘ zstified SCPA complained bitterly to

UMW’s Lewis of non-contract operations and of UMW’s :

failure to organize such operations (J.A. 123-25a), when f

asked if PWC resulted from these conversations with

Lewis (J.A. 147a), Moody’s reply was “I don’t know

that” (J.A. 148a).

Moody recalled talking with Lewis who showed him

“two papers which purported to be what we later called

a protective wage clause—in other words a protection f

of the contract operators”—one prepared by UMW’s

Hopkins and the other by BCOA’s Fox, the basic ap-

proach of each being “to work out some method of closer

cooperation by contract operators” (J.A, 149a). These

instruments were taken by Moody to his attorneys and,

nel gage —~. on

4

}

*

. uve \ BaD A bi \canat isd ua eo dct aebel dates MLM GEOR ERR ett NR MIRAI me NN RES

— oo ance Rees

24

as Moody stated, “we brought them back and the pro-

tective wage clause that was put into the contract was

pretty much what was written in” SCPA attorney’s law

office (J.A. 150a). Moody’s approval of PWC was be-

cause it “would give us a participation in the overall

administration of the contract and also an effective way

of bolstering the contract” and “protect against the sub-

standard coal” he had discussed (J.A. 154-55a).

On cross examination, when asked “Did you know of

any conspiracy between” the BCOA and the union “in

connection with the northern operators and the union’s

negotiations in contracts with them” at any time “during

your term as president of the Southern Coal Producers?”,

Moody replied, “If I had even heard the word ‘conspiracy’

or had an idea that anybody was even thinking in such

terms I can assure you they would have been able to hear

me all the way from Chicago down to Dingus Run and

back again”, and further

“T also know that with the counsel that I have,

John Gall and John Lane and the rest of them,

that if we had had the slightest idea of such a

thing twenty years ago we sure would have been

riding high, because we would have taken them

apart one little piece at a time. It never occurred

to anybody at that time. We were too desperately

trying to keep this industry alive. Now, it was

hard. They gave no quarter and they asked no

quarter. But it was tough times in our industry”

(J.A. 175-76a).

E. THE SIXTH CIRCUITS SECOND RAMSEY RULINGS

The certiorari petition (p. 13) accurately ‘notes that

on second appeal a Sixt’. Circuit three-judge panel split

9-1 to sustain the trial court’s action following the man-

date, It omits, however, that Petitioners’ rehearing en

er

banc motion was denied on August 20, 1973, “No active

judge on the court having proposed rehearing in banc.’

The Sixth Circuit’s majority rejected Petitioners’

claim that the district court’s first Ramsey statement

that “if he were trying the case under the preponderance

of the evidence rule, he would conclude that the UMW

had impliedly entered a conspiracy” constituted the law

of the case, holding “the comment was dictum and ap-

propriately subject to the District Judge’s reconsidera-

tion on the total record when the case had been remanded

to him” (Pet. 45-47; 83 LRRM 2548).

The majority agreed with the district court’s rejection

of Petitioners’ contention that PWC constituted a per se

violation of the antitrust laws, noting the Sixth Circuit's

approval of PWC in its first Ramsey (416 F.2d 657), as

well as its sanction of PWC in Lewis v. Pennington, 400

F.2d 806, 814 (Pet. 61-63; 83 LRRM 2553-54). Likewise

the majority sanctioned the district court rejection of

Petitioners’ new theory upon remand, namely that PWC

would by its express terms limit UMW in its future

negotiations with all National Agreement signatories,

thereby removing its exemption from the antitrust laws

as a labor union, at least as to previous signatories. The

majority also sanctioned the district court’s response

that “PWC refers neither to future previous signatories”

—such as Petitioners—“but rather refers to ‘signatory

operators’ and to ‘employees covered by this contract’ a

and therefore “PWC did not constitute an express com-

mitment” upon UMW’s part to bargain with other coal

operators only upon terms set forth in UMW’s contract

with BCOA. Further, the majority’s agreement included

‘Circuit Judge Weick would have granted the rehearing By

and reversed the district court's judgment for reasons assigned in the

dissent (Pet. 63-82; 83 LRRM 2554-61).

Ee

ee

SLIDE IE Te POLIT ALE ALE" PE ALODG LL A OE D2 EM ay

26

the district court’s declaration that “nothing in the new

evidence tendered in support of plaintiffs’ motion to

reopen . . . would tend to alter this construction” of

PWC’s terms (Pet. 62; 83 LRRM 2553-54).

The majority held “the District Judge’s findings of

fact are supported by substantial evidence and are not

clearly erroneous” (Pet. 56; 83 LRRM 2551).

Noting the district court “clearly read and considered

all of the material which plaintiffs desired to present”,

observing that “At oral argument counsel for plaintiffs

on a direct question from the court informed us that if

the case were remanded to the District Court, plaintiffs

would have no further evidence to offer” (Pet. 57; 83

LRRM 2552) and, further, acknowledging that “we too

have reviewed the evidence” (Pet. 59; 83 LRRM 2552),

the majority affirmed the district court’s decision denying

the motion to reopen the record for presentation of addi-

tional evidence. “In the alternative”, the majority de-

clared, “if this were held to be error, we would also hold

that on the totality of evidence in this record (including

consideration of the proffered evidence), such error was

harmless”, pointing to Federal Rules of Civil Procedure,

Rule 61 (Pet. 59; 83 LRRM 2553).

ARGUMENT

L THERE IS NO SUBSTANTIAL FEDERAL QUESTION PRE-

SENTED

A. Contrary To Petitioners, The Sixth Cireuit Majority

And The District Court Alike Complied With This

Court’s Remand In First Ramsey

Petitioners argue (Pet. 14) that the lower courts mis-

construed and rejected this Court’s instructions in first

Ramsey, asserting that this Court’s mandate required a

new trial upon remand—rather than a review of the

27

“old record”—with respect to an implied conspiracy to

standardize employment terms throughout the industry

aimed at destroying marginal producers based upon dis-

trict court’s comment in first Ramsey that “were this

case being tried upon the usual preponderance of the

evidence rule applicable to civil cases, the Court wou!d

conclude that the UMW did so impliedly agree.”

However, in this Court’s first Ramsey, Petitioners

sought reversal and remand “with directions that UMW

be adjudged in violation of” Sherman and a new trial

granted “for the determination of damages . . . or, in the

alternative, that” Petitioners “be granted a new trial’”’,"*

but this Court’s reversal was premised upon an erroneous

standard of proof, and it remanded the case for further

proceedings (401 U.S. 314), consistent with its opinion

which included the statement in its Footnote 5 (p. 308)

that

“To what extent the proof would fail under the

standard we here hold applicable and what legal

difference it might make are matters open to be

dealt with on remand.” |

The Sixth Circuit’s majority appropriately noted the

quoted language in its assessment that this Court “clearly

did not view the first Ramsey preponderance of evidence

comment by the District Judge as ‘the law of the case’

as [Petitioners] now contend” (Pet. 46; 83 LRRM 2548).

Relevantly and responsive to the dissent (Pet. 64-65;

83 LRRM 2554-55), pressed by Petitioners (Pet. 14-18),

and to the dissent’s argument that this Court’s first

Ramsey “did not confine the District Court to considera-

tion of only the old record”, the Sixth Circuit’s majority

noted, “We have no doubt that if the Supreme Court had

‘*See Petitioners’ main brief in this Court, p. 92, in Case No. 88,

October Term, 1970.

intended remand for new trial, it would surely have said

so”; the majority also noted that the Sixth Circuit’s re-

mand “did not order” a retrial “of this lengthy and bit-

terly disputed litigation” (Pet. 60; 83 LRRM 2553); and

of the dissent’s citation of Byrd v. Blue Ridge Rural

Electric Cooperative, 356 U.S. 525, 540 (1958), the

majority responded that in Blue Ridge the appellate court

was directed to “remand the case to the District Court

for a new trial”. Cogent, too, is the majority’s observa-

tion that “we find nothing in appellants’ motion before

the District Court, nor in their brief in this court, which

either seeks or claims a right to a new trial” (Pet. 60;

83 LRRM 2553). The certiorari petition contains no

challenge of the majority’s statement.

B. The Sixth Circuit Majority Correctly Held That The

District Court’s First Ramsey Statement Concerning

The Preponderance Rule Did Not Constitute The

Law Of The Case

As noted (ante, p. 18), the district court character-

ized as dictum (Pet. 97) its statement “Were this case

being tried upon the usual preponderance of the evidence

rule . . . the Court would conclude that” UMW “did so

impliedly agree” (265 F. Supp. 412) and noted, signifi-

cantly, the conclusion was made “when the Court was

in fact weighing the evidence under the clear proof rule

and not under the preponderance rule” (Pet. 92).

Relevantly and inconsistent with its dictum statement

is first Ramsey’s conclusion that “The only direct evi-

dence in the record is to the effect that the Union pursued

such policy upon its own, and not in agreement with any

employer” (265 F. Supp. 412) and “All of the direct

evidence in the record expressly denies the plaintiff’s

contentions of a conspiracy” and that “Every officer of

the Union who testified, as well as every representative

from the coal industry alleged to be in on the conspiracy,

denied its existence” (p. 432), which emphasizes the

validity of characterizing its statement as dictum.

Supportive vf the majority’s holding concerning the

law of the case, in addition to this Court’s quoted lan-

gauge (ante, p. 27), is Circuit Judge O’Sullivan’s dis-

sent adopted by this Court that “we should make it clear

that we need not and do not reach consideration of

whether the District Judge’s findings were ‘clearly

erroneous’. We hold only that the ‘clear proof’ standard

which the Judge applied in making his findings was im-

proper” (416 F.2d 670, fn. 3).”

In light of this Court’s first Ramsey language concern-

ing the extent the evidence would fail under the “stan-

dard we here hold applicable and what legal difference

it might make are matters open to be dealt with on

remand” (401 U.S. 308, fn. 5), Banco Nacional de Cuba v.

Farr, 2 Cir., 383 F.2d 166, 177 (1967), declared that the

law of the case “does not apply to matters left open by the

mandate”. Accord: “A judgment of reversal is not neces-

sarily an adjudication by an appellate court of any ques-

tion other than those which were in terms discussed and

decided”. 5 Am. Jur. 2d, Appeal and Error, §955. Indeed,

Barney v. Winona etc. R. R. Co., 117 U.S. 228, declares

the rule under scrutiny does not apply to expressions of

opinion on matters the disposition of which was not

necessary to the decision; but, as stated in 5 Am. Jur. 2d,

Appeal and Error, §753, pp. 196-7, the law of the case

doctrine does not apply “to mere dictum”.

Of A Sherman Conspiracy Are Supported By Sub-

stantial Evidence And Are Not Clearly Erroneous

Neither the certiorari petition nor the Sixth Circuit’s

dissent complains of the majority’s exoneration of UMW

of any Sherman conspiracy antedating the 1958 Agree-

ment.'"* Similarly, there is no challenge to the majority’s

approval of the district court’s first Ramsey holding that

Petitioners’ “woes and misfortunes” are explained by

factors not demonstrative of a Sherman conspiracy (ante,

pp. 8-9), which is unequivocally responsive to Petitioners’

quotations (Pet. 22-23) from the district court’s first

Ramsey pertaining to the disadvantages of producers in

the southern Tennessee coal field. Petitioners instead

complain of the majority’s ruling of PWC and an alleged

implicit agreement with major coal associations that

allegedly put UMW in a straightjacket in its bargaining

policy in dealing with Petitioners.

UMW’ struggle to protect the work opportunities and

labor standards achieved by UMW through processes of

collective bargaining have been detailed (ante, pp. 9-12).

Significantly, Petitioners avoid any reference thereto,

as well as to the judicial approbation accorded PWC’s

validity under Section 8(e), Labor Management Rela-

tions Act, 1947, as amended. Lewis, et al. v. NLRB, D.C.

Cir., 350 F.2d 801; W. A. Boyle, et al., 179 NLRB 479.

Where an agreement accords with Section 8(e), “it

would be unreasonable to hold that success in securing

such an agreement constitutes a violation of the anti-

trust laws”. Suburban Tile Center, Inc. v. Rockford Bldg.

and Construction Trades Council, 7 Cir., 354 F.2d 1, 3,

cert. denied 384 U.S. 960, 385 U.S. 490.

'*Evidentiary support of the district court’s exoneration of UMW

of 2 conspiracy prior to the 1958 Agreement appears ante, pp. 7-9.

31

1. The Sixth Circuit majori roperly validated PWC’

language and rejected Fontes New Theory”

Federal authorities reflect judicial disinclination to

condemn labor agreements as illegal per se."’

First and second Ramsey in both the district court and

the Sixth Circuit concluded PWC “was limited to signa-

tories only and did not commit or limit the Union in its

bargaining with non-signatory coal operators” (ante,

Pp. 17, 25); noted “the law is well settled. . . that where

two constructions of a written contract are reasonably

possible, preference must be given to that one which does

not result in a violation of law”; implementing that rule,

concluded that PWC did not by its terms forfeit the

Union’s exemption from the antitrust laws (ante, p.

25); appropriately noted its conclusion of limitation to

signatories was approved in first Ramsey (416 F.2d 657)

and in Lewis v. Pennington (6 Cir., 400 F.2d 806, 814),

as well as Judge Taylor’s conclusion in Lewis v. Penning-

ton (257 F.Supp. 815, 862; 83 LRRM 2553-54).

The majority’s rejection of Petitioners’ “new theory”

that, at least as to previous signatories, PWC constituted

an express Commitment violative of the antitrust laws on

the ground that “PWC refers neither to future previous

signatories, but rather to ‘signatory operators’ and to

‘employees covered by this contract’ ” (ante, p. 25), is a

target for Petitioners’ complaint and is premised upon

language in the Supreme Court’s Ramsey reading (401

U.S. 313):

“Where a union, by agreement with one set of

employers, insists on maintaining in other bar-

'"NLRB v. News Syndicate Co., 365 U.S. 695, 699, declared the Court

“will not assume that unions and employers will violate the federal

law” and that the illegal-per-se doctrine is available ony where the

contract e ae A for illegal conduct. See also Local 357, Team-

sters v. NLRB, 365 U.S. 667 676; Adams Dairy Co. v. St. Louis Dairy

Co., 8 Cir., 260 F.2d 46; NLRB vy. McGahey, 5 Cir., 233 F.2d 408.

32

units specified wage standards ruinous to

the business of those employers, it is liable under

the antitrust laws for the damages caused by its

agreed-upon conduct.”

Petitioners’ interpretation of the quoted language is

that UMW violates Sherman if it “maintains” in any

signatory unit wage terms destructive to that unit by

agreement with another set of employers or association

of employers (Pet. 33).

UMW challenges Petitioners’ interpretation and as-

serts it becomes obvious in reading the quoted language

that Petitioners isolate the employed wording in total

disregard of other relevant Ramsey language and, par-

ticularly the Supreme Court’s refusal of Petitioners’ in-

vitation to “reconsider” its “holding in Pennington and

other cases that under the Clayton and Norris-LaGuardia

Acts the Union incurs no liability under the antitrust

laws when it concludes ‘a wage agreement with the

multi-employer bargaining unit... and... as a matter

of its own policy, and not by agreement with all or part

of the employers of that unit, seek[s] the same wages

from other employers’” (401 U.S. 312-13).

Petitioners ignore that the quoted language is but ex-

plicatory of Ramsey’s antecedent statement, quoted from

Pennington (381 U.S. 669), that “the alleged agreement

between UMW and the large operators to secure uniform

labor standards throughout the industry, if proved, was

not exempt from the antitrust laws” (401 U.S. 313);

and examination of Pennington demonstrates its “alleged

agreement” statement was concerned with the anti-com-

petitive interest of employers “rather than an interest in

regulating [their] own labor relations” (381 U.S. 667-68).

Petitioners’ interpretation is incongruous with the

this Court’s approval in Ramsey ot Allen Bradley

etenetiineniaditiemsihhiaieistaicnate aed ae

Nea SE NET US “ro Lt ERTS tied

(325 U.S. 809, 811) which itself recognizes that a labor

agreement “standing alone”, “would not have violated”

Sherman and that “unilateral conduct by a union of the

type protected by the Clayton and Norris-LaGuardia

Acts does not violate” Sherman “even though it may

also restrain trade” (401 U.S. 313), but to equate anti-

competitive motivation with Ramsey’s phrase, “ruinous

to the business of those employers”, is in opposition to

this Court’s Ramsey’s refusal to reconsider its holdings

in Pennington and other cases concerning union lia-

bility under the antitrust laws (401 U.S. 313), particu-

larly concerning unilateral action and Pennington’s hold-

ing, “The union need not gear its wage demand to wages

which the weakest units in the industry can afford to

pay” (ante, p. 14; 381 U.S. 665, fn. 2).

The majority correctly appraises PWC as not consti-

tuting an express commitment upon UMW’s part to

bargain with other coal operators only upon terms in the

contract made with BCOA (Pet. 62)."°

2. Second Ramsey correctly held the evidence failed to

establish an implied agreement

Petitioners rely upon “new evidence” of circumstances

surrounding PWC’s origin, the practical construction

thereof by JICC offered in minutes of SCPA and of JICC,

and Joseph E. Moody depositions (Pet. 14-18), detailed

ante, pp. 19,22. This “new evidence” and other uncontra-

dicted evidence dissipate the validity of Petitioners’ con-

tentions.

A detail of JICC minutes appears ante, p. 19.

Nothing therein supports Petitioners’ contention that

“Judge Weick’s dissent on this issue, heavily relied upon by Peti-

tioners (Pet. 23-26), has been rejected in Lewis v. Pennington, 6 ce.

400 F.2d 806 (1968) and Ramsey v. UMWA, 6 Cir., 416 F.2d 655 (1969).

&

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.

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.

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RRR REE MELO PT IIE

34

signatories intended, and UMW agreed, by PWC’s terms,

to impose the National Agreement’s terms upon non-

signatories.

Examination of the details discloses that violations

charged and found had to do with a signatory operator’s

failure to fulfill his contractual obligation to file the

Operators Certification Forms (ante, pp. 21-22); some

signatories “had refused” Committee mailings, and a

few “stated they were unable to comply” (J.A. 68a).

Committee determinations that “each of the said opera-

tors is in violation of” PWC related to failure to comply.

Note the Committee’s language that “each and every

Listed Signatory has violated” PWC, in that each “failed

and refused to comply with its obligation” under such

clause “to certify in writing to the Committee that it is

in full compliance with all of the terms and conditions

of such Agreement” (J.A. 64a).

While JICC minutes reveal complaints and rumors

concerning three operators, all signatories to the 1958

Agreement, one was reported by the Committee’s direc-

tor to be in compliance and one was delinquent in its

royalty payments to the Fund and arrangements had

been made to discharge the obligation (J.A. 72a, 74a).

Actually, the minutes’ demonstration of the Com-

mittee’s act of suspending activities because of the un-

certainties of PWC’s validity (ante, p. 22), occasioned

by Congress’ enactment of Taft-Hartley’s Section 8(e),

reflects the Committee’s desire to act in accord with, and

not in violation of, law. It proves, as stated in NLRB v.

Rockaway News Supply Co., 345 US. 71, 78, not only

that “The whole contract shows respect for the law”

rather than “defiance of it”, but the Committee “proposed

to go as far” as the law allowed them to go, which “is

SRA RL REEMA. GURY! Sed de

35

their right; and they proposed to go no farther, and that

is their whole duty” (pp. 78-79).

Similarly, Moody’s testimony is detailed (ante, pp. 22-

24). Petitioners’ statement (Pet. 106) that “each time

BCOA negotiated a contract amendment with UMW the

same terms were imposed upon” SCPA “wh» could do

nothing but sign” is countered by undisputed evidence

that historically SCPA generally refused to bargain with

UMW in joint sessions with Northern operators. First

Ramsey’s record establishes that while UMW sought to

negotiate jointly with Northern and Southern operators,

the latter group never remained in a joint conference

(596-97a, 600a, 603-04a, 897-99a, 986-87a), except in

1945 (601a). Additionally, in 1950, SCPA insisted UMW

bargain separately with it; but the Federal District Court

in the District of Columbia advised SCPA counsel that all

parties were to negotiate jointly (956a, 616a).

Moody’s concern that Southern operators’ conditions

differ from those of Northern operators invites this

Court’s recall of first Ramsey’s holding that “Neither the

nature of the competition, the coal seam characteristics,

the comparative adaptability to mechanization, nor other

factors enhancing the problems of marginal coal pro-

ducers can compel wage differentials nor form a basis

for a court altering the legislatively permissible labor

policy of national wage uniformity” (265 F.Supp. 408),

which was included in findings and conclusions approved

in second Ramsey (Pet. 95).

3. The Sixth Circuit’s holding that the district court’s

second Ramsey findings of fact are supported by sub-

stantial evidence and are not clearly erroneous are

warranted under applicable law and the preponderance

of evidence

Pointing to an appellate court’s requirement under

36

Rule-52(a), Federal Rules of Civil Procedure, “to give

great weight to the findings of the trial court” and

noting the testimonial record identical with first Ram-

sey (Pet. 47) and that in the Sixth Circuit’s first Ram-

sey it had affirmed the district court by an equally

divided vote and that the district court in second Ramsey

“reviewed these findings of fact under the preponderance

of evidence rule and reaffirmed them”, the Sixth Circuit

majority declared “On review of this lengthy record on

remand and second appeal, we again hold that the Dis-

trict Judge’s findings of fact are supported by substantial

evidence and are not clearly erroneous”; and though con-

ceding “the record in this case is one where the factual

issues are close”, the majority declared, “The basic de-

cisions . . are for the finder of fact, whether that be a

judge or a jury”, declaring that to be the lesson of this

Court in first Ramsey as well as Lewis v. Pennington,

DC, E.D. Tenn., 1966, 257 F.Supp. 815, aff'd, 6 Cir., 400

F.2d 806 (1968), cert. denied sub nom, Pennington v.

UMW, 393 U.S. 983 (1968), rehearing denied, 393 U.S.

1045-(1969) (Pet. 56].”

In light of undisputed evidence herein discussed and

the total absence of any contradictory evidence in the

certiorari petition, it is settled law, applicable in antitrust

cases, that insofar as a conclusion is based on inferences

drawn from documents or undisputed facts, Rule 52(a),

Federal Rules of Civil Procedure, is applicable and such

findings of fact are not to be set aside unless clearly

erroneous. U.S. v. Gypsum Co., 333 U.S. 364, 394.

Petitioners’ criticism of the majority’s adoption of the

“clearly erroneous” rule is its application to evidence

presented “largely from depositions, documents and

"The dissent, per Circuit Judge Weick, is the subject of the instant

certiorari petition.

37

recorded prior testimony” to the district court in first

Ramsey in 1965 and to the dissent’s characterization

thereof as “essentially a ‘paper case’ where the clearly

erroneous test of rule 52(a)” is inapplicable, citing U. S.

v. General Motors Corp., 384 U.S. 127, 141 (1966) and

the Sixth Circuit’s In re: Clemens, 472 F.2d 939, 941,

n. 1 (1972) (Pet. 30-31).

However, contrary to the “paper case” characteriza-

tion, actually 10 persons appeared as live witnesses testi-

fying before Judge Wilson. Additionally, the evidence

also included testimony, admitted by stipulation of the

parties in the instant case, of live witnesses in first Penn-

ington, and in second Pennington District Judge Robert

L. Taylor, the presiding jurist in both cases, recognized

their credibility in exonerating UMW of the alleged anti-

trust conspiracy (Lewis v. Pennington, DC, E.D. Tenn.,

N.D., 1966, 257 F.Supp. 815). Thus, the instant case posed

a totally different situation from the General Motors case

which recites that “of the 38 witnesses who gave testi-

mony, only three appeared in person” (p. 142, fn. 16).

Totally dissimilar, too, is Clemens wherein a bankruptcy

referee, having heard the testimony, withdrew before

the case was decided on the merits; a different referee

made findings and conclusions on the basis of testimony

in the transcript; describing the transcript as a “bare

transcript unaided by observation of the demeanor of

the witnesses”, the Sixth Circuit observed, “this Court

is not required to give special deference to the” referee’s

findings. A further distinction is that in Clemens the

district court disapproved the practice.

D. The Sixth Circuit Majority Properly Approved The

District Court’s Refusal To Admit In Evidence Peti-

tioners’ Proffered Exhibits And Depositions

Petitioners complain (Pet. 14-18) of the majority’s

cd

38

approval of the district court’s refusal to reopen the

record to admit into evidence the JICC minutes and

the Moody deposition, and assert their reliance upon the

Beebe and the Moody testimony (Pet. 104-114). How-

ever, as the record shows and the majority opinion notes

(Pet. 57), the district court noted it had “carefully read

and considered the evidence submitted upon the plain-

tiffs’ offer of proof in support of their motion to reopen

the evidence” (Pet. 85), that “nothing in the new evi-

dence tendered in support of the plaintiffs’ motion to

reopen the proof would tend to alter [its] construction

of” PWC’s terms (Pet. 91) and, further, “The newly

offered evidence offers no new theories of liability and

presents no significant alteration of the evidence as pre-

sented upon the trial” (Pet. 99).

The proffered evidence, as UMW has shown, not only

did not establish PWC’s invalidity or that UMW placed

itself in a “straitjacket status” (ante, p. 25); but, to

the contrary, it included as second Ramsey found, “Even

Mr. Moody, who as President of the Southern Coal Pro-

ducers Association from 1946 to 1960 represented com-

petitors of the BCOA in negotiations with UMW, vehe-

mently denies any such conspiracy” (Pet. 40, 93-94).

Petitioners concede they have

no further evidence to offer

As the majority noted, “At oral argument counsel for

plaintiffs on a direct question from the court informed us

that if the case were remanded to the District Court,

plaintiffs would have no further evidence to offer” (Pet.

record to admit into evidence the JICC minutes and

57). The certiorari petition makes no challenge of this

statement by the Sixth Circuit majority.

Affirming the district court’s denial of the reopening

s-4908

39

motion, the majority appropriately declared, “if this

were held to be error, we would also hold the totality of

evidence in this record (including consideration of the

proffered evidence), such error was harmless”, citing

Rule 61, Federal Rules of Civil Procedure (Pet. 59).

As the Sixth Circuit has previously recognized in J. W.

Bateson Co., Inc. v. Romano, 6 Cir., 266 F.2d 360, 362,

procedural errors not affecting substantial rights of the

parties are to be disregarded “in keeping with” Rule

61’s mandate.

E. There Is No Conflict Between The Sixth Circuit

Majority’s Holding And The Third Circuit’s Solar

Fuel Case

Petitioners’ claim of a conflict between the Sixth Cir-

cuit majority’s holding and that of the Third Circuit in

Solar Fuel Co. vy. UMW, 478 F.2d 1401 (July 6, 1973)

has no merit.

An initial observation is that factually, as to PWC,

Solar is wholly disparate from the instant Ramsey case:

the issue in Solar of whether PWC was repealed by the

1964 amendment to the National Agreement is not an

issue in the instant Ramsey case; the district court’s Solar

opinion is wholly devoid of uncontradicted testimony

found in Ramsey relating to PWC’s background (ante,

pp. 9-12); and its reasons for rejection of the issue of

PWC’s prior rescission was that its injection “came too

late” since it was not raised in pleadings, in pre-trial

narrative statements, at pre-trial conference or during

the trial.

Response to Petitioners’ quoted language from Justice

White’s opinion (Pet, 33) appears ante, pp. 32-33.

40 '

é

F. Petitioners Seek This Court’s Review Of Evidence

Majority Have Held Did Not Support The Charge That

UMW Conspired In Violation Of The Sherman Act

The certiorari petition does not challenge the Sixth

Circuit majority’s statements that the instant record

contains 5,600 pages and 450 exhibits, and that the dis-

trict court’s analysis of the evidence “is masterly” (Pet.

75, 48). This Court recognizes that a conclusion based

on inferences drawn from documents or undisputed facts

in antitrust cases must be affirmed unless clearly errone-

ous. Since the findings had the concurrence of the district

court and the Sixth Circuit majority, this Court should

reject the invitation to review the instant case, imple-

menting its rule that “We do not grant a certiorari to

review evidence and discuss specific facts”. U. S. v.

Johnston, 268 U.S. 200, 227.

Wi asad Sea aint ge

nu Wlabint

ONT i at eee

41

CONCLUSION

For the reasons herein discussed, UMW submits that

the Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

JOSEPH A. YABLONSKI

Harrison Comps

WILLARD OwENs

900 ‘Fifteenth Street, N. W.

Washington, D. C. 20005

E. H. Rayson

Valley Fidelity Bank Building

Knoxville, Tennessee 37901

M. E. Borarsxy

511 Kanawha Valley Building

Charleston, W. Va. 25301

Counsel for Re 4

United Mine Workers of America

October, 1973

la

APPENDIX A

Rule 52(a), Federal Rules of Civil Procedure:

In all actions tried upon the facts without a jury or

with an advisory jury, the court shall find the facts

specially and state separately its conclusions of law

thereon, and judgment shall be entered pursuant to Rule

58; . . Findings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the oppor-

tunity of the trial court to judge of the credibility of the

witnesses . .

Rule 61, Federal Rules of Civil Procedure:

No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or order

or in anything done or omitted by the court or by any

of the parties is ground for granting a new trial or for

setting aside a verdict or for vacating, modifying, or

otherwise disturbing a judgment or order, unless refusal

to take such action appears to the court inconsistent with

substantial justice. The court at every stage of the pro-

ceeding must disregard any error or defect in the pro-

ceeding which does not affect the substantial rights of

the parties.