Brief of Respondent — United Mine Workers v. Pennington

Supreme Court brief1965

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- SUPREME COURT OF THE UNITED STATES, ¥

OCTOBER TERM, 1964.

Ne O00 ae

UNITED MINE WORKERS OF AMERICA,

Petitioner, -

Wer te | | -

JAMES M. PENNINGTON, RAYMOND E, PHILLIPS and

LILLIAN GOAB PHILLIPS, Admx. of the Estate of

Burse Phillips, Deceased,

* Respondents.

——

On Writ of Certiorari to the United “States Court of — | t

> for the Sixth Girewit

—_—_— —— —

|, BRI EF.

of Respondents in: Reply to the Brief of AFL.CIO-

as Amicus Curiae, Particularly With-Respéct to the

Legislative History’ of the Taft-Hartley Act and’ Con-

. gideration by Congress of the Allen Bradley Rule.

a =o”

JOHN A. ROWNTREE, =

1412 Hamilton Bank Building. ;

Knoxville, Tennessee,

Attorney for Respondents.

' Sr. Louis Law Printine Co., Inc., 415 N. Eighth Street. CEptral 1-4477 Ais

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‘TABLE. OF wumnean OF BRIEF.

fs _ Page

_ Brief + of) Respondents in eas to the Brief of AFL-

CIO as Amicus Curiae, Particularly With Respect

~* to,. the’ Legislative! History of the Taft-Hartley. Act ‘

and Consideration by. — of the Alle» Brad-

x ley- Rule PPPOE. go Er ET eee TET ELT CLUALLELS, 1,

L The Disposition of the Language in ‘Bills De- .- . |

signed to Make Specific Changes in the Clay-.

"ton and N orris-LaGuardig Exemptions of La- .

bor Usiions Under the Antitrust’ Law Shows: :

No Intent on the Part of Congress to Change ~

the Antitrust’ Law ‘as it Existed in 1947 .-.. 2, 8

II. The. Boycott Provisions of the Taft-Hartley

* * . Aet Show No Dispositions on. ‘the ty of

Congress’ to Change the Antitrust Law’. 8, 11

Conclusion et Perec es A veesecesee Geis 12

is Case Cited. a

+ Allen Bradley Co. v. IBEW Local 3, 325 U. S. 797. .2,9, 1 1

Miscellaneous Cited.

* Hearings” Before the Cuiiaiintes on Labor aia Public

_ Welfare, United States Senate, 80th Congress First

‘Session on 8. 55 and S- J. Res. 22 ......... ne ocean ee a

Legislative’ ¥ffstory of the Labor Management Rela-.

-tions Act; 1947 2.2.2.6... cece reese 11:3) 45,67, 8 |

US. Code Congressional Service, 1946, 79th Congress, ;

‘Second . Session. «. 2.00.6. ce06 Se ee Jevexexes’ 4

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IN" THE

- SUPE COURT OF THE UNITED STATES

OCTOBER TERM, 1964,

“No, 48,

UNITED witne WORKERS OF AMERICA,

Petitioner, —

“

“JAMES M.. PENNINGTON, RAYMOND €. PHILLIPS and

; LILLIAN GOAD PHILLIPS, Admx. of the Estate of

Burse Phillips, D&@eased,

Respondents,

> al

cca <

>On Writ eae United States Court of er

Sane for the Sixth Circuit,

ON 44) a

" . Of Respondents in-Reply to the Brief of AFL-CIO

‘as Amicus Curiae, Particularly With Respect to the.

Legislative History of the Taft-Hartley Act and Con-

' sideration by rs of the Allen Bradley Rule..

> ‘Since filing the main reply brief Counsel for Respond-

ents has had an opportunity to review -the legislative

history of the Taft-Hartley Act. The Amicus Curiag brief

of AFL-CIO, at pages 23-24, made reference to parts of

») ae

this legislative history. The ‘remarks made here supple-

ment pages 24-27 of beter main reply brief.

We believe thay a thorough analysis of -the legislative

history of Taft-Hdrtley strongly indicates absence of in-

tent ‘on the part of Congress to weaken or change the

anti-trust law and particularly shows no: intent to change

the then existing decisions of , the Supreme | Court inter-

preting the anti-trust statutes with respect to the position

of a labor union under those statutes, including the rule

in Allen Bradley Co. v. IBEW Local 3, 325 U. S. 797,

which ‘had been decided by the Supreme Court in 1945.

The two parts of the bills leading’ up to the Taft- Hartley

- Act which touched upon anti-trust law were the language

relating: specifically to the Clayton ‘and Norris-LaGuardia

exemptions of labor unions from the anti- trust law, and

the i pertaining to boycotts.

‘1. ‘The hinietiiin of the Languagé i in’ Bills Designed to:

Make Specific Changes in the Clayton and Norris-

LaGuardia Exemptions of Labor Unions Under the

Anti-Trust Law Shows No Intent’on the Part of Con-

gress to Change the Anti-Trust Law as It Existed in

1947.

H. R. 3020, as it canal the House, ‘ananiasia Section

301 (b), reading as follows: ° .

— £*(b); Section 6 of the Act enttitled ‘An Act to sup-

plement existing laws against unlawful restraints and

monopolies, and for other purposes,’ approved Octo-

ber 15, 1914, as amended, is amended by itserting

before the per iod at’the end thereof a colon and the

following: ‘Provided, however, That it shall not be

. within the legitimate objects of labor organizations

or the officers, representatives, or members thereof,

to make any contract, or to engage in any combina-

> —3—

tion or tonspiracy, in restraint of commerce, if one

of the purposes or a necessary effect of such contract,

combinatjon, or conspiracy is to join or combine with

\ any person to fix prices, allocate customers, restrict

production, distribution, or competition, or impose re-

strictions or conditions, upon the purchase, sale, or use

Of ‘atiy product, material, machine, or equipment, or

to engage in any concerted activity declared to be

unlawful under ‘section 12 of the Nationai Labor

Relations Act, as amended.’’’ (Legislative History

‘of the Labor Management Relations Act 1947, U: S.

Government Printing Office, 1948, Vol. 1, pp. 220-221.)

The above language extends beyond the Allen Bradley

situation where a labor union conspires with business

groups to aid such groups in restraining and monopolizing

trade. The House Report No, 245 on H. Ry 3020 stated:

‘Section 301 contains the amendments to the Clay-

ton Act that were® included in the Case Bill of last

year, and which at that time passed the House by an

overwhelming majority.’’ (Legislative History of the

Labor Management Relations Act, 1947, supra, p. 336.) |

The Case Bill had been broadly interpreted to extend

beyond the Allen Bradley type of conspiracy. When the

President vetoed the Case Bill his message stated:

“Section 11. This provision subjects various union

activities to the anti-trust laws with all their criminal

sanctions, ‘injunctive’ remedies, and ‘provisions for

treble damages. Although the section is entitled

“Secondary boycotts,’ the scope of the section in fact

extends fat beyond such matters. While its enactment

would provide remedies that might result in the

elimination of certain evils, such as improper appli-

cation of the secondary: boycott, it would also make:

those remedies available against recognized legitimate

activities of organized labor. |

a re

“That there are.some abuses in this field, no one

can gainsay. I deplore the strike or boycott axising .

out of a jurisdictional dispute as one of the most —

serious of such abuses. A way ‘must be found to

prevent the jurisdictional strike. It cannot be justi-

‘fied under any circumstaices. | am convinced, how-

ever, that the anti-trust laws, the objectives of whieh

are the elimination of, untair business practices and

‘the protection of free competition, are not designed

to solve the abuses - -pointed out in this section. °

‘‘In this regard, however, I do not need to emphasize

the necessity of applying the anti-trust laws to com-

‘binations between onginyes ‘and- jabor* designed :

restrain competition.”’ (Emphasis added.) (U.

Code Congressional Service, 1946, 79th Congress, Se

-ond Session, page 1691.)

-That the rejection ot the foregoing language by Con- ink

gress was attributable to the fact that it extended beyond

‘the Allen Bradley type of ‘conspiracy, is indicated | in the -

Hoyse Minority Report No. 245, on H. R. 3020, where ;

the minority reported: °

‘‘Section 301 of title Il again subjects trade ‘unions

to criminal prosecution and treble damage suits un-

‘ der the antitrust laws regardless of whether they

are legitimately seeking to preserve union wage rates

and ‘standards. Insofar as this section makes it a

violation ef the antitrust laws for labor to combine

with nonlabor groups:to fix prices, restrict produc-

tion, or to control markets it is completely unneces-

_ gary. The Supreme Court has répeatedly held that

the antitrust laws apply to restraints imposed on

commerce by the combination of a union with non-

labor groups. But subsection (d) of seétion 301

sweeps within the scope of ‘criminal prosecution ‘any °

concerted activ ity declared, to be unlawful in section

12 of the: National Labor Relations Act as amended."

Thus, for example, all boycotts as defined in section

2, including refusal to work on or install nonunion-

‘made goods, or a refusal to work on jobs with which

the nonunion.employer is connected are subjected to

criminal sanctions.

eS * + + @- eo @

‘Section 301 would turn the clock back to the

perfod before 1914 and would encourage. new indus- |

trial - strife.’ -Once again ‘the Danbury Hatters case .

and the ‘Duplex and d Bedford Stone case .might- : rs ;

come fife prevailing law.”’ (Emphasis added) (Legis-.. =

lative History of Labor Managements Relations Acte y

1947, supra, pp. 398-399.) * 3 Ree

“The amicus curiae briet-of AFL-CIO ai ~page 24 re-

' ferred to- ‘the above quoted language in the. House Bill

but did not make note of the existence of similar language

im proposed amendments | to the Senate. Bill. Senate Re-

port No. 185 om S. 1126, “Supplemental Views, sought to

have added to the Senate Bill a section 303(d) as follows:

5 “«(d) The provisions of sections 6 aid 20 of the

Act entitled ‘An Act to supplement ‘existing laws

against unlawful restraints and monopolies, and for.

other purposes,’ approved October 15, 1914, and the

provisions (except section 7, exclusive of clauses (c)

and (e) and sections 11 and 12) of the Act entitled

‘An Act te amend the Judicial Code and to define |

and limit the jurisdiction of courts sitting in equity.

and for other purposes,’ approved Mareh 23, 1932.

shall not be applicable ,in respect of violations of

- subsection (a) or in respect of any contract, com-_

bination, or conspiracy, in restraint of commerce, to

which a labor organization is a party, if one’ of the

purposes of such contract, combination, or conspiracy.

is.to fix prices, allocate customers, restrict produc-

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tion, distribution, or competition, or impose restric;

tions or conditions upon the purchase, salé, or ‘use

of any material, machines, or equipment.’’ (Legis-

lative History of the ‘Labor Management Relations _"e

Act, 1947, supra, pages 461-462.)

Senator Ball introduced the foregoing fanguage on the

‘Senate floor at page’ 4887 of the.Congressional Record

for May 8, 1947. (Legislative History of the Labor Man-

agement Relations Act, 1947, supra, pages 1323-1324. y/

The Cunavenionsl Record for May 9, 1947, page 5040, .

shows the -following colloquy between ° ‘Senator Ball and .

Senator Pepper, Senator Ball’s statement being the first

. part of the following quotation:

¢.

‘That language is designed to correct the ‘ater .

pretation of the Norris-LaGuardia and Clayton. Acts

‘made by the Supreme Court in the Hutcheson case, and 2

° a number of other cases brought'by former Assistant

Attorney General Thurman Arnold, when he attempted

to break up monopolistic practices on the part of labor

/ unions, sometimes acting on their own, once in

. conspiracy with employers. They were engaging } all

kinds’ of price-fixing. They were. attempting to de-

termine, on their own’ responsibility, what products

should be used in industry, what kind of machines, and

- what products the public should be entitled to buy.

‘«Mr. Pepper: Mr. President, will the Senator yield?

‘‘Mr. Ball: I yield.

“4 Mir: Pepper: The able Senator says the purpose'o ~

this portion of the amendment is to correct a decision

of the United States Supreme Court. What he means

is that it is intended to overrule or set aside the hold-.

ing of the-United States Supreme Court that the-Clay-

ton Act and the Sherman Antitrust Act do not apply -

to labor organizations and to permit ‘the application

of the Clayton Act and the Sherman Antitrust Act

to the acts set out in the words of the amendment.

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*“*Mr, Ball: The Senator can aielen it in any way he

desires; whether it: is ‘to correct? or. ‘overrule’, | it

means the same thing. There is ib reasoil Why those

acts should not be: applicable. ’”

. (Legislative History of the Labor Management

Relations Act, 1947, "supra, page 1354.)

The fear that the foregoing proposed amendment was too

broad was expressed*by Senator Morse at page 5044 of

-) «the Congressional Record for May 9, 1947, as follows:

“The language of this section would revive the

case of Duplex v. Deering (254 U. S. 443), and the

Bedford Cut Stone case (274 U.'S.“87).”’ |

ae (Legislative History of the Labor , Management

Xs _ Relations Act, 1947, supra, ‘p. —

Ana Senator Pepper expressed the same fear at wer

5048 of the Congressional Record as follows:

~ ‘The second point is that the amendment is -de-

~ signed, as the Senator from Minnesota pointed out,

to overrule or Correct, as he stated, the ‘decision of the’

United States Supreme Court that the antitrust laws -

‘of the United States are not intended to be applied to

labor unions. The Senator from Minnesota is trying

to reverse or set aside that decision of the. Supreme

Court and to make the antitrust laws applicable to

labor unions. I do not believe the Senate wishes to

make those two radical departures from ‘either the

present law or the present decisions of the ee

Court of the United States.’ .

(Legislative History of the Labor Management

Relations Act, 1947, supra, p. 1367.)

After the foregoing discussion the proposed amendment

was defeated. (Legislative History of the Labor Manage-

inent Relations Act, 1947, supra, page 1370.)

"Senator Taft imtroduced at this point an amendment

which finally became law, but which eliminated the

amendment of the Clayton and Norris-LaGuardia Acts’

proposed by Senator Ball as set, forth aboye, at page

5060 of °the . Congrfsional Record. Sengtor Taft said —

with respect to his” proposed amendment:

“This is similar to: the Ball amendment, dealing |

with the jurisdictional strik« s and secondary boycotts. .

_ It eliminates the injunctive process, the suspension of

the Norris-LaGuardia er which. I found was: creat-

ing so much difficulty * * * Ay .

(Legislative History of the Labor Management

Relations Act, 1947, supra, page 1370.)

The foregoing history of the proposed language in the

House and Senate Bills relating to amendment of the

‘Clayton Act or other antitrust statutes, shows no disposi-

tion on the part of Congress to change the antitrust laws.

Rather it shows conclusively that Congress accepted the

law: as. it existed at that time under the decisions of the _ :

Supreme Court, including the — Bradley case.

Il. The Boycott Provisions of the Taft-Hartley Act Show

No Disposition <a the Part of Congress to Change the .

Antitrust Law.

* The language of the Act with respect to isiaitts cer-

tainly does not encompass a conspiracy between a union’

and business groups to aid-the business groups in ac- .

eomplishing a restraint of trade or monopoly. If Con-

gress intended to change the Allen Bradley rule, after that

rule had been ¢alléed to its attention, it would have éx-

- pressly done so. It appears that Congress, in the boycott

provisions of the Act, was concerned with the -problem

outside of ‘the Allen Bradley type of conspiracy, the same

as was the President in his Case Bill veto, which is quoted

from above. —

We Ser ee at

The problem . has to do with a situation where the union

is not aiding or abetting a business group in restraining.

trade or monopolizing. This problem. involves a union

acting alone, for its own setf- interest, engaging in juris-

dictional or secondary boycotts; and also a situation

_ where, -as’ developed in -the Allen Bradley matter, the

_, illicit conspiracy has ‘been found and enjoined in a Sher-

‘ man Act ¢ase but the unior continues its boycott and

asserts that the continuance is by the union alone and not

in conspiracy with business groups. |

‘The AFL-CIO brief, pages 23-24, quotes from the Senate

Committee Report on the boycott provision, and contends

this language ‘shows intent to encompass within the labor

law: boycott provision the entire regulation of union re-..

straint of trade practices regardless of whatever type of

conspiracy. the union enters upon. The Committee Report .

(No. 105) reads in full at this point as follows: :

. “This paragraph also makes it an unfair labor

practice for a union to engage in the type of second-

ary boycott that has been conducted in New York

City by Local No. 3 of IBEW, whereby electricians

have refused to install electrical products of manu- |

facturers employing electricians who are members of

some labor organization other than Local No. 3. (See

testimony of R. S. Edwards, Vol. 1, pe 176, et seq.;

Allen Bradley Co. v.: ‘Local. — No. 3, IBEW, 325

i S. 797.)”

The report of hearings encompassing -the testimony of

Mr. R. 8. Edwards, referred to at the end of the foregoing

quotation from tlie Senate Committee Report, includes a

colloquy between Mr. Edwards and the committee mem-

' bers showing. clearly that the intent of the boycott pro- —

vision was not to weaken or change the antitrust law, but

‘was to provide a remedy for the situation where the union

was acting. alone and not in combination with business:

groups. Thus at page 184. of the ‘Hearings before the

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Committee. on Labor and fo Welfare, ‘United States

Senate, 80th Congress, First Session on 8.55 and S. J.

‘Res. 22,. being for the: sy ease 29, 1947, the ‘follow-

ing occurred:

. *The Chairman: I dé not want to go into. the law

end of it, but as I remember the union and the’ manu-

facturers, or the distributors, contractors, were in-

‘dicted ‘tmder the Sherman Act for monopoly as long

as the contractors were in ofi it. It was found to be

illegal, yas.it not? ... |

Mr, Edwards: Twat is all nk That is the

» Allen Bradley case that reached the Supreme Court.

That is covered in the filed brief, san I have a acd

short comment on that.

‘The Chairman: Then later nies the contractors

withdrew entirely, the Supreme Court held that the -

monopoly exercised by the union was not in. violation

of the Sherman Act or any of the existing statuies.

Is that correct?

‘*Mr. Edwards: That is right, sir.

“The Chairman: So if anything is to be ra about

it, there is clearly no present remedy under present

law. . :

‘‘Mr. Edwards: There is no remedy.

‘ “T would like to quote also another a from

Mr. Weir’s affidavit.

‘Within the last month—

.this is Mr. Weir speaking—

‘‘¢the union ‘notified my association through me,. .

' - that, beginning the 15th of January, it would not al-

low employees of wholesalers with whom it had con-

_ tracts to ‘sell or deliver any electrical ‘materials to

contractors whuse employees were not members of

IBEW Locull No. 3, notwithstanding the fact that this

union has’ full, closed membership in their contract-

ing group and has- expressly stated. oe they would

not accept any new members, a

—1ll— | ‘?

It seems clear that the observations in, “the foregoing

‘quotation relate to the following language of this Court in

its- opinion in Allen Bradley at pages 810-811:

‘Our holding means that the same labor union ac- ,

tivities may or may not be in violation of the Sher-

man Act, dependent upon whether the union acts .

alone or in gombination with business groups. This, { .

it is argued, brings- about a wholly uridesirable result

—one which leaves, labor unions free to engage nm +4

conduct -which restrains trade. But the desirability

of such~“an exemption of labor unions is a question ,

for the determination of Congress.

3 ae * * * * * * *

‘« Congress evidently concluded, however, that the

chief objective of: antitrust legislation, , presegvation

of businéss. competition, could be accomplished by ap-

plying the legislation primarily only to those busi-

ness groups’ which are directly interested in destroy-

ing competition. The difficulty of drawing legislation

primarily aimed ‘at trusts and monopolies so that it

_ could also be applied to labor organizations without ——

. impairing the collective bargaining and related rights

of those organizations has been emphasized both by-

congressional and judicial atterhpts to draw lines be- |

tween permissible and prohibited union activities.

There is, however, one line which. we can. draw with®

assurance that we follow the congressional purpose.

We know that Congress feared the concentrated power

of business organizations: to dominate markets ‘and

_ prices.. It intended to outlaw business monopolies. A

business monopoly is-no less‘such because a union

participates, and such partiéipatior is a violation of

the Act.”’ Kee °: “

—12—.-

_ CONCLUSION.

It is submitted that the foregoing legislative history

shows no intent on the part of Congress to weaken or

change the antitrust law as it existed in 1947, after the -

Allen Bradley decision; rather it appears strongly that -

Congress was primarily concerned, with strengthening the

Labor Law in a. situation, outside of the Allen Bradley

type of conspiracy, where the union was acting alone for 7

, its own benefit, in the- limited situation#8pecified in the —

"secondary boycott provisions of the Taft-Hartley Act.

: Respectfully submitted, —.

JOHN A. ROWNTREE, .

Attorney for. Respondents,

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