Petitioners Reply Brief — United Mine Workers v. Pennington

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Gtrice-Suprame Court, U.S.

FILED

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JAN 21 1965

IN THE JOHN F. DAVK, CLERK

‘Supreme Court of the United States

-OCTORER : ‘TERM, 1964

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No. 48

UniTEp Mine Workers OF: AMERICA,

Petitioner

JAMES M. PENNINGTON.

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Raymonp E. PHILLIPS and _

Littian Goap PHILLIPS, Admz. of the Estate of

BuRSE PHILLIPS, deceased,

Respondents

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On Writ of Certiorari.to the United States

_ Court of Appeals for the Sixth Circuit

PETITIONER’S REPLY BRIEF

HARRISON Conn.

900 Fifteenth Street, N. W..

‘Washington, a Se

E. H. Rayson,

R. R. KRAMER,

904 Burwell Building,

Knoxville, .Tennessee

M. E. Botarsky,

311 Kanawha Valley Building.

-Charleston, West Virginia _

‘Attorneys for Petitioner

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JARRETT PRINTING COMPANY. CHA

RLESTON, W.VA EES.

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_ IN THE

" Buiten States Court of ite

OcTOBER TERM, 1964 oF

No. 48° A

UnitreD Mine WorKERS OF AMERICA,

Petitioner

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JAMES M. PENNINGTON; RAYMOND E. PHILuips and

LILLian Goap Puities, Admz. of the Estate of

BursE PHILuips, deceased,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Cirenit

PETITIONER'S REPLY BRIEF

' Answers to Respondents’ (Phillips’) ‘brief are found

in Petitioner’s (UMW) main brief but inaccuracies in

Phillips’ brief compel this reply.

Phillips’ attempted. summation of UMW’s arguments

_ is an aberration of UMW’s position as set forth in its

brief. The entire tenor of its.brief opposes the. concept,

expressed in’ Phillips’.summation (Phillips’ Brief 11),

that UMW argues that Sherman permits a union to be ©

“excused if one of the purposes of market restraints °

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pursuant to a conspiracy’ .with business groups is to pro-

mote otherwise legitimate Union purposes”. UMW

argues antithetically that no conspiracy ‘existed and no

conspiracy was proved. == :

* Nor has UMW in its brief attacked prior decisions of

‘this Court as “not sound precedents”, as Phillips (Br.

11) attributes to it. Though UMW cites Allen Bradley

Co. v. Local Unign.No. 3, 325 U. S. 797 seven times, none

supports Phillips’ contention of UMW’s attack on its

validity. Allen Bradley is simply not apposite because its

‘factual situation, totally different from that: presented

herein, produced the conspiracy which the Court con-

demned. But, it is notable that in Allen Bradley, Mr.

~ Justice Black carefully noted that the labor agreement

“standing alone would not have violated” Sherman and,

as carefully he pointed out that “it did not stand algne”,

explaining “It was but one element‘in a far larger pro-

gram in which contractors and manufacturers united

with one another to monopolize all the business in New

York City, to bar all other business men from that area,

and to charge the public prices above a competitive level” —

(325 .U. S: 809). Such a program is wholly lacking

herein. Even Phillips has not contended for its existence. _

Had the union acting alone added to costs or caused

“individual refusals of all their employers to buy electri-

cal equipment not made by Local No. 3”, then, as Allen

Bradley declares, “it would have been the natural conse-

quence of labor union activities exempted by the Clayton

Act from the coverage of’ Sherman (p. 809). Thus, it

becomes clear that by its assertion (Br. 14) .that UMW’s

promotion of legitimate ends of labor in improving its

members’ conditions “was not an excuse when there were %

also present purposes which violated the Sherman Act”,

‘All emphasis herein are supplied, unless otherwise indicated.

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Phillips obviously equates “purposes” with “illicit combi-

‘nation between a union and business .group” (Br. 14),

which Phillips assumes in the instant case and which

UMW has shown fully in its main brief did not exist . |

under the proof.

Nor is Phillips’ conspiracy assertions (Br..16) aided by’

its citation of United Bro. of Carpenters v. U. S., 330 U.S.

395. Phillips’ comparison of Carpenters with Allen Brad-

ley (Br. 16) sufficiently shows Carpenters’ inapplicability

herein. Indeed, the Ninth Circuit’s opinion in Carpenters

(Lumber Products Assoc., Itc. Vv. U. S., 9-Cir., 144 F. 2d

546), stresses Carpenters’ similarity to Allen Bradley in

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stating (p. 552), °“. _. we find evidence of agreements

between the two groups and conduct on the part of each ,

directed at the elimination of competition from the north-

ern products by the price control”, which the Ninth Cir-

cuit characterized as “squeezing implements to extoft

what, in effect, is a capital levy on the home builder and

other consumers” (144 F. 2d 551). Indeed, this Court’s

citation of Allen Bradley as support for Carpenters (330 * —

U. S. 400) indicates Carpenter to be an Allen Bradley

type of situation which, as has been shown, has np rele-.

vancy herein. “ ' '

Further, Phillips’ comparison of the clause in Carpen-

ters? labor contract with the protective wage clause in

_ UMW’s contract is not apt. In Carpenter (330 U. S. 395)

the clause provided that “no material will be purchased

- from, and no work willl be done on any material or article

-that has had any operation performed’ on same by Saw:

Mills, Mills, or ‘Cabinet Shops, or their distributors that

do not conform to the rates of wage and working ¢on-

‘ditions, of this agreement (330 U. S. 399). On the other

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hand, UMW’s - gi deals with sub-contracting’.

- Indeed, in the recerit Fibreboatd Paper Products Corp. v.

NLRB, U.S. _.., 13 L. ed 2d 233 (Dec. 14, 1964),

this Court declared that replacement of employees in an

_ existing contract unit with those of an independent con-

tractor to do the same work under similar.conditions of

employment is a mandatory subject of collective bargain- ©

-ing under the Act’s Section. 8(d),. making it an em-

ployer’s duty to confer in good faith with the Union rep-

résentative of his employees relative to the inclusion of

_ such sub-contracting. es ’

Similarly, contrary to Phillips’. assertion (Br. 24),° -

UMW has not, as Phillips’ states (Br. 24), taken “occa- |. .

sional jabs”. at Apex, Hutcheson, Allen Bradley and Car- .

penters. In fact, UMW’s brief reliés upon Aper and .\

Hutcheson in eleven and seven instances, respectively.

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_» That Phillips’ brief assumes proof of the conspiracy is

made evident in its assertion (Br. 21) that “Acts done

to give effect to the conspiracy may be, within themselves,

wholly innocent acts”. but that “if they are part of the

sum of the acts ... relied upon. to effectuate the con-

spiracy.... they:come within” Sherman’s prohibition, cit-

ing American Tobacco Co. v. United States, 328.U. S. 781,

809. Phillips’ thesis is readily answered by Allen Brad-

ley’s recognition that conduct permitted by labor statutes |

*UMW’s 1958 agreement provided inter alia (p. 1109a): “It is recog- oS

nized that when signatory operators mine, prepare, or procure or acquire

under sub-contract arrangements bituminovs coal rnined under terms

' and conditions less Savorsble than those provided for in this contract,

they deprive employees of employment opportunities, employment con-

ditions, and other benefits which these employees are entitled to have

‘ safeguarded, stabilized and protected. Accordingly, the operators agree

that ell bituminous coal mined, produced or prepared by them or

_of them, or procured or acquired by them or any of them under a in

contract arrangement, shal] be and shall have been mined or producet,

under terms and conditions which are as favorable to the employees as \_ -

those provided for in this contract.” eS EAS

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“is not to be declared a violation of: Federal law” (325

U. S. 806).

-UMW’s main britf shows cia the aimee upon which

the. Sixth Circuit premised its-affirmance of the jury’s |

_verdict are inconsonant with this Court’s decisional law

and congressional enactments expressive -of tiational

labor policy. Phillips’ brief does not undertake to answer -

UMW’s contentions that such elements do not accord with

such decisions and legislation. UMW reiterates what it

said in its main brief, namely that “the claimed existence” _

of a conspiracy herein is to be found in Phillips’ constant .

assertion thereof “rather thari in /the proof.” G. & P. :

*“ Amusement Co. v. Regent Theater Co., D.C., ND. Ohio,

1952, 107 F. Supp. 453, 461.

CONCLUSION

For the foregoing reasons, and those which are assigned

and discussed in UMW’s main brief, UMW submits this

Court should grant the relief sought by UMW in its

original brief (p. 72). ;

Respectfully submitted,

HARRISON CoMBS, | '

900 Fifteenth Street, N. W.,

Washington, D. C.

E. H. Rayson, °

R. R, KRAMER,

904 Burwell Building,

Knoxville, Tennessee

M. E. Botrarsky, .

511 Kanawha Valley Building,

Charleston, West Virginia

: Attorneys for Petitioner

January, 1965.