# Petitioners Reply Brief — United Mine Workers v. Pennington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0181%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1965 - **Citation:** 381 U.S. 657 ## Text 2 > - -_ ‘ - “ ’ - - 3 e “A Gtrice-Suprame Court, U.S. FILED ee JAN 21 1965 IN THE JOHN F. DAVK, CLERK ‘Supreme Court of the United States -OCTORER : ‘TERM, 1964 ee a No. 48 UniTEp Mine Workers OF: AMERICA, Petitioner JAMES M. PENNINGTON. . a Raymonp E. PHILLIPS and _ Littian Goap PHILLIPS, Admz. of the Estate of BuRSE PHILLIPS, deceased, Respondents f 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 « JARRETT PRINTING COMPANY. CHA RLESTON, W.VA EES. ’ . 3 iz s . s “a a - “s : _ . i: , ° ‘ : > % h . o \ e ie \ i . 3 ‘ ° ¥ . . . : ’ - o® S ° e . > . ° « * ;. . a » : ‘ ° . ; . ‘s, 5 ° . ! id ° ‘ mat / u y P , ‘ foo ° P + : \ 3 . ; * _ IN THE " Buiten States Court of ite OcTOBER TERM, 1964 oF No. 48° A UnitreD Mine WorKERS OF AMERICA, Petitioner Pi 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 ° v | 2 e 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. ae 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 ~ 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 ~ 4 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. $ _» 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 5 “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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0181%3A13. Public record. Not legal advice.