Opposition Brief — Ramsey v. United Mine Workers

INDEX

TABLE OF CONTENTS

Opinions BELOW ; Lae

JuRISDICTIONAL GROUNDS . 2

STATUTES AND RULES INVOLVED

COUNTERSTATEMENT OF QUESTIONS PRESENTED

COUNTERSTATEMENT OF THE CASE

B. The Kind of Action

2

3

3

A. Legal Principles Involved 3

5

UMW Theories 5

6

C. The Judgments Appealed

D. The District Court Exonerated UMW of

Conspiracy Prior‘to the 1958 Agreement 6

E. The Sixth Circuit’s Affirming Opinion, Like

the District Court, Held the 1958 Agree-

ment’s Protective Wage Clause to Be Valid

and Did Not Constitute a Sherman Act

Violation

1. Facts Pertaining to PWC

2. Prior to the Instant Action, the Sixth

Circuit Held PWC Valid . Ay

3. Consistent With Second Sicailiaias: the

District Court Held PWC Valid Under

Sherman - ae

4. The Sixth Circuit’s Affirming Gislates

Consistent With Second Pennington,

Held PWC Valid enedpeisnesees 12

Page

F. The Sixth Circuit’s Affirming Opinion, Like

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 13

G. The Sixth Circuit Divided Evenly On the

Issue of the Proper Standard of Proof 16

ii Table of Contents Continued

ARGUMENT - akan fe RE Seu 17

A. There Is No Substantial Federal Question

Presented - v8 17

1. The Sixth Circuit’s Affirming Opinion

Correctly Holds That Section 6 of The

Norris-LaGuardia Act Is The Proper

Standard of Proof Applicable To a

Sherman Act Suit Against a Labor Union 17

a. This Court denied certiorari in second

Pennington, which had adopted Nor-

ris-LaGuardia’s “clear proof” rule as

the proper standard of proof in a

Sherman Act suit involving a labor

me _.. _

b. Section 6’s legislative history makes

clear its applicability where labor

unions areinvolved. ss stséid'

¢e. The Sixth Circuit's affirming opinion

accords with prior cases of this Court 19

2. Both Congress and This Court Have Re-

jected Petitioners’ Contentions Concern-

ing Industry-Wide Bargaining and Na-

tional Labor Agreements

3. Effects and Consequences May Not Be

Substituted For a Conspiracy Under the

MOT ee is 24

—

Table of Contents Continued iii

Page

4. The Sixth Circuit’s Affirming Opinion

and the District Court, Applying This

Court’s Guidelines in First Pennington,

Properly Exonerated UMW of the Al-

leged Conspiracy 27

a. The affirming opinion correctly deter-

mined that an anticompetitive con-

spiracy is essential to a Sherman

violation ; 27

b. The Sixth Circuit’s affirming opinion,

like the district court, properly re-

jected petitioners’ contentions that

PWC violated Sherman 29

ce. The Sixth Circuit’s affirming opinion

and the district court properly re-

jected petitioners’ contentions that

UMW violated Sherman 33

5. Petitioners Seek This Court’s Review Of

Evidence Which Both The District Court

And The Sixth Circuit’s Affirming Opin-

ion Have Held Did Not Support The

Charge That UMW Conspired In Viola-

tion Of The Sherman Act 34

CoNCLUSION 35

TABLE OF CASES

Allen apo ll Co. v. Local Union No. 3, 325 U.S.

797, 806 . ae ; 26

American Federation oboe Musicians v. Carroll, 391

U.S. 99, 106 ~ ts 27

Anderson V. ste Owners Association, 272 U.S. 359,

363-65 | joan 32

—_— Sire marae wis oecaen sorte Myles

=~

iv Table of Contents Continued

Page

Apex pees Co. v. Leader, 310 U.S. 469, 502, 503,

513 _ Bas 4, 14, 15, 28

ined Milk Sinton Inc. v. Milk Drivers Union,

Teamsters, 7 Cir., decided hiniihned 6, 1970, 73

LRRM 2435, 2440 PLE AMET A Pa 16, 27

Associated Press v. United States, 326 U.S. 1 - 3)

Boyle, et al., 179 NLRB No. 80, 72 LRRM 1426 12

Carpenters v. U. S., 330 U.S. 395, 401, 403, 410 19, 20,

21, 22

Cedar Crest Hats, Inc. v. United Hatters, Etc. Union,

5 Cir., 362 F. a... 27

Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355,

363-64 _. 23

Fashion Originators ¢ Guild v. Federal Trade Com-

mission, 312 U.S.457 32

Great Northern bie Co. v. Delmar Co., 283 U.S.

686, 691 - 1]

H. K. Porter Co., Inc. v. NLRB, decided March 2,

1970, 73 LRRM 2561, 2563- 64. ae 32

Hunt v. Crumboch, 325 U.S. 821, 824__. ae 14

Lewis v. NLRB, D. C. Cir., 350 F.2d 801. 12

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

257 F.Supp. 815, 862 - 10

Lewis v. Pennington, 6 Cir., (decided ie:

1968) 400 F.2d 806, 814, 815 | 9, 10, 11, 12, 13,

16, 17, 24, 25, 28, 30, 31

NLRB v. Truck Drivers Union, 353 U.S. 87, 95. 22

National Dairy Products Corp. v. Milk Drivers, ete.

Union, USDC, S.D. N.Y., decided d February 4,

1970, 73 LRRM 2444, 2447 _ RR eo ie 16, 27

—

Table of Contents Continued Vv

Page

Parks v. IBEW, 4 Cir., 314 F.2d 886, 906-07. 22

Pennington v. UMW, Case No. 558, 393 U.S. 983. 17, 18,

24, 25, 28, 31

Pennington v. UMW, 6 Cir., 325, F.2d 804, 810 21, 32

Perry Coal Co. v. NLRB, 7 Cir., 284 F.2d 910, 914 11

Ramsey v. UMW, DC, E.D. Tenn., S.D., 1967, 265

F.Supp. 388, 406, 407, 408, 409, 410, 412, 415,

416, 417, 418, 419, 420, 421, 422, 423, 424, 425,

426, 427, 428, 429, 430, 431, 432, 439 a. 7.@ 3,

12, 14, 15, 16, 21, 30, 32

Ramsey v. UMW, 6 Cir., Cases Nos. 17,878-79, 416

F.2d 655 (1969) __....1, 6, 10, 12, 13, 14, 15, 16,

17, 18, 19, 20, 21, 28, 30

Republic Productions, Inc. v. American Federation

of Musicians, DC, S.D. N.Y., 1965, 245 F.Supp.

SSeS Fas ; 27

The Order of Rr. Telegraphers v. Chicago, etc. R. Co.,

362 U.S. 330, 339-40 , 26

UMW v. Gibbs, 383 U.S. 715, 733, 737 4,5, 17, 20, 21

UMW v. Pennington, 381 U.S. 657, 661, 662, 663, 664,

665, 666, 667, 668, 672, 673 3,4, 5, 7, 12, 16, 18,

19, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33

U. S. v. Hutcheson, 312 U.S. 219, 232 19, 26

U.S. v. Johnson, 319 U.S. 503, 518 : 31

U. S. v. Johnston, 268 U.S. 200, 227 ee eat 34

U.S. v. Morgan, DC S.D. N.Y., 1953, 118 F.Supp.

| 621, 634 | 34

U.S. v. U.S. Gypsum Co., 333 U.S. 364, 394.31

United Steelworkers v. R. H. Bouligny, Inc., 382

U.S. 145, 153 peaee etc!

~~"

vi Table of Contents Continued

STATUTES AND RULE

Page

Sherman Antitrust Act 2,3, 4, 5, 6, 7, 8, 11, 13, 14, 15,

17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 33, 34

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

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

Clayton Act 2, 5, 6, 19, 20, 26, 98

Section 4 (15 USCA 15) si )

Section 6 (15 USCA 17) __- mec Sy

Section 20 (29 USCA 52) n 2, 6, 28

Norris-LaGuardia Act (29 USCA 101 et seq.)

2, 3, 5, 6, 11, 13, 16, 17, 18, 19, 20, 21, 22, 26, 28, 33

Section 2 (29 USCA 102) 2

Section 4 (29 USCA 104) . 2, 28

Section 6 (29 USCA 106) 2, 3, 5, 11, 13, 16,

17, 18, 19, 20, 21, 22

Labor-Management citing and Disclosure Act

of 1959 23

Labor Management Relations Act, 1947 “(Taft

Hartley Act) 2, 12, 22, 32

29 USCA 141 (ssh SAR EL ke 2

I cs ik 2

29 USCA 157 - nae ee enaeionilaae. AT

29 USCA 158(b) _...._.._._.___ xa 2

eee eee ._ &

A | a

Landrum-Griffin Act 12

Employment Act [15 USCA 1021, 1022, -1024(2,

(b) and (c)] . — Se

Rule 52(a), Federal Rules of Civil Wa os =

. ow - —_ . . 7

PRS Ie LE BPE NY eT eT, ok wits? ys 30)

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Table of Contents Continued vii

Page

MISCELLANEOUS

Legislative History of the Labor Management Re-

lations Act, 1947 (U.S. Government Printing

Office, 1948), Vol. I, pp. 326, 457, 584, 636, 643,

673, 715, 758, 760, 764-65; Vol. II, pp. 970, 1037,

1038, 1059, 1271-78, 1299, 1301-02 22

Legislative History of the Labor-Management Re-

porting and Disclosure Act of 1959 (Government

Printing Office, 1959), Vol. II, pp. 1941-42, 1690,

1508, 1717, 1747, 1837, 1189-90, 1320, 1809 23

Senate Report No. 163, 72d Congress, lst Session,

p. 19 18

INDEX TO APPENDIX

Appendix A:

Statutes and Rule la

Appendix B:

Excerpts from Legislative History of the Labor-

Management Reporting and Disclosure Act of

1959 12a

LOT ORS EEE NOR:

_

In THE

Supreme Court of the United States

OcToBER TERM, 1969

No. 1179

GrEoRGE RAMSEY, et al.,

Petitioners,

V.

- Unirep 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

Petitioners accurately note (Pet. 3) the Sixth Circuit's

opinions are reported in 416 F.2d 655 and appear in

Appendix A to the certiorari petition (the affirming

opinion, per Circuit Judge Edwards, at pp. 31-55, while

that per Circuit Judge O'Sullivan is at pp. 55-75).

SO TE SRE eae Re EA RE pe IP

2

The district court’s opinion,' reported in 265 F. Supp.

388, appears in the Certified Record (61-167a).’

PS

a

As the certiorari petition indicates (p. 3), the Stipu.

lated record includes, inter alia, the printed Appendix

filed in the Sixth Circuit by petitioners (three volumes

with page numbers followed by the letter “a’”’) and the

printed Appendix filed by United Mine Workers of

America (three volumes with page numbers followed by

the letter “b”), and the small printed volume entitled,

“Supplementary Appendix for Plaintiffs-Appellants”, pp,

1124-91a.

JURISDICTIONAL GROUNDS

Jurisdictional requisites are adequately set forth in

the certiorari petition (p. 3).

STATUTES AND RULES INVOLVED

The statutory provisions involved are Sections 1 and 2,

Sherman 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-La-

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

Management Relations Act, 1947 [29 USCA 141, 151, 157

and 158(b) and (e)]. Petitioners erroneously include

(Pet. 5) the Employment Act [15 USCA 1021, 1022,

1024 (a), (b) and (c)], discussed, post, p. 24.°

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

to herein as “Sixth Circuit”.

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

see, Southern Division (at Chattanooga) is referred to as “district

court”.

*Since the certiorari petition herein fails to comply with this Court's

Rule 23 (i), respondent UMW’s references to the district court’s opin-

ion will be to the case as reported in 265 F.Supp. 388-439.

‘These statutes are herein called Sherman, Clayton, Norris-La-

Guardia and Taft-Hartley, respectively. Pertinent statutory provi-

sions, as well as Rule 52(a), are found in Appendix A to this brief,

pp. la-lla.

Lined

Ue dh Ca Chika na a al ee A a1

_

3

Also involved is Rule 52(a), Federal Rules of Civil

Procedure.

COUNTERSTATEMENT OF QUESTIONS PRESENTED

UMW does not accept the statement of Questions Pre-

sented as set forth in the petition (pp. 4-5). In lieu there-

of, UMW submits the following:

1. Did the Sixth Circuit’s affirming opinion and the

district court properly hold that proof of a conspiracy

between employers and labor, formed with the intention

of driving competitors out of business, is essential to a

finding that a labor union has violated the Sherman Anti-

trust Act and that the anticompetitive conspiracy must

be established by “clear proof” under Section 6 of the

Norris-LaGuardia Act?

9. Did the Sixth Circuit’s affirming opinion and the

district court, under applicable law and the evidence,

properly exonerate UMW of the conspiracy charged

under Sections 1 and 2 of the Sherman Antitrust 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?

COUNTERSTATEMENT OF THE CASE

A. LEGAL PRINCIPLES INVOLVED.

In UMW v. Pennington, 381 U.S. 657, this Court de-

lineated, in its majority opinion, guidelines for determin-

ing antitrust violations involving labor unions. It held

it is “beyond question that a union may conclude a wage

agreement with the multi-employer bargaining unit

without violating the anti-trust laws and ... may as a

matter of its own policy, and not by agreement with

PEER LIE LONE AER NRG RO:

*

all or part of the employers of that unit, seek the same

wages from other employers” and no case under Sher.

man “could be made out on evidence limited to such

union behavior” (381 U.S. 665).‘ It avowed:

“Unilaterally, and without agreement with any

employer group to do so, a union may adopt a

uniform wage policy and seek vigorously to im.

plement it even though it may suspect that some

employers cannot effectively compete if they are

required to pay the wage scale demanded by the

union”

and, further,

4

“The union need not gear its wage demands to

wages which the weakest units in the industry

can afford to pay. Such union conduct is not alone

sufficient evidence to maintain a union-employer

conspiracy charge under the Sherman Act. There

must be additional direct or indirect evidence of

the conspiracy” ( p. 665, fn. 2).

Underlying Pennington’s premise is recognition that “a

legitimate aim of any national labor organization is to

obtain uniformity of labor standards” and, as Aper

Hosiery Co. v. Leader, 310 U.S. 469 held, “a consequence

of such union activity may be to eliminate competition

based on differences in such standards” (381 U.S. 666).

Pennington recognized “ ... a union forfeits its exemp-

tion from the anti-trust laws when it is clearly shown

that it has agreed with one set of employers to impose

a certain wage scale on other bargaining units” (381

U.S. 665). Subsequent to first Pennington, 381 U.S. 657,

this Court held in UMW vy. Gibbs, 383 U.S. 715, that

to obtain the same terms from other employers” (381 U.S. 665). [All

emphases are supplied, unless otherwise indicated. ]

—

5

Norris-LaGuardia’s Section 6 conditions a union's re-

sponsibility in a federal court for unlawful acts of

its officers, members or agents only upon “clear proof”

of the union’s actual participation in, or actual authoriza-

tion of, such acts or of ratification of such acts after

actual knowledge thereof, defined as “clear, unequivocal

and convincing proof” and “more than a bare preponder-

ance” (p. 737).

Following both first Pennington and Gibbs, the Sixth

Circuit appraised first Pennington’s teachings to be (1)

that a conspiracy between employers and labor formed

with the intention of driving competitors out of business

is a Sherman violation; (2) that “predatory intent” as

used in first Pennington “is merely shorthand, employed

to describe this anti-competitive conspiracy” and (3)

that such an anti-competitive conspiracy must be estab-

lished by “clear proof”, directing attention to Gibbs, 383

US. 715 (Lewis v. Pennington, 6 Cir., 400 F.2d 806, 814).

B. THE KIND OF ACTION.

This action involved implementation of the foregoing

guidelines relating to UMW’s exemption as a labor union

from Sherman’s proscriptions.

Petitioners herein are 18° coal producers in southeast-

ern Tennessee which sued the United Mine Workers of

America (UMW), seeking damages for an alleged vio-

lation of Sherman’s Sections 1 and 2.

UMW Theories

UMW’s theories (66-69a) summarized are: UMW

denied the conspiracy charges. It asserted UMW is a

labor organization within Clayton’s Section 6, that by

517 of petitioners were plaintiffs-appellants in the Sixth Circuit’s

Case No. 17,878, and Tennessee Products & Chemical Corporation was

plaintiff-appellant in the Sixth Circuit's Case No. 17,879.

—

virtue of Clayton’s Sections 6 and 20 (15 USCA 17, 99 |

USCA 52) and the Norris-LaGuardia Act (29 USCA 10] |

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

F 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 mem.

bers.

6

C. THE JUDGMENTS APPEALED.

i The cases were heard by the district court sitting with-

3 out a jury. The district court’s March 4, 1967, opinion

(61-167a) exonerated UMW of the alleged Sherman

4 conspiracy; and its judgment orders of March 9, 1967, in-

: cluded the district court’s opinion that petitioners “failed

to establish their alleged causes of action against” UMW

; and dismissed with prejudice their actions (168-69a),

j from which petitioners appealed (172a).

E

5 The Sixth Circuit affirmed by an evenly divided Court

(Pet. A. 32).

F D. THE DISTRICT COURT EXONERATED UMW OF CONSPIRACY

‘ PRIOR TO THE 1958 AGREEMENT.

. Noting UMW’s consistent policy and goals since 1890

j to establish uniformity of wages and labor standards,’ its

. consistent opposition to wage-cutting to meet competi-

tion,’ and the uncontradicted denials of the conspiracy

*Page references supporting the district court findings are: 737-38a,

744a, 746-54a, 1332-1336b.

’Page references supporting the district court findings are 592-93a,

739-40a, 742a, 744a, 787-88a, 791a, 1324-26b, 1337b.

=_

7

charge’, the district court exonerated UMW from the

conspiracy charge that the 1950 contract was conspira-

torial, finding it was “negotiated under intense national

interest, intense publicity, and intense supervision by

and pressure from the Federal Government” (265 F.

Supp. 406; 95a). It rejected petitioners’ contention that

peaceful bargaining in the post-1950 period evidenced a

conspiracy and refused to read a Sherman conspiracy in-

to the UMW-BCOA negotiations in negotiating and exe-

cuting the 1951, 1952, 1955 and 1956 contracts, declaring

(265 F.Supp. 408; 98a), “That these more peaceful proce-

dures suggest a Sherman Act conspiracy . . . is not rea-

sonably to be inferred”, and “A contrasting peaceful

and orderly pattern of collective bargaining following a

prior pattern of industrial warfare 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 disregards

UMW’s undeniable right, consistent with first Penning-

ton not to “gear its wage demands to wages which the

weakest unit in the industry can afford to pay” (265

F.Supp. 407; 95-96a).

Of economic pressures resultant from wage increases

and mechanization, the district court declared (265 F.

Supp. 409; 101a), “economic pressures created by techno-

logical 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.”

*Page references supporting the district court findings are: 294a,

5lla, 585-86a, 637-38a, 644a, 667a, 714a, 825-26a and 922a.

8

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

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

(265 F.Supp. 410; 102a).

E. THE SIXTH CIRCUIT’S AFFIRMING OPINION, LIKE

THE DISTRICT COURT, HELD THE 1958 AGREEMENT’S

PROTECTIVE WAGE CLAUSE TO BE VALID AND DID

NOT CONSTITUTE A SHERMAN ACT VIOLATION.

1. Facets Pertaining To PWC.

The Protective Wage Clause (PWC) [see Appendix

C to certiorari petition, pp. 93-98] 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 agreement, negotiated

by the Secretary of the Interior and known as the Ickes.

Lewis Agreement, contained an identical cleuse (938a),.

Subsequent agreements negotiated 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

avoiding the application of this agreement”

(940a).

—

9

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: “Subcon-

tracting by signatory operators is nothing more than pure

evasion of their contractual obligation to pay and main-

tain the agreed standards of wages and... vitally affects

our members because it progressively undermines our

members’ tenure of employment and results in removing

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, '

produced, prepared, procured or acquired by signatory

operators shall be mined under labor Standards as favor.

able 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 cop.

tractually 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).

10

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

entered into any agreement other than the collective

bargaining agreement (824a, 1029a). Uncontradicted

evidence of UMW witnesses show 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.

2. Prior to the Instant Action, the

Sixth Circuit Held PWC Valid.

In second Pennington (Lewis v. Pennington, (6 Cir.,

400 F.2d 806, 814, decided September, 1968)—a year

prior to Ramsey (416 F.2d 655)], the Sixth Circuit

agreed with the district court (257 F.Supp. 815, 862)

that the disputed PWC, properly construed did not re-

SPERM LINAS SORE LO ENOTES RAL CE

ee le ae .

_

11

quire UMW to impose the wages therein contained on

nonsignatory employers, and it approved the legal prin-

ciple that “Where two reasonable constructions of a

written contract can be made, preference is given to that

construction . . . 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. Additionally, the Sixth Circuit observed,

“even without the operation of this principle of law we

would incline to the conclusion that the agreement did

not constitute a violation of the Sherman Act, the record

containing insufficient evidence from which a conspiracy

or other violation could be found to have been clearly

shown” (400 F.2d 815).

3. Consistent With Second Pennington, the

District Court Held PWC Valid Under Sherman.

Though the district court’s Ramsey preceded the

Sixth Circuit’s second Pennington, its Ramsey opinion

applied the legal principle above noted and declared

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

Contract (265 F.Supp. 412). It then posed the quaere

whether UMW “did in fact, though not expressly, so

contract with” BCOA (p. 412). Implementing the stan-

dard of proof required by Norris-LaGuardia’s Section 6

(29 USCA 106), the district court found the record “does

not establish such clear and unequivocal proof as to war-

rant the Court in finding” UMW “pursued its policy of

uniformity of wage and labor standards by agreement

with one or more employers, as distinguished from pur-

suing such policy on its own” (265 F.Supp. 412). Further,

it declared, “The only direct evidence in the record is to

ae

12

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

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).’

4. The Sixth Circuit's Affirming Opinion, Consistent

With Second Pennington, Held PWC Valid.

As elsewhere noted (ante, p. 6), an evenly divided

Sixth Circuit affirmed the district court’s holding as to

PWC. Circuit Judge Edwards, with whom Chief Judge

Phillips and Circuit Judges Peck and Combs concurred

(Pet. A. 32), refused to find in PWC’s language UMW’s

express undertaking to impose the BCOA-UMW wage

“The district court noted (265 F.Supp. 410, fn. 2) PWC’s history

subsequent to 1958 and deemed it immaterial to the present issue.

Under Lewis v. NLRB, D. C. Cir., 350 F.2d 801, and Boyle, et al.,

179 NLRB No. 80, 72 LRRM 1426, decided November 4, 1969 (NLRB

Chairman McCullough dissenting), sanctioned PWC’s Paragraph B. as

a labor standards clause, permissive under Section 8(e), Labor Man-

agement Relations Act, 1947, as amended [29 USCA 158 (e)]. NLRB’s

holding is crucial in light of first Pennington’s recognition of national

labor policy as reflected by NLRB decisions (381 U.S. 666-68).

Lewis v. NLRB and Boyle, et al. challenge petitioners’ characteriza-

tion of PWC’s Paragraph B. as a “boycott of coal of non-complying

producers” (Pet. 11).

PDE NED POE S FUSES STC,

13

scale on all non-signatory coal operators “to force some

(including plaintiffs) out of business”, declaring the dis-

puted language indicates “it is expressly limited in its

effect to its signatories’ (Pet. A. 37), finding “the

language of the agreement did not per se constitute an

illegal conspiracy” (Pet. A. 44).

Likewise, rejection of petitioners’ contention of an

implied agreement is found in the affirming opinion’s ad-

herence (Pet. A. 46) to second Pennington (400 F.2d

815), which held PWC valid (ante, pp. 12-13), in the dis-

trict court’s conclusion that the standard of proof where

a labor union is involved is “clear proof” as required by

Norris-LaGuardia’s Section 6 (Pet. A. 39-40), in the

affirming opinion’s recognition that “reconciliation of

national labor policy with national antitrust policy de-

mands application of” such standard (Pet. A. 45), in its

rejection of petitioners’ claim concerning events in the

southeastern Tennessee coal fields and UMW’s invest-

ments in West Kentucky (discussed, post, pp. 13-14), and

in the Sixth Circuit’s holding that ample evidence sup-

ported district court findings (Pet. A. 55). As the affirm-

ing opinion aptly recites (Pet. A. 45), since labor unions

seek “agreements with employers on wages, hours and

working conditions”, and each has a separate motive “for

extending such agreement to other employers in the same

field, it would be simple to defeat the national policy of

encouraging collective bargaining by allowing easy im-

plication of union-employer antitrust conspiracies”.

F. THE SIXTH CIRCUIT'S AFFIRMING OPINION, LIKE THE DIS-

TRICT COURT, REJECTED EVIDENCE OF EVENTS IN SOUTH-

EASTERN TENNESSEE COAL FIELDS AND PRICING OF

COAL UPON THE TVA MARKET AS PROVING A SHERMAN

CONSPIRACY.

District court findings pertaining to UMW organiza-

ing activities and other events in southeastern Tennessee

coal fields appear in its opinion in 265 F.Supp. 424.3]

while UMW investments in West Kentucky Coal Com.

pany are detailed in 265 F.Supp. 412, the TVA market at

p. 415 and coal pricing on that market by West Kentucky

at pp. 416-23 and, in part, in the certiorari petition, pp, |

A.48-55.

14

The Sixth Circuit’s affirming opinion, like district

court holdings, found in essence (Pet. A. 47-55): (1) in

organizing activities in south-eastern Tennessee coal |

fields UMW pursued its own and its members’ interests

rather than those of BCOA: (2) petitioners’ economic }

troubles stemmed from geological structures of the coal _

fields making mechanization of mines to meet competi-

tive fuels’ competition difficult, and from under capitali-

zation and bad management; and (3) the total record did

not support the charge UMW conspired with West Ken-

tucky Coal Company so as to engage in predatory price

cutting on the TVA market, prices being based upon

legitimate business considerations to meet competition,

rather than lead the market downward (265 F.Supp.

422)."°

Petitioners’ references (Pet. 12, 17, 21) to strike acti-

vity, obviously intended to indicate illegal conduct, are

answered by Hunt v. Crumboch (325 U. S. 821, 824),

declaring, “It is not a violation of” Sherman “for laborers

in combination to refuse to work” and “They can sell or

not sell their labors as they please, and upon such terms

and conditions as they choose, without infringing the

Anti-trust laws”. Accord: Apex (310 US. 503).

ee ER PEM E TONNEERE Nae PRI: SOI NE EEE SA RE

WRAL LAT NILE DE LTE SNE: LTO DOS RO LOE NLD LES PE LHP LE TIES

—_

15

Consistent with Apex (310 U.S. 513) that “Restraints

not within the Act, when achieved by peaceful means,

are not brought within its sweep merely because. . . they

are attended by violence”, the district court declared

(265 F. Supp. 430), “picketing and violence are not per

se evidence” of a Sherman conspiracy. Further, peti-

tioners’ references (Pet. 17) to violence ignore the dis-

trict court’s statements (265 F.Supp. 429) that both

UMW, as well as petitioners, were victims of violence,

noting a district representative's home “was damaged by

dynamite’”’, “local union halls were burned” and ‘Union

men were shot at and union homes were burned”. The

irrelevancy of violence appears in the district court’s

finding that “in not a single instance was an act of vio-

lence traced to an identifiable assailant” and UMW “could

not be held chargeable for the violence, even were the

standard of proof required that of the usual civil case”

(265 F.Supp. 429). Of evidence pertaining to picketing

and violence, the district court found, “The record in this

regard fails to show any direct evidence of a Sherman

Act conspiracy” (265 F.Supp. 430; Pet. A. 48).

The district court, reviewing the evidence as a whole,

was unable to find the evidence clearly reflected peti-

tioners were victims of conspiracy between UMW and

any non-labor organization to eliminate or suppress com-

petition in the coal industry, or to eliminate or suppress

petitioners’ coal production. The district court declared,

“While many inferences favorable to [petitioners’] con-

tentions can reasonably be drawn from the evidence, in

every instance a no less equally reasonable inference can

be drawn to the contrary” and the latter, coupled with

positive denial by many witnesses of any conspiracy, “‘as

well as other inferences favorable only to the defendant’s

Be...

PF

Dall

16

contentions, do not permit a finding based upon clear ,

proof of an antitrust conspiracy” (265 F.Supp. 432).

Consistent with its second Pennington appraisal, and

that of other courts,'' of the teachings of first Pennington

(ante, pp. 3-5), the Sixth Circuit’s affirming opinion held

that Pennington required a finding of “predatory intent”

(Pet. A. 46).

The affirming opinion also declared, “There is ample

evidence in this record to support these findings; and we

certainly cannot hold them to be ‘clearly erroneous’”, !

citing Rule 52(a), Federal Rules of Civil Procedure (Pet,

A. 55).

G. THE SIXTH CIRCUIT DIVIDED EVENLY ON THE ISSUE OF |

THE PROPER STANDARD OF PROOF.

The certiorari petition accurately states (Pet. 18) that

originally a panel of three judges reversed the district

court on the ground that a preponderance of evidence

sufficed to support the conspiracy charge; a UMW peti-

tion to rehear en banc occasioned the Sixth Circuit to

divide equally and to affirm the district court’s Ramsey |

(416 F.2d 655). The issue over which the court divided

was whether Norris-LaGuardia’s Section 6 requires all

elements of a cause of action for antitrust violation to be

proved by “clear proof” where a labor union is defen-

dant, as held in the Edwards opinion, or whether the

statute’s standard is limited “to the determination of the

"See the Seventh Circuit’s Associated Milk Dealers, Inc. v. Milk

Drivers Union, Teamsters, decided February 6, 1970, 73 LRRM 2435,

2440, holding that “a majority of the Supreme Court in Pennington

requires proof of predatory purpose as a prerequisite to finding that

a most favored nation clause violates the antitrust laws” and National

Dairy Products Corp. v. Milk Drivers, etc. Union, USDC, S.D. N.Y.,

decided February 4, 1970, 73 LRRM 2444, 2447, noting “There is here

no anti-competitive purpose of the type that Sherman Act condemns”.

RPL OE WHER ERR IP LET IES MNO I I IR OT NES EE ND REE TON ON CAN

mmm

17

authority of ‘individual officers, members, or agents’ to

act for a labor union or other organization”, as the O’Sul-

livan opinion contended (Pet. A. 55-56).

In addition to its affirmance of the district court’s

findings (ante, pp. 8-16), the affirming opinion declined

“the invitation to write an advisory opinion” on the ques-

tion, “Does the Sherman Act place any restraints on

national collective bargaining?” (Pet. A. 34); while the

O'Sullivan opinion would reverse (Pet. A. 60) and vacate

the district court’s judgment and “remand the cause for

further proceedings consistent herewith” (Pet. A. 75),

noting the opinion did “not reach consideration of

whether the District Judge’s findings were ‘clearly

erroneous’” (Pet. A. 61).

ARGUMENT

A. THERE IS NO SUBSTANTIAL FEDERAL QUESTION PRE-

SENTED.

l. The Sixth Cireuit’s Affirming Opinion Correctly Holds

That Section 6 Of The Norris-LaGuardia Act Is The

Proper Standard Of Proof Applicable To A Sherman Act

Suit Against A Labor Union.

a. This Court denied certiorari in second Pennington,

which had adopted Norris-LaGuardia’s “clear proof”

rule as the proper standard of proof in a Sherman

Act suit involving a labor union.

The Sixth Circuit’s second Pennington (400 F.2d 814)

held that an anticompetitive conspiracy where a labor

union is involved must be established by “clear proof”,

citing Gibbs (383 U.S. 715) and, following the Sixth

Circuit’s adoption of its “clear proof” rule, this Court

denied certiorari in second Pennington (393 U.S. 983),

one question submitted being the applicability of the

z

>

og eee

18

“clear proof” rule under Norris-LaGuardia’s Section 6."

The O'Sullivan opinion ignores this fact.

Recognizing that denial of certiorari does not represent

affirmance, the affirming opinion states, “we consider it

inappropriate to discount completely the denial of certio.

rari in second Pennington” and observing the award of

certiorari in first Pennington with instructions for retrial,

the affirming opinion continued, “If the trial court, or

this court, had interpreted those instructions erroneously

in the course of retrial or appeal, we find it difficult to

believe that the Supreme Court would have ignored the

error” (Pet. A. 43).

b. Section 6's legislative history makes clear its applica.

bility where labor unions are involved.

The Sixth Circuit's affirming opinion’s adoption of

Norris-LaGuardia’s “clear proof” rule as the proper stan-

dard of proof is supported by Senate Report No. 163,

72d Congress, 1st Session, p. 19, to which the affirming

opinion refers (Pet. A. 45), which, under the heading,

“Responsibility for Unlawful Acts”, recites, in part:

“To hold that officers or members of a labor

organization, or the organization itself, should be

liable for damages for unlawful acts committed

while a strike is on, without clear, actual proof of

authorization, participation in, or ratification of

such unlawful acts, would go far toward the de-

struction of organized labor.

“Moreover, . . this section, as do most all of the

other prohibitive sections of the bill, applies both

"In second Pennington’s certiorari petition (Case No. 558, October

Term, 1968), Question 4 read thus:

“Is a Sherman Act case, based on a national contracting combina-

tion of union and business groups, to fail because of the proof of

specific intent being held insufficient to satisfy Norris-LaGuardia’s

‘clear proof’ rule when there can be no question of authorization,

ratification and participation in the industry-wide bargaining?”

PEELE STILETTO POEL NCL I OI I EE IR MORON TN ENA SBA

\ no: nema alaealia

—

19

to organizations of labor and organizations of capi-

tal. The same rule throughout the bill, wherever

it is applicable, applies both to employers and em-

ployees, and also to organizations of employers and

employees.

“| But no person or organization should be

held thus liable unless he or it caused the unlaw-

ful act or participated in it or ratified it.

* * * * *

“Opposition to this section has been voiced on

the ground that it seeks to establish a ‘new law of

agency.’ In the first place, this section is concerned

especially with establishing a rule of evidence.”

The O'Sullivan opinion read Section 6’s “black letter

title’, reading, “Responsibility of officers and members of

associations or their organizations for unlawful acts of

individual officers, members, and agents’’, as clearly ex-

posing the Section’s limitations and declared Carpenters

vy. U.S., 330 U.S. 395, clearly limits the “clear proof”

rule to the matter of proving the authority of an alleged

agent (Pet. A. 58)."°

c. The Sixth Circuit’s affirming opinion accords with

prior cases of this Court.

The Sixth Circuit’s affirming opinion comports with

first Pennington’s mandate (381 U.S. 665) that Sherman’s

scope be accommodative to the policy of labor laws by

“harmonizing the Sherman Act with national policy ex-

pressed in the National Labor Relations Act”, and with

the requirement of U. S. v. Hutcheson (312 U.S. 219, 232)

that the Sherman, Clayton and Norris-LaGuardia Acts be

treated as “interlacing statutes’.

The O'Sullivan opinion persists in the same error in appraising the

district court’s “clear proof” instruction in first Pennington (Pet. A.

64-65 and fns. 4 and 5).

7

Carpenters v. U.S. (330 U.S. 395), an antitrust case,

expressly held Norris-LaGuardia’s Section 6 applicable

in a Sherman case, thus discrediting the O'Sullivan

opinion’s statements (Pet. 24) the affirming opinion an.

nounces “a new rule giving labor unions special treat.

ment in defending suits under” Sherman and does vio. '

lence to Section 6’s plain language “by reading into it

new and special antitrust insulation of labor unions not

contained in the exemption granted them by the Clayton

Act”. Indeed, Carpenters announced on the issue of con-

spiracy that “the power of the trial court is limited by

$6 of the Norris-LaGuardia Act” (330 U.S. 401), “Con-

gress in §6 has specified the standards by which the lie-

bility of employee . . groups is to be determined” (p.

410), and Section 6’s “purpose and effect was to relieve

organizations, whether of labor or capital,” from liability

for damages or imputation of guilt for lawless acts done

in labor disputes by some individual officers or members

of the organization, “except”, as Section 6 states, “upon

clear proof” of the union’s “actual participation in, or

actual authorization of” unlawful acts “or of ratification

of such acts after actual knowledge thereof” (330 US.

403).

20

Sa ANTE Ae Lae Nig ie Te et ot

While the O'Sullivan opinion correctly avers (Pet. A.

57) Gibbs was not an antitrust action, Gibbs noted coun-

sel therein, as did petitioners herein, argued the case

“was a conspiracy to impose the UMW and the UMW’s

standard contract on the coal fields of Tennessee” (383

U.S. 733, fn. 20), and it was the union (UMW) whose re-

sponsibility was submitted to the jury; and, though ob-

serving Section 6 does not define “clear proof”, Gibbs

meaningfully declared the Section’s “history and ratio-

nale suggest that Congress meant at least to signify a

meaning like that commonly accorded such similar

—

phrases as ‘clear, unequivocal, and convincing proof’ ”

(383 U.S. 737).

While, as the O’Sullivan opinion points out (Pet. A.

57), Carpenters involved criminal proceedings, this does

not detract from its primary holding that Norris-La-

Guardia’s Section 6 is binding “upon all courts of the

United States in all matters growing out of labor disputes

covered by the Act” (330 U.S. 401).

The O'Sullivan opinion (Pet. A. 57) quotes from

Ramsey’s district court opinion (265 F.Supp. 412) that

“Were this case being tried upon the usual preponderance

of the evidence rule applicable to civil cases, the Court

would conclude that the U.M.W. did so impliedly agree”’,

but the district court failed to state upon what facts

it premised its conclusion, it did not hold this would con-

stitute a Sherman violation; and its statement is incon-

sistent with the court’s findings that “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” (265 F.Supp. 412) and “All of the

direct evidence in the record expressly denies the plain-

tiffs’ 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). Indeed, petitioners them-

selves inquire, “What part of the record or evidence was

it that made . . the trial judge, find that the preponder-

ance of the evidence proved a strait-jacket agreement by

UMW?” (Pet. 21).

The Sixth Circuit’s first Pennington (325 F.2d 804)

did not reject UMW’s contention that Section 6 should

apply.'* Whereas the O'Sullivan opinion (Pet. A. 63)

‘Neither Judges Weick nor O'Sullivan participated in that opinion.

Circuit Judges Celebrezze and McCree were not at the time members

of the Sixth Circuit.

ig.

21

22

considers the Supreme Court’s first Pennington would

permit a jury to find UMW guilty of a Sherman Violation,

actually the Supreme Court expressly observed (38}

U.S. 665, fn. 2) that “we indicate no opinion as to” the

evidence’s sufficiency. Justice White’s repetitive refer.

ences (381 U.S. 662, 663, 665) to Carpenters would render

it unrealistic to disassociate his “clearly shown” phrase

from Carpenters’ requirement of Section 6’s applicability,

tn Sm a

The foregoing discussion establishes the validity of

the affirming opinion on the proper standard of proof, as

well as the fallacies of the O’Sullivan opinion and peti. —

tioners’ assertion that the “clear proof” standard is but

a rule of proof of agency (Pet. 26).

2. Both Congress and This Court Have Rejected Petition.

ers’ Contentions Concerning Industry-Wide Bargain.

ing and National Labor Agreements.

NEE Mt SCE St OG IS SAA AES NS Ek ea? Neh cai

Petitioners’ complaints concerning industry-wide bar.

gaining and national labor agreements have been re.

jected by Congress and this Court alike (Pet. 4-5, 8, 20,

: 26-27).

H Legislative debates in connection with Congress’ en-

q actment of the Labor Management Relations Act, 1947,

i demonstrate Congress’ refusal to interfere with industry-

4 wide and multi-employer bargaining.’ Indeed, NLRB vy.

; Truck Drivers Union, 353 U.S. 87, 95, judicially records

3 such refusal, noting that “Approximately four million

4 employees are now governed by collective bargaining

Ao,

agreements signed by unions with thousands of employer

'*Legislative History of the Labor Management Relations Act, 1947

(U.S. Government Printing Office, 1948), Vol. I, pp. 326, 457. 584, 636,

643, 673, 715, 758, 760, 764-65; Vol. II, pp. 970, 1037, 1038, 1059, 1271-73,

1299, 1301-02.

Parks v, IBEW, 4 Cir., 314 F.2d 886, states (pp. 906-07), “A strong

provision prohibiting industry-wide bargaining was passed in the

House” but eliminated from the Senate Bill; and attempts to rein-

state the House provisions were defeated.

23

associations.” Congressional debates are clear its refusal

related to industry-wide bargaining.

Again, in 1959, legislative debates in connection with

the Labor-Management Reporting and Disclosure Act

of 1959 reflect Congressional determination not to inter-

fere with industry-wide collective bargaining, by re-

fusing to adopt proposals that the immunity accorded

labor unions be excised from antitrust laws. Precisely

the same arguments now directed by petitioners are

found in the legislative debates. However, there was

opposition to such legislation, and Congress rejected the

anti-labor proposals.'* Thus, petitioners’ request that

this Court condemn industry-wide agreements is to ask

this Court to approve by judicial fiat what Congress

refused to enact into legislation. Judicial acquiescence in

such request is interdicted by Colgate-Palmolive-Peet

Co. v. NLRB, 338 U.S. 355, 363-64, where it is said that,

“The emasculation of the contract pressed for by the

Board in order to achieve that which Congress refused

to enact into law cannot be sustained.”

Petitioners’ real complaint concerning UMW’s Nation-

al Agreement is that UMW should have abandoned its

historic policy of uniformity, resorted to regional bar-

gaining and acceded to petitioners’ demand they be

subsidized at the expense of coal miner members of

UMW, and thus afford coal producers in Tennessee a

competitive advantage over their competitors—a com-

plaint which first Pennington rejected: “Unilaterally,

and without agreement with any employer group to do

so, a union may adopt a uniform wage policy and seek

vigorously to implement it even though it may suspect

Legislative History of the Labor-Management Reporting and Dis-

closure Act of 1959 (Government Printing Office, 1959), Vol. II. pp.

1941-42. 1690, 1508, 1717, 1747, 1837. 1189-90, 1320, 1809. See Appendix

B, pp. 12a-16a, for excerpts from the legislative debates.

a

that some employers cannot effectively compete if they

are required to pay the wage scale demanded by the

union” and “The union need not gear its wage demands

to wages which the weakest units in the industry can

‘ afford to pay” (381 U.S. 665, fn. 2).

First Pennington acknowledged the current efficacy

of labor’s exemption from the antitrust laws. Petitioners’

proposal (Pet. 28-29) that this Court reach a result in

light of reports before Congress, invites the admonition

in United Steelworkers vy. R. H. Bouligny, Inc., 382 US.

145, 153, that these “are decisions which we believe

suited to the legislative and not the judicial branch.”

Previous refusals on Congress’ part to affect the current

immunity of labor unions from the antitrust laws renders

the Bouligny language particularly apt and petitioners’

suggestion of significance of “National Policy of Employ-

ment” (15 USCA 1021 et seq.) abortive.

24

Sole

AD Sie So RRL PMG RN eR a

Second Pennington’s certiorari petition posed identical

3 complaints concerning industry-wide bargaining and

national labor contracts. Pertinently, this Court rejected

(393 U.S. 983) the assertions that they were tainted

under Sherman."

te ed

3. Effects and Consequences May Not Be Substituted

For A Conspiracy Under The Sherman Act.

Petitioners emphasize their reliance on proofs of ef-

fects and consequences of National Agreements, pointing

to unemployment resulting from intensive mechaniza-

tion, the inability of operators in poor geographical

conditions to compete and survive in the TVA coal

market under the National Agreements and the losses

of coal producers in the 1949-59 decade as compared

‘See questions posed in second Pennington’s certiorari petition,

Nos. 2, 4 and 5 (ante, pp. 17-18, fn. 12 and post, pp. 25, 30).

_—

25

with net profits of two of the largest coal producers (Pet.

15-16, 27-28) as proving a Sherman violation. These

same indicia were rejected in second Pennington as a

basis for a writ of certiorari (393 U. S. 983).'° Second

Pennington’s Question 5 read, in part, “Was the District

Court (sustained by the Court of Appeals) right in hold-

ing that effects of industry-wide bargaining are alone

insufficient, and were both lower courts right in not con-

sidering anywhere in their findings and conclusions

such effects. . . —

It is evident that the crux of petitioners’ complaint

is refusal of both the district court and the Sixth Cir-

cuit’s affirming opinion to accept petitioners’ position

that effects and consequences of the National Agreement,

to which multi-employers became signatories, may be

substituted for conspiracy as the essential ingredient of

a Sherman violation (Pet. 15-18), a view UMW asserts is

opposed by first Pennington. Such substitution would

completely strip of meaning Justice White’s avowals that

unilaterally a union may adopt a uniform wage policy

and seek vigorously to implement it and the union need

not gear its wage demands to wages which the weakest

units in the industry can afford to pay. Petitioners’

'8In the certiorari petition in second Pennington (Case No. 558,

October Term, 1968 in this Court), Question 5 read thus:

“Was the District Court (sustained by the Court of Appeals)

right in holding that effects of industry-wide bargaining are alone

insufficient, and were both lower courts right in not considering

anywhere in their findings and conclusions such effects—the grow-

ing prosperity of the two largest companies and the deficit position

of all the rest of the industry combined the inevitable and acceler-

ating merger and concentration trend, the blight created in broad

areas where conditions make the contract impossible, the loss of

jobs of two-thirds of union members from automation made neces-

sary by national contracts with nothing in the contracts to relieve

the unemployed, the intensive and often violent efforts of the

union to destroy the businesses of nonconforming operators, the

areas of mines which can be stripped off the easiest or worked

underground with large machines?”

'

premise would render Meaningless Justice White's

further unequivocal statements that “Such union con-

duct is not alone sufficient evidence to maintain a union.

employer conspiracy charge under the Sherman Act”,

“There must be additional direct or indirect evidence

of the conspiracy” and that a union’s forfeiture of its

exemption occurs only “when it is clearly shown that it

has agreed with one set of employers to impose a certain

wage scale on other bargaining units” (381 U.S. 665).

Since UMW can implement its wage policy only by

collective bargaining and ultimately by agreement with

multiple signatory operators, all permissive under na-

tional labor policy as willed by Congress and judicially

sanctioned in first Pennington, to adjudge its conduct as

illegal in light of effects and consequences is to render a

union’s immunity from Sherman as illusory. Clearly, no

inference of conspiratorial conduct may be derived from

activities permitted by national labor policy. Hutcheson’s

command that a Sherman violation be determined only

by reading Sherman, Clayton and Norris-LaGuardia as

“interlacing statutes” (312 U.S. 219, 232) forbids a

finding of conspiracy from permissible conduct. Indeed,

Allen Bradley Co. v. Local Union No. 3, 325 US. 797,

806, proclaims that conduct permitted by federal statutes

“is not to be declared a violation of Federal law”. Ac-

cord: The Order of Rr. Telegraphers vy. Chicago, ete.

R. Co., 362 U.S. 330, 339-40. Otherwise, lawful exercise

of collective employee rights would be converted into

a conspiracy to restrain trade by imputing a Purpose to

obtain those effects on inefficient employers which are

but the by-product of UMW’s pursuit of a uniform wage

policy in the interest of its members.

26

3

5

A

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BA

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4

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4

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Post-first Pennington interpretations, involving labor’s

exemption, consistently proclaim the necessity of proof

CDS AAS SR NS ae i aeons s Seti § -

aaa ald MN 35 TO dt . ,

27

of predatory intent and anti-competitive purposes,” mili-

tate against petitioners’ persistent claim that effects and

consequences suffice to prove a Sherman conspiracy. Con-

trary to petitioners (Pet. 15), the cases cited are con-

sonant with Justice Douglas’ concurrence in Pennington

(381 U.S. 672-73) which contained two factors, namely,

(1) industry-wide agreement whereby employers and

the union agreed on a wage scale exceeding the financial

ability of some operators to pay, and (2) it was made to

force some employers out of business.

4. The Sixth Cireuit’s Affirming Opinion and the Dis-

trict Court, Applying This Court's Guidelines in

First Pennington, Properly Exonerated UMW of the

Alleged Conspiracy.

a. The affirming opinion correctly determined that

an anticompetitive conspiracy is essential to a

Sherman violation.

Petitioners contended in the Sixth Circuit, as a con-

comitant that effects and consequences suffice to support

a Sherman violation, that intent or predatory purpose

has no place in the antitrust structure and is “important,

not as an essential ingredient of the offense, but as bear-

ing upon the probabilities of an illegal restraint taking

effect.””? The Sixth Circuit’s affirming opinion rejected

petitioners’ contention and reaffirmed its interpretation

that this Court’s first Pennington teachings included “a

conspiracy between employers and labor formed with

the intention of driving competitors out of business”

violated Sherman, and that Justice White’s use of “pred-

‘American Federation of Musicians Vv. Carroll, 391 U.S. 99, 106;

second Pennington, 6 Cir., 400 F. 2d 814: Cedar Crest Hats, Inc. Vv.

United Hatters, Etc. Union, 5 Cir. 362 F. 2d 322; Associated Milk

Dealers, Inc. v. Milk Drivers Union, Teamsters, and National Dairy

Products Corp. v. Milk Drivers, etc. Union, both ante, p. 16; Republic

Productions, Inc. v. American Federation of Musicians, DC, S.D. Wee

1965, 245 F. Supp. 475.

2See petitioners’ brief in the Sixth Circuit (Case No. 17,878), p. 50.

28

atory intent” (381 U.S. 668) “is merely shorthand,

employed to describe this anticompetitive conspiracy”

(Pet. A. 40-43, 46). This same issue, posed by losing

companies in second Pennington, did not achieve this ,

Court’s award of certiorari.’'

First Pennington (381 U.S. 664) continued to recog.

i nize, as Apex (310 U.S. 469) enunciated, that restraints

% on sale of employees’ services are not commercial re. ,

3 straints outlawed by Sherman (pp. 502-03), a result

j stemming from Congressional immunity accorded labor

unions under the Clayton Act’s Section 6 (15 USCA 17)

which avows that “The labor of a human being is not

a commodity or article of commerce”, that antitrust

laws do not “forbid or restrain individual members of

such organizations from lawfully carrying out the

legitimate objects thereof” and that labor unions are

not to be “construed to be illegal combinations or

conspiracies in restraint of trade” and, as first Penning-

ton states (p. 661), from Clayton’s Section 20 and Norris-

LaGuardia’s Section 4.

Justice White’s majority opinion itself refers to the

necessity of proof of predatory intent or anticompetitive

agreement. In denouncing employer-union conduct de- |

signed to eliminate a favored employer’s competitive

interest, as distinguished from an interest in regulating

labor relations, Justice White noted, “The anticompeti-

tive potential of such a combination is obvious, but is

DIG PREECE OBA ENGIN Rai lial g

eect 5

?'In second Pennington’s certiorari petition (Case No. 558, October

Term, 1968), Question 3 read thus:

“Is a Sherman Act case to fail because of insufficient proof of

the specific intent “to drive small competitors out of business”

when it is undisputed that there was the intent to impose terms

set by the conspirators on competitors, which terms were mani-

festly unjustified, unreasonable and concededly impossible to

observe for over half the industry?”

u

Seok Ewes PUREE a ooh PR eA MER Sil ee

ERROR APL EENST E OR AE EN SAREE GRAY SE AISI I MA SE ENERO ORE TENOR Sh ISR

—_

29

little more severe than what is alleged to have been the

purpose and effect of the conspiracy in this case to es-

tablish wages at a level that marginal producers could

not pay so that they would be driven from the industry”

(381 U.S. 668). Further, while Justice White made

clear his opinion did not relate to the evidence’s suffi-

ciency (381 U.S. 665, fn. 2), but dealt only with the

complaint’s allegations, in sanctioning the denial of

UMW’s dismissal motion, Justice White noted the allega-

tion was the union became a party to a collusive bidding

arrangement designed to drive operators from TVA’s

spot market (381 U.S. 663). It is to this collusive, anti-

competitive type of agreement that Justice White alludes

in his statement that “all such agreements between a

group of employers and a union that the union will seek

specified labor standards outside the bargaining unit

suffer from a more basic defect, without regard to preda-

tory intention or effect in the particular case” (381 USS.

668). It is thus evident that Justice White’s reference to

“such agreements” embodies the concept of a collusive,

anticompetitive agreement involvement which, if clearly

proved—and only in such an event—would effect a for-

feiture of a union’s exemption from the antitrust laws,

as first Pennington recited (381 U.S. 665).

b. The Sixth Circuit’s affirming opinion, like the

district court, properly rejected petitioners’ con-

tentions that PWC violated Sherman.

UMW’s struggle to protect the work opportunities

and labor standards achieved through processes of col-

lective bargaining are detailed (ante, pp. 8-10). Both

opinions reject petitioners’ argument that UMW obli-

gated itself to BCOA to impose and enforce the National

Agreement industry-wide (ante, pp. 11-13). There is no

g

evidentiary support for petitioners’ assertion the district

court “went along with UMW’s contention, that once a

bargaining unit agreed to the national contract it was

fair and legal for the major companies to insist that

the union keep that unit under the national contract

and not modify the terms when it later sought to get

out from under it so that unit could continue to compete”

(Pet. 12).

30

As elsewhere shown (ante, pp. 11-12), PWC’s lan.

guage did not constitute an express commitment by

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

upon terms other than the National Agreement and |

“The only direct evidence in the record is to the effect

that the Union pursued” its “policy wpon its own, and

not in agreement with any employer”. Uncontradicted

denials that UMW entered into any agreement other

than the bargaining agreement and undisputed evi-

dence that UMW is free to negotiate a labor agreement |

at variance with the National Agreement, which the

district court credited (265 F.Supp. 432), challenge

petitioners’ assertions.

PWC’s sanction by the Sixth Circuit’s affirming

opinion, it has been shown (ante, pp. 10-11, 12-13),

accorded with the Sixth Circuit’s second Pennington

which adopted the legal principle that “Where two

reasonable constructions of a written contract can be

made, preference is given to that construction .. . that

does not result in a violation of law”, and the record

contained “insufficient evidence from which a conspiracy

or other violation could be found to have been clearly —

shown” (400 F.2d 815).

Ye Si

EI NT ETS I RE EE a Ee Oe

—

31

Again, this same issue was posed in second Penning-

ton’s certiorari petition,” which this Court rejected (393

U.S. 983).

in light of undisputed evidence herein discussed (ante,

pp. 8-10) and the total absence of any contradictory evi-

dence in the certiorari petition, it is settled law, applic-

able in antitrust cases, that insofar as a conclusion is

based on inferences drawn from documents or undis-

puted facts, Rule 52(a), Federal Rules of Civil Pro-

cedure, is applicable and such findings of fact are not to

be set aside unless clearly erroneous. U.S. v. US.

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

When it is recalled the affirmance concurred with

district court’s findings and conclusions regarding PWC’s

validity, as stated in U.S. v. Johnson, 319 U.S. 503,

518, it should “take something more than ingenious

criticism to bring even into question that concurrence

or to detract from its assuring strength—something

more than this record presents”.

UMW has responded to petitioners’ complaints of in-

dustry-wide and national contracts (ante, pp. 22-24) and

violence (ante, pp. 14-15). Their challenge of UMW’s good

faith bargaining in failing to modify the National Agree-

ment (Pet. 17, 28) finds a ready answer in the Sixth

22[n second Pennington’s certiorari petition (Case No. 558, October

Term, 1968), Question 2 read thus:

“Did the union by the clear terms of the ‘Protective Wage

Clause’ of the 1958 amendment to the National Bituminous Coal

Wage Agreement, only a small part of which was before this

Court on the first appeal, submit to such restraints upon its

bargaining freedom in the various units of the industry as to

violate the Sherman Act, those restraints having been demand-

ed by the major companies with whom the union made the

national contracts, and the union, the officers and representa-

tives of all union branches, and smaller companies, being sub-

ject to trial by industry tribunals for violations of the restrictive

covenants in any of the bargaining units?”

——— a ee ee

ERLE ET FE A EIN LE NT MEN I ART

-.

Circuit’s affirmance of the district court’s finding tha

UMW “could not be required, as a means of escaping

antitrust liability, to bargain for labor standards, wages

or working conditions that would improve the plain.

tiffs’ competitive position by the reduction of Wages or

labor standards, by gearing wages to the status of

mechanization or its lack, or by tying wages to produc.

tivity” (265 F.Supp. 431). Futhermore, good faith bar.

gaining is a matter within the exclusive jurisdiction of )

the National Labor Relations Board. The Sixth Circuit

itself in first Pennington declared offenses within that

jurisdiction have no relevance to antitrust cases, where

“a combination or conspiracy ... must be shown” (325

F.2d 810). This Court’s recent H. K. Porter Co.. Inc. v. |

NLRB, decided March 2, 1970, 73 LRRM 2561, recog.

nized that Taft-Hartley’s Section 8(d), requiring good

faith bargaining, assures freedom of contract and pre-

cludes the compulsion of substantive terms of collective

bargaining agreements (pp. 2563-64). Petitioners, of

course, were not required under Taft-Hartley to exe. |

cute UMW’s National Agreement, as admittedly em.

ployers representing 18% of the coal industry’s em-

ployees chose not to do (Pet. 20). Petitioners obviously

desire to have the respectability of producing coal under

a labor contract, but are totally unwilling to assume its

burdens.

32

:

M

é

}

4

§

.

Petitioners’ citations (Pet. 27) of Associated Press v.

United States, 326 U.S. 1; Fashion Originators Guild v.

Federal Trade Commission, 312 U.S. 457; and Anderson

v. Ship Owners Association, 272 U.S. 359, 363-65, which ©

they attribute to Justice White, are inapposite and

isolated from his statement, preceding the citations,

which relate to an achieved anticompetitive agreement,

which is at total variance from the instant case (381

SELLE ENT REET LE LOL EN LRT IO EN NOE at BOE NS Oe ea

—

33

US. 668). This exemplifies petitioners persistent un-

willingness to recognize labor’s exemption from the anti-

trust laws.

c. The Sixth Circuit's affirming opinion and the dis-

trict court properly rejected petitioners’ con-

tentions that UMW violated Sherman.

Evidentiary support of the district court’s exoneration

of UMW of the conspiracy prior to the 1958 Agreement

appears ante, pp. 6-8. Similarly, the affirming opinion’s

validity as to PWC appears ante, pp. 12-13. The Sixth

Circuit’s affirming opinion (ante, pp. 13-16) rejected evi-

dence of events in southeastern Tennessee coal fields

and pricing of coal upon the TVA market as evincing a

Sherman conspiracy. It noted, “There is ample evidence

in this record to support” district court findings and “‘we

certainly cannot hold them to be ‘clearly erroneous’ ”’,

citing Rule 52(a), Federal Rules. As in UMW’s dis-

cussion of PWC (ante, p. 31), the instant certiorari

petition does not challenge ‘the affirming opinion’s

statement.

On the other hand, the certiorari petition (pp. 24-25)

notes Judge O’Sullivan’s opinion connecting TVA market

competition and union investments in West Kentucky

Coal Company with the alleged conspiracy, saying “Top

people” of UMW and BCOA “did not need” Norris-

LaGuardia’s protection in negotiating and signing the

1958 Agreement, or in UMW’s making large investments

“to aid the big coal companies to fulfill the promise of

the plan”. These statements are fallacious and ignore the

undisputed fact that West Kentucky Coal Company was

never 2 BCOA member (919-23a), that UMW indisput-

ably made no suggestions and proposed no policies with

reference to West Kentucky’s and/or Nashville Coal’s

>... SF PU TET 00 as Dg numer hy Am

te ae HC STENNIS GOR ws

——

34

management or pricing policies (ante, p. 14, fn. 10) and

that proof of conspiracy still remains the essential in.

gredient of a Sherman violation (ante, pp. 26-27), the

answer to which must be found in evidence adduced and

not “in some crystal ball or vaguely sensed by some

process of intuition, based upon chance phrase used here

or there.” U.S. v. Morgan, DC, S.D. N.Y., 1953, 118 F.

Supp. 621, 634.

5. Petitioners Seek This Court’s Review Of Evidence

Which Both The District Court And The Sixth Cir.

cuit’s Affirming Opinion Have Held Did Not Support

The Charge That UMW Conspired In Violation Of

The Sherman Act.

The two sets of appendices filed as part of the certified

record herein cover 2,529 pages. As already noted (ante,

p. 31), this Court recognizes that a conclusion based on

inferences drawn from documents or undisputed facts

in antitrust cases must be affirmed unless clearly er-

a roneous. Since each of the findings had the concurrence

5 of the Sixth Circuit’s affirming opinion and the dis-

trict court, this Court should reject the invitation

4 to review the instant case, implementing its rule

: that “We do not grant a certiorari to review evidence

4 and discuss specific facts”. U.S. v. Johnston, 268 U.S.

| 200, 227.

i

j

ery

fy 2 a

—_ — eu aN PPADS Pe EEN oe SOIR eae + a

BREE ER: SEHR MEN eH RRR SO OLY FEES? PRE NMA BD CTS EAN Pa TN SN a Ha : FS

—-

35

CONCLUSION

For the reasons herein discussed, UMW submits that

the Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

Epwarp L. CAREY

HARRISON COMBS

WILLARD P. OWENS

900 Fifteenth Street, N.W.

Washington, D. C.

E. H. RAyson

Valley Fidelity Bank Building

Knoxville, Tennessee

M. E. Borlarsky

512 Kanawha Valley Building

Charleston, West Virginia

Counsel for Respondent, United

Mine Workers of America

March, 1970

:

ie... IF LEGS EY ON MON A MRA ENG REN AINE HC

NET SOE ee Ty Sone SNe eR.

APPENDICES

la

APPENDIX A

15 USCA:

$1. TRUSTS, ETC., IN RESTRAINT OF TRADE ILLEGAL; Ex-

CEPTION OF RESALE Price AGREEMENTS; PENALTY

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or com-

merce among the several States, or with foreign nations,

is declared to be illegal: Provided, That nothing con-

tained in sections 1-7 of this title shall render illegal, con-

tracts or agreements prescribing minimum prices for the

resale of a commodity which bears, or the label or con-

tainer of which bears, the trademark, brand, or name of

the producer or distributor of such commodity and which

is in free and open competition with commodities of the

same general class produced or distributed by others,

when contracts or agreements of that description are

lawful as applied to intrastate transactions, under any

statute, law, or public policy now or hereafter in effect

in any State, Territory, or the District of Columbia in

which such resale is to be made, or to which the com-

modity is to be transported for such resale, and the mak-

ing of such contracts or agreements shall not be an un-

fair method of competition under section 45 of this title:

Provided further, That the preceding proviso shall not

make lawful any contract or agreement, providing for the

establishment or maintenance of minimum resale prices

on any commodity herein involved, between manufac-

turers, or between producers, or between wholesalers,

or between brokers, or between factors, or between re-

tailers, or between persons, firms, or corporations in com-

petition with each other. Every person who shall make

any contract or engage in any combination or conspiracy

declared by section 1-7 of this title to be illegal shall be

deemed guilty of a misdemeanor, and, on conviction

2a

thereof, shall be punished by fine not exceeding fifty thou-

sand dollars, or by imprisonment not exceeding one year,

or by both said punishments, in the discretion of the

Court. July 2, 1890, c. 647, § 1, 26 Stat. 209; Aug. 17, 1937,

c. 690, Title VIII, 50 Stat. 693, July 7, 1955, c. 281, 69

Stat. 282.

§ 2. MONOPOLIZING TRADE A MISDEMEANOR; PENALTY

Every person who shall monopolize, or attempt to mo-

nopolize, or combine or conspire with any other person or

persons, to monopolize any part of the trade or com-

merce among the several States, or with foreign nations,

shall be deemed guilty of a misdemeanor, and, on convic-

tion thereof, shall be punished by fine not exceeding fifty

thousand dollars, or by imprisonment not exceeding one

year, or by both said punishments, in the discretion of the

court. July 2, 1890, c. 647, § 2, 26 Stat. 209; July 7, 1955,

c. 281, 69 Stat. 282.

x * a

§ 15. Suits By PERSONS INJURED; AMOUNT OF RECOVERY

Any person who shall be injured in his business or

property by reason of anything forbidden in the antitrust

laws may sue therefor in any district court of the United

States in the district in which the defendant resides or

is found or has an agent, without respect to the amount

in controversy, and shall recover threefold the damages

by him sustained, and the cost of suit, including a rea-

sonable attorney’s fee. Oct. 15, 1914, c. 323, § 4, 38 Stat.

731.

* * *

$17. Antitrust Laws Not APPLICABLE TO LABOR

ORGANIZATIONS

The labor of a human being is not a commodity or

article of commerce. Nothing contained in the antitrust

eons

3a

laws shall be construed to forbid the existence and oper-

ation of labor, agricultural, or horticultural organizations,

instituted for the purposes of mutual help, and not having

capital stock or conducted for profit, or to forbid or re-

strain individual members of such organizations from

lawfully carrying out the legitimate objects thereof; nor

shall such organizations, or the members thereof, be held

or construed to be illegal combinations or conspiracies

in restraint of trade, under the antitrust laws. Oct. 15,

1914, c. 323, § 6, 38 Stat. 731.

29 USCA Sec. 52 (Sec. 20 of the Clayton Act):

§52. STatuTory RESTRICTION OF INJUNCTIVE RELIEF

No restraining order or injunction shall be granted by

any court of the United States, or a judge or the judges

thereof, in any case between an employer and employees,

or between employers and employees, or between em-

ployees, or between persons employed and persons seeck-

ing employment, involving, or growing out of, a dispute

concerning terms or conditions of employment, unless

necessary to prevent irreparable injury to property, or to

a property right, of the party making the application, for

which injury there is no adequate remedy at law, and

such property or property right must be described with

particularity in the application, which must be in writing

and sworn to by the applicant or by his agent or attorney.

And no such restraining order or injunction shall pro-

hibit any person or persons, whether singly or in concert,

from terminating any relation of employment, or from

ceasing to perform any work or labor, or from recom-

mending, advising, or persuading others by peaceful

means so to do; or from attending at any place where any

4a

such person or persons may lawfully be, for the purpose

of peacefully obtaining or communicating information,

or from peacefully persuading any person to work or to

abstain from working; or from ceasing to patronize or to

employ any party to such dispute, or from recommend.

ing, advising, or persuading others by peaceful and law.

ful means so to do; or from paying or giving to, or with-

holding from, any person engaged in such dispute, any

strike benefits or other moneys or things of value; or

from peaceably assembling in a lawful manner, and for

lawful purposes; or from doing any act or thing which

might lawfully be done in the absence of such dispute

by any party thereto; nor shall any of the acts specified

& in this paragraph be considered or held to be violations of

any law of the United States. Oct. 15, 1914, c. 323, § 20,

38 Stat. 738.

* * *

Pe

CS ee ae

w

29. USCA Sec. 102 (Sec. 2 of the Norris-LaGuardia Act):

§ 102. Pusiic Poticy iv LaBpor MATTers DECLARED

In the interpretation of this chapter and in determin-

ing the jurisdiction and authority of the courts of the

United States, as such jurisdiction and authority are de-

fined and limited in this chapter, the public policy of the

United States is declared as follows:

Whereas under prevailing economic conditions, devel-

oped with the aid of governmental authority for owners

of property to organize in the corporate and other forms

of ownership association, the individual unorganized

worker is commonly helpless to exercise actual liberty

of contract and to protect his freedom of labor, and there-

by to obtain acceptable terms and conditions of employ-

ment, wherefore, though he should be free to decline to

RETIRES AST PAL SERED REET. ERE SIME OTT ES ILS IO TT TALI III IIS EIS

-_

5a

associate with his fellows, it is necessary that he have

full freedom of association, self-organization, and desig-

nation of representatives of his own choosing, to nego-

tiate the terms and conditions of his employment, and

that he shall be free from the interference, restraint, or

coercion of employers of labor, or their agents, in the

designation of such representatives or in self-organiza-

tion or in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection;

therefore, the following definitions of and limitations

upon the jurisdiction and authority of the courts of the

United States are enacted. Mar. 23, 1932, c. 90, § 2, 47

Stat. 70.

* * *

29 USCA Sec. 104 (Sec. 4 of the Norris-LaGuardia Act):

$104. ENUMERATION OF SPECIFIC ACTS Not SUBJECT TO

RESTRAINING ORDERS OR INJUNCTIONS

No court of the United States shall have jurisdiction

to issue any restraining order or temporary or permanent

injunction in any case involving or growing out of any

labor dispute to prohibit any person or persons partici-

pating or interested in such dispute (as these terms are

herein defined) from doing, whether singly or in con-

cert, any of the following acts:

(a) Ceasing or refusing to perform any work or to

remain in any relation of employment;

(b) Becoming or remaining a member of any labor

organization or of any employer organization, regard-

less of any such undertaking or promise as is described

in section 103 of this title;

(c) Paying or giving to, or withholding from, any

person participating or interested in such labor dispute,

6a

any strike or unemployment benefits or insurance, or

other moneys or things of value;

(d) By all lawful means aiding any person participat-

ing or interested in any labor dispute who is being pro-

ceeded against in, or is prosecuting, any action or suit in

any court of the United States or of any State;

(e) Giving publicity to the existence of, or the facts

involved in, any labor dispute, whether by advertising,

speaking, patrolling, or by any other method not involy-

ing fraud or violence;

(f) Assembling peaceably to act or to organize to act

in promotion of their interests in a labor dispute;

(g) Advising or notifying any person of an intention

to do any of the acts heretofore specified;

(h) Agreeing with other persons to do or not to do

; any of the acts heretofore specified; and

;

(i) Advising, urging, or otherwise causing or induc-

ing without fraud or violence the acts heretofore speci-

fied, regardless of any such undertaking or promise as

is described in section 103 of this title. Mar. 23, 1932, c.

90, § 4, 47 Stat. 70.

* * *

29 USCA See. 106 (Sec. 6 of the Norris-LaGuardia Act):

§ 106. RESPONSIBILITY OF OFFICERS AND MEMBERS OF As-

SOCIATIONS OR THEIR ORGANIZATIONS FOR UNLAW-

FUL ACTS OF INDIVIDUAL OFFICERS, MEMBERS, AND

AGENTS

No officer or member of any association or organiza-

tion, and no association or organization participating or

interested in a labor dispute, shall be held responsible or

REREGIEITIN LEIP TIT RGR TY NOE Gy FN SNE IT ESE NE HE ADRS HT

>

Ta

liable in any court of the United States for the unlawful

acts of individual officers, members, or agents, except

upon clear proof of actual participation in, or actual

authorization of, such acts or of ratification of such acts

after actual knowledge thereof. Mar. 23, 1932, c. 90, § 6,

47 Stat. 71.

* * *

29 USCA Sec. 141 (Sec. 1, Labor Management Relations Act,

1947):

$141. SHorT TITLE; CONGRESSIONAL DECLARATION OF

PURPOSE AND POLICY

(a) This chapter may be cited as the “Labor Manage-

ment Relations Act, 1947”.

(b) Industrial strife which interferes with the normal

flow of commerce and with the full production of articles

and commodities for commerce, can be avoided or sub-

stantially minimized if employers, employees, and labor

organizations each recognize under law one another’s

legitimate rights in their relations with each other, and

above all recognize under law that neither party has any

right in its relations with any other to engage in acts or

practices which jeopardize the public health, safety, or

interest.

It is the purpose and policy of this chapter, in order to

promote the full flow of commerce, to prescribe the legi-

timate rights of both employees and employers in their

relations affecting commerce, to provide orderly and

peaceful procedures for preventing the interference by

either with the legitimate rights of the other, to protect

the rights of individual employees in their relations with

labor organizations whose activities affect commerce, to

define and proscribe practices on the part of labor and

management which affect commerce and are inimical to

Pi.

the general welfare, and to protect the rights of the

public in connection with labor disputes affecting com-

merce. June 23, 1947, c. 120, § 1, 61 Stat. 136.

* * *

8a

29 USCA Sec. 151 (Sec. 1, National Labor Relations Act, as

Amended):

§ 151. Frnpincs AND DECLARATION OF PoLicy

The denial by some employers of the right of employees

to organize and the refusal by some employers to accept

the procedure of collective bargaining lead to strikes

and other forms of industrial strife or unrest, which have

the intent or the necessary effect of burdening or ob-

structing commerce by (a) impairing the efficiency, safe-

ty, or operation of the instrumentalities of commerce;

(b) occurring in the current of commerce; (c) materially

affecting, restraining, or controlling the flow of raw ma-

terials or manufactured or processed goods from or into

the channels of commerce, or the prices of such materials

or goods in commerce; or (d) causing diminution of em-

ployment and wages in such volume as substantially to

impair or disrupt the market for goods flowing from or |

into the channels of commerce.

PTE ia eke ae a Ris te eo ees

The inequality of bargaining power between employees

who do not possess full freedom of association or actual

liberty of contract, and employers who are organized in

the corporate or other forms of ownership association sub-

stantially burdens and affects the flow of commerce, and

tends to aggravate recurrent business depressions, by

depressing wage rates and the purchasing power of wage

earners in industry and by preventing the stabilization of

competitive wage rates and working conditions within

and between industries.

PREP IPSEC IL ANOLE REEL LOLS DEES IIE EEE IEE ED EI

—

9a

Experience has proved that protection by law of the

right of employees to organize and bargain collectively

safeguards commerce from injury, impairment, or inter-

ruption, and promotes the flow of commerce by removing

certain recognized sources of industrial strife and unrest,

by encouraging practices fundamental to the friendly

adjustment of industrial disputes arising out of differ-

ences as to wages, hours, or other working conditions,

and by restoring equality of bargaining power between

employers and employees.

Experience has further demonstrated that certain

practices by some labor organizations, their officers,

and members have the intent or the necessary effect of

burdening or obstructing commerce by preventing the

free flow of goods in such commerce through strikes and

other forms of industrial unrest or through concerted

activities which impair the interest of the public in the

free flow of such commerce. The elimination of such

practices is a necessary condition to the assurance of the

rights herein guaranteed.

It is declared to be the policy of the United States to

eliminate the causes of certain substantial obstructions

to the free flow of commerce and to mitigate and elimi-

nate these obstructions when they have occurred by en-

couraging the practice and procedure of collective bar-

gaining and by protecting the exercise by workers of full

freedom of association, self-organization, and designation

of representatives of their own choosing, for the purpose

of negotiating the terms and conditions of their employ-

ment or other mutual aid or protection. July 5, 1935, c.

372, § 1, 49 Stat. 449; June 23, 1947, c. 120, Title I, § 101,

61 Stat. 136.

a

29 USCA Sec. 157 (Sec. 7, National Labor Relations Act, as

Amended):

10a

§ 157. RiGHT oF EMPLOYEES AS TO ORGANIZATION, CoL-

LECTIVE BARGAINING, ETC.

Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain col-

lectively through representatives of their own choosing,

and to engage in other concerted activities for the pur-

pose of collective bargaining or other mutual aid or pro-

tection, and shall also have the right to refrain from any

or all of such activities except to the extent that such

right may be affected by an agreement requiring mem-

bership in a labor organization as a condition of employ-

ment as authorized in section 158 (a) (3) of this title.

July 5, 1935, c. 372, § 7, 49 Stat. 452; June 23, 1947, c. 120,

Title I, § 101, 61 Stat. 140.

* * *

29 USCA 158(e) [Sec. 8(e), National Labor Relations Act, as

Amended]:

(e) It shall be an unfair labor practice for any labor

organization and any employer to enter into any con-

tract or agreement, express or implied, whereby such

employer ceases or refrains or agrees to cease or refrain

from handling, using, selling, transporting or otherwise

dealing in any of the products of any other employer.

or to cease doing business with any other person, and

any contract or agreement entered into heretofore or

hereafter containing such an agreement shall be to such

extent unenforcible and void.

July 5, 1935, c. 372, § 8, 49 Stat. 452; June 23, 1947,

c. 120, Title I, § 101, 61 Stat., 140; Oct. 22, 1951, c. 534,

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§1(b), 65 Stat. 601; Sept. 14, 1959, Pub.L. 86-257, Title

II, §201(e), Title VII, §§ 704(a)-(c), 705(a), 73 Stat.

525, 542, 545.

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

(a) EFFECT. 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 conclu-

sions of law thereon, and judgment shall be entered pur-

suant to Rule 58; and in granting or refusing interlocu-

tory injunctions the court shall similarly set forth the

findings of fact and conclusions of law which constitute

the grounds of its action. Requests for findings are not

necessary for purposes of review. Findings of fact shall

not be set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to

judge of the credibility of the witnesses. The findings

of a master, to the extent that the court adopts them,

shall be considered as the findings of the court. If an

opinion or memorandum of decision is filed, it will be

sufficient if the findings of fact and conclusions of law

appear therein. Findings of fact and conclusions of law

are unnecessary on decisions of motions under Rules 12

or 56 or any other motion except as provided in Rule

41(b).

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APPENDIX B

Excerpts from

Legislative History of the Labor-Management Reporting and

Disclosure Act of 1959

(Government Printing Office, 1959), Volume II:

Representative Rhodes of Pennsylvania:

pp. 1641-42:

“No longer was there regard for the economic prob-

lems of individual business firms or the impact of de-

mands upon any local industry or area affected.”

“No longer was wage bargaining a matter for elected

local union leadership. Now, professional labor leaders

at the national or international level did the dickering,

setting wage patterns for whole industries . . .”

“Chief victims of labor monopoly power remain the

consumer and the small businessman.”

Representative Alger of Texas:

p. 1508:

“The consequent denial to unions of the right to fix prices

..- would not in any way interfere . . . with their proper

collective bargaining powers. They would merely be

placed on an equal footing with all other groups in

society as was the case during the fifty years prior to

the Hutcheson decision.”

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p. 1690:

“The unions should be put under the antitrust laws so

that business and labor will both operate under the

same ground rules.”

“Monopolistic practice of industrywide and pattern

bargaining by professional labor bosses at the national

or international level would be ended.”

Representative Hoffman of Michigan:

p. 1717:

“When we were writing the Taft-Hartley law, . . . we

had in it a provision designed to prevent nationwide,

industry-wide bargaining.”

“There would appear to be no sound reason why those

provisions making anti-monopoly laws applicable legis-

lation to unions should not now be in this bill.”

Representative Heistand of California:

p. 1748:

“Prevent centralized control of collective bargaining

policies by national or international unions, and return

these functions to the local union level.”

“big power combinations of unions would be broken

up, just as the big corporation trusts of the 1890’s were

broken up by the Sherman Act.”

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Representative Flynn of Wisconsin:

p. 1837:

“. .. As we get big unionism to match big business, we

will indeed have a new type of economy .. . is this

for the best interests of America and the people of

America?”

Senator Morse of Oregon:

p. 1190:

“Labor law in America reflects increasing awareness

that no sound economic theory permits free market

thinking to be applied to wages and working conditions,

as it is to prices. In the absence of collective bargaining

the wage market is a fiction for wages and working con-

ditions are established unilaterally by the employer,

Competition among workers against each other for jobs

produces not fair wages, but sweatshops; not increased

productivity, but depressions. Society should not, under

the guise of preserving freedom to compete, force them

to bear the competitive burden which an entrepreneur in

hope of profit, voluntarily assumes. In modern indus-

trial society, meaningful economic freedom for the vast

majority of employees can be attained not through indi-

vidual, but from collective action.

“This was the reasoning behind Congress’ declaration

in 1914 in the Clayton Act that ‘the labor of a human

being is not a commodity or article of commerce’ and

that labor unions shall not ‘be held or construed to be

illegal combinations in restraint of trade under the anti-

trust laws.’ That declaration reflected recognition that

‘to render a labor combination effective it must eliminate

deh ae

eogpeciaarae. pet A a

mee eR Pe ie eee be a ee eae

_

15a

the competition from nonunion made goods,’ and that

elimination of price competition based on differences

in labor standards is the objective of any national labor

organization. Once the purpose of employee combina-

tion was thus recognized, sanction of the conventional

tactics of organized labor in its effort to improve its

material conditions followed inevitably. These tactics,

peaceful primary picketing are the only civilized means

through which organized workers can safeguard their

own wages and working conditions against the compe-

tition of unorganized workers; the only way—short of

governmental wage fixing—through which price compe-

tition based on differences in labor costs can be elimi-

nated. To deprive organized workers of these means of

competing with unorganized workers dooms their ob-

jective to defeat.

“Once we recognize that establishment of uniform

wages and hours through collective bargaining as desir-

able, common sense should accept peaceful tactics by

which unions traditionally seek in their own self-interest,

to enlist nonmembers. Those who choose to work as non-

unionists, by that very choice, tend to defeat and under-

mine the economic interests of union members in main-

taining good wages and working conditions for them-

selves. In defense of their own economic position and

in the fact of varying shades of employer hostility, union

members should accordingly be free to utilize such eco-

nomic power as they possess to persuade employees of

the value of their cause.”

Representative Oliver of Maine:

p. 1809:

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“As I see the picture, Mr. Speaker, the adoption of

this Landrum-Griffin conference report leads in only one

direction. It is just one more step toward more restrictive

labor legislation. The U.S. Chamber of Commerce, the

National Manufacturers Association, speaking and acting

for big business with their appetites for further labor

control whetted by this victory, will press for the ulti.

mate victory; namely, a national so-called right-to-work

law and then, the antitrust stranglehold for which they

are really aiming. Many of them have already so stated,

The program of big business in America is not only to

control financially and economically, but also politic.

ee

“The Landrum-Griffin conference report will not only

slow down further the growth and strength of the trade.

union movement, but it will eventually lead to the

more repressive developments to which I have referred;

namely, the so-called right-to-work laws on a national

scale and then, the crowning blow, the antitrust knock-

out punch. This will mean the breakdown of American

democracy.

“As long as Iam a Member of this House, Mr. Speaker,

my vote will never be recorded for legislation which

makes illegal the economic weapons which the working

men and women need, to fight for and get their fair share

of the production of this great productive plant which

is known as industrial America.

“Mr. Speaker, I am opposed to and shall vote against

this Landrum-Griffin conference report.”