# Opposition Brief — Ramsey v. United Mine Workers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1971
- **Citation:** 401 U.S. 302

## Text

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)

—

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
-
‘
5
i
BA
a
4
z
4
2
‘
i

a
:
bd
BS
4

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

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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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0248%3A10. Public record. Not legal advice.