Amicus Curiae Brief — Gateway Coal Co. v. Mine Workers

eurnee COURT ie JUL 26 1973

| No. 72.782 f pee

scssenteiaamie teestessieaelalittaipssnls 2-608:

Supreme Court of the United States

October Term, 1973

LIBRARY, Be Beir iby

Gateway; Coa. Company,

Petitioner

v.

Unrrep Mine Workers or AMERICA;

Distaict No. 4, Unrrep Mine Workers or AMERICA;

Loca No. 6330, Unirep Mine Workers or AMERICA

On Wait or Certiorarnr to THE Untirep Srares

Court or APPEALS FoR THE THIRD Circuit

BRIEF FOR THE

AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AND FOR THE

INTERNATIONAL UNION UAW

AS AMICI CURIAE

SrerHen I. ScHiossspera J. ALBert Wo.

1125 15th Street, N.W. General Counsel, AFL-CIO

Washington, D.C. 20005 Roserr C. Mayer

LsavRENCE GoLp .

Grorce KaurMaNnn 736 Bowen Building

1735 New York Ave.,N.W. 815 Fifteenth Street, N.W.

-Washington, D.C. 20006 Washington, D.C. 20005

Attorneys for

International Union, UAW Tomas E. Harris

Associate General Counsel,

AFL-CIO

815 Sixteenth Street, N.W.

Washington, D.C. 20006

|

INDEX

. Page

USER ATE Ge BU EI ccccstinssiensiiinnreninnn ~~ ee

IE, errcciicnnecttnendeersneniinanctonsininnlisciidiinaiapmnnmiitinian 6

CONCTIUBION aeccescissscrscecctin, oosnsnnnnnnnnnnnnannnnnnnnnessannnnannnnnness 31

CITATIONS

Cases:

4. 9. Castle 6 Ce, 4) tab: CD wvccmmioinn TD

Boudoin v. Lykes Brothers Steamship Co., 348 U.S.

SD sissssissnsnntrevessssnitaccctitantoninnaciteaiapiiathitihaiiiiamiicadil 24

Boys Markets v. Clerks Union, 398 U.S. 235.... 2, 8,14,

12, 13, 25, 27, 28, 29, 30

Carey v. Westinghouse Corp., 375 U.S. 261 ............ 10

Detroit News Publ. Ass’n. v. Detroit Typo. Un. No.

18, Etc., 471 F.2d 872 (C.A. 6), cert..denied 41

Ra We. See CHER TRIS) sects 13, 25-26, 30

Emery Air Freight Corporation v. Local Union

BOG, COD FBG SOG CCI B) ccscivsiciemnnssiemssiinneninmennne 25

Pood Meter Coe. & tadig TAR cemnticvnmmiin 4, 17-18, 19

Hanna Miting Company v. United Steelworkers,

464 F.2d 565 (C.A. 8) ............ Desitlinciinseiionnaiatines 2, 11, 23

Harris Stanley Coal and Land Co. v. Chesapeake &

Ohio Ry. Co., 154 F.2d 450 (C.A. 6) ........ 2, 11-12, 20

Jones & Lykes Bros, Steamship Co., 204 F.2d 815

CORD) cccaisiticcisinennjteiennenatiniacninglmeniiiiinins 24

Labor Board v. W ashington Aluminum Corp., 370

Flin OD cnnciencencsnnnstinssatiitninniainnnnenstnntpitianamlaaneiinenlie 16

Laclede Gas Co0., 39 L.A. 883 sessssesseseneen 4, 18, 19, 22

wi

MRLEGL, Fe tanme ae Co tae ait q

Page

Local 453, etc. v. Otis Elevator Co., 314 F.2d 25

Ee Bias EE saseinietivesencsnhecncebesenitalh Aabidiseiaciainiiachicinatis 3, 9-10

Mastro Plastics Corp. v. Labor Board, 350 U.S.

EE ills cibdcinntesapacnhcceeipetidaaipambiaiecnpaanctncanbinnaaioampnnibls 16-17

Minnesota Mining & Mfg. Co., 59 L.A. 375 «0.2... 18

NLRB vy. Fruin-Colnon Construction Co., 330F 2d

tas AE siete cictc seen pes entaecerinteinics 22-23

Ks | NLRB vy. Knight-Morley Corp., 251 F.2d 753 (C.A.

4 6), cert. denied 357 U.S. 927 .............. 4, 16, 21, 22, 23

: NLRB v. Operating Engineers, 400 U.S. 297 .......... 29

: Philadelphia Marine Trade Association v. NLRB,

i 330 F.2d (C.A. 3), cert. denied 379 U.S. 833 ..... 4,23

: Shore Line v. Transportation Union, U.S, 142 ........ 13

q Sinclair Mfg. Co. v. Atkinson, 370 U.S. 195 .......... 13

: Smith v. California, 361 U.S. 147 cccccsscssssoccsseee 20, 24

; Standard Food Products v. Brandenburg, 436 F.2d

é Bi ion 14-15

4 Teamsters Local 174 v. Lucas Flour Co., 369 U.S.

‘ oS SEES. SERENE ane CONE eo 12

i The King v. Ewart, 25 N.Z.L.R. 709 (C.A.} .............. 20

Fi United States v. Mine Workers, 330 U.S, 238 2.0.0... lj

United Steelworkers v. Enterprise Mfg. Co., 363

d EI I ie ecient siartarnienssisenrcaseeadigane 3, 9,10, 11

: Statutes:

: Labor Management Relations Act of 1947, 29

4 U.S.C, 141 et. seq.:

OE ik 6

Oe 4, 21, 22, 23

: ii

Page

Norris-LaGuardia Act, 29 U.S.C.

§ 101 et. seq.:

BF Sirens cities crnscapnevenescennnion 5, 25-26, 27, 29

Be UA 9 BIS ccicrirmigiernst ss scclabenincaliabissicanlacielidianabies 10

Miscellaneous:

Frankfurter & Green, The Labor Injunction

EIU susscsencscivaasiennsecseunsuniasablicbbanveasnenelnnethieniclinss 26-27, 28

BNA Collective Bargaining Negotiation & Con-

SR iinccckiccerereniiascinristsnnsermnierenmninoriantanunnes 20

Legislative History of the Labor-Management

Relations Act 1947 (G.P.O., 1948) ......ccccccccecseeees 21

iii

Supreme Court of the United States

October Term, 1973

No. 72-782

Gateway Coat Company,

Petitioner

v.

Unrtep Mine Workers or AMERICA;

District No. 4, Unrrep Mine Workers oF AMERICA;

LocaL No. 6330, Unrrep Mrne Workers or AMERICA

On Writ or CertiorarI To THE Unitrep States

Court or APPEALS FOR THE THIRD Circuit

BRIEF FOR THE

AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AND FOR THE

INTERNATIONAL UNION UAW

AS AMICI CURIAE

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO), and the International

Union UAW, file this brief amici in support of the position

of the respondent unions with the consent of the parties,

as provided for in Rule 42 of the Rules of this Court.

The AFL-CIO is a federation of one hundred and thirteen

affiliated labor organizations having a total membership

of approximately thirteen and one-half million working

cone

organized labor. The International Union UAW, with a

ROLES, Sree ¢ Q

: 2

membership of over one million five hundred thousand, is

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:

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men and women. It is thus the majority spokesman for

the nation’s largest industrial union.

SUMMARY OF ARGUMENT

This is a strike injunction case arising out of a work

stoppage over a safety dispute. If, as respondent unions

argue, and the court below held, that dispute was not sub-

ject to the arbitration provision of the applicable collective

agreement, the injunction was improper. Boys Markets v.

Clerks’ Union, 398 U.S. 235. We agree. But even if/ as

petitioner contends the safety dispute was indeed arbitrable

it would not follow that the injunction was proper. Boys

Markets establishes additional criteria which must be met

before a strike injunction may be entered, id. at 253-254,

but were not in this case. In order that all the issues in the

case be ventilated, we address ourselves to these alternative

grounds for affirmance.

Preliminarily, we begin with the precise terms of the

injunction. As an adjunct to enjoining the work stoppage,

the District Court directed arbitration, as Boys Markets

clearly required. Jd. at 254. Additionally, the Court abated

the allegedly unsafe condition pending arbitration. This,

step too was clearly required by the basic principle (appli-

cable under Boys Markets, id. at 254) that a ‘‘court of

equity will not gamble with human life, at whatever odds,

and for loss of life there is no remedy that in an equitable

sense is adequate.’’ Harris Stanley Coal and Lahd Co.

v. Chesapeake € Ohio Ry. Co., 154 F.2d 450, 453

(C.A. 6); ef. Hanna Mining Company v. United Steel-

workers, 464 F.2d 565 (C.A. 8). However, the District

a

Giibeees-r- SEAS ek

3°

Court erred in providing that if the arbitration was in

favor of the Company, it would be given automatic injunc-

tive force by,reinstatement of the foremen (whose failure

to abide by safety requirements had caused the work stop-

page) while preserving the restraint against further stop-

pages. The effect of this portion of the order was to enforce

the arbitration award before it was rendered and without

judicial scrutiny to insure fidelity to the agreement and

public law. United Steeworkers v. Enterprise Mfg. Corp..,

363 U.S. 593, 597; Local 453, etc. v. Otis Elevator Co., 314

F.2d 25, 29 (C.A. 2).

1. The strike injunction did not meet the precondition

of Boys Markets that the court find that ‘‘breaches are

occurring and will continue, or have been threatened and

will be committed’’; i.e., in cases such as the instant one

that there are ‘‘violations of [the union’s] no-strike obli-

gation.’’ 398 U.S. at 254.

(a) A strike over an arbitrable issue is not automati-

cally a breach of the collective agreement; the obligation

not to strike pending arbitration exists only where it is

‘*freely undertaken’’ as a matter of contract. See id. at 252.

There can be no doubt that § (e) of the provisions setting

out the ‘‘Mine Safety Program”? in this collective agree-

ment, taken against its background of the deletion of all no-

strike commitments, constitutes an express reservation of

the right to strike where a local union ‘‘believes an immedi-

ate danger exists.’’ And the court below held that the

record establishes that the instant strike did come within

the scope of § (e).

(b) Even if § (e) of the agreement did not preserve

the miners’ right to utilize an economic weapon against the

12 8 OAR AIP LSE |

4

employer over safety issues, Gateway’s employees retained

an elemental right of self-protection, recognized both by the

common law of collective agreements, and by §502 of

the Labor Management Relations Act of 1947, which en-

titled the miners, who honestly and reasonably believed that

the working conditions set by the Company endangered

their life or limb, to refuse to work under those conditions

without violating the collective agreement. Since the seminal

decision of Dean Shulman in Ford Motor Co., 3 L.A. 779, it

has been understood throughout industry that the ordinary

duty of employees to obey management’s directions even

when these are believed to be in violation of the agreement,

and then to grieve, does not govern where the employees

reasonably believe that ‘‘the improper order *** involves an

unusual hazard or other serious sacrifice.’’ Jd. at 780; see

also ,e.g., Laclede Gas Co., 39 L.A. 833.

,~ dhe same result follows from § 502 of the Act:

‘‘nor shall the quitting of labor by an employee or em-

ployees in good faith because of abnormally dangerous

conditions for work at the place of employment of

such employee or employees be deemed a strike under

this Act.’’ :

This was the square holding of the leading 4 502 decision,

NLRB vy. Knight-Morley Corp., 251 F.2d 753 (C.A. 6), cert.

denied, 357 U.S. 927; see also Philadelphia Marine Trade

Association v. NLRB, 330 F.2d 492 (C.A. 3), cert denied,

379 U.S. 833, and Pet. App. p. Iva. The contrary view

espoused by petitioner and the dissent below would read the

**vood faith’’ language out of § 502, and place upon the em-

ployee the unconscionable dilemma of risking his life or

his livelihood.

5

2. The strike injunction also did not meet the precon-

ditions of Boys Markets that an injunction may not issue

unless the District Court determines that the breaches

‘thave caused or will cause irreparable injury to the em-

ployer; and [that] the employer will suffer more from

denial of an injunction than will the union from its issu-

ance.’’ 398 U.S. at 254 preserving 4 7(c) of the Norris-

LaGuardia Act. The District Court made no finding what-

soever with respect to the potential injury to the respondent

unions, and therefore could not begin to perform its duty

to balance their equities against those of Gateway. Addi-

tionally, although the District Court stated in conclusory

terms that the Company would suffer irreparable injury

if the injunction were denied, its only findings on the sub-

ject fall far short of supporting that conclusion. That Court

did not find that Gateway, the employer, would suffer any

injury; nor could it have done so since its sole product, coal,

is not perishable, and Gateway’s only ‘‘customers”’ are the

three corporations who are the Company’s co-owners, and

take its total supply. What the Distriet Court did find was

that the strike would cause injury ‘‘in due course”’ to one of

the owning companies, Jones & Laughlin, and to the pub-

lic. But, quite aside from the lack of immediacy of the

injury found (there being a 20-day supply of coal above

ground at the time the strike was stopped by the District

Court), neither qualifies as the ‘‘employer or the ‘‘eom-

plainant’’ as §7(c) requires. For only Gateway was -the

miners’ employer, to whom the respondent unions were con-

tractually bound, and only Gateway could become a ‘‘com-

plainant’’ by suing to enjoin the alleged breach.

y Pees ac

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so a PON ede ind aig Saal elit SALAMA AR RAE

6

ARGUMENT

This litigation had its inception in a work stoppage in

response to Gateway Coal Co.’s decision to reinstate two

assistant foremen who ‘‘had made false entries in their

log books,’’ in violation of federal safety requirements,

‘*that failed to disclose that the flow of air through a work

area was 11,000 cubic feet per minute as contrasted with

a normal 28,000 cubic feet, [a condition which] increased

the danger of the accumulation of dust and flammable gas

and the risk of consequent explosion.’’ Pet. App. pp. 13a-

l4a.1 The Company’s reinstatement decision was made

even ‘‘though criminal proceedings against [the foremen]

were still pending,’’ and even though ‘‘some 200 Gateway

employees [had] attended a special union meeting and

unanimously voted not to work under the assistant foremen

in question.’’ Pet. App. 13a-14a.?

The Company brought this action under § 301 of the La-

bor Management Relations Act of 1947 (hereafter ‘‘the

Act’’), to enjoin the work stoppage-and to direct respondent

unions to arbitration under the ‘‘Settlement of Local and

District Disputes’? provision of the National Bituminous

Coal Wage Agreement. A. pp. 3a-9a. The District Court

1**Pet. App.’’ references are to the appendices to the petition for

certiorari in this case. ‘‘ A.’’ refers to the Appendix in this Court.

2 Gateway placed great reliance on the Commonwealth of Penn-

sylvania’s determination not to institute proceedings to suspend

the foremen’s licenses. But that determination was not based on a

conclusion that the foremen had not made false entries, and it did

not counsel the Company to return them to their supervisory posi-

tions; it merely left Gateway ‘‘at liberty’’ to do so. A. pp. 16a-17a.

7

-

entered a temporary restraining order (Pet. App. pp. ta-

ta), later declared to ‘‘constitute a preliminary injunction

without change until further order of this Court’? (Pet.

App. p 1a). The injunction embodied the following

restraints :

\

Bie,

**First, the employees of the Gateway Mine, their

officers and al] members of the union and persons act- .

img im concert with them who are aiding or abetting

them in the work stoppage of the Gateway Mine are

hereby enjoined from engaging in any further work

stoppage and are hereby ordered to return to work on

_the following conditions:

(a) The two assistant mine foremen heretofore iden-

tified amd fully identified in the testimony shall be

suspended at the time the mine resumes working and

shall remain suspended until an impartial umpire has

_ determined whether these men should return to work.

(b) The proceeding before the impartial umpire shall

proceed without delay. He shall be chosen by the

parties as set forth in the union contract, and he shall

be chosen forthwith and within 14 davs from the date

of this order. Thereafter, the umpire shall proceed to

hear the dispute on the issue stated forthwith and as

soon as the hearing can be held, and neither party to

this agreement—that is, the union agreement—shall

delay the proceeding before the umpire, nor shall they.

delay in any way getting to that proceeding and getting

to the hearing that the umpire will hold._

(ce) The decision of the umpire will be final and both

parties will be bound by that decision.’’ Pet. App. p. 3a.

The Court of Appeals reversed. That Court determined

that the dispute was not arbitrable. Pet. App. pp. 12a-19a.

8

This determination was sufficient to require that the in-

junction be set aside in its entirety. Boys Markets v. Clerks

Union, 398 U.S. 235, does ‘‘not undermine the vitality of

the Norris-LaGuardia Act’’ (id. at 253), but authorizes an

injunction only if the agreement ‘‘does’’ require the parties

to arbitrate a particular dispute (id. at 254, emphasis in

original). Thus, if, as the union respondents urge in their

brief, and as we agree, the Court of Appeals was correct

in concluding that, under this particular agreement, this

particular dispute was not arbitrable, the judgment below

must be affirmed.

But contrary to the view of the Company and the amici

who support it here, the converse does not follow; Boys

Markets itself makes clear that there is no automatic pro-

gression from arbitrability to injunctive relief: ‘‘Nor does

it follow from what we have said that injunctive relief is

_ appropriate as a matter of course in every case of a strike

over an arbitrable grievanee.’’ Id. at 253-254.

tah bbe alana aah a Ai abo

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Because the District Court failed to comply with the

standards established in Boys Markets, we submit that

even assuming arguendo that the underlying safety dispute

was arbitrable, its injunction-against the strike (that para-

graph of its order which begins ‘‘First’’) was wrong as a

matter of law.’

r\

In urging that the District Court’s strike injunction

i a ig rR Oe kei

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GTR ey Ne PETES SS

3 Once the District Court enjoined the work stoppage, paragraph

‘(a)’? of the injunction was mandated by equitable principles

as we develop in the text. Moreover, paragraph ‘*(b)”’ direet-

ing the parties to arbitration of the dispute, was, of course, required

by Boys Markets,

However, even if the strike injunction was otherwise legally cor-

4 ad

ee

5

ees

9

was properly reversed by the Court of Appeals, we do not

adopt that portion of the latter’s opinion which states that

arbitration of safety disputes is not to be encouraged. Pet.

App. pp. 16a-17a. While the collective agreement in this

ease does not provide for arbitration of grievances arising

from employee complaints about conditions which they

believe to-be unsafe, these are, in other industries, familiar

and valuable adjuncts of collective bargaining. There, the

ity of the stakes, correctly and eloquently described

urt of Appeals (Pet. App. pp. 16a-17a), is accom-

by eliminating arbitration, hut by reversing

a generally “applicable rule of industrial relations and

permitting the employees to refuse, pending arbitration,

rect, paragraph ‘‘(c)’’ thereof was erroneous and should be set

aside. For, when paragraph ‘‘(¢)’’ is read in light of the Memo-

randum, it gives injunctive effect to the arbitration award even

though the arbitration had not yet been held:

‘‘Obviously, if the umpire determines that these men are not

to be returned to work, they shall not return. If he determines

that they shall return, they will be returned to work, or at

least they will be eligible for return to work, and the company

can return them to work if the assistant foremen are available

and the mine shall continue working.’’ Pet. App. p. 4a.

This of course was clear error. For even assuming that the parties

had provided for final and binding arbitration, as the District Court

determined, the award rendered by the arbitrator was not auto-

matically enforceable. This is established by the very case on which

petitioner relies, United Steelworkers v. Enterprise Mfg. Co., 363

U.S. 593, 597. Moreover,

‘Tt is no less true in suits brought under § 301 to enforce arbi-

tration awards than in other law suits that the ‘power of the

federal courts torenforce the terms of private agreements is at

all times exercised subject to the restrictions and limitations

of the public policy of the United States.***’ The public policy

to be enforced is a part of the substantive principles of federal

ay PRT ea RN Pee a AE tent SN re te 25 y See ine ROYALS EEG Py Ont A OEE IN ME SEE Ma

10

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3

8

i

to perform work which they reasonably believe to be unsafe.

See pp. 17-20 infra. The order of the District Court was in

harmony with that practice, because paragraph ‘‘(a)”’

thereof abated the dangerous condition by suspending the

foremen involved pending the arbitration.

Mg ley hein Posing tomdaga

The propriety of that condition is not disputed by any

of the parties or the amici in this case. Nevertheless, the

point is of sufficient importance for future litigation con-

cerning work stoppages over arbitrable safety disputes that

the lower federal courts should be instructed that the in-

despensable ‘precondition for an injunction against such

work stopjiages is a direction by the court requiring that the

allegedly unsafe conditions be abated until the arbitrator’s

labor law which federal courts, under the mandate of Textile

Workers Union of America v. Lineoln Mills, 353 U.S. 448,

are empowered to fashion.’’ Local 453, ete. v. Otis Elevator Co.,

314 F.2d 25, 29 (C.A. 2)

Thus, before enforcing an award in a safety case the court must

determine both that the award ‘‘draws its essence from the collective

bargaining agreement”’ (Enterprise, 363 U.S. at 597), and that it is

consistent with § 502 of the Act. dismissed at pp. 21-24 infra. See,

e.g., Carey v. Westinghouse Corp., 375 U.S. 261, 272.

Since the award was made subsequent to the District Court's

decision, that Court has not vet performed its duties under Enter-

prise. Accordingly, even if all other issues were decided in favor

of petitioner, the sound disposition of the case (28 U.S.C. § 2106)

would be to vacate part ‘‘(c)*’ of the injunction, as amplified

in the opinion, and to remand the case to the District Court. It

would seem inappropriate for this Court to review the arbitration

award in the first instance, since it is not part of the record despite

- _- petitioner’s attempt to treat it as such by reprinting it as an appen-

dix to the petition for certiorari, The Court of Appeals struck the

Company's supplemental appendix consisting of the arbitration

award (A, 38a), and the petition did not seek review of that order. \

niubsianiaiihinaiinaicaceaicacceaee REEL PRL TLS LA IER METRE ELEN RRM AERO HE

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2S ONES OETA RE SLT INIT INNS IR LC

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award is either accepted by the union or subjected to judi-

cial review in enforcement proceeding pursuant to Enter-

prise. See pp. 8-10, n. 3 supra. The decision in Hanna Mining

Company v. United Steelworkers, 464 F.2d 565 (C.A. 8), is a

careful and detailed example of an order which preserves

the immediate interests of the employees in safety and of

the employer in production, pending arbitration. Imposition

of such a condition is merely the application of equitable

principles, which Boys Markets preserves in strike injunc-

tion cases. As the Sixth Circuit explained, in reversing the

denial of an injunction sought by a railroad against a min-

ing company whose operations posed a potential danger to

individuals using the railroad’s right-of-way :

‘If the threatened injury to the railroad right-of--

way be envisioned merely as the sliding of some of the

surface material of the mountain upon the railroad

right-of-way necessitating some expense in its removal

and in the repair of the roadbed, we might well say that

recovery of damages in a suit at law provides adequate

remedy. We have here, however, a railroad over which

pass trains bearing passengers and freight. Their daily

number is not disclosed by the record, and being but

a branch line it may be assumed that the traffic is not

heavy. Nevertheless, traffic there is, and the effect of a

substantial mountain slide upon a passing train might

well be catastrophic. It may be that such disaster could

occur only upon a concatenation of circumstances of

not too great probability, and that the odds are against

it. It is common experience, however, that catastro-

phies occur at unexpected times and in unforeseen

places. The pictorial exhibits graphically depict the

steep face of the cliff behind which the pillars stand,

and its proximity to the railway tracks, and it is indeed

bold prophecy which denies the threatened danger. A

Sr an ak na Se aie a Bie co

Pi giotles, a

+

12

court of equity will not gamble with human life, at

whatever odds, and for loss of life there is no remedy

that in an equitable sense is adequate.’’ Harris Stanley

Coal and Land Co. v. Chesapéake & O. Ry. Co., 154

F.2d. 450, 453 (C.A. 6), emphasis added.

With these preliminaries, we now show that the District

Court erred in enjoining the work stoppage in this case.

1. For a Boys Mgrkets injunction to issue there must be

a finding that ‘‘breaches are occurring and will continue,

or have been threatened and will be committed’’; i.e., in

cases such as the instant one that there are ‘‘violations of

[the union’s] no-strike obligation.’’ 398 U.S. at 254.

(a) Where, as in Bows Markets, the dispute is deter-

mined to be arbitrable and there is an explicit no-strike

clause coextensive with the arbitration commitment, a

strike called by the union is a breach of the agreement ab-

sent overriding special circumstances. Moreover, where a

dispute is determined to be arbitrable, and the contract

does not expressly reserve the union’s right to self-help, a

strike called by the union is also a breach of the agreement

absent overriding special circumstances. Teamsters Local

174 v. Lucas Flour Co., 369 U.S. 95, 106. But this Court -

has emphasized that neither Lucas Flour nor Boys Markets

creates an independent legal obligation not to strike pend-

ing arbitration; that obligation exists only where it is

‘‘freely undertaken’’ as a matter of contract. See 398 U.S.

at 252. Thus, the parties may, if they so desire, agree to

preserve their right to utilize self-help concerning an ar-

bitrable issue and pending arbitration.

‘In the instant case it is the company that seeks judicial relief

and the respondent unions that claim that they have not waived

gn

a PTB,

13

In Boys Markets, the collective agreement made it mani-

fest that the express no-strike commitment contained there-

in was coextensive with the scope of the arbitration clause.

See 398 U.S. at 238-239, n. 3. The clerks union did not argue

that its strike was lawful under the. agreement ; its sole

contention was that though in breach of contract the strike

was not enjoinable under Sinclair Rfg. Co. v. Atkinson,

370 U.S. 195. In the instant case, however, the respondent

unions do assert that they have a right to strike over this

dispute. As we have already noted, their position is that

§(e) of the provisions setting out the ‘‘Mine Safety Pro-

gram”’ in their collective agreement provides for the settle-

ment of this dispute by economic force and not by arbitra-

tion. °

their right of self-help and that no injunction requiring them to

bend to the employer’s will should issue. But the contract inter-

pretation and equitable issues presented here also arise in cases

instituted by unions and in which the employer claims that he has

retained his right of self-help and that no injunction should run

in favor of the union. See Detroit News. Publ. Ass’n. v. Detroit

Typo. Un. No. 18 Ete., 471 F.2d 872 (C.A. 6) cert. denied 41 L.W.

3591 (May 7, 1973) ; compare Shore Line v. Transportation Union,

396 U.S. 142. It is for this reason that we refer to the ‘‘parties’ ”’

right to retain the option’ of self-help and not solely to the

‘‘unions’ ”’ right to do so.

5««The mine safety committee may inspect any mine develop-

ment or equipment used in producing coal. If the committee

believes conditions found endanger the life and bodies of the

mine workers, it shall report its findings and recommendations

to the management. In those special instances where the com-

mittee believes an immediate danger exists and the commit-

tee recommends that the management remove ali mine workers

from the unsafe area, the operator is required to follow the

recommendation of the committee. ~

“If the safety committee in closing down an unsafe area

NIE A RT EAT ES Be BEY UTES aE get: SE

noeretanit

14

Even if this Court were to decide that the breadth of the

clause entitled ‘‘Settlement of Local and District Disputes”’

(A. pp. 13a-l4a) permits the conclusion that arbitration

is in order here, there can be no doubt that §(e), taken

against its background of the deletion of all no-strike com-

mitments (see A. p. 14a), constitutes an express reserva-

tion of the right to strike where a local or its mine safety

committee ‘‘believes an immediate danger exists.’’ Any

other interpretation of 4(e) would read it out of the agree-

ment. In other words, even if it is read narrowly, §(e) must

be acknowledged to be an express reservation of the right

to strike over safety issues while the grievance and arbi-

tration procedures are running their course. And, as the

Court of Appeals stated, the record establishes that the

strike here comes within the scope of § (e):

‘‘There is no finding, indeed no basis for a finding in

this record, that the miners did not honestly believe

that their lives were unduly endangered so long as the

foremen in question were responsible for safety pro-

cedures. The foremen had been guilty of significant

dereliction. Indeed, they pleaded nolo contendere to a

charge of criminal violation of safety requirements

and were fined $200 each. And there had been a few

earlier complaints concerning their handling of matters

involving safety.’’ Pet. App. p. 14a.

The present situation is therefore governed by the funda-

mental proposition stated by Judge Hays in Standard Food

acts arbitrarily and capriciously, members of such committee

may be removed from the committee. Grievances that may

arise as a result of a request for removal of a member of the

safety committee under this section shall be handled in accor-

dance with the provisions providing for settlement of dis-

putes.’’ A. 12a.

is

15

Products v. Brandenburg, 436 F.2d 964, 965 (C.A. 2):

‘‘Where the union has not given up the right to strike, the

Norris-LaGuardia Act prohibits the issuance of an injunc-

tion.’? To paraphrase the Brandenburg opinion: Since, as

the court below found ‘‘the strike in the instant case was

called [pursuant to §(e)] the injunction issued by the dis-

trict court is not only unjustified, but is beyond the juris-

diction of the federal courts to grant. 29 U.S.C. §§101, 107

(1964).’’ Tbid.

(b) The burden of the preceding point is that §(e) of

the ‘‘Mine Safety Program’’ Clause, read most restric-

tively, preserves (at least to the point where. the arbitrator

has issued his decision), the respondent unions’ right to

exert economic pressure to induce the employer to settle a

safety dispute by meeting the miners’ demands and that the

District Court lacked jurisdiction to grant the portion of the

injunction labeled ‘‘First.’’ See pp. 12-14 supra. We now

show that assuming arguendo that §(e) is not an express

reservation of economic power, the Gateway employees had

-an elemental right of self-protection, recognized, both by the

oe

common law of collective agreements, and by §502 of the

Act, which entitled the miners, who honestly and reasonably

believed that the working conditions set by the Company

endangered their life or limb, to refuse to work under those

conditions without violating the collective agreement. °

®It may be useful to spell out this distinction. Usually an ab-

normally unsafe condition jeopardizes only a single employee, or a

small portion of the work force. Under the arbitration decisions

to be discussed at pp. 17-19 infra, as well as under § 502, it is only

the employees directly affected who are privileged to refuse to per-

form the work believed to be abnormally dangerous. Where a no-

strike agreement is in effect, the other employees are not privileged,

16

(i) In Mastro Plastics Corp. v. Labor Board, 350 U.S.

270, this Court unanimously refused to read a no-strike

clause, all encompassing in its terms, to apply to an unfair

labor practice strike. The Court reasoned that the union’s

undertaking ‘‘in light of the law relating to it when made,’’

was a ‘‘natural adjunct of an operating policy aimed at

either under these arbitration decisions or under § 502, to make

common cause with them. Put another way, this right exists solely

for the employees’ self-protection; it does not permit the use of

economic power to compel the employer to abate the particular

unsafe condition, or to be generally more responsive to the needs

of the employees’ health and safety.

_In_the present case, the respondent unions assert, with justifi-

eation, that the present dispute was not encompassed by the no-

strike clause, and that they were therefore permitted to use a

work stoppage for offensive purposes. Putting that aside, the

particular objection in this case was to the use of two foreman

who had falsified records requiring by law to be kept for safety

purposes. Contrary to the Company’s argument, that is an issue

which affected the safety of all employees: The retention of those

foremen did not jeopardize only the miners who worked on the

same shift; it is likely that a failure to comply with safety standards

on one shift will affect the condition of the mine and therefore of

all the employees. y

Finally, it is appropriate to contrast two other related situations.

In the leading § 502 case, NLRB v. Knight-Morley Corp. 251 F.2d

753 (C.A. 6), cert. denied 357 U.S. 927, some buffers believed in

good faith that conditions in their work room were abnormally

dangerous, and ceased work for that reason. That action was held

to be protected. Knight-Morley’s discharge of the employees despite

their statutory protection was an unfair labor practice, and the

cessation of work by other employees in response was therefore a

protected unfair labor practice strike. Moreover, of course, in the

absence of a no-strike commitment, a concerted stoppage over health

or safety conditions is protected by §7. See Labor Board v. Wash-

ington Aluminum Corp., 370 US. 9.

17

avoiding interruptions of production prompted by efforts

to change~exiSting economic relationships,’’ and that the

‘‘main function of arbitration under the contract is to pro-

vide a-mechanism for avoiding similar stoppages due to

disputes over the meaning and application of the various

contractural provisions.’’ Jd. at 282-283, emphasis supplied.

It is also commonly understood that accomplishment of

this objective does not require that pending arbitration

over safety disputes the employees must perform work that

that they reasonably believe to be abnormally hazardous

to their safety and health.

Ordinarily when an employee is given an order by man-

agement, he must obey. If the employee believes that the

order is in violation of his rights under the agreement, his

recourse is the grievance procedure. If he refuses to com-

ply with the order he is subject to discipline, even if it

should ultimately be determined that the order was con-

trary to the agreement. Cf. United States v. Mine Workers,

330 U.S. 258. This is the general rule reflected in, and ef-

fectuated by the Lucas Flour and Boys Markets decisions.

That rule, however, is subject to an important exception:

An employee is not required to obey an order from man-

agement, if le would thereby violate public law, or if he

believes that it would jeopardize his health or safety.

The leading statement of the general rule, and of the ex-

ception thereto, is that of the late Dean Shulman, who was

the permanent umpire under the Ford Motor Company

agreement:

‘“The employee must normally obey [management’s]

order even though he thinks it improper. His remedy

is prescribed in the grievance procedure. He may not

18

take it on himself to disobey. To be sure one can con-

ceive of improper orders which need not be obeyed.

An employee is not expected to obey an order to do that

which would be criminal or otherwise unlawful. He

may refuse to obey an improper order which involves

an unusual hazard or other serious sacrifice. But in

the absence of such justifying factors, he may not re-

fuse to obey merely because the order violates some

right of his under the contract. The remedy under the

contract for violation of right lies in the grievance

procedure and only in the grievance procedure.’’ Ford

Motor Co., 3 L.A. 779, 780.

This exception has been applied time and time again by

arbitrators and is now accepted as ‘‘a truism in the common

law of the shop.’’ Minnesota Mining and Mfg. Co., 59 L.A.

375, 378. For example, -in Laclede Gas Co., 39 L.A. 833, 839

the arbitrator stated:

‘“‘The principle applicable here is that an employee

may refuse to carry out a particular work assign-

ment, if at the time he is given the work assignment,

he reasonably believes that by carrying out such work

assignment he will endanger his safety or health. In

such an instance the employee has the duty, not only of

stating that he believes there is risk to his safety or

health, and the reason for believing so, but he also has

the burden, if called upon, of showing by appropriate

evidence that he had a reasonable basis for his belief.

In the case of dispute, as is the case here, the question

to be decided is not whether he actually would have

suffered injury but whether he had a reasonable basis

for believing so. This is so well understood that the

chairman does not believe that the general acceptance

of this principle requires documentation.’’ *

7 Another arbitrator has characterized Laclede Gas as ‘‘a partic-

19

.

In Ford Motor Company, Dean Shulman focused his at-

tention on the basic rule, and explained why it was both

essential and fair:

‘“‘[Ajn industrial plant is not a debating society.

Its object is production. When a controversy arises,

production cannot wait for exhaustion of the grievance

procedure. While that procedure is being pursued, pro-

duction must go on. And some one must have the au-

thority to direct the manner in which it is to go on until

the controversy is settled. That authority is vested in

supervision. It must be vested there because the re-

sponsibility for production is also vested there; and

responsibility must be accompanied by authority. It

is fairly vested there because the grievance procedure

is capable of adequately recompensing employees for

abuse of authority by supervision.’’ 3 L.A. at 781;

emphasis supplied.

The foregoing also provides the principled justification for

the exception for unusual health hazards recognized by

Dean Shulman and developed by his successors. To bor-

row Dean Shulman’s words, ‘‘the grievance procedure is

[not] capable of adequately recompensing employees for

abuse of authority by supervision’’ where that abuse re-

quires action inconsistent, not with the employees’ economic

interest, but with their interest in continued health and

ularly apt expression of the principles involved *** synthesized

from mgny other awards.’’ A. M. Castle & Co., 41 L.A. 667, 670.

And in A. M. Castle the arbitrator elaborated a point inherent in

the Lacleg® Gas analysis but not explicated there:

‘*So long as [the employee] is sincere in his belief of danger,

and so long as*he makes a ‘‘reasonable’’ appraisal of the poten-

tial hazards, he is protected in his decision not to act, regardless

of whether later on, in fact, it would be established that no

hazard existed.’’ 41 L.A. at 671.

pareiad® anatonetl

€

20

safety. Thus, fairness to the employees requires that the

costs of delay during ‘‘exhaustion of the grievance pro-

cedure’’ be placed on the employer. Compare Harris Stan- |

ley Coal, 154 F.2d at 253, quoted at pp. 11-12 supra.*

But it is not enough for the protection of employees that

the normal order of obedience followed by arbitration be

reversed. For if they are ultimately subject to discipline

for refusing to perform assigned work if the arbitrator

should determine that it was not abnormally hazardous, the

employees, who can rarely be certain of the fact of danger,

‘would hesitate to assert their right not to endanger them-

selves. The industrial common law as developed in arbi-

tration, relieves employees from this dilemma by framing

the issue to be whether the employees had a ‘‘reasonable

basis’’ for believing that carrying out the work assignment

would endanger their safety and health, viewing the matter

from their perspective and in light of the information avail-

able to them. See pp. 18-19 and n. 7 supra.

8 The costs of delay can be reduced by providing an accelerated

procedure for the arbitration of safety disputes, as in the contracts

between the United Steelworkers and the major steel producers.

See, e.g., §14e of the Agreement between United States Steel Corpo-

ration and the United Steelworkers of America, August 1, 1971, 1

BNA Collective Bargaining Negotiation & Contracts, 28.40.

®Compare Smith v. California, 361 U.S. 147. There this Court

held that in a prosecution for selling obscene books the state must

prove that the defendant was aware of its contents, lest he restrict

the books he sells to those he has inspected. Particularly in point

for present purposes is this Court’s approving quotation (id. at

153) of The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.):

‘*Every bookseller would be, placed under an obligation to

make himself aware of the contents of every book in his shop.

It would be altogether unreasonable to demand so near an

approach to omniscience.”’

21

(ii) The exception to the no-strike commitment for

health and safety disputes articulated by Dean Shulman

and refined by later arbitrators finds a statutory counter-

part in §502, the ‘‘Savings Provision’’ of the Act, which

states:

©

‘“‘nor shall the quitting of labor by an employee or

employees in good faith because of abnormally danger-

ous conditions for work at the place of employment of

such employee or employees be deemed a strike under

this Act.’’

Taft-Hartley’s legislative history does not provide a

gloss on the Act’s language, *° and the Sixth Circuit, in the

leading (502 decision, therefore gave the provision its nat-

ural reading:

‘*That section expressly limits the right of manage-

ment to require continuance of work under what the

employees in good faith believe to be ‘abnormally dan-

gerous’ conditions. *** Since Section 502 provides that

walking out under a good faith belief of abnormally

dangerous conditions does not constitute a strike, the -

- no-strike provision [in the agreement] was not ap-

plicable.’” NERB v. Knight-Morley Corp., 251 F.2d at

759.

_ So here, if employees could be punished for refusing work which

was not. abnormally unsafe, although they reasonably believed it

to be, they would be penalized for their lack of ‘‘omniscience’’ re-

garding what are often complex technical or scientific problems “

beyond their ken.

10The following are the sole references to §502 in the reports

and debates which preceded the passage of the Act. Legislative

History of the Labor-Management Relations Act of 1947 (G.P.O.,

1948), pp. 29, 156, 290, 436, 573, 895. None of them explains its

scope.

=

Thus, the Sixth Circuit’s opinion in Knight-Morley paral-

lels the law developed by the arbitrators as articulated in

; the Laclede Gas decision. The Court of Appeals stated that

a no-strike commitment does not bar a walk-out ‘‘under as

. good faith belief of abnormally dangerous conditions.”’

‘ The arbitrator speaks of a right to refuse work where the

: employee ‘‘reasonably believe’ that by carrying out such

me

22

a

work assignment he will endanger his safety or health.’’

Laclede Gas, 39 1..A. at 839. This minor difference in ter-

minology cannot, however, obscure the central point that

both focus on an evaluation of the situation as it appeared

to the employees at the time and provide that a refusal to

work does not breach the no-strike obligation so long as

the employees are actuated by honest and reasonable safe-

ty or health grounds for their refusal. To require more,

for example, that the employees show, not simply that they

acted reasonably and honestly, but that they were correct,

viewing the matter in hindsight and in light of all of the

facts as subsequently developed by experts in the field,

would be to disregard the gravity of the stakes to the em-

employees. See pp. 17-20 supra. Indeed, that construction

would rewrite (502 in a manner which saves employees

little of substance.

This is shown by the Eighth Cireuit’s decision in NLRB

v. Fruin-Colnon Construction Co., 330 F.2d 885, 892 (C.A.

8), which refused to follow Anight-Morley, and declared:

“(T]he effect of Section 502 in its application to the

ease at hand is that if employees acting concertedly

leave their jobs believing in good faith abnormally

dangerous working conditions prevail, they run the

risk of discharge for engaging in a ‘strike’ in contra-

PERE Oey eR RENE eaNeAaS

23

vention of a ‘no-strike’ clause in their collective bar- -

gaining agreement or for participating in the unpro-

tected activity of dictating to management their own

terms and conditions of employment, should proof later

of the physical facts fail to support their prior belief.’’

We think that the same court’s decision in Hanna Mining,

464 F.2d 565, eschewed this Draconian approach to the

rights of industrial workers, and properly so. For it is plain

that ‘‘no enlightened society’? imposes on an employee such

a Hobson’s choice between a risk to his life or his liveli-

hood. Cf. Pet. App. p. 17a.

The Knight-Morley test was followed by the Third Cir-

cuit in Philadelphia Marine Trade Association v. NLRB,

330 F.2d 492 (C.A. 3), cert. denied 379 U.S. 833, and was

approved by the majority below (Pet. App. p. 17a). Yet it

was objected in dissent:

‘“‘This test will require a court to accept the naked

assertion of an employee that the presence of one of

his fellow employees in a plant constitutes a safety

hazard.*’ Pet. App. p. 22a.

But this argument, which is adopted by the Company herein

(Pet. Br. p. 39), disdaing the teachings of experience. For,

as we have shown above, the reading of §502 which we urge,

is identical to that of the common law of the shop developed

by arbitrators; the acceptance of that rule in ‘‘other indus-

tries’’ for many years, establishes that petitioner’s fears of

‘‘chaos and unrest’’ (Pet. Br. p. 39) are wholly unjustified.

More generally, ‘‘it has been sometime now since the law

viewed itself as impotent to explore the actual state of

;

- —— Se PRs OR

24

man’s mind.’’ Smith v. California, 361 U.S. at 154, and the

authorities there cited.”

As we have already noted, p. 14 supra, the majority in the

court below found that the walk-out here was predicated

on an honest belief that supervision by these foremen would

unduly endanger the miners’ lives. Pet. App. p. 14a. Plain-

ly, deliberate falsification of safety records suffices to estab-

lish that the foremen’s regard for the safety of the mine

was less than that of ‘‘the ordinary men in the calling.’’

Boudoin v. Lykes Brothers Steamship Co., 348 U.S. 336,

339, quoting Jones v. Lykes Bros. Steamship Co., 204 F.2d

815, 817 (C.A. 2, L. Hand, J.). As the Boudoin case illus-

trates, men as well as machines can render a working

place unsafe. At best the hazards facing miners border on

the ‘‘abnormally dangerous.’’ Certainly the miners’ insist-

ence that the Company provide them with supervisors

willing to abide by the minimal safety regulations imposed

by law for their benefit was entirely reasonable. The report

of the Pennsylvania Department of Enviromental Re-

sources relied on in the dissent below (Pet. App. p. 21a),

does not justify a contrary conclusion. That agency did not

decide that the foremen did not falsify records, nor that

the employment of foremen who commit such violations

does not increase the risks of working in the mines.

See p. 6, n. 2 supra. The dissent’s pleading point ‘‘that the

union has never complained about the alleged past viola-

11 The arbitration decisions cited at pp. 17-19 suwpra, which cor-

rectly insist that the employees’ refusal to work on health and

safety grounds must be reasonable (in light of the situation as it

appeared at the time), demonstrate that the standard we propose

here is not, as the Company would have it (Pet. Br. pp. 35-38), a

purely subjective one.

PEN OT ox

25

tions’’ (Pet. App.’ p. 20a) by the same foremen, assumes

that one deliberate falsification of safety records, in thts

industry, is not enough.

2. Boys Markets also prohibits the district courts from

issuing a strike injunction unless the court finds that injunc-

tive relief is appropriate under established equitable prin-

ciples: the district judge can not go forward unless he deter-

mines that the.breaches ‘‘have caused or will cause irrepa-

rable injury to the employer; and [that] the employer will

suffer more from the denial of an injunction than will the

union from its issuance.’’ 398 U.S. at 254.

Adherence to these conditions is indispensable to fulfill

the assurance of Boys Markets: ‘‘We do not undermine the

vitality of the Norris-LaGuardia Act.’’? Id. at 253. Rather,

§7 of that Act remains fully applicable.’? We are here par-

ticularly concerned with subsection (c) :

72 This has been understood by the lower courts. For example,

in Emery Air Freight Corporation v. Local Union 295, 449 F.2d

586, 588 (C.A. 2), the Second Circuit said:

‘*We emphasized [in New York Telephone Co. v. Communica-

tions Workers of America, 445 F.2d 39 (C.A. 2)] that the Act

still applies to all labor disputes in which a federal court can

issue an injunction, that nothing in Boys Markets, Ine. v.

Retail Clerk’s Union, Local 770, 398 U.S. 235 (1970), is to the

contrary, and that although that decision allows an employer

injunctive relief in a labor dispute, such relief is limited to

vindicating the arbitration process. See Note, 71 Colum.L.Rev.

336, 342-44 (1971). [445 F.2d at 49] Thus, before an employer

in a dispute with a union can obtain an injunction, there are a

number of conditions to be satified. Section 7 of the Act, 29

U.S.C. §107, lists a good many of them.”’

And the Sixth Circuit held in Detroit News. Pub. Ass’n., 471 F.2d

at 875:

‘*The fact that this case involves an injunction against the

employer does not mean that the District Court was free to

26

‘‘No court of the United States shall have jurisdic-

tion to issue a temporary or permanent injunction in

any case involving or growing out of a labor dispute,

*** except after findings of fact by the court, to the

effect’’

: . :

‘‘(¢) That as to each item of relief granted greater

injury will be inflicted upon complainant by the denial

of relief than will be inflicted upon defendants by the

granting of relief.’’

The purpose of that provision was clearly spelled out by

Frankfurter and Greene:

‘*We have referred to the political difficulties con-

fronting the federal judiciary through its interventions

in industrial conflicts. Injunctions ought never to be-

come routine. As the present Chief Justice [Taft] once

observed:

‘Government of the relations between capital and

labor by injunction is a solecism. It is an absurdity.

Injunctions in labor disputes are merely the emer-

gency brakes for rare use and in ease of sudden

danger.’

No one can examine the record of litigation in the fed-

eral courts and continue to believe that the Chief

Justice’s warning has been heeded. The curb proposed

in clause (c) is merely a paraphrase of the accepted

doctrine of equity that issuance of a temporary in-

junction must rest upon a balance of convenience, but

makes it explicit because experience has revealed the

temptations to neglect this doctrine in labor controver-

sies. Courts will thus have to consider more sharply,

not merely the case for the complainant, but also the

ignore the procedural mandates set forth in §7 of the Norris-

LaGuardia Act or to grant an injunction in the absence of

—— harm.”’

27

union’s stake in the controversy—its actual investment

of time and money in the organization and conduct of

the strike and, most important, the irretrievable dam-

age to a strike and later reversal or modification of

an injunction cannot ameliorate.’’*

In the present case, the opinions of the District Court

show on their face that the entry of the injunction was con-

trary to the requirements of §7(c) and Boys Markets. The

issue is not discussed in the Memorandum and Order of

June 28, granting the preliminary injunction; one must

indulge the assumption that that memorandum incorpo-

rated by reference the following portion of the first para-

graph of the Court’s temporary restraining order issued on

June 18:

(cee

it is apparent to the Court that the Gateway Mine,

owned by Jones and Laughlin Steel Corporation,

Wheeling, Pittsburgh Steel Corporation, and Chenango

Furnace Company, is not working, has not been work-

ing for some time, specifically since June the 2nd, 1971,

and the men who belong to Local 6330 of the United

Mineworkers of America have not reported for work

since that date, it appears to the Court and we find

that the operations of Jones and Laughlin Steel Cor-

poration will be adversely affected by the continued

closing of the mine and the lack of coal will seriously

interfere with coke and steel manufacturing operations

over an extended period of time, which will lead, in due

course, to an effect upon the steel making facilities of

the corporation, and there is no question in the Court’s.

mind that the continued inactivity of the mine will

cause irreparable harm not only to the plaintiff but to

13 F. Frankfurter anc N. Greene, The Labor Injunction, pp. 221-

222 (1930), footnotes omitted.

wh pet MGA Pepe BPE

Pah os

MM SELL TDG LEN BEE NBENG Ail SL REAP A Deeb he 5 BGA +

eS 2) aN

PERG ARE Ne Honter Er) my

28

the great mass of people who depend upon the miners

for their livelihood, that is, the miners who are working

there.’’ Pet. App. pp. la-2a.

It is evident on the face of the District Court’s opinion

that it ignored ‘‘the union’s stake in the controversy”’

(Frankfurter and Greene, supra) and thus did not even

begin to exercise its duty under Boys Market to weigh the

respective equities of the parties. The Court’s tacit as-

sumption that the union loses nothing by being enjoined

in a strike is two generations behind the times. That alone

is sufficient to require reversal of the injunction against the

work stoppage.

The condition ‘‘that the employer has suffered irrepar-

able injury’’ has likewise not been met. The present case

is in stark contrast to Boys Markets, where the employer

was a grocery chain, with perishable products, and retail

customers who could fulfill their everyday needs by pa-

tronizing the employer’s competitors. Gateway’s product,

however, is coal, which has been in the ground for millions

of years, and which would not lose in value by remaining

there for the additional days, weeks, or even months of a

strike ;* moreover, Gateway would lose no business, since

its ‘‘customers’’ (R. 34) ® are, as Gateway’s President tes-

tified, the three companies who jointly own it (R. 3, 30).

Thus, while the District Court stated ‘‘that the continued

inactivity of the mine will cause irreparable harm *** to the

14 There was no showing that the market price of the coal would

fall; that would in any event be an injury compensable by money

damages. .

15°*R.’’ refers to the Appendix in the Court of Appeals, which

is part of the record in this Court.

ey ee

29

plaintiff’? (Pet. App. p. la), it was unable to point to any

injury to that ‘‘plaintiff,’’ namely Gateway. The harm

which the Court did find was to Jones & Laughlin Steel

Corporation, a part owner and customer of Gateway, and

to the general public. Pet. App. pp. 1la-2a. But neither

Jones & Laughlin nor the general public is a ‘‘complain-

ant’’ (Norris-LaGuardia Act, §7(c)) in this action, and

respondent unions owe a contractual duty to neither. Boys

Markets requires a finding of ‘‘irreparable injury to the em-

ployer’’ (398 U.S. at 254) not to others with whom he has an

economic relationship. To be sure, a strike, or at least a suc-

cessful one, inevitably inflicts some injury on third parties

with whom the employer does business. ® But Congress has

been quite specific in describing the circumstances under

which a strike may be enjoined in the public interest, see

§§206-210 of the Act, dealing with national emergency dis-

putes; and it has declined to protect secondary employers

against the ‘‘foreseeable disruptions’’ of a primary strike.’

Insistence upon the separate identity of Gateway on the one

hand and its three corporate owners on the other, is there-

16 This is particularly true if the injury is deemed to be sufficient

to warrant an injunction as long as it will occur ‘‘in due course.”’

Pet. App. p. la. Here the testimony of Gateway’s own witness was

that it had 40 days’ supply of coal on the ground at the time the

strike began (R. 40) and thus over 20 days’ supply at the time

the temporary restraining order was entered. The strike could,

therefore, have been permitted to continue for almost three weeks

without injury to even Jones & Laughlin.

17**<Some disruption of business relationships is the necessary

consequence of the purest form of primary activity. These

foreseeable disruptions are, however, clearly protected’’ NLRB

v. Operating Engineers, 400 U.S. 297, 304.

|

3

2

|

3

‘

3

|

bi by aie Sa faatensicay

30

fore not a technicality ; it is essential to retain the vitality of

the irreparable injury requirement in strike injunction

cases. '®

Thus, as in Detroit News, Pub. Ass’n., 471 F.2d at 875,

the injunction must be reversed because the District Court

erred in evaluating the controlling equitable considera-

tions. **

18 Indeed, when the shoe is on the-other foot, neither the fact of

part ownership, nor the supplier-customer relationship, would take

Jones & Laughlin outside the protections of the secondary boycott

provisions of the Act if the respondent unions had chosen to extend

their disputes, for example, by striking not only Gateway but

Jones & Laughlin as well.

19 Tn the Detroit Newspaper case a union had obtained an injune-

tion prohibiting an employer from utilizing self-help pending arbi-

tration where the collective agreement contained an explicit status

quo provision (i.e., a provision limiting management in the same

manner as an explicit no-strike clause limits labor). Since ‘‘ [t]he

Noris-LaGuardia Act was responsive to a situation *** [in which]

the federal courts generally were regarded as allies of management

in its attempt to prevent the organization and strengthening of

labor unions’’ (Boys Markets, 398 U.S. at 250), the irreparable

injury requirement is entitled to no less rigorous adherence in strike

injunction cases.

31

CONCLUSION

For the reasons stated in Respondents’ Brief, and herein,

the judgment below should be affirmed.

Respectfully submitted,

STEPHEN I. SCHLOSSBERG J. ALBERT WoLL

1125 15th Street, N.W. General Counsel, AFL-CIO

Washington, D.C. 20005 Roserr C. Mayer.

LAURENCE GoLD

GrorGE KAUFMANN 736 Bowen Building

1735 New York Ave., N.W. 815 Fifteenth Street, N.W.

Washington, D.C. 20006 Washington, D.C. 20005

Attorneys for

International Union, UAW Tuomas FE. Harris

Associate General Counsel,

AFL-CIO

815 Sixteenth Street, N.W.

Washington, D.C. 20006

July 23, 1973