Opposition Brief — United Mine Workers v. National Labor Relations Board

I INNS oo i5 siwek a cabennvasonee cere nincmer anes 1

NT, 55h = os oa ot Meek race Pe, een OU es 2

I ONE coos sanwns saweanewatnteucsesy wh ves 2

NN OMNI 8 oir oi Sc & gate al Warwere wate Misilecoral coi nl Ses 3

BEES POPE PRA OC I a 3

A. The facts as found by the Board................... 4

B. The Board’s conclusions and order................. 9

C. The decision of the court below.................... 10

11

13

I oo, inns cv tata shoe OhAD EOE CU EWKS aE ra rn dy uas

SETI RE AEDES, ED gee COPA HIS Pe ERT Te

CITATIONS

Cases:

Federal Trade Commission v. Cement Institute, 333 U. S.

Re on Soe cg ko te Sse ns Ca atari ae aaee 12

National Labor Relations Board v. Clausen, 188 F. 2d

Mh eo eg eo oareg rite uit din eke nle tee eee a 12

National Labor Relations Board v. Newport News Ship-

building and Dry Dock Company, 308 U. S. 241...... 12

National Labor Relations Board v. Pennsylvania Grey-

Rae BG, ee Cis Wie ws eo ice en een xen sas 12

Superior Engraving Company v. National Labor Re-

lations Board, 183 F. 2d 783, certiorari denied, 340

eG SE os ca uaa Care geen ten Sa Ween ae 12

United Mine Workers of America, District 31, et al. v.

National Labor Relations Board, No. 364, October Term,

1952, certiorari denied, November 17, 1952........... 11

Statutes:

National Labor Relations Act, as amended (61 Stat. 139,

a er err ry Te

NEE 5 An ue vck en a SEMANA Mee Natoe Couaee

Section 8 (b) (1) (A)

© Ow

(1)

Inthe Supreme Court of the Wnited States

OctToBER TERM, 1952

No. 470

Unirep Mine Workers or America, UNITED MINE

Workers or America, District 23; EARL SUvVER,

Agent, Unitep Mine WorKERS OF AMERICA AND

Irs District 23; ARTHUR CHANEY, AGENT, UNITED

Mine Workers OF AMERICA AND ITs District 23,

PETITIONERS v

NATIONAL LABor RELATIONS BoarpD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS FOR THE

SIXTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court below (R. 507-510) is

reported at 195 F. 2d 961. The findings of fact,

(1)

a . ‘

. Tre wey % PS Seer Pe ROD .

2

conclusions of law, and order of the National Labor

Relations Board (R. 128-142) are reported at 92

NLRB 916.’

JURISDICTION

The judgment of the court below was entered on

April 28, 1952 (R. 507). A petition for rehearing

was denied on September 5, 1952 (R. 535). The

petition for a writ of certiorari was filed on Novem-

ber 28, 1952. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254 and under Section

10(e) of the National Labor Relations Act, as

amended.

QUESTIONS PRESENTED

1. Whether substantial evidence in the record

considered as a whole supports the Board’s find-

ings, sustained by the court below, that petitioners

by force, and threats of force, punitive action, and

economic reprisals, restrained and coerced the em-

ployees of six non-union mines located within the

geographical limits of the organizing jurisdiction

of petitioner District 23 in order to compel them

to join the United Mine Workers of America,

thereby violating Section 8 (b) (1) (A) of the Act.

2. Whether, on the basis of the Board’s findings,

the Board properly ordered petitioners to cease

and desist from restraining and coercing, in any

manner, the employees of the six mines and any

other employees engaged in mining operations

within the geographical limits of the jurisdiction

1 Reference to portions of the printed record submitted by

petitioners in this Court are designated “R.” Those references

preceding the semicolon where one appears are to the Board’s

findings, and those following are to the supporting evidence.

3

of District 23, and properly ordered petitioners to

transmit copies of the notice of compliance with

the order, for posting, to each local of District 23.

3. Whether the trial examiner erred in permit-

ting testimony to be adduced, solely as background

material, relating to organizing activities by peti-

tioning unions in 1946 and in refusing to permit

petitioners to adduce testimony relating to the al-

leged opposition of the charging parties to the peti-

tioning unions.

STATUTE INVOLVED

The pertinent provisons of the National Labor

Relations Act, as amended (61 Stat. 136, 29 US.C.,

Supp. V, 151, et seq.) are set forth in the Appendix

to the petition at pp. 27-29.

STATEMENT

Upon the filing of charges by the Homestead

Coal Company, the Colonial Coal Company, the

Badgett Mine Stripping Corporation, and the West

Kentucky Coal Company, respectively, the Board,

pursuant to its rules and regulations, consolidated

the cases for the purposes of hearing and issued

a consolidated complaint against petitioners (R.

45-49). Thereafter, petitioners filed an answer to

the complaint (R. 52-53, 55-58). At the consoli-

dated hearing the Poplar Ridge Coal Company, the

Badgett Corporation, the Julia-Ree Corporation,

and the Badgett Mine Stripping Company filed and

were granted motions to intervene (R. 59-60; 145-

146). Following the consolidated hearing, at which

petitioners introduced no evidence, the Trial Ex-

— pee ge —

Pez page rDs srr PRR PE MRS AET ae

4

aminer issued a single intermediate report (R. 61-

113) and the Board a single decision and order (R.

128-142). The pertinent facts, as found by the

Board, with which the court below agreed, may be

summarized as follows:

A. The facts as found by the Board

On June 29 and 30, 1949, petitioners, United

Mine Workers of America (hereinafter referred

to as UMWA), and its District 23, through Earl

Suver and Albert Chaney, paid organizers, at-

tempted to organize 6 non-union mines * located in

two counties in the western part of Kentucky and

within the geographical limits of District 23’s or-

ganizing district. These mines are owned or

operated by the charging parties (R. 65-67; 497-

501). The plan of campaign followed in basic out-

line at each of the mines in turn was as follows:

Suver and Chaney approached the mine to be organ-

ized at the head of a mass of union members and

followers numbering from 1,000 to 2,500 individ-

uals who had been assembled from the union locals

in five counties in Kentucky, and from Illinois and

Indiana (R. 70-71; 208-209, 210, 325, 402-403, 410,

438). Under the direction and command of Suver

and Chaney, the crowd proceeded to the mine prop-

erty in a long line of busses, trucks, and private

automobiles which extended along the road for a

2 These were: The East and North Diamond mines operated

by the West Kentucky Coal Co.; Homestead mine operated by

the Homestead Coal Co.; Poplar Ridge mine operated by the

Poplar Ridge Coal Co.; Colonial mine, operated by the Co-

lonial Mining Co.; and Hecla mine operated by the Badgett

Mine Stripping Corp.

eet RE LE

; TENN RS IIIT TIT —

5

mile or more (R. 70-71; 208-209, 210, 225-226, 325,

364, 402, 410, 434-435). When the crowd had

reached its destination, Suver and Chaney, together

with from 2 to 4@other individuals who served as a

committee, sought the mine officials, informed them

that they had come on a ‘‘peaceful mission’’ to or-

ganize the mine employees and requested that the

mine be shut down and that the miners be called out

of the mines so that they might ‘‘talk to them” (R.

71, 74, 80, 83, 85-86, 90-91, 93-94; 212-214, 226-227,

247-249, 272-273, 290-292, 296-297, 326, 356-357, 368,

408-409, 412-413, 434-435, 448).

While this request was being made, the crowd

scattered over the mine property, rounded up the

surface employees and herded them to an assembly

place. (R. 75-77, 80, 83, 86-88, 90-91, 94; 298, 300,

302, 360, 368-369, 400, 415, 431-432, 437, see 489-490. )

The mine superintendent at each mine demurred to

the request that he shut down his operations, and

| Suver and Chaney promptly changed the request to

| a peremptory demand (R. 74, 80, 83, 86, 90, 94; 227,

291-292, 326-327, 331, 399, 448). The superin-

tendent then consulted the sheriff and the head of

the highway patrol. These law officers informed

the superintendent that they did not have a force

large enough to control the crowd and advised him

to aecede to the union demands in the interest of

peace. Thereupon, the superintendent gave orders

that the men be called out of the mine. (R. 75, 80,

83, 90, 94; 214, 227, 327, 336, 358-359, 375-376, 399,

409, 448, 461). At this point, Suver and Chaney

took complete control of the situation in the mine

Toeee ee pre

a: ©

6

yard. The union crowd roamed over the mine yard,

seizing the miners’ lunches at one mi and break-

ing into the company’s ice house at arother (R. 80,

87, 91; 298, 300, 302, 360, 400, 415, 423, 431, 437,

479, 489).

When the miners appeared, merMbers of the

crowd ordered them with rough and insulting lan-

guage, and in some cases forcibly, to @ Place of as-

sembly designated by Suver and Chaney (R. 77,

80-81, 83-84, 86-87, 91, 95; 249, 307-308, 316, 327-

328, 330, 360-361, 371-372, 376, 385-386, 410, 415,

451). When they had thus been herded into one

place, and had been completely surrounded by

the crowd, they were addressed by Suver and

Chaney and at several of the mines also by other

organizers. Suver and Chaney told them, with

minor variations in detail and emphasis from mine

to mine, that they were there to organize the miners

into the UMWA and pointed out the advantages

of the organization. They then informed the

miners that they were going to close the mine down

until the men joined the UMWA and the company

signed a contract with the organization, and that

they were prepared to see to it, with the use of

violence if necessary, that the men did not work

again until these conditions were met. They finally

requested the miners to raise their hands to signify

that they would not return to work before they

joined the UMWA or the contract had been signed,

and invited them to attend meetings at specified

locations at which they could “sign up”’ in the

union. (R. 78-79, 84, 89, 96; 249-250, 257-258,

265-266, 273-274, 286-287, 292-293, 299, 328, 343,

7

348, 373-374, 382-383, 386-387, 392-393, 400-401, 420,

426-427). The miners were then ordered to leave

the property. At the Homestead mine, the third

one visited, the miners refused to raise their hands

when requested to doso. Their refusal was greeted

by an angry roar from the crowd. Chaney

threatened to pay them all another visit, and they

were forced to leave the mine to the accompani-

ment of insults and catcalls. (R. 84-85; 345-346,

353-354, 425-427).

As the caravan proceeded from mine to mine, the

demand of Suver and Chaney to the mine officials

became more peremptory and the attitude of their

followers toward the miners progressively more

abusive and threatening. At the East Diamond

Mine, the first one visited, the manner of Suver

and Chaney was courteous and the attitude of the

accompanying crowd comparatively quiet. How-

ever, when the mine superintendent suggested to

Chaney that he and his followers were trespassing

and should wait until the end of the shift and speak

to the men off mine property, Chaney retorted

‘Well, Ray, it’s the same damned old story .. .

we have heard that a lot of times, we want to talk

to your men. What are you going to do about

it?”? (R. 74; 213). When the sheriff asked Chaney

whether the miners would be permitted to return

to work after Chaney spoke to them, Chaney

abruptly rejected the suggestion with the remark

‘‘What in hell do you think we’re all out here for ?”’

(R. 74; 214). When Chaney addressed the employ-

ees, he reminded them that he had gotten them out of

‘

sieaiiatmiiniliieiia OE EEE SERIES EERIE OO EIEN Ee

7 SSPE eee eee eee PLP LENE LE TTR

8

that mine once before, and that if they now tried

to return before a contract was signed, he would

return and ‘‘it would be bad’’ (R. 78; 274). At the

Poplar Ridge mine two miners were assaulted and

injured by members of the crowd. The miners

were told by one of the speakers that he was from

“bloody Williamson County”’ and that he ‘‘had

some men who he did not bring with him on this

trip,’’ that these men ‘‘just couldn’t be controlled,”’

but that if he had to come back he was going to

“‘bring them with him.’’ (R. 88; 373, 382-383).

At the Hecla mine, Suver warned the miners that

the UMWA was stronger than they were and that

if the miners returned to work without joining the

union, the UMWA men would return and “‘let their

conscience be their guide’ (R. 96; 436, 453, 464,

471, 475, 486).

The attempts of Suver and Chaney to organize

the six non-union mines herein involved was but a

step in the wider attempt to organize all the non-

union mines within the geographical limits of Dis-

trict 23. Suver and Chaney stated that the pur-

pose of their visitations to these mines was ‘‘to

organize the West Kentucky Coal Company and

other companies, that the employees were not going

to be permitted to operate until they signed up

with the United Mine Workers;’’ that ‘‘the West

Kentucky and other companies were running coal

that was scab coal in competition with union

mines,’’ that ‘‘it would not be permitted any more,”’

and that ‘‘the drive would be continued until they

were all organized.’’ Suver stated also that ‘‘they

9

were out to unionize all the nonunion mines in the

territory”. (R. 130; 183-184, 400-401, 417, 420).

B. The Board’s conclusions and order

Upon the facts summarized above, the Board

found that petitioners, the United Mine Workers,

its District 23 and their agents, had, by force and

threats of force, punitive action and economic re-

prisals, restrained and coerced the employees at the

6 mines herein involved in the exercise of their

right, guaranteed by Section 7 of the Act, to refrain

from engaging in concerted organizational activi-

ties, and that petitioners had thereby violated See-

tion 8 (b) (1) (A) of the Act (R. 128-129, 99-104).

The Board further found that petitioners’ conduct

was ‘“‘the beginning of a planned program to apply

the same techniques to all the nonunion mines

within the organizing jurisdiction of District 237”

(R. 130).

Accordingly, the Board ordered petitioners to

cease and desist from, in any manner, restraining

and coercing the employees at the 6 mines herein

involved, or any other employees engaged in min-

ing operations within the geographical limits of the

jurisdiction of District 23, in the exercise of the

rights guaranteed them by Section 7 of the Act, by

exerting or threatening to exert force, or violence

against them, or by taking or threatening to take

punitive action or economic reprisals against any

of, said employees unless they join and become

members of the United Mine Workers of America

or by coercing and restraining said employees in

the exercise of their right, guaranteed by Section

— RE EE TMNT SS ML BET STIL LO IORI RE MY TA RENT OR I

10

7 of the Act, to refrain from engaging in concerted

activities (R. 131-132). Affirmatively, the Board

ordered petitioners to post the usual notices of

compliance with the order at their business offices,

to send copies of the notices to the Board’s regional

director for posting at each of the mines herein in-

volved, and to each of the locals of District 23 with

instructions and orders to post such notices or to

communicate the contents of the order to the local’s

membership (R. 132-133).

C. The decision of the court below

In a per curiam decision enforcing the Board’s

order in full, the court below found that ‘‘the find-

ings of the Board are sustained by overwhelming

evidence”’ (R. 509). The court stated (R. 509-

510), ‘‘The mass trespass on company property, the

rounding up of nonunion men from the mine

premises and forced cessation of work, the physical

compulsion which was used to prevent their leaving

the premises or returning to work after the speeches

were over, the constant abuse and threats of phys-

ical violence, were highly coercive. * * * The

presence of so many hostile men on mine property

and their encirclement of the relatively small

groups of nonunion workers was coercion.’’ The

court also rejected petitioners’ objections to the

order insofar as it requires petitioners to cease and

desist from restraining and coercing not only em-

ployees in the six mines involved here but also all

other employees engaged in mining operations

within the geographical limits of District 23’s jur-

isdiction. The court stated that ‘‘in view of the

11

purpose of the invasion of these mines . . . which,

as stated by Suver, was that the union group was

out to unionize all the nonunion mines in the terri-

tory we think this order was a proper exercise of

discretion on the part of the Board”’ (R. 510).

ARGUMENT

1. Questions 1 and 2 (Pet. 17-21, 21-24) were

presented in the almost identical case of United

Mine Workers of America, District 31 et al. v. Na-

tional Labor Relations Board, October Term, 1952,

No. 364, in which this Court denied certiorari.

Certiorari should be denied here with respect to

these questions for the same reasons as were urged

by the Government in No. 364.

2. Petitioners assert (Pet. 25) that the court

below erred in enforcing the Board’s order because

the trial examiner committed prejudicial error in

permitting testimony to be adduced relating to

organizing activities by petitioners in 1946 similar

to the activities in 1949 that constitute the basis of

the Board’s order, and in refusing to permit peti-

tioners to adduce testimony that the charging com-

panies ‘‘had a background of opposition to organ-

ized labor and active opposition to the petitioning

Unions.”

The trial examiner permitted the introduction of

the testimony relating to the 1946 organizing ac-

tivities solely as background evidence which tended

to explain the apprehensive attitude of the em-

ployees toward the petitioners’ organizing activi-

ties (R. 71-72). The Board made no unfair labor

practice findings with respect to the 1946 activities.

a

. RE ee Ny eee ee eT Le ee,

12

Consideration of such background material by the

Board for the purpose of assessing the legality of

activities charged to be violative of the Act is en-

tirely proper. National Labor Relations Board v.

Pennsylvania Greyhound Lines, 303 U. 8. 261, 268-

270; National Labor Relations Board v. Newport

News Shipbuilding and Dry Dock Company, 308

U. S. 241, 244-248; Federal Trade Commission v.

Cement Institute, 333 U. S. 683, 705; National

Labor Relations Board v. Clausen, 188 F. 2d 439,

443 (C. A. 3); Superior Engraving Co. v. National

Labor Relations Board, 183 F. 2d 783, 791 (C. A. 7),

certiorari denied, 340 U. S, 930.

The trial examiner also properly excluded testi-

mony relating to the alleged opposition of the

charging parties to the petitioning unions. This

testimony * was irrelevant to the issues herein, and

there is no showing that its exclusion has in any

way prejudiced petitioners. The examiner’s rul-

ing does not present an issue of importance war-

ranting review by this Court.

8 Specifically, petitioners complain (Pet. 25) of the trial

examiner’s ruling sustaining an objection to the following

question put to the personnel director of one of the charging

parties (R. 200): “Were you instructed by the West Kentucky

Coal Company or any of its officers to exert your efforts to-

ward preventing or inducing the employees not to join the

United Mine Workers of America?” The examiner sustained

the objection on the ground that the testimony sought to be

elicited was irrelevant to the issues in the proceeding before

him (R. 200).

13

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

Wa ter J. CUMMINGS, JR.,

Solicitor General.

GrorcE J. Bort,

General Counsel,

Davip P. FINDLING,

Associate General Counsel,

Mozart G. RATNER,

Assistant General Counsel,

Dominick L. MANOLI,

Maraaket M, FARMER,

Attorneys,

National Labor Relations Board.

JANUARY, 1953.

3X U. S. GOVERNMENT PRINTING OFFICE: 1983 236097 901

"i ee