Petition for Writ of Certiorari — Quality Coal Corp. v. Lewis (No. 517)

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YAMBBS &. BROWNING, Cierk

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IN THE

Supreme Court of the United States.

Ocroper Term. A. ..

LQ, 7

'

, > Ward

No. 5 | re

ois QUALITY COAL CORPORATION es

AN [NDIANA (CORPORATION, :

I’ tifhomer,

n . aS. ..

’ JOHN L. LEWES, HENRY G. SCHMEDT asp JOSE.

TRUSTEES OF THE -Usirep Mink

' ?

PHINE ROCHE as

\oRKERS OF.

America WRLRARE ASD |

_-. PBTITION. FOR WRI

UNITED STATES COURT

SEVENTH CIRCUIT. *

2eTIREMENT FUND. .

Re spondents.

tT OF CERTIORARI TO THE Ee ea

OF APPEALS FOR THE —

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‘ 4 be

e

\ e

> oun R. Jett.

705 Ohi Street, <<

‘Serie Haute, Indiana,

X. GEORGE NASSER,

og N.Sivth Street,

‘Torre Haute, Pricbaatiaa,

Alformweus tor Petitromet.

Conelusjon

EE PEE OEE ee Tr Ci kha ee whe S

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2

INDEX.

; PAGE

Report of Case...-- anoeeeeys 1 a pil wat ae ae eae 1,2

- Basis of Jurisdiction. «+--+ +>: er ie ice ote 2

Questions Presented ...---- i eeskaw* Tene 2-4

Statute Involved i ae ee We feet et

Statement of the Case..---- eon we ee etre es if, Meee

Basis for Federal Jurisdiction in Trial Court. isa ae

Reasons Relied on for Granting LL ETON ug

i. The Agreement Was Illegal py Virtue of- Peti-

tioner Being Forced to Operate a Closed Shop. 6-11

». The - Majority Opinion that the ‘‘Savings |

Clause’? Legalized the, Contract Is in Conflict

with General Principles of LAW... fs Fe ties oe

3. The Agreement Was an Integrated Instrument

— and Any Iilegal Provision Therein Destroyed

the Entire Agreement... - +--+: Seen nasi ts 11-13

4. The Contract Was Void Because It Was Mad@

Under Duress. ...--+--: entices nga ses en 13, 14

5. The Contract Was Unilateral and Void.. SOW

"6. Indispensable Parties: Were Lacking.....-- 14, lo

. — ee , — — eo

7. No Trust Was Created and Therefore the Plain-

_ tiffs Could. Not Bring This Cause: of Action.15, 16

il

" :

APPENDIN.

“Majority Opinion of ¢ ‘ourt of Appeals (Appendix 1) .19-25

Dissenting Opinion of Court of Appeals ——

has ooo eka ee ee ere ee 26-29

Judgment of Court of Appeals - Appendix ” ieee Ae

Order Denying Petition for "Rehe raring ( Appenutix

(OS SES GES Ae CoS a eee eee 31

Ixsnance of Mandate Stayed until November: 13, 8909,

(Appendix IV) ...-- ars een eat ees ee .. a

: (Appendig V.)

~ Statutes eerie ah aerate Pe Pee ee eee i Se

29.U. A. 158 (a) (1), (A) (3), (B) (1),, (B).

2) se ing, ( Appendix v ). Nb ee ne ee 34

Aiidavits (Petitioners) : :

Carl F. Kumpf... ie ear cere ee ‘al ty bd

jolt Gettle ..5--5..---- eee Ver eS cere a:

Weed Lister ©. ..- 05. ++: eee Moo. BSN

Clayton Weaver ...-..- Since? Ere ne 3) ge

Respondent's Affiday its and Exhibits... .6.-- ore 46°

Agreement of: 1950 effective September 1, 1 55. 637

Agreement of 1950 ¢ fective Oetober f, 1956.:...: .37, 38

Agreement of 1) e) effective to June 30, 1952... 38-40,

Affidavit of Josephine Mate.....-4:: pate eee 4), 41

Exhibit eG (International nions Const. a : 3

Exhibit ‘*H-1°" (Inte ‘rnational U nions. Const. - kd, 43

Exhibit “H-2 2°? (International U nions Const.)..: 45

Affiday’ it of W ilbert rere eee Foner 44-46

Petitioners’ Sfliday it in Rebuttal. ....-..-- rene ies "46-52

EEE ET Te aly (a ce ana 46, 47

Jack Lynch ....-------++-- Aree be rere mee 147,48

Joseph Jenkins .....5++--: Bose se Rae EO EN ee

ill

Aw ruoritieEs, CITED.

Birminghain v. Barters, Si ” b ed. Co. oe 13

Brown V. National U nion,, Avs Fed. ‘Supp. a

Davis v. Davis, 197 Ind. B86, lol NE renee J4

Krauss aw. Kraus, 250 Lind. ‘325, 182 VE 2d GOR... 16°

Lewis: et aul. v. Be nedliet Coal Corp. 299 Fed. 2) S46

Pa ea ici Seti 2s aay bala MRM TR

Lewis et al. v. Fohteine, 964 Fed. (2) 194. :.-----05°° yh

I ewis et al. v. Quality ¢ ‘oal Corp., 2439 ed. 2 770. eee At

< L. R. B. %. Broderick Wood ‘uss, O., 261 ‘Fed.

ee oe ee 2.922

¥. 1. BB. v. ‘Gaynor News Co., 197 Fed. (2 ) oie: . 1

“i. ®t. -B. v. Gottfried Baking Co., (Sd) Cir.) ‘a, |

Fed. (2) 772. Ree OS ae eee Sa baat

AL. RB. MeGraw & Go. 206 Fed. (2) 635... 910,11

tL BR Be. &. &.- Shick Construction Co., 243 Fed.

SEP ea a peer ee Rane eaan 9, W

N. LR. B:-¥. United Brotherhood .. da 202 ay

.. (2)_ a ea \Y r “ Sy rs

XL. R. B. v. Cited leet R. eM, Wrks., owed

(2) 7, tee fee hte Shad #8 eee ee aire ns “10

i Red Star Express Lines v, No. R. B., 196 FA. (2) 78 811

| ‘Standard v. Olson, 75 Supp Ct. ee 2 ne Megalties [Ree

i oe sranerin Cy

Lp eR AT. iene ie eee Sei

Pc. ae RICA 19s. (A) (1). (A) . (B) (1), (B) 2)... 4

‘ ss

‘Supreme Court of the United States ,

Ocroser TéRM, D.¢ 1959.

\ IN THE

y .

‘Ny

et | eas . No.

. 2

a

ye QUALITY COAL CORPORATION,

; . a aN INDIANA CORPORATION,

| es Ty eeat etter - Petitioner,

vs.

- JOHN L. “LEWIS, HENRY G. SCHMIDT AND JOSE-

PHINE ROCHE, as TRUSTEES OF THE Usitep MINE

WorKERS OF AMERICA WELFARE ’AND RETIREMENT FUND. -

Respondeutys.

/

——

PETITION FOR WRIT OF CERTIORARI ‘TO THE

UNITED STATES COURT-OF APPEALS FOR THE

_ SEVENTH CIRCUIT. cae

ae

—_—_————

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States: |

+ @ ‘ ;

Petitioner prays that a writ of certiorari issue to review |

the judgment of the United States Court of Appeals for .

the Seventh Circuit entered in’ this cause.

1 leeds - QPINIONS BELOW.

‘The opinion of the District Court has not been reported.

It is set forth at pp: 240, 241 of. Appendix of Record ac-

companying and printed together with petitioner's origi-

2

nal brief filed in the Court of Appeals. (Said Appendix is_

hereinafter referred to as ‘*Record’’.)

The opinion, of the Cireuit Court of Appeals for the

Seventh Cireuit has been reported.at 270 Fed. 2d 140. A

copy is’ appended as Appendix I. The dissenting opinion

is. appended as Appendix IA.

JURISDICTION.

The judgment of the Court of Appeals was entered on

August 18,,1959. | (Infra, Appendix II.) A Petition for

‘Rehearing was denied on September 24, 1959 with Circuit

Judge Schnackenberg voting to grant a rehearing. (Infra,

III.) A Stay of Mandate pending disposition by said

Court was granted extending the time, to November 13,

1959. (Appendix. IV.). The jurisdiction of this Court is

' invoked under‘provisions of 28 U.S.C. A., Section 1254(1). -

Jurisdiction:was conferred upon the United States Court

of Appeals for the Seventh Cireuit by 28 U.S. C. A. 1291.

° ; ‘ -

_ QUESTIONS PRESENTED..

Petitioner, in the trial court, filed a Motion to Dismiss

-and for judgment on the pleadings, it was later titled

Motion for Summary, Judgment. » (Record page, 209.)

The aforesaid Motion is as follows:

‘‘Defendants respectfully pray this Honorable Court

that the complaint in.the above case be dismissed and

‘the judgment-on the pleadings hereim be entered for

the defendants on the grounds thats "

‘1.’ Bhe complaint fails to state a legal claim

against defendant upon which relief gan be granted.

“9 The-plaintiffs lack the capacity to sue in the

above cause. ee ca a a

“3 That the United Mine Workers of America are |

indispensable parties fo this action. a

“*4. That plaintiffs are not the real or proper.

parties in interest:”’

ell pee

rs

—

‘are: ‘ eee

3

“In view of this hietion several prapoaitions under the’

law and facts ‘were ‘submitted to the trial Court, and

-Petitioner’s Motion .was overruled. These propositions

.

.

1. Was a trust ever created # | Ge

A. Since no money had ever been transferred, nor

_delivered to the alleged fund, then no trust was created

and plaintiffs could not sue as trustees of a trust that

was not in existence for a corpus that might accrue

in the future. .—

-9. The Agreement was ‘void: heeause of a ‘closed shop

provision” it} the contract which was in ‘violation of the

Taft- Hartley Act. ac

A. The Agreement, among other things, prov ided:

aes id -a condition of employment, all em-

aig shall be, or becc ne members * * *

to the extent and in the , manner permitted by

e *. @99°

isw.* | ge cy

Admitted facts in the record show that in the operation

-under the Agreement at petitioner’s mine, a ‘closed shop

was forced on them. (Record pp. 100-107.) Respondents

attempted to neg rative this evidence. (Reeord pp. 159-164.)

Petitioner sustained the violation of the Taft-Hariley Att.

{Record pp. 193-198.) - ms

.3. The contract was. void because ‘it was made under

duress. a :

A. Admitted ‘bisa ‘sustained this contention. (Ree-

ord pp. 101-105, Reeord pp. 193- 198.)

4. The contract was" unilater al anc void.

A. Petitioner was the only § cignatory hound by the

Agreciat. Respondents were not ‘signatories.

._ a

5. - Indispensable parties were lacking.

4

A. The U sted Mine W tkers of America did not

sign the Agreement ‘and were the only parties who

could dec lare a violation of said agreement. :

6. There was a dispute as to a genuine issue on material |

facts, andgthe judgment. is contrary ‘to law.

A. “The evidence: is replete to sustain petitioner.

(Record -pp. 101-105, Record pp. 159-164,- Record. pp.

4. 198: 198.)

STATUTES INVOLVED. |

The pertinent statutory provisions are printed ‘in. ap-

pendix V, pages 33, 34 and are as follows to-wit:

29 UL S.C. A. 158, SCA) (1), 8(A) (2), 8CA) (3).

29 U. S.C. A. 158, 8(B)(1),. 8(B)(2).

29 U.S.C. A. Lol. .

STATEMENT OF THE CASE.

Respondents, as trustees of the United Mine Worker

of America Welfare and Pension Fund, filed suit) tor

$84,176.40 by reason of an agreement wherein petitioner

‘alleg edly agreed to pay 40¢ ¢ a ton on all coal produced ‘for

a period of two years.

The petitioner filed affirmative defenses, (Record oe:

40-47), respondents filed motion for a summary judgment

(Record pp..56, 57), and the petitioner filed a cross motion

for summary judgment seeking an adjudication because

respondents did not have a legal claim for the reason that

unfairlabor practices had been committed by the United

Mine Workers of America in violation of 29 U.S. ¢. A

158 (A)(1), (A)(2), (A)(3), (B)(1), and. (B)(2), and

for the further’ reason that a closed shop was force@) upon

the petitioner, against his will and for the ‘further reason

that indispensable parties: were lacking. The District

Pg

Court overruled petitioner's motion for summary judg-

‘ment and granted respondents’ motion for summary judg-

ment by adopting its memorandum opinion filed by them

which is set-out at Record pp..240, 241.

Petitioner appealed to the Court of Appeals. The Court

of Appeals, by a two to ene decision, affirmed the judgment

of the District © ourt. Petitioner’s petition for rehearing

wax likewise denied by a two to one decision.

Adjudication of the issues by the pleadings: and affi-

davits, which are admitted facts, and other material in the

case, sustained the petitioner’s contentions that the ‘stat-

utes were violated by reason of the agreements. sued on.

Section 158 (A)(3) forbids a closed shop agreement and

the agreements upon which suit was brought conclusively

shows that it. was a prerequisite and mandatory that. all

employees ‘shall be, or become members *.* **'. The

admitied’ facts in the record conclusively. show that in the

operation: under the agreement -at- petitioner's “mines, a

closed shop was foreed upon the operators by compelling

non-union employees to join the union by the morning’ of .

the third day or get fired, and not giving them the 30 day

grace period following the beginning of their employment

“as required by the Taft-Hartley. Act.

Since the contract was null and void <nsbel the Taft-

Hartley Act. by virtue of the closed shop being forced upon

petitioner, the pseudo defense that the ‘tsavings clause ”*

legalized the contract does not merit consideration for

the reason that the contract was an integrated instrument

and its respective provisions were interdependent upon

one another and the contract had to be considered ax a

whole, and since one part was illegal, then, the entire agree-

tient Was a nullity. |

BASIS FOR FEDERAL JURISDICTION IN TRIAL COURT.

The respondents, trustees of said fund, maintained their

reside nee and place of busitiess at 907 Fifteenth Street,

x. eu ashington, of the District of C olumbia. Trus-

~ tee John LL ewis is a citizen of the State of Illinois. Trus-

tee Henry.G. Schmidt is a citizen of the State of Ohio.

Trustee Josephine Roche is a citizen of the State of Colo-

7 rado. The petitioner, Quality Coal Corporation, a corpora-

tion, was organized and exists under the laws of the State

of Indiana, located in Clay County in the State of Indiana.

Due to the diversity of citizenship of the litigants, and

the fact that the.amount’ in controversy exceeded $3000.00,

the United States District Court for the Southern District

of Indiana, Terre Haute Division, had jurisdietion.

REASONS RELIED ON FOR GRANTING WRIT. -

I. The Agreement Was Illegal by Virtue of Petitioner

Being Forced to Operate a Closed Shop.

(A) The — Opinion Is at War with General Principles

of Established Law.

This case raises important questions of Federal Law

wherein various Cireuit Courts of Appeal are in irrecon-

cilabte conflict with one another and therefore should be

settled by this Court. The conflict existing between the

several Federal Cireuits fully appears to be one of faet as

well as principle of law. We preface our reasons why cer:

tiorari should be granted by stating that there isn’t any

question but what the agreement was unlawful and that the

defense of violation of the Taft-Hartley Act has been con-

elusively shown, —Certiorari should further be granted so

that for once and.fer all, there shall be a unity among the

various cireuits in determining similar questions and ap-

fn

-q

\ Rea ae

plying a rule of law that will be binding on all sections of

the country. : .

We cannot overlook the comment made by Circuit, J udge

‘Schnackenberg in the dissenting opinion in w hich the ( ourt

of Appeals for the Seventh Circuit affirmed this cause of

action. His statement at page 8 was, * As far as this case

is concerned, by judicial decision, a-part 6f a federal act

te has in‘effect been repealed. “The act was not saved; a con-

tractual provision in violation of the act is saved.?’

In Standard v. Olsen (1954), 75 Sup. Ct. ‘768, 771, the

Court said: ‘‘It is for Congress, not the Courts, to write

the law.”’ i

Bal 2 . Facts in the Record.

,

The admitted and: undisputed facts in the record: con-

clusively show that in the operation under the agreement

at petitioner’ s mines, a closed shop was foreed upon the

operator. “The ev ‘idence is replete that an employee who

is not a member of the Union, when hired, has until the

morning of the third day to belong to the Union or. quit or

cet fired, Ele is deprived of the 30-day grace period, under

) . Section 8(.A)(3) of the Act; that if said non-union employee

refused to join the Union on the morning of the third day,

then the Union's employees would refuse to work by virtue

of instructions of the District Union whose Article 9, See-

“tion 2 of the Constitution of the U. M. W. of A., is

‘That all members of the organization shall refuse to

work in and around a mine where a man or men work

that does not belong to the Union.”’ (Record p. 100.)

This is further sustained by other evidence of three other

individuals which is not disputed, at Record pp., 105, 106

and 107.

<a

(B) The Reasoning of the Majority Opinion Is Inconsistent with

General Principles of Law. :

_ ane majority opinion holding that 299 U.S.C. A, Section

'158(A)(3) was not violated is in direct conflict with NV: L.

R. B. vy. Gottfried Baking Co,, 2d Circuit 1954, 210 Fed.

(772), which, among other things held:

‘*The prefer ential hiri ing clause * * * was clearly iliegal

as it excludes new applicants at the threshold if they

are not members * * *, and deprives them of the 30-

-day grace period * * * We think that the mere ¢xecu-

tion of a contract containing such a provision, eveu

apart from its actual enforcement, constitutes ‘als-

crimination in regard to hire’ on the part of an em-

ployer and falls — “squarely ‘within the prohibition of

Section 8(A)(3) for as this Court, ‘n so holding, stated

e in Red Star Express Lines v. N. L. R. B. (1998), 196

Fed. 2d 78, 81: -*The ex cistence of such agreement with-

out more tends to encourage membership in a labor

organization * * * 3m

This Court further state ad

“Sinee the Union joined in. the-execution of the’ ‘con.

tracts contained these illegal provisions and assisted

in enforcing them, it follows that the Union. ‘cause

(d) * * *.an employer to discriminate against an em- |

_ ployee ii violation of Section: 8(A)(3)° thus violating

Section &8(B)(2)."" :

The majority opinion is in irreconcilable conflict with the

Ninth Cirenit (1953)... The Ninth Cireuit in V2 L. R.B.

United Brotherhood C. & J. (1953) (9th), 202 Fed. (aa)

516, 518, held: : |

_ “An agreement with Employer that oniy those em

‘, ployees who belonged to- Union, or who were referred

by that Union, would be hired by the employer, which —

agreement was of sufficient potency to cause the em

piover to refuse to hire in violation of the Agreement

for fear the Union would, be ‘on its neck,’ was guilty

~~

c

03 NLRB 1147."

Q- “3

of unfair labor oe duit both Section 8(B)( 1)

(A) and Section 8(B)(2) of the Taft-Hartley Att.’

* The majority opinion likewise is in square conthict with

Cireuit (1953). In NV. LR. Boy. MeGraw and Com-

pany (1953), 206 Fed. (2) 635, 639, the Court ruled:

“That Section &(B)(1)(A) and Section 8(B)(2) ‘are

violated by a Union if it enters into, maintains or

causes thé enforcement of a closed shop agreement

with an employer _or if it arranges with the empl6yer

that Union employees will be given priority * 7% °".

«4 Union which executed with an,employer an al-

leged security contract which threatened employees

with loss of they jobs if they did not beeome members

of the Union

2,

The majority saunas likewise conflicts with the Tenth

Cireuit in V. L. R. B. v. Broderizk Wood Products Co.

10th Cireuit (1958), 261 Fed. 2d 548... The Broderick case,

at p. 555, under the Union Security clause ‘in the last Sele

tence thereof, read: : a <——

—

«Preference shall be given, in hiring new employees

to members of the Union who are capalle, in the opin-.

ion of the Employer, to perform the work in the Em-

ploy er’s plant.””

The Court held, at p. 596:

“Tt is settled law that the mere execution of an illegal

security clause without more is a violation of the Act

“e @ @9

The ta jority opinion is,again in conflict with the Ninth

Cireuit.. In N. L. &. B. vB. FB. Shuck Construction. Co,

9 Cir, 243 F. 2d 519, at p. 521, the Court stated, concern-

ing another illegal union-security clause :

“The mere retention of such a clause in a contract in

forge between the parties is a continuing unfair labor

practice even where there is no — to enforce it,

. 4 Mind

ted Section 8(B)(1)(A). me Bowen

19

because so long as it remains a part of. the contract

it ‘tends to encourage nfembership in a labor organiza.

tion’ in violation of Section 8(a)(3).""

Petitioner submits that if the 80 day. period was omitted

from the agreement, the Act mandates that the employer

shall have 30 days grace to join the Union. Hewas held in’.

N. z.. R. Rk. . United Blect. R. a - M. Whrs., es Fed. is

673, 676, that the minimum-joining period of 30 days must

be read into every agree ment, sa

* Majority ints Nullifies 29 U.8.C. A. 157 na U.8.C.A.

158 (B) (1) (B)'(2).

«f

The Opinion at page o among other things states:

The validity of the agreement is not affected by any

conduct or practice of the parties which would consti

tute an unfair labor practice under 29 USCA, See

1d8( A} : me

This.in effect nullities See. 157-and approves the Unions

action in forcing non-union employees to join in vielation

of See. S( By) and. Si B)¢2). |

The ¢ ‘ourt coutinued :

‘At most, such conduet or practic e not authorized by

the argument itself would show that the Union and -

Quality violated applicable law. Tt would not ‘alter or

change the terms of the avreement.’

Assuming ‘the agreement did not authorize such eorduet

the sections of the above acts prohibited such conduct.

This decisign indirectly repealed these, laws.

The fat that- petitioner complied with the: de mand te

hire only Union men or impliedly compelled them to join

the Union on the third day, did not exonerate the Union

from violating See. S(B)(1)(A) and (B)(2). Brown v

National Union (1951), 104 Fed. Supp. 685, ¥. 1. Ro BL vy

McGraw, 206 Fed. 2d 635. (Quoted at page 9 of this peti-’

tion.)

Forcing non-union vnahittoen. s to jom ‘the Union on the

morning of the third day not only violate d Section S| AJC 3)

but violated 20 ESCA, Section 157.

II. The Majority Opinion That the “Savings Clause’

Legalized the Contract Is in arene with General

Principles of law. |

~~

The majority opinion Cadmits the: Agreéine mt violates

Seetion 158, (a) (5) if it were not fer the <o- called: ‘Savings °

- ¢lause** which ix; “to the extent and in: the manner per

mitted by law * °°" Tt justifies its decision zipon Lewis

v. Fentress, 264 Fed. 2d 134, which involves hone of the

questions which were deeided by the majority opinion. The

Fentress decision Was made on matters completely oatqide—

ofthe issues involved in this cause and completely ignored

the undisputed fact» in the record. Primarily, it wie made

on the proposition that there was ne alteration of change

in thé, terms of the contract and brushed off the important

‘matter as to whether or not there was a violation of a

‘closed shop. The majority opinion and the Fentress case

—are indirect conflict with the majority of the eireuits, Simi

Jar alleged ‘*savings clauses’ were Teld to be of no effect,

in NLRB vy. Gaynor News Co; (2nd Cir), 197 Fed. (2) 719,

723: NLRB v. Shuck Coustr. Co, (Ot Cir.). 248 Fed. (2)

519, a2]: NLRB v. Gottfried Baking Co. (Jnd Cir.) 2le-

Fed. (2)°772: and Red Star Evpress Lines ¥. NLRB, 196

Fed. (2) 78, 81. As stated in the dissenting opinian the

Gaynor case Was affirmed by the Supreme Court on Febru.

ary 1, 1954.

12)

III. The Agreement Was an Integrated Instrument and

: Any Illegal ‘Provision Therein Destroyed the Entire

Agreement.

‘The. ‘savings clause” being a provision of the Agres

inent and since the respective provisions were interds

pendent on one another, the Agreeme nt had to be consid:

ered in its entirety. Therefore, the illegal gee de

stroved the entire. Agreement. (Lewis ef alow. Benedict

Ee: ‘eal Corp. (198), 209 Fed. 2d 346, B94.)

It was like Wise held in NL R By. Brode rick W vod Product

Co. etal, (1985), 261 Fed. 2d 548, 555, 596, 007 that the sav

ings clanse did not salvage YS the illefal clause in the

contract. . The Court stated, at p. oe yD:

The mere execution ‘ofa legal clause * * * is itself an

unfair labor practice within the Act. The saving-

clause dees net avoid that yulel?> oe

At can readily be seen that the mere retention and the

mere execution of such clauses ix a vidlation without proul

of the act showing the violation.

The Second Circuit in VERB ve Crotttried Baking Co.

210 Fed. (2) 772 at 780 stated :

“Nor is it of consequence, as the respondents con:

tend, that each. of the contraet~ contained a ‘savings

clause’ the intended effect of which was to salvage a>

niuch wnion security as possible should the prefe ren

: tial hiring provisions he invalidated. The ine? asion

of thix vague ‘savings clause’ in each contract does

net purge the: ‘preferential hiring provisions of their

‘illegal -effect.

The majority opinion (p. +) commented:

“The qualified condition imposed is expressed as

one complete provision. Its application is not to hy

measured by some standard found. elsewhere in’ the \

contract."

ieee 13

How ean this be reconciled with the clause in the con-—

tract as follows, to-wit :—

This Agreement is an innenebeted instrument andNts

respective provisions are interdependent and shall be.

ON froin and after Mareh 5, 1950.°° (Record -

. 61. Ke :

Tins Is ‘in direct conflict with als et ad, . Benedut

Coal Corp. (A9as), 261 Fed, 2d 548, 550, 096. 090, an others.

IV. The Contract Was Void Because it Was Made Under

Duress . * ve

The majority opinion states that there is no merit to

petitioner's claim that the Agreement aw as invalid because

of duress: It states :— \ tis,

°*The threat to cause a legal strike and its attendant

___work-steppage-doexnet-of_ itself constitute duress-and

mere inequality in economit bargaining power is not

legal unfairness which will permit either party to

avid a contract.’ \\ ates 3

: le, eae .

This statement is quoted.from Birmingham ¥. Bartels 157

Fed. 2d 295. The majority opinion ne \doul)

. In quoting

from the Birmingham eae, overlooked part \of the ir-

° + | --

minaham opinion in this, to-wit :—

or Court of law. cannot sitacitilliae a ‘contract he-

cause of alleged unfairness in the negotiation by which

the obligation has been created, unless the uaafrne ss)

amounts to duress or fraud capable of arouling the

contract, Dress or fraud -has not been set up. here,

nor has either of them attempted to be proved.” \ aaa

emphasis.)

-Numerous widisputed affidavits aré in the record show-

lig that duress.was perpetrated on this operator. (Record

pp. 101-165 ; Record pp. 193-198.) The Birmingham case

with the omission considered over rules the majority opin-

14

ion. In the ease at Bar the evidence was replete that the

operator was coerced in executing the Agreenient, and the

evidence. sustained the affirmative defenses,

V. The Contract Was Unilateral and Void.

, ;

Since the contracting parties were the®United’ Mine

Workers of America and the petitioner Quality Coal Cor-

poration, and the action was brought -byea how@ignatory

to the Agreement, and only the petitioner is hound by the

Agreement and no obligation. is placed upon the respend-

ents by virtue of the Agreement, then it resulfs im a uni-

lateral agreement wherein only petitioner is hound and

there is a lack of mutuality of: obligation which is an

essential element In every shuns tl agreement, (Daris

“y. Davis, 17 Ind. 386, 151.N. KE. 134.)

VI. Indispensable Parties Were Lacking.

The majority opinion states that this proposition — was

answered in-a former case involving the same litigants

and reported in 248 Fed. 2d 770, 772. With deference to

the majority opinion the Lewis ease cited is of tio bearing

for the reason that there were no pleadings filed in the first

Quality case which raised these issues. The Carter éase

pertained to the interpret tation of the Miller Act andthe

contract the rein prov ded :

“The Trustees had sole power to demand and enforce

prampt payment of eployer contributions.’ :

~ There was no such clause in the contracts inv sly ed in wis

litigation, and sinee the ¢ ‘arter case involved the interpreta:

tion of, the Miller Act relative to construetion work on

Federal projects, the Court made. its decisions on matters

‘not in isstie in this case, The E mbassy case is not in point

for the reason it is foreign to the Issues at stake.

.

a bce

The majority opinion relative to. indispensable parties

is contrary to the. 2nd Circuit, Lewis et al. v. Be nedict Coal

Company, 209 Fed. (2), 346, 34, which held the Union .

to be indispe ‘nsable parties. It was said;

_** Hence we conclude that obligation to make payments

to the Trustees was “dependent -upen—performance by

the Unions of their obligations, and consequently the.

- District Court was. correct in ruling that the Trustees

were third party beneficiaries of the contraet. and sub-

ject to the defense arising fron) breaches by the

Union.*; ‘ ;

Since the Union was a signatory to the contract and

they were the only ones who could. declare at their option.

a violation of the Agreement (Record p. 127), and they

did exercise this option on October 13, 1955 (Record p.

I ik), then it gops without saying that the Union was indis-

_pensable so that! if there were any defenses by reason of

illegal strikes, ete., they could have been raised as Was

dane in the Benedict case herein cited.

VIL. No Trust Was Created and Therefore the Plaintiffs

Could Not Bring This Cause of Action.

Petitioner. submits that ieee inust he saan of the

corpus or there can ‘be no trust.

At pages 2 and 3 of the. majority opinion, the € ‘ourt COn-

cluded that a trust was created.” With deference to the

majority opinion, we’ ary unable to reconcile this rule

view of re-statement of\ trusts 1935, Section 76, which h

reads: \ x

‘The subject matter of\a rent must be dotidtely ascer-

tainahle from the facts existing at the time of the

execution of the trust.”

Likewise, a clause under said Section 76 provides:

‘A trust cannot be created. if the thing which would .

al

\

: s y : ° * : y 16 ‘ i f BY a <

be the subject matter of the trust cannot be ascertained —

7

until a future time. *

We venpuittelte subniit that the holding in the majority

opinion ix in direct canflict-with the established rule of

‘law in the State of Tndiana, that there can be -no trust

‘ereated without delivery. (Avraus v. Nraus, 235 2nd 325,

132 N, E., 2nd, 608.) soe

»

4

. CONCLUSION.

Petitioner submits that the writ of certiorari? should be

xranted because it is of great public importance for the

following reasons :— Z

1. It is m conflict ‘with the 2nd, 9th and 10th United

States Courts of Appeal.

- 2. Wt is likewise in eontlict with the United States Su-

- preme Court.

3. The a in violation of Section 198 (a)

(3). | Nod

a The Union violated, Section 158 (b) (1) and (b) (2).

». The Union vidinted Seetion 157) in refusing em-

pplovees rights under the vaet,

6.) The undisputed faets in the reeord conelusiv ely show

that petitioner Was forced to maintain a closed’ shop.

+. There was no separability clause as the contract .

Was integrated and the provisions were interdependent

; /

npon one another and the illegality of a clausé of the eon-

tract destroys the entire contract, |

‘S$. The evide ‘nce conclusively shows: that a non-unton

employee had to join the Union by the morning of the third

‘day or get fired and if such employee refused to join the

Union, then the Union employees would: refuse. to work *

“hy. virtue of the Union's by- mews. The 30-day grace perio -

<

—poo

ws |

'

|

|

s

iW

: : Bad | eo

under Seetion 8 (a) (3) was not. complied with and was

ignored. °

9. The evidence is replete that the operator (petitioner)

was foreed, under duress, to exeeute the contracts. ;

10. No trust was ever erry i, ;

11.. The United Mine Workers, of America were neces-

sary and indispensable parties to this lawsuit.

12. The contract was unilateral in that norte other than

the petitioner was compelled. to perform any of fhe clauses

of the contract. eae ak pen, sae

432. The majority opinion is at war with general prin-

ciples of law. | ons i

i4, The reasoning of the fiajority opinion is inconsist-

ent with general principles of law.

15. This Court should grant the writ of certiorari in

order to resolve the matter in view of the inconsistency |

here. and above enumerated and because of the divided

opinion. ; ra

. Respectfully submitted, :

: . . >

be Joun R. Jerr,

ee a N. Grorce Nasser,

24 N. Sixth Street, ae

‘Terre Haute, Indiana, .

Attorneys for Petitioner.

¢

°

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