Petition for Writ of Certiorari — Peabody Coal Co. v. National Labor Relations Board

Supreme Court brief1961

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OPINION BELOW

JURIGDICTION ~

QUESTIONS PRESENTED

STATUTES INVOLVED .

STATEMENT OF THE CASE —

Board’s Findings and the Seventh Circuit’s

Decision

The Seventh Circuit’s Decne:

THE FACTS

1. Background

a. Progressive’s Bargaining Agreement

b. UMW’s Bargaining Agreement with

' Peahody

2. Facts Relating to the Alleged Coercion, Re-

straint and Discrimination .

a. UMW Conducts an Organizational Drive

for Membership Among the O'Fallon and

**illstadt. Employees ~

b. Progressive Conducts a Counter Drive

¢. Events.Concernirg O’Fallon Employees

McCollum meets with Local 75’s Mine Com-

mittee on July 17 and 20

Progressive’s Local 75 appoints committee

to meet with Company and UMW represent-

atives

Progressive Local:75 conducts a secret elec-

tion and votes to affiliate with UMW

. Events Concerning the Millstadt Employees _

Schroder mects with the repair crew on |

July 12..

: | Page

Progressive Local 167 requests, and has,a *

_meeting with UMW and the Company on

September 12: : \

All Millstadt eniployees designate UMW __ 2!

3. Management Checks’ and Counts the UMW -

Cards and Recognizes UMW 7 22

4. UMW Membership is Not a Condition of Em-

ployment as - c 23

5. The July 19 Notice of Termination. of Progres-

sive’s Contract . * 23

REASONS FOR GRANTING THE WRIT 4

«wi pie ees —

Il. R ° : 35

CONCLUSION — a 4)

MOTION TO DEFER CONSIDERATION OF .

PETITION _ | 4]

APPENDIX A (Opinion) oe

/ APPENDIX B (Orders, Judgments, ene 138

APPENDI*. C (Statutes) — | . Zia

| TABLE. OF CASES

A. L. Gilbert Co., 110 NLRB 2067, 2073 32

Building Material Teamsters v. NLRB, 2 Cir., 275 F.

2d 909, 912 40

Chicago Rawhide Mfg. Co. v. NLRB, 7 Cir., 221 F.-2d_.

—:165, 167 . : 29. 40

-Devilbiss Co., et 115 NLRB 1164 : aT

Farmers Co-Operative Co. v. NLRB, 8 Cir., 208 F: 2d _

< gees 25, 4

-Hazel-Atlas Glass Co. v. NLRB, 4 Cir., ‘127 F. 2d 109.

114-5. a

Hot Point Co., 120 NLRB 1768 ee 30

Local No. 3, United.Packinghouse Workers of Amer-

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

Page

ita, CIO v. NLRB, 8 Cir., 210 F. 2d 325, 330_.

Miller Elec. Mfg. Co., Ine. v. NLRB. 7 Cir., 265 F. 2d .

225, 226 . bak ; : 25, 39,40 -

Morganton Full paere Hosiery Co., 107 ae

~ "1534 & ; 34

NLRB v..Corning Glass Works, 1 Cir., 204 F. 2d 422, °

424,427. . ;

NLRB v. tances tale Union, 362 U.S. 274, 287° 37

| NLRB v. Englander Co., 9 Cir., 260 F.2d67,76 (30

NLRB v. Grunwald-Marz, Inc., 9 Cir., 47 LRRM 2940

. (April 3, 1961) 30

NLRB v. Indianapolis Newspapers, Inc., 7 Cir., 210

F. 2d 501 33

NLRB v. McGahey, 5 Cir., 233 F. 2d 406, 413 ae

NLRB v. Parma Water Lifter Co., $ Cir., 211 F. 2d

258, 261 - .

NLRB v. Roberts Bros., Inc., 9 Cir., 225 F. 2d 58, 60°

NLRB v. Rockwell Mfg. Co., 3 Cir., 261 F. 2d 109,

co 25, 40

NLRB v. Taitel,.7 Cir., O71 F.2d1 | 37

Parma Water Lifter Co., 102 NLRB 198, 207 39

Sunset Lumber Products, 113 NLRB 1172, 1173 _ 30, 32

Tetrad Co., Inc., 125 NLRB 466,45 LRRM 1152,

UMWA v. Mrkenses Oak Flooring Co., 351 U.S. 62.

UMWA v. NLRB, 7 Cir., 284 F. 2d, 910, 911, 913, 914,

. 33

915,916,917 -__ 2, 7, 8, 9, 10, 11, 28, 34, 35, 36

ise Camera Corp. v. NLRB, 340 U. S. 474,

488 , 24, 26, 37, 40

lil

Page

| STATUTES

28 USCA 1254(1) mae , 3

.28 USCA 2101(c).- - 3

‘Labor Management Relations Act, 1947:

Section 7 [29 USCA 157]... _ 8, 9, 10, 34, 35, 36 .

Section 8(a)(1) [29 USCA 158(a)(1)).. ee i

Section 8(a)(2) [29.USCA 158(a)(2)1 3,

Section’ 8¢a)(3) [29 USCA 158(a)(3)]. 5,7. "

Section 8(a)(5) [29 USCA 158(a)(5)1. 7

Section 8(b)(1)(A) [29 USCA’

—-158(b)(1) (A) 4,5, 7, 9, 10, 36, 37, 4a

Section 8(c) [29 USCA 158(¢)]. a 32

Section 8(b)(2) [29 USCA 158(b)(2)] ; of

Section 10(e) [29 USCA 160(e)1- "3, 5, 24, 40 -

Section 10(f) [29 USCA 160(f)] ~~ — 3,5, 24, 40

MISCELLANEOUS es

58 Am. Jur., Witnesses, Section 864, pp. 492-3 29

_ 98 Cong. Ree. 4434 : aa. .

. Ww

Supreme Court of “ani United States

‘ s Qctober Term, 1960

Wy ica sntens

: a

Unirep Mine Workers or AMERICA; District 12, UNITED

Mine Workers or AM ERICA; LOCAL UNION 1227, UniTEep

Mine WorKERS CF AMERICA; AND LOcaL Union 1229,

Unitep Mine. Workers OF AMERICA, Petitioners,

_V.

NATIONAL LABOR RELATIONS BOARD.

PETITION FOR WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS

FOR THE. SEVENTH CIRCUIT

and i .

MOTION TO DEFER CONSIDERATION OF PETITION

To the Honorable, the Chief Justice and. the Associate

_ Justices of the Supreme Court of the United States:

Petitioners, United Mine Workers of America, District

12, United Mine Workers of Am @rica, Local Union 1227

and Local Union 1229, both of United Mine Workers of

- America, and each of them, pray that a writ of certiorari

‘ssue to review those parts of the opinion of December 2,

1960, and the orders, judgments and decrees of the United

United Mine Workers of Americn is celled “UMW": District i2.

Vnited Mine Workers of Ame rica, “District”: and Local Unions 1227

‘nd 1229, United Mine Workers of America. “Local 1227. aged “Loeat

122g”, Tespectively. Coliectively,-they are called “Unions”.

*Herein referred to as either the “Court of Appeals” or “Seventh

Circuit”,

States Court of Appeals for the Seventh Circuit entered

December 2, 1960 and April 5, 1961, respectively, which

are adverse to Unions, in Consolidated Eases Nos. 12889

sty led Perry Coal Company and Peabody Coal Company,

et al, Petitioners v. National Labor Relations Board, Re:

spondent, and No. 12915, styled United Miné Workers o;

America, et al, Petitioners v. National Labor Relation:

Board, Respondent, wherein the Seventh Circuit en-

forced, as modified, an order of the National Labor Rela.

,- tions Board“ dated December 30, 1959, against Peabody :

Coal Company and Unions.

A certified Appendix record in said Consolidated Cases

: together with the proceedings in the Seventh Circuit, is.

furnished herewith, in accordance with the. Rules of this

‘Court. is on

OPINION BELOW

The Seventh Circuit’s opinion appears in the Appendix .

hereto at page la, et se7.; in the Certified Record; and

is reported in 284 F. 2d 910.’

JURISDICTION

On December 2, 1960, the Court of Appeals handed

down its decisibn and opinion and entered its order and

judgment that Board’s order “be modified as indicated in

the opinion of this Court filed this day, and as so modifiec

the said order will be enforced.” (A. 13a). A petition

for rehearing, filed by Board, was denied January 17, 1961

(A..13a). On February 27, 1961, Associate Justice Tom’

C. Clark, by order, upon petitioners’ sepicaim, extend:

® Herein called “Board”.

‘There is currently pending and dadeciiind wu Board Petition

Clarification Or’ Modification of the Court's opinion. ~~

“a The abbreviation “A” refers to the Appendix to this Petition The

abbreviation “R” used hercin refers to the Joint Appendix in the Sev-

enth Circuit and filed with this Court. .

’ a ; .3¢

ed time for filing petition for writ of certiorari to and in-

eluding May 1, 1961. On April 5, 1961, the Court of Ap-

peals entered itsdecree in sis reptannian with its decision of

December 2, 1960.

~The jurisdiction of this Court is invoked under 28 |

USCA .1254(1) and 2101(c) and Section 10(e) and (f) -

of the National Labor Relations Act; ‘as Amended, 61 Stat.

147, 29 USCA 160(e), (f).

QUESTIONS PRESENTED

I. Where, following a carpaign between two compet-

ing ‘labor unions to organize employees of two coal mines,

the losing union charges and the National Labor. Rela-

tions Board finds that employers coerced employees and

“unlawfully assisted the successful union and recognized

it when it did not represent an uncoerced majority, all

_ to encourage membership in the successful union, and a

federal court of appeals, reviewing such findings, though

expressly finding that employees were not coerced and

that-the employees at both mines, by cards, and by elec-

tion at one mine, had indicated their choice of the recog-

nized union at the time the collective bargaining agree-

‘ment was entered into, yet refuses to disturb Board’s

* findings because they are based upon credited statements

attributed to, but denied by, company officers, which are

islated and taken out of context, and the furnishing of

partial and incorrect empioyee ijists to the recognized

: bargaining agency, which the reviewing court regarded

“of relatively small importance” and ‘‘a slender reed”,

but, like Board, ignores and fails to give consideration to -

. other undisputed evidentiary data challenging the find- |

ings and holdings of both the reviewing court and the

Board, ms :

(a) Does the evidence. upon. which: the court and

Board predicated their findings and holdings suf-

4 .

fice to constitute substantial: évidence on n the rec-

ord considered as a whole to sustain Board’s find-

ings-and conclusions of such unfair labor prac-,

tices, and, |

(b) - Does it suffice:to warrant the court’s decree that

both employer and the employee-designated bar-

gaining agency cease giving effect to the collec-

tive bargaining agreement, which the court held

to be valid, and that -the employer withhold rec-

ognition from such representative which the court .

admits had been chosen by the employees when

the agreement was entered into, until the chosen .

‘y Tepresentative establishes majority representa-

tive status pursuant to a Board-conducted elec:

tion? .

Il. Where the National, Labor Relations Board has

‘found that Unions are guilty of violating the Act's

8(b)(1)(A) by reason of a letter’s being coercive in that

its “plain intent afid reasonable effect” was that ernploy-

ees would: be required as a condition of employment to

become UMW members and that employees’ right to se-

lect their ow. representative was curtailed, and a fed-

eral court of appeals, reviewing such findings, expressly

finds and helds that no employee complained of coercion

or discrimination, that no employee lost his job, that mem:

bership in the Unions was not an employment condition.

that employees at the two mines, by cards, and by elec-

‘tion at one one mine, indicated their choice of the Unions

and that there are no findings of actual coercion or evi-

dence which would, have supported such findings, and

the Board ignures“and. fails to’ give consideration, to evi-

dentiary data a the Board’ s findings and hold-

ings,

(a) Dues the evidenre upon which the Board weed ]

. : .

cated its findings and holdings suffice to constitute”

substantial evidence on the record as a whole to

sustain Board’s findings and conclusions of Sec-

tion 8(b)(1)(A) violations, and

-(b) Does it suffice to warrant the court’s decree that

‘Unions cease restraining or coercing the employ-

. ees in their right to select or not to select such

Unions.as their bargaining representative and to

join or not to join such organizations, and that the

Unions cease giving effect to a collective bargain-

ing agreement between them and the en:ployer

of said employees until they establish their ma-

jority representative status pursuant to a Board,

conducted election?

STATUTES INVOLVED

The pertinent statutory provisions involved are Sec- _

tions 8(a)(1), (2) and (3)8(b)(1)(A) and 10(e) and.

(f), Labor Management Relations Act, 1947°129 USCA

Sections 158(a)(1), (2), (3), 158(b)(1)(A), and 160(e) |

and (f)1.

STATEMENT OF THE CASE :

This case concerns UMW’s selection as exclusive col- |

lective bargaining representative of employees at two ~

mines: (1) a strip mine (called “Millstadt” ) at Mill-

stadt, Illinois, owned and operated by Midwest-Radiant

Corporation, and (2) a deep mine (called “O’Fallon’”), ©

owned and operated by Perry Coal Company, at O’Fal-—

lon, Illinois. By merger and liquidation, Peabody Coal

Company acquired these properties on or about October

2, 1957, when Peabody recognized, and since has recog-

nized, UMW as bargaining representative of employees

of the two mines .

: Peabody Coal Company, Midwest-Radiant Merpeiatinin and Perry

Cu Company are crlled “Peabody”, “Midwest” and “Perry”, respec- -

tively. Collectively, they are referred to as “Companies”.

fe} .

It reflects a struggle between UMW and Progressive

Mine Workers of America, District 1,° to represent said

employees, who had, by cards, and by election at one of

the mines, indicated their choice of UMW following or-

ganizational campaigns conducied by both UMW and

Progressive. - Thereafter, on October 1, 1957, Peabody

entered into a collective . bargaining agreement .with

. UMW covering the employees at the two mines.

No employee of either mine complained of coercion, re-

. straint or discrimination or loss of job or threat thereo}.

No employee filed charga@ But Progressive filed charges

against Unions (R. 578, 630) and Companies (R. 562, 570.

581, 585,628), and thereafter Board issued complaints

against both Unions (R. 588) and Companies (R. 593).

and consolidated the cases for hearing. Denials of the

complaints_allegations and other defenses thereto appear

in Answers filed by Unions (R. 601) and Companies (X

- 609-27). A hearing was held before a Board Trial Ex-

aminer, to whose Intermediate Report and Recommended —

Order (R. 6), holding Unions and Companies guiity of

unfair labor oractices, Unions and Companies. filed their

respective Exceptions (R. 156, 135).

Approval by Board of the Examiner 's holding that

Companies and Unions were guilty of unfair labor prac-

_ tices resulted in Unions; (R. 75). and Companies’ (R. 68)

filing in the Seventh Circuit separate petitions to review

and set aside Board's decision and order. Board sough' |

enforcement. ,

The Seventh Circuit, consolidating the two appeals

rendered its opinion December 2, 1960; and by order en-

tered the same day adjudged that Board's order “be 1nodi-

fied as indicated in the opinies .. . and as so mpdified the °

said order will be enforced” (A. 13a).

*CalHled “Progressive”.

Board's Findings and the Seventh Circuit's Decision.

Finding the agreement entered into between Peabody

and Unions contained illegal union-security provisions

(R. 55-6), Board found Peabody unlawfully assisted Un-

ions and had violated Sections 8(a)(1) and (3) by en-

ering into the _——— When Unions did not represent

an uncoerced majority-of the employees, and by -there-

after. maintaining the agreement (R. 56).- - Likewise. .

Board found Unions violated Séctiori 8(b)(2) by un-—

lawfully causing or attempting to cause Peabody to dis-

‘riminate against employees by demanding, in June and

July, i957, that Peabody enter into a collective bargain-

ing agreement containing union-security provisions —

which Board found to be illegal (R. 56), and that Union

violated both Sections 8(b)(1)(A) and (2) by entering

into the agreement with Peabody on or about October 1.

1957 and theredfter maintaining it (R. 56). The Sev-

. enth Circuit, ho ever, held the contract to be valid, there-

+y rejecting s findings and conclusions that Pea--

body had violated Sections 8(a)(1) and (3) and that

UMW had violated 8(b)(4)(A) and (2) by, reason of

such matters (284 F. 2a 914-5, 917: A. 7a, 1la)..

Board found, too, that, Peabody had violated Section -

$(a)(2) and (1°), not only by entering into the agreement |

with. Unions on or about October 1, 1957, when, as the

Board found; they did not represent an uncoerced’ ma-

jority of the employees (R. 56), but also because Peabody

(a) furnished UMW a list of employees’ names and ad-

dresses at the two mines (R. 54); (b) discriminatorily

locked out employees at the mines in July, 1957, and

threatened them with continued lockout; and (c) refused

to aga with Progressive, terminated its contract and

Pataca rr

‘The Board found that these acts aiso constituted a 1 Section Ba) (5)

and (3) em.

discontinued payments to Progressive’s Welfare and Re.

tirement Fund (R. 38, 54).

_ However, though the Seventh Circuit’s opinion de

clared, “No employee elaims his rights under Section 7

were violated”, and “no employee at either mine lost his

job”, and “An employee did not need to belong to UMW

to retain his employment”, ‘and “there are no findings of

actual coercion .. . nor eny evidence which would have |

"supported such findings” (284 F. 2d 914, 916; A. 7a, 10a)

the Seventh Circuit did not disturb Board’s findings that

Peabody had unlawfully assisted and supported UMW.

and interfered with, restrained and coerced employees..

thus negating UMW’'s right to represent the employees as*

their bargaining representative despite the Seventh Cir-

cuit’s specific admission that “at the time of the contract

with Peabody, employees at both mines, by cards, and by

election at O'Fallon, indicated their choice of UMW" ( 284

F. 2d 916; A. 10a). Board, like its EXaminer, ignored

_ vital undisputed evidence which, challenged the findings

of unlawful assistance and support to UMW. These un-

- disputed factual matters were likewise totally ignored by

the Seventh Circuit in its failure to reverse Board's find-

ings of Peabody’s unlawful assistance and inl to

UMW and to refuse to enforce Board’ s order in refation

to such findings.

The Seventh Circuit bases ‘its approval of the Board's

. findings of the Examiner and the Board, relying “to é-

considerable extent upon statements made by’”’ officers

of the employers; and. while the officers “denied making

many of the statements relied upon”, the Seventh Cir

cuit declared that “‘we cannot disturb credibility resolu-

tions made by the Board” and that “The weight to be at-

tached to and the credibility to be accorded, yore

is a matter for the trier of the facts” (84 F. 2d 913).

&. i «

> . ‘

also-declared that it was not disposed to interfere with

the Board’s decision as to the effect of furnishing mailing —

lists to UMW as an act constituting Hlegal assistance.

though noting that it deemed it “a slender reed on which

the Board in part rests its decision” and “of relatively

small importance in this case” (284. 2d 913-4).

In addition, according to Board, “Unions. violated

8(b)(1)(A) also by unlawfully restraining and coercing

employees in the exercise of their Section 7 rights, by the

following acts: (3) on July 1, 1957, by letter, and on July

3, 1957, by newspaper, informing employees at the Mill-

stadt and O'Fallon mines that UMW was requiring Pea-

bocy to apply the UMW contract (R. 39-40, 56); and (b) |

on or abaut October. 1, 1957, entering into a collective.

bargaining agreement with Peabody, covgring employees.

at the two mines, and thereaftér giaintaining and énforc- —

ing said agreement, which, as Roard declared, contained

illegal union-security previsions and ander which erm-

ployees were required to pay dues, fees and assessments

‘to UMW and (cy curtailing employees s’ rights to select |

their agent-(R. 40, 56). i aie agncal

The Seventh Circuit. reje ected | Board's requirein ent

oased ‘upon Board’s finding thaf employeea were required

to pay dues and other moneys to UMW, that Peabody and

Unions reimburse emplovees for dues, fees, assessments

and other monevws pai id by them, as welt as Board's order .

. that they make the.employees whole for any loss suffered

because Of discontinuance af payments to ProgresSive’s

Welfare and Retirement Fund (284 F. 2d 916-7; A-10a-

™) port

While the Seventh Circuit's opinion contains no; dis-

cussion of Unions’ position, asserted-in that Court, that

"the record is barren of any predicate for Board’s-findings

‘that Uniohs were guilty of coercive conduct within Sec-

é eases | 10

tion 8(b)(1)(A)’s fneaning, the Seventh Circuit does

‘proclaim in its opinion (284 F. 2d 914, 916; A. 2a; 10a)

: that there is a total lack of employee peor oer of cork:

tial coercion . _nor any » evidenen which sr have sup

ported such findings, that “There is clear evidence in the

record that membership in UMW was not a eondition ol

employment”, that “No employee claims his rights under

Section 7 were viglated”, that ‘ ‘no employee at eithe:

mine lost his job”, that “Membership in UMW was gota

- condition of employment” and that “An employee did no:

‘need to belong to UMW to retain hig employment” (264

F. 2d 916, 914; A. 10a, 7a).

ae 9 og’

iy The. Seventh Circuit's Decree

On. April 5, 1961, in conformity with its. December 2

1960 opinion, the Seventh Circuit ordered that Peabody

ceas¢ and desist from, inter alia, (1) giving effect to the

collective bargaining agreement entered into on or about -

. October 1, 1957, with Unions, or to any extension, re

“newal or modification thereof; (2) recognizing Unions 4

representative of its employees at the two mines unles:

and untii they shall have demonstrated their status as

such pursuant to a Baard-conducted election, which, the

Court mandated, is “to be conducted as early }s possible

under applicable rules, regulations and practice’ and (3).

assisting and contributing support ’to Unions or any othet ._

labor organization (A. [4a)."° The Seventh Circuit's ¢*

®The Seventh Circujt’s order also commands PeaBlody to couse. a

desist from encouraging membership in Uffions o: any othe! abor

organization “by discriminating in regard to hire or tenure ef +” pios

ment or any term or condition of employment, except to the extent per

mitted by the proviso to Section 8(a)(3)" and in any ots rane

interfering with, restraining or coercing employees in %.° «x c

. their right to join Progressive or any other labor organiz:tion ( ‘A 1423

15a). ;

. ¥

der specifically provides, contrary to Board's order, that ..

“Peabody need not bargain with any union claiming to

_-fepresent the employees at the O'Fallon. and Millstadt

mines until the Board has certified the results of the elec-

tion so held” (A. i4a)..

Affirmatively, the Seventh Circuit’ S siiliine inter alia,

requires'that Peabody withdraw and withhold all recog- .

nition frum Unions as the representative of its employees

at Millstadt and O'Fallon unless and until Unions: shall

have demonstrated their exclusive miajority representa-

tive status pursuant to a’ Board-conducted election. -

4 Under the Seventh Circuit's decree, Unions are also re- —

quired to cease and desist from giving effect to the Oc-

tober 1, 1957 agreement with Peahody or to any exten-

sion, renewal, modification, supplement or other contract |

with it, unless and until Unions shall have dentonstrated

their exclusive majority representative status pursuant

to a Board-conducted election among the. Millstadt and

O'Fallon employees (A."16a). - - .

Although the Seventh Circuit's: opinion * directed

Board’s order “should be limited to UMW’s and Peabody’s

actual unfair labor practices in this case” (284 F. 2d 917;

A. lla), and despite the Seventh Circuit’s various un-

‘equivocal holdings that employees were not coerced, it

nevertheless “ordered Unions (A. 16a) cease and desist

’ from

“Restraining or - coercive the daphcwecs of Pea-

*- bady Coal Company, at its O'Fallon and Millstadt

mines in the right to seiect or not.to select the

_ United Mine Workers, its District 12 and its Lo-

cals 122? and 1229 as-their bargaining representa-

tive and to join or not to ‘oin said labor organiza-

‘The Seventh Circuit's decree siso mandated that Peabody inane

whole the O'Fallon and Millstadt employees “for any Joss of earnings”.

suffered by reason of the discriminatory lockout. I) a'so required posting

‘f notices (A. 15a)

tions, except: to.the extent that such right may be

affected by an agreement executed as authorized

by the Act, as modifiedgpy the Labor Management

meperting and Disclosure Act of 1959.”

THE FACTS

lt. Background

At times matcrial herein, Hugh White was District's

President; H. C. McCollum was Peabody's Vice President

in charge of underground mines (R. 438); and William V. |

Hartman was Peabody's general superintendent concern.

ed primarily With strip miries (R. 375). From April

195%, until Perry was absorbed by merger with Peabody.

McCollum was Perry’s Vice’ President (R. 438-9); whilt

Hartman, as ‘Midwest's Vice President, siupervised ‘the

Millstadt mine fronf:about April 1, 1957 (R. 375).

a. Progressive’s Bargaining Agreement.

According to Ray Dupee, Progressive's president, in

May and June, 1957, Progressive was, and since 1938 had

_ veen, bargaining representative of employees at the! two

mines, where it had, “set up” Local Unions 75 and 167

(R. 203-4). There is ne evidence that Board had certi-

fied Progressive‘as' the bargaining agency. —

In the Spring, 1957, there was effective at the mi nes a

collective bargaining agreement between Coal Producers

Association of Illinois’ and Progressive (R. 658). Either

signatory could on or after September 30, 1957, termi-

nate the agreement by giving at least sixty days’ written —

. notice (R. 668,670). | ; a

b. UMW’s Bargaining Agreement With Peabody.

Illinois Coal Operators Association, of which Peabody

had been a member as far back as 1950 (R. 555), was «

|? Under the Seventh Circuit's decree, posting of notice is also

quired (A. 16a).

“ Herein called “Coa! Producers”.

eo eS ee ae eee eee eee

signatory to UMW’s National Bituminous Coal Wage

Agreement, which was effective at Peabody’s 27 mines

(R. 277).

2. Facts Relating to the Alleged Coercion, Restraint and Dis-

crimination.

The Agreement covered “all of the bituminous coal.

mines owned or operated” by signatories thereto (R.

700), which included Peabody’s 27 mines (R. 277) and

‘was applicable to all cdal lands owned or held under lease

by Peabody, or any: subsidiary or Affiliate; or acquired,

which might be put into production (R. 700-1). .

In processing -the Agreetgent in 1956 and 1957, White

met at various times with McCollum and with Hartman.

Peabody had no understanding it would see that no

other union than UMW represented employees (R. 462).

To White’s inquiry in May and June, 1957,.'* concerning

. UMW recognition at Millstadt-and O’Fallon, McCollum

and Hartman each advised White recognition could be

forthcoming only upon termination of Progressive’s con-

tract, a majority of employees’ joining UMW and “all

legal requirements ‘complied with” (R. 441, 376-8, 286-7, ;

288). Hartman told White “‘it is up to the men to decide

_whko they want” (R. 418). McCollum denied Peabody’s

practice was to apply the UMW contract to its newly-ac-

quired properties “without regard to the employees” (R.

461}, while Hartman denied there was agreement that the

two mines should be included under the contract’s lan-

guage or that he advised White that Peabody would rec-

ognize UMW after cancellation of Progressive’ s contract

(R. 418).

a Unless. otherwise stated, all dates refer to the year 1957

a. UMW Conducts an Organizational Drive for Membership Amonz

the O'Fallon and Millstadt Employees.

Employees at O'Fallon and Millstadt were on vacation

from June 28 through July 8, 1957. ;

A July 1 letter, written by Whije, mailed. to’ O'Fallon

and Millstadt employees (R. 685, 693, 257-8) and pub-

lished in newspapers in Belleville, Illinois (R. 697) on

July 3 (R. 261-2), noted “the contract applies, or covers.

all of the bituminous coal mines owned or operated by”

the Agreement’s signatories; that recently UMW “has

served notice on” Peabody it “must comply” therewith

and “all provisions-of the contract be applied to” the two

mines. It stated UMW is “REQUESTING”” “each and

every employee . . . become” UMW members, and that

District and UMW “EXTEND A CORDIAL INVITA-

TION to all employees : . . to affiliate with” UMW “and .

participate in the benefits as outlined in this letter.” The

letter explained there would be “no initiation tee

charged”, dues would be $4.25 a month, and that invited -

employees. would have the same rights and privileges as

any other UMW members “who has never been a” Pro-

gressive member, such as benefits of pensions, hospitali-

zation and medical care, and funeral expenses and widow

and survivors benefits:to be derived from UMW Welfare

and Retirement Fund. A membership card, with a stamp--

ed, self-addressed envelope, were enclosed and each em-

ployee was “requested to sign and return [the card!

promptly to the District: office”. :

In mailing these letters, White used iists of employees’

names and addresses which White had requested of, and

which had been given to him by, McCollum and Hart-

man—lists which White found to be “partial” and incor-

'? All emphases, unless otherwise indicated, are supplied.

15 .

rect (R. 259-60, 273, 274)."’ Such lists were available to

people without restriction and have been given to charity

organizations, insurance companies, persons selling mag-

azines and others (R. 484-5, 422). °

Mailing.of the letters and publication of the newspaper

ads were followed by an organizational campaign, par-

ticipated in by White and three others (R. 262). The,

reason for then starting the UMW campaign was that

both UMW (R. 716-7) and Progressive (R. 670) contracts.

required 60-day termination notices peter to September

30, 1957 (R. 279, 280).

UMW organizers were assigned te organizing the four

- hundred employees, some of whom lived in Belleville and »

in outlying territories. (R. 263-4). Employees were

csked if they had received White’s letter, and if the an-

swer Was no, a copy was furnished “and in the final ana-

lysis we would ask them to sign the card which I am call-

ing application for membership” (R. 532), or “to con-

_ sider signing applications” for UMW me mbership (R.

531). Some individuals asked “for mare cards than one”

and, as UMW Board member Shannon stated, “we encour-

aged them to accept those cards if they were sympathetic

with our union” (R. 533). Cards which were signed were

then mailéd to District’s office in Springfield or turned

over te President White in Betleville (R. 532-3): No em-

ployee complained that he was coerced into signing a

card.

* According to White, there were approximately 100 incorrect ad-

dresses, and that approximately that number of the letters and cards

were returned to the District offite undelivered (R. 290-1).

\'*McCollum testified White told him he waS going to attempt to

organize the employees (R. 460). While there is no testimony Hartman

knew why White wanted the list, Hartman stated he had “my own

wana (R. 405).° a

e »

_ John Marchiando, an O’Fallon employee and a former

Progressive International President, phoned White “it

was about time” for UMW to “try to organize that mine”

(R. 540). Gn the basis of signed cards (R. 266), White

informed “the coal company that we represented a ma-

. jority of the employees” at the two mines (R. 267).

_A July 10 letter (R. 717} from White to McCollum

formally advised ‘‘Full compliance to the terms” of the

wage agreement “is expected from” Peabody .to UMW.

It was not sent to employees.

b. Progressive Conducts a Counter Drive. —

Following UMW’s pattern to persuade employees to

join it, Dupee, by letter of July 5, published in Belleville

papers (R. 236, 239, 729) and mailed to employees (R.

749, 753), urged them “for your own protection and bene-

fi.” to disregard UMW invitations: and not to sign UMW

cards. It professed Progressive’s contract a better one

- than UMW’s; and although under Progressive’s contract

beginning August 1, 1955, Progressive’ Welfare and Re-

tirement Fund payments were, with Progressive’s con-

sent, reduced from 40 to 20¢ (R. 660, 662), while UMW ©

Welfare and Retirement Fund payments were 40c (R.

700), Dupee’s letter stated under Progressive’s contract...

“YOU HAVE THE BEST WELFARE PLAN OF ANY

LABOR UNION IN THE COUNTRY”. Further, while

none of Progressive Fund moneys were taken over by

UMW (R. 364), Dupee; to dissuade the men from joining

' UMW, declared a reason UMW “would like to take over

your Local Union is the fact that as of May 31, 1957, you

had on hand in your Retirement Pension Fund $253,943.07

plus more than $3,000 in your Welfare Fund”.

Dupee’s letter declared employees “will not be forced

to join a different union against your will”; Progressive

* \ r P

Se Slee le

officers “will use all legal means to preserve . your job

rights”; “No one can take these rights away from you by ©

threats, coercion or otherwise”; and the “only way you

' can.lose them is by joining another Union” (R. 752).

On July 10 Progressive held “a big cgowd”’ meeting (R.

_ 362), which Dupee chairmaned and, with Progressive at-

. . torneys (R. 252, 360, 542), explained “their rights were ©

protected by the law” (R. 251), and “‘he was going to stick

up for our rights” (R..361). Employees were asked to

sign a “so-called loyalty petition”, drawn up by Progres-

sive’s attorney .(R. 252, 361-2). In succeeding weeks

Dupee opposed UMW’s campaign (R. 253); UMW. cards

were picked up at Progressive’s instance (R. 547); and -

Dupee, asked by employees “what to do with” UMW .

cards, told them, “I tore mine up”, hoping that they woulci

.do the same (R. 275).

. John Marchiando, a dissident speaker, charged Pro-

gressive had become “a company union”, observing that

although remarks were the mines were such good mines

they “could not be closed down”, Millstadt was one of II-

>» 6

linois’ “most economical mines”, and 0’ Fallon had a 50¢

freight differential, yet Progressive consented to cut wel-

fare payments from 40¢ to 20¢ (R. 542-3).

¢.. Events Concerning O’Falion Employees.

ae .

McCollum meets with Local 75’s Mine

' Committee on July-17 and 20

Paul Zempel, Peabody's assistant genéral counsel.

brought to McCollum’s attention the newspaper clipping

of White’s letter, and McCollum saw a newspaper copy of

_ the Dupee letter (R. 442). Zempel cautioned him “to be.

careful .. . because the labor law does not permit us to

take sides in these things” (R: 443). ‘On July 5 or 6, Me-

Collum “instructed our - bosses” of the necessity of neu. |

trality (R. 443-4). No evidence challenges this testi-

mony.

The miners’ vacation terminated July 8. O'Fallon.

scheduled to reopen July 9, did not do so (R. 349). De.

lay, explained McCollum, was occasioned by bad air in

the mine and permission to resume operation on July 22

(R. 357-8) was not given by the State. Mine Inspector

until July 20 (R. 448- 8). .

“When the mine did not reopen July 9, Stani ey Feist

Progressive’s :Local Union 75 president at the time.

sought the reason. In a meeting on July 17 betweer

company representatives and Local Union 75's mine com.

mittee, when Feist asked if the mine hadn’t been shu’

_, down because of UMW’s demand, McCollum showed the

committee White’s letter of July 10 pertaining to the con-

tract (R.353). It is undisputed McCollum told the : grou;

‘he company did not want to become involved in the.ér

ganizing campaign (R. 360), it was “not allowed to ake

sides in this jurisdictional fight between the two unions”

(R. 446).and “It is up to you fellows and whatever hap-

pens to this coal mine will have to be the decision of you

men, you have your free choice to choose whichever unior.

vou want” (R. 446). However, it was the testimony 6,

several witnesses, denied by McCollumi (R. 457), that he

stated in effect that Peabody had 29 mines and it would

not run two under Progressive and hay> the 27 unc

UMW shut down (R. 353-4, 368, 372).

The meeting with McCollum was reported to th

eee at the next meeting (R. 372).

* When Loca! Union 1227, UMW, received its charter, Fost pecum

Its president.

~—

Progressive’s Local 75 appoints committee to, meet

with Company and UMW representatives. .

On August 18, at a Progressive’s Local Union 75 meet-

ing, a special committee was picked to meet with the com-

pany and UMW because the men were “‘thinking about

going United Mine,Workers and we started getting some

discussions and that was one of the ways to pick a com-

mittee and talk with the coal company” (R. 358). Com-

mittee instructions were to inquire “about welfare and

working conditions and things of that nature” (R. 364).

‘At an August 22 mecting, explaining it “had been ap-

pointed to represent the Progressive miners” (R. 453-4),

the special committee asked if certain existing conditions

would carry over if they voted UMW. McCollum stated

operation, was under a Progressive contract and a UMW

contract cquld not be discussed (R. 454). Company rep-

resentatives took no part in a Progressive-UMW discus-

sion of pensions ahd welfare funds (R. 454). UMW’s

White stated UMW “would have nothing to do’ with Pro-

gressive’s moneys (R. 364).- Progressive’s committee,

through Marchiando (R., 543-4), asked McCollum to se- .

cure a list of pensioners on the Progressive payroll and

turn it over to UMW's White for computation purposes

“if he took over these pensions” (R. 454, 294- 5). McCol-

lum complied (R. 456). —

Progressive Loca! 75 conducts .a secret

election and votes to affiliate with UMW-

At Progressive’s Licai 75 meeting September -22,.a

committee was appointed’ to hold a secret ballot (R. 364)

tu decide whether “To remain” Progressive or ‘To join”

UMW (R. 365). Progressive Local 75 had the ballots °

printed and paid therefor (R. 365). The election, held’

—T

on Ccempany property, as all other elections, from 6 a.m.

to 6 p.m., so all three shifts could vote, was conducted by

regular union tellers (R. 365-6).'"° 288 employees voted

for UMW and 47 for Progressive (R. 367).

d. Events Concerning the Millstadt Employees

Schroder meets with the ©

repair crew on July 12.. ‘

Millstadt was not scheduled to reopen until July 15 be-

cause of repairs scheduled prior to the vacation’s start (R.

- 298). he repair crew finished July 12, and during the

repair work period, the crew “worked ow ‘and Sun-

day of the first week” (R- -298-9).- ‘

Hartman, in charge of Millstadt, was Kavised by Zém-

pel to be neutral in the dispute between UMW and Pro-

gressive and “it was up to the employees” (R. 379). Hart-

-man so advised Fred Schroder, Millstadt’s superintend-

_ ent, and instructed him “‘to tell all the bosses to stay out

of it” (R. 379-80).

Early on July 12;. Hartman inquired concerning the

amount of coal in the stockpile and how business was at

Millstadt (R. 426). Later, Hartman advised Schroder

he did not think “we should run the mine Monday” and

“to inform the men” thereof (R. 426).

Two witnesses attributed to Schroder the statement Ol>

July 12 that the “company could-not-operate tw ines

and shut 29 mines down” (R. 320, 333). ScKroder den.

clared he stated a rumor “prevalent in the whole area”

. was Peabody would not operate two mines if the remain-

der of their mines would be forced to close (R. 429).

‘* The manner of conducting the election aiens-te R. 366-7

te a oan a

4 nal

In a,meeting between Hartman and Schroder and Lo-

cal 167’s mine committee on July 13 and 17, Hartman ad-

vised Ge committee that suspension of work was “temp- © -

orary . >. because of our stockpile and these slow orders”

(R. 381). It is undisputed Hartman told the committee

“we can’t get mixed up in” the dispute between the two

unions and that “we were in the-middle” (R. 381, 431),

and Hartman refused to comment on an employee's state--

ment the mine would not work «te employees joined.”

~ UMW (R. 321, 327). Millstadt resumed operations on

July 7. 7

Progressive Local = requests, and has, a theeting

With UMW and the Company on Séptember 12.

Another meeting between Hartman and Schroder, a

Progressive committee, and UMW representatives was

held about September 12, 1957 (R. 397:9) on request of |

the Progressive Local (R. 398). Hartman and White,

_asked if Dupee would have a job under UMW: each gave .

an affirmative reply (R. 399). When discussion turned

to contract questions, Hartman and Schroder left (R. 399-

400).

All Millstadt employees designate UMW.

- Qn September 18, when Progressive Local 167 held a.

“Meeting, 52 of Millstadt’s 72 employees had signed UMW

authorization cards (R. 888). Twenty employees (R.

349) who had not signed,’ met following the local meet-

ing. Knowing the other employees had already signed

_ UMW cards (R. 313), they signed and turned them over |

to employee Alvin Bosse for delivery to UMW (R. 310-

11). Witness Girardi, who testified Schroder’s alleged

eee

‘One UMW card is undated (R. 890), but witness Harold ———

testified there were 20 in the group (R. 549)

oS 22

_ Statement of.July 12 had nothing to do with his- joining

| UMW, explained he joined because, as youngest em-

‘ployee, he “let the majority rule” (R. 317-8).

3. Managentent Checks and Counts the UMW. Cards and

Recognizes UMW.

UMW continued, until Septemebr (R. 273-4), to dis.

tribute memb@rship card# In August, a second letter

was sent by White to employees. Employees returned

’ signed cards to the District office (R. 879, 888). By July

di atl O Fallon and by August 4 at Millstadt, more than-i

' majerity of employees had selected UMW (R. 879, 888 }

Zempel checked the conte dean payroll lists between

| September 27 and, October 1, and had them photostated.

Just prior to October F Zempel.read in newspapers about

the O’Fallon vote and “‘some kind of an action taken at”

Millstadt (R. 553).

No separate agreement was executed (R. 298). Zem- |

pel explained, when it was thus demonstrated UMW was

. designated, he advised McCollum and Hartman he had ,

checked the cards against payroll lists and they ‘were

100 per cent” at Millstadt and the same at O'Fallon, ex-

cept for five or six (R. 554), and the “green book” (R,

699) was automatically applied (R. 289, 552-3). On Oc-

tober 1, UMW’s.Local 1227 was chartered at O'Fallon.

The next day Local 1229 was installed at Millstadt (R

937).

On and ae October ‘ checkaff niacin cards

were signed by, employees and submitted to the compa-

_ nies 8 (Be, 024).

23 ; a

4 UMW Membership ii is Not a | Condition of Employment.

UMW membership is not an employment condition at

O'Fallon or Millstadt; and in the transition from Progres-

‘sive to UMW, no employee lost his job (R. 492-3, 458-9).

>» The July 19 Notice of ‘Termination of Prog zressive’s Con- hx

tract.

On July 19, Midwest and Perry sent letters to Coal Pro-

ducers advising of the companies’ membership’ with-

drawal and revocation of its authority to negotiate exten-

sion of Progressive’s contract “terminable on or after

September 30, 1957” (R, 679, 680). Progressive’s con-

tract required a 60-day terminatien notice; so, on the

same day;tetters were dispatched. by Midwest.and Perry

“to Progressive Locals 75 and .167, enclosing copies of let-

ters sent to Coal Protlucers and notifying Locals of the

companies’ notice to terminate. the Progressive contract

effective midnight September 30, 1957 (R. 681, 682.)"°

The letter to Local'75 was received by its president.

Stanley Feist, who did not read it at‘the Local’s next

meeting because president Dupee requested it not be done

to afford an opportunity to check its legality (R. 363). It

was read at the Local meeting, held August 4 (R. 364).

While these letters were signed by company vice-presi-

dents, Zembel was in charge of sending them and sent

them because the companies had’ been made aware of!

UMW’s representation claim; they knew Progressive con-.

tracts required 60-day termination flotice, and “it is com-

mon raetice that when you want to negotiate a2 new

° Under date of July 13, ortindn and O’Fallon’s mine stperintendent. °

. Joseph Johnson, resigned’ as executive board members of Coal Producers

(R. 407-8, 721).

“On August 4, of the $23 stele at O'Fallon, 176 hed de signaten -

UMW (R. 879)

24 |

contract that you serve notice of termination ‘of the old

one’’; and it was his opinion that termination notice would

' place the companies “‘in a position to dea] with whichever

union could prove te us that they represented the men for |

purpose of collective bargaining” (R. 551-2).

Wot until August 3 did Progressive reply (R. 687-92). -

Dupee asserted the companies had not complied with the

contra€t’s terms and that “this contract will not .termi

nate on September 30, 1957, as per your notice, although

it May require a determination by a court of. law as to

which contention is correct”. Dupee requested 2 meeting

“with the proper representatives of your company” to

negotiate a new contract “between now and Auéust 15”

Zempel explained he did not reply either to Dupee’s let-

ter.or to White’s July 10 letter (R. 717) because he was |

awarq@of the two unions’ contentions and did not want to

answer either “until we could be fully advised as to which

union actually represented the men” (R. 590-1).

REASONS FOR GRANTING THE’ WRIT

The duty and necessity of federal Courts of Appeals‘of

conforming to that standard of reviewing National Labor

Relations Board's findings, which Congress provided in

the Act’s Section 10(e) and (f), was expressly enunciated

in this court’s Universal Camera Corp. v. NLRB, 340 U.

S. 474. Therein (p. 488), it said that, “substantiality of

evidence must take-into account whatever in the record -

fairly detracts from” the weight of Board's findings. Fed-

‘eral appeals courts, including the Seventh Circuit, have

heretofore pointed to the standard commanded by Uni-

versal Camera (p. 488) to base their refusals to enforce

Board findings because evidence supporting a Board de

cision did not ‘appfoach substantiality “when viewed

Ge .

oe:

otts oy

5 _ 25

the light that the record in its entirety furnishes. includ.

iny the body of evidence opposed to the Board's view” .

Miller Elec. Mfg. Co., Inc. v. NLRB, 7 Cir./265 F. 2d 225.

Farmers Co-Operative Co. v. NLRB, & Cir., 208 F. 2d 296.

NLRB y. Rockwell Mfg. Co.. 3 Cir.. 261 F: 2d 109, 115.

| Though no employee complained he. had been coerced

_or restrained, and employees had designated by “cards”

their choice of UMW and, at O'Fallon, had voted 288 to 47

‘in a secret ballot election jn favor of UMW, and the Sev-

enth Circuit's opinion specifieally so stated, vet that Cours -

has approved Board findings that UMW did fiot represent —

an uncoerced majority when Peabody and Uniens entered

into the agreement on or ahout October 1, 1957—an agree-

ment whose provisions the Seventh Circuit held to be

valid. -This, in turn, the Board predicated upon its find”

_ ing that Peabody unlawfully assisted UMW in its organi-

zational aetivities; and as a result of the Seventh Circuit's

oe of such finding jt has decreed that Pe abody shal!

not recognize UMW asthe »employees’ Bargaining repre

sentative. absent a Board election, and has commanded —

that neither Peabody. nor Unions give effect.te the bar. -

gaining avreement which, es noted. the Seventh Circuit

‘held to *e valid (A. l2a-17a).° In the Seventh Circur

Unions complrine d. as the y now de, that Board's finu

ings and conclusions were reached by ignoring vital and

undisputed evidence + cléariy challensing Board's views. .-

The Seventh Circujt, likewise disregarded such evident-

‘ary data, which has Tesulted in a portion of its opinion _

being clearly in error and this, in turn, is reflected in its

erroneous decree of Aprii 5, 1961, enforcing Board's order.

in part, instead of denying enforcement completely.

By its failure to implement the c congressional standard,

contrary to its mandated obligation, the Seventii Circuit

has rendered nugatory and void employees’ designation

of UMW as their bargaining representative without em-

ployee complaint of Union coercion, restraint or discrim-

ination; it has deprived Unions of their rights to repre. -

sent such employees and to be recognized by Peabody as

the employees’ bargaining agency; and it has denied to

both the employees and Unions the fruits of collective

bargaining mirrored by the agreement which the Sev-

enth Circuit has decreed, though lawful, shall. not be

« given effect.

Although. Unions, in the Seventh Circuit, complained

that Board and its Examiner alike had ignored vital, un

disputed evidentiary data which conflicted with and chal-*

lenged Board's findings, and this complaint was not chal.

lenged by Board, nothing in the Seventh Circuit's opin- |

ion deals therewith. Thus, the. cases’ present posture &

one wherein “the body of evidence opposed to the Board’:

view” has been ignored by the Examiner, Board and the

Seventh Circuit. Since-the instant cases present a fed-

eral question which has been decided in a way in con

flict with the congressional standard of review, this Cour!

should award the writ sought herein. In Universal Cam-

era this Court avowed its intervention available when an

appellate court has so misapplied that standard of review

The following discussion makés manifest that the Sev-

enth Circuit has misapplied such standard:

UMW’s organizational campaign was not a joint enter —

prise between UMW, District and Peabody. Examine!

conceded (R. 39), and Board agreed (R. 54), that ne

' UMW “official asked or demanded of any Peabody officia

that the mines be closed or that contributions be halted’

[t is undisputed, too, that company representatives ad-

vised UMW’s White that UMW recognition depended

upon termination of Progressive’s contract, designation

of UMW by employees, and UMW’s compliance with

age oo

Undisputed and corroborated evidence shows that

O’Fallon had an unsafe, unsolved air problem which de-

layed its reopening on July 19, following the vaca.ion

period, until July 22; when a State Mine Department rep-

resentative approved resumption of operations. At his

July 17 meeting with the employee committee, McCol-

lum stated the reason for O’Fallon’s shutdown was “bad

air at the mine” (R. 352). Even a committee member

admitted “the air was bad around the bottom” before the ©

vacation began. He knew the company had been mak-

~ ing ventilation changes to improve.the air (R. 357) and ..

a posted Federal Inspector's report complained of the

air’s condition and “that’s the reason the company was

‘working on it” (R. 362-3), and that McCollum told the

group the mine would reopen July 22, if air samples “test-

ed out all right” (R. 357-8). McCollum agreed, as the

committee requested, to keep it advised “when the mine

would open” (R. 448), and it was hoped that “by Friday

or Saturday [July 19 or 20! to have a sample that would

pass” (R. 448). On Friday, a sample analyzed by the

‘ State resulted in the State Mine Inspector’s giving per- -

mission to resume work (R. 449). _McCollum, on July

20, so' advised the men (R. 449). and operation resumed

July 22 (R. 356-7).

’ Although O’Fallon resumed work July 22 and nothing

shows the reason for such closing and resumption were ;

_ other than that which McCollum claimed, Board found

O'Fallon was closed “ta lend the employer’s substantial

support and assistance to’ UMW’s organizational cam-

paign (R. 27). The undisputed fact remains the com-

pany did have an unsafe, unsolved air probjem until July

19.

Likewise, though Millstadt was scheduled to reopen

July 15 (R. 395), on July 12 Hartman, because of coal on -

hand and lack of business, advised superifitegdent Schrod>—

er to tell the men the mine would not reopen.

The Seventh Ciffuit, in its opinion (284 F. od 913),

noting that Board and its Examiner “relied to consider-

able extent upon statements made by vice president Mc-

Collum, general superintendent Hartman, and mine sup-

erintendent Schroder, to the effect that the mines would

not reopen and operate unless UMW was designated as

bargaining representative by the employees” and “These :

officers denied making many of the statements relied

upon”, declared it could not “disturb credibility resolu-

tions made by” Board and “The weight to be attached to

and the credibility to be accorded testimony is a matter .

for the trier of the facts” (284 F. 2d 913; A. 5a):

Actually, Board, iike its Examiner, had credited com-

mittee members’ statements that McCollum said Pea- .

body had 29 mines and it would not run two under Pro-

gressive and have the 27 under YMW shut down; and

‘while Unions challenged the justification for such credit

of testimony, neither Board nor Examiner considered the

‘undisputed testimony that at the same meeting McCol-

lum stated that O’Fallon “would work when some of the*

other Peabody mines were not working” (R: 371), and: |

the company*“had to be careful” and “they didn’t war

to get involved” in the UMW organizing campaign (R

360-1). They ignored the undisputed testimony that Mc-’

Collum and Hartman had been cautioned not to get ir-

volved in the organizing activities; they ignored McCol-

lum’s unchallenged testimony he would decline to answe:

ee NS AS I gg

—

29°

controversial questions “because we were not allowed

to take sides in this jurisdictional fight between the two

unions” (R. 446); that while the employees were having

_ troubles, the company was having its troubles too, show-

ing the committee White’s July 10 letter (R. 717) that —

“Full compliance to the terms” of the contract “is expect-

ed” from Peabody (R. 447-8); that Peabody had acquired

the two mines under Progressive’s jurisdiction; and that

it was not known how the conflict would be resolved, but

“it is not up to me. It is up to you fellows and whatever

happens to this coal mine will have to be the decision of

you men, you have your free choice to choose whichever

union you want.’ (R. 446). -

Without witness contradiction to McCollum’s testi-

mony that an employee suggested the company cancel

Progressive’s contract and thus afford employees free-

dom by election to chaose “whichever union they want-

ed”, to which McCollum replied he would refer it to the

legal department (R. 447), which was done (R. 456-7).

was rejected by Examiner, who declared this “extrava-

gant claim” deprives- his entire testimony of credibility

(R. 25), thus indulging in surmise rather than factual

predicate and disregarding the rule that mere rejection

of evidence as false “does not take the place of affirmative

evidence.” Hazel-Atlas Glass Co. v. NLRB, 4 Cir., 127 F.

2d 109, 114-5. “A fact-finding agency is not at liberty.

“under the guise of passing upon the credibility of a wit-

ness, to disregard his testimony when from no reasonable -

point of view is it open to doubt” and such officer ‘should’

not needlessly impute perjury to’a witness”: 58 Am.

Jur., Witnesses, Section 864, pp. 492-3. |

The Seventh Ciréuit, in Chicago Rawhide Mfg. Co. v.

2 NLRB, 7 Cir., 221 F. 2d 165, 167, told the Board, contrary

to its decision and decree herein. that

“Words and actions which might dominate the

employees in their chdfce of a bargaining agent do

‘not constitute domination prescribed by the Act

: unless the employees are actually dominated ...

Accord:” NLRB v. Englander Co., 9 Cir., 260 F. 2d 67,

' 76. Yet, it disregarded the significative circumstances

that not a single employee who signed UMW cards as

serted compulsion or coercion and that UMW status as a

freely chosen agency cvuld have been mirrered in no more

positive manner than the O’Fallon employees’ voting 283

to 47 in UMW’s favor in the secret-ballot election.

Another pertinent factor which the Seventh Circuit.

Board and Examiner alike failed to consider, is that al-

though there -were “perhaps 20” persons in supervisory

capacity at O’Fallon,-a single-instance by a single com-

‘pany representative is employed-to predicate company ~

assistance at O’Fallonto UMW. Clearly, had it been com- |

pany policy and pattern to assist UMW unlawfully, thor-

ough Board. investigation disclosed by the record would

have been preductive of proof portraying such policy and’

pattern. Isolated incidents have been rejected as predi-

cates for unfair labor practices by both-Board and the

. judiciary. Hot Point Co., 120 NLRB 1768; Sunset Lum-

ber Products, 113 NLRB 1172; NLRB v. Grunwald-Marz.

_ Inc., 9 Cir., 47 LRRM 2940 (April 3, 1961).

Millstadt, as noted (ante, p. 20-1), scheduled to. reopen

July 15, did not do so for economic reasons. Hartman ad-

vised Millstadt’s mine’ committee that suspension was

“temporary... because of our stockpile and these slow

orders” (R. 381, 412). Board approved its Examiner's

findings that Millstadt’s superintendent Schroder and

Hartman had stated that the company could not operate

two mines and shut 29 mines down (R. 300); and Exam-

iner relied upon Schroder’s answer. (R. 20) that he did

— Tho ome ena

say the company would not operate two mines and shut

29 down, but Examiner ignored his next answer that

Schroder’s full testimony was that he told the men that

“you have been hearing the same kind of talk I have, that

if you had 30 mines would you run two, if you expected

the other 28 mines to be closed down”, and that.“‘was the

rumor that I had heard, it had been repeated to me a dozen

times, I expect, in the week that I was not at work-—R.

428). Such rumer discussions; the récord discloses, had

taken place at Progressive’s union hall a number of days

prior to Schroder’s statement. There is no evidence that

.the rumors were inspired, circulated or adopted by un-

ions or the employers. Pertinently, one witness testi-

fied that Schroder’s statement did not prompt him to do

anything with respect to his union membership (R. 317):

and there is no employee witness who testified that the

statement prompted his signing a UMW card.

Evidence of the J uly 13 meeting between \ Bastuonn and

Schroder and the Millstadt mine comimittce is replete

with pit committeemen’s admissions of company neutral-

ity, which have been ignored. Had it been Hartman’s

purpose to. coerce employees in their choice of UMW.

would he have answered, when asked by committeeman

. Kreitner if the mine would work if the empléyees joined

UMW, “Frankly, I won’t comment on that” (R. 321, 325)?

Hartman, asked by-the committee if Progressive presi-

dent Dupee could work at Millstadt, responded that h*

could “under any union if he wanted to” (R> 396), and

. that UMW's White “doesn’t have anything to say about

who we put on here, who we hire here at this mine”

‘When a committeeman stated that if the men quit as Pro-

gressives, “wé are coming back to work as.Progressives”..

Hartman answered, “that’s up to you men. The majority

_ Tules here” (R. 396), and when another committeeman

reminded Hartman the company had a Progressive con-

tract, Hartman replied “Yes,.sir, we intend to hive up te

it (R: 397).

Moreover, since the Seventh Circuit, like Board and

Examiner, based its conclusion of unlawful assistance tc

UMW upon the statements that Peabody would not op-

erate two mines and have 27 mines shut down, stich Court -

preference for Board’s findings would not suffice to vitiate

UMW’s selection as the bargaining agent since the mines -

closing would depend not upon company conduct, but

upon UMW’s shutting down the other 27 mines. There

is no evidence that UMW threatened it, would close the

27 mines in the event employees continued Progressive

as bargaining agent. In fact, White’s.denial (R. 285) that

he had told Peabody officials he would do so stands in.

challenged.. Heretofore, Board has held that prediction

of future events beyond a speaker’s control are mére ex-

pressions of opinion and protected by the Act’s Section

8(c). A. L. Gilbert Co., 110 NLRB 2067, 2073; Sunset

Lumber Products, 113 NLRB 1172, 1173; Tetrad Co., Inc...

125 NLRB 466, 45 LRRM 1152. Where supervisors

stated, “It would be ‘advisable’ to sign AFL cards and

that they did not want CIO in the plant”, the First Cir-

cuit reversed a Board conclusion of unfair labor practice

because it disbelieved such verbal pressure constituted _

“threats of reprisal or force or promises of benefit”,

NLRB v. Corning Gless Works, 1 Cir., 204 F. 2d 422. im. :

427.

Likewise ignored by Board, its Examiner and the Sev-

-enth Circuit is the principle that “an unlawful purpose —

is not lightly to be inferred. In the choice between law-: |

ful and unlawful motives the record taken as a whole

must present a substantial basis of believable evidenc?

pointing towarc the unlawful one.” NLRB v. McGahey.

5 Cir., 233 F. 2c 406, 413. .

Ignored is Progessive’s counter campaign and its avow-

als that employees would not be deprived of their rights.

Ignored alsg are events following the, purported McCol-

lum and Hartman statements: meetings with UMW: rep-

resentatives proposed at Progressive meetings; the O’Fal-

ion election; and the cards designating UMW as bargain-

ing agent. | .

Though no contention is made the employee-signed

authorization cards are not authentic, Board regarded

_ them as irrelevant. Both Board and the Seventh Circyit

’ ignored decisional law that card-designation is a method

of proving employee choice of a bargaining agent. UMWA

v. Arkansas Oak Flooring Co., 351 U. S. 62; NLRB v. In-

dianapolis Newspapers, Inc., 7 Cir., 210 F. 24 501; NLRB

v. Parma Water Lifter Co., 9 Cir., 211 F. 2d 258, 261. Un-

disputable proof having been presented, the Act imposed

on Peabody a duty to recognize UMW, and Board certi-

fication, contrary to the Seventh Circuit's uccree. is not

requisite.

A final factor which completely militates against the

- Seventh Cireuit’s sanction of Board's finding of unlawful

assistance by Peabody to UMW is the undisputed evi-

dence that the production at Millstadt and O'Fallon was

1,900,000 tons annually (R. 400, 458); there was a differ-

ential of 20¢ per ton in requirement of welfare payments |

in UMW’s contract and that of Progressive which re-'

quired company payments of approximately $380,000.00

more per yéar under the UMW contract than was re-

quired under Progressive’s contract. Employer: prefer-

ence for UMW at this high cost would be unreasonable -

and unrealistic. .

| 34

Board’s Examiner found the furnishing of the mailing

lists to UMW did net “constitute unlawful assistance”:

but Board found, since Peabody assisted UMW “by num-

erous other acts”, furnishing of mailing lists “in this con-

text” constituted unlawful assistance (R. 54.) The uncon-

tradicted evidence (R. 422, 484-5) is that there is nothing

unusual in the company’s giving employee lists to variou-

organizations. Further, the lists were incomplete and.

contained approximately 100 incorrect addresses (R

290). Morganton Full Fashioned Hosiery Cv., 107 NLRB

1534, and The DeVilbiss Co., 115 NLRB 1164, are Board

- professions that list furnishing is not unlawful assistance.

The Seventh Circuit admitted that list furnishing by it-

seif would be no basis for the Board’s conclusion and that

even considered with other acts of assistance, “‘it is a

slender reed on which the Board in part rests its decision

(284 F. 2d 914; A. 5a-€a)

Under applicable law, and the substantial evidence ¢n

the record considered as a whole, it is readily apparent

that the Seventh Circuit improperly approved Board's

erroneous findings and con¢lusions that employers inter-

fered with, restrained and coerced employees at the two

mines in the exercise of their Section 7 rights and illegally

assisted UMW in the employees’ dsignation of that or-

ganization and that UMW did not.represent an uncoerced

majority of employees in October, 1957. Language in

NLRB v. Roberts Bros., Inc.,.9 Cir., 225 F. 2d 58, 60, is apt

“Some twenty years ago . . . employees might

well... have been swayed one. way or another by

‘an employer’ s statement as to his position on the

subject. Now, labor and industry speaks with

equal dignity and it requires something more than

mere suspicion to read coercion into an employer's

speech which, upon its face. is in all respects with-

in the proprieties. We think it is no longer proper

to assume that the American employee is a craven

individual afraid to stand up and express himse!!

freely on the subject of his own welfare.” .-

The uniformity with which Examiner and Board ré-

jected testimeny of witnesses favorable to petitioners »

contentions and in wittingly refusing to consider rele-

vant, unchallenged factual data suffices to render Board's

findings and conclusions as suspect and te “destroy the

presumption of correctness usually attributed to the find-

ings of the trier of facts.” Local No.-3, United Packing-

_ house Workera)of- America; CIO v. NLRB, 8 Cir., 210 F_

2d 325, 330. - Likewise, it demonstrates clearly the neces-

sity for the granting of the writ sought herein.

; - UI.

Though the Seventh Circuit’s opinion spccificaliy re-

cites “No employee claims his rights under Section 7 were

violated”, that “no eres at either mine lost his job”

that “Membership in‘ UMW was not a condition of em-

ployment” and “An ‘employee did ‘not need to belong to

UMW to retain his employment” (284 F. 2d 914; A. 7a).

and again “there are no findings of actual coercion in th:

instant case nor any ev idence which would have support-

ed such findings” (284 F. 2d 916: A. 10a), yet the Seventh

Circuit's decree (A. 13-20a) not only orders Unions to

cease giving effect to the agreement with Peabody at th:

‘wo mines, but it cornands that they cease and desis‘

from restraining or coercing the employees at the two

mines “in the right to select or not to sefect” Unions:as

their bargaining representative. The Seventh: Circuit's’

opinion fails completely to explain the predieate for its

: command that Unions cease restraining and coercing the

employees as aforesaid, which is totally inconsonant with

the language i in the Seventh Circuit’s opinion, that “there

are no findings of actual coercion in the instant case nor

any evidence which would have ep ois findings’

(284 F. 2d 916; Av i0a). Thus, no basis exists in the

Court’s opinion for any provision in the decree predicatec

upon coercion or restraint. |

While the language last quoted froii the Court’s opin:

ion is a portion of a sentence dealing with reimbursing

dues, it does not stand alone; and such ianguage treated

conjointly with’ the Court’s further language that “Ne

employee . .. complained of any coercion or discrimina-

tory conduct”, that “there is clear.evidence in the record

that membership j in UMW was not a condition of employ:

ee deieteate beth TA ene a

ment”, that “No employee claims his rights under Sec. _

tion 7 were violated”, that “Furthermore in the transi-

tion from Progressivé to UMW, no employee at either

mine lost his job”, that “Membership in UMW was not «

condition of employment”, and that “An employee did

not need to belong to UMW to retain his employment’

(284 F. 2d°911, 914, 916), fully demonstrates the Seventh

Circuit's decree as it concerns Unions [paragraph a.(1)

and (2); A. 16a,1 is unwarranted and in confliet with the

Seventh Circuit’s findings and holdings expressed in its

opinion. ns 3

The Seventh Circuit's decree, which is in total conflict

with tts avowals above recited, in practical effect, af

firms Board’s findirigs that UMW'’s letter, dated July 1.-

1957, to employees of the two mines was coercive within

Section 8(b)(1)(A)’s.meaning because its “plain ‘ntent

and reasunable effect” was that employees would be re |

quired as a condition of employment to become UMW

members (R. 56), and that the 8(b)(1)(A) violation ;_

stemmed from curtailment of the employees’ right to se

lect their own representative, guaranteed in sthe Act's

Section 7 (R. 56).

)

ore

wg whem ww

In the Seventh Circuit, Unions challenged such find-

ings, as they do now. Here again, Board and its Exam-

iner failed to give consideration to that “body of evidence

« Opposed to the Board’s view” (Universal Camera Corp.

v. NLRB, 340 U. S. 474, 488), and this same vice attends

the Seventh Circuit’s decree in paragraph a.() and (2)

as it relates. to Unions.

That the Seventh Circuit should have papery and set —

aside the Board’s findings and conclusions that’ Unions

violated Section 8(b)(1)(A) is made clear by the fol-

lowing discussion: ‘

White's letter to.the employees and the newspapér ads

are discussed herein (ante, p. 14). The letter was couch-

ed in words of persuasion. It stated UMW was “request

ing” employees to become members ‘and District and

UMW “extend a cordial invitation” to affiliate with UMW

and participate in outlined benefits. Had its purpose been

to coerce, would UMW have waived, as the letter stated,

the requirement of initiation fees? That such waiver is

“promotiona] persuasion” and “does not smack of coer-

cign” is the Seventh Circuit's holding in NLRB v. Taitel,

7 Cir, 271 F. 2’ 1.” Had there been attendant compul-

sion, there would have beer no reason to include therein

the benefits derivative from UMW membership ner ne-

cessity for District’s solicitation of employees. Perti-

nently, neither Board nor Examnier mentioned White's

use of benefits as a persuasive. attempt to convince em-

ployees.- Instead, both assiduously avoided — the

Vee

The United —e Supreme Court in NLRB \. Drivers ete. Local

Union, 362 UU. Ss. 274, 287, quotes Senator Taft, in the ‘Taft-Hartle

debates Saying: se ' : .

“It seems to me very clear ‘that so long as a union- -organizing driv:

's conducted by persuasion, by |. epayanda, so long as it has ever

legitimate purpose, the Board cannet. in any" way interfere wth

so 9 o 99 Cong. Ree. 4434." .

letter’s contents, Examiner stating, “For purposes i

brevity, certain paragraphs relating to numerous bene

fits... are omitted” (R. 15). No witness challenged the

. mechanics and persuasion employed in the campaign (see

ante, p. 15) or contradicted White’s testimony of employ-

ees’ favorable response in sending in- UMW authorizatior.

eards (R. 879-90). Contention of UMW coercion is fur-

ther bectouded by John Marchiande’s testimony” tha.

- hearing of UMW’s membership ‘campaign, he phoned

White “it was about time for” UMW to “try to organiz: |

that mine” (R. 540). No employee testified he was co-

erced or restrained. © ;

Other facts militate against assertion of UMW coercion. .

At Progressive Locals’ meetings,, committees were ap

pointed to confer with UMW representatives, (ante, p. 19

21). Such meetings were held, not at UMW or Districts —

request, bui by Progressive Locals (R. 398) because the

men were “thinking about going” UMW and committee.

men were instructed to inquire “abcut welfare and work-

ing conditions” -(R. 358, 364). At O’Fallon, when the

committee | ‘was appointed August 18, 289 of 323 employ-

ees. had designated UMW (R. 879). At Millstadt, the

committee appointrnent was made September 12, wher

51 of the 72 employees had-designated UMW (R. 888)

At O'Fallon, in a Progressive Local-sponsored secret:

baltot election (R. 364-5), employees voted 288 to 47 i

UMW’s favor: (R. 367).

At Millstadt’s Local 167, the September 12 number of

51 was increased to 52 on September 18, when, following

a Local meeting, the remaining employees who had no

signed UMW cards met and executed UMW cards because

the other employees had designated UMW (R. 313). NX

record data points to Union conduct that such reason wa .

_ prompted by union coercive conduct. The uncontradict-

ed evidence shows that employee inquiry whether Dupee

( Progressive’s president ) would have a job under UMW

brought White's affirmative response (R. 399).

Progressive’s counter-campaign to fend off UMW’s per-

suasions for membership has been depicted (ante, p. 16).

Despite Progressive’s repetitive assurances of its protect-

orate and that-employees would “not be forced to join”

UMW and “No one can take these [job] rights away from

you by threats, coercion or qtherwise” (R. 752), the loy-

alty petitions and resolutions, and other Progressive ac-

tivities, employees chose UMW . The campaign for em-

- ployee choice, it must be recalled, was a continuing

process over a period of four months’ duration. -

In the Seventh Circuit, Board’s brief (p. 38) swept

aside the competing campaigns. with a simple assertion

that “it is idle to stress” them, and though Board, in Par-

ma Water Lifter Co., 102 NLRB 198, 207, emphasized the ©

importance of employee expression of choice at an elec-

tion, in the instant case, of the employees choice by desig-

nation and vote it glfbly said, “It is similarly without sig-

nificance’’; but Board went ne further to explain why it .

was idle to stress the campaigns and why employee choice .

by designation and vote was without significance.

The instant picture is without even “threadbare testi-

mony” of Union coercion or restraint (Miller Elec. Mfg.

Co. v. NLRB, 7 Cir., 265 F. 2d 225. 226), and the Seventh

Circuit made it plain in the language above quoted that

this was so. . =

Examiner noted (R. 17), with Board's agreement (R.

94), his unconcern with the “subjective effect upon indi-

. vidual employees which” the July 1 letter “may or may

not have had”; he would (R. 17) avoid “speculation as to”

40 .

such subject effect; and his sole concern was whether “the

text of that letter” was “of a nature which, under the -

circumstances, may reasonably be found to be ‘coercive’ ”

(R. 17) yet he totally ignored “the circumstances’ re-

flecting employees voluntarily designated UMW. Where

a Board finding of coercion is purely “legalistic’’, its find-

‘ngs have been rejected. Building Material Teamsters v.

. NLRB, 2 Cir., 275 F. 2d 909, 912; Chicago Rawhide Mig.

~ Co. v. NLRB, 7 Cir., 221 F. 2d 165.

- Where such pertinent factual data is so wittingly ig-

nored, it not only demonstrates clear error in Examiner's

findings and conclusions, adopted by Board, but eminently

_ establishes the necessity that the Seventh Circuit should

have rejected them.

Tke foregoing makes clear that the Seventh Circuit

should have reversed Board's holding that Unions vio-

lated Section 8(b)(1)(A) by reason of the letter of July

1, the newspaper ads, and that employees were curtailed

in selecting their bargaining représentative. It further.

demonstrates plainly that not only is the Seventh Circuit's

requirements ofparagraph a(1) and (2) of its decree as

it relates to Unions [A. 16a] not supported by the sub-

stantial evidence on the record considered as a whole, but

it is in total conflict with positive recitals of non-coercion

in the Seventh Circuit's opinion. It conflicts, too, with

Miller Electric, Farmers Co-Operative, and Rockwell

Manufacturing, all supra (ante p. 25), as well as ‘with

Universal Camera which points to the necessity and pte

prety of granting of the writ as to this issue. There is

thus presented a federal question which has been decided

in a way at variance with the congressional standard of

review expressed in the Act's Section 10(e) and (i)

129 USCA 160(e), (7f)).

-41

| CONCLUSION

For the foregoing reasons, petitioners, and each, of

them, assert that the Seventh Circuit's decision sot De-

cember 2, 1960; #8 erroneous in #8 failure to deny totally.

the enforcement of Board’s order; and that said decree

of April 5, 1961, in all of its requirements, both as to Pea-

body and as to Unions, as such requirements affect Un-

ions, is erroneous; and therefore petitioners, and each of

them, pray that this petition for writ of certiorari should . .

be granted and that a writ of certiorari issue to review °

_ the decision and orders, judgments and decrees of the |

‘Seventh Circuit, entered in said Cases Nos. 12889 and |

12915 on December 2, 1960, and A~ril 5, 1961, as they

adversely affect Unions.

MOTION TO DEFER CONSIDERATION OF PETITION

Now come Petitioners, United Mine Workers of Amer-

ica, District 12, United Mine Workers of America, Local

Union 1227 and Local Union 1229, both of United Mine

Workers of America, and each of them, by counsel, and.

move this Honorable Court to defer consideration of the

within petition for certiorari for the following reasons: °

1. National Labor Relations Board has filed with the

Seventh Circuit; and there is currently pending therein,

a document styled “Petition for Clarification or Modifica-

tion”, wherein Board requests the Seventh Circuit “to

amend its opinion of December 2, 1960, to set forth its

ground for Setting aside the provisions of the Board’s

order relating to the company’s-ebligation to bargain with

Progressive Miné Workers.” ‘In said Petition, Board as-

serts the necessity therefor “If the Board should seek Su-

preme Court review of the adverse portions of the decree

relating to bargaining”, and that apart from the question

of such review, Board would welcome the Seventh Cir-

cuit’s. guidance in explaining the Court’s disagreement

with the Board’s determination on the an issue,

as set out in the decree.

-2.. Should the Board seek such review following the.

_ Seventh Circuit’s action on the pending petition, consid-

eration of the instant petition for certiorari conjointly

with that of the Board would serve te present a clearer

‘and more complete picture of the various issues present-

ed in the consolidated cases before the Seventh Circuit _

_than.a consideration of each petition separately.

Respectively submitted,

EDMUND BURKE

508 Reisch Building _

Springfield, Illinois

WELLY K.. HOPKINS

HARRISON COMBS

900 Fifteenth Street, N..W.

Washington, D. C.

M.-E. BOIARSKY -

511 Kanawha Valley Building

Charleston, West Virginia

Attorneys for Petitioners.

: - APPENDIX A

ae in the

United States Court of Appeals

‘. for the Srnenth Circuit

lee eee - a one —o

SEPTEMBER TERM AND SESSION, 1960

7 ‘

No. 12889 ,

Perry Coa CoMPANY and |

Peapopy Coat COMPANY, ET AL...

Petitioners,

Vv. | On Petition to Reviey

Nationa, LAsor RELATIONS Boarp, | and Se: Aside and o:

Respondent. | : Cross-Petition to En

-—— ———- foree a Decision and

No, 12945 : ! Order of The Na

Unrsep Mine Workers oF AMERICA, ; tional Labor Rela

~ ERAL., | tions Board )

' Petitioners, | :

NarionaL Lagor Recations Boarp,

Respondent.

December 2. 1960

Before Durry and ScHNACKENBERG, Cireuit Judges,. and

Mercer, District Judge

Durry, Circuit Judge, Appeal No. 12889 is before this Court

upon the petition of Peabody Coal Company. (Peabody) to

review and set aside an order of The National Labor Relations

Board’ issued against Peabody and also against the petitioners

in appeal. No; 12915.

125 N.L.R.B. No. 110 (Dec 30, 1959). -

2a :

Appeal No. 12915 is before the Court upon petition of the

nited Mine Workers of America, its District 12, and its Loca!

Unions 1227 and 1229, to review and set aside the same order

of the Board. -In its answer which applies to both appeals, the

Board has requested enforcement of its order.’

The charging paity is the Progressive Mine Workers ci

America. Among the sections of the Labor Management Rele-

tions Act claimed to have been violated are: Sections 8 (a) (1)

8(a) (2); 8(a) (3); 8 (a) (5); 8(b) (1) (A) and 8(b) (2).

No employee of either of the coal mines hereinafter described

complained of any coercion or discriminatory carduct. ’Funda-

mentally, this is a struggle between the Progressive Mine |

Workers of America (Progressive) and the United Mine Work-

ers of America (UMW) with the employer, Peabody, hate

mur? or less in the middle.

For many years prior to the summer of 1957, Progressive ane

its Local 167, represented employees of Midwest-Radiant Cor-

poration (Midwest) at the Millstadt mine, and Progressive

and its Local 75 represented employees of Perry Coal Company

_ (Perry) at the O'Fallon mite. This representation was ac-

complished by means-of labor agreements between Progressive

and its Locals 167 and 75’ and Coal Producers Association of

Illinois of which Perry and Midwest were members.

For many years prior to the summer of 1957, Peabody, as ¢

memter of the Illinois Coal Operators Association, had recog-

nized UMW as the exclusive’ bargaining representative at -

twenty-seven other mines which it owned and operated

lilinois and other p« ‘ts of the country. The collective bargain

ing agreement included the National ‘Bituminous Coal Wage

‘Agreement of 1950 as amended, and the Wage Agreement an‘

Working Conditions of District No. 12.

The 1952 amendment provided that the Agreement cover

the operation of all of the coal lands owned or held unde:

lease by the coal operators, or acquired during the term of the

contract. ‘This amendment was .arried forward and preserved

by the 1956 amendinent whict. provided that the Agreement

covered al! of the bituminous coal mines owned or operated b

the coal operators who were. parties to the agreement

Through a process of liquidation and merge: occurring about

- October 3, 1957, the properties of Perry and Midwest became

the properties of Peabody. The only ‘employer now involvéd

in’ ‘these proceedings is Peabody. ;

In May or June, 1957, which was after Peabody acquired

control of the Millstadt and O’Fallon mines, Hugh White, presi-

.dent of UMW’s District 12, notified Hartrnan, general mine

superintendent of Peabody, and McCollum, a vice president. of

Peabody and formerly a vice president of*Perry, that Peabody

must comply with the provisions in the National Bituminous

Coal Wage Agreement by recognizing UMW and.applying the

terms of the contract at the Millstadt and O'Fallon mines. His

demand was not based upon a claim that District 12 repre-

sented any of the employees at these mines.

McCollum and Hartman agreed the ccntract applitd to all

Peabody operations, and stated that they would Apply the con-

tract as a matter of course when their contract with Progres-

sive expired, and when UMW could show that it ‘cpresented

a majority of the employees.

In May or June, 1957, White obtgined from Hartman a list

of the names and addresses of the employees of the Millstadt

‘mine, and obtained: from McCollum a similar list of the om-

Ployees at the O'Fallon mine. Both Hartman and McCollum

knew UMW planned to attempt to organize the employ es “of

the two mines. Hartman testified that such lists which were

partially incorrect. had been previously furnished to charity

organizations, manufacturers’ representatives. insurance men

and others.

“

On July 1, 1957, White sent letters to all employees at both

mines. At this time the mines were closed down for the an-

nual vacation period. The letters recited that UMW had served

notic» on Peabody that it must comply.with the provisions in

the National Bituminous Coal Wage Agreement, and tha‘ all

provisions of that contract be applied at the Millstadt and

O'Fallon mines. It invited all empioyees to become members

of UMW, and enclosed a membership card upon which it re-

quested the signature of the person addressed.

Gn July 4, 1957, Roy Dupee, president of Progressive’s Dis-

_ trict No. 1, wrote Peabody, cautioning it to comply with the

Progressive agreement and the wishes of “your employees a

to Union affiliation.” Peabody did not reply to Dupee’s letter

Dupee made numerous telephone calls to.Peabody at St. Lous

to ascertain the company’s position concerning the demand o:

UMW. No one in authority would or did answer. a

The annual vacation period at both mines was schedulec

from June 28 to and jricluding July 8. However, at Millstadt

certain repair work wks in progress, and the opening date ther

was re-scheduled to July 15th. The mine did reopen on July.

20th. O'Fallon was reopened on Juiy 22nd.. ~ °

While the mines were closed, Peabody withdrew from th:

Coal Producers Association of Mlinois, and also gave notic:

to Progressive. that it would terminate the contract betwee.

them on September 31: 1937. On August 4. 1957, Dupee wrot

Peabody ‘protesting Peabody's contemplated termination of the

agreement, and requestes Peabody to meet with Progressive

as the employ ees’ bargaining representative to negotiate a new

agreement.. Peabody did not respond | to this request to bargain

Qn September 30, 1957, Peabody terminated its contract with

‘Progressive and ceased making payments to the Progressivé °

Welfare-and Retirement Fund. On October 1, 1957, Peabods

recognized UMW and applied the UMW contract at the Mi!

stadt and O'Fallon mines.

The Board adopted substantialty all of the trial examine”

conclusions and recommendations. The Board found Peabod)

violated’ Section 8(a) (2) and (1) by assisting and supporting

UMW, .a) by fu.nishing UMW with lists of ‘its employes # *)

the two mines; b) oy discriminatorily locking out employee

at Millstadt from July 15 to July 20, 1957, and at the O'Fallor

mine from Julv 9 to' July 26, 1957, ip order to encourage men

bership in UMW; c) during the periods of jockouts, threatening

employees with continued. lockout; d) by refusing to bargal”

with Progressive; e) by terminating the hargaining agreemen

with Progressive on September 30, f) by aiscontinyint: pay

ments to Progressive’'s Welfare and Retirement Fund on Set

‘ember 30; g) by entering into an exclusive bargaining contrat’

with UMW ata time when that Union did not represent an UL

coerced majority of emp!vyees, and h) by entering into eon

—— . ‘5a

tract containing illegal closed shop provisions. The Board also

found the conduct, of Peabody violated Section 8(a) (3) and

(5) of the Act.

‘The Board found and determined UMW violated Section

8(b) (1) (A) and (2) of the Act by demanding Peabody enter _ .

into a collective bargaining agreement with it; by its letter oi -

July 1, 1957, addressed to each employee of the two mines.

and by its newspaper ad addressed to mine employees stating

UMW was requiring Peabody to apply the provisions of thes

‘he reopenin of the Millstadt mine was drives for economic

reasons, and the reopening of the ‘O’Falion mine was deiayed

tor safety reasons, but the trier of the facts found otherwise.

The examiner and the Board relied to a considerable exten‘

upon stitements made by vice president, McColluin, genera]

superin. ndent Hartman, and mine superintendent Schroeder

to the effect that the mines would not reopen and operate unles

UMW was designated as bargaining representative by the em-

ployees. |

True, these officers denied making many of the statements

relied upon, but we cannot disturb credibility resolutions made

by the Board. NLRB v.: Wagner Iron Works, 7 Cir. 20 F.2d

'26, 142. The weight.to be attached to and the credibility to be

-accorded testimony .is a matter for the trier of the facts. Sun-

shine .iscuits, Inc. v. N LRB, 7 Cir., 274 Fd 738, 741.

The trial exdminer found the furnishing of the manling hst<

‘oO UMW did not ‘constitute unlawful gonatance - United and

disagreed. . It did not say the furnishing of the lists was illegal _

per se, but that the furnishing of the lists in the context of othe

. acts of assistance constituicd illega! assistance, citing Wagner

iron Wo ks, 104 N.L.R.B. 445. enforced. NLPu v. Wegner Tron

works, ? Cir., 220 ¥.2d 126. |

‘We think the furnishing of tie lists by itcc'* would be no

basis for the conclusion of the Board. Even considered with °,

6a | amy

other acts of assistance, it is a slender reed on which the Board.

in part, rests its decision. Although of relatively small impo:-

tance in this case, we are not disposed to’ interfere with the

Board’s decision as to the effect of furnishing the lists.

_ The National Bituminous Coal Wage Agreement of 1956 con-

tains the following provision: “It is further agreed that as a

condition of employment all employees shail be, or becéme.

members of the. United Mine Workers of America, to the exten:

and in the manner permitted by law.” (Emphasis supplied)

An integral part of the same printed document w peel ai

tains the above quoted provision is “Wage Agreement and.

Working Conditions between the Illinois Coal Operators Asso-

ciation and The International Union United Mine Workers o!

America and District No. 12, United Mine Workers of America.”

This agreement bears the effective date of April 1, 1941 and

provides that it remains in full force and effect in its prov isions

“* * * except where they have been amended, modified “es or

nullified by the National Bituminous Coal Wage Agreem

incorporated in this book.”

The trial examiner found the requirement oi UMW member-

ship contained in the 1941 district agreement was an integra!

part of the UMW’s National Bituminous Coal Wage Agreemen’

and concluded that it provided for an unlawful cicesed shop

The Board agreed, but -vent furti.er and heid the Union security

clause in the 1950 agreement provides for an unlawful closed -

shop i. spite of the provision.“* * * to the extent and in the

-manner provided by jaw.” Such a holding is contrary <0 9u"

decision in Lewis v. Quality Coal Corporation, 270 F.2d 140.

The Board seeks first to distinguish Quality Coal on the

ground that that case involved private litigation. It then asks

us to reconsider our decision in Quality Coal, and cites the sam«

- eases which this Court considered and rejected when it handet

ome the Quality Coal decision.

Tt is entirely immaterial that Quality Coal arose in the con-

te-:t of private litigation. The question that was fully litigated

in that case was decided adversely’ to the present position of

- the Beard.

ee eee

Ja f

We decline the cordial invitation of the Board to abandon

our decision in Lewis v. Quality Coal Corporation. We adhere

to that decision. For whatever significance it may have, it also

is of interest to note’that, the United States Supreme Court

denied certiorari in Quality Coal, 361.U.S° 929.

‘We are of the view and hold that the Board -was in error in

nolding the 1941 agreement, which provided for a closed shop,

was not amended or modified by the 1950 agrcement. It seems

clear that the contracting parties contemplated that changes.

might be necessary under the law. and evinced a desire to con-

form to such changes. _ ’

_ The intention of the parties is also shown by the manner in

which employ? ent practices were carried out at the wo mines.

No employee «.aims his rights under Section 7 were violated.

Furthermore in the transition from Progressive to UMW, no

employee at either mins lost his job. Membership in UMW

was not a condition of employment. An emplovee did.not need

to belong to UMW to retain his employment. - :

Where two constructions of a written contract are possible,

preference is given to that one which does not result in a vioia-

tion of law. Great Northern Railway Co. v. Deimar Co., 283

U.S. 686, 691:

The National Agreement .by ifs own terms prevails over the

District Agreement. The clear and unequivocal phrase in the

National Agreement renders inoperative the unien security

Provision of both agreements.

We hold the Board was in error in finding and concluding -

' Peabody violated Section 8(a) (1) and (3) of the Act by entér-

ing into and maintaining a contract which contains closed shop ~

orovisions, and that UMW violated Section 8¢b) (1) (A) and

(2) of the Act. by demanding, entering into and maintaining a

contract which contained closed shop provisions.

The Board's order requires that Peabody ai.d UMW jointly

and severally “reimburse all employees for monevs illegally

exacted from them” and to “make whole emplovees for any

loss suffered by reascn of the discriminatory discontinuation of

the Progressive Fund payments.” An issue which we must

decide is whether such « remedy is appropriate under the facts

of this case. ok ;

The Supreme Court discussec. the power’ of the Board w

order affirmative remedies in Republic Steel Corporation v_

NLRB. 311 US. 7. The Court there stated, page 11: “* *

We do not think that Congress intended to vest in the Board a

virtually. unlimited discretion to devise punitive measures, and

thus to preséribe penalties or fines which the Board may think

would effectuate the policies of the Act.. We have said that ‘this

authority to order affirmative action does not go so far as t

confer a punitive jurisdictfon enabling the Board to inflict upor

the employer any penalty it may choose because he is engagec

in unfair labor practices even though the Board be ‘61. the

opinion that the policies of the Act might be effectuated by such

an order.’ * * * (citing cases) .”

In Virgina Mlectric & Power Company V WLRB, 319 US

333, the Supreme Court held that reimbursement of dues was

an appropriate remedy to effectuate the purposes of the Act

However,-the Court expressly limited the decision in that case

to the particular facts before it, and refused to express an

opinion on the merits of eleven cases in five diffever.: circuits

which refused to enforce similar Board orders. It is of interest

to note that the Virginia case concerned a company-dominated

union, and al! the employees had to join the union and remair

members thereof in order to retain their jobs. |

In Western Union Telegraph Company v, NLRB, 2 Cir., le

F.2d 992, the Court refuscd to enforce a refund order similar te

“the one here under-consideration. The Court said, page 997

‘It by no means inevitably follows, because an employer has

so conducted himself towards a union as to disqualify it from

acting.as cullective bargaining agent for all-his emplovees, that

he has inflicted pecuniary damage upon each member of the

anion. * * *”

In his concurring opinion in the Virginia case, supra. Justice

Frankfurter pointed out the significant distinction between

cases like Western Union ard Virginia. He said, 319 U.S., at

page 535. “But the vital difference between the Western Union

and this case is that, in the former, ‘there was no evidence *a!

. 9a

all those (employees) who asked to have their wages stopped.

did so in any part becar'se they were coerced.’ * * * Here the

employees had no such choice; they could avoid the check-off of

union dues only by giving up their jobs.” :

In Local 357, Teamsters Umon v. NLRB, DC Cir., 275 F.2c

* §46, the Court refused to enforce a dues reimbursement orde:

except as to an individual. who was actually discriminated

-against by the illegal hiring-hall agreement. The Court said

the order went ioo far in directing rei mbursem ent to all casual

tis the Board’s view that the presumption of coercion ts

concfusive once the unfair labor practice ‘is s'iown. However.

in NLRB v. United States Steel Corporation, 3 Cir., 278 F.2d

896, the Court refused to accept this argiment and declined to

enforce the order because there -was no evidence that_any em-

ployee'Was coereed. The Court was under the impression that

this Court had decided to the contrary in NLE?B v. Local 60

United Brotherhood of Carpenters, 273 F.2d 699, but stated

at page 90: “there is a grov‘ing body of authomty, some of ™

very foicefully and clearly written, supporting our view.”

In NLRB v. Local 60, United Brotherhood of Carpenters, thi:

— Court approved the Board’s finding that the contract ¢ mtained

an unlawful closed shop ciause. The Board ordered reimburse

ment and this Court said it was a proper remedy because the

“record does support the Board's finding.that such fees were

coérced in that there was present an implicit threat of loss o/

job if those fees were not paid.” (273 F.2d, at 703). Signifi-

cantly, the opinion went on to hold, “The burden rested on the

respondents to show that even without the unlawtu! discrimina

tion, the Company's employees ‘would have m: aMtained their

Membership in Loca) 60." (273 F.2d, at 70;?). ‘The Supreme

Court has recognized the fea holdings: of our Local 61)

- Opinicn and that of the District of Columbia Court of Appeal:

in the Local 357 case. and has granted certiorax in DOT Cases.

Of course, we shal! follow the decision ‘of this Cowrt in the

Local 60 case if it is controthng under tne facts of che instant

case.. For the reasons. hereinafter stated, we hold that our

decision in Local 60 is not controlling in the case a‘ bar

’

2 10a

In Local 60, not. only was the hiring agreement found to te

unlawful, but two employees were declined employment bs

reason thereof. This Court found reimbursement of dues prope:

“to restore employees to the position they would have enjoye:

but for the illegal practices.” (273 F.2d, at 703):

By contrast, in the case at bar, there are no findings that due:

were paid under: coeigion or under any threat or implied threa

of loss of job. In the instant case, no employee did lose his joo

in the change-over to UMW. No employee complained of tesu-

fied that he was coerced into signing dues cards. There is clex

evidence in the record that membership in UMW was not

condition of employment. Furthermore, at the time of the cor-

_tract with Peabody, employees at both mines, by cards, and b:

election at O'Fallon, indicated their choice of UMW:

ie the great majority of cases raising ie issue of dues reim-

‘baesoment, only one union was involved. In such cases, were

it not for the unfair labor practices, it is quite possible the em:

ployees involved would not have paid any dyes. Here the

employees were ail union men. True, they had been memben

bf Progressive and not UMW, br ‘ during the period that UMW

collected its dues, the employees received all of the rights anc

benefits of belonging to UMW. These employees would hav:

‘paid union dues regatdless of any unfair labor practices.

Inasmuch as there are no findings of actual coercion in th |

instant case nor any evidence which would have. supporte

such findings, we hold that part of the order requiring rein:

bursement of dues paid. should ‘not be enforced.

‘We next consider the requirement of the o.Jer that Peabo

‘and UMW jointly and severally “make whole em ployces 1

any loss suffered by reason of the discriminatory discontinue

tion of the Progressive Fund payments.” We note thet pay

ments were made by Peabody into‘that fund durin,z the entit

' duration of the contract with Progressive. To say that at the

time the old contract expired, a new contract would have bee?

ehtered into with Progressive, would seem tobe sheer specu!*

tion. The Gene -al Counsel asked the trial examiner to reinsts*

Progressive’s contract but he’ refused to do so. -The Boat

lla‘

makes no mention of this part of the examipcr’s mtermediate

report, so we assurge the Board adopted the action of the trial

—examiner in that respect. Nevertheless, the Board’s order, in

‘effect, reinstates at least part of- Progressive’s contract. .

> .

Since October 1. 1957, Peabody has paid into UMW Welfare

and Retirement Fund, royalty payments of 40 cents a tor for

every ten which it has sold from the O'Fallon and Millstadt.

mines. If it had made payments into the Progressive Fund,

the amount would have been 20 cents a ton. ‘There Should be

no windfall to employces which might enable them to draw

from both funds for the period when they would be entitled to

receive payments from’ one or the other. Such part of the

Board’s — is penal in effect and should not ue enforeed

UMW en the order is too broad. It specifies three objec-

tions: 1) Paragraph 2(a) (3) of theorder is merely 2 comman::

‘0 broadly obey the statute; 2) the order and notice should he

limited to the employees of the two mines involved: and 3¥ the

Miusion of “any other employer” ts invalid in) mxtragraph

2(b) (3) of the order.

The Board has the -:power to frais an order like oaragrapi

?(a) (3), NLRB .¢ heney Califo nia Lamber ¢ “0, , 327 U.S. 385

Whether it is justified depe ny on the circumstances of eae!

ase. NLRB vy. Express Publishing Co.. 312 US. 426. The Boers

argues the reason for the te agraph was that the illeca! contre’

covered all Peabody emplovees. But, since we bold h° contra “

s valid, the order should be limited te UMW and: Peabo

actual unfair labor practices in this case ;

Under the authority of NLPE vo United Brotherhood «

Carpenters, 7 Cir., 276 F.2d 694, the order should be Hnfited +:

the cmployees of the two mines involved

The words “or any other employer” in pareyrapn 2¢b) 65)

i of the order should not be enforced. Communi cations Worker,

¥. NLRB, 362 U.S. 479: UMW was not-found to have en; gaged

1 vidlations against the emplovees of any emplover otherthan

Peabody. In-any event, the whole «lause s’euld be stricke

“Since the contract did not violate the Act

12a" | >

The Order of the Board, modified as indicated in this opinion

will be age eee

No. 12889

« SCHNACKENBERG, Circuit Judge. Fe or. ie reasons set fort 1.

my opinion in Lewis v. Quality Coal-Corporation, 270 F. 24.14)

144, I dissent from those parts of Judge Duffy’s opinion whic’

“are inconsistent with my said views. y

In all other respects I concur with his opinion.

A true Copy: ery a

Teste: i og.

i Clerk of the United States Court of

. Appeals for the Seventh Circuit. —

13a

-. APPENDIX BO. ‘

| ORDER — |

- December 2, 966 | - ere

: . & 3

“This cause came on to be heard on the ‘petitions to review

und set aside an erder of the National Labo: Relations. Board,

‘he answer and request for enforcement of said order, the

‘ranscript of the record from the National Labor Relations

‘Board, and was-argued’ by counsel.” . |

“In consideration whereof, it is ordered’ and adjudged by this

Court that” the, order entered in. this caus> by ihe- National’

Labor Relations Board on December ,30, 1959, be modified as

indicated.in the opinion of this Court filed this day, and-as so

modified the said. order will be enforced.”

}

| aes |

| — ORDER

Tuesday, January 17, 1961

Rs: IS ORDERED by the Court that the petition for a re-

- Wearing of this cause be, and the same-is hereby, DENIED.”

DECREE

April 5,.1961

Before: Durry and SCHNACKENBERG, Circuit Judges and

Mercer, District Judge. “i >

+ This caise came on to be heard upon petition of Peabody sy

Coal Compariy to review and set aside an order of the National

Labor lations: Boartl, dated December 36, 1959, issued agairist

Peabody and against the United Mine Workers of America,

Pet al; and also upon petition of the United Mine. Workers of

America, et al. to review and set aside the same order of the

Board. In its answers and eross-petitions the Board requested’

enforcement of its order. ‘The Court heard-argument of respec-

‘ive counsel on September 37,1960; and has considered .the .

oriefs and transcript of record filed in this cause. On December

ee ee -

a ; , l4a | re

, 1960, the Court being fully’advised in the premises. handed

yt its decision enforcing, as modified, said order of the .

Board. In conformity therewith it is hereby

ORDERED, ADJUDGED AND DECREED by the United

States Court of Appeals for the Seventh Circuit tinat the Peti-

troner, Peabody Coal Company, its officeys. agents, successor

. and assigns shall:

. - >. 2

_ a, Cease and desist trom :

(1) Giving dffeet to the. collective bargaining agreemen!

entertd into on or about October 1.1957, with United Mine

;Workers of America, tts District 12, ‘and its Locais i an?

"1229, or to any extension, renewal of modification the:

- (2) Recognizing United Mine Workers of America. its Dis

trict 12, and its Locals -1227 and 1229, as the representat.ve of

any of its employees at the O'Fallon and Milistadt .mincs fer

the purposes of dealing With it concerning ‘griévances, labo:

disputes, wages, rates of pay, heurs of employment. e- othe?

conditions-of employment: unless and until said labor or taniza

tuons shall have demonstrated their exclusive majority repre-

sentative status pursuant to a Board conducted election amenc

the Company's: emplovges; said election to be conducted a

early as pessibke under applicable rules. regulations i irae

tices; it being understosd that Peabody ited not barga.n wit

-any union claiming to represent the employees at the OF.

the election so held.

(3) Assisting and contribu iting support to Unr

Workers °f America. its District 12. and its Locais M27 ant ie

or to any other labor organization.

(4) Encouraging membership in }ff above pamed ‘abor or-

ganizations, or in any ether labor organization of its cploy-

ees, by discriminating in regard to hire or tenure of employ

ment of any ter or condition of employment} except, to th

extent permitted by the proviso to Section’8(a} (3): of the Ac’

2$ modified by the’ Labor} ‘Management Reporting and Disclos-

ure Act of 1959. :

(5) In any other manner interfering with, restraining 0

ka é

* - ©

15a

coercing employees in the exercise of the right to self-organi-

Mine Workers of America, District 1, or any other labor organi-

zation, to bargain collectively through representatives of their

own choosing and to“engage in ‘concerted activitigs for the pur-

pose of collective bargaining or other mutual aid or protection

or to refrain from any or all suck activities except tothe extent

that such rights may e affected by an agreement requiring

membership in a labor organizagion as authorized in Section

5(a) (3) of the Act, as modified by the Labor Management Re-

porting and Pisclosure Act of 1959..

b. Take thé following affirmative-action which the Board

has found will effectuate the policies of the Act:

(1) Withdraw and withhold all recognition. from United

Mine Workers of America, its District -12, and its scone

and 1229,as the repreg§ntative of any of its employees at

Millstadt and O’Fallon mines for the purpose of dealing with

it concerning grievances, labor disputes, wages, rates of pay,

hours of employment, or other conditions of employment unless

and until the said labor organizations shall have demonstrated

their exclusive majority representative status pursuant to a

Board-conducted election among the said employees;

(2) Make whole all employees at ite U’Fallon and MiUstadt

mines for any loss of earntggs they may. have suffered by rea-

son of the discriminatory lockeut, as found herein, °

(3) Preserve and, upon request. make available. to the Na-

.- ‘tonal Labor Relations Board, ‘or its agents, for examination

and copying, alf records necessary for the determination of the

“mount of baek pay due under thas Decree. .

(4) Post at its Millstadt and O'Fallon mines copies of the

notice attached hereto and marked “Appendix A.” Copies: of

"Said notice to be furnished by the Regional Director for the

Fourteenth Region shall, after being duly signed by Peabody’s

authorized representative, be posted immediately upon receip

thereof, in conspicuous places, including all places wheré notice

‘o employees is castomarily posted, and maintained for a peri

obaixty (60) consecutive gays. Reasonable steps shall be taken

‘to insure that said notices. are not altered, ‘defaced, or cov ered ;

by any other material;

(5) Post at the same places ‘and under the same conditions

as set forth in (4) above. and as soon as they are forwarded by

the aforesaid Regional Director, copies of the Unions’ notice

_ herein, marked “Appendix B”:

(6) File with the said? parma Director within ten (10;

days from the date of this Decree’a report setting forth in de-

tail the steps which it*has taken to comply with this Decree

The United Mine Workers of America, its District 12, and 1:

Locals 1227 and 1229; their officers, representatives, agents. suc-

cessors and assigns, shall:

a. Cease and desist from

(1) Giving effect to the agreement of on or about October i

‘1957 with Peabody (Coal Company, or to any extension, renewal.

modification; supplement, or other contract with said employer.

_uniess and until said labor organizations shall have demon-

strated their exclusive majority represertative status pursuant:

to a Boardrconducted election among the employees of Peabod:

Coal Company, at its O'Fallon and Millstadt mines:

. (2) Restraining or ‘coercing the employees of. Peabody Coal

“Company, at its O'Fallon and Millstadt mines in the ri ight to se

lect or not to select the United, Mine Workers, its Distriet- 12

and its Locals 1227 and 1229 as-their bargaining representative

and to’ join or net to join said labor, organizations, except to the

extent that such right may be affected by an agreement exe-

cuted as authorized by the Act, as modified bythe Labor Man-

* ageritnt Reporting and Disclosure Act of 1959.

b: Take the following: affirmative- action, which ‘the Boars

“has found will. effectuate the policies of the Act:

(1) Post at the business offices of District 12 and Locals 1227

and 1229, copies of the notice attached hereto and marked “Ap-

pendix B.” Copies of said notice, to be furnished by the afore:

said Regional Director, shall, after being duly signed by a”

_ Official representative, be posted’ immediately upon rece!p'

thereof. and be maintained for sixty (60) consecutive days

‘ on

‘17a

“hereafter, in conspicuous places, including all places where

_ notices to members are customarily posted. Reasonable steps-

- Shall be taken to insure that said notices are not altered, de-

faced, or covered by any other material,

(2) Mail to the said Regional Director ‘signed copies of the

_ notice attached hereto and marked “Appendix B” for posting at

_ the Company’s Millstadt and O’ Fallon mines;.

(3) -Notify the said Regional Direor, in 1 writing, within ten

(10) days from thé date of this De>ree what steps the Unions

nave taken: ‘to comply with the Decre €. )

/s/ F. Ryan. Durry *

Judge, Urited States Court ot

‘ _ | Appeals for. the Seventh\Circu::

/s/ Exmer J. SCHNACKENBERG

. rr. ° Judge, United States Court of

Appeals for the Seventh Gi: 3"

"/s/ FRevertcK QO. MERCER

Judge, United States District

Court, Southern District of

Illinois, sitting by designation

on Court of Appéals for the

Seventh Circuit.

A True Copy:

Teste: .

’ SEAL |

/ . Kennetu J. Carrick

clerk of the United States Court of °

Appeals for the Seventh Circuit.

APPENDIX ES

NOTICE TO ALL EMPLOY EES OF OUR O'FAL L ON

AND MILLSTADT MINES

PURSUANT TO :

A Decree of she. United States Court of Appeals for . the

“Seventh Circuit enforeing an Order, as modified, of the Na-

“Ona. Labor Relations Board, and in order to effectuate the’

policies of the National Labor Relations Act, as amended. we

hereby notify you that:.

18a

WE WILL NOT encourage membership in UNITED MIN:

WORKERS OF AMERICA, its District 12, and its LOCALS

1227 and 1229, or in any other labor organization of our er-

ployees, by discriminating in regard to hire, tenure, or anv

term or condition of employment,.except to the extent au-

thorized hy Saction 8(a) (3) of the Act, as modified by t

Labor Management Reporting and Disclosure Act of 1959.

WE WILL MOT give effect to any and all agreements, am

contracts, supplements thereto. or modifications thereof,

“any superseding contract with the above-mentioned lal

organizations with respect to the employees at the O'Faler

and Millstadt mines.

WE. WILL NOB’ contribute support. to the above-namec

iabor organizations. 2

WE WILL withdraw: and withhold seeemnition from th

‘above-named labor organizations, or any successor theres

with respect to the employees at the O'Fallon and Milistat:

mines, unless and until they shall have demonstrated ¢

_clusive majority representative status “pursuant to a, Boatt:

conducted election among our employees atthe said Wines

The bargaining units are: -

(1). All employees at the O'Fallon mine covered by the 19.

“contract between Progressive and the Coal Producers

Association of Illinois, and

(2) All employees at the Millstadt mine covered by the sana

‘contract, excluding such categories of employees as

quired by law.

WE WILL NOT give effect to any checkoff cards, heretofct

- executed by our employees, authorizing deductions froc

their wages for remittance to UNITED MINE WORKER:

OF AMERICA, its District 12, and its LOCALS 1227 and 12> |

WE WILL NOT in any other manner interfere with, t

strain, or coerce our employees in the exercise of thes

statutory rights."

Ajl cur employees are free to become, remain, or refrain from

secoming or remaining members of any labor organization,

except to the extent that this right may be affected by agree-

ments in, conformity with Section 8(a) (3) of the National

_ Labor Relations Act; as modified by .the Labor Management

| ne and’ Disclosure Act of 1959. . | -

PEABODY COAL COMPANY

; : a (Emplover)

Dated By pate oe,

(Representative) (Title) —

’ .

This notice must remain posted for 60 days from the date

rereof, and must not be alteréd, de faced. or cov ered by anv

ther material. sataer

-—-

APPENDIX B

¢ NOTICE

TO ALL MEMBERS OF UNITED MINE ‘VORKERS OF.

AMERICA, ITS DISTRICT 12, AND'ITS LOCALS 1227

and 1229, AND TO ALL EMPLOYEES OF PEABODY

COAL COMPANY AT ITS MILLSTADT AND

O’FALLON MINES

PURSUANT TO

4 Decree of the United Staies Court of Apoests for ‘the

Seventh Cireuit enforcing an C rder, as modified, of the Na-

‘onal Labor Relations Board and in order to effectuate the *

suicies of the National Labor Relations Act. as amended,

‘ereby give noti ce that.

WE WiLL NOT sive effect w paras rreements f mY,

about October 1, 1957, or to any uther contract 1 PEA

BODY COAL COMPANY covering aes vees at the abs AVE

named two mines, unless and unti! we shill have demo.

‘trated our majority representative status pursuant to .

Board-conducted election among employee es at the aforesaid’

mines. .

WE WILL NOT restrain or coerce the € mplovees of the said

“mployes in their right to select or not to» select the United’

Mine Workers. its District 12, and its Locals 1227 and 1% .

as their bargaining representative, and to join‘or not to jor

said labor organizations except to the extent that suth righ:

may be-affected by an agreement requiring membership ir

a labor organization as a condition of-employment, execute:

‘ in conformity with Section 8(a) (3) of the Act, as modifie

by the Aaaljor Management pang and Disclosure Ac

ef 1959.

~~ UNITED MINE. WORKERS OF\ AMERICA

* (Labor Organization). .

Dated : By rr. Os oe

: (Representative) (Title;

es ' DISTRICT 12, UNITED MINE. WORKERS

. OF AMERICA

Dated * -By thea

' (Representative) —— . (Title)

LOCAL 1227, UNITED MINE WORKERS

OF AMERICA

(Labor Organization).

ated = By | ceca le

‘. (a: (Representative) (Title)

LOCAL, 1229, UNITED MINE WORKERS

‘OF AMERICA

. ; (Labor Organization)

Dated By

(Representative) ° (Title)

Thts notice must remain posted for 60 days frqm the dnt,

hereof, 4nd must not be, altered, defaced. or covered by a

other material.

2la

_ APPENDIX C

Labor Management Relations Act, 1947: . ‘

- 29USCA 157: , :

_. “Right of employees as to organization, collective bargaining,

ae te

“Employees shall have the right to self-organization, to form. .

join, or assist labor organizations, to bargain collectively

through representatives of their own. choosing, and to engage

in other.concerted activities for the purpose of coliective.bar-

gaining or other mutual aid or protection, and shall-also have

the right to ‘refrain from any or all of such activities except to

the extent that such right may be affected by an agreement re-

quiring membership in a‘labor organization as-a condition of

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

* 29USCA 158:

: 6 rf

“Unfair labor practices =

“(a) It shall be an unfhir labo practice for an employer— .

““U) to interfere with, restrain, or coerce employees in, the

exercise of the rights guaranteed in section 157 of this title;

“(2) to dominate or interfere ‘with the formation or admin-

stration of any labor organization or; contribute financial or

other support to it; Provided, That subject te rules and regula-’

tions made and published by the Board pursuant to section 156

of this title, an employer shall not be prohibited from permit-

ting emplpvees to confer with him during working hours with-

— -utlossoftimeor pay; *

“(3) by discrimination in regard to hire or tenure of employ-

ment Or any term or condition of employment to encourage or

discourage membership in any labor organization: Provided.

That nothing in this subchapter, or in any other statute of the

-’, United States, shall preclude an employer from making.an

“greement with a labor organization (not established, maintain-

ed, or assisted by any action defined in this subsection as an un-

fair labor practice) to require as a condition of employment _

22a of 1

simeibgrehio therein on or after the thirtieth day following the

beginning’ of such employment or the effective date-of such :

agreement, whichever is the later, (i)-if such labor organiza-

tion is the representative of thé employees as provided in sec-

tion 159(a) of this title, in the appropriate collective-bArgaining

unit covered by such agreement when made and has ‘at the time

the agreement was made or within the preceding twelve.months .

-receivéd from the Board. a notice of compliance with’ section

- 159(f), (g), (it) of this title, and (ii) unless following an elec-

tion held as provided in section ‘159 (e)‘ of this title within one |

year preceding the effective date of such agreement, the Board

shall have certified that at least a majority of the employees

eligible to vote in such-election have voted to rescind the,au- .

thority of” such labor organization. to make such ’an agree-

ment:. ;

gare ee Pie £* ) <

~ 95) to refuse to bargain collectively with the representi-

, tives of his emplovees, subject to.the provisions of section

159 (a) of this title.

“(b) It shal! be an unfair labor practice for a labor orgxnize-

tion: or its agents—.

Ny “() to restrain or coerce (A) employees in the exercise of

the rights guaranteed in section 157 of this tithe: .. .

" (2) to cause or attempt.to cause an employer to discrim:

_nate against an employee. in violation of subsection (a) (3) 0:

this sectidror to discriminate ee an employee with re-

‘ spect to w hom mentbership in such organization has been de-

nied or terminated on some ground other than his failure tc

tender the periodic dues and the initiation feés uniformly re

quired as a condition of acquiring or retaining members!p

the dissemination thereof, whether in written, printed, graphic

or visua! form, shall not constitute or be evidence of an unfai+

labor practice under any of the’ provisions of this sub-chapter.

promise of benefit. _ ‘

29 USCA 160: ete,

~Petition to court for enforcement of order. proceedings.

review of judgment ; ; 4

“(e). The Board shall have power to petition any. United .

~ States Court of Appeals {including the United States’ Court

of Appeals for the District of Columbia), . . . for the enforce-

ment of such order . . . Upoy such filing, the court . . . shall

have jurisdiction of the proceeding and of the question de

termined therein, and shall have power to grant such témpo-

rary. relief or restraining order as it deems just and proper.

and.to make and enter upon the pleadings, testimony, and pro- °

ceedings set forth in such transcript a decree enforcing, .modi-

fying, and enforcing as so ‘madified, or setting aside. in -whole

or in part-the order of the Board. No objection that -has not

been urged before thé Board, its member, agent, or agency,

shall be considered by the tourt, unless the failure or heglect

‘9 urge such ‘objection shall be excused because uf extraor-

dinary circumstances. The findings of the Board with respect

*@ questions Of fact if supported by substantial evidence on the

‘ecord considered as a whole shall-be conclusive. . .

“Review ef Snal order of Board on petition to court

_ “(f) Any persen aggrieved by a final érder of the Board

granting or denying in whole or in part the relief sought may

obtain a review of such order in any Urited States court of

appeals in the circuit wherein the -unfair labor practice in

question wvas alleged to have been engaged in or wherein such.

person resides or ‘trahsacts business, or in the United ‘States

Court of Appeals for the District of Columbia: by filing in

such a court a written petition praying that the order of the .

* Board be modified or set aside; . . Upon such filing, the court

_ Shall proceed in the same manner as in the case of an applica-

‘won by the Board under subsection (e} of this section. and -

shall have the same exclusive jurisdiction to grant to the

Board such temporary relief or restraining order as it deems

just and proper, and in-like manner to make and enter a decree

. enforcing, modifying, and enforcing as so modified, or setting

aside in whole or in part the order of the Board: the findings

ofthe Board with respect to questions of fact ‘if supported by

substantial evidence on the record considered as a whole shall

in like manner be conclusive.” |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.