# Petition for Writ of Certiorari — Peabody Coal Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0981%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 366 U.S. 949 ## Text _ 4 ‘ * ‘ Supreme Court of the lattes States a° ahs Ode teedees Vga. Pfacee . > ‘ 9° ro ; *. No ; - . 9 . * | * a ; 4 » e ‘ h. PED PON POO WETEE Gob CDT OR VEE be tc ENEEIMD SPATS COURT Gb Wrrsvbs - 4 POR CHP SEVENGH CPe tnt tried MEP TON PO DPPERR CONSIDER VETON Gb Pi biptans a) © ~ INDEX + SUBJECT INDEX 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 ii Local No. 3, United.Packinghouse Workers of Amer- | Perry Coal Co..v. NLRB, 7 Cir., 284 F. 2d 910 Page 32 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 c Supreme Court of “ani United States ‘ s Qctober Term, 1960 3 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”, 2 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”. 7 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. s 8 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 o "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) « i. 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 13 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). +e a Unless. otherwise stated, all dates refer to the year 1957 14 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 » 16 _ 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 hs a Se Slee le i 17 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- 18 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. ~— 19 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 4 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 Ty ae 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 26 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 27 upon termination of Progressive’s contract, designation of UMW by employees, and UMW’s compliance with age oo oe 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- 28 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: al ee NS AS I gg — a 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 30 “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 31 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 32 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? 33 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 35 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 36 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 37 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." . , 38 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 . 39 _ 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 & 42 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, | : V. 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 Ja 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- Ca 4a _ 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 interference within the meaning of the Act. © ’ The Board 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 8a 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! 5 . 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 ye a 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 - s © ae, » . 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. and Millstadt mines yntil the Board has tertified the results © the election so held. a) (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 ia coercing employees in the exercise of the right to self-organi- _ _ zatiori, to form labor organizati&ns, te join or assist Progressive © 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: Fa . (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’ - 6: e ¢ 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. . a 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. fi 2la _ APPENDIX C Labor Management Relations Act, 1947: . ‘ - 29USCA 157: , : : | _. “Right of employees as to organization, collective bargaining, ae te 9 “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 (c) The expressing of any views, argument, or opinion, 0 - 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. § such expression contains no threat of reprisal or force © 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 enforcin [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0981%3A2. Public record. Not legal advice.