*2 Judge, PHILLIPS, Chief Before EDWARDS, O’SULLIVAN, WEICK, CELEBREZZE, PECK, McCREE Judges. COMBS, Circuit EN BANC REHEARING ON PER CURIAM. appeals of these After consideration rehearing court, en panel of this rehearing, Upon granted. banc was evenly toas affirm- divided court was District Court.
ance or reversal judgment Dis- Accordingly, opin- affirmed. trict Court stands affirm- EDWARDS for ions of for rever- O’SULLIVAN ance and sal, respectively or- filed with der. Judge, EDWARDS, whom Circuit Judge,
PHILLIPS,
PECK
Chief
Judges,
These
COMBS,
concur.
Circuit
judgments en-
appeal cases are on
District
States
in the United
tered
of Ten-
District
Eastern
for the
Division,
dis-
nessee,
Southern
plain-
complaints
joint
missed the
tiffs-appellants coal
(E.D.Tenn.1967),
Supp.
defendant-appellee
should
serve
Work-
appellate
to foreshorten
our
considera
ers.
tion.
appeals
They
in this cir
are the latest
present
Appellants
questions
present
be-
the conflicts between
three
cuit which
policy opposing
fore
court:
trusts
national
(Sherman
monopolies
Antitrust Act §§
*3
place
1.
the Sherman Act
Does
2,
1,
(1964)),
and
15
2
and
U.S.C. §§
restraints
on national
collective bar-
policy favoring
national
collective bar
gaining?
gaining (National Labor Relations Act §
court have found
Should the
1,
(1964);
151
29 U.S.C.
Norris-La
§
agreement
there was
an
between
5,
1, 2
29
Guardia Act
and
U.S.C.
§§
§§
and
uniform labor
UMW
BCOA that
101, 102,
(1964); Clayton
105
Antitrust
imposed on all
terms would be
bar-
(1964),
20,
6
15
and
17
U.S.C.
§§
§
gaining
throughout
units
indus-
(1964)).
29 U.S.C.
52
Plaintiffs
are
§
try?
Tennes
coal
in southeastern
Should
court have concluded
allege
defendant,
see who
United
illegal
there was an
combination
America,
into
Mine Workers of
entered
conspiracy
or
between UMW and busi-
major
a national
with certain
groups,
if
were
ness
even
producers
monopoly,
coal
to
to
create
specific
to
insufficient
establish
suppress competition,
plain
and to drive
apply
in-
to
uniform terms
(and
marginal operators)
tiffs
other
dustry-wide ?
of business.
Only
questions
the last
two of these
At the outset we note that of all the
pertinent
of the instant
decision
major
companies,
whose economic
appeals. And we decline the invitation
alleged
interests
defendant
advisory opinion
first
write
on the
conspired
joined
serve,
none
as
question seeking
expand
interpret
or
co-defendants
trial.
the views
United States Su
controlling respects
In all
the issues
preme Court,
expressed
particularly
as
presented by
appeals are identical
these
Workers,
v. United Mine
major
with the
issues
657,
(1965);
381
85
U.S.
S.Ct. 1585
Al
subject
cases which have been the
Bradley
3, IBEW,
len
Local
325
Co. v.
original
trial,
judgment, and affirmance
797,
1533,
65
L.Ed.
U.S.
S.Ct.
89
1939
court, Pennington
this
United
v.
(1945),
Hutcheson,
and United States v.
Workers,
(6th
Mine
F.2d 804
Cir.
219,
312 U.S.
Further,
recently
Peck
interest
not combine with
does
ed
this court:
groups,
illic-
the licit
non-labor
*5
agree
District
“[W]e
with the
not
to be distin-
it under
20 are
§
disputed
Court
the
Protective
regarding
guished
any judgment
Wage
construed,
Clause, properly
did
unwisdom,
right-
the
the
wisdom
require
impose
not
Union to
wrongness
ness
the selfishness
wages therein contained on the non-
of which
unselfishness of the end
signatory employers. The Protective
particular
union activities
Wage
capable
is
reason
Clause
two
232,
at 466.
means.
61 S.Ct.
Id. at
constructions,
able
and the District
(Footnote omitted.)
properly
Court
held that
in such cir
Clayton
20, 29
See also
U.S.C.A.
§
§
cumstances the construction should be
52,
Act, 18
Norris-LaGuardia
U.S.C.
adopted
that does not result
a viola
(1964);
3692, 29
101-115
U.S.C.
§
§§
Railway
tion of
Great Northern
law.
Leader,
Apex Hosiery
310
Co.
U.S.
v.
Co.,
686,
Co. Delmar
51
283
S.
982,
1311
S.Ct.
L.Ed.
(1931); Perry
Ct.
L.Ed.
N.L.R.B.,
questions pertaining
Coal Co. v.
284 F.2d
The critical
(7th
1960).
1)
Cir.
addWe
the ob
defendant act-
issue are
whether
servation, however,
without
that even
ed in its’ own
or whether
self-interest
operation
illegal
principle
conspiracy
of this
of law defendant
acted in
competition;
we would
incline to
conclusion that with BCOA to stifle
2) by
proof
did not
a vi
constitute
what
deci-
standard
Act,
olation
the Sherman
the record
sion should be made.
containing insufficient
from
evidence
major
ap-
One
difference between the
conspiracy
which a
or other violation
pellate
Pennington
record in
and that
could
clearly
be found to have been
presented
pointed
herein must
out
be
Pennington,
supra
shown.” Lewis v.
Judges (Judge Tay-
here. Both District
whereas predatory intent essary to find said: Wilson busi- drive small coal Protec- “Having concluded that employer and in order to hold the ness constitute does not Clause tive Sherman Union for violation upon express commitment an Act.’ not to the B.C.O.A. of the U.MW. Court, operator any “In bargain other with Mr. Justice White the na- other than terms joined by Chief Justice War- contract, conclude Mr. does not tional Brennan, stated: did ren Mr. Justice the U.M.W. the issue of whether though expressly, fact, so con- may union ‘We have said that Were this tract with B.C.O.A. wage agreements a mul- make with preponder- being tried the usual bargaining ti-employer unit applicable to evidence rule ance may pursuance union of its own cases, conclude civil would the same interests seek to obtain impliedly did so the U.M.W. employers. No terms from other agree. However, standard laws could case under anti-trust is involved where a labor union limited out on made required by proof, Section ‘clear un- But we think a such behavior. Act, a the Norris-LaGuardia exemption from ion forfeits ordinary standard clearly different laws when persuasion. United civil burden agreed one shown has Carpenters v. United Brotherhood of impose employers cer- set States, bargaining wage tain scale 973; Mine Workers v. L.Ed. 665, 85 U.S. at units.’ *6 Gibbs, omitted; 383 U.S. S.Ct. (Footnote em- at 1591. is the L.Ed.2d The Court of added.) phasis upon the that the evidence language by the Court’s As reflected in this case does not establish record following immediately state- the above unequivocal proof to clear and as such ment, appears Justice that Mr. finding that the warrant the Court in agreement an considered such White pursued policy uniform- its of U.M.W. agreement to tantamount to an to be wage by ity and labor standards competition: eliminate agreement employ- with one or more may employers not group of ‘One ers, distinguished pursuing competitors conspire eliminate to policy upon its own. industry is union from the is the direct in the record to employers if it be- the liable with pursued such effect that the Union conspiracy. party the a to comes agree- own, policy upon not in its though the union’s true even This is Ramsey any employer.” ment with undertak- is an the scheme in America, v. United Workers wages, hours ing same to the secure (E.D.Tenn.1967). F.Supp. employment conditions or other (Emphasis added.) remaining employers from the case the second 665-666, 85 industry.’ Id. at these identical issues: Peck dealt with at 1591. S.Ct. principle is “Plaintiffs’ contention says that effect UMW, thus White combination Justice employers con- wage BCOA, agreed impose some a if union or all royalty some spire forth in the Na- to eliminate scales set competition, is a viola- Agreement operators employers’ all tional Gibbs, if the Act even of the Sherman tion imposition L.Ed.2d of a is the mechanism wage union is free scale which by jury its verdict “While the impose. unilaterally It was had a the first trial case found (that premise purpose between the UMW bargaining was drive large operators put mine smaller business), employers out some operators mine out of business Douglas, joined Jus- Mr. Justice evidence, Judge preponderance concurred; Clark, tices Black Taylor conspiracy not found such jury should ‘On new trial proof’ at shown ‘clear have been if there be instructed Judge Taylor prop- the second trial. bargaining industry-wide collective degree erly concluded agreement whereby employers and less, ‘beyond a reasonable than wage agreed union scale requirement cases doubt’ in criminal ability that exceeded the financial greater ‘preponderance but than pay if some and that ac- of civil standard the evidence’ purpose forc- it was made F.Supp. necessary. tions at is ing employers business, some out of determina- 829. The District Court’s employers union as well judged by tion this standard evi- arrange- participated who probity not dence of sufficient ment with the union should be supported a review been offered found to have the antitrust violated clearly not erro- the record 672-673, 85 laws.’ 381 U.S. at Rule F.R.Civ.P.” Lewis v. neous. at 1595. supra Pennington, 813- 400 F.2d opinions
“In view of two majority justices which previously noted that We joined, it is here determined that recently been denied certiorari has holding District Court’s correct. in relation to interpretation That court’s of Pen- court, from this second nington principle inis accord with the fully. just quoted so we have announced in United States Hutche- that denial While are well aware we son, swpra (that a must act in union affirmance, represent certiorari does furtherance own self-interest inappropriate consider discount we immunity order to retain from the an- completely of certiorari the denial laws), *7 titrust in and reaffirmed Allen Pennington. Supreme Court second The Bradley supra. 3, Co. v. Local No. We granted relation this certiorari had thus understand to teach in the same case court’s first decision : that instructions remanded with had 1) conspiracy employers between court, this or If the trial retrial. and labor formed with the intention interpreted court, instructions those driving competitors of out of busi- erroneously or of retrial course ness a violation of Sherman appeal, to believe find it difficult we Act; ig Supreme that Court would have error. nored the 2) ‘predatory (as by intent’ used (381 Mr. Justice White U.S. (and Peck We believe 668) by Judge Taylor) is mere- Taylor) right Judges were Wilson ly shorthand, employed to describe proof” holding the “clear stand anti-competitive conspiracy; this Act ard of the Norris-LaGuardia 3) applicable anti-competitive conspiracy proof to a proper of such standard by union. proof’. a labor must Act suit be established ‘clear Sherman Carpenters v. of See also United Mine United Brotherhood Workers v. plain- Kentucky which 775 West Coal about States, U.S. United history tiffs-appellants complain. Gibbs, The (1947); Mine Workers United language specific Norris- (1966). 86 S.Ct. Act its “clear LaGuardia indicate that spe- Act states Norris-LaGuardia designed proof” apply standard was cifically : just charges such as these. any asso- member of or “No officer rec- States United organization, asso- no ciation or ognized these facts when said organization participating ciation or Carpenters’ case: dispute, shall a labor or interested charges conspira- responsible “The indictment or liable in be held cy Act. On un- forbidden Sherman for the States court of the United officers, issue, power of the trial court individual of lawful acts agents, except of the Norris-La- members, clear is limited § or 2, supra Stat. participation in, Guardia Act. proof [47 or ac- Note of actual acts, sec- of, of The limitations of that' 71]. or such tual authorization courts the United actual tion are all after ratification of such acts growing out of knowledge all Norris-LaGuar- States matters thereof.” Act, (1964). disputes, labor covered Act U.S.C. dia § § may It come them. before course, impossible for a is, It agree- properly this is conceded except by of ac dint to act labor union grew dispute ment of such labor agents. members, officers, tions of its parties partici- and that all defendant pertinent specifically Even more pated or interested in that dis- proof applicable to this case standard pute.” United of Car- Brotherhood claim fact this action is a is the States, penters and United Joiners v. the Sherman Antitrust violation of 395, 401, 778- illegal plain drive tiffs out business Any national reconciliation conspira Mine Workers. Such policy policy national de- with only by cy obviously carried out could interpretation application mands agents officers, members, the un every la- in this case. Since in instance relationship. acting agency ion in an agreements seeking unions are bor is, course, no doubt that There working wages, employers on hours and agreement UMW and between the conditions, every such instance containing Protective BCOA employer have a both the and the union fully action authorized Clause was strong (albeit separate) for ex- motive agents. Defendant concedes UMW tending employ- case, phase and as field, simple ers the same it would be “clear standard whether policy national to defeat of encour- “preponderance evidence” allowing bargaining aging collective would make no difference. *8 easy implication union-employer anti- of found, conspiracies. we See Mr. Justice But Wilson and trust language Goldberg’s found, of the in Local Union No. dissent Amalgamated 189, agreement- per Cutters & not constitute Meat did se Co., Workmen, illegal conspiracy. also Butcher Tea etc. v. Jewel Plaintiffs 697, 1596, conspiracy Inc., 676, charged, however, 381 U.S. that such (1965); appropriately implied by Re- see also Senate L.Ed.2d 640 could be Cong. p. 163, Sess., port 19. No. 1st from the 72d District Court BCOA-UMW subsequent Supreme contract, plus of Court Two members actions opinion joined Mr. Justice White’s officers and the UMW members shown,” “clearly employed language, organizational in activities and strike describing applicable standard coalfields Tennessee the Southeastern proof. purchase 665, 85 S.Ct. of stock and in defendant’s Douglas’ opin- impact activities, 3) read Mr. Justice We also these purchase (with joined) as members ion which two substantial stock in the concurring point. Kentucky West on this Coal Co. the UMW subsequent cutting” “price ac- agree sec- with this court’s Since we Kentucky tivities of West Coal which above) Pennington (quoted ond decision appellants assert served drive South- applies proof” “clear standard eastern out Tennessee coal TVA to un- appeal, find reason we no to this market. analysis what result would dertake an application a different stand- follow Judge’s analysis The District ard. masterly. evidence he heard is His pages Further, covers 265 of volume with Supplement Federal reasoning and while we affirm in the second purposes it for court, of our decision on the we believe decision facts, ready availability re view its Supreme has Court1 in quote selectively. we shall finding from it “predatory quired intent.” may represented by an- Such intent Briefly put, the District agreement by a union to serve the 1) found in essence that the UMW in its eliminating employer in interests of an organizing activities in the Southeastern competition.2 employer’s economic pursuing Tennessee coalfields was its mind, we With these two standards own and its own members’ interests or not of whether turn to consideration plaintiffs’ BCOA; 2) rather than ap those of the concerning total evidence pellants’ economic troubles stemmed as alleged conspiracy constituted antitrust (or more) geological much from the conspiracy. As “clear of such structures of the Southeastern Tennes deal a somewhat to this we issue see coalfields which made mechanization that made factual than different record oil, gas of the mines to meet electri Pennington case. in the second competition cal difficult and from un appellants’ evidence essence dercapitalization management and bad competitors conspiracy BCOA’s to drive they did from the activities of the 1) of business consisted UMW, 3) that the total did record attempts organize the South- of UMW support charge not conspired that defendant including coalfields, eastern Tennessee Kentucky with West Coal so 2) operations appellants; engage predatory price cutting claimed violent disastrous economic in the TVA market.3 Goldberg and two Mr. 1. While Justice Acts in cases in which the union’s hold that activity members of the Court would larger conspiracy of a upon wages bargaining collective to abet contractors and manufacturers completely from antitrust free monopoly.” hours to create a National Wood dissenting (See Goldberg restraint Justice NLRB, work Mfrs. Assn. v. 386 U.S. Amalgamated No. in Local Union 1250, 1260, 87 S.Ct. 18 L.Ed. Workmen, etc. Cutters & Butcher Meat 2d 357 Co., Inc., Jewel Tea Kentucky We note here that West Coal (1965)), does this view S.Ct. 1596 Company was not a defendant in this majority appear to command conspiracy case as of the time Supreme Court. stipulation of trial. A to dismiss it aas re- 2. The United States by plain- defendant had been entered into Bradley cently Allen discussed the tiffs. This left the UMW as the interpreted holding target thus: alleging of this suit an antitrust recognizing the union “While competi- *9 to drive the BCOA’s immunity might its have had an tion out of business. While this fact boycott the trade had it contribution to justify alone does not dismissal of the Hutcheson, citing supra, alone, the UMW, acted suit the it does seem to immunity intended was not upon held good cast doubt the faith of the Clayton by predatory or Norris-LaGuardia the aspect plaintiff’s intent case. findings Judge’s compete and in on these survive the T.V.A. The District coal market under National Bitu- the included: issues Wage Agreement. minous Coal While not 1) “[Picketing violence and many appears in instances this to have per Act con- of a Sherman se evidence antiquated mining been due to methods strike, spiracy. ratified Thus the equipment causes, and other the or U.M.W., ex- to the picketing, the and fact nevertheless that since remains approval, that it received U.M.W. tent single in- there has not been a upon unconnected not the violence and mining oper- stance of a successful coal may U.M.W., be the may may the record ation the in Southeastern Tennessee they not dem- to as looked coal under field National Bitu- the purpose of the the U.M.W. onstrate conspire Wage Agreement minous Coal impose the with others spite of the fact the feasi- Bituminous Coal National facing oper- ble alternative most coal Agreement upon the Southeastern operate ators in the area under record coal field. The Tennessee go the national contract or out of busi- regard any direct to show fails ness. conspiracy. evidence of a Sherman inference can such an Whether “Further than this the Court cannot upon depend review must drawn go. proof appear, not Clear does either present all the evidence the directly by inference, U.M. the case, phase the to be followed unilaterally W. acted than in fur- upon all of all of the evidence review pur- of its own interests therance phases the case. poses in its activities the Southeast- “Upon as it period ern review Tennessee coal field regard Tennessee relates to here Southeastern under In this review. activi- plaintiffs rely upon and of the U.M.W.’s coal field ad- defendant’s following therein, vocacy conclusions ties mechanization as a solution clearly supported by appear operators’ competitive to be difficul- ties evidence: as one element of demon- strating conspiracy, successfully “(1) operate To attempting U.M.W. was in fact to force producers Tennes in the Southeastern mechanization coal field which compete see field must be able to coal by geology it knew to be unsuited market. on the T.V.A. coal survive therefor at a U.M.W. rate pro more of all coal Since 1954 50% impossible knew was for all but Tennessee has in the duced State largest operators coal in the nation. its T.V.A. find market with the had to appear This contention does not to ac- high figure That reached as as 78% cord In with the the first evidence. still in 1956 and 1962 was at 64.3%. place, appear not does that mech- geological “(2) condi- Due anization would be ineffective in ren- coal tions, Tennessee the Southeastern dering the Southeastern Tennessee produc- level field cannot achieve competitive. coal Both & Allen field principal tivity equivalent to that of its Mining Grundy Company Garcia competitors market. on T.V.A. coal appear way to have been well disadvantage competitive is offset This raising productivity toward to com- quali- transportation petitive levels mechanization when advantages ty has over the field their efforts thwarted or halted competitors T.V.A. principal by seniority and strike difficulties. steam Creek market at Widow’s place, appear does second plant. beyond that mechanization is the eco- larger capacity nomic all but “(3) period since 1960 the In the producers on the national scene.” Southeastern coal Ramsey unable been v. United Mine Workers Tennessee field *10 (E.D. Accordingly, mountainous. America, F.Supp. min- most ing underground, Tenn.1967). must be done find any conspiracy between the [******] “Reviewing the light, plaintiffs the the evidence the Court deary the victims is unable as a whole U.M.W. reflects field does not the mining due to excessive overburden ex- aat cept in limited areas. “These Southeastern Tennessee disadvantage geological lend itself conditions many other coal coal field place strip example, only For non- fields. other whereas operators or coal sup produced of the coal organization in Tennessee to eliminate labor 32% industry produced is from seams over four feet press competition in the coal thick, produc suppress the coal comes from toor eliminate 65% plaintiffs. seams over four feet thick in Unit- of coal sale tion irregular ed States as a many favorable whole. The inferences While seam, nature of the reason plaintiffs’ can thinness and contentions evidence, prob- pose difficult roof ably conditions all from the drawn be equally lems for every rea mechanization. no less instance a to the drawn be inference can sonable “Geological among conditions are coupled contrary. latter, when The plaintiffs matters claimed many wit positive denial with the rendering application of the National any conspiracy, as well as nesses Wage Agreement Bituminous Coal other inferences favorable economically impossible, this field permit contentions, do not defendant’s demonstrating conspir- therefore proof of an finding upon clear based purpose atorial of the U.M.W. in dis- F.Supp., conspiracy.” 265 regarding seeking these conditions and supra at upon to force national contract field. appropriately This can more be 2) of coal in the South- “The seam development evaluated after of the field, called the Tennessee coal eastern history of the field its relations with seam, moun- is located in Sewanee say the U.M.W. Suffice toit at this an eleva- of the State tainous area geological time that conditions It is approximately feet. tion of competition been a course factor in metalurgieal grade high coal. a rather producing with other coal areas and making is, coke usable That is upon mining practices their effect However, metalurgieal purposes. followed the Southeastern Tennessee geological disad- has certain the field However, large- field. other conditions vantages. principal of these The ly geological unrelated to conditions average The of the seam. the thinness played part. have likewise These appears seam thickness the Sewanee management policies, general include inches, vary but to 42 from 36 undercapitalization throughout respect. irregular highly in this seam field, pyramiding leases, na- subject squeezes and seam is market, ture of the T.V.A. coal unpredict- very irregular and in a rolls practices upon and attitudes manner; is, the thickness able bargaining workers and collective conditions these varies and the seam practiced in F.Supp., field.” 265 may in one pattern. The seam have no supra at 424. of a few place squeezed matter to a be entirely 3) may “Turning activity be first to the in thickness inches places Kentucky (and Nashville) pinched West rock. spot market, may thickness into a T.Y.A. rolled is the con- coal plaintiffs tention up roof condi- Hazardous to six feet. these especially companies dumped extraordinarily encountered, often tions are large quantities spot rolls. in the areas of largely steadily declining prices, market at topography area is *11 666 10th, un- during period 11th and 12th bids were from particularly forcing price 13th was success- through successful. Its bid 1956 highest ful, again suc- but it was the per t. u. 1956 million b.
from 21.370
Its 14th and 15th bids
per
t. u.
cessful bidder.
b.
million
down
16.500
translating
price
17th
u.
unsuccessful.
Its 16th and
(In
t.
were
a b.
price
were
at
same
tonnage price,
quality of coal
bids
bid
to a
bids,
However, on
14th and 15th
were successful
significant
factor.
is a
per
time.
In the
it was the
average
million
16th bid
one cent
highest
approximately
successful
equal
bidder
t. u. is
b.
per
250
basis.)
tonnage price
there
several
lower bids.
17th
were
ton on
bids,
plaintiffs’
19th
same
The 18th and
at the
does not sustain
evidence
charge.
previous bids,
price
Kentucky
as the four
were
Although
bid
West
The 20th
was suc-
was
unsuccessful.
bid
each instance
its bid
highest of-
cessful but was
second
did
market
well above the
analysis
there
no unsuccessful
fer and
were
single
An
award.
receive
21st
bidders on this solicitation. The
1958 reveals
in 1957
the bids
bid,
price,
Kentucky
on
at
same
was unsuccess-
22 times
bid
that West
successful,
only
market,
five
ful.
22nd bid
but
spot
was
received
but
being
only by
per
.02 mils
million
t. u.”
awards,
all
b.
bids
these successful
supra
Company’s
F.Supp.,
Union-
265
from Nashville Coal
T.V.A. Shawnee
town mine to the
*
-x-
*
*
*
-X-
single
instance
plant.
In not
steam
following
“The
table is reconstructed
Kentucky
In
bidder.
low
was West
from
record
reflects the bid-
eight
unsuccessful.
it was
the first
bids
ding
Kentucky
of West
T.V.A.
award,
got
but
an
period
ninth
On the
bid
from
term coal market in the
highest
through
1959
1963:
successful bidder.
Its
was
T-3
lowest
4th from
27
$2.90
7/27/59
None
lowest
19th from
$2.90
9/60
2/
None
lowest
5th from
$3.00
1/60
9/
T-24
lowest
3rd from
$2.90
2/14/61
T-18
lowest
from
7th
$2.90
9/18/62
None
lowest
from
3rd
$2.90
1/15/63
None
lowest
2nd from
$2.90
6/19/63
T-6
Low
bid
$2.90
10/15/63
plant
Ken-
Creek
West
not reflect
the Widow’s
While the
table does
above
tucky
evaluations,
than third
never closer
due
fact that the bid
only
bidder,
costs,
lowest
and this was
transportation
from one
varied
freight
another,
re-
rate
plant
after
Section
steam
the evaluations
placed into
effect.
those
duction
been
used
either
made, or in
Ken-
West
award was
event
sought
regard
plaintiffs
“In bid,
tucky
unsuccessful in its
conspiracy claim
to substantiate
to the
evaluation most favorable
freight
rate reduction
reference
plaintiffs.
instance was
one
granted by
Commerce
the Interstate
Kentucky
the low
West
bidder and
in 1960 under Section
Commission
plant
year
en-
was at the
where it
Gallatin
In that
statute.
relevant
advantage.
Railroad
joyed
At
transportation
The Louisville
Nashville
Valley
requires that
Company
Au-
all
of a
Tennessee
elements
cause
*12
requesting
thority joined
re-
action
a
for antitrust violation must
in
rate
be
railway freight
proof”
for made out
“clear
where
of
rates
duction
my
defendant,
hauling
of
from the western area
union is
brother Ed-
coal
as
holds,
Kentucky
steam
or whether
“clear
the Widow’s Creek
wards
to
being
proof”
request
to
6
plant, the
reduce
standard of Section
is limited
per
authority
or
ton to
to
determination
rate from
$2.40
$1.60
depending
members,
agents”
per
ton,
upon
officers,
or
“individual
$1.40
op-
organ-
or
This reduction was
act for a labor union
volume hauled.
ization,
posed
in
coal
I contend. Such Section 6
South-
provides;
coal field. The re-
eastern Tennessee
of Norris-LaGuardia
granted by
duction
the Interstate
any
or
“No officer
associa-
member
no
There is
Commerce Commission.
organization, and
tion or
no associa-
any
evidence that this had
any
relation
organization participating
tion or
or
involving
either the U.
dispute,
in
interested
a labor
shall be
Kentucky
Company.
M.W. or West
Coal
responsible
any
held
liable in
court
ap-
any event,
an
since
involves
States for the unlawful
governmental
peal
agency,
officers, members,
acts of individual
could not
Act vio-
involve Sherman
agents, except
upon
proof
clear
v.
lation. United Mine Workers
participation in,
actual
or actual au-
Pennington,
S.Ct.
86
acts,
of,
thorization
or of ratifi-
1585,
tered verdict which found question olations. critical guilty the Mine Workers of such viola whether the United Mine Workers and Pennington Supreme tion. II was the Operators the Bituminous Coal Associa- I, Court’s reversal re manding agreed wages the case for tion to control a new trial. Pen- ganization participating tion or favor the conditions or interested in a paragraph dispute, responsible and all other terms labor shall be held any conditions of this Contract and will use or liable in court of the States United continuing and exercise its best efforts unlawful of individual offi- acts members, compliance cers, agents, except upon to obtain full therewith parties signatory proof participation in, each and all the clear there- actual of, acts, to.” or actual authorization of ratification after actual such acts any suppli- knowledge (Emphasis 2. “No officer or member of association thereof.” organization, ed.) and no or or- association this, working Dis- “does not exist in cases where labor On conditions. or- union combines a non-labor with said: trict ganization in, competition to restrain “Having Protective that the concluded of, monopolize marketing or to not constitute Clause does goods in interstate commerce.” 325 upon express commitment F.2d at 809. B.C.O.A. not bar- the U.M.W. gain say operator any While we cannot facts with parallel I nation- case bar than the terms other respects, contract, all we satisfied not conclude the this does al plaintiffs’ case did not did in in that the U.M.W. issue whether portray probative force fact, though expressly, a vio- contract more so does lation the Sherman than Were B.C.O.A. with the preponder- We held that being record here. there United usual tried di- applicable Mine Workers not entitled to a rule the evidence ance of rected and that was suffi- verdict there cases, conclude civil would Court jury permit impliedly to find cient evidence did so U.M.W. had, to However, the United Mine Workers agree. standard group damage plaintiffs is involved union where —a small mine Sher- required proof’, ‘clear Section —violated judgment Act, man Act. We affirmed the 6 of the Norris-LaGuardia ordinary which was entered on the verdict. different standard persuasion. United civil burden of re United States Carpenters v. United Brotherhood States, us, v. Pen versed Workers *15 775, 395, 67 91 330 U.S. S.Ct. nington, 657, 1585 381 85 S.Ct. U.S. 973; Mine L.Ed. Workers (1965)—Pennington however, t, II—n o Gibbs, 1130, 16 86 ground violation of on the that a case of F.Supp. at 412. L.Ed.2d 218.” 265 out, Act the Sherman had not been made (Emphasis supplied.)3 but remanded a trial because of new Supreme some instructions which Pennington In Mine Work v. United given. Court held should not have been 1963)— ers, (6th F.2d 804 Cir. nothing had The criticized instructions Pennington Court affirmed I — this to do with the standard of verdict, judgment, jury entered governed They plaintiffs’ af burden. guilty finding the Workers United Mine holding Pennington, et firmed our that violating jury Sherman Act. al., go had out a case made damages, plaintiff $90,000 awarded plain jury. This is made the Court’s which sum the District was trebled disposition of the claim Mine Workers’ Court. As will later here be discussed directed. that a verdict should been in, District advised the jury plaintiffs’ make that burden “We first consider UMW’s contention was by preponderance denying their trial in case that the court erred affirmance, our fol evidence. In we its motion for a directed verdict Supreme notwithstanding judgment the United ver- lowed States holding Bradley dict, Court’s in Allen Co. v. since determination UMW’s 3, IBEW, finally Local re- favor this issue would (1945), controversy. question 1533, 89 L.Ed. granted that ex solve the emption presented phase from the of the case is unions provisions Act Sec in the circumstances of the Sherman whether Clayton Act, exempt liability union is tion U.S.C. case the § under We think laws. need which the make it clear that we the “clear standard We should findings Judge applied making wheth- his do not reach consideration of was findings improper. Judge’s er “clearly the District only that erroneous.” We hold clearly negative ordinarily the evidence in the have reference the answer to direct union’s motions were cor indirect cir- and that * * * rectly cumstantial evidence. 381 U.S. at S. Indi- denied.” knowledge (Emphasis supplied.) rect evidence at 1589. Ct. (Em- is inferred from known facts.4” Therefore, consider we the Su phasis supplied.) preme Court has the evidence said legally equivalent case in the at bar — It should be noted that in the Mine Work- permit a factfinder —would appeal Penning- ers from the verdict —jury judge find the United —to I, Questions ton none of its In- five violating guilty Workers style attacked volved in- above Sherman Act. The accused They question struction. did the in- here, I, as well as structions which the so-called National Bituminous Coal erroneous, found those did not relate but Wage Agreement, with the addition proof. appeal to standard of In un the Protective Clauses us, urging that a verdict should have (as charged by plaintiff) der which “the proof, been directed for insufficient into, Union bound itself not to enter be Mine Workers contended that Section 6 party to, permit any other kind of of Norris-LaGuardia should have been industry except labor contract applied testing whether there was Agreement signed National which it jury sufficient evidence to allow the Operators with Bituminous Coal Asso guilty find the Mine Workers of Sher- Pennington, ciation.” Lewis v. F. man violations. In our Supp. at 820. Pennington I, rejected 325 F.2d we Pennington I, charge of anti- finding such contention the Dis- trust violation the Mine Work- correctly trict submitted cross-complaint ers was made in the jury by sustaining to the Dis- Pennington, general et al. In his Judge’s sub- trict denial of the Mine Work- jury, mission of the case to the the Dis- which, ers’ motion for trial inter new Judge charged that, trict alia, again asserted that 6 of Section controlling Norris-LaGuardia cross-complainant] “before it [the can *16 rule. cross-claim, recover on its it is re- quired to make out its case substan- In their brief to this Court in Pen- tially alleged by as in the cross-claim I, nington the Mine Workers asserted: ** preponderance the evidence *. * * * already observed, Phillips’ “As [Pen- In upon order to recover nington] only prove burden was not conspiracy, Phillips Brothers conspiracy but, the unlawful as [Pennington] by prepon- must show charged, prove by trial it court derance the evidence con- that * * * proof’.5 ‘clear spiracy Not is ‘clear during existed * *
period
proof’ lacking,
absolutely
of the case
there
no
*. The bur-
is
proof
preponderance
den of
proof whatsoever.”
It
be
officer,
should
mentioned
agents,
that
the District
individual
except
members or
jury
did
upon
proof
instruct
par-
“clear
clear
of actual
proof”
required
jury’s
ticipation in,
of,
consid-
or actual authorization
particular
act,
eration of whether
acts of un-
or of ratification
of such acts
by
ion
knowledge
members had been authorized
after actual
thereof.”
charge
United Mine Workers.
jury
upon
He instructed the
This
awas
correct
the limit-
application
Norris-LaGuardia,
follows:
ed
Section 6.
“Similarly,
through
unions act
their of-
ficers, agents, employees
earlier,
Judge,
member’s
5. As set out
the District
participating
and no union
proof,”
interest-
his instruction
as to “clear
cor-
dispute may
rectly
application
ed
a labor
re-
held
limited
of such rule to
sponsible
any
or liable in
by
court of the
the matter of authorization
of acts
agents,
United States for the unlawful acts of
etc.
mediately preceding
petition
Supreme
the above are both
In
Court
their
Judge Taylor
Penning-
from
did
the Gibbs case.
for
of certiorari
review
writ
opinion in
I,
included not cite the
Mine Workers
ton
the United
Pennington
support
Questions
for the new
II as
the follow-
Presented
its
proof”
ing:
“clear
rule that he announced.
Gibbs,
His reliance was
but
Gibbs
charged with
a labor union
“Where
nothing
with
case had
whatever
do
employer
having
conspired with
Clayton
the Sherman Act or the
Act.
groups
of the Sherman
in violation
.
in-
had sued
Gibbs
Act
executed
Anti-trust
when
damages
dustry-wide, multi-employer
for sec-
collective Workers and recovered
conformity
ondary
boycott
bargaining
and a state common law
question
injunctive
a federal
tort. The relevant
wheth-
orders of
court,
violence
denials
er UMW could be held liable
union
district
uncontradicted,
by
conspiracy
and committed
some of
members
mining
begin
stopping
proving
Gibbs’ effort to
evidence
there is no direct
merely
jury
operation.
Supreme Court
conspiracy, may
infer
court
Norris-La-
un-
held
Section
the existence
required
make
under Guardia Act
Gibbs to
sanctioned
ion activities either
jurisdiction
autho-
“clear
rized,
that the UMW had
or within the
law
Board,
approved
or ratified
violence.
Relations
Labor
National
light
holding:
immunity
la- This is
case’s
proof re-
the clear
bor unions and
required
proof,
either
“What is
quirement
the Norris-
Section
approved
union
violence
sup-
(Emphasis
Act?”
LaGuardia
occurred,
participated ac-
or that
plied.)
tively
knowing
tolerance in fur-
holding in
Supreme Court’s
We
read
ac-
ther
in themselves
acts which were
II,
rejecting
assertion
or intention-
under
law
tionable
state
presented
question.
ally
previous violence
drew
Taylor’s
at
for their force.” 383 U.S.
District
the first
at 1146.
III—was
retrial —
court
announcement
not,
It found that Gibbs’
did
liability under
insulated from
unions are
proof,”
the union’s
“clear
establish
violations
the Sherman
unless
participation
of or
authorization
proof” stand-
the “clear
are made out
bar,
violence committed.
the case
He stated:
ard
Norris-LaGuardia.
violence,
responsibility
except
toas
necessary
standard
“The
*17
issue
to whether what
there was no
governed by
predatory
is
intent
show
by
done
the Mine Workers’ officers
was
Supreme
decision of
recent
agents
approval
union.
had the
Mine Workers
in United
question
Na-
raised.
No such
was
The
(C.A.6, March
v.
America
Gibbs
Wage Agreement
tional Bituminous Coal
1966),
86
U.S.
Wage Clause
and the 1958 Protective
F.Supp.
829.
at
L.Ed.2d 218.”
Op-
Bituminous
made
Coal
between
supplied.)
(Emphasis
erators
Association and
by
admittedly
that:
and further
executed
Workers were
proper
union
authorities
apparent
in
that the Court
“It seems
way in-
in no
Norris-LaGuardia was
interpretation of
by
case
the Gibbs
critical matters.
in these
volved
statute,
placed a
bur-
heavier
has
plaintiff in this
a
proof upon
den
application the Norris-La-
The
F.Supp.
829.
at
type
case.” 257
stand-
rule
Guardia “clear
(Emphasis supplied.)
proof
Act suits
in
ard
Sherman
genesis
in
Brennan
labor unions
Justices
quotations from
The
F.Supp.
Pennington, 257
Judge Taylor
Lewis
by
im-
set out
Harlan
degree
III).
erly
(.Pennington
reading
concluded
A
of the
that a
‘beyond
Judge
opinion
Taylor
less than the
that case
reasonable
in
will
rely
requirement
doubt’
criminal
in
cases
did not
disclose
he
Pennington
greater
‘preponderance
Supreme
opinion in
but
than the
Court’s
ac
II
the evidence’ standard of civil
for the rule
announced—Gibbs
he
necessary.
authority.
F.Supp.
tions is
at
his
first intimation
Penning-
determina
opinion in
829.
District Court’s
Court’s
judged by
tion that
evi
ton II
came in
this standard
contained such
rule
opinion
probity
in
dence
had not
at
sufficient
Wilson’s
supported by
opinion
is
bar
Pen-
been offered
review
and in
Court’s
in
IV,
(1968),
clearly
nington
af-
merce
the several states as al-
Wilson further observed:
leged
complaint.
in the
In this
“Furthermore,
for which
reasons
connection,
the Court
observes
loans
investments
made in
the extensive evidence introduced
Kentucky
subsidiary,
West
and its
plaintiffs
violence in the coal
fields
Company,
Nashville
must
Coal
like-
is consistent with the Union’s deter-
largely
inferred,
wise
the rea-
mination
unionize the units
given by
doing
sons
so
U.M.W. for
area, and,
light
entire
in the
scrutiny.”
F.Supp.
will not bear
just noted,
Court’s conclusion
is in-
(Emphasis supplied.)
at 414.
sufficient
to show a Sherman Act anti-
It
indeed
F.Supp.
trust
would
be over kind
accord
violation.”
at 864.
(Emphasis
supplied.)
credence to the asserted
claim
making of the National Bituminous Coal
Thus,
Taylor’s
it is clear that
ex- Wage Agreement
and the Protective
oneration
Mine Workers
was
Wage Clause between the
Mine
United
dependent upon application of the clear
and their
Workers
controlled West Ken-
rule of
He
Norris-LaGuardia.
tucky
Company
Coal
an arm’s
was
plaintiffs
found that
had not made out a
length” transaction,
conspiratori-
free of
pre-
case under
the traditional
rule of
predatory
purpose.
al and
The Mine
ponderance
the evidence.
eight
twenty-five
Workers
lost
gener-
Plaintiffs’
evidence in this case
million
which it
dollars
invested
ously portrayed
propitious
management
how
side of the
transac-
accused
setting
victory
for the
victory,
achieved
apparently
tions. For
its
imple-
BCOA
willing
Mine Workers
pay
this bill
as well as
menting
agreement.
many
The District
hundreds
of dollars
thousands
length
out
rele-
paid
depredations
sets
which it
for the
Among
vant
things,
facts.
reign
it was
violence —the
terror —which
shown
driving
employed
mining
Mine Workers loaned to
Cyrus
one
$25,000,000
Eaton some
en-
those who could not
the terms
live with
acquire
able him to
them control of
the National Bituminous
for
capital
Kentucky Agreement.
shares of West
See Flame Coal Co. v.
Company
biggest
Coal
Workers,
(6th
of the mem- United Mine
2d 716 signed the Bituminous 169, 103 and National L.Ed.2d 81 S.Ct. U.S. Wage Agreement and its Protective Coal Mine Work (1960) ; United v. Gilchrist Wage' Clause, 1961). Work- nor when the Mine (6th Dis Cir. ers, F.2d 36 big $25,000,000 aid the invested ers described the Wilson trict promise companies fulfill the language: coal in this conduct Workers’ plan. reflects in this case “The ‘history come to Southeast- the bi- Peace has indeed again once Appalachia, in ern Tennessee’s but industry is written coal tuminous peace obedience to over- An- is the ink.’ Sunshine as well blood big big Adkins, labor. Of lords business v. Coal Co. thracite Douglas, situation, Mr. Justice 265 this 1263.” L.Ed. 60 S.Ct. Pennington concurrence, appropri- his F.Supp. at 428. ately observes: further, design “Congress oligopoly violence, can great bloodshed deal of “A society, for our But if chooses. property ac- has and destruction long as business alone cannot do so companied [discussed the strike suffering, depriva- the antitrust Nor laws enforced. opinion]. Much working should business and labor occurred. has tion want re- hand-in-hand allowed to make field Tennessee coal Southeastern change design F.Supp. blighted basic of our so- area.” 265 mains enterprise system.” called free U.S. at at 1595-96. up the situation as follows: He sums judgment We would vacate the of the op- period coal 1960 the “In the since District Court and remand the cause Tennessee erators in the Southeastern proceedings further consistent herewith. compete have been unable coal field market coal T.Y.A. survive Coal Bituminous under the National many in- Agreement. inWhile appears been due to have stances this mining antiquated methods causes, equipment or the fact America, UNITED STATESof since remains that nevertheless Plaintiff-Appellee, single instance has not there been mining operation a successful field Tennessee coal MILLIKEN, the Southeastern Randall Theodore Defendant- Appellant. Bituminous National Coal under the spite Wage Agreement and this in No. 24153. alterna- fact that the feasible Appeals United Court of States facing tive most coal Ninth Circuit. operate national under the area was to Sept. go business.” 265 contract or out of (Emphasis supplied.) F.Supp. at 430. nothing in the record There conception and suggest that the case to grand plan we
prosecution deal irresponsible un- the work of
with was enterprise di- derlings. The total authority. high echelons rected people Mine Workers Top Operators As- Bituminous Coal