*1 CO. HUDSON WATKINS COAL et al. v. 8651.
No. Appeals, Circuit
Circuit Court of Third
Argued 1945. Jan. Sept. 5, 1945.
Decided
Rehearing Denied Oct.
812 Stanley McDonough G. and F. James Coar, Connolly, Scranton, both Pa. Frank (J. Scranton, Pa., brief), on the appellants.
for George Szabad, Washington, D. C. Sol., (Douglas Maggs, B. and Bessie Mar- Sol., golin, C., Washington, both of D. Asst. Votaw, N. Regional Atty., Ernest of Phila- delphia, Pa., Leet, Harry Atty., M. and Department Labor, United States Washington, C., brief), Wage D. for Division, Hour amicus curiae. Houck, Scranton, R. S. (Francis Pa. Mahon, Scranton, Pa., D. Thomas Ennis, City, L. of New brief), on the York appellee. for Before GOODRICH McALLIS- TER, Judges, GIBSON, Circuit Dis- Judge. trict GOODRICH, Judge. Circuit This ais civil action based on the “Fair 1938”,1 Labor Standards Act of to recover unpaid overtime claimed under 7§ McALLISTER, Judge, dissent- Circuit (a)2 liquidated damages, reasonable part. attorney’s fee and court costs claimed un 16(b).3 der Defendant the owner and § operator Pennsyl of certain coal mines in plaintiffs vania and around which employed. employees That these are with disputed. in the Act is not Thirty-eight employees complaint filed seeking recovery as indicated. Defendant company complaint coal answer to application stay made for suit arbi- until tration had had. reply Plaintiffs’ application was that the contracts set 1 1938, Chap specified Congress in excess hours June above Act of at a seq. rate less than U.S.C.A. 201 et ter one-half times § provides: employed.” 207(a) of rate at which he is Title U.S.C.A. § except employer shall, provides: 216(b). § Title “No as otherwise 29 U.S.C.A. section, “Any employ employer provi- in this who violates the engaged in who is com- sions of his section and section 207 of this goods production employee for title shall merce or liable to em- ployees commerce— affected in amount of their longer forty- “(1) unpaid unpaid wages, a workweek than minimum or their during year compensation, from four hours the first as the case section, be, equal of this and in effective date additional amount as longer forty- liquidated “(2) damages. than for workweek court during year shall, second in such action in addition to judgment date, plaintiff plain- awarded such longer tiffs, forty “(3) attorney’s workweek than allow a reasonable fee to expiration paid by defendant, after second and costs of the year date, from such unless such action.” compensation employment receives his Period, upon which 1. First October in defendant’s answer and out 1, 1939. illegal November affirmatively relied were defendant public policy against and void as plain- During period some trary or- Act. The District oth- hourly rates and paid straight tiffs were “stayed until arbitration dered that trial *3 monthly defendant straight salaries. The ers in terms accordance with the has been had group company that neither coal admits agreements This is the of the and one-half any time paid were appealed A brief also from. has order 1, 1939, wages before November filed for the Administrator due for but the overtime contends Division, Wage Hour United States and paid “ac- period means of an by later was Department curiae. of Labor amicus This conclusion is cord and satisfaction”. by stipulated matters of fact were Certain disputed ground that plaintiffs on the by parties,4 will later be considered employees was a by whatever was done conjunction requirements of the in with the change mere and to “waiver” ineffective matter Act. Our conclusion is rights Act. their under the arbitration, proceed in should but to plaintiffs employed during the Since were rulings accordance with the of law here- period they were contention and since under inafter set out. provid- and one-half rate the time separate naturally weekday forty- into three events in the for hours over ed Act periods, four, distinct each of prima which cen- perfectly it facie clear upon different ters a em- is indicated on behalf of such period Act. The extends from the ef- a for the ployees they claim Act, 24, 1938, fective date of October together to entitled with 1, 1939, alleged But, until November when damages attorney’s liquidated an fee. formula for method overtime was an- says company, settled all that contro- period nounced. The second versy by agreement May, extends made May November until company when the union between Union-Operators Agreement agent bargaining that union as the authorized day period employee-plaintiffs. went into effect. third these settled We subsequent May 1, by covers time to the provision in the contract that “The 4 “Agreement swer, power, as to Facts and none of the electric or any preliminary otherwise, produced plant purposes “For hear- in in which any upon in the above case entitled them worked was used in trans- portation separate hauling unpre- and distinct other than defense Defend- in pared agreement averring ant’s ar- coal mines to Answer out the breaker application stay prepared bitration and its where was for market. proceedings “(6) all this such before court until That the various due bills of John by had, photostatie copies arbitration has been Sawczak are correct attorneys following agree original by their bills him due to to issued defend- ant facts: and are of all illustrative due bills “(1) pleaded by plaintiffs several in contracts received the various herein originally employed hourly Answer were made as there- Defendant’s on an basis. copies alleged in and the thereof attached “That various bills of John K. due photostatic copies orig- as exhibits Hohn said Answer are true are correct copies original by correct inal him contracts. due bills issued to defendant defendant, “(2) The the Hudson Coal of all due and are illustrative bills received party plaintiffs Company, originally ais herein these contracts. the various employed monthly “(3) Plaintiffs members of District basis. agreed No. 1 of the United Mine “While has Workers defendant the fore- pro- going stipulation in America all times involved reference to due bills these ceedings. request plaintiffs, at the refrains from employed offering any explanation “(4) Plaintiffs were at all times of said bills due continuously ‘occupations relating manned’ with evidence the conduct of meaning phrase parties subsequent in the of that as used to effective dates Wage Agreements paragraph respective involved, (3) the last of section Agreement May 7, 1936. bills, ex- because it believes that such employed planations “(5) Plaintiffs were times at all and evidence are irrelevant and occupations in and about the issues before defendant’s immaterial the Court necessary mining hearing prepa- preliminary motion, mines this may properly ration of anthracite coal for capacities in the market be heard and Complaint stated and An- sidered at time.” adjustments wage subject herein for em dispute. is employment That their serious working forty-two customarily ployees hours is covered Act is con- week, more, full set May, constitute ceded. The amount which claims, tlement and satisfaction of all their if due them under the Act be math- any, against signatory ematically for overtime simple calculated arithmetic operator prior arising employment separated once the out into .”5 1,May 1941 overtime hours.7 have then no We dispute respect settlement erage cov- What of this the effect clause have, or amount here. We involved authoritatively ? It is now instead, pur- of whether a employee, that a settled waiver an even ported settlement can be modi- effected seal, rights against a release under of his upward fication formerly scale employer under the Act is effective *4 words, In existing. company, other the subsequent bar him from assertion of obligation meet its by incurred reason rights. Savings Brooklyn Bank those v. pay says its employees, failure the that in O’Neil, cases, companion 65 its S.Ct. the future it will its so men much. this, flock of decide do the well as That, says, may stipulated be aas settle- considered cases Circuit Courts of the District Courts and ment accrued claims under the which have Act Appeal.6 But the employee. not We do think Brooklyn Savings Bank decision the Court compliance this is with the The Act. his- might that considerations indicated other tory of concerning the it and discussions paid by employer if the an sum to an judicial interpretation the of the intent of employee was the “result the settlement developed by Act have been us for * * * dispute respect fide with a bona Supreme brought highlight Court and into coverage or amount.” The inference is by dissenting opinions. various We think were, employer if that between change wage that is not a scale employee, dispute either as to whether settlement for amounts admitted under by or, an was covered Act prior adoption Act of the new coming much he to him how had rea so. and that scale that case is like waiver provision of the
sons settlement Supreme case which the Court has declared dispute between the two of their not valid settlement under the statute. proper circumstances, may, up held. The soundness of this conclusion demonstrated, think, But do we not see how facts of we further little case, analysis rate on the state of might considerations which us, bring now before bear claim differences record between a waiver exception involved within here tioned men the settlement dispute fide bona per Supreme as legally mentioned Court. The of these identity company urges missible. payments the increased un adjustments through wage lawsuit. We der is established their do advantage having adjustments understand the hours or these permanently not that terms of in May, 1941, corporated wage upon they prior which worked equiva- scale as the
F.Supp. Ky.1941, 41 Rigopoulos F.2d Fleming, Wm. Cuneo F.2d Dierks, C.1942, Fleming 140 F.2d 1941. Cir., 1942, Co. 1944, 6 Fleming 5 Section v. F.2d 622; C. 146 F.2d Lofton, Printing Lumber Barry, v. 829; 826; 151 A.L.R. 115; Warshawsky, McNorrill v. v. 7, F.Supp. F.Supp. 131 F.2d et al. v. Cir., 10 Kervan, Wage Travis v. Atlantic Co. v. 441; Inc., D.C.D.Mass.1942, & Industries, Cir., 1943, Carleton Coal 363; Seneca Agreement Post 1126; 518; 2 Co., Gibb, 126 F.2d Ray, Cir., Cir., Hutchinson Screw et 136 7 8 Coal & Johnson D.C.E.D.S. Birbalas v. al., Cir., 1944, Walling, Cir., 1942, D.C.W.D. F.2d 1943, 2 Co. v. May, Coke 359; 537; Cir., 140 v. v. 5 ed justed intendent a Board states, pute. mission of quent “disagreement time does not as worked is a ters as determination * * * interpretation 7 scope any way growing While * employers * * For the Award of the Strike Com agreements "that miner too imply we consultation Conciliation”. from total hours manager large” later matter for [*] * miners continued in all subse be referred to conclude that such mat employed” difficulty” between to “be settled or ad out of it is a matter of dis [*] between the or either directly arbitration, application, mine which is “of agreed relations and over interest well parties, mines, super upon or complies under the Act. If formula was payment lent of the however, remembered, actually applied determine then the Act. It must be obviously legality for over- its If is irrelevant. right one-half failing applied pre time, damages legality plus liquidated then turns its cisely it, the em- the same the cen get right considerations as individual period, tral and would ployee, a criminal nor even of the third sanction conjunction employees’ bar- better considered in general right given to the . question em- gaining individual unit. Unless an employ ployee company’s remained in question of The central second adoption long enough of this after the is, really period, that whether a formula was wage he paid increased scale to be whatever adopted, can be answered consider wage coming had under the Act before paid. what was and how it was effect, scale he has not been com- went into language itself is not at the clause Furthermore, pensated requires. as the Act revealing. “forty all words know, do nor how it could see pro week shall be the basis for a formula” demonstrated, increased how much ducing equal equal earnings for time worked compensa- payment scale was nothing beyond indicates an intent ex due under the Act and how much of tion pressed part on the of the Conciliation pres- have resulted from economic adopt which intent Board to a formula *5 agent bargaining sure or how much imputed parties principles might be to on naturally on rising wage of scale it came is, however, agency.9 Our market. The states that contested clause with intent but with intent. realization of adjustments claims, wage to “all apply out, pointed As the District Court the effect any, very overtime”. We think of the resolution and entire series of language nature of the used that the shows agreements which all for action was inclusion overtime claims but by Board, the Arbitration “was to author part, perhaps only part, a nominal employer industry adopt ize each to bargaining wage the new scale which any which comply formula would with the was determined. Our conclusion that is * * Act *. There is doubt that no the terms of the new scale not a is * * * * * * a formula could be settlement sufficient under the Act in the company worked out.” The coal used the light above decisions reasoning go step same further and one cited. say quod po- “Id certum est certum reddi it is thing say testi.” But one Period, that a 1, 1939, 2. Second November authorized, say was 1, formula even let us in- May 1941. tended, quite a bit more to conclude period running The second from Novem- actually applied. that it was 1939, 1, May ber involves the urges The defendant that “the Board of interpretation of a resolution the Board September Conciliation the resolution of 5, September 1939, pro- of Conciliation of 5, provide sought general for- viding:8 “(1) compliance In with the ba- * * * leaving mula the mere mathemat- provision hour and rate sic of the Fair La- determining ics of each individual rate to 1938, provides bor Standards Act bookkeepers.” But the “mere mathematics” forty per for maximum hours week in far bookkeeping, from substantiating the 1940, October, plus punitive rates for time operation, view a formula was that does thereof, agreed forty excess it that the exactly opposite. clearly It indicates per week hours shall the basis for a readily that however might a formula have formula, produce earnings which will that operative made actually been none in fact as earnings be the same of such em- was. equal worked;”. ployees for time It apparent gives that readily specific clause Thus we take a example: this rise First, problems: representa- to two whether the for- that of Sawczak for whom John actually instituted, and, was photostatically mula described reproduced tive due bills second, whether if instituted company it was before us. The coal says: valid and resolution well as the “Sucb decisions This contracts tion: of the Board of parties incorporated express- were all Conciliation have been between * stipulated ly ratified, Answer and confirmed in defendant’s true and continued Agreement (1) par. agreement And both As To Facts are bound accept f.n.4). (See the Board’s resolutions. 9 Defendant’s answer admits ratifica- ap- rate plaintiff, regular but fact that was “the Sawczak’s John 29, plied. period And the stand as during from October formula can not adopted per simply by hour Concil- was incantation of the 1939 October $0.60 week, iation in each Board’s for the first 42 hours worked resolution. can hourly adopted estab- shown regular rate to have which was the been utilization. very by plaintiff lished with which formula could for the work done ease John applied have been matter “mere math- Sawczak accordance with resolution —a * * * and ematics” “bookkeeping” Board of Conciliation all —renders striking all times that rate for more conclusion one-half that period appears done. As this worked him excess of plaintiffs, at those any least whose situa- week.” tion is like that of shown on It will the base or noted samples by stipu- of due bills introduced hour acknowledged to be rate was $0.60 lation, period can recover for this without Con- the resolution of the Board legal validity decision of ciliation the sec- for the first two-thirds of point formula. The the old period. ond rate was in fact and no formula was compare. Now bill let us take applied. The effect reproduced There is the due bill for Novem already disposed the claim has 1-15, comprises period ber 1939. This by the discussion division one of day, during weeks and one which 112 hours opinion. worked earned. If we as $82.64 Period, May sume that worked on the extra 3. Third hours were day then we have a of 92 hours Following. total at ($55.20) plus rate of 20 hours $0.60 period subsequent The third covers time ($18.00) at and one-half rate $0.90 May 1, Wage Section 7 of the aor total If assume $73.20. Agreement May 20, gave birth to not work all on did the fifteenth *6 specific newa formula about which the day have, com by we the same method of period controversy turns. the third The putation, a total of If we assume $75.60. “(7) hourly section reads: The rates he on day worked hours that extra employees, exempted provisions from the $72, only go we total reach a or to still day the Agreement seven-hour under the further and assume he worked 16 or 24 7, 1936, May adjusted who have not been day respec get hours on that fifteenth we forty-hour to a regularly and basis who tively computation No and $70.80 $68.40. forty- worked a fixed number hours of except yield wages one can on the shown more, per two hours week or shall be es- due the bill for the worked and that hours 1, period May Sep- the tablished for 1941to one is under old When old rate rate. the adding tember by to their 7%% prior due shown on the bills $0.7379 weekly earnings as calculated multiplied period by the 112 the second is provisions agreement of said dividing and precise get hours worked we amount by the regularly employed the sum hours computed as earned and shown $82.64 plus weekly one-half the hours worked in half cent. hours; forty period excess of and for the 1941, April October adding procedure could The same be followed weekly earnings their as calculated 10% due with the other bills Sawczak. John provisions under the said Similarly hold for Hohn the facts K. John sum dividing regularly the hours photostatically bills are also whose due re- employed weekly plus one-half the hours parties since produced. agree And forty in worked excess of hours.” whole, samples are indicative of these here, is what our conclusion must clear be. formula it The unlike that of the sec- specific, period,10 The under the is formula resolution was nev- ond detailed and clear. applied. The questions. received for the We are confronted with er squared only formula, fact, applied? worked in Second, hours old Was possible so, not with is a valid mode of meeting formula rates the re- may easy formula have been quirements of Act? The rates. period up, devised, beyond third formula is set nor even This devised ready up put operation; “forty per to be Board’s set direction that only remaining step ap is week shall be the actual basis for a formula” equal earnings
plication pe producing equal formula. The second time formula, hand, riod on the other worked. was never system required granted. rate meth- clearly rather wage increases were than however, required agreement pro- od. Wage increases, May, Thus the : bargain vides “To for ab- by the between avoid undue deductions but left to the sences the rate of parties. requires agree statute What weekly earnings regular day a deduction a fixed from rate for employee shall for absence such overtime hours. one-half rate period, earn- period, dividing weekly be determined his for this as for second But ings, the for- when the num- regularly employed, we find that the and not old rates days em- ber of work week.” regular mula rates fixed the amount his straight-rate will be ployee’s pay. On a seen basis days gives earnings total worked divided repeat necessary It is not similar arith- day. perfectly figure per a But on a fair it to add that metical calculations.11 Suffice regular plus basis, particular overtime sample the four bills submitted for due day in the week that missed is the chief period, Sawczak for one ac- this third John day factor since it be overtime rath- printed tually on it as carries the rate day. than regular er a rate Now if hours on “.8116”. the number of period, So for this well as the second bill, 120, the earn- due divided into this ings, period, conclusion clear that formula $97.36, straight-rate quo- get a practice did follow each other. $.8113, tient of a difference of 3/100 a straight on continued aof cent. It the actual is obvious that giving of the time basis and not a in- straight-time rate used was rate and not creased amount for Employees’ wages rate. the formula the statute. just figured ap- before. There was no The Formula plication rate and overtime Instead, complete Consideration is the next rate all. there was the formula step, change lest that a concluded reliance fact that formula had computation method due writing been determined announced in on a bill would compliance agreement. Act. place show But the one actually where an announcement rates Court in series of might i.e., really determinative, used on extending June, until cases bills, due not merely silence June, has laid down outlines with to regular and overtime rates but obvious fall to meet the which a formula must straight evidence that the rate method had requirements. The crux of the statutory very been used. true rate, matter is that the however es *7 bill, appeared there also following: the tablished, fide rate and must be a bona not earnings “the shown on this due bill have Overnight In Motor Trans a fictitious one. computed pro- in accordance with the Missel, 1942, Co., Inc., portation v. 316 U.S. visions of (7) of May section of 572, 1682, 1216, 62 86 to S.Ct. L.Ed. 20, But, course, 1941.” the law does not Corp., Walling A. Belo gether v. H. recognize the done, mere an recital of act as 1223, 1942, 624, 316 U.S. 62 S.Ct. 86 L.Ed. equivalent as doing the the actual of the 1716, day, decided constitutes on the same act. by sharp analysis the the taking question, the court Even the laid down method deductions premised principle regular was on a for absences that enabled rate to straight- the 11 computation actually fictitious, Of the 15 due Illustrative bills in This as the only readily record one carries a be breakdown can shown even more the old regular straight-time per (ar- total hours into hour rate $.83583 overtime. dividing by pre-Act wages by This is the due bill of rived John K. Hohn at the January 1-15, pre-Act September shows hours as on It a total of shown the work, bill) by 120 hours of which 1-15 due is increased are listed 1938 the 10% 85% regular provided May, 1941, as are as the listed over contract. 34% straight hourly hours. The shown on new rate then rates the due The becomes per regular multiplied figure by bills are $.7954 hour When this $1. $.91941. per (120) overtime If the the total hour. number of hours worked mathe wage exactly matics $110.33. are carried total out the result will be the comes to actually squares only found to be $109.08. But amount amount received ac tually computation. straight-rate shown on bill the due with a taxable wages regular received is rate overtime rates shown $110.33. obvious on fictitious, that this amount bill was arrived due not real. at computation actually applied. on the formula shown bill. was never specifically was was upheld determined involved because it when were 572, felt stated. The 62 U.S. cents fixing court there that a rate said [316 wage, the hour actual “Neither the did fact set the S.Ct. contracts 1221]: regular provisions hour nor overtime of sections rate which workers were em- however, specifically ployed. passage spoke authority, and 7 on their The case is no wages ex paying other method rate proposition regular that cept no doubt by hourly have com- point rate. But fixed contract at a week, actually that reduced pay pletely to be payments unrelated to the rates, computation hourly normally some method received each week To deter was also the act.” covered employees.” hourly became regular mine the mere matter rate thus Following ground clearing decisions Missel under the division of Supreme came three Missel and cases Belo Walling Helmerich rationale. v. See case & Ct. 11. think di- Court decisions which we Inc., 1944, Payne, 65 S. U.S. rectly applicable In to the instant case. 1944, Inc., Walling Payne, v. Helmerich & was ex- regular But rate whether attempt U.S. S.Ct. out as in- plicitly figured stated had bywas to maintain levels before dicated, sufficiency test of its the essential Pox- means contracts under the so-called regular was it was an actual rate whether split-day mechanics plan. on or The actual here, as one. The defendant fictitious Poxon formula that each tour under the defendants Act, in other cases have arbitrarily split was half and the first decision, heavily Belo relies part compensated by regular wage rates upheld supra. the C6urt In case part while the time rate of received the over- second legal regular Belo is tract rate as a rate. ap- thus an There was 150%. readily distinguished from the instant case. parent compliance Act. But ac- with the varied, though There the overtime tually figures because of the at which the minimum never below set, exactly new rate the same 150% by law. said U.S. Thus the Court wages paid. pre- [316 before This is sure, $1,753 is cisely 62 S.Ct. “To be what has occurred under the formula 1227]: analysis But Act does than instant The Court’s more case. $.67. 150% more; requires only prohibit workings plan paying of the Poxon shows to rate less than’ degree be ‘not full essence what true basic rate. It is also formulae of the instant case: “These so- 150% rate formula the overtime ‘regular’ hourly and ‘overtime’ rates called may vary from to week. hour week so were calculated as to insure nothing in the Act forbids such fluctua- But tion.” the total for each tour would continue Furthermore, in the Belo situation contracts, original the same as expressed keep purpose was not to the thereby necessity avoiding the increas exactly levels the same as before the ing wages or decreasing hours work as put in- (which Act would at least one on statutory maximum workweek of 40 quiry as to whether so-called Only hours became effective. in the ex *8 only fictitious) but do so insofar rate was as unlikely employee’s tremely case where an possible under the Act. duty] totalled more than 80 tours [of in a week did he become entitled to In the instant case we neither the have any pay regular wag addition to the tour purpose to make the new limitation of payment duplicate prior plan the old inso- es that he would received to the have possible adoption split-day plan. far nor the limitation of fluctua- Until as more only regu- plan op tion to the overtime rate. Both than 80 hours the worked had lar fluctuate in our and overtime formulae. could erated so the not be apply Both these limitations to the Belo case credited than 40 hours of ‘reg more distinguish principle. and serve to it on work, remaining being ular’ de Furthermore, in the words used the Su- Hence, ‘overtime.’ nominated since the preme system Court to Belo distinguish wages case under the old and under the split-day plan identical, Walling Youngerman-Reynolds original v. from 1242, 1246, Co., simple 1250: rates used as the 65 S.Ct. “This tour could be meth wages Walling computing pay period. for each decision in A. H. od of Court’s v. Belo regular 62 S.Ct. actual and workweek Corp., U.S. L.Ed. The was ac support respondent’s significance'.” cordingly shorn of all po- lends no And particular wage agreements of the Court in the conclusions sition. Helm case: equally erich our are well sation at employed. workers case incentive rate, plan lay in the respondent’s “The vice of fact that represent To in the discover that case, regular Youngerman-Reynolds rate did not the- contract we look not actually paid contract rate which nomenclature but to the actual hours, payments, ordinary, paid did nor exclusive of those for over- non-overtime paid time, compensation it allow be parties agreed extra which the have paid true during overtime hours. It was derived each workweek.” from the actual hours and but From what in this re has been said ingenious manipulations, with mathematical opinion view of clear it is purpose perpetuate being sole productive formula to of a pre-statutory wage “Any scale.” other regular rate will and overtime rate such as ingenuity clusion in over case exalt would Act, requirements meet it must reality open door to and would not be a mere mathematical cloak under disregard rights protected insidious payment prac which to continue the same by the Act.” as hitherto. The tices rate established rate, regular the tual and a real relation ac adjudged in order to be formula, Any type, whatever its fictitious, (1) must either bear plan plan Poxon similar to whether that or a earnings to actual as de case bar or some other used principle (2) duced it the Missel case or plan, long entirely so as it conditioned be genuine contractual must decrease upon actually essentially maintaining wages, upon bargaining individual or based payment the Act, mode same as before collective. Under such re a test inevitably illegal in that it creates a quirements of the formulae of the Walling fictitious In rate. v. clearly instant case fail. The evidence Co., Youngerman-Reynolds Hardware already clearly marshalled is indicative that S.Ct. a formula was devised the goal, formulae directed one although upon which ing conditioned maintain i.e., continue the old methods payment the old mode of unaltered was payment ostensibly for work while meet patterned general upon terms the Belo requirements of technically the Act guaranty requirement formula’s in an at enough. and technicalities tempt gantlet to run the Act. But very guaranty feature was so devised Arbitration that under it would be Our final has to do with the plan a piece rate before. failed question of arbitration. As stated above requirement. statutory to meet the stayed the District Court the lawsuit until Walling In Harnischfeger Corp., v. arbitration provision could had. The S. Ct. 1248 (decided day the same as in the contract of the for arbitration Youngerman-Reynolds case, supra, goes clear back year following 4, 1945) the Court further added: settlement in famous the strike of that anthracite coal June period.12 “Our attention here is focused de There are three regard compen- points termination of rate of arbitration here. adjudges trict, Commission 12 “The one the said Board of Conciliation any difficulty disagree appointed by organi- That or shall be awards: each of said arising zations, award, persons ment under this either as and three other shall be interpretation appointed by application, operators, operators to its or in way growing appointing in each out of the relations said districts employers person. employed, which can adjusted by not be “The Board of settled consultation Conciliation thus consti- superintendent manager up any ques- between the tuted shall take and consider *9 mines, aforesaid, or hearing the mine and the miner or min tion referred to it as directly scope parties interested, controversy, ers or is of a too both and such may large adjusted, so to be settled or evidence as shall be be laid before either permanent joint any committee, party; by majority a referred to award made of a Conciliation, a called Board of such Board of Conciliation shall be final persons, appointed binding parties. If, however, consist six as here on all provided. say, any inafter That is to the said Board is there unable decide region question submitted, point be a division of the whole into or related there- districts, question to, point in three each of which there shall shall be referred organization representing umpire, appointed, an exist a ma to an to be at the re- jority quest Board, by of the mine workers of such dis- of said one of the circuit 320 point; problem with the Act.13 The has to do is the is kind of which question special properly waiv to a mas- whether formula and the referable either provisions in arbitrator, er which to be ter an we have found and since the completely viti contract have for arbitration sufficient the Act so appropriate we in illegality ate the contract for that no ref think the reference is arbitration made. We erence to can be this instance. question think this be answered in the must The question has do with third
negative.
sufficiency
The
for
of the
application to
of the Unit
this situation
provision
mula and the
waiver
en
Arbitration
9
1
ed States
U.S.C.A. §
tirely separable elements
the contract
seq.
already
We
in
et
have
answered that
parties.
between the
We do not refer
question
Susquehanna
v.
Col
Donahue
question
legality
arbitration
formula.
of the
Co., 1943,
149
lieries
F.2d
A.L.R.
question
That is a
which
of law
the District
followed
that deci
Court
responsibility
must
the Court
take
in an
r
making
sion in
the order which it did. Ou
point
swering.
saying upon
All
this
we are
analysis
problem
involved has found
provision
is that the arbitration
is not ren
support
by,
since in a decision
the Fourth
dered ineffective because the contract con
Agostini
Bldg. Corp.
Circuit in
Bros.
v.
clause,
formula,
setting
tains
out the
States,
United