GATEWAY COAL CO. v. MINE WORKERS

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Argument of Leonard L. Scheinholtz

Chief Justice Warren E. Burger: We will hear arguments next in 72-782 Gateway Coal Company against the United Mine Workers.

Mr. Scheinholtz, now you may proceed.

Mr. Leonard L. Scheinholtz: Mr. Chief Justice, and may it please the Court.

The primary issue in this case is whether a Federal Court acting under Section 301 of the Labor Management Relations Act of 1947 as amended, has the authority to order arbitration of an alleged safety dispute, and to enjoin a work stoppage which gave rise to that dispute.

The Court of Appeals for the Third Circuit in a 2:1 decision, vacated a preliminary injunction issued by the District Court for the Western District of Pennsylvania.

The District Court acting on the complaint of Gateway Coal Company had issued an order directing arbitration of a dispute as to whether the Gateway Mine was rendered unsafe by reason of the presence of two foremen in the mine, had directed that the foreman be suspended pending arbitration, and had issued an injunction preventing the Gateway employees from continuing a work stoppage and furtherance of that dispute.

The sequence of events leading to the District Court's order began on April 15th of 1971, when shortly before daylight, it was reported and discovered that in one working area of the Mine there was a reduction in airflow.

There was still an adequate supply of air substantially above the Federal and State minimum requirements.

No one had noticed any difference in the methane level in the mine which was normally two tenths of 1%.

Substantially below the minimum requirements of Federal law of 1%.

Methane is detected every 20 minutes, there is a requirement of Federal law that the operators check for methane.

No one had noticed any diminution or rather, any increase in the methane level.

There are also methane monitors on the cutting machines which are to detect changes of methane, and no one had noticed any change in the methane level.

The problem was traced to a partial blockage of an intake airway, which is believed to have occurred at 4:30 a.m.

This resulted in a slight short circuiting of the airflow in this working area of the Mine.

Repairs were made immediately and the normal airflow was restored.

The miners who had reported to work on the first shift which begins at 8 a.m. were held on the surface until the repairs were completed.

They were told to standby however, a number of them, approximately half of the workforce left.

The remainder of the workforce went in at about 10:30 in the morning.

And the mine worked without incident until the following morning when the first shift employees reported again.

At that time, when those who had left the mine, contrary to instructions, found out that they were not to receive reporting pay, they struck.

They refuse to arbitrate, they struck.

Subsequently, the union requested that the Federal and Safety Inspectors, come in to inspect concerning the adequacy of the repairs.

This was done on Saturday April the 17th.

In the course of that inspection, the inspectors discovered that the three third shift foreman had failed to notice and detect the reduction in airflow which was caused by the fall of an overcast, which is believed to have occur at 4:30 a.m.

The pre-shift examination should have taken place between 5 a.m. and 8 a.m. under Federal law.

The following day on April the 18th, the union had a special meeting.

And at that meeting the union attended by approximately 200 of the 550 miners of the Gateway Mine, the men voted not to work with the foreman.

By this time the company Gateway had suspended two of the foreman.

However the third foreman had to determine not to suspend pending further investigation, because he was the one that had reported the problem.

They felt that he was in a different position.

However, the Company reluctantly agreed to the union's demand that it suspend all three foremen, but the company president advised the district president of the UMW that when there was any basis for him to put the three foremen back to work, when the State clarified their certification status that he intended to do so.

At that time he believed that action would be taken to determine their certification status and under Pennsylvania law, a foreman cannot work without being certified, and there's a procedure for revocation of certification.

There was also a possibility, and it turned out to be an actuality that the men would be subject to criminal misdemeanor charges.

The men returned to work on April the 19th and worked without incident until June the 1st.

In the meantime, the criminal misdemeanor charge was filed against the foreman, and on April 29th or rather on May 29th the company received a letter from the Department of Environmental Resources advising the company that it did not intend to revoke the certifications status of the miners or rather the three foremen, and at the company was at liberty to return the foreman to work.

Acting on this letter, which as I indicated went to the union with the copy to the company.

The company reinstated the two foreman.

One had retired in the meantime on June the 1st, and upon the Act of the company in returning the foreman to work, the union struck, took unilateral action and struck.

Unknown Speaker: Whatever happened to those criminal charges, Mr. Scheinholtz?

Mr. Leonard L. Scheinholtz: About six weeks later, the two or the three foremen pleaded nolo contender, and they were fined I believe $200 a piece.

Nothing was ever done with respect to the certification status of the active foreman, because the Department of Environmental Resources decided that the criminal processes were inadequate method of resolving the problem.

Unknown Speaker: Well now, what is the company's position with respect to the strike?

That is the reason for it, was it the reinstatement of the foreman, or was it the earlier company position not to allow pay?

Mr. Leonard L. Scheinholtz: The dispute had its origins in the reporting pay issue.

The strike that started on April the 17th started before there was any or rather on April the 16th, started before there was any knowledge of any problem with respect to foreman's logs.

However, after the strike started initially over this reporting pay dispute, it was converted into a safety dispute or an alleged safety dispute by the union. Our position is that the dispute as to whether the mine was rendered unsafe by the foreman, is clearly one which is subject to resolution under the collective bargaining agreement between Gateway and the UMW.

This collective bargaining agreement contains a very broad grievance arbitration clause.

It would be difficult to write a broader grievance arbitration procedure.

The contract states that the parties will submit to the settlement of local and district disputes procedures.

All disputes between them as to the meaning and application of the agreement.

All other local matters and any local trouble of any kind arising at the mine.

Justice William J. Brennan: May I ask you Mr. Scheinholtz, wouldn't the fact of the pleas of none vote would be relevant in any other place in proceeding?

Mr. Leonard L. Scheinholtz: Would that be relevant?

Justice William J. Brennan: Yes.

Mr. Leonard L. Scheinholtz: I believe that it might be relevant, yes Justice Brennan.

I think that this is something which in arbitrator could, and I believe in this case did take into account.

Justice William J. Brennan: And would you mind stating again, what is the connection between the certification proceeding and the pleas of none vote, and all them?

Mr. Leonard L. Scheinholtz: The distinction is this, under Pennsylvania Law a man cannot serve as a foreman unless he is certified by the State.

There is a specific period of experience he must have in the mine.

There is certain training that he must have before he can achieve certification status.

There is also a procedure under Pennsylvania Law for revocation of that status, and if his license to practice as a supervisor in the mine is revoked, then it's a little bit like a driver's license he can't drive.

Justice William J. Brennan: And the certification is not revoked merely because of the pleas?

Mr. Leonard L. Scheinholtz: No, that's clear in the record.

There maybe times when a revocation will result from finding of criminal violation, but this is by no means automatic.

Chief Justice Warren E. Burger: It is an independent proceeding to cancel the license of the --

Mr. Leonard L. Scheinholtz: Completely independent proceedings.

The one is in the Court and the other is an administrative proceeding initially with the Department of Environmental Resources.

Justice William J. Brennan: Thank you.

Mr. Leonard L. Scheinholtz: The District Court in enjoining the work stoppage, as I say, directed arbitration of this dispute, which was whether the mine was rendered unsafe by reason of the presence of the foreman in the mine.

And he directed that the foreman be suspended until the arbitration was held, and that if the arbitrator sustained the company's position that the foreman be returned to work.

If the arbitrator found against the company, then they wouldn't be returned to work, which I think was a very sensible solution under the circumstances.

The case was heard by an arbitrator.

He found in agreement with the District Court that the dispute was arbitrable.

That was the first issue that the union presented to him.

They challenged the arbitrability, he found that it was arbitrable.

Secondly, he found that the decision of the Gateway Miners to refuse to work with the foreman was unfounded, and he also found that the mine was not rendered unsafe by reason of the presence a foreman in the mine.

However, when the case got to the Court of Appeals which was after the arbitrator's decision, the majority of the Court ruled that the dispute was not arbitrable.

The conclusion of the Court was the safety disputes are sui generis, and by virtue of their being sui generis that the ordinary presumption of arbitrability of disputes set forth in 203 (d) of the Labor Management Relations Act of 1947, and as stated in Warrior and Gulf and the other cases in the Steelworker trilogy, did not apply to a dispute regarding safety.

The majority found support for that possession it said in Section 502 of the Act.

Unknown Speaker: But the majority didn't say that the arbitration clause didn't cover this to dispute.

Mr. Leonard L. Scheinholtz: It said that the --

Unknown Speaker: Instead, it was unenforceable.

Mr. Leonard L. Scheinholtz: It said that the arbitration clause did not expressly provide nor unambiguously provide that safety disputes were to be arbitrated.

That's the way the Court handle it --

Justice William J. Brennan: Would that have made any difference to this under the Court's reason?

Mr. Leonard L. Scheinholtz: Actually I don't believe that it would because in Footnote 1 --

Unknown Speaker: It isn't much of a case if all you have to do is to include it in the arbitration provision including safety disputes.

Mr. Leonard L. Scheinholtz: Well, Your Honor most then if you said that then you'd have a problem with seniority disputes.

Here you've got a broad overall, all encompassing arbitration clause.

Unknown Speaker: But I sort of had the impression Justice Brennan indicated the Third Circuit would've come out the same way.

Mr. Leonard L. Scheinholtz: Yes it was under Footnote 1 the --

Unknown Speaker: Purportedly the question entirely open in the Footnote in the second paragraph on Footnote 1 on Page 18 (a) of the petition for writ certiorari, said it's also unnecessary to decide whether in the unlikely cause of a contract.

Well you know what it says?

Mr. Leonard L. Scheinholtz: Yes, well in the unlikely certainly while the Court didn't express they decided, I think that it left no doubt, and in view of its holding that safety disputes are sui generis by their nature, it seems likely to me in reading Footnote 1 that even if this contract had specifically provided for arbitration of safety disputes that this majority with Judge Rosenn dissenting, would've concluded that the promise to arbitrate safety disputes was unenforceable.

Unknown Speaker: Now, how can you say that when the opinion of Judge Hastie explicitly and expressly says that it's unnecessary to decide that question?

Mr. Leonard L. Scheinholtz: But he says that the very tenure of his Footnote that in the unlikely event that a safety dispute -- that the agreement to arbitrate included safety disputes.

I think that coupled with his reasoning in reaching the conclusion that he did, would justify an assumption that even if this contract had specifically provided for arbitration of safety disputes that the majority of the Third Circuit, that majority would've ruled that promise unenforceable.

Justice William H. Rehnquist: Well, didn't he had any rate apply a much stricter standard in determining whether a general arbitration clause embraced a safety matter, than has been customarily applied by courts in determining whether a general clause embraced particular matter?

Mr. Leonard L. Scheinholtz: I don't think there's any question.

In effect Judge Hastie created what I would call a "reverse”, “presumption of none arbitrability", which is exactly the antithesis of 203 (d) and in 301 as interpreted by this Court.

Now, there is nothing in Section 502 the deals with arbitration of safety disputes.

It just doesn't purport to deal with that issue and consequently there is nothing in 502 which requires the result that Judge Hastie came to.

It seems clear to us that the sui generis approach of Judge Hastie certainly nullifies the ordinary presumption in favor of arbitrability, and the intent of Congress that all disputes of whatever kind arising out of a collective bargaining agreement, should be resolved by peaceful means by the method that the parties chose.

And in this case the parties chose arbitration as the terminal point in or terminal procedure for resolving those disputes.

And I think that there's good reason for that, because the mind isn't rendered any more safe if Gateway were to have starved these people into submission.

Assuming that there was a bona fide safety problem for the sake of argument.

Here you have got a test of wills.

Now if the union goes out on strike, maybe it can force the company to change its position, but maybe it can't.

But the point is that if it can't that if the Gateway had starved these people into submission that wouldn't have made the mine any safer or any less safe.

It would not have changed the underlying circumstances.

The only way that those underlying circumstances can be corrected, if there is need for correction, is by some third party determination.

Under the Coal Mine Health and Safety Act, there's a provision for on-site inspection by the Federal Mine Inspectors.

They make a third party determination when they decide whether there's an imminent danger which requires withdrawal of the men from the mine.

The Labor Board under Section 502 and ultimately the Court of Appeals.

It makes a determination of the bona fideness of a claim of abnormally dangerous conditions when 502 is brought in the play.

So that there are many times when third parties make these decisions, and it's the only intelligent way to approach it.

Self help is not the answer.

Justice Potter Stewart: Did the Court of Appeals consider what I read to be the basic argument in the respondent's brief?

That is the argument that the collective bargaining agreement itself expressly under Subsection (e) of the Mine Safety Program expressly permits Miners to walk out?

Mr. Leonard L. Scheinholtz: It did in this way.

First let me answer the question somewhat differently.

First, there is no evidence that the procedure or the procedures of the Mine Safety Program were ever utilized by the Gateway Miners that the District Court so held.

Justice Potter Stewart: Well, I know that's what you saying on reply brief, but --

Mr. Leonard L. Scheinholtz: Secondly, there is no -- if you read the Mine Safety Program, it does not permit as the union contends that the miners have the right to engage in a safety strike anytime that they believe that a dangerous condition exists.

That is not what the Mine Safety Program Provision says.

Justice Potter Stewart: Well, I know and yet you're repeating now very clearly what you say in your reply brief.

My question was, did the Court of Appeals consider that argument?

Mr. Leonard L. Scheinholtz: Yes.

Justice Potter Stewart: Was it made to the Court of Appeals?

Mr. Leonard L. Scheinholtz: It did in this context.

It has said that here you're faced with a general arbitration clause which is vague or general.

You are faced with a specific Mine Safety Program, and consequently the Court interpreted the Mine Safety Program to mean that safety disputes were not arbitrable, but that's the very function of an arbitrator, and not the court.

The function of that court is simply to determine whether on its face, the claim is subject to resolution under the collective bargaining agreement.

Here the District Court made that kind of analysis ruled at the dispute of the foreman, was subject to resolution on its face was subject to resolution under the grievance arbitration clause.

And the arbitrator ruled that the dispute was arbitrable too.

Now, in effect what Judge Hastie did was to nullify that arbitrator's decision by interpreting the clause on the merits to preclude arbitration of all safety disputes.

I think that that was improper.

Justice Potter Stewart: Was that clause of the contract brought to the attention of the arbitrator?

Mr. Leonard L. Scheinholtz: Yes, as matter fact that in appendix G --

Justice Potter Stewart: Appendix G of what?

Mr. Leonard L. Scheinholtz: To the petition for writ of certiorari, as the umpires award and there is of the contentions of the parties with respect to this matters are set forth in Appendix G.

Justice Potter Stewart: Where do you --

Mr. Leonard L. Scheinholtz: It would be on 43 (a), is where the union's contention on that subject is, and also on 44 (a).

Essentially the same argument was made to the arbitrator as is made in this Court.

That is that the Mine Safety program Provision operates in such a way as to preclude arbitration of safety disputes.

The arbitrator decided that that was incorrect.

Unknown Speaker: Mr. Sceinholtz, may I ask you, you suggested on (Inaudible) or something under 502 might have been cognizable by the National Labor Relations Board?

Mr. Leonard L. Scheinholtz: Yes.

Unknown Speaker: How does that come about.

Could you have brought an unfound --

Mr. Leonard L. Scheinholtz: That comes about, Section 502 provides that the quiting of labor by an employee or employees in good faith, because of abnormal conditions at the place of employment shall not deemed a strike under the Act.

Consequently such a --

Unknown Speaker: Could the company have initiated an unfair labor practice proceeding?

Mr. Leonard L. Scheinholtz: No, it comes up this way.

The company discharges employees.

They assert 502 as the defense for their engaging in a refusal to work, and then they file an 8 (a) 1, 8 (a) 3 charge, and it comes up in the 8 (a) 1, 8 (a) 3 context.

At that point the labor board must decide as it did for example on Redwing Carriers which we cited in our brief and other cases, whether the activity of the employees was protected under 502.

If so, then the discharged (Inaudible) violates Section 8 (a) 1 and/or 8 (a) 3.

Unknown Speaker: But the company could not --

Mr. Leonard L. Scheinholtz: No.

Unknown Speaker: It's self initiated.

Mr. Leonard L. Scheinholtz: No, it comes up the reverse way.

Chief Justice Warren E. Burger: I suppose you would agree that if a factory building were burning and foreman ordered everybody to go in the factory building and call some machinery out, that that would not be a strike?

Mr. Leonard L. Scheinholtz: No.

And we would agree with that.

That's not -- we would agree with that and that is not this case.

Chief Justice Warren E. Burger: Let's see, I deliberately picking an extreme -- that's probably what the provision was meant for.

Mr. Leonard L. Scheinholtz: That is right.

Chief Justice Warren E. Burger: On the other hand, if a mine was filled with gas fumes, or arguably, so feel creating an immediate dangerous situation.

That would be comparable with the burning building, wouldn't it?

Mr. Leonard L. Scheinholtz: It would if they were objective, if in fact this were true.

Now under those circumstances, you would have something far different than what we had here.

And I think that's the problem here is that the Court of Appeals constructed a subjective test rather than objective test in determining the 502, or in interpreting 502.

That's one of the basic problems with this case.

They did not, they I said that if these men believe that a safety hazard exists, that belief is un-reviewable by a court.

And that is not what 502 says.

That is not the way any other Court of Appeals has ever interpreted Section 502.

That is not the way the Labor Board has interpreted 502, and I think the Labor Board's interpretation of the statute is entitled to considerable deference.

Unknown Speaker: Would you argue that only aside from the arbitration provision this strike was enjoinable by reason of the union's failure to follow the safety provisions of the contract?

Mr. Leonard L. Scheinholtz: No.

Unknown Speaker: They didn't, did they?

Mr. Leonard L. Scheinholtz: They did not utilize the Mine Safety Program provision.

However, we say --

Unknown Speaker: And they did strike.

Mr. Leonard L. Scheinholtz: They did strike and we say that the dispute even if the dispute was over the foreman and as I indicate there's at least a series of question as to whether --

Unknown Speaker: Safety provision would say "You may be ordered off the job in the area where the dangerous safety condition exist?

Mr. Leonard L. Scheinholtz: Only in the unsafe area.

Unknown Speaker: And then all employees walked off.

Mr. Leonard L. Scheinholtz: All employees both above and below ground and on all --

Unknown Speaker: Where these two foreman had no authority whatsoever?

Mr. Leonard L. Scheinholtz: Absolutely not.

They struck from the coal tipple to the preparation plant, both of which were above ground.

Unknown Speaker: So tell me why you wouldn't make that argument about the enjoinability of the strike?

Mr. Leonard L. Scheinholtz: Because we don't have to.

We have a far stronger ground.

Unknown Speaker: Yes, but part of the case against you is that the provision against the arbitration shouldn't apply because there's another provision in the contract governing the situation.

Mr. Leonard L. Scheinholtz: Well, perhaps if you look at it in that light, we would have an additional basis for a position.

But the other basis is so clear that we didn't feel we had to fall back on that position.

Chief Justice Warren E. Burger: Thank you.

Mr. Yablonski.

Argument of Joseph A. Yablonski

Mr. Joseph A. Yablonski: Mr. Chief Justice and may I please the Court.

I'm somewhat appalled that counsel has indicated to this Court precisely what he thinks about Norris LaGuardia.

Throughout 25 minutes of argument, counsel has failed to even mention the words "The Norris LaGuardia Act."

This Court -- the question before this Court is whether your decision in Boys Markets should be extended to cover a safety disputed coal mine.

This Court carved out in the words of Mr. Justice Brennan.

Very limited exception the Norris LaGuardia Act, counsel has failed to even mention the words of Norris LaGuardia Act.

The basic charter.

The Magna Carta of American Labor.

What we have in this case is the coal industry and particularly the Gateway Mine.

Not once in counsel's argument has he mentioned the fact the Gateway Mine is classified by the United States Bureau of Mines as an especially hazardous coal mine.

Not once has he mentioned the fact that at that mine, there is liberated daily 4 million cubic feet of deadly methane gas.

Nor does counsel mention that at the Gateway Mine, it's one of the largest underground mining complexes in the United States.

That the failure of these foreman interrupted the airflow to the five phase area of that mine.

Now, counsel has said here that their regular requirements in the five phase area, the regular ventilation requirements were 28,000 cubic feet per minute at the last open crosscut.

The federal minimum ventilation standard is 9,000 cubic feet per minute.

The State minimum standard is 6,000 cubic feet.

It gives Your Honor, some idea of the gassy nature of this mine.

The Federal Bureau of Mines was requiring them to pump three times the minimum amount of air into that section.

The law requires the 1969 Coal Mining Health and Safety Act, requires foreman that are working on the shift, to protect the safety of the men coming into the mine, to make a pre-shift examination.

That inspection must be carried out within three hours prior to the commencement of that shift.

Unknown Speaker: Mr. Yablonski,-- equipment or is that --

Mr. Joseph A. Yablonski: That is with the anemometer Your Honor.

That inspection should've been conducted on April 15th, between the hours of 5 a.m. and 8 a.m.

These foreman purportedly made that test and they logged into their logbooks 28,000 cubic feet.

The record in this case conclusively demonstrates that this overcast fell around 4 a.m. in the morning.

Counsel would now seem to be arguing here contesting that matter.

He didn't argue it in the District Court, because there was a water gauge on the main fan of that mine.

And when that resistance was created when that overcast fell, it showed up on that water gauge.

This conclusively established in this record that that overcast fell, and that it fell before the foreman were required to make their pre-shift examination including the testing for ventilation.

Now, counsel has not said that the Boys Markets case decided by this Court, involved in economic dispute.

The question before this Court as you recall, was whether or not supervisors were performing bargaining unit work by stocking shelves in the supermarket in California.

I submit to you Your Honors that that is not the case here.

The case here involves coal miners and the words of Justice Hastie, "Men in an industry which is dangerous at best."

This mine classified by the Federal Bureau of Mines as especially hazardous.

Counsel does not say that in the Boys Markets case, it was admitted before this Court that the grievance could be submitted -- should have been submitted to arbitration.

Here there is a very serious dispute that has started in the District Court and still exists here.

That safety disputes are not arbitrable under the 1968 coal wage agreement.

Now --

Unknown Speaker: In what status did this case come here, has there been final decision on the case?

Mr. Joseph A. Yablonski: Preliminary injunction entered by the District Court Your Honor, and a --

Unknown Speaker: An affirmance -?

Mr. Joseph A. Yablonski: A reversal by --

Unknown Speaker: A reversal, yes.

Mr. Joseph A. Yablonski: Reversal by the United States Court of the Third Circuit.

Unknown Speaker: What you were defending the preliminary injunction?

Mr. Joseph A. Yablonski: No, we were not defending Your Honor, we sought to have --

Unknown Speaker: Didn't the preliminary injunction involve -- the forbid these foreman to go back to work?

Mr. Joseph A. Yablonski: It also awarded us Your Honor, to submit the matter to arbitration.

Unknown Speaker: And it was in fact arbitrated.

Mr. Joseph A. Yablonski: Yes it was.

Unknown Speaker: In the meantime.

Mr. Joseph A. Yablonski: It was arbitrated.

Unknown Speaker: But without the foreman being at work.

Mr. Joseph A. Yablonski: Foreman were not at work.

The Foreman returned to work --

Unknown Speaker: After reversing -?

Mr. Joseph A. Yablonski: No they will return to work Your Honor, after the arbitrator ruled that they could be returned.

Unknown Speaker: Because that's what the injunction --

Mr. Joseph A. Yablonski: That's what Judge McCune's decision permitted.

Unknown Speaker: Well, you were ordered to go to arbitration by the District Court.

Mr. Joseph A. Yablonski: We were ordered to go to arbitration by the District Court.

Unknown Speaker: You went to arbitration without, at that point challenging the validity of the order upon you to go to arbitration?

Mr. Joseph A. Yablonski: Your Honor we had Judge McCune's order in the Court of Appeals at that time.

Unknown Speaker: But you didn't get a stay?

Mr. Joseph A. Yablonski: We didn't get a stay.

Unknown Speaker: That's the problem.

Did you ask for it?

Mr. Joseph A. Yablonski: Yes we did.

Unknown Speaker: What way?

Mr. Joseph A. Yablonski: We asked for a stay, I believe Your Honor, after the umpire's decision came down We sought in the alternative before Judge McCune.

Unknown Speaker: But would you tell me why, I gather that your basic argument is that this was not an arbitrable dispute because the contract itself did not make it arbitrable.

Mr. Joseph A. Yablonski: Precisely, Your Honor.

Unknown Speaker: And yet, you did go to arbitration, now why?

Mr. Joseph A. Yablonski: We went to arbitration Your Honor, because Judge McCune required us to arbitrate within 60 days this issue.

We did not want to go to arbitration.

Unknown Speaker: But why didn't you take his order on appeal?

Mr. Joseph A. Yablonski: We did appeal Judge McCune's order.

Unknown Speaker: He didn't get a stay.

Mr. Joseph A. Yablonski: We sought a stay after the arbitrator had ruled Your Honor.

We sought a stay of the return of the men, of the foreman to the mine, or in lieu thereof, we sought a $5 million bond.

Unknown Speaker: Yet, nevertheless appealing the basic (Voice Overlap)

Mr. Joseph A. Yablonski: We contested through a lot, Your Honor, that safety disputes were not arbitrable.

We resisted the submission of these matters to arbitration.

Unknown Speaker: Now he says safety disputes were not arbitrable.

You don't mean (Inaudible) you mean under this agreement, they were --

Mr. Joseph A. Yablonski: Under this agreement, precisely.

Your Honor, has hit the nail precisely on the head.

What is involved here is a construction of the 1968 agreement.

Now -?

Unknown Speaker: Now you to take into position this is a contract case?

Mr. Joseph A. Yablonski: Yes, Your Honor.

Unknown Speaker: Provision to 502 case in anyway.

Mr. Joseph A. Yablonski: Precisely, and the record in this case on the score is rather clear.

The president of our District Four testified that safety disputes had not been arbitrated under the 68 wage agreement.

The company's own president, Gateway's own president testified that Gateway had never arbitrated a case.

He couldn't speak for the rest of the coal industry, but he testified that Gateway had never arbitrated a safety case.

The record in this case, the evidence presented to the District Court, I think rather conclusively establishes that.

Now brought before you --

Unknown Speaker: The original general agreement with the industry, did you get back under the history of that?

Mr. Joseph A. Yablonski: I haven't yet Your Honor, I think that --

Unknown Speaker: No, I mean in the record.

Mr. Joseph A. Yablonski: No we did not.

We believe with respect to the petitioner's contention that these matters are not in the record.

We believe they were in the public record, and they may be observed by this Court.

The Sentrilya hearings which were conducted in 1947, incidentally those hearings were being conducted in the House and in the Senate at the very same time that both the House and the Senate were considering Taft-Hartley.

Justice William H. Rehnquist: Mr. Yablonski, before you get into that, let me ask you one more question about the stay and District Court order of business.

Did the District Court's injunction order you to do anything more than to arbitrate?

Mr. Joseph A. Yablonski: It ordered us to submit the matter to arbitration and ordered the strike terminated Your Honor.

Justice William H. Rehnquist: Well, then why do you wait to seek a stay in the Court of Appeals until you've actually gone to arbitration?

I mean, isn't that aspect I think pretty well moot by then?

Mr. Joseph A. Yablonski: At that particular point in time, the foreman had not been returned to work.

We did not have, at least my view at that point, the kind of persuasive argument that we could make after the foreman were ordered back.

A court might say you're premature in coming in here and asking for a stay.

We don't know that an arbitrator might say that the mine will be rendered unsafe.

We waited until the arbitrator's award came down, and the foreman were to go to work then we thought we had a right issue to take before Court and to ask for a stay.

Unknown Speaker: And you were refused?

Mr. Joseph A. Yablonski: We sought it and were denied it.

Unknown Speaker: By the Court of Appeals?

Mr. Joseph A. Yablonski: Your Honor, I honestly can't say that we applied to the Court of Appeals, if I'm not mistaken we believe we did.

I can recall arguing the matter before the District Court.

Unknown Speaker: The Court of Appeals agreed with you?

Mr. Joseph A. Yablonski: The Court of Appeals agreed with us and when it ultimately reversed we sought before the Third Circuit Your Honor, expeditious oral argument under the Norris LaGuardia Act, and it was granted.

Unknown Speaker: But you think you don't know whether you asked them before that first?

Mr. Joseph A. Yablonski: No, I can't recall Your Honor, whether in this record we had asked the Court of Appeals since then.

Unknown Speaker: I gather the complete record is here Mr. Yablonski, even not printed.

Mr. Joseph A. Yablonski: I would assume that it is Your Honor.

Unknown Speaker: Yes.

Justice Harry A. Blackmun: Mr. Yablonski, one other question.

I of course don't know your Pennsylvania system, but is there anything out of the line between the continued certification of the foreman, and they're being subject to criminal charges and ultimately pleading (Inaudible)?

Mr. Joseph A. Yablonski: There is no dovetailing of these procedures.

I think counsel for the petitioner's indicated Mr. Justice Blackmun, that one is an administrative proceeding and the other is a regular routine criminal proceeding.

Justice Harry A. Blackmun: But does it surprise you that they can go off in different directions this way?

Mr. Joseph A. Yablonski: Well, Your Honor, nothing surprises me after I had petitioner's president on stand in terms of the administrative procedure.

Petitioner's president conceded under cross examination that he has spoken with the man who was then responsible for conducting the decertification proceedings, and had informed him that Gateway was suffering a foreman shortage.

All of this predated the letter that was sent to Gateway saying "You could send these foreman back to work.

Given that ex parte communication between Gateway and the administrative agency, Your Honor, nothing would surprise me.

Chief Justice Warren E. Burger: Mr. Yablonski, when you appeared before the arbitrator, did you make something in the nature of a special appearance for testing --

Mr. Joseph A. Yablonski: Your Honor, I did not appear.

No counsel can appearl.

I was very unfortunate that under our arbitration system, which Judge McCune ruled, we believe incorrectly so, counsel were not permitted to appear at any stage of the arbitration at process.

Unknown Speaker: The crossfire maybe a counsel I guess?

Mr. Joseph A. Yablonski: Yes.

The umpire or arbitrator can be counsel but --

Chief Justice Warren E. Burger: Did the union make a record of proceeding under protests challenging the content --

Mr. Joseph A. Yablonski: Yes, I think at the very outset of those proceedings The union contested it.

Now counsel says that the arbitrator found.

I think, in reality, what the arbitrator did was simply follow Judge McCune's decision.

The arbitrator's decision is before you, is before this Court.

It is before this Court despite the fact that counsel sought to permit that to submit it to the Court of Appeals.

Unknown Speaker: Well, this I gather --

Mr. Joseph A. Yablonski: The Courts of Appeals struck it from the record.

Unknown Speaker: What we have here in Appendix G, I gather is the arbitrators at least beginning at Page 40 is that the arbitrator's opinion?

Mr. Joseph A. Yablonski: That is correct Your Honor.

Unknown Speaker: Now, I notice at page 44 (a) under the subhead safety starts out "The union's position in this hearing and also on Federal Court is that safety is not arbitrable issue."

Is that what --

Mr. Joseph A. Yablonski: Yes, Your Honor, and I think the next sentence indicates that he was fairly following Judge McCune's order submitting this matter.

Unknown Speaker: Whatever, this indicates that the union did --

Mr. Joseph A. Yablonski: Yes, we did.

Unknown Speaker: -- protest that it was not an arbitrable --

Mr. Joseph A. Yablonski: I would also direct Your Honor's, attention to Page 38 (a) of the Appendix submitted at the time the briefs were submitted, and it's in the little brown book.

Page 38 (a), the Petitioner sought when it was a party before the Court of Appeals to submit the arbitrator's decision, and there is a supplemental Appendix.

Page 38 (a) reveals that the Court of Appeals, order signed by Judge Colodner, struck from the record the arbitrator's decision that nonetheless appears in the Appendix to the petition.

Justice William H. Rehnquist: Does the petitioner make the argument that even if it wasn't in the record there, it was in the public record?

Mr. Joseph A. Yablonski: No, I don't believe that this opinion is ever published anywhere Your Honor.

A question was raised Mr. Justice Blackmun, regarding this being a spurious safety case that this was in reality a reporting pay case.

This was adopted by Judge Rosenn in all cander and it is repeated here by the petitioner and by Amici in support of the petitioner's position.

Point of fact, counsel has admitted that the reporting pay dispute occurred on April 16th.

The strike which resulted in the commencement of this litigation, occurred a month and a half later.

It appears to me that if there is a red herring in this case, if there is pre-text being argued by any party, it is not by the respondent, but by the petitioner.

Petitioner has dragged in this reporting pay, in the Appendix in this case, the complaint at page 7 of the Appendix, in paragraph 10 in the complaint, the petitioner when it filed his complaint in court, said the employee members of the defendants have notified plaintiff that the illegal work stoppage occurred, because the defendant local number 6330 had passed a resolution.

That it's employee members would not work with certain assistant mine foreman designated and assigned by plaintiff, to act as supervisors at Gateway in their own verified complaint.

They stated exactly what we are asserting right now.

They seem to have abandoned it.

In addition to this disjointed time frame that they present to Your Honors, that all of a sudden a work stoppage which occurred a month-and-a-half later, after the reporting pay dispute occurred, and coincidently exactly at the same time these foreman were returned to their positions.

They would have Your Honors, believe that they lost their holiday pay.

The company reinstated these foreman on the day following a holiday.

A day the coal miners were required to work if they were to collect their holiday pay.

They would have you believe that the miners forfeited their entire holiday pay, forfeited two weeks work following that.

Some $296,000 in lost wages, because of a dispute involving perhaps a hundred men over four hours reporting pay.

I repeat, if there is a red herring, if there's a pretext in this case, we are not asserting it.

It's the petitioner that's asserting it.

Now, basically what is involved here is the construction of the 1968 agreement.

The relevant provisions begin at Page 10 of the Appendix.

It is the settlement of Local and District disputes appears at page 13.

It's a broad grievance procedure.

We do not deny that.

But petitioner would appear to assert that if there are no limitations appearing in the settlement of Local and District disputes, then there are none, and that is where we differ.

Petitioner acknowledges the fact that National disputes are carved out in another section of this agreement, and outside the grievance procedure.

That appears at page 15 (a).

What we are submitting is that Mine Safety disputes are carved out, and made a separate part, separate procedure.

Under the Bituminous Coal Wage Agreement, two committees are recognized at the mines.

Unknown Speaker: Now, may I ask you Mr. Yablonski?

That's what carves it out safety matters, are they the provisions at pages 12 (a) and 13 (a)?

Mr. Joseph A. Yablonski: Yes, Your Honor, while they begin at page 10 (a), the Mine Safety Program.Oh yes, where the comprehensive program runs to the middle part of 13 (a).

Unknown Speaker: And that all precedes the provision on settlement of Local and District disputes in the text of the --

Mr. Joseph A. Yablonski: Yes, I believe it does Your Honor.

Unknown Speaker: Because as you said that's awfully boarder than the language, isn't it at 13 (a), or should any local trouble of any kind arise at the mine.

Mr. Joseph A. Yablonski: We acknowledge that Your Honor.

We say that looking at the agreement, looking at the establishment of two separate committees at the mine, you will note in the settlement of Local and District disputes at the second step of the grievance procedure.

The dispute is between mine management and the mine committee, refers to as the Pit Committee at many mines.

The Pit Committee or the mine committee handles grievances.

The safety committee handles safety.

When this agreement was set up at the local union level, grievances were handled by the mine committee, safety disputes were handle by the safety committee.

Now drawing Your Honors, you can construe a contract many different ways, and look at the four corners of the agreement.

Look at the interrelationship of the provisions.

Directing your attention to the bottom of page 12 (a) of the Appendix talks about what can occur if that safety committee declares an imminent danger to exist on a section of the mine or in the entire mine.

The safety committee in closing down an unsafe area acts arbitrarily and capriciously, members of the committee maybe removed from the committee.

Grievances that may arise as a result of the removal or request for removal of a member of the safety committee under this section, shall be handled in accordance with the provisions providing for settlement of disputes.

We submit that the parties including that last sentence in there, meant to say that everything else impliedly, everything else in the Mine Safety Program that precedes that is exempt and outside the arbitration provisions.

Unknown Speaker: Who is it that removes members of the committee who act arbitrarily and capriciously?

Mr. Joseph A. Yablonski: The local union, the company requests that that be done.

Unknown Speaker: Yes, but if the union refuses then it goes to arbitration?

Mr. Joseph A. Yablonski: Yes.

But that is the only thing --

Unknown Speaker: And the issue at stake then is whether the committee acted to arbitrarily or capriciously.

Mr. Joseph A. Yablonski: Right, for which they may only be removed from their office.

Unknown Speaker: But does these provisions contemplate that in addition to caring out the procedures of the Mine Safety Provisions here run through these that the union --

Mr. Joseph A. Yablonski: Yes, Your Honor, and that question has been --

Unknown Speaker: Well, wait a minute, should the union also strike while these provisions are going on?

Mr. Joseph A. Yablonski: I think the contract Your Honor, contemplates the work stoppage.

Unknown Speaker: Well, I thought these provisions themselves say only if the mine committee determines that a section of mine is unsafe while employees be removed from that section.

Mr. Joseph A. Yablonski: That's right, it contemplates --

Unknown Speaker: Or the union before that determination is made walk out?

Mr. Joseph A. Yablonski: No, Your Honor, and that's the question the counsel has raised, and I'm that he raised it.

Here we did comply with the provisions of the safety procedure.

We requested an inspection to be made at that mine by Federal and State mine inspectors.

The mine safety committee when accompanied them on that trip, they reported to the local union, the grievous violations that had been committed.

The logging of improper entries The falsification of entries by these foremen.

They supported a resolution brought before the entire membership that they would not work with these foreman, and all of this was communicated to management.

Unknown Speaker: Yes, but how about, did the Mine Safety Committee act?

Mr. Joseph A. Yablonski: Yes, Your Honor, the Mine Safety Committee did act.

Unknown Speaker: What did it say?

Mr. Joseph A. Yablonski: It made the tour.

It reported to the membership of the local union, and the local union, and the words of Judge Hastie acting as a committee of the whole declared that none of its members --

Unknown Speaker: And did it do this, Mr. Yablonski?

In those special instances where the committee believes an immediate danger exists, and the committee recommends that the management remove all mine workers from the unsafe area.

The operators required to follow the recommendation of the committee?

Mr. Joseph A. Yablonski: It did with the local union as a buffer between the committee and the mine operator.

It added that.

Unknown Speaker: That is, this is the basic language upon which you rely.

Mr. Joseph A. Yablonski: Yes, it is precisely Your Honor.

Unknown Speaker: That sentence there was read by my brother Brennan?

Mr. Joseph A. Yablonski: Yes, it is.

Unknown Speaker: And you, I take it before the arbitrator, you said that whether or not the committee acted arbitrarily or not was an issue open to arbitration?

I take it that's what the arbitrator said.

The union states that it feels the only issue which can be arbitrated in this hearing is whether or not the safety committee acted arbitrarily and capriciously.

Mr. Joseph A. Yablonski: That is the only thing under the contract with safety --

Unknown Speaker: Alright, now your position nevertheless is that even though the management challenges the action of the committee, and it claims it's arbitrary and capricious, and therefore the issue becomes arbitrable.

You claim that the union may strike pending that determination of whether the safety committee acted arbitrarily and capriciously.

Mr. Joseph A. Yablonski: There is nothing, Your Honor, in the contract or anything, anywhere else that --

Unknown Speaker: Well, what about Boys Market?

Mr. Joseph A. Yablonski: That is precisely the question, Your Honor.

Unknown Speaker: Well, that issue of arbitrariness or capriciousness of the committee is arbitrable.

Mr. Joseph A. Yablonski: Yes, it is, and that is --

Unknown Speaker: And pending that arbitration, you claim that Boys Market does not preventive strike?

Mr. Joseph A. Yablonski: What I'm claiming Your Honor, is that pending that decision, the contract gives these men that right.

Unknown Speaker: So you're not really relying on that?

Well, as I remember some years now Mr. Yablonski, I wrote Benedict Coal.

And I think as I recall it, and the national agreement had no strike provision at all, did it?

And we divided equally as I remember, I think Justice Stewart then is Judge Stewart as I recall it on the Sixth Circuit.

Justice Potter Stewart: Yes, because I have written Benedict Coal, on before Justice Brennan wrote Benedict Coal.

Justice William J. Brennan: Yes.

(Voice Overlap)

Justice Potter Stewart: -- one of the Circuit Judge.

Mr. Joseph A. Yablonski: And Mr. Chief Justice Burger wrote the dissent in the District of Columbia case.

Your Honor that was one of the questions that was before both the District Court and the Court of Appeals.

Court of Appeals never reached that question or exists a conflict in the Circuits today.

The Third Circuits never passed upon, never saw a foot to pass upon it.

Unknown Speaker: When there's a promise to arbitrate, does it make any different whether the contract has a no strike clause in it?

Mr. Joseph A. Yablonski: We raised and litigated the question.

Unknown Speaker: Well, didn't Boys Market sort of settled in?

Mr. Joseph A. Yablonski: Your Honor, I thought in Boys Markets there was an expressed no strike clause, here there is none.

Unknown Speaker: But then we rather -- I don't know some -- But we've also held that before it was at Lucas Flower or Box, so it didn't make any difference.

Mr. Joseph A. Yablonski: In Lucas Flower.

The issue, Your Honor, in interpreting the 1968 agreement is that there exists this but in Circuits.

We do not believe that that's a question before this Court.

We think that it's a contract question.

We think that Judge Hastie's --

Unknown Speaker: You think it's the Norris LaGuardia question?

Mr. Joseph A. Yablonski: Yes we do, Your Honor.

Because this Court said in boys Markets, Mr. Justice Brennan's language, was that you created, the carved out a very limited exception.

Judge Hastie's decision is supported by Section 502 in terms of public policy.

It is supported by the 1969 Federal Coal Mine Health and Safety Act.

It is supported by the Occupational Health and Safety Act of 1970.

It is supported by the common law of the shop.

It is emanated in arbitration after arbitration since the Seminal decision of Harry Schurman and the Ford Motor Company case as far back as 1944.

All of these, we believe support Judge Hastie's conclusion that safety disputes are sui generis.

In conclusion, in dealing with Norris LaGuardia, Your Honors, and Boys Markets, this Court said in Boys Markets that you did not, and I am quoting “undermine the vitality of Norris LaGuardia”.

You said that it was not every strike over an arbitrable matter that was necessarily enjoinable.

Given the nature of the contract involved herein, the nature of the dispute, the relevant public policy and common law of the shop.

The ordering of injunctive relief here by the District Court collides with the most fundamental of equity principles.

If injunctive relief is appropriate in the case such as this, then surely the class of disputes falling outside the ambit of Boys Markets is in infinitesimal, and Norris LaGuardia is truly a dead letter during the contract term.

Thank you.

Chief Justice Warren E. Burger: Mr. Scheinholtz you have --

Rebuttal of Leonard L. Scheinholtz

Mr. Leonard L. Scheinholtz: If it please the Court.

I'd like to take up several statements that Mr. Yablonski made.

First, his reference to the fact that Mr. Kegel, the President of Gateway, testified that there had never been or he did not recall any arbitration over safety with respect to Gateway.

That in itself is meaningless, because Mr. Kegel also testified that he believed that there had been safety disputes arbitrated under this agreement with other companies, and in fact the brief submitted amicus curiae by the Bituminous Coal Operators Association at Pages 15 to 16 states that at least 40 cases have been submitted to arbitration under the 1968 agreement in the three years preceding this case.

Secondly, I do not even read the respondent's brief is saying that safety disputes are not arbitrable.

What they say is, in their brief that they have the choice.

That they have the right to either submit them to arbitration, or elect to strike.

That is not what Mr. Yablonski's --

Unknown Speaker: As I understood Mr. Yablonski, and as my Brother White, and this is at 43 (a), you agreed with what the umpire said here namely that although the company has not made any charge against the safety committee, and I gather you did not.

Mr. Leonard L. Scheinholtz: That's right.

Unknown Speaker: The union states that it feels the only issue which can be arbitrated in this hearing is whether or not the safety committee acted arbitrarily and capriciously.

Mr. Leonard L. Scheinholtz: They made that claim and it was rejected by the arbitrator.

He ruled that other kinds of safety disputes maybe arbitrated in essence.

Thier argument, as Mr. Yablonski states, is he says that by virtue of the fact that the Mine Safety Programs states that the removal of the Mine Safety committee can be subject to arbitration that this impliedly excludes all other types of safety disputes.

It doesn't say that --

Unknown Speaker: Let's assume for the moment the regular arbitration clause in the contract does not reach safety disputes.

Let's just assume that for the moment.

Then the only other grounds for arbitration is the safety provisions -- the safety clauses itself.

Mr. Leonard L. Scheinholtz: Right.

Unknown Speaker: Which are limited to deciding whether the safety committee acted arbitrarily or capriciously.

Mr. Leonard L. Scheinholtz: I don't agree with that.

The mere fact that the Mine Safety Program says that this type of dispute maybe submitted to arbitration, doesn't necessary rule out the fact that other disputes regarding safety maybe submitted to arbitration.

Unknown Speaker: Yes, but under another provision not this one.

Mr. Leonard L. Scheinholtz: Well, even this provision doesn't provide for arbitration.

It refers the parties to the settlement of Local and District disputes procedure for arbitration.

In other words the Mine Safety Program provision contains no provisions specifically dealing with arbitration.

Unknown Speaker: But it refers you to another provision that the --

Mr. Leonard L. Scheinholtz: Through the settlement to the regular grievance arbitration procedure.

The same --

Unknown Speaker: In only what issue?

Mr. Leonard L. Scheinholtz: No, it just says that kind of a dispute maybe submitted by arbitration --

Unknown Speaker: And that's the only reference with respect to that issue.

Mr. Leonard L. Scheinholtz: But, I don't think that that means necessarily.

There are others which are not subject to arbitration.

In any event that's a question concerning the interpretation and application of the agreement that the arbitrator is in a position to determine.

He determined that against the union.

Now, finally I would like to mention the fact that Mr. Yablonski says that Judge McCune ruled --

Unknown Speaker: (Inaudible) but is that an issue we have to decide?

Mr. Leonard L. Scheinholtz: I don't think you have to decide it, because the arbitrators already decided it.

Unknown Speaker: Well, even if there hadn't in fact an arbitration in this case, I'm sure your position would be that is for an arbitrator to decide not for the Court?

Mr. Leonard L. Scheinholtz: That is exactly right that is my position.

Unknown Speaker: Right.

But the provisions under the Mine Safety clauses for arbitration weren't triggered because the company didn't challenge this safety committee.

Mr. Leonard L. Scheinholtz: No, before that, before you ever get to that point the union has to invoke the Mine Safety Procedures, which it never invoked.

They never made the request to management for withdrawal of the manner, or any of those things that are provided.

The only way you get to the terminal point of the Mine Safety Program is if they invoke the procedure.

They're in the position of relying upon a procedure that they never invoked.

Now, one other thing that I'd like to mention, is the fact there was no ruling by Judge McCune that counsel could not be present in this arbitration.

There is a specific provision in the settlement of Local District disputes or procedure that specifies that.

That's right in the grievance arbitration clause.

I don't know how it got there, but it is there.

Finally, the reason that the award was -- the arbitration award was stricken, because in point of time, it happened to come down after the record had been transmitted to the Court of Appeals as we stated in Footnote 12 to our reply brief.

In a companion or related case, Unites States Steel Corporation versus UMW in point of time the arbitration the word came down before the record was transmitted to the Court of Appeals, and it's part of the record in that case.

And finally, obviously that court must still consider the arbitration award material to this proceeding, because it plays great emphasis on it and its decision, and it is.

It is a part of this case.

Chief Justice Warren E. Burger: Thank you Mr. Scheinholtz.

Thank you Mr. Yablonski.

The case is submitted.