468 F.2d 1139 (D.C. Cir. 1972), 21129, International Union, United Mine Workers of America, Its Districts 17 and 28 v. N. L. R. B.

Docket Nº:21129, 21226, 23947.
Citation:468 F.2d 1139
Party Name:INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, ITS DISTRICTS 17 AND 28, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Dixie Mining Company et al., Intervenors. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BITUMINOUS COAL OPERATORS ASSOCIATION, Respondent, International Union, United Mine Workers of America, Districts 1
Case Date:October 02, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1139

468 F.2d 1139 (D.C. Cir. 1972)

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, ITS DISTRICTS 17 AND 28, et al., Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

Dixie Mining Company et al., Intervenors. NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

BITUMINOUS COAL OPERATORS ASSOCIATION, Respondent,

International Union, United Mine Workers of America, Districts 17 and 28, et al., Intervenors.

DIXIE MINING COMPANY, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent, W. A. Boyle et al., Intervenors.

Nos. 21129, 21226, 23947.

United States Court of Appeals, District of Columbia Circuit.

October 2, 1972

Argued June 7, 1972.

Mr. Julian H. Singman, Washington, D. C., with whom Mr. Orlin L. Livdahl, Jr., Washington, D. C., was on the brief, for petitioner in No. 23947. Mr. Stephen M. Nassau, Washington, D. C., also entered an appearance for petitioner in No. 23947.

Page 1140

Ms. Marion Griffin, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel at the time the brief was filed, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Glen M. Bendixsen, Atty., N. L. R. B., were on the brief, for respondent in Nos. 21129 and 23947 and petitioner in No. 21226.

Mr. Willard P. Owens, Washington, D. C., with whom Messrs. Edward L. Carey, Harrison Combs and Charles L. Widman, Washington, D. C., were on the brief, for intervenors in No. 23947.

Ms. Kathleen A. Merry, of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of court, with whom Mr. Edward T. Tait, Washington, D. C., was on the brief, for intervenors United States Steel Corp. and others in Nos. 21129 and 21226. Mr. Eric Stoer, Washington, D. C., also entered an appearance for intervenors United States Steel Corp. and others.

Mr. Edward T. Tait, Washington, D. C., and Ms. Kathleen A. Merry filed a brief on behalf of United States Steel Corp. and others as amicus curiae in No. 23947.

Messrs. Stanley R. Strauss, Washington, D. C., and Frank H. Stewart, Cincinnati, Ohio, entered appearances for intervenor Dan S. Davison in No. 21129.

Messrs. John A. McGuinn and Guy Farmer, Washington, D. C., entered appearances for respondent in No. 21226.

Before BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

These consolidated appeals in this continuing litigation 1 challenge certain provisions of the National Bituminous Coal Wage Agreement as violative of Section 8(e) of the National Labor Relations Act. 2 For the reasons stated below, we dismiss all appeals for lack of a justiciable case or controversy and want of jurisdiction.

I. No. 23, 947

In 1958 the United Mine Workers and the Bituminous Coal Operators Association amended the National Bituminous Coal Wage Agreement by inserting a so-called "Protective Wage Clause" (PWC). The clause provides, in relevant part: "* * * [T]he Operators agree that all bituminous coal mined, produced, or prepared by them, or any of them, or procured or acquired by them or any of them under a subcontract arrangement, shall be or shall have been mined or produced under terms and conditions which are as favorable to the employees as those provided for in this Contract."

Independent coal producers challenged this clause before the Labor Board, and in 1963 the Board held that it was a "union standards clause" in violation of Section 8(e). See Raymond O. Lewis, W. A. Boyle and John Owens, 144 NLRB 228 (1963). When review was sought in this court, we pointed out that the Board's decision preceded several of our decisions permitting union standards clauses so long as they were "'germane to the economic integrity of the principal work unit."' See, e. g., Orange Belt District Council of Painters No. 48 v. NLRB, 117 U.S.App.D.C. 233, 237, 328 F.2d 534, 538 (1964); Truck Drivers Union Local No. 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539 (1964). Cf. National Woodwork Manufacturers Assn v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

Page 1141

We therefore remanded the case to the Board for further consideration. Lewis v. NLRB, 122 U.S.App.D.C. 18, 350 F.2d 801 (1965). On remand the Board set the case for hearing before a trial examiner and, upon receipt of the trial examiner's report, dismissed the complaint. See W. A. Boyle, George J. Titler and John Owens, 179 NLRB 479 (1969). Petitioners now seek review of that dismissal.

In our view, this case is moot. On November 4, 1959, one week before the effective date of Section 8(e), the Joint Industry Contract Committee suspended operation of the PWC and the clause has not been enforced since. Moreover, shortly after the Board first declared the PWC illegal it was replaced in the National Bituminous Coal Wage Agreement by the so-called "80-cent clause." 3 Thus the PWC presently appears in no contract and has no effect on the primary conduct of any party. "When events during the pendency of the appeal have eliminated any possibility that the court's order may grant...

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