Peabody Coal Co. v. LOCAL U. NOS. 1734, 1508 & 1548, UMW

• Decision Date: 13 September 1973
• Docket Number: No. 72-2106.,72-2106.
• Parties: PEABODY COAL COMPANY, Plaintiff-Appellee, v. LOCAL UNION NOS. 1734, 1508 AND 1548, UNITED MINE WORKERS OF AMERICA, and District 23, United Mine Workers of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

484 F.2d 78 (1973)

PEABODY COAL COMPANY, Plaintiff-Appellee, v. LOCAL UNION NOS. 1734, 1508 AND 1548, UNITED MINE WORKERS OF AMERICA, and District 23, United Mine Workers of America, Defendants-Appellants.

No. 72-2106.

United States Court of Appeals, Sixth Circuit.

September 13, 1973.

Albert W. Spenard, Madisonville, Ky., for appellants; William R. Thomas, Madisonville, Ky., Harrison Combs, Washington, D. C., on brief.

Ronald M. Sullivan, Owensboro, Ky., for appellee; William G. Craig, John S. Hager, Sandidge, Holbrook, Craig & Hager, Owensboro, Ky., on brief; Joseph M. Touhill, St. Louis, Mo., of counsel.

Before EDWARDS, PECK and KENT^*, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This is an appeal from a finding of contempt for violation of a temporary restraining order in a labor dispute. The dispute involved three underground coal mines in Western Kentucky, the Ken, the Star and the River Queen, all owned by the appellee Peabody Coal Co. Each mine is represented by an appellant local union and all three locals are within District 23, United Mine Workers, also a defendant-appellant.

The dispute centers about the inspection of conveyor belts which convey coal from the producing coal face in an underground mine to the outside. These inspections are necessary to prevent frictional mine fires and explosions of the gas that accumulates when coal and coal dust build up around the belts during their operation. Under the Federal Coal Mines Health and Safety Act of 1969, which became effective in March 1970, such inspections are required ". . . after each coal-producing shift has begun." 30 U.S.C. § 863(d)(1).

When the Act took effect in 1970, the Federal Bureau of Mines (hereafter Bureau) accepted the State of Kentucky's then current program for certifying these belt inspectors until such times as the Bureau could view the program. At that time neither the Act nor the Bureau had established criteria for certifying belt inspectors.¹ The Act provides, and did then as well, that a certified person is one who is "certified . . . by the State in which the coal mine is located to perform duties prescribed by the Act, provided that the State program meets the minimum Federal standards established by the Secretary. . . ." 30 U.S.C. § 878(a). In March 1970, Kentucky was providing only "first class" certification, a classification given to a candidate who had met certain training and experience standards fixed by the Kentucky Department of Mines and Minerals (hereafter Department). Thereafter, however, Kentucky established requirements for "Belt Examiners," an apparent lower level of classification, and certified people meeting the qualifications. Among other things, the qualifications for "Belt Examiners" did not include the experience level required for "first class" certification. Of course, the Bureau had not recognized this classification since it had not reviewed and approved it.

On April 25, 1972, a grievance² was filed at the Ken mine claiming inadequate compensation for the four union belt inspectors there. This grievance reached the third stage of the grievance process when the parties agreed to hold the grievance in abeyance pending the outcome of the negotiations between the Bureau and the Department regarding the qualifications and certifications of the belt inspectors.

On May 13, a grievance filed at the Star mine asked that the belt inspectors' duties be "posted"³ for union members with the first class certification. This grievance was also held in abeyance by agreement of the parties pending the outcome of the aforementioned negotiations.

In the meantime, the parties agreed, both at the Star mine on May 20 and the Ken mine on May 30, that only union members would inspect the belts until the federal-state agreement was reached. As to the River Queen mine, since the grievance procedure regarding these disputes had only been orally initiated as of June 1, the only agreement reached referable thereto was that the resolution of any grievance would await the outcome of the negotiations.

On May 31, the Bureau announced that Kentucky's first class certification would be required for all belt inspectors. The next day, at the Star, the union demanded that the jobs be opened for bids, and when this was not done, the miners struck. On June 2, however, the Bureau apparently changed its position and announced that the state certified "belt examiners" were tentatively acceptable. On that day the miners at Ken walked out and on June 3 the River Queen's miners joined the walkout. At none of the mines was there a resort to the grievance procedure.⁴

On June 6, a complaint having been filed by Peabody on June 5, the U.S. District Court for the Western District of Kentucky granted a temporary restraining order which required the parties to submit the dispute to the grievance procedure and enjoined the work stoppage at all three mines. But the striking miners did not return to work and on June 9 an order to show cause why the defendants-appellants should not be held in contempt of court was issued by the District Court. Defendants' response set up two basic defenses: first, that the walkout was caused by unsafe working conditions and thus is protected under 29 U.S.C. § 143⁵; second, that the defendants attempted to get the miners to return to work but were unsuccessful.

At the show cause hearing held on June 14 the District Judge observed that his crowded docket precluded the conduct of a full hearing and allowed each side a 15-minute argument after refusing to take evidence on the defenses or the contempt charge itself. He then found the defendants in contempt of court, fined the Locals $2,500 plus $500 per day for each day after June 14 that they remained in contempt, and fined District 23 $5,000 and $1,000 per day for each day after June 14 it was in contempt. At the same time the parties agreed to continue the temporary restraining order and stipulated that it had been "providently granted." A hearing on the request for a preliminary injunction was scheduled for June 20.

On June 16, Peabody filed a motion to reconsider the June 14 contempt fines and increase them, alleging that the defendants were still in contempt. This motion was considered by the District Judge at the time of the hearing on the preliminary injunction, and on June 22 the Court raised the fine to $4,000 per day against the District and $1,000 per day against each Local. It appears that this action was successful in forcing the miners to return to work because there are no other proceedings in the record involving this issue.

On June 20-21, a hearing was conducted on Peabody's motion for a preliminary injunction at which the District Court considered all the motions then pending in the case. On June 22, the District Court issued a preliminary injunction which ordered the defendants to end their work stoppage and submit the dispute to the grievance machinery. Six days after the filing of the preliminary injunction, defendants filed a motion to reconsider the fines against them, alleging that (1) Peabody had notified the striking miners of the contempt hearing on June 14 and then used their presence at the hearing as evidence that the defendants did in fact have control over them, and (2) that the Court had allowed no evidence to be taken at the contempt hearing and therefore the fines should be reexamined in light of evidence subsequently received involving the unions' attempt to get its members to return to work. This motion was overruled by the District Court on July 17. On August 16 the defendants filed a notice of appeal from the "July 17, 1972" order.

Three jurisdictional issues are raised on appeal. First, it is claimed that the appellants have failed to designate a final, appealable order in their notice of appeal; second, that the contempt order is interlocutory and hence non-appealable; third, that the notice of appeal was untimely filed. We will treat these sequentially.

Peabody first contends that this Court lacks jurisdiction to consider this appeal for the reason that the notice of appeal indicates that the defendants are appealing a discretionary order which is non-appealable; namely, the denial of a motion for reconsideration. We conclude, however, that the failure of defendants to name either the June 14 order (contempt citation) or the June 22 order (preliminary injunction) is not fatal to the appeal.

In the case of United States v. Ellicott, 223 U.S. 524, 32 S.Ct. 334, 56 L.Ed. 535 (1912), a judgment was entered in May 1908 and a timely motion for a new trial was filed in August, which was overruled in January 1909. Later that January, a motion was made to amend the findings of fact and that motion was granted in part and overruled in part on February 15. Notice of appeal was then filed on February 25 from the judgment in January denying the motion for new trial. Responding to the allegations that the appeal was not taken within the statutory ninety-day appeal period and that the appeal was filed from the order denying the motion for new trial, the Court stated a general rule that judgments are not considered final, and hence the time for appeal does not run, until the date of disposition of a motion for new trial or petition for rehearing, if applicable. 223 U.S. at 539, 32 S.Ct. 334. The Court also found that the failure to specify in the notice the final judgment of May 1908 was not fatal.

The rule has been applied more recently in the Courts of Appeals. For example, in Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir. 1972), plaintiff had filed in the District Court a series of motions, the effect of which was to request a new trial under Rule 59, F.R.Civ.P. The motions were denied and the notices of appeal referred only to the orders denying these motions. Nevertheless the court said:

"The denial of a Rule 59 motion is normally appealable only in connection with the judgment to which it relates. . . . How

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