INTERNATIONAL U., UNITED MINE WKRS., DIST. 17 & 28 v. NLRB

• Decision Date: 02 October 1972
• Docket Number: 21226 and 23947.,No. 21129,21129
• Citation: 468 F.2d 1139
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

468 F.2d 1139 (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 and 23947.

United States Court of Appeals, District of Columbia Circuit.

Argued June 7, 1972.

Decided October 2, 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.

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 litigation¹ 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: "* * * The 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). 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 meaningful relief affecting the controversy that precipitated the litigation, applicable doctrine permits, and judicial administration generally calls for, dismissal of the appeal." Alton & Southern Ry. Co. v. Int. Assn of Machinists & Aerospace Workers, 150 U.S.App.D.C. 36, 41, 463 F.2d 872, 877 (1972). We therefore think the issue of the PWC's validity lacks the immediacy of a live controversy calling for judicial resolution. See, e. g., SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). If the union subsequently attempts to insert the PWC in a later contract or if some party later attempts to assert rights derived from the PWC, there will be time enough then to consider the difficult issues which it poses. Cf. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

II. Nos. 21,129 & 21,226

As indicated above, when the PWC was first declared illegal the union and coal producers quickly moved to replace it with the so-called "80-cent clause" which provided, in effect, for an 80-cent royalty to the union welfare fund for each ton of coal purchased from a nonunion coal producer.⁴ Independent mine operators again challenged this clause as violative of Section 8(e), and the Board initially upheld their claim and issued a cease and desist order. See Int. Union, United Mine Workers, 165 NLRB 467 (1967). The union's petition for review (No. 21,129) and the Board's cross-petition for enforcement (No. 21,226) were then consolidated in this court, and in Int. Union, United Mine Workers v. NLRB, 130 U.S.App.D.C. 244, 399 F.2d 977 (1968), we denied enforcement and remanded the case so the Board could consider whether the 80-cent clause functioned as a lawful surrogate for the PWC.

Pursuant to this remand,⁵ the trial examiner held additional hearings and filed proposed findings of fact and conclusions of law holding once again that the 80-cent clause violated Section 8(e). Thereupon the Board reversed both the trial examiner and its previous decision and dismissed the complaint. See Int. Union, United Mine Workers, 188 NLRB No. 121 (1971). With the cases in this posture we ordered, sua sponte, that Nos. 21,129 and 21,226 be consolidated with No. 23,947 (the PWC case) for review.

Shortly after this court's consolidation order, Dixie Mining Company, one of the charging parties, moved to vacate the order and, when this motion was denied, suggested a rehearing en banc. Although en banc rehearing was also denied, the court noted that the jurisdictional issues raised by Dixie Mining Company "may be considered by the panel when the cases are heard on the merits * * *." We have now given careful consideration to these issues, and we conclude that we lack jurisdiction in Nos. 21,129 and 21,226.

The most salient fact about the 80-cent clause cases is that no party has yet appealed from the Board's second supplemental decision dismissing the Section 8(e) complaint. Accordingly, there is no par...