United Mine Workers of America v. Pennington

PETITIONER:United Mine Workers of America
RESPONDENT:James M. Pennington et al.
LOCATION:Longshore and Warehouse Union

DOCKET NO.: 48
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 381 US 657 (1965)
ARGUED: Jan 27, 1965
DECIDED: Jun 07, 1965

ADVOCATES:
Harrison Combs – for the petitioner
John A. Rowntree – for the respondents
Theodore J. St. Antoine – for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal

Facts of the case

Question

Audio Transcription for Oral Argument – January 27, 1965 in United Mine Workers of America v. Pennington

Earl Warren:

Number 48, United Mineworkers of America versus James M. Pennington et al.

Mr. Combs.

Harrison Combs:

Mr. Chief Justice, may it please the Court.

This case is here all the writ of certiorari to the Sixth Circuit of Appeals.

The main question may be stated as follows, where a labor union is charged with having conspired with employee or groups in violation of the Sherman Antitrust Act when it executed an industry-wide both the employer collective bargaining agreement which results in stabilizing wages and working conditions at levels to the ability of some employers to pay.

And there is no direct evidence to prove the conspiracy may the Court or a jury inferring conspiracy from union’s pursuit of collective employee rights protected are regulated by the facts with the Acts Section 7 and 8.

In my draft, the antitrust — at the antitrust immunity of labor unions and the clear the proof requirement of Section 6 for the Norris-LaGuardia Act.

I think that is the main question in this case.

The respondent Pennington going business at the Phillips Brothers Coal Company as a partnership where the small coal stripping operation in Campbell County, Tennessee, in 1953, this company executed what we call in 1950 Bituminous Coal Wage Agreement as amended in 1952.

The company again executed in 1955 amendment to Bituminous Coal Wage Agreement and in 1956 amendment to the agreement.

In 1958, the Trustees of the United Mine Workers of America will acquire retirement fund instituted an action against Phillips for a money judgment for delinquent royalties due under the provisions of the various agreements that have signed.

Phillips filed a cross claim against United Mine Workers alleging that the mine workers, the trustees of the welfare fund and certain coal companies not named as parties had entered into a conspiracy to monopolize the coal industry by fixing the wage scales and the payment for the welfare fund and certain other provisions in the contract as such levels as would be tailored effect, the major coal companies but which would be at such a high level that it would force small coal mines out of business.

The purpose alleged by Phillips was to stabilize the economics of the coal industry and to eliminate the problem of overproduction by eliminating the smaller mines from the coal mining industry and if the conspirators knew when they executed the 1950 contract at this — this could not pay the wages and the welfare fund benefits.

According to Phillips, the union agreed to surrender its policy of what they said was controlling the working time of the industry and also to not object to the large coal companies recognizing their mines in order to lower the cost of production.

Now, the union in turn was promised by the coal — by the coal companies according to Phillips that the coal companies would not object to increase wage rates and increase payments to the welfare fund subject to their ability to mechanize and absorb the cost and also, that they would permit the union to run a welfare fund, and also to dominate the industry’s employees.

The conspiracy as alleged was to be consummate through the instrument of the 1950 Bituminous Coal Wage Agreement and its successive amendments.

It is alleged that there was an expressed agreement to that effect.

The increased organizing activities after 1950 with intended wage increases and welfare payments, and the operators’ efforts and the union’s efforts to obtain a minimum wage rate for the coal industry under the Walsh-Healey Act and to how the government agencies, the purchasing agents to comply there with and the union’s investments in two coal companies were among the elements which the company claimed through the conspiracy.

The union denied the conspiracy and denied making any agreement whatsoever other than the 1950 Bituminous Coal Wage Agreement.

The case was tried by the jury.

The jury rendered a general verdict fining that the union had conspired beyond its exemptions as a labor union under the antitrust statutes.

It did not say with whom the union had conspired or it didn’t say what elements that it thought constituted the conspiracy.

The damages were in rendered?

Harrison Combs:

Damages were assessed against the union, Mr. Justice Harlan of $93,000 in travel and then, the Court allowed $55,000 in damages for attorney’s fee.

The jury rendered the verdict $93,000.

Now all motion N.O.V. or for new trial, the District Court stated and the sole reason that he gave for sustaining the verdict with the jury was this and I quote, “There to his own proof that union representatives, a large coal operator representatives, discussed stabilization of prices at one time or another during the critical periods referred to in the cross claim.”

We submit that the evidence of the record does not sustain the court’s assumption of that discussion of prices.

This assumption was based upon two items of evidence as far as I know, a statement by President Louis that the time may come when a division of work in the industry may become necessary and another statement that I’ll come to later.

Arthur J. Goldberg:

(Inaudible)

Harrison Combs:

Your Honor, that is correct, Mr. Justice Goldberg —

Arthur J. Goldberg:

(Inaudible)

Harrison Combs:

We suggest that it could not be that a bare reading of both statements was simply collective bargaining that it’s customary practice with respect to that argument.

Arthur J. Goldberg:

(Inaudible)

Harrison Combs:

Not only —

Arthur J. Goldberg:

(Inaudible)

Harrison Combs:

— not only in the mining industry but at all basic industries.

Now, the Sixth Circuit ignored the trial court’s reason for sustaining the jury’s verdict.

Instead, a Sixth Circuit cited what it called or some factual aspects of what they thought with proper inferences on the part of the jury could sustain the jury’s verdict.

And I’ll try to discuss that within the limitations of my time and my colleague.

Willing to wage increases during the eight-year period of the alleged conspiracy, that is 1950 – 1958 and in 1952 increases in payments to the welfare fund, the Sixth Circuit declared and I quote, “We think the evidence support the contention of Phillips that the union knew that the weaker companies could not meet the increased cost of wages and welfare fund payments required by the successive wage agreements.

And that they would fall by the wayside by reason thereon and that the increase cost in the successive wage agreements voir dire to the abilities of the major coal companies to mechanize and not have their profits affected by increased cost.”

And I close quote.

Now, what are the facts with reference to the wage increases if the court commented and book?

The record shows that the United Mine Workers and the coal operators have negotiated collective bargaining agreements on multiemployer basis such as inception of the mine workers in 1909.

It says 1941, wage increases, mechanical loaded or hand loading or what not have been across the board and across the industry.

In other words, the inside men, that the outside men of — they got a dollar a day, it was across the board whether it’s the hand loader or what not.

During the 1946 and 1948 period, the miners obtained wage increases of $4.05 per day.

The welfare fund payments which was established in 1946 when the government had position to mine at $0.05 per ton with increase to 20 cents per ton in 1948.

The 1950 contract increased wages $.77 per day and fund payments to $0.36 per ton.

Now in the eight-year period following the 1950 agreement, the period of the alleged conspiracy, wages increased to $9.50 per day and fund payments from $.30 to $.20 per ton.

There’s no evidence that these increases were too high or out of line within the increases not the basic industries.

As a matter of fact, we showed in our brief that the mine workers were behind on frequency of the increases during this time, but still an automobile and that the comparative increase and their frequency and method of negotiating these were comfortable in the industry.

These unions, in fact, we all know look at each others see what each accomplishes and its pretty well of a set out of the results.

Now, that the question of the mechanization of mine and this was dealt with at length, very lengthy hearings, pictures and all of these.

The mechanization of the mining industry, we submit, were not brought about by any conspirator or conduct, it was brought about the necessities of modern technology.

The coal industry has never, I mean, the mine workers had never objected to mechanization and modernization of the mine.

They’ve tried to get their share of any profits that may come up.

Prior to 1950, in 1940 as a matter of fact, 35% of coal underground was loaded by mechanical mean.

That’s distinguished from hand loading with a shovel.

And in 1949, this had increased to 67% and in 1958 that increased to 84% of mechanical loaded underground thereof.

Harrison Combs:

The necessity of luring that cost should indicated with this that the national market, the share of the national energy market on a part of coal.

In 1940, it was 47% and in 1958, at the time of this trial, it had gone down to 23%.

Despite the fact of the increased on all over these years, coal in 1958 sold from 40 to 65 cents a ton, cheaper than it did in 1948.

So they certainly could not been any harm to the consumer in any way.

Now, there are two other principal aspects pointed out with the Sixth Circuit that they have thought warranted the jury’s verdict.

One was what they called the Land Lease Clause in the contract and the other is what they call the Protective Wage Clause.

Both of these clauses provided an effect the Land Lease Clause did that the signatory of operate but not during the life of the agreement lease up.

His properties that is sub-refuge toward the application of agreement, the wages and the benefits and I think that’s the clause first within started in the bituminous coal contracts in 1943.

It was amended in 1952 to include lands that may be acquired by the signatory operator after he had executed the contract if they were put into production that the substitute clause would apply.

Now, the Protective Wage Clause simply provided that work, an operator under subcontract arrangements bought coal and sold it that the cost — the labor of cost and standard of that to coal would have to be at least equal to the cost of the contract.

Now, both of these clause were inserted at their bargaining of years only in and on the part of the union to protect the integrity of the wage agreement once it was executed to try to keep at for being fairer rate on the one hand.

We submit that it was a bargaining proposition under the decisions of this Court and under the Labor Act.

Now, the Court commented that is the Court of Appeal that the Land Lease Clause could be used to bar the smaller operators from coal reserves.

But they ignored the testimony in the record undisputed that in this country of ours, we have 1700 years of coal reserve as testimony by the head of the division of the Bituminous Coal in Bureau of Mines.

And that if the present degree of consumption, that’s about 450 million tons of coal a year.

That the — there were 8000 mines in excess of that 8307 producing coal of which 2000 of those mines were under the class of Pennington.

That was smaller than that Pennington and 5000 of those mines were producing less than 10,000 tons of coal per year.

Now, all of these mines were sharing and these 1700 years of coal reserves.

Now to get to Phillips specifically, his share, his price that share in Tennessee of coal production in 1950, that price the mines produced 13% of the Tennessee production, the entire production.

In 1958 with the Congress trial, this place of mines produced 30% of the Tennessee production.

It had doubled its production.

The very respondent in this case, he was claiming that they have been excluded from the industry.

By 1955 and 1958, the United Mine Workers and signatory operators petition the Secretary of Labor for a finding of a prevailing minimum wage in the coal industry.

The Mine Workers Consolidation Coal Company and several other coal companies joined in the petition.

This petition — this petition was filed because of the increase and the purchasing of the TVA.

Government purchases have risen a lot.

Now after public hearings, the secretary established the minimum wage in 1955.

Some of the operators objected and they sought an injunction in the District of Columbia Court and they have a hearing in the Court, and the Court of Appeals in the District of Columbia and both courts sustained the finding of the secretary.

Now, the Court also approved its relevant that is the Sixth Circuit that the Secretary of Labor, the late Secretary James Mitchell in 1956, had made a speech to the mine worker’s convention at which time he had in the course of his remarks described his setting of a prevailing wage in the coal industry.

And he said that, he did it, to preserve the industry against self-standard operators.

Harrison Combs:

And I think, the secretary, who did the secretary mentioned nine union operators that was a purpose of the Walsh-Healy Act was to keep the standards from being pulling low and he had established that.

And of course, Mr. Louise is very please about it and he responded to it and said it, Mr. Mitchell is a good secretary.

And that was made one month before the election in 1956.

But this was used as evidence to show that the mine workers and somebody had conspired to fix the market, so that Phillips couldn’t sell the coal.

Now the Court, the important thing about this Your Honor is the Sixth Circuit held that it was reasonable deduction by the jury to infer, with these two things that I have described, for the jury to make that the wage determination for the coal industry adversely affected the operation of Phillips in the important TVA market.

Well, I submit Your Honors, if he couldn’t come in the classification that was the purpose not only of the wage standard but it’s the purpose of the law.

And I submit that the action here is in direct conflict with this Court’s decision in the Noerr case.

The Presidents Conference against Noerr more than three companies in which it was alleged that the truckers tried to destroy the railroad by getting the law passed that would eliminate their most competitors.

And this Court is speaking to Mr. Justice Black said that the fact that it may — that the petitioners may have in mind eliminating some competitor wasn’t accepted in the fact, in trying to get a law passed.

And trying to get one imported and yet the Sixth Circuit said that they didn’t read the Noerr case to include the intent to violate the Antitrust Act on the part or to eliminate competitors.

And therefore that report it was analogous, it could be submitted to the jury for their consideration.

And the court said, “The jury could consider if and see whether or not that the intention was to get a prevailing wage for the benefit of the miners or whether it was to chase these small producers out the coal industry.”

Now, we submit that Court was clearly wrong in that.

Now, there’s one other item that I’d like to discuss briefly of this so-called factual aspects of the Court and that is that in 1954, the mine workers executed a contract with the West Kentucky Coal Company.

At the time of the execution of that contract, West Kentucky Coal Company operated nonunion for some 50 years.

At the time of the execution, it was shown that the union owned in the West Kentucky Coal Company some 85,400 shares of common stock that they have bought off the market.

In this company, out of a total by 870 — 4000 shares and they hold all — hold all the 50,000 shares up to very stock.

And that subsequent to the signing of the contract, West Kentucky purchased the National Coal Company and, of course, the stockholding interests of mine workers went on into the subsidiary of National Coal Company.

And the Court declared, the Sixth Circuit declared that it was unreasonable for other jury to consider that it was a purpose of the union in acquiring the stock to have a very immaterial it was, if not the determining was and the policy to manage with the operations of these two coal companies.

Now as I said neither of these companies were signatories in 1950, it didn’t come until 1954 and the facts are undisputed by six or seven witnesses that the mine workers had absolutely nothing to do, with the management, with the marketing or the purchasing policies of West Kentucky Coal Company at any time.

And the fact that West Kentucky Coal Company may have entered into bids with the TVA and whatever they did, that the mine workers had nothing to do with.

And I submit that the facts are undisputed on that case and I certainly do not see where this evidence would be admissible.

(Inaudible)

Harrison Combs:

Only two coal companies at that time.

Yes, Your Honor.

It is whether to (Inaudible).

Harrison Combs:

They had loaned — they have not loaned but they had under with a loan to the West Kentucky Coal Company, one loan as far as I know.

With the same company?

Harrison Combs:

Same company.

And they have made a loan of a substantial amount to another company in 1959 in the eastern part of Kentucky.

Harrison Combs:

The purchase of lease is not set here.

So that is all the way for that.

Potter Stewart:

(Inaudible)

Harrison Combs:

Yes.

No.

No, Your Honor not exactly.

You have to get out of this way.

These two coal companies operated in the western part of the TVA system.

Phillips operated in the eastern system.

Neither one sold in the —

Potter Stewart:

I’m not familiar with that which is west and which is east?

Harrison Combs:

Now, the western flowing down to Mississippi River and the TVA’s extends over next to Kentucky and down to Alabama then come back up to Tennessee.

And the coal of transportation problems, the coal is sold by the West Kentucky people, are sold to the western division because you got water ways and the freight rates.

Now of course, I want to be frank about this, the Phillips claims that it didn’t make any difference were which claim about the coal with the whole land way and the one loaded system and they were all in competition therefore.

Potter Stewart:

These involve the market for the spot market for steam generating coal?

Harrison Combs:

This involves spot market because Phillips says — said he wasn’t shape to compete for term markets.

Potter Stewart:

And that’s low cost coal, isn’t it?

Harrison Combs:

And that’s very low cost coal and it’s coal and ordinarily that are substantial company don’t want to prove with.

Potter Stewart:

Very low price coal rather.

Harrison Combs:

Low price coal unless the markets were bad then they sell it to anybody that can.

Potter Stewart:

And the claim is that West Kentucky’s bid were so low that it made an impossible for anybody —

Harrison Combs:

Yes, Your Honor.

We discussed that with quite a few statistics on it.

We discussed it in the brief that is plain.

But I think the facts will show you, Your Honor that in 1956, when they are talking about its start, the West Kentucky’s bids followed the market.

It was not Noerr and practically all the institute, they were the highest bidders.

There were not too many bids there.

In 1956, it was the top consumption of the TVA’s system and from 1956 to ’57 and 58, National Coal Production pay all from 500 and some on million tons.

Now in approximate 400 million and it was push in, and the TVA said itself that the — that because whether factors of loans that caused the price to drop.

Now, the new evidence whatsoever that West Kentucky conferred with the union or with the other companies with reference to the bids that made.The evidence is completely to the contract.

Potter Stewart:

If you’re right about that and also right about the fact that the evidence is completely clear and uncontradicted that that union had no voice at all in the management of West Kentucky then whenever was Kentucky did, I suppose that it’s irrelevant to this — to this?

Harrison Combs:

Your Honor, Mr. Justice Stewart, that’s exactly our position and we say that the evidence is clear on that.

As a matter of fact, I’m really say this to the Court that there’s very little dispute while there’s a lot evidence in here and very little dispute about the facts, very little, anywhere with these papers and then on and off.

Now —

(Inaudible)

Harrison Combs:

I think fairly reading that record there that it shows they did it to expand the working opportunities of the members.

They’ve been certified in this company by the board.

It come in this Court and then affirmed to the 40’s.

They’ve been trying to organize in for 50 years and I think one thing was trying to get contract for the members and that what’s the testimony was.

(Inaudible)

Harrison Combs:

Yes, it would to this extent and I am glad you asked that because I can tell you what to test and what it was.

That question was asked the chairman of the board in West Kentucky and Mr. Louise.

Testimony of both of them is substantially is this that well that when they loaned the money to the captain that they knew he was an industrial employee, who believed in collective bargaining and that there was no understanding, there was no need for any understanding of all but what if he operated the coal company or have anything to do with it that he would comply with collective bargaining.

Now, that’s the test to the both of them.

That’s all the testimonies of these.

Byron R. White:

Well, assume that the — what would your answer be if the union owned a 100% both these companies?

There is no question about it from coal or the board, the — and the business policies?

Harrison Combs:

Under the evidence as we have it now.

I don’t think it make any difference, Your Honor because there is no testimony or whatsoever that the two companies did anything that would allow a jury to infer that they were participating in a conspiracy.

The supported lists are back in 1950 and the pricing policies or whatever you have.

The evidence is very profuse on that and it’s uncontradicting, so the degree of control for the companies as stockholders or the mine workers I think it’s irrelevant on the evidence here.

Unless I disputed this talk and —

Byron R. White:

Oh, let’s assume there’s no labor — if you say that let’s assume that two employers did not organized at all and yet they make an agreement that they will not — that they will pay their workers the same amount of wages, is that legal under the Sherman Act?

Harrison Combs:

I would think so under the doctrine of the Apex.

I don’t think that’s the type of restraint.

Byron R. White:

I said — I said these are two unorganized companies.

No union involved and the two employers agreed among themselves?

Harrison Combs:

I misunderstood you.

Byron R. White:

Do you think that violates the Sherman Act?

Harrison Combs:

I think it could.

Harrison Combs:

I don’t know but under Apex the service talks about marketing partnership, marketing and product mortgage rather than the question of labor standards.

And if they in good faith pay these workers and they got their money on that elimination of their cost on that basis, I don’t know.

Potter Stewart:

Should it govern a multi-employer bargaining, I suppose isn’t it?

Harrison Combs:

I would think so —

Potter Stewart:

— which is very widespread in many industries that perhaps said in absent agreement among employers to pay their employees the same price and in the same working condition.

Harrison Combs:

The mere fact that the union does the bargaining and gets the same thing that the companies may agree together may get without that, I don’t think it would bring it under the Antitrust Act.

I don’t think that would do that.

I’d like to — be as brief as I can.

I really think that this case that the trust of the respondent, a fair reading with the case is directed against multiemployer bargaining and against uniform wages and working conditions.

Now, the respondent says in his brief on page 28 and I quote, “A union must expect itself to be finally charged when it’s so-called “industry-wide campaign” or “high uniformed wages” but if it’s some groups in the company using machines rather than manpower by letting and takeover the markets.

But forces larger than the company out of the industry and the union must expect the challenge to come from the people who have been hurt.”

Now, respondents further suggest that the district jury should be the ages need to determine the economic says of the bargaining agreement.

Now, we totally disagree with that concept.

In the first place, we submit that it cannot be successfully argued with most of the employer bargaining is illegal under the Sherman Act nor is it opposed to national labor policy.

Now, the union may concede it to be to the best interest of its members to make separate contracts with marginal or substandard employees and allowing to conducts sweatshop operations, paying low wages and providing a substandard safety and health conditions in order to keep their members working.

On the other hand, the union may believe these best interests are served by insisting of on a living wage, a decent wage, working conditions, and safety standards but those of its members do continue with work even though these standards may put less efficient employers out of business.

The Sherman Act does not prohibit either type of agreement nor does the jury have the right to pass upon the wisdom or the unwisdom of the union’s judgment as to which of the policies it chooses to consider the fact that there’s a doctrine of United States against Hutcheson at 312 U.S. 219.

At Apex Hosiery Company against Leader decided with this Court in 1940, for the narrow brief, this Court said, “Sets an order to render a labor culmination effective and must eliminate the competition from nonunion made us and elimination of price competition based on differences in labor standards is the objective of any National Labor Organization.

But this effect on competition has not been considered to be in kind of curtailment prohibited by Sherman Act.

In fact to the same effect as Allen Bradley Company against Local Number 3, this Court’s decision in 1945.

And we think this covers this case this Court from Hutcheson, where this Court said at page 232 of Hutcheson 312 U.S. 219, “So long as a union acts in its self-interest and does not combined with non-labor groups, elicits and the elicit under Section 20 are not to be distinguished by the rightness or wrongness, the selfishness or unselfishness within of which the particular union activities ought to mean.”

Section 1 of the Sherman Act must be accommodated with the national labor policy expressed in other congressional legislations such as the Clayton Act, Section 6; the policy was stated in this case as Hutcheson — this Court’s Hutcheson case.

Another federal legislation takes labor standards out of competition, Fair Labor Standards Act, the Law Chill Act, Public Contracts for the entire department.

The jury in this case Your Honors was handed in multitude of unrelated facts and circumstances.

They were unrelated by time, by distance, nature, and motivation.

The only thread occur from the record to time and to gather as the constant reiteration of the respondent’s counsel that there’s a national conspiracy to monopolize the coal industry on the part of the larger operators against small others.

Theodore J. St. Antoine:

May it please the Court.

My amicus argument is going to be brief and it’s going to be a little abstract and I therefore would like to start out by pointing at that precise point — portion of the record that we think calls for a reversal in this case.

We look at the case a little bit differently from the mine workers.

We agree with them that the evidence submitted to the jury was not sufficient to support a judgment against the mine workers.

Theodore J. St. Antoine:

But we believe that the 1700 pages of the record can actually be reduced to about half a dozen for the purposes of reversal.

We think the judges’ instructions require a reversal but even though the evidence submitted which support the type of instructions that the judge gave to the jury that those instructions are erroneous.

At several points in the course of these instructions, the judge said in effect to the jury.Page 1556 of Volume 3, here’s one of the clearest statements.

The court charged — this is in the second paragraph.

Potter Stewart:

In what page?

Theodore J. St. Antoine:

1556, Mr. Justice Stewart.

“That if this wage and welfare payments arrived that by the parties as a result of collective bargaining, each party in its own interest, there’s no violation of the Sherman Act in the establishment of the wage rates and welfare provisions to the contract provided there is no agreement between the union and the coal operators to fix high wage rates and royalty payments in order to drive small coal operators out of business.”

This is repeated in various forms throughout the Court’s charge.

In effect, as we understand if the Court was charging the jury that the entering into of these uniformed contracts, could in itself quite a part from such matters as the suppose dumping of coal on this spot market any other matter.

The entering into of these uniformed agreements in themselves, in itself could constitute a violation of the antitrust laws.

And the jury as we understand it could make that finding.

If yet also found that there was evidence to support the notion that the purpose of entering into these high uniformed rates was to drive the small marginal operators out of business.

This we think is error.

As we look at it, there are two principles that ought to govern antitrust and the field of labor, two not one.

And the first one is not a matter of an exemption for labor unions based upon the Clayton Act to the Norris-LaGuardia Act read together.

The first one goes back to the Sherman Act itself and it is rather a matter of coverage and the best statement of the proposition that we can find is an Apex Hosiery.

In Apex Hosiery, this Court stated that in any case whether or not involving a labor union, there was no violation of the antitrust laws to the elimination of competition based upon differences in labor standards.

Our first proposition is that in any case where it is determined that the only conduct engaged in is an elimination of competition based upon a difference of labor standards.

This in itself takes the activity out of the Sherman Act or it stated more precisely this type of activity is totally unlike the type of restriction upon commercial competition, that the Sherman Act is directed at.

In response to the question of Mr. Justice White, we would say, yes, that a combination of employers to fix uniformed wages among their employees would not constitute a violation of the Sherman Act whether or not a union was in the picture.

I do want to make one important qualification.

In certain instances, it might be a highly relevant of the determination of whether a particular agreement did involved a labor standard as to just how it came about historically and functionally.

We think in this case, there isn’t any conceivable question.

Wage rates are the very core of labor standards in the case following in duty.

There might very well be a need for factual inquiry as to why there was this arrangement for agreeing upon uniformed marketing hours.

We think the employee’s interest in that case can well be demonstrated but once the fact is bound that a particular matter does concern labor standards that as we look at its interest.

Arthur J. Goldberg:

(Inaudible)

Theodore J. St. Antoine:

That is correct.

That is correct, Mr. Justice Goldberg.

It is a matter simply of the Sherman Act.

Potter Stewart:

Sherman Act as interpreted by this Court —

Theodore J. St. Antoine:

Yes, Your Honor.

Potter Stewart:

— because the — you would agree I suppose that the literal words of the Sherman Act —

Theodore J. St. Antoine:

The literal words without labor unions.

Potter Stewart:

Without all labor unions.

Yes.

Theodore J. St. Antoine:

And that of course is part of the problem.

(Inaudible)

Theodore J. St. Antoine:

That is correct.

I will — I will say this Mr. Justice Harlan that in Apex it’s clear that the Court look to the Clayton Act as sort of a confirming gloss by Congress upon the Sherman Act.

But we don’t look to Section 6 for this portion of our argument strictly.

It goes to the Sherman Act itself that labor standards are not the type of restraint that were ever intended to be encompassed at least as interpreted by Apex.

Now, the second principle —

(Inaudible)

Theodore J. St. Antoine:

Very true.

Your honor–

(Inaudible)

Theodore J. St. Antoine:

The holding in Apex certainly is limited to a unilateral union act.

We cannot rely upon the holding we rely upon the rationale that we regard as the philosophy line behind Apex.

Tom C. Clark:

(Inaudible)

Theodore J. St. Antoine:

There is not, Your Honor.

Tom C. Clark:

(Inaudible)

Theodore J. St. Antoine:

The purpose as we look at it is irrelevant.

Now, Mr. Justice Clark, let me — let me state it differently.

In this particular case, where there is a uniformed wage level being established as far as we are concerned, the purpose that the Court allowed the jury to infer was simply an articulation of a purpose that is inherent in the activity itself.

The purpose of obtaining uniformed conditions throughout the industry is indeed to eliminate substandard competition in the most strict sense of that term.

That is all.

We would not say the purpose was bad.

We would simply say the purpose was to eliminate substandard competition.

This indeed as far as we are concerned is what labor unions are all about.

Tom C. Clark:

(Inaudible)

Theodore J. St. Antoine:

True.

Mr. Justice Clark, as far as I’m concerned, it’s just two sides of the coin.

It depends upon how you word it and this is why we are saying the judges instruction were wrong.

Tom C. Clark:

(Inaudible)

Theodore J. St. Antoine:

In this particular instance and this might have been a different question.

In this particular instance, no matter where the aim may have been directed, as a matter of fact the shop that was made could have not taken anyone out of business as long as he was not substandard competition.

No one was prevented from signing the national contract with its uniformed terms.

So consequently, regardless of whether or not some people has the thought in mind that particular people knowingly in advance would be unable to meet the standards.

As a matter of fact, all on the stand, all of the competitors could have met the standards if they were able to.

No one was being excluded per se, only substandard competition and what we regard as the strictest sense of the term.

In making this argument, I certainly don’t want to undercut what we regard as the second principle that controls to the relationship of unions of the antitrust laws and that is the principle developed in the Hutcheson case.

In Hutcheson, the Clayton and Norris-LaGuardia Act were read together in effect to say that conduct that was not subject to an injunction was not to be deemed in violation of the antitrust laws.

There was a qualification in Allen Bradley.

I read the two cases together in effect to say this, when a union acts alone, there is no violation of the antitrust laws.

If the conduct that had engage in is not subject to an injunction under Norris-LaGuardia regardless of whether there is a direct impact upon the product market.

The Allen Bradley qualification assumes some direct impact upon the product market, assumes that the arrangement looks beyond terms and conditions of employment that is the language of Allen Bradley and imposes direct restraints upon the marketing of goods and services.

When that is done in combination with a conspiracy of employers to restraint trade in a product market, then the unions are liable for violating the antitrust laws.

We say therefore in every case, there are two questions to be asked.

Is the subject matter of the agreement or the activity, a labor standard?

That is to say in matter of wages, hours or other terms and conditions of employment.

Potter Stewart:

And you told us I think that this might sometimes be a difficult question?

Theodore J. St. Antoine:

Yes.

Potter Stewart:

On which you might have to rely on history and —

Theodore J. St. Antoine:

And we regard the (Inaudible) case as that case.

Potter Stewart:

In other words, a — in other words an agreement which provided all plants in the whole industry should be open no more than four hours a day —

Theodore J. St. Antoine:

Would require —

Potter Stewart:

— would require — would require some investigation to see whether not it was — had nothing to do with condition of employment?

Theodore J. St. Antoine:

Yes.

This is our point.

Theodore J. St. Antoine:

On the other hand, if you have no employer conspiracy restraint trade and the union is acting alone in its own self-interest, that too — that question too can end any case.

It makes no difference then whether the product market is directly affected.

If the union acts alone, there’s — the type of restraint is indifferent but if the type of restraint only applies the labor standards, a combination is indifferent.

And these, as we look at it are the necessary conclusions to be drawn not from the holdings of this Court as to this matter of labor standards but as to the necessary philosophy lying behind Apex and in subsequent decisions of the Court.

Allen Bradley clearly stated, for example, that the industry-wide understandings look beyond terms and conditions of employment to the control of the markets, the control of prices and as a means of distribution.

Byron R. White:

(Inaudible)

Theodore J. St. Antoine:

The factual inquiry has to be made in every instance, Mr. Justice White and —

Byron R. White:

(Inaudible)

Theodore J. St. Antoine:

Yes.

Byron R. White:

(Inaudible)

Theodore J. St. Antoine:

When the agreement is made in a — for a purpose of maintaining a particular labor standard.

Then we say it’s outside of the antitrust laws.

Now, we — now, we would say that an agreement made for the purpose of excluding nonunion competition would fall precisely within that framework.

Byron R. White:

(Inaudible)

Theodore J. St. Antoine:

Yes.

Nonunion standards or union standards are what are being protected in that instance.

Now, I realized this can become a close question and Allen Bradley so shows.

The difference between the questions you post me, is that it seems that the thing the union is out to exclude are — is nonunion competition.

Now this of course, now would raise many questions under the secondary boycott provisions at top title.

But as any antitrust matter certainly, as an antitrust matter, I would say that what is being upheld is union standards and therefore this would be with our first principle not a matter within the coverage of the Sherman Act quite regard — quite regardless of any labor exemption.

Tom C. Clark:

(Inaudible)

Theodore J. St. Antoine:

I — I’m sorry Mr. Justice Clark.

Tom C. Clark:

(Inaudible)

Theodore J. St. Antoine:

The Carpenters case as far I’m concerned is Allen Bradley.

Now, this Court dealt with the facts the Carpenters case in San Francisco very briefly because they’re really getting on to the question of the liability of the union for the acts of its agents.

But insofar as they discuss the facts and insofar as one goes back to the federal reporter to find out what the full facts were.

I would say the Carpenters case was simply an Allen Bradley situation.

That is to say the Northern Lumber Companies were being totally excluded from the San Francisco market not because they were nonunion or so on but —

Tom C. Clark:

(Inaudible)

Theodore J. St. Antoine:

Well, Mr. Justice Clark, I — I read the decision in the Second –in the federal report as indicating, for example, that there was throughout the San Francisco area, an artificial price standard maintained, that the union blocked contractors from using the goods of this Northern Lumberman when they’re trying to get into San Francisco that in effect, this was not simply the imposition of an Exclusionary Clause for the purpose of keeping out nonunion labor.

Theodore J. St. Antoine:

The purpose was to keep out very specifically the Northern Lumberman —

William J. Brennan, Jr.:

And if they’ve been organized?

Theodore J. St. Antoine:

Even if they’ve been organized.

Tom C. Clark:

That’s not what Justice Reed said and that’s not my understanding of what I’m trying to say.

Theodore J. St. Antoine:

Mr. Justice —

Tom C. Clark:

We said we do not conform to the rates of wages and working conditions of this agreement and that agreement is in San Francisco area.

Now, the mails is from the north in Oregon what and whether is the inform to these wages as I remember the case (Inaudible) or it they had complied conformed to the wage scale in San Francisco, the lumber could come in.

But they were in a mass production considered and identify with that and that’s why I think they had sort of a Chinese law would be describing without any hearing here that made the short case doesn’t come within this.

And I’m just asking you, how you?

Theodore J. St. Antoine:

As I — I understand your question very well because it is true in the Supreme Court opinion, Mr. Justice Reed’s reference to the case seemed to indicate the unions’ mean of enforcement was simply the provision for a Protective Wage Clause.

I think it is significant to note that he then went on to say that a conspiracy to restrain trade by employers was no less such because joined in by union say in Allen Bradley.

So this question has been decided and he then went on spend the greater part of the opinion dealing with the question of the liability of the union for its agents acts.

It seems to me that they’re kind fair picture of what that case was all about or one does have to look at the facts as reported from the Circuit Court of Appeals.

And it seems to me that, it is clear the union was doing more in fact than providing that Protective Wage Clause.

If the union was actually helping to enforce by many means, the prevention of those manufacturers from having their products reach the market.

My time has expired Your Honors.

I simply wish to close with this comment that in our opinion, the Court’s judgment was wrong because it made the antitrust violation turn upon a jury articulation of a purpose that simply is inherent in any union activity.

That is the elimination of substandard competition in the most strict sense of the term.

Arthur J. Goldberg:

(Inaudible)

Theodore J. St. Antoine:

Your Honor, I certainly would say that this was a labor standard.

That labor standards embrace wages, hours, job content.I’m sure there are many areas where we begin to get into questions.

But it seems to me that surely wages, hours and job content are the very core.

And therefore, I would say that restrictions on subcontracting would indeed involve labor standards.

Hugo L. Black:

(Inaudible)

Theodore J. St. Antoine:

It seems to me that if the union had been trying to do this on its own through collective bargaining as was the arguendo assumption in Allen Bradley, this agreement in itself would not have violated the Antitrust Act.

Hugo L. Black:

(Inaudible)

Theodore J. St. Antoine:

He was indeed attempting to conform to Allen Bradley.

And I’m not going to stand here and suggest that drawing the line between what is a restraint on the product market, on the marketing of goods and services?

And what is simply the establishment of a labor standard is in any case, an easy line to draw?

But I think this is the question that Court always ought to have in its mind.

Theodore J. St. Antoine:

The Court’s theory went all wrong because they loss sight of this line and they only looked at Allen Bradley.

Now, I would say that the conspiracy in Allen Bradley went far beyond, a mere desire to maintain union conditions.

The conspiracy in Allen Bradley involved a very extensive interlocking plan among employers and unions and Local 3, electrical workers to exclude any products from outside the New York market.

In this situation, it seems to me, we are presented with the easiest of all conceivable cases, a wage level which I don’t see under any circumstances being inverted into a control upon the product market.

I grant that there may be lines on occasion that are difficult to draw.

I think the important thing is to know that the right question is being asked.

Byron R. White:

Don’t you Mr. Antoine — wouldn’t it make a good deal or difference to your analysis that the union also owned a couple of other companies in the multiemployer bargaining unit as to whether it was the solely a labor standard they were maintaining or not?

Theodore J. St. Antoine:

Not with regard to wages in my opinion Mr. Justice White.

I could see that in some situations, this would be a very important factor.

It might be a very important factor if it became more of a —

Byron R. White:

Why isn’t it an important factor in this case?

Theodore J. St. Antoine:

In this case, I think it’s an unimportant factor because wages are a labor standard.

I don’t think anyone in this case suggests that wages are other than a labor standard.

In other situations, what is the subject matter of the agreement —

Byron R. White:

Now, what it’s trying to do is to characterize — characterize somehow the conduct of the union and the employer in agreeing not to deal with nonunion employers.

And you’re saying you’re doing it to maintain a wage standard or what?

Theodore J. St. Antoine:

No.

There’s — there’s no agreement in those terms here apart from the —

Byron R. White:

But what if there were?

Theodore J. St. Antoine:

Well, I would say that that the maintenance of union conditions was a labor standard.

But I can see just as in the Jewel Tea case where we could — we would on occasion have to investigate what functionally — what historically is being served by the purpose of a clause?

I shouldn’t say by the purpose of a clause.

What is the clause actually doing?

There are certainly could be occasions when restricting market operating hours in the part of employers might raise antitrust implications.

William J. Brennan, Jr.:

Well, Mr. — in this very case, if the so-called wage standards in the case of a union which owns a substantial part, one of the larger producers.

It’s not conceivable with the wage standard so-called just be a facade for a conspiracy to monopolize the business for the large producers including the two in which the union has such as standard method?

Theodore J. St. Antoine:

Mr. Justice Brennan, I don’t see how in practice this could work out.

This is why I just don’t define any problem with the wage case.

I find problems with cases which that’s get closer to Allen Bradley.

William J. Brennan, Jr.:

But you’re — you’re suggesting that even the case I’ve put to you, if in fact it’s a wage standard, although, it may be used as a facade by the union to improve the profits of the company in which it entered, it’s still a wage standard therefore outside the Sherman Act.

Theodore J. St. Antoine:

Well, my analytical difficulties as I find this a contradiction in terms.

I just don’t see how the establishment of the wage —

William J. Brennan, Jr.:

You said it.

It’s not wage standard that might satisfy —

Theodore J. St. Antoine:

That is correct.

It would somehow perhaps be a distribution of profits of the employees in their capacity as business.

Byron R. White:

That was my question.

It’s whether when you might — I didn’t concede that it was a wage standard.

I — my question was whether or not this kind of evidence of ownership may not very well bare on whether the agreement is a — it is — it isn’t an attempt to set a wage standards or not.

Smith goes to that issue.

Theodore J. St. Antoine:

Mr. Justice White, in this case, the judge did not instructed any such terms.

He was simply talking about the elimination of the smaller producers.

If — I frankly cannot visualize precise type of conspiracy that you have in your mind.

But my answer is that so far as this case is concerned of the instructions given by the judge, he is stating a contradiction in terms.

He is saying that if the purpose was to eliminate small producers.

This would make an antitrust violation and I say to that, of course, the purpose was if you want phrase it so to eliminate people who couldn’t meet the standard, to eliminate substandard competition.

William J. Brennan, Jr.:

In other words, this instruction can’t be read as saying this may not be a wage standard in the context of these facts.

Theodore J. St. Antoine:

That is correct.

Earl Warren:

Mr. Rowntree.

John A. Rowntree:

Mr. Chief Justice, may it please the Court.

The counsel for our United Mine Workers has gone somewhat into facts.

I don’t want to get bump down into the facts at this time.

I want to get straight on the theory and the law in this case before we get into facts.

There are a mass detail of facts in this case and we can’t extract these items here and there, and present a fair picture of the facts.

I beg to the Court that I read our synopsis of the facts, if I don’t get in to any substantial statement of them in the appendix to our main brief.

We have two appendices there, on the facts, and if they can’t be brought down to 12 pages.

Is it took us some 70 or 80 to bore them down to what wanted to show.

Now as we see this situation, we’ve got to get straight on what the theories are, in the two cases before the Court.

As I understand it, the Jewel Tea case that follows this one has one theory that is not applicable to this case.

As I understand that theory, it is this, that the Sherman, that the interlacing Sherman, Clayton, Norris-LaGuardia Acts may prevent a labor union from imposing market restraints on the face of a collective bargaining agreement in areas that may not be within terms and conditions of employment as defined in the Labor Law.

John A. Rowntree:

Where there is no combination and conspiracy to aid business groups.

Our case is the Allen Bradley case and this area deals with an area in which that Sherman Act has primary concern, business groups monopolizing and restraining trade.

We allege in this case that the United Mine Workers combined with business groups with an understanding and purpose to aid those businesses to restrain trade and monopolize.

Now, we consider that our very important part of this charge, we made against the union had to do with the understanding and purpose to aid business groups.

I think that that is the point where all of these briefs filed with the Court in these two cases, take off and go in all different directions.

It seem inconsistent to us, for us to come in and talk about a combination or conspiracy under the Sherman Act to aid business groups without producing some purpose or a proof that the jury could find an understanding in purpose to aid of those business groups.

I think the Allen Bradley case is a good example.

In that case, it seems to us that the fundamental difference between the two dissenting justices and the majority of the Court is that the two dissenting justices could not infer a purpose and an understanding on the part of the union that it was aiding business groups to restrain trade and monopolize because the union was the aggressor in bringing about the whole arrangement with the business group, obviously for the purpose of increasing wages, improving job hire-opportunities, increasing membership, and that was what the whole situation was about.

And Mr. Justice Murphy in his dissenting opinion stated, what is legal if done alone should not become illegal if done with the assistance of others with the same purpose in mind, with the same purpose in mind.

Mr. Justice Murphy could not get over this fact that the union was seeking to aid itself and he could not infer any additional purpose to aid the employer group.

Now, the majority of the court did infer this additional purpose to aid the employer group.

The majority opinion states, the purpose of mutual help can hardly be thought to cover the purpose of employer help in controlling markets and prices.

So the purpose had a great to deal to do this with this and this was not a purpose that the majority found from direct evidences such a purpose.

The union did not come in and testify, “Yes, we had a purpose and understanding to aid the business group to retrain trade and monopolize,” certainly not.

But that purpose was inferred from the course of conduct under which the markets were tied up in the obvious advantage of the business group and that’s the whole crux of that case as I see.

There must be an inference in these cases from circumstantial proof of the course of conduct or from direct evidence which you can ever find that there was a purpose from these activities which was strictly labor activities to aid the business group to restrain trade and monopolize.

Now, the various briefs filed with the court in these two cases, some of them state that there ought to be some sort of objective test in these cases.

Based upon the expressed language in the bargaining agreement, we suggest that that’s not only contrary to the purport of the Allen Bradley case but it is completely foreign to Sherman Act combination and conspiracy law.

The American Tobacco Company case 328 U.S. is an example that it is not the form of the combination or conspiracy or the particular mean used.But it is the result to be attained under the understanding and purposes of the conspirators that the Sherman Act condemns.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

No, sir.

Because you can never infer the most simple facts and intend to aid the employer group to restrain trade and monopolize.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

I submit, Your Honor.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

No, sir.

Arthur J. Goldberg:

Where?

John A. Rowntree:

How in the world could the jury find a purpose and — intent to aid the employer group there to restrain trade and monopolize?

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Again, I say —

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

— again, I say Your Honor that the Allen Bradley situation is an example of what we’re talking about.

I say that you can’t look at the bare language of any collective bargaining agreement and say there is a combination there to aid employer groups.

I think that you have to look at the surrounding circumstances.

The whole arrangement between the union and the bargaining group of businesses, the background, the effect on markets, the effect on competitions, the whole course of conduct and the likelihood of any other group to determine if that purpose is there.

Was there a purpose and understanding on the part of this union that it was aiding business groups to restrain trade and monopolize?

That is what the Sherman Act is after.

Now, as we construe Apex, Hutcheson, and Allen Bradley, there must be this particular kind of purpose.

You must go beyond the purpose of the union to aid itself and its members but there must be this purpose to aid the business group, the group against which this Sherman Act is primarily directed to restrain trade and monopolize.

And we say that the whole arrangement must be examined.

The whole course of conduct in that situation that exists to determine fact — purpose is present.

Now, this is the only way that we can see at this area of the law can be kept from becoming an intricate series of pigeonholes and categories that require the application of mechanics rather than substance.

It’s the only way to keep the Sherman Act alive, as a vital and instrument to promote free trade.

It’s the kind of atmosphere in the case that the Sherman Act has always worked well-in in the past and this is the way we approach this case.

This is the way we understand Apex, Hutcheson, and Allen Bradley.

Now, the jury in this case, found the existence of the conspiracy as we charged it.

Before the trial, we set forth our theory of conspiracy.

That’s contained at the beginning of our main brief.

In the first place, we say that there is proof, direct proof in part, circumstantial proof from courses of conduct in part to bear out every phase of that statement of conspiracy.

In the second place, we say that any labor union that engages in that kind of conspiracy should be liable under the existing case law on the Sherman Act.

Now, we can find no real effort on the part of opposing counsel to come to grips with the question of the reasonableness of the jury verdict in the light of the proof considered as a whole.

Every effort made to challenge the jury verdict consists of a dismembering of the body of the proof.

And as we understand this kind of case, the character and the affect of a conspiracy are to be judged not by dismembering the proof and hearing its separate parts but only by looking at it as a whole.

The duty of a jury was to look at the whole picture and from this viewpoint, we believe it is manifested the jury was completely reasonable in coming to its conclusion that there was this purpose — this illicit conspiracy.

Indeed much of the whole course of conduct of the union, its testimony, its statements of officers, its investment policy, its whole course of conduct cannot be explained logically in the face of any other conclusion.

The proof starts off with the United Mine Workers openly and admittedly proposing to step beyond the bounds, the ordinary bounds of the labor union and this is direct proof, important statements of union officers.

It was proposing to dictate the economics of the industry, to impose a stabilization of production and price plan on the industry.

Its initial program was to use the working time of the men to accomplish this, to offset the peaks and the values in the demand for coal that has plagued this industry for decades.

Now, this initial program was contrary the interest of the major coal companies.

The big mines of the contrary going down hill in the competition where the smaller companies that came in during the war and the post-war years of the 1940’s.

John A. Rowntree:

But the major companies did not want this large expensive mechanized mines standing idle for substantial period of time during the work week under the union’s program.

So there was a hard fight over this issue and this part of the background.

This fight was followed in 1950 by a sudden switch in the concern of the union for its overall membership.

There was a certain switch in the concern of the union for working opportunities for all of its members.

We say that there was a coming to terms on basic issues in 1950 between the union and the major coal combines of the country.

And we say that ever since that time, it has favored the major coal combines.

It is their direct proof in the record that it tailored this contract to fit the mechanical techniques of major coal combines.

Mine coal and the fixings coal with the gigantic machinery that’s coming to the industry in the past 15 years leaving an in past for the small companies in the broad fencing scenarios using manpower with small tools and machinery to keep up and participate in the industry’s production.

Now, market control has been a clear object of the union.

This concentration on the market side — on the economic side has continued it.

The efforts have been redoubled in culmination with these major coal companies.

Boycotts have been put in the face of the contact.

The union says it doesn’t it — it can’t be responsible for all of these uneconomic units of the industry and they will have to pass out, these are statements in the record.

But the union shows us clearly it knows, it acknowledges, it fully anticipates the disastrous results that have come about which are coming about today which will come about in the next few years until all of these units are gone.

The union was over $100 million in his treasury invested between $25 and $30 million dollars in two major companies operating in these fix seam conditions with the billion tons of fix seam coal the mechanically workable seams.

The union has contented up until the last stages of the trial.

But those were mere loans but it ended up that these were joint enterprises with Mr. Cyrus Eaton and certain other financial gentleman, under joint enterprise, the union to participate to over 52 — 50% of the gains and the profits from this venture.

Now, we had to fight down gradually little by little the contentions of the union about why it invested that much?

And if the Court will read that record, the synopsis and see what positions the union took originally on this?

And how we — how we to beat them down until it turned out that would be making it so that they could make profits?

And they expected to make enormous profits from this investor, from this enterprise.

There was control over those companies.

The union had its representative, made chairman of the board, the majority of the board and it’s announced in the 1956 minutes of the convention of the union when Mr. Eaton’s interest bought the West Kentucky Coal Company.

His first official Act was to instruct that company to execute the industry agreement with the United Mine Workers of America.

When these companies went out and were used as fighting ships on this TVA spot market, it was the union that went and got this loan.

It put up $5 million of its assets as a pledge to carry the company through this period.

The present accountant, he didn’t even know that the union pledged that million amount.

The chairman of the board didn’t even know that the union put up that pledge and the principal officers finally admitted that they expected to make immense profits from this investment in the major coal combine, in the fixings of coal using the machinery and these companies have been the very ones that had wrecked our markets.

Now, the proof is direct and conclusive that the major companies and the union were not going to allow any change in this national contract that would make it practical to apply in the thin seam areas of the country.

The union and the dominant coal companies fashioned the contract that requires all companies to pay the same labor cost, regardless of the productivity of the individual company regardless of the conditions in which it works.

John A. Rowntree:

Now, this program that was fashioned for the industry by the union and major coal companies was that the industry as a whole must pay the labor.

Its increasing share in this enormously arising productivity brought about by the great machines.

But those companies they were able to use all the machines in their conditions do not have to pay anymore of that labor share than does a company that has to use manpower with smaller tools cannot possibly participate in this increasing productivity.

And the brief for Bituminous Coal Operators now sets to tell them again how they could conduct this one man bargaining sessions with the union so as to lift the cloud of suspicion from those sessions.

We have told them that they could at least pay their pay their own way to labor on this greatly increasing productivity.

They are the one’s that are enjoying it and not leave it up to these small companies struggling in the thin seams to help pay their way.

They could have taken out of that contract the language in there which requires the United Mine Workers to impose the same conditions on the thin seams areas.

“During the period of this contract the United Mine Workers of America will not enter into, be a party to nor will it permit any agreement or understanding covering any wages, hours or other conditions of work, applicable to employees covered by this contract on any basis other than those specified in this contract.”

Makes it in fact impossible for the union to go out and conduct reasonable bargaining sessions on the basis that the companies can live on.

The major companies could have taken out of these national contracts the boycotts that are found there that are tied up the thick mechanically workable seams of coal in this country.

In which it barred the small companies from participating in these huge long term contracts for coal held above the major companies that have covered up the markets for coal.

Now it’s doubtful — it’s doubtful for any other industry in this country can be compared to the Bituminous Coal Industry in the greatly did diverging geological engineering production problems confronted by the various areas of the industry and various stores of communities in Tennessee that had been tied in their whole economic life for decades to the mining of coal out of these conditions.

It seems less than four feet thick that make up 77% of the Tennessee field.

There are statistics are charts in this record giving a vivid contrast between the Tennessee Southeast Kentucky Fields and all the fields with some of the other major fields of the country.

Now, the machines and the tools that can be used in these conditions cannot be compared to these other fields.

The wages that the company can pay in Tennessee, if it hopes to stay alive, and the wages paid by our clients are considerably less than the United Mine Workers in the national scale that imposes down on us the fringe benefits, the welfare fund payments, but these are good wages.

They are the best wages only man can make in those communities, a large part of our pledges have the same condition.

There are broad areas for these thin seams traditionally, tied to those conditions and these areas of today down underneath in the competition with the area more favored by geology and terrain.

And we acknowledge that the antitrust laws cannot be a complete answer to the economic guilds of these people.

But at least the antitrust laws require fair play.

In a football game, the man is down piling on and brings on a penalty to antitrust laws penalize those that use, combine their economic power to pile on, to pull a competitor.

Byron R. White:

To what extent — was there an agreement that the major coal companies would not buy the so-called to the independence —

John A. Rowntree:

This is the Protective Wage Clause, the same as sort of clause that it was in the company’s case in San Francisco Bay area.

Now the union calls it a Subcontracting Clause but if you compare the clauses, they’re exactly the same.

William J. Brennan, Jr.:

But what was — what did it say?

Was this written?

John A. Rowntree:

The union contract says?

Yes sir, that’s written.

Ah, the signatory company to the national contract will not buy or require any coal mined under conditions.

It won’t buy, acquire, or deal in any way coal mined under conditions that do not conform to the terms of the national contract, it’s exactly as the Carpenters case, Protective Wage Clause.

Byron R. White:

Which means that — which — the first thing which means that’s it requires a self help for the many companies that doesn’t have a contract with the union?

John A. Rowntree:

A company could have a contract — could have —

Byron R. White:

Have the union?

John A. Rowntree:

Well, what it could mean is a company that does not have a contract with the union could be paying higher wages and it could though sell coal under these terms, these literal terms but a company might have a contract with the union.

Byron R. White:

It couldn’t be — it couldn’t do much of the same with the displayed oil, Isn’t it?

John A. Rowntree:

Well, it’s possible.

I don’t know how to coal it works.

It’s been kicked out since then.

Byron R. White:

You mean the labor board eliminated?

John A. Rowntree:

Yes, sir.

Well, the labor board eliminated.

The labor board knocked it out.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

They’re doing the best they can, Your Honor.

But it’s still part of — much further down in national average, if you’ll notice.

(Inaudible)

John A. Rowntree:

Which — which page are you reading?

(Inaudible)

John A. Rowntree:

Yes, sir.

The record goes very extensively into that.

Now Tennessee traditionally had the larger mines on the railroad temples employing great numbers of men using small tools and machinery.

These mans have gone out, they’ve been knocked out during the course of this conspiracy.

These men have lost their jobs.

Now, thereafter here was now, opens up little mines, by themselves.

Many of them, the family partnerships and those are what mines are listed there.

That’s where the grand issue is coming from.

Now, these are the kinds of mines that the union was trying to force the contract on as tailored effect as they say intense mechanizationally gigantic machines.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

Well, that goes into a long history of violence.

We’ve got a war going on there.

John A. Rowntree:

This Court received numerous petitions bearing on that situation and it’s still going on.

And we think that proof is clear that there has been this conspiracy to combine economy power to pile on in the coal business, that the union has participated in that not for the advantage of its broad membership but to the advantage of these great combines that it expects to take over the industry as it says.

Because between 1950 and 1960, during the course of this conspiracy, two-thirds of the men have been driven out of the jobs in the industry where the union has organized 82% of the industry during the short course of 10 years, 65 % of the manpower has been put out in the industry.

And get this, it is virtually impossible for these men the great majority being union members to find another employment in these areas.

That can’t be denied that were have been substantial unemployment anyway.

But there would have been nothing like this in the absence of UMW and Congress policy of requiring intensive mechanization even where that is impossible.

There would not be anything like this amount of misery and destitution, unemployment if they were not this plan for an industry prepared by handful men, powerful men.

Men who can think only in terms of what is to the advantage in the major coal combine.

Who can think only in terms of domination of markets and industry by major coal combines, that’s all they talk about, who cannot think in terms of the misery and the hardship that being brought about in this country in broad areas from the rapid development of their plan for an industry.

When you encounter a situation like this, it makes you think that the great rights protected in the Constitution turn a little bit pale were it not for the antitrust laws that promote free trade were designed to prevent this tyrannical concentration and use of economic power.

The bill of rights is reminded to public officers that political power is a really strong thing and their limits beyond which is not safe to go.

The antitrust laws are reminded to those who hold economic power that their limits beyond which is not safe to go and we submit that the interlacing Sherman, Clayton, and Norris-LaGuardia Act limits have been exceeding in the facts in these case.

The jury has so found, the Court of Appeals, the trial court has sustained that verdict with the utmost of deliberation.

Now, most of the arguments of opposing counsel are directed at contentions other than the reasonableness of the jury verdict.

And these contentions are generally founded on the idea that the union should be able to go about its business without fear challenge with the Sherman Act.

We submit that that law was settle — it settled in a only way it could have been settled to preserve economic freedom and to prevent the devastating trade practices and monopolizations that the appearance of which brutalized antitrust law.

This basic economic policy of the country, the balancing of congressional policy found in the labor law and the antitrust law was worked out laboriously by this Court in Apex, Hutcheson, and Allen Bradley.

This is the only rule that we can see that can work and make sense.

If a union combines with business groups to do the very thing under purpose and understanding to do the very thing which the Sherman Act was primarily designed to prevent, business groups restraining trade monopolize, the union as well as the business groups violates the Sherman Act.

And we submit to that rule should be especially true where the union is not only a union but because of investments in many millions of dollars in the industry is actually one of the business groups being aided.

This aspect of ownership investment in the industry was not even present in Allen Bradley.

It’s not considered necessary nor was it present in the Carpenter’s case or from San Francisco.

After the Court planned the writ of this case, the AFL-CIO counsel asked our consent to there filing brief as amicus curiea.

In sending back our consent, we asked counsel to consider seriously whether or not the AFL organization or CIO organization had any area in its relationships were comparable to the facts in this case.

Counsel replied that this was a hard — might be hard case.

But hard cases make bad law.

And we summit that the law in this case was settled in cases that did not involve the misery, the hardship, unemployment for union members, and broad areas that these case involves.

The AFL file a brief relying on these propositions that the union must be free to decide for itself what is best for itself and its members without fearing the Sherman Act.

That the only body to regulate the union today it says, is the NLRB and if that’s particular true, it says since the Taft-Hartley.

I filed a short two-page reference to the Taft-Hartley history.

John A. Rowntree:

We have found a reply brief to the AFL brief with particular reference to the legislative history of Taft-Harley.

It is clear that in the first and second years after this Court decided Allen Bradley, Congress gave extensive consideration to the place of the labor union under the antitrust law and to the Allen Bradley rule itself.

And it’s most clear in that history that both sides of Congress, the minority, the majority, and the President of United States himself in a veto message, “All concurring the Allen Bradley Rule is necessary.

We must retain it in a law.”

Congress considered the wing of labor policy and antitrust policy just as this Court did in Apex, Hutcheson and Allen Bradley, and Congress decided to leave that law just as this Court left it no decisions.

Now, as we understand the fundamental basis behind the Allen Bradley rule if the Courts will not infer a repeal of antitrust law our basic economic philosophy without declare expression of Congress.

Now in — there have been a number of cases by this Court, several very recent ones.

Applying that rule with a particular businesses, organizations, associations, and the Allen Bradley rule has been decided — cited in those various decisions.

Now, when Congress has considered the Allen Bradley rule this specific decision has been pointed out from all sides that there’s a need to retain that rule and Congress does not change the law there can be no inference that the Allen Bradley rule is repealed or that there is any repeal of antitrust law altogether with respect the labor unions.

So we say that decisions in Allen Bradley and Hutcheson and Carpenters.

The Carpenters case was decided before Taft-Hartley too.

Those decisions had stood the test of time and the thorough appraisal by Congress.

And we say, that the inferences of illicit purpose, illicit conspiracy, in this case are far stronger than the inferences that were raised in Allen Bradley and the Carpenters.

All three cases involve the union combining with business groups putting restraints on markets that favor companies in certain areas, barring companies in other areas from those markets.

In the Allen Bradley case, the restraints arose by reason of geographical limitations only participating union as to why it would so limit the geographical limitation on the union.

In the Carpenters case, the restraints arose by reason of differences in means of production just like in this case.

The differences and means of production in the Carpenters case and the union want a wage increase in San Francisco.

Now, the San Francisco companies had one way of producing lumber products, the Washington, Oregon people had a different way.

And the labor union and the San Francisco counties got together and fixed up high wage scale tailored to fit the San Francisco companies, impractical to apply in Washington or Oregon.

They put in the Protective Wage Clause that’s what it was, a violation of the Sherman Act.

We’ve got all of those restraints here together with others.

But those restraints in this case are all more unreasonable and unavoidable because the differences in means of production in the coal business arise by reason of hard fixed geological conditions that can’t be changed.

You can’t go to a geographical area with a fencing traditionally living on that condition, for years or decades and try to pick in that seam of coal to bring the machinery and so you can abide by this national contract.

All three cases involved the union and the company’s combining to misuse collective bargaining process, misuse boycotts, misuse strikes, all of paraphernalia favored by the labor law.

But misuse to bring on restraints and further restraints in the competition and the market.

Now, in Allen Bradley and Carpenters, it was fairly contended that the union in those cases was following a policy of favoring all its members.

In this case the union case show it benefited more than a small percentage of its members.

The great majority had been the victims rather than the beneficiaries.

In Allen Bradley and Carpenters, the conspiratorial plan arose when the union was not concentrating on the economic or market side of industry but when the union was because — carrying out traditional purposes of increasing memberships improving working opportunities for all the members within this case the conspiracy arose when union was openly admitted, trying to dictate the economic side of the industry.

And neither Allen Bradley nor Carpenters did the union engage itself in the business group being aided by the making of many, many millions of dollars of investments with the expectation of the making “enormous pocket”.

John A. Rowntree:

In this case, the union did it exactly that according to the direct testimony of its officers.

Now, neither Allen Bradley nor Carpenters was their direct evidence that the understanding and purpose of the union was that it was aiding business groups to restraining trade in that one.

But that illicit purpose, the illicit conspiracy were inferred, the markets were tied up to the obvious advantage of the business groups.

For all of these reasons, we say that the inferences in this case have illicit conspiracy in purpose far stronger than Carpenters or Allen Bradley.

The rules on those cases should apply more strongly and I would like to take off of another phase of the case.

This has to do with the admission in the evidence of facts that bear upon the combined effort of the union and major companies to impose this high wage scale out of national contract into all government contracts for coal, TVA contracts under Walsh-Healey.

William J. Brennan, Jr.:

Before you get to that, have you any comments to make argument at the AFL-CIO into that provision of the charge of 1556 a?

John A. Rowntree:

I think that precisely what Allen Bradley says, Your Honor.

Potter Stewart:

Also the Carpenters case, particularly the Carpenters case?

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

No, sir.

No charging problem.

I might say Your Honor, this is a coal company with partnership of three men.

One has died.

It has 6-8 employees.

It even had difficult doing out of income tax return, I don’t know.

I don’t know if every thought of that has unfair labor practice.

(Inaudible)

John A. Rowntree:

Yes.

(Inaudible)

John A. Rowntree:

I would agree.

(Inaudible)

John A. Rowntree:

That’s correct.

But I don’t think that there is any remedy under labor law that the conspiracy behind all these just like in Pennsylvania versus I mean Georgia versus Pennsylvania Railroad, there’s conspiracy behind.

Certain activities that might be legal on the face of facts but the labor law can get behind to get that conspiracy certain.

Byron R. White:

What was the engagement of the labor board eliminating the law agreeing not to buy coal?

John A. Rowntree:

I think it got caught by a Landrum-Griffin, I’m not sure

Byron R. White:

I know that somebody —

John A. Rowntree:

I didn’t.

No, sir.

John A. Rowntree:

I just represent these little coal company.

I don’t represent any association.

I have no idea what could — did that bring that case.

I won’t file the charge.

Test case?

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

I would say so Your Honor.

This is —

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Right.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

I think that’s true, Your Honor.

I think they have hard time when it was still over on small side rather than the big side.

It just looks little incongruous under the Sherman Act.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Yes.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

And you have think about the manpower situation.

In this day of automation it’s coming on.

It seems to me that this is going be real problem.

Can a labor union slant its policies to favor one side to the other.

Now, I think there’s been a recent report from a research institute of America which points out the difficulties the small companies are having rapidly feeling in this day of automation and the small company has got a hard enough time without having that little labor policies slanted against it.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Yes.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

That’s correct Your Honor and —

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

I think it be of a hard time — time under the Sherman Act in that kind of relationship.

John A. Rowntree:

I don’t want to talk down the Jewel Tea case but that’s the way I see it.

I —

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

I can’t — I can imagine the jury find against one man.

Then I think when a union has a tremendous economic power has in this being time, it has to be careful how it use it.

It’s going to be some care taken in the throwing around of this vast power and I think the Sherman Act is the ideal thing to use.

Now, in applying Noerr in this case, this — Easter Railroad Conference versus Noerr, and this Walsh-Healey thing.

In the first place in the Noerr case, all of the claim damages arose by reason of the Act to the Governor of Pennsylvania.

All other restraints were governmental restraints, outside the Sherman Act.

In the second place, in the Noerr case, the alleged conspirators had no plan purpose or conspiracy except to exercise the constitutional privilege.

In the third place, the Noerr case did not involve the government market for goods.

Now, the reliance on Noerr makes it necessary for us to talk about some fundamental rules that we see — as we see the Sherman Act.

In the first place, we don’t believe that the Sherman Act case is primarily concerned with the proof of overt acts as such.

The Sherman Act is concerned about not overt acts but the conspiracy.

What is a conspiracy?

You can have a Sherman Act violation of proof without proven over acts according the number cases.

So, the primary question goes to the existence of the nature, the purposes, and intents of the alleged conspirators.

Now, it would seem that the intense and purposes with the respect to plaintiff’s market is prime concern.

Now, under existing Sherman Act case law, the plaintiff is confronted with little restraint and producing proof that bears upon purpose, intent, motive, understanding on the part of the conspirators.

A wide variety of proof is admissible.

It is fundamental that the conspiracy can be prove by a course of conduct and many cases have said that a conspiracy can seldom be proved by direct evidence you must resort to circumstantial evidence to the course of conduct.

And we believe these means that all course of conduct that logically bears upon the purposes and intents in the marketplace particularly as it bears on plaintiff’s market.

Not just isolated segments of this course of conduct as late as 37 U.S. Continental Ore Company versus Union Carbide, the Court reiterated the rule.

In cases such as this, plaintiff should be given the full benefit of their proof without tightly compartmentalizing the various parts and wiping the slate clean after scrutiny of each.

The character and fact of a conspiracy are not to be judged by dismembering it and viewing its separate parts but only by looking at these as a whole.

The duty of the jury was to look at the whole picture, so what was whole picture in this case, particular, with respect to plaintiff’s market.

During the course of this conspiracy after 1950, there arose the great new market for coal in the form of TVA’s theme plant system.

This was to become the largest single market for coal in the country.

It was very important market in this case because it was by far the most important market of the plaintiffs.

It lay up the doorstep of these seam areas of East Kentucky in Southeast — southern — East Tennessee and the union and major companies gave a great deal of attention to that market in this record.

John A. Rowntree:

The union was having difficulty policing and enforcing its national contract down there.

As I’ve said, we have a war now.

In the midst to this struggle, the union and major companies got together and impose the high wage scale from national contract into the TVA contracts for coal under Walsh-Healey, for the purpose, it was said, of barring from the government market the companies that would not pay that scale for the benefit of the union it said and for the benefit of this so-called “fair employers”.

Now, that Walsh-Healey determination was twice as high as that determined by Secretary of Labor and any other industries.

And it covered up the TVA term market for coal, the large contracts.

But TVA persisted in carrying on its smaller spot market program.

Many contract below $10,000 except from Walshey-Healey.

TVA persisted in doing that over the rigor subjections of the union and the major companies, once again working together.

Its spot market was designed by TVA to allow the loc — small local producers stay alive.

After all, one the purposes of Congress in establishing TVA, was to aid in the development of the resources of the area.

Coal was the primary natural resource.

So when TVA persisted in carrying on the spot market, the major companies led by two unions owned financed companies, financed during this period by the union dumped enormous qualities of coal on that relatively small spot market at ridiculously low prices, predatory prices, dropping prices, depressing prices.

The only market that client had of any substance was wrecked and trying to stay alive on that market, plaintiff could go in there under this predatory situations and was the damage and that’s kind of damage we’re trying to recover in this case, the jury award.

Now, Plaintiff would have no remedy.

The jury could not understand or judge the overall nature of this conspiracy particularly as it bore on plaintiff’s market unless the whole course of conduct of these conspirators would put in the evidence as is the case any Sherman Act case.

Now, we submit that there is no constitutional right in these conspirators to carry on this overall plan purpose and conspiracy any more so than all of these all these other Sherman Act cases that involve a broad conspiracy direct competition by any means at hand whether that means be a legal or illegal.

I’d like to go once step further and I still think this is sound, if we just can find the picture to the solicitation of the Secretary of Labor to impose terms in government contracts that would bar the goods of competitors.

Suppose the conspiracy was only that narrow.

I think that —

Hugo L. Black:

(Inaudible)

John A. Rowntree:

If it was only that narrow.

Suppose the conspiracy only involve the solicitation of the Secretary of Labor to impose conditions in government contracts that would bar the goods of competitors.

And I think that there would be a danger and any conspiracy case involving conspiracy to impose boycotts in the government market or to impose terms and conditions in the government contract that would bar the goods of competitors, there would be danger in restrictive proof that logically bears on the purposes and intents of the conspirators.

In Perkins versus Lukens Steel Company, this Court said that the Walsh-Healey Act was not a regulation of business practices.

It was a setting of government purchasing policy and the Sectary of Labor Acts as a purchasing agent in the fixing of terms and conditions in government contracts under Walsh-Healey.

Now, when conspirators go to any customer or to the purchasing agent of any customer under a conspiracy to engage in bid rigging or to impose boycotts in the market or engage in other unfair plan, it can always be said that they are engaging in the constitutional right of free speech when they communicate with that purchasing agent.

But that does not save them in the Sherman Act case from the effect of proof on purpose and intent that comes out of that communication.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

If their sole purpose was to freeze that somebody else, to impose a boycott in a market, in the government market.

And the government market —

Hugo L. Black:

(Inaudible)

John A. Rowntree:

I think if their sole purpose in going to Congress or to any other government agent to impose a boycott in the government market under plan to monopolize or restrain trade.

Well, of course, if Congress passes the law that would in fact repeal Sherman Act but if you’re considering some other market, if —

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Yes.

If the Congress would —

Hugo L. Black:

(Inaudible)

John A. Rowntree:

Because Congress can pro tanto or to that extent repeal the Sherman Act, assuming that it passes that law.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

I think the Sherman Act protects the government market unless Congress says to the contrary.

And if Congress imposes a boycott itself, its pro tanto repeal the Sherman Act to that extent.

But the Sherman Act, I believe Congress intended to protect the government market.

Certainly, that’s all of the intent of all these recent Sherman Act cases being brought by various governmental units.

It seems to be necessarily to protect themselves under it.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

If they were engaging in Constitution right in going to those people.

No, sir.

The Noerr case does not go to the rule of exclusion of evidence.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

All they are saying is that this evidence should have been excluded.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

Well, we — our damage —

Hugo L. Black:

(Inaudible)

John A. Rowntree:

— our damages does not come from the governmental restraint.

It comes when the predatory price —

Hugo L. Black:

(Inaudible)

John A. Rowntree:

We’re using this to show the course of conduct, the motive, purpose, and intent bearing upon plaintiff’s market.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

Has bearing upon their motive, intent, and purpose with the respect to plaintiff’s market, to knock the plaintiffs out and to take over the market themselves.

Justice Learned — Judge Learned Hand held in that Pfotzer Extinguisher case, Aqua System case, you can use this evidence to show the motive, intent, and purpose of the conspirators for the respect to that market, that government market.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

Yes, sir.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

The damages arise solely from predatory pricing, Your Honor.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

The predatory —

Hugo L. Black:

(Inaudible)

John A. Rowntree:

The question — the question is whether they had a conspiracy to take over that market.

We say that any proof that logically bears upon the intent to take over the market is admissible and this certainly largely bears upon it.

In fact, you can explain.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

The purpose or motive and intent.

See it was said that the purpose of this was to bar from the government market these local companies that were supplying TVA and then came along after that the attack on the spot market, they weren’t successful and knocking them out through governmental restraint there.

So, they dumped on the coal.

They did the predatory price and that’s the only chain of events that we can show — to show what the overall plan, purpose, and conspiracy was.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

Well, I — no, sir.

The jury could not —

Hugo L. Black:

(Inaudible)

John A. Rowntree:

Yes, sir.

We had this —

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Yes, sir.

Because we got the question, was there a conspiracy to take over this big market.

The great bulk of the market was tied down by the government restraint.

We had this smaller spot market and we can’t go to the jury just on the spot market to show what the overall course of conduct of the conspirator’s were directed at this overall market.

The plan, purpose and intent with the respect to plaintiff’s market — plaintiff’s market, the TVA market could not be understood by the jury unless the overall markets were considered.

And how the plaintiff was driven down into a small segment of it and then was kicked out by the predatory prices.

It all bears on the same course of conduct.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Well, it shows the union and the major companies–

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

John A. Rowntree:

That’s not the only proof but I would say it’s a substantial part of the whole —

Byron R. White:

The jury was not at fault, so the jury was instructed about its (Inaudible).

In other words, the approach by these parties with TVA to get changes in policies with respect to coal mine standing alone with no respect to violation of law, could not be considered by the jury to violate the law standing alone that the parties had a legal right to approach the TVA.

John A. Rowntree:

I think this is far as the rule to look at the whole picture that you find in any Sherman Act.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

That’s correct.

Hugo L. Black:

(Inaudible)

John A. Rowntree:

That’s correct.

It’s always been said that the Sherman Act conspiracy can be carried out by legal means if it’s broader than a constitution privilege.

Thank you, sir.