Petitioner coal mine operators brought this Sherman Act
conspiracy action against respondent union alleging that respondent
had expressly or impliedly agreed with the major producers to
impose the provisions of the 1950 National Bituminous Coal Wage
Agreement (NBCWA) on all coal mine operators, knowing that the
smaller ones would be unable to meet the NBCWA terms and would be
driven out of business. Petitioners based their express agreement
claim on a later amendment, the Protective Wage Clause (PWC),
whereby respondent undertook not to enter into any agreement with
other operators on a basis other than the NBCWA, and their implied
agreement claim on the PWC and subsequent activities of respondent
and the major operators. Following a trial, the trial judge
dismissed the case for failure of proof, finding that the PWC did
not constitute an express commitment by respondent not to bargain
with other operators except on NBCWA terms, but that, all evidence
considered, an implied commitment to do so would be inferred if the
applicable standard of proof were the preponderance of the evidence
standard ordinarily applied in civil cases. He concluded, however,
that, where a labor union is involved, § 6 of the
Norris-LaGuardia Act requires a standard of "clear proof," both
with respect to the authority of individuals alleged to have
performed illegal acts on behalf of unions and with respect to
whether the acts themselves occurred, amounted to a conspiracy, and
had injured the plaintiff's business. Section 6 provides that no
organization participating in a labor dispute shall be liable for
the unlawful acts of individual officers or members except upon
"clear proof" of actual participation in or authorization of such
acts. The District Court's judgment was affirmed by an equally
divided Court of Appeals. Petitioners additionally urge a
construction of the PWC which would make it an illegal agreement
for which respondent is not exempt under the antitrust laws, and
they ask for reconsideration of the holding in
Mine
Workers v.
Page 401 U. S. 303
Pennington, 381 U. S. 657,
that a union is not liable under the antitrust laws when it
concludes
"a wage agreement with a multiemployer bargaining unit . . . and
as a matter of its own policy, and not by agreement with all or
part of the employers of that unit, seek[s] the same wages from
other employers."
Held:
1. The ordinary preponderance of the evidence standard is
applicable in civil antitrust actions against labor unions except
with respect to proving the authority of individual members,
officers, or agents of a union to perform on behalf of the union
the acts complained of, where the "clear proof" standard applies.
Pp.
401 U. S.
307-311.
2. This Court cannot properly consider in the first instance
petitioners' additional argument about the construction of the PWC
since it is not clear if the contention was made below and whether,
in any event, the record supports it. Pp.
401 U. S.
311-312.
3. The Court's decision in
Pennington is reaffirmed
both with respect to the holding (1) that a union may make wage
agreements with a multi-employer bargaining unit and, in pursuit of
its own self-interests, seek to secure the same terms from other
employers and (2) that the antitrust exemption is forfeited if the
union agrees with an employer group to impose a certain wage scale
on other bargaining units, thus joining a conspiracy to limit
competition. Pp.
401 U. S.
312-314.
416 F.2d 655, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J.,
filed a dissenting opinion, in which BLACK, HARLAN, and MARSHALL,
JJ., joined,
post, p.
401 U. S.
314.
Page 401 U. S. 304
MR. JUSTICE WHITE delivered the opinion of the Court.
Petitioners, coal mine operators in southeastern Tennessee, were
plaintiffs in the trial court, where their complaint accused
respondent United Mine Workers of America of violating the Sherman
Act by conspiring with various coal producers to drive petitioners
out of business. The major thrust of the claim was that the Union
had expressly or impliedly agreed with the major producers to
impose the provisions of the National Bituminous Coal Wage
Agreement (NBCWA), first executed by the Union and certain
companies in 1950, on all coal mine operators, knowing that small
and nonmechanized operators would be unable to meet the contract's
terms. The purpose of this alleged conspiracy was to eliminate the
marginal operators, control production, and reserve the market for
larger concerns. The claim of express agreement rested on the
so-called Protective Wage Clause (PWC) added to the NBCWA by
amendment in 1958. The PWC, after reciting that the parties agreed
that coal mines
"shall be so operated as not to debase or lower the standards of
wages, hours, safety requirements and other conditions of work,
established by this contract,"
provided as follows:
"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 or any
applicable District Contract. The United Mine Workers of America
will diligently perform and enforce without discrimination or favor
the conditions of this paragraph and all other terms and conditions
of this Contract, and will use and
Page 401 U. S. 305
exercise its continuing best efforts to obtain full compliance
therewith by each and all the parties signatory thereto. [
Footnote 1]"
Petitioners, in any event, claimed that a conspiratorial
arrangement between the Union and the major operators could be
implied from the PWC, the course of negotiations between the Union
and those operators from 1950 forward, [
Footnote 2] and the ensuing organizational and strike
activity against petitioners and other southeastern Tennessee
operators aimed at securing agreement to and compliance with the
National Agreement as amended from time to time, as well as from
the Union's purchase of a controlling interest in West Kentucky
Coal Co. and the latter's allegedly predatory pricing in the TVA
coal market.
Page 401 U. S. 306
Following a trial to the court on a voluminous record, the trial
judge wrote an extensive opinion containing his findings and
conclusions leading to a dismissal of the case for failure of
proof.
Ramsey v. UMW, 265 F.
Supp. 388 (ED Tenn.1967). He interpreted the PWC as forbidding
departure from the contract terms by the Union only where
signatories were concerned; the court found nothing in the contract
obligating the Union to insist on comparable terms when dealing
with employers outside the bargaining unit. As for an implied
conspiracy to standardize employment terms throughout the industry
aimed at destroying marginal producers, the trial court said
that,
"[w]ere this case being tried upon the usual preponderance of
the evidence rule applicable to civil cases, the Court would
conclude that the U.M.W. did so impliedly agree,"
but that
"the standard of proof where a labor union is involved is 'clear
proof,' as required by Section 6 of the Norris-LaGuardia Act, a
standard different from the ordinary civil burden of persuasion.
[
Footnote 3]"
265 F. Supp. at 412. Judged by this stricter standard, proof of
conspiracy was found wanting, and the case against the Union
failed.
A panel of the Court of Appeals ruled the trial court had erred
in applying the clear evidence standard, but rehearing en banc was
granted. The Court of Appeals then agreed with the District Court's
construction of the PWC, but ,with respect to the clear-evidence
standard, four judges agreed with the trial judge and four
disagreed. The latter insisted that the ordinary preponderance of
evidence standard was applicable in civil antitrust actions against
labor unions except with respect to proving the authority of
individual members, officers, and agents of
Page 401 U. S. 307
the Union to perform the acts complained of on behalf of the
Union. The District Court's judgment was therefore affirmed by an
equally divided court.
Ramsey v. UMW, 416 F.2d 655 (CA6
1969). We granted certiorari. 397 U.S. 1006 (1970).
I
In a section of his opinion entitled "Legal Guidelines," the
District Judge inquired as to "the standard of proof that must
govern a proceeding involving a Sherman Act charge against a labor
union." His answer was:
"The burden of proof borne by the plaintiff is not the usual
preponderance of the evidence rule applicable in civil cases
generally. The requirement imposed by Section 6 of the
Norris-LaGuardia Act is that of 'clear proof' where a labor
organization is a party to an action such as this. . . . That the
'clear proof' standard applies to an action wherein a labor
organization is sought to be charged with a Sherman Act violation
appears settled."
265 F. Supp. at 400. In this and other passages in the trial
judge's opinion, [
Footnote 4]
he apparently demanded clear proof, rather than a preponderance of
the evidence, not only with respect to the authority of the
individuals who were alleged to have performed certain illegal acts
on behalf of unions, but also as to whether the acts themselves
occurred, whether the acts proved amounted to a conspiracy and
whether plaintiffs' businesses had been injured. The eight judges
of the Court of Appeals also seemed to read the trial court as
having given unlimited application to the clear proof standard in
this action. Apparently they were also convinced that the standard
applied by the trial court had made a critical difference in the
case, for the issue that equally divided them was whether the clear
proof standard should be
Page 401 U. S. 308
applied to any matters other than the Union's authorization of
the conduct alleged and proved. [
Footnote 5]
The reasoning of the lower courts in. departing from the usual
preponderance of evidence rule generally applicable to civil
actions in federal courts [
Footnote
6] was rooted in § 6 of the Norris-LaGuardia Act, 47 Stat.
71, 29 U.S.C. § 106. But the trial judge and four judges of
the Court of Appeals read far too much into § 6, which
provides as follows:
"No officer or member of any association or organization, and no
association or organization participating or interested in a labor
dispute, shall be
Page 401 U. S. 309
held responsible or liable in any court of the United States for
the unlawful acts of individual officers, members, or agents,
except upon clear proof of actual participation in, or actual
authorization of, such acts, or of ratification of such acts after
actual knowledge thereof."
Judge O'Sullivan cogently observed in the Court of Appeals that:
"This is plain language which . . . clearly exposes the Section's
limitation." 416 F.2d at 667. On its face, § 6 is not
addressed to the quantum of evidence required to prove the
occurrence of the alleged "unlawful acts." It is concerned only
with requiring "clear proof" that the person or organization
charged actually participated in, authorized, or ratified "such
acts." Nothing in the words of the section suggests that a new and
different standard of proof was being prescribed for all issues in
actions against a union, its members, or its officers involved in a
labor dispute. The section neither expressly nor by implication
requires satisfaction of the clear proof standard in deciding
factual issues concerning the commission
vel non of acts
by union officers or by members alleged to constitute a conspiracy,
or the inferences to be drawn from such acts, or concerning overt
acts in furtherance of the conspiracy, the impact on the relevant
market or the injury to plaintiffs' businesses.
The legislative history of § 6 was reviewed at length in
United Brotherhood of Carpenters v. United States,
330 U. S. 395
(1947). We have reviewed it again, and we find nothing to suggest
that the section means something different from what its language
seems to say. [
Footnote 7]
Without laboring the matter -- since nothing to the contrary in the
legislative history has been presented to us --
Page 401 U. S. 310
the simple concern of Congress was that unions had been found
liable for violence and other illegal acts occurring in labor
disputes which they had never authorized or ratified and for which
they should not be held responsible. Congress discerned a tendency
in courts to blame unions for everything occurring during a strike.
Nor was the problem necessarily limited to labor unions. [
Footnote 8] The straightforward answer
was § 6, with its requirement that, when illegal acts of any
individual are charged against one of the major antagonists in a
labor dispute -- whether employer or union -- the evidence must
clearly prove that the individual's acts were authorized or
ratified.
See id. at
330 U. S. 403.
We find no support in the legislative material for the notion that
Congress intended broadly to modify the standard of proof where
union and employer are sued separately or together in civil actions
for damages incurred in the course of labor disputes.
Prior cases in this Court relied on by the courts below are not
to the contrary.
Carpenters' major concern was § 6.
The Court there said that
"[t]he limitations of that section are upon all courts of the
United States in all matters growing out of labor disputes, covered
by the Act, which may come before them."
Id. at
330 U. S. 401.
The statement is unexceptionable -- the federal courts, of course,
must heed § 6 in all cases arising out of labor disputes in
which the section is applicable. [
Footnote 9] However, the limitations the section imposes
are those that the section describes. It is clear from the
remainder of
Page 401 U. S. 311
the Carpenters opinion that § 6 deals only with proving the
authority of individuals or organizations who act for another.
Indeed, the Court there reversed a judgment against a union because
the trial court had failed to instruct that illegal acts could not
be proved against the union unless the evidence clearly showed the
union had authorized, participated in, or ratified the commission
of those acts.
United Mine Workers v. Gibbs, 383 U.
S. 715 (1966), insofar as it dealt with § 6, was
concerned only with the failure of the evidence clearly to show
union responsibility for illegal acts of violence. There was no
suggestion in that case that § 6 had broader scope. And §
6 was not even involved in
United Mine Workers v.
Pennington, 381 U. S. 657
(1965), as it came to this Court. The section was neither cited nor
discussed, and there were no indications that our passing
reference, 381 U.S. at
381 U. S. 665,
to forfeiture of union exemption from antitrust liability when
union connivance with employers is clearly shown was intended to
establish a stricter standard of proof in actions charging labor
unions with violations of the Sherman Act.
In our view, § 6 requires clear and convincing evidence
only as to the Union's authorization, participation in, or
ratification of the acts allegedly performed on its behalf. Nor do
we discern any basis for our fashioning a new standard of proof
applicable in antitrust actions against labor unions. Accordingly,
the District Court erred in requiring petitioners' compliance with
the standard of § 6 in proving other elements of their treble
damage case against the Union.
II
Petitioners argue two other matters. We are urged to construe
the PWC as itself being an illegal bargain for which the Union is
not exempt under the antitrust
Page 401 U. S. 312
laws. The thrust of the argument in this Court is that, by 1958,
when the PWC was first agreed to by the Union and the BCOA, the
Union had executed the national contract with hundreds of different
bargaining units in addition to those represented by the BCOA. Even
if the PWC bound the Union only to insist on identical contract
terms as against "signatories," the effect of the clause, it is
urged, was to bind the Union to the same contract,
ad
infinitum, with many and different bargaining units; the Union
was no longer free to agree to different terms with any previous
signatory to the NBCWA. [
Footnote 10] We find no reference to this aspect of the
case in the opinions in the District Court and the Court of
Appeals. We are unsure whether it was presented below and whether,
in any event, there is record support for it. Accordingly, we deem
it inappropriate to consider it in the first instance.
Finally, petitioners in effect ask us to reconsider our holding
in
Pennington and other cases that, under the Clayton and
Norris-LaGuardia Acts, the Union incurs no liability under the
antitrust laws when it concludes
"a
Page 401 U. S. 313
wage agreement with the multi-employer bargaining unit . . . and
. . . , as a matter of its own policy, and not by agreement with
all or part of the employers of that unit, seek[s] the same wages
from other employers."
381 U.S. at
381 U. S. 664.
This we decline to do. The Court made it unmistakably clear in
Allen Bradley Co. v. Union, 325 U.
S. 797,
325 U. S. 811
(1945), that unilateral conduct by a union of the type protected by
the Clayton and Norris-LaGuardia Acts does not violate the Sherman
Act even though it may also restrain trade.
"[T]hese congressionally permitted union activities may restrain
trade in and of themselves. There is no denying the fact that many
of them do so, both directly and indirectly."
But "the desirability of such an exemption of labor unions is a
question for the determination of Congress." 325 U.S. at
325 U. S. 810.
We adhere to this view. But neither do we retreat from the
"one line which we can draw with assurance that we follow the
congressional purpose. We know that Congress feared the
concentrated power of business organizations to dominate markets
and prices. . . . A business monopoly is no less such because a
union participates, and such participation is a violation of the
Act."
Id. at
325 U. S. 811.
Hence, we also adhere to the decision in
Pennington:
"[T]he relevant labor and antitrust policies compel us to
conclude that the alleged agreement between UMW and the large
operators to secure uniform labor standards throughout the
industry, if proved, was not exempt from the antitrust laws."
381 U.S. at
381 U.S.
669. Where a union, by agreement with one set of employers,
insists on maintaining in other bargaining units specified wage
standards ruinous to the business of those employers, it is liable
under the antitrust laws for the damages caused by its agreed-upon
conduct.
Page 401 U. S. 314
We reverse the judgment of the Court of Appeals and remand the
case for further proceedings consistent with this opinion.
So ordered.
[
Footnote 1]
In return, the operators agreed
"that all bituminous coal mined, produced, or prepared by them,
or any of them, or procured or acquired by them or any of them
under a subcontract arrangement"
should be produced under terms and conditions which are as
favorable to the employees as those provided for in this
contract.
In another case,
Tennessee Consolidated Coal Co. v.
UMW, 416 F.2d 1192 (CA6 1969), the Court of Appeals stated
that the Protective Wage Clause was a "
quid pro quo" for
the foregoing undertaking of the operators which was described by
the court as an agreement "to boycott coal not produced in
conformity with the national agreement." 416 F.2d at 1198.
[
Footnote 2]
The Bituminous Coal Operators Association (BCOA) was formed as a
multi-employer collective bargaining unit in 1950, just after
signing of the 1950 NBCWA. Member employers ranged from the small
to the large, though its members mined about 50% of U.S. bituminous
coal. It formed a "negotiating committee" analogous to the UMW's
"policy committee," to represent member employers at the bargaining
table.
Ramsey v. UMW, 265 F.
Supp. 388, 407 (ED Tenn.1967). Relations between union and
management improved greatly during the 1950's, leading petitioners
to suggest that the absence of strife indicated the rise of the
conspiracy.
Id. at 407-408.
[
Footnote 3]
The court later said, "Did not the clear evidence rule apply,
the Court might have reached a different conclusion upon certain
issues." 265 F. Supp. at 434.
[
Footnote 4]
See n 3,
supra, and accompanying text.
[
Footnote 5]
The Union urges not only that the trial court properly
understood the limited scope of § 6 but also that, on most if
not all significant issues the proof failed even under the
preponderance of evidence rule. For the first proposition the Union
relies on the trial judge's instructions to the jury in a later
case, which are reported in
Tennessee Consolidated Coal Co. v.
UMW, 416 F.2d at 1200-1203, and which are said to construe
§ 6 more narrowly. But we must decide the case before us, not
some other one in which the trial court may have evidenced
different views. Here, the Union's claim is belied by the language
of the trial court's opinion and its interpretation by the eight
judges of the Court of Appeals. The second proposition -- that the
trial court's clear evidence ruling was mere dictum -- leaves
unexplained the Court of Appeals' affirmance by an equally divided
court as well as the trial judge's remarks that he would or might
have reached different results on some issues, apparently including
some aspects of the conspiracy issue, if preponderance of the
evidence was the governing standard. To what extent the proof would
fail under the standard we here hold applicable and what legal
difference it might make are matters open to be dealt with on
remand. We do note from the trial court's opinion that, except for
violence and some picketing, issues of union responsibility for
acts alleged and proved were nonexistent or played little part in
the thinking of the trial judge.
[
Footnote 6]
"In civil cases, [the factfinder's] duty is to weigh the
evidence carefully, and to find for the party in whose favor it
preponderates. . . ."
Lilienthal's Tobacco v. United States, 97 U. S.
237,
97 U. S. 266
(1878).
[
Footnote 7]
As we noted in
United Mine Workers v. Gibbs,
383 U. S. 715,
383 U. S. 736
n. 26 (1966), the fullest statement concerning the basis and impact
of § 6 is found in S.Rep. No. 163, 72d Cong., 1st Sess.,
19-21.
[
Footnote 8]
"Moreover, it will be observed that this section . . . applies
both to organizations of labor and organizations of capital."
Id. at 19.
[
Footnote 9]
The "more stringent standards" of § 6 were modified by
Congress for purposes of the Labor Management Relations Act.
United Mine Workers v. Gibbs, 383 U.
S. 715,
383 U. S. 736
(1966).
See National Labor Relations Act, as amended,
§ 2(13), 61 Stat. 139, 29 U.S.C. § 152(13); Labor
Management Relations Act, 1947, §§ 301(e), 303(b), 61
Stat. 157, 159, 29 U.S.C. §§ 185(e), 187(b).
[
Footnote 10]
From the opinion of the District Court, it appears that George
Ramsey, one of the petitioners,
"was a signatory to the National Bituminous Coal Wage Agreement
from the time he began operations [in 1954] until 1960. In 1958, he
was sued by the Welfare Fund for nonpayment of royalties, and, the
following two years, his payments to the Welfare Fund exceeded his
profits. In fact, he lost money in 1960. In that year, his
employees withdrew from the U.M.W. and joined the Southern Labor
Union, and he terminated his U.M.W. contract."
265 F. Supp. at 428. Other companies refused to sign the
National Contract and negotiated for modifications.
"[O]n December 26, 1962, the miners in most of the Southeastern
Tennessee coal field ceased working. . . . While it does not appear
that the U.M.W. called the strike, it is clear that it sanctioned
and approved the strike."
Ibid.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK, MR. JUSTICE
HARLAN, and MR. JUSTICE MARSHALL concur, dissenting.
This phase of this protracted litigation involves quite a
different problem than the one presented in
United Mine Workers
v. Pennington, 381 U. S. 657.
Pennington involved the question whether § 20 of the
Clayton Act, 38 Stat. 738, and § 4 of the Norris-LaGuardia
Act, 47 Stat. 70, under the complaint there made exempted the
United Mine Workers from liability under the antitrust laws. That
was recognized as the single issue.
Id. at
381 U. S.
661-666. The Court said,
"[W]e think a union forfeits its exemption from the antitrust
laws when it is clearly shown that it has agreed with one set of
employers to impose a certain wage scale on other bargaining
units."
Id. at
381 U. S.
665.
The question in this case involves not the scope of the
exemption, but whether the Sherman Act has been violated. As we
said in
Apex Hosiery Co. v. Leader, 310 U.
S. 469,
310 U. S. 512,
"[A]ctivities of labor organizations not immunized by the Clayton
Act are not necessarily violations of the Sherman Act."
A union-employer agreement to force other employers out of
business causes the union to lose its exemption. But the fact that
a union may be sued under the Sherman Act does not mean that it is
necessarily liable. The question in the present case is, indeed,
only one phase of the alleged Sherman Act violation. It solely
concerns the kind of proof needed.
Page 401 U. S. 315
This phase of the litigation turns on the meaning of § 6 of
the Norris-LaGuardia Act, 47 Stat. 71, 29 U.S.C. § 106, which
provides:
"No officer or member of any association or organization, and no
association or organization participating or interested in a labor
dispute, shall be held responsible or liable in any court of the
United States for the unlawful acts of individual officers,
members, or agents, except upon clear proof of actual participation
in, or actual authorization of, such acts, or of ratification of
such acts after actual knowledge thereof."
The Court says that: "On its face, § 6 is not addressed to
the quantum of evidence required to prove the occurrence of the
alleged
unlawful acts.'" I respectfully disagree.
Unions usually act through officers, members, or agents, not as
a body. Their liability is therefore vicarious, and Congress was
anxious to safeguard, curtail, and limit it. The "clear proof"
required was not restricted to "clear proof" of authority to act or
"clear proof" of agency or "clear proof" of other "authorization."
The "clear proof" was "clear proof" of authority to commit "the
unlawful acts." The "clear proof" required was "clear proof" of
"actual participation" in the "unlawful acts." The "clear proof"
required was "clear proof" of the "ratification" of the "unlawful
acts."
Authorization to perform those "unlawful acts," like
ratification of them or participation in them must, if § 6 is
to be given full vitality, be based on "clear proof" that the union
had full complicity in the scheme. [
Footnote 2/1] It is, in
Page 401 U. S. 316
my view, a drastic rewriting of § 6 to conclude, as does
the Court, that:
"The straightforward answer was § 6, with its requirement
that, when illegal acts of any individual are charged against one
of the major antagonists in a labor dispute -- whether employer or
union -- the evidence must clearly prove that the individual's acts
were authorized or ratified."
United Mine Workers and BCOA (Bituminous Coal Operators
Association) entered into an industry-wide wage agreement in 1958
which provided wage scales for employees of all "signatory
operators" of coal lands or leases.
It is argued that this agreement constituted an agreement by
United Mine Workers to impose the wage scale on all nonsignatory
coal operators in order to force some (including petitioners) out
of business. If that was the agreement, then, as I said in
Pennington, 381 U.S. at
381 U. S. 674,
the union would have lost its exemption. But there is not a word in
the agreement, as I read it, that covers nonsignatory
operators.
Page 401 U. S. 317
It is, however, contended that, even though there is no express
commitment to drive marginal operators out of business, there was a
conspiracy between BCOA and United Mine Workers to impose a wage
scale upon the total industry which had the purpose and effect of
driving the small, marginal operators out of business.
On this issue of the case, Judge Wilson of the District Court
ruled:
"Were this case being tried upon the usual preponderance of the
evidence rule applicable to civil cases, the Court would conclude
that the U.M.W. did so impliedly agree. However, the standard of
proof where a labor union is involved is 'clear proof,' as required
by Section 6 of the Norris-LaGuardia Act, a standard different from
the ordinary civil burden of persuasion.
United Brotherhood of
Carpenters v. United States, 330 U. S. 395 . . . ;
United
Mine Workers v. Gibbs, 383 U. S. 715. . . . The Court
is of the opinion that the evidence upon the record in this case
does not establish such clear and unequivocal proof as to warrant
the Court in finding that the U.M.W. pursued its policy of
uniformity of wage and labor standards by agreement with one or
more employers, as distinguished from pursuing such policy upon its
own. The only direct evidence in the record is to the effect that
the Union pursued such policy upon its own, and not in agreement
with any employer."
265 F.
Supp. 388, 412.
The action of United Mine Workers officials in agreeing to the
wage clause was the action of fully authorized agents. If that is
all that the "clear proof" of § 6 requires, the case would be
easy. For then it would be immaterial whether "clear proof" of an
illegal purpose
Page 401 U. S. 318
or "preponderance of the evidence" were the test, for whichever
were required, there would be no difference. If, therefore, "clear
proof" is to set labor antitrust cases apart from the rest -- as it
clearly was designed to do -- it must embrace a union program to
impose a wage scale on the entire industry with the purpose and
effect of driving the small, marginal operators out of
business.
Judge Wilson of the District Court and eight members of the
Court of Appeals have reviewed the evidence in detail. While they
agree that a case against the union has been made out if
"preponderance of the evidence" is the test, none has suggested
that the "clear proof" test has been satisfied if it is to mean
more than "clear proof" of an agency relation.
In
United Mine Workers v. Gibbs, 383 U.
S. 715,
383 U. S. 739,
we spoke of the effect of § 6 in a case where the union is
charged with the damages flowing from violence:
"What is required is proof either that the union approved the
violence which occurred or that it participated actively or by
knowing tolerance in further acts which were in themselves
actionable under state law or intentionally drew upon the previous
violence for their force."
If, in
Gibbs, union officials were authorized to talk
with employers and to protest certain issues that threatened the
union's interests, would the union be liable if the protest became
so heated that it erupted into violence? Certainly not.
Authorization to use dynamite in the protest would be "clear
proof"; authorization to carry dynamite for a lawful purpose would
certainly not be "clear proof" of the authorization to use the
dynamite to destroy an employer's business.
In the present case, authorization of union officials to use
their best efforts to get an industry-wide wage scale
Page 401 U. S. 319
does not necessarily include authorization to drive some
employers out of business. As Mr. Justice Goldberg pointed out in
Meat Cutters v. Jewel Tea, 381 U.
S. 676,
381 U. S. 697
et seq., there is obviously nothing illegal
per
se about industry-wide collective bargaining. [
Footnote 2/2] A particular agreement becomes
vulnerable under the antitrust laws only if there is "clear proof"
that the purpose of the union [
Footnote
2/3]
Page 401 U. S. 320
was not to advance the coal miners' interests, but to do in one
or more operators.
By the same reasoning, we should ask her: Was there "clear
proof" that the union approved a plan to drive small, marginal
operators out of business?
Since, on this record, no one has suggested that there is such
"clear proof," the judgment of the District Court should be
affirmed.
[
Footnote 2/1]
That was our construction of § 6 in
United Brotherhood
of Carpenters v. United States, 330 U.
S. 395,
330 U. S.
410-411. That construction provoked Mr. Justice
Frankfurter to say in dissent:
"Practically speaking, the interpretation given by the Court to
§ 6 serves to immunize unions, especially the more alert and
powerful, as well as corporations involved in labor disputes, from
Sherman Law liability. To insist that such is not the result
intended by the Court is to deny the practical consequences of the
Court's ruling."
Id. at
330 U. S. 422.
Yet, as S.Rep. No. 163, 72d Cong., 1st Sess., 19, said
respecting § 6:
"Opposition to this section has been voiced on the ground that
it seeks to establish a 'new law of agency.' In the first place,
this section is concerned especially with establishing a rule of
evidence. There is no provision made relieving an individual from
responsibility for his acts, but provision is made that a person
shall not be held responsible for an 'unlawful act' except upon
'clear proof' of participation or authorization or
ratification."
And see H.R.Conf.Rep. No. 793, 72d Cong., 1st Sess., 6;
H.R.Conf.Rep. No. 821, 72d Cong., 1st Sess., 6.
[
Footnote 2/2]
Mr. Justice Goldberg said:
"This history also shows that labor contracts establishing more
or less standardized wages, hours, and other terms and conditions
of employment in a given industry or market area are often secured
either through bargaining with multi-employer associations or
through bargaining with market leaders that sets a 'pattern' for
agreements on labor standards with other employers. These are two
similar systems used to achieve the identical result of fostering
labor peace through the negotiation of uniform labor standards in
an industry."
381 U.S. at
381 U. S.
722.
[
Footnote 2/3]
In the prior Congress, a measure like § 6 was introduced.
It is described in S.Rep. No. 1060, pt. 2, 71st Cong., 2d Sess.,
18-19:
"[W]hy should an officer of a labor union, who has specifically
advised members that violence must be avoided, become responsible
for the hot-headed action of some member in perhaps assaulting a
strike breaker? Again, the relationship between officers and
members of labor unions and other members is not that of employer
and employee. The officers chosen by a union are not employers of
the membership. They have no control over their associates based
upon the power of determining whether or not they will employ them.
It may be accepted that, if a group associated in common activities
becomes controlled by a lawless majority, it may be necessary for
law-abiding men to dissolve their association with lawbreakers; but
the doctrine that a few lawless men can change the character of an
organization whose members and officers are very largely
law-abiding is one which has been developed peculiarly as
judge-made law in labor disputes, and it is high time that, by
legislative action, the courts should be required to uphold the
long established law that guilt is personal, and that men can only
be held responsible for the unlawful acts of associates because of
participation in, authorization or ratification of, such acts. As a
rule of evidence, clear proof should be required, so that criminal
guilt and criminal responsibility should not be imputed but proven
beyond reasonable doubt in order to impose liability."