Ramsey v. United Mine Workers of America/Dissent Douglas

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 of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626. 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 661-666, 85 S.Ct., at 1588 1591. 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 665, 85 S.Ct., at 1591.

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, 512, 60 S.Ct. 982, 1002, 84 L.Ed. 1311, '(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.

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 of '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 is them must, if § 6 is to be given full vitality, be based on 'clear proof' that the union had full complicity in the scheme. It is in 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 674, 85 S.Ct., at 1595), the union would have lost its exemption. But there is not a word in the agreement, as I read it, that covers nonsignatory operators.

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 (and Joiners of     America) v. United States, 330 U.S. 395, 67 S.Ct. 775, 91     L.Ed. 973; United Mine Workers (of America) v. Gibbs, 383     U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. 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 or 'preponderance of the evidence' were the test, for whichever were required, there woud 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 of America v. Gibbs, 383 U.S. 715, 739, 86 S.Ct. 1130, 1146, 16 L.Ed.2d 218, 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 does not necessarily include authorization to drive some employers out of business. As Mr. Justice Goldberg pointed out in Local Union No. 189, Amalgamated Meat Cutters, etc. v. Jewel Tea Co., 381 U.S. 676, 697 et seq., 85 S.Ct. 1596, 1607 et seq., 14 L.Ed.2d 640, there is obviously nothing illegal per se about industry-wide collective bargaining. A particular agreement becomes vulnerable under the antitrust laws only if there is 'clear proof' that the purpose of the union was not to advance the coal miners' interests but to do in one or more operators.

By the same reasoning we should ask here: 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.