HICKS, Circuit Judge.
Appellee, Maynard Cox, recovered a judgment against appellant, Gatliff Coal Company, in the District Court for the Eastern District of Kentucky in the sum of $10,045.00 and costs, and for an additional sum of $1000 for attorneys' fees to be paid to the attorneys of record of appellee for their services in his behalf.
The case was tried by the court without the intervention of a jury. The court made findings of fact and conclusions of law which were unexcepted to by appellant. The court also filed an opinion, printed in the margin, which sets forth the issues developed by the pleadings and the conclusions of the court upon its findings. We are of the opinion that upon the grounds and for the reasons set forth in the findings and the opinion, the judgment appealed from should be and the same is therefore affirmed.
OPINION OF DISTRICT COURT — Filed April 6, 1945.
These actions involve common questions of law and similar issues of fact. By agreement of the parties, for the purpose of trial, they were consolidated and tried by the Court without the intervention of a jury.
During the period here involved the defendant Gatliff Coal Company, a Delaware Corporation, was engaged in operating several coal mines in Whitley County, Kentucky, and in marketing a substantial amount of the coal in interstate commerce. The plaintiffs were employed by defendant in operating its power house which furnished the power for the operation of all the mines, plaintiff Maynard Cox being an engineer and Ora L. Jones a fireman. Cox's employment covered the period from April 1, 1941, to and including March 31, 1943, and Jones worked from April 1, 1941, to and including June 30, 1942.
Prior to April 1941, the defendant's employees were unorganized and defendant's mines were operated under a non-union open shop policy. During early April 1941 the employees were organized and plaintiffs, along with other employees, became members of the miners' union known as District 19, United Mine Workers of America, which will be hereinafter referred to as the Union. At that time negotiations were in progress in Washington, D.C., between representatives of the United Mine Workers of America and the Southern Appalachian Coal Operators' Association (which will be hereinafter referred to as the Operators' Association), with a view to reaching a collective bargaining agreement to regulate and control rates of pay, hours of work and conditions of employment in the bituminous coal industry in the territory embracing that part of Kentucky in which defendant's mines are located and other adjoining states. The defendant was not, at that time, a member of the Operators' Association and was not represented at the wage conference then in progress.
Upon becoming affiliated with the Union, defendant's employees joined with the other union miners throughout the territory in the strike which had prevailed since the expiration of the previous union contract on April 1, 1941. This resulted in closing down defendant's mining operations.
The participants in the wage conference at Washington, recognizing the fact that negotiations as to the new collective agreement would be prolonged, and desiring to promote the National defense program by ending the pending strike, on April 30, 1941, entered into a temporary agreement to be effective during the negotiations and until final conclusion of a new agreement. By this arrangement, the terms of the old contract were, for the time being, to continue in effect, subject to certain specified wage increases. This temporary agreement, known and referred to as the "Washington Agreement," contained a provision extending its terms to any independent operators in the field who might wish to avail themselves of it.
As a condition of resuming work, the defendant's employees, through their Union, demanded that defendant recognize the Union as their bargaining agency, accept the terms and conditions of the temporary Washington Agreement and accept the collective bargaining agreement when it should be finally settled and entered into by the Operators' Association and the Union. Having indicated willingness to conform to these demands, defendant's mines resumed operation and on May 21, 1941, defendant's principal officials met with representatives of the local Union at the office of the defendant in Williamsburg, Kentucky. They reached a temporary agreement in regard to their differences and evidenced it by the following writings which were prepared by and at the office of the defendant's attorney, to-wit:
"This Agreement made and entered into this the 21st day of May, 1941, by and between the Gatliff Coal Company, of Williamsburg, Kentucky, party of the first part, and District No. 19, United Mine Workers of America, party of the second part, Witnesseth:
"It is agreed that this agreement is to be effective as of May 1, 1941.
"It is agreed that this contract is for the general use and benefit of the contracting parties, exclusively, as heretofore defined and set forth in this agreement.
"The undersigned coal company agrees to accept the agreement by and between District 19, United Mine Workers of America, and the Southern Appalachian Coal Operators' Association, with all its wages, hours of labor and provisions.
"The above company, party of the first part, agrees to put into force and effect the wages, hours of labor and working conditions that have been agreed upon in Washington, D.C., April 30, 1941.
"This temporary agreement is effective as of this date and shall apply until a formal ratification of the final agreement extending through March 31, 1943, is completed.
"Supplemental Agreement to the Gatliff Mine, Gatliff Coal Company, Gatliff, Kentucky to Agreement of Even Date.
"It is agreed that the rate paid for loading coal on conveyors on March 31, 1941, in the Rose Creek Mine and No. 3 Mine shall carry the increases of the Washington Agreement of April 30, 1941, and any other increases that may be agreed upon as affecting the coal operators in the Southern Appalachian area.
"It is further agreed that when machinery is moved from one location to a new place the crew shall be given the chance to move the equipment to the new location, providing they are eligible for work. When the crew is employed to move conveyor equipment to a new location they shall be paid at the rate of $6.60 per shift.
"It is further agreed that the power house is to be discontinued as soon as TVA power or a contract with some utilities company can be arrived at. The employees doing the work in the said power house shall continue as in the past and receive the one dollar per day increase and any other increase that may be granted the miners of the Southern Appalachian Coal Operators' Association.
"It is mutually agreed by the parties hereto that the custom heretofore and now in effect with reference to pulling man trip shall be continued under this agreement.
"The United Mine Workers hereby agreed that any violation of the National Labor Relations Act that may have occurred before the signing of this contract will not be initiated or prosecuted by the United Mine Workers of America.
"In Witness Whereof, each of the parties pursuant hereto have caused this agreement to be signed by the properly designated representatives on this 21st day of May, 1941."
On July 5, 1941, the conferees representing the Operators Association and the Union concluded a basic agreement known as "Southern Wage Agreement," which was made effective as of April 1, 1941, and to continue in effect until March 31, 1943. This agreement established certain basic conditions of employment, rates of pay and hours of work. It made provisions for "District Agreements" dealing with local conditions in each district, not inconsistent with the basic rates of pay, hours of work, conditions of employment and the specific rights and obligations of operators and mine workers set forth in the basic contract. It also contained a "Protective Wage Clause" providing, in substance, that all parties to the basic agreement should receive and have the benefit of any more favorable terms covering wages or working conditions which might be embodied in any District Agreement.
On November 5, 1941, a so-called "District Agreement" applying to District 19 was finally concluded and executed. It, like the basic contract, was made effective from April 1, 1941, to March 31, 1943. This District Agreement provided that engineers (the classification to which it is admitted the plaintiff Maynard Cox belonged) should be paid wages at the hourly rate of $1.023 for regular time and firemen (the classification to which it is admitted the plaintiff Ora L. Jones belonged) should be paid an hourly rate of $.857 for regular time. A day of eight hours or forty hours per week was fixed as regular time. For time worked in excess thereof, the plaintiffs were entitled to wages at one and one-half the regular time rate. This agreement reaffirmed the general terms of the basic contract and also contains the following provisions:
"It is understood and agreed by and between the parties hereto that if the United Mine Workers of America negotiate a wage agreement covering variations in working conditions with any other person, company, association or district on a basis more favorable to such other person, company, association or district than the basis of this present wage agreement, then in that event the basis of this present wage agreement shall be modified so that the Southern Appalachian Coal Operators' Association and its members shall receive all the benefits of such more favorable wage agreement unless such agreement has been approved by the Southern Appalachian Coal Operators' Association (pages 1-2).