January 4, 1962
JOHN L. LEWIS, ET AL., APPELLANTS
EDWARD MEARS, DOING BUSINESS AS MEARS COAL COMPANY, APPELLEE.
Before BIGGS, Chief Judge, GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.
Per Curiam: There is not a majority of the Court in favor of granting the petition for rehearing. Accordingly the petition will be denied.
BIGGS, Ch. J. dissenting: Putting to one side any contention that Mears ratified the 1952 National Bituminous Coal Wage Agreement, that he is estopped to deny that he was bound by it, or that the parole evidence rule was violated, the court below and this court erred in holding that the terms of that Agreement might be nullified by an alleged oral prior or contemporaneous understanding that the terms of the Agreement should not be valid until it was delivered back to Mears. The royalty payments provided for by the Agreement were "really another form of compensation to the employees". Lewis v. Benedict Coal Corp., 361 U.S. 459, 469 (1960). As Chief Judge Sobeloff points out in his dissenting opinion in Lewis, Trustee, et al. v. Lowry, 295 F.2d 197 (4 Cir. 1961), the position taken by the majority emasculates the policy intended to be created by Congress in enacting Section 302(c)(5)(B) and vitiates the spirit of Section 8(d) of the Labor Management Relations Act, 29 U.S.C.A. § 186(c)(5)(B) (Supp. 1960) and § 158(d). The federal courts in fashioning a body of federal common law for the enforcement of collective bargining agreements, Lewis v. Benedict Coal Corp., supra, p. 470, must shape that law so that such agreements cannot be modified or nullified by covert conditions or stipulations entered into between the employer and the union.If it be otherwise industrial strife is sure to ensue and the stabilizing effect on labor relations of the Labor Management Relations Act will be destroyed.
For this reason I dissent from the order of this court denying rehearing en banc.
I am authorized to state that Judge Staley, Judge Ganey and Judge Smith join in the views expressed in this opinion.
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