Mr. OWENS. Yes, but you didn't know what it was for sure. You just knew there was picketing at the mines by unknown people, and then there would be a lot of rumors as to what it was about. No one ever mentioned the safety thing until Mr. Trbovich got on the witness stand and said why he was picketing and others were. That is the only evidence in the record that that is the reason for it.

If I had to guess, I don't think it was.

Mr. MITTELMAN. Do you know what the picket sign said?
Mr. OWENS. I am sorry.

Mr. MITTELMAN. Do you know what the picket sign said?

Mr. OWENS. No, I never heard of any picket sign. If there was, it was not brought to my attention.

Mr. MITTELMAN. If there was no picket sign, how was picketing conducted?

Mr. OWENS. They sent a man to stand up in front of the tipple, who said, "This mine is on strike," and they all turned around and went home. It is unbelievable, but that is exactly what they do.

Mr. MITTELMAN. No reason is given by the man who stands in front of the tipple and says that?

Mr. OWENS. I don't know whether they gave any reasons in this case or not. But no one ever mentioned it, no one ever heard of it until Mr. Trbovich said it. That was the entire evidence. They just said. "We don't know why the guy was there." They gave another reason too. If I had the records here they gave another reason other than the safety thing. That was never mentioned.

Senator WILLIAMS. We have the particulars on the record. Would you read that?

Mr. FEDER. The first day of the hearing, page 16-that could not be more than 10 or 15 minutes into the hearing on this case "I think one of the reasons those mines were shut down is because there is a provision in the Mine Safety Act which was enacted and signed into law by the President of the United States on December 30, last year, which states at an especially hazardous mine there shall be spot inspections once every 5 working days at irregular intervals. The U.S. Government has refused to enforce that provision of the law. Congress saw fit to make a determination that it was essential to the health and safety of coal miners in an especially hazardous mine that the Bureau conduct spot inspections there once every 5 working days. The Bureau of Mines says it does not have the personnel to do it, that it may get around to enforcing that provision of the law sometime late in 1971.

"I think and again I am conjecturing perhaps, just as much as my colleagues-this is one of the problems. I think the basic problem of the whole process of shut down is the fact that the coal operators and the U. S. Government are violating the law that Congress passed last year. That is the sum and substance of it all."

If I might add, the chairman of the subcommittee had a visitation the week before this shutdown by one of the defendants in this action. who came in to complain exactly about this problem, 200 extra hazardous mines which were not being spot inspected. He asserted to the chairman that the coalfields in Pennsylvania were in an uproar about these failures to spot inspect.

Then he interjected each one of the mines involved in the court action was such a mine at which spot inspections were necessary and were not made. At one further point in regard to the mines we have been talk

ing about we know there were violations at Gateway because the subcommittee itself saw them.

You mentioned specifically Vespa 5. At the hearings the day after the temporary restraining order was issued, the hearing before this subcommittee on Health and Safety, the question was asked by Senator Williams, to Mr. Bishop, safety committeeman at Vespa 5.

You are talking about Vespa 5?

Mr. BISHOP. We had a mine fatality the other day.

Senator WILLIAMS. Maple Creek.

Mr. BISHOP. Vespa 5 had two.

Mr. FEDER. It seems to me inconceivable that the only question that you did not raise to ward off this injunction was the one question that could have assured success, namely, that this was a safety walkout. The men came to Washington to tell us that it was a safety walkout. The Taft-Hartley Act protects them in a safety walkout.

Mr. OWENS. I was responding to a question about what the picket said when it came up. You now are quoting the attorney in his opening statement, Mr. Yablonski. He was referring to what the pickets did. Mr. Yablonski, I don't believe, was a picket and the only one I knew of was Mr. Trbovich and he did not bring this up until he testified. Again, you jump from one thing to the other. I can't respond to one question and you ask another one. I know that the attorney said that Tuesday morning. As I understood, the gentleman over here asked me what the picket said. I think they organized that, the picketing. I am sure the ones that went out and picketed the mines were using this or came in and said, because they are not enforcing the mine safety act. I never said that.

We are talking about, I am talking about what the work stoppage was about. This is a handful of men that get together, they don't picket their mine. If this is what they are doing and is the real purpose, why don't they picket their own mine?

Mr. FEDER. I might suggest one thing. The chairman made it clear this morning the basic thrust of this questioning is the enforcement of the Coal Mine Health and Safety Act, and whether the provisions written into the law painstakingly primarily by the Senate subcommittee to protect the interests of the miners were having that effect.

Then we are questioning about provisions the unions were making to protect their interests. We have here a question of safety in this particular case and it is clear on the record that one issue the union did not discuss at all other than in terms of grievances is whether this was a safety walkout or not, pointing out simply that the representatives for the union agreed with the court that health and safety was not an issue in this dispute.

Mr. OWENS. We are talking about the enforcement of the Mine Safety Act was a legal issue that has been resolved in a case of this kind.

Mr. FEDER. The court of appeals disagreed with you.

Mr. OWENS. I don't think so at all.

Mr. FEDER. It did say testimony should be taken and you argued in trial court it should not be taken.

Mr. OWENS. I did not say that. I think they should have taken evidence.

Mr. FEDER. Didn't you agree with the trial court that that evidence was not appropriate?

Mr. OWENS. No. We took the position that the question of the enforcement of the Mine Safety Act was not to be resolved by the District Court in Pittsburgh. I don't even think we stated that we didn't think it was. We say that the matter of enforcement of the Mine Safety Act and the safety regulations and the law is not a matter that you process through the grievance machinery. That is what the lawsuit was about.

Mr. FEDER. "We do not believe it has application to this case," the Coal Mine Health and Safety Act.

Mr. OWENS. That is correct.

Mr. FEDER. All I am saying, the court of appeals, fortunately, disagreed with you.

Mr. OWENS. I don't think so.

Senator WILLIAMS. Senator Randolph ?

Senator RANDOLPH. Mr. Chairman, the attorney says that the court has not said what you gentlemen, attorneys, here are saying and what the interpretation of the record is. I would like for the attorney, for the attorneys to have in the record here why you believe that the court did not say what is said here by counsel for the subcommittee.

Mr. CAREY. The court of appeals merely sent it back for rehearing to get evidence to see what the real basis of the suit was.

Mr. MITTELMAN. The court of appeals said specifically one of the errors in district court was refusal to take evidence on the health and safety question.

Mr. CAREY. It does not say that was the basis for the suit, as he concludes up there.

Mr. MITTELMAN. It is really very simple. The union attorneys argued in the district court that evidence as to health and safety was not relevant. When you went up on appeal, the Third Circuit reversed the district court on just that point.

Mr. FEDER. I think it would be helpful if Senator Randolph's request was complied with.

Mr. OWENS. If the Third Circuit said that they should have a hearing or they should take evidence in this lawsuit as to whether or not the Federal Coal Mine Safety Act should be enforced or not enforced or what should be done about it, then I would have to disagree with it. I don't think it said that. No one argues that. The question is what was the work stoppage about? If it was a protest over the nonenforcement of the Federal Mine Safety Act it would not be in violation of the contract and the court should not issue an injunction.

Mr. FEDER. The court of appeals reserved decision on that issue. Mr. OWENS. There was not any evidence. If you will read the first paragraph of that thing he didn't follow the legal process in taking evidence. He listened to somebody give evidence from the back of the room, unsworn. The lawyers didn't examine him.

Mr. FEDER. The person to which you refer was the president of the United Mine Workers District 5?

Mr. OWENS. Yes, Mr. Budzanoski. So, the court of appeals, as I understand, sent it back for a hearing on what this case was all about, so to speak. What was the evidence? What was the work stoppage about? What is the meaning of the contract? What matters do you process through the grievance machinery and things of that nature! It takes the question about the Boyd's market case and all that sort of thing.

Senator RANDOLPH. Mr. Chairman, I am not, as you are, a practicing attorney. But I think, insofar as possible, those of us who understand the law in its broad terms should be given every opportunity to have the record so complete that, as we study it, we can come to our individual conclusions. That is why I have been attempting here this afternoon to have the attorneys for the United Mine Workers of America spell out their feeling about what the circuit court actually did in this matter. That is all I want to say.

Senator WILLIAMS. I appreciate that. I will say that the fact that some of us have law degrees does not mean that everything will be crystal clear. I went through the transcript rapidly of the first day of the trial in Pittsburgh. I will say the judge and many lawyers were quite in the dark as to what the case was all about until it was crystalized, and the crystalization, for the record, was read by Mr. Feder, that is, Mr. Yablonski's statement of what the case was about. It came down to the complaint against the lack of enforcement of the Coal Mine Health and Safety Law. Mr. Yablonski at one point expressed sympathy for everybody until he had the opportunity to crystalize what the workers were complaining about. It was their complaint against lack of enforcement.

At this morning's meeting, Mr. Mittelman was ready for questions in connection with the Abington, Va., case. Now, we have time.

Mr. MITTELMAN. Turning to the suit by the operators in Abingdon, Va., you testified this morning, Mr. Carey, the union had decided not to intervene in that case. Would you just restate why the union made this decision?

Mr. CAREY. I gave two reasons: First, I said that the matter of intervention is not a matter of right. It is matter of privilege, which is excercised by the district court, who, in this case, issued a temporary restraining order and subsequently the preliminary injunctions. The only time intervention is tolerated is when it is felt that there is inadequate representation as far as the participants are concerned. Now, I don't for a moment challenge the competency of the Department of Justice to represent the Secretary of the Interior in this particular suit. I think the lawyers of the Department of Justice are competent lawyers, and I must assume that they will pursue and defend this suit with all the vigor and intellectual competence they can

summon.

Mr. MITTELMAN. Mr. Carey, stop right there.

I have rule 24 of the Federal Rules of Procedure before me. You alluded to that this morning. Rule 24 provides for two types of inter vention, one is mandatory, rule 24(a), as of right. That section does relate to the inadequacy of representation by existing parties. Rule 24(b) covers permissive intervention.

Do you see anything in that section of the rule where it is shown that your interest is inadequately represented?

Mr. CAREY. No, but I think you must take into consideration we discussed 24 (a), you must also consider that which is contained in 24(b). Mr. MITTELMAN. Mr. Carey, do you have any doubt in your mind that the union would have been permitted to intervene in that case? Mr. CAREY. Yes, I do have a doubt. I certainly do have a doubt. But that is not the main strategem that we decided upon. I don't think intervention would have achieved any greater result than will be achieved by the Department of Justice. I don't impugn the integ

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rity of the Department of Justice. I don't impugn their intelligence. I think the Department of Justice will defend this suit with all the the vigor it can summon.

Mr. MITTELMAN. Do you think it has done that to date?

Mr. CAREY. As far as I know, yes, because I think I have been informed indirectly that it has been worked out that the Secretary of the Interior is going to issue regulations very imminently on the basis of taking that suit away from the plaintiffs.

That being true, at the time the case is scheduled for trial, in November, the matter will be moot.

Mr. MITTELMAN. Let us go back to when the injunction was first issued and the later proceeding that was held in which the injunction was modified and expanded. Did you have a representative pres

ent?

Mr. CAREY. No, because I was not aware when these hearings were set.

Mr. MITTELMAN. There was nobody from the United Mine Workers there?

Mr. CAREY. Because we did not know. We were told the hearing was going to be held September 1st but the hearing on the preliminary injunction was held in July sometime without any knowledge on our part.

Mr. MITTELMAN. I am not talking about the hearing on the merits; I am talking specifically about the hearing in which some testimony was taken relating to a modification of the injunction-at which evidence was presented, for example, that there equipment and personnel were not available to permit all of the sections of the act to be enforced.

Mr. CAREY. AS I understand it, the Department of Justice was not aware of the fact that the temporary restraining order was issued. The U.S. attorney in that district represented the Government and if my information is correct the Department of Justice learned of the issuance of that temporary restraining order subsequent to its issuance.

Mr. MITTELMAN. That is when the restraining order was first issued. Mr. CAREY. April 21.

Mr. FEDER. The Department of Justice did appear prior to the is suance of the restraining order. They appeared the morning the order was issued, argued the case for 3 hours before the issuance of the restraining order on April 3d.

Mr. CAREY. I was informed that the U.S. attorney handled that case at the time of the issuance of the temporary restraining order. I may be misinformed. The best information I have is that our Department of Justice from Washington, D.C., was not present. But, obviously, the U.S. attorney in that district is an agent of the Department of Justice. I am talking about the Department of Justice in Washington, D.C., which will handle that facet of the case as I understand it. That is what I made reference to.

Mr. MITTELMAN. As I understand it, the original temporary restraining order related to the enforcement of the new regulations that have been issued by the Department of the Interior. There was a later proceeding, I am sorry that I don't have the exact date before me. there was a later proceeding in which that injunction was modified so as to expand it to preclude-it was April 30-there was an open

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