The opinion of the court was delivered by: WEBER
This case is presented on Plaintiffs' Motion for Summary Judgment. Plaintiffs are Trustees of the Welfare and Retirement Fund of 1950 of the United Mine Workers of America and sue for royalties claimed by reason of the production of coal by Defendant under the provisions of the National Bituminous Coal Wage Agreement of 1950, as amended effective April 2, 1964, (herein called the Agreement) executed between Defendant and the United Mine Workers of America. The royalty claim is for forty (40) cents per ton on 95,277.32 tons of coal produced between February 1, 1965 and June 30, 1965, in the amount of $38,110.93. This claim constitutes Count Two of Plaintiffs' Complaint. Defendant admits the production of this amount of coal during the period in question, but denies that it is obliged to pay the royalty because of the defenses raised.
Plaintiffs in a separate count (Count I of the Complaint) also claim the balance due of $52,441.82 under a promissory note from Defendant to Plaintiffs under which Defendant agreed to pay monthly installments. The note contained an acceleration clause providing that in the event of Defendant's default in the payment of any installment due under the note, or in the event of default in making royalty payments under the Agreement, the entire balance on said note became due and payable forthwith. Defendant admits the amount remaining unpaid on the note as claimed but denies that it is presently due and payable because of the defenses raised.
Defendant's Answer raises the following defenses as a matter of law to both Counts of plaintiffs' claim:
1. (Second Defense). The Welfare and Retirement Fund Clause of the Agreement is illegal under § 8(e) of the National Labor Relations Act, 29 U.S.C.A. 158(e).
2. (Third Defense). Plaintiffs are barred by the doctrine of equitable estoppel by reason of the representations made by the United Mine Workers of America upon which Defendant relied in reopening its mines.
In its brief and argument Defendant added to its Second Defense of illegality a charge that the Agreement is violative of the federal anti-trust laws. Defendant has also argued that the facts alleged in support of its Third Defense constitute a subsequent oral modification of the Agreement.
Based on its defense of illegality of the Agreement, Defendant asserts a counterclaim for $88,322.20 for payments which it has already made to Plaintiffs' Fund under the 1964 Agreement. Plaintiffs admit receipt of this amount.
Plaintiffs have moved for Summary Judgment on their claim and in their favor as to Defendant's counterclaim on the grounds that as to the defenses raised there is no genuine issue as to any material fact and Plaintiffs are entitled to judgment as a matter of law.
In considering the Motion for Summary Judgment we take all reasonable intendments and inferences from the pleadings against the movant and in favor of the opponent.
Defendant's Second Defense is based upon the decision of the National Labor Relations Board issued May 14, 1964, in the case of United Mine Workers and Bituminous Coal Operators, 148 NLRB No. 31, which held the Welfare and Retirement Clause of the 1964 Agreement illegal as violative of § 8(e) of the National Labor Relations Act. The particular provision of the Welfare and Retirement Clause in issue there was the provision of the 1964 Amendment which provided:
"On all bituminous coal procured or acquired by any signatory Operator for use or for sale (i.e. all bituminous coal other than that produced by such signatory Operator) there shall, during the life of this Agreement, be paid into such Fund by each such Operator signatory hereto or by any subsidiary or affiliate of such Operator signatory hereto the sum of eighty cents (80) per ton of two thousand (2,000) pounds on each ton of such bituminous coal so produced or acquired on which the aforesaid sum of forty cents (40) per ton has not been paid into said fund prior to such procurement or acquisition."
The National Labor Relations Board decision was in response to a Motion by the United Mine Workers of America to declare the 1964 Amendment containing the above new provision to be valid under § 8(e) of the National Labor Relations Act, and thus to find the United Mine Workers of America in compliance with the terms of a prior cease and desist order. The motion was refused, and the specific question is still pending. Neither the Board nor any Court has ruled the 1964 Welfare and Retirement Clause to be illegal. A Trial Examiner on March 22, 1966, in the case of United Mine Workers of America and Bituminous Coal Operators, (Daily Labor ...