(dissenting).
At the outset it should be pointed out that the majority is in error in stating:
“We believe that the Supreme Court remanded this case for reconsideration of the original record under the newly declared standard of proof.” (Emphasis added.) {Infra, at 754)1
The remand ordered' by the Supreme Court contained only the following language :
“We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.” 401 U.S. 302 at 314, 91 S.Ct. 658 at 665, 28 L.Ed.2d 64.
It will be noted that no such limiting language of the majority opinion can be found in the Supreme Court’s opinion, in its remand order, or in our remand. If the Supreme Court ever intended to confine the parties to the old record of the 1965-trial on the remand, it would certainly have said so in appropriate language. Likewise, if we intended to restrict the District Court to the original record, we should have used definite and clear language to that effect.
If there was any doubt about the matter (and there is not) it is resolved by examination of our order entered pursuant to the Supreme Court’s mandate, vacating the judgment of the District Court and remanding to that Court, which order provided as follows:
“This cause is now before this Court upon the mandate of the United States Supreme Court, and in obedience thereto, IT IS HEREBY ORDERED:
1.) that this cause be, and it is, hereby remanded to the United States District Court for the Eastern District of Tennessee, Southern Division;
2) that the judgment of the said District Court heretofore entered in this cause be, and it is, hereby vacated ; and
3) that further proceedings be had in said Court and cause consistent with the opinion of the United States Supreme Court, announced February 24, 1971, and reported as Ramsey v. United Mine Workers [401] U.S. [302] [91 S.Ct. 658, 28 L.Ed.2d 64] 39 U.S.L.Week, 4245.”
Thus it is clear that the judgment of the en banc court, which automatically affirmed the judgment of the District Court, was reversed by the Supreme Court, and we in turn, instead of considering the matter further, vacated the judgment of the District Court and remanded for further proceedings consistent with the opinion of the Supreme Court. Our order of remand, like that of the Supreme Court, did not confine the District Court to consideration of only the old record.
As a result of the orders of the Supreme Court and of this Court the judgment of the District Court was opened *756and all that was before the Court on the remand was a pending action in which each of the parties was entitled to a new trial as a matter of right. The order of remand of the Supreme Court and that of this Court merely required the District Court, in its consideration of the case, to apply the preponderance of evidence rule on the charge of antitrust violation, instead of applying the clear proof rule which it had erroneously applied in the first trial.
The trouble is that the District Court erroneously treated the remand in the same manner as the majority now treats it. The District Court even denied the plaintiffs a hearing, including their right to offer additional new documentary evidence. In so doing the District Court not only abused its discretion but it deprived the plaintiffs of their process rights.
Plaintiffs filed in the District Court a “Motion of Plaintiffs for an Order Opening the Record for Additional Evidence and Setting the Times for the Production and Filing of Such Evidence.” Attached to the motion was documentary proof which had not been offered in evidence at the 1965-trial.
In its opinion the District Court conceded that the proof had been proffered, stating:
“In support of their motion the plaintiffs have made an offer of proof which consists of (1) the Minutes of the Joint Industry Contract Committee relating to the administration of the PWC by that Committee; (2) the deposition of Joseph E. Moody, President of the Southern Coal Producers Association from 1946 to 1960, together with the reports and minutes of that Association; (3) the deposition of Elmer C. Hill, Chief of the Fuels Procurement Branch of the TVA, who testified to the cancellation by West Kentucky Coal Company in 1965 of its long term coal sales agreements for the sale of coal to the TVA at the price of $2.90 per ton; and (4) stipulations entered in another lawsuit relating to the formation of the BCOA and including minutes of that Association and certain financial data.” (344 F.Supp. at 1038).
The plaintiffs state that their proffer and its purpose were as follows:
“This Motion had attached to it documentary evidence which had been produced in later cases which evidence plaintiffs offered to give conclusive proof there was an implicit ‘quid pro quo’ deal made by UMW such as had been found on the preponderance of evidence, but also and more particularly to prove the circumstances and intentions of the parties in writing the PWC in the national contract in 1958, and the practical construction given that clause by the parties who drafted it in their activities as members of the Joint Industry Contract Committee (JICC) which policed the PWC. This evidence was largely in the form of the minutes of committees and of coal associations which sponsored the PWC and also the deposition of the head of one of the coal associations who was the prime mover in bringing the PWC into being (App. pp. 22a-179a).” (Appellants’ Brief, p. 6).
There was a “quid pro quo” whereby the union stipulated that it would not enter into collective bargaining agreements with other operators except on the same wages, hours and working conditions as were contained in the national contract, and the operators, who were signatories to the national contract, in turn agreed to boycott coal not produced by others in conformity with said contract.
The “quid pro quo” was admitted by counsel for UMW in Tennessee Consol. Coal Co. v. UMW, 416 F.2d 1192 (6th Cir. 1969), cert. denied, 397 U.S. 964, 90 S.Ct. 999, 25 L.Ed.2d 256 (1970), and was referred to by the Supreme Court in Ramsey, 401 U.S. at 305, n.l, 91 S.Ct. 658. We also discussed “quid pro quo” in Riverton Coal Co. v. UMW, 453 F.2d 1035, at 1039, 1040, n.2 (6th Cir. 1972), cert. denied, 407 U.S. 915, 92 S.Ct. 2439, 32 L.Ed.2d 690.
*757They even set up a joint committee to enforce compliance by the parties.
Since the case was already reopened, it was unnecessary for plaintiffs to file a motion to reopen. Plaintiffs were entitled to offer the new evidence as a matter of right.
In Byrd v. Blue Ridge Rural Elec. Co-Op., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), the plaintiff recovered a judgment for personal injuries against the defendant in the District Court, which had stricken defendant’s defense of Workmen’s Compensation. The Court of Appeals reversed and remanded with instructions to dismiss the complaint. The Supreme Court reversed the dismissal of the complaint, holding that the case should be remanded for a new trial because plaintiff did not have the opportunity to offer evidence in the District Court on the changed ruling on Workmen’s Compensation. Mr. Justice Brennan, who wrote the opinion for the Court, stated:
“At all events, the petitioner is plainly entitled to have an opportunity to try the issue under the Court of Appeals’ interpretation. His motion to dismiss the affirmative defense, properly viewed, was analogous to a defendant’s motion for involuntary dismissal of an action after the plaintiff has completed the presentation of his evidence. Under Rule 41(b) of the Federal Rules of Civil Procedure, in such case ‘the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.’ ” (356 U.S. at 532, 78 S.Ct. at 898).
Justice Brennan further stated that the Workmen’s Compensation issue should be submitted to the jury for determination.
So, in our case, the plaintiffs must be afforded the opportunity to try the issue under the Supreme Court’s interpretation. This does not mean that the record of the 1965-trial may not be used. The District Court should consider the old record supplemented with such additional evidence as either of the parties may offer. White v. Rimrock Tidelands, Inc., 414 F.2d 1336 (5th Cir. 1969).
The reasons given by the District Court for denial of a hearing and an opportunity to offer new evidence on the remand cannot be supported. The Court stated:
“The Court has read and considered all of this evidence. Although voluminous, it is in very substantial measure cumulative to the proof offered upon the trial. The newly offered evidence offers no new theories of liability and presents no significant alteration of the evidence as presented upon the trial. The Court can envision no injustice in declining to reopen the trial. In view of the very extensive trial upon the issues, the substantially cumulative nature of the newly tendered proof, and the directions upon remand in this case, the Court is of the opinion that the motion to reopen the proof should be denied.” (344 F.Supp. at 1038).
It is obvious that the evidence proffered was new, but the Court excluded it because “ [although voluminous, it is in very substantial measure cumulative to the proof offered upon the trial.” The Court does not point out what part was cumulative and what part was not cumulative. No findings of fact or conclusions of law were adopted by the Court with respect to the new evidence, making it impossible for an appellate court to review without reading the entire voluminous new evidence.
The Court’s statement that it read and considered the new evidence is a non sequitur. Having considered the new evidence, the Court should have admitted it and adopted findings of fact and conclusions of law with respect to it.
It is not important that the new evidence offered “no new theories of liability and presents no significant alteration of the evidence as presented upon the *758trial.” What was important is the fact that the new evidence did portray the circumstances surrounding the entering into of PWC between the union and the big operators, and the practical construction of it by the parties. The minutes of the Joint Industry Contract Committee, whose members drafted PWC, certainly threw light on the language of the agreement. Since PWC was claimed to be ambiguous, all of this evidence was certainly admissible. Tennessee Consol. Coal Co. v. UMW, 416 F.2d 1192 (6th Cir. 1969), cert. denied, 397 U.S. 964, 90 S.Ct. 999, 25 L.Ed.2d 256 (1970).
Although the Court stated that it “can envision no injustice in declining to reopen the trial,” it is clear that the trial was already reopened and that a real injustice has been done to the plaintiffs by the denial of a hearing and the exclusion of the new evidence. The new documents provided more than a preponderance of evidence that the union had conspired with the operators to violate the antitrust laws.
The Court concluded its opinion by adopting its former opinion reported at 265 F.Supp. 388 (E.D.Tenn.1967), except as modified. The judgment entered on this prior opinion was vacated by this Court.
We do not understand the majority’s view that the new evidence which was rejected by the District Court, does not change the balance of the case; nor do we agree with its alternative, that if the exclusion was erroneous such error was harmless under Rule 61, Fed.R.Civ.P.2 Such rejection deprived the plaintiffs of their due process rights.
In a case where, as here, the majority opinion admits that the factual issues are close, the Court should have welcomed the offering of additional evidence. Even though part of such evidence was cumulative, it certainly strongly supported the evidence which was in the old record, at least to cause such additional evidence to preponderate in favor of the plaintiffs.
The majority relies on Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Swartz v. New York Central R.R., 323 F.2d 713, 714 (7th Cir. 1963); and Locklin v. Switzer Bros. Inc., 299 F.2d 160, 169-170 (9th Cir. 1961), cert. denied, 369 U.S. 861, 82 S.Ct. 950, 8 L. Ed.2d 18 (1962). Such reliance is misplaced. Zenith involved a motion to amend the complaint and to offer additional evidence during the course of a trial, which motion the District Court denied on the ground that it would operate to prejudice Zenith. Swartz involved a motion to reopen after plaintiff had rested his case and without making any tender of specific new evidence. Locklin involved the offering of new evidence in a post-trial proceeding which the Court denied. None of these cases involved the construction of a remand order of an appellate court, or the right to offer new evidence when an appellate court had vacated the judgment of the District Court, leaving only a pending case.
*759THE CLEARLY ERRONEOUS RULE
The majority, quoting extensively from the en banc opinion, which lacked approval by a majority of the Court, and from the initial opinion of the District Court (judgments entered on both of which were reversed on other grounds by the Supreme Court), applies the clearly erroneous rule to the findings of fact made by the District Court in 1972 on evidence offered at the trial in 1965. As will be pointed out, the clearly erroneous rule has no application here and it is error to apply it.
The District Judge would have to have had a miraculous memory to recall the evidence and the credibility of witnesses throughout that protracted trial of seven years ago. It is obvious that the Court was required to and did refresh its recollection by examination of the many printed volumes of appendices and the multitude of exhibits. Whether the District Judge in 1972 could have recalled also the manner and demeanor of the witnesses as they appeared before him in 1965, when he was applying an erroneous standard of proof, is open to serious question.
During the many weeks of protracted trial which took place in 1965, the District Judge had ample opportunity to see and observe the witnesses, to hear them testify, and to determine their credibility. While the matter presumably was fresh in his mind he prepared his fifty-page opinion, in which he made the following finding of fact:
“Were this case being tried upon the usual preponderance of the evidence rule applicable to civil eases, the Court would conclude that U.M.W. did so impliedly agree.” Ramsey v. UMW, 265 F.Supp. at 412 (1967).
In the en banc court, Judge O’Sullivan, who wrote the opinion for the four dissenting Judges, which opinion the Supreme Court upheld on the clear proof issue, stated:
“Judge Wilson specifically found that, by preponderance of the evidence, plaintiffs had established that the joint action of the BCOA and the Mine Workers in entering into and using the National Bituminous Coal Wage agreement with its Protective Wage Clause, and the implementing of them, established an agreement violating the Sherman Act. While he did not express himself as to how he would have found as to all of the other issues of fact had he adhered to the traditional preponderance of evidence rule, he made it plain that he followed the ‘clear proof’ rule in passing on responsibility for violent conduct by agents or members of the union.” (416 F.2d at 674).
Mr. Justice White, who wrote the opinion for the Supreme Court, referred to this finding of the District Court as follows:
“As for an implied conspiracy to standardize employment terms throughout the industry aimed at destroying marginal producers, the trial court said that ‘[w]ere 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,’ but that ‘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.’ 265 F.Supp. at 412. Judged by this stricter standard, proof of conspiracy was found wanting and the case against the Union failed.” (Footnotes omitted.) (401 U.S. at 306, 91 S.Ct. at 662, 28 L.Ed. 2d 64).
Now after the lapse of seven years, on reviewing a cold record the District Judge, in his second opinion changes his mind and tells us that his finding of fact on the preponderance issue, on which both this Court and the Supreme Court relied and clearly understood, was only dictum. He explained it as follows:
“In its original opinion the Court in what it deemed to be dictum concluded that the preponderance rule would favor an inference that the PWC did by *760implication what it had not expressly-done. The Court was motivated to such a finding by three considerations. One consideration was that thereafter the UMW did in fact negotiate contracts only upon the wage and labor standards set in the National Contract. Another consideration was that BCOA and its members did have a competitive motive, as evidenced by the PWC itself and its administration, to seek such a result. A third consideration was that complaints were in fact registered with UMW by signatory operators from time to time regarding the competitive advantage of non-signatory operators.” (Emphasis added.) (344 F.Supp. at 1037).
It does appear to be somewhat of a coincidence that in the Supreme Court UMW claimed that the District Judge’s holding on the clear proof issue was mere dictum. The Supreme Court disposed of this frivolous claim of the Union, as follows:
“Here the Union’s claim is belied by the language of the trial court’s opinion and its interpretation by the eight judges of the Court of Appeals. The second proposition — that the trial court’s clear-evidence ruling was mere dictum — leaves unexplained the Court of Appeals’ affirmance by an equally divided court as well as the trial judge’s remarks that he would or might have reached different results on some issues, apparently including some aspects of the conspiracy issue, if preponderance of the evidence was the governing standard. To what extent the proof would fail under the standard we here hold applicable and what legal difference it might make are matters open to be dealt with on remand. We do note from the trial court’s opinion that except for violence and some picketing, issues of union responsibility for acts alleged and proved were nonexistent or played little part in the thinking of the trial judge.” (401 U.S. at 308, n. 5, 91 S. Ct. at 662).
Because of the lapse of seven years’ time between the date of the trial and the second opinion of the District Judge, and his necessity of re-examination of the record, and because the original record consisted of over 5,600 pages and 450 exhibits (and the supplemental record is likewise voluminous), we regard it now as essentially a “paper case”, where the clearly erroneous test of Rule 52(a) of the Federal Rules of Civil Procedure is inapplicable. United States v. General Motors Corp., 384 U.S. 127 at 141, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); In Re Clemens, 472 F.2d 939, 941, n. 1 (6th Cir. 1972).
In any event, the ultimate conclusion of the District Judge is not shielded by the clearly erroneous rule.
In United States v. General Motors, supra, the Court said:
“We note that, as in United States v. Parke, Davis & Co., 362 U.S. 29, 44-45, 80 S.Ct. 503, 4 L.Ed.2d 505, the ultimate conclusion by the trial judge, that the defendants’ conduct did not constitute a combination or conspiracy in violation of the Sherman Act, is not to be shielded by the ‘clearly erroneous’ test embodied in Rule 52(a) of the Federal Rules of Civil Procedure.” (384 U.S. at 141, n. 16, 86 S.Ct. at 1328).
THE SECOND OPINION OF THE DISTRICT COURT
The District Court stated in more than one place that there was no direct evidence of a conspiracy. It is submitted that this is true in most conspiracy cases. The conspiracy, ordinarily, must be shown by circumstantial evidence. The present case, however, comes as close as any case we have ever read, as establishing an express agreement.
The Protective Wage Clause provides in Paragraph “A” of the agreement of UMW, as follows:
“A. During the period of this Contract, the United Mine Workers of America will not enter into, be a par*761ty to, nor will it permit any agreement or understanding covering any wages, hours or other conditions of work applicable to employees covered by this Contract on any basis other than those specified in this Contract or any applicable District Contract. The United Mine Workers of America will diligently perform and enforce without discrimination or favor the conditions of this paragraph and all other terms and conditions of this Contract and will use and exercise its continuing best efforts to obtain full compliance therewith by each and all the parties signatory thereto.”
BCOA requested this paragraph. 265 F.Supp. 410.
If this language means anything, it is clear that UMW has bound itself not to enter into any agreement and not to be a party to any agreement or understanding covering wages, hours and working conditions on any basis other than as specified in this contract.
In Paragraph “B” of PWC the signatory operators agree to boycott coal not produced in accord with the National Agreement.
In Paragraphs “C” and “E” a “Joint Industry Contract Committee” and “Joint District Contract Committee” are set up to act as tribunals to try UMW or any operator for violation of the provisions of PWC.
We note that the District Court has construed Paragraph “A” of PWC as binding UMW to insist on identical terms against only “signatories”. Paragraph “A” does not so state, but on the contrary it clearly prevents UMW from entering into any agreement or even understanding on any basis other than those specified therein. To construe it otherwise tortures its plain language. The District Judge further found that after PWC, “UMW did in fact negotiate contracts only upon the wage and labor standards set in the National Contract.” 344 F.Supp. 1037. The plain language of PWC required UMW to do exactly that.
The Court further found “that BCOA and its members did have a competitive motive, as evidenced by PWC itself and its administration, to seek such a result.” 344 F.Supp. 1037.
These findings of the District Court not only do not support its ultimate conclusion of no agreement, but require a result opposite that reached by the District Court. The findings are clear that the parties to PWC, the union and the big operators, construed PWC as requiring the union not to enter into any agreement with other operators except on identical terms with the National Contract.
After stating again that there was no direct evidence of conspiracy, the District Court was impressed by the fact that the officials of UMW and the big operators, in their testimony, denied that they conspired. It could hardly be expected that they would do otherwise. In any event, the acts of the officials of UMW and the big operators speak much louder than their words.
The District Judge further stated that “the motives of UMW and BCOA appear to have coincided,” but he was of the view that a “eoncidence of motives does not of itself connote a Sherman Act conspiracy . . . .” 344 F.Supp. 1038, 1039. While these motives may not constitute a conspiracy per se, they do constitute strong and persuasive evidence which, when considered along with the other written and oral evidence in the case, clearly establish the agreement.
The District Court appears to have been influenced by the fact that the activities of the union, which the Court graphically portrayed as including mass picketing, violence and bloodshed, would not have violated the Sherman Act if the union had acted unilaterally. But the fact is that UMW did not act unilaterally. It acted as it was required to act under the agreement with the big operators, each one aiding and abetting the other. The agreement provided even for methods of enforcing compliance therewith, by each party. These activities *762put the marginal operators out of business, as they could not operate under the onerous terms of the National Contract.
In Allen Bradley Co. v. Local Union, Bhd. Elec. Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), the Court held that the Sherman Act was violated when unions “aid non-labor groups to create business monopolies and to control the marketing of goods and services.”
The closing paragraph of the majority opinion of the Supreme Court in the present case states:
“Where a union, by agreement with one set of employers, insists on maintaining in other bargaining units specified wage standards ruinous to the business of those employers, it is liable under the antitrust laws for the damages caused by its agreed-upon conduct.” (401 U.S. at 313, 91 S.Ct. at 665).
The District Court stated that plaintiffs’ contention that PWC constituted an express commitment in violation of the antitrust laws was “self-defeating,” apparently on the theory that plaintiffs were signatories thereto and would be in pari delicto. Taking into account the acts of the union which compelled plaintiffs and other operators to sign, and the efforts of plaintiffs to get out from under the contract, this defense does not hold water. UMW did not raise this defense and it was not considered in the prior appeal in this Court, nor in the Supreme Court. We do not know why the District Court raised it. It would seem to be against public policy to permit such a defense in this type of action. Cf., South-East Coal Co. v. Consolidation Coal Co., 434 F.2d 767, 783-784 (6th Cir. 1970).
Judge O’Sullivan, who wrote the opinion for the four dissenting Judges in the prior appeal (which the Supreme Court affirmed on the clear proof issue), aptly described the manner in which PWC was implemented by UMW and the big operators. He stated:
“Plaintiffs’ evidence in this case generously portrayed how propitious was the setting for the victory achieved by the BCOA and the Mine Workers in implementing their agreement. The District Court opinion at length sets out the relevant facts. Among other things, it was shown that the Mine Workers loaned to one Cyrus Eaton some $25,000,000 to enable him to acquire for them control of the capital shares of West Kentucky Coal Company — the biggest of the members of BCOA — and its subsidiary, Nashville Coal Company. By having Eaton so invest the union’s money, the Mine Workers acquired the voting rights of West Kentucky Coal Company and Eaton became Chairman of the Board, and:
‘Immediately after Mr. Eaton assumed control, West Kentucky signed the National Bituminous Coal Wage Agreement, the first time in its history that it had signed a contract with the U.M.W. 265 F.Supp. at 414.
Judge Wilson further observed:
‘Furthermore, the reasons for which loans and investments were made in West Kentucky and its subsidiary, Nashville Coal Company, must likewise largely be inferred, as the reasons given by the U.M.W. for doing so will not bear scrutiny.’ 265 F.Supp. at 414. (Emphasis supplied.)
“It would indeed be over kind to accord credence to the asserted claim that the making of the National Bituminous Coal Wage Agreement and the Protective Wage Clause between the United Mine Workers and their controlled West Kentucky Coal Company was an ‘arm’s length’ transaction, free of conspiratorial and predatory purpose. The Mine Workers lost eight of the twenty-five million dollars which it invested in the management side of the accused transactions. For its victory, it was apparently willing to pay this bill as well as the many hundreds of thousands of dollars which it paid for the depredations and *763violence — the reign of terror — which it employed in driving out of coal mining those who could not live with the terms of the National Bituminous Wage Agreement. See Flame Coal Co. v. United Mine Workers, 303 F.2d 39 (6th Cir. 1962); United Mine Workers of America v. Osborne Mining Co., 279 F.2d 716 (6th Cir. 1960), cert. denied, 364 U.S. 881, 81 S.Ct. 169, 5 L.Ed.2d 103 (1960); Gilchrist v. United Mine Workers, 290 F.2d 36 (6th Cir. 1961). District Judge Wilson described the Mine Workers’ conduct in this language:
‘The evidence in this case reflects once again that the “history of the bituminous coal industry is written in blood as well as ink.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263.’ 265 F.Supp. at 428.
and further,
‘A great deal of violence, bloodshed and destruction of property has accompanied the strike [discussed in the opinion]. Much suffering, deprivation and want has occurred. The Southeastern Tennessee coal field remains a blighted area.’ 265 F.Supp. at 428.
He sums up the situation as follows:
‘In the period since 1960 the coal operators in the Southeastern Tennessee coal field have been unable to compete and survive in the T.Y.A. coal market under the National Bituminous Coal Wage Agreement. While in many instances this appears to have been due to antiquated mining methods and equipment or other causes, the fact nevertheless remains that since 1960 there has not been a single instance of a successful coal mining operation in the Southeastern Tennessee coal field under the National Bituminous Coal Wage Agreement and this in spite of the fact that the only feasible alternative facing most coal operators in the area was to operate under the national contract or go out of business.’ 265 F.Supp. at 430. (Emphasis supplied.)
“There is nothing in the record of this case to suggest that the conception and prosecution of the grand plan we deal with was the work of irresponsible underlings. The total enterprise was directed from high echelons of authority. Top people of the United Mine Workers and the Bituminous Coal Operators Association did not need the protection of Norris-LaGuardia when they negotiated and signed the National Bituminous Coal Wage Agreement and its Protective Wage Clause, nor when the Mine Workers invested $25,000,000 to aid the big coal companies to fulfill the promise of the plan.
“Peace has indeed come to Southeastern Tennessee’s part of Appalachia, but it is the peace of obedience to the overlords of big business and big labor. Of this situation, Mr. Justice Douglas, in his Pennington concurrence, appropriately observes:
‘Congress can design an oligopoly for our society, if it chooses. But business alone cannot do so as long as the antitrust laws are enforced. Nor should business and labor working hand-in-hand be allowed to make that basic change in the design of our so-called free enterprise system.’ 381 U.S. at 674, 85 S.Ct. at 1595-1596.” (416 F.2d at 675-676).
From the foregoing, it is clear that the District Court did not comply with the mandate of this Court, nor with that of the Supreme Court. Because of the grievous errors heretofore pointed out, the judgment of the District Court should be reversed and the case remanded with instructions to admit the tendered evidence and to determine the ease anew on the basis of the old record plus any additional relevant evidence which any of the parties may offer. In the event that UMW does not offer additional evidence compelling a conclusion different from that reached in this dissenting opinion, the Court should find in favor of the plaintiffs and assess damages.
. The opinion of the en banc court, which lacked concurrence of a majority of the Judges of this Court, merely copied and approved the panel’s slip opinion. The judgment of the District Court was affirmed only by an equally divided Court, which decision was reversed by the Supreme Court.
. This statement of harmless error would seem to conflict with the language on page 752 of the majority opinion, that “It seems clear to us that the record in tiiis case is one where the factual issues are close.”
It will be recalled that the same District Judge presided at the trial of the case of Tennessee Consol. Coal v. UMW, 416 F.2d 1192 (6th Cir. 1969), cert. denied, 397 U.S. 964, 90 S.Ct. 999, 25 L.Ed.2d 256 (1970). That case involved facts virtually identical with the facts in the case at bar, and was submitted to a jury which returned a verdict in favor of the plaintiff for $977,500. The District Court ordered a remittitur of $500,000, and then trebled the balance, entering judgment in favor of Tennessee Coal for $1,432,500, and in favor of Grundy, a co-plaintiff, for $67,500. The Court also allowed attorneys’ feees of $150,000 to counsel for plaintiffs.
If the majority’s alternative is correct, it would have been the duty of the District Court in the Tennessee Goal case to set aside the verdict and dismiss the complaint.