PLUMBERS' UNION v. BORDEN
Legal provision: National Labor Relations, as amended
Argument of L. N. D. Wells, Jr.
Chief Justice Earl Warren: Number 541, Local 100 of the United Association of Journeymen and Apprentices, Petitioner, versus H. N. Borden.
Mr. L. N. D. Wells, Jr.: Mr. Chief Justice and if the Court please.
Texas Courts have awarded actual and punitive damages to a union member named Borden.
For as the Texas Court says, “Refusal to refer him to a job offered him in the construction of the Republic Bank Building in Dallas”, we're here on certiorari challenging the Texas State jurisdiction and asserting that the conduct refusal to refer is subject to the exclusive federal regulation.
We're quite close to the case which precedes this, except we don't have the supervisory problem in this case.
Briefly, the facts, Borden was a member of the Plumber's Union who lived in Shreveport.
Construction workers are ambulatory, he's all over every place, building.
He worked for Farwell Construction Company down in Galveston and on a big hospital.
This job was about to conclude and he learned down there in Galveston that this large job was coming in Dallas.
He quit in Galveston and went home to Shreveport and as he said went fishing for two to three months.
And then in September, came over to Dallas, as he said to go to work on the Republic Bank job, which was the biggest job in Dallas at that time.
He said that it was a good job and I like to work on big work.
It was a big job and I wanted it.
So he went to the supervisor for Farwell who was the mechanical contractor on the Republic Bank, and was told that he would be employed if he obtained a union referral.
He then came back to the Dallas local union hall.
He had not obtained a clearance card from his Shreveport local, but he did have his international union due book with him.
He went to the Dallas local and told the business agent, Lanham, “I'm here to go to work on the Republic Bank Building.”
As Borden testified, Lanham “blow his top” and said, “You're not going to work on that bank building.
You've come in here wrong.
You've come in here with a job in your pocket.”
Now, if I may digress briefly here, there was a contract in effect in Dallas between this local union and the Mechanical Contractors Association.
Farwell was a member of that Association.
It is an abbreviated contract.
It's in the record.
It provides wage rates and grievance procedures.
It does not, in so many words, provide for a hiring hall, but it is undisputed in this record that it is the custom in Dallas for all the mechanical contractors and certainly -- well, perhaps I'm overstating the record.
It is the -- it is clear that Farwell hired only through the union hiring hall as a matter of custom.
Now, when Lanham, the business agent, tells Borden, the man coming in from Shreveport, “You've come in here wrong; you've come in with the job in your pocket.
I'm not going to refer you.”
Apparently, he, Lanham was referring to a local union rule which said that members shall not solicit work from any contractor.
All the employment must be procured through the business office of the local.
This is very much likely a rule which was written into the collective bargaining contract in the Teamsters Seattle-Los Angeles case which Mr. Justice Douglas wrote.
And it's not an unusual provision for a building trade union to require that members seek their employment through the hiring hall rather than directly from employer.
In any event, Borden was unable to get the referral to the job.
He returned to Shreveport, obtained a clearance card from his Shreveport local union.
And then came back to Dallas and deposited his clearance card in the Dallas local.
Under the international constitution, that made him a member of the Dallas local.
His card was not accepted very graciously.
The business representative, Lanham said that, “I'll accept it.
I have to under the Constitution, but that don't mean you're going to work by any means.”
He did, however, accept the clearance card.
Now, if I may backtrack for a moment.
I indicated earlier that Borden has been working down in Galveston on a big hospital job down there several months earlier.
Down there, he became friendly with a man named Thurman who was a rank-and-file employee.
By the time he gets up to Dallas, Thurman is the foreman and the hiring agent for Farwell.
So, Borden goes to his friend Thurman who is hiring on the Republic Bank job and says, “Call for me”, and Thurman says, “Yes, I have a job for you, but you'll need a referral.”
Thurman then called Lanham, the business agent.
This is the foreman calling Lanham, the business agent, and asked him to refer Borden now, and rather profanely, Mr. Lanham said, “I'm not about to send that old so and so down to the bank.
He shoved his card down our throat.
I'm not about to send him out to the bank.”
Now, several days later, precise dates are difficult in this record.
It was tried about six or seven years after the operating events and recollection on neither side were too good, but I won't dispute what my adversary says with respect to four or five days later.
Borden did obtain a referral first of the Spencer Plumbing Company job where he worked until -- from September until almost Christmas, until December 17.
He was laid off there when they got cut off on that job.
Early in January, he was referred to keep or a plumbing job and stayed there until March or April and was laid off there.
He was off for only a week or two and which he referred to the Rose Plumbing Company and without going into detail he was referred then to the Texas Plumbing Company and to the Dallas School Board.
So for the year, from the time he first came to Dallas, the jury found that he would have made approximately -- what is this?
$6000 as I recall, approximately $6000 had he been referred to the Republic Bank.
But that in the interim employment to which he was referred, he made some $1900 less than he would have made, had he gone to the job which he preferred.
Now, Borden didn't ever attend a union meeting.
He waited for a year although he was from time to time complaining to the business agent, but as far as coming into the local union and making any complaint or going before any tribunal before which he might have gone, he waited for a year before he did anything or perhaps 10 or 11 months rather than a complete year, and hired a lawyer.
Well now, of course, when he waited for a year, he got way past the six-month limitation period which is in Section 10 (b) of the Federal Act.
He was foreclosed under the Federal Act because Congress had determined in the Federal Act that these disputes ought to be determined properly when recollections are fresh and when -- there can come some remedy promptly.
He waited and then hired him a lawyer.
The lawyer wrote the union.
The Local Union Executive Board held a hearing and this is 11 months after -- perhaps, 12 months after the time he first came to Dallas.
Called Borden and Lanham and the various people involved before the Local Union Executive Board and Borden testified that at that point, members of the Executive Board cursed him and abused him, and that he suffered mental diff -- or that there was mental suffering by reason of the abuse which was heaped on him a year after the event.
Now, on these facts, he brought his suit alleging that he was refused appearance into the local.
Now that is a membership right that he -- that the Board couldn't do anything about.
And alleging number two that there was a refusal of referral to a job, and that is something that the Board can and does something about everyday.
The case went off on the pleadings originally.
We filed a plea to the jurisdiction.
There was a finding in the State District Court that it was a matter of federal and not state concern, and it was dismissed.
Borden appealed it.
The Dallas Court of Civil Appeals affirmed the dismissal, but while it was pending on rehearing, Gonzales came down.
And this was properly called to the Texas Court's opinion -- attention and they reconsidered and held that it was a state matter and there was state jurisdiction.
Then there was an appeal to the Supreme Court of Texas which does not treat of the federal preemption issue at all.
It treats of other matters in the case.
And in a lengthy opinion, the Texas Supreme Court came to the nub of what the case was about under Texas law, that it said that the allegations that Borden willfully was denied a job to which he was entitled under the rules and procedures established by the union for allocating work entitled him to maintain this suit, and remanded for a jury trial.
Now, we have a special issue practice in Texas.
No general verdict.
The jury answered specific questions as to what had happened.
The jury found that he had been promised of a job on the bank if he got a referral.
That the foreman called for him -- called the union to give him a referral and the union wouldn't do it.
The jury found that he was not refused clearance into the union.
And in our view, that takes this membership right, individual versus union, out of the case by this favorable finding to us on that aspect of the case, but did found that he was refused a referral and that he had been damaged in the amount of approximately $1900.
Now, what was the damage that they found?
What was the measure?
He -- the damage he would have earned if he had been allowed to work on the Republic Bank, exactly the same back pay that the Board could have given under the Federal Act.
Now, counsel through his briefs has indicated that there's malice and there's some kind of general tort idea and there are other wrongs involved, but we take that he's bound by what he presented to the jury and what the jury found.
And the only damage they found was the damage that is squarely within the federal remedy and the very matter that the Board would look to.
In addition, the jury found $1500 worth of mental anguish and $5000 worth of punitive damages.
So we, under the verdict, had $1900 of actual damage for the difference between what he has made at Republic and elsewhere, $1500 for mental anguish, and $5000 for punitive.
There were post trial motions and the trial court found that mental anguish was not raised by the law in the evidence and should not have been submitted.
We take it that this is a trial court finding that much of what is in our opponent's brief about ugly talk by the Executive Board or ugly talk by a union business agent is clearly out of the case because the trial court found in his judgment that it was not raised for the evidence and should not have been submitted as an issue.
So, the trial court then reduced the punitive damage to the equal of the actual damage and entered a judgment against us for double what the Labor Board would have given, had the matter been before the Board.
I emphasize there was no damage for the cursing, no damages for refusal to clear in to the union, and the sole damage was with respect to the refusal to refer to this job.
Now, on the basis of that --
Chief Justice Earl Warren: What is the amount of that -- what was the amount of the judgment then Mr. Wells?
Mr. L. N. D. Wells, Jr.: $1900 and something, doubled to $3800 and a little more.
Chief Justice Earl Warren: On what theory did it double?
Mr. L. N. D. Wells, Jr.: Just on the theory that Texas gives punitive damages.
Chief Justice Earl Warren: Well, if -- I thought you said the punitive damages was out.
Mr. L. N. D. Wells, Jr.: Your Honor, I said mental suffering.
That he --
Chief Justice Earl Warren: Oh, just about (Voice Overlap) --
Mr. L. N. D. Wells, Jr.: He had three crutches on which he was moving, actual mental suffering and punitive damages.
The jury gave him all three.
The Court not dealt with mental suffering and reduced the punitive to be equal to the actual damage.
Chief Justice Earl Warren: I see.
Justice William J. Brennan: Well, under Texas law, does the finding in malice a requisite for an award of punitive trust then?
Mr. L. N. D. Wells, Jr.: Judge, we always thought so.
This Court didn't charge the necessity of finding malice.
And nevertheless, as a matter of fact he charged the jury merely that -- what do you think is -- what is the proper punitive award here without defining it in terms of malice.
We objected to that but our objection got us nowhere on the -- in the appellate courts and the Texas Court doesn't write at any length on this technical --
Justice William J. Brennan: Well, I'm just wondering, are we -- are we to suppose that the punitive damages rest on some finding in malice then?
Mr. L. N. D. Wells, Jr.: I don't believe youcan, Judge.
There's certainly no finding here if -- of any malice.
The specific finding, I wonder if (Voice Overlap) --
Justice William J. Brennan: Maybe it's not material of the issue that you're presenting.
Mr. L. N. D. Wells, Jr.: Well, I would certainly take the view that that is immaterial, that Texas has no business supplementing the Board's remedy, and in that connection the --
Justice Tom C. Clark: Did they give him the $5000?
Mr. L. N. D. Wells, Jr.: The jury did but Judge Stout would doubt much as he -- had he cut it down to the $1900 which were -- was --
Justice Tom C. Clark: I always thought malice is in the record too but wouldn't it be implicit in that affirmance of the $1800 -- the $1900 on punitive that there was malice?
Mr. L. N. D. Wells, Jr.: We asked the judge to give us -- to inquire as to whether or not there was malice (Voice Overlap) --
Justice Tom C. Clark: How did that charge you asked the judge to make?
Mr. L. N. D. Wells, Jr.: Judge, I don't believe we printed that.
I think if you look at page 66, you'll find the special issue number 14.
Justice Hugo L. Black: Well, this is a -- this is a regular stock suit, isn't it, under the title of malicious immaterial -- the contract rather.
Is it any different to the ordinary suit of that kind?
Mr. L. N. D. Wells, Jr.: As I read the plaintiff's pleadings and as the Texas Court read the plaintiff's pleadings, it was in tort of the type that Your Honor has indicated.
It was in contract, claiming a contract right to referral as set out in the -- in the union constitution and in the union rules.
There was also a reference in the petition to the Texas right to work law.
However, the appellate court made no reference at all to the latter matter and decided it purely as a matter of Texas tort and contract law.
If I might very briefly --
Justice Hugo L. Black: Now, is the Texas law different?
I haven't agreed -- put it merely with that particular kind of a lawsuit.
Is the Texas law different to that in the other states which is to this effect, it's not malice in the ordinary sense of -- if you do not prove malice in the ordinary sense of ill will or even motive but that it's sufficient to have a legal malice, that is to show that a wrongful conduct occurred which brought about the damage.
Mr. L. N. D. Wells, Jr.: My understanding has been that it means more than willful acts -- willful-wrongful act.
There has to be some -- something more than that in Texas although that was the proposition that we -- prevented Judge Stout and which was denied us here but if the Court please, I don't see how this can really have any relevance to the case here of what the Texas law is if the Federal Government has occupied the field.
Justice Hugo L. Black: I didn't think so either --
Mr. L. N. D. Wells, Jr.: Yes, sir.
Justice Hugo L. Black: -- but you were discussing it and I seem to be putting some emphasis on whether it was malicious or not.
Mr. L. N. D. Wells, Jr.: Well --
Justice Hugo L. Black: And I had understood that in this kind of enactment, you do not look into the general meaning of malice if some person wants -- very anxious to do somebody wrong because of hatred or envy or malice or something, but is simply that he's done a wrong and the law enforced malice in this particular kind of action from that wrongful conduct.
Mr. L. N. D. Wells, Jr.: This I gather was the trial court's view in the -- in the instruction which he gave on page 62 of the record.
The appellate court doesn't talk about that but -- yes, sir.
By the term willfully as used in this charge is meant the intention -- intentional and purposeful disregard of the known rights of another.
And then over on this inquiry with respect to the -- with respect to the punitive damage, he merely says, “You're instructed that -- this is on page 66, that by the term punitive damage is meant damages which are assessed against the defendant for the purpose of punishing it and also for the purpose of setting a wholesome example if any to others.”
Now, we say that it's not of Texas business to be setting wholesome examples for other or punishing unions with respect to matters as to which the federal law has fully occupied the field.
Justice Hugo L. Black: What you are saying now, I assume is, that if the federal law does authorize as remedy to farther extend under the Act, fix the amount, Texas can't use a state remedy in order to add to it.
Mr. L. N. D. Wells, Jr.: Exactly so, and as the Texas Appellate Court makes crystal clear right on the face of its opinion, that is exactly what Texas has done here.
Now, we say that the matter of a referral system is a matter that is literally hundreds of times before the Labor Board.
Some 2000 -- 8 (b) (2) cases before it in a year, charges filed in over a hundred formal Board orders in areas like this.
We have --
Justice Hugo L. Black: Do you agree in this case?
Mr. L. N. D. Wells, Jr.: Pardon?
Justice Hugo L. Black: Do you agree in this case that this man had a remedy before the Labor Board and that the Labor Board could -- it could establish wrong has been done that the Labor Board could have awarded back pay as damage.
Mr. L. N. D. Wells, Jr.: Yes, sir, that --
Justice Hugo L. Black: You concede that?
Mr. L. N. D. Wells, Jr.: I do that depending on what the Labor Board had found.
Now, if the -- if the Labor Board found that the reason for the refusal of referral was a reason, why did toward discrimination to affect union membership, then there would have been a remedy.
We say that the Labor Board may well have found because I've recited Borden's testimony here but they're sharply conflicting.
We say that had -- well, the -- another tribunal heard it.
They may well have found that Borden was properly refused a referral quite similarly to the plaintiff in the California case, the Teamsters case that Mr. Justice Douglas wrote for running around the hiring hall and getting his job outside the hiring hall.
But we say that you can't tell whether it would be lawful or unlawful under the Federal Act until you find out what the reason was.
Justice Hugo L. Black: Do you say that it was privileged under the Act?
Mr. L. N. D. Wells, Jr.: No, sir, I --
Justice Hugo L. Black: Do you say that if it was privileged conduct under the Act, the Board -- neither the Board and other states could give a remedy?
Mr. L. N. D. Wells, Jr.: Yes, sir.
Justice Hugo L. Black: But if they go beyond that privilege which the Act gives them then the Board can give a remedy for the wrongful conduct.
Mr. L. N. D. Wells, Jr.: Exactly, so.
Justice Byron R. White: What the -- what is the arguable (Inaudible) under what section?
Mr. L. N. D. Wells, Jr.: 8 (b) (1) and 8 (b) (2), it's the Radio Officers' case.
It's just exactly like Fowler in the Radio Officers' case here.
Fowler went to work contrary to his union rule, didn't clear through the union hall and the union found out about it and asked the employer to fire him.
And this Court found that that was violative of Fowler's rights under the union contract, but the point on which the Court centered was not the matter of contract violation, but the fact that the Federal Congress has legislated about activities like hire -- about hiring halls.
Justice Byron R. White: Is this the 8 (a) (3) violation?
Mr. L. N. D. Wells, Jr.: Well --
Justice Byron R. White: At that time that was against the employer, was it?
Mr. L. N. D. Wells, Jr.: At that time it was -- well, that Fowler -- the Radio Officers' case was against the union, and as I recall against the union alone.
In that connection there's some very --
Justice Byron R. White: 8 (b) (2) then or 8 (b) (3) or --
Mr. L. N. D. Wells, Jr.: 8 (b) (1) and (2).
Justice Byron R. White: 8 (b) (1) and (2).
Mr. L. N. D. Wells, Jr.: Yes, sir.
In that connection, there are two very recent NLRB cases which are not yet formally printed.
They're only in their mimeograph form.
We have printed them as an appendix to our reply brief here, the Philadelphia Hotel case and Marine Engineers' case in Alabama, both of which are just on all fours on these facts.
What I'm saying is if the Labor Board found the facts as the Texas jury found them, then we are guilty of an unfair labor practice.
If, however, the Labor Board found the facts says that there had been a violation of a legitimate hiring hall relationship insofar as Borden is concerned, we might have had the same result that the union had in the Los Angeles-Seattle case.
You can't tell until you get the federal determination.
Justice William J. Brennan: I gather from what you said earlier, having failed to file a charge within the record, the six-month period.
If you're right, this fellow's out, isn't it?
Mr. L. N. D. Wells, Jr.: Yes, sir.
If Your Honor please, I should like to reserve some time for rebuttal.
Chief Justice Earl Warren: You may, Mr. Wells.
Argument of Robert Weldon Smith
Mr. Robert Weldon Smith: Mr. Chief Justice, Honorable Members of the Supreme Court.
In answer to your question, Mr. Justice Brennan and yours, Mr. Justice Black, yes, there was legal wrong done here and the Texas courts have found that was malicious.
In the Court's charge to the jury, on number seven which is in the record on page 62, the Court defines the term ‘willfully' as used in this charge to mean the intentional and purposeful disregard of the known rights of another.
Then drawing your attention to the special issue number five, the Court inquired as to whether the action taken against Borden was done willfully to which the jury answered yes.
It was on this foundation that the Court based the finding of exemplary damage, the intentional disregard of the known rights of another.
Justice William J. Brennan: Well, I must say in my state, we do distinguish malice as they're defined under willfully from actual malice.
That is under our rule, at least, only so-called legal malice.
Mr. Robert Weldon Smith: Well, in Texas, sir, there is no distinction, the willful or --
Justice William J. Brennan: There's none at all --
Mr. Robert Weldon Smith: -- malicious action taken is treated the same.
The legal remedy to which Judge Black -- Justice Black, I think referred, applies in Texas.
Now, to begin with, Mr. Borden was a member of both the Local Union 100 and the United Association at the time of this trial.
Local 100 in Dallas is a member of the parent organization, United Association.
Suit was originally brought against both, the parent and the local union.Conspiracy was charged against both unions in breach of contract against Mr. Borden as well as the Commission of authority.
Later on, during the progress of the trial, the United Association, on motion by the Court, was dismissed from the action and is no longer in the case.
I thought I'd bring that to the Court's attention this time.
Now, Mr. Borden did work in Galveston for the Farwell Construction Company.
He was a member of a local union in Galveston which is also a member of the United Association.
After leaving Galveston, he did come to Dallas to attempt to get a job.
Now, in the United Association, if a man has a dues book, he may automatically become a member of that particular local union even without a clearance card.
If he has a clearance card from his previous local union, he may also become a member of the new local union.
Or failing to have either of these indicia of membership, he may deposit $10 as an evidence of good faith, and then maybe referred out on the job as any other member of the local union.And it is the union's responsibility to obtain his clearance card.
Mr. Borden arrived in Dallas around September the 15th.
He called to Farwell Construction Company job and talked to Mr. Heave.
After he talked to Mr. Heave, there's nothing in the record as to what was said between the two of them.
After he talked to Mr. Heave, he went to the local union, to Lanham who was a businessman, who had the duty as found by the jury, and as it is shown in the constitution and bylaws of the local union to refer the man out on the job.
He asked Mr. Lanham for a job.
He asked specifically to be referred to the Republic Bank job.
Mr. Lanham refused, he cursed him, he said he come in here wrong, he came in with the job in his pocket, he wasn't going to send him out.
He refused to accept his clearance card.
Now, we're not basing our action on his union membership rights on whether or not they accepted the clearance card this time contrary to what Mr. Wells has said.
Because later on and we have admitted in our pleadings and it is in evidence, they did accept the clearance card after he had gone back to Shreveport at a later date and picked up the clearance card.
That first time he only had the dues book.
After he had gone back and picked up his clearance card and brought it back, he finally did find Lanham and did give it to him.
Now, it took him about six days during his entire period of time in order to merely be enrolled as member, but that is not the real issue.
Now, after he had come back to Dallas the second time with what he called the boss, the clearance card, he presented that to Lanham and said he wanted to go to work on the Republic Bank job.
And in the meantime, he had talked to Mr. Thurman who was not the sole hiring agent on the job but was a superintendent on the job and did have the authority, as the jury found, to hire.
He asked Mr. Thurman to place a call for him with the local union.
Mr. Thurman testified that he did do so.
Mr. Borden went to the union and this time, he was told or Mr. Thurman was told that they would not refer Mr. Borden for the job because he had shoved his clearance card down their throats.
In any event, Mr. Borden didn't get the job and he was referred down on several other jobs.
Now, the jury has found, one, that Mr. Borden had a job opportunity offered to him.
They found that Mr. Lanham had the duty under the rules and procedures.
He had a duty under the rules and procedures, a contract prior to Mr. Borden's to refer Mr. Borden for the job, and that he willfully violated that duty.
And it's on this basis that the Court awarded both the actual and the exemplary damages.
Now, in answer to one question from the Court as to why the judge reduced the exemplary damages from $5000, as awarded by the jury, to $1916 which is the exact amount of the actual damages, I can only answer -- I don't know except that I think that he thought that he could not award exemplary damages in any amount greater than actual damages.
We contested in the Appeals Court but you must prove a gross abuse of discretion on the part of the trial court in ordering remittitur and this finding of the Court was upheld.
Also, we contested in the Appeals Court the disallowance by the trial court on his own motion of the $1500 mental pain and suffering.
This also was disallowed by the appellate -- Appeals Court on the grounds once again, we must have proof gross abuse of discretion which is almost impossible to prove.
Now, the testimony shows that Mr. Borden was cursed, he was abused.
He was kicked from teller to post.
It also shows that he went to an executive board meeting, and there in this meeting, they told Mr. Borden that if he didn't like the action that the union was taken against him that they could take away his clearance card, they could take away his union membership, kick him out of the union, and kick him out of Dallas.
And that the best thing he could do would be to forget the whole matter and leave.
Now, Mr. Borden testified that after this meeting, that he was in fear of bodily harm and he made himself scarce around the union hall except when he had to go there to pay dues.
Now, I imagine he was pretty careful about that.
Now, this action is not based in anyway on the Labor Management Relations Act.
There are no pleadings by Borden that the union violated any provision of the Act.
No contention has ever been made that the Act in anyway is involved in this case insofar as Mr. Borden's concern.
The Supreme Court of State of Texas as Mr. Wells has already alluded to did get to the nub of this case in the first appeal when it said on page 34 of the record, “According to the petition, it was Lanham's duty to place the members of the union with their various job opportunities, a duty that he had, a contract action.”
This is also shown in the opinion of the Court of Civil Appeals from which the appeal has been taken to this Court where the Court stated, “The suit of Borden as already stated was based on both contract and tort.”
This is on page 350 of the record.
No special issue was submitted to the jury in anyway based on the Taft-Hartley Act.
The special issues submitted were solely based upon duties owed to Mr. Borden by Lanham and by the union.
Special issue number 6 inquired as to whether Lanham breached his duty to Borden under the rules and procedures of Local 100.
The jury answered, “Yes”, failing to receive an affirmative answer on this particular special issue, our case would have followed and Mr. Borden would not have received relief.
Unless we approved the contract, unless we approved the deal on Lanham, the business manager, there would have been no action.
There is no special issue in anyway related to any duties owed under the Taft-Hartley Act only under the rules and procedures of the union.
Chief Justice Earl Warren: Mr. Smith, would --
Mr. Robert Weldon Smith: Yes, sir.
Chief Justice Earl Warren: -- would the conduct of the petitioners in this case constitute an unfair labor practice under the Act?
Mr. Robert Weldon Smith: It is my view that it would not.
Chief Justice Earl Warren: Do you -- it's your view that the -- that Borden would have no jurisdiction at all.
Mr. Robert Weldon Smith: Yes, sir.
Chief Justice Earl Warren: Alright.
And therefore, that your client would have no other remedy other than this one which you have --
Mr. Robert Weldon Smith: Yes, sir, I will go this -- this far.
It's -- as in some of the opinions of the Court have recognized, Gonzales, one, Local 357 is another.
In any situation where you have a union and a union member or an employer or in anyway involved, you can abstractly reason around that there is a violation of the Act somewhere, and I suppose you can do the same thing here.
But as a direct violation of the Act, I see none.
Justice Byron R. White: Do you -- do you think your case really is substantially distinguishable to the cases which the union had attached to their reply brief?
Mr. Robert Weldon Smith: Yes, sir, I do.
Justice Byron R. White: And what is that?
Mr. Robert Weldon Smith: Mr. Justice White, it is our duty that the NLRB and particularly in the Miranda Fuel case, they explained in detail what they mean.
It's going on the assumption that where you have a certified bargaining agent, a majority agent, that owes the duty to all of the employees and the union refuses to refer under this situation, the employer cannot hire.
Under this situation, the duty has -- the union has violated a duty under the Act, and therefore, estimated an unfair labor practice.
Going further, there is another situation where the union threatens the employer with intimidation, coercion, and other activities that, “We will refuse to do something if you hire this man.”
Then in that situation, you would also have a violation of the Act under the later NLRB decision.
Justice Byron R. White: Oh, I'm not sure you've got the -- it got to do with distinguishing these two cases, the (Inaudible) case and the Walker case, that's the --
Mr. Robert Weldon Smith: Well, I think -- I think in both of those cases, Your Honor, there -- they were the majority agents and I think that the Board found -- I'm not too familiar with them, I've read --
Justice Byron R. White: We simply found that the employer had to have it or it was the festive of hiring only through the hiring hall.
Mr. Robert Weldon Smith: Well, it did establish --
Justice Byron R. White: And -- only in the -- and based their finding, mostly on the fact that the union member who was complaining, had been told by the employer, he wouldn't be hired unless he was referred.
Mr. Robert Weldon Smith: Yes, sir and --
Justice Byron R. White: I think that then -- which is exactly what happened in this case.
Mr. Robert Weldon Smith: No, sir.
That's not exactly what happened.
In that case, I think the NLRB did find that there was an agreement between the union and the employer that they would only take those people who were referred.
Now, the NLRB found that there was a common practice and that this is what had been done in the past, as I recall it.
Justice Byron R. White: It can't be covered though you -- you couldn't recover at any court, could you, without showing that -- without showing that the union really was of the operative factor and your client must recover it?
Mr. Robert Weldon Smith: They are --
Justice Byron R. White: And not being (Voice Overlap) --
Mr. Robert Weldon Smith: They are the operating the factor.
Justice Byron R. White: Oh, which is -- which is establishing precisely what the Board had found to be true in these two cases, namely that the -- the employer had enough regard to what the union thought at least that it passively was in agreement, would it, not to hire, unless there was a referral.
Mr. Robert Weldon Smith: Yes, sir, and I think it goes to the Radio Officers' case and also to Local 357 wherein the Court found that it was a true motive of the employer in not hiring in which the Board must look that the failure to hire by itself was not the only criteria, but if they had an agreement that they would only hire if they were referred by the union then in that event, they were encouraging union membership by refusing to hire and by refusing to refer.
I think that would be the distinction.
But going further, the union has never pleaded as a defense except by a way of a plea in abatement that it was doing anything for Borden to encourage or discourage union membership for that it was displaying here.
In the trial court, the union contended that Borden had never been refused a referral.
Borden had always been treated like any other employees.
It was doubtedly denied that anything had ever happened to him.
There was no error affected on appeal for failure to submit an issue as to whether or not the union was correct in taking any action against Borden whether they had a right to discipline him, whether they had a right to keep him from referral.
No supplemental findings were ever requested or error perfected on the same.
And in Texas, we have a special issue system where, under Rule 275, all findings of the Court are presumed in favor of the special issues unless the Court makes other findings.
Justice Hugo L. Black: This argument --
Mr. Robert Weldon Smith: Yes, sir.
Justice Hugo L. Black: -- could you finish, that isn't what was (Inaudible)
Mr. Robert Weldon Smith: That's -- that's all.
Justice Hugo L. Black: Why wasn't it alright to raise it by plea in abatement?
What's wrong with that?
Mr. Robert Weldon Smith: It was alright to raise it by plea in abatement, Your Honor, but what I am saying is, that they did not come in to Court and say, “Yes, we took an action against Borden for this reason -- for that reason.”
The only thing they have said is, “This action is preempted because of Section 8 (b) (1) and 8 (b) (2).
Now, they have pleaded no facts to support this.
Now, I assume that the labor union, in any case, is always going to plea as it wrote a possibility that it may be preempted that it's preempted by the Act, but they have no facts under that showing what they mean by any violation of the Act.
Justice Hugo L. Black: Well, in either event, I presume, even if there's preemption, they would still be free to try out the issue of whether they were guilty of the unfair labor practice --
Mr. Robert Weldon Smith: Legally --
Justice Hugo L. Black: -- if it is an unfair labor practice.
Mr. Robert Weldon Smith: That's legally correct, Mr. Justice Black.
Justice Hugo L. Black: So that I -- I still probably due to my fault but I still don't understand where you get by this particular argument --
Mr. Robert Weldon Smith: Well, all I'm saying is that they have never contended that they were taking any action against Mr.Borden.
Justice Hugo L. Black: But they've contended they were not but they've also contended, have they not, as to issues as to whether they had or not but one for the Board, and that was properly raised by a plea in abatement.
Mr. Robert Weldon Smith: That's right.
Now, what was the business agent's purpose in refusing to give Mr. Borden a job?
They have never admitted that he was called for and it was a practice for 11 years in this union that if a man was called for by name that he was referred to the job.
Yes, they did say it one time after the evidence kept rolling in that he had been called for that he may have been drunk but they never did produce a witness to show that he never had a drink for over 10 years.
In fact, the man who claimed that he was drunk to begin with, later on said, no, he didn't smell anything on his breath and he doesn't seem to me drunk.
So naturally, this testimony was discredited.
But now the union admits, “Yes, we've committed a violation of the Act.
Now, we've missed to hold with our hands in the cookie jar and we're guilty --
Justice Hugo L. Black: Did they --
Mr. Robert Weldon Smith: But we're not guilty under this law.”
Justice Hugo L. Black: Did they (Voice Overlap) -- did they quite admit that?
I thought --
Mr. Robert Weldon Smith: Sir?
Justice Hugo L. Black: I thought what they admitted was that if what you charged was true, they had committed an unfair labor act but did not admit whether the charge was true.
Mr. Robert Weldon Smith: Well, Justice Black, it's beyond that point.
It's what the jury has found.
Justice Hugo L. Black: I understand that but the question is who should have found those facts, the jury or the Board?
Mr. Robert Weldon Smith: Yes, sir.
Justice Hugo L. Black: And what they're saying is that whatever the -- whether the finding was right or wrong, it can't be accepted because that was for the Board to find and not for the jury.
Mr. Robert Weldon Smith: Well, I think they did admit in their -- in their brief in this case that regardless of what happened, Borden was being disciplined in this instance.
Now, I don't think they have admitted it beyond that point but I think that it has on that burden.
Reliance has been placed upon the Radio Officers' case to show that this case is similar to that that an 8 (b) (2), violation has been committed.
In that case, a man was hired first and then fired by an employer pursuant to an illegal union security agreement.
And back to what Justice Black asked awhile ago, in that situation, the Court found that by discharging the man pursuant to the union request have found that the motive of the employer was to encourage union membership.
In the case of Local 357, which was a hiring all case, NLRB versus Local 357, the majority of this Court, some affirmative showing of motivation of encouragement or discouragement must be shown that it is the true purpose and the real motive of the employer in refusing to hire which is at issue.
The concurring opinion said that it was the forbidden motivation which must be examined.
The certified bargaining agent has the duty to represent all the employees' fair and that all business purposes are not bad.
Now, the only thing shown in this record is that Mr. Borden was told to go to the union and get a referral.
Now, there's nothing in the record showing that Mr. Borden ever went back and tried to get a job after he had been referred to the union.
There is no showing of that, that there was any agreement whatsoever between the Farwell Construction Company and the union.
That they would only hire men referred to them by the union.
And in fact in Texas, we have the right to work law and it would've been illegal anyway.
So, there is no motivation shown here by the union.
The union claims in its brief that the record is insufficient in regard to hiring arrangements between Farwell and the union and I say that since this was the duty, since this was the issue raised by the union, that they had the burden of going forward to show that this was an action which should have been considered by the National Labor Relations Board.
The union cannot raise on one hand as an issue that this is preempted by the Act and hide behind the skirts without going further and showing in what manner it does come within the purposes of the Act.
They went -- they did not go forward where they act at all.
Now, next, we say that even though, even though it'd be considered that there was a violation of the Act in this case, not admitting but assuming that it be found.
Nonetheless, the Texas state courts had jurisdiction.
The state courts have the right as found by the Court in Gonzales to vindicate the personal rights of an individual on the contract.
Now, that is exactly what this case involves.
The constitution and bylaw of Section 30 of the union constitution, says, that a man will not take a job without a referral from the union.
To do so, we'll place him in the position where he may be expelled from the union.
Mr. Borden shows not to, after having been a member of the union for 22 years, place his retirement and pension that he had obtained in the union on the block to lose all of his union rights and go ahead and go back to the employer and ask for the job anyway.
We have pleaded in paragraph 15 specifically that this was a violation of the union constitution and bylaws, and this was found by the jury in answer to the special issue number six.
The Appeals Courts have treated this as a violation of contract.
Texas courts have long recognized and --
Justice John M. Harlan: Do you think Gonzales has been affected by the second Garmon case?
Mr. Robert Weldon Smith: Your Honor, I think it has not been affected by the second Garmon case.
The court in that case, the second Garmon, recognized the validity of the Gonzales case that in situations where a matter is of peripheral concern to the Act, nonetheless, the state courts may have jurisdiction.
Now, this assumed that it may also be a violation of the Act, but that it is a fair amount of right for the State to go ahead and take consideration of the case.
Now, I think the Garmon case goes back to Weber and Garner.
The Court in the Garmon case clearly considered that this was a violation of 8 (b) (2).
In fact, they found in the first instance that it was a violation of the Taft-Hartley Act.
I think that this case does follow clearly within Gonzales.
As I said before, you might pick out a violation of the Act in this case, but nonetheless --
Justice John M. Harlan: That's what Garmon says.
It was arguably.
I didn't agree with Garmon but I'm bound with it.
Mr. Robert Weldon Smith: Well, I think the Court has gone further and said that it's not only arguably but it -- that it is reasonably arguable.
In the Interlake case, the Court used the word reasonable.
I don't think that the Court meant that ingenuity of counsel is paramount in saying whether or not a case should go before the NLRB.It has to be of reasonable argument, surely.
And what I'd like to point out further is that the proviso to Section 8 (b) (2) or 8 (b) (1) as congressional history in 93 Congressional Record, page 440 where Senator Ball stated that it was never the intention of the sponsors of the pending amendment, that is the proviso, to interfere with the internal affairs of organizations of the union.
Now, this does not refer clearly to whether a man has been expelled from the union or whether he's been denied membership.
This goes to all of the internal affairs.
Senator Taft said the same thing.
He said that, “Although the union may be wrong and that under the Act, the man must be reemployed by an employer, nonetheless, regardless of whether the man did a rightful act or wrongful act, the union can discharge him from membership.
And that the Act does not cover.
Now, that's what this case is based upon.
This man had rights within the union.
What is the difference if a man is expelled from the union, if he is suspended from the union, or if he's merely kept within the union but denied on union rights?
And that's what happened in this instance.
If you say that a man must be expelled from the union first before he may take action, then will not the union just keep the man a membership but deny him all of the rights?
It would seem likely that that would be exactly the result of the fault.
Now, I do not think also that the holding in Gonzales should be limited only to contract actions.
I think that the Court in that instance was talking of matters of peripheral concern in the Act.
Now, surely, where there is a picketing activity whether it's a matter -- I thank the Court.
Chief Justice Earl Warren: Finish that statement that you're making on that issue, Mr. Smith.
Mr. Robert Weldon Smith: Whether it's a matter which is directly within the protective area of the Act, in that situation, where the State may desire that which is right under the Act maybe wrong, then the NLRB should have jurisdiction.
This is the wording of the Court in the Russell case.
This is what the Court has used before in distinguishing between those cases which are preempted and those cases which are not.
I thank the Court.
Chief Justice Earl Warren: Mr. Wells.
Rebuttal of L. N. D. Wells, Jr.
Mr. L. N. D. Wells, Jr.: If the Court please, unless there are questions of the Court, I'll waive rebuttal.
Thank you, Your Honors.
Chief Justice Earl Warren: Very well.