BOILERMAKERS v. HARDEMAN

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Argument of Louis Sherman

Chief Justice Warren E. Burger: We’ll hear arguments in Number 123, International Brotherhood of Boilermakers against Hardeman.o

Mr. Louis Sherman: Mr. Chief Justice and may it please the Court.

This case is here --

Chief Justice Warren E. Burger: We’ll just wait.

We’ll just wait one moment counsel.

Before we undertake this argument counsel, I think we can announce that we will not reach Number 62, Monitor Patriot against Roy today, and if counsel wish to be excused they may be.

Have you sent for Justice Douglas?

We’ll just wait the arrival of Justice Douglas, a moment.

You may resume your sit for a few moments.

Mr. Sherman you may proceed now whenever you are ready.

Mr. Louis Sherman: Thank you.

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit to review a per curiam opinion affirming a decision, the judgment and jury verdict of the District Court in the amount of $152,500.00.

In favor of George Hardeman, an expelled member of the Boilermakers union, who filed a complaint in the Federal District Court April 1966 under Section 102 of the Landrum-Griffin Act alleging that he’d been deprived of the full and fair hearing under Section 101 (a) (5).

The evidence at the District Court trial was of two kinds.

First, the various proceedings before the union tribunals, such as the 172 page transcript of record, of the hearing that was held which resulted in his expulsion, which went in to the details of his beating up the business manager, which is the principal reason for his expulsion, and the proceedings at higher levels when the case was appealed to the president of the International and the executive counsel of International.

The second evidence had to do with loss of wages which are computed on the basis of past and future.

Mr. Hardeman was 43 when this incident occurred in October of 1960, and they figured it on the basis of mortality tables that he would retire at 65, $6,000.00 and therefore plus some punitive damages that came out of this total figure.

Now, the first part of the case has to do with the issue of full and fair hearing which is set out at page 2 of our brief, the language of Section 101 (a) (5) of the Landrum-Griffin Act, which states that “no member of any labor organization must be fined, suspended, expelled or otherwise disciplined except for non- payment of dues, unless its members been (a) served with written specific charges (b) given the reasonable time to prepare the defense (c) afford with a full and fair hearing.

There’s no issue here on the written specific charges they were made, whether he’s given a reasonable time to prepare his defense.

The issue is whether he is afford to full and fair hearing.

In the literal sense, there should be no question of that either, because the hearing took about ten hours, there were witnesses, cross-examination and the rest.

We concede full and fair hearing means something more than that, that there must be some evidence to support the charges.

And we think that the trial judge erred and this Court of Appeals erred in a way that’s very important to the labor movement at finding there was no evidence.

The essential charges had to do with the bylaws of the local union which was set forth at page 4 in the language of the constitution of the Boilermakers relating to subordinate lodges.

A first test of the bylaws, they’re very explicit that the local could after proper hearing, punish as warranted by the offense for violation which is defined as “violence, a threat thereof to intimidate any official of this international brotherhood a subordinate lodge.

Prevent or attempt to prevent him from proper discharging his duties of his office.”

And the language of the Subordinate Lodge Constitution was broader.

It provided for expulsion for any member endeavors to create dissention among the members, or who works against the interest and harmony of the brotherhood.

Now, there’s no question about the evidence in my judgment as to the bylaw.

We have a clear statement not drawn by opposition witnesses but by Mr. Hardeman himself in the union case.

This is the case before the union judges, if I may use the expression.

But I think it might be just rather read it literally.

He was unhappy about the way the business manager was administering a referral system as far as his own particular problems were concerned.

Like some other people, he was thinking in terms of a quick instrument of change, violence.

So he’s sitting there in the union hall, and this is his language at page 25.

”I tried to make up my mind what to do whether to sue the local or Wise, who is the business manager, or beat the hell out of Wise.

And then I made up my mind.”

Now, that would seem to be pretty good evidence of violation of the bylaw.

The district judge in his charge to the jury, which is set forth in our appendix.

Justice John M. Harlan: What did he do pursuant to the --

Mr. Louis Sherman: I beg your pardon?

Justice John M. Harlan: What did he do?

Mr. Louis Sherman: He did exactly what he had in mind, which was to beat the business manager.

Justice Hugo L. Black: He did what?

Mr. Louis Sherman: Beat the business manager, physically assaulted him.

He didn’t choose the more peaceful method of suing, of going to the joint referral committee which existed for complaints of the sort he had in mind.

He beat him until he got some kind of statement that satisfied him that Wise wouldn’t jump at anyone on the list.

That was the issue between them.

Now when it got to the District Court, of course, if you get the time relation straight, the incidents occurred in 1960 and this case was before the Federal District Court in 1968 I suppose when the trial took place.

Complaint was filed in 1966.

And if I may be indulged, I’d like to read the statement of the charge which is at our appendix page 37.

This is the Federal District Court, now there maybe and I’m not ruling on it one way or the other, but I will say this that there is evidence in here which might support a finding of guilty under Section 1 of Article XII, the Subordinate Lodge By-Laws, where the trial body said “We find him guilty; we recommend that he be expelled.”

They didn’t say “We find him guilty under either one section or the other.”

They said they found him guilty as much as nothing here which will support a conviction under this section, and I think the verdict cannot stand, and he’s being convicted a felony which was expelling him.

And I think in as much there’s no evidence which will support finding of guilty under this, of the finding of the board was erroneous and cannot stand in that respect.

Now, that is all charge, for those two sections and there’s nothing in this record that would just to -- finding him guilty under those sections.

Now the use of the phrase “those sections” sounds like he’s talking about both sections.

It’s very difficult to understand.

All of it is about the fight.

I’m telling you as a matter of law that under the proof for finding its result it's being expelled, can I legally stand, therefore he is wrongfully expelled.

Now the second issue before the union tribunal was a question of the violation of the Subordinate Lodge Constitution dealing with dissention, a work against the interest and harmony of the lodge.

But we think that in terms of the normal relationships between the courts at union tribunals.

If union tribunals are to be permitted to function in accordance with the realities of life recognizing that they are not literate and skilled lawyers that there must be some recognition of whether they have done justice in the real sense, or whether they have engaged in handling a trumped up case or something of that sort.

There’s nothing trumped up about this case.

Counsel for Mr. Hardeman admits in his brief that he should’ve been disciplining because of the question about the punishment.

But this question of dissention -- working against the interest and harmony of the lodge, the local trial board found him guilty on that account.

Now those are general words, but we think it was reasonable for the brothers to define dissention and harmony the way they did.

We think that the process of reasonable inference is available to administrative tribunals, and therefore, it certainly should be available to working people who are trying to work out their problems of maintaining the integrity of their institutions.

What could be more calculated to cause dissention than a fist fight?

Now this wasn’t just a fist fight between two Boilermakers.

It’s a fist fight in which one Boilermaker, the soul the business manager who was not a very important fellow in this world, but on the little --

Justice John M. Harlan: What happened to the other charge?

Chief Justice Warren E. Burger: The intimidation?

Justice John M. Harlan: Intimidation.

Mr. Louis Sherman: Well, he was found guilty as charged.

It was meant that he was found guilty on both counts by the local body.

Justice John M. Harlan: Well, do you defend this only on the, or do you attack this on the other basis of steering up trouble in the union?

Mr. Louis Sherman: No, I defended on both counts.

I considered that there was adequate evidence, certainly was some evidence.

I feel as a matter of fact under the most strict rules, there was definite evidence of violation of both of the --

Justice William J. Brennan: If you’re right -- if you’re right to be prevail and only -- you don’t have to --

Mr. Louis Sherman: I know that.

Justice William J. Brennan: You don’t have to win on both do you?

Mr. Louis Sherman: That is correct Your Honor.

We’ve cited Burke versus Boilermakers which pointed that it’s sort of silly to expect unions to say “Guilty as charged on count one. Guilty as charged on count two.”

Justice William J. Brennan: Well, whether that meant guilty as to dissention or guilty of under the -- I mean other charge of intimidation.

Mr. Louis Sherman: They meant --

Justice William J. Brennan: This is evidence on either I gather your position is you win.

Mr. Louis Sherman: That’s correct because the language of the bylaw is this broad that it omits the punishment of one by the offense.

And therefore, expulsion which Congress recognizes a legitimate punishment.

They recognized in the Landrum-Griffin Act.

They recognized it in the Taft-Hartley Act.

Certainly, even if the one on dissention fell out, then the punishment should’ve been upheld.

Your Honors, this presents a more serious question on granting an award which seemed to be inconsistent of our system trying to repair injuries if injuries had been received, because under this award as you can see from the amounts involved, the plaintiff by not seeking reinstatement.

He didn’t seek reinstatement in this case, has managed to create pecuniary result in which he acquires in the state wit interest.

You can compute with a low rate, should take care of the salary.

It’s just inconsistent of the whole thing.

But more than that, what’s involved here is question of whether unions can be responsible.

I beg your indulgence to read from a decision of the Fourth Circuit Court of Appeals rendered by Judge Sobeloff.

“The same system of justice, those involved in the case of Hardeman is a system upon which the responsibility of the union rests in terms for example of handling lockout strikers.”

Now, that’s not just a figment of my imagination.

The parts, cases and illustrations of what happens when the union tries to assert its powers to maintain the validity of peaceful institutions, in that case the maintenance of a council industrial relations, just maintain peace in the electoral contracting industry for 50 years.

Judge Sobeloff said “By the judicial application of ad hoc standards and the pursuit of what is called democracy in union government would have succeeded only introducing not democracy but chaos.

This would not only tend to disintegrate the labor movement, but be responsible to thus generated could have serious implications for employers and others as well.”

And that is one of the serious problems facing the labor movement today that when the internationals are asked to assert their powers to maintain responsibility such as suppression of jurisdictional strikes that the cry comes back “hide and protect us against cases like Hardeman.”

How are we going to make sure we’re going to do the job to satisfy courts?”

Of course we can tell them they’re lawyers that reasonable standards, reasonable risks should be taken as they were in the Parks case.

But cases of this sort which have been smashed aside, I think complete abandonment of the proper rules of review and the substitution of the court's views or the sort of thing that are preventing us from doing what should be done, not only in the interest of the labor movement, but also of others in the collective-bargaining relationship.

Justice John M. Harlan: Did you say that a money judgment against the union?

Mr. Louis Sherman: Yes sir.

Justice John M. Harlan: How much?

Mr. Louis Sherman: $152,500.00, the one they expelled him in.

In the Parks case, we were dealing with a thousand people.

The case of Berman versus Nevada which is at 85 Pacific Second 250, there were 41 walkout strikers involved.

Chief Justice Warren E. Burger: Would you raise your voice a little counsel, a little hard for us to hear.

Justice Harry A. Blackmun: Mr. Sherman, let me ask you a question, may I?

Suppose that the evidence here would justify or would qualify only under Article XII of the local’s bylaws, but not under Article XIII.

Would expulsion be justified?

Mr. Louis Sherman: Yes Your Honor.

Justice Harry A. Blackmun: And you would say this because why?

Mr. Louis Sherman: Because the blow of the fist is the thing that was intended to be suppressed, and that was because in working out the allocation of jobs resort to violence on the part of those who are concerned with the administration of the referral system are very serious matter.

Justice Harry A. Blackmun: Well, Article XIII provides specifically for expulsion, but Article XII does not.

It provides only for --

Mr. Louis Sherman: Punishment as warranted by the offense.

Justice Harry A. Blackmun: Yes and why doesn’t XII go farther then?

Mr. Louis Sherman: At this, punishment -- I beg your pardon?

Justice Harry A. Blackmun: Why doesn’t Article XII go further -- farther?

Why doesn’t it also provide for expulsion?

Mr. Louis Sherman: Well I think that it depends on circumstances of the case.

It’s very hard for a court at any level to appreciate what was going on Local Lodge 112 at that time.

Justice Harry A. Blackmun: Well, your theory must be then that the language as warranted by the offense necessarily includes expulsion?

Mr. Louis Sherman: Yes, might be fine and might be suspension, it might be expulsion.

As a matter of fact here, they expelled him indefinitely.

It’s a little hard to understand what they meant by that.

But there was no effort made on his part securing statement.

Justice Harry A. Blackmun: And therefore, you’re argument must be to the effect that conviction so to speak under either article justifies expulsion, and hence the general verdict, if I may call it that ties in to evidence?

Mr. Louis Sherman: That is correct.

Justice Harry A. Blackmun: Alright.

Mr. Louis Sherman: But essentially, what it amounts to is that you leave in the hands of the people involved.

Now under this constitution, the local union, the brothers themselves voted for expulsion.

They had the trial committee that considered the evidence and made a report and then the local committee voted him guilty and then voted expulsion.

So therefore, there was a considered determination by the people involved.

Chief Justice Warren E. Burger: Would you say this is somewhat like a situation where a man is convicted in the criminal case on two counts.

Each of which as a five year penalty, but he’s given two five year sentences to run concurrently.

And this situation is somewhat analogous to that.

Mr. Louis Sherman: That is correct.

And as a matter of fact in Burke versus Boilermakers, which is a per curiam affirmance by the Ninth Circuit, exactly that’s what happened.

They had a series of charges on which one fell out.

The court said there was no evidence on one, but upheld the punishment because it didn’t approve on the others.

We have cited the criminal law as a reason for the position to be taken.

I’d like to take just a few minutes.

Justice Hugo L. Black: May I ask you one?

How much of the damage is awarded it was labeled compensatory or how much punitive compensatory --

Mr. Louis Sherman: The best I can ascertain $130,000.00 was labeled as compensatory and $20,000.00 as punitive.

It was not labeled but the presentation of the position by the attorney for the plaintiff was that he was 43 years old and he would retire at 65, and the number of years, times the annual salary would come out that figure.

So we had deduced that as division which in compensatory and punitive.

Of course if he’d be 20 years old and planned the work in 70, it would’ve been a lodge of judgment.

Justice Hugo L. Black: Was that the present value of the amount he would have recovered had he remained employed?

Mr. Louis Sherman: Well --

Justice Hugo L. Black: Computed on that basis or just computed on the basis of sum as per years?

Mr. Louis Sherman: It was computed on the basis of sum as per year because although they recognized the principle of mitigation of damages, for some reason or other, the evidence before the jury showed that he was living on $300.00 a year and even though full employment was coming up, they didn’t pay any attention to that.

But I don’t want to bespeak the jury.

Justice Hugo L. Black: Well, I understand I just thought I was curious for a moment.

Mr. Louis Sherman: Well, I’d like to spend a minute or two on the question that is sometimes labeled preemption.

Assuming though we are not right about the first part of the case where we strongly feel we are, and a very strong public reasons for establishing the rule of review which will permit the union tribunals to function.

I don’t think the word preemption is quite descriptive of our problem here.

We have a case in which the federal Congress has adopted a statute and certainly there is no constitutional bar to the federal government adopting the statute -- Congress adopting the statute for which they would give a duplicate remedy on the so called refusal of referral.

There’s a lot of evidence in the case about exclusive referral system, non-exclusive referral system, loss of wages and the rest of it.

There was a lot of junior analogue B proceeding.

The question is whether Congress intended by Section 102 to establish a duplicate remedy.

We think there’s an amount of statutory construction that it did not so intend.

We recognize that if you take a dictionary and use the words appropriate relief and chase it down to the end of the scope of that term, we may come out with the answer, but yup, they did intend.

But I think it is sounding like Amazon Continentals, the plaintiffs in that case back if ’48 tried to find the basis to maintain injunction suits against picketing because the language of the statute provided that unions could be sued for the first time.

The court said “Well, this is sort of ridiculous, Congress trusted that function to the National Labor Relations Board, a centralized agency with procedures or complaint, trial exam and a hearing and a centralized agency to make decisions, didn’t mean to transfer the function to 200 or more local tribunals with general jurisdiction.”

Justice Byron R. White: But you don’t find any list on the face of 101 (a) (5), do you?

Mr. Louis Sherman: No, I think we’re looking at 102.

Justice Byron R. White: Or even at 102, you find that on the face of 102?

Mr. Louis Sherman: I think on the face -- on the face of 102, it looks like just appropriate relief.

Justice Byron R. White: Well, I gather your argument, the fact is that 102 says “This is available to you unless you want to go to the National Labor Relations Board first.”

Mr. Louis Sherman: No, what I’m saying is that the Congress could have written the statute in such a way as to establish a duplicate remedy, but it did not do so.

Justice Byron R. White: And therefore, that’s my point.

Therefore, you say there’s no action under 10 -- or a violation of 101 (a) (5)?

Mr. Louis Sherman: Oh!

That’s -- I’m sorry.

Justice Byron R. White: But all you have to do is go to the National Labor Relations Board, is that correct?

Mr. Louis Sherman: That’s correct, unless he had sought restoration union membership.

If he had sought restoration union membership, then he would’ve been in the right place.

Justice Hugo L. Black: What remedy could he get to go the board?

Mr. Louis Sherman: Well, they can get the same remedy than any other union member could get if there’d been a refusal or referral because of trouble with the union, Radio Officers Union case.

He could get the same remedy that any non-union person could get.

Justice Hugo L. Black: Damages?

Mr. Louis Sherman: Back pay and reinstatement to his job.

Justice Hugo L. Black: But not damages?

Mr. Louis Sherman: Yes, well it would be damages in the sense of back pay.

Now, in addition, I think that some of the trouble on this point arises from the word appropriate relief (including injunctions).

We check back over the legislative history, we referred to it on VII cited second volume of legislative history 1102.

You have to know a little bit of the background of this legislation to realize that the first there was the McClellan Amendment, the Bill of Rights which came up on the floor passed by a very narrow vote, and then as evidenced by McClellan’s own testimony, the labor movement got involved and helped to draft the Kuchel substitute which is intended to cut down the scope of the McClellan Amendment.

So we look at the McClellan Amendment and that provides in a comparable provision --

Justice Hugo L. Black: Where are you reading that?

Mr. Louis Sherman: Well, I’m reading from a copy, I regret to say we haven’t put it in the brief.

Justice Hugo L. Black: You’re not reading from the brief?

Mr. Louis Sherman: No, but we’ve cited it in the brief at page 7.

I’ll just take one minute on it.

The Secretary of Labor was the one who was to enforce that and he used the same words, appropriate relief but without limitations, injunctions or restrain any such violations for compliance with this title.

We submit that McClellan certainly didn’t have in mind, Congress didn’t have in mind in drafting that Bill, passing that Bill, but the Secretary of Labor would have a duplicate function administering the National Labor Relations Act.

And therefore, it’s a fortiori that when it was provided for by private action, intended to cut down the scope of the McClellan Amendment that there was no such intention.

Chief Justice Warren E. Burger: Thank you Mr. Sherman.

Mr. Louis Sherman: Thank you.

Chief Justice Warren E. Burger: Mr. McDonald.

At the outset, if I have a proper understanding of the Court of Appeal’s opinion, Court of Appeals said that when the member of the union beat up one of the leaders, this was not a violation of the clause.

This was not creating dissention among members and not working against the interest and harmony of the International Brotherhood.

That’s in effect what the Court of Appeals said, is it not?

Argument of Robert. E. Mcdonald, Jr.

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Chief Justice Warren E. Burger: And that’s what you have to sustain here that this punching the nose, beating whatever, however you describe it, did not violate either one or both of those two clauses I just read?

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Mr. Chief Justice --

Chief Justice Warren E. Burger: That’ll call for some explanation for me, so I hope at sometime in your argument you’ll dwell on it a little bit anyway.

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Mr. Chief Justice Burger, members of the Court.

This is the first appearance I’ve made before this Honorable Court and I’d like to say that it is an honor to appear here, it’s the high point of my career.

This case is here on two issues that you granted certiorari on, the issue of standard of review applied by the Court of Appeals and the District Court, and the issue of preemption.

Justice Hugo L. Black: Where was it tried?

Mr. Robert. E. Mcdonald, Jr.: It was tried in Mobile, Alabama before Judge Daniel Thomas, Justice Black.

To understand the standard of review, I might recite the facts as Chief Justice Burger pointed out.

The union trial board found Mr. Hardeman, as well as Mr. Braswell, because we’re also reviewing the Braswell opinion here, guilty of two charges.

Article XII, Section 1 and Article XII, Section 1.

Now, what they had done in affect was to charge them with those two charges.

The trial board came back and said “We find you guilty as charged.”

Now, we came into Court alleging in our complaint that we have been denied a full and fair hearing because the evidence did not support a finding of guilt or was there any evidence to support a finding of guilt under Article XIII, Section 1.

Our position was this that Mr. Hardeman as well as Mr. Braswell were in the same position as a man on trial in a criminal case with the two-count indictment.

One count charging him with a simple assault, the second count charging him with rape.

There being evidence of a simple assault but no evidence of any sexual contact, but the jury coming in and finding him guilty as charged, well guilty as charged necessarily includes the rape count.

And that’s what happened here.

Now, we had two counts or two charges against Mr. Hardeman and Mr. Braswell in this case, and the first charge was XII (1) which stated that through the use of force of violence that Hardeman tried to restrain course or intimidate an official of the Brotherhood, the second charge incidentally there is no punishment set forth there, it’s open, apparently can be -- punishment can be administered according to the offense.

And the second charge was Article XIII, Section 1 of the International Constitution which points out that any member who creates dissention among the members or who seeks to create a dissolution of the Brotherhood, or a division of funds.

In essence, it describes someone who is trying to dissolve the union as an organization, and that Article says that anyone who is guilty of this will be suspended, will be -- not suspended but expelled from the Brotherhood.

Now, it doesn’t leave any question.

There’s no lesser penalty.

It’s just like a state statute that says “If you commit first degree murder, you will be sentenced for life or your life will be taken from you.”

And that’s what Article XIII does, it's a much more serious penalty.

Now, when he was found guilty, when these men were found guilty, the expulsion vote that Mr. Sherman mentioned was really superfluous.

They didn’t need -- if they hadn’t done it or if they voted not to expel them, they would’ve still been expelled by virtue of the fact they were found guilty under Article XIII, Section 1.

Now, it should be noted, these gentlemen took necessary appeals in the union, and in doing so, they were necessarily prejudiced in their defense because they had to presume they were found guilty of both, and so by doing this, they had to be found guilty of both.

Now the trial judge doesn’t --

Chief Justice Warren E. Burger: Do you think the situation would be any different if instead of saying “guilty as charged” they said “We find the two brothers guilty” and then recited the original charge in --

Mr. Robert. E. Mcdonald, Jr.: Mr. Chief Justice Burger, I do think it would’ve been different.

If --

Chief Justice Warren E. Burger: Tell me how in --

Mr. Robert. E. Mcdonald, Jr.: I think this.

If they had found the member is guilty of Article XII, Section 1, they could’ve said “For a penalty, we will fine you $100.00 each or we will suspend you for six months”, and/or they could’ve said “For a penalty, we will leave it up to a vote of the Brotherhood.”

And when it came before the Brotherhood, when they -- a motion for expulsion was offered, the Brotherhood would’ve said “Well, no.

Let’s vote against this because it’s too harsh.”

As it was, when the motion for expulsion was offered, the Brotherhood knew they had been found guilty of a Section demanding expulsion, so why not go ahead and vote for it.

Justice Thurgood Marshall: Mr. Sherman, get to that second point of expulsion.

Am I correct that Mr. Hardeman testified that he was sitting there quite worried about how the officers were going into local and everything, and he concluded that something had to done and therefore concluded that he had to punch that man?

Mr. Robert. E. Mcdonald, Jr.: Mr. Justice Marshall, that is correct.

Justice Thurgood Marshall: Well, isn’t that dissention?

Mr. Robert. E. Mcdonald, Jr.: No sir, it’s not.

Justice Thurgood Marshall: Well, is it mild disapproval?

Mr. Robert. E. Mcdonald, Jr.: Sir?

Justice Thurgood Marshall: Is it mild disapproval?

Mr. Robert. E. Mcdonald, Jr.: It would not be dissention within the meaning of Article XIII (1).

To say it would, would be if you’d be guilty of dissention under XIII (1) in doing that, well then you could also say that someone who is presumptive enough to when election comes around to run against the business agent in the election to run for his job.

Now, this man is certainly creating more dissention in the union and causing a division of difference of opinion there.

Chief Justice Warren E. Burger: Defense legal isn’t it?

Justice Thurgood Marshall: Well, suppose he punched, didn’t want some meeting?

Mr. Robert. E. Mcdonald, Jr.: Sir?

Justice Thurgood Marshall: Suppose he punched the business manager once in a meeting?

Mr. Robert. E. Mcdonald, Jr.: Well --

Justice Thurgood Marshall: You know, the one by group, you know?

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

My understanding of course, this is not -- was not made an issue of the case.

But my understanding is that among the Boilermakers that it is not uncommon for a business agent to be punched.

Now, of course to us this is shocking, because we don’t carry on business in that way, but --

Justice Thurgood Marshall: Nobody asks you to take judicial notice of that.

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

But, nonetheless, the members could’ve taken if they found them guilty only on the Article XII and it were up to the members to decide the punishment, they could have found -- decided a punishment that would’ve been consistent with the offense in the context of the way they carry it on business.

But having found him guilty under XIII (1), then they had no choice but to vote for expulsion because the men were expelled anyway by the virtue of the fact they were found guilty, the constitution demanded it.

Chief Justice Warren E. Burger: Did he ask for some sort of special verdict here?

Did he ask if they give him a Bill of Particulars in anyway?

Mr. Robert. E. Mcdonald, Jr.: No sir, but I do not think that’s of course, that wasn't an issue in the case either, but I don’t think --

Chief Justice Warren E. Burger: It might be if he didn’t ask for what you’re asking for now, that might have a lot to do whether he was entitled to it, or whether he waived it?

Mr. Robert. E. Mcdonald, Jr.: Well, sir that was not within the procedure of the union remedies.

Chief Justice Warren E. Burger: I think it stopped you from asking for it, because you’re asking for it now.

Justice Byron R. White: Well Mr. McDonald, I think you may have gotten it without asking for it, didn’t you?

On page 57 of the record in the letter to Mr. Hardeman, it said the only explanation for the expulsion penalty is Article XIII?

Mr. Robert. E. Mcdonald, Jr.: I did not notice that Mr. Justice White, but apparently it is.

Justice Byron R. White: Well, they certainly referred to it in the letter explaining what happened when his case was affirmed in the union.

They refer to the fact that there were two charges, but in -- and the fact that he was found guilty of the charges.

But then this says that Article XIII carries an expulsion record and so he’s expelled.

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Let me say this in regard to that standard of review.

The standard of review is set forth by Congress in Section 101 (a) (5) or Section -- or 29 U.S.C., 411 (5) (c) as requiring that the members had a full and fair hearing.

Now, all of the Circuit Court of Appeals and they admit this in their brief, have held that in order to have a full and fair hearing, there must be some evidence to support the charge.

Now we contended that in this particular case, there was not some evidence to support the charge.

And their brief --

Justice Hugo L. Black: Either one?

Mr. Robert. E. Mcdonald, Jr.: Sir?

Justice Hugo L. Black: Either one, either charges?

Mr. Robert. E. Mcdonald, Jr.: No sir.

Some evidence particularly as to Article XIII, Section 1, because that is a fair --

Justice Hugo L. Black: Which is -- which one?

Mr. Robert. E. Mcdonald, Jr.: The automatic expulsion.

Justice Hugo L. Black: I mean which is the charge there?

What’s the charge against him under that?

Mr. Robert. E. Mcdonald, Jr.: The charge is that he created dissention among the membership to create a division of funds.

It’s on page 63 of the appendix.

Chief Justice Warren E. Burger: Or work against the interest and harmony of the Brotherhood.

Mr. Robert. E. Mcdonald, Jr.: Of the International Brotherhood, yes sir.

Justice Hugo L. Black: If you permit me to say so, I frankly do not at all understand what you are offering as a defense.

As I understand, the charge was that one man came down from his office into a hallway or something, and another one assaulted him and beat him up, is that right?

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Justice Hugo L. Black: Are you defending on the ground that he didn’t assault him and beat him up?

Mr. Robert. E. Mcdonald, Jr.: No sir.

What you have stated, may I Mr. Justice Black, let me go further.

What you have stated was part of the charge.

That was the particular, really the evidence.

Justice Hugo L. Black: That was the central thing they charged against him, wasn’t it?

Mr. Robert. E. Mcdonald, Jr.: Yes sir, but in doing that, they said that this act itself is a violation of Section 13 (1) which carries with it an automatic expulsion.

Justice William J. Brennan: Well, why do you say it’s not a violation?

Why is not that conduct a violation of 13 (1)?

Mr. Robert. E. Mcdonald, Jr.: Because this was a personal thing between Mr. Hardeman and the business agent Mr. Justice Brennan.

It wasn’t a blow aimed at dissolving the union.Hardeman’s motivation was not to attack the union as an organizational structure.

Justice William J. Brennan: No but, Mr. McDonald, what it leads 13 (1) is any member who endeavors to create dissention among the members, stop right there, to beat up the business agent, that’s not an endeavored or could not be found to be an endeavored to create dissention among the members?

Mr. Robert. E. Mcdonald, Jr.: No sir, I submit its not, because I submit in interpreting this Section, you cannot stop right there, because --

Justice William J. Brennan: Well, may I go to the next one for a moment?

Mr. Robert. E. Mcdonald, Jr.: Sir?

Justice William J. Brennan: May I go up to the next point there?

“Or who works against the interest and harmony of the Brotherhood or of any district or subordinate lodge.”

To beat up the business manager or the subordinate lodge is not the work against the interest and harmony of that lodge?

Mr. Robert. E. Mcdonald, Jr.: No sir, because that is a personal thing and this prohibits an attack against the organization itself, the organizational structure.

Justice Byron R. White: And who’s the -- isn’t the top authority in the union the lodge itself?

Mr. Robert. E. Mcdonald, Jr.: Well the top authority --

Justice Byron R. White: Didn’t you appeal to the lodge?

Mr. Robert. E. Mcdonald, Jr.: No Mr. Justice White, the trial was in the lodge, the local lodge, and appeal went to the executive council of the International.

Justice Byron R. White: Well, everybody --

Mr. Robert. E. Mcdonald, Jr.: And then to the Executive President.

Justice Byron R. White: There were 61 votes in the lodge against 36 (2) -- who thought that this was a violation of Section 13, and the top appellate authority in construing the constitution within the lodge thought it was a violation of 13.

Mr. Robert. E. Mcdonald, Jr.: Mr. Justice White, I don’t --

Justice Byron R. White: Aren’t those actions worth some --

Mr. Robert. E. Mcdonald, Jr.: I don’t think that is the case.

As I recall, what was submitted to the lodge was not to determine.

They didn’t -- the lodge did not hear the evidence or review the transcript.

All that was submitted to the lodge was a motion that to the effect that --

Justice William J. Brennan: Well that Mr. McDonald is look at page 56 on exhibit 2.

Mr. Robert. E. Mcdonald, Jr.: Mr. Justice Brennan, pardon me sir, you’re in the appendix, page 56.

Justice William J. Brennan: The exhibit 2 has that at its heading to the left is a column 61-4 and 36 against, and the right to that party is guilty as charged, 61 to sustain 36 to reject.

Now what did they -- what was that vote taken on, on the basis of what record --

Mr. Robert. E. Mcdonald, Jr.: On the basis that at a meeting a motion was offered to the membership saying “We have found -- the trial board has heard the evidence, and having heard the evidence, they find him guilty.

We move that finding of the trial board be accepted.”

Now that was done at the local meeting without hearing the evidence or anything.

See, that was still on the local lodge level.

Justice Byron R. White: Without knowing anything -- you say nobody knew anything about it himself unless you get a 61 to 36 vote?

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

The only thing, Mr. Justice White, the only thing they knew about was discussion among around the hall.

The --

Justice William J. Brennan: Well, does the record show what was presented to the lodge when that vote was taken, or before that vote was taken?

Mr. Robert. E. Mcdonald, Jr.: Mr. Justice Brennan, I believe it does.

I think it shows that a motion was offered.

It certainly does not show that any evidence or any research of the transcript was taken, because what happened in this case was, the appeal was made to the executive council who held a trial de novo and retried the issues.

The executive council being appointed, the executive council of the international union, and then --

Justice Hugo L. Black: What did they hold?

Mr. Robert. E. Mcdonald, Jr.: They held the same thing as the guilty as charged in accepting the finding of the trial board.

Justice Hugo L. Black: Did that ended so far as they were concerned?

Mr. Robert. E. Mcdonald, Jr.: No sir.

Then, to further exhaust their remedies, they took an appeal to the international president of the union.

Justice Hugo L. Black: What did he do?

Mr. Robert. E. Mcdonald, Jr.: He examined the transcript of the executive council hearing and of the local lodge hearing.

Justice Hugo L. Black: What conclusion did he reach?

Mr. Robert. E. Mcdonald, Jr.: He reached the same conclusion not to disturb the finding.

Justice Hugo L. Black: Was that the end of it so far as the lodge was concerned?

Mr. Robert. E. Mcdonald, Jr.: That was the end of it as far as the whole union was concerned.

Justice Hugo L. Black: Why did he not attack that in court?

That proceeding rather than sue for damages, if his effort was to get back in the lodge and proved it --

Mr. Robert. E. Mcdonald, Jr.: The reason he did not --

Justice Hugo L. Black: -- was wrong, why not go to the court?

Mr. Robert. E. Mcdonald, Jr.: Well, the reason for it, Mr. Justice Black was because of a real solution.

This particular Boilermaker was in the construction trade and as he expressed it to get back into the union forcibly was no solution, because on construction jobs, it was not uncommon that accidents happen and people were hurt or killed.

And that this was a rough group and he feared that if they were forced to take him back that his days might be numbered.

Now further --

Justice Hugo L. Black: Well, he can work it back.

Mr. Robert. E. Mcdonald, Jr.: Sir?

Justice Hugo L. Black: He didn’t want to get back to him, well how can he get damages for not getting back?

Mr. Robert. E. Mcdonald, Jr.: He can get damages under Section 412.

Title 29, Section 412 of the Landrum-Griffin Act which says that any person who’s rights secured by the -- any provision of the chapter may bring a civil action, which is commonly construed to mean all the damages, or anything not criminal or admiralty there for such relief as maybe appropriate.

Now, --

Justice Hugo L. Black: Without going to court to see whether his expulsion was right or wrong?

Mr. Robert. E. Mcdonald, Jr.: Yes sir, that’s what the Act says.

Justice Hugo L. Black: Did this Court here try that question as to whether he’d been properly expelled?

Mr. Robert. E. Mcdonald, Jr.: No sir.

This --

Justice Hugo L. Black: That’s never been tried at all then, is it?

Mr. Robert. E. Mcdonald, Jr.: That is at issue in this case, because the whole heart of this damage suit is that the complaint says that we were improperly expelled because we did not have a full and fair hearing.

And therefore, we are seeking damages, the approximate damages.

Sir?

Justice Hugo L. Black: You can have a full one because you didn’t go and ask for judicial review, if you didn’t have it?

Mr. Robert. E. Mcdonald, Jr.: Well we had a --

Justice Hugo L. Black: I don’t understand how you could attack this expulsion without attacking it directly in court.

Mr. Robert. E. Mcdonald, Jr.: We did in this particular case.

Justice Hugo L. Black: Yes we did from another case, but you say you didn’t try it out in the court.

Mr. Robert. E. Mcdonald, Jr.: Yes sir we did, and I’m sorry I misunderstood you Justice Black.

Justice Hugo L. Black: To show that he was improperly expelled?

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Justice Hugo L. Black: Or did you just submit this technical argument you have about the two charges?

Mr. Robert. E. Mcdonald, Jr.: That, Mr. Justice Black, the two charges was the basis of our -- him being found guilty of a charge for which there was no evidence to support him, was the basis of our theory that our evidence in court that he did not -- was not given a full and fair hearing because he was at same position as a man on trial under two-count indictment and one count the evidence conformed into one count but not conformed to the other.

The jury came back in saying “We find him guilty as charged.”

Chief Justice Warren E. Burger: Well, then to pursue your analogy, I go back to what I suggested before.

What if in that criminal case he had only received the penalty for one of the two crimes, and the penalties were penalties which could be the same.

Then we -- don’t the courts constantly affirm convictions on the ground that they don’t need to reach the question, they don’t need to survive it?

Mr. Robert. E. Mcdonald, Jr.: No sir, because --

Chief Justice Warren E. Burger: I think you will look at the books, you’ll find they do with a great deal.

If he’s guilty of one, they don’t reach the other.

Mr. Robert. E. Mcdonald, Jr.: Well the point here Mr. Justice Burger is that if he’s guilty of one, you’re saying here is that he could get the same punishment under both charges.

But on the other hand too, he could get a lesser punishment under the charge if he weren’t found guilty of the charge for which there was no evidence.

Chief Justice Warren E. Burger: But here out of the Court of Appeals opinion, see if this is the heart of the case.

The Court of Appeals said “The District Court found as a matter of law that there was no evidence to support a finding of guilt under Article XIII of the constitution.

That’s the one that deals with endeavoring to create dissention or working against the interest of harmony.”

Now, if that -- if the Court of Appeals is wrong in saying there’s no evidence to support that then the case was wrongly decided, was it not?

Mr. Robert. E. Mcdonald, Jr.: That’s true, but the Court of Appeals reviewed all of the transcript and the evidence that was taken on this matter.

Justice Hugo L. Black: I don’t see how they could reach a conclusion myself or you may explain it to me.

And then what happened here in the alternate attack, beaten up and they go ahead and try him, how they can say that that did intend to create dissention among the brethren so to speak?

Mr. Robert. E. Mcdonald, Jr.: Well --

Justice Harry A. Blackmun: Mr. McDonald, let me add to this.

Mr. Robert. E. Mcdonald, Jr.: Yes Mr. Justice Blackmun.

Justice Harry A. Blackmun: And I think it brings us back to Justice White’s question.

Whose function is it to interpret Article XIII of the constitution?

You say it means what you have said it means.

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Justice Harry A. Blackmun: But whose function is it to interpret that?

Is it the union’s function?

Mr. Robert. E. Mcdonald, Jr.: It should be the plain meaning of the particular charge because included in Section 101 (a) (5) (b)is a requirement that the member be given specific charges.

Now, if Congress is going to demand that he be given specific charges, they ought to demand specific proof.

It would not be a fair hearing.

There are many things as to questions of full and fair hearing is a broad term.

But --

Justice Harry A. Blackmun: Well, it’s perfectly obvious that the members of the Court are disturbed about how you reached the result that beating up the business agent didn’t create dissention among the members, or work against the interest and harmony of the Brotherhood.

And you say it didn’t because it means something else.

I’m asking that who says it means something else?

Mr. Robert. E. Mcdonald, Jr.: Your Honor, I think Mr. Justice Blackmun, when you read the Article together in its context, it becomes obvious of course, maybe it doesn’t, but it becomes obvious to me and apparently to the justices who have reviewed this that this Article prohibits some attack against the organizational structure itself.

And that we’re not saying here that Hardeman should not have been disciplined.

Justice William J. Brennan: (Inaudible)

Mr. Robert. E. Mcdonald, Jr.: The court should decide within the plain meaning of the ordinary meaning of a particular Section.

Justice William J. Brennan: Well, this is the course, Mr. McDonald, whether the Court could have anything to do with what it means, whether or not its interpretation is entirely --

Mr. Robert. E. Mcdonald, Jr.: Your Honor, I think that Congress has issued a mandate that the Court do it, because Congress has said that no member shall be expelled without a full and fair hearing.

And in order to fulfill the wishes of Congress in 101 (a) (5) (c), you’ve got to --

Justice William J. Brennan: In your argument is that we have to -- the courts have to be here in saying what did 101 (a) (5) (b) when it says that must be before the court, and that you say that you didn't have any obligation of the court and obligation to interpret what is then by grace the section --

Mr. Robert. E. Mcdonald, Jr.: Yes sir.

Mr. Justice Brennan, let me say this in regard to that.

All of the Courts of Appeal and Mr. Sherman admits it in his brief, have ruled that in order to have a full and fair hearing, there must be some evidence to support the charge.

Justice William J. Brennan: Well, what’s the difference --

Mr. Robert. E. Mcdonald, Jr.: Now --

Justice William J. Brennan: -- that I’ve been talking about?

Mr. Robert. E. Mcdonald, Jr.: No sir because, I submit it’s not, because if you’re going to say “Look and see if there’s some evidence” we’ve got to interpret the charge to see if there’s some evidence, otherwise you’d be in the position of trying to decide an embezzlement case from the facts without looking to see the meaning of the embezzlement statute.

The argument -- the issue is the same two different sides of the same coin or looking through the same window from opposite sides.

Justice John M. Harlan: So if we don’t interpret this, anybody’s going to interpret it.

Is the NLRB better able to do it than a court?

Mr. Robert. E. Mcdonald, Jr.: No sir, Mr. Justice Harlan because the courts of course have more training in this type of thing.

The use of words in interpreting the meaning of words and because Congress gave the mandate to the courts in Title 29, Section 412 saying that “Any person who’s rights are infringed upon in this area shall have recourse in the Federal District Court.”

Which brings us to the second area, the preemption argument which I would like to say just a few things about.

In regard to the preemption issue which is the second issue that this comes into here.

We have to understand the reason for preemption is that what the courts have said in preemption is that Congress has carved out this area for the NLRB to operate in, and therefore, they kept the state courts from operating in that sphere.

Now, in this area, the preemption does not apply because Congress in 29412 says “He can bring a civil action for such relief as maybe appropriate.”

That in our complaint and our proof showed that the wrong was done and we say it as a proximate result of this wrong, this man lost wages for this time, and if proximate result is not appropriate relief, there can be no appropriate relief because that appropriate relief is a little looser than proximate result in damages and proximate cause or things of proximately caused.

Gentlemen, I -- this is an important case.

I don’t have to tell you that, I wouldn’t be here.

Hardeman is a man -- his problems are held by every member of the labor movement in this country.

And the whole purpose of our labor law is to protect the individual rights and the individual working man.

And this decision, this case, as long as it stands, will protect every working individual in the United States from such wrongful expulsion as Hardeman suffered.

And I think it’s necessary, it’s a good decision and on behalf of Mr. Hardeman, my client and on behalf of the members of the labor union in this country, I hope you’ll affirm the decision with a strong opinion to protect them in the future.

Justice Harry A. Blackmun: Mr. McDonald, I have one last detail.

Do you feel that entering in to the amount of this verdict was anything having to do with the hiring hall practices?

Mr. Robert. E. Mcdonald, Jr.: No, Mr. Justice Blackmun, I don’t.

What we did, we presented the evidence here showing that Hardeman showed his income tax returns that he made so much before his expulsion, and then afterwards, we showed that he could not get job -- get work as a Boilermaker, or even though he made every effort to.

And then we showed his income tax return showing the earnings he made for several years after the expulsion.

And that difference then showed, he was a man who was 43 years of age, who had spent his life acquiring a trade as, which is a technical trade, just like my trade of practicing law is something I acquired, and then all of a sudden it was taken away from me.

And what could he do at 43, go out and he wasn’t able to adapt to find something of equal value to him.

Justice Harry A. Blackmun: Are you conceding then that anything having to do with the hiring hall aspect is clearly for the board?

Mr. Robert. E. Mcdonald, Jr.: Sir?

Justice Harry A. Blackmun: I take it you are saying that there is no element of damage in this result that is attributable to the hiring hall phase of this controversy, and what was done in the hiring hall?

Mr. Robert. E. Mcdonald, Jr.: No sir, it was the damage just were --

Justice Harry A. Blackmun: This is what I understood, you just now to say, and I merely asking as a corollary to that whether you are conceding that anything having to do with the hiring hall is for the labor board and not for the court.

Mr. Robert. E. Mcdonald, Jr.: No Your Honor, I’m not because we’re relying on the Act for giving jurisdiction to the court.

Thank you very much gentlemen.

Chief Justice Warren E. Burger: Thank you Mr. McDonald.

Do you have anything further Mr. Sherman?

Rebuttal of Louis Sherman

Mr. Louis Sherman: Yes, one small point and that is to call the attention of the Court to defendant’s exhibit number 3 at page 61, which is the out of work card of the union.

You will notice that the rules for the administration to hiring all the set forth that called for re-registration each month, there was one entry on March 08, 1961 where he’s apprising out for a job where he was lasted for five days.

He made another entry on April ’61 and the issue really was whether his name continued on the list as a legal matter because it had been on once, or the union rule prevailed that if he didn’t re-register each month, which is normally accepted rule of the board, that he was eligible for further referrals.

Chief Justice Warren E. Burger: Thank you Mr. Sherman.

Thank you Mr. McDonald.

The case is submitted.