Local No. 207, International Association of Bridge, Structural and Ornamental Iron Workers Union v. Perko

PETITIONER:Local No. 207, International Association of Bridge, Structural and Ornamental Iron Workers Union
RESPONDENT:Perko
LOCATION:School District 187

DOCKET NO.: 482
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 701 (1963)
ARGUED: Apr 23, 1963 / Apr 24, 1963
DECIDED: Jun 03, 1963

Facts of the case

Question

  • Oral Argument – April 23, 1963
  • Audio Transcription for Oral Argument – April 23, 1963 in Local No. 207, International Association of Bridge, Structural and Ornamental Iron Workers Union v. Perko

    Audio Transcription for Oral Argument – April 24, 1963 in Local No. 207, International Association of Bridge, Structural and Ornamental Iron Workers Union v. Perko

    Earl Warren:

    — 7, International Association of Bridge, Structural and Ornamental Iron Workers Union, et al., versus Jacob Perko.

    Mr. Feller, you may continue your argument.

    David E. Feller:

    Thank you, Your Honor, may it please the Court.

    At the conclusion of the argument yesterday, I think we had left only one point uncovered.

    That is the respondent’s argument not referred to in the courts below but presumably made there that the National Labor Relations Act doesn’t apply to the area involved in this case because the plaintiff is a supervisor.

    I would like to be brief and I think to brief this way of disposing that argument is to point out that it’s flatly contradicted by the record.

    It appears that a superintendent is a supervisor, I say it appears, although that question has not been decided, but the plaintiff sued not only for a loss of employment as a superintendent, but for the union’s action in preventing him from obtaining employment as a foreman, and a foreman on this record or a pusher is at least arguably and we think demonstrably an employee.

    He’s covered by the collective bargaining unit, he’s covered by the agreement, he is required to be a member of the union, he works with the men, he has — bears none of the indicia, normal indicia of a supervisor.

    [Inaudible]

    David E. Feller:

    In all that, if Your Honor please, I’ll move right on to that.

    Despite the fact that it’s clear that the jury and the Court of Appeals below and everybody consider this as a suit for loss of employment as a foreman as well as a superintendent.

    It is also clear that were this not so and to had this suit only for a loss of employment as a superintendent, we think it is clear that this is also in the area which Congress has regulated by the National Labor Relations Act.

    [Inaudible]

    David E. Feller:

    Well on the approach that supervisors are not excluded from the Act.

    They are excluded from the definition of employee for a specific reason.

    Congress decided and Senator Taft — this is Senator Taft’s view really that supervisors are to be identified with management.

    They’re a part of management.

    The employer can fire him or hire him without regard to union activity or anti-union activity and they’re to be identified with that.

    Now that doesn’t mean that Congress hasn’t made a decision about supervisors or regulated supervisors, but what it means is the Congress has said they are not to be given employee protection against employer action and indeed following that theory they went further.

    They said they are to be giving protection against union action because they are members of management.

    And in Section 8 (b) (1) (B) of the Act they made it an unfair labor practice for a union to restrain or coerce an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances.

    And as we quote Senator Taft in our brief, he said, the purpose of this was to say is to prevent a union, and I quote here from the legislative history of the Act, to prevent a union from quote, saying to the employer, “You have to fire Foreman Jones, we do not like Foreman Jones and therefore you have to fire him or we will not go to work.”

    That was the purpose of 8 (b) (1) (B).

    Now, in other words, Congress regulated the whole area of union action affecting the employment rights of both employees and supervisors, but it regulated them differently.

    I wonder whether you discuss it a little more of particularity what bearing you think Gonzales had?

    David E. Feller:

    Well, we think Gonzales has no bearing because we think that Gonzales is a case, Your Honor, which rested on the proposition as it was stated in the opinion.

    That it was a suit concededly within state court jurisdiction —

    Because it was —

    David E. Feller:

    — to redress the contractual right of a member to remain a member of the union.

    Damages or loss of employment rights were admitted to be within the power of the state in that case because the court did not want to separate a unitary remedy.

    David E. Feller:

    It seemed to be conceded in Gonzales that a suit based on union action to deprive the member of his employment would be preempted that a suit to deprive him of his rights as a member of the union, and indeed Section 8 (a) (3) of the Act, which Your Honors had an opportunity to consider this last week, intended to separate the whole Act, membership rights from employment rights.

    And what the Court said as we have one thing which is exclusively federal, one thing — area in which the state can act and they said as a kind of pendent jurisdiction we will allow the state to give the remedy in the federal area because it is part of a lawsuit which the state clearly has jurisdiction of.

    And in the first appeal in this case, the Supreme Court of Ohio took out the state area of action here.

    So we have — the best argument is we have pendent jurisdiction with nothing to pend to.

    What it — what it comes down to it is if you draw your com — frame your complaint with tort why this preemption as you frame it in the contract is not preemption?

    David E. Feller:

    Well, there are those including the AFL-CIO who argued that that is what it comes down to and therefore Gonzales is wrong.

    We’re not compelled to come to that conclusion.

    You’re not asking as to overrule Gonzales?

    David E. Feller:

    No, Your Honor.

    I — you asked my opinion, I think the case is wrong, but I’m not compelled to argue it here and I don’t want to use the little time I have to argue a question that’s not necessary to the disposition of this case.

    William J. Brennan, Jr.:

    [Inaudible]

    David E. Feller:

    Well, I think that it is at least arguable, (a) that if he is a supervisor, it was an unfair labor practice for the union to do what it did here, and for the one reason I gave and for another reason there are cases cited in our brief in which the Board has held it is an unfair labor practice for an employer to fire a supervisor because the effect of that firing under those circumstances will have to encourage or discourage employees in membership of the union.

    I don’t want to go in that detail.

    That’s the second reason why it was arguably an unfair labor practice.

    And the third string, if I may barrow from Mr. Warren yesterday, the third string is that even if there were no argument as to whether if he were a supervisor there’d be an unfair labor practice, it is at least arguable whether he is a supervisor here and relies underneath the case. And that I think three strings, three arrows are enough to dispose of that argument.

    And so I like to conclude and save a minute or two for rebuttal if I may?

    Earl Warren:

    You may.

    David E. Feller:

    We find that just a concluding word that this case involves an area of activity, union activity dealing with employment, not membership which Congress has regulated, and having regulated we do not think that the states are free to judge whether the conduct is proper or improper and assess damages on a common law conspiracy doctrine.

    Earl Warren:

    Mr. Goldberg.

    Martin S. Goldberg:

    Mr. Chief Justice, Honorable Court.

    This situation in my way of thinking is comparable to a wrestling match when one of the opponent strikes the other one below the belt and when the referee looks at him, he said, “I didn’t do a thing” and that’s just what happened in our trial court.

    The union denied doing anything.

    They didn’t present any evidence that the activity that they participated in was a protected concerted activity.

    They pled a defensive concerted activity, but they didn’t bring any evidence in at all.

    Now, it strikes me that in order for there to be an unfair labor practice, there must be a coercion or intimidation of rights that are protected under the Act.

    29 U.S. Code Section 152 specifically exempts supervisors from the operation of the Act.

    The Act deals with employees and supervisors are not employees according to the plain simple language of the Act.

    And I feel that because of his being exempted from the Act, they must show that this was a protected, concerted activity.

    Now, the record clearly shows they — the record clearly shows that they had no right under their own constitution to take away Mr. Perko’s foreman’s rights.

    He needed his foreman’s rights in order to act as a superintendent and he was a superintendent, the record is clear as to that on that day that the trouble started with his own union.

    Martin S. Goldberg:

    There’s no question about his being a superintendent supervising the different crafts that work under five different crafts.

    Now, if they violated their own constitution, Section 45 of their own constitution that they had no right to deprive him of his foreman’s rights.

    They say we didn’t do it and yet the evidence and the facts the jury found that they did do it because he couldn’t give orders to his men.

    That can’t be deemed as a type of activity that would encourage membership if they violate their own constitution.

    Earl Warren:

    Mr. Goldberg, may I ask if why — why was it essential for him to be a foreman — have his foreman’s rights to be a superintendent?

    Martin S. Goldberg:

    Why sir?

    Earl Warren:

    Yes, I —

    Martin S. Goldberg:

    The —

    Earl Warren:

    It’s just because I don’t know that I ask you of —

    Martin S. Goldberg:

    Your Honor, Mr. Perko operated under the orders of his company.

    Earl Warren:

    Yes.

    Martin S. Goldberg:

    He was directed to assign certain types of work to certain crafts.

    Earl Warren:

    Yes.

    Martin S. Goldberg:

    In other words, a boilermaker’s craft would participate in certain activity, the iron workers and others.

    Acting pursuant to the general company direction, he assigned each craft to its different job.

    The structural iron workers filed a complaint after the matter have been arbitrated by a joint labor management arbitration committee and resolved in favor of the company.

    The iron workers decided that they were going to file charges against Mr. Perko and it’s very interesting to note that these charges were filed, prepared and filed against him on December the 4th that accused him of committing acts that happened on December the 6th, claiming that he was assisting the boilermakers.

    That was the basis —

    Earl Warren:

    Yes.

    Martin S. Goldberg:

    — of their — having a union trial and fining him.

    Earl Warren:

    Yes.

    But I understood that but I — I understood you to say a moment ago that it was essential for him to have his rights as a foreman in order to serve as a superintendent and that — that’s the thing that’s not clear in my mind.

    Martin S. Goldberg:

    Well I —

    Earl Warren:

    Why is that?

    Martin S. Goldberg:

    In order — I’m sorry, in order to function as a superintendent, he would of necessity have to give orders to the foreman of the various crafts.

    Earl Warren:

    But, but —

    Martin S. Goldberg:

    Now, that’s, that’s set out in the record.

    Earl Warren:

    I know but does he have to be a member of all those unions?

    Martin S. Goldberg:

    No, he does not.

    He does not.

    Earl Warren:

    Well then why — why does he have to be part as union member?

    Martin S. Goldberg:

    He happened to be a member of the Structural Iron Workers Union.

    Earl Warren:

    I beg your pardon?

    Martin S. Goldberg:

    He happened to be a member of the Structural Iron Workers Union —

    Earl Warren:

    Yes.

    Martin S. Goldberg:

    And a foreman would not take orders from him unless he had a member’s card.

    It boiled down to that in actual practice.

    They say, “No, he didn’t have to be a member, “but an actual practice as a practical matter he had to have that foreman, that ability to give orders to the iron workers and they wouldn’t take order unless he was a card carrying member.

    Earl Warren:

    Well, as a — as a superintendent or as a — as a foreman?

    Martin S. Goldberg:

    In either case.

    Earl Warren:

    Well he did — did he have to have to be a member of the Boilermakers Union?

    [Inaudible]

    Martin S. Goldberg:

    No, he did not, Your Honor.

    No, he did not.

    Earl Warren:

    What is the distinction between the two?

    Martin S. Goldberg:

    I don’t know.

    I know this that as a practical matter, the iron workers wouldn’t take orders from Mr. Perko or their foreman wouldn’t and the men wouldn’t even when he was a member of the union.

    And they — they claim that they had no right to take away his foreman’s rights under their own constitution.

    And yet they’re coming in here to this Court now at this stage and saying, “Well we did it but it was protected.”

    And I don’t think it was the intention of Congress to protect or immunize unions from unlawful conduct.

    I think the intention of the Taft-Hartley Act was clearly to proscribe some of their activity.

    Earl Warren:

    Yes, but I think you’ve answered my question —

    Martin S. Goldberg:

    Oh —

    Earl Warren:

    Mr. Goldberg.

    Martin S. Goldberg:

    I think that the legislative intent of Congress in the — in the Taft-Hartley Act was to impose some restraints on union activity.

    I don’t feel that it was all inclusive and I think that this is borne out by the subsequent passing of the Landrum-Griffith Act which clearly spelled out the right of a member to protect — to protect his rights.

    There might have been an area where there was some doubt as to whether or not Congress intended to permit the states to assume jurisdiction in these types of cases, but I think Landrum-Griffith Act pretty clearly gives a member the right to protect what he — well his property rights.

    And I think that in this — summarizing it in a more or less an outlined form in this particular case where a man is a superintendent, the record shows it clearly, exempted from the operation of the Act, where he has no protective rights under the Act that to deprive him of his right, his property right to seek employment at his own will, that he’s capable of performing, to deprive him of that right by saying that Congress implied that the state courts would’ve been preempted in this type of field without spelling it out is to deprive him of due process.

    I think he has a right to pro — or he has — he should have a right to go to court to protect this valuable property rights and by taking them away by the — not giving him a forum in which to have the evidence heard failure, he’s being deprived of a valuable property right.

    William J. Brennan, Jr.:

    [Inaudible]

    Martin S. Goldberg:

    Yes.

    William J. Brennan, Jr.:

    [Inaudible]

    Martin S. Goldberg:

    Mr. Justice Brennan, I don’t think that the Board has the power to order that union to give him back his foreman’s rights.

    William J. Brennan, Jr.:

    [Inaudible]

    Martin S. Goldberg:

    That’s a matter of dispute between him and his own union.

    William J. Brennan, Jr.:

    [Inaudible]

    Martin S. Goldberg:

    Oh, I feel that —

    William J. Brennan, Jr.:

    [Inaudible]

    Martin S. Goldberg:

    I am suggesting it strong very strongly — very strenuously, he didn’t have any other remedy but in the state court and I feel that —

    William J. Brennan, Jr.:

    [Inaudible]

    Martin S. Goldberg:

    Your Honor, as I said before, I think to be an unfair labor practice, he would have to have a right that he’s protected under the Act, and as a superintendent he — or supervisor he doesn’t.

    William J. Brennan, Jr.:

    [Inaudible]

    Martin S. Goldberg:

    Well, I’m saying this that the only area where there could be discrimination, where a supervisor is fired is if the employer fires him with the intention of coercing union in acquire — coming into a plant or encouraging or discouraging membership.

    But I don’t feel that by an activity that was started by the union, more or less compelling the employer to let him go that they can come in here and claim that what they were trying to do is to encourage membership.

    They violated their own constitution in doing it.

    There was no dispute between management and the union.

    This was not a matter relating to the collective bargaining agreement.

    I think it’s clearly outside the scope of Taft-Hartley Act.

    I think that it is a matter for a state court jurisdiction.

    I don’t think the Taft-Hartley Act, there’s any conflict with national policy or any conflict with the purposes and the spirit of the Taft-Hartley Act at all.

    I think the preemption of — should apply if there’s — if there is conflict but I can’t see where there is any conflict in affording this man a form to protect a valuable property right.

    And I think that the doubt has been resolved by the Landrum-Griffith Act, 29 U.S. Code Section 523, preserving the rights of members in the state courts and federal courts.

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    Well, no.

    We would —

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    No, no your — Mr. Justice White, we would not because he has separate damages during this years that he’s been unable to get employment in the capacity that he’s qualified for.

    And that after all the record shows that he worked exclusively for the Pollock Company that at the time this happening, he was making between $11,000 and $12,000 a year as a supervisor.

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    Damages for the loss of it —

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    Yes, Your Honor.

    Well, I say that there’s more to it than just back pay, Your Honor.

    I feel that there’s an element of damage that he has lost certain valuable property right as a member of the union that the Board is powerless to give him.

    The Board can tell the company, you take this man back but if the man continues to refuse to take orders from them, the Board can’t do anything.

    This is of — this clearly in the record shows that it’s a dispute between a man and his union. The Taft-Hartley Act states specifically that nothing under Section 8 (a), nothing should — and herein provided shall affect the right of a union.

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    Well, Your Honor, I say that it can’t be an unfair labor practice since it doesn’t cover rights that are protected under the Act.

    What the activity covered I think would fall under Section 303 of the Taft-Hartley Act which deals with secondary boycotts which would give Mr. Perko a right as a person that they caused his company that he is doing business with to go into the court and enforce his rights, but under Section 8 (b) (4) I don’t think he’s covered.

    Hugo L. Black:

    You say that it would not be an unfair labor practice for a union, out of knowledge or legal knowledge or whatever you want to call it, a person to lose his job as a foreman on the ground that they didn’t want to work with him?

    Martin S. Goldberg:

    That is correct, Your Honor.

    If that man is a supervisor, he is not an employee and the unfair labor practices —

    Hugo L. Black:

    Whether he — whether he’s an employee or not, I’m talking now about the activity of the union in bringing about a man’s discharged wrongfully.

    Martin S. Goldberg:

    I say it is not —

    Hugo L. Black:

    What if he was not a member of the union, but a vice president of the company?

    Martin S. Goldberg:

    Yes.

    Hugo L. Black:

    Suppose they got mad at the vice president of the company and decided they wanted to him to lose his job and they proceeded and say they wouldn’t work under him.

    Would that be or would it not be an unfair labor practice?

    Martin S. Goldberg:

    Mr. Justice Black, I feel —

    Hugo L. Black:

    I don’t know, I’m asking you for your answer.

    Martin S. Goldberg:

    Yes, sir and my thinking on that is that it comes under the secondary boycott provision which would be Section 303, 29 U.S. Code 187 which would be an interference by a union with the relationship between a — say an employer and someone he’s doing business with.

    I feel that that Section of the Act would apply and that Section of the Act clearly gives a man that he is injured that way the right to go into a federal court and obtain relief.

    Hugo L. Black:

    Is that what you’re suing under here?

    Martin S. Goldberg:

    Sir?

    Hugo L. Black:

    Is that what you are suing under?

    Martin S. Goldberg:

    Well no, we’re not.

    We’re suing under the state — under our state common law, a higher state common law, a wrongful interference with employment which caused Mr. Perko to —

    Hugo L. Black:

    Now suppose the union does wrongfully interfere with the employee even though he’s not employee in the technical union of the Act, you still say that the Board would have no jurisdiction to anything about it?

    Martin S. Goldberg:

    Yes, I do.

    I think that —

    Hugo L. Black:

    And if you maybe right, I’m just trying —

    Martin S. Goldberg:

    Yes, I do, Mr. Justice Black.

    I feel again that this is outside the periphery of the Act.

    That the Act wasn’t intended to regulate act — the rights of the union to discipline their own members and when they go beyond their own constitution and they engage and arbitrary conduct that’s against the law, I feel that the Board is powerless to remedy it and that the only forum where he can get relief is in the state courts.

    Hugo L. Black:

    Suppose you are wrong on that and the Board does have power, what would be your position [Inaudible]

    Martin S. Goldberg:

    Then I’d say it’s a concurrent remedy that it wouldn’t — there would be no conflict between the Board and the state court.

    I feel that in that case, we could have dual remedies where the rights could be enforced in either form.

    I think that preemption applies only where there’s conflict.

    Hugo L. Black:

    Suppose they decided differently. One decided they’ve done it wrongful and one decided they haven’t.

    Martin S. Goldberg:

    Well then you have a conflict but I don’t think that would —

    Hugo L. Black:

    But it would certainly have a potential conflict whether they actually mix those contradictory decisions or not.

    That is assuming, I’m not saying that that’s the case here —

    Martin S. Goldberg:

    Well —

    Hugo L. Black:

    — but assuming as I asked you the question that the Board does have power, jurisdiction and remedies at some way, you have to have a potential conflict if you allowed a suit to be filed in the state, do you not?

    Martin S. Goldberg:

    Mr. Justice Black, the only way I could feel the Board could possibly assume jurisdiction or rule on the matter would be to say that this is a protected activity of the union, but how can it be a protected activity of the union when —

    Hugo L. Black:

    We have cited it once for the protected activity of the union.

    Martin S. Goldberg:

    Then on what basis could they possibly assume jurisdiction?

    I mean, I don’t know.

    Hugo L. Black:

    Well suppose, suppose they realize the evidence that we had argued with the meaning of what the language you used, suppose they held that the union was committing a wrong which the Board had power to redress and then would you say that the state remedy was concurrent?

    Martin S. Goldberg:

    Your Honor, I would say that the Board would be going contrary to the language of the Act.

    Hugo L. Black:

    Well then — then you would say they don’t have the — that gets back to the question where they have the power?

    Martin S. Goldberg:

    Yes, that’s correct and I maintain that they do not have the power and I maintain that unions have matured in age and size but I don’t feel that they’ve quite yet matured in responsibility for some of their activities and that the courts are the proper forum to insist that they do assume their responsibility for their activity.

    Hugo L. Black:

    You made one statement.

    You said that you couldn’t get all the damages even if the Board had the right but you wouldn’t get all the damages [Inaudible]

    Martin S. Goldberg:

    That is correct.

    Hugo L. Black:

    — merely because they paid him his back pay.

    Why do you say that?

    Martin S. Goldberg:

    Well, Your Honor, as an element of damage, I think there’s mental suffering that goes in with the inability to work in a craft that you’ve worked in and I think that there are certain union rights that the Board and no power to grant Mr. Perko that the union still would refuse to give him —

    Hugo L. Black:

    Suppose Congress had decided, assuming now contrary —

    Martin S. Goldberg:

    Yes.

    Hugo L. Black:

    — to your view point, it had decided that the Board did have jurisdiction to give a remedy and give damages and it had reached the conclusion that the only damage that should be allowed would be the back pay, what would be your answer to that?

    Martin S. Goldberg:

    We’d had — we’d be stuck with it.

    Hugo L. Black:

    Stuck with it?

    Martin S. Goldberg:

    Yes, sir.

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    That would be about all we could ask for, Mr. Justice White.

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    We’re not asking for reinstatement, Mr. Justice White.

    Our client is 76 years old.

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    No, no sir, none at this time.

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    Well, no, sir.

    We’re act — we’re —

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    Mr. Perko’s on — at this stage of the game would not be working at —

    Byron R. White:

    But he totally had [Inaudible]

    Martin S. Goldberg:

    That’s right for a completed tort —

    Byron R. White:

    [Inaudible]

    Martin S. Goldberg:

    No, it doesn’t.

    Earl Warren:

    Mr. —

    Martin S. Goldberg:

    I want to thank the Court for their indulgence.

    This has been my first time hearing that.

    Earl Warren:

    Very well.

    Mr. Feller.

    David E. Feller:

    Well, the two answers to that question, the Board has held that under the circumstances in which it finds an unfair labor practice for discharging the foreman and we cite the cases on page 3 of our reply brief, they can order the foreman reinstated with back pay.

    William J. Brennan, Jr.:

    That is for the employer?

    David E. Feller:

    That is correct.

    Now those are not exactly these case —

    William J. Brennan, Jr.:

    [Inaudible]

    David E. Feller:

    I assume that if a charge was filed under 8 (b) (1) (B) and these cases which I’ve cited are not 8 (b) (1) (B) cases.

    They are 8 (a) (1) cases in which an employer was found guilty of coercing his employees by discharging a supervisor.

    William J. Brennan, Jr.:

    Who filed the charge?

    David E. Feller:

    In those cases I assume — I don’t know who filed the charge.

    It doesn’t matter, anybody can file a charge with the Labor Board and the Labor Board then gives relief to those they find have been injured by the unfair labor practice.

    William J. Brennan, Jr.:

    [Inaudible] it’s your position that Mr. Perko has filed a charge either jointly against the employer and the union or against either or —

    David E. Feller:

    Well, that he could file a charge jointly against the employer and the union or against the union or against the employer if he so desire.

    William J. Brennan, Jr.:

    Now what —

    David E. Feller:

    But I don’t think it even makes a difference whether he could or not.

    In other words, I say first that he could and he could get back pay and second of all I don’t think it makes any difference if he couldn’t.

    William J. Brennan, Jr.:

    Why not?

    David E. Feller:

    Because I think this Court said in Garmon, relying on Guss where it was perfectly clear nobody could file a charge.

    Indeed, that’s where the problem arose in Guss because the Board refused to exercise jurisdiction.

    What this Court said if this is an area which Congress has regulated —

    William J. Brennan, Jr.:

    They may have [Inaudible]

    David E. Feller:

    Well, Congress gave the Board the power to regulate in this area.

    And indeed, Mr. Justice Frankfurter in the Garmon case had to explain the ways of some language in Labernum and said that we recognize that in Labernum that opinion found support in the fact that the state remedy had no federal counterpart, that’s what we’re asking here.

    Does the state remedy have a federal counterpart and he explains that that wasn’t really the basis of the decision.

    The decision was determined on the basis of violence as an exception to the normal preemption rules.

    In other words, you cannot find an exact concordance of remedies.

    The question is has Congress decided to regulate this kind of activity in this area and if it has, if Congress has provided a remedy that’s well and good.

    And Congress may have not provided a remedy but you cannot interstitially stick in state court jurisdiction on a completely different theory because in a particular case you find no remedy.

    William J. Brennan, Jr.:

    in your position is that the preemption even though, in fact, Mr. Perko [Inaudible]

    David E. Feller:

    That’s right.

    And our position also is that he has a remedy, it’s a superfluous argument.

    Byron R. White:

    [Inaudible]

    David E. Feller:

    Well, I think it’s true that a supervisor fired because he’s a member of a union would take that simple case, Congress decided that employers could fire supervisors because they were members of the union and I think that’s the answer to it, if I may just take one more minute –

    Byron R. White:

    [Inaudible]

    David E. Feller:

    Well —

    Byron R. White:

    [Inaudible]

    David E. Feller:

    No, the Board could not do that for him.

    That was Gonzales and I think that in answer to your question, Your Honor, I think I have to correct the record or at least correct the argument, in this case of Mr. Goldberg has apparently put it back in the case.

    I direct Your Honors attention to page 168 of the record which he said, “Members of the jury, I charge you as a matter of law that the trial of Jacob Perko by the executive order of the defendant union was an exercise of the lawful right of the executive order of the defendant union”.

    The findings and penalty of the local union as modified by the — cannot be questioned to this Court in this proceeding.

    So he cannot justify the judgment he got on the basis that he’s trying to rectify the union proceeding against Perko because that is out of the case by instruction of the trial court.

    Thank you.