Machinists v. Gonzales

PETITIONER:Machinists
RESPONDENT:Gonzales
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 31
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: State appellate court

CITATION: 356 US 617 (1958)
ARGUED: Dec 12, 1957
DECIDED: May 26, 1958

Facts of the case

Question

  • Oral Argument – December 12, 1957 (Part 1)
  • Audio Transcription for Oral Argument – December 12, 1957 (Part 1) in Machinists v. Gonzales

    Audio Transcription for Oral Argument – December 12, 1957 (Part 2) in Machinists v. Gonzales

    Lloyd E. McMurray:

    I was saying that I would like (Inaudible) first and that — in that regard, the first thing that I say demonstrates that there was no — that’s — what’s not within the area in which the Board can act as a fact that the activity regulated by the state-court judgment was not the same as that with which the Board would be concerned.

    The second ground and serve a corollary of that is this, I do not believe that the Congress intended by the passage of the — of the Wagner Act and the Taft-Hartley Act to take complete control of absolutely every aspect of the activities of man in which an unfair labor practice might be involved in some way.

    And I have put to my learned opponents this hypothetical question which they have not answered.Let us suppose that an employer wants to get rid of a — of a man because he’s a good union member and so he fires him, but he says to the other employees in the plant that he fired him because he stole money or goods.

    Now, the real purpose of the employer, the real intent, and I think this Court has held that content is very important, is to get rid of the strong union man.

    But, in so doing, he commits an unfair labor practice but also he commits a — an active defamation which is a tort under the law of most States, not all, would be employee who was fired, be unable to sue in the state court for damages, for defamation in that situation, I say that I — I’ve seen no cases on this, at all, but I don’t believe that the Labor Act should be so broadly construed as to exclude from the state courts such tort jurisdiction as that.

    I don’t believe that any of the evils of conflict between the federal control of labor matters, and state control would flow from allowing such an action.

    And I would move on then to the third reason why I think this was within the State’s jurisdiction.

    An award of damages was made here and this is one of the — this is the thing that — that brought the case up here, not the fact that — that Gonzales was ordered reinstated to the union but the fact that damages were awarded.

    Does that indicate that the — that this should be before the Board and not in the courts?

    I say under the decisions of this Court, no, it should not.

    The fact that damages were awarded does not mean that the Board had exclusive jurisdiction.

    And I would point to your recent decision in — in San Diego Building Trades Council against Garmon in which the Court there admittedly dealing with an unfair labor practice, one which the National Labor Relations Board refused to exercise its jurisdiction on and under the idea that it must follow the federal law, the California court awarded damages as well as injunction and this Court, while holding that the power to enjoin was exclusively federal, that is that the — the Court, the state court had no power to issue the injunction, did not reverse as to the award of damages but merely vacated the judgment and said that it wasn’t sure.

    This Court wasn’t sure what the California court meant.

    Apparently, the California court might mean that under its law, an award of damages would be proper in such a situation.

    And if that was so, this Court, it seems to me, intimated that the California court should make that clear and then could — could properly award the damages.

    And that’s the final reason why I think this is within the power of the state court is because the state court was the only tribunal which could afford complete relief.

    I don’t think it’s necessary to dwell on the policy reason for favoring a tribunal which can afford complete relief.

    I think this Court has recognized the appropriateness of allowing power to remain in a court which can dispose of the entire controversy in two recent cases.

    One of them is Syres against the Oil Workers Union and more recently in Conley against Gibson where this Court noted that only there was a — some flavor of a labor dispute about the case that if I may quote from the words of Mr. Justice Black for the Court.

    “This case involves no dispute between employee and employer but to the contrary is a suit by employees against the bargaining agent to enforce their statutory right not to be unfairly discriminated against by it in bargaining.

    The Adjustment Board has no power to protect them from such discrimination.

    Furthermore, the contract between the Brotherhood and the Railroad will be, at most, only incidentally involved in resolving this controversy between petitioners and their bargaining agent.

    In those two cases, the Syres case and this case although some relief was available before the National Labor Relations Board, this Court said that a District Court, Federal District Court have jurisdiction to issue an injunction and to give relief without requiring the workers to go before the Board to obtain what relief the Board could give them.

    If I may now, I should like to state why I say that the record in this case does not clearly show any unfair labor practice.

    I think that it boils down to this that the statute requires whether to be unfair labor practice that the union must have caused the employer to discriminate against the employee.

    And while it is true that this does not, under the decided cases, mean that you have to show that the union wrote a letter or went and talked to the employer and demanded that he not hire the employee, some evidence of that causal relationship must be given.

    And, of course, it would be very simple, it would have been very simple for the — for the petitioners in this case to do that if there had been such evidence available.

    They could have called a union official or they could have called a — an employer.

    They could have established without any difficulty, whatever, that the union was the one who caused the discrimination, if there was discrimination.

    But the — was the theory of the union, the petitioner here, at the trial level that there was no causal relationship whatever, that the union was not in anyway responsible for Gonzales’ failure to obtain work and Mr. Kennedy, my learned opponent in the trial court stated to the Court a probable theory why Gonzales was unable — unable to obtain work.

    Lloyd E. McMurray:

    It’s set forth at my briefs page 61 of the record.

    The Court asked him, “Is there any question about the fact that if he had been a full-pledged member of the union according to your contention that he would have employment?

    And Mr. Kennedy said, “That’s what I was trying to raise as a matter here, Your Honor.

    The history will show that there may well have been and I can’t state one way or another that — one way or another that there may have been reasons why certain of these employers would not want to employ Mr. Gonzales.

    I’m not stating they did exist but for example in some of the employment that he had, he had the misfortune to become injured.”

    Now, conceivably that would be one of the grounds for refusing him employment.

    What — what we are doing here is we’re taking Mr. Gonzales’ version of a third party statement and the only purpose of it is to ascribe to that third party, the purpose that they had in not giving him employment.

    We don’t have that party here and I think that is the danger of this type of testimony so far as the respondents are concerned.

    This was the theory upon which the union tried the case.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    First of all, I think you’re assuming something that is — is not accurate.

    For — and for the first five months of the period with which we’re concerned, there was no collective bargaining agreement at all.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    There is no evidence of such in the record if it — if it — I don t know the answer.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes.

    In the record, there is no evidence of that.

    Nobody was concerned with that at the time you see, so no evidence of that was put in.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    There is nothing in the record which would support such an inference.

    The evidence in the record deals with how a member of the union obtained employment.

    It does not deal with the question of union membership as a prerequisite for —

    William J. Brennan, Jr.:

    Well, then what was —

    Lloyd E. McMurray:

    — employment.

    William J. Brennan, Jr.:

    What was (Inaudible)?

    Lloyd E. McMurray:

    That — that as a member of the union, the respondent would have been entitled to be dispatched from the hall.

    Other people who were not members of the union were also dispatched from the hall and other people obtained their employment directly from the employers.

    Now —

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes, that’s right.

    They — some of those then presented a — a letter to the union for union clearance —

    William J. Brennan, Jr.:

    Well, what — what was —

    Lloyd E. McMurray:

    But there’s —

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Because as one who was not a union member, he was not entitled to demand as of right, dispatched from the hiring hall.

    If there had been a — a hiring hall set up by agreement with the employers, he could have, but there’s no evidence if there was any such thing there.

    His only right to be dispatched from the union hall was — as a member of the union and his membership had been wrongly taken away from him.

    William J. Brennan, Jr.:

    Would that (Inaudible) to give him a lesser privilege of employment that he would have had (Inaudible)?

    Lloyd E. McMurray:

    I — I wouldn’t agree with the — went only so far as but it did go.

    It didn’t mean that.

    It also meant that he didn’t have the property, his — his interest in the property of the union that he didn’t have you know.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes.

    Well, there’s not only the lost wages claim.

    There is also the humiliation matter you see and — and Gonzales was a — was a member of the executive board.

    He was a member of the policy committee.

    He was a prominent active member of the trade union.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    And —

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    There was no agreement with the employer and no —

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes, not only there was no agreement with the employer but there is no evidence that whether it was by agreement or just by custom that this was the only way to obtain employment.

    In —

    Felix Frankfurter:

    Is there anything in the record — is there anything in the record to show that in fact this was operating what Mr. Justice Brandeis is calling and it is about preferential shop that in fact they prefer union people?

    Can we take judicial notice on this record that — that the practical consequences are that the employer wouldn’t hire somebody who wasn’t referred by the union?

    Lloyd E. McMurray:

    I do not believe so.

    I — I would — I would say absolutely not.

    Lloyd E. McMurray:

    That if you make a careful examination of this record, the type of examination that the Board says it must make in situations where there is no collective bargaining agreement, for example, in as they’ve said in the Salt River case where there’s no — where there’s no collective bargaining agreement then we have to look very carefully at the practices of the parties, they say.

    And there, although, they found that a trade union representative, a business agent had said to the employer that what the — the activity the employee was engaged in that the employer objected to was not the policy of the union and the union didn’t condone it and the union was going to take disciplinary action against a man who did this circulating a petition to commence an action under the Fair Labor Standards Act even though the union went so far as to do that.

    They said no, the Board said no, this didn’t cause the employer to discriminate.

    This wasn’t a cause of it.

    William J. Brennan, Jr.:

    (Inaudible) of what the record.

    How can employers would have to say (Inaudible)?

    Lloyd E. McMurray:

    It was a marine machinist.

    William J. Brennan, Jr.:

    Marine machinist.

    (Inaudible)

    Lloyd E. McMurray:

    Yes, it might.

    William J. Brennan, Jr.:

    And that would work?

    Lloyd E. McMurray:

    It — it did work that way.

    William J. Brennan, Jr.:

    It did work that way.

    Then I — I gather the — the union would (Inaudible) that order and ordinarily, the union (Inaudible)

    Lloyd E. McMurray:

    If they had them.

    If not, they’d send other men.

    William J. Brennan, Jr.:

    Yes.

    Well, that’s the (Inaudible)

    Lloyd E. McMurray:

    Yes.

    William J. Brennan, Jr.:

    And this — this would (Inaudible)

    Lloyd E. McMurray:

    Even — even if they weren’t able to show an order with union man.

    Well, I should say that the record does not really deal with that.

    There’s no evidence — let’s put it this way.

    The test — the evidence is the uncontradicted evidence is really that he was unable to obtain any employment after his expulsion, so —

    William J. Brennan, Jr.:

    And was that — was — that was because of — if he went to a higher (Inaudible) hoping to get a job, whether they had union members or not.

    Lloyd E. McMurray:

    They wouldn’t dispatch him.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    They would not dispatch him.

    The dispatcher testified.

    He was an expelled member.

    Lloyd E. McMurray:

    He couldn’t work.

    William J. Brennan, Jr.:

    He would in fact know anything.

    Lloyd E. McMurray:

    That’s right, even if he came in with a letter from an employer.

    William J. Brennan, Jr.:

    Is that a (Inaudible)?

    Lloyd E. McMurray:

    I would say that it is only if that was the only way in which he could obtain employment because if — if I operate a hiring hall and I send men out, I operate it like an employment agency and I send men out to employers who want jobs.

    And if you come around and ask me to send you out and I don’t do it, I haven’t committed any unfair labor practice unless —

    William J. Brennan, Jr.:

    (Inaudible)

    It is a charge, is it?

    Lloyd E. McMurray:

    Well —

    William J. Brennan, Jr.:

    Now, isn’t it — isn’t the time (Inaudible)?

    Lloyd E. McMurray:

    It would be a charge cognizable before the Board but one cannot tell from this record, whether or not there was actually an unfair labor practice because —

    William J. Brennan, Jr.:

    (Inaudible) whether it is the kind of thinking that this is the way (Inaudible).

    Lloyd E. McMurray:

    Yes.

    As a matter of fact, Gonzales went to the Board and filed such as a charge and they told him, “You go get a lawyer.”

    They — he did not press the matter any further before the Board.

    He did go and get a lawyer.

    But — certainly, it’s a case which could be considered by the Board.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    I don’t think so because you are concerned here as I understand it, Mr. Justice Brennan with deciding whether the state court has lost its jurisdiction or is without jurisdiction.

    The state court had to determine that question.

    It had two ways of determining it.

    First, by looking at the pleadings.

    Nothing was said about unfair labor practice there, except that it was claimed that equity couldn’t give any relief because he still had administrative remedy.

    And then it could look at the — at the evidence and the evidence didn’t deal with any unfair labor practice.

    That is, it didn’t deal with causing the employer to discriminate in anyway.

    There wasn’t a theory of the union at the trial and it wasn’t the theory of Gonzales, of course, at the trial.

    So, the state court as a practical matter had to decide whether it could give the relief which this litigant before it was requesting.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    I would put it differently.

    William J. Brennan, Jr.:

    This was the contract (Inaudible)

    Lloyd E. McMurray:

    It was.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes.

    William J. Brennan, Jr.:

    And I gather both (Inaudible).

    Lloyd E. McMurray:

    Yes.

    William J. Brennan, Jr.:

    — is the way you determine that.

    Lloyd E. McMurray:

    Yes.

    William J. Brennan, Jr.:

    (Inaudible) to any employer.

    Lloyd E. McMurray:

    Yes.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes.

    William J. Brennan, Jr.:

    (Inaudible)

    Lloyd E. McMurray:

    Yes, but as I see it, this Court does not have to decide.

    (Inaudible)

    Lloyd E. McMurray:

    Was there a remedy before the Board?

    This Court has to decide, should the state court have declined to hear this matter?

    William J. Brennan, Jr.:

    Even if there was a remedy.

    Lloyd E. McMurray:

    Even if there was a remedy before the Board because this — and — and when you look at what the state court felt it was dealing with, you find that the state court to seriously consider.Are we here treading on the toes of the Board?

    No, we’re not.

    We’re not concerned with the same thing.

    We’re not — we recognize the Board’s jurisdiction.

    If the — if the pleadings had disclosed an unfair labor practice question here, then — then there’s no doubt about what the California court would do under the rule of this case.

    It would —

    Felix Frankfurter:

    If the state court raised that question you’ve just stated we’re treading on federal law, sua sponte of its own accord or how is that — how did the state who have come to raise that question?

    Lloyd E. McMurray:

    It was raised by the petitioners here.

    Felix Frankfurter:

    Where?

    Lloyd E. McMurray:

    In the appellate court —

    Felix Frankfurter:

    And —

    Lloyd E. McMurray:

    — after the briefs had been filled, a file of supplemental brief raising this question for the first time.

    Felix Frankfurter:

    On — on the record that was made up, up to that time.

    Lloyd E. McMurray:

    On the record that has been made on a different theory.

    Felix Frankfurter:

    All right.

    You mean they imposed on — on a different theory.

    It was on the basis of the record that was before them, the same that is now before us.

    Lloyd E. McMurray:

    Exactly, exactly.

    Now I have one other thing I think that needs to be said.

    The — the petitioners here in their reply brief discussed very briefly a question which they reserved in the petition for certiorari whether or not there is an 8 (b) (1) offense here.

    And they — they seem to me to use the — the method of dichotomy when they should have used the method of trichotomy if there is such a thing.

    That is, they say that if the activity was not condemned, the activity in which they engaged and which was the cause of the complaint here.

    If that was not condemned by the Act, it must have been protected by the Act.

    And as I understand it, it’s well settled law that there is a third category of activity which is neither condemned nor protected.

    And that this activity, that is, expulsion of union members seems to me to be clearly within the third category of activity which is neither protected nor prohibited and from which the federal law has withdrawn its hands entirely.

    Expressly you would say.

    Lloyd E. McMurray:

    Expressly.

    Yes, under the proviso.

    Felix Frankfurter:

    The difficulty I have with — with part of your argument is that, if your court, if the Court of Appeals had stopped on page 127 of its opinion thus the question of unfair labor practice was not raised nor was any finding on the subject requested of or made by the Court and that going on saying therefore, we may consider it.

    It would have had one situation.

    But then they go on, that is the way of court and talk of the pages about something they say isn’t before of them, isn’t that right?

    Lloyd E. McMurray:

    Yes, they do.

    I think they do this pursuant to a rule.

    Felix Frankfurter:

    But I don’t care why they do it.

    I mean what if it wasn’t.

    What is significance is what it means for us and what is my concern.

    Lloyd E. McMurray:

    Oh, I think that what it — what it means to the — to — to people who are concerned with this, Your Honor, what it means to people who are — who are concerned with this questions is that when a man who’s been expelled from a trade union seeks a state remedy for that and the trade union involved does not in its answer to his complaint say, “Well, this is an unfair labor practice charge.

    This is a matter that should be before the Labor Board.”

    When it doesn’t do that and when it doesn’t put in any evidence, that it’s that kind of a case that the state court perforce must go ahead and hear the litigant who has come to it for aid and award the relief to which he establishes his right.

    And that the State is obligated to give this kind of — of relief when the existence of a federal — that is a Labor Board question is not raised.

    Felix Frankfurter:

    If that’s on the record, I’d have easier time with this case.

    Lloyd E. McMurray:

    I believe, Your Honor, that that is the record.

    Earl Warren:

    Mr. Kennedy.

    Eugene K. Kennedy:

    Mr. Chief Justice, Mr. Justices, if I may perhaps by way of answer to Mr. McMurray summarize perhaps a little more detailed background of this, I think it might focus the issues more sharply.

    The — this case started out with — in the trial court with Mr. McMurray’s opening statement which I would ask the Court liberty to read which commences on page 36 of the record.

    Referring to the respondent, Gonzales, Mr. McMurray or counsel states as the marine machinist his work is primarily repair work on vessels, ocean-going vessels that come into repair yards in the area.

    As a —

    Earl Warren:

    What page are you reading?

    Where are you reading from?

    Eugene K. Kennedy:

    Page 36, Mr. Chief Justice —

    Earl Warren:

    Of the transcript?

    Eugene K. Kennedy:

    — of the — of the transcript, sir.

    Earl Warren:

    All right.

    Well —

    Eugene K. Kennedy:

    And that’s across —

    Earl Warren:

    About the Marine Machinists, yes I have that.

    Eugene K. Kennedy:

    Approximately in the middle of —

    Earl Warren:

    Yes.

    Eugene K. Kennedy:

    — the page.

    Earl Warren:

    Yes, I know.

    Eugene K. Kennedy:

    And for — and that I will — if I may, I’d just eliminate that paragraph and go down to the March of 1952, which is a critical date in this case where he was no longer a member of good standing in the union.

    Since March of 1952, however, the plaintiff has been unable to obtain any work because every time he applies for a job, he is told to go to the hall to get a clearance.

    And when he goes to the local lodge hall, he is told that no clearance can be given until he pays the fine and apologizes to true acts and is reinstated as a member.

    Therefore, he is unable — he has been unable to support himself by his earnings from March of 1952 to the present date.

    The evidence deduced at the trial from respondent on two different occasions, I might say although I — I’m — this — these — this case was tried in December of 1952, I believe, and February of 1954 for reasons that aren’t pertinent in here.

    But in any event, at the first trial, for whatever its worth, this Court had not yet decided Garner and I — all I can say is that at the trial court level why I didn’t raise Garner on the second case, I had no excuse for this.

    It should have been raised.

    I say this evidence or this record just is inundated with evidences that suggest 8 (b) (2) for which back-pay by the — in the form of lost of wages is given as a remedy by the Labor Board.

    And if I may categorize in the record which is before you, what suggest in 8 (b) (2), I would like to do so with this preliminary statement.

    I don’t feel that it’s incumbent on petitioners here to prove that we committed an unfair labor practice.I think all that we have to do is to show that this reasonably, looks like an unfair labor practice and that the Congress is best to the determination of that in the National Labor Relations Board.

    (Inaudible)

    Eugene K. Kennedy:

    I think that the Radio Officers case which this Court has decided, the Holderby case which is uniquely at posit here which I’m going to discuss where a man sued in the California court to reinstatement and the Labor Board gave him back-pay under 8 (b) (2) where there was no contact with employers at all.

    His name is merely removed from a preferential hiring list.

    Eugene K. Kennedy:

    The actual linking of a union action with a specific employer, I regard as settled law is not required to — to establish 8 (b) (2).

    I may even go this much further as an — as an abstraction.

    If you have discrimination, it can’t exist in a vacuum.

    You can’t — Gonzales doesn’t — didn’t work for the union.

    He worked for someone else and if — it’s charge that the union caused the employer, a cause, loss of wages implicit in that is that there was some action taken with the respect to employers.

    Otherwise, loss of wages would be a meaningless term as — as I view the thing.

    William J. Brennan, Jr.:

    Well, I gather your position would be (Inaudible).

    Eugene K. Kennedy:

    Taken with his testimony that — that is the way that he received work for the prior of 12 years and that after that he was unable to receive work, taken with — with that in addition.

    Now, if I may direct your attention to the petition if you please that initiated this action on page 6 of the record.

    There’s an — an allegation in there in paragraph XV, from and after March 15, 1952, your petitioner has been unable to secure employment in his former occupation solely by reason as the illegal, wrongful and improper expulsion and punishment of your petitioner by respondent associations.

    In this context, it appears to me that that is reciting 8 (b) (2).

    It looked like 8 (b) (2) to me because as I recall insofar as you can go back, I alleged that he had a remedy under that and I would direct, of course, to — to this which counsel did neglect to this day.

    On page 67 of the printed record, counsel who is now arguing that there’s no suggestion of an unfair labor practice in the record who received testimony from the respondent, Gonzales, that he advised him to go to the Labor Board in the first place so that it — it must have looked like something for the Labor Board determination to Mr. McMurray contrary to the suggestion that this was and something purely for state action.

    Now, to take — if I may just list what I think show that there’s the very extremely strong suggestion of an unfair labor practice in this case.

    We’ll start with the fact that respondent, the advice of counsel filed unfair labor practices with the National Labor Relations Board.

    In his petition which I’ve just read the — on analysis I believe, you’ll conclude that that suggest a violation of 8 (b) (2) for the reason that loss of wages have to occur with relation to possible employment.

    And certainly, that it — no one contends that Gonzales worked for the union.

    Third, the findings of fact in the — and the conclusions of the law, the trial court recite in affect what’s recited here in the petition, the causing of the loss of wages by the union.

    The evidence in this case which is detailed from Mr. Gonzales and from the union the statute is abundantly clear that because Gonzales was not in good standing in the union, he was not to be referred until he was.

    The next thing that I — I think that is properly before the Court for — is the first decision of the California District Court of Appeals which appeal — which appears in our petition for certiorari.

    In fact, I think it would represent a brief for the petitioners here.

    It states rather equivalently that this is language preempted for the Labor Board.

    Felix Frankfurter:

    Mr. Kennedy may I ask you this question?

    Eugene K. Kennedy:

    Certainly.

    Felix Frankfurter:

    Is it conceded — do you agree that the arrangement between — between a member of the Machinist and the machinist is a contract?

    Eugene K. Kennedy:

    Now — there is a contract with respect to union membership.

    The Constitution is — and I raise this in arguing it on the exhaustion of remedies question.

    The union is bound as Mr. Gonzales is found to follow the terms that the Constitution in their relations between themselves, I agree with that, sir.

    Felix Frankfurter:

    Now, where you’re going to is — if the Court, if the union, if a union disregards the provisions of the constitution and bylaws of the union and expels a member may go into court and get an injunction get mandatory relief as this person to did here.

    You’re not here challenging the man that the — the decision of the California court requiring his reinstatement of the member, do you?

    Eugene K. Kennedy:

    Not at all.

    Felix Frankfurter:

    Well, so that — that there is a basis for specific performance of the contract between the union and its members, is that right?

    Isn’t that?

    Eugene K. Kennedy:

    Well, that existed — that’s —

    Felix Frankfurter:

    Will I —

    Eugene K. Kennedy:

    Excuse me, I didn’t understand it.

    I should say —

    Felix Frankfurter:

    I just want to know whether I’m wrong in my understanding that a union members improperly expelled by violation of the agreement between him and the union, he can go to a court of law and get a remedy.

    Eugene K. Kennedy:

    That’s my understanding.

    Felix Frankfurter:

    All right.

    If in fact through out that expulsion, he has suffered damages, what is there in the Taft-Hartley Act that says that that cause of action under that contract is no longer pursuable a state court?

    Eugene K. Kennedy:

    I — I think I can answer that, Mr. Justice Frankfurter.

    Felix Frankfurter:

    You have to answer in order to win this case.

    Eugene K. Kennedy:

    Yes.

    And I — I believe that we can.

    And this is — this is the way I would like to start.

    In this case, we have chronologically two separate acts.

    We have expulsion from union and the next thing that follows that which doesn’t necessarily have to follow is discrimination in employment.

    Now, I say that if a trial court found that the discrimination and under its procedure are — I beg your — if I may withdraw that that the expulsion in and out itself gave rise to damages.

    We are not contesting that the state court on the pure active expulsion alone under its own rules could or could not allow damages but I do emphatically want to emphasize this.

    We’re dealing here with something that the — was created in 1947 discrimination by a union in — in Section 8 (b) (2), discrimination by a union may follow rightful or wrongful discharge.

    This is activity which I believe it can be very well exemplified in this Holderby case which is cited in our reply brief and under that name, the California court and the International Operating Engineers in the Labor Board.

    Now, what happened there, Holderby sued in the California court to get reinstated in the union and he brought an action of 8 (b) (2) before the National Labor Relations Board for — because of discrimination on the theory purely that his name was removed from the preferential hiring list.

    And if we want — and our ultimate aim here I suspect is to find out what Congress intended.

    In addition to the cases which —

    William O. Douglas:

    And he lost in the state court.

    Eugene K. Kennedy:

    He lost in the state court because he had not exhausted remedies, Mr. —

    William O. Douglas:

    Under the union policy.

    Eugene K. Kennedy:

    Under the union procedure.

    Felix Frankfurter:

    But that’s not here, is it?

    Felix Frankfurter:

    We’re not bothering about that.

    Eugene K. Kennedy:

    No.

    We have no question here except the question of discrimination as I — as we see it.

    Felix Frankfurter:

    That — that isn’t my question.

    My question is whether a plaintiff who has rights under a contract involving situations which may come before the Labor Board on the Taft-Hartley Act loses his contract right, because of a chance apart from the contract, he have a right under the Taft-Hartley Act.

    That’s the question as I see it.

    Eugene K. Kennedy:

    As I see it, those rights still come before the Labor Board, Mr. Justice Frankfurter.

    Felix Frankfurter:

    It’s true, but let me put this to you.

    Suppose — suppose in this kind of a labor agreement, either question as you know that bothers not only our courts but if you’d like to follow the English courts, the whole relation between a member of a union and a union, the basis of recovery, a very complicated question.

    I don’t think we get very far.

    We don’t realize how complicated they are.

    Suppose in a union contract like this, there’s a provision, in case of illegal — in case of an expulsion in this regard are the requirements of this union agreement or the bylaws of the union.

    The recovery should be limited to a liquidated amount to wit, a thousand dollars or X dollars in view of the difficulty of ascertaining down with this.

    Will that be impossible in the state court or would you have to first consider where it constitutes an unfair labor practice?

    And if it does then the liquidated damage clause evaporates.

    Eugene K. Kennedy:

    My own view and I of necessity if my colleagues and I have considered this and talked about it at some length is that the more you look at this particular problem, you will see that discrimination is a — a new federally created substance of right and that there’s a remedy given for it.

    Prior to the enactment of the 1947 amendments where there was no provision for discrimination in unions, in many States, they would give, and I think that was recognized perhaps, most succinctly in Real against Curran where they said apart from federal legislation, this long had been the rule in our State that we will not only restore a member but give him back or back wages.

    Real again Curran and the Mahoney case which is in the Washington Supreme Court and Sterling which all of which are cited in our brief in McNish against American Brass I believe cut the line between the question of internal union membership and between the question of something else that happens afterwards, namely, does the union by its action or non- action with respect to a member actually cause him to loss employment?

    Felix Frankfurter:

    Now Mr. Kennedy, may I suggest that that’s a — a different question again and that as I see it is a state law of question namely what the consequences are of a breach of contract.

    What I’m putting to you is that your court rests on the proposition as I understand it.

    That here was a contract relation between the union and Gonzales, the union breached its contract.

    He seeks relief.

    He seeks specific performance toward reinstatement in the union.

    And secondly, because of their default, because of their breach of contract, he has suffered monetary damages.

    Now, whether the — a damages are established, whether there is a cause in connection, that’s not a federal question.

    That’s a question of state contract law, state damage law.

    And I don’t think that’s reviewable here.

    Eugene K. Kennedy:

    Mr. Justice Frankfurter, in the last section as to the sufficiency of the award of damages in the Gonzales case, the California court in detail spells out the practice of the hiring hall and the fact that this lack of the utilization of the hiring hall is what caused this loss of wages.

    Now, with respect to this question of contract, I’m not going to quarrel now with this characterization put on the state court as to record, with respect to the record.

    It was raised for the first time in its — as far as I know by name in any event on the Act in the — on the occasion for rehearing after it had recognized that the activity constituted this discriminatory type of activity.

    Eugene K. Kennedy:

    If the State can take over areas of discrimination on every occasion where a man is ousted from a union, I suggest that 8 (b) (2) is a nugatory thing because any union member where he is ousted from the union can choose his form by saying this is a breach of contract.

    Felix Frankfurter:

    Well, but a — a litigant, person established a claim by merely making it, a court has to adjudicate it.

    And I’m — my question and my problem is assuming its unassailable that the arrangement between Gonzales and his union was a contract, assuming that there was a breach of that contract may sue in the state court, not only to get specific performance by reinstatement but may get what a person usually gets if he can prove it, the loss that he suffered because a promiser didn’t keep his promise.

    Eugene K. Kennedy:

    Well, I’ll — I’ll try to answer better this time and I’ll — I will concede, I’ll choose as many times on these things.

    Felix Frankfurter:

    Well, they’re very difficult questions I can assure for me as — at least as much as for you.

    Eugene K. Kennedy:

    As I see it, the contract that was an issue here was whether or not he had a right to a fair trial.

    The — there are — I — as far as I know the record is barren, completely barren of any contractual arrangements with reference to this hiring hall.

    It was a procedure that’d been going on for a long time.

    Felix Frankfurter:

    Well, isn’t — isn’t the hiring hall a sequence of being a member in good standing?

    Eugene K. Kennedy:

    If you want to call it approximate cause from a breach of contract, I won’t quarrel with it.

    I think it’s a plausible theory that they — was utilized.

    But I do say that as in Weber and several of these other cases where restraint of trade or States acted in the name of labor relations statutes were used in the state courts as their theory for action that was recognized by this Court that it was immaterial, what label you put on it.

    The — the important thing is what type of conduct is being regulated.

    If the State called it a breach of contract, a tort, a conspiracy, to me it would seem to be immaterial as long they are actually regulating something that Congress had said is for the National Labor Relations Board to regulate namely discrimination in employment caused by unions.

    Felix Frankfurter:

    My first question to you and everything flows to that, as far I’m concerned is whether you’ll contest the determination by the California court giving him specific performance of his right to be reinstated in the union because he was improperly fired from the union.

    Now, that right can only flow because he had a contractual relation with the union.

    Eugene K. Kennedy:

    With respect to his union membership, yes.

    And I think the statute — or the statute that we’re concerned with here perhaps makes this the most strongest type of the case for federal preemption if I may elaborate on that for no one.

    The other statutes go under the general policy that as you’ve held in Guss Photo that 10 (a) means what it says that the Labor Board is the exclusive for it.

    Discrimination in employment has an added factor within the statute itself which suggests that it must be a federally preempted.

    And that is that at the same time that Congress was saying to the unions, “You take care of the intra-union affairs immediately following it.”

    It enacted the 8 (b) (2) covering discrimination by unions which suggests as coincidence of time that if the Congress thought that control over a question of membership would drag with it and into the state courts control over the aspect of discrimination that would have been perhaps the most appropriate and — and suggested time that you can imagine it could have said so but it didn’t.

    And discrimination in — is a common unfair labor practice, discrimination, its coupled with two — its coupled in this case with the question of union membership which is not an issue.We think there are two separate acts.

    Discrimination may or may not follow expulsion from union membership, for example, a weak union —

    Felix Frankfurter:

    May I stop you right there.

    But you think the two are inextricably related.

    You — you think because sometimes because of discrimination, is not a contingency of — of expulsion.

    There may be discrimination without any interference which his contractual relations.

    Therefore, when there is an interference with his contractual relations the State is the — the contractual element evaporates from all state control that it’s entirely a question of discrimination.

    Eugene K. Kennedy:

    I would —

    Felix Frankfurter:

    That’s your position in effect, isn’t it?

    You say when you got discrimination you look at nothing else.

    Eugene K. Kennedy:

    No, I would say I’d leave to the States all the contractual elements of the constitution between the member and the union with respect to membership.

    When you have discrimination, a separate act, chronologically, need not be — it doesn’t have to be in the same package.

    And in fact, here it wasn’t in the same package.

    He was separated on one day and in retrospect, no one knows whether that separation would or would not have caused his unemployment.

    The California court found that that did.

    Felix Frankfurter:

    And the California case, the California court may have been wrong.

    As a matter of California contract law or damage law.

    But if the California court found that he was improperly expelled that the contract relation was violated and therefore, he has the right to specific performance, you say the Taft-Hartley Act precludes the chancellor from all source as in damages.

    Eugene K. Kennedy:

    I beg your pardon for discrimination.

    There is the Hines case.

    It’s a Federal Circuit case which I can’t cite to you.

    But there is a case where a man in this situation was assessed damages because he was expelled from the union.

    What I’m saying is the State can’t take over the National Labor Relations Board remedy.

    Felix Frankfurter:

    That’s right.

    Eugene K. Kennedy:

    And that —

    Felix Frankfurter:

    In here, we’ve been spending nearly four hours today or nearly that just in order to determine when it does and when it doesn’t.

    Eugene K. Kennedy:

    I — I perhaps had been over contentious and —

    Felix Frankfurter:

    No, you haven’t been at all.

    These are extremely as our opinion show, either extremely difficult, unsettled questions.

    Eugene K. Kennedy:

    I may — I would like to call to the Court’s attention one other thing.

    In the California court’s decision, you will find that it recognizes that there is an unfair labor practice.

    It — it says there’s an unfair labor practice, but it says it wasn’t treated or charged as an unfair labor practice despite this chronology I’ve given you into the background.

    And therefore, as distinguished from Mahoney and Real against Curran and some of these other cases with parallel issues, we can — we’re permitted to regard as a breach of contract.

    So that a sustaining of the California court’s decision would say that you can have an unfair labor practice recognized by a state court but if the state court wants to, it can also apply another remedy and give its own local remedy.

    And the questions of diversity and the variety of state actions, it could be instituted under the guise of bringing in any local segment.

    If the local segment of the controversy would bring in anything that an unfair labor practice under the National Labor Relations Board, it would seem to me to frustrate many of the things that I’ve read about that — which this Court has stated recently.

    And perhaps the last thing that I need to say on — I’m somewhat in doubt about Mr. Justice Frankfurter’s questions.

    Still I — I don’t fully — I — I think that perhaps our line of cleavages that in the — before the National Labor Relations Board, this man can get his remedies of back-pay and lost wages.

    Eugene K. Kennedy:

    He can get injunctive relief.

    He can get all the relief that Congress intended in discrimination and I — I don’t believe and I don’t believe that the cases that we have cited, in fact, we haven’t seen any to the contrary, will suggest that the question of internal union membership at — which we will call a breach of contract, brings out of the province of the National Labor Relations Board, its control over discrimination.

    Felix Frankfurter:

    Since you’re good enough to refer — to turn to the question, I — my hypothetical case about liquidated damages really tested me, namely, whether a provision in the union agreement in case of illegal expulsion providing for remedy of liquidated damages, although there may be — if there were no such agreement independently, the case of unfair labor practice against the union whether that makes unenforceable the liquidated damage provision within — within — in the labor agreement, in the union agreement.

    Eugene K. Kennedy:

    My — my immediate reaction is that would be perfectly permissible but I invite —

    Felix Frankfurter:

    That would be.

    Do you think that would be?

    Eugene K. Kennedy:

    But I invite — invite this Court to just read this last paragraph of the Court’s decision where it states and makes its findings why it’s giving the wages.

    It’s giving it because it’s something that the Labor Board would give for discrimination, the findings of the Court.

    Thank you.