United Mine Workers of America v. Gibbs

PETITIONER:United Mine Workers of America
RESPONDENT:Gibbs
LOCATION:South Carolina General Assembly

DOCKET NO.: 243
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 383 US 715 (1966)
ARGUED: Jan 20, 1966
DECIDED: Mar 28, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – January 20, 1966 in United Mine Workers of America v. Gibbs

Clarence Walker:

Mr. Justice Black, may it please the Court.

This case is here on certiorari to review the Sixth Circuit Court of Appeals’ affirmation of a judgment entered by United States District Court for the Eastern District of Tennessee against the United Mine — international union — United Mine Workers of America in the amount of $75,000 in favor of Paul Gibbs, an individual.

It was alleged that the United Mine Workers had violated Section 303 of the Taft-Hartley Act and of the common law of Tennessee.

The basic facts of this case are as follows.

Almost all of the coal lands in this mountainous area of Southern Tennessee is either owned or controlled by two major corporations.

One is the Tennessee Products and Chemical Company, the other is the Tennessee Consolidated Coal Company.

Each of these corporations operated to — operated a large mine and each subcontracted or subleased other small truck mines on their land and they purchased the coal and then sold it mainly to the TBA.

And almost all if not all of the mines on — in this area, on the lands of these two corporations was under contract with the United Mine Workers of America and had been for a number of years.

In the spring of 1960 the con — Tennessee Consolidated canceled its contract with UMWA or that covered its large mine, it’s Coal Valley Mine that it operated itself.

It sought then from UMW economic concessions and I think they describe it as a contract that they could live with.

These negotiations proved fruitful — did not proved fruitful and the mine shutdown in March 15, 1960.

It had been apparent for a number of years that this Coal Valley Mine was working out and that they would have to make a new opening some place on their land and the Tennessee Consolidated officials had promised their old line employees that when they moved to a new area which was called the Gray’s Creek area, that they would receive this employment, but failing in obtaining a new contract, Consolidated did something else.

They formed a — the Grundy Mining Corporation, a wholly owned subsidiary and placed in charge of that corporation its attorney and labor adviser, a man named of Justin Harwood.

The other officers of the Grundy Mining Corporation were the officers of the Tennessee Consolidated Coal Company.

Mr. Harwood then contacted the Southern Labor Union that operated in Northern Tennessee and a rival union to the United Mine Workers of America, after ascertaining that that contract would be satisfactory to Tennessee Consolidated and Grundy and that ascertaining that the Southern Labor Union would recruit miners or replacements to go to work in this new Gray’s Creek area, he then contacted Paul Gibbs, the respondent here.

Paul Gibbs had operated several coal mines, not on Tennessee Consolidated land but on the — its competitor, the Tennessee Products and Chemical Company, two small truck mines.

Gibbs also operated a fleet of eight trucks which he hauled the coal from his mine and from other mines in the area.

So on August the 12th, on the evening of August the 12th, Harwood called Mr. Gibbs and offered him a job as mine superintendent of these new mines that Grundy intended to open up in the Gray’s Creek area at the rate of $600 per month.

In addition to that, he offered them a job at Mr. Gibbs’ suggestion to haul coal from this mine at the rate of 78 cents per ton and this was agreed upon.

And Mr. Harwood then informed Gibbs that they would have employees in this Gray’s Creek area on Monday morning and they were then to start opening these new mines.

Over the weekend, all of these was unbeknownst to the old Coal Valley employees or to the United Mine Workers of America.

And over the weekend after the telephone conversation, the word got out or at least rumors that Consolidated intended to open the new mines in the Gray’s Creek area.

And on Sunday, UMW’s Local Union 5881 held a special meeting in which these matters were discussed.

And from that meeting, several of the members decided to go to the Gray’s Creek area on Monday morning to determine whether the rumors were correct.

The International Union or District 19 of the United Mine Workers representative in this area was named George Gilbert.

George Gilbert left Southern Tennessee to go to Middlesboro, Kentucky on Saturday to attend an executive board meeting of District 19 and did not know anything about these events.

On Monday morning Mr. Gibbs showed up early.

There he — but there were no employees there.

The three members of this Local Union arrived and they inquired from Mr. Gibbs of whether or not this Gray’s Creek area was to be opened up.

And he did — he said that it was his understanding that it was or he heard something to that effect, but the recruited replacements or the — that were to come in or take these jobs had lost their way.

Clarence Walker:

So they didn’t show up and so Mr. Gibbs left.

Later on, a few of them got near there and finding Mr. Gibbs wasn’t there, why they also departed.

But Johnny Cane who was a field worker for Southern Labor Union met a group of men that he claimed are from Fort Aid, that he said that some of them were armed with shotguns, some place along the road.

And he asked them if they were employees of the Grundy Mining Company and find out — finding out that they weren’t, he turned around and left.

But on Tuesday morning which is August the 16th, there was a much larger group there.

And when — and which consisted of the old Coal Valley employees and members of Local 5881.

And when Mr. Gibbs arrived there, he testified that a large number of these men were armed and there were shotguns or rifles.

And that they told him to get out of his truck and he says that one of them put his hand on him and that he got out and they stood around for a while and he was apprehensive that he might be in physical danger.

And during this time they also stole or took from Mr. Gibbs his gun or took it from his truck.

Then they left this area, the Gray’s Creek area and moved out this mountainous road which is the Pocket Road where after they’d gone a short distance, they ran into a larger group of men.

Do you say that [Inaudible]

Willard P. Owens:

Yes, this is from the evidence as given by the plaintiff.

Although this was denied by the witnesses of the defense —

[Inaudible]

Willard P. Owens:

— but this has been, I think determined by the jury against us on that.

So you say this [Inaudible]

Willard P. Owens:

I think it has to do with the object of the picketing which is involved here and it has to do with the tie-in on the question of preemption because these employees that were there and told the other replacements that what — that these jobs had been promised them and what they were doing there was picketing this plant if you call it — these mines, if you call it picketing in order for them to get the jobs and I think it also goes into a determination of union responsibility.

This was a suit, the International Union’s responsibility for conducting which he did not participate.

Byron R. White:

[Inaudible]

Willard P. Owens:

That’s one of the questions, Your Honor.

Byron R. White:

[Inaudible]

Willard P. Owens:

Yes, there was and we claimed that there was insufficient evidence to support that finding.

But to continue on, there he — Johnny came at this instance, the contents of his briefcase was burned.

Then when they all left and he was struck two or three times by somebody that was in this group, then when they all left, one of the vehicles in which the placement — replacement employees were driving the — there was a bullet in the rear fender of that vehicle and they all left.

Now George Gibb — this took place in — the time of this was about two hours.

It took two hours of time for all of these to occur.

Then around noon, a mine committee man called Middlesboro, Kentucky, the District 19 officials and then informed them that the mine, the Gray’s Creek area was about to open up.

And that there had been picketing there and there were replacements to take their jobs.

District 19 officials then instructed George Gilbert to return to Southern Tennessee.

And also instructed him that he was to see that there be no violence, that if there was picketing that that picketing be limited in number.

Willard P. Owens:

And also to ensure that the picketing be conducted in such a way that it did not interfere with any of the other mining operations in the area.

And George Gilbert did return to Southern Tennessee on the evening of August the 16th and after several days, he was able to accomplish this and there was picketing at the intersection of the Pocket Road in the main highway for a period of eight and a half months by the three to five employees.

None of the other mining operations were affected.

The employees and the members of the United Mine Workers continued to cross the picket line including the employees of Mr. Gibbs that were working in his mine.

Several of the operators testified, the small operators testified that after this period of time, George Gilbert told them and also Gibbs that they did not intend or the words to the affect for the Southern Labor Union to come in to this field or intend to have Mr. Gibbs bring the Southern Labor Union into this field.

Abe Fortas:

Is there any evidence of violence after Mr. Gilbert returned to the scene?

Willard P. Owens:

No, there was no evidence of any violence on the picket line.

There is testimony which is referred to in the opinion of the Circuit Court that in the city or in the town of Palmer, which is small Palmer — a small town, there was a large gathering of men around the company store which included members of the United Mine Workers and also officials of the Tennessee Consolidated Company.

And that they made threats to the officials of Tennessee Consolidated, two officers of the Tennessee Consolidated and Grundy and that some of them were armed.

And particularly the one that grabbed a hold of one of the officers, a man named Gary, but the Court of Appeals noting that some of these were members ignored the fact that this had nothing to do with the dispute with Gibbs, that this man, Gary, thought that he was being accused of stealing from the company warehouse.

He was a guard or a night watchman.

He was not a coal miner and I don’t think he was even a member.

The record shows he was even a member of the United Mine Workers and this dispute though had nothing to do with the Gibbs’ dispute, although the Court of Appeals does refer to that.

But that —

[Inaudible]

Willard P. Owens:

That was August the 17th.

[Inaudible]

Willard P. Owens:

Mr. Gilbert testified that it took him several days in order to do what he wanted to do and that was to make sure that there be a limited picketing, it’d be peaceful and not in violation with any or interference with any other mine.

Then in November, latter part of November, United Mine Workers gave some groceries in form of vouchers to some of the unemployed coal miners, miners that had been unemployed since March whose work — unemployment compensation had expired, gave them $25 a week.

And some of these recipients of these groceries also were pickets on this picket line and I presume some of them were — participated in the activities of August the 15th and 16th.

Then in the spring of 1961, Tennessee Consolidated decided to reopen its old Coal Valley mine and it contracted with another corporation from Chicago, the Allen and Garcia Company to operate this mine.

Allen and Garcia signed a contract with UMWA and it went back to work.

It operated for approximately one year and then the mine caved in and then Allen and Garcia moved over to the Gray’s Creek area, opened up a mine and the Grundy Mining Company about the same time in 1962 in August also opened up seven or eight mines, not under contract with UMW.

That was the factual situation at the time of the trial.

Now, the jury in this case, it was a general verdict but they was — submitted to it special interrogatories.

The jury found that UMW had violated Section 303 of the Taft-Hartley Act in two ways.

It found that as an object of the picketing and the other activity was to force or require the Grundy Mining Company to cease doing business with Gibbs as mine superintendent and to — and the second one was to cease doing business with Gibbs as a trucking contractor.

It also found that UMWA had violated the common law of Tennessee by entering into a conspiracy to unlawfully interfere with the contract between the Grundy Mining Company and Paul Gibbs.

[Inaudible]

Willard P. Owens:

Yes.

Willard P. Owens:

It awarded to Mr. Gibbs $60,000 for his loses for — as mine superintendent.

It awarded $14,500 for his loss of his trucking contract and it awarded $100,000 in punitive damages.

The District Court, in acting upon UMWA’s motion for judgment n.o.v. or in the alternative for new trial, said that it —

[Inaudible]

Willard P. Owens:

60,000.

[Inaudible]

Willard P. Owens:

This — a reward of compensatory damages.

[Inaudible]

Willard P. Owens:

No, he was paid, they paid his — for the two days or two or three days of August as mine superintendent and he received no further pay.

And the award amounted to eight and a half — $60,000, about eight and two thirds years of employment as mine superintendent even though the evidence was to the effect as testified by the company that the job was only going to last about eight months because then they were going to lease these mines out like they had all their other operations once they’d got them under development.

[Inaudible]

Willard P. Owens:

Oh, these damages was solely based upon the mine superintendent and the loss of his trucking contract with the Grundy Mining Company.

Now he made other allegations of —

[Inaudible]

Willard P. Owens:

Well, the Court set that aside.

[Inaudible]

Willard P. Owens:

Well, he offered evidence that he would have made from past — his past trucking experience, he would have made so much money.

He estimated the amount of the coal and he estimated what it would cost him to haul the coal and then what he would have left and they multiplied that.

And it actually came up with about $14,095 but the jury gave him just a little bit more.

[Inaudible]

Willard P. Owens:

It was set aside by the District Court and the Court of Appeals affirmed that.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

And that is not before this Court.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

I think you’re correct.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

On the $60,000, the Court — the District Court found that this was excessive and he suggested a remittitur of $30,000 which was accepted by the plaintiff.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

That was affirmed.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

No, we —

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

No, we don’t raise the question of whether there’s evidence to support the $30,000 here.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

No, Your Honor, we do not raise that point here.

But the District Court found that on the question of union responsibility that although there might not be evidence to support the finding of a union responsibility of the international’s responsibility for the fifteenth and sixteenth.

It found that the subsequent picketing to that time was sufficient to support the judgment and the District Court also said — found that or agreed with us that it was in error in submitting the question of the secondary boycott question as to Gibbs as a mine superintendent, finding that he was not any other person as mine superintendent with a meaning — within the meaning of Section 8 (b) (4) (b) which requires as an objective of the union that they — forcing or requiring any person to cease doing business with any other person and then the Court — the Court found that in that aspect of the case, the picketing and the — all of the activity was primary and therefore it was not in violation of the federal law.

[Inaudible]

Willard P. Owens:

Yes we do in effect because the — finally, there is an affirmation of a judgment —

[Inaudible]

Willard P. Owens:

There is not onto — I think the Court was correct and we don’t have any issue as to the — whether that is correct or not.

I think that has been —

[Inaudible] provision under state law?

Willard P. Owens:

Well, the judgment was entered then on — also on the violation of Section 303 because the Court said that Gibbs was a — any other person within the meaning of that section as a trucking contractor.

[Inaudible]

Willard P. Owens:

But —

[Inaudible]

Willard P. Owens:

It approves the judgment of compensatory damages of $30,000 for the (Inaudible) —

[Inaudible]

Willard P. Owens:

The Court of Appeals based it entirely upon a violation of state law.

[Inaudible]

Willard P. Owens:

That’s right.

[Inaudible]

Willard P. Owens:

No.

That’s right.

Hugo L. Black:

[Inaudible] based on federal law —

Willard P. Owens:

No, it said, the Court of Appeals said that they did not have to decide that because the verdict could be supported entirely upon state law.

Hugo L. Black:

You’re talking about [Inaudible]

Willard P. Owens:

That’s one of the issues, yes Your Honor.

Hugo L. Black:

[Inaudible]

Willard P. Owens:

If I understand you correctly, I don’t think so.

Hugo L. Black:

The important deal — because evidently [Inaudible]

Willard P. Owens:

Yes Your Honor because we think that all —

Hugo L. Black:

That could be [Inaudible]

Willard P. Owens:

But the District Court entered judgment for the violation of Section 303 in his capacity as trucking contractor and awarded as for that unlawful interference —

Hugo L. Black:

[Inaudible]

Willard P. Owens:

Court of Appeals said, it didn’t have to decide that question.

Hugo L. Black:

So, all we have to [Inaudible]

Willard P. Owens:

That’s right.

It said that it did not have to decide the federal question because the federal claim was not so plainly unsubstantial that it deprived the court of jurisdiction and that the state claim or the violation of state law supported the entire judgment.

Hugo L. Black:

You’re questioning the deal as [Inaudible]

Willard P. Owens:

That’s the first question we asked.

The question —

Hugo L. Black:

[Inaudible]

Willard P. Owens:

Question of union responsibility and the preemption of state law by the enactment of 303.

Hugo L. Black:

[Inaudible]

Willard P. Owens:

That’s correct, Your Honor.

That’s what we depend upon in our question of union responsibility.

Hugo L. Black:

[Inaudible]

Willard P. Owens:

The third question has to do with the improper argument of counsel.

We claimed that they should have ordered a new trial and that a remittitur did not cure the error by the improper appeal to the passion and prejudice of the jury.

William O. Douglas:

You’ve omitted what I thought was your most important question as of — one of preemption.

Willard P. Owens:

I didn’t intend that — we — had asked question two.

William O. Douglas:

That’s not question two, question two isn’t — has to do — as you stated with Norris-LaGuardia, this preemption deals with Section 303.

Willard P. Owens:

We have a difficulty in forming question two because it encompasses both the question of union responsibility and preemption.

May — but may I go into that then in — and what our position is on that?

Hugo L. Black:

Which one are you going to argue first?

Willard P. Owens:

Let me go into the union responsibility because here we contend that there was not proof of union responsibility for the unlawful conduct and of the violence of August the 15th or 16th.

The Circuit Court of Appeals said that the proof was sketchy as to union responsibility.

And if that were so, it should have reversed it if it was lacking — error was wanting in substance, or wanting incompleteness.

Willard P. Owens:

The Court of Appeals said that Mr. Gibbs submitted a variety of facts to prove to — that the jury could infer that George Gilbert instigated the actions of August the 15th and 16th.

Although that wasn’t the way the Court — the case was submitted to the jury.

We find and that the evidence of — that the Court relied upon in that respect was that Mr. Gibbs testified that, “I am thinking that I saw George Gilbert in the Gray’s Creek area on the 15th or 16th of August, but he didn’t take part in any of these activities that we relate here as unlawful or that his car was there.”

We don’t think that this is sufficient evidence to find the — that George Gilbert was even in the area, let alone particularly since all the affirmative povi – positive proof of those who were there and George Gilbert on the other piece was that he was in Middlesboro, Kentucky and secondly, Mr. Gibbs didn’t contend that.

Mr. Gibbs contended that he conveniently absented himself from Southern Tennessee and was in Middlesboro, Kentucky.

This is something that the Sixth Circuit Court of Appeals in — injected into the case.

Now we admit and also the Circuit Court of Appeals referred to the fact that UMW granted relief in the form of groceries to some of these people.

I do not understand how this could be possibly be interpreted as that they instigated these activities or responsible for any of the picketing because they granted relief to their members.

I mean, some of them participated in illegal activity and as a matter of fact in that situation, it’s a trial de novo because the District Court instructed the jury that they could not find that.

So if the jury relied upon this evidence, then it didn’t follow the instructions of the Court.

But we —

Byron R. White:

But did they enact [Inaudible]

Willard P. Owens:

Yes, Your Honor.

Byron R. White:

The Local [Inaudible] —

Willard P. Owens:

The Local was not.

Byron R. White:

Was it [Inaudible]

Willard P. Owens:

There’s no evidence to that except that this meeting in which they discuss the matter.

Byron R. White:

Do you think that the meaning [Inaudible]

Willard P. Owens:

In — on Sunday.

They discussed as to whether or not these mines are going to be opened up.

Of course once it was found out in this area that these mines are going to be opened up, that just spreads like wildfire.

Of course there were officers of the local union at the scene of these alleged activities.

Hugo L. Black:

[Inaudible]

Willard P. Owens:

On Monday —

Hugo L. Black:

That’s on a Sunday?

Willard P. Owens:

No, I don’t think — I don’t — the record doesn’t disclose where there’s any announcement, some of them would be there.

Some of them decide to go, two or three of them to find out if the mines were going to be opened.

Of course they didn’t know anything about Gibbs or any replacements being brought in.

Hugo L. Black:

[Inaudible]

Willard P. Owens:

No, no vote.

Willard P. Owens:

We have — what we contend that although the secondary boycott question of the Union responsibility maybe governed by the common law of agency but we contend that Section 6 of the Norris-LaGuardia Act is the controlling statute of union responsibility which requires clear proof that the unlawful acts of an agent or an officer or a member of the union was of — actually authorized or participated in or rather — were ratified after actual knowledge of all the facts by the union.

That under this standard of proof, of course there could be no finding that the union was responsible for any of the alleged unlawful conduct.

That is the International Union.

Hugo L. Black:

Did the Court charge the jury on Section 6?

Willard P. Owens:

That’s right and the Court charged the jury that and of course we upon our urging.

Now, the prejudicial effect of what the Sixth Circuit did in ignoring Section 6 and deciding the question on union responsibility on some theory of respondeat superior that in the State of Tennessee, you can award damages against the principle on the theory of respondeat superior, but of course we couldn’t raise that in the trial court because the Court said that the union must participate in it or actually authorize it and we couldn’t raise that point.

And had the jury been instructed the way the Sixth Circuit said was the proper law on the way the jury could infer union responsibility, the Court would have had to instruct the jury that you can’t come in with any award of punitive damages.

You can impute malice to a principle in Tennessee, but we are foreclosed by that.

We got a trial de novo in the Sixth Circuit Court of Appeals.

The Court — so but we don’t contend now as far as the Taft-Hartley violation goes that Section 6 applies as Gibbs contends in his brief before this Court.

We admit that there’s a different standard when you look at the secondary boycott aspects of it, but on the state cause of action here that the Court found, we contend that Section 6 applies.

And it must apply in this case because that’s what the Court charged the jury and there was no objection to that by the plaintiff and there was no question before the Sixth Circuit Court of Appeals that that was erroneous.

Hugo L. Black:

Where is that charged that he referred to six?

Willard P. Owens:

That is found on — it’s found, Your Honor, on page 509A of the transcript.

It says before that the defendant maybe held responsible for the acts of its agents entering into a conspiracy during the course of a labor dispute there must be clear proof that the particular conspiracy charged for the act generally of that nature had been expressly authorized or necessarily followed from the granted authority by the defendant.

Hugo L. Black:

Now what was the evidence, it being here that has been expressly authorized?

Willard P. Owens:

There was no evidence and we — that was what our contention was before the District Court and the Circuit Court that you can’t support this verdict because there isn’t any evidence the International Union did anything.

It didn’t have knowledge of these events.

Hugo L. Black:

Are you going on the interpretation of that section given in the cognitive case on the [Inaudible]

Willard P. Owens:

Yes, Your Honor.

Potter Stewart:

Because if the trial judge went on to charge or that such conspiracy was subsequently ratified by the defendant after actual knowledge therein.

Willard P. Owens:

That’s right and there is no proof of that.

Potter Stewart:

I understand that’s your point.

Hugo L. Black:

Your point is that so far as [Inaudible] expressly authorize, there was no authority given from which you have inferred and there were no evidence for ratification.

Willard P. Owens:

That’s correct Your Honor, that’s correct.

There’s no evidence in the record let alone clear proof.

Byron R. White:

Is your claim [Inaudible] —

Willard P. Owens:

I think we are actually by that.

Byron R. White:

[Inaudible]

Willard P. Owens:

Well, I think there’s the federal question as to what is the proper standard of — to apply the union responsibility.

Willard P. Owens:

What’s happening in —

Hugo L. Black:

Well, if your federal claim is as I understand it in that connection, Congress has passed a law, [Inaudible] violation and as to cases of this kind, labor dispute, there must be actual proof of express authority or ratification for the judgment in the [Inaudible] against the union — or union of this kind.

Willard P. Owens:

In violation of state cause of action.

Hugo L. Black:

That’s the federal question you’re claiming.

You don’t have — its the process.

Willard P. Owens:

No, that’s right Your Honor.

Byron R. White:

But what if you’re wrong — what if you’re wrong on that?

What if you’re wrong on the applicability of the Norris-LaGuardia Act to the cause of action under state law which has permitted the state because of violence?

Willard P. Owens:

Well, I don’t think —

Byron R. White:

Let’s assume that — just assume the acts of — by the civil action for recovered damages for assault and battery because of the violence?

Willard P. Owens:

I don’t think —

Byron R. White:

Would the Norris-LaGuardia Act apply to that?

Willard P. Owens:

No, it wouldn’t if — well in the — if it applied in the — in the — any court in the United States involving a labor dispute, it wouldn’t ordinarily in a simple case of assault and battery, but we don’t think that under any standard of responsibility that they can find this union liable even under the common law, law of agency.

Hugo L. Black:

You claim [Inaudible]

Byron R. White:

Well, I know but —

Hugo L. Black:

— you particularly claim here that will do.

Willard P. Owens:

That’s correct, Your Honor.

William O. Douglas:

We’ve been pretty free and easy in letting cases go to a jury, I guess on factual determinations.

Willard P. Owens:

We think they should be perm — go to the jury under a proper instruction of the Court as to what the law reads.

Well, then —

William O. Douglas:

This law — this charge under 509 (a) doesn’t seem to be suspect?

It follows the Norris-LaGuardia?

Willard P. Owens:

That’s correct, Your Honor but the Sixth Circuit didn’t follow that.

William O. Douglas:

Yes, I understand that.

Willard P. Owens:

The Sixth Circuit gave it — it couldn’t find clear proof of that because there wasn’t any evidence in the record but it applied a different standard and I don’t know what standard actually it applied because it said that it went on further.

It painted union responsibility with even with broader brush.

It said even if it didn’t instigate the actions of the 15th or 16th Gilbert did by the subsequent picketing even though it ratified the actions of the 15th and 16th because the subsequent picketing was more effective.

I don’t think that satisfies the law of ratification.

Hugo L. Black:

[Inaudible] and you have several legal questions [Inaudible]

Willard P. Owens:

I think that’s correct.

Hugo L. Black:

Well, that — if you – [Inaudible]

Willard P. Owens:

Let me then move on to the —

Could I ask you this question, one question before you leave.

It isn’t your real point here that the jury verdict which is a general verdict, you can’t tell from the verdict whether they decided it on federal grounds or under state grounds.

Willard P. Owens:

That’s correct, Your Honor.

And that you’re — so if it was decided on state grounds, there’s no punitive damages on the respondeat superior theory whereas on federal law there was evidence to support it, there would be punitive damages allowed.

Willard P. Owens:

Yes, Your Honor, that’s the fourth question.

Now the — and the Court said it submitted an erroneous theory but it could be support of the other theory but you can’t tell what the jury did and we say that when you do that you must have that support.

Oh, that’s what I understood your point —

Willard P. Owens:

But I would like to get on this question of preemption because we claimed by —

Hugo L. Black:

But as I understand your claim that [Inaudible] what you’re claiming is that the [Inaudible] are you not?

Willard P. Owens:

That’s correct, Your Honor.

Hugo L. Black:

There the court held however that in case of violence, there was no preemption.

As I understand it, I may be wrong, you’re claiming it now that [Inaudible] You’re claiming that the burden, they would rest on [Inaudible] at that time it was decided there was no federal remedy for an action of violence but that there’s now [Inaudible] violence and therefore that that’s unbecoming [Inaudible] as part of this case, is that right?

Willard P. Owens:

That’s right.

My personal opinion is that Laburnum should be overruled but you don’t have to do that to find state preemption here because in Laburnum and in Russell, the Court says that by Congress enacting Section 8 (b) (1) (a) did not develop any federal compensatory scheme for past conduct.

And that in the absence therefore clear congressional intent, they would not infer that in this traditional field of state action that there was preemption.

There was no damage.

It’s the same thing that happened in Russell which involved an employee recovering damages under state law.

They said the fact that the board had discretionary power under Section 10 to award back pay, it couldn’t award punitive damages.

And in Laburnum it was noted that Congress did these things under Section 303 and that’s what we have here.

You have Congress taking over the entire field almost like a colossus if I can borrow that phrase to provide a remedy for future conduct by injunctions in cease and desist orders and it provided damages.

And here you have a big conflict, the greatest conflict you can have because under state law for this conduct, they provide not only for damages but for punitive damages.

Byron R. White:

[Inaudible]

Willard P. Owens:

No, Your Honor, we didn’t win our 303 case.

The District Court found that Gibbs as an independent trucking contractor, there was a violation.

Byron R. White:

[Inaudible]

Willard P. Owens:

Well there was a violation and when on though that the violation under that this unlawful interference causing to lose his job as mine superintendent.

Byron R. White:

[Inaudible]

Willard P. Owens:

On that part of it.

Byron R. White:

[Inaudible]

Willard P. Owens:

If by unlawful interference with his contract has included something else.

He’s a mine superintendent and they awarded punitive damages against this for that.

Byron R. White:

[Inaudible]

Willard P. Owens:

Well I think if they claim that it was the secondary boycott or it’s arguably so that it’s a secondary boycott, yes.

I don’t think state law applies.

You find in the Garmon and in Garner and all of that which has a broader aspect of conflict.

Byron R. White:

[Inaudible]

Willard P. Owens:

That’s correct so that —

Byron R. White:

[Inaudible]

Willard P. Owens:

Well I think if you find —

Byron R. White:

[Inaudible]

Willard P. Owens:

That that was a primary strike and therefore if that’s so, then there is preemption under Section 7 or it —

Byron R. White:

[Inaudible]

Willard P. Owens:

Not if they’re violent?

Well, if they brought a — an action for a primary violent primary case, and if Laburnum is still good, let’s assume that it is, then of course you run into the question of pendent jurisdiction and that’s the next question that we haven’t got into.

That is into another field.

Hugo L. Black:

That’s the only answer you have to give?

Willard P. Owens:

By then, we also have here an award of punitive damages which is in direct conflict with it.

We also claim that there is preemption by the fact that the Sixth Circuit what it did here was the regulation of peaceful picketing that under the Garmon rule.

That by the action of finding liability for the peaceful conduct substantive to the Sixteenth there was preemption led that that constitutes regulation of peaceful future conduct.

It also violates the rule of the totality of effort rule that this Court denounced in Morton whereas there was award of damages for prime — peaceful primary activity here which they claimed was in violation of the state law.

Let me now get to the question of pendent jurisdiction.

We claim that there was no pendent jurisdiction in this case for two reasons.

In the first place we claim that the question of a secondary boycott as to Gibbs was plainly unsubstantiated because here was solely a primary dispute with the Grundy Mining Company over a new contract or over the employment.

There was no secondary — no dispute with Gibbs other than his representation of Grundy as mine superintendent as their agent.

And the Court ignored the fact that there has to be a primary dispute and a secondary dispute as this Court has spelled out many times.

There was no dispute with Mr. Gibbs as a trucking contractor.

His trucks were under contract and they continued to operate during this period of time.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

Well I guess —

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

No I don’t think even as he — as he made this pleading.

He didn’t really plead any dispute with Gibbs a primary dispute with Gibbs.

He plead one that there is really an interference with his job over there by violence and so forth.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

Well if you have a federal claim that is arguably within or cases arguably within the federal law, then you have preemption.

If you — if it’s not arguable then, then it’s plainly as substantial and you don’t have jurisdiction.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

Then we —

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

And if that’s correct, and then it should be decided upon 303 and not the state cause of action and in that way permits — does not permit this Court to award punitive damages.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

Well actually there was no pleading that there was any dispute with Gibbs as a trucker.

He just claimed this is part of damage under his contract and there was no primary dispute with Gibbs.

There was only one dispute in this case.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

Yes if he had plead that there was a dispute with him as a trucking contractor and the UMW then had matched the Grundy Mining Company with it, then you would have a secondary boycott or —

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

No, I think that what they held below is the primary dispute with Gibbs because they had the capacity.

I don’t know what the Court meant of being any other person.

There was no actually any cause of action based upon that.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

That’s correct.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

As the district judge understood it.

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

Well if —

William J. Brennan, Jr.:

[Inaudible]

Willard P. Owens:

Because I think if there was a — if the question was not plainly unsubstantial, and if there was only one cause of action which is the next point —

Byron R. White:

[Inaudible]

Willard P. Owens:

That’s correct Your Honor.

Byron R. White:

[Inaudible]

Willard P. Owens:

That’s right.

They found that it wasn’t but we’ve also claim that this is not — the Court didn’t have jurisdiction because there was in effect two causes of action.

Hugo L. Black:

But all the rules have the same thing, isn’t it?

Willard P. Owens:

No, I think it’s based upon a different violation of a different right.

He claimed a violation of his right under federal law which is right to be free from the secondary pressure but this right under state law was to be free from the interference with his contract as mine superintendent.

Hugo L. Black:

What you’re speaking of is he claimed about picketing up and engaging in violence the arrest and so forth, he’d been injured, and then you put it on two legal fields, one on the state law and one on the federal law.

Willard P. Owens:

We think in effect though that there were two separate causes of action.

Hugo L. Black:

Well if you could state the two separate causes of action in one set?

What you have here is they have a [Inaudible] there and engaged in dispute, picketing and violence and this man claimed he heard about it.

He wants to put all the legal grounds he could, one of them happen to be the state law and one of them happens to federal law.

Willard P. Owens:

Well I think it’s under — and of course if it was under federal law, then there is preemption.

If it wasn’t, then there wasn’t — it didn’t have jurisdiction to decide the case.

You — it’s different.

The Court found under the — using the Soule case which was a question of state regulation of intrastate railroads and under state statute.

And they raised a federal question which with constitutionality of the state statute.

They said, there was constitutional went ahead and decided that the case under merits and under the state statute but that’s an entirely different thing here.

I think that the facts supporting his interference of — with his contract as mine superintendent is different than the facts of — his interference, his right to operate as an independent trucking contractor free from secondary pressure from Grundy.

I’d like to reserve the remaining of my time for rebuttal.

Hugo L. Black:

Mr. Walker.

Clarence Walker:

Mr. Justice Black, may it please the Court.

Doctrine of pendent jurisdiction is very definitely applicable in the present case is our understanding of the law.

The complaint as filed and as amended, definitely stated a cause of action arising under a federal statute.

The Court so held.

Even though the Court may determine the case without applying the federal statute, does not effect the period of pendent jurisdiction which did happen in this case when the judge threw out the 303.

In fact, the Court is not required to rely on the federal law at all.

As quoted in the Soule case, a constitutional question was raised.

This Court bypassed that question and said we need not to answer that question.

Clarence Walker:

We can decide on the local ground.

If the Court so decides under the doctrine of pendent jurisdiction, they may decide the case purely on the local basis and not even apply the federal law.

Hugo L. Black:

[Inaudible]

Clarence Walker:

No Your Honor, if you had not alleged a substantial claim under a federal law, constitution or some treaty, then you would have had no standing in a federal court on your common law of claim at the first citizenship.

Hugo L. Black:

[Inaudible]

Clarence Walker:

Yes, Your Honor.

That —

Hugo L. Black:

[Inaudible]

Clarence Walker:

We claim there is a definite substantial claim.

Hugo L. Black:

[Inaudible]

Clarence Walker:

We filed — this under the two-theory rule, the 303 and also the common law.

Potter Stewart:

Was there a diversity — wasn’t there a diversity of claimant diversity of pendent jurisdiction also?

Clarence Walker:

Not as to understanding of the law, Your Honor.

This is an incorporated association which I believe in the last session was ruled or affirmed by Justice Fortas.

William J. Brennan, Jr.:

[Inaudible]

Clarence Walker:

I do not see the exact question in that way, Your Honor.

I see it this way that Laburnum would apply on the common law actions.

William J. Brennan, Jr.:

[Inaudible]

Clarence Walker:

Yes Your Honor if those plead on a —

William J. Brennan, Jr.:

[Inaudible]

Clarence Walker:

The violence going into on the common law account.

William J. Brennan, Jr.:

[Inaudible]

Clarence Walker:

And the case of an assault and battery, that would be a separate cause of action.

You’re trying to combine a cause of action for personal injury with a separate cause of action for a business interference which —

William J. Brennan, Jr.:

That is not what you [Inaudible]

Clarence Walker:

That is not what we have done.

William J. Brennan, Jr.:

What I’m asking you, am I right [Inaudible]

Clarence Walker:

They did not claim in their cause of action that it arose under 303.

They filed they could not.

They filed only for the violation of a common law right.

William J. Brennan, Jr.:

[Inaudible]

Clarence Walker:

The complaint as alleged in this case not only alleged under the claims of Mr. Gibbs as it relates to his contract with Grundy and as a trucking contractor but also with other parties.

William J. Brennan, Jr.:

[Inaudible]

Clarence Walker:

No, Your Honor.

William J. Brennan, Jr.:

So we do have [Inaudible] you go beyond that [Inaudible]

Clarence Walker:

No sir, he makes no claim of a personal injury if —

William J. Brennan, Jr.:

[Inaudible]

Clarence Walker:

If I understand the Morton case correctly, we come out with the problem of several back.

One if it is lawful picketing with peaceful or lawful purpose under a secondary boycott and if peaceful, then there would be no violation of federal law.

If you have an unlawful boycott under the Act and still over based on peaceful picketing, you’re limited strictly to 303.

If you have —

[Inaudible]

Clarence Walker:

Except for the punitive damages.

[Inaudible]

Clarence Walker:

It’s my understanding of the law.

Hugo L. Black:

[Inaudible]

Clarence Walker:

Yes, Your Honor.

Hugo L. Black:

[Inaudible]

Clarence Walker:

Just an intentional deliberate act to —

Hugo L. Black:

[Inaudible]

Clarence Walker:

Where a person under the Tennessee law violates or interferes with a contractual or business relationship without justification in this call, and there is damage results such as withholding the benefits for contract, that is required to be malicious and intentional under our cases.

Hugo L. Black:

What you here is just resting on the [Inaudible]

Clarence Walker:

That is correct upon the basis that after Mr. Gilbert returned to the coal field, he had several conversations after all knowledge of the violent and other act had occurred he had several conversation with several people that they were not going to let all Gibbs get by with this.

Hugo L. Black:

I’m not talking about [Inaudible] what I’m talking about is, if you have a suggestion [Inaudible] under Tennessee law that there had been no violence of any kind.

Clarence Walker:

Yes, showing the —

Hugo L. Black:

To have his judgment, a basic part on peaceful persuasion.

Clarence Walker:

It would possibly.

Hugo L. Black:

It has to be vague.

Clarence Walker:

— be peaceful persuasion.

Hugo L. Black:

It doesn’t have to be violent.

Clarence Walker:

It does not have to be violent.

Hugo L. Black:

No and you prove that if there has been no violence, wouldn’t that had been preemption, nothing but peaceful [Inaudible] wouldn’t that had been preemption?

Clarence Walker:

No, Your Honor.

If you had filed 303 and common law together.

Hugo L. Black:

I’m – forget 303.

Suppose they have constituted state law for this labor dispute alleged that peaceful [Inaudible] to persuade them and not to go to work, would there have been preemption?

Clarence Walker:

Yes there would have been —

Hugo L. Black:

There would have, because all you have is you have that.

That’s the basis of your basis case you don’t have to have clients if you say they were some violence too.

Why would that not apply then, would it not be preempted if a large party who’s based on a peaceful decision.

Clarence Walker:

In the particular case we have here, we feel that the affected aspects of the original violence carried over into the other fields of it as held in the [Inaudible]

Hugo L. Black:

If you — you got the judge a favor that’s barred on something that preempted in the federal action.

Clarence Walker:

On the common law camp, if it is purely on the malicious and intentional violation —

Hugo L. Black:

Which and — which did not require proof of violation at law.

Clarence Walker:

That is correct.

Hugo L. Black:

But there happen to be violent —

Clarence Walker:

Yes Your Honor.

The violence carried on several days after this.

It wasn’t just strictly on the fifteenth and sixteenth.

It was on the seventeenth, eighteenth, the 22nd, several days following this, the — there was a — the threat — intentional threat of violence prevailing over the area which we feel coincides very closely with the persuasion on the minds of men.

Hugo L. Black:

Well that — that’s what makes your case new and different isn’t it, from Laburnum and the others.

Here you use to say that since violence is not required at all, but that you get your judgment on peaceful persuasion, how do we know you didn’t get it in for peaceful persuasion?

Clarence Walker:

We have no way of determining the way the jury determined the fact on it.

Hugo L. Black:

You have no way to find out.

Clarence Walker:

No way for us to find out and we feel the issue on that would be foreclosed by the jury of verdict as to what they based it on, on strictly the peaceful or the violence and the record as it stands and taken as a whole, we feel offers sufficient facts to prove the existence of violence, threats of violence, and mass picketing or mass activities after the fifteenth and sixteenth to warrant the jury in finding.

I’m afraid of violence contained with —

Hugo L. Black:

You inform you couldn’t have gotten any punitive damages but for the fact you agreed that you just had the peaceful persuasion malicious into just a peaceful persuasion.

You could have gotten any punitive damages.

Clarence Walker:

Not under 303.

On the question of pendent jurisdiction as I said previously it would be determined as of the time the action was filed not as the way that facts ultimately turned out.

Clarence Walker:

And the fact that the judgment may at this time be based on the common law of the county entirely would not take away from the District Court at the time of the trial, jurisdiction to trial the case has decide the case unless they were to show that we had been foreclosed by some rule in this honorable Court that we had no substantial claim or that it was frivolous.

And this was a case that was very vigorously fault from the very beginning to the end and I believe everyone that was involved realized the great danger of error in the trial of such case.

And the remaining of the question that could have arisen were decided or worked out in chambers or arguments were held in chambers in an effort to keep from the jury any of the facts that might tend to mislead the jury in bringing in an incorrect verdict.

We very vigorously disagree with the contentions of petitioner on the effect of the Norris-LaGuardia Act in relation to this Act.

We feel that the standards to be applied either under your 303 or under your common law would have been only the common law rules of agency.

William J. Brennan, Jr.:

[Inaudible] enactment of the federal court.

Clarence Walker:

Yes, Your Honor.

William J. Brennan, Jr.:

And I gather the Norris-LaGuardia Act deals with limitations upon federal court jurisdiction, doesn’t it?

Clarence Walker:

It’s my interpretation of the Act, although it calls for accommodation with the other federal acts, that it would have been very applicable had we sought any injunctions.

We were not seeking any injunction.

William J. Brennan, Jr.:

But why is Section 6 any less applicable in the conduct of a federal lawsuit than Section 4.

I had viewed of this in Sinclair on the injunction side but I lost out on that.

Clarence Walker:

We feel in this particular aspect that Congress and the history of 303 and 301 with Taft-Hartley has stated that they desired.

William J. Brennan, Jr.:

But would Section 6 apply to the governing and then an action which was only a 303 action where you bring it against the — on the theory of ratification of Section 6 govern that action?

Clarence Walker:

It would apply to 301.

William J. Brennan, Jr.:

It wouldn’t apply to 303.

Clarence Walker:

And it applies to 303.

William J. Brennan, Jr.:

Well then that why does it apply where you’re resting here on pendent jurisdiction, why?

Clarence Walker:

I did not understand —

William J. Brennan, Jr.:

I said why doesn’t — why is it that it would apply if these were only a 303 action on the issue of ratification?

Why doesn’t it apply where you’re only in the federal court on pendent jurisdiction?

Clarence Walker:

It would apply — let me see if I understand your question, sir.

If we had only a 303, the Norris-LaGuardia Act in our contention would not apply to —

William J. Brennan, Jr.:

Or would not you say?

Clarence Walker:

Would not.

William J. Brennan, Jr.:

I’m sorry I thought you said you thought it would.

Clarence Walker:

And it does not apply in the case where we have pendent jurisdiction.

The standard of the of the permanent agent —

William J. Brennan, Jr.:

Well that means it follows that it would not apply in the 303 action, isn’t it?

Clarence Walker:

— is the same in both cases the common law rule of agency.

William J. Brennan, Jr.:

Why would it not apply?

Clarence Walker:

That is the mandates of Congress in the legislative history in returning or —

Hugo L. Black:

Does it — was anything said in those rules about Section 6, isn’t that right, the lawsuit and because it’s the governing lawsuit.

Clarence Walker:

And with reference to my brief Your Honor, I made mention to the UMW versus Patent case where part of the legislative history is quoted and quoted from the legislative history of Labor Management Relation Act by — to, page 1622.

Byron R. White:

Where is that in your brief?

Clarence Walker:

It’s on page 17, Mr. Justice.

Hugo L. Black:

17 of your reply brief?

Clarence Walker:

Yes, Mr. Justice Black.

Hugo L. Black:

You were relying on the Patent case.

Clarence Walker:

Yes, Your Honor, at the time I wrote the brief, I did not have it available the legislative history, but in checking the legislative history after arriving here, I find that this provision is quoted several times both by Mr. Taft and Mr. Hartley.

On June 5, conference report on page – volume 2, page 1537 of the same publication.

Hugo L. Black:

Volume 2, what?

Clarence Walker:

Volume 2, page 1537.

[Inaudible]

Clarence Walker:

No, Your Honor that is the legislative history of the Labor Management Relation Act as published by the National Labor Relations Board.

I also make reference to the subdivision as to agency on page 1543 or 1544 of Volume 2.

And the particular quoted pages is quoted from the discussion of Mr. Taft in correcting some misapprehensions that have been taken as to some of his previous statements.

Hugo L. Black:

Was this Senator Taft’s [Inaudible]

Clarence Walker:

Yes, Your Honor, the quoted statement in my brief is quoted —

Hugo L. Black:

17 and 18

Clarence Walker:

— 17 and 18 starting with Section 2 and ending on page — finishing at page 18 is a direct quote from Senator Taft with the exception of that eighth line up there.

There is an error in — on the bottom of the page that should be with regulating conduct.

William J. Brennan, Jr.:

On what page is that?

Clarence Walker:

On page 18.

William J. Brennan, Jr.:

Thank you.

Clarence Walker:

That is a typographical error.

Even if the acts of or the requirements of Section 6 — if the requirements of Section 6 were applicable, we feel that the evidence as introduced in this call, sufficiently met any requirements even as the judge charged although we feel it may have been little stronger than was necessary.

William J. Brennan, Jr.:

Well now what about the other page of that argument if you’re right that Section 6 doesn’t apply, how about the argument that nevertheless there’s no evidence here to support as I understand your adversary a finding of participation by the International?

Clarence Walker:

We feel that there definitely was.

William J. Brennan, Jr.:

Well the only thing I see in this brief is that limited to that testimony of Mr. Gibbs that he was thinking, he saw Mr. Gilbert around but he didn’t know where he went, is that all it is?

Clarence Walker:

That is correct.

That is a statement of Mr. Gibbs as of the morning of the sixteenth.

William J. Brennan, Jr.:

Well my question is, is that all there is that — well everything happens so fast there.

I’m thinking that I’ve seen Mr. Gilbert drive up there but where he went I don’t know.

Is that all there is?

Clarence Walker:

That is all there is as to Mr. Gilbert on that particular day.

William J. Brennan, Jr.:

Well what is the — otherwise?

Clarence Walker:

We feel that after Mr. Gilbert returned to the field and as he has stated, he took charge of the activities.

We have placed Mr. Gilbert on a picket line on August 22nd by an independent witness who had no dealings with this.

William J. Brennan, Jr.:

Well I don’t think that’s challenged, is it?

Clarence Walker:

It was disputed, but the Court or the jury has solved that issue for us.

William J. Brennan, Jr.:

Well after the sixteenth, was there any violence, I know you said that there’s other evidence of violence after the sixteenth, but was there any evidence of other violence on the picket line itself after he took over?

Clarence Walker:

Not on the part of Mr. Gibbs as Mr. Gibbs never return to this area.

William J. Brennan, Jr.:

You mean Mr. Gilbert.

Clarence Walker:

Or — or Mr. Gibbs.

We cannot print it by Mr. Gibbs as to any related violence towards third persons, only picket line in this area, we do not know.

We do know that there were at least several instances where there was violence or an attempt to violence such as a mass motorcade going to a third person’s mine Mr. George Ramsey to — we don’t know the exact purpose, but it was shown in the record that —

William J. Brennan, Jr.:

Well I know but is there any connection of all these incidents with the picketing of the Grundy mine?

Clarence Walker:

I think the overall situation was more or less directed toward Mr. Gibbs as Mr. Gibbs had previously worked for Mr. Ramsey.

And as one of the basis of the 303 and inducing others not to do business with Mr. Gibbs, we claim that Mr. Ramsey was prevented from either selling to him or allowing him to engage on contracts with the holding of the court.

William J. Brennan, Jr.:

But even that wasn’t enough apparently to sustain your 303 claim, was it?

Clarence Walker:

The District Court felt that was not sufficient evidence to sustain that, although that was one of our allegations and was approved that we tendered.

William J. Brennan, Jr.:

Well what was the go to on your state court —

Clarence Walker:

It would show the intent of the defendant through Mr. Gilbert to intimidate, coerce or cause any of the people in the entire area to withhold their business from Mr. Gibbs.

William J. Brennan, Jr.:

Well why would it be anymore sufficient to support your state claiming that regard then the support your 303 claim?

Clarence Walker:

Well at the time the proof was tendered and we feel that it did go to the 303 action, the court, District Court, felt that it did not.

William J. Brennan, Jr.:

I don’t understand why it was sufficient for the state claim if not for the 303.

Clarence Walker:

We did not appeal from the District Court’s ruling on that particular point.

The only point that we did appeal from is the fact of the damages on the 303.

William J. Brennan, Jr.:

Well do you contend that it goes anyway to the issue of ratification?

Clarence Walker:

Yes it goes to the ratification because after all the knowledge of every act that had occurred on the fifteenth and sixteenth, Mr. Gilbert in his normal duties of organizing the unorganized and settling disputes and a sector as he sets out in his duties was an effort or an effort to keep people from dealing with Gibbs, talk with these other people and intentionally or through acts of the workers and union members try to induce fear and I would say that —

Byron R. White:

Well the Court of Appeals went primarily on ratification.

Clarence Walker:

They went on the ratification I feel certain.

Byron R. White:

Subsequent conduct and ratifying the earlier violence.

Clarence Walker:

Statements of Mr. Gilbert in relation to others as the intention of the district and the International.

This I believe —

Byron R. White:

You place any weight on the telephone conversation that the [Inaudible] in 128, page 128?

Clarence Walker:

I can’t definitely state the intent of the union not to allow Mr. Gibbs to go in to Gray’s Creek and to do the work.

Tom C. Clark:

Well Gibbs — of course Gibbs has said “Well aren’t you to keep your damn names off of that Gray’s Creek area and tell Southern Labor Union, we don’t intend for you to work that mine.”

Would you say that shows an intent on the part of the mine workers?

Clarence Walker:

The intent of the United Mine workers not to let Paul Gibbs work there.

The UMW contended in an unfair labor charge that Mr. Gibbs and Grundy favored Southern Labor Union and that is cited in the footnote of opponent’s brief.

Tom C. Clark:

What did the Board said about it?

Clarence Walker:

They found a violation, but the Sixth Circuit refused to enforce it saying there is not sufficient evidence.

If I recall the correct interpretation of the case that it did not show that they were going to favor the Southern Labor Union as Mr. Gibbs said in the — as quoted in that case.

He was going to work whoever showed up where they started UMW or a no union, he just wanted to — he was going to work whoever showed and he had no intent one way or the other.

But the UMW does show their intent not to let him work at Gray’s Creek, not only with the conversations with Mr. Gibbs himself but with the other individuals and expressing the intent that they’re going to move him out of high places.

The —

Abe Fortas:

Mr. Walker.

Clarence Walker:

Yes Your Honor.

Abe Fortas:

I beg your pardon sir.

Let us assume for the moment, if you will, that the only thing that happened on deprive of the union here whereas a continuation of the picketing.

Is that sufficient as you understand the law to constitute ratification?

Clarence Walker:

With the original violence on the fifteenth and sixteenth, if the union after stepping in continuing or continuously picketing, if not be sufficient under the holdings of the Milk Drivers Union versus Meadowmoor where the facts of extreme violence followed that peaceful picketing may have a coercive effect upon the minds of men.

Now as to that particular point, I don’t know if it would have been sufficient to have that effect but I feel after they take over with the original violence, with knowledge of all the facts that have occurred and subsequently reap benefits from that original violence they have ratified.

Abe Fortas:

And your point then is that if violence occurs even though it’s not authorized whatever that may mean by the union that thereafter the union has disenabled from peaceful picketing.

Clarence Walker:

Not necessarily.

If the violence on a picket line is not extreme violence, I mean if it’s of ordinary fight between two men or some abusive language which similar to Young Dowd case, that in itself would not be sufficient unless it shows that eminent threat to the public disorder to enjoin any further picketing or to prevent further picketing.

And I feel in such case as that the union would probably not have ratified the original violence.

But where in a case such as we have, the extreme violence, they come in and they take over, they subsequently ratify the original conduct because they reap benefits obtained from that in a subsequent contract with the Allen and Garcia Company as brought out by the opponent in 1961.

Clarence Walker:

They entered into negotiations with this company for a provision of agreement regarding the working conditions and training conditions, such matters as that and Mr. Gilbert was present at those.

And in the future negotiations with the effect that Mr. Gilbert who is controlling the picketing also isn’t taking part in these vast negotiations.

It is sufficient in my belief to show a ratification of his conduct and in the obtaining our future benefits.

William J. Brennan, Jr.:

Mr. Walker could you say there was other testimony that put Mr. Gilbert nearby besides this with Gibbs?

Clarence Walker:

On the 22nd.

William J. Brennan, Jr.:

On the 22 —

Clarence Walker:

There is a testimony by Mr. Schwok who —

Hugo L. Black:

Do you know what page is that?

Clarence Walker:

Starting on page 159 of the transcript.

Hugo L. Black:

Thank you.

Clarence Walker:

Mr. Schwok’s testimony said that he sold the card as for Mr. Gilbert knowing it was Mr. Gilbert’s car and Mr. Gilbert came out of the woods located on the side of the road and at that time Mr. Gilbert advised Mr. Schwok, you can’t get through this road but you go on down to another road and my boys will let you through.

So it definitely shows he had complete control of the activities of the men.

Hugo L. Black:

Is there any evidence to what this gentleman said [Inaudible] what they did do that day?

Clarence Walker:

Well Mr. Schwok was stopped at the picket line.

He was a dealer in mining supplies and wanted to go to another mine in area.

And after the discussion with Mr. Gilbert, he states he — and a gentleman with him decided it’s no place to be and left.

The — there was also a rifle lying on a log I believe near the tent where the pickets were located.

And this was not at the interest to the Gray’s Creek road coming up on to the public access road, Pocket Road.

This was located approximately 50 yards from the intersection with a state highway and was not at the area at the Gray’s Creek road.

And that was a road that the way I understand the testimony that Mr. Schwok wanted to go in, they had it block 50 feet off the main road and had another block down at Gray’s Creek and told him he could not go in there but to go on down the road to another place and come back in although he had other pickets down there.

Mr. Gilbert was also placed at the picket line on another occasion when he dropped food off to feed the pickets and the testimony of the members of the pickets is that he came by frequently and visit the equipment.

Abe Fortas:

Was there any dispute as to whether Mr. Gilbert and the UMW did or did not stage peaceful picketing following the events and violence.

Clarence Walker:

They acknowledge that all activities in the course of Mr. Gilbert’s conduct would be the responsibility and liability of the International.

Abe Fortas:

And that includes the —

Clarence Walker:

That includes the peaceful picketing at the picket line or the picket point.

Abe Fortas:

And furnishing of the food.

Clarence Walker:

Furnishing of the food and also one of Mr. Gibbs’ other mines, there was a burning of a burlap sack in the mountain with mine which would cause suffocation of the miners inside and also on several occasions the cutting of a fan belt to the ventilation fan with the — which cut off the ventilation air going into the mine.

Abe Fortas:

At this mine.

Clarence Walker:

And not to the Gray’s Creek area but have a separate mine only into the Coal Valley or not Coal Valley but the Pocket area.

There’s also proof of Mr. — or that Mr. Gilbert testified that he talked with Mr. Travis who at the time was the general superintendent of operation, the vice president of operation of Tennessee Products and Chemical Corporation that felt that the Gibbs’ matter is going to interfere or he showed an apprehension that the problems of August 15 and 16 would carry over not just with Gibbs but into the operation of the Tennessee Product’s mine.

Clarence Walker:

And the discussion seemed to be carried on at some extent and finally, Mr. Gilbert makes the statement that Mr. Travis said he was going behalf to get rid of Mr. Gibbs.

And further that there was a discussion with Mr. Mabel the successor to Mr. Gilbert in the area with Mr. Heuman who was the successor of Mr. Travis.

And Mr. Heuman recognized that in discussions with Mr. Mabel that the Union was or had displeasure with Gibbs and stated he didn’t want trouble with him.

And also they brought out some facts that he — or Mr. Gibbs was prevented from completing a second contract he had with Tennessee Products on a market cement plant.

We feel that that was brought on by an effort of the discussions or the intent shown by the union that they did not want Gibbs doing anything and that the contract was canceled after approximately 8, 10, 12 years of very successful business relations.

And —

Hugo L. Black:

What was the statement that Mr. Gibbs recruited, Mr. Gibbs [Inaudible]

Clarence Walker:

That was Mr. Gilbert’s —

Hugo L. Black:

Gilbert I mean —

Clarence Walker:

— statement to Mr. Gibbs, I believe the date of that was the 17th or the 18th.

Hugo L. Black:

They stayed out from that.

Clarence Walker:

Stay out of the Gray’s Creek area.

Hugo L. Black:

Gray’s Creek area, now what is that area, is that a collection of strip mines?

Clarence Walker:

No, Your Honor, this is deep mines.

Hugo L. Black:

Deep mines.

Clarence Walker:

Deep mines.

You have got mechanical mine and also large mechanical mine and small hand loaded mines.

Hugo L. Black:

And they all were being worked by [Inaudible]

Clarence Walker:

At the time I think the majority of them were but at this time I don’t think they were at the time of the trial, I don’t —

Hugo L. Black:

Even though there was a competition between them and on the — what’s the other union?

Clarence Walker:

Southern Labor Union.

Hugo L. Black:

Southern Labor Union.

Clarence Walker:

And —

Hugo L. Black:

What is it in [Inaudible]

Clarence Walker:

I’m not too familiar with the Southern Labor Union.

I believe that it is a smaller union more or less dealing with mining and related fields.

And —

Hugo L. Black:

Have you been [Inaudible] whether any of them did find some other [Inaudible] with Mr. Gibbs?

Clarence Walker:

Yes, the evidence shows that a number of them came up on the first two days and that they did not come back.

One of them testified or several of them testified is they left on the second day after being told they were not going in.

Hugo L. Black:

And how long was it that before they left with the statement that should been Mr. Gilbert?

Clarence Walker:

One day and they were shot at one states — one time, another says twice as they left.

Hugo L. Black:

Who were they talking to?

Clarence Walker:

Mr. Gibbs.

Hugo L. Black:

Because it’s [Inaudible]

Clarence Walker:

And he also made the statement —

Hugo L. Black:

Was that denied?

Clarence Walker:

It was denied and several others have made a similar statement showing the same intent of the UMW.

Hugo L. Black:

Well that effect was in dispute of the jury have [Inaudible]

Clarence Walker:

Yes Your Honor.

It was decided there.

That — we feel that the jury closed that issue as to veracity and truthfulness of the witnesses.

Hugo L. Black:

And that most objection of the charge of ratification for it?

Clarence Walker:

No.

we feel that the evidence was sufficient to show not only a ratification of the prior violence but after the sixteenth, that the UMW actively participated through its field representative George Gilbert in the — as a principle actor in the thing as he had the control of the various miners and under his duties as a field representative, he used to organize the unorganized.

He settled grievances.

He sat in on contract talks.

He had contracts signed with the operators and the International in district as their agent representative in the field.

Hugo L. Black:

How far was he away from his office away from where this took place?

Clarence Walker:

I believe at the time Mr. Gilbert was living in Jasper —

Hugo L. Black:

Jasper, Tennessee.

Clarence Walker:

Jasper, Tennessee, this occurred at Gray’s Creek which is located approximately five miles, six miles north of Whitwell, approximately 20 miles.

That’s an estimate from Mr. Gilbert’s home and the various activities that have occurred are over the entire range of practically two counties, Grundy and Marin County.

Abe Fortas:

I’d like to be clear Mr. Walker about this one thing.

I think it has been covered and I’d like to be clear about it.

Is there anything in this record that connects Mr. Gilbert personally with any act of violence in the same which he personally participated?

Clarence Walker:

None as I recall Your Honor that personally connects Mr. Gilbert with an act of violence.

Arising out of this same transactions and as quoted by opponent’s brief, in these several NLRB hearings, and one the local union has been found guilty of civil contempt arising out of the enforcement order that was issued or in the case 1961, NLRB versus Local 5881, 296 f2d.

734 and the local was held in that case with civil contempt and subsequently Local 783 and 5881 and district 19 were found guilty of unfair labor practices failing to file his 30 days of picketing and acts of violence under 8 (a) 1.

And those are found in — in NLRB versus Local 7083 of 5881 and District 19, 145 NLRB 247 in 1963.

Clarence Walker:

Further the ratification of all these prior violent acts are shown when the UMW has taken advantage of these acts by recruiting new members in the area and getting contract with other operators, and obtaining the benefits not only of the dues but welfare payments.

We feel the contentions of the petitioner on question number three that they’re entitled to a new trial that’s based entirely on the fact that the judge felt there was not sufficient evidence to sustain the verdict and therefore ordered a remittitur and this is not as the cases have been.

It is strictly within the discretion of the trial court to rule upon the excessiveness of the verdict and whether or not it had been invaded by the prejudice of argument.

Abe Fortas:

Excuse me, Mr. Walker.

Those NLRB citations are in your brief?

Clarence Walker:

No, Your Honor, they are not in my brief.

I do not represent the Grundy Mining Company or Tennessee Consolidated Company and were only made known to me after I came up to Washington approximately a week ago.

And they were not cited in the brief as I had no knowledge of the proceedings that had followed this particular area to deal with at that time.

Abe Fortas:

Mr. Walker, may I suggest that you leave rest of those citations with the clerk.

Clarence Walker:

Yes, Mr. Justice Fortas.

I’ll leave that to the clerk to be [Inaudible]

Abe Fortas:

I understand.

Clarence Walker:

Any error that might have been alleged in the improper argument of jury which we do not feel was — are prejudicial.

It may have been improper, but there was no showing of prejudice upon the part of the petitioner, UMW.

It is most difficult to try a case let alone argue a case to a jury where you have the facts such as are involved in this case where the possibility that the facts themselves might create some problems with the juror.

In fact that a man meets eight men in a road, armed with shotguns and rifles stopping his truck and making him get out and standing two hours under the threat of death is the fact that’s spelled out in the case wasn’t discuss with the jury or even heard by the jury might intend to make him feel a little harsh toward the person that does such.

The fact that the verdict was reduced has no bearing we feel as to whether it was infected with bias, prejudice or sympathy.

There were strictly matters addressed to this trial court in a motion for new trial, and in the exercise of his judgment or discretion, he felt that they were excessive based on evidence of the material in it that he is not on the basis of any prejudice, bias, or misconduct.

He reduced the compensatory damages on the loss of contract as he felt they were excessive.

And as he states, there was not prejudice but strictly excessiveness on that particular point.

The rule as applied by the judge and as affirmed by the Sixth Circuit is one that has been in effect for many years and strictly goes to the discretion of the Court and unless there is an abuse very seldom are ever interfered with.

We do not feel that there was an erroneous theory submitted to the jury.

We feel that if there was in an error arising from that has been waived by the petitioner.

The case well known by all parties involved was very touchy.

The court had many conferences with counsels.

The court discussed the special interrogatories which he planned to submit to the jury.

The petitioner had an opportunity if he was in disagreement with the issues that were going to be submitted, to submit different suggestion or question which they did not do.

They did not object to the form of the questions.

After the jury had retired and the deliberated on its verdict and had returned the verdict to the court, they did not at that time note any inconsistency or make any remarks or objections that the verdict was inconsistent and requested the judge resubmit the matter to the jury for determining any inconsistency.

But let the jury be discharged, we feel that under the practice that has grown up in the various districts and under the federal rules that they waived any right they had to have all the issues determined by the jury and the rest to be determined by the judge which in this case we feel the judge has properly done.

Abe Fortas:

Mr. Walker, I have to say, up at this point I ask you this.

As I understand on what we have before us is a judgment which was passed on by the Court of Appeals, is a judgment on the state law, the federal court having acquired jurisdiction as a result of the Doctrine of Pendent Jurisdiction.

Am I correct thus far?

Clarence Walker:

That is correct.

Abe Fortas:

No Mr. Owens told us as I remember and under Tennessee law, you cannot recover punitive damages and where liability results from the Doctrine of Respondeat Superior.

Clarence Walker:

On the period of conspiracy which was charged in this, there are recoveries allowed for conspiratory for punitive damages where it shows oppressive, fraud or conduct that is oppressive.

That is the cases on those are cited in the brief that’s Brumley versus Chattanooga Motordrome.

Abe Fortas:

Can the jury make a finding of conspiracy here?

Clarence Walker:

They found I believe that there was a conspiracy to violate the common law rights of the — Mr. Gibbs.

Abe Fortas:

So that your position is that this is taken out of the category that to what Mr. Owens referred by reason on the finding of conspiracy and that therefore punitive damages was allowable even they’re guiding this as a – under state law.

Clarence Walker:

Where the conduct in the violation of a contractual right or relation, the conduct be such that in first and intentional desire without justification to harm someone, there would be sufficient proof there to award punitive damages.

On the agency problem, most of the cases which I have cited in my brief do show a conspiracy or a combination two or more.

Abe Fortas:

So what do you — as I understand it, you — your interpretation of Tennessee law is that in order to impose punitive damages upon a principle where the liability is based on respondeat superior, you must also fill in more conspiracy.

Clarence Walker:

That is correct, Your Honor.

Abe Fortas:

And the principle need not be a member according to that conspiracy that this principle have to be.

Clarence Walker:

The principle would not have to be.

There would be a derivative, the agent to derive his authority from the principle and any act which he does in accordance of the conspiracy, although the other conspirator maybe hundred miles away, anything done in the furtherance of the conspiracy would be binding and all would be liable.

Abe Fortas:

Is there an act?

I ask you these questions because I get the feeling that there was some what shall I say, confusion or overlapped in the proceedings in this case today between the federal and the state theory and if it is conceded that what we now have is a case on which damages were awarded under state law regardless of the source of jurisdiction then I suppose that it would be relevant to say whether the damages, area of the damages accords with the principles of the state law or whether perhaps there again, there has been some infection from the presence of a originally in the complaint of a federal cause of action.

Clarence Walker:

The case was originally tried by Mr. Joe Bernadette who is now deceased and as to all the ins and outs in various thinking, I was not in on the contents of all those of their time in the associate.

But in reviewing what papers I have, I feel that the basis of the case is on the same grounds in accordance to the federal and state law.

And there is a distinction between the Sanchez Growers case as that was something that was prohibited by state law that a conspiracy be able to be found between the two cooperatives and therefore you could not have a conspiracy where it is already been prohibited.

Therefore in that case, you could not have a conspiracy.

Therefore the error about a judge in the charge of the Court was sufficient to reverse that case but in this case, we do not have the problem as found in the Sanchez case.

If you have no further questions, Your Honor.

Abe Fortas:

Was Sanchez case really do agree that Sanchez held that whether as a general verdict and one theory which appeared then the liability of general verdict was banned and valid that retried case has been the first to remand for retrial.

Clarence Walker:

If it’s inconsistent to one another in this particular case it was.

In the Sanchez case the cooperative could not be charged under Antitrust Act due to the fact that they were specifically exempt under Volstead-Capper Act.

And the judge in making his charge to the jury so worded the charges that it could be a misleading or erroneous theory that the jury could have found on.

Abe Fortas:

I see.

Clarence Walker:

But I don’t think that is in our present case.

Willard P. Owens:

On the question of the liability of a principle, the respondent punitive damages under the law of the State of Tennessee, I’d like to refer to the Court to the case of Early versus Roadway Express which 106 Federal Sup page 938, that’s not cited in our brief.

[Inaudible]

Willard P. Owens:

It’s 106 Federal Sup 938, and under Tennessee Law, the fact that they — an agent enters into a conspiracy does not make the principle liable in punitive damages that the principle must do the act of youth because on the theory that as many states have which you can impute malice to the principle.

Some states don’t have that rule.

Tennessee is one of them.

[Inaudible]

Clarence Walker:

Well Your Honor, that’s the one I have which cites Gibbs, this is federal case in the District Court in Tennessee but reviews the Tennessee Law applies it goes over the Tennessee cases that hold that.

This is the one case that I do know of and it’s the main clearest expression of that doctrine.

I want to refer to the Labor Board cases.

I understand —

[Inaudible]

Clarence Walker:

And I want — I’ll try and do that.

I won’t say that the labor board great cases that were involved.

Now the — there was no ratification by conduct that the Labor Board found contemptuous.

This contempt of the Labor Board order was after this case was even tried so that the conduct there did not even involved Gibbs and could not be considered as ratification of the conduct in Gibbs.

Now there was a Labor Board complaint and a board order against Local 5881, a cease and desist order alleging that that local union but not the International Union and not District 19 had violated Section 8 (b) 1 (a).

And that there was later – by later conduct they held that the local union had contempt of the action but not in relation to the Gibbs incident.

And I want to refer to the testimony of this man’s quote, the man who testified that he found Gibb or Gilbert along the road but he was not picketing, that he found him and he came out of the woods and asked directions to a coal mine.

He said, “No, you can’t go this way.”

He was not telling you can’t go down this road we’re picketing.

But he was asking the direction to another coal mine and he said, “You can’t get there that way.

You have to get down here to another road” and he said, “You’ll find some of my men there,” I think he referred to him and tell him, “I said that you can go on through” and I don’t think form that fact that a representative calls the members or people down there or tell him my men that that constitutes these men are picketing on behalf of the United Mine Workers of America.

Particularly these people are employees, he started of this picketing in their own individual capacity.

Then it was — the point was raised about action regarding George Ramsey, another coal operator and Howard Hueman, and Woody Travis who represented the Tennessee Products and Chemical Corporation.

Now we didn’t loose every point down in the District Court.

We got a directed verdict on that point and never went to the jury.

And they withdrew all of that evidence from the jury because they alleged the secondary boycott involving those companies which was completely separate cause of action and for which he offered no proof of what he alleged.

So that cannot be the basis of finding liability by UMWA.

The second thing is that all of the employees, the replacement employees left before the conversation, the telephone conversation that Gibbs had with Gilbert which Gilbert said to the effect, “We don’t want you to bring in the Southern Labor Union in here.”

Clarence Walker:

And that conversation had nothing to do with these employees not coming in the area.

Of course any labor union in America would resent them bringing in another labor union or bringing in replacement of these employees.

Then the — it raised the point and the Court referred to this about that there was smoke in one of Mr. Gibbs’ mines.

What that testimony is that one of the employees who testified on our behalf said that a man running, holding the coal out said that a rag caught on fire and he took the rag out and so there was no trouble.

That was the smoke incident.

Nothing had anything to do with the Gibbs’ incident with Grundy or the employment in Grundy.

And another time, they didn’t even know when this was.

They said that the belt was cut.

There is no evidence to how it was cut, why it was cut, were those accidental, or what was involved, or even the time that was involved.

And so that had nothing to do with the sense of — list thing — reason I didn’t mention it.

Now on the question of the application of Section 6, the Patent case was cited.

And the Patent case applying the common law of agency that that was strictly a Section 303 cause of action and there was —

[Inaudible]

Clarence Walker:

I think that yes —

[Inaudible]

Clarence Walker:

Well he — counsel referred to the Patent case, but I think that it’s in Section 301.

I don’t whether I can recall the exact wording.

It said that for the purposes of this section which is 301, that a question of whether or not a — specific acts were authorized or participated in or ratified shall not be controlling.

And that the legislative history shows that what was intended by that that this Court’s interpretation of Section 6 should not be applied and that the common law of Agency would be applied to that section and to the Taft-Hartley Law but not to —

[Inaudible]

Clarence Walker:

No, I —

[Inaudible]

Clarence Walker:

I do not have a section before me, Your Honor, but I think — if you’re referring to the sections were they give the definitions of what constitute agency which I think that has been interpreted to apply to all sections of the Taft-Hartley Act but Taft-Hartley Act alone.

And that we contend that though that as to the state cause of action, there shows that the Section 6 of Norris-LaGuardia Act applies.

Merely to sum up, we think that by finding union responsibility here for what George Gilbert did that there couldn’t be any greater conflict or greater frustration of congressional intent.

Its purpose of course is to reduce industrial conflict.

What they do here in this case is make the union liable for stepping in and saying, “We’ll have peaceful lawful conduct.”

Now what does the union to do in a situation like that?

Is it now to investigate every situation to determine and then weigh the evidence to who’s telling the truth or whether it was violence or not, and then say to the employees, “From now on, you’re no longer entitled to engage in concerted activities and your rights are in an end.”