Vaca v. Sipes

LOCATION:Canada Packers LTD. Headquarters

DECIDED BY: Warren Court (1965-1967)

CITATION: 386 US 171 (1967)
ARGUED: Nov 17, 1966
DECIDED: Feb 27, 1967

Facts of the case


Audio Transcription for Oral Argument – November 17, 1966 in Vaca v. Sipes

Earl Warren:

Number 105, no, no. Number 114, Manuel Vaca, et al., petitioners, versus Nile Sipes, Administrator of the estate of Benjamin Owens, Jr., deceased.

Mr. Feller.

David E. Feller:

Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of Missouri as that court imposed a judgment of $10,000; $7,000 compensatory and $3,000 punitive on the members of the National Brotherhood of Packinghouse Workers were represented here by the petitioners who had been sued as representative of the class of the members of that union.

The basis of the suit to originally found — filed in the Circuit Court of Jackson County, Missouri was in essence that the union had failed to process the grievance, a grievance to arbitration.

The facts, I think, are relevantly simple.

Benjamin Owens who was originally the plaintiff, now deceased, was a worker in a Swift Packinghouse in Kansas City, Missouri.

The union there is the National Brotherhood of Packinghouse Workers, an independent union.

Mr. Owens had a long history of heart trouble and high blood pressure.

He had been treated in hospitals since 1956.

In May of 1959, he felt so bad that he felt he had to take off work and did take off work.

Under the contract, it was a sick leave provision.

You have to be disabled in order to draw the sick leave.

He reported to the company doctor.

The company doctor took his blood pressure and he said, “You won’t hold, you’ll get your sick leave.”

Abe Fortas:

How old was he at that time?

David E. Feller:

I’m not precisely sure.

Abe Fortas:

Never — never mind.

David E. Feller:

In any case, he went home, in fact went to the hospital, remained under treatment.

He made one effort to come back to work.

He was then examined, the company doctor said he was unfit to work.

He made a second effort when his sick leave had expired, he had 6 months, 27 weeks of sick leave to come back to work.

The company refused to permit him to come back to work and he filed a grievance under the Collective Bargaining Agreement.

The union asked him to produce doctor’s certificates saying he was able to work and he produced a great number of certificates saying either what his blood pressure was, reciting his blood pressure or reciting that he was able to work.

And the union processed the grievance through the four steps provided under its Collecting Bargaining Agreement beginning up a Foreman’s level and working up to the National Union Level and the company refused to put him back to work.

Now the fourth step involved the national representatives of the union and we do have in the record here report of what happened in the fourth step.

The company took the position that it could not in view of its own records as to its previous history and as to its doctor’s report put him back to work simply on certificates saying Mr. Owens is able to work or Mr. Owens’ blood pressure is so and so.

But it would require further evidence.

The union then after the fourth step making tried to persuade — there was a joint effort to try to persuade Mr. Owens to apply to do other work or to apply for Social Security Disability Pension under Social Security.

He rejected that and so the union said, “Go to your doctor, we will pay for it, and get an examination, a complete examination that will give us the kind of evidence we need to get you back to work.”

David E. Feller:

He went to one of the doctors who had provided the certificate.

According to his testimony, the doctor said he was not equipped to give him a complete physical examination of the kind requested and referred him to a heart specialist.

Mr. Owens went to the heart specialist, the heart specialist examined him, concluded that he was totally unable to work; that no employer could hire him because the work was compensation liabilities; that he was totally and permanently disabled and eligible for the Social Security sent such report to the union.

Union Executive Board met, decided, the motion was made to take the case to arbitration nevertheless.

The Union Executive Board decided in the light of this report, it would not take the case to arbitration but even then did not withdraw the grievance, left it pending in a hold status in the event that something later should develop that would enable him to get Mr. Owens back to work.

Earl Warren:

Mr. Feller, this doctor who made that examination was of his own choice?

David E. Feller:

Well, it was really chosen by his own doctor.

Earl Warren:


David E. Feller:

He went to Dr. Hesser and Dr. Hesser recommended Dr. Day to him.

The union had no choice in the doctor.

The union said, “Go get a doctor and we will pay the cost and get us some evidence so we can take this case to arbitration.”

After the union did not take the case to arbitration, Mr. Owens then brought suit, he actually filed two suits.

He filed a suit against the company claiming a breach of the Collective Bargaining Agreement and he filed a separate suit against the union claiming essentially the same thing, a breach of the Collective Bargaining Agreement but also claiming that the union had wrongfully, improperly, arbitrarily refused to take the grievance to arbitration.

The case against the company has never been tried, still pending from my stipulation of the parties, awaiting result in this case.

The case against the union was tried to a jury.

The essence, they tried the merits of the grievance before the jury.

The testimony — there were no medical testimony.

Incidentally, they’ve put — the doctor’s certificates were put into evidence.

Dr. Day’s report was put in evidence and there was much testimony as to the nature of the kind of work that Mr. Owens had done since he’d left Swift and how well he felt and how he played ball and did a lot of other things.

And the jury returned the verdict of $7,000 compensatory damage, $3,300 punitive damage against the union.


David E. Feller:

Well, that’s a very difficult question, Your Honor, as far as I can make out and in Col. Brown in the theory of the suit was that the union was Owens’ agent and it had wrongfully refused to take his grievance to arbitration.

That’s — as — that’s I think the statement in the complaint.

I think that’s the statement — the question that was given to the jury by the judge’s charge.


David E. Feller:

Well, that I think was the — I would characterize it that.

I don’t think they – anybody used that language.

Suppose I (Inaudible)

David E. Feller:

Again, the answer is yes, as far as I can make out.

No reference was made to any federal decisions, any federal law and Col. Brown here takes the position that this is a simple common law principal-agent relationship and that —

Doesn’t take all the (Inaudible)

David E. Feller:

I do not know.

I simply do not know.

In any case, the jury entered the verdict then the interesting part happened.

The trial court set aside the verdict on the ground that this was a matter exclusively for the National Relations Board.

Owens then appealed.

A few weeks after he filed his notice of appeal before it was argued in the Kansas City Court of Appeals, he died.

He died incidentally precisely of the ailment that Dr. Day said he would die of if he went back to work.

His administrator continued the appeal.

Kansas City Court of Appeals affirmed the trial court’s setting aside of the verdict on preemption grounds but referred it then because there was a dissent to the Supreme Court of Missouri.

The Supreme Court of Missouri reversed, holding that the matter was not preempted by the National Labor Relations Act precisely because there was no claim and no evidence of bad faith or discrimination against Owens.

There was no showing that the union had used — was — wanted to get rid of Owens but it was just simply a question whether the grievance was a good one and then it passed to the question as to whether there was sufficient evidence to sustain the verdict.

It found that there was because there was conflict between the medical certificates on one side of the other and sustained the judgment, doing only one thing, reducing the punitive damages to $3,300 because it was more than the addendum in the complaint to $3,000.

Earl Warren:

Mr. Feller, —

David E. Feller:

And this Court —

Earl Warren:

— what was the claim about it being a $300 demand from the union?

David E. Feller:

Well, that’s a very curious claim and for the purpose of this case, I think I have to treat it in the light most favorable to the other side and I will just tell you what Mr. Owens said on the stand.

Mr. Owens said that Mr. Vaca, the president of the local union, told him that the grievance was no good and that the local union didn’t have any money.

But that if he would pay $300, then certainly they would see what they could do, or they would take it to arbitration.

Mr. Owens was asked what was the $300 for?

He said, “To pay the cost of the arbitration.”

Now, there was contrary testimony, I think, and the fair reading of the record is that what really happened is what Mr. Jamerson said who had wanted to take the case to arbitration regard himself as Owens’ representative and he said that Owens had come to him and he said, “If you’ll take the case to arbitration, I’ll give you $300.”

But in any case accepting Owens’ statement, what Vaca said to him is, “This is a no good grievance but if you’re willing to pay the cost of it, we’ll take it to arbitration.”

And that’s on Owens’ own testimony.

He was twice asked on this on the record and in both times said that the $300 was to pay for the cost of the arbitration.

Now Vaca denied ever doing that, he said, “If it’s a good grievance we’ll take it up, if it’s a bad grievance we wouldn’t take it up and I wouldn’t ask for the $300 in any case.”

But a secong their version, the plaintiff’s version, the only thing that the union did here was to say, “Well, if we — if you want us to take a bad grievance, which we can’t win the arbitration, you pay the cost.”

$300 wouldn’t be the cost of it in any case.

Before I finish, I — my partner tells me, Mr. Justice Harlan, that he was 51 at the time of trial, Mr. Owens was 51 at the time of the trial.

Earl Warren:

We’ll recess, Mister.

Earl Warren:

Now, you may continue your argument.

David E. Feller:

May it please the Court.

The central question, I think, in this case, most significant one, is the nature and extent of a union’s responsibility in processing or refusing to process grievances under a typical grievance procedure.

Well let me state at the outset it is argued that this is a federal duty imposed by federal statute and governed by federal standards.

Section 9 (a) of the National Labor Relations Act provides “That if a majority of the employees in a collective bargaining unit choose a union as their representative, it shall be the exclusive representative of all those employees in dealing with matters with regards to wages, hours and working conditions and that includes not only the negotiation of an agreement but by the specific terms of the statute, the processing of grievances under that agreement.”

Now, this has nothing to do with the law of principal and agent, the common law of principal and agent, has nothing to do with membership, the duty runs to all persons in the bargaining unit, members or not.

The authority which the union is granted by Section 9 Act, this Court has said, “Imposes upon that union a responsibility.”

And that responsibility we believe is a federal responsibility, the limits of that responsibility and the remedies where that responsibility is not met are, we think, matters of federal law.

Now that federal law is suggested in a number of decisions of this Court.

I think, as this Court, we believe, that duty should be defined by this Court in light of the institution we’re talking about.

The grievance procedures are rather remarkable institution; it’s not explicitly provided for in any statute.

It exists in almost every collective bargaining agreement.

It’s a uniquely American contribution to social institutions of this world.

It is a procedure by which the union, acting for the employees, processes through steps initially the employee initiates the grievance, succeeding steps of the hierarchy both on the union side and the company side, complaints that the company has violated the collective bargaining agreement.

Essential to the operation of this kind of procedure is the assumption which both parties made.

That the union will act responsibly in administering its side of the procedure and that will in fact take two arbitration if arbitration is provided.

And indeed will take only to the next step those grievances which it finds are meritorious.

The system could not exist, literally could not exist, if the union were obliged, as the agent of each employee, to take each grievance irrespective of its use of the merits, all the way through the procedure and to arbitration.

Indeed, I would be less than frank if I say that the greatest problem faced by those unions in administering a grievance procedure is the problem that all of the political push in the other way, after all the union exist in the given plan only if the majority of the employees have selected that union, they have a right to change it.

The officers of that union run for election, required to run for election, every three years, the maximum period, under the Landon Griffin Act.

The easiest thing for a union representative to do when a member comes to him and says, “I have been — company’s violated the agreement in this way, that way” is to pass it on through the steps of the grievance procedure and take it to arbitration and if the man losses it’s just because we had a lousy arbitrator, “it’s not my fault, vote for me next time.”

And in the literature and as I say in actual experience, the greatest problem is when unions do not exercise their responsibility and do not screen out the grievances, do not eliminate those which do not present generally — genuinely meritorious issues.

If unions do not do that, the procedure collapses.

And the question in this case really then is, “Does the law, the federal law, governing the relationship provide that an employee who is not satisfied with the way the union has handled it’s grievances, provided that that employee can go to court and have a court or a jury, under this case a jury, express its opinions as to the grievance and award damages against the union?”

If every union have issued, must have looking over its shoulder, the possibility of a court suit if it decides that this grievance is no good.

Then the unfortunate tendency not to swing grievances will be magnified a hundredfold.

And indeed, the short period since this lawsuit was first decided, the people in the business tell me that they were all — is already on effect.

Now that doesn’t mean of course that the union is free to decide not take any grievance for any reason or no reason.

The union is the administrating agents for the employees in this case.

And the same standards which this Court has laid down the exercise of the duty of fair representation in the negotiation of an agreement, we think apply to the grievance procedure in the determination of the union not to process a grievance.

Earl Warren:

Not a process of what?

David E. Feller:

A grievance.

Earl Warren:


David E. Feller:

Not to take a complaint to arbitration in this case.

Or for that matter, I suppose this question is the same, where there is no arbitration at the end, you know there are a number of industries in this country, General Electric placed in the newspapers most recently where grievances are not ordinarily arbitratable, only discharge grievances are arbitratable in General Electric.

Other grievances, you go through a procedure.

The procedure is the same, you get to the end of the fourth step, whatever the numbered step is, and then the union has the option of striking you or not.

That’s the old fashion way.

And I suppose the same question would be raised where the union says, “We don’t think this grievance is worth striking about.”

There are those who believe that when the grievance procedure doesn’t work, that’s the way to do it, get rid of this arbitration business because the union keeps taking this frivolous cases to arbitration and eliminate arbitration and put the strike provision in.

But in any case, it is our view that the federal duty is what this Court has said that duty is.

In Ford Motor Company against Huffman, in Humphrey against Moore, and that is a duty to do its best in good faith, exercise its responsibility to all the employees in handling the individual grievances of any one.

What more with the (Inaudible)?

David E. Feller:

Well, that’s the next question, Your Honor, assuming that that is the duty, we have a very difficult question as to whether that duty is enforceable to the courts or through the National Labor Relations Board.

Now, I’ve said that this duty is a federal duty imposed by Section 9 (a) of the Act as this Court has construed Section 9 (a).

That is not the same thing as necessarily saying that a violation of that duty is an unfair labor practice under Section 8 of the Act.

The board is given authority to remedy unfair labor practices, i.e. violations of Section 8 of the Act.

But not every interference with the right guaranteed by Section 7 or the rights and obligations implicit in Section 9 is an unfair labor practice.

The simplest case is of course, when not an employer but somebody else interferes with the employees in engaging their right to strike or a State passes a law that you can’t strike.

That law — that impinges on rights protected by Section 7 but it’s not an unfair labor practice.

The question of whether it is an unfair labor practice or not is a much litigated one, the Solicitor General has supplied a Memorandum that it gave to the court yesterday, the most recent decision on the question on the Court of Appeals on the Fifth Circuit, Local 12 of the Rubber Workers versus NLRB which sustains the board’s present view, a view which it has adopted quite recently.

That precisely what was involved here, the refusal to process a grievance but in that case found to be for discriminatory reasons, is an unfair labor practice.

Now if it is an unfair labor practice and I really express an opinion on it and I think it would be improper for the court to decide it in this case.

If it is an unfair labor practice, clearly, the courts have no jurisdiction.

Byron R. White:

What isn’t necessarily so, Mr. Feller?

David E. Feller:

Well, I believe it is so, Your Honor.

Byron R. White:

Oh, do you believe that there is another — there’s a possibility and you don’t agree with it I’m sure that it’s also breach of contract.

David E. Feller:

Well, let me address myself directly to that.

The complaint against the union for failing to process a grievance, it is a complaint that it has failed to perform a duty imposed by the law not by any contract.

Byron R. White:

Well that’s solves — that’s — answers the question by stating it that way.

David E. Feller:

Well, I know it’s improper for me to ask Your Honor questions but I don’t what contract it can be said the union is violating.

The employer has presumably in this case violated a contract and that’s why the employee has a complaint, and if he sues the employer or if he sues the employer and the union jointly, in that lawsuit is a complaint that the employer has violated the contract.

But the question where he sues the union, he is suing it for breach of its obligation to represent him.

That does not derive from contract; indeed it has that same obligation to represent him irrespective of what is in the contract or indeed, if there is no contract at all.

It is his agent, his representative, pursuant to Section 9 (a) and therefore the duty which is being enforced in our — my view is a duty imposed by the National Labor Relations Act.

Now in the Section 301 cases, in Smith versus Evening News, we have conduct a breach of a contract which is in violation allegedly of both a contractual obligation and an obligation imposed by the law, that case of discriminatory discharge.

This Court held in Smith versus Evening News that the fact if you have violated the law by the same conduct which you have violated the contract does not mean that you cannot proceed to obtain a remedy for the violation of the contract.

But all that is being sought for relief in this case is a violation of the statutory obligation.

William J. Brennan, Jr.:

But suppose, Mr. Feller, the contract — I remember seeing one, but suppose it had a provision, the agreement of course with the employer and the union undertakes in good faith to represent the employee.

David E. Feller:

Well, I’m not sure it would be proper for the employer to be agreeing as to that —

William J. Brennan, Jr.:

But he might.

David E. Feller:

Let’s throw those a constitution which is dial — or an agreement between the union —

William J. Brennan, Jr.:

Let’s take mine first.

David E. Feller:


William J. Brennan, Jr.:

Let’s suppose the collective bargaining agreement in which that appeared.

David E. Feller:

Well, I —

William J. Brennan, Jr.:

I’ve never seen one but it’s not impossible there could be a — such a provision.

David E. Feller:

That the employer and union agree —

William J. Brennan, Jr.:

That the union shall in good faith represent the employees in the administration of this contract.

David E. Feller:

And the employee would then sue as kind of a third party beneficiary of the contract between the employer and the union.

Well, I can conceive in that case — I will — no, I’ve never seen such a contract.

You could argue that as a third part beneficiary, he could sue and the standards would then be the contractual standards.

He would be suing for the violation of the contract and it may say imposes stricter standard or a looser standard.

William J. Brennan, Jr.:

Alright, let’s make it easier.

And the union undertakes to represent the employees in the administration of this contract in all respects consistent with the obligation under the National Labor —

David E. Feller:

Well then the standards in enforcing a contract would be the same standards in the law then presumably you would be seeking to enforce the contract.

But you would not be seeking — but in this case, and in no case that I have ever heard of, are you seeking to enforce a contract?

You are seeking to enforce a duty defined by the statute and bounded by the statute.

Now if that duty is enforceable through the procedure of the National Labor Relations Act or arguably so under the Government Standard, then the courts — there is no situation except the particular expressed congressional provision in Section 303 of the Act that you can also sue for breach of secondary boycott.

There are no other situations I know in which a duty imposed by the federal act is enforceable both by the courts and the National Labor Relations.

David E. Feller:

Now, if this is and I would urge Your Honors to simply permit that question here as you did in the Huffman case because I think this case can be disposed of without dealing it with it and I would be embarrassed to tell you the truth if Your Honors would say its arguably an unfair labor practice here and then got the Rubber Workers case which petition for cert is going to be filed and then found it was not an unfair labor practice.

In the Far Flagship cases, Your Honors dealt with that very nicely.

You had the two cases together, the one you said its not enough, the Labor Act doesn’t apply and therefore in the second one you could say it’s no longer arguable.

And unfortunately, we’re here before the Rubber Workers case was here.

Now, I’d like if I may Your Honors, just reserve the balance of my time for rebuttal.

Earl Warren:

You may.

Mr. Brown.

Allan R. Browne:

Mr. Chief Justice, may it please the Court.

My name is Allen Browne, Kansas City.

If I may, I would like to supplement the statement of facts made by counsel for the petitioners very briefly.

There was — the way it was put to you, not a long history of a disabling heart trouble, disabling.

Owens had had heart murmurs all of his life.

A congenital matter, he said his parents had it too and all lived to a nice old age.

But he did have this murmur in his heart.

He had high blood pressure to some extent but the crucial point that caused him to lay off was because he was tired and he had good reason to be tired.

He worked 12 to 14 hours a day with an associate heaving huge sides of beef weighing 450 pounds perhaps up and hanging them on hooks and after 16 years of that satisfactorily performed, he became rather tired.

He was 46 years old then.

And so he had sick leave and the like and he decided to take off.

He went to the doctor and the doctor did not blame it on heart trouble but blamed it on his being too fat and he was too fat and he took off 50 pounds.

He took about 2 or 3 months to do it and when he came back ready to go, he had the “okay” of his doctor, his own doctor who is stated by the other side or by the company to be a recognized doctor and then he got other statements from doctors that his blood pressure and everything was all right, he was able to work.

He produced a total of six doctors and this of course, to me, is more of a jury question than any other question but I wouldn’t want the court to have a wrong impression about that.

After they refused to let him go back to work, he went in to what jobs he could get without a benefit of a recommendation from his former employer and he did some very hard work; he climbed trees, sawed off branches and did whatnot and that went on for at least three years, I think before the case was tried.

The case was tried in ‘64 and this lay off if I remember right, occurred in ’59.

So there’s five years right there and then after the case, and he got a work; he still worked along and he did finally die and I think he died from hypertension which I suppose could happen anytime to anybody after the lapse of five years with or without the work.

Now, as to one doctor saying he was not suitable to go back to work, that is true.

In fact, two doctors, one, the country doctor and the other doctor that he went to on recommendation of his own said that.

But six doctors said that he was able to go to work and this again to me is strictly a jury issue if unless it impinges on the question of whether he had a meritorious case.

Now that had some slight effect, it seems to me, upon the question — the cases that appear here.

If I heard correct then it was a little difficult for me to catch the question that was asked, someone inquired one of Your Honors about whether there was punitive damages sought, there was and punitive damages granted and I blush to say if the jury did give more than we asked and that however has been taken cared off in the Missouri Supreme Court by remedy.

The $300.00, I thought — which one of Your Honors inquired, taking our testimony at its best as the jury verdict entitles us to do, I think, the $300.00 was not taken with the statement that it was a poor claim but he’d take the $300 for a cost.

Allan R. Browne:

But the $300.00 using an inference which a person of ordinary reasonable understanding would take and which I am sure the jury took was — is what a man in the street would call a lug.

It was completely without authority; it was outrageous and the word I used is the word of one of the union officials when asked about that.

It was improper and again that word is in quotes from one of the union officials when asked if such a thing could be done.

So much for the fact —

Earl Warren:

Mr. Browne, would you mind defining a “lug”?

Does that mean that it went to the — the money was to go to an individual or was it to go to the union?

Allan R. Browne:

I suspect and by inference that it was to go to the individual because the officials termed it improper, you see and therefore, I think, the jury was entitled to say that it was in plain language a “lug.”

Earl Warren:

And the officials, you say, the officials, is that —

Allan R. Browne:


Earl Warren:

Was the —

Allan R. Browne:

Two of the officials —

Earl Warren:

Was that in the record?

Allan R. Browne:

In the record.

I’m not talking out of the record, Your Honor.

Earl Warren:

Yes, yes.

Allan R. Browne:

In the record —

William J. Brennan, Jr.:

— is “lug” then synonymous with a bribe or a pay off or something?

Allan R. Browne:

To me, it is.

And I haven’t gone to use that strong language, Mr. Justice Brennan, but to me it is.

What else could it be when they termed it outrageous and improper.

But then again, this goes to the arbitrary and the malicious actions.

Now may I just quickly advert to what the whole case is based upon in our view which is upon an arbitrary and a malicious act by an agent, we say a faceless agent.

This has other support than just this one — a matter and we have outlined a number of those in our brief which you can of course get as quickly as I could give them to you here but in short, one of them is that this very person who asked for the “lug” had a Freudian slip in his testimony and he said that dismissing the grievance clandestinely one month before the case was tried, if you please, was in retaliation for bringing the suit, then later he corrected himself.

But there again, this is a point which I feel that this Court has a right to take but its common sense in the consideration in which the jury did take.

There are other things involved in the question of arbitrariness and maliciousness in connection with faithless representation by an agent of his principal —

William J. Brennan, Jr.:

Is that sort of a tort concept?

Is that a tort concept, arbitrary, malicious —

Allan R. Browne:

Arbitrary is a court concept in the Gonzales case, Mr. Justice Brennan, and in other cases and this is the basis that the Missouri Supreme Court used in its opinion entirely in which we’ll bring in just a moment to the question of discrimination then known, an important feature in this case as I see it.

Yes sir, the action in the — began in the Missouri case is based upon a breach of a contract or a faithless failure by an agent to represent his principal.

The contract, being the duty, it is true is set out by the bargaining contract but of course there’s a common law duty in addition and it is laid under our view as an internal matter involving the internal operations of the union, the petitioners.

Allan R. Browne:

It is laid as arbitrary and malicious and when I say laid down meaning the petition, of course, and nowhere in the petition, in the evidence, in the submission by instructions to the jury is unfair labor practice or discrimination mentioned or adverted to.

This, in our view, is a simple case brought under the common law duty of an agent faithfully to represent and the agent, its true became the agent by virtue of the bargaining contract and even perhaps by the statute as counsel mentioned.

But however, he became the agent, his duty still remains governed in one instance, in or view, by state law.

Now —

Earl Warren:

Does this mean Mr. Browne that in all of the many thousands of cases under contracts that provide for arbitration and labor matters that the union is obliged to go through the entire process including arbitration or be subject to the jurisdiction of a court or to be sued for damages or its failure to do so?

Allan R. Browne:

I understand your question, I think.

No sir, of course not because this would put an impossible burden upon everybody concerned.

Now we’ve nowhere urged that but the touchstone, Your Honor, is as I see it is arbitrary or malicious actions, then they must respond.

But only then and that is the touchstone that the Supreme Court of Missouri used in its opinion.

It confined itself solely to that.

It discussed other features of course and incidentally, now the question is raised of discretionary power of the union which has some nixes with your question, I think, and as to discretionary power, the union does have discretionary power; it must.

We are the first to recognize that.

But to what limit because we can have tyranny in union officials as well as in other places and therefore, the law must have some control, I feel, in regulating that and the law has said it will take control especially in the Gonzales case and in other cases since that time by regulating arbitrary and malicious actions.

These are our points in this particular frame of factual matter, we feel.

First, if I — I’m not putting them in order of importance, but the $300.00 averages an improper request.

I don’t and probably shouldn’t use the word “lug” because it’s a bare knuckle word but it certainly was a strange thing.

They didn’t deny it in a sense because in their evidence, they came out and tried to turn it around and say that Mr. Owens had requested, had said he would give $300.00 to Vaca or somebody if he could win the case for him, like on a contingent basis.

You see, this was for the jury, we feel.

But it was not just an isolated thing that Mr. Owens had made up because they took it on and tried to turn it around the other way.

Now, this retaliation business is significant to on this arbitrary question, if you please.

And another thing is the clandestine dismissal one month before this case was tried, if you please.

The grievance then being in the fourth step, there were five altogether, the fifth is the only meaningful one in a really contested case because the others are all presented to the employer.

The meaningful one is the fifth step when you go to a neutral arbitrator that was the one where the union bought.

Now another point along that line, if I may continue with these points is that the union all along the line had publicly declared that this claim was meritorious; they said it was meritorious.

They had all of these doctors’ statements, six to two.

And when we challenged the — one of their officials at the trial as to how he could say that it was meritorious at one time and then at another time no, it’s not; why his answer was, “Well we might the twist some facts a little bit to suit the occasion.”

To me, this too, adds to the general pile of arbitrary actions that are shown by the evidence here.

Then we get to the —

William J. Brennan, Jr.:

What — would you excuse me.

Allan R. Browne:


William J. Brennan, Jr.:

Why didn’t you sue the employer?

I suppose that — have you got an action going against the employer?

Allan R. Browne:

We had an action gone — going but it to me is contingent upon the decision here.

I think it may be inconsistent with this and it has been held in advance by the court below.

William J. Brennan, Jr.:

I know but if you say the breach of the duty is a failure to take the claim to arbitration.

The claim in arbitration is essentially that the employers breached this contract.

Allan R. Browne:

I think we’d have trouble with the case against the employer —

William J. Brennan, Jr.:

You mean the employer didn’t breach his contract.

Allan R. Browne:


William J. Brennan, Jr.:

You mean the employer did not breach his contract?

Allan R. Browne:

Well, no I think this that we didn’t exhaust our remedies to the employer and that he has a defense there, you see.

That’s our peak —

William J. Brennan, Jr.:

You mean in the arbitration, the arbitration?

Allan R. Browne:

We didn’t exhaust our remedies and that’s what this suit is about because the union —

William J. Brennan, Jr.:

I see.

Allan R. Browne:

— wouldn’t help us to exhaust the remedy.

William J. Brennan, Jr.:

So the employer would say to you in his court suit, “You haven’t taken it —

Allan R. Browne:

He would —

William J. Brennan, Jr.:

— to arbitration and —

Allan R. Browne:

He has —

William J. Brennan, Jr.:

He has said it?

Allan R. Browne:

He has said it.

William J. Brennan, Jr.:

Is that in —

Allan R. Browne:

But we haven’t exhausted our remedies against him and must I admit that he may have some merit there.

And so that’s why this suit is brought because if we haven’t exhausted our remedies we can’t recover against the employer where we had a meritorious claim we say.

And now here we are flatfooted there and therefore the people who put us in that position are the petitioners or the defendants here, that’s our whole case, Your Honor.

Have I answered that?

William J. Brennan, Jr.:

I know, but if you — I gather you take it then that the breach of the duty of their representation can be — can occur without there being any collusion?

Allan R. Browne:

The breach of the duty without any collusion between the employer and the —

William J. Brennan, Jr.:

And the union.

Allan R. Browne:

— and the union — oh I think so.

William J. Brennan, Jr.:

And you say it takes only arbitrary action, doesn’t take any dishonesty or anything.

Allan R. Browne:

Well, I — arbitrary action is sufficient and coupled with malice, there — the legal definition of malice of course here, I think, is there is actual malice.

William J. Brennan, Jr.:

So you don’t — apparently, you don’t think federal law covers this?

Allan R. Browne:

I think it may in its way but I don’ think it’s exclusive and here I get —

William J. Brennan, Jr.:

Well, what if federal — what if the federal law was at least say in this Court some other courts that to breach that duty requires some degree of dishonesty or bad faith, not —

Allan R. Browne:

Some degree of what?

William J. Brennan, Jr.:

Some degree of dishonesty or bad faith and the state law was to the contrary, they didn’t — they only took arbitrary action which — do you suppose a federal law would govern, as it —

Allan R. Browne:

I know they govern it.

The federal law must govern as should the law.

I’m not talking about forum.

William J. Brennan, Jr.:

I understand.

Allan R. Browne:

I’m talking about —

William J. Brennan, Jr.:

We — so the federal — we don’t — you do not resist the federal laws governing in this case, does it?

Allan R. Browne:

I agree entirely and wholeheartedly the federal law construing what the duties are — must govern and you’ve said that a number of times it has been said all over.

So there isn’t any question about that feature.

The question —

William J. Brennan, Jr.:

I gather you’re arguing, Mr. Browne, that we are to have a federal rule that the federal rule ought to be that there is liability for arbitrary malicious failure to carry out one’s duty of representation.

Allan R. Browne:

Yes, Your Honor.

William J. Brennan, Jr.:

And I gather you’d argue secondly that if we’re going to do that as we did in Lynn with libel state — libel actions against Lynn, that’s — you’re to allow a state forum for it.

Allan R. Browne:

Similar, yes, Your Honor.

Lynn is one of the case upon which you relied and — but I would with your permission like to rephrase that just slightly and say not that I’m asking you to make such a rule but I think there is such a rule as laid out by Gonzales and by Dowd.

Dowd, a fairly recent case in which my distinguished opponent was on the other side there, and which this Court said that there were state forums in matters that had federal roots shall we say or whatever term would be best used, and in addition, a number of other cases.

I like the Dowd case which I think Mr. Justice Stewart wrote and I like the Gonzales case, when I say I like I mean I think it sets out these principles the best.

The Gonzales case written by Mr. Justice Frankfurter really lays it out in very clear language to me by saying that certain areas are not taken by the federal forum.

They’re not preempted.

The federal authority can operate in those areas and the Dowd case made that very clear by saying that these are things the state still are on board with.

The state still are operating very well.

And the question along that line was raised that there be conflict between the federal decisions in the state.

You still control that and I think it was in the Dowd case that you said that this is the appropriate place to reconcile any such differences and I presume that that’s what’s happening now if there is any such difference.

Allan R. Browne:

Now, not only the Lynn case but there are several, the Smith, the news case.

The Maddox case written by Mr. Justice Harlan and the Russell case together with the old faithful love Burnham which — with which you’re all very familiar, I’m sure.

I would like with the few moments that I have left to discuss one of the reasons why you have said that court jurisdiction is superior to board jurisdiction in this kind of a climate.

This, I’m not talking about state courts only because this question involves federal courts of course as well as state.

This happens to be from the state jurisdiction but — and that is a question of inadequacy of remedy.

A board is limited, we know that, but a state court has additional powers.

This is highlighted in this particular case.

The inadequacy of what board relief would have been.

The board relief can hardly be a deterrent and award punitive damages such as can be awarded in a court case.

Is that important?

It seems to have great importance because we’re dealing in the big picture.

It seems to me with the question of deterrent effect.

We’re dealing with the possibility of you might say despotic — oh, that’s a strong word or tyrannical, over exercise of power.

This is an — synonym perhaps for arbitrary and malicious actions certainly for arbitrary actions and there you can control that best by punitive damages.

You can restore a man to his job but if he’s dead or if the worry of being out of work for four years has made him unfit to go on then you have a sterile remedy.

So a board’s power there is useless.

But a court, while it is not omnipotent in its powers can do a lot more.

It may be that if there are many actions like this in the air now and I have no way of knowing if there are or not, that it is a fine thing that you have said from the point of view of National Welfare that you have said that state courts or federal courts shall have concurrent, if you will, jurisdiction with the boards that that is a fine thing because it will serve the national interest and it will serve the purpose of carrying out the theories of industrial peace.

Thank you very much.

Earl Warren:

Mr. Feller.

David E. Feller:

Very briefly, if Your Honor may.

I’d like to address myself precisely to what counsel just referred to the question of remedy.

We dealt with it, I think at some length in our brief.

And it is our view that wholly apart from the other questions in this case that the remedy in damages is in any case an inappropriate remedy.

It — because first of all, it requires the court to try the merits of the grievance because you can’t find damages unless you find there was a breach of the contract as well as a failure of duty of representation.

Abe Fortas:

Suppose the court just found that the union had maliciously, wantonly and arbitrarily refused to go to arbitration without reference to the merits?

David E. Feller:

Well, our view is that that is what it should do and if it so found, should order that the case be then taken to arbitration.

Precisely that remedy.

Abe Fortas:

But no damages?

David E. Feller:

That the damages would be what the arbitrator would award under the contract as the remedy for the breach.

David E. Feller:

Now if —

Abe Fortas:

But that wouldn’t penalize — that wouldn’t penalize a union.

Here essentially in the hypothetical situation I’ve put to you, the union it would seem has breached its duty of representation.

The court so finds in the ordinary course one would assume that the court would say some sort of judgment against the union and that what happens between the company and the employee is another matter.

David E. Feller:

Well, I don’t think that you can come to that question as I’ve said without necessarily involving the court and the jury in trying the merits of the grievance.

And I would suggest —

Abe Fortas:

Oh, yes you can.

I suggested to you that the situation in which the court just concludes that the union has been totally arbitrary have said the — to this fellow, “We don’t like you.

We don’t like the way you’re behave in union hall, we’re not going to arbitration.”

David E. Feller:

Well, in that case, Your Honor, it would seem to me — let’s take this case, this discharge case, we have suggested in the brief that the appropriate remedy is to direct that the case be taken to arbitration and the union should be responsible for any loss which has been suffered by the individual as a result of its delay in proceeding to arbitration which is precisely the only loss which he suffered if — in the hypothetical which you’ve put.

Abe Fortas:

So you mean only after arbitration?

David E. Feller:

And only after arbitration.

I mean —

Abe Fortas:

Well —

David E. Feller:

— as essentially the union is in a quasi-governmental position here.

It’s like in administrative agency.

Let me be perfectly frank, it’s got to prosecute on behalf of the employees and it’s a bipartisan joint government and I think the remedies here are exactly the same as they are or very much like when you have a governmental agency which doesn’t proceed when it should proceed.

If an official doesn’t proceed when he should, you go into court and require him to proceed.

I doubt that you — and I find no authority for inflicting punitive damages or even compensatory damages upon the government official when he doesn’t do what he should do under the statute.

Abe Fortas:

Mr. Feller, I have two questions, forgive me for taking your time unrelated one or the other.

First place, are you satisfied what the instructions here, assuming we should decide that the court is a proper forum, the state court is a proper forum.

Do the instructions here satisfy you as being appropriate with respect to the standard of the union’s duty?

David E. Feller:

They do not, Your Honor, and that would bring me exactly to the arbitrary and malicious thing.

The instruction which appears on pages 159 to 161 which is the critical instruction, I regret asking Your Honors to look at that because it’s difficult to read.

The critical part of it is quoted by the Supreme Court of Missouri.

Abe Fortas:

And what then —

David E. Feller:

In its opinion on page 216 of the record and that is the question as each the court says, the issue submitted to the jury was whether the union as plaintiff’s agent arbitrarily — no malicious notion, just arbitrarily.

If so and without just cause or excuse, if so, and thus with legal malice, if so, refuse to carry said grievance differences and disagreement through the fifth step.

Now it —

Abe Fortas:

Now, look at 162 of the record, instruction number 5 and instruction number 6, I was wondering whether you were satisfied with those —

David E. Feller:

Well —

Abe Fortas:

— adequately set out the standard of good faith.

David E. Feller:

I — well the problem in instruction number 5 is it says that acted reasonably.

Instruction number 6 says that it acted wrongly —

Abe Fortas:

Maliciously, arbitrarily —

David E. Feller:

Well, or wrongly, or wrongly.

Each of those instructions and the arbitrarily instructions essentially permit the jury to decide the merits of the grievance and that’s the only evidence which they had.

It’s perfectly clear on the $300.00 incidentally, the reference — the jury was not even given that issue.

The court in it’s — and I take it under Missouri law you have to hypothesize all the facts in the case.

The court in its instruction to the jury did not require the jury to find that this $300.00 has been testified.

Here, as a matter of fact, there’s no reference to it at all in instruction number 2 which is the key instruction.

The question before the jury was — very simply was, did the union wrongly, arbitrarily, unreasonably refused to process this grievance and what they tried to the jury to come to the answer to that is the merits of the grievance.

And indeed, as I say the Missouri Supreme Court expressly said there was no discrimination, none of this business about we don’t like your conduct in the union hall because they said that if it did, that would be unfair labor practice and we would have no jurisdiction.

So we have jurisdiction only because we don’t have that kind of conduct here.

And so essentially, of course, I said the constructions are wrong even if the instructions were right.

I think there’s some minimum quantum of evidence as to breach of the duty of fair representation which have been required and the plaintiff produced none here and the defendant rebutted whatever inference could be brought in the plaintiff’s testimony as to precisely the reason union acted.

It acted after it got Dr. Day’s report and Dr. Day’s report said this man is unemployable.

Thank you Your Honors.