# United Mine Workers of America v. Gibbs/Concurrence Harlan

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Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring.
I agree with and join in Part I of the Court's opinion relating to pendent jurisdiction. As to Part II, I refrain from joining the Court's speculations about the uses to which it may put the preemption doctrine in similar future cases. The holding in Part III that the Norris-LaGuardia Act requires reversal here seems to me correct, but my interpretation of the statute is different and somewhat narrower than that of the Court.
The statutory requirement for union liability in this case is 'clear proof of actual participation in, or actual authorization of * * * (the unlawful acts), or of ratification of such acts after actual knowledge thereof.' The Court construes this provision as fixing a new test of the quantum of proof, somewhere between ordinary civil and criminal standards. I do not think the admittedly vague legislative history imports this reading, and I believe it introduces a revealing inconsistency since the new test could not be applied to criminal cases, concededly governed by the same statutory language, without standing the statute on its head by having it reduce present quantum-of-proof requirements in criminal cases, that is, proof 'beyond a reasonable doubt.' The best reading I can give the statute, absent more light than has been shed upon it in this case, is one directing it against a particular type of inferential proof of authority or ratification unacceptable to those who framed the law. For me, the gist of the statute is that in the usual instance a union's carrying on of its normal strike functions and its failure to take affirmative action to dispel misconduct are not in themselves proof of authorization or ratification of the wrongdoing.
In the present case, apart from a few quite ambiguous episodes, there was nothing to bring the violence home to the union except, as the Sixth Circuit stressed (see p. 741, ante), that the union continued through its picketing the threat that the earlier violence would be renewed and did not repudiate the violence or promise to oppose its renewal. Whatever arguments could be made for imposing liability in such a situation, I think it approximates what the statute was designed to forbid. On this basis, I concur in the reversal.

## Notes

1 Norris-LaGuardia Act, § 6, 47 Stat. 71, 29 U.S.C. § 106 (1964 ed.). The section is quoted in full at p. 735, ante.
2 The principal legislative document, S.Rep.No. 163, 72 Cong., 1st Sess., pp. 19-21, is not very illuminating but it does at the end of its discussion of the section make reference to Frankfurter & Greene, The Labor Injunction 74-75 (1930). At these pages, to illustrate rulings on union responsibility that are deemed improper, that book states: "Authorization' has been found as a fact where the unlawful acts 'have been on such a large scale, and in point of time and place so connected with the admitted conduct of the strike, that it is impossible on the record here to view them in any other light than as done in furtherance of a common purpose and as part of a common plan'; where the union has failed to discipline the wrong-doer; where the union has granted strike benefits.' (Footnotes omitted.) See also id., at 220-221, n. 42; United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 418-419 and n. 2, 67 S.Ct. 775, 787-788 (Frankfurter, J., dissenting).
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