# International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers v. Hardeman/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinion Douglas
United States Supreme Court
401 U.S. 233
International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers v. Hardeman
Argued: Dec. 16, 1970. --- Decided: Feb 24, 1971
Section 102 of the Labor-Management Reporting and Disclosure Act (hereafter LMRDA) provides that a union member who charges that his union violated his rights under Title I of the Act may bring a civil action against the union in a district court of the United States for appropriate relief. Respondent was expelled from membership in petitioner union and brought this action under § 102 in the District Court for the Southern District of Alabama. He alleged that in expelling him the petitioner violated § 101(a)(5) of the Act, 73 Stat. 523, 29 U.S.C. § 411(a)(5) which provides: 'No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.' A jury awarded respondent damages of $152,150. The Court of Appeals for the Fifth Circuit affirmed. 420 F.2d 485 (1969). We granted certiorari limited to the questions whether the subject matter of the suit was pre-empted because exclusively within the competence of the National Labor Relations Board and, if not pre-empted, whether the courts below had applied the proper standard of review to the union proceedings, 398 U.S. 926, 90 S.Ct. 1816, 26 L.Ed.2d 88 (1970). We reverse.
The case arises out of events in the early part of October 1960. Respondent, George Hardeman, is a boilermaker. He was then a member of petitioner's Local Lodge 112. On October 3, he went to the union hiring hall to see Herman Wise, business manager of the Local Lodge and the official responsible for referring workmen for jobs. Hardeman had talked to a friend of his, an employer who had promised to ask for him by name for a job in the vicinity. He sought assurance from Wise that he would be referred for the job. When Wise refused to make a definite commitment, Hardeman threatened violence if no work was forthcoming in the next few days.
On October 4, Hardeman returned to the hiring hall and waited for a referral. None has forthcoming. The next day, in his words, he 'went to the hall * * * and waited from the time the hall opened until we had the trouble. I tried to make up my mind what to do, whether to sue the Local or Wise or beat hell out of Wise, and then I made up my mind.' When Wise came out of his office to go to a local jobsite, as required by his duties as business manager. Hardeman handed him a copy of a telegram asking for Hardeman by name. As Wise was reading the telegram, Hardeman began punching him in the face.
Hardeman was tried for this conduct on charges of creating dissension and working against the interest and harmony of the Local Lodge, and of threatening and using force to restrain an officer of the Local Lodge from properly discharging the duties of his office. The trial committee found him 'guilty as charged,' and the Local Lodge sustained the finding and voted his expulsion for an indefinite period. Internal union review of this action, instituted by Hardeman, modified neither the verdict nor the penalty. Five years later, Hardeman brought this suit alleging that petitioner violated § 101(a)(5) by denying him a full and fair hearing in the union disciplinary proceedings.
* We consider first the union's claim that the subject matter of this lawsuit is, in the first instance, within the exclusive competence of the National Labor Relations Board. The union argues that the gravamen of Hardeman's complaint-which did not seek reinstatement, but only damages for wrongful expulsion, consisting of loss of income, loss of pension and insurance rights, mental anguish and punitive damages-is discrimination against him in job referrals; that any such conduct on the part of the union is at the very least arguably an unfair labor practice under §§ 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, 61 Stat. 141, as amended, 29 U.S.C. §§ 158(b)(1) (A), 158(b)(2); and that in such circumstances, 'the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of * * * interference with national policy is to be averted.' San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959); see Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963).
We think the union's argument is misdirected. Hardeman's complaint alleged that his expulsion was unlawful under § 101(a)(5), and sought compensation for the consequences of the claimed wrongful expulsion. The critical issue presented by Hardeman's complaint was whether the union disciplinary proceedings had denied him a full and fair hearing within the meaning of § 101(a)(5)(C). Unless he could establish this claim, Hardeman would be out of court. We hold that this claim was not within the exclusive competence of the National Labor Relations Board.
"The doctrine of primary jurisdiction * * * applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.' United States v. Western Pac. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126. The doctrine is based on the principle 'that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over.' Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576, and 'requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme,' United States v. Philadelphia Nat. Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 1736, 10 L.Ed.2d 915.' Local Union No. 189, Amalgamated Meat Cutters, etc. v. Jewel Tea Co., 381 U.S. 676, 684-685, 85 S.Ct. 1596, 1599, 14 L.Ed.2d 640 (1965) (opinion of White, J., announcing judgment).
Those factors suggesting that resort must be had to the administrative process are absent from the present case. The fairness of an internal union disciplinary proceeding is hardly a question beyond 'the conventional experience of judges,' nor can it be said to raise issues 'within the special competence' of the NLRB. See N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 181, 193-194, 87 S.Ct. 2001, 2007, 2013-2014, 18 L.Ed.2d 1123 (1967). As we noted in that case, the 86th Congress which enacted § 101(a)(5) was 'plainly of the view' that the protections embodied therein were new material in the body of federal labor law. 388 U.S. at 194, 87 S.Ct. at 2014. And that same Congress explicitly referred claims under § 101(a)(5), not to the NLRB, but to the federal district courts. This is made explicit in the opening sentence of § 102: 'Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.' Of course, '(t)he purpose of Congress is the ultimate touchstone.' Retail Clerks International Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 223, 11 L.Ed.2d 179 (1963). And in § 102 Congress has clearly indicated a purpose to refer claims regarding violation of § 101(a)(5) to the district courts.
The union argues that Hardeman's suit should nevertheless have been dismissed because he did not seek an injunction restoring him to membership, and because he did seek damages for loss of employment said to be the consequence of his expulsion from the union. Taken together, these factors are said to shift the primary focus of the action from a review of Hardeman's expulsion to a review of alleged union discrimination against him in job referrals. Since this is a matter normally within the exclusive competence of the NLRB, see Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S., at 695-696, 83 S.Ct., at 1426-1427, the union argues that Hardeman's suit was beyond the competence of the district court.
The argument has no merit. To begin with, the language of § 102 does not appear to make the availability of damages turn upon whether an injunction is requested as well. If anything, § 102 contemplates that damages will be the usual, and injunctions the extraordinary form of relief. Requiring that injunctive relief be sought as a precondition to damages would have little effect other than to force plaintiffs, as a matter of course, to add a few words to their complaints seeking an undesired injunction. We see no reason to import into § 102 so trivial a requirement.
Nor are our prior cases authority for such a result. We have repeatedly held, of course, that state law may not regulate conduct either protected or prohibited by the National Labor Relations Act. Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, supra; San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S., at 244, 79 S.Ct., at 779; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480-481, 75 S.Ct. 480, 487-488, 99 L.Ed. 546 (1955); Garner v. Teamsters, etc., Union, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228 (1953). Where it has not been clear whether particular conduct is protected, prohibited, or left to state regulation by that Act, we have likewise required courts to stay their hand, for 'courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.' San Diego Building Trades Council, etc. v. Garmon, supra, 359 U.S., at 244-245, 79 S.Ct., at 779. Nor may courts intervene in such matters even to apply the National Labor Relations Act, except by the normal mechanism or review of actions of the NLRB. For recognizing that '(a) multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law,' Garner v. Teamsters, etc., Union, supra, 346 U.S., at 490-491, 74 S.Ct., at 166, Congress confided to the NLRB the primary power of interpretation and application of the Act. See Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957).
The present case, however, implicates none of the principles discussed above. There is no attempt, in this lawsuit, to apply state law to matters pre-empted by federal authority. Nor is there an attempt to apply federal law of general application, which is limited in the particular circumstances by the National Labor Relations Act. Nor is there an attempt to have the District Court enforce the provisions of the National Labor Relations Act itself, without guidance from the NLRB. As we have said, the critical question in this action is whether Hardeman was afforded the rights guaranteed him by § 101(a)(5) of the LMRDA. If he was denied them, Congress has said that he is entitled to damages for the consequences of that denial. Since these questions are irrelevant to the legality of conduct under the National Labor Relations Act, there is no danger of conflicting interpretation of its provisions. And since the law applied is federal law explicitly made applicable to such circumstances by Congress, there is no danger that state law may come in through the back door to regulate conduct that has been removed by Congress from state control. Accordingly, this action was within the competence of the District Court.
Two charges were brought against Hardeman in the union disciplinary proceedings. He was charged with violation of Art. XIII, § 1, of the Subordinate Lodge Constitution, which forbids attempting to create dissension or working against the interest and harmony of the union, and carries a penalty of expulsion. He was also charge with violation of Art. XII, § 1, of the Subordinate Lodge By-Laws, which forbids the threat or use of force against any officer of the union in order to prevent him from properly discharging the duties of his office; violation may be punished 'as warranted by the offense.' Hardeman's conviction on both charges was upheld in internal union procedures for review.
The trial judge instructed the jury that 'whether or not be (respondent) was rightfully or wrongfully discharged or expelled is a pure question of law for me to determine.' He assumed, but did not decide, that the transcript of the union disciplinary hearing contained evidence adequate to support conviction of violating Art. XII. He held, however, that there was no evidence at all in the transcript of the union disciplinary proceedings to support the charge of violating Art. XIII. This holding appears to have been based on the Fifth Circuit's decision in International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193 (CA5 1968). There the Court of Appeals for the Fifth Circuit had reasoned that 'penal provisions in union constitutions must be strictly construed,' and that as so construed Art. XIII was directed only to 'threats to the union as an organization and to the effective carrying out of the union's aims,' not to merely personal altercations. 388 F.2d at 199. Since the union tribunal had returned only a general verdict, and since one of the charges was thought to be supported by no evidence whatsoever, the trial judge held that Hardeman had been deprived of the full and fair hearing guaranteed by § 101(a)(5). The Court of Appeals affirmed, simply citing Braswell. 420 F.2d 485 (CA5 1969).
We find nothing in either the language or the legislative history of § 101(a) (5) that could justify such a substitution of judicial for union authority to interpret the union's regulations in order to determine the scope of offenses warranting discipline of union members. Section 101(a)(5) began life as a floor amendment to S. 1555, the Kennedy-Ervin Bill, in the 86th Congress. As proposed by Senator McClellan, and as adopted by the Senate on April 22, 1959, the amendment would have forbidden discipline of union members 'except for breach of a published written rule of (the union).' 105 Cong.Rec. 6476, 6492-6493. But this language did not long survive. Two days later, a substitute amendment was offered by Senator Kuchel, who explained that further study of the McClellan amendment had raised 'some rather vexing questions.' Id., at 6720. The Kuchel substitute, adopted the following day, deleted the requirement that charges be based upon a previously published, written union rule; it transformed Senator McClellan's amendment, in relevant part, into the present language of § 101(a)(5). Id., at 6720, 6727. As so amended, S. 1555 passed the Senate on April 25. Id., at 6745. Identical language was adopted by the House, Id., at 15884, 15891, and appears in the statute as finally enacted.
The Congress understood that Senator Kuchel's amendment was intended to make substantive changes in Senator McClellan's proposal. Senator Kennedy had specifically objected to the McClellan amendment because
'In the case of * * * the * * * official who bribed a judge, unless there were a specific prohibition against bribery of judicial officers written into the constitution of the union, then no union could take disciplinary action against (an) officer or member guilty of bribery.
'It seems to me that we can trust union officers to run their affairs better than that.' Id., at 6491.
Senator Kuchel described his substitute as merely providing 'the usual reasonable constitutional basis' for union disciplinary proceedings: union members were to have 'constitutionally reasonable notice and a reasonable hearing.' Id., at 6720. After the Kuchel amendment passed the Senate, Senator Goldwater explained it to the House Committee on Labor and Education as follows:
'(T)he bill of rights in the Senate bill requires that the union member be served with written specific charges prior to any disciplinary proceedings but it does not require that these charges, to be valid, must be based on activity that the union had proscribed prior to the union member having engaged in such activity.' Labor-Management Reform Legislation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 4, p. 1595 (1959).
And Senator McClellan's testimony was to the same effect. Id., pt. 5, pp. 2235-2236, 2251, 2285.
We think that this is sufficient to indicate that § 101(a)(5) was not intended to authorize courts to determine the scope of offenses for which a union may discipline its members. And if a union may discipline its members for offenses not proscribed by written rules at all, it is surely a futile exercise for a court to construe the written rules in order to determine whether particular conduct falls within or without their scope.
Of course, § 101(a)(5)(A) requires that a member subject to discipline be 'served with written specific charges.' These charges must be, in Senator McClellan's words, 'specific enough to inform the accused member of the offense that he has allegedly committed.' Where, as here, the union's charges make reference to specific written provisions, § 101(a)(5)(A) obviously empowers the federal courts to examine those provisions and determine whether the union member had been misled or otherwise prejudiced in the presentation of his defense. But it gives courts no warrant to scrutinize the union regulations in order to determine whether particular conduct may be punished at all.
Respondent does not suggest, and we cannot discern, any possibility of prejudice in the present case. Although the notice of charges with which he was served does not appear as such in the record, the transcript of the union hearing indicates that the notice did not confine itself to a mere statement or citation of the written regulations that Hardeman was said to have violated: the notice appears to have contained a detailed statement of the facts relating to the fight that formed the basis for the disciplinary action, Section 101(a)(5) requires no more.
There remains only the question whether the evidence in the union disciplinary proceeding was sufficient to support the finding of guilt. Section 101(a)(5) (C) of the LMRDA guarantees union members a 'full and fair' disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. This is the proper standard of judicial review. We have repeatedly held that conviction on charges unsupported by any evidence is a denial of due process, Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654 (1960); Schware v. Board of Bar Examiners, 353 U.S. 232, 246-247, 77 S.Ct. 752, 760-761, 1 L.Ed.2d 796 (1957); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 304, 71 L.Ed. 560 (1927); United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 261, 68 L.Ed. 590 (1924); and we feel that § 101(a)(5)(C) may fairly be said to import a similar requirement into union disciplinary proceedings. Senator Kuchel, who first introduced the provision, characterized it on the Senate floor as requiring the 'usual reasonable constitutional basis' for disciplinary action, 105 Cong.Rec. 6720, and any lesser standard would make useless § 101(a)(5)(A)'s requirement of written, specific charges. A stricter standard, on the other hand, would be inconsistent with the apparent congressional intent to allow unions to govern their own affairs, and would require courts to judge the credibility of witnesses on the basis of what would be at best a cold record.
Applying this standard to the present case, we think there is no question that the charges were adequately supported. Respondent was charged with having attacked Wise without warning, and with continuing to beat him for some time. Wise so testified at the disciplinary hearing, and his testimony was fully corroborated by one other witness to the altercation. Even Hardeman, although he claimed he was thereafter held and beaten, admitted having struck the first blow. On such a record there is no question but that the charges were supported by 'some evidence.'
Reversed.

## Notes

* ↑ Section 102 of the Act, 73 Stat. 523, 29 U.S.C. § 412, provides:
* ↑ The affirmance was on the basis of International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193 (CA5 1968).
* ↑ Article XIII, § 1, of the Subordinate Lodge Constitution then in force provided:
* ↑ Article XII, § 1, of the Subordinate Lodge By-Laws then in force provided that: 'It shall be a violation of these By-Laws for any member through the use of force or violence or the threat of the use of force or violence to restrain, coerce or intimidate, or attempt to restrain, coerce or intimidate any official of this International Brotherhood or Subordinate Lodge to prevent or attempt to prevent him from properly discharging the duties of his office.' Violators of Art. XII are to 'be punished as warranted by the offense.'
* ↑ Hardeman's complaint did not claim that the charges were insufficiently specific, or that he did not have adequate time to prepare his defense in the union proceedings.
* ↑ See International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193, at 195-197 (CA5 1968). Accord, Rekant v. Shochtay-Gasos Union Local 446, 320 F.2d 271, 273-275 (CA3 1963); Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 922-923 (CA4 1963); Addison v. Grand Lodge of International Ass'n of Machinists, 300 F.2d 863 (CA9 1962); Grand Lodge of International Ass'n of Machinists v. King, 335 F.2d 340, 346-347 (CA9 1964).
* ↑ See n. 3, supra.
* ↑ See n. 4, supra.
* ↑ 388 F.2d, at 198, quoting Allen v. International Alliance of Theatrical, Stage Employees, 338 F.2d 309, 316 (CA5 1964).
* ↑ This reasoning was noted but not specifically endorsed in Braswell, 388 F.2d, at 198.
* ↑ State law, in many circumstances, may go further. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175 (1960). But Congress, which preserved state law remedies by § 103 of the LMRDA, 29 U.S.C. § 413, was well aware that even the broad language of Senator McClellan's original proposal was more limited in scope than much state law. See 105 Cong.Rec. 6481-6489 (1959).
* ↑ Labor-Management Reform Legislation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 5, p. 2285.
* ↑ See tr. of union disciplinary hearing 26-28, 76.
* ↑ Vars v. International Brotherhood of Boilermakers, 320 F.2d 576 (CA2 1963); Rosen v. District Council No. 9 of New York City of Brotherhood of Painters, 198 F.Supp. 46 (SDNY 1961), appeal dismissed, 326 F.2d 400 (CA2 1964); Lewis v. American Federation of State, County and Municipal Employees, 407 F.2d 1185 (CA3 1969); International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193 (CA5 1968); Burke v. International Brotherhood of Boilermakers, 417 F.2d 1063 (CA9 1969), affirming 302 F.Supp. 1345 (ND Cal.1967).
* ↑ Although a transcript was made of the union proceedings in the present case, we have no reason to believe that this is a universal practice.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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