# International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers v. Hardeman/Dissent Douglas

* 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
Mr. Justice DOUGLAS, dissenting.
Section 102 of the Landrum-Griffin Act, 73 Stat. 523, 29 U.S.C. § 412, gives a member of a union the right of civil redress in a federal district court against his union for infringement of his rights secured by the Act at the same time § 103, 29 U.S.C. § 413, reserves to members any remedies they may have 'under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws' of their unions. Moreover, § 101(a)(5), 29 U.S.C. § 411(a)(5), provides that, except for nonpayment of dues, no member of a labor organization may be expelled or disciplined until there has been notice and a fair hearing.
The latter right is not exclusive, for as noted the Act gives members remedies for infringement of rights under the Act or under the constitution and bylaws of the union.
In the present case respondent went to one Wise, in charge of referral of men to jobs through the union hiring hall, and during the discussion which followed there was an altercation in which respondent hit Wise. For that assault respondent was fined in a criminal court. Thereupon Wise filed charges against respondent for violations of one provision of the union's bylaws and one provision of the union's constitution.
At a hearing before a committee of the local lodge which Hardeman attended it was determined that respondent was 'guilty as charged.' That determination was approved by the membership of the local which voted to suspend him from membership 'indefinitely.'
Respondent appealed to the International Union, petitioner here. Acting through its present and its international executive council it denied the appeal.
Thereafter respondent sued International for consequential and punitive damages. The case was tried by a jury which returned a verdict of $152,150 and the Court of Appeals affirmed. 420 F.2d 485.
There was evidence that there was a grudge between Wise and respondent, out of which the fist fight occurred. And there was evidence that the force or violence was an attempt to coerce Wise 'to prevent him from properly discharging the duties of his office' within a rational meaning of the bylaws of the union. And the District Court so charged the jury. But, as the District Court ruled, there was no evidence that respondent endeavored 'to create dissension among the members' or to work against the 'interest and harmony' of the union within the meaning of Art. XIII of the constitution.
I agree that a court does not sit in review of a union as it does of an administrative agency. But by reason of § 101(a)(5) judicial oversight is much more than procedural; it provides in subsection (C) for 'a full and fair hearing.' Even if even conceivable procedural guarantee is provided, a hearing is not 'fair' when all substantive rights are stripped away to reach a pre-ordained result. If there is to be a 'fair hearing' there must, I submit, be some evidence directed to the charges to support the conclusion.
Membership in a union may be the key to livelihood itself. Without membership, the member may be cast into the outer darkness, so far as employment is concerned. Just as this Court concluded Congress did not authorize exclusive bargaining agents to make invidious discriminations, Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, it is unthinkable to me that Congress in designing § 101(a)(5) gave unions the authority to expel members for such reasons as they chose. For courts to lend their hand to such oppressive practices is to put the judicial imprimatur on the union's utter disregard of due process to reach its own ends.
In International Brotherhood of Boilermakers v. Braswell, arising out of the same incident, the Court of Appeals followed that reasoning. 388 F.2d 193, 199. It said:
'(T)he act charged to Braswell was a blow struck in anger, and nothing more. However reprehensible this act may be, it did not constitute a violation of the provisions in the charges. Article XIII, Section 1 of the constitution on its face is directed at threats to the union as an organization and to the effective carrying out of the union's aims. Braswell's fist was not such a threat.'
As stated by a student in this area: '(H)ow can there be a 'full and fair hearing' when it results in a verdict which mocks the evidence?' Of course, the reviewing court does not give a hearing de novo; nor does it review the merits of the dispute. But it does sit to check intemperate use of union power; and if it is to discharge its duties, it must conclude that there is some evidence to sustain the charge. This is the view of the Second, Third, and Fifth Circuits, Vars v. International Brotherhood of Boilermakers, 320 F.2d 576; Kelsey v. Philadelphia Local No. 8, 419 F.2d 491; International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193, and I would adopt it as the controlling legal principle.
Violation of Art. XIII of the constitution carries with it automatic expulsion. Violation of the bylaws would carry punishment 'as warranted by the offense,' which, I assume, would justify expulsion. For respondent to use force against Wise who was in charge of referral of men to jobs through the union hiring hall may well have been an attempt 'to prevent him from properly discharging the duties of his office' within the meaning of Art. XII. But how an isolated first fight could 'create dissension' among union members or work against the union's interests in the other ways described in Art. XIII remains a mystery.
The finding of the union was the general one 'guilty as charged.' Under which provision-constitution or bylaw-it suspended him indefinitely is not made clear. Perhaps it was under only one or perhaps under both provisions.
In that posture the case is in the category of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, where a conviction might have been valid under one charge but would have been invalid under the other; but the verdict being a general one, it was impossible to tell under which he was convicted. It is as much a denial of due process to sustain a conviction merely because a verdict of guilty might have been rendered on a valid ground as it is to send an accused to prison following conviction of a charge on which he was never tried. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. It was in that tradition that the District Court charged the jury:
'Now, that is all they charged him with were those two sections and there is nothing in this record that would justify a finding of guilty under those sections. All of it is about the fight.
'I am telling you, as a matter of law, that under the proof, the finding which resulted in his being expelled, cannot legally stand and therefore he was wrongfully expelled.' (Emphasis added.)
Since the finding of 'guilty as charged' had that infirmity, it could not stand; and the jury was justified in assessing damages for an unlawful expulsion.

## Notes

* ↑ Section 102 provides:
* ↑ Section 101(a)(5) provides:
* ↑ Article XII of the bylaws provides:
* ↑ Article XIII, § 1 of the constitution provides:
* ↑ See n. 3, supra.
* ↑ See n. 4, supra.
* ↑ Hardeman testified at trial that following the loss of his union card he was unable to work in the boilermaker's trade beyond one job lasting five days.
* ↑ Christensen, Union Discipline Under Federal Law: Institutional Dilemmas in an Industrial Democracy, 43 N.Y.U.L.Rev. 227, 251.
* ↑ The Court of Appeals affirmed summarily on the basis of International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193, a case arising out of the same factual situation, as Braswell also assaulted Wise at the time respondent assaulted him. In Braswell, the Court of Appeals found that the blow was 'struck in anger, and nothing more.' Hence it held that Braswell's fist was not used as an effort to create dissension among members within the meaning of Art. XIII of the constitution. By its summary affirmance in the present case it presumably reached the same conclusion in the present case.
* ↑ It is urged that since respondent's complaint arose out of his effort to obtain employment, his relief may be sought only from the National Labor Relations Board. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775; 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; Local No. 207, etc. v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646. The argument is that the expulsion of respondent was 'arguably' an unfair labor practice and that exclusive jurisdiction therefore was with the Board. But Garmon prevents conflicts between federal and state policy. If there is a conflict in the present case, it is between two federal agencies; and Congress has declared in § 102 of the Landrum-Griffin Act that the federal courts, not the Board, are to have the primary role.
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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