Warren E. Burger: We'll hear arguments next in No. 804, Farmer against United Brotherhood of Carpenters and Joiners. Mr. Hobart, you may proceed whenever you're ready.
G. Dana Hobart: Thank you, Your Honor, Mr. Chief Justice Burger, and may it please the Court. Petitioner is here hoping to reverse the appellant decision of California, which took away from Richard T. Hill a judgment amounting $182,500. I think it will be helpful to the Court to have perhaps a little more of a sketch with respect to some of the facts that the evidence adduced at trial. Richard Hill had been a member of Local 25 for a good number of years prior to the lawsuit. He had held many offices, and he had held offices with the Los Angeles District Council of Carpenters, with which Local 25 is affiliated. In 1965, Mr. Hill was elected to a three-year term as Vice-President of the office. Switch for a moment now to Mr. E. G. Daley, known affectionately among Union members as "Blackie" Daley. Mr. Daley was the Chief Business Agent of the Union. For all practical purposes, he controlled the affairs of the Union. He dominated the Executive Board, and he dominated the various governing boards of the Union. When Mr. Hill became a member of the Executive Board, he after some period of time began developing a series of conflicts with Mr. Daley. He opposed Mr. Daley in many of the matters which were presented before the Executive Board. In retaliation for that conduct, at least at the beginning, Mr. Daley entered upon a series of vituperative acts directed toward Mr. Hill and which in our complaint below we alleged created intentionally severe emotional distress. When the acrimonious situation reached its peak toward the very end of 1966, Mr. Daley threatened Mr. Hill on numerous occasions with words generally to the effect, "Either you go along with me in the Executive Board and the votes of this organization and quit criticizing me for such things as misuse of Union funds", which was one of the criticisms, "or I'm going to starve you out of this local. You will not work until you join the crowd". Mr. Daley promised this, and he carried it out. Mr. Hill, on the other hand, perhaps unfortunately, was not intimidated by this conduct and continued to oppose Mr. Daley. Now, this gives rise to a series of events. Mr. Hill was the victim of incredible ridicule in front of his peers. He would be walking or standing around the Union hall with his friends. Union officials would come up to the friends and tell them, “You better not be seen with Mr. Hill, or you're going to get the same treatment Mr. Hill gets," which was in a sense starvation, insults and so forth.
Speaker: What you're telling us now, I take it, comes out of the record in the trial of the case in the State court.
G. Dana Hobart: It does, Your Honor. Yes, it is in the record. Everything I've said is in the record and is evidence in the case, absolutely. At any rate, the discrimination took many forms; but the form with which we're most concerned here, I believe, is the discrimination in the hiring hall, and the Court should fully appreciate two or three concepts related to the hiring hall. The hiring hall concept of Local 25 was something that was provided for in the labor-management agreements. The Union negotiated with management, and part of that management agreement was the hiring hall. Men signed the bottom of the list when they came from Unemployment for employment, signed the bottom of the list and eventually worked their way up. The list many times totaled 5, 10, 15, even 20 pages, depending on how economic times were. Two important rules with respect to the hiring hall. One rule is that if a man works 16 hours, he is by virtue of having accepted that employment no longer eligible to come back to the top of the list; even though there may be jobs of months' duration, he must start again at the bottom. This was one of the tools that was used to discriminate against Mr. Hill. The other, in addition to the 16-hour rule, is the refusal rule. Under the local policy of the Union, you could refuse two jobs. If they were in the area that you had qualified yourself, two refusals would constitute grounds for removing you to the bottom of the list. But you had the absolute right of qualifying your own self; in other words, as Mr. Hill said, “I can't handle steel form work.”
Speaker: But you're not suggesting, are you, that the hiring hall in this form and that these regulations were illegal under the Federal labor law.
G. Dana Hobart: Oh, no. No, no, the hiring hall was absolutely legal.
Speaker: Perfectly legitimate, part of the bargaining agreement.
G. Dana Hobart: Absolutely, absolutely. It was merely the administration of it internally within the Union that we complain about.
Speaker: Well, your adversaries, as I understand it, contended the more you tie Hill's complaint against Daley into Hill's job-discrimination claim, the worse off you are for Federal preemption purposes. Do you agree with that or not?
G. Dana Hobart: No, Your Honor, I do not agree. It goes to a lot of issues, which we'll undoubtedly cover and which we have covered in our brief. The ...
Speaker: In other words, I suppose you're saying that because it's done under color of Union authority and somewhat as in civil-rights cases, that doesn't mean necessarily Federal preemption.
G. Dana Hobart: Absolutely, Your Honor. The problem is, are we now relegated to ascertaining the intent of Blackie Daley at each step of the way? Do we say now it is personal, or is it still political? It would be impossible to ascertain that. I recognize they make the contention, but I think it is a meritless contention. Let me summarize for a moment now what happened in the next year-and-a-half after this conflict developed into a full-blown war between the two people. January 9th, 1967, Mr. Hill signed the out-of-work list at the bottom of the list. He'd come off of a job recently. By March 20th of 1967, he had reached Page 2 on the out-of-work list, which for all purposes is considered high on the list, very high, as a matter of fact. Now, on that time when Mr. Hill had reached the status, a high status where hopefully he would go out and get a job of some duration, he was offered a steel form job. Mr. Hill was a 52-year-old man who had a herniated lumbar disk; he was deaf in one ear. He had never qualified himself for steel form work, and the testimony was it took young men to do that. It was hard work. In fact, testimony in the trial was, it was undesirable work, which a good carpenter would never seek. He was not qualified and not registered for it, but they offered it to him anyway. They said, “Here is a steel form job.” He says, "I can't take that." They marked it as a refusal, even though it was a permissible refusal not markable. But what Mr. Daley did at that point was telephone the Department of Employment, and he told the Department of Employment that Mr. Hill is not eligible for his benefits, which he was living off of during this period of unemployment, because he had refused a job.
Speaker: That's Unemployment Compensation.
G. Dana Hobart: That's right, Your Honor, in the State Department of Employment. He interfered with it. Well, they had a hearing and deleted something three, four or five weeks. He finally got his check, because he was not qualified for the work, he did not turn down a legitimate request; but it delayed him in getting his money, on which he was depending for survival. All right, then, Your Honor, 11 days later on March 21st, Mr. Daley fabricated -- we proved in Court, we demonstrated that he fabricated a dispatch slip that was never handed to Mr. Hill, and with that dispatch ship he took the out-of-work list, wrote "refused", indicating that Mr. Hill had refused the phony dispatch slip, and now Mr. Hill, he said, you have two refusals. You violated the rule. Mr. Hill goes from Page 2 down to the bottom of the list. Well, this caused Mr. Hill a great deal of anxiety. Mr. Hill was hospitalized three days later. That activity occurred about the 31st of March; on April 2nd, he went to the hospital for ten days as a destroyed man internally. They checked him, and there was nothing organically wrong with Mr. Hill. A month later, he was back signing the out-of-work list on May 1, 1967. Now, he signs and he also attempts to solicit for himself a job, which is completely permissible under the rules of the Union.The evidence is overwhelming in that respect.He goes to a project called the Dinwiddie-Simpson Project, and he says to Mr. Simpson, “May I have a job?" Mr. Simpson says, “Yes, I'm going to hire you tomorrow. We're sending in a request for four men, you'll be on that list.” And on that night, they telephone in the list to the Union, and when Mr. Hill shows up the next morning expecting to be dispatched, Mr. Daley says, “Go to, and your honor is nowhere. And you're not getting a dispatch out of here, I don't care who asks for you”, and consequently Mr. Hill did not get the dispatch. Well, two things occurred as a result of the refusal to honor a legitimate Union request. One, Mr. Hill went on disability again. He was totally destroyed by this conduct, which had preceded it and now which was capped by this. Additionally, over this one incident --
Speaker: Was he still an officer of the Union at this time?
G. Dana Hobart: Yes, Your Honor, he was Vice-President of the Union. Over this one incident, Mr. Hill filed charges with the National Labor Relations Board, claiming an unfair labor practice.
Speaker: What was the unfair practice claimed?
G. Dana Hobart: That the Union interfered, Your Honor, with an attempt by an employer to hire him. I think it was an 8-, maybe -2 complaint under the NLRA, and the charge eventually was sustained in the NLR.
Speaker: I suppose potentially every instance in which he sought a job and didn't get it because of what you claim to be the unauthorized conduct of your opposition would be an unfair labor practice.
G. Dana Hobart: No, Your Honor, we don't claim that at all. As a matter of fact --
Speaker: Well, each time he claimed a job and was refused it unfairly, wouldn't that be arguably an unfair practice?
G. Dana Hobart: Well, it depends on how you interpret "arguably"; it depends on what "arguably" really means; what it meant then under the '59 decision of Garmon. Our position is, we think we have demonstrated in our briefs and, as Your Honors know full well, that this issue has been explored in great detail in this case and you've explored it before in other cases.
Speaker: Suppose in the one instance where you went before the Board, suppose you also sued in State court for an intentional infliction of emotional harm. That's all the case was about, and the State court entertained it and said, yes, we have a cause of action like that here. Do you think you could maintain your action at the same time, pressure of unfair labor practice, before the Board?
G. Dana Hobart: Your Honor, a determination of that issue, I do not think is essential; but to answer the question, I think the law is if we properly interpret Congressional intent from 1947 that the law is, yes, that action could be maintainable, in spite of the fact that all the complaints are -- all the claims are, no, it can't, because it would be an unfair labor practice actually or arguably.
Speaker: I know; but the question is, could you maintain both, both the unfair labor-practice charge and the lawsuit?
Speaker: He said, yes, he thought he could.
G. Dana Hobart: Yes. I don't know of any rule that would preclude this double path. I am unaware of any that would you can't do it. You probably wouldn’t do it as a practical matter.
Speaker: Well, I know; but what about Garmon? Isn't that like the case in point?
G. Dana Hobart: Well, the problem with Garmon is that you --
Speaker: You're claiming the same conduct violates the 8(b)-something and also violates a State law against inflicting emotional harm.
G. Dana Hobart: As Your Honor is aware, the Garmon case was only considered in the context of Union-versus-employer disputes. There was no Union versus member. There was no intra-Union dispute in that case, and the language of Garmon clearly indicates that there was no intent that that rule of Garmon and principle of Garmon was intended to carry into labor or intra-Union disputes, and this is what the problem has become. Your Honor will recall in Garmon, the definition of "arguably", which has become the term that has caused or inflicted so much trouble in this field is the arguable term. It was defined there as the following:  "when it is clear or may be fairly assumed". And Mr. Justice Harlan in his concurring opinion termed it as "fairly debatable". Well, then subsequent decisions around the country have led to an abuse, a gross abuse of the term "arguable". Everything is arguable. Lawyers, if no one else lawyers, can make an argument. I can make an argument, for example, that the decision that the judgment below affects the Washington Red Skins. It is arguable that it kept somebody a couple of dollars out of his pockets so he couldn't take the airplane back to Washington, D.C. to buy the ticket, and arguably he stayed home because of that; patently absurd, of course, but arguable.
Speaker: But Mr. Hobart, isn't the case Mr. Justice White put to you the Borden case?
G. Dana Hobart: No, Your Honor; he said the Garmon case.
Speaker: I know, but aren't the facts he posited those that were present in Borden?
G. Dana Hobart: That’s correct. What happened was, in Borden, eventually the arguable concept -- this was, what, 1963, four years later -- the arguable concept had been spilled over into the relations of members of unions and the internal conduct. It was never a part of Congressional intent that this kind of conduct be governed by the Labor Management Relations Act to begin with. Yes, Borden does take the position they say the one incident, which is similar to the one incident that we've talked about here; but in our situation, that one incident is merely one of a number of incidents. It's an isolated incident. It's been leaped upon by the other interested parties as to saying that is the correction of the case, to come to Gonzales, for example. And so in Borden, this arguable context slopped over. It was now applied to relations that to some extent affected intra-Union --
Speaker: Is it critical for your cause of action in the State courts that you prove that this conduct was not only with the intent of inflicting emotional pain and suffering, but that it was otherwise illegal under some law?
G. Dana Hobart: Well, Your Honor, it violated the general laws toward the laws of California only in that the intentional infliction of severe emotional distress is a tort in California.
Speaker: But regardless of whether the conduct is otherwise legal or illegal.
G. Dana Hobart: Under California law?
Speaker: Or any laws.
G. Dana Hobart: Well, under Federal law, yes. For example, the --
Speaker: Well, I know. But does California require you to prove that the conduct is otherwise illegal under California law?
G. Dana Hobart: That was all. No, that was all we had to establish: was a tort inflicted.
Speaker: What are the elements of the tort?
G. Dana Hobart: The conduct which was levied at Mr. Hill, had to be such outrageous, egregious conduct that was beyond the bounds of what ordinary in and society should have to put up with. It was also defined in the instructions to the jury that it did not include the trivialities of life and the regular, ordinary problems with which we are faced from time to time; but it had to be severe, and it had to be intentionally inflicted.
Speaker: And sustained.
G. Dana Hobart: And it had to be sustained, that’s right, Your Honor.
Speaker: But it didn't have to be illegal under California law otherwise, did it?
G. Dana Hobart: No, it did not have to be illegal, and otherwise it was not other than it violates the general concept toward law.
Speaker: And that is a tort under California common law.
G. Dana Hobart: Yes, Your Honor, it certainly is.
Speaker: I suppose there are or might be occasions where there's an affirmative defense, such as a reference of a prospective employee or something like that.
G. Dana Hobart: Yes. No such affirmative defense was presented from this case …
Speaker: No, that's right.
G. Dana Hobart: … but conceivably you could come up with something to that. But it was a general law and not a specific foundation.
Speaker: So, what California law? Suppose the hiring hall had been administered totally legally in the sense that your client got every job he should have and didn't get any job that he should not have, but in the process of administering it that way there was outrageous conduct that caused him emotional harm. Now, you could be covering California there.
G. Dana Hobart: Absolutely. He would have a right to a cause of action. If you took all of the job discrimination of this case and you set it aside and you took simply the personal relationships that went on between these two men -- I say "between"; it was a give and take, not both ways.
Speaker: So you would think it is more like an intentional and egregious libel, then.
G. Dana Hobart: Yes, I do think it would be similar to an intentional and egregious libel. Something like the Lynn case, for example, would be along those categories where they --
Speaker: Does an unfair labor practice provide an adequate remedy for this?
G. Dana Hobart: Your Honor, it does not. And, you see, that's the problem; that really is the problem. If you assume that Congress intended at the beginning that these internal disputes were to be preempted through the provisions of the Labor Management Relations Act and all relegated to the NLRB, you would make absolutely no progress in controlling the type of behavior that we have. I don't think there are very many Union people, Union leaders, who are tyrants; but I know there are some.
Speaker: The difficulty is that an awful lot of your -- an awful lot of your evidence, or at least an awful lot of your assertions in this case, are that the hiring hall was illegally administered.
G. Dana Hobart: Not illegally administered; discriminatorily administered.
Speaker: Well, in ways that apparently would give you some basis for going before the National Labor Relations Board for unfair labor practice.
G. Dana Hobart: Well, only on one incident. You see, Mr. Hill --
Speaker: I know you only went there once, but it sounds to me like you could have gone there many other times on the same claim.
G. Dana Hobart: That's an interesting argument, and it is raised by the defense in the case; but the problem is this: much of the conduct -- for example, I mentioned to you the fabrication of the dispatch letter -- that was not even known until we had rested our case. I was sitting at the bench. I was looking through all this papers and I noticed, "My god, this thing has a wrong number on it, the wrong starting letter". I realized then what had happened, because Mr. Hill had told me; he said, "Well, I don't know anything about that".
Speaker: I know, but what does Mr. Daley do outside of his Union activities?
G. Dana Hobart: Well, they never encountered each other, Your Honor, basically outside of either the Union or in halls and places around.
Speaker: Did he find anything that wasn't directly connected with the activities of the Union?
G. Dana Hobart: Oh, well, everything he did was -- most everything was not directly connected with the activities of the Union, or at least the legitimate activities of the Union.
Speaker: Like what?
G. Dana Hobart: Well, when you call a man “son of a bitch”, it seems to me that that's not related to Union activity. When he --
Speaker: Have you ever been to any Union meetings?
G. Dana Hobart: I have, Your Honor, I have been for years a Union member, and I represent labor unions in Los Angeles.
Speaker: Have you ever heard that phrase?
G. Dana Hobart: I beg your pardon?
Speaker: Have you ever heard that phrase?
G. Dana Hobart: I've heard the phrase; but I know, Your Honor, that there are two ways to present the phrase. And as a matter of fact --
Speaker: Well, all I'm trying to get to is that it just appears to me that this began as a Union matter, it ended as a Union matter, and everything in between was a Union matter.
G. Dana Hobart: That is an arguable position that I don't take any great quarrel with, Your Honor; but the question is, so what? Isn't the question, then, is it controlled by the Labor Management Relations Act, or isn't it? You see, you have to go back to the LMRA to determine the intent.
Speaker: When conduct of this kind takes place under color of Union authority, under color of Union authority, and the powers are abused, there's no remedy under the Labor Act and the man is left to the traditional remedies under State law.
G. Dana Hobart: The question states the truth, Your Honor. Mr. Hill’s conduct regarding the NLRB incident occurred in May of 1967. The lawsuit was filed in April of 1969, two years later. So in spite of the pendency of this case and the decision of the NLRB, it did nothing to deter Mr. Daley. It did not interfere with his hostile conduct at all. The problem is, Mr. Daley knows that the most the Board is going to do is say, “Cease and desist, Mr. Daley”. Mr. Daley is not a gentleman, was not a gentleman. He was a tyrant, and he was not dissuaded by the cease-and-desist order, which --
Speaker: Didn’t they all -- didn’t they award him 2500 bucks?
G. Dana Hobart: The $2500 was for loss of earnings and loss of earnings only. That's one of the important points of the case, Your Honor. In the briefs of the defense, they made a point by saying that this case is Borden because of the one incident; and then they went on to say that we tried some bootstraps argument by having the jury instructed on the fact that Mr. Hill had received a $2500 award. Now, the fact of the matter is this: that jury did not know that there was such an award until opposing counsel, Mr. Geffner, until Mr. Geffner gave that jury that information in the form of a question. On the report of transcript at Page 2684, Mr. Geffner asked the following question to Mr. Hill:  "Didn't you receive a payment from Local 25 of $2517.27?" to which Mr. Hill responded, "Yes." Mr. Geffner then introduced into evidence a copy of the check itself. This was a tactical move on their part to try to get that jury to think that, well, Mr. Hill's already been compensated anyway; you don't have to worry about giving him any more. And I even approached the bench and in a bench conference said, “Your Honor, I was under the impression that this was improper", because I thought it was prejudicial error to have that kind of information before the jury. And so when I asked for that jury instruction, it was to tell that jury that they were not going to be giving Mr. Hill something that he had already had; it was to clarify the situation of the problem that they created. And in their briefs, they argue it like this, Your Honor:  "To nail this point home and to get the full benefit of the Board’s finding" --
Speaker: What page are you on there?
G. Dana Hobart: I'm on Page 39, Your Honor, I'm sorry.
Speaker: Okay.
G. Dana Hobart: "To nail this point home and to get the full benefit of the Board’s finding, petitioner requested and obtained an instruction informing the jury that Hill had filed a charge with the Board, that he received an award covering the wages that he would have earned" and so forth. That was to prevent error, to prevent injustice. It was not our attempt to capitalize on that, as has been pointed out. Your Honor, one important thing that we haven't covered that we should --
Speaker: Would you have a … could you secure all the remedy you might need if you brought a suit for unfair representation or not?
G. Dana Hobart: It's arguable whether you could or not, because this Court has not made pronouncements on certain of the issues. It would be involved in a violation of the duty of fair representation. Yes, the case could have been presented, and basically the facts would have been identical under that theory. The lower court, first, we --
Speaker: Well, then, suits for unfair representation are not preempted, are they?
G. Dana Hobart: No, they are not.
Speaker: Can you bring them in State court, as well as Federal court?
G. Dana Hobart: Yes, Your Honor, I can.
Speaker: Is there any reason why the Superior Court of Los Angeles County wherever this was couldn't have assumed jurisdiction of this case on an unfair representation?
G. Dana Hobart: They could have within the confines of what the unfair-representation cases around the country have involved.
Speaker: And they in the first instance might have said part of your damages are pain and suffering.
G. Dana Hobart: They could have said that, that's true.
Speaker: It may not have stood up in the long run, but …
G. Dana Hobart: That's right, it may not have stood up in the long run, and under tort law it does stand up. They may have said there's no punitive damages, because there is an argument that there is not, although I don't think it's a convincing argument; but they could have taken that position, and we would not have had the punitive damages in the case. The point I wanted to get was Congressional intent. We start with the assumption unfortunately that Congress intended under the Labor Management Relations Act to include intra-Union disputes. I suggest to the Court that if we went back and examined it, that's not the case. This Court has on several occasions, particularly following the enactment of the Act, searched for Congressional intent. And to summarize or paraphrase some of the positions of the Court, but in 1953 in Laburnum this Court said by the LMRA, Congress intended to increase the availability of State tort law. In 1954 in Russell, the Court said that Congress has not deprived the courts of jurisdiction over the type of conduct involved there. In Gonzales in ‘58, Congress did not intend to preempt the protection of Union members from arbitrary conduct. And then in Garmon, as the Court knows --
Speaker: Who are the defendants in this suit, or who were the defendants in the suit?
G. Dana Hobart: There were several defendants, Your Honor. There were three Business Agents, two of whom were let out of the case by the jury, one of whom Mr. Daley was found liable to him.
Speaker: So does the judgment run against him personally?
G. Dana Hobart: It runs against him personally, which is a good point, too.
Speaker: And against the Union? Against the Union, also?
G. Dana Hobart: Against the Local also and against the District Council.
Speaker: Now, your unfair-representation suit probably wouldn’t be good against an individual, would it?
G. Dana Hobart: No, I don't think so. I think under the cases that that would not be an action against him. The suit went against all three of them. In the search for Congressional intent, this Court … well, even in Lynn, the Court stated that they had not received much Congressional guidance on the issue of whether these torts, torturous conduct was involved was within the Act or without the Act. And even in Lynn, where the conduct was directed to the heart of the LMRA, organizational activity was directed to the heart, this Court said, "We're fashioning an exception". They added malice to the torturous exception that had been previously cut out in Garmon. And so we go two ways on this case. We suggest to you that we are within the exceptions of Garmon; that this is interest which is deeply rooted within the State of California, or that it is of such peripheral concern to the LMRA that it should not be preempted to the National Labor Relations Board. Both of those exceptions are perfectly applicable if you look at it in a broad way. If you say, “Well, we're not going to restrict the right of redress; we're going to look at it liberally to produce justice to an agreed individual". So this is torturous conduct. This is not the kind of conduct that should be preempted, like Lynn, for example, was preempted.
Speaker: Mr. Hobart, let me interrupt you once more. On the back-pay award that the Labor Board did award your client, did that award just run against the local Union? Did it run against the International?
G. Dana Hobart: Just against the local union.
Speaker: There was, of course, no remedy at all against Blackie individually.
G. Dana Hobart: No, Your Honor, no. Mr. Daley, some of Mr. Daley’s testimony that I took from that transcript impeached him in his trial testimony to show what -- how he would say both sides have an issue in order to gain advantage.
Speaker: Hold on.
G. Dana Hobart: Yes, Your Honor.
Speaker: Before you go on, earlier in your argument, as I understood what you said responding to a question to Mr. Justice White, your answer was that even if there had been no discrimination in the hiring hall, the evidence in this case would support a tort action under California law.
G. Dana Hobart: Yes, Your Honor.
Speaker: Now, if that is true and if the evidence really would sustain the validity of the statements you've made, why do you spend so much time arguing to us subtle distinctions in cases that do involve the NLRA? If you have a pure tort action, why don't you emphasize that? That's the essence of my question.
G. Dana Hobart: And the answer, Your Honor, is that the essence of the tort does not lie in the peripheral conduct. The essence of the tort --
Speaker: May I interrupt you right there? I think you had said earlier, said that in law (inaudible) supports the view that there may be a personal tort without physical wrongdoing. If verbal acts and verbal conduct, verbal abuse, reaches a certain level wholly without regard to any hiring hall, wouldn't you have a tort under California law?
G. Dana Hobart: Yes, Your Honor, you would; but the point that I want to make is this: that tort would not have included …
Speaker: Some of the elements you rely on, I understand that.
G. Dana Hobart: -- the starvation of the man. He worked 133 hours in a year-and-a-half, because they constantly like a yoyo rotated him up and down that out-of-work list. Now, we can come in and Mr. Hill could say, “Well, I'm aggrieved, because I'm called a son of a bitch”. He could say that, but that's not the gist of his action. This man was starved to death for a year-and-a-half! And that's why, Your Honor, we suggest -- we've given this issue some thought. We have a suggestion that is a better application of the law. We feel that the law has led to triumphs of procedure over substance. It has denied remedies from time to time to people who have been injured, because earlier decisions of the Court can't be interpreted apparently uniformly around the country. Mr. Cain and I have suggested and offered to the Court the alternative of the following: we have alluded to it to some extent, but we've enlarged on it for this argument. First as a test determine if the State law attempts to regulate labor relations as such and, if you decide that it does, preempt it. If you decide that it does not, ask the next question:  does the application of the State law have a substantial practical effect on the Federal regulatory scheme? And, Your Honor, if you answer that question in the affirmative, preempt it. But if you say no, that it doesn't, then let the State law of general applicability be applied, because that is the only way there will be effective redress for the injury.
Speaker: Are you suggesting that that test is easy to apply?
G. Dana Hobart: I'm suggesting, Your Honor, that it is probably easier than the "arguably" test and the “crux” test.
Speaker: How about the substantial practical effect on labor affair, your -- the second prong of your test? That sounds to me like it could bristle with difficulty.
G. Dana Hobart: Well, you probably could. That's why we included the word "practical" was to get away from the technical arguments of a lawyer arguing "arguable". That's been the problem that you've been faced with, and that's the problem that the lower courts have been faced with. Everything is arguable. Now, maybe "substantial" is a word that would have some debate and perhaps "practical"; but that really is the test, isn't it, to determine whether this does or doesn't interfere with Federal policy, the Federal labor scheme. How could allowing California to redress this injury to Mr. Hill affect the Federal regulatory scheme? It can't. They say, “Well, large damages might be awarded.” But as this Court said in Lynn and elsewhere, that's what we have trial judges for. That's what you have appellate judges for, to determine whether the jury went haywire on a given issue. We're not going to destroy the labor movement. As a Court in Lynn said, labor has grown up. Why should labor unions be exempt? Charitable organizations aren't exempt. Small businesses aren't exempt. Who is exempt? No one except the labor organizations if you apply this "crux" and "arguable" test.
Speaker: Now, in your brief, you suggested that the test, or at least a test better than the Garmon test, is the one suggested by Morton, and it's the one you are now orally presenting.
G. Dana Hobart: Yes, Your Honor.
Speaker: -- you think it's equivalent to that, or is it still a third test?
G. Dana Hobart: No, it embellishes upon it; but that's the source of the idea was the Morton case.
Speaker: But what you are now telling us orally is a little different from what the …
G. Dana Hobart: Yes, it is a little different.
Speaker: … the (inaudible) test, isn't it?
G. Dana Hobart: Yes, I thought I'd made that quite clear. I did not mean to say I was reiterating what was in the brief.
Speaker: All right.
G. Dana Hobart: We have attempted to elaborate on it, because we can see problems that the Court's going to see. And we're trying to fashion something that will be of help to the Court and help to the lower courts and increase justice. Keep in mind the one problem with the NLRB is this: if a matter is arguably an unfair labor practice, think of that vast no-man’s land that exists, and no case in the world could illustrate it better than your decision in Lockridge, in 1971, I believe. If you recall in Lockridge, the Greyhound bus driver had been terminated from his employment and pressed to the Union, because he was behind in his dues. Mr. Lockridge filed a lawsuit claiming various things and got a judgment. And it came up to this Court, and this Court said, no, that is arguably preempted, and the judgment was taken from him. Mr. Lockridge’s colleague, Elmer Day -- and this is a footnote in that case -- Elmer Day says, “I'm not going to file with the court first. I know you're supposed to go to the NLRB", and he filed with the NLRB; but they declined to accept the case. And so he said, “Now, I can go to the court.” So he went to court. He got a judgment because he had been aggrieved, and the Oregon court took it away, claiming that it was arguably preempted.
Speaker: Before the Board, if the general counsel declines to take the complaint, that's the end of it.
G. Dana Hobart: That's the end of it. So, you see, you have two men who competent juries, properly charged, took the position that they had been aggrieved, and they gave damages to both of them, and they went different routes, the only routes available to them under the law. They went both routes, and in both routes they ended up with nothing.
Speaker: Well, if that's what Congress intended, they should have ended up with nothing.
G. Dana Hobart: Of course, I couldn’t agree more; but that's not what Congress intended, Your Honor. There is no showing --
Speaker: Well, you're going against a fair of number of cases that it said it did intend that.
G. Dana Hobart: Well, Your Honor, I cited, for example, Laburnum, Lynn, Your Honor.
Speaker: Yes, but those were in the pre-Garmon era. The Lynn wasn't. The Laburnum --
G. Dana Hobart: Lynn's not. Even in Lockridge, Your Honor, this Court said that they couldn't find any express direction from Congress. And how about additional things? The fact that the LMRDA was passed in 1959; the Landrum-Griffin Act had savings clauses. It said we're not going to take away any of the rights that Union men have in their disputes or whatever. We're not going to take away any rights that they have from State or Federal law. When they passed that Act, they gave them certain other rights under that Act, as we pointed out in the brief. Now, what did Congress think the law was at that point? This shows you Congressional intent, I believe. At that point when Garmon was decided, I think like three days before Congress enacted the Landrum-Griffin Bill, Congress knew that the principle of Garmon was limited to Union management disputes. They had no reason to think that Gonzales was going to subsequently be emasculated. They thought that Gonzales was the law. They also thought that Laburnum was the law and Russell was the law. That's what the position was of Congress. At that time, they said we don't want to do anything to interfere with those rights. And so when later courts began to assume that Congress intended under the LMRA that any internal Union dispute is preempted, I respectfully submit, Your Honor, that's an erroneous conclusion based on Congressional intent. This Court has never made that conclusion. The best that this Court has ever done to that side of the issue is to say we can't find any evidence of Congressional intent regarding that. Your Honor, if I may, if there are questions, I'll answer them. I would like to reserve, if I may, whatever remaining time I might have for rebuttal.
Warren E. Burger: Very well, Mr. Hobart.
G. Dana Hobart: Thank you.
Warren E. Burger: Mr. Geffner?
Leo Geffner: Chief Justice, and if it pleases the Court, I'd like to start out by apprising the Court that the basis of this lawsuit that was filed by Mr. Hill and that was tried in the State court before a jury was, pure and simple, a hiring-hall case. The other  elements --
Speaker: But would you admit there were a few embellishments added?
Leo Geffner: Yes, I would, Your Honor. There were some verbal arguments. Mr. Daley and Mr. Hill were political allies and had run against each other in different slates for Union office. It turned out both of them were defeated in 1968 for different offices. They were poker-playing buddies. They had lots of arguments. But from the beginning, motions were made before the trial judge from the very beginning of the case, from the beginning of the opening argument of counsel to the introduction of the first evidence, the first witness and the first exhibits that the testimony and evidence should be limited to exchanges that would constitute a tort in California of intentional infliction of mental distress and not have the jury try a hiring-hall case and that the dispatching procedures and the rules and regulations of the Union and how it was governed and how it was administered and whether it was a discriminatory or nondiscriminatory, not only against Mr. Hill but other carpenters that were involved, should be excluded from the jury. The trial court denied these motions continuously throughout the trial. And over the objections of myself, Mr. Hobart introduced not only the complete hiring-hall system, but also introduced originally the fact that Mr. Hill had gone to the National Labor Relations Board on one very large construction project in Los Angeles, the Dinwiddie-Simpson job, and that he had obtained a request from the superintendent; but that Mr. Daley had not honored that request and had not referred him to that job.
Speaker: But what was  -- were they … was it necessary for the jury … there was a jury, is that right?
Leo Geffner: Yes, there was.
Speaker: Was it necessary for the jury in bringing in a verdict to find that any actions of the Union or of its representative were illegal under any law, or that was it necessary to find that the hiring hall had been improperly administered?
Leo Geffner: Your Honor, it's difficult to know exactly what the jury would have done if there had been proper instructions in the case under the common-law tort.
Speaker: Well, I know; but how about in the instructions? Did the instructions require it to find one way or another that the Union had mal-administered the hiring hall?
Leo Geffner: Yes, there was a specific instruction that was given by the trial court.
Speaker: Where is that, do you know?
Leo Geffner: Yes, Your Honor. That is … in our Appendix, it's Page 60 to 61.
Speaker: Which volume is that?
Leo Geffner: That's Volume I.
Speaker: Page 61, you say?
Leo Geffner: Yes. No, I'm sorry, Page 41, Your Honor. The instructions requested by the defendants are at Page 60 and 61, where we requested the trial judge to instruct the jury they are not to try the hiring-hall procedures.
Speaker: The form of these instructions just says requested instruction; but it does not state -- indicate whether the judge gave it or not. Is the fact that it's in here mean that the judge gave it, or just that it was requested?
Leo Geffner: The defendant's requested instruction at Page 60 and 61, or Page 41?
Speaker: Well, before; we're back to 41.
Leo Geffner: 41 was the actual instruction given, Your Honor. That is the special instruction requested by the plaintiff and given by the trial court.
Speaker: Now, where is the instruction that says that the jury must find that the Union had not administered the hiring hall in accordance with the applicable law?
Leo Geffner: Well, Your Honor, there is no such instruction that is that explicit. What the instruction is on Page 41 is informing the jury that there had been a complaint with the National Labor Relations Board involving a job dispatch on a Dinwiddie-Simpson job, and that --
Speaker: Well, that's hardly responsive to my question, so that your answer to my question is that, no, there was no instruction that required the jury to find that the hiring hall had been improperly --
Leo Geffner: Well, except for that special instruction on Page 41; but, Your Honor, the entire trial encompassed the hiring-hall procedures of Local 25.
Speaker: There was nothing that would have required the jury to find what the Board found in this one incident.
Leo Geffner: Well, no, except that the plaintiff introduced the testimony that was held before the National Labor Relations Board, the deposition of the superintendent on the Dinwiddie-Simpson job, in the State court.
Speaker: Well, that might be very relevant to State tort actions.
Leo Geffner: Well, Your Honor, if that's the case, then Borden and Perko would not be applicable. It seems to us, Your Honor, that the way this case was tried and the fact that it was a hiring-hall dispatching-procedure trial brings it clearly within 8(b)(2) of the National Labor Relations Act.
Speaker: Do you think Lynn is still good law?
Leo Geffner: Yes, I do, Your Honor.
Speaker: Now, don't you suppose in a case like that, it might be very relevant to show what kind of damage you might have received from a gross libel to introduce what happened to you in seeking jobs?
Leo Geffner: Your Honor, the basic distinction with Lynn is that the Court first had to make a finding that the defamation in Lynn did not constitute unfair labor practice as such and was not within the intent or the encompass of Congress to regulate that activity; that defamation as far as the Labor Board was concerned had to be coercive as far as it effected an organizing or a Union election campaign. After the Court made that determination that it was not within the scope of Federal regulation or crux to the center of Federal regulation, then the Court said that the defamation within a labor dispute would be peripheral. But then the Court went further, this Court went further and still didn't apply the state common law of defamation; this Court then applied a new Federal standard of defamation and held that the state court, even though it was not preempted, had to make findings of intention of acts, actual malice, actual injury, which was not the State tort of defamation and went on to caution the trial courts that on punitive damages that there has to be a very careful regulation, because heavy punitive damages could injure Unions, small Unions and small employers. It works both ways.
Speaker: What if the California court in this case had conformed to all those Lynn safeguards; that is, instructed that intent was required and had followed the cautionary road to punitive damages? Wouldn't there be a remarkable similarity between this case and Lynn?
Leo Geffner: No, because in this case, the entire case, the characterization of the case must be that it was within the full scope of Federal regulations behind the hiring hall.
Speaker: Well, wait a minute. Wait a minute, Counsel. Some of the acts proved -- as I understand, one of them was a battery, was it not?
Leo Geffner: No. There were no instructions given to anybody.
Speaker: No, I don't mean about instruction, but wasn't there evidence that there was a battery in the case? I mean the tort of battery, not an automobile battery.
Leo Geffner: On instruction, Your Honor?
Speaker: No, of a battery.
Leo Geffner: The question was, was there an instruction on a battery?
Speaker: No, wasn't there evidence tending to show a battery.
Leo Geffner: There was one incidence of Mr. Daley and Mr. Hill pushing each other in front of a door, and they made them question, "Well, let's go outside to fight." They didn’t take up that invitation.
Speaker: Well, supposing the complaint had simply sought damages for the battery and had not gone into anything else in the superior Court of Los Angeles County. Would you contend that it was preempted?
Leo Geffner: No, Your Honor. Assault and battery, which is the nature of violence, when the Laburnum is a matter for State regulation. It's not to encompass of the full scope of Federal regulation having to do with employment discrimination. We have assault and battery suits all the time involving Union people, members and nonmembers.
Speaker: If that's the case, why isn't your proper remedy in the Superior Court to ask that evidence be stricken that goes outside of that and, on appeal, to ask that any part of the recovery that goes beyond that, if you were right in conceding that only that was recoverable, be taken away rather than saying there's complete preemption?
Leo Geffner: Well, Your Honor, that request was made before the trial court, that the evidence regarding employment discrimination should not be presented to the jury; that it should be limited to items such as you referred of a possible type of shuffling or a battery or abuse and so forth, and the jury could make findings on those elements alone, which would be the common-law tort. But --
Speaker: Well, is that your theory, Mr. Geffner?
Leo Geffner: -- the trial court did not do that.
Speaker: Is it your theory that anything done by a Business Agent under color of the authority of the Union is preempted?
Leo Geffner: No, Your Honor. If this was a pure and simple common-law tort of assault or a battery and was done by a Union official, the normal California common law would apply, and also the tort of intentional affliction of mental stress would apply as long as it didn't involve employment discrimination such as this case, which tried the hiring hall of Local 25, which was within the expertise of the National Labor Relations Board.
Speaker: Let's take a hypothetical that goes beyond this someone; that the evidence in a case to a state court and jury would show that over a period of years the Business Agent and others within the Union hierarchy systematically conspired and succeeded in keeping a member of the Union from employment and from benefits of Union membership. You say that that being done under color of the authority of the Union, that's preempted, and his only remedy is an unfair-labor practice claim.
Leo Geffner: Well, Your Honor, that presumes that there was a finding that there was discrimination which is at the heart of the case, because each of these items of conduct, the complaint of Mr. Hill outside of the verbal discussions and that area, involved job dispatching. Now, either that conduct was clearly prohibited by the Act under 8(b)(2), under Radio Officers' case, and the Labor Board then can provide a full remedy, including orders, back pay, even an imposition of a trusteeship under local Union’s hiring hall, or if it's not, then the Union’s conduct was clearly permitted as a valid hiring hall, which is allowed by Congress, as this Court has held in Teamsters 357 and by Congress enacting 8(f). When Congress enacted 8(f) in 1959, they said that a nondiscriminatory hiring hall by a building construction-trades union was lawful and could not constitute the basis of unfair labor practice. Now --
Speaker: What you're necessarily saying is that the conduct of Daley shown by this record in the state court is permissible conduct.
Leo Geffner: Well, the jury, after reading all this mountain of evidence on how this hiring hall operates against virtually hundreds of carpenters, concluded that it was discriminatory, gave Mr. Hill $7,500 in compensatory damages and then punished the Union by giving $175,000 punitive damages. Now, the NLRB could very well have found that, say, out of these dozen or so incidents, that six were prohibited or discriminatory and granted release and could have found that six were permitted and protected activity by the Union in operating a nondiscriminatory hiring hall. The jury in effect took away this right of the NLRB, which is the body the Congress gave this responsibility to determine whether there is discriminatory operation of a hiring hall. The jury made this determination, which is what Congress did not intent a jury to make.
Speaker: Yes. But is then the law (a), provide for mental pain and anguish?
Leo Geffner: Well, Your Honor, I don't know if the Board has ever really ruled in that area where it's been taken on appeal. They normally take --
Speaker: That is what worries me. This case is a tort with specific common-law right, and I assume that that is not covered by NLRA.
Leo Geffner: Well, that's true, Your Honor; but also in Garmon, there was a finding on mental distress -- that is, in the Board, rather -- and the cases are filled with situations where there's a claim of mental distress. Now, if you separate employment discrimination from the other conduct that would constitute the part of a tort, Congress provides a remedy here, Your Honor.
Speaker: Do you agree that nothing in the NLRA that stops Union people from cursing, because you'd have to change a whole lot of Unions?
Leo Geffner: Your Honor, I would say that is a daily occurrence in the operation of any Union to function, including a hiring hall, is cursing. And if that was the basis of Mr. Hill’s case and we didn't get involved in the hiring procedure --
Speaker: Well, if your Union is as overanxious as ours are, (inaudible).
Leo Geffner: Well, Your Honor, there was --
Speaker: (Inaudible.)
Leo Geffner: Yes. Well, that was a finding of the jury; but the Labor Board may have found a totally opposite result, and they are the expert body to make this determination.
Potter Stewart: But if the Labor Board had found that kind of discrimination, they were fully equipped to order back pay to compensate for that injury, weren't they?
Leo Geffner: Yes, and much further than, that Justice Stewart, as the NLRB points out in their amicus brief, their remedies are very broad. They can impose virtually a trusteeship on a local Union’s hiring hall, which they have done.
Potter Stewart: Well, then that would have been preventive, assuming hypothetically, for future discrimination for this hall.
Leo Geffner: Well, except Mr. Hill could have gone from the first day -- Mr. Hobart claims these two rules of 16 hours and going to the bottom of the list. He could have gone the first day to the Labor Board in each instance and filed a charge.
Warren E. Burger: Let's resume there at 1:00 o'clock, Counsel. Mr. Geffner, you may resume your argument.
Leo Geffner: Chief Justice, if the Court please, I'd like to start this part of the argument by again stressing that the jury under its instructions gave a general verdict after this tremendous volume of evidence regarding the operation of the hiring hall, and they're willing to assume that the jury made some findings regarding the administration of Local 25 hiring hall, whether discriminatory or not discriminatory.
Byron R. White: On what point are we to assume that?
Leo Geffner: Because we asked -- well, for two reasons, Justice White. One is that a quick review of the record, not getting into a detail, indicates that the bulk of the case, the mountain of evidence, went to the hiring-hall procedures, not only as to Mr. Hill, but as to the entire operation regarding virtually hundreds and hundreds of carpenters that were utilizing the hiring hall. Secondly, we had requested throughout the trial and also requested specific instructions which are contained in Volume I of the Appendix at Page 60 and 61, asking the judge to give an instruction that they're not to make findings regarding whether the hiring hall was discriminatory or not, that that was a matter not within their expertise province and to limit their findings on what would have been the non-hiring hall incidents, which would not involve job discrimination.
Byron R. White: Well, let's assume the instructions had been given. Would you be here?
Leo Geffner: Would I be here?
Byron R. White: Yes. Let's assume there'd been some special verdict required and that some affirmation by the jury that they had made no such findings.
Leo Geffner: I think that would again turn, Justice White, on what was the actual crux of the case itself.
Speaker: How do you go about finding out what was the crux of the case?
Leo Geffner: Well, I think you have to go on terms of what is contained as far as the Board is concerned as applying 8(a)(3) involving employer discrimination and 8(b)(2), which would involve Union discrimination. I think there that the Radio Operators' case made it very clear that the Board is charged with responsibility as to whether there is Union discrimination of employment, whether it's a Union member or non-Union member, a good member or a bad member. Therefore, if the Board has the primary responsibility under 8(b)(2), and particularly with some of the guidelines set out by Congress in 1959 in 8(f) to determine the operation of a hiring hall, then we have to look I believe to whether the jury infringed on that function of the Board so as to create a conflict as to the jury finding that there was prohibited activities where the Board may or may not have so found.
William H. Rehnquist: Well, suppose for a moment that it did. Take an unfair-competition case that's filed in the Superior Court of Los Angeles County, and there's also evidence that would make out an antitrust violation. Now, you can't bring a private antitrust violation in the state courts. But if the jury gets some of that information before, even if there were instructions on an antitrust theory, your remedy is to go to the California Court of Appeal or Supreme Court of California, ask them to reverse it and send it back for a new trial. Your whole case doesn't turn into a pumpkin just because you've got some bad evidence in it.
Leo Geffner: Well, it’s not just a question of bad evidence, Mr. Justice Rehnquist. It goes to the entire case having to --
William H. Rehnquist: The battery, you conceded was actionable.
Leo Geffner: Well, the Court of Appeals in California, in reviewing the testimony and reviewing the evidence, found very clearly that the … again, using the phrase “the crux of the action”, the characterization of the action had to do with job discrimination and employment discrimination, which is covered by 8(b)(2). But I think your question leads me to another point, and that is that the question of Morton applying here in terms of the State applying an additional or a conflicting remedy to what Congress has intended to apply. Now, going back to the beginning of the Wagner Act in 8(a)(3), Congress intended to charge the Board with responsibilities regarding Union discrimination and employment, and this Court held very early in Republic Steel that punitive damages was not a proper scheme for the Board to apply in terms of punishing an employer who engages in discrimination and employment for Union activities under 8(a)(3).
Speaker: Would that suggest that that might be because that was within the orbit of state-court tort matters?
Leo Geffner: Well, I think what's clear from that falling from Morton, Republic Steel would have to do with the employer discrimination and Board remedies. Morton, which followed in the '60s or 1970, I believe it was, Morton held that where Congress has regulated an area of labor management or Union member or disputes, I think it's clear under 8(b)(2), I think it is clear under the Radio Officers, and it is essential at the Board of Administration's regulation in Union hiring halls. Now, in Morton, Congress had provided a 303 remedy for Unions engaging in secondary activities as a violation of 8(b)(4). The State had provided an additional remedy providing for punitive damages, which I think is very close to your question, for a violation of State tort law that had to do with interference in terms of secondary activities by a union, and this Court held very clearly that where the central focus of Congressional regulation was given to the Board having to do with job discrimination, employment discrimination, whether it's an employer on one side or Union on the other side, that that is a matter for the particular expertise of the Board under their administrative procedures, and if Congress said the remedy was, as it did in 3O3, to be compensatory damages, then the State couldn't superimpose an additional remedy of punitive damages, because the obvious conflicts would then exist. The Board could find certain conduct was valid or invalid, provide its remedy, and yet a State court could come in and award tremendous punitive damages that could be criminal in nature and could virtually bankrupt an employer or a Union, and then what is left of the Board’s regulation? Very little; it's all been left up to the State in terms of how it was going to punish a Union or an employer.
Speaker: Let me see if I understand your argument, Mr. Geffner. Is it that if the conduct complained of is within the general framework of the Business Agent’s activity, hiring hall, Union meetings or what-not, then it's preempted?
Leo Geffner: No. No, Your Honor, no. Let me be very clear. There is conduct that can be performed by a Union official, just as there can be conduct performed by an employer representative, a superintendent or a foreman. If it's not within the scope of the regulation of the Board, if it doesn't relate to Union discrimination in jobs and employment, if it's conduct that is not within the scope of the Board's regulation, then it's not preempted.
Speaker: Well, do you suggest that this record does not show abuse of Union power and malicious use of Union power to the detriment of this petitioner?
Leo Geffner: Your Honor, what this record shows is that the hiring hall was tried in its totality by a jury, and we don't know.We don't know whether --
Speaker: Well, I don't know if that answers my question.
Leo Geffner: Well, we don't know whether the conduct that Mr. Hill was complaining about --
Speaker: Let me put it another way. Do you say, then, all of the conduct that's shown by this record is protected conduct?
Leo Geffner: No, no. If there had been an isolation of the items that didn't involve the hiring-hall operation, the administration of the hiring hall, which Mr. Hill could have gone to the NLRB on the first day and could have gone for each incident that came up on to the Board, asked for relief, the Board gave him relief in one case where he went; he went a second time, they dropped his charge; could have gone each time, the Board could have issued broad orders, it could have imposed a trusteeship, it could have adversely run the hiring hall if they so found job discrimination of such a magnitude.
Speaker: Do you argue that the Board is capable of dealing with all of the abuses of Union power that occur?
Leo Geffner: Well, Your Honor, this is not a question of Union power as such; this is a question of job-employment discrimination, which has been regulated by Congress. We're not claiming blanket immunity for anyone that is a Union officer or Union Business Agents such as a … I'm sure there would be this contention for an employer representative. But this cuts both ways, because the Board does an endless number of cases involving 8(a)(3) violations where there's been job discrimination by an employer where the Board has provided the exclusive remedy, where there's been claims of mental distress, there's been claims for punitive damages. The Board has been dealing these problems since the days of the Wagner Act. Now, in 1947, Congress said, “Board, you now deal with employment discrimination having to do with discrimination by unions in 8(b)(2)", and it's clear that within that regulation within the scope of 8(b)(2) is whether a hiring hall is nondiscriminatory or not. To say that all this misconduct occurred in terms of the hiring hall is assuming that the jury was right in its findings. The Board may have easily in their deliberations through their expert administrative skills, investigation and so forth have found that Mr. Hill, as the testimony was ample to justify, was rejected by employers, wouldn't take certain jobs, was not discriminated in certain areas. These are matters that where your Court cannot assume that the NLRB would find were discriminatory.
Speaker: But even if we assume that the NLRB would have found that in each one of these episodes there was discrimination, nonetheless, your argument would be the same, wouldn't it?
Leo Geffner: There's a remedy. There is a remedy that comes --
Speaker: Your argument would be precisely the same.
Leo Geffner: Yes, that's correct, that's right. That's why it's not arguable: it's either prohibited or it is protected. It is not an arguable case either way, because the Board can and does provide a broad, sweeping remedy having to do with job discrimination, whether it's 8(a)(3) with the employers or whether it's 8(b)(2) with the Union.
Byron R. White: Would you say there was a lot of evidence here of conduct that was not subject to Board control?
Leo Geffner: Yes. There was some conduct, of course.
Byron R. White: But you allege that there is a lot of conduct proved that was also subject to Board control, and it's the presence of that evidence that preempted …
Leo Geffner: It was not a question of the evidence, Justice White, but it was the volume of the evidence. It was the overwhelming amount of evidence that related to hiring-hall procedures.
Speaker: But the issue of violation of the hiring-hall regulations was never submitted to the jury, but there was evidence. There was evidence of conduct in the administration of the hiring hall …
Leo Geffner: Yes.
Speaker: … that you claim the Board had exclusive jurisdiction for.
Leo Geffner: Yes, Your Honor. In fact, it was the plaintiff at the beginning of the case, and that's why we presented this Appendix, who said, “We are going to show you how this hiring hall is being operated in a discriminatory manner”; and then it was the plaintiff who then brought in these various rules to the hiring hall; and it was the plaintiff who then brought in NLRB notice.
Speaker: The complaint in the NLRB, because the complaint also that during this same period, "The defendants repeatedly threaten plaintiff with actual or de facto expulsion from the Union in retaliation for his political activities and further threatened to deprive plaintiff of his ability to earn a living as a carpenter". Now, suppose the evidence centered solely around that allegation. You wouldn’t be for that, would you?
Leo Geffner: If it was a matter of an expulsion case, Your Honor, then we've got the problem of dealing with Title I of the Landrum-Griffin Act, which Congress has set out for those standards.
Speaker: But their evidence wasn't limited to do that, was it?
Leo Geffner: It was not limited to that. In fact, there was no evidence of expulsion. All the evidence related to the first part of that same paragraph, Your Honor, where it says they control the job dispatching procedures and that the plaintiff would be and that he was given inferior assignments and be bypassed for work assignments. That's precisely what the Board regulates.
Speaker: Could I ask you what I asked your adversary about an unfair-representation suit?
Leo Geffner: Yes. Your Honor, that is --
Speaker: Now, I suppose this hiring hall was part of the administration of the collective bargaining contract.
Leo Geffner: Yes, it was.
Speaker: And if there was a failure to represent this man fairly, I suppose he might have a suit.
Leo Geffner: Well, Your Honor, that is not this case, because --
Speaker: Well, I know, I know. But that kind of a suit wouldn't have been subject to  a preemption at all.
Leo Geffner: No. But that suit would have been tried, Your Honor, as a matter of Federal law under a duty of fair representation as decided by this Court in Vaca versus Sipes and Humphrey versus Moore, and it would have been determined, if it applied at all, by the standards established by this Court under Federal standards what the duty --
Speaker: Even if the conduct might have been an unfair labor practice
Leo Geffner: Well, Vaca versus Sipes certainly held that it was not preempted. So I assume he wouldn't contend that it would be preempted; but the point is that this was not a duty of unfair representation case. It was not pleaded, it was not tried; there were no instructions to that effect. There was no Federal law applied at all.
Speaker: Well, I understand that it wasn’t; but I'm just wondering if there was some remedy provided by Federal law aside from the Board.
Leo Geffner: Well, there would be possibly a duty of fair representation; if there had been an actual expulsion, possibly there would have been a Title I situation. But that is simply not the situation here. And what this Court will do when it's faced with that situation between a duty of fair representation where there is an application of Federal law which is not preempted in a-hiring hall situation, I think that's a problem.
Speaker: Are you suggesting that if everything that was alleged here was proved by the plaintiff, that it would not be a violation of the duty to fairly represent?
Leo Geffner: No, I'm not claiming that at all, Your Honor. I think that under the Vaca versus Sipes, applying Federal law, that very possibly there could have been a matter for Federal law to apply, because there obviously are two remedies on a duty of fair representation, because Vaca versus Sipes very clearly said that.
Speaker: Mr. Geffner, a major element in Mr. Hill’s complaint was that he was denied employment by activities, as you say, at the hiring hall. Let's assume that there was only one activity. Let's assume that Mr. Daley as President of the Union on Union stationary wrote a letter to every contractor and every subcontractor in the Los Angeles area saying that Mr. Hill was a convicted thief and not legible for employment by virtue of his criminal record. Let's assume that was false. Assume no other evidence of discrimination. It resulted in …
Leo Geffner: On those facts, Your Honor, I think it would come under Lynn, and in the Federal standards that have been applied by this Court in labor management relationships as to Lynn applying for defamation would apply. If we were just limited to a defamatory statement that was false, that there was intentional and actual malice and limited damages.
Speaker: Even though the purpose of it was to deny job opportunities to Mr. Hill?
Leo Geffner: Well, I think the job opportunities, the dispatching end of it in terms of being applicable, would be within the Board’s scheme of regulation; but I think there would be splits between the two, because I think a charge of a criminal being false, under the common law, it would be defamatory.
Speaker: Are you thinking in that case there would have been relief both under the Board and in the state courts of California?
Leo Geffner: Well, I think under state law in California, again, I think we have to apply the Lynn standards as the tort of defamation. If we did so, then very likely there would be a common-law tort of defamation as qualified by the Federal Court. If the Board found that there was intent to discriminate in a violation of 8(b)(2), then the Board obviously would proceed under an 8(b)(2) violation.
Speaker: I suppose in Brother Powell’s example damages would include loss of employment.
Leo Geffner: With the Board?
Speaker: No, no, in a state action.
Speaker: In a state-law tort action.
Leo Geffner: The issue of damages would include loss of a job if there was such, if there was proof.
Speaker: He assumes it wasn’t, though.
Leo Geffner: I think the normal damages would flow, yes, as it would flow in a normal defamation case except as qualified by this Court in cautioning the trial courts not to allow heavy punitive damages to penalize a small employer or a union where the feelings of local juries involving unions and employers may be such that it would still infringe on the Federal labor policy.
Speaker: Mr. Geffner, it would not also be true in a defamation action that the truth or falsity of the defamation could turn on the nature of the hiring-hall practices -- in other words, it could be a false statement made about a man that would be true or false, depending on what kind of practices were followed -- and it would not therefore also be true that evidence relating to hiring-hall practices would be admissible if the tort action was a proper action?
Leo Geffner: Well, to what extent the hiring hall could be introduced as background or as part of the basis for the defamation, I think would have to be -- I think Mr. Rehnquist asked a similar question -- I think that's something that has to be determined from the facts of the case.
Speaker: But you don't argue for a broad rule that the mere fact that the conduct is subject to Board prohibition or protection would make the evidence always inadmissible.
Leo Geffner: No. No, I'm not. I am arguing that --
Speaker: The instruction is pretty close to that, but you don't really ask for that.
Leo Geffner: I'm arguing where the crux of the case where the jury was able to find that a hiring hall was discriminatory or nondiscriminatory, where that is where the case was tried and where the Board has provided a remedy where 8(b)(2) applies and where Thomas has stated that is where it belongs with the unions and with employers under 8(a)(3), that that is when it becomes preempted.
Warren E. Burger: Mr. Combs?
Norton J. Come: Mr. Chief Justice, and may it please the Court. The court below found that the crux of the cause of action which went to the jury concerned Hill’s employment relations, and although there was an allegation of expulsion in Count 2, there was no evidence of any expulsion from Union membership. That finding, we submit, is amply supported in view of not only the allegations of the complaint, but Hill’s attorney's opening statement to the jury, in which he made it perfectly clear on several occasions that in order to understand the cause of action, you'd have to understand how the hiring hall operated.
Speaker: Do you disagree with that, that that was necessary?
Norton J. Come: It was necessary on the cause of action and the gravamen of it as found by the state court, namely, a case of hiring-hall discrimination. To be sure, there were other elements in the evidence; but the principle proof and the gravamen of the cause of action was hiring-hall discrimination. Now, in Garmon, in Borden and most recently in Lockridge, this Court has wrestled with the problem of when are you going to find preemption, and the key to the test that finally involved is the type of conduct that the state court lays hold off. Is the crux or the gravamen of the conduct the kind of conduct that Congress has made a principle concern of the Board's; and if it has, the Court has found it preempted, it is framed the test in various ways whether it's arguably prohibited or arguably protected or, as in Morton, whether it can be said that the Congress intended to occupy the field with respect to that type of conduct. So whether we take petitioner’s test or you take a Garmon-Lockridge test, the question as we see it as to the answer here is whether or not the court below was right -- and we submit that it was -- in concluding that taking this case as it was tried and went to the jury, the jury was required or could have made a judgment with respect to conduct that is central to the Board’s concern and could have evaluated that conduct differently. Now …
Speaker: Mr. Combs, can I just interrupt you right there?
Norton J. Come: Yes, Your Honor.
Speaker: Supposing on precisely the same record that we have here the Court of Appeals of California had said the crux of this case as we understand it is whether the elements of the common-law tort for present -- namely, was the conduct outrageous, was it intentional, was it sustained -- and all this other evidence of hiring-hall practice just merely tends to prove one of those three elements of the tort. If they had said those three elements were the crux of the case, would we then have a different result?
Norton J. Come: On this record, I don't think you would have had a different result, because the court’s classification of the conduct is a Federal question, and you'd have to look to see what was the proof that was due, what the allegations of the complaint were, what the proof was that was adduced, what the instructions were that went to the jury. And if you look at all of those things, I submit that had the California court classified it differently, it would have had to be reversed under -- unless this Court is prepared to overrule a long history of preemption cases that start with Garmon in ‘59, go through Borden in ‘63, and culminate with Lockridge in ’71. And since preemption is not a matter of constitutional principle, but of imputed statutory intent, I submit that the court would not, absent a compelling reason, which we submit has not been shown in this case, want to overrule that long line of precedent.
Speaker: If the characterization of the crux of the action is a Federal question, then does it not conversely follow that we're not bound by the Court of Appeals' characterization as primarily involving hiring hall, but we have a duty independently to decide whether that's the proper description of the character of the case?
Norton J. Come: I would say that that is so; however, I believe that it is entitled to -- the Court of Appeals' characterization is entitled to considerable weight. But in this case, I go beyond that to say that it is supported by all of the factors and the records that I have alluded to.
Speaker: Mr. Combs, in reciting the long line of precedents which you said would have to be overruled, I noticed you didn't mention the pre-Garmon cases of this Court, Garner and Laburnum and Russell. Are you suggesting that Garmon itself represented a change of direction?
Norton J. Come: No, I do not, Your Honor. I think that Garner is in the mainstream, as this Court pointed out in Lockridge.
Speaker: Well, do you think there are any cases pre-Garmon that are not in the mainstream? How about Gonzales?
Norton J. Come: Well, Gonzales was preserved by Garmon. We think that this is not a --
Speaker: It was preserved by Lockridge, too, wasn’t it?
Norton J. Come: It was preserved by Lockridge.
Speaker: But you don't question Gonzales.
Norton J. Come: I am not questioning Gonzales. I think that the difference between Gonzales and this case is that Gonzales, the thrust of the cause of action there was wrongful expulsion from the Union. I think that to say that Union member relations are different from Union management relations is an oversimplification, because with respect to part of the field of Union member relations Congress did enter it with the National Labor Relations Act. It did so insofar as it involved Union control over the job. At the same time, it preserved from the Board’s purview that part of Union member relations that involved internal Union affairs. There was a body of state law that governed that. Congress in ‘47 left that the state law. In ‘59 with Landrum-Griffin, it sought to add to the body of state law by providing some Federal remedies. But that was the purely internal area. At the same time that it did that, it recognized the continuing validity of preemption with respect to that part of the field that was entrusted to the Board, because although it considered at that time overruling this Court’s decision in Guss which created a no-man’s land, it made only that very narrow insert into the preemption doctrine by enacting 14(c)(1), but left the preemption doctrine untouched with respect to the remainder of the field. So therefore I think it is very important to keep our eye on what this lawsuit is about and not what other lawsuits could be in the future or what plaintiff could have made this lawsuit. And I think the fact that it is tried on a tort theory rather than on a labor-relations theory only compounds the danger of interfering with the Federal regulatory scheme, because at least had Labor Relations' principles had applied, there could have been some possibility that the state court might have evaluated this hiring hall under the same substantive principles that the Board would have used. That would have been bad enough because of the possibility of conflicting fact findings and conflicting remedies; but where the jury was left to general tort theory, which had no standard other than what the jury would determine was outrageous. The possibility existed -- I'm not saying that this motivated the jury or not; but we can't speculate when we're left at sea like this -- that they could have found that even the operation of a valid hiring hall which committed this exclusive control over referrals for employment to a union was outrageous, despite the fact that this Court in Local 357 had indicated that a hiring hall run by neutral criteria was perfectly lawful under the Act.
Speaker: Well, Borden was tried on a contract theory, too, wasn't it? That didn't seem to save it.
Norton J. Come: It did not save it, and I submit, Your Honor, that nor is this case saved by the fact that it was tried on a tort theory.
Speaker: You said at the onset, Mr. Combs, that no aspect of constitutional law is involved here, but surely the Supremacy Clause is. That is involved, isn't it? That's always involved in Federal preemption.
Norton J. Come: That is correct; but that is at the background after you decide the statutory question, and it's in also --
Speaker: But it's only because of the Supremacy Clause that you have to decide it in favor of the Federal Government after you've determined the scope of the preemption, isn't that correct?
Norton J. Come: That is correct. But the question of determining the scope of preemption is a statutory matter. It's a matter of imputing the intent of Congress, and it is often proved in this preemption area Congress rarely speaks with …
Speaker: Explicitness.
Norton J. Come: … explicitness, and you have to infer it from the scheme of the regulation and the pattern of the regulation. And if there's one thing that the Board has gotten into with both feet, as the long list of cases in the Appendix that the Board’s brief shows, it is job discrimination, particularly in the operation of Union referrals and Union hiring halls. Therefore, we believe that unless this Court is prepared to overrule Garmon and Lockridge and Borden -- we submit that no reason for doing so has been advanced in this case -- the judgment below should be affirmed.
Warren E. Burger: Thank you, Mr. Combs. Do you have anything further, Mr. Hobart?
G. Dana Hobart: Very briefly, Your Honor, a couple of comments were made, I think, that should have some comment to them. To say that this case is not preempted factually, Your Honor, in the case of Garmon, Garmon has made the following statement, which I quote verbatim:  "Redress for arbitrary bad faith, fraudulent" -- I said I was quoting it verbatim, but that's not correct. Quite right, I have included from several places the type of conduct; but it is a true incorrect paraphrasing. "Redress for arbitrary bad faith, fraudulent, deceitful or other dishonest conduct does not conflict with Federal labor policy or is at most tolerably slight." In Hardman, the Court will remember that the Business Agent got hit in the nose, because he wouldn't dispatch a member, or a couple of men apparently, to a job where they had been requested by an employer. The Union claimed preemption in that case, too, arguably and unfair labor practice, they said. The Court expressly held that it is not an unfair labor practice. Go quickly to Gonzales. They say, well, Gonzales is no good, because this was not an expulsion case. May it please this Court, the worst penalty that could be imposed is not to make it an expulsion case. By keeping Mr. Hill in the Union, the wiser dictatorial-type tyrant says, “I can keep this out of the courts. I can keep it in the NLRB. I won't expel Mr. Hill; I'll just knife him to death as a member, and perhaps with a smile on my face" Is the physical effect of Hardman, which is not preempted because he got hit on the nose, any different because Mr. Hill didn't get hit in the stomach, but nevertheless suffered enduring and longstanding pain? Those are distinctions without differences, and what it boils down to is what I was complaining about at the beginning. It provides for triumphs of procedure, not redress of the actual harm. Your Honor, the trial of this case was not a trial of the hiring-hall practices, not the legality. We had to show where the discrimination occurred. They used the hiring hall as the vehicle to impose upon Mr. Hill this discrimination. We had to show simply two easy issues to the jury:  one, what the rules were; and, two, were they fairly applied. That's all. That doesn't require expertise of the National Labor Relations Board, not at all.
Speaker: Well, what rules were? You say you had to show two relatively simple things to the jury: one, what the rules were. Now, what rules are you talking about?
G. Dana Hobart: The hiring-hall rules.
Speaker: Uh-huh.
G. Dana Hobart: They came in the form of the collective bargaining agreement, admitted without objection. They came in the form of the hiring-hall procedures set forth by the Union, which even in the preamble to that says pursuant to the collective bargain agreement these are the rules, and in them it says you hire on a nondiscriminatory basis following the list.
Speaker: Right.
G. Dana Hobart: That's what it said. I'm somewhat distressed that the NLRB is here on an opposite side. We are trying, as I see it, to protect Union members, whatever the number may be, few or great, who occasionally may be subjected to this type of tyranny. We don't want to put the NLRB out of business; we want to expand the ability to redress these wrongs. And the AFL-CIO, Your Honor, has told this Court in their amicus brief that they represent 14 million people. I would suggest to Your Honor that they represent the leadership of labor organizations. Mr. Hill, who is now departed, Mr. Hill, Your Honor represents the 14 million people. There is no doubt about that in my mind or heart. Thank you, Your Honor.
Warren E. Burger: Thank you, gentlemen. The case is submitted.