Warren E. Burger: Number 71-711, National Labor Relations Board against Granite State Board. Mr. Come.
Norton J. Come: Mr. Chief Justice, and may it please the Court. This case is here on certiorari to the First Circuit, which denied enforcement of the Board's order against respondent Union, a local of the Textile Workers Union. The case involves an application of the principles formulated by this Court in the Allis-Chalmers and Scofield cases. Section 8(b)(1)(A) of the National Labor Relations Act makes it an unfair labor practice for a Union to restrain or coerce employees in the exercise of their Section 7 rights which includes the right to engage in concerted activity and the right to refrain from engaging in concerted activity. The question presented here is whether a Union violates Section 8(b)(1)(A) by fining employees who return to work during the strike after they had resigned from Union membership and by seeking judicial enforcement of the fines. The facts are briefly these. The Union for many years has been the collective bargaining representative of the employees of the International Paper Box Machine Company in New Hampshire. On September 14, 1968, six days before the scheduled expiration of the collective-bargaining agreement, the Union membership voted to strike, if a new agreement was not reached by September 20. No agreement reached and the strike was attended, and picketing began on that day. On September 21, the Union held a meeting to discuss strike organization in which the membership approved the resolution to anyone aiding or abetting the company would be subject to a fine of $2,000. All but three or four of the 160 employees in the bargaining unit were Union members and all of the Union members went out on strike. The contract that had just expired had a maintenance-of-membership provision in it which required employees who were Union members at the time of the contract became effective or who joined the Union during the term of the contract to remain members during the contract term. Practically, all of the Union members attended both the strike authorization and the fine authorization meetings. The members assented to the strike by a standing vote with only one member dissenting. The motion to levy the fine was adopted unanimously without discussion. On November --
Harry A. Blackmun: Mr. Come, were those public votes in the sense that they were not secret ballots?
Norton J. Come: That is correct, Your Honor. They were standing votes. They were not secret ballot votes.
Byron R. White: Do you know what attendance there was, or is that in the record?
Norton J. Come: The record shows that, practically all of the members attended. The Court of Appeals and the trial examiner indicated that there might be some problem in future compliance proceedings as to whether all of the 31 who were subsequently fined were there or not, but the record shows that practically the entire membership was present at the meeting.
William J. Brennan, Jr.: And I gather there is no issue here of membership? It's conceded all that were involved were members of the Union?
Norton J. Come: That is correct and the question here is the right of the Union to fine the members after they had resigned from the Union.
William J. Brennan, Jr.: And is there any issue of the reasonableness of the fine?
Norton J. Come: That is not in this case. That is pending in the Boeing case which is on a petition for certiorari, but the Court has not acted on that. About --
Warren E. Burger: Would it make any difference to your position Mr. Come when they resigned?
Norton J. Come: Yes.
Warren E. Burger: Now where would you have the cut off?
Norton J. Come: Under the principle that the Board is applying, the cut off is whether they resigned before they engaged in the activity for which they are being fined. In another words, if they went to work before they resigned, in the Board's view, under Allis-Chalmers, the fine would be okay. If they resigned before they went to work and then were fined, in the Board's view, that would not be protected and that's what you have in this case. In the Boeing case, you have also a mid-position or you have some people who resigned after they went back to work and what the Board did in Boeing was to sustain the fine as to the activity that occurred, the strikebreaking activity that occurred before the resignation, but thereafter held that the fine was improper. But you don't have that mid-position here because it's perfectly clear that all of the 31 employees who were fined first took the step of notifying the Union of their resignation before they went back to work. Now you -- as I have indicated, during the course of this strike which was still going on at the time of the Board's second hearing which was 18 months after its inception, you had 31 employees who, beginning some month-and-a-half to two months and the poke occurring from seven-and-a-half to twelve months during the course of the strike, submitted resignations to the Union and went back to work. The Union notified them that they had -- were in violation of the Union rules, and ordered them to appear for a hearing before the Union tribunal. They did not. They were tried in absentia and fined the equivalent of a day's wages for each day work during the strike. And when none of the employees paid the fines, the Union filed suits in the state courts to collect the fines. The suits are still pending and the employees in turn filed unfair labor practice charges with the Board. The Board concluded that the 31 employees had affectively resigned from the Union before returning to work, that the Union violated Section 8(b)(1)(A) of the Act --
William J. Brennan, Jr.: But I want to be clear Mr. Come. No resignation was submitted in any of the 31 cases. So until after that meeting at which the resolution was passed that anyone who crossed the picket line would be subject to a fine of $2,000.
Norton J. Come: That is correct.
William J. Brennan, Jr.: And is it that fact that the Board relies on particularly?
Norton J. Come: It was that fact that the Court of Appeals was relied on in reversing the Board. The Court of Appeals said that since they had participated in the strike vote, they in effect had by analogy to the charitable subscription line of cases made a contract with the Union to see the strike through, and the Board's position -- submission that strike vote is not sufficient to override the employee's Section 7 right to resign from the Union and go back to work. That's the issue we have in the case. Well, in Allis-Chalmers, this Court held that a Union did not violate Section 8(b)1(A) of the Act by fining employees who went to work during the strike authorized by the Union membership and by suing in court to enforce the fines. The Court, balancing the Union's need to preserve solidarity during the strike against the employee's Section 7 right to refrain from engaging in concerted activities, concluded that the Union discipline there did not violate Section 8(b)(1)(A) because as we read the Court's opinion, it was imposed against the member pursuing through the contract of membership. The employees there were full members of the Union and the infraction of the Union strike rule occurred, while they were full members of the Union, and therefore, they were subject to the Union discipline. In the subsequent Scofield case, the Court in holding that the Union did not violate Section 8(b)(1)(A) by levying a court enforced fine against employees who violated a Union production rule that was acquiesced in by the employer, laid down this test which we think is applicable here for applying Section 8(b)(1)(A), namely that it leaves a Union free to enforce a properly adopted rule which reflects a legitimate Union interest, impairs no policy which Congress has embedded in the labor laws, and is reasonably enforced against Union members who are free to leave the Union and escape the rules. Now we think that the principle to be distilled that's relevant here is that the power to levy a court enforceable fine on an employee for breach of a legitimate Union rule which this is, is co terminus with the Union member contract or relationship and in the Board's view that was terminated here by the resignations for this reason. The Union's constitution and bylaws contained no provision defining or limiting the circumstances under which a member could resign from the Union. Under the law of governing voluntary associations, where there is no specific provision with respect to resignations, it's settled that a member may resign at will. Now the Union contends however that even if the 31 employees could thus effectively sever ties with the Union. Even the Court of Appeals was willing to concede that the absent of any provision, the resignation here was affective for most purposes. These 31 employees were none the less bound to support the strike until its conclusion because it's only reasonable to construe the Union's constitution and bylaws, as imposing by implication and obligation to see a strike through to its end or in any event, that conclusion is warranted here in view of the employee's participation in the strike vote. We submit that neither of these arguments warrants on different conclusion here. In the first place with respect to implying by implication an obligation in the Union's constitution and bylaws to see the strike through at the end -- to the end, we're coming across a very important right that's guaranteed by Section 7 of the Act which gives to all employees, including Union members the right to refrain from engaging in concerted activities.
William J. Brennan, Jr.: You suppose the results would be the same in your submission Mr. Come if there were an express provision to that effect in the constitution?
Norton J. Come: I would say Your Honor that the Board has not yet had occasion to consider whether a different accommodation between the Section 7 rights of the employees and the Union's right to impose reasonable discipline would be warranted if there were such information.
William J. Brennan, Jr.: I expect that if the Board prevails in this case, you will get that chance pretty soon?
Norton J. Come: I would assume so, but all I can tell you is that up until now, the Board has not had occasion to face that question, and it has reserved. The closest that the Board has come to it, as in dealing with a provision in a Union constitution that provided for resignation only 10 days at the end fiscal year, and the Board has held that that provision doesn't give any meaningful right to resign in terms of a strike situation and reach the same result in that case as it did in this case where there is no such provision, but it has not yet indicated what it would do, where you had a rule that was specifically tailored to a particular situation.
Byron R. White: We would like to hope for the employee in face of such a provision, would be tantamount to saying that Section 7 rights were un-waivable I suppose?
Norton J. Come: That is correct. That would be the conclusion that the Board would have --
Byron R. White: Are there some other instances where you have upheld waiver?
Norton J. Come: There are instances where waivers have been upheld and it really comes down to a basic and Board's and the Court's judgment would be as to the right to refrain is in Section 7. There are some rights that have been held not to be a waiver. Now, given the statutory right in Section 7, however, it is well settled that a waiver of statutory rights if it can be waived, has got to be expressed, and you would go against that principle if you found a waiver by implication in the constitution and bylaws here. Secondly, there is very good reason, for not the party from the principle of requiring an express waiver because a contract of membership is a rather unusual contract. A member becomes bond by the Union's constitution and bylaws upon joining the Union even though he had no real part in formulating the provisions of the contract. It's like a contract of adhesion similar to an insurance policy, and the principle applicable there is between two possible interpretations, you give the break of the party who had no part in formulating the terms of the contract, and thirdly, the decision whether to resign from a Union and return to work during a strike presents the employee with a very, very difficult choice, a choice that can be most meaningfully made in the particular strike situation. Therefore, it can't readily be assumed that a employee if he could waive the right would willingly want to do so by implication. Four, while the employees may be sympathetic to a strike when it's first called, events occurring thereafter which he may not have anticipated, may lead him to alter his view and a desire to return to work. For example, he may have underestimated the time that the strike is going to take. This strike, as I indicated, was going on for at least 18 months. And underestimating the duration, he may have underestimated the resultant hardship to himself, to his family or underestimated the employer's ability to find replacements for him. On the other hand, the decision to resign from the Union and abandon the strike is going to subject the employee to the individual to his right to participate in Union meetings, to which policies are formulated, both for Union officers. It may deprive them of certain Union benefits, subject them to a certain social stigma. So he has a difficult choice to make here and we submit that the policies of the Act are thus effectuated by holding as the Board has, that if he can waive his right at all, it has to be an express waiver. Now what about the strike mode here which is what the Court of Appeals relied on as making the difference? We believe that the strike for vote is an unreliable basis for determining rights and obligations under the Act, particularly where it was by a voice vote such as you had here because the employees may be induced the strike by a bandwagon psychology. As a matter of fact, one of the employees here testified that, yes, he stood up, but he stood up because everybody else was standing up. But be that as it may, assuming that you really wanted to support the strike, we believe that it's unrealistic to conclude that any employee voting to strike in 68, knowingly made a waiver to support that strike to the bitter end no matter how long it went on or no matter what his own personal situation may have developed. Certainly we believe that it's unreasonable to attribute to the employee in intention to support the strike even after he would be willing to take the very severe step of resigning from the Union.
William H. Rehnquist: Mr. Come, you say that it was a severe step to have resigned from Union?
Norton J. Come: Yes.
William H. Rehnquist: What adverse consequences flow to these particular Union members as it was a result of their resignations in this case?
Norton J. Come: Well, the record doesn't show specifically what happened to them, I can only generalize that normally, resigning from the Union, the individual loses the right to participate in Union meetings at which policies are determined the -- and also the right to vote for the officers of the Union who are going to be his bargaining representative.
William H. Rehnquist: So if the Union had governed a similar contract to the one which had expired at the conclusion of the strike, could it have prevented these man from being reemployed?
Norton J. Come: No, it could not have prevented them for being reemployed. There is one thing that the Union cannot do, and that is to affect a job right. Now you talked about the kind of contract that they had. The kind of contract that they had was a maintenance-of-membership, a contract which doesn't require you to be a member in order to keep your employment. If they had been successful in getting a Union shop agreement which they did not have, under a Union-Shop Agreement, you have to become a member of the Union within 30 days. They might have been able to require that they pay dues as a condition of continuing employment under the Taft-Hartley Act, that kind of thing, but you could not require them, at least as we understand the law, to actually become a full member of the Union and thus subject themselves to Union discipline. And a further point that I wanted to make is that in most strike situations, the vote is not by standing vote, but by secret ballot and to try to find out how somebody voted where it's by secret ballot would impair the secrecy of the ballot and lead to further complications, and finally, if you made the strike vote determinative, we believe that there is a serious risk of deterring Union democracy because employees would be fearful that by participating in the vote or in the discussions, that they might be hooked forever respective of what may develop might decide to play it safe and not participate which is certainly not a --
William J. Brennan, Jr.: Mr. N. Come Do I though understand correctly that basically the Board's position is to -- without regard to all these special factors, the Union's authority begins and ends of with what it may do with a member, and once one has resigned, he is no longer a member, and therefore, a conduct after resignation is simply not subject to Union discipline --
Norton J. Come: Yes sir.
William J. Brennan, Jr.: -- is that it basically?
Norton J. Come: That is it. For these reasons, we submit that the judgment of the court below should be reversed, and the case should be remanded with directions to enforce the Court's order.
Warren E. Burger: Thank you Mr. Come. Mr. Roitman.
Harold Roitman: Mr. Chief Justice, and may it please the Court. There are several points that I think there is some emphasis in analyzing this case. First of all, I think, it should be pointed out that in this case the Board is now seeking to have the, what is an already rendered decision of the state court of New Hampshire reversed. In this case, the Union sought enforcement of the fines and sought collection of other contract remedies that it had against these 31 individuals in the New Hampshire court and a motion to dismiss that action was filed and after a hearing, there was a ruling by Mr. Justice Flynn of the New Hampshire superior court denying the motion to dismiss and accepting a sitting jurisdiction for the New Hampshire court for the determination of these membership issues acting as the opinion points out and I have attached the opinion as a slip to the brief of the respondent. The judge pointed out that the New Hampshire court was acting in a federally unentered enclaved mentioned by this Court in the Scofield case and in the earlier decision of Machinists against Gonzales where you would recall the state court's ruling that the Union had improperly expelled and an individual was held to be a matter for decision of the state court, and not a matter reserved to Board under the National Labor Relations Act. Secondly, the Board now seeks of course to have that decision of the New Hampshire court reversed without in any way proceeding against the decision in New Hampshire by a way of Federal Court injunction or otherwise. Secondly, it seems to me that we have here three distinct classes of members that gets somewhat lost in the intricacy of the case, but there were some 160 odd employees of this company. Three or four of the employees at all times elected to act pursuant to their Section 7 right not to join the Union and not to engage in concerted activities.T hose employees never joined the Union, never participated in Union affairs. They refused to join in the strike and in fact, it show -- the record shows that they continued to work all during the lengthy strike that occurred passing to and follow from the picket line. And there is of course nothing in the record which in anyway indicates that any of their Section 7 rights to refrain were in anyway impinged upon by the actions of the Union. On the contrary, those rights were scrupulously observed by the Union and these people, we say comes squarely within the Section 7 rights and don't come within the special proviso of Section 81 which gives the Union the right to act in these situations and making membership rules. Those employees would carefully have their rights carefully preserved under Section 7. Now it's our position that with respect to the other 160 employees, they were all mature men who voluntarily elected to join the Union. There was no pressure of a Union shop or any other outward pressure with respect to their jobs which would compel them to join the Union. They freely elected to join the Union on their own and then as the contract that was about to expire, they met in a democratic meeting and voted to engage in the strike as a new contract could not be reached with the company. Now that vote for strike was part of the democratic process and a part of the Union's legislative activities which this Court referred to in the above -- in the Allis-Chalmers case as part of the National Labor Policy. But these individuals and the 31 individuals from the Board seeks to protect in their strikebreaking activities in this case, all of these employees, first of all met and voted to engage in the strike. Secondly --
Harry A. Blackmun: Mr. Roitman, suppose at that point, some of them had voted against the strike and the strike Board having been taken, there upon resign, would your position as to them be any different?
Harold Roitman: Yes, our position with respect to them is that there was an established Union procedure, now they are not spelled out in the constitution, but there was an established Union procedure set forth in the membership application card and the check-off authorization record, under which an employee was free to resign his membership in the ten-day period following the termination of the contract, and that that was an appropriate time for any employee who did not want to participate in the concerted activity of the strike to resign. As the Union pointed out that there had been an established practice and in fact one of the 31 members whom the Board is seeking to protect here, his name was Hassan Johnson, he was an employee who had joined the Union after spending sometime in the employment of the company. Then he had decided to resign from the Union. His resignation had been timely filed at a previous contract termination and was accepted by the Union. Then he changed his mind again and reapplied for admission to the Union and now after many months of the strike, he resigned again for the second time and the Union at all times has taken a position that those second resignations were untimely, but they would have been timely, had they been filed at the conclusion of the contract and at the inception of the strike in that ten-day period.
Harry A. Blackmun: Then I take it that you are insisting, sticking upon the ten-day provision?
Harold Roitman: Well, it's the Union's position with respect to that position that under Section 8 (b) (1), the Union is the appropriate party to determine what its rules are with respect to retention of membership. Now it's true that the Union did not spell out explicitly in the contract, in the constitution, that there was this escape period, but the Union did establish and that's documented in the testimony that it honored as a matter of practice any resignation that was submitted during this period. And the application for membership card of course contained this ten-day escape period immediately above the signature of every member of the Union. Every member who applied the membership in the Union signed one of the cards for membership application which contained within it the recitation after the application could be withdrawn during this ten-day period.
William J. Brennan, Jr.: Well then this position, Mr. Roitman, that is to all 31, none having resigned within the ten-day period at the termination of the contract and within the first ten days of the strike, they remained members after that ten-day period?
Harold Roitman: Yes, that's always been our position throughout this case. We argued that point before the trial examiner. It's mentioned again in the Court of Appeals' decision. The Court of Appeals did not attack that particular phase of our argument. It decided the case on the contract argument rather than this membership argument, but I would say that it is still the position of the Union and always has been that the Union has the right under 8 (b) (1) to determine its rules with respect to retention. This was the rule that the Union put forth and the Union is the proper party to determine any ambiguity in those rules, not the trial examiner or some party outside the Union.
Warren E. Burger: Mr. Roitman, excuse me.
Harold Roitman: We just say that that Act puts the Union in the position of being the determiner of those.
Warren E. Burger: Since the Union constitution doesn't provide for this ten day resignation period and the rules do not apply and the contract doesn't apply, is that something the Union could withdraw at will, unilaterally? In other words, what is the (Voice Overlap) ten-day?
Harold Roitman: No, the Union --
Warren E. Burger: You called it a --
Harold Roitman: -- membership is a contract of membership.
Warren E. Burger: You called it a practice. Now is it something that he could enforce?
Harold Roitman: Yes, I think so. I think this was in fact the Union rule which was part of the contract of membership which any member could enforce. I think he could absolutely enforce his rights to resign at that time. We would point out also that the construction given that in particular aspect of the case is that, apparently the Board will allow an individual to resign at any time regardless of this limitation which the Union says is there. But if the Board -- its position is taken and you say that a member can resign at any time during the course of the contract, it would appear that he would continue to pay dues until this escape period for the payment of his dues applied, and you have the incongruous result of a individual continuing to pay dues to an organization of which he is no longer a member.
William J. Brennan, Jr.: Well, that is sometime where the consequence of that form of collective -- a provision of the collective bargaining, isn't it?
Harold Roitman: Yes, I think it is, but I think the Union's construction that two things just opposed the (Inaudible)
William J. Brennan, Jr.: What's New Hampshire law on the question whether one is still a member if he doesn't resign within a period like this?
Harold Roitman: The court in its decision merely stated that, that was one of the issues that the court would take after it heard the case.
William J. Brennan, Jr.: Which court?
Harold Roitman: The New Hampshire court. Judge Flynn's decision again which is appended to the back indicates that the question of resignation would be one for the court that side on the merits.
William J. Brennan, Jr.: What's your view whether that's a matter of state law or whether it becomes involved with --?
Harold Roitman: Well, I think this Court has said in effect in the Gonzales case, that that is the kind of an issue that the Federal government has not entered into and therefore it is a matter for the state court to determine?
William H. Rehnquist: Mr. Roitman, the Court of Appeals apparently and the trial examiner concluded, perhaps as you suggested that there was no evidence that the employees knew of the Union's practice or that they consented to it. Your position is that not withstanding that conclusion, this was something that was up to the Union and it didn't make any difference if the employees knew about it or consented to it. Is that right?
Harold Roitman: Well, we say on the face of that – on the face of evidence that when they signed the application card, this provision was right in front of them, that was certainly some indication of knowledge that certainly in the case of Johnson whom I mentioned previously, he knew about it because he had resigned at the appropriate time, had his resignation accepted and chose to reapply for readmission.
William H. Rehnquist: Are you confessing that this factual conclusion under the trial examiner that was upheld by the Court of Appeals?
Harold Roitman: Well, it's our position that basically yes that the Union does have the right to make that determination. I don't think the issue is central to the upholding of the court below. It's just another facet that can be used to uphold the final result here, which is that there was the Union's position that these were not accepted resignations at the time they were made, and therefore that the people were still barred. The Court of Appeals went across on the other ground that this was a contract which it bound the -- (Inaudible) we agree with that.
Harry A. Blackmun: Mr. Roitman, I am still bothered a little bit of this ten-day provision. I take it, your position essentially is just that the Section 7 rights have been waived, except as to the ten-day provision during that period. Now suppose there weren't any ten-day provision at all?
Harold Roitman: Well, then I think, you have perhaps back in the situation that this is a voluntary association and that absent restrictions, the voluntary association can be terminated by either party at any time as a matter of voluntary right of anybody to continue the association.
Harry A. Blackmun: But with a ten-day provision that is not so?
Harold Roitman: No, we say that that is a part of the membership contract commitment to be bound by that state of affairs.
Harry A. Blackmun: And if it were one-day provision, it would not be so?
Harold Roitman: Well I suppose as you can always stretch the elastic till it breaks, but our basic position would be that the Union that has the right and again the proviso of Section 8 (b) (1) to effectuate a rule with respect to retention of membership and I suppose it can be a hash rule as well a liberal rule. There is nothing in the Act which in anyway indicates that. I would say in that point that --
Harry A. Blackmun: On that basis it doesn't seem to me there there should any difference between one day or not?
Harold Roitman: Well, no days is just a saying that they can be no escape from membership.
Harry A. Blackmun: Once having accepted it, except by the information --
Harold Roitman: Well, that is -- it's not an impossible position when we formed a more Union, there was no escape provision into it.[Laughter]
Thurgood Marshall: Mr. Roitman, where is the record as the Union position about this resignation? Were they notified that their resignation would not be accepted?
Harold Roitman: Yes, they would. Each of the – well --
Thurgood Marshall: I can't find it, I must have missed it?
Harold Roitman: Each of the employees who resigned, the first two were sent their letters by the head of the Granite State Joint Board and it was called to their attention that their resignation would not be considered effective and that the fine would be imposed against them and later on in the record after the company --
Thurgood Marshall: But I want that, where is that record, the original one. Is it in there?
Harold Roitman: Yes, page 79, Your honor. Well, no. Page is 79, it's the letter.
Harry A. Blackmun: They would be barred --
Harold Roitman: Yes that's correct. There are two letters set forth, one which has a PS on it and the other one does not. Page 34, and page 35, and page 36 indicate --
Thurgood Marshall: Where in here is that they are relying on the ten-day rule?
Harold Roitman: That is not spelled out in the letter.
Thurgood Marshall: Is it spelled out in any place?
Harold Roitman: It's spelled out -- well, the evidence with respect to that appears in connection of the examination of Mr. (Inaudible) at the first case. I think it's about page 20 or 21.
Thurgood Marshall: But you are relying on that man? When did you start relying on the ten-day provision?
Harold Roitman: Well it was -- in the decision of the trial examiner, the first decision in the case, he sets forth some of the Union's arguments which he deals with, and that is one of them that he mentions. The point that was brought out I think by my brother in his examination was the Board had considered this type of issue, the ten-day escape period in connection with automobile worker's Union in the case that went up to the Court of Appeals for the First Circuit, it's called the Paulding case which is referred to in the briefs. In that case, the automobile workers did have a provision on the constitution which allowed resignations only in that ten-day period. The Board held that it did not apply but the Court of Appeals reversed the Board in that case and it was never -- there was petition for certiorari, the decision of the Court of Appeals was accepted, that's at 320 Federal and it's referred to several cases in the several instances --
Thurgood Marshall: But am I correct that up through the case in New Hampshire and the later of charges files with NLRB that this 10-day period then become an issue until then?
Harold Roitman: No, that's right.
Thurgood Marshall: It wasn't an issue when they were fined, am I right?
Harold Roitman: No, nobody raised that question. The Union always took the position that it had a right to fine these individuals on the basis of their strike vote, on the basis of their participation in the vote for the fine and in the fact that their resignations were defective, all three of these things were part of the Union's position.
Thurgood Marshall: Even if they made it within the ten-day period, they still would have fined, am I right?
Harold Roitman: No, I don't think so. These resignations came out within any stretch of a ten-day period, but months and months after the strike had not only started, but after these 31 individuals had not only voted for the strike, but had actively participated in the strike. These employees all went on strike, these 31 employees all participated in the picketing. They all participated or most, all of them participated in the decision of the Union to secure group health insurance for the strikers, they participated in the Union benefits for strikers. They were actively and affirmatively supporting the strike for many months, and we say that all of these factors are part of the reliance item which entitles the Union to fine them for their subsequent strikebreaking because they broke their contract, the contract they would say affirmatively had worked to promote by engaging in the strikebreaking and I would suggest that --
William J. Brennan, Jr.: May I ask you, I have been looking in the appended record but can't locate a form of application for membership which includes that ten-day provision? Have I --
Harold Roitman: You will find it in the original application, petition for certiorari where the decision of the trial examiner is set forth. He sets it forth in his first opinion and I think it is also set forth in the record at page 34, Your Honor.
William J. Brennan, Jr.: Thank you.
Harold Roitman: This is -- the last paragraph there it says that the authorization shall remain in effect unless I revoke it within 10-days.
William J. Brennan, Jr.: Thank you, Yes.
Harold Roitman: Each individual signed that, as you notice right underneath the restitution, the matter is also referred to in the Trail Examiner Genesis' (ph) opinion and I think he sets forth a copy of the -- yes, check-off in the the membership application cards in his opinion.
Harry A. Blackmun: Mr. Roitman, is it your position that the obligation of the Union members continued for the duration of the strike regardless of how long the strike lasted?
Harold Roitman: Yes, it's -- I think that's the central position that we take. That is when the Union members vote to go out on strike, they know they are engaging in a serious economic confrontation that can last for an in-determinant period and they obligate themselves to see that enterprise through till its termination. It's is termination I might say, it might come either because the exercise of the economic forces on both of the parties gets them into a compromised position, or one of the other side yields sufficiently to arrive at an accommodation or as in the case here, the Union finally votes to abandon or discontinue a strike, that's wasn't in the record here, but ultimately that's what happened.
Lewis F. Powell, Jr.: Was there any meeting of the Union membership subsequent to the September 21st meeting 1968 when they voted to impose the fine?
Harold Roitman: Oh yes, there were constant meetings where the officers reported back to the membership on the status of negotiations and the situation once the Union was in where they voted to undertake items, for example like the insurance matter which I referred to a moment ago. That wasn't spelled out very carefully in the record, but I think there is, perhaps a brief reference to it in some of the letters of resignation. One or more of the members complained that he didn't like the way one of those meetings would run, but there were frequent meetings at which there was ample opportunity for these 31 employees to exercise their democratic right within the Union to persuade any of the others to the courts. And we say that that's the position that this Court left the parties in, in the Scofield case, namely that the Union and the National Labor Policy is one that favors the democratic operation of Union affairs, that the Union has these legislative powers with respect to collective bargaining, that when they democratically vote to undertake a strike, the only thing that remains open after that is the settlement of the strike or the democratic -- use of the democratic practice to change the position. In the Scofield quotation that's relied on by the Board, if you back up a few sentences, I think that's made clear by the Court that the Court points out that it's the right of an individual to exert his democratic influence or his influence on the body and had been -- have his minority position, if you will, change to a majority position by persuasion, and that position is the one that is in accord with the legislative policy under the act and is in effect the only way that the contract commitment can be changed by mutual agreement. We point that the Board itself in dealing with associations, for example, that are put together for the purpose of mutual collective bargaining, lays down the rule that you can only withdraw from such an association prior to the time that the association engages in collective bargaining, that a subsequent withdrawal must be by mutual consent rather than by an individual having an individual veto power. If you allow the Board's position of course, each individual has a right to veto the legislative examination of the majority, and you have not a democratic proposition but (Inaudible) within the Union which allows each member to be an individual breaker of the joint commitment, and there again, we pointed out situations, where in the past, the Court has held that an individual waives his right to engage in strikes when the Union votes to accept a contract against striking. There are various other situations that we have referred to in the brief, where for one reason or another, the individual member's right to either engage in a strike or not to engage in a strike is affected by the majority determination of the Union in accordance with the National Labor Policy.
Warren E. Burger: Mr. Come, do you have anything further?
Norton J. Come: I just wanted to point out as Mr. Justice Rehnquist noted that the Court of Appeals found on pages 5 (a) to 6 (a) of the petition, adopted a Trial Examiner's finding that there was no evidence that the employees knew of this practice or that they considered this limitation and their right to resign, that is with respect to this ten-day point that Mr. Roitman has been making.
William J. Brennan, Jr.: Well, suppose we were to say that if you've signed in it, you did not know about it, and it was effective, and then say is to whether or not they were members at the time they actually resigned?
Norton J. Come: Well, I think that there you would have an issue that would probably have to be remanded to the Board because as the Board found the facts here, this ten-day provision was not something first of all that had anything to do with resigning from the Union. It was a combination of membership and check-off clause. The Trail Examiner found that the ten-day provision related only to the check-off provision, not to the resignation from Union membership. He further found that there was no evidence in the record that showed that the employees were made aware that this was the way that you had to resign from the Union. The Court of Appeals sustained that finding. We submit that it is supported by a substantial evidence for the additional reason, as Justice Marshall pointed out that nowhere in the letters that were sent to the employees, as to -- has any mention made of the fact that the resignation was improper because it didn't comply with the ten-day rule. Thank you.
Warren E. Burger: Thank you gentleman. The case is submitted.


Earl Warren: Number 48, Herbert Heider, Administrator, Petitioner, versus Michigan Sugar Company. Mr. Pillon.
Gregory M. Pillon: Mr. Chief Justice, may it please the Court.
Earl Warren: That is the way you pronounce your name.
Gregory M. Pillon: Yes.
Earl Warren: Pillon.
Gregory M. Pillon: Yes. On December 21st, 1958, two small children, David Heider, age 8 and James Heider, age 12, went upon the defendant's property. At that time the defendant -- respondent, Michigan Sugar Company maintained several acres of ponds. These ponds were connected up by an overflow pipe. The temperature at the time was 12 degrees below zero and the -- around the overflow pipe chemicals and the action of the water create a foaming area that resemble snow. This froze and the rest of the pond was solid ice except around the overflow pipe where this area built up a foamy, snowy substance that itself was frozen and but was not solid underneath. These two boys and their little dog, a water spaniel, went upon the tenants property, became entrapped in this condition. This dangerous, distracted condition maintained by the respondent, Sugar Company, and they were drowned. An action was brought in the Circuit Court, Saginaw County to recover for their death. The jury in the case of David Heider, it turned a verdict in the amount of $125,000 and the judge in the companion case, James Heider because of different measure of damages returned a judgment $41,000. A case -- a motion for a new trial was filed by the respondent except for a certain reasons and grounds for appeal. The motion was denied. An appeal was taken to the Supreme Court of the state of Michigan. With all this procedure, so far there has been no complaint but then completely outside of the record to the Supreme Court of the State of Michigan, the respondent Michigan Sugar Company in its brief on appeal brought forth to the attention of the Supreme Court an endeavor to bring forth to the attention of the Supreme Court a statute known as Public Act 201 of the Public Acts of the State of Michigan in the year 1953 claiming that this statute affected the case.
Speaker: Is that the real reason for that, or there is the (Inaudible)?
Gregory M. Pillon: That was the denial of the equal protection of law, that's in the --
Speaker: But based it on (Inaudible) of that statute (Voice Overlap) --
Gregory M. Pillon: That's correct.
Speaker: (Inaudible)
Gregory M. Pillon: That's correct.
Speaker: Do you think the reliance of that statute to be a (Inaudible) --
Gregory M. Pillon: Well, the statute itself -- our contention is first of all that I've never been -- had an opportunity or my day in court in relation to that statute.
Speaker: Does that mean to say (Inaudible) --
Gregory M. Pillon: That's right. And second of -- the second major point is that the statute as construed by the Supreme Court denies equal protection because it's an invidious discrimination against a child, against the children in this case.
Speaker: Both of the --
Gregory M. Pillon: Both those questions --
Speaker: (Inaudible)
Gregory M. Pillon: Well this is the -- this will have to -- this is a question that I'd like to bring to the attention of the Court. Now --
Speaker: (Inaudible)
Gregory M. Pillon: What happened isn't -- when it was raised the objection that was made to the statute was that -- it's not an orderly procedure. You're completely outside the record. You can't raise it. It's not proper to raise it at this time. That was the basic premise that we went on because the only error -- the only basis upon which counsel claimed not prior raising the statute was that he just failed to find the statute before.
Potter Stewart: Well, isn't the -- but the -- do you have to plead the existence of a local statute in your pleadings, in your defense?
Gregory M. Pillon: Well --
Potter Stewart: In Michigan?
Gregory M. Pillon: Its --
Potter Stewart: Its part of the law, isn't it?
Gregory M. Pillon: Sure, it should pleaded --
Potter Stewart: Just as the -- just like --
Gregory M. Pillon: Right.
Potter Stewart: Just like discovering a new decision --
Gregory M. Pillon: That's right.
Potter Stewart: -- in your research, isn't it?
Gregory M. Pillon: Well, the statute that was -- should've been met in the trial court with statute.
Potter Stewart: But it wasn't because of the --
Gregory M. Pillon: It wasn't and we brought --
Potter Stewart: And you answered in inadvertence of the counsel.
Gregory M. Pillon: That's right. And there was --
Potter Stewart: But --
Gregory M. Pillon: -- and no prior Supreme Court case in Michigan that ever granted the --that ever considered a statute raised at the 11th hour outside of an orderly procedure in the absence of some special or unusual circumstances.
Potter Stewart: Well what if it -- what if instead of a statute this has been a decision of the Michigan Supreme Court in 1953 and that counsel for the defense because of their negligence or inadvertence haven't discovered it until after the end of the trial and during the preparation of their case in appeal, would there be anything wrong with your case citing it?
Gregory M. Pillon: There's nothing wrong with citing it.
Potter Stewart: I mean, and let's the --
Gregory M. Pillon: The error --
Potter Stewart: -- if it's an imaginary court decision of mine said exactly what this statute said that as in the law of Michigan, if you're on somebody else's land for the purpose of hunting or fishing or trapping then the owner is liable to you only for -- he's not liable for two year for simple negligence.
Gregory M. Pillon: No. The answer is that I should have an opportunity to have my day in court to prove in fact for example that little David, age 8, he's physically incapable of setting a trap, owned no traps and never did trap. I should -- I certainly should've had the right to be confronted with it at the trial level.
Byron R. White: Well then (Voice Overlap) -- why didn't you have that right already?
Gregory M. Pillon: It was never -- the statute was never brought to the attention of the trial court by the defendant.
Byron R. White: Oh, I know but it was your -- but the plaintiff is suppose to prove their case --
Gregory M. Pillon: Oh --
Byron R. White: -- and if at that -- at the time your case had closed the defense had gotten up and move to dismiss on the grounds that you hadn't made out yet -- you hadn't made out a case, you had failed to prove the consideration. Namely, the consideration required for the statute.
Gregory M. Pillon: Well --
Byron R. White: I were to think -- I would have -- if the statute, if that were brought, I think he'd been out of court.
Gregory M. Pillon: Well that's the point, is this statute applicable or not? I never had --
William O. Douglas: How many judges at this Supreme Court in Michigan remanded for a dismissal?
Gregory M. Pillon: Well two -- this --
William O. Douglas: This --
Gregory M. Pillon: There are two judges --
William O. Douglas: The judgment just says, remanded for proceedings consistent with the opinion.
Gregory M. Pillon: Well --
William O. Douglas: And I haven't been able to add up all the --
Gregory M. Pillon: I haven't been able to quite understand what happened yet.
William O. Douglas: Well at least, (Voice Overlap) --
Gregory M. Pillon: There are eight judges and two of them said, "Send it back and dismiss the case --
Speaker: No cause of --
Gregory M. Pillon: -- because it failed to prove it, no cause of action."
Speaker: No cause of action.
Gregory M. Pillon: Three of the judges said, "Go back and dismiss the case and the complaint because you failed to state a cause of action." Three other judges said that under that -- I did state a cause of action.
William O. Douglas: Well you -- under this judgment as I see it, you're not precluded for getting a new trial under this --
Gregory M. Pillon: Oh, yes.
William O. Douglas: -- under this new statute, are you.
Gregory M. Pillon: Oh, I am precluded.
Speaker: Five to three.
Gregory M. Pillon: I am precluded because we count heads, there's five -- against five, said I should lose, and three said I should win.
William O. Douglas: But you can't amend an --
Gregory M. Pillon: No.
Speaker: The statute of limitations is right.
Gregory M. Pillon: The statute of limitations is right and my point is this is that --
William O. Douglas: But you can't amend because you -- you can amend, you can get a new trial.
Gregory M. Pillon: Oh, I can amend, I can amend. The problem is that basic rate fundamentally a person is entitled to a day in court. And this is a statute that should have been raised by the defense as a -- in a proper manner in a trial court so that I have an opportunity to be met with. So I could -- if you look at the actual facts like David never owned traps, he couldn't physically set a trap, he'd never come within the statute. And if you look at the fact that there was no eye witnesses to this case, there was -- I mean no eye witnesses to the boys being on the land at the time of their death and their drowning. This present fact questions under the statute. What was James doing on the land at that time? But the Supreme Court by its very actions has taken this statute and apply it retroactively to whatever facts were shown or to the pleadings and have barred me without ever giving us an opportunity to have our day in court in relation to the statute. Now --
Abe Fortas: Well, you allege didn't you that James Heider, a minor son of plaintiff, Herbert Heider, that they set out to muskrat trap (Inaudible) on this day.
Gregory M. Pillon: I didn't say nowhere in the pleadings or in the record. Is there any statement that at the time of the death the boys were actually trapping upon the land of the Michigan Sugar Company.
Abe Fortas: When this happened, on the 21st day of December?
Gregory M. Pillon: 21st day of December.
Abe Fortas: Well, look what this paragraph says, paragraph 27 on your declaration on page 4, they set out muskrat trapping.
Gregory M. Pillon: That's right. But as I -- my answer to you Mr. Justice Fortas is this. Is that first of all, if I had been met with the statute I could've distinguished the -- at least what David was doing as compared to what James was doing out of -- there'd been constructive effort made but in addition to that you're reading what -- in interpreting the -- my declaration, three of the judges said that I state that they were trapping on a land, three of the judges say I don't state that I was trapping on the land.
Abe Fortas: You said since on -- its James who is 12 years old.
Gregory M. Pillon: Yes.
Abe Fortas: With his brother David who was 8 years old?
Gregory M. Pillon: Right.
Abe Fortas: And a dog, the declaration didn't say how old he was, set out muskrat trapping.
Gregory M. Pillon: But on the other hand to come under the statute there had to be muskrat trapping on that particular land at that particular time. That'd be the first point that I'd like to make. Now, it seems to me what's really happened here is that when you're prepared to have a trial in a court it's done in a -- suppose to be done in an orderly fashion. I presented pleadings, issues and we set forth the basis and had a trial. The defendant, the respondent, Michigan Sugar Company put in a general denial, pleaded contributory negligence to the minors and the parents that after warning was given not to use the premises and that they had lack of knowledge that minors were upon the premises. We tried the case upon those issues and those -- that basis and then what happen is the defendant is permitted to raise a statute out of orderly proceedings and what does he do? He get -- he binds the petitioner by his actions to his pleadings and to the record that he made in the trial court. But the defendant is permitted or the respondent, Michigan Sugar Company was permitted by the action of the Michigan Supreme Court to revoke every bit of pleadings, every word that he ever uttered said before.
Speaker: Now this -- isn't it -- let's put this question to you to understand what you are saying, (Inaudible). Having filed (Inaudible) the Michigan Supreme Court said, how is it not a matter of defense. Once it appeared that these people were trap -- trapping, there was no jurisdiction in the lower court to entertain such an action based on ordinary negligence.
Gregory M. Pillon: Well, three of them said that. But two of them said --
Speaker: What about the other two?
Gregory M. Pillon: The other said that I failed to prove facts to take me outside the statute and therefore I entered a judgment of no cause of action. In other words, I never was met with the statute on the lower court.
Speaker: (Inaudible) is there anything that this is not a matter of defense, it's a matter of the state law, it's a matter of -- you're not having a showing a cause of action of which under either view of the two or the three judges, if you can go to the trial court, dismiss the case.
Gregory M. Pillon: Well --
Potter Stewart: Well, that raised no cause of action --
Gregory M. Pillon: Well that's --
Potter Stewart: And I remember from my experience in the Court of Appeals with the Sixth Circuit is rather a peculiarly Michigan phrase and it's used often when there is just insufficient evidence and so on, isn't it?
Gregory M. Pillon: Right. In this phraseology, actually the only thing that that statute changes is the degree of proof, it doesn't eliminate a cause of action at all. Now, if I may say a word about equal protection here.
William J. Brennan, Jr.: May I ask you before you do that.
Gregory M. Pillon: Sure.
William J. Brennan, Jr.: I take it even if the sugar company hadn't come upon the statute, if one of the judges had, you'd still be here, you would have the same result, wouldn't you?
Gregory M. Pillon: If I've been met with the statute in the lower court, I wouldn't --
William J. Brennan, Jr.: Oh no, no, --
Gregory M. Pillon: Well, suppose --
William J. Brennan, Jr.: Suppose you and your adversary overlooked it but I remember the Supreme Court had come upon it.
Gregory M. Pillon: Alright --
William J. Brennan, Jr.: Let's suppose, it'd be the same result?
Gregory M. Pillon: I'd still be here because the Supreme Court by its very action would have been depriving me of my day in court because this is what I'm complaining about.
William J. Brennan, Jr.: That's what I was thinking. So it's not so much that the defendant for the first time raised this in the Supreme Court as it is that the Supreme Court relied on it all.
Gregory M. Pillon: Relied on it all and then so can bound me by a record and bound me by a pleading relieving the defendant from or the Michigan Sugar Company completely from their -- every word they ever uttered and then to my complete surprise dismiss the case. I mean, if they sent it back for new trial I could understand. I'd have a chance to show that David wasn't trapping and that if James was, that's a fact question because nobody saw them at the time they died. And -- but now let's go on to this question of the equal protection, the -- under the -- many times I just said your passed statutes, they don't really change laws. An adult trespasser in the State of Michigan before this statute was passed could recover against a landowner only for gross negligence or willful or wanton misconduct. On the other hand under the common law of Michigan as developed by the (Inaudible) case in which at least 40 states in the union have adopted the theory of the protection of the minor. We have in the common law of Michigan that provides that if a child because of his immature years goes upon the land of another that there can be a recovery for ordinary negligence upon a showing that the landowner has knowledge or should know that the children are there and he maintains a dangerous condition. And this doctrine was enunciated even by this Court under the attractive nuisance doctrine beginning with a turntable case. Now, the effect of the Supreme Court's interpretation by applying this statute to these two immature children is saying that as to a child the only effect the statute has is to a child. The only effect it has is to the immature child that it discriminates against the immature child in relation to the other immature child who was upon the property. In other words if in fact one boy had a slingshot to go hunting with or a fishing pole to go fishing with and he took a friend along with him and they both drowned under identical circumstances at the same place at the same time. The little boy with the fishing pole cannot get a recovery as the court applied this statute except by proving gross negligence or willful or wanton misconduct. But the other boy who didn't have the fishing pole with him, he can recover for ordinary negligence and this is a peculiar thing by -- in tradition interpretation --
Byron R. White: I know, but even they were a pair of adults under the statute, the same result would follow?
William J. Brennan, Jr.: If there's a pair of adults then no adult can recover except for gross negligence or willful or wanton misconduct. No adult can recover -- a trespassing adult can't recover for ordinary negligence but every child in the State of Michigan can recover, a trespassing child can recover for ordinary negligence except those few insignificant children who may hunt, fish or trap and their -- believe me, if they go out with a slingshot to get a bird or they've got a home made fishing pole which every boy has to classify them in the same category as the adult hunter, fisher or trapper is that it seems to me invidious and especially so when we have a rule protecting little children so that any other child of the same 8 year old -- any other 8 year old child can recover for ordinary negligence.
Speaker: Did you present this argument in the Supreme Court?
Gregory M. Pillon: Oh yes, it's in the briefs.
Speaker: Then what -- I mean to the -- your State Supreme Court (Voice Overlap) --
Gregory M. Pillon: Yes, in the petition for rehearing.
Speaker: (Inaudible)
Gregory M. Pillon: Yes, yes. And the reason is this is that the statute had never been -- let me say a few words here about the question of the timely raising of the federal questions because somehow opposing counsel has interjected this in here saying that the federal questions weren't timely raised and the answer to that problem is this is a -- it seem to me beyond reasonable to anticipate that a Supreme Court would act in an unconstitutional manner. In Dombrowski versus Pfister in 380 U.S. 479, you laid down the doctrine that -- it's generally assumed that state courts and prosecutors will act in a constitutional manner. Now, the problem is that in -- it would seem futile to me to say to a court before it renders a decision, don't do it in an unconstitutional manner. Until there's an actual constitutional violation I can't raise the question. This statute had never been interpreted before. It was completely out -- raised outside of a record and has a very serious question, even the respondent admits at his brief on page 24, that's a very serious question whether the court was even going to entertain the statute. Then when the court accepts the statute completely out of procedural order then in -- applies it in an unconstitutional manner only then can I raise the federal questions and I think that the case of Saunders versus Shaw is a case that's directly in point on this issue. It covers both the issues, timely raising the federal question in an action of the Supreme Court denying you a day in court --
Byron R. White: I understand --
Gregory M. Pillon: And --
Byron R. White: And that your opponent raised it in his brief in the Supreme Court.
Gregory M. Pillon: He never raised it in -- he raised it in his brief in the Supreme Court.
Byron R. White: And you had a chance to respond to that in the Supreme Court.
Gregory M. Pillon: Which I did. And no -- I beg you pardon, I'm confused from -- do you mean the Supreme Court of Michigan or this Supreme Court?
Byron R. White: Supreme Court of Michigan.
Gregory M. Pillon: Alright, now the respondent what?
Byron R. White: The respondent raised the statute in the Supreme Court of Michigan.
Gregory M. Pillon: I don't have --
Byron R. White: In his brief there, did he?
Gregory M. Pillon: He put in his brief but I don't say -- I don't believe he raised it in the Supreme Court. It was completely out of an orderly procedure.
Byron R. White: Well, I know but if he put it in his brief anyway, then you'd a chance to respond to that brief?
Gregory M. Pillon: Yes.
Byron R. White: And you -- and your argument was to the Supreme Court that the statute should be unavailable to him at this point since he had never raised it in the lower court?
Gregory M. Pillon: That was one thing.
Byron R. White: And so -- and you could've gone on and said further more it would be unconstitutional for the Supreme Court to rely on that here.
Gregory M. Pillon: Well, if the Supreme Court was going to rely on it and they had sent -- and they'd reverse to send me back for a new trial, there wouldn't be a constitutional infringement. I've never expected them to act in an unconstitutional manner. That's -- I couldn't ask him not to act in an unconstitutional manner.
Byron R. White: I know but he asked them to dismiss the case. Here, the respondent asked them to dismiss. He just didn't ask for a new trial.
Gregory M. Pillon: He asked him to reverse the case with or without a new trial. The last thing I'd expect them to do is reverse the case without a new trial where you never had an opportunity to have your day in court in relation to the trial -- in relation to --
Hugo L. Black: Why didn't you do that?
Gregory M. Pillon: Oh, I didn't have to. Well, first of all the object of a trial is to give to each side a fair orderly proceeding when if this statute had been raised in the lower court by the respondent.
Hugo L. Black: Which they didn't raise?
Gregory M. Pillon: Which they didn't raise then at that time I could have amended my pleadings if necessary or if I thought it was necessary. I could have -- in a trial of the case shown that little David, age 8, was physically incapable of trapping and he never trapped and he doesn't even come within the statute. As far as James is concern while he own traps and he was on the land at the time of his death there were no eye witnesses so it's a fact question whether in fact at that time he was trapping. But I'd never had this opportunity, it's been -- the doors been closed down.
Hugo L. Black: Well, were – you'd view it to think – to know that in fact it could be used in the upper court?
Gregory M. Pillon: The -- I say that the statute -- it's a peculiarly worded statute but it really only changes the degree of proof, it doesn't eliminate a cause of action. It really changes the degree of proof and I say it's a matter of defense that it should have been asserted so I wouldn't be taken by surprise. He could've waited until a trial was all over then try to put a statute on. Say look instead of done something different. The question is, it's to -- that's the object of raising him so you have an opportunity to have an orderly trial. That's why he should have raised it and to show an affirmative -- it's an affirmative defense. I'd like to reserve my -- the rest of my time.
Earl Warren: Mr. Plotkin.
Harry M. Plotkin: Mr. Chief Justice, may it please the Court. The usher of the case here presents two problems. One, did the petitioner raise the federal question that he is urging before Your Honors now at -- in the appropriate time? Secondly, if he did not, is there any merit to the points that he does raise? I should point out to the court that we are urging that in our brief that he did not raise the federal questions in the appropriate time. I should point out that in the opposition for petition for certiorari where we should have raised this point, our point was not raised. We were not counsel at that stage. When we came in we thought that this was a jurisdictional problem and we do raise it at this late stage of the game. We do think it's appropriate for the court to consider this time on behalf of the respondent we apologize for not raising it to you at the time when a petition for certiorari was before you. The facts are very simple. At the trial the case was tried on the assumption that this was the case of ordinary negligence. When judgment was entered for the plaintiff and it was convened for the court, I'll refer to the parties, this plaintiff and the defendant because they then interchange our position when they'd come to the Michigan Supreme Court. But when judgment was -- for the plaintiff the defendant appealed to the Michigan Supreme Court. In the Michigan Supreme Court for the first time it called attention to Act 201. Act 201 on the face of it deprives the court below of jurisdiction that provides that there's no cause of action shall arise when people are upon the lands of another for the purpose of hunting, fishing or trapping unless there's either compensation paid or unless the occupier of the land is guilty of gross negligence or wanton and willful misconduct. In the brief before the Michigan Supreme Court the question was specifically raised and we have incorporated as an Appendix A to our brief in this Court the portion of our brief raising this point in the portion of the plaintiff's brief and required thereto. We specifically raised the question, whether the Court of Appeal -- whether the Supreme Court could consider Act 201 as dispositive even though it had not been raised in the court below? We raises the question, we brief to point -- we specifically pointed out that under the cases that we cited that while normally it look -- the -- an appellate court would not consider a point for the first time when raised there when it had not been raised below. That it was a matter -- that the court could consider and that if it were a case like the instant one where there was a statute which removed the cause of action as one that court should consider. More or less we point that moreover we pointed out that as we interpreted the statute it was not a matter of defense for the defendant to raise but was a matter of the cause of action of the plaintiff and therefore it was something that the plaintiff should have addressed himself to. The defendant --
Speaker: This is in (Inaudible)
Harry M. Plotkin: The plaintiff then filed its reply brief. We filed the first brief. In his reply brief he addressed himself specifically to the points that we had raised. We had set forth a number of state authorities to the point that the state as a matter of state law can't -- the state Supreme Court can't as a matter of state law consider the matter. Plaintiff disagreed. He cited a number of state cases to the fact of the Michigan Supreme Court could not or should not consider the matter. He disputed our contention that the statute was a matter of -- for the plaintiff's responsibility, he said it was a matter for the defendants responsibility to plea. The matter was at issue. Neither one of us should raise any federal question up to that point which -- that as a matter of state law, Michigan can't consider it. He said as a matter of state law, Michigan cannot consider it. The Michigan Supreme Court then proceeded by five to three vote to rule that the statute could be considered that it was a matter that was a responsibility of the plaintiff and that on that basis the plaintiff had not made out a cause of action and that the matter should be reversed without a new trial. I should point out that --
Hugo L. Black: It hadn't been raised in the lower court?
Harry M. Plotkin: Pardon me?
Hugo L. Black: If it had been raised in the lower court could the other side have proceeded there enough to get into court?
Harry M. Plotkin: Well, on the basis of the facts as developed by the plaintiff, I don't think so because all of the evidence that we refer to our brief is evidence that he brought out on direct examination. Facts of facts, you don't -- it wasn't a question that we have surprised them by bringing up something that affected this -- there is De Facto were on opposition. All of the facts were brought out. He alleges in his complaint that the children were out trapping. In his opening statement to the court he said the children were out trapping. In his opening statement to the jury he made the same thing. As a matter of fact if you'll look at page 20 -- 30 of our brief --
Earl Warren: What page?
Harry M. Plotkin: Page 30 of our brief, the blue colored brief. It's significant that even after we had raised this point of our Act 201 and its applicability. And defendant -- the plaintiff then filed his reply brief. You will notice we quote there from, he himself in stating the facts says, “On December 21, 1958, James Heider, age 12 and David Heider, age 8 1/2 and their cocker spaniel drowned while trapping for muskrats and minks on the defendants property. Everything that was before the court, the facts as he had developed, the admissions he had made, the statements he made. The statement he had made to the Supreme Court even after he saw our contention was that --
Byron R. White: Excuse me Mr. Plotkin --
Harry M. Plotkin: Yes.
Byron R. White: -- was there evidence of in the trial record that these children were in fact hunting, fishing, or whatever it is that makes them pleasant?
Harry M. Plotkin: Yes. We have collected in our brief at pages 28 --
Byron R. White: 28?
Harry M. Plotkin: Yes, and 29, a summary of the evidence as developed by the plaintiff which pretty clearly indicated that they were out for the purpose of trapping.
Abe Fortas: Well Mr. plotkin, the other question under the statute is whether these deaths were cause by the gross negligence or willful and wanton misconduct in the Michigan Sugar Company in the way that it kept this place.
Harry M. Plotkin: Yes.
Abe Fortas: So that presumably or although I agree, the declaration and the statement of counsel for the plaintiffs cited the boys were there muskrat trapping but if this matter had been an issue, there were those who have been an issue, the question of whether the deaths were caused by the gross negligence or of the Michigan Sugar Company --
Harry M. Plotkin: The declaration --
Abe Fortas: -- so that the issues aren't --
Abe Fortas: Which is settled?
Harry M. Plotkin: No. The declaration specifically stated -- in the plaintiff's own declaration that there was a lack of ordinary care on the part of the defendant. And under the cases that we have cited under -- other Michigan Supreme Court cases when the plaintiff states his declaration in such a manner he is not entitled to go to the jury on the question of whether in addition there were gross negligence.
Abe Fortas: Well, it depends on who has the burden of pleading and going forward under this particular statute.
Harry M. Plotkin: Yes.
Abe Fortas: He is proceeding in the common law, some other statute that requires only negligence and the question is whether he had to make it to this statute as a submission -- proceeding in this cause of action.
Harry M. Plotkin: The Michigan Supreme Court in interpreting this statute said that the burden was on the plaintiff, at least five judges said so. I' m not sure the three other judges disagreed. I think the other three judges thought that the statute was not applicable and therefore never reached this point. But five judges specifically indicated that was his burden that he failed to do it on the question as to whether he could or could not amend, he has never asked the -- even the Michigan Supreme Court believe to amend either in his original argument or in his application for rehearing. He'd never ask and now what if they would have granted leave to amend the note, I don't know. The Supreme Court does have authorities to permit him to do it but even to this day that request was never made to the Michigan Supreme Court. When the Michigan --
Abe Fortas: Why would he ask them to amend? I don't think he had some to do with the reverse.
Harry M. Plotkin: He -- him -- yes. I think --
Hugo L. Black: And then amend in the court below.
Harry M. Plotkin: He could either asked them for -- to give permission to amend in the court below or to reverse when the instructions permit him to amend. The question was never raised. The question was never raised by the plaintiff.
Hugo L. Black: But he did raise the question (Inaudible) --
Harry M. Plotkin: I'm sorry.
Hugo L. Black: Or between (Inaudible) --
Harry M. Plotkin: He did what?
Hugo L. Black: He did present the quest -- the same question in the Supreme Court of Michigan he is presenting to us now, doesn't he?
Harry M. Plotkin: Only on the application -- the petition for rehearing, he'd --
Hugo L. Black: Yes, --
Harry M. Plotkin: Yes.
Hugo L. Black: -- after they had ruled.
Harry M. Plotkin: After they have ruled on this point, but even then he didn't ask for leave to amend or even then he didn't even ask for a new trial. He then --
Hugo L. Black: I don't understand why he should ask them for leave to amend?
Harry M. Plotkin: Well, or to remand to the court below with permission to leave to amend. The fact remains is that the --
Hugo L. Black: But he didn't -- he asked for it to be remanded back so he could try it over, didn't he?
Harry M. Plotkin: No, he asked for an affirmance of the judgment.
Hugo L. Black: (Inaudible)
Harry M. Plotkin: He never counted -- he never count -- we asked for the court to reverse either with or without a new trial and the Supreme Court of Michigan reversed without a new trial because under --
Hugo L. Black: So on his motion for rehearing, what did he ask? I don't --
Harry M. Plotkin: Well, another -- the part attached thereto, the part that's reprinted in the record does not show that he ask for anything. What he contended, he attached affidavits which show that he -- that the younger of the two Heider boys was not in fact capable of trapping and that he wanted the opportunity to show that.
Hugo L. Black: Wanted the others (Inaudible) to show that?
Harry M. Plotkin: Yes, yes.
Hugo L. Black: So he didn't raise the --
Harry M. Plotkin: At the application for rehearing in the state just to one of the boys is not to the other. The Michigan Supreme Court refused to -- disposed of that without opinion on the five-to-two vote and the matter then came here.
William J. Brennan, Jr.: That's right.
Harry M. Plotkin: Now, here he raises both substantive due process and procedural due process. Substantive due process he says that Act 201 is unconstitutional. That point was never raised before the Michigan Supreme Court until the application for rehearing. He was clearly on notice when we filed our original brief that we are going to rely on Act 201. We specifically called the courts attention to it and at that point when he argued to the court he never gave him any indications that Act 201 was substantively unconstitutional.
Hugo L. Black: Was that his equal protection argument?
Harry M. Plotkin: That's his equal protection argument, yes. On that he waived -- clearly he was on notice and if he had a substantive constitutional point he should've raised at that point. He raised it for the first time on petition for a rehearing and we contend that that's too late. He also on the petition for rehearing raised for the first time the question that the Michigan Supreme Court that somehow rather acted unconstitutionally by relying on Act 201 when it had not been raised in the trial court. All contentions on that point up to that stage of the proceeding had been as a matter of state law, there's been no federal constitutional law point raised at all. Both parties had addressed themselves to that contention as a matter of state law. The Michigan Supreme Court disposed of it as a matter of state law and then the matter was -- first raised on an application for rehearing to the Michigan Supreme Court which disposed of it without writing an opinion. Under the case that we have cited in our brief which says, it is too late to raise a constitutional law, a federal constitutional law point at the stage of petition for rehearing. Now, we recognize in the cases we cite that there are two exceptions to that principle. One is where the federal constitutional point is raised for the first time on petition for a rehearing and the state court does in fact in disposing that petition for rehearing consider the federal constitutional points. That did not happen here. The cases are very clear that where the State Supreme Court refuses to write an opinion but just disposes a petition for rehearing without an opinion that the fact that the petitioner raises at that stage is too late. There's a second line of a case that we are -- where it create an exception, there are the case of Saunders v. Shaw and the Brinkerhoff case that we cite. These are the cases where there are supervening circumstances that petition that could not have reasonably anticipated which result in petition or not raising the constitutional point until the petition for rehearing stage. And the Brinkerhoff case illustrates that point very well. It's almost a case of entrapment or almost of sandbagging to use a colloquial expression. In that case, an attack had been made on the constitutionality of attacks. The -- when the taxpayer lost, he took the matter of Supreme Court. In the Supreme Court of the state, the Supreme Court of the State said that the taxpayer did not exhaust his administrative remedies because he had not applied to an administrative tribunal for the purpose of asking relief on this very point. Now, it so happen that prior to the Brinkerhoff in the lower court, the decisions of that same Supreme Court have held that the administrative remedies were not in fact available to a taxpayer. The Supreme Court of the State in Brinkerhoff overruled its earlier opinion and said, "We were wrong." The administrative proceeding is in fact available to a taxpayer and you are out of court because you didn't resort to that administrative remedy. Well, clearly this was a denial of due process. There, a taxpayer didn't follow an administrative proceeding that was not available to him. As a matter of fact in Brinkerhoff, the court itself -- this Court made clear that had there not been a prior opinion of the state courts specifically holding that the administrative remedy was not available, in other words had the question been undecided up to that point, then the taxpayer would run the risk of making up his mind of interpreting the state law as to whether the administrative remedy was or was not in fact available to him. And if he guessed wrong on that, the Supreme Court of the State could throw him out for failure to exhaust administrative remedy. What the -- what this Court said in Brinkerhoff was that would the -- that where the Lower Supreme Court, whether the Supreme Court of the State have previously -- explicitly held that the remedy was not available it could not and the very opinion reversing that earlier opinion come back and say, "But we were wrong before. We reversed it. The administrative remedy is in fact available and we're throwing you out for not addressing yourself to it." It therefore appears to be very clear to us that neither at the exception is available and that this constitutional problem are therefore not properly before the court. On the merits and the argument on the merits really blend very much with the procedural arguments except on sections with due process. Assuming that he is entitled to raise for the first time the substantive due process question here, it is our contention that there's no merit whatsoever. It seems to us that this is a very reasonable classification for the state to him -- to engage in. The state can say that people who are on the lands of the other for the purpose of hunting, fishing and trapping are a different class of people and that therefore the law can be different with respect to them than it is to people who are there for purposes, say, of swimming.
Abe Fortas: But why is that? What's the difference?
Harry M. Plotkin: Well --
Abe Fortas: Why shouldn't there be one rule of negligence about people who are going to the land of another for swimming and another one if they go to the land of another for practice?
Harry M. Plotkin: Yes. We have set forth in our brief a collection of statutes in some 30 states which have attempted to address themselves to this very problem. There's no legislative history in Michigan which explains what the Michigan Supreme Court have in mind. There are in other cases where the same statute has been enacted, legislative declarations to the effect that one of the purposes of such a statute is to encourage landowners to permit their private lands to be utilized for hunting, fishing and trapping. We cite a law review article in -- it was contrary being to the effect that apparently --
Abe Fortas: That's a curious way to do it, isn't it?
Harry M. Plotkin: Well, it may very well be and maybe if we were legislators, we would not do it this way.
Abe Fortas: No, I'm not asking that when I said some other curios things that assume that the legislators did it for that purpose?
Harry M. Plotkin: Well, seven legislators have specifically said they did it for that purpose in enacting a statute similar to the --
Abe Fortas: Was it the same thing here with respect to this legislation?
Harry M. Plotkin: No, there is no legislative history in Michigan itself on that point. But we think where 30 states have adopted a legislation of this type and where seven of those legislators have indicated that this is the purpose. We think that this is a valid legislative purpose and is not such invidious discrimination that you ought to strike it down. Just as a matter of digression, it's interesting to know that the plaintiff says that this is a change to the common law of Michigan. As a matter of fact Michigan until 1957 was one of the stricter of the common law states which held that the rule of trespasses was applicable even to minors as well as to adults. It since has changed probably not as completely some of the other states but it has changed somewhat. But it's interesting that in 1953 when this statute was enacted the common law was still in effect even for minors, that even minors under the Michigan common law were not entitled to protection when trespassing on the land of another unless except for -- as against gross negligence. So there weren't even change in the common law. But in any event under the cases that this Court we have cited, this Court has held that the state -- that the states in the railroad cases can enact statutes that when even they're applicable to children of five or seven preclude them from recovering for -- being injured when on the land of a railroad. And those statutes have been upheld by this Court. On a procedural point again we don't -- we think normally, it wasn't timely raised but that there is no real point involved. Two, it would've been better procedure had we -- had the statute been called to the trial court's attention. I don't say that the fault was any more ours than that of the plaintiff. As lawyers I think both sets of lawyers owed it to the court to know about the statute. But in any event --
Hugo L. Black: To know about what?
Harry M. Plotkin: To know about the existence of the statute. It had been -- the statute had been enacted before the accidents occurred and before this cause of action was filed. It was the responsibility of both sets of lawyers to know it. The fact remains that it -- at an appropriate stage of the proceeding it was called to the attention of the Michigan Supreme Court. The points were adequately briefed there by both sides. The very contentions that petitioner ultimately raised were urged to the Michigan Supreme Court. They we re fully considered by the Michigan Supreme --
Abe Fortas: Why do you say that the lawyer for any respondent had been -- know about the existence of the statute, is there anything in the record to that effect?
Harry M. Plotkin: Yes, in his -- for the respondent, you mean, for Michigan Sugar?
Abe Fortas: Yes.
Harry M. Plotkin: Yes. In his opening brief to the Michigan Supreme Court, he called the attention to it and specifically have a statement in it to the effect that he apologized to the court for the fact that he had just discovered the existence of the statute in preparing his brief to the Michigan Supreme Court.
William J. Brennan, Jr.: Well, actually he didn't -- still, he -- where he found it, referenced to it in some law review article (Voice Overlap) --
Harry M. Plotkin: That's right, yes, and entered it so that there's -- the explicit statement of counsel to the effect that he found it there for the first time.
Hugo L. Black: What would you had -- still call that to the attention of the trial judge, would this trial had been a different one?
Harry M. Plotkin: I would think not. I would think that had the counsel for the defendant at the close of the plaintiff's case called the attention of the court to Act 201 and move for a directed verdict on the basis of Act 201 --
Hugo L. Black: But suppose he hadn't waived it -- into this case. Well, he finally cut it off -- suppose if (Inaudible) known about it and he had known that this was (Inaudible), you wouldn't have known about it and the other side have known about it, wouldn't this has been an entirely different trial?
Harry M. Plotkin: I think had they known about at that stage the court would've dismissed the complaint and then there would've been a question whether they could in fact plead a good cause of action on the facts that they have --
Byron R. White: Well, under the statute --
Harry M. Plotkin: -- under the statute.
Byron R. White: -- at least there would've been a request for instruction to the jury to find gross negligence, wouldn't it?
Harry M. Plotkin: No, when the complaint is not -- and unless they amended the complaint under Michigan practice, under the case we have cited, you do not instruct the jury on gross negligence when the complaint itself simply refer (Voice Overlap) --
Byron R. White: Well, there would've been an amendment?
Harry M. Plotkin: Pardon?
Byron R. White: You say the trial -- you say it's -- it has then called the attention of the trial judge and both counsel had then known about it, don't you think there had -- there would've been amendment to the complaint or some attempt to rely on gross negligence?
Harry M. Plotkin: It -- with -- they've -- whether they would've attempted to amend or not, I don't know. It's significant that two of the five judges who reversed that that as a matter of law there wasn't even enough evidence to show ordinary negligence. So whether --
Hugo L. Black: Well, I thought --
Harry M. Plotkin: Pardon?
Hugo L. Black: I thought it was -- in this for example, neither one of them knew about that statute. It was a very material statute and certainly -- and could result in concluding the case for the plaintiff. Suppose the plaintiff had known of that and you have known but -- into the fact and all -- just in evidence, they were to amend their complaint and sued on the other basis?
Harry M. Plotkin: Well, I think it's extremely likely that they would have amended, yes.
Hugo L. Black: Of course they would.
Harry M. Plotkin: Yes.
Hugo L. Black: And what you have is the case was decided without him -- knowledge of it, nobody -- you didn't say anything about it. You say you didn't know it at that time. But you didn't say anything about it and you got up to the court and then you raised it.
Harry M. Plotkin: Yes. But under a statute --
Hugo L. Black: And there -- at the trial -- in the trial on the issue that they could have tried and them having -- been known at the beginning.
Harry M. Plotkin: They have been -- if they have been so deprived, they've been deprived by their own conduct in overlooking the statute. Now, maybe a State Supreme Court in a different state would --
Hugo L. Black: But it seems to be rather natural for them to do it and you only cited in the law review articles.
Harry M. Plotkin: Well, I don't know why Michigan -- why two sets of Michigan lawyers overlooked the statute that had been on the book for several years. I mean --
Abe Fortas: Do you personally were not (Voice Overlap) --
Harry M. Plotkin: No, no.
Abe Fortas: I think you have made that clear.
Harry M. Plotkin: We have not become counsel on this case until the petitions -- until the brief on the merits were filed. So whether we would've done better, that's easy for us to say we would've but we were not counsel in the case and clearly both sets of counsel should've known about it and it seems to me that a statute which is the responsibility which the Michigan Supreme Court has held is irresponsible, the plaintiff to plea. When they didn't, the Michigan Supreme Court said, "You haven't -- not done so, you're out of the court."
Abe Fortas: Well, the sum total of the result is getting it without regard to whether illegal or decided whether it's (Inaudible). Is it tried on the basis that they didn't know anything about -- couldn't win on it in -- on the basis on what's construed on that statute and this people have been knocked out of the trial on the -- for that purpose.
Harry M. Plotkin: They plead -- they pleaded facts that had they known the statute -- they pleaded facts that on the way they pleaded and the facts as they developed made it impossible for them to win. Nobody's -- nobody entrapped them on the --
Byron R. White: (Inaudible) by this Court, didn't you?
Harry M. Plotkin: Pardon?
Byron R. White: It may be they pleaded to the prove the facts so -- going with the statute (Inaudible) -- is that so far as you -- do you really mean to say that they didn't do -- they get to -- how about gross negligence?
Harry M. Plotkin: Well, the Michigan Supreme Court --
Byron R. White: I know the Michigan Supreme Court read this present record --
Harry M. Plotkin: Yes.
Byron R. White: -- as saying that there was no gross negligence.
Harry M. Plotkin: Well, all I can say is and I'm not a practitioner in Michigan but from reading their cases they are a strict court even though finding ordinary negligence. They find as a matter of law that whether in other cases would be a clear case of ordinary negligence to -- at least one the title go to the jury. They direct verdict for the defendant. Michigan I think is a strong defendant state in this area of law rather than the plaintiff's state. And two of the judges thought that as a matter of law there was no ordinary negligence. When you read some of the other cases, the court directs verdict on ordinary negligence in this type of situation. Now, it's just pure -- it's a pure conjuncture how they will come out but this is a defendant's minded court on negligence matter. Thank you Your Honor.
Earl Warren: You have a couple of minutes left Mr.--
Gregory M. Pillon: I appreciate it (Voice Overlap) --
Earl Warren: -- Pillon if you wish.
Gregory M. Pillon: I've -- just like to say this that if I've been met with the statute in the lower court, had been brought to anybody's attention the pleadings could've been amended. I could've shown three things, one, that David himself owned no traps, couldn't physically even set a trap so he wouldn't -- couldn't be a -- possibly be a trapper and we could cover for ordinary negligence for David. And as for James, James owned traps and he was trapping. There was no eye witnesses when he died on that land at that time then it was a question whether he was trapping on that land and that should've been a jury question. But in any event I could have gone ahead and even claimed as far as James is concern, gross negligence, namely that that they had such dangerous condition, they knew that many people came upon their land, a couple of (Inaudible) sign of warning. They could've prevented this in showing that there was really a trap. I should've -- had that opportunity, but again this illustrates that really equal protection is denied to this children because why should two children, David and James, why should David go on the land and be able because he's not trapping but going along with his brother, recover for ordinary negligence. And his brother, who has a trap and is going to set a trap on that land have to prove gross negligence. Why should it be two standards for two children dying at the same time at same place --
Speaker: The trouble is that the --
Gregory M. Pillon: -- engaged in --
Speaker: -- Supreme Court of Michigan said that the statute applies to both of them.
Gregory M. Pillon: And that's why it's invidious because applied the statute as I said under the common law of Michigan, children could recover for ordinary negligence. When they applied the statute for the little child, the immature child when they say that he is the hunter, the fisher, the trapper, that's in my opinion, is an invidious discrimination. Thank you kindly for your attention.
Earl Warren: We'll adjourn.