Earl Warren: International Union, United Automobile -- Agricultural Implement Workers of America et al versus Paul S. Russell. Mr. Goldthwaite, you may proceed.
J. R. Goldthwaite, Jr.: Thank you Your Honor. Mr. Chief Justice, Your Honors. In as much as Congress regulated the concerted activities and guaranteed the rights of employees in Section 7 of the act and provided that interference with those rights was an unfair labor practice for which the unions were responsible and gave a remedy which remedy we believe is adequate to redress the employee and back pay. In other words, it's our position and we think without question, that the National Labor Relations Board has the authority to grant to the employee, whose rights under the act are infringed, all of the remedial relief which was granted by the Supreme Court of Alabama. The Board could have ordered the union to give him the $450 back pay in remedial relief --
Speaker: Or it's held otherwise as --
J. R. Goldthwaite, Jr.: Yes sir.
Speaker: -- in the Court of Appeals it's held otherwise?
J. R. Goldthwaite, Jr.: I don't know that a Court of Appeals has held otherwise.
Speaker: Particularly in one case in circuits --
J. R. Goldthwaite, Jr.: I didn't -- I am not familiar with a ruling by a Court of Appeals. The Board has held to the contrary but we think their ruling is clearly error and we cover that subject completely in our brief at pages 45 through 56.
Speaker: I know where this case -- 187 Fd. 2nd I think held that --
J. R. Goldthwaite, Jr.: That's first time sir we've had that case brought to our attention at all and didn't find any so ruling. The House Bill 3020 in 1947 in Section 10A specifically provided that an individual, an employee whose right to work during a strike was infringed would have a right to bring a suit in a, any court of competent jurisdiction, as I recall, the words, venerated, provided a court remedy for interference with the right to work. The Conference Committee of the house and Senate specifically rejected the house proposed. And in lieu of the house proposal to provide a court remedy for the same type conducts involved in this case provided the amendment to Section 7 which guaranteed the right to work and provided Section 8 (b) (1), given the National Labor Relation Board jurisdiction. Therefore we think it's pretty, it's quite clear from the Congressional history that Congress specifically rejected the right to bring a legal action to enforce the rights involved in this case. Therefore, if we are correct and we are quite sure under the rulings of the Court which held that the board has the authority to grant any relief it deems necessary -- any remedial relief it deems necessary to effectuate the policies of the act, the board does have that power. Therefore, necessarily the remedy provided by the National Labor Relations Act is in direct conflict with the remedy provided by the state court in this case. And therein as Mr. Justice Douglas asked about the Laburnum case yesterday, therein lies the distinction we believe between this case and the Laburnum case. The Laburnum case was a case of an employer whose lawful right to conduct his business free from interference was interfered with by violent conduct. The Court there held that there was no parallel remedy provided by the National Labor Relations Act to redress the injury which was the subject matter of that suit and that of course is true. The National Labor Relations Act makes no attempt whatsoever to guarantee the right of an employee to conduct his business. There is no guarantees which parallel to the employer, the guarantees afforded to the right of an employee to work and that I think is a primary distinction between Laburnum and the present case. We do believe that the Laburnum case, if it were before the Court for decision again would probably be decided differently because the adjudication by the State Court in that case necessarily involves the adjudication of concerted -- of the right of employees to engage in concerted activity and the extent of the -- exercise of that right is a matter which has been given to the National Labor Relations Board. At any rate we think that the Laburnum case carries the, to the fullest extent the line of demarcation within which the state can act upon the subject matter which has been covered by the National Labor Relations Act. Mr. Justice Frankfurter in the Weber case I think very clearly pointed out that it was necessary that the National Labor Relations Act provide a damage suit remedy before the remedies would be in conflict but that -- he said that if there was an administrative remedy which is clearly provided in this case then the Weber case -- in the Weber case instead of the Laburnum case that the Court would have decided it different. Well here there is a remedy provided. Secondly, we do not think that a mere allegation of violence in State Court pleadings gives to the state a hunting license to use any regulatory or take any regulatory measure, measures that if it sees fit or that its courts see fit or that a state court jury shall see fit. In other words a mere allegation in pleadings that violence is being committed doesn't open the door for the court -- for the state to take any action it sees fit upon the subject matter. To the contrary this Court has pointed out repeatedly that the Congress intended and I think the Congressional history shows it, that Congress intended that within the sphere of the National Labor Relations Board's authority Congress intended to leave only to the states, the exercise of the function to maintain public peace and order. The Congressional history shows that pretty clearly. Senator Taft said that only insofar as the actual violence in the commission was concerned did the two -- did the act overlap state remedies. So we don't think, we don't contend that the act replaces the state's injunction power or its authority to regulate -- to enforce its criminal statutes. But there is a limit within which that power of the state to maintain public peace and order in an emergency maybe exercised. The decision of the Court we think illustrate that only to the extent it is necessary to maintain public peace and order may the power be exercised. The power may not be exercised beyond what is necessary to accomplish that purpose and Mr. Justice Brennan asked about the Rainfair case, I think the Rainfair case illustrates that exactly. There the court, the state enjoined all picketing and the court very clearly know that only to the extent that it was necessary to control the injunction -- the violence did -- could the state exercise the injunctive remedy. In the (Inaudible) case the same case was, the same thing was true. That was an exercise of the police power of the state to maintain public peace and order. Now beyond the necessity of that exercise, the Congressional history indicates that Congress' original intention to maintain uniformity of regulation would be carried forward and getting back to Mr. Justice Frankfurter's question of yesterday, which I'm afraid I misunderstood, with reference to the punitive damages, I understood him to ask as to whether we felt it was a federal question for -- here for the Court to decide whether those damages were excessive, but I'm advised that I misunderstood the question. The question at any rate I think possibly you asked if -- do we contend that whether or not the punitive damage feature raises a federal question, involves a federal question, we definitely do. The power to inflict enormous punitive damages is the power to prohibit, the power -- in a strike where several thousands workers are involved for instance, and say 200 suits of this character are filed.
Harold Burton: Punitive damages were in the (Inaudible) case, weren't they?
J. R. Goldthwaite, Jr.: Yes sir. But there, as I say the Court held there was no remedial relieve available before the Board. Here we say that here is remedial relief available.
Felix Frankfurter: Are you implying that if the jury's verdict had been $1,000; that would not have raised the federal question?
J. R. Goldthwaite, Jr.: No sir.
Felix Frankfurter: But $10,000 would have?
J. R. Goldthwaite, Jr.: No sir, we're not implying that. I think the remedial relief raises a federal question. There is a power in the board to grant remedial relief --
Felix Frankfurter: (Inaudible) 10000?
J. R. Goldthwaite, Jr.: But the punitive damages, Your Honor, illustrate the power of the state to prohibit, if they can grant punitive damages, enormous punitive damages. Suppose a labor organization or local labor organization has a trade for $25,000, two of these suits would bankrupt by state court juries applying their standards of conduct which vary from the standards of conduct and the extent of permissible activity, protected activity, intended by the Congress in the National Labor Relations Act.
Felix Frankfurter: (Inaudible) I can clarify?
J. R. Goldthwaite, Jr.: Yes sir.
Speaker: Suppose this very same action, the very same proceeding and the very same record had taken place in Georgia in Alabama in 1933 before there was a Wagner Act, later on the Taft-Hartley Act, what would be the federal question in the case that you would raise?
J. R. Goldthwaite, Jr.: I wouldn't raise any federal question.
Felix Frankfurter: There wouldn't be any, but it didn't, is that right?
J. R. Goldthwaite, Jr.: This arose --
Felix Frankfurter: But I (Inaudible) time --
J. R. Goldthwaite, Jr.: Yes sir, no sir.
Felix Frankfurter: There would be no federal question.
J. R. Goldthwaite, Jr.: Because the federal statute had not been inactive, Congress hadn't entered the field and assumed jurisdiction over the conduct involved.
Felix Frankfurter: Therefore, your federal question is merely a question of preemption, is it not?
J. R. Goldthwaite, Jr.: Yes sir.
Felix Frankfurter: So, I still don't see what the question of damages has to do with it, except as you just indicated, illustrative, if the state can do this, if the state has power, a jury can bring in a verdict for $1,000 or $10,000, but the fact of $10,000 is immaterial to the federal issue, is that right?
J. R. Goldthwaite, Jr.: The amount is, except is illustrative of the fantastic damage --
Felix Frankfurter: But that doesn't in or itself raise the federal question, that's the short point.
J. R. Goldthwaite, Jr.: No sir.
Felix Frankfurter: This isn't a claim the amount is so excessive that it's a deprivation of due process.
J. R. Goldthwaite, Jr.: No sir.
Felix Frankfurter: All right.
J. R. Goldthwaite, Jr.: Only that the power to impose punitive damages is regulation of the same conduct which Congress has regulated and given to the National Labor Relations Board to protect and redress.
William J. Brennan, Jr.: Mr. Goldthwaite, what is the redress which this respondent would obtain before the Board if the case was sustained, that there had been a violation, a part of the union which I take it would be a finding of unfair labor practices.
J. R. Goldthwaite, Jr.: I don't think the Board under the facts in this record and again the facts are put in for illustration.
William J. Brennan, Jr.: I am assuming -- assume with me if you will that a case of violation of the act was proved on -- as a violation on the part of the union, now what would be the redress which the Board could give this respondent Russell in that situation?
J. R. Goldthwaite, Jr.: We think they could -- assuming they found a violation, which we don't think they would on these facts, but assuming they did --
William J. Brennan, Jr.: I know that but please assume with --
J. R. Goldthwaite, Jr.: I'm -- assuming they did find the violation, they could order him to be given the pay which he lost because of the unfair labor practice.
William J. Brennan, Jr.: Just back pay in other words.
J. R. Goldthwaite, Jr.: The remedial portion of the relief I don't think they can -- the Court has held they can't give punitive damages, but that's a matter for Congress.
William J. Brennan, Jr.: Yes, but you know -- are you -- are there any instances in which the Board has done that in cases of this kind?
J. R. Goldthwaite, Jr.: The Board has specifically held in two cases and Mr. Justice Harlan mentioned one other. I'm not familiar with that, but it's held in two cases that it does have the power to award back pay in an 8 (b) (1) case, which – there is just no logic in that holding at all. It awards back pay under the same section, Section 10(c) which says it can give any remedial relief necessary to effectuate the policy --
William J. Brennan, Jr.: Well then as the law now stands at least in the Board, the redress that you suggest would not be available to Russell, would it?
J. R. Goldthwaite, Jr.: Well of course it could be litigated before the Board and the question is raised here. I don't think the Court has to reach the question because irrespective of the extent of relief provided, the courts always held that in a quasi judicial tribunal, federal tribunal, the extent of relief Congress provided was deemed to be is -- all the relief, the Congress thought necessary, but the question is here and the Court can decide it, that in this case, it's a question of law, not of discretion under the facts in another case. It's question, whole question of law that can decide whether or not the Board was right, and it maybe necessary to decide, if the Court reaches it.
Earl Warren: Mr. Harris.
Norman W. Harris: Mr. Chief Justice may it please the Court. Before entering on the argument of this case, I would like to call the attention of the Court to an inaccurate statement at top of page 31 of our brief, in which we made the statement that Senator Ives was one of the opponents of the amendment which became Section 8(b)(1)(a) of the Act. At the time Senator Ives made the statement which we quoted, he was an opponent of that amendment, but later he secured the adoption of an amendment striking out the words interfere with and he said that, that removed most of his objections, so he then voted for the amendment. There is also an inaccurate --
William O. Douglas: What page is that?
Norman W. Harris: That is at the top of page 31 of the respondent's brief. There is also an inaccurate statement involving Senator Ives in the reply brief of the petitioners. It's the last sentence in that reply brief on page 20 in which they refer to Senator Ives as one of the opponents of the Taft-Hartley Act. As a matter of fact Senator Ives voted for the Taft-Hartley Act, both when the conference committee report was adopted and when the bill was passed over the President's veto. So I would like to clear those inaccuracies up with reference to the voting record of Senator Ives on the bill.
Earl Warren: Mr. Harris where was this last correction, at what page?
Norman W. Harris: That's page 20 of the petitioner's reply brief.
Earl Warren: Oh yes.
Norman W. Harris: The last sentence in the brief. I get the impression from the argument yesterday that the Court does not care for me to discuss the facts of the case. I would like to say --
Felix Frankfurter: I don't know what that means because it seems to me that I can't understand this case without knowing what the facts are.
Norman W. Harris: Well, the facts are these briefly.
Felix Frankfurter: But I don't -- I'll leave you to decide that, but I don't see that we've got an abstract issue here, have we? I mean in generalizing --
Norman W. Harris: Well of course it's set on the background of the facts yes, the facts are --
Felix Frankfurter: Would you mind stating what do you conceive to be the issue in the case, and that will tell me --
Norman W. Harris: The plaintiff, his entire claim was based on the allegation that the defendants by force and violence and mass picketing and threats of violence prevented his entering the plant where he was employed, that for that reason he was unable to enter, he suffered a loss of wages, he suffered mental pain and anguish in addition and in addition to those two elements of damage he asked for punitive damages in his complaint to punish the defendants for their wrongful conduct and to set an example to deter that conduct in the future.
William J. Brennan, Jr.: Well was it also part of this case that would have been work available had he been able to --
Norman W. Harris: It was alleged in the complaint that, that conduct prevented his earning wages which he would have earned otherwise if he had been permitted to enter the plant. That was one of the allegations in the complaint.
Felix Frankfurter: Well that goes to the damages.
Norman W. Harris: Yes sir.
Felix Frankfurter: You stated, the cause of action was the employment of force and violence to interfere with his --
Norman W. Harris: Right to work.
Felix Frankfurter: Attempt to go to work.
Norman W. Harris: Yes.
Felix Frankfurter: Now, did the case go to trial on that issue?
Norman W. Harris: On that issue and that issue alone.
Felix Frankfurter: Was the issue directed, was the evidence directed to that issue?
Norman W. Harris: To that issue and that alone.
Felix Frankfurter: Did the defendant ask that the case be dismissed for want of sufficient evidence to go to the jury on the question of force and violence?
Norman W. Harris: They made motion.
Felix Frankfurter: And the Court overruled it and said there was evidence of force or violence?
Norman W. Harris: Yes that's right.
Felix Frankfurter: And the jury found that there was?
Norman W. Harris: That's right.
Felix Frankfurter: And there was a motion to set it aside?
Norman W. Harris: That's right.
Felix Frankfurter: And it went up to the Supreme Court and they sustained the findings of the jury?
Norman W. Harris: That's correct.
Felix Frankfurter: And is there any -- is there a controversy here now that there wasn't enough evidence of force and violence to go to the jury?
Norman W. Harris: As I understood Mr. Goldthwaite yesterday, no. Now that's --
Felix Frankfurter: Are you suggesting -- your answer to me carries the statement, that Mr. Goldthwaite, or that the petitioner here admits that there was an issue of force and violence which interfered with the plaintiff, to his loss monetarily determinable, that there was evidence of that to go to the jury. The jury found in favor of the plaintiff and that despite that which is controlling here, if there is evidence, as a matter of law, the state court had no jurisdiction.
Norman W. Harris: I think that's correct.
Earl Warren: Now I'd like to know what the facts are as you conceive?
Norman W. Harris: All right the facts were these. This plaintiff was an electrician employed at a copper plant (Inaudible). It has about 550 employees, production employees. On the morning this particular strike began which was July the 18th 1951, the plaintiff left his home to go to work. He testified that he had no knowledge there was to be a strike. He took his lunch with him as was his custom to eat in the plant. He got to the vicinity of the plant, and saw a picket line there of some 25 or 30 men walking in a circle about three feet apart over the entire travel portion of the street, off to the south side of the street. Immediately adjacent to that picket line there was another group of strikers variously estimated at from 100 to 200 and over on the other side of the street, another group estimated to be about 50. There were people scattered along in the street. The plaintiff had to approach the picket line slowly on account of those small groups of persons in the street. As he neared the picket line one of the union members who happened to be a picket captain by the name of Hobes (Inaudible) grabbed his automobile and was dragged by it some 10 or 15 to 20 feet. The plaintiff stopped. The Regional Director of this union from Atlanta who was there supervising the picketing and both he was there, the Assistant Regional Director, an international representative from Birmingham, they were all there participating in the picketing and supervising. The Regional Director came up to the side of the plaintiff's car and said hourly or salary. Now we also had evidence of a man that attended the union meeting the day before when they were making the plans for this strike, that this international representative told them to let the salaried employees in but not to let the hourly paid production employees through the picket line. This Regional Director asked him as I said hourly or salary. The plaintiff replied what difference does it make? The Regional Director then identified himself as being the Regional Director and says if you are salaried you can go on in if you are hourly this is as far as you can go. The plaintiff remained there from an hour-and-a-half to two hours there with (Inaudible), with that picket line in front of him he tried to go through it, each time he did, they would stop right in front of his car and point their signs down towards his car. Once he tried to edge in behind an empty bus going into the plant to pick up some third shift employees, and as he did so, the pickets surged over in front of him, someone of them shouted it looks like we are going to have turn him over to get rid of him and from that group that was congregated at the south side of the picket line which was constantly replacing the pickets and reinforcing them, shouts came of turn him over. The plaintiff testified that there after remaining there that length of time he was satisfied that he couldn't get into the plant without running over somebody or else getting turned over, so he backed out and went home. Now a month later with 75 Alabama Highway Patrolmen and 20 city --
Earl Warren: Before we get to the month later, what happened in the plant, there was a plant operating this --?
Norman W. Harris: The plant was operating on a three shift basis. The plaintiff was on the first shift. At the time this was happening to him, the third shift was still in the plant working, they were to get off at 8 o'clock.
Earl Warren: What time was this?
Norman W. Harris: This was about quarter to eight. Now the foremen of the I believe they called it the production department, testified that when he saw that picket line outside, that he gave instructions to start emptying one of the furnace in which they carry 142 I believe of these coupler pellets, they were heated to a very high degree of temperature and a pube extruded from it, and that furnace has to be emptied, if the plant is to close down. He said that under normal conditions if they were going to shut the plant down that they would start emptying that furnace some time around three or three-and-a-half hours before the shutdown. This morning they started emptying that furnace at 7:30 in the morning which was 30 minutes before the first shift was to get into work. He also testified that the draw benches and all the machinery of the plant were left in their normal and customary condition, the same they would be if the plant was to be operated. Now the union contended that they had an agreement with the management of the plant that if they had a strike the management would not allow the hourly paid employees in the plant. That was denied by the management representative and that was the main question argued and submitted to the jury and decided by the jury and there is no question in this record but what the case was submitted to the jury on that basis to determine the facts and that they were bound to have determined that force and violence prevented the plaintiff from earning wages and that he would have earned wages if he had been able to get in.
Earl Warren: What did happen so far as the operation of the plant was concerned thereafter?
Norman W. Harris: It seems they entered that furnace with supervisory employees and the plant was -- its operations ceased and did not resume again until a month later.
Earl Warren: And did he get damages or did he get wages for this month?
Norman W. Harris: Yes.
Earl Warren: When the plant was closed?
Norman W. Harris: Well, I assume he did, the jury just -- it didn't itemize its verdict, it return a lump sum verdict for $10,000, but the Court charged the jury that he could recover the wages that he had lost during that period.
William J. Brennan, Jr.: (Inaudible)
Norman W. Harris: No. He received no compensation during that time he was out of work, except by way of the verdict in this case.
William J. Brennan, Jr.: Then the judgment, the punitive damages were not separately assessed?
Norman W. Harris: No sir, it was a lump sum verdict for $10,000, could include loss of wages, mental pain and suffering and punitive damages, and of course we know about what the loss of wages was, it was about $500, so that leaves $9,500 attributable to mental pain and anguish and punitive damages.
Charles E. Whittaker: (Inaudible)
Norman W. Harris: No sir, just the general verdict in return.
Earl Warren: How long did the strike last after they opened, reopened the plant?
Norman W. Harris: I believe that would have showed that it -- the picket line was maintained down from September and they reopened in August, it was a little over a month, and they continued to work all during that time with the highway patrol and police protection.
Earl Warren: Did this man work during that period, from June -- whatever day it was that the plant reopened until the strike was over?
Norman W. Harris: Yes sir and still is.
Earl Warren: So the only wages that he was entitled to under this verdict would have been the wages that he would have earned while the plant was closed.
Norman W. Harris: Yes sir, which was a period of five weeks approximately.
Earl Warren: Yes.
Norman W. Harris: Now, are there any other questions --
Earl Warren: No I think that's sufficient.
Norman W. Harris: As we contend in our brief, we contend that the Laburnum case is controlling here. The conduct involved here was of a similar nature to that involved in to the Laburnum case. It was preventing employees from working by threats of violence. The basis of the common law tort action here was the same as the basis of the common law tort action involved in the Laburnum case that was interfering with the right of a person to engage in a lawful business or occupation without interference. The unfair labor practice involved in the Laburnum case was the Section 8(b)(1)(A) violation, the same as it is here. Both cases were common law tort actions having the same foundation and involving the same type of conduct. The defendants here claim that there is a difference because here the plaintiff is an employee and there the plaintiff was an employer. Now exactly that contention was advanced by counsel for Laburnum Construction Company in that case. They were claiming that there was no preemption because the Act did not protect the rights of an employee and if the Court will examine the brief in the Laburnum case, the Court will find that it makes almost identically, the same contention that the defendants make here in trying to distinguish the Laburnum case, but the Court didn't accept that contention. Instead it placed the Laburnum case on the border ground that the Taft-Hartley Act did not operate to abolish common law tort actions, that they survived, and the Court mentioned that in passing it, Congress was insisting on increased responsibilities for labor organizations, and that it was inconsistent with the congressional intent, to say that by implication and without mentioning it, they abolished common law tort actions for damages. Now as I say I think the Laburnum case is controlling, the defendant said that Laburnum had no remedy, well Laburnum did have a remedy. Under the statute and the decisions of this Court, Laburnum Construction Company in that case could have gone before the National Labor Relations Board and have complained of that conduct and obtained a cease-and-desist order from the National Labor Relations Board requiring the labor organization to cease-and-desist from that unlawful practice.
Earl Warren: Didn't Laburnum point out that there was no remedy to the employer?
Norman W. Harris: That's right it did. It said that there is no compensatory remedy provided by the Labor Management Relations Act except I believe the wording was in such manner supplementary ways as reinstatement with back pay. Now I'm going to discuss that feature of the Laburnum case in just a few minutes. Before I get to that, I want to mention the Kohler case and the case of Youngdahl against Rainfair which the Court decided this week. They hold, the Kohler case in considerable detail that Congress intended to leave to the states, the matter of controlling and preventing of violence in labor relations matters. The Kohler case went so far as to hold that the Wisconsin Board and the Wisconsin courts could grant remedy, a preventive remedy that would duplicate that the board grants or could grant rather. So they established without any controversy that, that power is still inherent in the states that is the power the control force and violence in labor relations matters. Now, I think this action can be justified under that theory, that is under the power of the state to control force and violence. I'm afraid that the Chief Justice and Mr. Justice Douglas will not agree on this theory that I've advanced now in view of that dissent in the Rainfair case and in the Kohler case, but the Kohler case establishes as I said that the state does have power to prevent force and violence. Let's think of the ways in which they can do it. Of course the most obvious way is on the spot police protection; that is as was done in this case by the Alabama Highway Patrolmen and the city policemen that were there. Then the next way that the state can do it is by an injunction to enjoin the unlawful conduct, such as was granted in the Kohler case and such as was granted and sustained in the Rainfair case. As Mr. Justice Frankfurter said in the Metamora Dairies case, a state can places confidence in a Chancellor's decree rather than in a policemen's club. So under the Taft-Hartley Act, as well as under the Fourteenth Amendment, this Court has held that the state can place its confidence in Chancellor's decree and an injunction properly framed. Now another way that the state can prevent force and violence in such matters is by criminal prosection. In Alabama we have a criminal statute providing that it's a misdemeanor for any person or group of persons to assemble at or near the entrance of a place of business for the purpose of preventing anyone from engaging in a lawful occupation by force and violence. I think a number of states have similar laws, I know the Arkansas statute which was before this Court in the case of Cole against Arkansas, 338 U.S. 345, made it a felony for two or more persons to conspire to use force or violence to prevent employees from working, and this Court upheld the constitutionality of that statute, as I say it made it a felony. Well the legislative history of the Taft-Hartley Act makes it clear that Congress intended that the states retain that power. Now a criminal prosecution of course is -- serves or it operates in two ways; first it's for punishment and second it's to set an example, so as to prevent that unlawful conduct in the future. Now accumulative damages operate in the same way under our law and I think it's the law of practically all of the states, that allow punitive damages, they serve a two-fold purpose; one punishment, two to set an example, to deter similar conduct in the future. So I submit to the Court that the state has judicial power to allow the maintenance of an action such as this with the recovery of punitive damages, for punishment and to set that example in order to prevent that type of conduct and I submit this. It's a much more effective preventive remedy than a criminal prosecution of several hundred persons for misdemeanor. So we submit that under that power of the states that this action can be maintained. On that punitive damages there is one case decided by this Court that I didn't cite in my brief, I probably should have. In Alabama under Lord Campbell's Act otherwise known as the Alabama Homicide Act the only damages recoverable are punitive damages and no compensatory damages are recoverable on their law in a civil action for wrongful death, but it's solely punitive. In 1927 that statute was before this Court in the case of Louis Pizitz Dry Goods Company, Inc. versus Yeldell 274 U.S. 112. It was claimed that that statute violated the Due Process Clause. Mr. Justice Stone held otherwise and said that the punitive damage was reasonably related to preventing homicide and that the legislature of Alabama had the right to attempt to prevent homicide by making it expensive. We say that the state of Alabama has the right to prevent mass picketing and forcing violence by making it expensive as well as the right to prohibit it by its criminal laws and by its police officers and by the injunctive powers of the court.
William J. Brennan, Jr.: Mr. Harris I don't know that if at all involved in this case but I am curious, either under your Taft Act or otherwise is a judgment for punitive damages reviewable at all under your practice?
Norman W. Harris: Is it reviewable?
William J. Brennan, Jr.: As to amounts?
Norman W. Harris: Oh yes.
William J. Brennan, Jr.: It is?
Norman W. Harris: It is reviewable Your Honor on a motion for a new trial before the trial judge.
William J. Brennan, Jr.: So that it may be attacked with successive?
Norman W. Harris: Oh yes and this one was in this case. It was a motion for a new trial was filed and argued and passed on by the trial judge and one of the grounds of it was that the verdict was excessive. That same argument was advanced in the Supreme Court of Alabama and was passed on, you will find in the opinion of the Supreme Court of Alabama that since the purpose of punitive damages is punishment and prevention and since its discretionary with the jury, then the court can't say that too much was allowed that it's within the reasonable discretion of the jury to say how much is necessary to prevent certain types of conduct.
William J. Brennan, Jr.: Well that -- tell me this could have easily been a 100,000 or million dollars as it was 10,000 --
Norman W. Harris: Well I don't know what the court, what the circuit judge would have gone in that event. I might say it's mentioned in the petitioner brief, it's out of the record but in one of these cases we got a verdict for $18,450 that's the biggest one we've got. And the trial judge in that opinion said that he thought the jury had been exceeding the liberal, but he couldn't say that it had been actuated by improper motives. Now I thought that he would have approved any more than that because he didn't seem to be too sure of that. Now to me the most difficult question in this case is what is the power of the National Labor Relations Board? The petitioners contend that they have power to require the union to reimburse Russell for the wages that he lost. I don't know whether they contend that they had power to compensate him for the mental anguish he suffered on that, they haven't said so. But certainly that is beyond the scope of the power of the board and the ordinary concept of that power. The basis of the power of the board of course is in the language of the act that it shall have power to require of a person to take such affirmative action as may effectuate the policy of the act. I believe that's the language of the statute. Now petitioners claim that it would effectuate the policy of the act to require the union to reimburse the man for the wages he lost. The board has held in at least four and I believe more cases that we cite in a footnote, footnote 23 on the bottom of page 47 of that brief that that they do not have that power, that there was no intention on the part of the Congress to have that power.
Harold Burton: (Inaudible) the have the power (Inaudible) employer to say (Inaudible) but not somebody else?
Norman W. Harris: That's right, that's what they hold and they mention the fact that under the 1935 act that it was held that they had the power to require the employer to pay back pay and that when the act was amended in 1947 that it used exactly the same language, but added the proviso that the board had power to require labor organization to pay back pay in cases of discrimination. And they said that adopting the language of the 35 act and adding that one thing showed that there was not a Congressional intent to give that power. Now I say that there is more evidence of Congressional intent that the board not have that power than appears from the language of the act and that is from what was said when this amendment was being considered in the Senate. We quote in our brief one illustration Senator Taft gave. He was asked by one of the senators what procedure the board would adopt on an unfair labor practice under Section 8(b)(1) and I read from what Senator Taft said, it's set out at the beginning at the bottom 49 of my brief. He said this, “There will be a hearing as to why they were doing these things and a cease-and-desist order maybe issued. So far as I know there is no other penalty. If they should disobey the cease-and-desist order, the board can obtain an injunction and if they violate the injunction they are liable for contempt. That is the only result” and I emphasis on it, that is the only result of this general charge of unfair labor practices. Now I have another instance during the debate on that, Senator Taft illustrated by supposing a case of mass picketing and he again mentions mass picketing that keeps office personnel out of the plant and he says that the board can call the union before it and issue a cease-and-desist order, but that is the only consequence. I believe that with Senator Taft's knowledge of this situation and with his candor and frankness that if there had been any intention on the part of the Senate to give the board that power that he would have so answered in response to those inquiries. I think secondly that it was never in his thought that board was being given that type of power. Now another indication is that when they were discussing Section 303 of the act which is the provision I believe allowing for secondary boycotts. Senator Taft says that it was discussed giving that power to the board, rather than for providing actions of law to recover damages, the secondary boycotts, but he said no one either side of the question thought that the board was a proper agency to have power to grant damages in a case like that. So I believe that the Congressional intent and I submit to this Court that the Congressional intent was that the board would not have power in such cases like this. There is another very strong evidence that Congress intended to leave that matter to court and that is this. My friend Mr. Goldthwaite has mentioned that in the house bill which was known HR 3020 Section 12 (a) of that bill authorized or provided rather that it was an unlawful concerted activity for a labor union by force or violence to prevent anyone from entering his place of employment. Subdivision (b) of Section 12 of that bill expressively provided that anyone injured by such an unlawful concerted activity would have the right to maintain a suit for damages in the United States District Court without regard to the amount in controversy or the citizenship of the parties. Now that was the house treatment of the matter. When the Senate disagreed and the matter got to the Conference Committee, they adopted the Senate version of the bill. They dropped Section 12 of the house bill. They explained why that was done and in the explanation, that is in the House Conference Report, in House Conference Report of 510 on page 42. It mentions the fact under the house bill suits could be brought to recover damages and -- in a case such as this, and then he says that the Conference Agreement did not take the -- did not deal with the matter in the same way the house bill was, but what they are saying in here is that while they didn't do it in exactly the same way, the effect of what they did was the same and here is what they say on this and I think this is very pertinent, the conference agreement while adopting --
Harold Burton: From which page are you reading from?
Norman W. Harris: I am reading from page 35 of my brief and it's a part of the Conference Report. After referring to the treatment of such activities in Section 12 of the house bill, the report says this. And this is near the bottom of page 35 of my brief. The conference agreement while adopting Section 8(b)(1) of Senate Amendment does not by specific terms contain any of these sanctions, but an employee who is discharged for participating in them will not, as explained in the discussion of the Section 7, be entitled to reinstatement. Now here is the crux of the situation as I see it. Furthermore in Section 302(b) unions are made suable, unions that engage in these practices to the injury of another may subject themselves to liability under ordinary principles of law. Well ordinary principle of law is bound to be the common law. Now the report is an error in referring to Section 302(b) because 302(b) dealt with payments to agents of labor organizations by employers. I think what they meant was Section 301(b). It happened that 302(b) was the corresponding provision in the house bill and I think the (Inaudible) has confused on the section, but whether that is material or not at least what they are saying is then since unions are suable, they can be subjected to liability for common law torts such as this under ordinary principles of law and I submit to the court that that shows an intention on the part of Congress that actions such as these survive. Now my adversary in his reply brief says that statement of the Conference Report I just read as meaningless because of the reference to 302(b), and says that 301 of the act has reference to suits against labor organizations for violation of contracts. That's true of Section 301(a) but the conference report shows that the rest of Section 301 of the act was of general application. In the legislative history set out by Mr. Justice Frankfurter in his dissent in the Textile Workers Union case against Lincoln Mills of Alabama a part of the Conference Committee Report reads as follows, talking about Section 301 of the conference committee bill, “This subsection and the succeeding sub sections of the Section 301 of the conference agreement are generally in their application as distinguished from sub section (a), they are general in their application. Bearing that out Mr. Justice Frankfurter said in that dissent, and this is from page 933 of 77 Supreme Court of Florida, the statement in Section 301(b) that the acts of the agent of the union are to be regarded as binding upon the union maybe used in support of this conclusion. This provision not confined in its application to suits in the District Court under Section 301(a) was primarily directed to responsibility of the union for its agents actions in authorizing strikes or committing torts, recognizing that the other provisions of Section 301, the provision rather than (a), are of general application. Now going back to the Laburnum case, it was pointed out there that there was no compensatory remedy for the Laburnum Construction Corporation provided by the act. Now if the words giving the board power to require a person to take such a affirmative action as well effectuate the policies of the act, can be construed broadly enough to say that the board had power to require the union to compensate this plaintiff, for his loss of wages and for his mental suffering. Then by the same token in the Laburnum case, when the Laburnum Construction Corporation went to the board and asked that the union be restrained from preventing their employees from working, the board then could require the union to take affirmative action by paying Laburnum the damages they had sustained, but the Court didn't seem to think that board had such power and said, that it had compensatory power and only minor supplementary wages.
Speaker: Supposing one came to conclusion that the board did have the power to avoid back pay to this man, what would be the consequence of this?
Norman W. Harris: Your Honor –-
Speaker: Not damages, but --
Norman W. Harris: But just back pay, frankly my position would be considerably weakened. I don't think it would -- I don't think it would be foreclosed, but it would be weakened. I must confess that it might be said out there if the board had that power that was all Congress intent, that's all the wrote, but now there --
Earl Warren: Would you have an answer to that?
Norman W. Harris: Yes.
Earl Warren: What would you answer?
Norman W. Harris: The answer I have for that goes back to what I have been arguing that Congress intended that common law of tort action survives. Now – and in that connection I want to mention a line of cases that I probably should have, but haven't mentioned in my brief. They are referred to by the Supreme Court of Alabama in its original consideration of this jurisdictional question in 53 and that line of cases are the ones dealing with Railway Labor Act, Moore against Illinois Central Railway and Slocum against Delaware, and Lackawanna Railway Company. As I read those cases, the injured party has an election as to whether he will proceed before the board or whether he would proceed in a court and here is what was said in the Slocum against Delaware and Lackawanna Railway Company case which is quoted by the Supreme Court of Alabama and I'll read from page 6, 7, and 8 of the record. “Our holding here is not inconsistent with our holding in Moore against Illinois Central Railroad Company. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the board has power to provide, and does not involve questions of future relations between the railroad and its other employees.” Now the effect of that is that a railroad worker who is discharged can go for the board and seek the reinstatement and back pay or he can file a suit for damages for wrongful discharge.
Felix Frankfurter: Let me ask you this question if I may Mr. Harris?
Norman W. Harris: Yes.
Felix Frankfurter: Under Alabama law can you bring a cause of action in a situation like this, forget about ad hoc for the moment, can you bring a cause of action solely for punitive damage or a punitive damages (Inaudible)
Norman W. Harris: No sir, you have to have some actual damage in order to recover anything.
Felix Frankfurter: I am not saying you may not -- didn't require to be some action, my question was whether he could be bring a suit merely lay the ad damnum, allege actual damage –-
Norman W. Harris: While your –-
Felix Frankfurter: -- depravation of wages, would you bring the suit, the ad damnum would really be for the punitive damages. Let me put to you my whole -- the question in my mind. You answered Chief Justice that your answer would be that common law tort action survived to have tort damage. I suppose one would -- in construing these materials but they are not easy, the legislative statutory materials, the common law of the state et cetera, if those were to hold that Congress in disagreement with the Seventh Circuit in the case to which Justice Harlem referred, suppose one were to hold that in fact the court -- the board could give relief against a union by an employee and not merely where it settled everything (Inaudible) back pay against employer, suppose in other words your client could have gone or could go, putting the statute of limitation there, to the board for back pay, under Alabama law could that be split up assuming the statute would allow, so that he could, since he could go to the board for back pay, Congress has preempted that relief in the State Court, could he under state law, never mind federal law we have to decide that, say I want punitive damages for the tort for which the board patently cannot give relief? Have I put my --
Norman W. Harris: Well --
Felix Frankfurter: In other words your answer to Chief Justice was that either you can, you have the choice of going to the board or going to the court, both for back pay and for punitive debt and tort recovery. Assuming that you can't get tort recovery before the board as I assume because that's what Laburnum to me presupposed, assuming that you cannot go to the board ask a tort action but can go to the board for back pay, and then you go to the board for back pay and go to the State Court for the tort restricted to the punitive amount which the state allows?
Norman W. Harris: Complaint of that kind would be demurer because under our law there has to be actual damage on which to hitch a claim for punitive damage.
Felix Frankfurter: But if I were a pleader, I could draw such a complaint because I would say I had actual damages for which the board is giving me the relief that the board is giving me relief for the tort consequences for those I go to the State Court.
Norman W. Harris: I haven't thought of that but I believe it would have to be on item of damages that were recoverable.
Felix Frankfurter: All right, that sounds like to sense to me.
Norman W. Harris: Now there is a possibility, I don't know this but I think there's line of case is holding that where a wrong is intentional and a person sustains mental anguish that he can recover that alone.
Felix Frankfurter: I am suggesting that some of these questions may come to the circuits --
Norman W. Harris: Well I am sorry I haven't thought about it.
Felix Frankfurter: If we have to reach the question and decide against you on the recoverability against back pay as against existing laws abide the board and lower courts have declared it.
Norman W. Harris: Now let me say one other thing and I think I will be through. After all this thing boils down to what did Congress intend, that's the essence of the case and suppose there is a remedy with the board it's entirely discretionary with the general counsel of the board in the first place whether or not he would file a compliant --
Felix Frankfurter: That doesn't help me any because it's all discretionary as to an injection?
Norman W. Harris: That's right, but here is what I was going to illustrate. It's discretionary with the general counsel as to whether he will file a compliant. It's discretionary with the board as I understand the case of Guss against Utah Labor Relations Board as to what fields it will take jurisdiction of. Now I say that Congress had no intention of substituting such a doubtful dubious remedy for a common law right which a man had to sustain to recover damages that he had sustained as result of the intentional wrongful, forceful and violent conduct.
Felix Frankfurter: Mr. Harris, it's just confidential, do you think the Congress thought about these problems we have been discussing for the few minutes?
Norman W. Harris: That I think they did in that conference report. Well because the house bill now they might not have thought this particular case I don't know whether they talked that.
Felix Frankfurter: Well these problems.
Norman W. Harris: But the house bill it had language which specifically covered this case just like (Inaudible) and the Conference Committee Report comes along and says while we are not using exactly that method of treatment, we have accomplished the same result by the conference committee bill then they certainly intended to preserve these common law actions. Mr. Justice Harlan, I believe there is one other case of a Court of Appeals on the power of the board to award back pay and not past in the list, but I think in the case of International Union, United Automobile Workers the same union against Hinz decided by the Sixth Circuit 218 F. 2nd 664, I believe in that case the court said that the board had no such problem.
Felix Frankfurter: Has the board been consistent about this?
Norman W. Harris: Yes. There is a very excellent discussion by the board in National Maritime case in 78 NLRB, it's cited in --
Felix Frankfurter: In your brief?
Norman W. Harris: Sir?
Felix Frankfurter: In your brief?
Norman W. Harris: Yes sir, it's cited in footnote 23 of my brief on page 47, National Maritime Union of America, 17 NLRB.
Felix Frankfurter: Page 23 of your brief Mr. Harris?
Norman W. Harris: Sir, page 47.
Felix Frankfurter: Oh page 47, I beg your pardon.
Norman W. Harris: Foot note 23.
Felix Frankfurter: Thank you. Here it is.
Earl Warren: That was the page number 78 in NLRB please.
Norman W. Harris: 78, NLRB, 971.
Earl Warren: 971. Mr. Goldthwaite.
J. R. Goldthwaite, Jr.: Your Honor I like to briefly call your attention to item one is that the provisions of 302, 301(b) refer merely to the fact that a labor organization can be sued as an entity in the court of United States. It creates no right of action and the fact as Mr. Harris said that Congress said they treated the subject matter covered by Section 12 of house bill 302(a) or 302(o) with reference to suits by employees effectively, well the treatment they did in that was effective was by putting the amendment to Section 7 and providing Section 8(b) indicating clearly their intention to divorce that power on the National Labor Relations Board. The many reports say that – well for one the house report says under this clause the board may also require a union to reimburse an employee who loses -- it causes to lose pay the amount that he loses. Now that was quote on house 302(o) on Section 8(b). So they said there that the board did have that power. Now I want to try to express an idea that a comment by justice -- Mr. Justice Frankfurter raised this and that is apparently the idea that I've heard other people express that the mere existence or well I say an allegation, but let's say the actual -- the existence of force and violence is itself the criterion or the determining factor as to whether the state can have jurisdiction or not. If it were the criterion, the sole criterion as Mr. Harris urges, that when that exists they can do anything, well then Rainfair would have been decided differently. If they could -- if the force and violence was there, it gave them (Inaudible) jurisdiction to do anything. They could have enjoined all of the victims. The same thing is true of the Garner case. If under that theory violence has been involved in the Garner case, then I think the Court -- and that was the criterion, then the Court would have said that the state could enjoin violations of Section 8(b)(4).
Felix Frankfurter: Why do we have to choose one or the other? Just as merely because of -- there is violence it doesn't preclude peaceful activity so because those peaceful activities doesn't prohibit the inhibition, the prohibition of violence.
J. R. Goldthwaite, Jr.: I think that's right sir. That proves the statement I was making I think sir that violence itself is not the criterion for opening the door for any state action in a case.
Felix Frankfurter: But does it open the door (Inaudible) to establishing the fact that there was violence in a state court and if that is established, that damages maybe assessed by the state court according to its local procedure and measure -- and laws of damage whether punitive or not, some states have (Inaudible), doesn't it -- if there is violence open the door to a cause of action on the basis of violence.
J. R. Goldthwaite, Jr.: I think it opens the door as the Court has held -- as congressional intent, plainly indicated to the control of violence in the interest of public peace and order in an emergency, but --
Felix Frankfurter: That is in Laburnum it is, is Laburnum an emergency?
J. R. Goldthwaite, Jr.: No sir. But there, now there in the Laburnum, the Court -- Your Honor's distinction as pointed out in (Inaudible) is that there was no conflicting remedy provided by the Act, while here that is a conflict remedy.
Felix Frankfurter: That is the back pay as you urge.
J. R. Goldthwaite, Jr.: Yes sir. Well it's back pay and it's jurisdiction of the Board over all of the rights involved, the right of the employee to work during a strike, the right of the employee or the employees to engage in a strike and picketing the extent of which that is concerted activity, lies in the best of the Board to say what is federal protected activity, how far does it go? When are the limits of it then exceeded and when do the excesses cause a loss of pay to an employee? Thanks.