Earl Warren: Number 25, on a docket, The Liquid Carbonic Corporation versus United States of America. Mr. Dwyer, you may proceed.
James F. Dwyer: May it please the Court. Yesterday, Mr. Justice Harlan asked me where in the record the Assistant Attorney General had indicated that he believe that if the judge granted an injunction of what constitute a modification of the decree, that colloquy will be found at page 6 of the record and I think that in conjunction with that, in fairness, you should read what Mr. Karsted later said at page 36. That was the second hearing, and while on the -- at the first hearing, he felt that the -- an injunction would constitute on unwarranted modification. After he returned home to Washington, he changed his mind and then informed the Court that he thought that an injunction would not constitute a modification, and it's at page 36 that he so informed the Court. Now, before proceeding with my argument, I would also like to refer to a -- a portion of the record which I think bears upon the question that Mr. Justice Frankfurter asked yesterday as to what implications could be drawn with respect to Liquid's consent to the decree, and I said that such implications could be drawn as only we're consistent with a limited language used in Section 9 (e). And I said further that I thought that the district judge had no power to resort to the philosophy of the Sherman Act or the allegations of the complaint. And down at -- at -- fully on 53, in the middle of the page, page 29, the judge asked me, “Was the purpose of that,” that is of Section 9 (e), “to furnish new competition in an area whereby agreement between the parties,” it was determined not decided, “but determined that Liquid exercised a degree of monopoly,” and I rejected that contention and said that no such inference could be drawn. But nevertheless, that is the inference that the judge drew that we had been found guilty of a violation of the Sherman Act and I express again that there is no basis whatever for any such deduction. Now --
Speaker: (Inaudible)
James F. Dwyer: No findings of fact --
Speaker: (Inaudible)
James F. Dwyer: Yes, with an expressed statement that they -- the defendant had denied the allegations of the complaint. I think in large part, that followed the usual kind of decree that the Government asked the defendant to sign, except at various places where modifications occurred and Section 9 (e) is one of them, those places. Now, as I was saying yesterday, the -- the Court rationalized its order in this way. It said that the purpose of the consent decree was two-fold. First, to divest Liquid of its plants and secondly to bring competition into the area and opposition of course was that the purpose of this Section of the decree was to bring a competitor into the area and that we can send it to sell our plants on the assumption that the Government would find a purchaser. Although, we had pointed out, and this appears in the record, to the district judge that we have reminded the United States and reminded the judge in the course of the -- the negotiations on the consent decree, that in our opinion, these plants would not be bought by anybody who would operate them as to CO2 manufacturing plants. So, really, what was involved here when the decree was submitted was a contention on our side that these plants would not be sold but let -- we were willing to take the risk on our judgment on that point against the Government's insistence that they should have an opportunity to bring a competitor into the field. Now, --
Felix Frankfurter: Does -- does the record -- I do not know whether it should whether it should be entitled to consider it, but does the record disclose that there were --as we see these negotiations as to discern the included in the consent decree other than the form. Were there any preliminary office in store, all that kind of things?
James F. Dwyer: There was all of that, Mr. Justice Frankfurter, but I can't say --
Felix Frankfurter: Within the record?
James F. Dwyer: No, it isn't. It isn't.
Felix Frankfurter: Possibly that --
James F. Dwyer: No, actually --
Felix Frankfurter: -- rules, what we consider it we're in (Voice Overlap) --
James F. Dwyer: No, except -- except as it appears in the colloquy between the district judge and --
Felix Frankfurter: How could you which you've just referred? Is this the record?
James F. Dwyer: Yes, that -- that is in the record.
Felix Frankfurter: In which you indicated that probably, there would be no bias or compared as to what it (Inaudible)
James F. Dwyer: That's right. That's in the record, and they --
Felix Frankfurter: Where is that applied -- if you can --
James F. Dwyer: Yes, I can, page 15, at the top of the page, the principal paragraph. There, where I said to the district judge, Your Honor, I can say this in my own knowledge that I reiterate it to Your Honor, until the Government counsel and Mr. Stevens, who is my partner, even more than I. And we said the same things to Mr. Timberg and his associates. My recollection is that he said this to you, Mr, Stevens, that we knew from our experience that no person would buy the plant at Long Island City. He said it was a high-cost plant to operate and he said further --
Felix Frankfurter: (Inaudible), didn't you?
James F. Dwyer: We sold it, yes. We sold it. Not a CO2 plant --
Felix Frankfurter: You sold that -- this property?
James F. Dwyer: We sold the property and the reason, the reason for the -- for the Court agreeing to the appointment of an appraiser was because he recognized our argument that the real estate value of the plants might be much more than the value of the plants if somebody had to operate them for CO2 purposes.
Felix Frankfurter: All of these colloquy from which you are reading, we are in rather detailed discussion to the view within it in persuading the judge if you can't send a decree to which he presents digits -- by this -- like the, the argument or to have a consent --
James F. Dwyer: Oh, well, this of course was after the decree had been signed --
Felix Frankfurter: Not before -- is this how the -- on this issue --
James F. Dwyer: That's right. That's right, Your Honor, yes.
Felix Frankfurter: And not to be contemporaneous?
James F. Dwyer: No, it is not. This was after the Government brought the motion to compel us to sell the plant.
Felix Frankfurter: But -- but you're -- you're recalling here a set of time?
James F. Dwyer: Oh, yes. I'm recalling here what had occurred prior to the decree.
Felix Frankfurter: Before the Court?
James F. Dwyer: Before the Court
Felix Frankfurter: And that is not here?
James F. Dwyer: No, except as I recall it.
Felix Frankfurter: Okay. The Government doesn't question --
James F. Dwyer: I -- I don't --
Felix Frankfurter: I don't mean your -- I don't mean to judge the conviction and the right to be followed, a question of memory.
James F. Dwyer: No, they certainly didn't on this argument.
Felix Frankfurter: Is there -- is it -- do you happen to know the consent decree of time performed by the district judge or where the -- and it has to be satisfying with particularity?
James F. Dwyer: Well --
Felix Frankfurter: How was it to this case?
James F. Dwyer: He -- he signed that, I think --
Felix Frankfurter: Why do you make that for each -- from which you recall?
James F. Dwyer: Why did I?
Felix Frankfurter: Yes.
James F. Dwyer: Well, because the judge was -- was saying, I think of -- in the manner which precedes this. Well, as I recall or I think, when -- and then I was trying to refresh his recollection as to what --
Felix Frankfurter: Do you mean, as the matter, at the time of the consent decree was under consideration by the district judge, if he have to be discreet, if he have even reach them, require as to the decree to which (Inaudible)
James F. Dwyer: No. No, I can't say that he did. He was kept informed that we were having these negotiations and some of them took place in his presence. And from time to time, he asked us a reason for insisting on this or refusing to do that. But when the decree was presented to him, so far as I can now recall, he -- he signed the decree as -- as a Pro Forma Act. Now, the judge -- the judge said, “Well, since I can't compel a sale of the plant under this decree, I'll do the next best thing. I'll stop you from using it, and in that way, we will have achieved one of the purposes of the decree. Then, we will put Liquid out of business.” And now, any -- his decree has brought enough as I said yesterday to prevent us from using the plant for anything. We were in effect compelled to sell that plant as quickly as we can to avoid the cost of maintenance of the plant. So, he -- he then entered an order which he said, “Your enjoined from using this plant and I'll deny the Government's motion for an order of sale without prejudice to a renewal.” Now, the reasoning, it seems to me, becomes more involved on the judge's part, because in the first place, he said, “I can't compel a sale under this decree. I have no power, but I'm going to imply that -- draw the inference that I can require association of use.” And then, I asked him why. He gave a Government leave to renew a motion, to put an order of sale when he's denied it, and his reasoning run this way. He said, “Well, the Government has said in a brief that an injunction might involve it in a -- in a difficulty of policing, see that we're obeying it.” And he said, “So, I then decided that if you didn't obey, they should have a right to come in here and ask me for an order of sale.” In other words, he deemed it that and within his power of punishing for a contempt, should we disobey this order which had not yet been ended, that he could compel to us sell the plant? The power which I think can't be found in -- in the equity powers of the Federal Court. Now, it is our position that no searching for sustenance of power such as he endeavor to find here, going to the pleadings, going to the philosophy of the Sherman Act is permissible. And we say that such an attempt is in -- it -- it contradicts the language of this Court in the Ford case. Your Honors will probably recall that in the Ford case, Ford had agreed to disaffiliate itself with a finance company, on condition that the Government should within a specified time compel General Motors likewise to disaffiliate, and a consent decree was entered on that basis by the Government and Ford. And for years, thereafter, the Government let lay a -- an action in the federal court against General Motors, didn't prosecute it. And in Ford, a mode in -- in the District Court for an order releasing it from the shackles of this restraint that had been placed upon it. The district judge denied its motion, gave the Government more time and this Court reversed the -- the District Court and required an order to be entered releasing Ford from the restraint. And in connection with that release, this Court said that the district judge had no power to resort to the allegations of the complaint, because there, the district judge said, “Well, Ford in effect is -- is guilty of a -- of a violation of the Sherman Act,” but this Court said, “No such finding is permissible, because the decree was a consent decree.” That's the situation here. There's no finding that we have violated the Sherman Act. Now, I would like briefly to go over the subsections of -- of this Section 9 (e) to show, Your Honors, that there is no possibility of an implication of a right to issue an injunction. Now, that -- that consent decree is in the record at -- what page is that one? Yes --
Speaker: Page 83.
James F. Dwyer: Page 83, yesterday I cited. Now, subsection 1 of that Section states that within one year from the entry of the decree, Liquid showed dispose of the plants, quote “pursuant to the terms and conditions of this Section 9.” Now, it's not worthy that the plants includes not merely real-estate buildings and production equipment, but also production and sales records, which indicates that the plant was to be sold to somebody who would come in and operate it for purposes of competition. And subsection 2 provides that the plants shall be sold through a trustee forthwith. Now, terms of office were to be one year with the right of the Court to extend it, whenever a showing was made that there may be persons who have an interest in operating the plant. As I said, his time was extended and he was unable to find anybody who would operate the plant. Section -- subdivision 3 is designed to protect us from his for sale at an adequate price and as you will see, to bring a new competitor into the area. It provides that the purchase price shall have a -- do regard for the evaluation made by the Court appraiser and that the plant shall not be sold to anybody who is connected with this defendant or with any of the other defendants in the action and -- and only to a person who will operate the plant for CO2 purposes. And subdivision 4 requires us to maintain the plants at our customary standards until sold by the trustee. Now, the judge -- now, the -- the Government of course insisted that -- that a sale of this plant would have the effect of -- of precluding us from selling or from operating within this area. That's the very basis upon which this order is found. Yet, that is a -- a truly erroneous conception because if the judge has power to enjoin us, then under Section 9 (g) of this decree, we can instantly commence the construction of a new and larger plant. So, obviously, it wasn't the purpose of this decree to put us out of the carbon dioxide business in these two areas. The main -- the purpose and the real purpose was to bring a competitor into the area. Otherwise, why would Section 9 (g) permit us to come in and build a new plant? Now, the -- the decree or the order of the judge in this case, also is in contradiction to this Court's decision in the Hughes case. The Hughes case or the consent decree required Hughes either to sell his stock in one of the two companies. That is the -- the distribution company or the production company or to put the stock in a voting trust. He put the stock in a voting trust and then the United States came into the District Court and said we want the -- the stock sold because Hughes is -- is -- has an -- has an interest in the other phase of this business. The -- this Court refused to order Hughes to sell the stock.
Stanley Reed: Where -- where is it you cite the order that was entered, this last order.
James F. Dwyer: The last order, yes, sir. The order that was entered. It's at page 96, I believe. That's the order appealed from.
Speaker: (Inaudible)
James F. Dwyer: Starts at page 96 and runs over to page 98.
Earl Warren: Thank you. Mr. Davis.
John F . Davis: If the Court please. Since this case in effect turns upon the construction of the original decree, I propose to start with the terms of that decree. And I would call the Court's attention first to Section 13 of the decree which appears at page 90, 9-0 of the record. Section 13 provides, jurisdiction is retrained for the purpose of enabling any of the parties to this final decree, to apply to this Court at anytime for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this final judgement. Now, for the modification or amendment of any of the provisions thereof, the enforcements or compliance therewith and punishment of violations thereof. I call the attention to this because this is the reservation of jurisdiction in the District Court pursuant to which the Government asked for this relief. And it makes very clear that the parties themselves consented to appropriate modifications, appropriate constructions, appropriate orders -- orders for carrying out. There is no -- there is no doubt that both the Government and Liquid Carbonic agreed that under appropriate circumstances, the Court should have power to make modifications.
Speaker: What do you mean by appropriate circumstances?
John F . Davis: That I -- I presume is the question, the basic question, is this an appropriate modification, is this an appropriate construction? And I would think that an appropriate modification or construction was one which fell within the initial consent of the parties, but since the decree itself is based upon the consent of the Government and the defendant in the case, the modifications must in turn the based upon that consent. And so, it must fall within the scope of the initial consent. Turning from that, I turn to the Section which is directly involved in the decree. That's 9 (e) of the decree which appears at page 83. I may say that this is a suit which was brought against this defendant and several other defendants who are manufacturing carbon dioxide and dry ice, alleging monopoly and restraint of trade. And with respect to this defendant, it was specifically alleged that Liquid Carbonic, one of the -- one of the actions complained of was that Liquid Carbonic had acquired a certain number of additional plants leading to monopoly. So, it was -- it was natural that in the decree, there should be provisions for divestiture of -- of some of these plants which was alleged had resulted monopoly. Section 9 (e) deals with that particular subject. It starts of by providing that within one year from the date of the entry of the final judgment, “Defendant Liquid shall,” pursuant to the terms and conditions of this subsection (e), “dispose of as complete units its existing plants at Long Island City in New York and Indianapolis, Indiana, a divestiture provision, a provision that they should get rid of these plants.” But not consent -- not content with merely honoring divestiture as a finished twist to this particular section of the -- of the consent decree which required not only that they divest themselves of these plants but that they sell them to potential competitors so that there could be active competition in these particular areas unless a reduction of the monopoly. And that provision contained in Section 3, subsection (3) of this 9 (e) which states that the trustee shall dispose of these plants to persons who will manufacture on carbon dioxide and dry ice or both. In other words, an attempt was made to force the defendant to sell to competitors. Now, as Mr. Dwyer has told you during the year and a half following the decree, the trustee was unable to make this decision of these plants in accordance with Section 9. Unfortunately, the decree couldn't say what was going to happen when that -- when that occurred. And so, when it became --
Felix Frankfurter: Well, suppose it didn't require much imagination to contemplate that intention?
John F . Davis: I -- I think it didn't, but as the parties -- whether -- in any event, the parties made no provision for it and the question then was, did that mean that nothing happened or did it mean that the divestiture should be carried through in some other matters? And it was defined better that the Government went to the Court and said that we haven't been able, the trustee hasn't been able to complete the sale in -- in accordance with Your Honors order is the decree to be frustrated. They -- are we not to get -- there's nothing to happen or is something to happen and we asked that -- the Government asked in that case that it be sold without being sold to competitors, that it be sold for real estate value or for any other thing, just divested. It seeks to be used to reduce the monopoly.
Felix Frankfurter: What other things would happen apart from this -- these forfeitures? What other strict limitation based upon petitioner by the decree?
John F . Davis: Well, there were many. There were many restrictions about dealing with --
Felix Frankfurter: Other matters.
John F . Davis: -- other matters. But as far as this divestiture, this is the only section that's -- so far as I know, which deals with divestiture as such, producing the number of plants that's involved. The others deal with agreements and prices and -- and competitive arrangements with -- with the other --
Speaker: Are they dealing with productions?
John F . Davis: With production?
Speaker: Volume production?
John F . Davis: It's all in 9. There is the provision in Section 9 (g) with respect to increasing the total number of production units.Such appears at page 85, Your Honor. That's the same section as Section 9, but 9 (g) deals that this -- that Liquid shall not increase the total number of productive units.
Speaker: Nothing about decrease in the total?
John F . Davis: Not -- not to my recollection, Your Honor.
Speaker: Well, these provisions of sale in the -- as this continued to the plants is a method of decreasing production.
John F . Davis: That is right.
Earl Warren: But what is the main thrust of this Section (e) that you'd be -- then reading? Is that for the purpose of producing production or is it for the purpose of the increasing competition?
John F . Davis: It is for both purposes, Your Honor. The first purpose, it starts of by saying they shall dispose of these plants.
Earl Warren: Well, what language in -- in that indicates that it is for the purpose of decreasing their production?
John F . Davis: There is no language to that effect, except the order that it -- that they shall dispose of these plants in accordance which automatically results in -- in a reduction of production.
Earl Warren: Well, it wouldn't -- it would result in -- in reduction of their production, but the Government wanted -- wanted the plants to be used for the production of -- of sale too, didn't they?
John F . Davis: They wanted competition in the area. Yes, that's right. They wanted them to be sold to competitors.
Earl Warren: Wouldn't that be the main reason for (e) then?
John F . Davis: Well, that's -- the -- the main -- that is really the question before us, Your Honor, whether there was one reason, two reasons or a combination of two reasons. Now, I submit that -- that --
Earl Warren: I wonder why the Government wouldn't -- wouldn't have put in that decree if it intended to close them out in the event they couldn't solve. Why they wouldn't say so?
John F . Davis: Well, it -- it may be the matter of dropping. They start in by saying they shall dispose of these plants. And then, they spelled out a method of disposition and it may have been an oversight not to state what happened if they didn't dispose of them in that way. That -- that must be our assumption, my assumption.
Earl Warren: But they have provided in the decree that it should only be sold for fairer value that they should have an appraiser, recognized appraiser to appraise it and there's the aim that that contemplates a fair market value of -- of these plants as a growing concern. That's the said value of it if it's closed out.
John F . Davis: Well, that's --
Earl Warren: Is there any language that do indicate that they had any other intention on that?
John F . Davis: No. The -- there is no language in the decree itself. In order to determine, however, the -- the purpose in this decree, I think we have some help because of the fact that the judge who signed this decree after what he says is months and months of conferences, hours and hours of dealing with this matter has stated that it was his understanding that the consent of the parties to this disposition was for these two purposes. And he states this specifically in his -- in his opinion in this case that he believe there were two purposes involved in this -- in this particular Section 9. One, to require a sale to cut down on the productive capacity of the defendant, and two, what I call that the twist that was given to it, not only that they should sell them, but that they should sell it to a potential competitor. Now, the Court, -- naturally the parties for this consent decree, look at this -- looking at this thing from hindsight will disagree as to what the -- what the intent was. We each see it, see the intent from our present argument, but the Court who was then in an impartial position and who was passing upon this matter of a court order from the point of view of protecting the public, carrying out the purposes of the Act, the judge believed that the consent of the parties in this case was to achieve these two objectives, and that is specifically found as I say in his -- in his opinion in this particular case.
Felix Frankfurter: Mr. Davis, did I understand you to say that the Liquid Carbonic was one party to the original complaint --
John F . Davis: That's right.
Felix Frankfurter: -- original complaint as against the number of the people engaged in this industry?
John F . Davis: That is right.
Felix Frankfurter: That was -- was the complaint set forth in a dominant position of Liquid Carbonic?
John F . Davis: There were -- no. Well, it -- I don't think it does the dominant position. It's mentioned that there two companies. The complaint, by the way, is set forth in pulling the record starting at page 46. And it mentions two national companies, Liquid Carbonic and I believe the other was Pure Carbonic Incorporated who had the factories throughout the United States. And I don't believe there is any allegation or any attempt to prove that Liquid Carbonic was anymore predominant in the field than Pure.
Felix Frankfurter: And -- and so far as Sherman law violation was charged in the complaint, was the complaint made clear the -- the relation or the significance with these holdings with the holdings of these properties to the things you complained about originally?
John F . Davis: It -- it alleges acquisition of additional facilities for the manufacturer in an attempt to monopolize beginning and I believe the year 1932, although I'm not quite sure, I think it's in 1932 and naming for Liquid Carbonic and Pure, the acquisition of a number of properties. Now, I must confess that I cannot, from this record, identify these plants for these companies which are -- which are required, but I --
Felix Frankfurter: Is there anything else to the -- as before, to some implications of the Chief Justice's question? Is there anything that indicates the importance for the Government to have -- to be sure that competitors pursue of this eminence, but the lead of these commodities as against a reduced output from the point of view of the national economy, anything on that subject?
John F . Davis: The -- the complaint itself refers to the importance of dry ice and carbon dioxide, both gas and liquid in industry and from refrigeration. And there are some indication, which I refer it doesn't -- isn't helpful -- particularly helpful to me, but -- that a carbon dioxide was in short supply at least at the time the action was -- was commenced.
Felix Frankfurter: If that so, that is relevant.
John F . Davis: Yeah, that has some relevance. There is -- the argument that is made as to the -- the -- I may say this to -- as to the Long Island Plant that the Long Island Plant was not used for the production of either carbon dioxide or -- or dry ice at the time of this decree. I think that's right, it --
Earl Warren: The time in --
John F . Davis: -- it was ceased very soon afterwards anyway.
Speaker: What's -- what's the (Inaudible) --
John F . Davis: It ceased very soon afterwards. It wasn't an economic plant and there wasn't any real reduction in the -- in the supply through that plant.
Harold Burton: Mr. Davis.
John F . Davis: Indianapolis, I think was and still is in production of both carbon dioxide and dry ice.
Harold Burton: Mr. Davis, you were to get any help from the fact that in providing for future plants or the acquisition of plants that they should not be acquired within 400 miles of the central area, thereby, indicating something about a 400-mile area that was (Inaudible)
John F . Davis: That -- that is right, Your Honor. I think that is an attempt to keep them from building up further monopoly then require not to build within 400 miles of existing plants. And as far as the Long Island goes, there was a plant in -- in New Jersey. I'm not sure what the nearest plant in Indianapolis, Your Honor.
Harold Burton: And therefore, you take the position, I take it from there that within the 400-mile area, there must either be a competition or else a less number of plants, is that it
John F . Davis: That's right, but I --
Felix Frankfurter: How does that -- how does that follow that because you don't want an increase, therefore you should decrease?
John F . Davis: Well, actually on the record that comes from us, we don't know the business, the facts of the business life of this -- of this carbon dioxide and dry ice business. I -- I must assume in the absence of -- of knowledge to the contrary that if there's a vacuum, if there's a reduction in production by these people and they demand parts that it will be filled by competition. I mean that manufacture of dry ice from carbon dioxide has been going on for many, many years and it's a matter of --
Harold Burton: Mr. Davis --
John F . Davis: -- supply and demand.
Harold Burton: -- could this decree that was last here in this modification has been entered in the first instance?
John F . Davis: Yes, Your Honor. It could have been entered in the first instance.
Harold Burton: As a part of the order in the first instance?
John F . Davis: It could have been, yes. And then --
Felix Frankfurter: What if they consented this.
John F . Davis: If they -- if they have consented to it, we wouldn't have any lawsuit today. I mean, we have this question if whether or not this is implicit really or whether it is basic to the original order so that it is proper now to impose this obligation. If it's been done specifically and there's no question that it could have been done specifically if -- if the parties have agreed to it by -- we just would have no lawsuit.
Harold Burton: Is it your position then that this reservation under 13 reserved that power?
John F . Davis: It reserves the power to make --
Harold Burton: To make where it could have done?
John F . Davis: That's right. What -- what they could have done, what the parties in essence were in agreement -- in agreement on. It has to have been something which was comprehended within the original agreement. The -- the position of Carbonic is that the sale to a competitor was really a condition of the order to dispose of these plants. That -- that I think is -- is a peculiar -- peculiar argument because it is -- it's unusual to -- for a person against to whom an order is issued to make a condition which adds a hardship adds an additional sanction against them. This is, if -- if you're going to spell out what they claim the original order would have said. It would have said, you are ordered to sell these plants -- we -- no. We agree that these plants shall be sold, but we agree that they shall be sold only if they shall be sold to competitors. That would be the way they'd have to -- to interpret the consent of Carbonic. We agree that -- that these plants shall be sold, but only if they are sold to competitors. Well, that's an -- that's an odd side of the condition. Ordinarily, if one -- if one condition to his consent, he conditions it by some ameliorating factor. Perhaps if he had said, “We agree that these plants shall be sold, but -- but not to competitors.” That would be a condition which would -- which would have some -- some reason in it.
Stanley Reed: What -- what do we know about the competitions around New York areas?
John F . Davis: We know that there were no other plants at that time in Long Island.
Stanley Reed: Yes.
John F . Davis: We know that there were other plants appears from the colloquy and then in this -- in this record that there were other plants in or near Indianapolis.
Stanley Reed: When you say Long Island, is that --
John F . Davis: Long Island City, excuse me. That's where that plant is.
Stanley Reed: Because that solved the whole New York area?
John F . Davis: No. The Liquid Carbonic we know served this area from a plant in Belleville, New Jersey.
Stanley Reed: I don't think that that suggestion --
John F . Davis: I don't know that appears from the record what the competitors in the New York area are. I don't know that it does. The -- the attempt was to build up that competition, I -- I think.
Earl Warren: Mr. Davis, when the Court undertook to you this implied power that -- that you say was there to order close this Long Island Plant, does it give the company a hearing on the effect upon Congress, the effect upon their business or both? What the result of this action will be?
John F . Davis: Well, this is the procedure that was followed. There was a motion filed by the Government. It was filed in December of 1953 for this modification. Note -- a note is given to the -- to the defendant. The defendant submitted some affidavits with respect to it and there was oral argument before the Court, in January of 1954, about a month after the -- the order was -- the notice -- the motion was made. Then, the Court held it under consideration for quite a long time and came out with this -- with an order for the injunction rather than disposition and Liquid Carbonic said, “We weren't prepared for that. We want a re-argument.” And it was given a re-argument in June of 1954. All told that was -- there were two long arguments before the Court. There was one deposition affidavit introduced by the -- by the defendant. There was a period of about eight months in there. Liquid Carbonic did not request the opportunity to introduce other evidence, and indeed, it hardly seems that -- well, I'm not sure there are any factual matters that the Court felt needed to be discussed. The Court had the -- the Court interpreted its original author as being -- as including a sensation of operation of these plants. It said, that's what we intended to do in the beginning. We intended to stop production from these plants, but we intended to do something else. We can't do anything else. We certainly want to do at least this. We want to stop the production. And so, the Court felt that there was no -- probably felt there was no need for any further evidence.
Earl Warren: And no request by the company (Inaudible)--
John F . Davis: And no request by the company (Inaudible)
Earl Warren: (Inaudible)
Speaker: Mr. Davis, this feature of the modified decree is something that the Government did not ask for itself, isn't it?
John F . Davis: No. No, the Government asked for a sale by the defendant itself without the restrictions of being sold to competitors. The Court felt that --
Speaker: No, but the Government didn't ask that alternatively, the defendant should not be -- should be enjoined from using his (Voice Overlap).
John F . Davis: No.
Speaker: That was something that the Court came up within its own motion?
John F . Davis: That's right. The Court felt that that was a less stringent requirement that to require a forced sale might cause a hardship to the defendant and that the same object could be achieved by just causing a cessation of the use, which would of course lead to -- presumably lead to a sale, but a sale by the defendant in his own kind and on his own terms.
Felix Frankfurter: Mr. Davis, what are the differences? Is there any like the difference between selling this thing as a growing concern from selling as where you see judgment (Inaudible), a bit possible?
John F . Davis: Well, as far as the Long Island Plant is concerned, there's an indication that it was worth more for real estate purposes than it was for dry ice plant. There is no indication as to the comparison of value with respect to Indianapolis.
Felix Frankfurter: That wasn't a profitable plant?
John F . Davis: That wasn't placed and -- and Mr. Dwyer told the Court that the Indianapolis Plant was also a -- I think it said a high cost producer or an older plant or something. When he was saying that it was difficult to sell to competitors, he was implying that it would be -- it would have been easier to sell without that limitation.
Felix Frankfurter: The evidence is more profitable to keep it going to produce and sell it, really --
John F . Davis: That is right.
Felix Frankfurter: -- so I can move to get off.
Speaker: Mr. Davis, wouldn't you agree also that this type of limited divestiture sell only to competitors was an unusual type of consent decree?
John F . Davis: Yes, I think so. It's -- it's really -- as I say, it's a finished device. You will not only make the man stop using it, but you make him help somebody else to compete with him. It's a -- it's a very stringent sort of thing.
Speaker: What would it indicate that there was a -- it might be a purpose to work rather than an unusual form of consent that they were divestiture sought and there's no such limitation to put in?
John F . Davis: It certainly is, as an indication that it was meant to cut down on the monopoly position of -- of Liquid Carbonic in these areas that it was meant to build up competition not only by making an opening for competitors but by aiding them by giving them plants in which they could produce.
Stanley Reed: We know nothing about the situation in Indianopolis.
John F . Davis: We know that they -- that they are producing. They adapted the plant is -- is still producing dry -- carbon dioxide and dry ice there. Liquid Carbonic is still using the plant in that area.
Stanley Reed: But what is the best storage (Inaudible)
John F . Davis: Well, I -- I haven't -- I think this record shows nothing about the value of this property, either is going concerned or for real estate value to anybody else whether it's a particular value of the Liquid Carbonic. I -- I think that we can assume that the trustee, attempting to sell the thing for a year and a half, if it had been a valuable plant to somebody else that it would have been solved because that was a --
Stanley Reed: To know whether Liquid Carbonic has other plants, I mean adversary?
John F . Davis: They don't have it in -- in Indianapolis, but there is some indication that they could serve the area and that they were increasing capacity of -- of production in another area so that they would still be able to serve it, but --
Stanley Reed: That's the principal point.
John F . Davis: That's right. Then, to -- to summarize where we came up, the real -- the real issue in this case is whether or not the consent of the parties which presented to the -- which was given to this original decree, really comprehended. This was large enough to include this order which has since been issued by the Court. Fortunately, the -- the authorities in this Court appeal when they're clear, the modifications which are proper must be modifications which are designed to carry out rather than to frustrate the initial purpose of the decree. That is what was specifically stated in the -- in the Chrysler case and there was no statement in the Ford case that drawn away from -- from that legal concept. The question is will this order which is now requested carry out what the parties intended at the time they consented? Will it carry out the purpose which the Court, and we must remember that this isn't merely an agreement between parties, this is an order of a Court designed to carry out a public purpose expressed in the antitrust law. Well, the order which is required carry out the intent which the Court had in issuing the initial order.
Stanley Reed: Is it the Court or the parties?
John F . Davis: The parties and the Court. I mean, there's a tried part arrangement. The party's consent, but the party's consent is of no effect unless the Court finds that this was an appropriate decree in the consent decree case.
Hugo L. Black: In that connection, is it proper to assume that what this particular party agreement really was that he was willing to sell this company even to competitors so long as he lost that?
John F . Davis: I think that's right, as long as it was sold at a fair price. I don't --
Hugo L. Black: Can we assume now that in the change, he is bound to lose more than what (Inaudible)
John F . Davis: No. We certainly can't assume his bound to lose.
Hugo L. Black: Can we assume that he won't?
John F . Davis: But I don't think we can make any assumption one way or the other. We just don't know.
Hugo L. Black: Well, then, he might under this without a hearing. This might subject him to a law which was not concentrated by him at the time the evidence is clear.
John F . Davis: Well, I -- I think that from this record, it appears unlikely that that is sold since certainly with respect to Long Island --
Hugo L. Black: Well, I understand that but is that the evidence that (Voice Overlap) --
John F . Davis: Well even as to the other, I --
Hugo L. Black: If -- if it appears in the record, I'd like to see it because it seems to me that's wrong.
John F . Davis: Well -- well, I refer again to the same section that Mr. Dwyer referred to on page 15, where he said, “We said that --first it speaks to the Long Island Plants and I think Mr. Dwyer was interrupted before he read the next sentence which said --we said that it was a high cost plant to operate,” and we said further that the plant at Indianapolis was not a modern plant and that it likewise would not be sold readily to a purchaser who would operate it to CO2 purposes, which would indicate to me that it is more valuable for other purposes than for CO2 purposes, to -- to a purchase anyway, maybe not to Liquid Carbonic but to a purchaser.
Felix Frankfurter: I must say that -- that -- as I assume to pick -- pick that in an accurate recollection to what he said. May I do that?
John F . Davis: I -- I have no -- no doubt that it was. There was no question raised about it.
Felix Frankfurter: Well, if that was sold, I must say that it puzzles me that if the likelihood of inability to settle this problem, but before the parties and before the Court or before the Government that presents it, I'll repeat that actual victims will file a motion which require more than we'll suggest an imagination to say, well, let's provide it with attachment.
John F . Davis: The -- apparently, the Government and the Court believed that these properties would be saleable. Otherwise, they wouldn't have issued an order and spend a year and a half trying to sell them.
Felix Frankfurter: Well, then --
John F . Davis: As far as the defendant goes, it might have been like teaching the sultan's pig how to fly. I mean, it may have been a matter of just postponing the evil day for this -- for this period of time.
Felix Frankfurter: Well, but what if somebody who is knowledgeable say that the likelihood of a selling to his competitor (Inaudible) I shouldn't think the Government or even the Court (Inaudible) of their judgment that they bring me notice of what happened because in any event, it doesn't happen. They will have to make the best picture or anything --
John F . Davis: That's right, but the --
Felix Frankfurter: And that seems to be (Voce Overlap) --
John F . Davis: They started the -- they started the order by saying they shall sell this. Now, that's the way 9 (e) starts. They shall sell these properties.
Felix Frankfurter: And there's a provision of health issue there.
John F . Davis: And then, in order to -- in order to give the additional, first, they added how they should sell it and they didn't go back and say and if they can't sell it this way, they shall dispose a bit in some other way. And our question is did they -- did they intend that nothing should happen that the -- whatever monopoly existed should continue if they couldn't sell in this -- in this way and that just seems to be an unreasonable construction of the -- of the original consent.
Felix Frankfurter: I don't know. I don't know because I don't know enough about the interesting well down the hole. The Government might not at all, more than (Inaudible) Somebody should produce with these plants and that they could be shut down.
John F . Davis: Well, in view of the nature of these plants, it doesn't -- It doesn't seem that that is likely.
William O. Douglas: In order -- what's the point (Inaudible) didn't take care of the situation (Inaudible)
John F . Davis: That is right. The Court felt that that was a -- a less stringent requirement and that it fulfilled all the -- all that the Government needed. The Court would have been -- if -- if the defendant had wanted to sell, he would have had no objection to ordering a sale, but a force sale might cause a loss and he said, “Government would get all it needs if you don't use the plants,” so that 's all we're left to do.
Earl Warren: Mr. Dwyer, would you in just a minute of so to state your position on due process so far as the failure to accord your company any hearing on this modification of the party.
James F. Dwyer: Yes. We were served merely with a notice of motion for a construction of the decree and we opposed it on the ground that the Court had no power to order a sale from the language in the decree. And -- well, I think you will find in the argument that -- and in the briefs that we submitted. We pointed out that any sale now would constitute a modification and the minimum that we're entitled to was a hearing. The Court would have to have witnesses before it to prove how competition was going to be effective if the plants were to be sold. We had no such hearing. The Court in his opinion felt -- thought that it was entirely unnecessary with just a matter of construing this language. We pointed out to him that carbon dioxide had been used to more industries. It was used in hospitals that he'd have to take into consideration what the effect on the economy around the Indianapolis area would be. But he seemed to think that that was not necessary. We think that due process requires the Court to give us an opportunity or rather to -- to -- an order, that such an order may be ended. That the Government proved that there is some relation between the wrongful act alleged in the complaint and the relief which they're seeking.
Earl Warren: Thank you.
Speaker: Could you -- before you sit down, could you give me the page of the record where the discussion takes place about whether we or we're not entitled to a hearing? Well, don't hold up on it if you haven't got any --
James F. Dwyer: Well, I -- I think I can't find it.
Speaker: Never mind now.
James F. Dwyer: I'm -- I'm sorry, Mr. Justice Harlan. I can't pick it out readily in this record.
Earl Warren: Perhaps you could send a memorandum to -- to Mr. Justice Harlan if you will consider.
James F. Dwyer: I'll be -- all right, I would be happy to do that.


Warren E. Burger: We’ll hear arguments in Number 123, International Brotherhood of Boilermakers against Hardeman.o
Louis Sherman: Mr. Chief Justice and may it please the Court. This case is here --
Warren E. Burger: We’ll just wait. We’ll just wait one moment counsel. Before we undertake this argument counsel, I think we can announce that we will not reach Number 62, Monitor Patriot against Roy today, and if counsel wish to be excused they may be. Have you sent for Justice Douglas? We’ll just wait the arrival of Justice Douglas, a moment. You may resume your sit for a few moments. Mr. Sherman you may proceed now whenever you are ready.
Louis Sherman: Thank you. Mr. Chief Justice and may it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit to review a per curiam opinion affirming a decision, the judgment and jury verdict of the District Court in the amount of $152,500.00. In favor of George Hardeman, an expelled member of the Boilermakers union, who filed a complaint in the Federal District Court April 1966 under Section 102 of the Landrum-Griffin Act alleging that he’d been deprived of the full and fair hearing under Section 101 (a) (5). The evidence at the District Court trial was of two kinds. First, the various proceedings before the union tribunals, such as the 172 page transcript of record, of the hearing that was held which resulted in his expulsion, which went in to the details of his beating up the business manager, which is the principal reason for his expulsion, and the proceedings at higher levels when the case was appealed to the president of the International and the executive counsel of International. The second evidence had to do with loss of wages which are computed on the basis of past and future. Mr. Hardeman was 43 when this incident occurred in October of 1960, and they figured it on the basis of mortality tables that he would retire at 65, $6,000.00 and therefore plus some punitive damages that came out of this total figure. Now, the first part of the case has to do with the issue of full and fair hearing which is set out at page 2 of our brief, the language of Section 101 (a) (5) of the Landrum-Griffin Act, which states that “no member of any labor organization must be fined, suspended, expelled or otherwise disciplined except for non- payment of dues, unless its members been (a) served with written specific charges (b) given the reasonable time to prepare the defense (c) afford with a full and fair hearing. There’s no issue here on the written specific charges they were made, whether he’s given a reasonable time to prepare his defense. The issue is whether he is afford to full and fair hearing. In the literal sense, there should be no question of that either, because the hearing took about ten hours, there were witnesses, cross-examination and the rest. We concede full and fair hearing means something more than that, that there must be some evidence to support the charges. And we think that the trial judge erred and this Court of Appeals erred in a way that’s very important to the labor movement at finding there was no evidence. The essential charges had to do with the bylaws of the local union which was set forth at page 4 in the language of the constitution of the Boilermakers relating to subordinate lodges. A first test of the bylaws, they’re very explicit that the local could after proper hearing, punish as warranted by the offense for violation which is defined as “violence, a threat thereof to intimidate any official of this international brotherhood a subordinate lodge. Prevent or attempt to prevent him from proper discharging his duties of his office.” And the language of the Subordinate Lodge Constitution was broader. It provided for expulsion for any member endeavors to create dissention among the members, or who works against the interest and harmony of the brotherhood. Now, there’s no question about the evidence in my judgment as to the bylaw. We have a clear statement not drawn by opposition witnesses but by Mr. Hardeman himself in the union case. This is the case before the union judges, if I may use the expression. But I think it might be just rather read it literally. He was unhappy about the way the business manager was administering a referral system as far as his own particular problems were concerned. Like some other people, he was thinking in terms of a quick instrument of change, violence. So he’s sitting there in the union hall, and this is his language at page 25. ”I tried to make up my mind what to do whether to sue the local or Wise, who is the business manager, or beat the hell out of Wise. And then I made up my mind.” Now, that would seem to be pretty good evidence of violation of the bylaw. The district judge in his charge to the jury, which is set forth in our appendix.
Speaker: What did he do pursuant to the --
Louis Sherman: I beg your pardon?
Speaker: What did he do?
Louis Sherman: He did exactly what he had in mind, which was to beat the business manager.
Hugo L. Black: He did what?
Louis Sherman: Beat the business manager, physically assaulted him. He didn’t choose the more peaceful method of suing, of going to the joint referral committee which existed for complaints of the sort he had in mind. He beat him until he got some kind of statement that satisfied him that Wise wouldn’t jump at anyone on the list. That was the issue between them. Now when it got to the District Court, of course, if you get the time relation straight, the incidents occurred in 1960 and this case was before the Federal District Court in 1968 I suppose when the trial took place. Complaint was filed in 1966. And if I may be indulged, I’d like to read the statement of the charge which is at our appendix page 37. This is the Federal District Court, now there maybe and I’m not ruling on it one way or the other, but I will say this that there is evidence in here which might support a finding of guilty under Section 1 of Article XII, the Subordinate Lodge By-Laws, where the trial body said “We find him guilty; we recommend that he be expelled.” They didn’t say “We find him guilty under either one section or the other.” They said they found him guilty as much as nothing here which will support a conviction under this section, and I think the verdict cannot stand, and he’s being convicted a felony which was expelling him. And I think in as much there’s no evidence which will support finding of guilty under this, of the finding of the board was erroneous and cannot stand in that respect. Now, that is all charge, for those two sections and there’s nothing in this record that would just to -- finding him guilty under those sections. Now the use of the phrase “those sections” sounds like he’s talking about both sections. It’s very difficult to understand. All of it is about the fight. I’m telling you as a matter of law that under the proof for finding its result it's being expelled, can I legally stand, therefore he is wrongfully expelled. Now the second issue before the union tribunal was a question of the violation of the Subordinate Lodge Constitution dealing with dissention, a work against the interest and harmony of the lodge. But we think that in terms of the normal relationships between the courts at union tribunals. If union tribunals are to be permitted to function in accordance with the realities of life recognizing that they are not literate and skilled lawyers that there must be some recognition of whether they have done justice in the real sense, or whether they have engaged in handling a trumped up case or something of that sort. There’s nothing trumped up about this case. Counsel for Mr. Hardeman admits in his brief that he should’ve been disciplining because of the question about the punishment. But this question of dissention -- working against the interest and harmony of the lodge, the local trial board found him guilty on that account. Now those are general words, but we think it was reasonable for the brothers to define dissention and harmony the way they did. We think that the process of reasonable inference is available to administrative tribunals, and therefore, it certainly should be available to working people who are trying to work out their problems of maintaining the integrity of their institutions. What could be more calculated to cause dissention than a fist fight? Now this wasn’t just a fist fight between two Boilermakers. It’s a fist fight in which one Boilermaker, the soul the business manager who was not a very important fellow in this world, but on the little --
Speaker: What happened to the other charge?
Warren E. Burger: The intimidation?
Speaker: Intimidation.
Louis Sherman: Well, he was found guilty as charged. It was meant that he was found guilty on both counts by the local body.
Speaker: Well, do you defend this only on the, or do you attack this on the other basis of steering up trouble in the union?
Louis Sherman: No, I defended on both counts. I considered that there was adequate evidence, certainly was some evidence. I feel as a matter of fact under the most strict rules, there was definite evidence of violation of both of the --
William J. Brennan, Jr.: If you’re right -- if you’re right to be prevail and only -- you don’t have to --
Louis Sherman: I know that.
William J. Brennan, Jr.: You don’t have to win on both do you?
Louis Sherman: That is correct Your Honor. We’ve cited Burke versus Boilermakers which pointed that it’s sort of silly to expect unions to say “Guilty as charged on count one. Guilty as charged on count two.”
William J. Brennan, Jr.: Well, whether that meant guilty as to dissention or guilty of under the -- I mean other charge of intimidation.
Louis Sherman: They meant --
William J. Brennan, Jr.: This is evidence on either I gather your position is you win.
Louis Sherman: That’s correct because the language of the bylaw is this broad that it omits the punishment of one by the offense. And therefore, expulsion which Congress recognizes a legitimate punishment. They recognized in the Landrum-Griffin Act. They recognized it in the Taft-Hartley Act. Certainly, even if the one on dissention fell out, then the punishment should’ve been upheld. Your Honors, this presents a more serious question on granting an award which seemed to be inconsistent of our system trying to repair injuries if injuries had been received, because under this award as you can see from the amounts involved, the plaintiff by not seeking reinstatement. He didn’t seek reinstatement in this case, has managed to create pecuniary result in which he acquires in the state wit interest. You can compute with a low rate, should take care of the salary. It’s just inconsistent of the whole thing. But more than that, what’s involved here is question of whether unions can be responsible. I beg your indulgence to read from a decision of the Fourth Circuit Court of Appeals rendered by Judge Sobeloff. “The same system of justice, those involved in the case of Hardeman is a system upon which the responsibility of the union rests in terms for example of handling lockout strikers.” Now, that’s not just a figment of my imagination. The parts, cases and illustrations of what happens when the union tries to assert its powers to maintain the validity of peaceful institutions, in that case the maintenance of a council industrial relations, just maintain peace in the electoral contracting industry for 50 years. Judge Sobeloff said “By the judicial application of ad hoc standards and the pursuit of what is called democracy in union government would have succeeded only introducing not democracy but chaos. This would not only tend to disintegrate the labor movement, but be responsible to thus generated could have serious implications for employers and others as well.” And that is one of the serious problems facing the labor movement today that when the internationals are asked to assert their powers to maintain responsibility such as suppression of jurisdictional strikes that the cry comes back “hide and protect us against cases like Hardeman.” How are we going to make sure we’re going to do the job to satisfy courts?” Of course we can tell them they’re lawyers that reasonable standards, reasonable risks should be taken as they were in the Parks case. But cases of this sort which have been smashed aside, I think complete abandonment of the proper rules of review and the substitution of the court's views or the sort of thing that are preventing us from doing what should be done, not only in the interest of the labor movement, but also of others in the collective-bargaining relationship.
Speaker: Did you say that a money judgment against the union?
Louis Sherman: Yes sir.
Speaker: How much?
Louis Sherman: $152,500.00, the one they expelled him in. In the Parks case, we were dealing with a thousand people. The case of Berman versus Nevada which is at 85 Pacific Second 250, there were 41 walkout strikers involved.
Warren E. Burger: Would you raise your voice a little counsel, a little hard for us to hear.
Harry A. Blackmun: Mr. Sherman, let me ask you a question, may I? Suppose that the evidence here would justify or would qualify only under Article XII of the local’s bylaws, but not under Article XIII. Would expulsion be justified?
Louis Sherman: Yes Your Honor.
Harry A. Blackmun: And you would say this because why?
Louis Sherman: Because the blow of the fist is the thing that was intended to be suppressed, and that was because in working out the allocation of jobs resort to violence on the part of those who are concerned with the administration of the referral system are very serious matter.
Harry A. Blackmun: Well, Article XIII provides specifically for expulsion, but Article XII does not. It provides only for --
Louis Sherman: Punishment as warranted by the offense.
Harry A. Blackmun: Yes and why doesn’t XII go farther then?
Louis Sherman: At this, punishment -- I beg your pardon?
Harry A. Blackmun: Why doesn’t Article XII go further -- farther? Why doesn’t it also provide for expulsion?
Louis Sherman: Well I think that it depends on circumstances of the case. It’s very hard for a court at any level to appreciate what was going on Local Lodge 112 at that time.
Harry A. Blackmun: Well, your theory must be then that the language as warranted by the offense necessarily includes expulsion?
Louis Sherman: Yes, might be fine and might be suspension, it might be expulsion. As a matter of fact here, they expelled him indefinitely. It’s a little hard to understand what they meant by that. But there was no effort made on his part securing statement.
Harry A. Blackmun: And therefore, you’re argument must be to the effect that conviction so to speak under either article justifies expulsion, and hence the general verdict, if I may call it that ties in to evidence?
Louis Sherman: That is correct.
Harry A. Blackmun: Alright.
Louis Sherman: But essentially, what it amounts to is that you leave in the hands of the people involved. Now under this constitution, the local union, the brothers themselves voted for expulsion. They had the trial committee that considered the evidence and made a report and then the local committee voted him guilty and then voted expulsion. So therefore, there was a considered determination by the people involved.
Warren E. Burger: Would you say this is somewhat like a situation where a man is convicted in the criminal case on two counts. Each of which as a five year penalty, but he’s given two five year sentences to run concurrently. And this situation is somewhat analogous to that.
Louis Sherman: That is correct. And as a matter of fact in Burke versus Boilermakers, which is a per curiam affirmance by the Ninth Circuit, exactly that’s what happened. They had a series of charges on which one fell out. The court said there was no evidence on one, but upheld the punishment because it didn’t approve on the others. We have cited the criminal law as a reason for the position to be taken. I’d like to take just a few minutes.
Hugo L. Black: May I ask you one? How much of the damage is awarded it was labeled compensatory or how much punitive compensatory --
Louis Sherman: The best I can ascertain $130,000.00 was labeled as compensatory and $20,000.00 as punitive. It was not labeled but the presentation of the position by the attorney for the plaintiff was that he was 43 years old and he would retire at 65, and the number of years, times the annual salary would come out that figure. So we had deduced that as division which in compensatory and punitive. Of course if he’d be 20 years old and planned the work in 70, it would’ve been a lodge of judgment.
Hugo L. Black: Was that the present value of the amount he would have recovered had he remained employed?
Louis Sherman: Well --
Hugo L. Black: Computed on that basis or just computed on the basis of sum as per years?
Louis Sherman: It was computed on the basis of sum as per year because although they recognized the principle of mitigation of damages, for some reason or other, the evidence before the jury showed that he was living on $300.00 a year and even though full employment was coming up, they didn’t pay any attention to that. But I don’t want to bespeak the jury.
Hugo L. Black: Well, I understand I just thought I was curious for a moment.
Louis Sherman: Well, I’d like to spend a minute or two on the question that is sometimes labeled preemption. Assuming though we are not right about the first part of the case where we strongly feel we are, and a very strong public reasons for establishing the rule of review which will permit the union tribunals to function. I don’t think the word preemption is quite descriptive of our problem here. We have a case in which the federal Congress has adopted a statute and certainly there is no constitutional bar to the federal government adopting the statute -- Congress adopting the statute for which they would give a duplicate remedy on the so called refusal of referral. There’s a lot of evidence in the case about exclusive referral system, non-exclusive referral system, loss of wages and the rest of it. There was a lot of junior analogue B proceeding. The question is whether Congress intended by Section 102 to establish a duplicate remedy. We think there’s an amount of statutory construction that it did not so intend. We recognize that if you take a dictionary and use the words appropriate relief and chase it down to the end of the scope of that term, we may come out with the answer, but yup, they did intend. But I think it is sounding like Amazon Continentals, the plaintiffs in that case back if ’48 tried to find the basis to maintain injunction suits against picketing because the language of the statute provided that unions could be sued for the first time. The court said “Well, this is sort of ridiculous, Congress trusted that function to the National Labor Relations Board, a centralized agency with procedures or complaint, trial exam and a hearing and a centralized agency to make decisions, didn’t mean to transfer the function to 200 or more local tribunals with general jurisdiction.”
Byron R. White: But you don’t find any list on the face of 101 (a) (5), do you?
Louis Sherman: No, I think we’re looking at 102.
Byron R. White: Or even at 102, you find that on the face of 102?
Louis Sherman: I think on the face -- on the face of 102, it looks like just appropriate relief.
Byron R. White: Well, I gather your argument, the fact is that 102 says “This is available to you unless you want to go to the National Labor Relations Board first.”
Louis Sherman: No, what I’m saying is that the Congress could have written the statute in such a way as to establish a duplicate remedy, but it did not do so.
Byron R. White: And therefore, that’s my point. Therefore, you say there’s no action under 10 -- or a violation of 101 (a) (5)?
Louis Sherman: Oh! That’s -- I’m sorry.
Byron R. White: But all you have to do is go to the National Labor Relations Board, is that correct?
Louis Sherman: That’s correct, unless he had sought restoration union membership. If he had sought restoration union membership, then he would’ve been in the right place.
Hugo L. Black: What remedy could he get to go the board?
Louis Sherman: Well, they can get the same remedy than any other union member could get if there’d been a refusal or referral because of trouble with the union, Radio Officers Union case. He could get the same remedy that any non-union person could get.
Hugo L. Black: Damages?
Louis Sherman: Back pay and reinstatement to his job.
Hugo L. Black: But not damages?
Louis Sherman: Yes, well it would be damages in the sense of back pay. Now, in addition, I think that some of the trouble on this point arises from the word appropriate relief (including injunctions). We check back over the legislative history, we referred to it on VII cited second volume of legislative history 1102. You have to know a little bit of the background of this legislation to realize that the first there was the McClellan Amendment, the Bill of Rights which came up on the floor passed by a very narrow vote, and then as evidenced by McClellan’s own testimony, the labor movement got involved and helped to draft the Kuchel substitute which is intended to cut down the scope of the McClellan Amendment. So we look at the McClellan Amendment and that provides in a comparable provision --
Hugo L. Black: Where are you reading that?
Louis Sherman: Well, I’m reading from a copy, I regret to say we haven’t put it in the brief.
Hugo L. Black: You’re not reading from the brief?
Louis Sherman: No, but we’ve cited it in the brief at page 7. I’ll just take one minute on it. The Secretary of Labor was the one who was to enforce that and he used the same words, appropriate relief but without limitations, injunctions or restrain any such violations for compliance with this title. We submit that McClellan certainly didn’t have in mind, Congress didn’t have in mind in drafting that Bill, passing that Bill, but the Secretary of Labor would have a duplicate function administering the National Labor Relations Act. And therefore, it’s a fortiori that when it was provided for by private action, intended to cut down the scope of the McClellan Amendment that there was no such intention.
Warren E. Burger: Thank you Mr. Sherman.
Louis Sherman: Thank you.
Warren E. Burger: Mr. McDonald. At the outset, if I have a proper understanding of the Court of Appeal’s opinion, Court of Appeals said that when the member of the union beat up one of the leaders, this was not a violation of the clause. This was not creating dissention among members and not working against the interest and harmony of the International Brotherhood. That’s in effect what the Court of Appeals said, is it not?
Robert E. McDonald, Jr.: Yes sir.
Warren E. Burger: And that’s what you have to sustain here that this punching the nose, beating whatever, however you describe it, did not violate either one or both of those two clauses I just read?
Robert E. McDonald, Jr.: Yes sir. Mr. Chief Justice --
Warren E. Burger: That’ll call for some explanation for me, so I hope at sometime in your argument you’ll dwell on it a little bit anyway.
Robert E. McDonald, Jr.: Yes sir. Mr. Chief Justice Burger, members of the Court. This is the first appearance I’ve made before this Honorable Court and I’d like to say that it is an honor to appear here, it’s the high point of my career. This case is here on two issues that you granted certiorari on, the issue of standard of review applied by the Court of Appeals and the District Court, and the issue of preemption.
Hugo L. Black: Where was it tried?
Robert E. McDonald, Jr.: It was tried in Mobile, Alabama before Judge Daniel Thomas, Justice Black. To understand the standard of review, I might recite the facts as Chief Justice Burger pointed out. The union trial board found Mr. Hardeman, as well as Mr. Braswell, because we’re also reviewing the Braswell opinion here, guilty of two charges. Article XII, Section 1 and Article XII, Section 1. Now, what they had done in affect was to charge them with those two charges. The trial board came back and said “We find you guilty as charged.” Now, we came into Court alleging in our complaint that we have been denied a full and fair hearing because the evidence did not support a finding of guilt or was there any evidence to support a finding of guilt under Article XIII, Section 1. Our position was this that Mr. Hardeman as well as Mr. Braswell were in the same position as a man on trial in a criminal case with the two-count indictment. One count charging him with a simple assault, the second count charging him with rape. There being evidence of a simple assault but no evidence of any sexual contact, but the jury coming in and finding him guilty as charged, well guilty as charged necessarily includes the rape count. And that’s what happened here. Now, we had two counts or two charges against Mr. Hardeman and Mr. Braswell in this case, and the first charge was XII (1) which stated that through the use of force of violence that Hardeman tried to restrain course or intimidate an official of the Brotherhood, the second charge incidentally there is no punishment set forth there, it’s open, apparently can be -- punishment can be administered according to the offense. And the second charge was Article XIII, Section 1 of the International Constitution which points out that any member who creates dissention among the members or who seeks to create a dissolution of the Brotherhood, or a division of funds. In essence, it describes someone who is trying to dissolve the union as an organization, and that Article says that anyone who is guilty of this will be suspended, will be -- not suspended but expelled from the Brotherhood. Now, it doesn’t leave any question. There’s no lesser penalty. It’s just like a state statute that says “If you commit first degree murder, you will be sentenced for life or your life will be taken from you.” And that’s what Article XIII does, it's a much more serious penalty. Now, when he was found guilty, when these men were found guilty, the expulsion vote that Mr. Sherman mentioned was really superfluous. They didn’t need -- if they hadn’t done it or if they voted not to expel them, they would’ve still been expelled by virtue of the fact they were found guilty under Article XIII, Section 1. Now, it should be noted, these gentlemen took necessary appeals in the union, and in doing so, they were necessarily prejudiced in their defense because they had to presume they were found guilty of both, and so by doing this, they had to be found guilty of both. Now the trial judge doesn’t --
Warren E. Burger: Do you think the situation would be any different if instead of saying “guilty as charged” they said “We find the two brothers guilty” and then recited the original charge in --
Robert E. McDonald, Jr.: Mr. Chief Justice Burger, I do think it would’ve been different. If --
Warren E. Burger: Tell me how in --
Robert E. McDonald, Jr.: I think this. If they had found the member is guilty of Article XII, Section 1, they could’ve said “For a penalty, we will fine you $100.00 each or we will suspend you for six months”, and/or they could’ve said “For a penalty, we will leave it up to a vote of the Brotherhood.” And when it came before the Brotherhood, when they -- a motion for expulsion was offered, the Brotherhood would’ve said “Well, no. Let’s vote against this because it’s too harsh.” As it was, when the motion for expulsion was offered, the Brotherhood knew they had been found guilty of a Section demanding expulsion, so why not go ahead and vote for it.
Thurgood Marshall: Mr. Sherman, get to that second point of expulsion. Am I correct that Mr. Hardeman testified that he was sitting there quite worried about how the officers were going into local and everything, and he concluded that something had to done and therefore concluded that he had to punch that man?
Robert E. McDonald, Jr.: Mr. Justice Marshall, that is correct.
Thurgood Marshall: Well, isn’t that dissention?
Robert E. McDonald, Jr.: No sir, it’s not.
Thurgood Marshall: Well, is it mild disapproval?
Robert E. McDonald, Jr.: Sir?
Thurgood Marshall: Is it mild disapproval?
Robert E. McDonald, Jr.: It would not be dissention within the meaning of Article XIII (1). To say it would, would be if you’d be guilty of dissention under XIII (1) in doing that, well then you could also say that someone who is presumptive enough to when election comes around to run against the business agent in the election to run for his job. Now, this man is certainly creating more dissention in the union and causing a division of difference of opinion there.
Warren E. Burger: Defense legal isn’t it?
Thurgood Marshall: Well, suppose he punched, didn’t want some meeting?
Robert E. McDonald, Jr.: Sir?
Thurgood Marshall: Suppose he punched the business manager once in a meeting?
Robert E. McDonald, Jr.: Well --
Thurgood Marshall: You know, the one by group, you know?
Robert E. McDonald, Jr.: Yes sir. My understanding of course, this is not -- was not made an issue of the case. But my understanding is that among the Boilermakers that it is not uncommon for a business agent to be punched. Now, of course to us this is shocking, because we don’t carry on business in that way, but --
Thurgood Marshall: Nobody asks you to take judicial notice of that.
Robert E. McDonald, Jr.: Yes sir. But, nonetheless, the members could’ve taken if they found them guilty only on the Article XII and it were up to the members to decide the punishment, they could have found -- decided a punishment that would’ve been consistent with the offense in the context of the way they carry it on business. But having found him guilty under XIII (1), then they had no choice but to vote for expulsion because the men were expelled anyway by the virtue of the fact they were found guilty, the constitution demanded it.
Warren E. Burger: Did he ask for some sort of special verdict here? Did he ask if they give him a Bill of Particulars in anyway?
Robert E. McDonald, Jr.: No sir, but I do not think that’s of course, that wasn't an issue in the case either, but I don’t think --
Warren E. Burger: It might be if he didn’t ask for what you’re asking for now, that might have a lot to do whether he was entitled to it, or whether he waived it?
Robert E. McDonald, Jr.: Well, sir that was not within the procedure of the union remedies.
Warren E. Burger: I think it stopped you from asking for it, because you’re asking for it now.
Byron R. White: Well Mr. McDonald, I think you may have gotten it without asking for it, didn’t you? On page 57 of the record in the letter to Mr. Hardeman, it said the only explanation for the expulsion penalty is Article XIII?
Robert E. McDonald, Jr.: I did not notice that Mr. Justice White, but apparently it is.
Byron R. White: Well, they certainly referred to it in the letter explaining what happened when his case was affirmed in the union. They refer to the fact that there were two charges, but in -- and the fact that he was found guilty of the charges. But then this says that Article XIII carries an expulsion record and so he’s expelled.
Robert E. McDonald, Jr.: Yes sir. Let me say this in regard to that standard of review. The standard of review is set forth by Congress in Section 101 (a) (5) or Section -- or 29 U.S.C., 411 (5) (c) as requiring that the members had a full and fair hearing. Now, all of the Circuit Court of Appeals and they admit this in their brief, have held that in order to have a full and fair hearing, there must be some evidence to support the charge. Now we contended that in this particular case, there was not some evidence to support the charge. And their brief --
Hugo L. Black: Either one?
Robert E. McDonald, Jr.: Sir?
Hugo L. Black: Either one, either charges?
Robert E. McDonald, Jr.: No sir. Some evidence particularly as to Article XIII, Section 1, because that is a fair --
Hugo L. Black: Which is -- which one?
Robert E. McDonald, Jr.: The automatic expulsion.
Hugo L. Black: I mean which is the charge there? What’s the charge against him under that?
Robert E. McDonald, Jr.: The charge is that he created dissention among the membership to create a division of funds. It’s on page 63 of the appendix.
Warren E. Burger: Or work against the interest and harmony of the Brotherhood.
Robert E. McDonald, Jr.: Of the International Brotherhood, yes sir.
Hugo L. Black: If you permit me to say so, I frankly do not at all understand what you are offering as a defense. As I understand, the charge was that one man came down from his office into a hallway or something, and another one assaulted him and beat him up, is that right?
Robert E. McDonald, Jr.: Yes sir.
Hugo L. Black: Are you defending on the ground that he didn’t assault him and beat him up?
Robert E. McDonald, Jr.: No sir. What you have stated, may I Mr. Justice Black, let me go further. What you have stated was part of the charge. That was the particular, really the evidence.
Hugo L. Black: That was the central thing they charged against him, wasn’t it?
Robert E. McDonald, Jr.: Yes sir, but in doing that, they said that this act itself is a violation of Section 13 (1) which carries with it an automatic expulsion.
William J. Brennan, Jr.: Well, why do you say it’s not a violation? Why is not that conduct a violation of 13 (1)?
Robert E. McDonald, Jr.: Because this was a personal thing between Mr. Hardeman and the business agent Mr. Justice Brennan. It wasn’t a blow aimed at dissolving the union.Hardeman’s motivation was not to attack the union as an organizational structure.
William J. Brennan, Jr.: No but, Mr. McDonald, what it leads 13 (1) is any member who endeavors to create dissention among the members, stop right there, to beat up the business agent, that’s not an endeavored or could not be found to be an endeavored to create dissention among the members?
Robert E. McDonald, Jr.: No sir, I submit its not, because I submit in interpreting this Section, you cannot stop right there, because --
William J. Brennan, Jr.: Well, may I go to the next one for a moment?
Robert E. McDonald, Jr.: Sir?
William J. Brennan, Jr.: May I go up to the next point there? “Or who works against the interest and harmony of the Brotherhood or of any district or subordinate lodge.” To beat up the business manager or the subordinate lodge is not the work against the interest and harmony of that lodge?
Robert E. McDonald, Jr.: No sir, because that is a personal thing and this prohibits an attack against the organization itself, the organizational structure.
Byron R. White: And who’s the -- isn’t the top authority in the union the lodge itself?
Robert E. McDonald, Jr.: Well the top authority --
Byron R. White: Didn’t you appeal to the lodge?
Robert E. McDonald, Jr.: No Mr. Justice White, the trial was in the lodge, the local lodge, and appeal went to the executive council of the International.
Byron R. White: Well, everybody --
Robert E. McDonald, Jr.: And then to the Executive President.
Byron R. White: There were 61 votes in the lodge against 36 (2) -- who thought that this was a violation of Section 13, and the top appellate authority in construing the constitution within the lodge thought it was a violation of 13.
Robert E. McDonald, Jr.: Mr. Justice White, I don’t --
Byron R. White: Aren’t those actions worth some --
Robert E. McDonald, Jr.: I don’t think that is the case. As I recall, what was submitted to the lodge was not to determine. They didn’t -- the lodge did not hear the evidence or review the transcript. All that was submitted to the lodge was a motion that to the effect that --
William J. Brennan, Jr.: Well that Mr. McDonald is look at page 56 on exhibit 2.
Robert E. McDonald, Jr.: Mr. Justice Brennan, pardon me sir, you’re in the appendix, page 56.
William J. Brennan, Jr.: The exhibit 2 has that at its heading to the left is a column 61-4 and 36 against, and the right to that party is guilty as charged, 61 to sustain 36 to reject. Now what did they -- what was that vote taken on, on the basis of what record --
Robert E. McDonald, Jr.: On the basis that at a meeting a motion was offered to the membership saying “We have found -- the trial board has heard the evidence, and having heard the evidence, they find him guilty. We move that finding of the trial board be accepted.” Now that was done at the local meeting without hearing the evidence or anything. See, that was still on the local lodge level.
Byron R. White: Without knowing anything -- you say nobody knew anything about it himself unless you get a 61 to 36 vote?
Robert E. McDonald, Jr.: Yes sir. The only thing, Mr. Justice White, the only thing they knew about was discussion among around the hall. The --
William J. Brennan, Jr.: Well, does the record show what was presented to the lodge when that vote was taken, or before that vote was taken?
Robert E. McDonald, Jr.: Mr. Justice Brennan, I believe it does. I think it shows that a motion was offered. It certainly does not show that any evidence or any research of the transcript was taken, because what happened in this case was, the appeal was made to the executive council who held a trial de novo and retried the issues. The executive council being appointed, the executive council of the international union, and then --
Hugo L. Black: What did they hold?
Robert E. McDonald, Jr.: They held the same thing as the guilty as charged in accepting the finding of the trial board.
Hugo L. Black: Did that ended so far as they were concerned?
Robert E. McDonald, Jr.: No sir. Then, to further exhaust their remedies, they took an appeal to the international president of the union.
Hugo L. Black: What did he do?
Robert E. McDonald, Jr.: He examined the transcript of the executive council hearing and of the local lodge hearing.
Hugo L. Black: What conclusion did he reach?
Robert E. McDonald, Jr.: He reached the same conclusion not to disturb the finding.
Hugo L. Black: Was that the end of it so far as the lodge was concerned?
Robert E. McDonald, Jr.: That was the end of it as far as the whole union was concerned.
Hugo L. Black: Why did he not attack that in court? That proceeding rather than sue for damages, if his effort was to get back in the lodge and proved it --
Robert E. McDonald, Jr.: The reason he did not --
Hugo L. Black: -- was wrong, why not go to the court?
Robert E. McDonald, Jr.: Well, the reason for it, Mr. Justice Black was because of a real solution. This particular Boilermaker was in the construction trade and as he expressed it to get back into the union forcibly was no solution, because on construction jobs, it was not uncommon that accidents happen and people were hurt or killed. And that this was a rough group and he feared that if they were forced to take him back that his days might be numbered. Now further --
Hugo L. Black: Well, he can work it back.
Robert E. McDonald, Jr.: Sir?
Hugo L. Black: He didn’t want to get back to him, well how can he get damages for not getting back?
Robert E. McDonald, Jr.: He can get damages under Section 412. Title 29, Section 412 of the Landrum-Griffin Act which says that any person who’s rights secured by the -- any provision of the chapter may bring a civil action, which is commonly construed to mean all the damages, or anything not criminal or admiralty there for such relief as maybe appropriate. Now, --
Hugo L. Black: Without going to court to see whether his expulsion was right or wrong?
Robert E. McDonald, Jr.: Yes sir, that’s what the Act says.
Hugo L. Black: Did this Court here try that question as to whether he’d been properly expelled?
Robert E. McDonald, Jr.: No sir. This --
Hugo L. Black: That’s never been tried at all then, is it?
Robert E. McDonald, Jr.: That is at issue in this case, because the whole heart of this damage suit is that the complaint says that we were improperly expelled because we did not have a full and fair hearing. And therefore, we are seeking damages, the approximate damages. Sir?
Hugo L. Black: You can have a full one because you didn’t go and ask for judicial review, if you didn’t have it?
Robert E. McDonald, Jr.: Well we had a --
Hugo L. Black: I don’t understand how you could attack this expulsion without attacking it directly in court.
Robert E. McDonald, Jr.: We did in this particular case.
Hugo L. Black: Yes we did from another case, but you say you didn’t try it out in the court.
Robert E. McDonald, Jr.: Yes sir we did, and I’m sorry I misunderstood you Justice Black.
Hugo L. Black: To show that he was improperly expelled?
Robert E. McDonald, Jr.: Yes sir.
Hugo L. Black: Or did you just submit this technical argument you have about the two charges?
Robert E. McDonald, Jr.: That, Mr. Justice Black, the two charges was the basis of our -- him being found guilty of a charge for which there was no evidence to support him, was the basis of our theory that our evidence in court that he did not -- was not given a full and fair hearing because he was at same position as a man on trial under two-count indictment and one count the evidence conformed into one count but not conformed to the other. The jury came back in saying “We find him guilty as charged.”
Warren E. Burger: Well, then to pursue your analogy, I go back to what I suggested before. What if in that criminal case he had only received the penalty for one of the two crimes, and the penalties were penalties which could be the same. Then we -- don’t the courts constantly affirm convictions on the ground that they don’t need to reach the question, they don’t need to survive it?
Robert E. McDonald, Jr.: No sir, because --
Warren E. Burger: I think you will look at the books, you’ll find they do with a great deal. If he’s guilty of one, they don’t reach the other.
Robert E. McDonald, Jr.: Well the point here Mr. Justice Burger is that if he’s guilty of one, you’re saying here is that he could get the same punishment under both charges. But on the other hand too, he could get a lesser punishment under the charge if he weren’t found guilty of the charge for which there was no evidence.
Warren E. Burger: But here out of the Court of Appeals opinion, see if this is the heart of the case. The Court of Appeals said “The District Court found as a matter of law that there was no evidence to support a finding of guilt under Article XIII of the constitution. That’s the one that deals with endeavoring to create dissention or working against the interest of harmony.” Now, if that -- if the Court of Appeals is wrong in saying there’s no evidence to support that then the case was wrongly decided, was it not?
Robert E. McDonald, Jr.: That’s true, but the Court of Appeals reviewed all of the transcript and the evidence that was taken on this matter.
Hugo L. Black: I don’t see how they could reach a conclusion myself or you may explain it to me. And then what happened here in the alternate attack, beaten up and they go ahead and try him, how they can say that that did intend to create dissention among the brethren so to speak?
Robert E. McDonald, Jr.: Well --
Harry A. Blackmun: Mr. McDonald, let me add to this.
Robert E. McDonald, Jr.: Yes Mr. Justice Blackmun.
Harry A. Blackmun: And I think it brings us back to Justice White’s question. Whose function is it to interpret Article XIII of the constitution? You say it means what you have said it means.
Robert E. McDonald, Jr.: Yes sir.
Harry A. Blackmun: But whose function is it to interpret that? Is it the union’s function?
Robert E. McDonald, Jr.: It should be the plain meaning of the particular charge because included in Section 101 (a) (5) (b)is a requirement that the member be given specific charges. Now, if Congress is going to demand that he be given specific charges, they ought to demand specific proof. It would not be a fair hearing. There are many things as to questions of full and fair hearing is a broad term. But --
Harry A. Blackmun: Well, it’s perfectly obvious that the members of the Court are disturbed about how you reached the result that beating up the business agent didn’t create dissention among the members, or work against the interest and harmony of the Brotherhood. And you say it didn’t because it means something else. I’m asking that who says it means something else?
Robert E. McDonald, Jr.: Your Honor, I think Mr. Justice Blackmun, when you read the Article together in its context, it becomes obvious of course, maybe it doesn’t, but it becomes obvious to me and apparently to the justices who have reviewed this that this Article prohibits some attack against the organizational structure itself. And that we’re not saying here that Hardeman should not have been disciplined.
William J. Brennan, Jr.: (Inaudible)
Robert E. McDonald, Jr.: The court should decide within the plain meaning of the ordinary meaning of a particular Section.
William J. Brennan, Jr.: Well, this is the course, Mr. McDonald, whether the Court could have anything to do with what it means, whether or not its interpretation is entirely --
Robert E. McDonald, Jr.: Your Honor, I think that Congress has issued a mandate that the Court do it, because Congress has said that no member shall be expelled without a full and fair hearing. And in order to fulfill the wishes of Congress in 101 (a) (5) (c), you’ve got to --
William J. Brennan, Jr.: In your argument is that we have to -- the courts have to be here in saying what did 101 (a) (5) (b) when it says that must be before the court, and that you say that you didn't have any obligation of the court and obligation to interpret what is then by grace the section --
Robert E. McDonald, Jr.: Yes sir. Mr. Justice Brennan, let me say this in regard to that. All of the Courts of Appeal and Mr. Sherman admits it in his brief, have ruled that in order to have a full and fair hearing, there must be some evidence to support the charge.
William J. Brennan, Jr.: Well, what’s the difference --
Robert E. McDonald, Jr.: Now --
William J. Brennan, Jr.: -- that I’ve been talking about?
Robert E. McDonald, Jr.: No sir because, I submit it’s not, because if you’re going to say “Look and see if there’s some evidence” we’ve got to interpret the charge to see if there’s some evidence, otherwise you’d be in the position of trying to decide an embezzlement case from the facts without looking to see the meaning of the embezzlement statute. The argument -- the issue is the same two different sides of the same coin or looking through the same window from opposite sides.
Speaker: So if we don’t interpret this, anybody’s going to interpret it. Is the NLRB better able to do it than a court?
Robert E. McDonald, Jr.: No sir, Mr. Justice Harlan because the courts of course have more training in this type of thing. The use of words in interpreting the meaning of words and because Congress gave the mandate to the courts in Title 29, Section 412 saying that “Any person who’s rights are infringed upon in this area shall have recourse in the Federal District Court.” Which brings us to the second area, the preemption argument which I would like to say just a few things about. In regard to the preemption issue which is the second issue that this comes into here. We have to understand the reason for preemption is that what the courts have said in preemption is that Congress has carved out this area for the NLRB to operate in, and therefore, they kept the state courts from operating in that sphere. Now, in this area, the preemption does not apply because Congress in 29412 says “He can bring a civil action for such relief as maybe appropriate.” That in our complaint and our proof showed that the wrong was done and we say it as a proximate result of this wrong, this man lost wages for this time, and if proximate result is not appropriate relief, there can be no appropriate relief because that appropriate relief is a little looser than proximate result in damages and proximate cause or things of proximately caused. Gentlemen, I -- this is an important case. I don’t have to tell you that, I wouldn’t be here. Hardeman is a man -- his problems are held by every member of the labor movement in this country. And the whole purpose of our labor law is to protect the individual rights and the individual working man. And this decision, this case, as long as it stands, will protect every working individual in the United States from such wrongful expulsion as Hardeman suffered. And I think it’s necessary, it’s a good decision and on behalf of Mr. Hardeman, my client and on behalf of the members of the labor union in this country, I hope you’ll affirm the decision with a strong opinion to protect them in the future.
Harry A. Blackmun: Mr. McDonald, I have one last detail. Do you feel that entering in to the amount of this verdict was anything having to do with the hiring hall practices?
Robert E. McDonald, Jr.: No, Mr. Justice Blackmun, I don’t. What we did, we presented the evidence here showing that Hardeman showed his income tax returns that he made so much before his expulsion, and then afterwards, we showed that he could not get job -- get work as a Boilermaker, or even though he made every effort to. And then we showed his income tax return showing the earnings he made for several years after the expulsion. And that difference then showed, he was a man who was 43 years of age, who had spent his life acquiring a trade as, which is a technical trade, just like my trade of practicing law is something I acquired, and then all of a sudden it was taken away from me. And what could he do at 43, go out and he wasn’t able to adapt to find something of equal value to him.
Harry A. Blackmun: Are you conceding then that anything having to do with the hiring hall aspect is clearly for the board?
Robert E. McDonald, Jr.: Sir?
Harry A. Blackmun: I take it you are saying that there is no element of damage in this result that is attributable to the hiring hall phase of this controversy, and what was done in the hiring hall?
Robert E. McDonald, Jr.: No sir, it was the damage just were --
Harry A. Blackmun: This is what I understood, you just now to say, and I merely asking as a corollary to that whether you are conceding that anything having to do with the hiring hall is for the labor board and not for the court.
Robert E. McDonald, Jr.: No Your Honor, I’m not because we’re relying on the Act for giving jurisdiction to the court. Thank you very much gentlemen.
Warren E. Burger: Thank you Mr. McDonald. Do you have anything further Mr. Sherman?
Louis Sherman: Yes, one small point and that is to call the attention of the Court to defendant’s exhibit number 3 at page 61, which is the out of work card of the union. You will notice that the rules for the administration to hiring all the set forth that called for re-registration each month, there was one entry on March 08, 1961 where he’s apprising out for a job where he was lasted for five days. He made another entry on April ’61 and the issue really was whether his name continued on the list as a legal matter because it had been on once, or the union rule prevailed that if he didn’t re-register each month, which is normally accepted rule of the board, that he was eligible for further referrals.
Warren E. Burger: Thank you Mr. Sherman. Thank you Mr. McDonald. The case is submitted.