Petition — International Ass'n of Machinists & Aerospace Workers v. United Aircraft Corp.

Supreme Court brief1976

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-1263

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WorKERS (AFL-CIO), tT au, Petitioners,

Vv.

UNITep AIRCRAFT CorRPORATION, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

Piatto E. Papps

Machinists Building

Washington, D.C. 20036

Mozart G. RATNER

1900 M Street, N.W.

Washington, D.C. 20036

Attorneys for Petitioners

Press or Brron S. ApAMs Parintine, Inc., Wasuincron, D. C.

Bupreme Court, U. &

SO RILED

MAR 5 1976

eel ‘

MICHAEL RODAK, | IR., CLERK

INDEX

Page

I Ee el dd eeebetheanenne 2

II rs 2. Les eg Les ok Do ee aad 2

I I conn occ can bidbeneeccnncecease 3

CONSTITUTIONAL PROVISIONS AND StaTuTE INVOLVED.... 4

I. STATEMENT OF THE CASE .......cccccccccccces 4

EES ERA Ls Rt er Ree a 4

PR EP one ee ONS EM CA Roe 5

B. Mr. Mooney’s Opinion and Its Deficiencies... 8

1. Mr. Mooney’s Method ................. 8

2. The Deficiencies in Mr. Mooney’s Method 10

a. Mr. Mooney had no relevant experience

OP GE GE 0:0-660idccenestsenns 10

b. Mooney was biased ...............6. 12

ce. There is no logical nexus between the

facts on which Mooney relied an his

SEE a. Visas nkenusieeesckiesoun 12

d. Defendants’ experts confirmed the ab-

sence of any logical nexus ........... 14

e. Defendants’ experts establish that

Mooney’s method is not recognized in

— fr er rrr 17

3. Objective Evidence Bearing on the Relia-

bility of Mooney’s Method ............. 19

a. The extent of variance between the esti-

mates of Mr. Mooney and Dr. North-

SU ccuuunedededhwoueskonsnceeaseuns 19

ii Index Continued

Page

b. The trend lines established by plain-

tiff’s involuntary absence witnesses

prove that Mooney’s are fictitious ex-

RE Rdcucuscdescbunddveseess

e. The Referee’s own decision fatally un-

dermines Mooney’s estimates ........

II. Tue History or Tuts Litigation .............

A. The Liability and First Damage Trial .....

B. The First Opinion of the Supreme Court of

GS. hin whbdbcsse dkadkaness caves

C. The Second Damage Trial ................

D. The Second Decision of the Supreme Court

Oe GND Shab bib Si6ccecncaeiessccss

REASONS FOR GRANTING THE WRIT ................-...

I. Tue Decision BeLow UNDERMINES THE COoNGRES-

SIONALLY Protrectep Ricut To Srrike py AwaArp-

ING DAMAGES FOR Conpuct Nor Proven To Be

ProximaTELy Cavusep By ILLEGAL Conpuct

Il. Tue Dectstoxn Betow Deprivep DEFENDANTS OF

Proverty WirHout Due Process or Law ......

CONCLUSION

CONSTITUTIONAL PROVISIONS AND Stature INVOLVED....

CHART 1

REFERENCE TaBLE 1A

Cart 2

REFERENCE TaBLe 2A

Cuart 3

TaBLe 3A

Cuart 4

TABLE 4-A

ili

AUTHORITIES CITED

Page

CasEs:

Automobile Workers v. Russell, 356 U.S. 634 ........ 43

Bigelow v. RKO Radio Pictures, 327 U.S. 251 ...... 37, 38

Boilermakers v. Hardeman, 401 U.S. 233 ............ 45

Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338

Unc veh enartaceebsceNeheebes cases teses 38

Douglas v. Buder, 412 U.S. 490 2.0... ccc ccccccecs 45

Galloway v. United States, 319 U.S. 372 ........ 36, 43, 46

Hoefferle Truck Sales y. Divco-Wayne, 523 F.2d 543

ee De Cee eae eeE ne 41

Jenkins v. United States, 307 F.2d 637 (D.C. Cir.) ... 40

Johueen V. Florida, Bi UB. GES... ccccccccccccecss 45

Letter Carriers v. Austin, 418 U.S. 264 ............ 34, 36

Linn v. Plant Guard Workers, 383 U.S. 53 :........ 35, 36

Luria Brothers & Company v. United States, 369 F.2d

gk * Beppe are rere, Per rere 40

Mine Workers v. Gibbs, 383 U.S. 715 ............ 33, 34, 35

NLKB vy. Madison Courier, Inc., 472 F.2d 1507 (D. C.

SED ad ce eee tab ciGk eeddshen see ubeaeanneeeaes 43

Norland v. Washington General Hospital, 461 F.2d 694

ee ee geben ee ah beeen 40

Schware v. Board of Bar Examiners, 353 U.S. 232. ..45, 46

Shuttlesworth v. Birmingham, 382 U.S. 87 .......... 45

Stephanofsky v. Hill, 136 Conn. 379, 71 A.2d 560 ....11, 29

Story Parchment Co. v. Paterson Parchment Co., 282

EE Gib eudekduvsebcuaueanavevaaeenuncess 37, 38

Sunbeam Corp. v. Golden Rule Appliance Co., 252 F.2d

Se ava c Red Vadweveek she eeekessodnses 42

Teamsters Union v. Morton, 377 U.S. 252 ............ 33

Thompson v. Louisville, 362 U.S. 199 .............. 45, 46

Thurber Corp. v. Fairchild Motor Corp., 269 F.2d 841 40

United States ex rel. Vajtauer v. Commissioner, 273

Ee oo eee eN aaah ewe Seeee wees 45

Vachon v. New Hampshire, 414 U.S. 478 ............ 45, 46

Volasco Products v. Fry Roofing Co., 308 F.2d 383 (6

8 A ee yn yy rr tee or eee re 37, 38

Wood v. Strickland, 420 U.S. 308 .........cccccveees 45

Yesbera v. Hardesty Mfq. Co., 166 Fed. 120 (6 Cir.) .. 42

Youngdahl v. Rainfair, Inc., 355 U.S. 131 ..........-. 33

iv Table of Authorities Continued

Page

STATUTES:

United States Constitution

Supremacy Clause of Article VI ............... 4, 1b

Due Process Clause of the Fourteenth Amendment.4, 1b

National Labor Relations Act, as Amended, 49 Stat.

449, et seq., 29 U.S.C. §§ 1141, et seq.

eee F oocccviwvecesesuseeuse alee 4, 1b

Doetiem 18 .....cccecestsuces€enccusnee 4, 1b

38 UDC. § IGBTS) «0c ccicdccevcecnneeeee 3

MISCELLANEOUS:

Manual for Complex Litigation, 1 Part 2, Moore’s Fed-

eral Practice (2d ed), pt. 2.732 ................ 42

Rehnquist, The Bar Admission Cases; A Strange Judi-

cial Aberration, 44 ABAJ 229 (March, 1958) .... 46

Wigmore, Evidence (3rd ed., 1940) ................ 37, 40

IN THE

Supreme Court of the United States

OcroBer Term, 1975

No.

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

Agrosrace Workers (AFL-CIO), et a., Petitioners,

Unirep Arrcrarrt Corroration, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

International Association of Machinists and Aero-

space Workers (AFL-CIO), its Distriet Lodge No. 91,

and its Loeal Lodges Nos. 743 and 1746, pray that a

writ of certiorari issue to review final judgments of the

Supreme Court of Connecticut affirming awards of com-

pensatory damages against petitioners in favor of re-

spondent totalling $1,424,001, plus interest from Sep-

tember 4, 1973 (A. 107a-109a).*

OPINIONS BELOW

The opinions of the Superior Court (Judge Gaffney)

are not reported. They are printed in the separate

Appendix (‘‘A.’’) at pp. 1-27a (pre-trial memoranda),

29-55a (decision on liability) and 56-64a (decision on

damages). The first decision of the Supreme Court of

Connecticut, 161 Conn. 79, 285 A.2d 330, cert. denied on

a question preserved but not presented herein, 404 U.S.

1016, is printed at A. 65-89a, amended at A. 91a.

The opinion of the Referee on remand from the

Supreme Court of Connecticut is not reported. It is

printed at A, 94a-106a. The second opinion of the Su-

preme Court of Connecticut, 99 LRRM 2249, is not yet

officially reported. It is printed at A. 110-125a. The

decision of that court denying reargument is printed at

A. 125a.

JURISDICTION

The final opinion of the Supreme Court of Connecti-

cut was entered on September 2, 1975. A timely motion

for reargument was denied on October 7, 1975. (A.

*‘*A.’’ refers to the separately bound appendix to this petition

containing the opinions and judgments below.

Under Connecticut practice, the record below is divided into

two parts, one referred to as the ‘‘ Record,’’ containing pleadings,

rulings on exceptions, findings, draft (rejected) findings, ete., and

the other denominated ‘‘Appendix’’, containing narrative sum-

maries of the testimony of plaintiffs* and defendants’ witnesses

(“A-P.’’; “‘A-D.’’). Because there were two trials and two ap-

peals below, there are two records and several appendices. Oc-

casional references to these documents will be designated ‘‘TR,’’

“TIR’’, TA’, “‘TTA’’. The symbols ‘‘F’’ and ‘‘DF’’ refer to

‘*finding’’ and ‘‘draft finding’’ respectively.

a ee ee ee

Oe ts cena oe oe tnemy o

125a). By orders dated December 30, 1975, and Jan-

uary 29, 1976, Mr. Justice Marshall extended the time

for filing this petition to March 5, 1976 (A. 126a). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

QUESTIONS PRESENTED

1. In a federally protected strike accompanied by

violence, may a court award damages to the employer

for losses resulting from employee absence, where the

court differentiates the amount of absence caused by

tortious conduct from the amount caused by federally

protected conduct only by accepting as ‘‘expert testi-

mony’’ the speculative estimate of an employer official

and

(a) that witness does not suggest, and the court

does not find, any rational nexus between the wit-

ness’ factual assumptions and his opinion;

(b) the witness’ method is unknewn to and un-

accepted in any scientific discipline ;

(ec) the opinion is contradicted by the court’s own

findings and objective facts of record ?

2. Does a judgment so grounded deny the defend-

ants property without due process of law?

1 The Court below recognized that ‘‘defendants extensively and

vigorously attack{ed] the [trial court’s] findings and conclusions’’

regarding the percentage of employees absent due to defendants’

tortious acts (A. 116a), which the court had held in its first

opinion (A. 8la-82a) raised a federal question, as defendants

had argued (Brief for defendants on the first appeal, p. 59). Pe-

titioners’ claim that entry of judgment on the basis of Mooney’s

estimates was also a denial of due process in violation of the Four-

teenth Amendment was expressly raised at p. 40 of defendants’

brief on the second appeal; see also defendants’ brief on the first

appeal asserting this claim with respect to acceptance of North-

rup’s opinion at the first damage trial, p. 88.

CONSTITUTIONAL PROVISIONS AND STATUTE

INVOLVED

This case involves the Supremacy Clause of Article

VI and the Due Process Clause of the Fourteenth

Amendment of the United States Constitution and §§ 7

and 13 of the National Labor Relations Act, as amend-

ed, 49 Stat. 449, et seq., 29 U.S.C. §§ 141 et seq. These

provisions are reprinted at p. 1b, infra.

I. STATEMENT OF THE CASE

Introduction

This case involves an award of compensatory dam-

ages for losses assertedly suffered by respondent em-

ployer as the result of violence in the course of peti-

tioner Unions’ strike for new collective bargaining

agreements. Recovery was awarded on the theory that

the violence caused involuntary absenteeism whieh in

turn caused economic injury to the Company in the

form of wasted overhead, spoiled work, excess overtime

and otherwise.’ Since, under federal law, an employer

may not reeover for strike absence which was not

tortiousiy caused (see pp. 32-33 infra), the central issue

litigated below was the amount of absence which was

caused by the violence.

The courts below decided that question solely on the

basis of the opinion of one witness (a retired high offi-

cial of respondent) who estimated how many employees

were absent involuntary each day of the strike. It is our

contention that description of the witness’ avowed

method of arriving at his estimates, and of record facts

* The formula for converting involuntary absences into dollars

lost, and the application of that formula, were the subject of oon-

siderable controversy below (A. 113a-116a); however, we do not

here challenge the State Court’s resolution of these matters.

ee ad

ee ee ee

WAS eee lg ee tee

which beer on their reliability and indeed their ration-

ality, establishes that the witness was engaged in sheer

speculation ; that his estimates are gross exaggerations ;

and that a judgment based thereon penalizes lawful

strike conduct under the guise of compensating for in-

voluntary absence. Indeed, we shall show that the

amount of involuntary absence found below on the

basis of this witness’ opinion was far in excess of that

which would be derived by-a projection of the testimony

of those absentees whom the Company put on the stand

—a handpicked sample strongly biased in plaintiff’s

favor. We also submit that even if rights protected by

federal statute were not involved, the judgment could

not constitutionally stand because the sole testimony

relied on is so far from being rationally probative that

it cannot serve as ‘“‘evidence’’ adequate, as a matter of

due process of law, to support any judicial judgment.

A. The Strike

Respondent (hereinafter sometimes referred to as

‘‘»laintiff’’ or ‘the Company’’) is engaged in the manu-

facture of airplane engines and parts at several plants

in Connecticut, including plants at East Hartford and

Manchester (in the Pratt & Whitney Division) where

the employees are represented by Local Lodge 1746

and at Windsor Locks and Broad Brook (in the Hamil-

ton Standard Division) where the employees are repre-

sented by Local Lodge 743. The Local Lodges are af-

filiates of the International Association of Machinists

and Aerospace Workers (hereinafter referred to as

‘*the International’’), and of its District Lodge 91. The

Company is concededly an ‘‘employer engaged in com-

merece” and petitioners are ‘labor organizations’’ sub-

ject to the National Labor Relations Act. (A. 30a,

66a).

For many years prior to 1960, the Company and the

respective Local Lodges were parties to collective bar-

gaining agreements. The Lodge 1746 agreement ex-

pired on December 7, 1959, and the Lodge 743 agree-

ment expired on April 21, 1960. A legal, federaliy

protected strike for new agreements began June 8

1960, and ended August 11, 1960 (A. 30a, 32a). ;

. From June 8-13, the strikers engaged in mass picket-

ing in front of the entrances to the employer’s plants

as well as assorted other acts of misconduct directed at

individual non-strikers. On June 13, the state court

approved and entered a stipulation (in which the Un-

lons joined) prohibiting mass picketing and violence

but allowing picketing to continue. On June 16 .

similar stipulation was entered by the federal court at

the instance of the National Labor Relations Board

These stipulations limited the number of pickets and

prohibited tortious conduct on the picket lines (state

court) aud also off the picket lines (federal court).

After June 13 mass picketing ceased and, as author-

ized by the stipulations, picketing in limited numbers

continued. Widespread publicity was given by tele-

vision, newspapers and radio to the stipulations and to

the restoration of order on the picket lines (A. 105a;

IT R, 64-65, D.F. 449-458; D.Ex. 34, 35, 36).

The record showed also that as early as June 10

foremen and employees who had returned to work in-

formed other employees that it was safe to do so (II R.

65, D.F. 463). Newspapers covering the Hartford-

Springfield-Middletown-New Britain-Manchester areas

reported that picketing was orderly beginning June 11

(IT R. 64, D.F. 453). By June 11, the State Police

assisting the local police, had brought the mass picket-

a ee

ing under control (II R. 64, D.F. 452). Arrests of

pickets for misconduct at or on the plant premises

virtually ceased after June 13 (II R. 64, D.F. 457).

The State Police were withdrawn on June 14 (II R. 65,

D.F. 458). In anticipation of a strike, plaintiff had

installed motion picture cameras at its plant gates,

with which it recorded mass picketing and other mis-

ecaduct. Although it kept some cameras in position

after June 13, plaintiff stopped taking metion pictures

after that day (A. 105a; II R. 64, D.F. 449,450).

Whereas on Friday, June 10, 3,098 of approximately

16,200 bargaining unit employees reported to work at

Pratt & Whitney and 365 of approximately 3,800 bar-

gaining unit employees reported at Hamilton-Stand-

ard, on Monday, June 13, 4,273 and 522 reported at

those plants. These numbers increased as follows in

the next two weeks:

June 14 (Tues.) —P&W: 4,639; H-S: 598.

June 20 (Mon.) —P&W: 7,344; H-S: 1,208.

June 27 (Mon.) —P&W: 9,340; H-S: 1,634.

July 1 (Fri.) —P&W: 9,977; H-S: 1,744.

(IR. 285, 287 F. 634, 635.) A total of 4535 bargaining

unit employees at Pratt & Whitney and 2019 bargain-

ing unit employees at Hamilton-Standard remained

out during the entire strike and registered as strikers

to return to work at the end (IR. 244, F. 393, 394).

Although the courts below held that the Unions were

liable only for the consequences of tortious acts on the

picket lines and at the plant premises, and although

these were isolated and sporadic after June 13 (A.

105a), the courts did not limit respondent’s recovery

through that date; they accepted the Company’s con-

tention that the after-effects of the fear induced by the

tortious acts prior to the injunctions continued through

the week of July 1, 1960 (A. 105a-106a), though not

thereafter, (id.), as the Company urged and as its wit-

nesses had opined. Compeve pp. 22-23 with p. 19,

infra.

In determining the amount of absenteeism which

Was caused by violence directly and on this residual

fear theory, the trial court did not rely cn the testi-

mony of absentees themselves, or on a projection based

on a sample (representative or otherwise) of such ab-

sentees. Instead, it accepted, and relied exclusively

upon the opinion of Morgan R. Mooney, the Company

Personnel Director at the time of the strike, and its

Vice President for Industrial Relations at the time of

the first trial in these actions, see A. 99a, n. 2, A. 118a-

119a. Mr. Mooney gave it as his opinion, and the trial

eourt found, ‘‘that from June 9 up to and ineluding

July 1, the number of involuntary absences proximate-

ly caused by the tortious acts at or on the premises of

the Pratt & Whitney plant were approximately 62,900

out of a total absences of the bargaining unit for the

tull pei'od of the strike of approximately 266,000 or

approximately 23.6% ”’ and that at Hamilton Standard

‘*!T}he involuntary absences numbered 17,600 out of

approximately 91,000 during the strike period of 33

days or approximately 19.3%.’ (A. 105a, 106a).

We next describe the method by which Mooney ar-

rived at these figures.

B. Mr. Mooney’s Opinion and Its Deficiencies.

1. Mr. Mooney’s Method.

Mr. Mooney deseribed as follows the method and

theory by which he arrived at his opinion as to the ap-

proximate number and percentage of involuntary ab-

sences each day of the strike (II R. 193, F. 268, Cf. IT

R. 72-78, D.F. 502-543).

ee ee ee

_ aienbianes

1. The first figure in Mooney’s caleulations was an es-

timated number of ‘committed’ or ‘‘hard core’’ strik-

ers in each bargaining unit, by which he meant persons

who would have stayed on strike for its duration, re-

gardless of anything else (II A-P. 117). Because the

infirmities in that estimate themselves fatally infect

his opinion, and reveal in microcosm the methodological

deficiencies of his whole approach, we describe and

discuss that estimate in*the margin.*

2. Mr. Mooney then subtracted the ‘‘committed strik-

ers’? from the number absent each day of the strike,

a number not in dispute (A. 117a).

3. Mooney divided the remaining absentees into two

categories: voluntary and involuntary due to defend-

3 He stated that he had based that estimate on (a) the number

of union members who voted for the strike on May 26, 1960 (3488

at Pratt & Whitney and 1493 at Hamilton Standard); (b) the

average number who were paid strike benefits during the strike,

except for the first week of payments (as to which he considered

the evidence unreliable) (3487 at Pratt & Whitney, 1298 at Ham-

ilton Standard): and (e) the number who registered as strikers

(4500 at Pratt & Whitney, 2000 at Hamilton Standard) at the

end of the strike. He chose a number which he considered ‘‘rea-

sonably related’’ to the aforesaid figures (IT A-P. 108, 119). At

Pratt & Whitney, he chose 3500; at Hamilton Standard, 1500 (IT

R. 193, F. 268).

This formula gives a certain patina of reason to Mooney’s esti-

mate, but closer inspection shows that the number chosen is

merely the number of union members voting for the strike rounded

off to the nearest hundred. There is nothing .a Mooney’s testi-

mony, or elsewhere in the record—and the trier of fact did not

find—that. only union members who vote to go on strike will be

committed to the strike if it occurs. Nor did the Company show,

or the trier find, that Mooney’s asserted formula for determining

the number of committed strikers is predicated on industrial ex-

perience or otherwise validated. In fact, the number of strikers

who did stay out to the end was far greater (see (c) above) and

the trial court found that in the last month of the strike no one

was absent because of violence (see p. 23 infra).

ants’ tortious acts at the premises. In the voluntary

classification he included all absences (voluntary and

involuntary) for any reason other than fear or inability

to cross the picket lines resulting from defendants’

tortious acts at the plant premises. The number of

involuntary absences chargeable to defendants was the

ultimate fact to be determined. He formulated his

opinion of that number on the basis of his ‘‘experi-

ence’’, by the following reasoning:

a. First, he estimated how many absences during

the first three days of the strike were involuntary.

This estimate was not shown to be anything more than

speculation.

b. Involuntary absence thereafter he attributed to

‘‘residual fear’’ reinforced by tortious conduct on the

picket line.

ce. He opined that the volume and duration of such

post-stipulation involuntary absence was substantial

and that it continued throughout the strike. This

opinion was not shown to be anything more than specu-

lation .

d. He estimated the amount of that involuntary ab-

sence guided by the ‘‘trend lines’’, which showed an

increasing number of absentees returning to work each

day. He expressed his estimates as a percentage of the

total absentees, less committed strikers, and as a per-

centage of the entire bargaining unit.

2. The Deficiencies in Mr. Mooney’s Method.

a. Mr. Mooney had no relevant experience or scien-

tific aids. Mr. Mooney’s background and training con-

sisted of his service in the federal government for two

years as a labor compliance officer, seven years as

AU een rete eet

Connecticut Deputy Commissioner of Labor, in which

position he had investigated a large number of strikes,

and employment in labor relations capacities by the

Company (personnel director during the strike and as

vice president for industrial relations at the time of

the first trial) (Note 2, A. 118a-119a).

However, nothing in Mr. Mooney’s experience bore

on the question of approximately how many or approxi-

mately what proportion of the strike period absences

were caused by defendants’ tortious conduct, or on any

method for answering that question without input

from the absentees themselves.‘ Nor did Mr. Mooney

himself, although pressed, offer any connection between

his experience and his opinion. In accepting Mooney’s

estimates through July 1, the trier and the Supreme

Court of Connecticut (A. 105a and 121a) relied, in part,

on Mooney’s personal observation of the strike violence.

They thus failed to distinguish between two different

testimonial qualifications—observation and experience.’

And finally, they took no account of the fact that Moon-

4 Before the 1960 strike, Mr. Mooney had talked to only 20

to 25 employees about their reasons for absence during a strike

(II R. 192, F. 262).

Mr. Mooney had no prior experience in making estimates or

ascertaining approximate percentages of the number of employees

who were absent from work during a strike because of fear of

violence or tortious conduct at the plant premises. He had no

prior experience with a situation in which there was violence

during the first few days of a strike and then a stipulation en-

joining violence. (II R. 82, D.F. 573; I] A-P. 132, A-P. 86). He

had never interviewed any employees to discover their reasons for

absence before or after such a stipulation (IT 192, F. 263).

* The importance of the distinction and its implications are dis-

cussed in Stephanofsky v. Hill, 136 Conn. 379, 383, 71 A.2d 560,

562.

ev’s observation was necessarily sporadie and, by his

own admission, imperfect. (II R. 80-81, D.F. 560-566 ;

It A-P, 129-130). Although Mooney relied o\ bo num-

ber of cars he saw back up and leave during the first

day of the strike, he described this as ‘* 100, 150, or pos-

sibly 200 ears’”’ (LI R. 80, D.F. 560) ; a margin of 100%.

b. Mooncy was biased. The courts below treated Moon-

ev’s experience as the Company personnel director dur-

ing the strike and subsequently as its vice president for

industrial relations as affirmative qualifications (A.

99a, 118a-119a, n, 2 cont.). Their opinions do not show

that they considered that his relationship to the plain-

tiff cast doubt upon the impartiality of his opinion.

ce. There is no logical nexus between the facts on

which Mooney relied and his estimates. Mooney was

completely unable to describe how he proceeded from

his factual assumptions to his ultimate numerical esti-

mates of involuntary absence. Although Mr. Mooney

was repeatedly asked to explain, his answers were tini-

formly evasive and unresponsive. At times he reiter-

ated at length various aspects of the process described

above. In the end, he declared simply that he knew

how many employees were absent each day because of

tortious conduct ‘ton the basis of my experience, I

reach that conelusion, that opinion, on the basis of my

total experience.”’ (IT A-P. 127, 134-135.) It developed

that what Mr. Mooney meant was that the estimates he

made were, in his own ‘*judgment’’, ‘‘reasonable’’:

“* * * it was my judgment based on that experi-

enee, Which | think is reasonably extensive, that

this was a reasonable opinion for the absences

a Se

proximately caused by the violence.’’ (II A-P.

127-128).

To be sure, Mr. Mooney also testified :

‘“* * * it is my view that a reasonable probability ts

that about half, in reund figures, of the thirteen

thousand |absentees on June 9 and 10] * * * were so

affected by the intimidation and tortious conduct

and the fear induced by them, that they remained

away from work for that reason’? (emphasis

added; II A-P. 126-127).°

But he offered no explanation whatever of how he hit

upon the number 6500, or to any reasoning which led

him to conclude that 6500 was a more *‘ probable’? num-

ber than any other. Dr. Herbert Northrup, Chairman

of the Department of Industry of the Wharton School

of Finance and Commerce of the University of Penn-

svivania (Note 2, A. 117a-118a), alse gave his opinion

as to the number of involuntary absences, purporting

to follow the same method. (As will be discussed at

pp. 19-20 below, his estimate of daily involuntary ab-

senteeism differed substantially from Mooney’s). He,

too, was unable to describe any logical nexus between

his premises and his conclusion. Particularly reveal-

ing is the following colloquy between the Referee and

Dr. Northrup:

“The Referee: What is your answer? Is there

any scientifie basis? Is there any principle that

can be taught to others in a school of learning that

would assist one in arriving at these conclusions ?

Cf, (IL A-P. 134): ‘‘I'm not attempting to say anything with

reasonable certainty. <All I’m trying to do is to deliver myself

of opinions with reasonable probability * * *.”’

The Witness: Well, Your Honor, if I were asked

this question in a classroom I would give an answer

based upon my experience and background and try

to help the student arrive at a conclusion. And

that’s the best I could do. I have testified there is

nothing in writing or nobody of knowledge in the

learned journals upon which we could rest.’’ (II

A-P. 103-104).

In fact, Dr. Northrup’s method cannot be taught to

others as he himself virtually admitted (II A-P. 86).

d. Defendants’ experts confirmed the absence of any

logical nexrus. To aid the trial court in evaluating the

character of the opinions proffered by the Company

through Mooney and Dr. Northrup, defendants pre-

sented five distinguished behavorial scientists from var-

ious disciplines and a non-academic practitioner of in-

dustrial relations (A. 121la).’

Each testified that one could not tell, after studying

Dr. Northrup’s and Mr. Mooney’s testimony, how they

had arrived at the starting figure for their involuntary

absence *‘trend lines’? or how they came to their per-

centage figures (II R. 96, 97, D.F. 632, 636; II A-D.

23, 166-167). They discovered no method of determin-

ing how Dr. Northrup and Mr. Mooney weighted the

*Dr. Mason Haire, Alfred Sloan Professor of Management,

Massachusetts Institute of Technology (industrial psychology) ;

Dr. Albert Rees, Professor of Economics, Princeton (labor eco-

nomics); Dr. Seymour Martin Lipset, Professor of Sociology,

Harvard (labor sociology); Dr. William Gomberg, Professor of

Management in Industrial Relations, Wharton School, University

of Pennsylvania (industrial engineering); Dr. Hjalmar Rosen

Professor of Industrial Psychology, Wayne State University

(industrial psychology); Wayne L. Horvitz, independent man-

agement consultant specializing in labor relations.

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various factors they considered or how they combined

those factors (II R. 96, D.F. 632).°

* Thus, Professor Haire testified :

‘‘!T]here’s no logic between the total numbers of people em-

ployed and the percents |Dr. Northrup] comes to. There’s

just a gap that isn’t filled with logic and I don’t think that

anyone else can go over the same steps he did and come

out with the same number he did. THe doesn’t say how he

got that. That’s the sense in which I don’t think I could

come up to the same figures he did * * *. [T|here’s no method

given for handling those factors. |[Dr. Northrup] doesn’t tell

you how he did it. He doesn’t tell you what weight or what

interaction, so that it’s impossible to use those to come to any

precise conclusion. One would have to think about these

factors and then guess. That would be all, I think, I or * * *

any other expert * * * could do.’’ (II A.D. 17-18).

With respect to Mr. Mooney, Professor Haire testified (II

A.D. 22):

‘‘T don’t know how he came to the percentage figure any

more than I know how Professor Northrupt came to the

percentage figure. It’s an interesting percentage figure

but I don’t see at the moment that it’s convincing and I

must say I don’t think any expert is going to be able to

produce a percentage figure on the basis of his expertise.’’

“Q. * * * [T]he fact that he started with deducting the

committed strikers, has it added substantially to your ability

to arrive at a figure of what percentage of the balance were

absent due to violence or fear?

A. No, it hasn’t added substantially to my ability to do it.

It’s another interesting approach but this doesn’t seem to me

to add substantially to the ability to pin it down * * * with

reasonable probability.’’ (II A.D. 22-23).

Mr. Horvitz testified :

‘‘(Mly problem is with putting any number on it, not with

putting a specifie number on it. I’m not impressed with the

fact that Dr. Northrup reaches one number and somebody

else reaches another number and which should you choose

between the two. * * * [T]his one does not lend itself to

quantification in my judgment.’’ (IT A-D. 57).

Mr. Horvitz also testified that he had the same difficulty with Mr.

Mooney’s analysis as he did with Professor Northrup’s. The in-

formation relied on by Mr. Mooney did not constitute reasonable

Although he did not accept their testimony,’ the

trier did not purport in his opinion or findings to iden-

grounds for the formation of any opinion or judgment as to per-

centage of absence due to fear with a reasonable margin of error

(Il A-D. 55).

Professor Lipset testified :

‘“* * * T would say he just had a paucity of the necessary in-

formation.

Q. What’s the consequence? What does his opinion amount

to?

A. It’s a guess which he can make and anybody can make.

I said, if I may, my own judgment, to come up with a fifty

percent figure strikes me as a curious guess. You know, why

fifty? Why not forty-five?’ Why not sixty? I don’t see—

I don’t see any basis for coming—you know, when Gallup,

for example, on the basis of—or anybody on the basis of a

national random sample reports on the attitudes of a popu-

lation, he will say, you know, within a certain margin of error,

and the smaller the sample the greater the margin of error,

and more questions, the greater the margin of error. There

is no indication. It’s just an offhand guess of fifty per cent

in one case, thirty-three per cent in another. * * *

On the basis of what I have read * * * it seems evident to me

that a certain unknown percentage, that, you know, intimida-

tion was present and that there must have been some workers

who did not go to work for shorter or longer periods because

they felt intimidated either on the picket line or elsewhere.

** * On the other hand, what that percentage was * * *

is something which I just don’t have enough information

***”’ (IL A-D. 65, 68-69, 88-89).

See also Professor Gomberg, IT A-P. 160-161, 166, 168: Professor

Rees, IT A-P. 137-138, 140-141; Professor Rosen, IT A-D. 39.

*The Referee ‘‘did not accept the testimony of [defendants’

experts] with respect to the opinions given by Professor Northup

and Mr. Mooney’’ (IT R. 201, F. 294), but he did not identify what

portions of their testimony he did not accept or explain why he re-

jected it. The trier’s rejection cannot have been based on the theory

that they were not sufficiently expert in their own fields, for he

found that they constituted ‘‘a group of eminent authorities in

the field of labor, economics, social science, including psychology,

as well as statisties’’ (A. 10la). See also A. 104a-105a, where the

trier affirmatively relied on their testimony.

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tify any logical nexus between Mooney’s premises and

those of his conclusions the trier accepted. Nor did

the Supreme Court of Connecticut supply this critical

omission.

In response to an inquiry from the Referee, Pro-

fessor Gomberg distinguished between an estimate de-

rived by inference from data which will logically sup-

port it, and a “‘subjective,.intuitive,’’ guess, or specula-

tion (II A-D. 168). Although directed to Dr. North-

rup’s testimony, Gomberg’s reasoning applies as well

to Mr. Mooney.

“There is a technique of logic which gives us the

laws of inference. And the laws of inductive logic

in turn which are based on the precepts of mathe-

matical statisties, give me a sanction for generaliz-

ing from the particular to the general under cer-

tain circumstances. I see no evidence of that pro-

cedure on [Dr. Northrup’s] part, that justifies his

quantitative figures.”’

In answer to the Referee’s question, ‘‘ When is * * *

deduction pure speculation; when is it reasonable ?”’,

Professor Rees stated (II A-D, 145-146): ‘‘When the

maker doesn’t have sufficient facts to enable him to

draw an inference with any aecuracy.’’ See also, Pro-

fessor Lipset, IT A-D. 65, 74; Professor Haire, IT A-D.

16-18 (Dr. Northrup’s percentage estimate “‘was just a

wild guess’’).

e. Defendants’ experts established that Mooney’s

method is not recognized in any profession. Neither

Mr. Mooney nor Dr. Northrup nor any other wit-

ness testified that the Mooney-Northrup ‘‘process”’

or *‘method’’ of estimating the number and _ per-

centage of involuntary absentees is ‘accepted in his

branch of learning’’ (II A-P. 86) and none of defend-

ants’ experts had ever seen or heard of it before. De-

fendants’ experts, whose collective expertise covers all

scientific disciplines relevant here, agreed that the only

source from which an inference could be drawn as to a

reasonably approximate amount or proportion of in-

voluntary daily absence is data based upon the accu-

rately ascertained subjective motivation of absent in-

dividuals (A. 122a; II R. 92, D.F. 605; II A-D. 5-6, 17,

29, 32-34, 38, 51-52, 54-55, 89, 137-138, 140). This could

be probed through each absentee individually, or by

representative sampling, through interviewing, or by

testimony (II R. 63, 92, D.F. 445, 606; II A-D.

147-148, 82-83), with results of varying degrees of ac-

curacy. They testified uniformly that except by ex-

amining the employees’ subjective reasons there is no

probative source of evidence to support any inference

as to the reasonably approximate quantum of involun-

tary absence an any day or all days of the strike (II R.

92, D.F. 605, 607, II A-D. 6-7, 16-19, 27, 29, 36, 37, 49-

51, 56-57). Without such evidence, ‘‘there is no field

of expertise that will make possible other than a specu-

lative response’ (II A-D. 10).”°

Dr. Northrup inadvertently corroborated this testimony in

explaining why he was unable to make an approximation of the

number of employees who returned to work each day because

they could no longer stand the economic privation (rather than)

the ebbing of fear (II A-P. 92):

‘*Because I did not interview and find out the economic situ-

ation for each individual worker or reasonable sample thereof

who returned to work on each particular day.’’

Pe ee

3. Objective Evidence Bearing on the Reliablity of

Mooney’s Method.

a. The extent of variance between the estimates of

Mr. Mooney and Dr. Northrup. The trier properly

observed (A. 105a) that

“TT]n estimating the number of involuntary ab-

sences, the daily total in the early period was

greater in Dr. Northrup’s opinion than the number

indicated by Mr. Mooney, while in the latter period

of the strike, it was the reverse.’’

But he did not foeus on, and therefore failed to draw

the appropriate conclusion from, the extent of the vari-

ance between them. To demonstrate the variances we

have plotted their estimates of daily involuntary ab-

sence at Pratt & Whitney and Hamilton Standard on

Charts 3 and 4, annexed, with accompanying tables,

infra.

For example, Dr. Northrup estimated that on June

13, there were 7822 involuntary absentees at Pratt &

Whitney (II R. 188, F. 248). Mr. Mooney estimated

that on that date there were 5500 (II R. 194, F. 269).

Dr. Northrup’s estimate is 42 percent higher than Mr.

Mooney’s (Table 3A, infra.) ™

Even greater discrepancy appears when their esti-

mates of involuntary absence at the end of the strike

are compared. For example, Dr. Northrup estimated

that at Pratt & Whitney, on July 29, there were 577

involuntary absentees (II R. 188, F. 248). Mr. Mooney

estimated 1000 (II R. 195 F. 269), 73 percent more

11Dr. Northrup estimated that on that day there were 1914

involuntary absentees at Hamilton Standard (II RP. 189, F. 249).

Mr. Mooney estimated 1500 (II R. 195, F. 272). Dr. Northrup’s

estimate is 28 percent higher than Mr. Mooney’s (Table 4A, infra).

(Table 3A, infra).’? At Hamilton Standard there was

never a difference of less than 15 percent, and for the

dates between July 15 and the end of the strike the

difference ranged from 129 percent to 171 percent

(Table 4A, infra). At Pratt & Whitney there were,

after the first two days seven days on which the differ-

ence was less than 10 percent but it was already as high

as 46 percent and 47 percent during the first full week

of the strike and after the 4th of July it was less than

15 percent only twice and ranged as high as 95 per-

cent (Table 3A, infra).

b. The trend lines established by plaintiff’s involun-

tary absence witnesses prove that Mooney’s are ficti-

tious exaggerations. At the first damage trial the

Company produced 212 employees handpicked by its

counsel, each of whom had been absent for one or more,

but less than all, days of the strike, who testified that

their absence had been involuntary.” At the second

damage trial the Company introduced a transcript of

75 of these witnesses and one hundred and thirty-five

additional hand-picked witnesses. (A.116a, 101a-

102a). Company counsel did not claim that these

witnesses had been selected by any randomizing tech-

nique or that the universe interviewed included all

employees still on the Company’s payroll who had

'? Dr. Northrup estimated that at Hamilton Standard on Augus’

8 there were 200 involuntary absentees (II R. 188, F. 248). Mr.

Mooney estimated 500 (II R. 196, F. 272), 150 percent more.

(Table 4A, infra.)

'* The trial court found that the testimony of these witnesses

established ‘‘a clear pattern of lost work days directly and proxi-

mately attributable to the illegal acts of the defendants’’ (A, 57a)

but failed to describe what the pattern was.

me Lo eth a I etn tlie a

;

been absent during the strike; he did not even deny

that the witnesses had been selected for the purpose of

maximizing an impression of extended involuntary

absence. No explanation was ever offered for the Com-

pany’s failure to despose or call all available strike

period absentees whose absence the Company claimed

was involuntary, or even to call or despose an unbiased,

random, sample of all absentees still in its employ.

The Mooney involuntary absence estimates and his

involuntary absence ‘‘trend lines’? are in conflict not

only with the facts, but with the ‘‘trend !ne’’ or

‘‘nattern’’, p. 20, n.13 supra, established by collation of

the testimony of the Company’s winesses. Of those

who testified that their absence was involuntary, 77

percent at Pratt & Whitney and 75 percent at Hamilton

Standard had returned to work by June 20 and 93

14 Of the 16,000 employees in the Pratt & Whitney Division

bargaining unit at the time of the strike 6800 remained on the

Company’s payroll at the time of the 1972 retrial. Of these 6800,

3800 had been absent one or more days but not for the entire

duration of the strike, and 1600 had stayed out during the entire

strike (11 R. 139, F. 10). Of the 4350 employees in the Hamilton

Standard Division bargaining unit at the time of the strike, 1550

remained on the payroll at the time of the 1972 retrial. Of these

1550, 1000 were absent one or more days but not for the entire

duration of the strike, and 500 had stayed out during the entire

strike (IIT R. 139, F. 11).

The Connecticut courts ultimately found that ao absence after

the week ending July 1 was involuntary (A. 117a, 105a.) Thus,

by restricting the universe to employees who had been absent less

than all days of the strike, rather than including ‘‘all who had

refrained from work’’ (A. 87a), the Company excluded thousands

of voluntary absentees who were easily available. This deliberate

skewing precludes drawing from its witness ‘‘sample’’ any infer-

ence favorable to the Company as to the percentage of absence

which was involuntary,

percent at Pratt &€ Whitney and 90 percent at Hamil-

ton Standard had returned by June 27.”

Even disregarding the exaggeration inherent in the

Company’s biased witness collection, by comparison

with it, Mooney’s estimates of involuntary absence

between June 17 and July 1 are vastly inflated, as

appears from Charts 1 and 2, infra, and the following

table:

Pratt & Whitney Hamilton Standard

Plaintiff ’s Plaintiff ’s

Date Mooney Estimate Witness Sample Mooney Estimate Witness Sample

No. %* No %* No. %* No. %*

6/9 6500 100 113 100 1500 100 20 100

6/13 5500 85 88 78 1500 100 20 = 100

6/17 4500 69 20 44 1100 73 9 45

6/24 2600 40 11 10 800 53 t 20

7/1 = 1800 28 4 3. 600 40 1 4)

*In this Table the figures in the number columns for June 9

equal 100%. Subsequent figures in each % column show the per-

cent for that date as compared with the June 9 figure.

ce. The Referee’s Own Decision Fatally Undermines

Mooney’s Estimates.

The Referee found that:

‘*Both Dr. Northrup and Mr. Mooney testified that

the effects of * * * fear engendered by the tortious

acts of the defendants at the gates of the Pratt &

Whitney and Hamilton Standard Plants were a

proximate cause of involuntary absences of a por-

tion of the plaintiff’s direct labor employees down

to the end of the strike.’’ (A. 104a).

% Only 4 ont of 113 at Pratt &Whitney and 2 out of 20 at

Hamilton Standard were still absent on July 1, and the Referee

refused to believe that the absence of even this handful after that

date was attributable to fear.

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The Referee discredited this testimony. He said (id):

‘*Taking into consideration the injunction of June

13, 1960, a similar injunction issued by the U.S.

District Court of this State, the cessation of film

taking by the plaintiff of picket activity; the with-

drawal of the state police; the widespread publi-

city both on T.V., Radio and the newpapers of the

issuance of the injunctions, I am not persuaded

that the after effects of the fear induced by the

tortious acts of the defendants caused involuntary

absences, after the week ending July 1, 1960.”’

-Nevertheless, the Referee adopted Mr. Mooney’s

estimate of the amount of strike absence up to July 1

which was involuntary. In doing so, he overlooked

that his own finding established that Mooney had virtu-

ally ignored and grossly undervalued the fear-dissipat-

ing effects of the events of June 11 to July 17, on

which the Referee relied. That error did not merely

infect and invalidate Mooney’s estimates of involuntary

absence after July 1, it similarly infected and invali-

dated his estimates before July 1.° It did so for several

reasons."

First, Mooney used the same facts, assumptions and

method of computing daily involuntary absence

16 The same is true, of course, of Northrup’s estimates.

17 Mooney’s method is further impeached by the first decision

of the Supreme Court of Connecticut. Mooney had given his

opinion with ‘‘reasonable probability’’ as to how long the strike

would have lasted had there been no violence, but the court found

that this opinion was too speculative to be accorded ‘‘significant

weight’? (A. 84a-85a). Mooney gave no explanation as to why

his quantification of involuntary absence was more reliable than his

estimate of strike duration, which was based on that quantification

(A. 84a-85a), and neither the Referee nor the Supreme Court in

its second opinion explained the difference.

throughout the strike. There is no rational basis for

believing that his judgment on this matter has any

worth whatsoever if he so completely misunderstood the

dynamics of the situation that he ascribed fear as the

reason for absence of 1800 employees (at Pratt & Whit-

ney alone) as of July 4, whereas the trier of fact found

that none of the absences on that date were involun-

tary.

Second, Mooney’s estimates of pre-July 1, involun-

tary absence were based on the assumption that 1000

of the registered strikers at Pratt & Whitney and 500

at Hamilton Standard had been absent involuntarily

throughout the strike. (1I R. 83, 196 D.F. 577, 595, F.

272). In other words, the starting point of his analysis

was that although more than 4500 emplovees registered

as strikers (that is, were absent during the entire

strrike) at Pratt & Whitney and 2000 at Hamilton

Standard, only 3500 at Pratt & Whitney and 1500 at

Hamilton Standard were ‘‘committed”’ strikers who

had voluntarily gone on strike and stayed out voluntar-

ilv for its duration. See p. 9, n. 3 supra. By his find-

that none of the absences from July 1 to the end of the

strike were involuntary (A. 105a), the trier destroyed

the starting point of Mooney’s analysis and every single

figure thereafter.

Third, reasoning backwards in time from the Ref-

eree’s finding that 1800 absentees at Pratt & Whitney

and 600 at Hamilton Standard whom Mr. Mooney

counted throughout as involuntary were not absent, as

of July 4, involuntarily, it follows that their absence

from June 9 to July 1 likewise cannot be attributed

to fear. For, there was no testimony by Mooney (and

no other evidence in the reeord), and the Referee did

not find, that anything occurred on the weekend be-

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tween July 1 and July 4 to transform 2400 “involun-

tary’? absentees into ‘“‘voluntary’’ absentees. The find-

ing that their absence after July 1 was not involun-

tary therefore required deducting 1800 at Pratt &

Whitney and 600 at Hamilton Standard from Mooney’s

daily involuntary absence totals each day prior to July

Adjustment of the ‘‘trend lines’’ to show disappear-

ance of involuntary absence by July 1 is plotted in

Charts 1 and 2 and accompanying Table 1A and 2A,

infra.

In sum, the Referee’s own findings strip Mooney’s

pre-July 1 daily involuntary absence figures of their

only supporting structure.”

Il. THE HISTORY OF THIS LITIGATION.

A. The Liability and First Damage Trials.

The case was assigned for trial to Gaffney, J. The

trial was bifurcated into liability and damage stages.

After the liability trial the court found defendant

unions liable for violence at the plants’ premises, pri-

marily by mass picketing during the first few days of

the strike before the June 15 stipulation and also for

‘arious vicious and lawless acts, referred to as ‘night

18 Even if, notwithstanding all of the foregoing, the Mooney

‘‘method’’ were given credence, that is, if one were to assume

that there were involuntary absence trend lines as postulated by

Mooney, but reduced by 1800 at Pratt & Whitney and 600 at Ham-

ilton Standard, the percentage of involuntary absence at Pratt &

Whitney would be diminished from 23.6 percent to 12.1 percent

(IT R. 202, F. 299), and at Hamilton Standard from 19.3 percent

to 8.1 percent (IT R. 202, F. 301). Plaintiff’s damages at Pratt &

Whitney would thereby be reduced from $979,200 (IT, 212, F. 355)

to $508,337, and at Hamilton Standard from $444,811 (TI R. 212,

I, 356) to $172,682.

riding’, which were committed by individuals away

from any of plaintiff’s plants. (A. 27a-55a, 75a-80a).

In first damages trial the Company presented vari-

ous theories including, inter alia, that the unions were

responsible for its entire strike loss; that they were

responsible for the loss after the point at which the

strike would have ended but for violence; and that

they were responsible for all involuntary absences. As

to the latter point, the Company asserted that it was

impossible to sparate involuntary absences from vol-

untary absences, but that if it was possible, the burden

of separation was on the defendants (A. 8la-82a). The

Company did not seek to prove involuntary absenteeism

hy testimony of the employees themselves, although

they obviously knew best their own motivation—which

was the point at issue. Nor did the Company offer a

representative sample of such employees; that is, a

sample chosen on a random basis. Rather, it offered

some employees, chosen by Company counsel, who had

returned to work before the end of the strike and who

testified that their absence was involuntary. These,

the Company argued, established a ‘“pattern,’’ from

which the trier could draw “inferences.” Lastly, the

Company offered two “‘experts,’’ Dr. Herbert North-

rup and Mr. Morgan R. Mooney, who estimated the

amount of involuntary absenteeism on each day of the

strike and testified that the strike would have ended

sooner but for the violence. They attributed the con-

tinuation of substantial involuntary absence after the

third week of the strike to fear engendered by the

‘night riding’ (I R. 293, F. 651).

Judge Gaffney adopted the opinion of Dr. North-

rup that, absent violence, the strike at Pratt & Whit-

ney would not have lasted beyond three weeks and

that at Hamilton Standard it would not have extended

oi let een 6

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beyond four to six weeks (id.). He also accepted

Northrup’s estimate that at the end of the three-week

period fear was the reason that 50 per cent of the em-

ployees did not report to work, a figure which North-

rup reduced to 25-3314 per cent by the end of the strike ;

he also believed Northrup’s estimate that at the end of

the strike 20 per cent of the Hamilton Standard work

force failed to report due to fear (A. 57a-58a).

B. The First Opinion of the Supreme Court of Connecticut.

Both parties appealed to the Supreme Court of Con-

necticut. That court sustained the liability determina-

tion except with respect to incidents not connected to

union officers and incidents away from the plants, which

it held could not be attributed to petitioners (A. 79a-

80a). The court held that because of this error in the

liability determination, a new trial on damages was

necessary. It then instructed the trial court on how

to proceed on the retrial (A. 80a-S1a). It held that

proof of how long the strike would have lasted absence

violence is unnecessary ; plaintiff could obtain damages

for involuntar’ absence at any time during the strike

(A. 85a). With respect to proof of that issue, the

Court said (A. 87a):

‘The court made its determination * * * mainly on

the basis of the testimony of [Dr. Northrup] * * *

who was permitted, over the defendants’ objec-

tion, to state his opinion as to the percentage of

the plaintiff's employees who stayed away from

their employment involuntarily, and the reception

of this evidence by the court is assigned as error

by the defendants. While expert opinion would

be relevant provided the court accorded it per-

suasive weight as was done in these cases, other

methods of determining the element of involun-

tary absence of equal or greater weight might be

resorted to such as a representative sampling of

employees who refrained from work. The evi-

dence to be relied on for arriving at a reasonable

approximation is for the court to decide.”’

C. The Second Damage Trial.

On remand, the case was assigned to the Hon. Joseph

KE. Klau, State Referee. Despite the invitation of the

Supreme Court of Connecticut, plaintiff did not offer to

produce a sample of available absentees selected at

random, that is one which was representative in a statis-

tically meaningful sense. Again, the Company offered

opinion testimony of Dr. Herbert Northrup and Mr.

Mooney which challenged as unscientific guesswork, pp.

14-18, supra, petitioners’ witnesses.

The Referee construed the above quoted portion of

the opinion *‘to mean that the testimony of Dr. North-

rup and Mr, Mooney were admissible, and that it could

he accorded persuasive weight if in the opinion of the

trier it was entitled to it’’ (A. 101a).

He decided to accord it ‘“‘persnasive weight’’ be-

cause (absent any evidentiary support and contrary to

the testimony of all defendants’ expert witnesses) :

‘*In view of the practical and legal problems of

obtaining reliable data from a statistically repre-

sentative sample of absentees either during or im-

mediately after the strike, the State Referee, acting

as the Court, finds that at no time during or after

the strike was plaintiff able to obtain reliable data

from a statistically representative sample of ab-

sentees for introduction into evidence.”’ ® IT R, 201-

202, F’. 297.

'* Plaintiff had adduced no evidence of any ‘‘ practical and legal

problems of obtaining reliable data’’ from all or a statistically rep-

resentative sample of absentees immediately after the strike, when

virtually all absentees were available and memories were fresh.

Nor did it adduce any evidence that ‘‘difficulties’’ of any kind

were the reason it did not then undertake a representative sam-

pling. The portion of the above quotation beginning ‘‘The State’’

and ending ‘‘time’’ is inadvertently omitted from the Appendix,

A. 119a.

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However, the Referee did not find that it was im-

practical for plaintiff to have presented as witnesses

at the retrial a sample of available absentees selected

at random.

As stressed at pp. 22-25, supra, the Referee found

that after July 1, 1960, no employee was absent either

because of the aftereffects of fear induced by defend-

ants’ tortious conduct before the stipulations, or be-

cause of tortious conduct thereafter (A. 105a).

The portion of plaintiff’s strike loss attributable to

defendants was arrived at by obtaining the percentage

of involuntary absence days compared to tetal strike

absence days derived from Mr. Mooney’s estimate of

involuntary absence days to and including July 1, and

applying that percentage to the total strike loss alleged

by the Company (A. 105a-106a).

D. The Second Decision of the Supreme Court of Connecticut.

The Supreme Court of Connecticut approved the

Referee’s acceptance of Mooney’s speculative esti-

mates. It reached that result by eschewing or misap-

plying rules indispensable to effectuation of the limi-

tation acknowledged in its first opinion, namely, that

state courts are bound to limit recovery to the conse-

quences of only those strike absences which are proved

by competent, probative, evidence to have been caused

by “‘tortious acts’’ (A. 82a, 8la).

In its first opinion (A. 85a), the court had cited

Stephanofsky v. Hill, 136 Coun, 379, 384-385, 71 A.2d

560, 563, for the proposition that expert opinion, if

speculative, cannot be relied on as probative.”

“In Stephanofsky the court held the opinion of an expert as to

the cause of an accident speculative because the facts relied on

did not exclude the possibility of other causes. Under that ap-

In its second opinion, the court substituted a much

earlier, far less sophisticated, statement governing ad-

missibility of expert testimony:

‘“*The true test of the admissibility of [expert

opinion] testimony is not whether the subjeci

matter is common or uncommon, or whether many

persons or few have some knowledge of the matter ;

but it is whether the witnesses offered as experts

have any peculiar knowledge or experience, not

common to the world, which renders their opinions

founded on such knowledge or experience any aid

to the court or the jury in determining the ques-

tions at issue.’ Taylor v. Monroe, 43 Conn. 36,

44, cited with approval in Schomer v. Shilepsky,

—Conn. (37 Conn, L. J., No. 4, pp. 10,12). Impli-

cit in this standard is the requirement, later arti-

culated, that the expert’s knowledge or experience

must be directly applicable to the matter in issue.

Siladi v. MeNamara, 164 Conn. 510, 513-14, 325

A.2d 277.”’ (A. 120a-121a).

On this basis, the court held Mooney and Northrup

qualified ‘‘to render opinions regarding [the extent of]

involuntary absenteeism during the strike’’ (A. 117a,

119a). However, it failed to identify any relationship

between their ‘‘observations’’ and ‘‘experience’’ on the

one hand and eapacity to quantify the motive for non-

witness absence on the other, pp. 11-12, 13-14 supra. The

court apparently ruled as a matter of law that the trier

properly rejected the testimony of defendants’ experts

proach the Mooney estimates ‘‘should have been excluded as a

guess’’ (136 Conn. at 385, 386, 71 A.2d, at 563, 564), for it is

not even asserted that the facts cited by the court (A. 121a)

logically erclude the possibility that causes other than misconduet

for which petitioners were held responsible (such as strike sup-

port or participation, unwillingness to alienate strikers, a ‘‘ wait

and see’’ attitude or sheer timidity) motivated all but a handful

of the non-witness absences they classified as ‘‘involuntary.’’

ae ae ee re Se

that the facts on which Mooney and Northrup relied are

not rationally sufficient to infer the motivation (in re-

fusing to cross the picket lines) of the thousands of in-

dividuals to whom Mooney and Northrup had not

spoken and about whose personal motivation they knew

nothing. Nor did the court identify any logical nexus

between the assertedly supporting matters they ‘‘took

into account’’ (A. 121a) and their qualification to quan-

tify.

The only apparent explanation for permitting an

opinion as to quantum of involuntary absence to be de-

rived in this fashion is the following:

‘The fact that the subjective motivation or state

of mind, in this ease the absentees’ fear, could be

inferred by the trier from other facts is a well

settled rule of evidence. Frequently the only

method of establishing what lay in the mind of a

person when he acted is through such an infer-

ence.”’ (A, 122a)

Incomprehensibly, the court denied that the Referee

had ‘‘reject{ed] Mooney’s opinion as to the number of

persons who were still affected by fear after July 1”

(A. 123a),"" and likewise denied that the Referee had

rejected Northrup’s estimates of pre-July 1 involuntary

absence insofar as they were inconsistent with Mooney’s

*1The court’s assertion (A. 122a), that the Referee merely

“placed more reliance’’ on Mooney’s opinion with respect to the

cause of pre-July 1 absences is refuted by the very portion of the

Referee’s opinion quoted in the next paragraph. The Referee

found that Mr. Mooney was of the opinion that after July 1, the

daily involuntary absences were limited to those who were afraid

to return to work “‘until the strike was over’’. (A. 124a) In the

face of the Referee’s finding (A. 105a) that there were no such

absentees, the court’s reference to Mooney’s ‘‘explanation’’ of

the “‘leveling off of [involuntary] absences from July 1 to the

termination of the strike’’ as ‘‘significant’’ passes understanding.

(A, 122a). In holding that the Referee’s finding that

fear was not the cause of any absences after July 1 (pp.

22-23, supra), ‘did not affect or destroy the weight

which the court gave to Mooney’s testimony and opinion

concerning that period between the commencement of

this strike and July 1, 1960’’ (A. 124a), the court ig-

nored the necessary implications of that finding.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW UNDERMINES THE CONGRES-

SIONALLY PROTECTED RIGHT TO STRIKE BY

AWARDING DAMAGES FOR CONDUCT NOT PROVEN

TO BE PROXIMATELY CAUSED BY ILLEGAL CON-

DUCT.

A. When this Court last had before it a judgment

for damages imposed upon a union for violence during

a strike the Court said:

‘‘Our opinions on this subject, frequently an-

nounced over weighty arguments in dissent that

state remedies were being given too broad scope,

have approved only remedies carefully limited to

the protection of the compelling state interest in

the maintenance of domestic peace. Thus, in San

Diego Building Trades Council v. Garmon, 359

U. 8S. 236, we read our prior decisions as only al-

lowing ‘the States to grant compensation for the

consequences, as defined by the traditional law of

torts, of conduct marked by violence and immi-

nent threats to the public order,’ id., at 247, and

noted that in Laburnum

‘damages were restricted to the ‘‘damages di-

rectly and proximately caused by wrongful con-

duct chargeable to the defendants ...’’ as de-

fined by the traditional law of torts. ... Thus

there is nothing in the measure of damages to

indicate that state power was exerted to com-

pensate for anything more than the direct con-

vita ee

i. Mea Tiare

, he?

ee ee a ee eee esis «ha bln w

sequences of the violent conduct.’ Id., 248, n. 6,

at 249.” (Mine Workers v. Gibbs, 383 U.S. 715,

729-730. )

The Court took special note that in prior cases in

which relief by way of damages or injunction had been

approved, the Court had satisfied itself that the dam-

ages had been limited to those proximately caused by

violence, and that only violent conduct had been en-

joined. The Court also pointed to Youngdahl v. Rain-

fair, Inc., 355 U.S. 131, where it had modified an in-

junction issued against a background of violence to

permit peaceful picketing:

‘**[Tt] hough the state court was within its disere-

tionary power in enjoining future acts of violence,

intimidation and threats of violence by the strikers

and the union, yet it is equally clear that such court

entered the pre-empted domain of the National

Labor Relations Board insofar as it enjoined

peaceful picketing ....’”’ (355 U.S. at 139, quoted

at 383 U.S. at 730-731.)

Additionally, the Court analogized to Teamsters Un-

ion V. Morton, 377 U.S. 252, where

‘fa similar analysis was applied to permit re-

covery under § 303 of damages suffered during a

strike characterized by proscribed secondary ac-

tivity only to the extent that the damages claimed

were the proximate result of such activity; dam-

ages for associated primary strike activity could

not be recovered.’’ (383 U.S. at 731, n. 17.)

In sum, ‘‘[w]here the consequences of peaceful and

violent conduct are separable, * * * it is clear that re-

covery may be had only for the latter’’ (383 U.S. at

732).

The courts below did not openly defy the principles

established in those cases, but they did the next worst

thing. They allowed respondent to recover an enor-

mous damage award based not on probative evidence

but on speculation that a large percentage of employee

absence during the strike was caused by illegal con-

duet. Because, as detailed in our Statement and fur-

ther discussed below, that speculation does not satisfy

the requirements of logical inference, it fails to pro-

vide the requisite assurance that the huge damage

award predicated upon it is ‘‘restricted to the ‘dam-

ages * * * caused by wrongful conduct chargeable to

the defendants .. .’,’’ (Gibbs, supra, 383 U.S. at 730

quoting Garmon and Laburnum). Indeed, this record

compels the conclusion that defendants have been

charged for damage largely resulting from successful

exercise of ‘‘a weapon of self-help permitted by federal

law’? (Morton, 377 U.S. at 259)—the strike and (after

the first few days) peaceful picketing designed to in-

duce employees to respect the federally permitted and

protected picket lines. Cf. @ ibbs, supra, 383 U.S. at 732,

n. 18. ,

Ironically, and unbearably, the federally protected

reaction of employees—not to work during the strike

—has been transmuted by the alchemy of ‘‘expert opin-

ion’’ into a financial liability of the Union to the em-

ployer. Unless state courts are to be allowed thus to

transform strike absence from a federally protected

right to a springe of union liability, the judgment be-

low should be reviewed and reversed.

B. In Letter Carriers v. Austin, 418 U.S. 264, 282,

it was said:

‘“‘The Court has often recognized that in cases

involving free expression we have the obligation,

nee a Bh

tle oat. 0) sectnelive§ sil.

“

not only to formulate principles capable of gen-

eral application, but also to review the facts to

insure that the speech involved is not protected

under federal law. [Citations omitted]

‘We must ‘‘make an independent examination

of the whole record,’’ Edwards y. South Carolina,

372 U. 8, 229, 235, so as to assure ourselves that

the judgment does not constitute a forbidden in-

trusion on the field of free expression.’ New York

Times Co. v. Sullivan; supra, at 285.

_ While this duty has been most often recognized

in the context of ciaims that the expression in-

volved was entitled to First Amendment protec-

tion, the same obligation exists in cases involving

speech claimed to be protected under the federal

labor laws. This obligation, derived from the su-

premacy of federal labor law over inconsistent

state regulation, Hill vy. Florida ex rel. Watson,

325 U. 8.538 (1945) ; Teamsters Local 24 v. Oliver,

358 U. S. 283, 295-296 (1959), requires us to de-

termine whether any state libel award arising out

of the publication of the union newsletter involved

here would be inconsistent with the protection for

freedom of speech in labor disputes recognized in

Linn |v. Plant Guard Workers, 383 U.8. 53).”

Here too, the Court has an ‘‘obligation, derived from

the supremacy of federal labor law over inconsisteat

state regulation’’ to review the record to insure that

the judgment below does not constitute a forbidden in-

trusion on the exercise of the federally protected right

to strike, to picket and to respect peaceful picket lines.

For, as Gibbs clearly indicates, the necessity of this

Court’s guarding federally protected labor conduct

against potentially inconsistent damage awards is not

confined to protected speech. Indeed, Linn equates

the balancing state interest in awarding damages for

defamation with the state interest recognized in La-

burnum and its progeny in awarding damages to pre-

serve the peace (see 383 U.S. at 61-62.)

Directly applicable too is the observation in Linn

also repeated in Letter Carriers:

“We think it important again to point out * * *

that ‘in view of the propensity of fsa to award

excessive damages for defamation, the availability

of libel actions may pose a threat to the stability

of labor unions and smaller employers.’ Linn

383 U . S., at 64. It is for this reason that the

Court in Linn held that ‘[i]f the amount of dam-

ages awarded is excessive, it is the duty of the trial

judge to require a remittitur or a new trial.’ Jd.

at 65-66”. (418 U.S. at 287, n. 17, this Court’s

emphasis in Letter Carriers.)

Of course, state trial courts have a like duty, not to

enter excessive judgments in non-jury cases; and state

appellate courts have a duty to set such excessive

judgments aside, for they share the Supremacy Clause

obligation to avoid such a ‘‘threat to the stability of

labor unions.’? But unless this Court reviews such un-

precedented judgments as this one, where it appears

that the state courts have shirked their duty, the duty

1s a meaningless form of words.

C. Acceptance of Mooney’s estimates as ‘expert

opinion” makes a shambles of the law of evidence

. W hatever may be the general formulation, the essen-

tial requirement is that mere speculation be not allowed

to do duty for probative facts, after making due allow-

ance for all reasonably possible inferences favoring the

party whose case is attacked.’ Galloway v. U nited

States, 319 U.S. 372, 395. Above all, it flouts what

Wigmore properly describes as one of two axioms of

admissibility :

‘None but facts having rational probative value

are admissible. This principle is indeed axiomatic,

for any system of Evidence purporting to be ra-

tional. It assumes no particular doctrine as to the

kind of ratiocination implied,—whether practical

or scientific, coarse and ready or refined and syste-

matic. It prescribes merely that whatever is pre-

sented as evidence shall be presented on the hypo-

thesis that it is caleulated, according to the pre-

vailing standards of reasoning, to effect rational

persuasion.”” 1 Wigmore, E vidence 289 (3rd ed.,

1940, emphasis in original.)

We earnestly submit that where a witness gives an

opinion without being able to explain the reasoning pro-

cess by which he reaches it and is unable to demonstrate

a logical nexus between his factual premises and his

conclusion, his «pinion has no probative value. To offer

such an opinio: ¢o a trier of fact is not to engage in ra-

tional persuasion, but to invite a leap of faith. Here,

neither the witness himself, nor respondent’s learned

counsel on brief, nor the courts below have ever ex-

plained the connection between the facts and figures on

which the estimates are assertedly premised and the

estimates themselves.

Applicable to Mr. Mooney is the Sixth Cireuit’s ra-

tionale for rejecting the testimony of another expert

witness : ‘How he arrived at this figure is unexplained.

He applied no mathematical formula. It appears to be

a figure arbitrarily taken out of thin air.”’ Volasco

Products v. Fry Roofing Co., 308 F.2d 383, 392 (6 Cir.)

D. The court below invoked the rule of damages de-

clared in Story Parchment Co, v. Paterson Parchment

Co., 282 U.S. 555, 563 (reaffirmed in Bigelow v. RKO

Radio Pictures, 327 U.S. 251, 264), that damages may

be calculated ‘‘as a matter of just and reasonable in-

ference, although the result be only approximate” (A.

115a-116a, 120a, 122a-123a). But it disregarded the

essential corollary of that rule, that ‘‘even where the

defendant by his own wrong has prevented a more pre-

cise computation, [which is not the case here, see pp.

40-44 infra] the jury may not render a verdict based on

speculation or guesswork.”’ Bigelow, 327 U.S. at 264.

See also Story, 282 U.S. at 563. The decision below is

thus inconsistent with the principle it purports to ap-

ply, and with those decisions, which are faithful to

limitations inherent in the Story-Bigelow rule, such

Volasco, supra, and Coleman Motor Co.., v. Chrysler

Corp., 525 F.2d 1338,.1352 (3 Cir. 1975), where the

court, accepting Story, said:

‘damage figures advanced by plaintiff’s expe

may be substantially attributable to lawful soles.

tition. In the absence of any guidance in the ree-

ord, we cannot permit a jury to speculate concern-

ing the amount of losses resulting from unlawful

as opposed to lawful, competition.”

A judge is no more entitled than a jury to attribute

losses to unlawful rather than lawful causes on the

basis of speculation.

E. The reasoning of the Supreme Court of Connee-

ticut in sustaining the trial court’s reliance on Moonev’s

opinion only introduced new errors into the analysis.

We confine ourselves to the most significant:

1. The court held Mooney’s opinion admissibl

the theory that , ' seliaity

“subjective motivation or state of mind, in this

case the absentees’ fear, could be inferred .. . from

other facts ...”’ (A. 122a), quoted at p. 31, supra,

Heretofore, an inference of subjective motivation from

‘‘other facts’? has been permitted only where those

‘‘other facts’’ have consisted of probative behavior by

the individual whose motive is in question. Here there

is no such behavior by which the motive of one non-

witness absentee can be distinguished from another’s.

The rule that motive may legally be inferred from pro-

bative circumstantial evidence does not guarantee the

existence of such evidence in every case or license an

inference as to motive where there is no evidence which

permits a reasonable inference. In this case absence is

a neutral fact, and to infer motive from its mere e.rist-

ence is the essence of forbidden speculation. Possible

reasons far absence during a strike are so numerous

that the question whether any particular individual’s

absence was due to fear of violence, or solidarity with

the union, or fear of social ostracism, or hope for eco-

nomie gain if the strike is successful, is known only to

the individual absentee. It follows that the only com-

petent evidence is either the testimony of absentees

themselves or of a representative sample.”

2. The court below recited at length Mooney’s ex-

perience in industrial relations. But it failed to take

22 Mooney did not (A. 121la), beeanse he could not, quantify, for

example, the ‘‘employees who did not want to alienate fellow

employees’’: he had not spoken to any of the strikers to learn how

they felt. Cf. p. 18, n. 10, supra. But if he could not quantify

those who were voluntarily absent for that reason, how could he

know that any employees whose absence he attributed to fear

were not absent because they ‘‘did not want to alienate their fellow

employees’’? And even if it be assumed, without any scientific

basis, that the proportion of individuals in a group who were mo-

tivated by fear is uniquely subject to quantification, then how

could Mooney distinguish (and thus quantify) those who were

absent because of fear created by tortious conduct on the premises,

if he could not quantify the ‘‘employees who were absent because

of fear created by tortious acts committed off the premises”’, for

which the court below had ruled the defendants were not liable

(A. 79a-80a) ?

account of the patent bias inherent in Mooney’s long-

time employment by the plaintiff, and his specially

adversary relationship to the union as personnel di-

rector during a bitter strike, and later as vice presi-

dent for industrial relations. Surely, such bias should

have caused the court, if not to discredit his subjective

estimates, at least to discount them. Contrast: Nor-

land v. Washington General Hospital, 461 F.2d 694,

699 (8 Cir. 1972); Thurber Corp. v. Fairchild Motor

Corp., 269 F.2d 841, 845 (5 Cir. 1959); Luria Brothers

& Company v. United States, 369 F.2d 701, 713 (Ct.Cl.

1966). See II] Wigmore Evidence, p. 646 (3rd ed.

1940) ; IITA id., pp. 786-788.

Moreover, like plaintiff and the trial court, the Su-

preme Court of Connecticut failed to point to anything

in Mooney’s experience which qualified him to give the

particular opinions which the state courts accepted,

although those courts conceded that nexus between the

witness’ expertise and the precise question at issue is

crucial to qualification, p. 30, supra. Cf. Jenkins v.

United States, 307 F.2d 637, 646 (D.C. Cir., en bane),

and particularly the concurring opinion of then Judge

Burger, id. at 647 and 649-650.

3. In its first opinion the Supreme Court of Connee-

ticut invited plaintiff to prove its damages on remand

by use of a representative sample of all absentees (pp.

27-28, supra). The Company chose not to do so, prof-

fering only a skewed group of involuntary absentees

and the estimates of Mooney and Northrup (id.). In

its second opinion, the court approved the trier’s de-

termination that because of ‘‘practical and legal ob-

stacles * * * plaintiff was at no time able to present a

statistically valid sample’’ (A. 119a), and his accept-

ance of Mooney’s estimates as a substitute therefor

(p. 28, supra). This, too, was grave error:

a. Assuming, arguendo, that a representative sam-

ple of all strike period absentees was unobtainable,

and that a representative sample of all absentees avail-

able at the time of the second damages trial would not

have provided an acceptable basis for inference as to

the quantum or percentage of strike absence which was

involuntary, acceptance of Mooney’s opinion would

still be unjustified. There is no rule of law which al-

lows a plaintiff to maximize his recovery on the basis

of incompetent evidence simply because no competent

evidence is available. To allow him to do so is not

only to dilute his burden of proof, but to reach a judi-

cial judgment which has no rational basis. As the

Court of Appeals for the Seventh Circuit said recently :

‘Tt is true, of course, as Hoefferle points out

and as we have held above, that damages need not

be caleulated with mathematical precision. It is

also most unfortunate that the deaths of Clarence

and Dolly Hoefferle may have the effect of pre-

cluding the recovery of damages which rightfully

belong to their company. But as disagreeable as

this result may be, it does not vitiate the rule that

damages must be proved with at least a reasonable

degree of certainty, [citation omitted] which we

do not here perceive.”’ *

23 Hoefferle Truck Sales v. Divco-Wayne, 523 F.2d 543, 553 (7

Cir., 1975). The Court continued:

‘“The admitted fact of damages, moreover, as presumably

established by the liability trial, will not suffice to prove the

amount of damages. [citations omitted |

The evidence, in short, created little more than a specula-

tive inference of the extent of Hloefferle’s injury, and it was

therefore properly excluded.”’

So it is here.

Even more striking is Judge Learned Hand’s opinion,

reaching what he called ‘‘the lamentable result’’ of

denying a plaintiff recovery for profits which the de-

fendant had obtained in violation of an injunction,

because the defendant had destroyed the records which

would have made possible computation of his profits.

Sunbeam Corp. v. Golden Rule Appliance Co., 252

F.2d 467, 471-472 (2 Cir.) (concurring opinion).

Judge Hand approved the reasoning of the early case

of Yesbera v. Hardesty Mfg. Co., 166 Fed. 120, 123

(6 Cir.): ‘‘Of course if, in the absence of the better

proof, there is still nothing of substance left on which

the court can lay hold, there is no help, and the plaintiff

must endure his loss.’”” And Judge Hand added:

‘**Much as we should like to find a way by which to com-

pute the profits, we cannot do so * * *.”’ (252 F.2d

at 472.)

b. The trial court’s impossibility finding, quoted at

p. 28, supra, is contrary to the expert testimony (IT R.

94, D. F. 624, IT R. 201, ef. F. 295), and, in any event,

is irrelevant to the question of why plaintiff elected

to present a biased witness sample and speculative

expert opinion in lieu of a random witness sample

selected from all currently available absentees.

‘*Proof of necessity [for using a representative

sample] does not require a showing of total in-

accessibility to proof of the facts desired to be

shown, but the offeror must show the impracti-

eability of making his proof by conventional

methods. [Footnote omitted.]’’ Manual for Com-

plex Litigation, 1 Part 2, Moore’s Federal Practice

(2d ed.), pt. 2.712, p. 97.

The ‘“‘conventional method’’ in this case required

plaintiff to produce for cross-examination each em-

ployee whose absence plaintiff claimed was involuntary.

Automobile Workers v. Russell, 356 U.S. 684; NLRB

vy. Madison Courier, Inc., 472 F.2d 1307 (D.C. Cir.,

1972). As we have seen, plaintiff did not prove that this

was ‘“‘impracticable.’’ But assuming, arguendo, that

it was, plaintiff was required to prove causation by

the best evidence reasonably obtainable. If the hearsay

objection is to be overcome because large numbers are

involved, the condition precedent necessarily must be

proof of compliance, as fully as possible, with judicially

approved techniques and procedures for random, 1.¢.,

unbiased, sampling. Since no legal or practical prob-

lems prevented plaintiff from presenting a witness

sample chosen at random from the proper universe of

available absentees, rather than a collection of hand-

picked examples, that is what it was required to do.

Projection from such a sample, at the least, would have

tended to corroborate or contradict the opinion testi-

mony.

The present situation is therefore identical to that

in Galloway v. United States, 319 U.S. 372, where this

Court emphatically disapproved another attempt to

substitute ‘‘expert * * * inference’’ for available evi-

dence :

‘“‘The only reasonable conclusion is that peti-

tioner, or those who acted for him, deliberately

chose, for reasons no doubt considered sufficient

(and which we do not criticize, since such mat-

ters, including tactical ones, are for the judgment

of counsel), to present no evidence or perhaps to

withhold evidence readily available * * * and to

trust to the genius of expert medical inference

~ and judicial laxity to bridge this canyon.

‘**In the circumstances exhibited, the former is

not equal to the feat, and the latter will not per-

mit it. No case has been cited and none has been

found in which inference, however expert, has

been permitted to make so broad a leap and take

the place of evidence which, according to all rea-

son, must have been at hand. To allow this would

permit the substitution of inference, tenuous at

best, not merely for evidence absent because im-

possible or difficult to secure, but for evidence

disclosed to be available and not produced. This

would substitute speculation for proof.’’ Id. at

386-387, footnote omitted, emphasis added.

4. The courts below determined that the employee

witnesses were not a representative sample ‘‘of all the

employees employed in 1960, in a statistical or scien-

tific sense’? (A. 119a), and assumed that that justified

totally disregarding it. They refused to acknowledge,

as defendants had urged, that while the sample was

unrepresentative, it permitted, and indeed required,

the drawing of an inference against plaintiff. The in-

ference is that absentees whom plaintiff did not eall

would have given testimony that was no more (and

most probably less) favorable to plaintiff than the

absentees it did call. Since even the biased sample

proves that the witness’ estimates were gross exagger-

ations (pp. 21-22, supra), the inference is inescapable

that a random sample would have proved that involun-

tary absence was a miniscule percentage indeed.

II. THE DECISION BELOW DEPRIVED DEFENDANTS OF

PROPERTY WITHOUT DUE PROCESS OF LAW

This Court has held, in a variety of contexts, that a

judicial or administrative determination which, with-

out some evidence, deprives a person of liberty or

property, is a denial of due process of law. Thomp-

son V. Louisville, 362 U.S. 199, anticipated in Schware

v. Board of Bar Examiners, 353 U.S. 232, 246-247, and

United States ex rel. Vajtauer v. Commissioner, 273

U.S. 103, 106, and frequently followed. See e.g., Shut-

tlesworth v. Birmingham, 382 U.S. 87, 94-95; Johnson

v. Florida, 391 U.S. 596; Douglas v. Buder, 412 U.S.

430; Vachon v. New Hampshire, 414 U.S. 478; ef.

Boilermakers vy. Hardeman, 401 U.S. 233, 246; Wood

v. Strickland, 420 U.S. 308, 323, n. 14.

We submit that because the conclusion that the Com-

pany suffered losses caused by defendants’ tortious ac-

tivity in the amount of over $1,400,000 is not based on

any rationally persuasive ‘‘evidence’’ (see most par-

ticularly pp. 36-37 supra), the judgment denies peti-

tioners due process of law. At the very least, accep-

tance of Mooney’s estimates raises a serious due pro-

cess question which this Court should consider.

Of course, the Company did proffer testimony, which

the courts below accepted as if it were rationally proba-

tive evidence, to justify the damage award. But so did

> the parties who had prevailed below in the cases this

Court reversed for lack of evidence. In Thompson it-

self the Court examined the record and determined that

while there was testimony, ‘**|t]here simply is no sem-

blance of evidence from which any person could reason-

ably infer”’ (362 U.S. at 205, emphasis added) the essen-

tial element of the offense charged. And in Schware, al-

though the Board of Bar Examiners had relied on

‘‘certain facts in the record which raised substantial

doubts about his moral fitness to practice law’’, 353

U.S. at 240 (described id. at 240-246), this Court con-

cluded that ‘‘[t]here is no evidence in the record which

rationally justifies a finding that Schware was morally

unfit to practice law”? (id. at 246-247).™

CONCLUSION

The courts below relied on Mooney’s speculative esti-

mate to determine the issue (decisive under federal law)

of how much strike absence was involuntary. ‘‘No

case has been cited and none has been found in which

inference, however expert, has been permitted to make

so broad a leap * * *”’ (Galloway v. United States, 319

U.S. 372, 387). This petition for certiorari should be

granted.

Respectfully submitted,

Priato E. Papprs

Machinists Building

Washington, D.C. 20036

Mozart G. RATNER

1900 M Street, N.W.

Washington, D.C. 20036

Attorneys for Petitioners

4 We are aware that the Schware case has been vigorously

criticized, Rehnquist, The Bar Admission Cases: A Strange Ju-

dicial Aberration, 44 ABAJ 229 (March, 1958), with particular

attention to this Court’s review of the record, id. at 230-231. How-

ever, Schware was followed in Thompson and its method has sur-

vived, see e.g., Vachon, supra, where this Court made an ‘“‘inde-

pendent examination of the trial record’’ and determined that

the only evidence proffered ‘‘was in no way probative of the

crucial element of the crime * * *’’ (414 U.S. at 479-480). The

Supreme Court of Connecticut was bound by these precedents, and

its disregard of them necessitates this Court’s consideration.

CONSTITUTIONAL PROVISIONS AND STATUTE

INVOLVED

CONSTITUTION OF THE UNITED STATES:

ARTICLE VI

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

AMENDMENT XIV

‘* * * * or shall any State deprive any person of life,

liberty, or property, without due process of law * * * .”’

NATIONAL LABOR RELATIONS Act, as amended:

‘*See. 7. Employees shall have the right to self-

organization, to form, join, or assist labor organiza-

tions, to bargain collectively through representatives

of their own choosing, and to engage in other concerted

activities for the purpose of collective bargaining or

other mutual aid or potection * * *,”’

‘See. 13. Nothing in this Act, except as specifically

provided for herein, shal! be construed so as either to

interfere with or impede or diminish in any way the

right to strike, or to affect the limitations or qualifi-

cations on that right.”’

TREND LINES JUNE 9th THROUGH JULY ist

Pratt and Whitney

INDEX: June 9 = 100

eeceeeeees MOONEY’S ESTIMATES

Source: P. Exh. 2-1

eeeeeeees MOONEY’S ESTIMATES ADJUSTED TO FINDING THAT

° THERE WAS NO INVOLUNTARY ABSENCE AFTER JULY 1.

°. Source: AR. 14, 202, F. 298

————e INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S

EMPLOYEE WITNESS TESTIMONY.

65 ° Source: R. 140, 141-176, F. 13-15, 20-223

e — INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S

.% EMPLOYEE WITNESS TESTIMONY EXCLUDING 58 WITNESSES

55 °° STIPULATED.

5 ‘e Source: R. 140, 141-176, F. 13-15, 20-223

25 "ie.

20 a

15 meerte. VACATION

I J

| } 4 ae 4 l |

8 9 10 13 14 15 16 17 20 21 22 23 24 27 28 2930 14 5 6 7 8 11 12 13 14 15 18 19 20 21 22 25 26 27 286 29 123 45 8

JUNE JULY AUGUST

DATES ABSENT

REFERENCE TABLE 1A -- CHART 1 -- PRATT & WHITNEY

NUMBER ANP INDEX OF INVOLUNTARY ABSENCE

JUNE 9th THROUGH JULY 29th

1 2 3 4 5

Involuntary

Absence Found Mooney's Adj. Est.

Mooney Estimates (Plaintiff's Employee Excluding 58 Firred to Index of

Mooney's Estimates Adjusted (less 1800) Witnesses) Stipulated Wimesses Employee Witnesses

Number Index Number Index Number Index Number Index Number Index

6500 100 4700 100 165 100 113 100 4700 100

6500 100 4700 100 162 98.2 112 99.1 4615 98.2

5500 84.6 3700 78.7 105 63.6 88 77.9 2989 63.6

5200 80.0 3400 72.3 84 50.9 82 72.6 2392 50.9

4900 75.4 3100 66.0 75 45.5 7S 66.4 2139 45.5

4700 72.3 2900 61.7 63 38.2 63 55.8 1795 38.2

4500 69.2 2700 57.4 50 30.3 50 44.2 1424 30.3

3500 53.8 1700 36.2 27 16.4 27 23.9 771 16.4

3200 49.2 1400 29.8 22 13.3 22 19.5 625 13.3

3000 46.2 1200 25.5 16 9.7 16 14.2 456 9.7

2800 43.1 1000 21.3 13 7.9 13 11.5 371 7.9

2600 40.0 800 17.0 1] 6. 7 11 9.7 315 6.7

2200 33.8 400 8.5 8 4.8 6 7.1 226 4.8

2100 32.3 300 6.4 7 4.2 7 6.2 197 4.2

2000 30.8 200 4.3 5 3.0 5 4.4 141 3.0

1900 29.2 100 2.3 4 2.4 + 3.5 113 2.4

1800 27.7 0 0 4 2.4 4 3.5 113 2.4

1800 27.7 0 0 4 2.4 4 3.5 23,382

1800 27.7

1700 26.2

1600 24.6

1500 23.1

1400 21.5

1300 20.0

1200 18.5

1100 16.9

TREND LINES JUNE 9th THROUGH JULY 1st

Hamilton Standard

INDEX INDEX: June 9 = 100

io --@)-

90 .

ecceccee. MOONEY’S ESTIMATES

Source: P. Exh. Z-2

80 eceeseses MOONEY'S ESTIMATES ADJUSTED TO FINDING THAT

THERE WAS NO INVOLUNTARY ABSENCE AFTER JULY 1.

Source: R. 14, 202, F. 298

———s §=8INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S

70 EMPLOYEE WITNESS TESTIMONY.

Source. R. 140. 141-176. F. 13-15. 20-223

60 ——_ INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S

EMPLOYEE WITNESS TESTIMONY EXCLUDING 5 WITNESSES

STIPULATED.

55 - Source: R. 140. 141-176, F. 13-15, 20-223

50 -

45 a

40 i w7Trrrrrree eee AC \T ‘a

| i

0 , re —— =~ + + . -

8 9 10 13 14 15 16 17 20 21 22 23 24 27 28 2930 14 5 6 7 8 11 12 13 14 15 18 19 20 21 22 25 26 27 28 29 1 2 3 45 8

JUNE JULY AUGUST

DATES ABSENT

REFERENCE TABLE 2A - CHART 2 - HAMILTON STANDARD

NUMBER AND INDEX OF INVOLUNTARY ABSENCE

JUNE 9 THROUGH AUGUST 8

l 2 3 4 5

Involuntary

Absence Found Mooney's Adj. Est.

Mooney Estimates (Plaintiff's Employee Excluding 5 Fitted to Index of

Mooney’'s Estimates Adjusted (600 less) Witnesses) Stipulated Witnesses Employee Witmesses

June Number Index Number Index Number Index Number Index Number Index

9 1500 100 900 100 25 100 20 100 900 100

10 1500 100 900 100 25 100 20 100 900 100

13 1500 100 900 100 24 96.0 20 100 864 96

14 1500 100 900 100 20 80.0 19 95 720 80

15 1300 86.7 700 77.8 9 36.0 9 45 324 36

16 1200 80.0 600 66.7 9 36.0 9 45 324 3%

17 1100 73.3 500 55.6 9 36.0 9 45 324 36

20 1000 66.7 400 44.4 5 20. 0 5 25 180 20

21 1000 66.7 400 44.4 5 20. 0 5 25 180 20

22 SH 69.0 300 33.3 4 16.0 4 20 144 16

23 999 $9.9 300 33.3 4 16.0 4 20 144 16

24 800 53.3 200 22.2 4 16.0 4 20 144 16

27 700 46.7 100 11.1 2 8.0 2 10 72 8

28 7 46.7 100 11.1 2 8.0 2 10 72 8

29 700 46.7 100 11.1 2 8.0 2 10 72 8

30 700 46.7 100 11.1 2 8.0 2 10 72 8

July

1 600 40.0 0 0 2 8.0 2 10 _72 8

+ 600 40.0 0 0 l 4.0 1 5 5508

5 600 40.0

6 600 40.0

7 600 40.0

8 600 40.0

11 600 40.0

12 600 40.0

13 600 40.0

14 600 40.0

1S 600 40.0

Aug.

1 500 33

2 500 33

3 500 33

4 500 33

5 500 33

8 500 33

GbE 6 4a> ter we

NUMBER OF WITNESSES ABSENT

ESTIMATED ABSENCE CAUSED BY TORTIOUS ACTS

AT PREMISES OF PRATT AND WHITNEY

—ee §=MOONEY’S OPINION

eeeeeee NORTHRUP’S OPINION

1250

“ogo P ee SS ——_—

wens 7 tery

750 *

250

0 | | | | a 4 | | |

t 1 T T T 7 TT

8 9 10 13 14 15 16 17 20 21 22 23 24 27 28 29 30 14 5 6 7 8S 11 12 13 14 15 18 19 20 21 22 25 26 27 2829 123 465 8

JUNE JULY AUGUST

Source. P Exhs. Pl, Z1 DATES ABSENT

TABLE 3-A

PRATT & WHITNEY

DISCREPANCIES BETWEEN ESTIMATES OF MR, MOONEY AND DR, NOK THRUP

Mooney Northr up Cost of Difference %. of

Estimates Estimates Difference At$1l5.57 Per Absence Difference

june

9 6500 6671 171 $ 2,662.47

10 6500 6651 151 2,351.07 2

13 5500 7822 2322 36, 153. 54 42

14 5200 7578 2378 37,025. 46 46

1S 4900 7213 2313 36,013. 14 47

16 4700 6852 2152 33 506. 64 46

17 4500 4905 405 6, 305. 85 9

20 3500 4328 828 12, 891. 96 24

21 3200 4075 875 13, 623. 75 27

22 3000 3890 890 13, 857. 30 30

23 2800 3717 917 14,277. 69 33

24 2600 2373 227 3,534. 39 9

27 2200 2218 18 280. 26 1

28 2100 2159 59 918. 63 3

29 2000 2120 120 1, 868, 40 6

30 1900 2075 175 2, 724. 75 9

jely

1 1800 1505 295 4,593. 15 16

Subtotal (June 9-July 1) 14296 $ 222,588, 72

4 1800 1727 73 1,136, 61 4

5 1800 149 331 5,153. 67 23

6 1800 1441 339 5,278. 23 23

7 1800 1442 358 5.574. 06 25

8 1800 1419 38) 5,932.17 27

1800 1404 396 6. 165. 72 28

12 1700 1349 351 5, 465. 07 26

13 1700 1320 380 5, 916. 60 29

14 1600 1297 303 4,717.71 23

1S 1500 874 626 9, 746. 82 72

18 1500 1228 272 4,235.04 22

19 1400 1204 196 3,051. 72 16

20 1400 1194 206 3, 207. 42 17

21 1300 1182 118 1, 837. 26 10

22 1300 1163 137 2,133. 09 12

25 1200 636 564 8, 781.48 89

26 1200 614 586 9,124.02 95

27 1100 605 495 7, 707. 15 82

28 1100 598 502 7,816. 14 sa

29 1000 $77 423 6,586. 11 73

Subtotal (July 4-29) 7037 $ 109,566.09

TOTAI 21333 $ 332,154.54

NUMBER OF WITNESSES ABSENT

—————

2900 ESTIMATED ABSENCE CAUSED BY TORTIOUS ACTS

= AT PREMISES OF HAMILTON STANDARD

—eee §=6§MOONEY'’S OPINION

eeeeeee NORTHRUP’S OPINION

VACATION

- VACATION

JUNE JULY

Source : P. Exhs. P2, 22. DATES ABSENT

AUGUST

' ' ' t 4

Z 8 9 10 13 14 15 16 17 20 21 22 23 24 27 2829 30 14 5 6 7 8 11 12 13 14 15 18 19 20 21 22 25 26 27 2829 123 465 8

TABLE 4-A

HAMIL TON STANDARD

; DISCREPANCIES BETWEEN ESTIMATES OF MR, MOONEY AND DR. NORTHRUP

Mooney Northrup Cost of Difference %, of

Estimates Estimates Difference At $25.27 Per Absence Difference

June

9 1500 2030 530 $ 13,393.10 35

10 1500 1993 493 12,458. 11 33

13 1500 1914 414 10, 461. 78 28

14 1500 1876 376 9, 501. 52 25

1S 1300 1790 490 12, 382. 30 38

16 1200 1712 512 12,938, 24 43

17 1100 1499 399 10, 082. 73 36

| 20 1000 1414 414 10, 461. 78 41

21 1000 1385 385 9, 728. 95 39

22 900 1329 429 10, 840. 83 48

23 900 1305 405 10, 234. 35 45

24 800 957 157 3, 967. 39 20

27 700 904 204 5,155. 08 29

28 700 888 188 4, 750. 76 27

29 700 871 171 4,321.17 24

| 30 700 858 158 3, 992, *€ 23

July

1 600 508 _ 9 2,324, 84 1

Subtoml (June 9-July 1) 5817 $ 146, 995. 59

4 600 523 77 1,945, 79 18

5 600 507 93 2,350, 11 18

4 600 506 94 2,375. 38 19

7 600 502 98 2,476. 46 20

. 600 501 99 2,501. 73 20

1 600 500 100 2,527. 00 20

12 600 487 113 2, 855. 51 23

13 600 471 129 3, 259. 83 27

14 600 457 143 3,613. 61 31

15 600 221 379 9,577.33 171

August

1 500 218 282 7,126, 14 129

2 500 216 284 7,176. 68 131

3 500 211 289 7,303, 03 137

4 500 208 292 7,378. 84 140

5 500 205 295 7,454. 65 144

. 500 200 300 _ 7,581, 00 150

Subtotal (July 4- Aug. 8) 3067 $ 77,503.09

TOTAL 8884 $ 224,498, 68

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.