Appendix — Farmer v. Carpenters

Supreme Court brief1977

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APPENDIX

IN THE

SUPREME COURT

OF THE UNITED STATES,

October Term, 1975

No. 75-804

JOY A, FARMER, Special

Administrator of the Estate

of Richard T. Hill,

Plaintiff-Petitioner,

VS.

UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS

OF AMERICA, LOCAL 25,

et al.,

Defendants -Respondents.

ON WRIT OF CERTIORARI TO THE

CALIFORNIAN COURT OF APPEAL

SECOND APPELLATE DISTRICT,

DIVISION FIVE

PETITION FOR CERTIORARI

Filed December 5, 1975

CERTIORARI GRANTEL

January 26, 1976

Vol. Tof I\

Pages 1 - 195

-

+

APPENDIX

IN THE _

SUPREME COURT

OF THE UNITED STATES

October Term, 1975

No. 75 - 804

JOY A. FARMER, Special

Administrator of the Estate

of Richard T. Hill,

Plaintiff-Petitioner,

vs.

UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS

OF AMERICA, LOCAL 25,

et al.,

Defendants -Respondents.

ON WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT,

DIVISION FIVE

PETITION FOR CERTIORARI

Filed December 5, 1975

CERTIORARI GRANTED

January 26, 1976

Vol. Lof IV

Pages 1 - 195

INDEX

Chronological List of Relevant

Docket Entries

Proposed First Amended

Complaint for Damages,

filed January 31, 1972

Defendants' Demurrer ,

filed April 4, 1972

Order of Superior Court

sustaining in part and over-

ruling in part Defendants'

Demurrer

Answer to Complaint,

filed June 20, 1972

Excerpt from Plaintiff's

First Supplemental Interrogatories

Excerpt from Answer of

Defendant E. G. Daley to

Plaintiff's First Supplemental

Interrogatories

Jury Instructions Given

Jury Instructions Refused or

Withdrawn

i.

16

19

20

22

23

24

55

10,

11,

12.

13.

14,

15.

16.

Judgment,

filed, February 3, 1973

Notice of Motion for New Trial,

filed February 13, 1973

Order of Superior Court

denying Motion for New Trial

Notice of Appeal,

filed March 30, 1973

Decision and Judgment of

Court of Appeal of State of

California, Second Appellate

District, Division Five,

filed June 30, 1975

Order Denying Petition for

Hearing in California Supreme

Court

Oral Proceedings:

Opening Statement by

G. Dana Hobart, Counsel for

Plaintiff and Petitioner

Motion for Nonsuit by

Leo Geffner, Counsel for

Defendants and Respondents

ii.

67

70

72

73

74

74

76

101

Testimony of Kenneth

LeRoy Scott, witness on

behalf of Plaintiff --

Direct Examination

Redirect Examination

Testimony of Plaintiff,

Richard T. Hill, on

behalf of himself --

Direct Examination 149, 189.

Excerpts from the

Deposition Testimony of

Charles J. Simpson, read

by Messrs. Hobart and

Geffner

Testimony of G. Dana Hobart,

witness on behalf of Plaintiff --

Direct Examination

Testimony of E, G. Daley,

witness on behalf of Plaintiff --

Direct Examination

Excerpt from Interrogatories and

Answer thereto, read by Mr. Hobart

iii.

108

133

208

154

204

272

550

Kurt Gillie, witness on

behalf of Defendants

Direct Examination

._John Kabat, witness on

behalf of Defendants

Direct Examination

Ever.tt Trimble, witness on

behalf of Defendants

Direct Examination

Fred Harry Coukos, witness

on behalf of Defendants

Direct Examination

Cross Examination

Redirect Examination

Recross Examination

Leo Earl Poundstone, witness

on behalf of Defendants

Direct Examination

James L. Keen, witness on

behalf of Defendants

Direct Examination

iv.

567,

555

563

566.

574

572

573

574

580

585

17.

Joseph Andrew Wilk, witness on

behalf of Defendants

Direct Examination

Exhibits.

587

Chronological List

of

Relevant Docket Entries

April 17, 1969 -- Plaintiff Hill's original

Complaint for Damages (Personal Injury)

filed in Superior Court of the State of

- California for the County of Los Angeles.

January 31, 1972 -- Plaintiff's Motion to

File First Amended Complaint for Damages

filed,

March 7, 1972 -- Plaintiff's Motion to

File First Amended Complaint granted.

April 4, 1972 -- Defendants' Demurrer to

First Amended Complaint for Damages filed.

May 12, 1972 -- Demurrer sustained as to

First, Third and Fourth Causes of Action

of First Amended Complaint without leave

to amend, but overruled as to Second Cause

of Action. ®

June 20, 1972 -- Defendants' Answer to

First Amended Complaint filed.

December 11, 1972 -- Jury trial of action

commenced.

February 2, 1973 -- Court's charge to jury.

February 2, 1973 -- Verdict of jury in favor

of Plaintiff.

10.

11,

12.

13,

February 5, 1973 -- Judgment of Superior

Court entered, awarding Plaintiff $7500

in compensatory damages and $175, 000

in punitive damages against Defendants

Daley, Local 25 of the United Brotherhood

of Carpenters and Joiners of America and

the Los Angeles District Council of

Carpenters. '

March 30, 1973 -- Defendants' Notice of

Appeal filed.

June 30, 1975 -- Opinion of Court of Appeal

of the State of California, Second Appellate

District, Division Five, filed.

September 10, 1975 -- Petition for Hearing

in California Supreme Court denied.

[CT 102]

SUPERIOR COURT

OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

RICHARD T. HILL,

Plaintiff,

vs.

ee eee eee ee

UNITED BROTHERHOOD OF )No. 951 866

CARPENTERS AND JOINERS )

OF AMERICA, LOCAL 25, ) PROPOSED

an unincorporated association; )FIRST

THE LOS ANGELES COUNTY ) AMENDED

DISTRICT COUNCIL OF ) COMPLAINT

CARPENTERS, an unincorporated )FOR

association; UNITED BROTHER- )DAMAGES

HOOD OF CARPENTERS AND )

JOINERS OF AMERICA, an ) Filed

unincorporated association; ) January 31,

EARL GEORGE DALEY; ) 1972

BENJAMIN FENWICK; JOSEPH )

WILK; JAMES KEEN; KENNETH )

SCOTT; GREEN COMPANY, a_ )

corporation; BLACK COMPANY, )

an unincorporated association;

DOES I through XX, inclusive,

)

)

)

Defendants. )

)

1.

FOR CAUSE OF ACTION against all

Defendants, Plaintiff alleges:

1,

The true names and capacities, whether

individual, corporate, associate, or otherwise,

of defendants GREEN COMPANY, BLACK

[CT 103]*

COMPANY,* and DOES I through XX, inclusive,

are unknown to Plaintiff who therefore sues said

Defendants by such fictitious names; Plaintiff

is informed and believes and thereon alleges

that each of the Defendants so fictitiously

designated herein is legally responsible in some

manner for the events and happenings herein

referred to, and caused injury and damages to

the Plaintiff as herein alleged.

2.

At all times relevant herein Defendant

UNITED BROTHERHOOD OF CARPENTERS

AND JOINERS OF AMERICA, LOCAL 25 was,

and still is, an unincorporated association

affiliated with Defendant LOS ANGELES COUNTY

DISTRICT COUNCIL OF CARPENTERS and

with Defendant UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF AMERICA,

and possessing and asserting jurisdiction over

members of these organizations at said Local's

main office located in the City and County of Los

Los Angeles, California. Local 25 is affiliated

2.

to the other Defendant organizations and is

chartered by them and derives its power, duties

and jurisdiction from each of them,

3.

At all times herein mentioned Defendants,

and each of them, were and now are engaged in

the business of being a labor union, or employees

of a labor union, operating under the common

and fictitious names as aforesaid, and said

Defendants are sued herein by said common

names pursuant to the provisions of Section 388

of the California Code of Civil Procedure,

4.

At all times herein mentioned each of the

Defendants was the agent and employee of each

of the remaining Defendants and was at all times

acting within the purpose and scope of said agency

[CT 104]*

and* employment.

De

At all times relevant herein Plaintiff was,

and still is, a journeyman carpenter and a member

in good standing with each and every organization

listed in paragraph 2 above. Plaintiff has duly

sought and exhausted all of his remedies provided

for in the constitutions and/or by-laws of the

aforesaid organizations.

3.

At all times mentioned herein there has

been in existence that certain collective bargain-

ing agreement entitled Master Labor Agreement

Between Southern California General Contractors

and United Brotherhood of Carpenters and Joiners

of America" (hereinafter referred to as the

"Agreement"') between Defendant labor organiza-

tions and the Southern California Chapter of the

Associated General Contractors of America,

The Engineering and Grading Contractors

Association, Inc., the Building Industry

Association of California.

Article II, Section 201 of said Agreement

provides: ''The Contractors hereby recognize

the Union as the sole and exclusive collective

bargaining representative of employees of the

Contractors over whom the Union has jurisdiction. "

Section 203 provides: "This Agreement

shall be binding upon each and every eligible

member of the Southern California Chapter of The

Associated General Contractors of America, and

The Engineering and Grading Contractors

Association, Inc., with the same force and effect

as if this Agreement were entered into by each

member individually; and this Agreement shall

be binding upon each and every member of the

[CT 105]*

Building Industry Association of* California,

Inc., who becomes signatory hereto, "'

4.

Section 204 provides: "In the employment

of workmen for all work covered by this Agree-

ment... the following provisions. .. shall

govern: 204,1 The Local Unions shall establish

and maintain open and non-discriminatory

employment lists for the use of workmen desiring

employment on work covered by this Agreement

and such workmen shall be entitled to use such

lists free of charge, "'

Section 204.2 provides: ''The Contractors

shall first call upon the Local Union having work

and area jurisdiction for such men as they may

from time to time need, and the respective Local

Union shall furnish to the Contractors the

required number of qualified and competent work-

men and skilled mechanics of the classifications

needed by the Contractors strictly in accordance

with the provisions of this Article. :

Section 204.4 provides: ''The Local Union

or District Council will dispatch in accordance

with the request of the Contractor each such

qualified and competent workman from among

those entered on said lists in numerical order

to the contractor by use of a written referral in

the following order of preference and the

selection of workmen for referral to jobs shall

be on a non-discriminatory basis:

204.4, 1 Workmen specifically requested

by name who have been employed, laid off or

terminated as Carpenters in the geographic area

of the Local Union or District Council, as the

case may be, within three years before such

5.

request by a requesting individual employer now

desiring to reemploy the same workmen, provided

they are available for employment,

(CT 106]

"'204.4,2 Workmen who, within five years

immediately before the Contractor's order for

men have performed work of the type covered by

this Agreement in the geographic area of the

Agreement, as defined in paragraph 101, provided

such workmen are available for employment.

'204.4,.3 It is agreed that in connection with

the preference outlined in subparagraph 204, 4, 2

up to 25% of the employees, excluding foremen,

employed to perform work covered by this Agree-

ment on any project may be employees designated

by the individual employer, "'

7.

Pursuant to said Agreement carpenters who

are seeking employment sign availability lists, "'

Thereafter, the business agents of Local 25 and/

or the District Council are required, pursuant to

said Agreement, to dispatch the unemployed

carpenters from the availability lists on a ‘first

sign, first dispatched" basis; as the chronologically

earlier signers are dispatched to a job, the names

remaining are moved "'up"' the list.

8,

Between January 1, 1967, and April 1,

1969, Plaintiff repeatedly signed the afore-

mentioned lists of availability and was at all

times ready, willing and able to accept available

employment. During the same period Plaintiff's

names was specifically requested by one or more

employees. However, rather than dispatching

Plaintiff to work as required Defendants, and

each of them, wrongfully and intentionally

refused to dispatch Plaintiff in accordance with

The Rules of Procedure, always to the Plaintiff's

economic and physical detriment,

[CT 107]

Plaintiff was further discriminated against

in that Defendant and each of them, conspired to

and did dispatch Plaintiff to jobs (when he was

dispatched) of short duration and least desirability,

rather than dispatching him to jobs in a systematic

non-discriminatory order; by reason of said

discrimination, Plaintiff was caused to be out

of work and on the eligibility lists for longer

time periods than normally would have been

experienced but for said discrimination,

9,

There is and was no just reason for said

discrimination against Plaintiff who is informed

and believes, and on the basis of such information

7. ;

and belief alleges that the reason for said job

discrimination was because Plaintiff was a

leading member of an intra-union political

faction generally regarded as bein opposed to

the political faction which was managing,

operating and controlling Local 25 as well as

the other Defendant labor organizations,

10,

As a proximate result of the intentional

and wrongful discriminatory conduct practiced

by Defendants, and each of them, as aforesaid,

Plaintiff has suffered a nervous breakdown,

grievous mental anguish and bodily injury

making him sick, sore and lame; as a result

Plaintiff has been hospitalized and forced to

incur medical and related expenses, the exact

amount of which is presently unknown to Plaintiff;

Plaintiff will ask leave of the Court to insert

said amount at the time of trial,

As a proximate result of the aforesaid

intentional conduct of Defendants, and each of

them, Plaintiff has suffered, and claims,

general damages in the sum of $500, 000, 00,

[CT 108]

ll,

All of the aforesaid acts, conduct and dis-

crimination by Defendants, and each of them,

were committed deliberately and maliciously

and by reason of such deliberate malice Plaintiff

asks that punitive damages be assessed against

Defendants, and each of them, in the sum of

$500, 000, 00.

SECOND SEPARATE CAUSE

OF ACTION

For a second and separate cause of action

against Defendants, and each of them, Plaintiff

alleges:

12,

Plaintiff repeats and herein incorporates

by reference as though fully set forth in detail

Paragraphs 1, 2, 3, 4, 5, 10, and 11.

13.

During the aforesaid period Defendants,

and each of them, made repeated oral threats to

Plaintiff to the effect that as long as they con-

trolled the job-dispatching procedures that

Plaintiff would be and he was given inferior

assignments and be by-passed for work assign-

ments. During the same period, as aforesaid,

Defendants, and each of them, repeatedly

threatened Plaintiff with actual or defacto

expulsion from the union in retaliation for his

political activities, and further threatened

to deprieve Plaintiff of his ability to earna

living as a carpenter,

Defendants, and each of them, knew or

reasonably should have known or expected that

their outrageous conduct, threats, intimidation,

and words would result in severe emotional,

mental and physical damage to Plaintiff,

[CT 109]

14,

Defendants, and each of them, intentionally

caused, or recklessly disregarded the probability

that said conduct would cause Plaintiff to suffer

grievous mental and emotional distress as well

as great physical damage to Plaintiff making

him sick, sore and lame and causing Plaintiff a

nervous breakdown requiring Plaintiff to be

hospitalized,

15,

As a proximate result of the intentional

and wrongful discriminatory conduct practiced

by Defendants, and each of them, as aforesaid,

Plaintiff has suffered a nervous breakdown,

grievous mental anguish and bodily injury

making him sick, sore and lame; as a result

Plaintiff has been hospitalized and forced to

incur medical and related expenses, the exact

amount of which is presently unknown to Plaintiff;

Plaintiff will ask leave of the Court to insert

said amount at the time of trial.

10.

As a proximate result of the aforesaid

intentional conduct of Defendants, and each of

them, Plaintiff has suffered, and claims,

general damages in the sum of $500,000, 00,

16,

All of the aforesaid acts, conduct and

discrimination by Defendants, and each of them,

were done deliberately and maliciously and by

reason of such deliberate malice Plaintiff asks

that punitive damages be assessed against

Defendants, and each of them, in the sum of

$500,000, 00,

THIRD SEPARATE CAUSE

OF ACTION

For a third and separate cause of action

against Defendants, and each of them, Plaintiff

alleges:

[CT 110]

17.

Plaintiff repeats and ber. « incorporates

by reference as though fully set forth, Paragraphs

1, 2, 3, 4, 5, and 6 herein,

18,

That at the time said written Agreement was

contracted by and between the aforesaid General

ll.

Contractors and the aforesaid Defendant Labor

rganizations, Plaintiff was a dues-paying

~» uber of all of the aforesaid Labor Organiza-

tions; and as such a member was a third party

beneficiary of said Agreement in that said

Agreement was negotiated for the benefit of

Plaintiff.

19,

Plaintiff performed each and every act and

thing required to be performed by him in accord-

ance with the terms and conditions of said

Agreement.

20.

On or about January 1, 1967, and on

numerous occasions between January 1, 1967,

and April 1, 1969, Defendants, and each of

«them, breached said contract by failing to dis-

patch Plaintiff to various jobs of employment in

the manner and procedure required by said

Agreement; Defendants, and each of them,

further breached said Agreement by failing to

dispatch Plaintiff to jobs of employment on a

"non-discriminatory basis".

21.

As a proximate result of said breaches of

contract, which has prevented Plaintiff from

pursuing a livlihood, Plaintiff has suffered

grievous mental suffering, anguish and bodily

injury, making him sick, sore and lame; as a

12.

result Plaintiff has been forced to incur medical

[CT 111]*

and related expenses, the exact amount* of which

is presently unknown to Plaintiff; Plaintiff will

ask leave of the Court to insert said amount at the

time of trial.

As a proximate result of the aforesaid

conduct of Defendants, and each of them, Plaintiff

has suffered and claims general damages in the

sum of $500, 000. 00.

FOR A FOURTH SEPARATE

CAUSE OF ACTION

For a fourth and separate cause of action

against Defendants, and each of them, Plaintiff

alleges:

22.

Plaintiff repeats and herein incorporates

by reference as though fully set iorth, Paragraphs

l, y # Be 4, 5. and 6.

23.

On or before January 1, 1967, Plaintiff

and Defendants, and each of them, enterec into

a written contract whereby Plaintiff agreed to

join said Labor Organizations and to pay monetary

dues to said Defendant organizations; pursuant to

said written contract Plaintiff agreed to abide by

13.

and did abide by all rules and regulations of said

organizations and to follow all rules, directives

and procedures concerned with the dispatching of

Union members to jobs of employment.

24.

A portion of the aforesaid written contract

is entitled ''Carpenter's Hiring Hall Procedures";

said document sets forth the same general dis-

patching procedures as those stated in Paragraph

6 herein; at the time the aforesaid written contract

was agreed to by the parties, Defendants, and

each of them, in writing and orally, agreed to

dispatch Plaintiff solely and exclusively in

accordance with the aforesaid Rules of Procedures.

[CT 112]

25.

Plaintiff has performed each and every act

and thing required to be performed in accordance

with the terms and conditions of said written

contract.

26.

On or about January 1, 1967, and on

numerous occasions between said date and April

1, 1969, Defendants, and each of them, breached

said contract by failing and refusing to make

dispatches pursuant to the Rules of Procedure

as aforesaid, causing Plaintiff to lose work and

to be unable to pursue his livlihood.

14,

27.

As a proximate result of said breaches of

contract, which has prevented Plaintiff from

pursuing a livlihood, Plaintiff has suffered

grievous mental suffering, anguish and bodily

injury, making him sick, sore and lame; as a

result Plaintiff has been forced to incur medical

and related expenses, the exact amount of which

is presently unknown to Plaintiff; Plaintiff will

ask leave of the Court to insert said amount at

the time of trial.

As a proximate result of the aforesaid

conduct of Defendants, and each of them,

Plaintiff has suffered and claims general

damages in the sum of $500, 000. 00.

WHEREFORE, Plaintiff prays judgment

as follows:

1, $500,000.00 general damages on the

First, Second, Third and Fourth Causes of

Action;

2. Medical and related expenses

according to proof on all Causes of Action;

3. $500, 000.00 punitive damages on the

First and Second Causes of Action;

[CT 113]

4, For costs of suit incurred herein; and

15.

Le ee SOS PLE he

S. For such further relief as the Court

may deems just.

COLEMAN, SILVERSTEIN

& HOBART

By:

G. DANA HOBART

[Proof of Service Omitted in Printing]

[CT 127]

DEFENDANTS' DEMURRER

Filed April 4, 1972

[Caption Omitted in Printing]

COME NOW, defendants UNITED BROTHER-

HOOD OF CARPENTERS AND JOINERS OF

AMERICA, LOCAL 25; THE LOS ANGELES

COUNTY DISTRICT COUNCIL OF CARPENTERS;

UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO; EARL

GEORGE DALEY; BENJAMIN FENWICK;

JOSEPH WILK; JAMES KEEN, AND KENNETH

SCOTT, and demur to plaintiff's First Amended

Complaint upon the following grounds:

16.

Re The cause of action set forth in the

Complaint does not state facts sufficient to con-

stitute a cause of action.

2. The Court has no jurisdiction of the

subject matter of the First Cause of Action in

that the matter is exclusively within the jurisdic -

tion of the National Labor Relations Board and

the federal courts.

3. The Second Cause of Action set forth

in the Complaint does not state facts sufficient

to constitute » cause of action

[CT 128]

4. The Court has no jurisdiction of the

subject matter of the Second Cause of Action in

that the matter is exclusively within the juris-

diction of the National Labor Relations Board

and the federal courts.

5. The Third Cause of Action set forth

in the Complaint does not state facts sufficient

to constitute a cause of action.

6. The Court has no jurisdiction of the

subject matter of the Third Cause of Action in

that the matter is exclusively within the jurisdic-

tion of the National Labor Relations Board and

the federal courts.

7. The Fourth Cause of Action set forth

in the Complaint does not state facts sufficient to

17.

constitute a cause of action.

8. The Court has no jurisdiction of the

subject matter of the Fourth Cause of Action in

that the matter is exclusively within the jurisdic-

tion of the National Labor Relations Board and

the federal courts.

DATED: April 3, 1972.

GEFFNER & SATZMAN

BY:

BRADLEY TABACH-

BANK

Attorneys for Defendants

I hereby certify that this Demurrer is not

filed for purposes of delay but that it is filed in

good faith and in my opinion the grounds are

well taken.

DATED: April 3, 1972.

BRADLEY TABACH-BANK

Attorney for Defendants

[Proof of Service Omitted in Printing]

18,

[CT 190]

ORDER OF SUPERIOR COURT OF

LOS ANGELES COUNTY

Rendered May 12, 1972

(Caption Omitted in Printing]

In this matter, heretofore

deemed submitted May 5,

te the Court now makes

Demurrer of defendants —

United Brotherhood of Demurrer to the Ist

Carpenters and Joiners 3rd and 4th causes of

of America, Local 25, action sustained without

The Los Angele. County leave to amend, pur-

District Council of Suant to points and

Carpenters, United authorities filed,

Brotherhood of Carpenters

and Joiners of America, Demurrer to the 2nd

AFL-CIO, Earl George Cause of action

Daley, Benjamin Fenwick, overruled,

Joseph Wilk, James Keen

and Kenneth Scott, to Alcorn v. Anbro

First Amended Complaint Engineering, 2

(Submitted) C3d 493.

Counsel to give notice.

Copy of this order

mailed to counsel,

[Proof of Service Omitted in Printing]

19,

[CT 205]

ANSWER TO COMPLAINT

Filed June 20, 1972

{Caption Omitted in Printing]

COME NOW Defendants, UNITED

BROTHERHOOD OF CARPENTERS & JOINERS

OF AMERICA, LOCAL 25; LOS ANGELES

COUNTY DISTRICT COUNCIL OF CARPENTERS

UNITED BROTHERHOOD OF CARPENTERS

AND JOINERS OF AMERICA, AFL-CIO; EARL

GEORGE DALEY, BENJAMIN FENWICK;

GEORGE WILK; JAMES KEEN; and KENNETH

SCOTT, answering for themselves alone and no

other defendants; admit and allege as follows:

1. Defendants deny generally and

specifically paragraphs 1, 2, 4, 5, 10 and 11

of Plaintiff's complaint.

2. Answering paragraph 12, Defendants

deny generally and specifically said paragraph

as it refers to paragraphs 1, 2, 4, 5, 10 and 11

of Plaintiff's complaint.

3. Defendants deny generally and

specifically paragraphs 13, 14, 15 and 16 of

Plaintiff's complaint.

20.

FIRST AFIRMATIVE DEFENSE EXCERPT FROM PLAINTIFF'S

FIRST SUPPLEMENTAL INTER-

Plaintiff's complaint fails to state facts ROGATORIES TO DEFENDANTS

sufficient to constitute a cause of action, The

Propounded November 5, 1969

[CT 206]*

[Caption Omitted in Printing]

Court has no jurisdiction* over the subject

matter in Plaintiff's complaint in that the subject (CT 478]

matter is exclusively within the jurisdiction of

the National Labor Relations Board and Federal 7, Do you contend that Mr. Hill has

Courts. failed to take certain procedural steps within

the Union framework which you contend to be

THIRD AFFIRMATIVE DEFENSE conditions precedent to his right to bring this

legal action ?

The complaint fails to state a cause of action

as Plaintiff has failed to exhaust his internal a. If yes, please set forth in

administrative remedies provided by the by-laws

of the Los Angeles County District Council of . [CT 479]*

Carpenters and United Brotherhood of Carpenters

AFL-CIO, , : detail, each and every* procedural step you

contend was omitted by Mr. Hill.

WHEREFORE, Defendants pray that Plaintiff

take nothing by his complaint, that the complaint b, If yes, please state or cite the

be dismissed and for such other and further relief authority which you contend supports your

as the Court may deem proper. position that Mr. Hill failed to take certain

DATED _ June 20, , 1972, necessary procedural steps.

GEFFNER & SATZMAN c. If yes, exactly which steps do

A Professional Corporation you contend are prerequisites to Mr. Hill's

filing this legal action.

BY

BRADLEY TABACH-BANK

Attorneys for Defendants

{Proof of Service Omitted in Printing]

21. 22.

EXCERPT FROM ANSWER OF

DEFENDANT E,G,DALEY TO

FIRST SUPPLEMENTAL

INTERROGATORIES

[Caption Omitted in Printing]

[CT 483]

7. Yes

(a) Mr. Hill failed to file at any

time charges with the Los Angeles County District

Council of Carpenters against myself as he is en-

titled to do under the Constitution of the United

Brotherhood of Carpenters and Joiners of America,

AFL-CIO, and the By-laws of the Los Angeles

County District Council of Carpenters.

(b) The Constitution of the United

Brotherhood of Carpenters and Joiners of

America, AFL-CIO, the By-laws of the

Los Angeles County District Council of

Carpenters, and the hiring procedures of the

Los Angeles County District Council of

Carpenters, Local 25.

(c) Mr. Hill was required to file

charges against me that | discriminated against

him and did not fulfill my obligations as a union

member and officer of Local 25.

23.

JURY INSTRUCTIONS GIVEN

[CT 498]

BAJI 1,00

RESPECTIVE DUTIES OF JUDGE

AND JURY

Ladies and Gentlemen of the Jury:

It is my duty to instruct you in the law

that applies to this case and you must follow the

law as I state it to you.

As jurors it is your exclusive duty to

decide all questions of fact submitted to you and

for that purpose to determine the effect and value

of the evidence,

You must not be influenced by sympathy,

prejudice or passion,

(CT 499]

BAJI 1.01

INSTRUCTIONS TO BE CON-

SIDERED AS A WHOLE

It in these instructions any rule, direction

or idea is repeated or stated in varying ways, no

emphasis thereon is intended by me and none

must be inferred by you. For that reason you

24.

are not to single out any certain sentence or any

individual point or instruction and ignore the

others, but you are to consider all the instructions

as a whole and are to regard each in the light of

all the others,

The order in which the instructions are

given has no significance as to their relative

importance,

(CT 500]

BAJI 1,02

STATEMENTS OF COUNSEL--

EVIDENCE STRICKEN OUT--

INSINUATIONS OF QUESTIONS

You must not consider as evidence any

statement of counsel made during the trial; how-

ever, if counsel for the parties have stipulated

to any fact, or any fact has been admitted by

counsel, you will regard that fact as being con-

clusively proved as to the party or parties making

the stipulation or admission.

As to any question to which an objection

was sustained, you must not speculate as to what

the answer might have been or as to the reason

for the objection.

You must not consider for any purpose

any Offer of evidence that was rejected, or any

evidence that was stricken out by the court; such

matter is to be treated as though you had never

25.

known of it.

You must never speculate to be true any

insinuation suggested by a question asked a wit-

ness. A question is not evidence and may be

considered only as it supplies meaning to the

answer.

(CT 501]

BAJI 1.20

"PLAINTIFF" AND "DEFENDANT"

APPLIES TO EACH SIMILARLY

DESIGNATED

The words "plaintiff" and "defendant",

as used in these instructions, apply to each

plaintiff and to each defendant, respectively,

except as you may be otherwise instructed.

(CT 502]

BAJI 2.00

DIRECT AND CIRCUMSTANTIAL

EVIDENCE--INFERENCES

Evidence may be either direct or circum-

stantial. It is direct evidence if it proves a fact,

without an inference, and which in itself, if true,

conclusively establishes that fact. It is circum-

stantial evidence if it proves a fact from which

an inference of the existence of another fact may

be drawn.

26.

An inference is a deduction of fact that

may logically and reasonably be drawn from

another fact or group of facts established by the

evidence.

The law makes no distinction between

direct and circumstantial evidence as to the

degree of proof required; each is accepted as a

reasonable method of proof and each is respected

for such convincing force as it may carry.

[CT 503]

BAJI 2.01

WEIGHING CONFLICTING TESTIMONY

You are not bound to decide in conformity

with the testimony of a number of witnesses,

which does not produce conviction in your mind,

as against the testimony of a lesser number or

other evidence, which appeals to your mind with

more convincing force. The testimony of one

witness worthy of belief is sufficient for the

proof of any fact. This does not mean that you

are at liberty to disregard the testimony of the

greater number of witnesses merely from

caprice or prejudice, or from a desire to favor

one side as against the other. It does mean

that you are not to decide an issue by the simple

process of counting the number of witnesses who

have testified on the opposing sides. It means

that the final test is not in the relative number of

witnesses, but in the relative convincing force of

the evidence.

27.

[CT 504]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

*BAJI 2.02

FAILURE TO PRODUCE AVAILABLE

STRONGER EVIDENCE

If weaker and less satisfactory evidence

is offered by a party, when it was within his

power to produce stronger and more satisfactory

evidence, the evidence offered should be viewed

with distrust.

[CT 505]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

*BAJI 2.03

WILFUL SUPPRESSION OF EVIDENCE

If you should find that a part wilfully

suppressed evidence in order to prevent its being

presented in this trial, you may consider such

Suppression in determining what inferences to

draw from the evidence or facts in the case

against him.

28.

[CT 506]

BAJI 2.06

DEPOSITION TESTIMONY

Certain testimony has been read into

evidence from a deposition. A deposition is

testimony taken under oath before the trial and

preserved in writing. You are to consider that

testimony as if it had been given in court.

[CT 507]

INTERROGATORIES

During the course of the trial you have

heard reference made to the word "interrogatory".

An interrogatory is a written question asked by

one party of another, who must answer it under

oath in writing. You are to consider interroga-

tories and the answers thereto the same as if

the questions had been asked and answered here

in court.

[CT 508]

BAJI 2.20

CREDIBILITY OF WITNESS

You are the sole and exclusive judges of

the credibility of the witnesses who have testified

in this case.

29.

In determining the credibility of a witness

you may consider any matter that has a tendency

in reason to prove or disprove the truthfulness

of his testimony, including but not limited to the

following:

His demeanor while testifying and the

manner in which he testifies;

The character of his testimony;

The extent of his capacity to perceive, to

recollect, or to communicate any matter about

which he testifies;

The extent of his opportunity to perceive

any matter about which he testifies;

His character for honesty or veracity or

their opposites;

The existence or nonexistence of a bias,

interest, or other motive;

A statement previously made by him that

is consistent with his testimony;

A statement made by him that is incon-

sistent with any part of his testimony;

The existence or nonexistence of any fact

testified to by him;

His attitude toward the action in which he

testifies or toward the giving of testimony;

30.

His admission of untruthfulness.

[CT 509]

BAJI 2.21

DISCREPANCIES IN TESTIMONY

Discrepancies in a witness's testimony

or between his testimony and that of others [if

there were any] do not necessarily mean that the

witness should be discredited. Failure of

recollection is not uncommon. It is a fact,

also, that two persons witnessing an incident

or a transaction often will see or hear it

differently. Whether a discrepancy pertains to

a fact of importance or only to a trivial detail

should be considered in weighing its significance.

[CT 510]

BAJI 2.22

WITNESS WILFULLY FALSE

A witness false in one part of his testi-

mony is to be distrusted in others; that is to say,

you may reject the whole testimony of a witness

who wilfully has testified falsely as to a material

point, unless, from all the evidence, you shall

believe that the probability of truth favors his

testimony in other particulars.

31,

[CT 511]

BAJI 2.25

EXTRAJUDICIAL ADMISSIONS--

CAUTIONARY INSTRUCTION

Evidence of the oral admissions of a

party, other than his own testimony in this trial,

ought to be viewed by you with caution.

(CT 512]

BAJI 2.40

EXPERT TESTIMON Y--

QUALIFICATIONS OF EXPERT

A witness who has special knowledge,

skill, experience, training or education ina

particular science, profession or occupation

may give his opinion as an expert as to any

matter in which he is skilled. In determining

the weight to be given such opinion you should

consider the qualifications and credibility of the

expertand the reasons given for his opinion.

You are not bound by such opinion. Give it the

weight, if any, to which you deem it entitled.

32.

(CT 513]

BAJI 2.42

HYPOTHETICAL QUESTIONS

Questions have been asked in which an

expert witness was asked to assume that certain

facts were true and to give an opinion based

upon that assumption, This is called a hypo-

thetical question. If any fact assumed in the

question has not been established by the evidence,

you should determine the effect of that omission

upon the value of the opinion,

[CT 514]

BAJI 2.43

STATEMENTS MADE BY PATIENT

TO PHYSICIAN

Testimony by a physician of statements

made to him by a patient for the purpose of

diagnosis or treatment may be considered by

you not to show the truth of the facts stated but

to show the information upon which the physician

based his opinions; except that the patient's

statements of his then existing state of mind,

emotion, or physical sensation, [and any state-

ments made by him which constituted an

admission of a fact or facts adverse to his

interest] may be considered by you as evidence

of the truth of the matter stated,

33.

{CT 515]

(Two Pages) BAJI 2.60 (Page One)

BURDEN OF PROOF AND PRE-

PONDERANCE OF EVIDENCE

In this action, the plaintiff has the burden

of establishing by a preponderance of the evidence

all of the facts necessary to prove the following

issues:

l. The defendants intentionally and by out-

rageous conduct inflicted upon plaintiff severe

emotional distress

2. That the said conduct of the defendants

was the proximate cause of injury and damage

to the plaintiff and

3. ° The nature and extent of the injuries and

damages claimed to have been so suffered,

[CT 516]

(Two Pages) BAJI 2.60 (Page Two)

By a preponderance of the evidence is

meant such evidence as, when weighed with that

opposed to it, has more convincing force and

the greater probability of truth. In the event

that the evidence is evenly balanced so that you

are unable to say that the evidence on either side

of an issue preponderates, then your finding

upon that issue must be against the party who

34,

had the burden of proving it.

In determining whether an issue has been

proved by a preponderance of the evidence, you

should consider all of the evidence bearing upon

that issue regardless of who produced it.

[CT 517]

BAJI 3.76

LEGAL CAUSE-DEFINITION OF

A legal cause of an injury is a cause

which is a substantial factor in bringing about

the injury.

{CT 518]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

An agent is one who represents another,

called the principal, in dealing with third persons.

California Civil Code Section 2295

[CT 519]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

The determination of an agency relation-

ship is not dependent upon proof of compensation,

but it may be shown by conduct of the parties.

Vargas vs. Ruggiero, 197 Cal. App. 2d 709,

17 Cal. Rptr. 568

35.

[CT 520]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

You are instructed that whether an agency

relationship exists is a question of fact to be

determined from relevant written documents and

the conduct of the parties in evidence. It may

be created formally or informally. The right

to control is the primary test of agency. It is

not necessary that the principal exercise its

right of control...

Housewright vs. Pacific Far East Lines

Inc., 222 Cal. App. 2d 306, 40 Cal. Rptr.

208

Malloy vs. Fong, 101 Cal. App. »

232 P. 2d 241

(CT 521]

BAJI 14.00

COMPENSATORY DAMAGES--

PERSONAL INJURY AND

PROPERTY DAMAGE --INTRODUCTORY

If, under the court's instructions, you find

that plaintiff is entitled to a verdict against defend-

ant, you must then award plaintiff damages in an

amount that will reasonably compensate him for

each of the following elements of claimed loss or

harm, provided that you find it was suffered by

him and proximately caused by the act or omission

36.

upon which you base your finding of liability.

The amount of such award shall include:

[CT 522]

BAJI 14.10

MEASURE OF DAMAGES--

PERSONAL INJURY--

EXPENSES INCURRED

The reasonable value of medical [hospital

and nursing] care, services and supplies reason-

ably required and actually given in the treatment

of the plaintiff

[CT 523]

BAJI 14.13

MEASURE OF DAMAGES--

PERSONAL INJURY--

PAIN AND SUFFERING

Reasonable compensation for any pain,

discomfort, fears, anxiety and other mental

and emotional distress suffered by the plaintiff

and of which his injury was a proximate cause.

No definite standard is prescribed by

law by which to fix reasonable compensation for

pain and suffering. Nor is the opinion of any

witness required as to the amount of such

reasonable compensation. [Furthermore, the

argument of counsel as to the amount of damages

37,

is not evidence of reasonable compensation, |}

In making an award for pain and suffering you

shall exercise your authority with calm and

reasonable judgment and the damages you fix

shall be just and reasonable in the light of the

evidence,

[CT 524]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

Damages may be awarded for the

suffering of severe emotional distress caused

by intentional and outrageous conduct.

Vargas vs. Ruggiero, 197 Cal. App. 2d

709, 17 Cal. Rptr. 568

Fletcher vs. Western National Life

Insurance Company 10, Cal. App. 2d

376, 89 Cal. Rptr. 78

(CT 525]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

The nature of the conduct which allegedly

caused severe emotional distress may consist in

acts alone, or acts accompanied by words, or it

may consist of words alone,

Emdem vs. Vitz, 88 Cal. App. 2d 313,

198 P. 2d 696 (hearing denied)

Bowden vs. Spiegel, Inc., 96 Cal. App. 2d

793, 216 P. 2d 571.

38.

[CT 526]

BAJI 14,65

DAMAGES--AGGRAVATION OF

PREEXISTING CONDITION

A person who has a condition or disability

at the time of an injury is not entitled to recover

damages therefor, However, he is entitled to

recover damages for any aggravation of such

preexisting condition or disability proximately

resulting from the injury.

This is true even if the person's condi-

tion or disability made him more susceptible to

the possibility of ill effects than a normally

healthy person would have been, and even if a

normally healthy person probably would not have

suffered any substantial injury.

Where a pre-existing condition or dis-

ability is so aggravated, the damages as to such

condition or disability are limited to the additional

injury caused by the aggravation.

Defendants are liable only for that emo-

tional distress actually caused by their own

conduct.

39,

[CT 527]

PLAINTIFF'S SPECIAL INSTRUCTION NO.

"Severe emotional distress'' as will per-

mit you to find for a Plaintiff, must in fact exist

and it must be severe; it may consist of any

highly unpleasant mental reaction such as fright,

grief, shame, humiliation, embarrassment,

anger, chagrin, disappointment or worried. [Sic. ]

Fletcher vs. Western National Life

Insurance Company 10, Cal. App. 2d 376,

89 Cal. Rptr. 78, 90

Crisci vs. Sec. Ins. Co., 66, Cal. 2d

425, 58 Cal. Rptr. 13

{CT 528]

PLAINTIFF'S SPECIAL INSTRUCTION NO.

"Severe" means, in this context, substan-

tial or enduring, as distinguished from trivial or

transitory. It must be of such substantial

quantity or enduring quality that no reasonable

man in a civilized society should be expected to

endure it. Liability does not extend to mere

insults, indignities, annoyances, petty

or other trivialities.

Fletcher vs. Western National Life

Insurance Company 10, Cal. App. 2d

376, 89 Cal. Rptr. 78, 90, 91

40.

(CT 529]

DEFENDANTS' REQUESTED

SPECIAL INSTRUCTION

No.

In the event you find that the plaintiff is

entitled to a verdict, you are not to consider any

award regarding any actual damages regarding

the plaintiff's emotional and mental distress as

may or may not exist after April 17th, 1969,

[CT 530]

DEFENDANTS' REQUESTED

SPECIAL INSTRUCTION

No.

In the event you should find that the

plaintiff is entitled to a verdict, you are not to

consider any loss of wages or salaries by the

plaintiff as the plaintiff has not made any claim

for such loss in the complaint.

[CT 531]

PLAINTIFF'S SPECIAL INSTRUCTION NO.

There has been received in evidence the

fact that Plaintiff filed a complaint within the

National Labor Relations Board, a governmental

agency, and received an award covering wages

he would have earned on the Dinwiddy-Simpson

job had he been dispatched on May 1, 1967.

41.

The National Labor Relations Board is

empowered by law to render awards to compen-

sate for lost wages where it finds that a claimant

was unreasonably denied employment in violation

of certain applicable federal laws.

The Plaintiff in this action charges the

intentional inflication [sic] of severe emotional dis-

tress and seeks damages for pain and suffering,

for resulting medical expenses incurred, and

for punitive damages. The National Labor

Relations Board has limited jurisdiction which

does not include the authority to render awards

for any of the just-mentioned items of damage.

[CT 532]

PLAINTIFF'S SPECIAL INSTRUCTION NO.

You are instructed that a trade union acts

through and is bound by the acts of its officers.

Coates vs. Construction and General

Laborers Local 185, (1971) 93 Cal.

Rptr. 639, 642, 15 Cal. App. 3d 908,

re hearing denied

[CT 533]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

For Plaintiff to prevail in this action

against Defendants Local 25 or the Los Angeles

District Council of Carpenters it is necessary

for the Plaintiff to establish by a preponderance

42.

of the evidence that the agent was acting within

the scope of his employment or authority at the

time the complained of acts were committed.

To determine this issue you should consider

(a) whether his conduct was authorized by

his principal, either expressly or impliedly,

(b) whether his conduct occurred during the

performance of services for the benefit of the

principal, either directly or indirectly,

(c) whether his conduct, even though not express-

ly or impliedly authorized, was an incidental

event connected with his assigned work,

Coates vs. Construction and General

Laborers Local 185, (1971) 93 Cal.

Rptr. 639, 642, 15 Cal. App. 3d 908,

re hearing denied

[CT 534]

PLAINTIFF'S AND DEFENDANTS! JOINTLY

DRAWN INSTRUCTION NO,

The Defendant Los Angeles District

Council of Carpenters has been sued on the

theory that it was the principal and that

Defendants, Daley, Wilk and Fenwick were its

agents.

If you determine that Defendant Daley

was the agent of Defendant Los Angeles District

Council of Carpenters and was acting in the

scope of his authority at the time the conduct

complained of occurred and if you find that

Defendant Daley is liable, then Defendant

43.

Los Angeles District Council of Carpenters is

also liable. But if you find Defendant Daley is

not liable, then Defendant Los Angeles District

Council of Carpenters is not liable.

However, if you determine that Defendant

Daley is liable but was not then the agent of

Defendant Los Angeles District Council of

Carpenters or was not acting within the scope of

his autho: .cy at such time, then you must find

that Los Angeles District Council of Carpenters

is not liable.

[CT 535]

PLAINTIFF'S AND DEFENDANTS' JOINTLY

DRAWN INSTRUCTION NO,

The Defendant Los Angeles District

Council of Carpenters has been sued on the

theory that it was the principal and that Defend-

ants Daley, Wilk and Fenwick were its agents.

If you determine that Defendant Wilk was

the agent of Defendant Los Angeles District

Council of Carpenters and was acting in the

scope of his authority at the time the conduct

complained of occurred, and if you find that

Defendant Wilk is liable, then Defendant Los

Angeles District Council of Carpenters if [sic]

also liable. But, if you find Defendant Wilk is

not liable, then Defendant Los Angeles District

Council of Carpenters is not liable.

44,

However, if you determine that Defendant

Wilk is liable but was not then the agent of

Defendant Los Angeles District Council of

Carpenters or was not acting within the scope of

his authority at such time, then you must find

that Los Angeles District Council of Carpenters

is not liable.

[CT 536]

PLAINTIFF'S AND DEFENDANTS' JOINTLY

DRAWN INSTRUCTION NO,

The Defendant Los Angeles District

Council of Carpenters has been sued on the

theory that it was the principal and that Defend-

ants Daley, Wilk and Fenwick were its agents.

If you determine that Defendant Fenwick

was the agent of befendant [sic] Los Angeles

District Council of Carpenters and was acting

in the scope of his authority at the time the

conduct complained of occurred, and if you find

that Defendant Fenwick is liable, then Defendant

Los Angeles District Council of Carpenters is

also liable. But, if you find Defendant Fenwick

is not liable, then Defendant Los Angeles District

Council of Carpenters is not liable.

However, if you determine that Fenwick

is liable but was not then the agent of Defendant

Los Angeles District Council of Carpenters or

was not acting within the scope of his authority

at such time, then you must find that Los Angeles

District Council of Carpenters is not liable.

45.

[CT 537]

PLAINTIFF'S AND DEFENDANTS' JOINTLY

DRAWN INSTRUCTION NO,

The Defendant Local 25 has been sued on

the theory that it was the principal and Defendants

Daley, Wilk and Fenwick were its agents.

It has been stipulated that Daley, Wilk

and Fenwick are agents-of Carpenters Local 25.

If you determine that Defendant Daley

was acting in the scope of his employment at

the time the conduct complained of occurred,

and if you find that Defendant Daley is liable,

then Local 25 is also liable. But, if you find

the Defendant Daley is not liable, then Local

25 is not liable.

However, if you determine that Defendant

Daley is liable but was not acting within the

scope of his employment at such time, then you

must find that Local 25 is not liable.

[CT 538]

PLAINTIFF'S AND DEFENDANTS! JOINTLY

DRAWN INSTRUCTION NO.

The Defendant Local 25 has been sued on

the theory that it was the principal and Defendants

Daley, Wilk and Fenwick were its agents.

46.

It has been stipulated that Daley, Wilk

and Fenwick are agents of Carpenters Local 25.

If you determine that Defendant Wilk was

acting in the scope of his employment at the time

the conduct complained of occurred, and if you

find that Defendant Wilk is liable, then Local 25

is also liable. But, if you find that Defendant

Wilk is not liable, then Local 25 is not liable.

However, if you determine that Defendant

Wilk is liable but was not acting within the scope

of his employment at such time, then you must

find that Local 25 is not liable.

[CT 539]

PLAINTIFF'S AND DEFENDANTS! JOINTLY

DRAWN INSTRUCTION NO,

The Defendant Local 25 has been sued on

the theory that it was the principal and Defend-

ants Daley, Wilk and Fenwick were its agents.

It has been stipulated that Daley, Wilk

and Fenwick are agents of Carpenters Local 25.

If you determine that Defendant Fenwick

was acting in the scope of his employment at the

time the conduct complained of occurred, and if

you find that Defendant Fenwick is liable, then

Local 25 is also liable. But, if you find that

Defendant Fenwick is not liable, then Local 25

is not liable.

47.

However, if you determine that Defendant

Fenwick is liable but was not acting within the

scope of his employment at such time, then you

must find that Local 25 is not liable.

[CT 540]

*BAJI 14.71

PUNITIVE DAMAGES - RECOVERY

OF AND MEASURE

If you find tha’ laintiff has suffered

actual damage as a pruximate result of the acts

of Defendants on which you base your finding

of liability, you may in your sole discretion

award additional damages against Defendants

as punitive or exemplary damages, for sake of

example and by way of punishing Defendants if,

and only if, you find by a preponderance of the

evidence that said Defendants have been guilty

of oppression or actual malice.

["Malice'' means a motive and willingness

to vex, harass, annoy, or injure another person.

Malice may be shown by direct evidence of

declarations of hatred or ill-will or it may be

inferred from acts and conduct, such as by

showing that the Defendants' conduct was wilful,

intentional, and done in reckless disregard of

its possible results. |]

The law provides no fixed standard as to

the amount of such punitive damages, but leaves

the amount to the jury's sound is [sic] discretion,

48.

exercised without passion or prejudice.

[CT 541]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

A principal may be held in punitive dam-

ages for the wilfull and malicious acts of its

agent when it has knowledge of the conduct of

such conduct, and it approves such conduct,

Approval of the conduct may take the form of a

failure to act when in a position to remedy the

situation. Maintaining the agent in the service

of the principal alone, does not make the princi-

pal liable for punitive damages, but it is an

indication of the principal's approval of the

complained of conduct and when considered with

other acts of the principal may, in your discre-

tion, make the principal liable in punitive damages.

Coates vs. Construction and General

Laborers Local 185, (1971) 93 Cal.

Rptr. 639, 542, 15 Cal. App. 3d 908,

re hearing denied.

[CT 542]

PLAINTIFF'S SPECIAL INSTRUCTION NO.

In assessing punitive damages, if any,

you may consider the character of the Defendants'

acts, the nature and extent of the harm actually

caused the Plaintiff, and the wealth of the

Defendant.

Coates vs. Construction and General

Laborers Local 185, (1971) 93 Cal. Rptr.

639, 642, 15 Cal. App. 3d 908, re hearing

denied.

49.

[CT 543]

PLAINTIFF'S SPECIAL INSTRUCTION NO.

One of the factors you may consider in

determining the presence or absence of malice

or oppression on the part of the defense is the

relation of authority and the duties owed, if any,

by the Defendants toward the Plaintiff.

Another factor you may also consider is

whether the Defendants were aware, or reason-

ably should have been aware of the Plaintiff's

particular susceptibility, if any, to emotional

distress.

Alcorn vs. Ambro Engineering Company,

2 Cal. 3d 493, 86 Cal.Rptr. 88,90, 91

Fletcher vs. Western National Life

Insurance Company 10, Cal. App. 2d

376, 89 Cal. Rptr. 78, 91, 93.

[CT 544]

BAJI 15.02

EACH DEFENDANT ENTITLED TO

SEPARATE CONSIDERATION

Although there is more than one defendant

in this suit, it does not follow from the fact alone

that if one is liable [all] are liable. Each de-

fendant is entitled to a fair and separate con-

sideration of his own defense and is not to be

50.

prejudiced by your decision as to the other[s].

The instructions govern the case as to each

defendant so far as they are applicable to him,

unless otherwise stated.

You will decide each defendant's case

separately.

(CT 545]

BAJI 15.03

CONTRIBUTORY TORT-FEASORS--

DAMAGES NOT APPORTIONED

If you find that plaintiff is entitled to

recover against more than one defendant, you

must return a verdict in a single sum against

the defendants whom you find to be liable.

[CT 546] °

BAJI 15.20

JURY NOT TO TAKE CUE FROM

JUDGE

I have not intended by anything I have

said or done, or by any questions that I may

have asked, to intimate or suggest how you

should decide any questions of fact submitted

to you, or that I believe or disbelieve any witness.

If anything I have done or said has seemed

so to indicate, you will disregard it and form your

Own opinion.

ol.

[CT 547]

BAJI 15.22

ALL INSTRUCTIONS NOT

NECESSARILY APPLICABLE

The court has given you instructions

embodying various rules of law to help guide you

to a just and lawful verdict. Whether some of

these instructions will apply will depend upon

what you find to be the facts. The fact that I

have instructed you on various subjects in this

case [including that of damages] must not be

taken as indicating an opinion of the court as to

what you should find to be the facts or as to

which party is entitled to your verdict.

[CT 548]

BAJI 15.30

JURORS TO DELIBERATE

When you go to the jury room it is your

duty to discuss the case for the purpose of

reaching an agreement if you can do so.

Each of you must decide the case for

yourself, but should do so only after a considera-

tion of the case with the other jurors.

You should not hesitate to change an

opinion if you are convinced it is erroneous.

However, you should not be influenced to decide

52.

any question in a particular way simply because

a majority of the jurors, or any of them, favor

such a decision.

[CT 549]

BAJI 15.31

HOW JURORS SHOULD APPROACH

THEIR TASK

The attitude and conduct of jurors at the

outset of their deliberations are matters of

considerable importance. It is rarely productive

of good for a juror, upon entering the jury room,

to make an emphatic expresSion of his opinion on

the case or to announce a determination to stand

for a certain verdict. When one does that at the

outset, his sense of pride may be aroused, and

he may hesitate to recede from an announced

position if shown that it is wrong. Remember

that you are not partisans or advocates in this

matter, but are judges.

[CT 550]

EACH JUROR SHOULD DELIBERATE

AND VOTE ON EACH ISSUE TO BE

DECIDED

Each of you should deliberate and vote on

each issue to be decided.

However, before you may return a verdict

to the court, at least nine jurors must agree on it

53.

in its final and complete form, so that each of

those nine or more may be able to state truth-

fully that the verdict is his.

[CT 551]

BAJI 15.33

CHANCE OR QUOTIENT VERDICT

PROHIBITED

The law forbids you to determine any

issue in this case by chance. Thus, if you

determine that a party is entitled to recover,

you must not arrive at the amount of damages

to be awarded by agreeing in advance to take

the independent estimate of each juror of the

amount to be awarded, then to total such

estimates, divide such total by twelve and to

make such resulting average the amount of

your award,

{CT 552]

BAJI 15,50

CONCLUDING INSTRUCTION

You shall now retire and select one of

your number to act as foreperson who will pre-

side over your deliberations. As soon as nine or

more of you shall have agreed upon a verdict,

you shall have it signed and dated by your fore-

person and then shall return with it to this room,

54,

JURY INSTRUCTIONS REFUSED OR WITHDRAWN

[CT 553]

BAJI 13,01

SCOPE OF AUTHORITY-MEANING

It is not necessary that a particular act

or failure to act be expressly authorized by the

principal to bring it within the scope of the agent's

[authority]. Such conduct is within the scope of

his [authority] if it occurs while the agent is en-

gaged in the duties which he was employed to

perform and relates to those duties. Conduct

for the benefit of the principal which is incidental

to, customarily connected with or reasonably

necessary for the performance of an authorized

act is within the scope of the agent's [authority].

(CT 554]

BAJI 13.06

CONTESTED ISSUE OF IMPUTATION

TO DEFENDANT--BOTH PRINCIPAL

AND AGENTS SUED

The defendant Local #25 has been

(principal)

sued on the theory that it was the principal and

were its agents. It has been stipulated that

Daley, Wilks and Fenwick were agents of [sic. ]

55.

If you determine that defendants

~ (agent) ——™S”

acting within the scope of his employment] at the

time of the events out of which the accident

occurred, and if you find that defendant

is liable, then both

(agent)

defendants are liable. But if you find that

defendant is not liable

then neither defendant is liable.

However, if you determine that defendant

is liable but [was not

7 (principal) — batind

[or] [was not acting within the scope of his

employment] at such time, then you must find

that the defendant is not liable.

mm aes ae ee

(principal)

[CT 555]

BAJI 13,03

DIRECTED IMPUTATION AGAINST

A DEFENDANT PRINCIPAL--BOTH

PRINCIPAL AND AGENT SUED--

NO ISSUE AS TO AGENCY OR

SCOPE OF EMPLOYMENT

The defendants are sued as principal and

~ (principal)

Local as the principal and the defendants

(agent)

If you determine that either of defendant

ee agents ___ is liable, then you must

(agent)

find that defendant 2 sss

~ (principal)

is also liable. However, if you determine that

defendant is not liable,

[CT 556]

PLAINTIFF'S AND DEFENDANTS! JOINTLY

DRAWN INSTRUCTION NO,

The Defendant United Brotherhood of

Carpenters and Joiners of America has been

sued on the theory that it was the principal and

that Defendants Daley, Wilk and Fenwick were

its agents.

If you determine that Defendant Fenwick

was the agent of Defendant United Brotherhood

of Carpenters and was acting in the scope of his

authority at the time the conduct complained of

occurred, and if you find that Defendant Fenwick

57.

is liable, then Defendant, United Brotherhood of

Carpenters is also liable. But, if you find

Defendant Fenwick is not liable, then Defendant

United Brotherhood of Carpenters is not liable.

However, if you determine that Defendant

Fenwick is not liable but was not then the agent

of Defendant United Brotherhood of Carpenters

or was not acting within the scope of his authority

at such time, then you must find that United

Brotherhood of Carpenters is not liable.

(CT 557]

PLAINTIFF'S AND DEFENDANTS' JOINTLY

DRAWN INSTRUCTION NO,

The Defendant United Brotherhood of

Carpenters and Joiners of America has been

sued on the theory that it was the principal and

that Defendants Daley, Wilk and Fenwick were

its agents.

If you determine that Defendant Wilk was

the agent of Defendant United Brotherhood of

Carpenters and was acting in the scope of his

authority at the time the conduct complained of

occurred, and if you find that Defendant Wilk is

liable, then Defendant United Brotherhood of

Carpenters is also liable. But, if you find

Defendant Wilk is not liable, then Defendant

United Brotherhood of Carpenters is not liable.

However, if you determine that Defendant

Wilk is liable but was not then the agent. of

58,

Defendant United Brotherhood of Carpenters or

was not acting within the scope of his authority

at such time, then you must find that United

Brotherhood of Carpenters is not liable.

"(CT 558]

PLAINTIFF'S AND DEFENDANT'S JOINTLY

DRAWN INSTRUCTION NO,

The Defendant United Brotherhood of

Carpenters and Joiners of America has been

sued on the theory that it was the principal and

that Defendants Daley, Wilk and Fenwick were

its agents.

If you determine that Defendant Daley was

the agent of Defendant United Brotherhood of

Carpenters and was acting in the scope of his

authority at the time the conduct complained of

occurred, and if you find that Defendant Daley

is liable, then Defendant United Brotherhood of

Carpenters is also liable. But, if you find

Defendant Daley is not liable, then Defendant

United Brotherhood of Carpenters is not liable.

However, if you determine that Defendant

Daley is liable but was not then the agent of

Defendant United Brotherhood of Carpenters or

was not acting in the scope of his authority at

such time, then you must find that United Brother-

hood of Carpenters is not liable.

59,

[CT 559]

DEFENDANTS' REQUESTED SPECIAL

INSTRUCTION NO,

You are directed to enter a verdict for

the United Brotherhood of Carpenters and

Joiners of America, AFL-CIO,

[CT 560]

DEFENDANTS' REQUESTED SPECIAL

INSTRUCTION NO,

In determining whether the Plaintiff has

satisfied the burden of proof regarding liability

of any defendants in this case, you are not to

consider any evidence regarding discrimination

concerning employment opportunities or hiring

either on the basis of the general dispatching

procedures of the Defendants Carpenters Union

Local 25, or its business agents, or regarding

any operation of the dispatching procedures

concerning the Plaintiff.

Note:

The above instruction is based on the

Rule of Pre-emption that all matters involving

dispatching procedures, hiring and termination

regarding employees and members of the

Carpenters Union concerning any contractors or

employers in interstate commerce, a matter

within the exclusive jurisdiction of the National

Labor Relations Board and the Federal Courts

and the State Courts, including any jury delibera-

tions are without jurisdiction in this matter. [Sic. ]

60.

[CT 561]

DEFENDANTS' REQUESTED SPECIAL

INSTRUCTION NO,

In determining whether the Plaintiff has

satisfied the burden of proof, you are not to con-

sider the general procedures and practices of the

hiring hall of Carpetners Union Local 25, or any

of its business agents. The only evidence you

are to consider are evidence relating to the

Plaintiffs individually regarding the alleged act

of discrimination concerning his employment.|Sic. ]

Note:

The above instruction is offered as an

alternative to the previously offered ihsiruction

on pre-emption as the general practices of the

hiring hall of the Carpenters Union is a matter

under the doctrine of pre-emption within the

exclusive jurisdiction of the National Labor

Relations Board and the Federal Courts. In

determining any liability regarding an intentional

act under California law, the State Court including

jury deliberation cannot consider general practices

of a Carpenters Union hiring hall but can only

consider individual acts of discrimination that

relate to the Plaintiff concerning any intentional

infliction of emotional distress. [Sic. ]

(CT 562]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

Oppression, as used in these instructions

is defined as an unjust or cruel exercise of

61.

authority or power subjecting the recipient to

unreasonable hardship.

Roth vs. Shell Oil Company, 185 Cal.

App. 2d 676, 8 Cal. Rptr. 514

Baker vs. Peck, 1 Cal. App. 2d 231,

36 P.2d 404

[CT 563]

PLAINTIFF'S SPECIAL INSTRUCTION NO,

Malice is defined as a wish to vex, annoy

or injure another person, and may be proved by

direct evidence of the evil motive and intent or

by legitimate inferences to be drawn from the

surrounding facts and circumstances in evidence.

Fletcher vs. Western National Life

Insurance Company, 10 Cal. App. 3d 376,

89 Cal. Rptr. 78

[CT 564]

DEFENDANTS' REQUESTED SPECIAL

INSTRUCTION NO,

If you find that any emotional distress or

disturbance of the Plaintiff was not actually caused

by any of the course of conduct of the individual

defendants, but was in fact caused by other inci-

dents, events or circumstances or by the plaintiff's

own actions, you must likewise bring in a verdict

for all defendants.

62.

[CT 565]

PLAINTIFF'S SPECIAL INSTRUCTION NO.

In the event you should find the Plaintiff

is entitled to a verdict you should award Plaintiff

such an amount as will compensate him reason-

ably for all detriments suffered by him and of

which Defendants' conduct was the actual cause.

In arriving at the amount of the award,

if any, you shall consider any actual damage

which the Plaintiff has proved, and also such

sum as will compensate him reasonably for any

fears anxiety and other mental and emotional

distress, if any, suffered by him and proximately

resulting from the conduct in question.

Fletcher vs. Western National Life

Insurance Company, 10 Cal. App. 2d

376, 89 Cal. Rptr. 78, 97

[CT 566]

DEFENDANTS' REQUESTED SPECIAL

INSTRUCTION NO,

You are instructed that the Plaintiff has

failed to meet the burden of proof and you must

find for the Defendants, unless you find that the

individual Defendants committed acts that are

considered as extreme and outrageous conduct

intentionally or recklessly causing severe

emotional distress to the Plaintiff. In this

regard the law intervenes only where the distress

63.

inflicted is so severe that no reasonable man

could be expected to endure it. The intensity

and duration of this distress are factors to be

considered in its severeity. In this connection,

"severe'' means substantial or enduring as

distinguished from trivial or transitory. If

you find trivial emotional distress only, you

are to find for the Defendants as complete

emotional tranquility is seldom obtainable and

some degree of transient and trivial emotional

distress is a part of the price of living among

people. In this regard, the Defendants are

liable only where the conduct has been so out-

rageous in character and so extreme in degree

as to go beyond all possible bounds of decency

and to be regarded as atrocious and utterly

untolerable in a civilized community. The

reliability of the Defendants regarding any of

their acts should not extend to mere insults,

indignities, threats, annoyances, petty oppres-

sions or other trivialities. The Plaintiff in our

society and within the context of his occupation

and associates as a construction worker, must

necessarily be expected and required to be

hardened to a certain amount of rough language

and to occasional acts that are definitely

inconsiderate and unkind:

See Golden v. Dungan, 20 CA 3rd 295

Fletcher v. Western National Life Ins.

Co., 10 CA 3rd 376

Alcorn v. Ambro Engineering Inc.,

2 C. 3rd 493

64.

[CT 567] [CT 569]

PLAINTIFF'S SPECIAL INSTRUCTION NO. BAJI 1.11

In California the principal is liable for "SUBJECT TO LIABILITY"--

the wilful or malicious acts of its agent who is MEANING OF

acting in the scope of his employment.

The words "subject to liability",

Kaufman vs. Brown, 93 Cal. App. 2d as used in these instructions, mean that [in

508, 209 P.2d 156 the absence of certain exceptions or defenses

as to which you will be instructed] a defendant

Weir vs. Continental Oil Company, is liable for another's injury proximately caused

5 Cal. App. 2d 714, 43 P.2d. 375 by such defendant's conduct.

Gudger vs. Manton, 21 Cal. 2d 537,

134 P. 2d 217

[CT 568]

BAJI 13.00

AGENT--DEFINITION OF

One is the agent of another person at a

given time if he is authorized to act for or in

place of such person. [One may be an agent

although he receives no payment for his services. ]

For the purposes of this trial, the term "agent"

includes servants and employees and the term

"principal" includes employers.

65. 66.

[CT 570]

WILLIAM G. SHARP,

County Clerk

Entered Book Page

Feb 5 '73 6798 358

FILED

Date February 3, 1973

WILLIAM G, SHARP,

County Clerk

Vera C. Chappelle

Deputy

SUPERIOR COURT OF THE STATE OF

CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

RICHARD T HILL

Plaintiff(s)

vs

Case Number

951866

UNITED BROTHERHOOD JUDGMENT ON

OF CARPENTERS AND VERDICT IN

JOINERS OF AMERICA, OPEN COURT

ET AL (LONG FORM)

Defendant(s)

This action came on regularly for trial

on December 11, 1972;

in Department 68 of the

above entitled Court, the Honorable Robert W.

Kenny Judge presiding; the plaintiff(s) appearing

by attorney G. Dana Hobart and the defendant(s)

appearing by attorney Leo Geffner of Geffner &

Satzman

67.

A jury of 12 persons was regularly im-

paneled and sworn to try the action. Witnesses

on the part of the plaintiff(s) and the defendant(s)

were sworn and examined, After hearing the

evidence, the argument of counsel, and instruc-

tions of the Court, the jury retired to consider

of their verdict, and subsequently returned into

Court, and being called answered to their names

and duly rendered their verdict in writing in

words and figures as follows, to-wit:

"TITLE OF COURT AND CAUSE" We,

the jury in the above entitled action, find for the

plaintiff, Richard T. Hill, and against defendants

Earl George Daley, and United Brotherhood of

Carpenters and Joiners of America, Local 25 and

Los Angeles District Council of Carpenters, and

assess damages in the sum of $7,500.00

We further assess punitive damages

against said defendants in the sum of $175, 000. 00;

We further find for defendants Joseph Wilk,

Ben Fenwick, and against the plaintiff, Richard T.

Hill.

Dated February 2, 1973 Charles C. Schutz,

Foreman

JUDGMENT ON VERDICT IN OPEN

COURT

(CT 571]

WHEREFORE, by virtue of the law, and

by reason of the premises aforesaid, it is ordered,

adjudged, and decreed that said plaintiff, Richard

T. Hill, recover nothing by reason of his com-

plaint against the defendants, Joseph Wilk and

Ben Fenwick, and that the defendants, Joseph

Wilk and Ben Fenwick, have and recover from

said plaintiff, Richard T. Hill, costs and dis-

bursements amounting to the sum of $ °

Wherefore, by virtue of the law, and by

reason of the premises aforesaid, it is ordered,

adjudged, and decreed that said plaintiff, Richard

T. Hill, have and recover from the defendants

Earl George Daley, United Brotherhood of

Carpenters and Joiners of America, Local 25,

and Los Angeles District Council of Carpenters,

compensatory damages in the sum of $7,500

with interest thereon at the rate of seven per cent

per annum from the date of the verdict until paid

together with costs and disbursements amounting

to the sum of $ °

Further, that said plaintiff, Richard T. Hill,

have and recover from said defendants, Earl

George Daley, United Brotherhood of Carpenters

and Joiners of America, Local 25, and Los

Angeles District Council of Carpenters, punitive

damages in the sum of $175,000. 000 with interest

thereon at the rate of seven per cent per annum

from the date of the verdict until paid together

with costs and disbursements amounting to the

sum of $4,607.31 .

69.

-

(CT 581]

NOTICE OF MOTION FOR

NEW TRIAL

Filed February 13, 1973

[Caption Omitted in Printing]

To Richard T. Hill, plaintiff and to G. Dana

Hobart, his attorney:

YOU AND EACH OF YOU WILL PLEASE

TAKE NOTICE that the defendants, United Brother-

hood of Carpenters and Joiners of America, Local

25, the Los Angeles County District Council of

Carpenters and E.G. Daley, defendants in the

above matter, intend to and will move the Court

at a time to be set by the Court, in Department

68, for an order granting a new trial.

The motion will be made upon the following

grounds:

1, Irregularity in the proceedings of

the Court and the jury and abuse of discretion

which prevented the defendants from having a

fair trial.

2. Excessive damages.

3. Insufficiency of the evidence to

justify the verdict and the verdict is against the

law.

70.

4. Error in law occurring at the trial

[CT 582]*

and excepted* to by the defendants as the moving

parties.

The motion will be based upon the Minutes

of the Court and upon the evidence, oral and

documentary, as well as all papers, records

and documents and exhibits on file herein pur-

suant to Sections 657, 658, 659 and 660 of the

Code of Civil Procedure of the State of

California, and upon the Memorandum of Points

and Authorities to be submitted in support of

this motion.

DATED: February 13th, 1973

GEFFNER & SATZMAN

A Professional Corporation

By: Leo Geffner

LEO GEFFNER

Attorneys for Defendants

[Proof of Service Omitted in Printing]

71.

ORDER OF SUPERIOR COURT

OF LOS ANGELES COUNTY

Rendered March 15, 1973

[Caption Omitted in Printing]

[CT 644]

MOTION FOR NEW TRIAL AND

MOTION TO TAX COSTS

In this matter, heretofore submitted

March 12, 1973, the Court now makes the

following ruling:

Defendant's motion for new trial is denied.

Item 28. Transcript, (partial) NLRB,

$338.25 and

Item 29. Simpson Depo travel costs to

San Francisco, $52.26 are ordered

stricken and the cost bill is re-taxed

at $4,607.31.

Copy of this minute order sent to counsel

for all appearing parties this date by U.S. mail.

Certificate of mailing executed and filed.

[Proof of Service Omitted in Printing]

72.

NOTICE OF APPEAL

Filed March 30, 1973

[Caption Omitted in Printing]

(CT 645]

NOTICE IS HEREBY GIVEN that Defend-

ants, the Los Angeles County District Council of

Carpenters, Carpenters Union Local 25, and

Earl George Daley, and each of them in the above-

entitled action hereby appeal to the Court of

Appeal of the State of California, Second Appellate

District, from the Judgment entered against

Defendants in favor of Plaintiff and entered on

February 5, 1973 in Book 6798, Page 356.

DATED: March 27, 1973

GEFFNER & SATZMAN

A Professional Corporation

By: Leo Geffner

LEO GEFFNER

Attorney for Defendants.

[Proof of Service Omitted in Printing]

73.

-_

Decision and Judgment of Court of

Appeal of the State of California,

Second Appellate District, Division

Five, is reproduced as Appendix A

to Petition for Writ of Certiorari.

Order Denying Petition for Hearing

in California Supreme Court is

reproduced as Appendix B to

Petition for Certiorari.

74,

ORAL PROCEEDINGS

SUPERIOR COURT OF THE

STATE OF CALIFORNIA FOR

THE COUNTY OF LOS ANGELES

DEPARTMENT NO, 68 EFON.ROBERT w.

KENNY, JUDGE

RICHARD T, HILL, )

)

Plaintiff, )

)

vs. )

) No. 951866

UNITED BROTHERHOOD OF )

CARPENTERS AND JOINERS )

OF AMERICA, LOCAL 25, )

an unincorporated association, )

et al.,

)

)

Defendants. )

)

REPORTERS' TRANSCRIPT ON APPEAL

December 12, 13, 14, 15, 18, 19, 20, 21, 26,

27 and 29, 1972; January 2, 3, 4, 8, 9, 10, 11,

12, 15, 16, 17, 18, 19, 22, 23, 24, 26, 29, 30

and 31; February 1 and 2, 1973.

75,

APPEARANCES:

For Plaintiff: COLEMAN, SILVERSTEIN

& HOBART

By: G. DANA HOBART

3008 Wilshire Boulevard

Suite 200

Los Angeles, California 90010

(213) 385-5154

For Defendants: GEFFNER & SATZMAN

By: LEO GEFFNER

520 South Virgil Avenue

Los Angeles, California 90020

(213) 381-5561

[RT 148]

THE COURT: Good Afternoon.

Does the Plaintiff care to make an opening

statement ?

MR. HOBART: Thank you, your Honor.

Ladies and gentlemen, counsel, as some

of you know, the opening statement is a time

when the lawyers for each side have an opportunity

to present to you what they think the evidence is

going to unfold as the trial progresses. It is

given to you more in a sense to acquaint you with

the overall picture, so that you see how the pieces

may fit into the general scheme of things.

76.

Sometimes we are surprised. Sometimes

the evidence doesn't come out exactly like we think,

but I do think, by and large, the evidence will be

as I present it to you here.

One of the reasons that the case is going to

take as long as it will is because we are going to

have to reconstruct for you the dispatching pro-

cedures, as well as some of the actual dispatches as

as they occurred out of the union hall during. 1967

and '68, for the most part, and a little bit in 1969.

So the evidence will show, in a sense, an

instruction element. That is so you will see what

the procedure was, so that you will understand it,

and I will discuss that with you now, and it will go

[RT 149]*

into far more* elaborate detail.

Basically, the structure is this: The

Carpenters, Local 25, which is here off Alvarado

Street, is a union hall where members of the

Carpenters Union who carry their book -- that

just means they get employed out of that local.

They have a little book that they present to that

local, and they are dispatched from that local.

A carpenter could go to virtually any local that

would, for one reason or another, fit his needs

and fancy, and work out of that local, if there

is work, and so forth,

Mr. Hill has worked out of Local 25 since

19- -- well, 1961, I think it was. He's beena

77.

carpenter since 1952. Now, when a contractor,

we'll say a man, one of the companies, builds

a high-rise building, or virtually anything lower

than that, but when they are in the process of

building, they will call up on a day-by-day basis

to the Carpenters Union. They may call up early

in the morning, and they may call up late in the

afternoon. If they'd call late in the afternoon,

they'd say, "Tomorrow we need five forms men."

Forms is one of the types of carpenters, guys

to put the forms in, and they pour cement into it,

and that sort of thing. You have seen wood

structures around the cement foundations on

this and that, and various buildings; but at any

rate, they call up and say, "Tomorrow send us

out five forms men to such and such a location."

Now, the responsibility at this point,

then, is the next morning, when the dispatches

are actually made from the union, or when they

[RT 150]*

are supposed to be made from the * union, the

business agent who is in charge of dispatching --

it could be one person on that particular morning,

or it may be two, or even possibly three. But

generally it's one, sometimes it's two -- that

business agent, if he follows the rules, the

bylaws, and the contracts and various agree-

ments, he'll go to what's called the out-of-work

sheets. Now, I'm just holding one here at random

for a period that has no relevant significance in

our case; but you will notice that the out-of-

work sheets have dates on them; 8/14/67.

78.

Now, almost always these out-of-work

sheets are made on Monday mornings, after

dispatches for Monday morning have occurred,

off of the preceding week's sheet. In other

words, after they have made the dispatches off

of the sheet for the 7th of August, whoever's

left in the hall then comes back and signs this

list, moving up in position according to the

number of people who had been dispatched during

the previous week. I'm going to do this slowly

and a couple of times, because it is important

that you understand the process here that's

involved.

So, for example, on -- well, say on the

afternoon of the 15th, or any time during the

week that a given sheet would be in effect, the

carpenters local gets a call for five forms men,

or carpenters, tomorrow, sent out to such and

such a contractor. Now, under the rules of the

union, the business agent then goes down the

list and takes the first man, if the first man is

there and available, and wants the work. Which

means the first five people who should be

dispatched would be the top five names on the

[RT 151]*

list. Well, there are * certain exceptions to

that. It's difficult to understand quite what it

is, but sometimes if a person doesn't have any

box checked, they just would go on to the first

person who's got a box checked; but that's an

ancillary matter that we will get into at a later

79.

point.

But, at any rate, the regulations are, the

rule is, the union bylaws are, that they must be

dispatched in order if they are qualified to do the

type of work that is being requested. Sometimes

you get a call for a cabinetmaker. Well, not all

the carpenters are cabinetmakers. That's a

rather refined element of the field, and consequently,

they may have to go several pages before they find

a cabinetmaker. But, in general, for the general

type of work that these men do, they are required

to come off of this list.

Now, when the carpenters local gets this

original call from the employer-contractor, they

have what is called the white slip. I don't know

offhand if we have a copy of a white slip here,

but basically a white slip -- I think what I'll do,

as a matter of fact, is jot down for you the

various forms that are involved.

First, we have the out-of-work sheets --

my apologies for anybody that gets shivers from

that kind of squeaking. Okay, the out-of-work

sheets are the sheets I have shown you. That's

the long form.

By the way, as an addendum to the out-of-

work sheets, that is, each man that is out of

work after a Monday morning's dispatches signs

the following week's sheets. That means,

for example, during the week three people off

[RT 152]*

of this * week were dispatched. They obviously

will not be on the sheet the following week, so

that means, in a sense, that everybody has moved

up three spaces; or if 40 people have been

dispatched, then they would have moved up 40

spaces -- if they were ahead of you, that is.

Okay. Each man is supposed to sign his

own name, and each man is supposed to sign in

the order of the preceding week. The evidence

will show that on numerous occasions these

business agents, some of the defendants, would

allow friends of theirs to sneak in. That's the

word. It's called a sneak-in. In other words,

you'll find men signed here who have no business

being signed high on the list, who should, rather,

be at the back of the list, but who you will find

are relatively high on pages 1, 2, 3, 4; high on

the list.

You can see by the one document that I'm

holding, that some names have been lined out.

This means they were dispatched that week,

consequently, they will not be on the next week's

list, unless there is an exception; unless he has

less than two days' work. In other words, ifa

man that goes out on a job that lasts less than

18 hours -- 16 hours, I guess it is -- if it lasts

less than that, then he doesn't lose his place on

the list; but other than that, he loses -- if he

goes out for a three-day job, he loses his place

81.

on the list. At the end of the three days he has

to come back and sign on the bottom of the list.

If he gets a year-and-a-half job, works a year

and a half, he comes and signs at the bottom

of the list.

[RT 153]

The evidence will disclose to you that

numerous jobs last months and months, some-

times a year, sometimes even two years on some

of these bigger jobs. The evidence will disclose

to you, in that respect, there are good jobs and

there are bad jobs. All right. Now, that's the

nature of the out-of-work list.

Now, as I indicated, when the business

agent, or when the office of the carpenters get

this telephone call -- now, this phone call could

be taken by a business agent if he happens to be

in the office in the afternoon or morning, when

that call comes in, or it could be taken by one of

the clerks in the office. You will see the name

Evelyn Folick, on a few occasions, and she was

a clerk that worked for the union; and you would

see that on some of these white slips. These

are telephone orders; telephone orders for men.

A white slip is made out. Get on the

telephone, yes, okay, Mr. Superintendent, or

Mr. Foreman, or whoever she's talking to from

the construction company, you want five

carpenters for tomorrow. All right, where shall

they go? Okay. And she makes a notation of that.

82.

Now, that white slip is given to the business

agent in the morning so he knows what jobs he has

to fill. Now, he takes this white slip and he says,

"Okay. The Simpson Construction Company wants

five men" -- five forms men, we'll say. He goes

down, ''Okay, Mr. So-and-So, Mr. So-and-So,

Mr. So-and-So." If those men are there, they

will be dispatched on this sheet, if it's done

properly.

There's another document that will *

[RT 154]

come into play * in this case, and this is an

orange card, and this is the employer request.

Now, the employer request form is a document

that is a .ittle card about 3-by-6, something like

that. It's orange, and that's the official form

which a contractor, the employer, uses when he

wants to request a particular carpenter. So the

‘ rules do not say that all dispatches must come

off of this sheet. There is an exception, and

that is, the employer may request up to 25

percent of the labor force that is being dispatched

to that job.

Now, of that 25 percent, the rule also says

that before you can make such a request, the man

that you are requesting must have worked for you

some time in the last, I think it is, three or five

years. In other words, they can't just go out

and request anybody, but it's got to be somebody

who has worked for that construction company in

83.

the past, and then their requests are technically

limited to 25 percent of the force they are hiring.

Now, the orange card has not been uniformly

required of an employer. The union has allowed

them to send in any type of a slip, just a written

request for carpenter Joe Smith. Please send

Joe Smith out to my job tomorrow, or the next

day, or whatever day they are having dispatches

sent out. So the employer can use any written

request; just a little slip of paper, a scrap will be

enough. In one case, I think the request was made

on a block of wood. So, in other words, the

formality of the request system is not formal,

to put it in a nutshell.

Now, in addition to these two methods

[RT 155]

of written * requests, there are also oral requests.

Now, the oral requests generally would come at

the time the original telephone call was made,

maybe to the clerk, Miss Folick, who I have

mentioned, or even to the business agent himself,

"Tomorrow send us out five carpenters. Make

one of those Joe Smith'"’ -- or make two of them,

Joe Smith and Ben Smith, that sort of thing. So

the person who took the telephone order would

make a notation on the white slip, since this was

a telephone order, make a notation on there, we

also have a request for two people, or whatever

it may be.

84.

All of these procedures of requests, all

three, have been honored throughout the period

that our lawsuit is concerned with, which I might

point out to you is roughly from January 1, 1967

to April 1, 1969. The evidence will show that all

these forms of requests have been maue, and have

been honored.

Now, one other card, or slip of significance,

is called the work referral. The work referral sli

slip is -- I'll take the first one here, so I can put

it back in order and know where it goes. I have

no idea what it is, but here's a work referral

slip. It is the pink slip. This slip is given to

the carpenter at the time he is dispatched by his

union. In other words, the business agent said

-- I can't quite read the name here, but let's say

it is Joe Smith, to stick with my highly imaginative

name -- "Mr. Smith, you're being dispatched

over to the William Simpson job at Sunset and

Vermont." The slip has got the name and

signature of the business agent who's making

[RT 156]*

the dispatch, and if the dispatch * is a request,

sometimes the word '"R-e-q"’ will appear on this

slip.

So the worker takes the slip handed to him

by the union, and he goes on to the job, and this

shows that he's been properly dispatched to the

job. So that's the work referral slip.

85.

“a

The allegations of this lawsuit are, and

the evidence will support it, that in the dispatching

procedure Mr. Hill would be personally dis-

criminated against in numerous ways. For

example, the evidence will show that Mr. Hill

would be on the out-of-work list, and he would be

in a position where he should be sent out on a job,

but the business agent in charge, rather than

sending out Mr. Hill, who is ready, will, and

able to work, would do one of several things. One

thing he might do is he would take a friend of his,

who may or may not be on the sheets, and take

that work referral slip and just write the word

"Request" on it, even though there had been no

bona fide request, and they would give that job

that Mr. Hill should have been dispatched to, to

a friend.

Now, every time they would do that,

obviously, Mr. Hill did not move up a notch, if

somebody ahead of him should have gotten that

job, and on some occasions you will find that

people below him got those jobs who were on the

list below him, and other times people who were

not even on the list got these jobs.

Now, if there is a request, as the work

referral slip might indicate, then we go back

[RT 157)*

to the orange cards. * Any written request at all,

or proof of any oral requests, if it is noted on

the white slip, and we check to see if there was a

86.

request. Well, a fair number of our records are

unavoidably missing, but that which we have will

demonstrate to you for certain periods of time

that there would be no evidence on numerous

occasions -- no evidence at all -- that there was

such a request.

Mr. Hill was discriminated against in other

matters. For example, the business agents, whose

responsibility it is to see that these lists were

signed in the proper order, and who is the only ,

person charged with that responsibility, would

let sneak-ins, people sign above Mr. Hill's

position; and you will see that on some of those

occasions, those people got dispatched to jobs

where, but for their presence, the job should

have been offered to Mr. Hill.

You will find other areas of discrimination

against Mr. Hill. The testimony will be that it is

the policy of the business agents to tell a man

when he's next on that list, You're next. We've

got these jobs available. We've gota job for, we

will say, the Simpson job. It looks like it's going

to last six months, or one month, five days. We've

got this job that's going to last a certain amount

of time."' Obviously, it is done, because when

you're on the list, and you're up high, preference

is to the longer jobs so you can keep working and

keep out of the employment lines. The evidence

will show Mr. Hill was never given his choice of

better jobs, and that oftentimes he would sit on

those lists for, like, three months, going from

[RT 158]*

87,

the bottom of the list to * the top of the list, and

when he'd get to the top of the list, they would

offer him a three - or four-day job, or a very

short job, when other jobs were available. So

he'd go out and work three days, and spend

— lengthy period of time on the out-of -work

sts.

The evidence will show that the friends of

the business agents worked regularly and constantly,

nt almost without ver being on these out-of-work

ists.

The evidence will show that numerous

people in the union -- and we're not bringing all

of these people in for you to examine. It would

take forever to finish this case, but we are

bringing in plenty -- you will see that numerous

of the political cronies of the dispatchers, the

people who were in control of the dispatching

procedures, that they worked hundreds and

hundreds and hundreds of hours, whereas Mr.

Hill, in 1967, worked no hours; but that was part

of the period of time, in fact, the most period of

time he was disabled from the emotional break-

down he had because of conduct which occurred

earlier in the year, which I will talk about ina

moment,

But in 1968, when he was available the

entire year, Mr. Hill worked something like

600 and some hours for the whole year, and the

cronies of the "in" group worked, I don't know,

three, four, five, six times that much. I'm not

sure, but far out of proportion.

In early 1967 -- well, let me -- yes, in

early 1967 Mr. Hill was the elected vice president

of Local 25. He had been elected in 1965, I

[RT 159]*

believe,- or '66 -- '66, I think -- * and I think

it's a three-year term that would expire around

June of 1968.

| The evidence will also show that Mr. Hill

has been elected official of that union in various

capacities; that he has been on the trial board; he's

been on the negotiating: committee; he's served in

various offices as trustee, steward, that sort of

thing -- stewards are appointed. We'll talk about

that -- various types of offices that he held. In

other words, he's been a very active political

person.

Just about the first of 1967 certain incidents

were taking place in the union. One incident was

an annual report, that all labor unions are required

to file, had been filed under the signature of the

president of the union, a man by the name of John

Nelson. Mr. Nelson had signed this report, and

apparently the federal government, for one reason

or another, had sent it back and said it had to be

revised. There were some discrepancies of some

sort. Mr. Hill and Mr. Nelson, president and

vice president, were asked to resign the new --

or first, Mr. Nelson was asked to resign the new

one, the new revised document, and Mr. Nelson

wanted a hearing with an auditor. He asked Mr.

Hill to join him. They tried to set up a meeting

89.

with Mr. Keen, who was -- I think his office is

called like the treasurer. He's in that office all

the time. He's one of the defendants -- and they

asked to set up a meeting with the auditor, they

didn't want to sign something they didn't know

[RT 160]*

about, and put their signatures to it. *

Mr. Nelson refused to signit. It was

presented Mr. Hill to sign it. He also declined,

said he wanted to find out what the discrepancy

was, and wanted to have a meeting with the auditor.

They had a meeting arranged at that time,

but the auditor didn't show, and they still attempted

to have Mr. Hill sign this document. He said,

no, he wouldn't. That's one incident that was

going on.

At this time a general eruption of a political

nature occurred over this incident. Mr. Hill had

refused to sign the document, and in early January,

the January the lst books, he was on the out-of-

work sheets. Hostilities which had been smoldering

came to a head, primarily between him anda

man by the name of Blackie Daley; E. G. Daley,

one of the more significant defendants in this

case. Blackie Daley was the business agent

with the most seniority as business agent, and

although I don't think there's an official title, he

was, for all purposes, the chief business agent.

He was the man who basically was in charge of

Local 25. He ran Local 25, and the evidence will

90.

show that he ran it with a steel clamp, and I mean

his fist.

The evidence will show that he often said,

"Nobody gets a job out of here unless I okay it,"

and he told it to Mr. Hill on numerous occasions

during this period when he and Mr. Hill broke.

Mr. Hill had been friendly with him prior to this,

had supported him, I believe, for an election once

before; but at this stage they broke over the

[RT 161]*

internal affairs of the union. *

Mr. Hill was threatened by Mr. Daley

during this period, ''You will sit on this bench" --

that is, the out-of-work bench -- "until hell

freezes over. You'll never work here again,"

things of this nature. Constant threats to Mr. Hill,

and various incidents occurred to bear that out.

Now, during this period Mr. Hill started

keeping track of the dispatch system. He started

actually going through, trying to check the names

of the people who were on the sheets, to the

dispatches that were actually sent out, and he

saw that there were numerous, numerous -- 50

percent, give or take a little -- discrepancies.

Men being dispatched who were not on these lists,

and every illegal dispatch, certainly an act of

discrimination against him, as well as anybody

who was under him, or who should have been

dispatched on that list.

91,

So he started keeping this list, and he

started complaining, charging these men who

were in charge -- Mr. Daley, primarily, but

there was also at the time Mr. Wilk, Joseph Wilk

-- charging these people with failure to follow

the rules, failure to carry out their trust, failure

to dispatch their jobs according to the rules,

regualtions, and constitution of the union.

These men, in turn, told Richard Hill,

"Get lost. If you don't like it, get the hell out of

this union. We'll run it our way. Split, leave,

go,"' called him stupid names, made fun of him,

picked on him at every opportunity, demeaned

him socially, told other workers, "You mess

around with Hill, you'll get the same treatment

[RT 162] *

he's getting."' A contant * accumulation of this

type of activity.

In March, 1967, Mr. Hill had been offered

a job which was called a steel-forms, or steel-

pan type of job. It's not a typical wood forms,

these are steel forms. The evidence will show

you that a man has to have special strength, be

particularly strong to handle that type of work;

that he has to be -- that this is absoiutely the ~

bottom of the barrel to most carpenters, most

trained journeymen wood carpenters. That is the

bottom ofthe barrel for the type of work, and if

you're not trained in it, you can get injured. It's

not just something you give to somebody who does

not have training.

92.

But, at any rate, they offered Mr. Hill this

job when his name got to the top of the list in

March of 1967. This is after sitting on the bottom

of the list, and moving up from January. Mr.

Hill declined the job, said he was not trained for

it. This job was a penalty type of job. They knew

what they were doing. The evidence will show that

they knew what steel-forms jobs were. This

wasn't just an ordinary dispatch, in the ordinary

course of things. As a matter of fact, the evidence

will show that certain men, the stronger younger

men, were particularly suited for this, and were

primarily used in the steel-forms work, as com-

pared to the general average carpenter.

So Mr. Hill declined this job. When Mr.

Hill declined it, Blackie Daley telephoned the

Department of Employment, and they said,

"Richard T, Hill is not eligible for your benefits

[163]*

for unemployment benefits'' -- which most *

carpenters lived off of when they were sitting on

these lists moving up -- "He's not eligible for this,

because he refused a job."' Mind you, this is his

union calling the Department of Unemployment

and telling them this, not an employer.

The evidence will also show that the

employer has a duty to report it} report firings,

quittings, refusals of work, to the Department of

Employment. There's no such obligation on the

union to do this.

93.

So Mr. Hill, when he went to the Department

of Employment for his next check a few days later,

they pull out a pink slip and advise him that,

"Sorry, you apparently turned down work." So at

that point Mr. Hill said, "Well, just a minute.

Please call the union." The girl calls the union,

talked to Mr. Wilk, I think it was, and got some

information. The upshot of that was that he did .

not get his check. They said, "Well, we'd have to

have a special hearing on it, because we have this

notation that you have turned down work. After

sitting on the unemployment lists for three months,

you have turned down work, and we can't give you

the benefits until we have a special hearing on~

this."

Well, this was more or less the climax of

an extremely hectic four months in Mr. Hill's

life, and at this point, shortly thereafter, shortly

after this incident, in the early days of April of

1967, Mr. Hill just collapsed, and his doctor

placed him in the hospital for a period of nine or

ten days. And the doctor, Dr. Vincent DeJohn, ~

will come into court, and he will testify to you

that they ran every conceivable test on Mr. Hill,

[164]*

and they could find nothing * organically wrong

with him; that is, no physical answer to the cause

of this breakdown. It wasn't an ulcer, it wasn't

an old ulcer coming to life again, no evidence of

that, although there is some indication he had

had an ulcer 20 years prior. It was because of

something they couldn't find physically.

94,

The records do say that, among other

things, Mr. Hill was a moderate drinker. There's

one notation that he drank heavily. I don't know

anybody that knows how or why that notation got

into the record, but his own doctors say he was a

moderate drinker, which he was. There's no

secret about that.

But Dr. DeJohn will testify that during this

period of time he had advised Mr. Hill to "Just

get away from your probl« at this union for a

while. You can't take this day-in-and-day-out type

of harassment, abuse, criticism, with the pressures

you are going through.'' So Mr. Hill got out of the

hospital the middle part of April, and after he

did, he stayed on disability until approximately

the first of May, 1967. ‘

Then in May 1967 Mr. Hill had implored

Dr. DeJohn to let him go back to work for a while.

He wanted to try it. He needed the money. He'd

been using up savings that he had, meager that

they were, cashing certain government bonds that

he had bought in the past.

Mr. Hill, by the way, is a single man,

is not married, does not have a family.

So Dr. DeJohn said, "All right, we'll

[RT 165] *

try it.'' * So he released Mr. Hill for work

around the end of April of 1967, and Mr. Hill

95.

then went to a job that was entitled the Dinwiddie-

Simpson job. This was a job to build a big _

building for two contractors, Dinwiddie Construction

Company, and Simpson Construction Company, a

joint venture, as one, to build this big building.

Mr. Hill went over to that job, and attempted

to get a request for him so that he could get an

employer request so that he could go out and he

could go back to work.

I might add that it was the custom of a

union to put a man to work as quickly as possible

when he'd come back from:a disability or an

illness, an injury, that sort of thing. Mr. Hill

was not given that formal accord.

So, at any rate, he attempted to get a job

request, and for the workday of May 1, 1967, a

gentleman by. the name of Charles Simpson, who

was a superintendent on this Dinwiddie-Simpson

job, had, through one of his people, made a

request for something, | think it was five car-

penters, and I think he named all five, or at least

some of the five, on that list was Richard T, Hill.

This was an oral request.

Mr. Hill was atthe dispatch window on the

morning of May lst, and at the end of the morning

call his name had not been called for the Dinwiddie-

Simpson job, and he inquired of Mr. Daley, ‘Don't

you have a request for me from the Dinwiddie-

Simpson job?"' Mr. Daley said, "Well, I'm not

going to tell you. It's none of.your business.

96.

I'm running this place. If I did have one, you

[166]*

wouldn't get it, anyway"; words * along those

lines. Mr. Hill was not dispatched to that job,

even though there had been a bona fide employer's

request,

Now, there had been, possibly, at least,

some evidence saying, well, it wasn't a bona fide

request, because it was oral. The evidence will

show there were plenty of oral requests made.

There will be evidence to the effect that the

Dinwiddie-Simpson was a one-time job. Nobody

had ever worked on it before.

Mr. Hill subsequently filed a National

Labor Relations Board action, saying they failed

to dispatch him on that job pursuant to the request,

and Mr. Hill carried that matter into the National

Labor Relations Board. At the time of that

National Labor Relations Board pending action,

Mr. Hill was constantly being berated -- I might

add, that after about the first of June Mr. Hill

went back on disability. He didn't get the job at

Simpson, and he was low on the list, and they

weren't sending him out_to work, and he felt it

was customary for a returning man to get some

type of a job, so Mr. Hill, going through this on

his doctor's orders, was placed again back on

disability, where he remained for the rest of the

year.

97,

But Mr. Hill continued to carry out certain

of the functions of his office. He was, as I told

you, vice president of the organization, and he

had to -=- he couldn't miss three meetings ina

row, or you'd be terminated from office; so he

fulfilled his obligations in that manner, and did

continue to have some contact with the union,

[167] *

And the union officials would say to the

union * people, with reference to Hill, 'Who

does he think he is to come and try to take money

from the union from the NLRB," and demeaned

him further, poked fun at him, just made his life

very, very difficult.

At the time of the NLRB hearing, Mr.

Daley even threatened Mr. William Fleming, who

was there to testify as to certain things that would

help support Mr. Hill's case. Mr. Daley met

Mr. Fleming in an elevator, and told him that

he'd better not testify against the union in favor

of Mr. Hill, otherwise he would get some of the

same treatment that Hill was getting; but Fleming,

fortunately, is an elderly Swede, I think, who is

not easily intimidated, as you will see, and he

went in to testify to those things he could at the

NLRB hearing.

For the balance of 1967 Mr. Hill did not

work, because he stayed on disability, just

unable to, physically unable to, emotionally unable

to, mentally unable to work.

98,

He was released in January, on January

lst, I think it was, of 1968, to go back to work.

So on January lst of 1968 he came back to work,

and again asked for the courtesy that had been

given to others, to allow him to sign high on the

list, or be given a dispatch so he could get back

earning some money. He had asked this of Mr.

Daley, or Mr. Fenwick, who was in the picture

around this time -- Fenwick or Wilk or Daley,

one of the three -- and on the first day back he

was not dispatched, so he went over to the Los

Angeles District Councif of Carpenters to Mr.

Gordon McCulloch, and he asked Mr. McCulloch

-- who, by the way, has the responsibility of all

the business agents. They work directly under

him. They are his responsibility. Mr. McCulloch,

I believe, was instrumental in getting Mr. Hill

a job with the Vinnell Company, and Mr. Hill

worked on that job a period of about three weeks,

and then was terminated. We cannot establish

how or why he was terminated, but it was

shortly after one or more of the business agents

had come on to the job.

The evidence will show that those men who

stayed on that job, the rest of them, they worked

the entire year on that job, made something like

eleven to fifteen thousand dollars on that job. Mr.

Hill worked on that job a handful of hours.

So then Mr. Hill went to the bottom of the

list again, and he worked his way up, and there

are other incidents --numerous other incidents

which I won't go into now, but all through 1968 --

99.

incident after incident of discrimination against

him, threats against him, threats of fighting him,

"I'll beat the hell out of you," threats of pushing

him --nobody ever hit him, but pushing and

shoving, coupled with threats, constantly telling

other people, ‘You mess around with Hill -- don't

let me see you with Hill, or you're going to get

the same treatment he's getting" -- constantly,

all through 1968, through April of 1969 when this

lawsuit was filed.

During that period of time, 1968 and 1969,

Hill didn't go back to his doctor except on one or

two occasions, but during that period of time the

[RT 169] *

evidence will show that * he continued to suffer

severe emotional distress, that this had a

horrible effect on him, causing him physical

upset, emotional upset of a most severe nature.

The evidence will show that all of this

conduct was intentional; that these people did this

conduct against Mr. Hill because of the political

opposition inside of this union, where he was

fighting what he considered to be their corruption.

They knew he was fighting it, and he fought it up

until at least this lawsuit was filed.

There will be testimony from several

people who were witness to some of the events.

Some of the events will go without corroboration.

We have subpoenaed into court people who are

both -- who were at one time or another politically

100.

supporting Mr. Hill in his opposition to the internal

union politics, and people who were opposed to

him. They are not coming -- being subpoenaed

into court to testify on his behalf, as you can

well imagine, but we will have other testimony

to bear out some of the allegations of our

complaint.

So, in a nutshell, that is the nature of our

lawsuit. Specific details for 1968 we will bring

out as we go forward, but it is important that you

understand the hiring hall mechanism -- and we'll

go through that with testimony early in this trial,

to bring it out even further -- but it is important

that you fully understand that so you can compre-

hend the nature of the conduct that followed.

Now, as I said at the beginning, the

testimony doesn't always follow exactly as you

[RT 170] *

think it's going to. This is what I think is going

to occur, based on depositions taken in this case --

we have taken about 12 depositions -- on

interrogatories -- those are written questions we

have asked of defendants in the case -- and

consequently, if things follow their normal course, |

this should be our testimony in court.

He Me He He He

[RT 216]

MR. GEFFNER: Well, your Honor, at

this time I'd like to make a motion for a judgment

in favor of all defendants, following the opening

101.

statement of the plaintiff.

I waited until I finished my opening state-

ment so there would be continuity, but I believe

before evidence is introduced, a motion is proper,

based on the plaintiff's opening statement as to

what he intends to prove.

I know we have gone into this point of pre-

emption in great detail on the motion on the

pleadings, and I'm not going to take a lot of time

in argument, but I do feel the obligation to make

that motion at this time.

When your Honor had the motion for

judgment on the pleadings, he simply had before

him the allegations of the second cause of action

of the first amended complaint, and at that time

a motion for judgment on the pleadings, based on

pre-emption, was that the items complained of in

terms of job discrimination, dispatching pro-

cedures of the union that's involved in interstate

commerce, is arguably an unfair labor practice

{RT 217)*

under the National Labor Relations * Act of 1947,

as amended, and therefore, is within the exclusive

jurisdiction of the National Labor Relations Board

and the federal courts in enforcing and acting on

Labor Board orders, and that under the pre-

emption doctrine the state courts are precluded

from exercising jurisdiction by way of injunctive

or damage relief.

102,

Now, your Honor denied the motion, and we

we proceeded with the selection of the jury, and

Mr. Hobart made an opening statement. Now,

in his opening statement Mr. Hobart went into

detail, at length, to state that he intends to prove

a discriminatory practice and procedures of the

hiring hall of Carpenters Union, Local 25, and

he would have all of the out-of-work lists, the

request slips, the referral slips, to show a

pattern of discrimination in this case on the part

of Local 25 in relationship to Mr. Hill, and I

think at one point he said that is the heart, or the

crux, or the thrust, of their entire case.

Now, in view of that fact, your Honor

does have before him, at least, what the plaintiff

intends to prove, and does not have just the bare

naked pleadings of the second cause of action

that he was in a position of ruling on for motion

for judgment on the pleadings.

Now, again, at this time I want to renew

my motion, make my motion based on pre-emption.

I have just one short argument, and I'm not going

to take a lot of time.

Under the Garmon case, under the Borden

and Perko cases of the United States Supreme

Court, upheld and reaffirmed by the United States

[RT 218]*

Supreme Court in Lockridge, and * on the

California state court cases, which are numerous,

but specifically the case of the Teamsters v,

103,

Superior Court arising in Orange County, that the®

issue of hiring hall procedures, dispatching

procedures, and discriminatory policies is

clearly preempted under the pre-emption doctrine

and the state courts do not have jurisdiction.

Now, this case, I believe, presents a

classical case for the basis of the pre-emption

doctrine. Whether we agree or disagree with

the pre-emption doctrine, it's certainly the law

of the land, and the pre-emption doctrine in the

Borden and Perko Cases, and our own cases in

California, state that there is a national federal

policy involving labor relations in interstate

commerce, which a National Labor Relations

Board has the expert administrative body, is

given exclusive jurisdiction to determine

discriminatory practices in the hiring hall of

unions that are involved in interstate commerce,

particularly the nature of the construction industry

which is well into the gamut of interstate commerce,

and is one of the most important industries in our

economy that Congress was concerned about in

terms of interstate commerce and national labor

law policy.

Now, the sole remedy is with the National

Labor Relations Board. Now, if the Labor Board

had the opportunity -- and in one instance Mr.

Hobart's argument stated Mr. Hill did file a

charge with the national Board involving the

Dinwiddie-Simpson job -- then the Labor Board

decides whether there is unfair labor practices

104,

through their procedures, and either issues an

order of some kind, or not.

[RT 219]

Now, the problems of running a dispatching

procedure for a union is a complex, difficult area

of understanding and comprehension. Cases are

clear that the area of Labor Relations is unique

in our law, and that's why selective bargaining

agreements are not treated as standard-type

agreements, in the sense of beisig a commercial

agreement. Something different, the Supreme

Court has said, because of the uniqueness of

labor agreements.

Now, that's where pre-emption applies.

It's only an expert administrative body on a

national level that can really understand, or

should understand, the complexity of labor

relations and the interplay between employers

and unions and members involving hiring

procedures, and therefore, the National Labor

Relations Board is the sole body forum to make

a judgment regarding discriminatory practices,

and to issue relief, if necessary.

Now, again, the reason why I say this is

a classical case is because the plaintiff is asking

a jury, and your Honor, to some extent, as part

of the state court processes, to sit here for six

weeks, 30 trial days, and go through out-of-work

lists, request slips, dispatch procedures, pass

judgment on hiring practices of the local union

in the construction industry that occurred a

105.

number of years ago, and it's exactly that type

of function that this court -- with all due respect

to your Honor and superior court judges, because

the same applies to federal district judges,

superior court judges, district court judges --

and jurors are not in the position to properly

[RT 220] *

evaluate hiring hall procedures of a * construction

union in interstate commerce on a local level.

That has a national labor policy implication,

and. if this jury or your Honor grants damages

to Mr. Hill, where the Labor Board may or may

not have given relief -- and what that means is

in spite of the expertise required in operating a

hiring hall, whether it's unfair practice or not,

on a national policy to an expert agency that is

supposedly charged with understanding the

complexity of labor relations, any jury, any

state court judge, can hit a union with damages,

with the obvious implications of what means to

a national uniform policy.

I believe, your Honor, that this is the

heart of Mr. Hobart's case, the plaintiff's case.

We are going to have to sit here for weeks and

weeks, and dothe job that only the Labor

Board, by direction of Congress, is charged

with the responsibility to do, and we are not in

a position -- your Honor is not, and the jury is

not in a position, in terms of the complexity of

labor relations, in terms of trying to take over

106.

the job of the Labor Board -- to decide whether

this hiring procedure was discriminatory or not.

MR. HOBART: Well, Judge, I don't think

the issue at all is whether this hiring procedure

is discriminatory or not. I think the issue is,

did these individuals intentionally set out to

discriminate against Richard Hill, and did they

discriminate against him in a manner so as to

cause the damages we have alleged.

The discrimination -- I should say the

infliction of emotional distress does not come

(RT 221] *

solely from the dispatch procedure. These

people did treat him unfairly in the dispatch

procedure, and that's part of it; but in addition

to that, they also threatened him with starvation.

They threatened to deprive him of his livelihood;

in a sense, depriving a man of his own manhood,

They told him if he didn't like the way things

were being run, to leave this union.

He was an elected officer for most of

the period that we are concerned with, in one

role or another; had a responsibility, perhaps,

to ask questions, but all he ever got was personal

abuse. He got threats of bodily harm. He was

pushed and shoved, in connection with the threats.

The people, as a part of a conspiracy and

intention to literally smash --

107.

THE COURT: Well, that is the distin-

guishing feature, of course, of your case. I mean,

in considering whether I'm going to overrule or

grant the motion on the pleadings pertains here.

But I think that you might well, in pre-

senting your case, put your emphasis on that,

and not on the minutia of the hiring haJl procedure.

MR. HOBART: That is my intention,

your Honor. I recognize that we could be here

forever if that's what I was trying to do, but, you

see, I'm not trying to indict the unions in their --

or this union in its dispatch procedure in a general

way. That's water under the bridge, perhaps.

I don't know whcther it's going on now or not.

But what I have attempted to do, in the

limitation of my presentation of evidence, is to

[RT 222]*

show how these people * zeroed in on Dick Hill.

THE COURT: Well, you stick to that

purpose, and I'll deny the motion at this time.

we a ae ak ae

[RT 223]

KENNETH LE ROY SCOTT,

called as a witness by the plaintiff under the

provisions of section 776 of the Evidence Code,

having been sworn, testified as follows:

DIRECT EXAMINATION

108,

BY MR, HOBART:

Q. Mr. Scott, will you tell us your present

job title and occupation, and who your employer is.

A. Business representative for Carpenters

Union, Local 25.

Q. And when did you first obtain that

position?

A. Took office in the latter part of July

1968.

Q. And prior to July of 1968 had you also

been a carpenter working out of Local 25?

A. Yes, I was.

Q@. Now, prior to coming into court, you

had received from me a document, a demand to

produce certain official documents; is that correct?

A. Yes, I did.

Q. Now,ewith respect to the documents,

one of them that you were requested t bring,

were all of the out-of-work lists, also referred

to as the employment lists, from December 25,

1966 through and includi’* April 1, 1969.

Can you tell us, Mz Scott, which of

[RT 224] *

109,

those documents * you did bring?

A. To the best of my knowledge, I think

I brought most of the documents that you have

asked for.

We've got an office staff working round

the clock, double shift, trying to provide every-

thing you want.

tek He

[RT 230]

Q. Now, with respect to the work referral

documents that you brought pursuant to the demand

to produce, again, the demand to produce re-

quested all work referral lists concerning work

lists from various employers from January l,

1967, through and including April 1, 1969.

ie He He ae A 2

[RT 235]

Now, you say the office is continuing to

search out these records?

A. Yes.

Q. Can you give us an egtimate as to

when that scarch reasonably can be expected to

be concluded ?

A. Well, they have been working now for

two weeks. We are working two shifts. We

have uncovered just about everything we possibly

can,

110,

Q. Have you brought everything that has

been uncovered to court yet?

(RT 236] *

A. No. When I left this morning they said

they had * a few more boxes. Also, they are

accumulating this material because we may need

it if a member comes in, so it's quite costly and

time-consuming.

oie a 2k 2k 3k oe

[RT 245]

Q. Tell us when the union gets a job call

how the dispatch is carried out; the physical

surroundings, just in general.

A. We have dispatching between 7:30 and

9 o'clock in the morning. Now, a contractor will

call at any time from approximately 7 o'clock in

the morning until 9 o'clock at night, if you're in

the office that long, and they will place an order

for X amount of men, you know, for the following

day.

If he called before 9 o'clock in the

morning, then we just dispatch them. We call

them out of the meeting hall, or the waiting room

where the members, you know, sit and wait, and

talk and visit, until such time you call out the jobs.

Q. So if you get a call sometime after

9 o'clock, that would be for the next day, would

it?

111.

A. Asarule. Normally speaking, unless

it was an extreme emergency; or in some cases,

you know, you might have a job that maybe the

foreman was to call it in, and he didn't, and the

last minute the superintendent calls in and says

where are his men.

[RT 246]*

Q. With those exceptions in mind, then,

any call * that would come in after 9 o'clock would

usually go to the next day?

A. Yes, go to the next day.

Q. And conversely, any call that would

come in before 9:00 a.m. would, as a general

rule, reflect dispatches that day?

A. Dispatches that particular day.

ae ae a 2k ie ak

[RT 252]

Q. Now, Mr. Scott, after you are handed

the telephone order and you know, for example,

that particular employer wants five carpenters,

what is it that you do in order to get those five

carpenters?

A. Well, we have a P.A. system, and

you call out to the carpenters that's in the hall

there. !

Q. How do you know which carpenters to

call off?

—

,

112.

A. Well, it's sort of difficult. You know,

we started one system at one time, or they hada

system which didn't work too well, where we had

the carpenters classify themselves, and then the

carpenter, if he had forms experience, he had to

go down here and find a carpenter that would do

forms, so he'd call his name.

Q. When was that procedure in effect?

A. That was in effect '68, '69.

Q. Also in '67?

A. I'm sure it was, yes -- I think -- in

fact, I think that's the standard procedure,

dispatch procedure. I think it's from the beginning

of time.

Q. To back up for one moment, then, this

document, the out-of-work sheet, is a document

that the carpenter himself signs; is that correct?

[RT 253]

A. Yes.

Q. And there are various boxes where he

can check the type of work that he feels that he's

qualified to do; is that the idea?

A. That's correct.

Hee HAC

113.

[RT 290]

Q. BY MR. HOBART: Mr. Scott, the

rules regarding the dispatch of stewards is found

where?

A. The rule for dispatching stewards ?

Q. Yes, Do you know what document that

is located in?

A. Idon't know there is any set rule.

The business agent picks his stewards on

the yob. They choose the steward for that par-

ticular jobsite.

Q. Now, you have told us -- I may be

confusing your statements with the opening state-

ment -- the steward, basically, is the man who

is the representative of the workmen on a job at

a particular jobsite; is that basically his role?

A. Yes, that's right.

Q. And is it his function and responsibility

to see to it that the Master Labor Agreement

between the employer and the union is carried out?

A. Yes, to the best of his ability.

Q. It's his duty to see to it that any

violations of the contract are corrected, or at

[RT 291] *

114,

least brought to the * attention of the contractor?

A. Yes.

Q. And if they are not corrected forthwith,

then it's his responsibility to bring that to the

attention of the union leadership, in order that

they may consider some future action?

A. Yes.

Q. And is it also his responsibility to

assist in grievances that may occur on the jobsite;

that is, complaints that the workmen have for

some reason or other -- try to work out these

grievances, any particular problem the men may

have ?

A. Yes.

Q. And in some situations, on those jobs

where there are particular labor-management

difficulties, he, in a sense, is a troubleshooter,

and will go in and attempt to smooth the waters,

or to assist management and labor in solving the

particular disputes so the job can go forward?

A. Right.

Q. Would you describe that job as one of

minor responsibility, or anything more than that?

A. Well, it's hard to -- there again, it's

hard to explain this type of a job. For some --

115.

Q. Well, ina general way, can you tell

me, do you consider the responsibility of a

steward to be one of minor responsibility, or do

you consider it to be one of significant responsibility ?

A. Well, it's of significant importance,

[RT 292] *

but I don't * think it's of a -- depends on the job-

site. It's a relatively easy job for some con-

tractors, and it's a rather difficult job for some

contractors; but generally speaking, it's a

relatively smooth operating job, yes.

Q. In other situations it can be one of

immense responsibility ?

A. Yes.

Q. I neglected to state, also, the steward

is in charge of safety on the jab; to see to it that

dangerous conditions are eliminated, or reduced

to the absolute minimum, consistent with state

law --

A. Yes.

Q. Is that correct?

You will have to answer out loud.

A. Yes, that's correct.

In fact, this is the major role that he plays

on the jobsite, is taking care of -- as far as his

116.

work duties, normally speaking, they work ona

-- you know, on the safety crews.

Q@. And you have indicated that it is the

business agent's responsibility to select and

appoint the steward on the particular job; is that

correct?

A. That's correct.

Q. Can you tell.me, what are the qualities,

or what are the criteria used by you in selecting

a job steward?

A. Well, the way I try to pick a steward

is to -- I try to pick someone that's capable of

handling the grievances, and can handle it

[RT 293] *

honestly, fairly, and resolve it; and if you can't,

well, then, to bring it back to me to handle it.

Also, he should be a fairly competent man

for that particular jobsite, for that type of work.

Q. You mean workwise?

A. Workwise, because according to our

agreement, the steward is one of the workmen,

Along with his work duties, then he has to carry

out the functions of a steward, along with his work

duties; normal work duties.

117.

Q. Are there any other. qualities, any other

personal qualities that you look for in the man who

you send out as the steward?

A. Well, there's different things you look

for. It takes a variety of men. It takes different

types of people, different types of jobs.

Q. Well, do you want an honest man?

A. Yes.

Q. Or is honesty one of the qualities you

look for?

A. Oh, it's a must. Yes, definitely.

But that doesn't always mean you get an

honest man. In fact, it's hard to get stewards.

It's hard to get carpenters to take the responsi-

bilities of a steward. Most people would rather

shun away from it, rather than take the responsi-

bility. !

Q. It is, I gather, an additional respon-

sibility --

A. Yes.

Q. -- on the workman?

118,

A. Yes, to some extent it's time-

[RT 294] *

consuming. It's * very time-consuming,

Q. Does he get paid any extra for that

responsibility ?

A. No.

MR. GEFFNER: Is that answer ''No''?

THE WITNESS: None. None whatsoever.

I'm sorry.

Q. BY MR. HOBART: Does he have to

have an ability to communicate with both manage-~

ment and labor?

A. Yes.

Q. In other words, if a dispute does occur,

he's got to be the type of person who can talk with

management and attempt to resolve the problem

with the least amount of difficulty ?

A. Yes.

Q. I guess level-headed would be a good

word?

A. Yes, very good.

119,

@®. Now, you indicate that in the dis-

_ patching of a man to a job as a steward you look

for these qualities. Now, can you tell us if there

are any other requirements besides finding a man

who meets these qualities; any other requirements

on you in selecting the job steward? By "you" I

mean the business agent.

A. Well, this is a difficult question. I

would say unless they skip something that's

normally -- the reasons I give you in picking a

steward is probably the main reasons. I'm sure

there's some exceptions.

Q. Okay. But I'm referring to, is there

any requirement that the man who is dispatched

as a steward, that he must come off of the work

lists, for example?

[RT 295]

A. No. No, there's no requirement for

that.

Q. So he can be selected at random,

according to the business agent who is charged

with the responsibility of appointing the steward?

A. Right. In'fact, many times you have

to switch stewards from job to job because of

personality problems, or could be the supervision's

quality, or there's many reasons. You might ask

two stewards to switch jobs, and it works out

beautifully, where before it was unworkable.

120.

PAGINATION ERROR

TEXT IN SEQUENCE

Q. Well, is it within the province of the

business agent to send a man out on a job as a

steward, even though that man may be, we will

say, on the last page of seven or eight or ten

pages of the unemployment lists ?

Can he pick a man from down below there,

and skip him over all the other men above him on

that list by labeling him a steward, and sending

him out on that job?

A. Sure, definitely, because most stewards

are going to be working.

There's only 50 percent of our jobs that

have stewards, anyway. You can't get stewards

to take the jobs -- the duties of a steward, so,

consequently, most jobs have no stewards; none

whatsoever.

Q. Now, can you point to any written

document that allows the business agent this right

to dispatch anyone he wishes as a steward?

A. Well, I can't recall of any document,

other than in our little Los Angeles bylaw system,

that the business agents have the right to pick

[RT 296]*

the steward. Other than that, * I don't know if

there's ever been -- I'm sure, to the best of my

ability, that it's just the type of thing that's

always been,

122,

Q. When you say the Los Angeles bylaws,

what bylaws are you referring to?

A. Los Angeles County District Council

of Carpenters. If there's any document, I'm sure

it would be in that.

Q. Ihave before me a copy of the Los

Angeles County District Council of Carpenters

and Joiners Trade Laws that I think was in effect

during the entire period of 1967 through '69, and

reading from page 32, section 43 says:

"The first member starting to work ona

job or in a shop shall notify the Business

Respresentative of the Local Union in the area

within twenty-four hours; he shall then act as

Steward until the arrival of the Business

Representative, who may then appoint a

Steward...."

Now, my question is this: Isn't it true

that the business agent's responsibility in

selecting a steward, under the rules of the Los

Angeles District Council of Carpenters and under

the Local 25 rules, is that he must select a

carpenter who is on that job, and until he does,

the .irst carpenter is considered the steward --

first carpenter on the job is considered the

steward until the business representative comes

out and selects someone else for that job, ifa

change is to be made?

123.

A. Well, the first carpenter on that job

[RT 297] *

naturally * assumes the responsibilities -- or

he's liable for the responsibilities, I should say.

However, most carpenters won't assume those

responsibilities, and they refuse to take the

responsibilities of a steward. Consequently,

each local union has their own type of steward's

program.

I can't speak for the rest of the local

unions. I can speak of 25's, because I think we

have one of the best steward's programs in the

country; but the steward's program goes back to

the beginning of the brotherhood.

Q. Well, my question is, can you point

to anything in writing which tells you that you can

avoid, through the appointment of a steward, the

carpenters' hiring hall procedures -- where is it

in writing that gives the business agent the

authority to take some man out of order, and

title him steward, and let him jump over all the

rest of the people ahead of him on the list, and

send him out to work? Where is that authority

set forth in writing?

A. Well, that I couldn't answer you. This

is something that, like I say, it's always been

that way, and this is the way I was instructed on

picking them.

124,

Q. Who instructed you in that way, Mr.

Scott?

A. Something I have always know, as

long as I have been in the brotherhood.

Q. You say you were instructed in that

manner. Who was it that instructed you that you

had this authority --

A, From my experience as a carpenter.

Q. My question is who?

A. I couldn't tell you who. Anywhere I

[RT 298] *

ever worked, * that's the way the local union that

had jurisdiction --

Q. Back in the days of Blackie Daley,

when he was a business agent and you were just

a working carpenter, Mr. Daley kept a certain

group of people working fairly regularly by

labeling these people stewards, didn't he?

MR. GEFFNER: Your Honor, I object

to that question.

Mr. Scott can't answer a question

involving Mr. Daley, when Mr. Scott was not in

office.

125.

MR. HOBART: Ican phrase the question

unobjectively.

THE COURT: Well, I think you should

first find out if he knows about Mr. Daley's

practices.

MR. HOBART: Surely.

Q. Mr. Scott, did you ever work as a

steward during 1967?

A. Yes, I did.

MR. GEFFNER: Mr. Scott, I can't hear

you.

THE WITNESS: Yes, I did.

Q. BY MR. HOBART: Who appointed

you as a steward in 1967?

A. I'm sure it was Ben Fenwick.

Q. Did Blackie Daley ever appoint you?

A. Yes, I think Blackie also appointed

me as a steward.

Q. And how about Joe Wilk?

A. Yes.

Q. It probably wasn't Fenwick, was it?

He didn't take office until sometime in 19- --no,

126.

he was in 1967, too. I take that back.

[RT 299]

At any rate, all three of them on occasion

appointed you as a steward on particular jobs; is

that right?

A. Correct.

Q. And back during those days did Blackie

Daley have what we would call the stewards'

meetings, where you would meet in the evening

and you would have dinner, and sit around, and

you would discuss the responsibilities of

stewards, and so forth?

A. Yes.

Q. And the people, by and large, who

attended those meetings -- by the way, they

signed a little document called "Stewards'

Meeting"? They'd sign with their name, their

address, and telephone number when they went

to those meetings?

A. Yes.

Q. And you signed those lists when they

had them, didn't you?

A. (No audible responsible. )

THE COURT: We can't get --

127.

THE WITNESS: Yes.

Q. BY MR. HOBART: Now, do you

have an opinion as to whether most of those men

who attended those evening functions, these

stewards' meetings, these dinners, whether

these men, as a whole, were regularly -- that is,

virtually constantly employed?

MR. GEFFNER: Your Honor, I object.

Mr. Scott's opinion in this regard is not material.

THE COURT: Let's have the question

read.

[RT 300}

(Question read. )

THE COURT: Iwill overrule the objection.

THE WITNESS: Yes, I would assume

that they would be. Yes.

Q. BY MR. HOBART: Now, using

yourself as an example, during those days were

you dispatched as a steward by any of the business

agents at that time, even though your name was

not next in order on the lists?

I'm sorry, I didn't hear you.

A. Yes.

128.

Q. All right. So when you say you

learned that it was the practice of the local to

dispatch people as stewards even though they

were not high on the list, that is, next in order,

I would assume that you learned this, then, from

your predecessors in office, Mr. Daley, Mr.

Wilk, Mr. Fenwick?

A. No.

Q. Did you learn any part of it from any

of those three?

A. No. As long as I have been a car-

penter, that's the way it's always been. Each

local union had their stewards' programs, and

then that local union sent their stewards out on

the jobsite.

It takes a different type of carpenter to be

a steward. As I said before, very few carpenters

are willing to take the responsibility of being a

steward.

Q. Do I understand you correctly, when

you say that it's simply a policy that has long

been in existence, as far as you know, and that

[301] *

also, as far as you know, there's * no written

authority for the business agent to dispatch

people out of order as stewards?

129.

A. For as long as I've known, the brother-

hood has insisted on a good stewards' program.

Now, the United Brotherhood -- not only

the United Brotherhood of Carpenters, but I think

all the unions of other organizations.

Q. My question is, are you saying that

it's just been a practice, as far as you know?

A. As far as I know, yes.

Q. Okay. My next question is, can you

direct me to any authority that contradicts the

carpenters' hiring hall procedures, which tells

you to take them off the list in order, with the

minor exceptions that we have already discussed,

because you decide to label them a steward?

A. No, other than there, again, you have

to use common sense, because if you've gota

job where you need a steward, you know, then

you've got 10 men on that job that wouldn't

want to be a steward, and consequently, you're

going to have to come up with a steward some-

where, if it looks like you need one.

Q. You are talking about a job where

there could be trouble, something out of the

ordinary; is that right?

A. Well, no, not necessarily.

Q. Are you telling us --

130.

A. Okay, it could be out of order, or if

it's a large job, naturally, you need a good

steward on that type of job.

[RT 302]

Q. Well, if you had a large job, and you

are dispatching 25 men to a large job, are you

stating that of those 25 carpenters who you send

out, that it is necessary, as a rule, to pick some-

body else lower on the list, or who hasn't even

signed the list, and assign them out as a steward?

A. As -- because they are competent?

Q. Yes.

A. Oh, yes.

we ae aa He ak

Q. BY MR. HOBART: Under the agree-

ment, Master Labor Agreement Between Southern

California General Contractors and United

Brotherhood of Carpenters and Joiners of America,

that agreement sects forth the dispatch rules that

are to be followed by the union, does it not?

A. Yes.

Q. And one of the articles indicates that

the local unions shall establish and maintain open

and non-discriminatory employment lists for the

[RT 303] *

use of workmen * desiring employment on the

131.

work covered by this agreement, and the workmen

shall be entitled to such use of these lists free of

charge, and it also states further on that the

following order of preference shall be granted.

It says that a person can be requested under

the circumstances we have already discussed,

and then it indicates that as the next order,

"Workmen whose names are entered on said lists

and who are available for employment. "

Do you know of anything in the Master

Labor Agreement that allows the business agent

to employ people who are not next in order on

those lists as stewards; send them out as

stewards?

A. No, other than the exception of the

stewards' system, which is, basically speaking,

some of our working personnel of the organization.

Ae ie He He ik

[RT 322]

Q. I'll be glad to rephrase it.

«

Is the purpose for allowing them to make

the choice so that a carpenter who has worked his

way to the top of the list can get the best job

available at the time, if he wants it?

A. Yes, he has that choice,

Q. And a denial of that choice to him,

then, would be in violation of the standard

practice of the union, as you understand it to be?

132.

A. Yes, but you remember, getting back

to that dispatch procedure, there was a lot enters

into this.

Now, if a carpenter has been dispatched

to that job previously, and say, terminated, and

the contractor calls again for X amount of

carpenters for that same particular jobsite, then

he might state that he doesn't want any of the

carpenters that was dispatched there before; then,

consequently, you couldn't dispatch them. So

there's so many things involved.

He He ae a

[RT 421]

REDIRECT EXAMINATION

Q. BY MR. HOBART: You indicated,

if my notes are accurate, Mr. Scott, you said

back in 1967 and '68 that carpenters of the local

didn't have any clerk in there to watch the book

during the day?

A. Correct.

Q. Do you recall the name of Evelyn

Folick ?

A. Yes, I do.

Q. What was his title?

A. She. At that time she was an assistant

to the financial secretary's office.

133.

Q. She was a clerk there in the union,

wasn't she?

A. Yes, a separate office.

Q. She did clerical general duties, as

well, didn't she?

A. Yes, she did.

Q. For example, she took the orders in

if they came over the telephone, if they came in

in the afternoon?

A. Yes, she did,

@. So she was physically present, at any

rate, wasn't she?

A. Yes.

Q. And after her was a woman by the

name of Elizabeth Carson?

A. Yes.

[RT 422]

Let me clarify that,

Q. Help yourself,

A. Evelyn worked in the financial

secretary's office. When I became business

agent my partner, Ben Fenwick and myself,

134,

hired Liz Carson in the business office -- actually

had two girls -- so when Liz worked there, that

was the first time they had a girl in the business

agent's office.

Q. Can you point to any particular time

when that book was -- when you went out ina

given morning, where you'd inspected the book

and made some sort of either mental or written

notations of what boxes the men had checked, and

who was on the list, then when you came back in

the afternoon, you rechecked the book and you

found some discrepancies? Could you give us

some example of what date that occurred?

A. No, I couldn't give you one date,

because it wasn't that important to take note of it.

Q. All right. You didn't find that happened

very much, where men had lined out other

members' names, put check marks for them

indicating work that they really weren't competent

to perform?

A, It was -- you found it quite often during

a certain amount of areas, yes.

Q. You wouldn't have allowed that to

happen without disciplinary action against the

men who did it, would you?

A. If you knew the person.

Q. Well, if you saw a man sneak in, if

you saw a name there that wasn't there before

135.

filling a blank spot, or something, you would

certainly know who it was, wouldn't you?

[RT 423]

A. Yes, you would.

Q. Tell me how many times you brought

disciplinary action to somebody in that category?

’

A. I couldn't really tell you. I've brought

it out and mentioned it to the carpenter.

There was times I scratched him off the

list and put him at the bottom.

Q. Can you tell us who one of those was,

so we can get an example from the list of who

you are referring to here?

A. Like I say, it's hard to remember

these things.

I do know of one carpenter that I did it to,

yes.

. Okay.

That I recall.

. When did that occur?

> OD > O

. Probably a couple of years ago.

136.

Q. That's one. Can you tell us another

one? A. Yes, now that I get thinking of this, I

do recall. In fact, I remember quite well how I

A. No. Like I say, it's too hard to handled it.

remeber that type of thing. You have too many

things on your mind, too many pressures.

t

Q. Okay. What was the date, or about, so

we can check these sheets, and you can point it

Q. When a man comes in and strikes out to us?

another man's name off that list, that's a pretty

serious offense, isn't it? It's depriving him of A. '68, '69, '70, '71.

work, ina sense, isn't it, or attempting to?

Q. All right, give us one in '68.

A. Depriving someone else, yes.

A. Give you one carpenter?

Q. It would be serious enough, if it came

to your attention, that some sort of charges would Q. Yes.

be filed against that man, I assume?

A. Okay. I didn't make a notation of it,

A. Well, yes, it is; but everything is R what I did. If you remember how I described the

! way we took roll call, what I did, was the minute

[RT 424]* ‘ the man or the carpenter got in front of me, then

I'd tell him to go to the end of the line, or --

time-consuming. * You have to remember the

time you file the charges, the time you present Q. That is an attempted sneak-in?

it to the trial board. You're talking about quite

a bit of time. A. Yes. That's how I handled it.

Q. So, in other words, you can think of Q. Okay. Who was ihe man?

one time, definitely, where you found somebody

sneaking in, and you struck his name; you can't A. Well, there are several of them.

think of any more specific ones, even in your Several of them.

own mind, and you can't point us to any specific ;

incidents that may be reflected in these sheets Q. Name the several men, or as many

that we have in front of us? of them as you can recall.

137.

138.

[RT 425]

A. Idon't think it -- I really don't think

I can sit here and honestly name you name for

name. I could probably come up with a hundred

names, if I really wanted. I don't think that's

necessary. I'd have to sit here --

Q. I'm only asking for two or three of

them.

A. Ican sit here and name -- I can name

Dick Hill. I know that for a fact.

Q. You are saying on some occasion he

signed the list where he shouldn't have?

A. Sure, I'm quite positive. I made him

wait his place several times.

Q. All right. Can you tell us where that

occurred, where he signed it and you had to

change ?

A. ‘68, '69.

Q. Well, what month? We have records

for all of '68 here, Mr. Scott. If you can direct

us to a specific month, then maybe we can find

the week.

A. It was such a small incident that it

wasn't worth my time to make a notation of it.

Usually you'd verbally tell him to take his turn.

139.

Q. Mr. Scott, I'm not referring to those

small incidences where they would get out of place,

two or three or four, or maybe five or six. I'm

taiking about when a man came in and signed the

list during the day when nobody was around,

snuck his name in; not the situation you're talking

about now, when you are at the window writing

out the book.

I'm talking about the situation where you

weren't there. You told us the books were left

[RT 426] *

alone all day, and * all things could have occurred.

I'm asking you to give us an example of one.

We have all of 1968 records here, as far

as the out-of-work records -- sheets right here,

so if you can direct us to one, to tell us what you

are referring to.

A, It's not what I'm referring to. What

you are asking me, I didn't make notations of it.

I do know for a fact it did happen many

times over a four-year period. Not one day, but

over a four-year period weekly, by many

carpenters.

Q. You are talking about situations where

you came in in the afternoon, after examining the

books in the morning, then you noticed some

changes or discrepancies in the afternoon, and

you took some sort of remedial action? That's

140.

the sort of thing you are talking about?

A. Yes. That was the whole purpose of

my changing the roll call system, because it was

an unfair system, I felt.

MR. HOBART: I will move to strike that

answer as being unresponsive, your Honor.

THE COURT: Yes, it is.

Q. BY MR. HOBART: Mr. Scott, can

you point to one occasion where you came back

in the afternoon, you found somebody's name

signed in improperly where it shouldn't have been,

that something that occurred presumably in the

afternoon for the year 1968? Can you tell us one

specific item?

A. No, I cannot; but I can tell you this.

I'm sure I can sit there and study those books,

and I can point one out.

Q. We will all be here a long time. You

[RT 427] *

will have the opportunity.

A. All right.

Q. Can you point to some situation where

somebody in the afternoon, when nobody was

guarding these books, may have lined out some-

body's name, or somehow marked unmarked

141,

boxes for him, offhand? Do you know any incident

in 1968 when that occurred?

A. No. Again, I didn't take notations.

I'd have to check those books to pick one out.

Q. You indicated there was no reason to

keep these white slips, these order slips, in your

testimony just a moment ago; is that correct?

A. Yes.

Q. Mr. Scott, can you tell me, for the

years of 1967 and 1968, whether there exists any

written documents, or grouping of documents,

that a person who claims an illegal dispatch was

made -- or that numerous were made -- how

could he prove that illegal dispatches were made

from whatever documents exist?

MR. GEFFNER: Your Honor, I object.

That question asks for a conclusion, and is

argumentative, as well.

MR. HOBART: I don't think it does,

your Honor.

THE COURT: I think it is cross-exam-

ination. Go ahead,

THE WITNESS: Repeat the question,

please.

MR. HOBART: Yes.

142.

Q. What official documents exist, if any,

that we can go to to confirm that a particular

dispatch in 1967 or '68 was completely illegal,

that is, it was a bona fide request?

[RT 428]

We've got the request forms, and we've

got some other notations. What documents exist,

so we can check now to see whether illegal dis-

patches had been made in 1967 or 1968?

A. What form of document to go back to

prove --

Q. Yes, sir. What documents exist to

show -- for example, if you have an employer

request, that should be a written document, and

that should conform with something, with the

work referral slip that says ''Request" on it?

That would be evidence, wouldn't it? That

would prove that that request was made pursuant

to a bona fide written request, which is what you

have told us is the procedure?

A. Yes.

Q. Now, my question is, since we can't

find a good many of these documents -- you say

they don't keep them, and there's no reason to

keep some of these documents -- what records

do exist; what other records exist, or notations,

so the person could go back and double-check the

business agent's dispatches to see if a given

dispatch, or a series of dispatches, were valid

143.

and met the procedures for dispatching?

A. There's no documents or records

whatsoever, that I know of.

A carpenter knows where he's at on the .

book. He knows when it's his turn to be dispatched.

Consequently, there's very few times that you'd

ever have this type of a discussion with the

members.

Q@. You're saying the union policy is that

if it's of insignificant proportions, substantially

[RT 429] *

enough so that you * don't keep the records to

maintain a position where you could verify the

legality of a given dispatch -- in other words,

you don't consider that to be a sufficiently

important purpose in order to keep records?

A. Ididn't then, but I can assure you now

I think different.

The questions you are asking me, there!s

no way I can answer it. I have no -- for me to

even go back right now prior to the time I was a

carpenter, I'd have a hard time finding the job

sheets of contractors that I worked for. I just

don't retain that information.

Q. You know how to get that information,

don't you?

144,

A. Sure.

Q. Call the Health & Welfare. They've

got records, don't they?

A. Yes, they do.

Q. Now, Mr. Scott, with respect to

these records, if you have an employer request,

or if you have an order, a phone order, under

the rules and regulations, you must give a work

referral document; is that right?

A. Yes.

Q. Then the man with the work referral

slip goes off to the job. Now, if you go this way,

you take his name off the out-of-work sheets,

right?

A. Yes.

Q. If we had the out-of-work sheets, the

work referral slips -- strike the question.

By the way, the work referral slips, if

[RT 430] *

the man * is sent out on a request, the work

referral slip has the work "'Request,'' generally,

abbreviated on it, doesn't it?

A. Yes, it does, or it has an"'R,"'

145,

Q. Some notation, at least, that itis a

request ?

A. Or he might even forget to put the 'R"

on there,

Q. I suppose anything is possible.

Now, this gives us four documents; the

white slips, the out-of-work sheets, the work

referral slip, the employer request. These are

four written documents used in a matter of

procedure for ways of dispatching a man out of

that hall in 1969 and ‘68; is that right?

A. Yes.

Q. Now, if any of these documents are

missing, for examp. we don't have any work

referral slips, then we don't have any way to

determine whether the word "Request" written

on the work referral slip really was a bona fide

request, do we?

A. No, but I might add at this time, too,

that's not really an accurate record. Many

carpenters come and get requests -- work

referrals on a request, and never report to the

job, changing their mind.

Probably 75 percent of our carpenters

are not from our hall, are from some other

local. We have had carpenters that have gotten

requests as many as three times in one day, and

never reported to the contractor.

146,

Q. Listen to my question, Mr. Scott.

If you don't have the employer request

form, or some written notation, or other notation

[RT 431] *

that he made a * request, then there is insufficient

evidence to establish whether or not a work

referral that says Request" on it was, indeed, a

written request; is that correct?

A. Correct.

Okay, let me clarify that, then. We do

keep these records, and we keep them approximately

one year. We've got more records now than I think

any local union, as far as keeping records.

MR. HOBART: I will move to strike

that your Honor, as being speculative as to what

other unions have.

THE COURT: All right.

Q. BY MR. HOBART: But without this

document -- to get back to this point, without the

employer's written request document, we have no

way of knowing whether the name was a bona fide

request, or whether somebody had just written

the name on there and dispatched the man. That's

true, as far as that statement goes, isn't it?

A. Yes, that's correct.

147.

Q. You indicated that a man who signs an

out-of-work list, and who does not check a box,

that that means the same thing as a man who signs

and checks all boxes, or runs a line across all

boxes. It means he is available for anything;

was that your testimony ?

A. That's the way it was explained to me

by some people. Some people interpret it

differently. I don't interpret it that way.

Q. Iam under the impression --

A. Every business agent interprets a

[RT 432] *

dispatch sheet * any way.

Q. Isn't it true you interpret that the guy

is not available for any work?

A. No, I don't interpret it that way. That

was the way it was explained to me.

Q. What does it mean to you, that he's

available for all work, or not available for any?

A. It means he was available for all

types, is the way it was explained to me.

Me He He He He He

148,

[RT 471]

RICHARD T. HILL,

the plaintiff herein, called as a witness on his

own behalf, having been sworn, testified as

follows:

te se ae ee a

[RT 472]

DIRECT EXAMINATION

[RT 518] Ae ae ae se ae oe

Q. Did you go back to the hiring hall in

the ensuing days that followed, at least one more

week ?

A. Idon't think I went much longer back

there. I don't know how -- I was getting pretty

sick about this time.

Q. Now, we know that on March 27th,

Mr. Hill, you had signed the book on page 2.

A. That's right. That's probably the

last week I signed the book.

Q. When you signed the book, then, do

you recall complaining about certain people

signing the book ahead of you and getting jobs,

anything of that nature; any sneak-in complaints ?

A. Itold Daley, and I showed him

different ones on the book. I showed him. I

picked a name right out to him on the book.

149,

I couldn't do it right here at the time,

[RT 519] *

but I did * then. These guys was working, and

I asked him how they were getting out to work.

Q. Mr. Hill, in looking at the sheets

for March 20, 1967 -- that's the bottom sheet

that my hand is on here. Count up, if you

would, five places and six places from your name,

above your name.

A. One, two, three, four, five, six.

Q. Okay. On

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