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Withdrawn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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