# Appendix — Farmer v. Carpenters > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2150%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 430 U.S. 290 ## Text 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E. G. Daley to Plaintiff's First Supplemental Interrogatories Jury Instructions Given Jury Instructions Refused or Withdrawn i. 16 19 20 22 23 24 55 10, 11, 12. 13. 14, 15. 16.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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2150%3A02. Public record. Not legal advice.