Brief Amicus Curiae — Local No. 207, International Ass'n of Bridge, Structural & Ornamental Iron Workers Union v. Perko (No. 482)

INDEX

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ee on do eo geiennie an 1

Argument .......... Aarne RO EE Ce

I. Under This Court's Applicable Decisions,

Courts Have No Jurisdiction Over Actions

By Employees For Loss Of Employment

Resulting From Nonviolent Conduct Argu-

ably Subject To The National Labor

\ Ss Dod eh koe en eens uwaie es 3

Hl. Courts Should Not Have The Power To °¢~

Supply A Remedy For Nonviolent Conduct —

Arguably Subject To The National Labor

Relations Act, Regardless Of Their Juris- -

* diction Over The Basic Cause Of Action .... 7

A. State Court Applications And Misap- |

+

plications of Gonzales .......... pealts wwe 7

B. The Fallacies of Gonzales ..... 0.0.0.2... ‘“ d1

C. The Proper Preemption Rule .......... 17

errr rn i Pena,

CITATIONS

C'AsEs: r

Atkinson v. Sinclair Refining Co., 370 U.S. 238 22... «5

lutomobile Workers v. Russell, 356 U.S, 684 2.00... 5 2-4,

. . 6-8, 13, 15-20

Carpenters Local 60 v. NLRB, 305 U.S. 651 22... 25..00 5

Cavida v. Operating Eugineers, Civil No. 10884, D. Tex. 16

Charles Dowd Box Co. v. Courtney, 368 U.S. 502 .... 5

Construction Workers vy. Laburnum Construction

COR ee WME 6 bodes dendcaccciaenss ienn gs 6, 12,13

i

: i Piae

Garner v. Teamste rs Loc al 776, 346 U.S. 485° oo.

‘1z. IS, 20

Green v. Folks, 13 App. Div. 2d 744, 215 N.Y.S. 2d 116

(1961) ; 223 N.Y.S. 2d 287 (N.Y. Cty. 1961) 2.2.6... me D

Lockridge v. Motor Coach ‘Kmplogees,- 369 P. 2d 1006

SF EO a g

Machinists v. Gonzales, 336 U S. G17 ,... v, vi, 2-15, 17, 18

| NLRB vy. Better Monkey Grip Co., 243 F.2d S36 (Sth

Cir. 1957), cert. den. 355 Ek. no vceedeSecees 4

NLRB v. Teamsters Local 294, 284 F. 2d 893 (2a Cir.

Te a nana no nes aedgce cena 4

Parks v. IBEW, 52 LRRM-2281, 46 Lab. Cas. § 18,073

OGG Cie, Sam. BE, 19GS) oni cece a n’nccnccvecs 14

Pierce v. Otis Elevator Co., 331-P. 2d 481 (Gila. 58) 9

Radio Officers’? Union v. NLRB, 347 U.S.17 ©... .--. 5,7

San Diego Building Trades Council v. Garmon, 359

; TE MWA Ee aa vhs an whne be a v, 2, 5, 7, 11-13, 17- 20

Smith v. Evening News Assn., ho | ae 5

Tuylor v. Operating Engineers Local 101, 180 Kan, 137,

se a eked aa nas sseececepocss 9

Teamsters Local 24 v. Oliver, 358 U.S. 283 2.0.0.0... 20

Teamsters Local 174 v. Lucas Flour Co., 369 US. 2 5

Teamsters Local 8B? v. NLRB, 365 U.S. (07 ....... 5

Typographical Union v. NLRB, 278 F. 2d G (ist Cir.

_ 1960), afd. ec wsct hs eeeeeeasase 4

War v. Mailers Union, 400 Pa. 173, 161 A. 2d 603

SEUEe cavkeawacs Seu Webnes dh adanadnrdeeseceesece dl

Weber v. Anheuser-Busch, 348 U.S. 468 ........... 5, 20

Willard v. Huffman; 250 No. Car. 396, 109 S.E. 2d 233

(1959), cert. den. 361 U.S. 893 ee eee Be oe

STATUTES:

Labor-Management Relations Act, as amended (61.

Stat. 156, 29 U.S.C. §°185), see. 301... .... 5,10, 14, 20

a

« \ -\

\ Page

National Labor Relations Act, as amended (61 Stat.

136, 29 U.S.C. — et seq.):

BE io cous ch ccacsscecedecd aces aeeatnnes

©” IRE Seine fae epapasReapide Serene iota 5, 10, 19

TE ences wn ede cckekesheoenaenubeks 5, 10, 19

EE cul Sen pecaccdeansdukséansebude cue 7

Section 8(b)(1)(A) .......ccccccecccceccuceceucs 4

Section GIS)(I)(BY..........cccccccccccccccccccs: 4

Section 8(b)(2) ......... RL deucadecduubeseuneneues 4,7

MISCELLANEOUS:

Brandwen, “panies Maimahens Damages in Labor

Relations ae el 29 Univ. Chi. L. Rev. 460

GE Kad cddinicus be unnesedenseseiseteiseessocece

a Cox, “The. Labor. Decisions of the Supreme Court at

the October Term 1957,” Proceedings uf the ABA

. Section of Labor Relations Law 12 (1958) .....:...

Hanslowe, “Labor Relations Law,” 36 N. Y. Univ. L.

Pe SE ED ptndengstnesesibdéaus sn ccedesnt

Hays, “Foreword,” 59 Col. L. Rev. 1 (1959) ........

Meltzer, “The Supreme Court, Congress, and State

Jurisdiction over Labor Relations,” 59 Col. L. sew.

*@ GREED cesccces PPP ere LEOTTTT PTET TCT TT TTT TET

“Report of the Conimitteeon State Labor Legislation,”

Proceedings of the ABA Section of Labor Relations

BS Te Me Kh bscsbeSésncnsddsccanscsacsevace

Schwartz; “The Supreme Court—October 1957 Term,”

87 Mich. E.. Rev. S45 (18GB) «2. cccccccveccccccces

Sovern, “Section 301 and the Primary Jurisdiction of

_the NLRB,” 76 Harv. L. Rev. 529 (1963) ......: 1, 12

“: Supreme Court of the United Sates)

ek “OCTOBER TERM, 1962"

: at _,, NO. 482,

LOCAL NO. 207, INTERNATIONAL ASSOCIATION.

OF BRIDGE, STRUCTURAL. AND ORNAMENTAL

~ IRON WORKERS UNION, ET AL, Petitioners. I

rae JACOBPERKO / =

noe 4 on WRIT OF .F GERTIORARI TO THE SUPREME

nee ! COURT OF OHIO |. |

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LOCAL 100 OF THE UNITED ASSOCIATION OF

oP 2 JOURNEYMEN AND: APPRENTICES, ‘Petitioner

Tee ee, SS BORDEN ae

ON WRIT OF CERTI RARITO THE COURT OF |

CIVIL APPEALS 7 TER FIVER SPaeaee

Pan ee _ MOTION FOR LEAVE ao raaseke ;

7 pag AS AMICUS CURIAE is

“The American ‘Federation of oo od. aa of

Industrial Organizations (AFL-CIQ)- hereby—respectfully :

- moves for leave to file a brief.as amicus curiae in-support.- —_

4 of the’petitioners in No. 482 and No. 54], as provided for

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in Rule 42 of the Rules of this Court. The consent of the

‘attorneys for the. petitioners in both cases has been, ob-

_tained. The consent ,of the attorneys for the respondents _

‘in both cases was requested but refused.

The’ AFL- CIO, a federation of national. and interna-

- tional unions having approximately thirteen million mem- ”

bers, is the principal. spokesman for organized working

people in this country. Among its: affiliates aré the two

: a ch unions to which the local union petitioners in

No. 482 and No. 541 ‘belong. The Federation regards the,

- positions ‘of the -petitioners in -both- cases as plainly right *

« under well- dnoipted and controlling decisions of this Court.

Ordinarily we would feel there was-no need for an amicus

- ‘presentation i in such a situation. In this instance, however,

prior. precedent and base its. reversals of the judgments

below om a more comprehensive . and realistic rationale

than may bc possible while that precedent stil} stands,

~. We wish: to suggest to the Court that it reexamine ‘certain —

The union ‘petitioners will of course emphasize, that their. °

cases can easily be disposed of in accordance with existing

authority. While petigioners are eorrett, nevertheless in.

our view this Court-can contribute see to the vitality

ip national labor poliey by taking a broader approach.

Instead of. relying on the distinction between San Diegs.

Building Trades Councit vy. Garmon, 359" U.S. 236, whieh -

\ zales, 356 U.S. 617, which is totally inapposite here, ‘the

\Court should eliminate the need to distinguish, by repudi-

| ating | onzales. As-we propose, to show, Gonzales has -

_ served:-to confuse most of the lower courts and to ericour-

age some of them to subvert basic federal objectives by

a

A covers. both of the present eases, and Machinists v. -Gon-

regulating labor- management relations under the guise, for- tie

example, ‘of. redressing wrongs done union-mémbers within’

~their_organizations: Gonzales is at odds, with the main- |

stream of current preemption theory and with the practical 7

requirements of uniform national labor policy. We feel /

. that an amicus presentation by the AFL-CIO will assist the -.

- Court in assessing the need to reevaluate Gonzales and in

rule.

x March 1963 .

fashioning a more adequate formulation of eal preemption

Sinai: sibiinih |

: . J. Avpert Wott * ” :

Genera Counsel, AFL-CI O

Tueopore J. St. eee |

- 736 Bowen Building. ae ae

815 Fifteenth Street, N.W.

WwW ashington 5, D.C. ‘3

THOMAS E. ‘Harris .

Associate General Counsel, ak”

AFL-CIO . '

815 Sixteenth Street, N.W.

Washington 6, D. 7

vi : \ | /

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IN THE

| Supreme Court of the Anited States

_ OCTOBER TERM, 1962 -

“NO. 482.

OF BRIDGE, STRUCTURAL AND ORNAMENTAL

IRON WORKERS UNION, ET AL., Petitioners

~ eR ac

JACOB PERKO

_ ON WRIT a CERTIORARI TO THE SUPREME

/ -* OORT oF OHIO |

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Giee

se 4 AND APPRENTICES, Petitioner:

a : a * a”

4H. N. BORDEN

ON WRIT OF ©

CIVIL APPEALS OF THE FIFTH SUPREME

| JUDICIAL DISTRICT OF TEXAS =a

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“LOCAL NO. 207, INTERNA TIONAL ASSOCIATION .

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P

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LOCAL 100 OF. ‘THE UNITED ASSOCI LAP ION OF

RTIORARI TO THE COURT OF

‘BRIEF FOR THE AMERICAN FEDERATION OF

* LABOR AND CONGRESS OF INDUSTRIAL

_*. ORGANIZATIONS AS AMICUS CURIAE

INTEREST OF THE, AFL-CIO

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Fela amicus curiae is tendere ‘d for filing by the

_ Ame n Federation of Labor and Congréss of Industrial

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L, Teg eng ee cate

rganizations ual CIO), contingent upon esa Court's: -

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2.

granting the Motion fo 1 Leave nan a Brief as Amicus

Curiae.

The AFL- C1Q i is primarily a federation of national and

international unions which have a total membership of

approximately thirteen million. The AFL-CIO regards the

two state court desidions being reviewed in No. 482 and

No. 541 as plainly wrong under existing precedents of this

Court, and ordinarily in such a situation the Federation

would consider an amicus brief by it superfluous. In the

present instance, however, we. wish to urge the Court to

use this opportunity to reexamine certain prior precedent,

to repudiate it,-and to ground its reversals of the “judg-

ments below on a broader and more realistie basis than

_may be possible while that precedent remains as authority.

‘The union petitioners will naturally concentrate on the

facts and law of their particular cases. But the two cases

before the Court are “not important merely because they

. Tepresent an erroneous “interpretation by state courts of

this Court’s leading decisions on the perennial themes of °

_federal preemption and the exclusive primary jurisdiction

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of the National: Labor Relations Board. The instant cases

are also Sinportant because they are symptoms of a marked

deformity in the law .of* preemption itself. Machinists v

Gonzales, 356 U.S; 617,' simply does not fit with what pre.

ceded it and what followed it. It* has proven, in actual

practice, to be a source of confusion to state courts over

the proper limits of their authority, a ready instrument.

whereby.artful pleaders can.circumvent the exclusiv ve juris-

In singling out Gonzales for ‘eriticism,‘we do not mean to indi-

- eate approval of the holding in its companion case, Automobile

Workers v. Russell, 356 US. 634. To the extent that state éourt

—

jurisdiction in Russell is now attributable to the presence of “vio- .

lence and imminent threats to the public order,” see San Diego |

_ Biiilding Trade’ Council v. Garmon, 359 U.S. 236, 247, the decision —

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diction of the federal Board through a slight shift in the

wording of their prayers for ‘state court relief, and an. pen

invitation to hostile or unknowing judges and juries to

regulate labor-management relations under the guise, for

example, of redressing wrongs done union members within

their organizations. As the principal spokesman for or- |

ganized working people, the AFL-CIO therefore has a

direct interest not only in securing reversals in the present

cases, but also in rooting out an enderty: ing cause of the

errors.

=

ARGUMENT ad

I. Under This Court’s Applicable Decisions, Courts Have

No Jurisdiction Over Actions By Employees For Loss Of

Employment Resulting From Nonviolent Conduct Argu-

ably. Subject To The National Labor Relations Act.

Petitioners in Jron Workers Local 207 v. Perko, No. 482,

and Plumbers Local 100 v. Borden, No. 541, have thor-

oughly demonstrated that the jodgments below: in bot

cases should be reversed because they are in conflict with

the applicable decisions of this Court. We do not wish to

burden the Court with a repetition of petitioners’ argu-

ments. But since we intend to devote the major portion

of this amicus presentation to suggesting that the reversals

should be placed on broader: grounds than existing prece-

dent may allow, and that these cases should be used as

vehicles for reexamining Machinists v. Gonzales, 356 U.S.

. ; : P a °

may be supportable. To the extent that Russell upheld-an award —

for lost wages and punitive damages to an employee kept from

work by a strike and picketing, the decision is subject to much the

same objections as Gonzales. We focus on the latter because it is .

more expansive in theory; and more. troublesome in — But_

our comments will atten Apply to both.

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617, as well as certain aspects of Automobile Workers v.

_ Russell, 356 U.S. 634, we should first like to make it clear

that we are advocating this course because we think it

. highly. desirable, not because we think it necessary in order

to sustain petitioners’ positions in the instant cases

In Plrko the union allegedly forced respondent’s em-

ployer to discharge him, and kept respondent from secur-

ing further employment, because he had violated a union

‘ rule against imparting the skills of his-craft to the mem-

bers of another union (R. 2, 183).* In Borden respondent

transferred from one. local to.a sister local, and the latter

then allegedly refused to refer him to a job through its

hiring hall .(R. 11-13, 23-24, 349-350). In each case the

union contested the jurisdiction of the state court on the

ground the subject matter of the action was within the

' exclusive jurisdiction of the National Labor Relations

~ Board (R.[Perko] 9, 12; oa 6, 25, 350).

* The union may have prevented the respondent from being em-

ployed in a supevisory status, so that he would not have been

entitled to the protections afforded an “employee” by the federal

Act. We agree with petitioners thas the classification of respondent

as an employee or as a supervisor sliould be a matter for the Labor

in the first instance. But even if respondent is considered

@ supervidOr; this would merely, transform the yhion’s arguable

unfair labor practice from an 8(b) (2) (causing employer diecrimi-

nation against employees to encourage union membership) into- an

‘8(b) (1) (B) (coercing. employers in the selection of their bargain- .

ing representativesy, see NLRB v. Teamsters Local 294, 284 F. 2d

893 (2d Cir..1960) ; cf. Typographical Union v. NLRB, 278 F. 2d 6

(1st Cir. 1960), afd. by equally divided Court, 365 U.8. 706, or

an 8(b)(1)(A) (coercing employees in the rights guaranteed them

under see; 7), cf. NLRB v. Better Monkey Grip Co., 243 F. 2d 836

(5th Cir. 1957), cert. dew. 355 U.S. 864 (employer coerced non-

supervisory employees by discharging supervisor for testifying

under the Act). In either event Board jurisdiction would be ex-

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We start with the proposition that “[w]hen an activity

is arguably subject to §7 or §8” of the National Labor Re-

ae Act, the courts “must defer to the exclusive compe-

” of the NLRB. San Diego Building Trades Council

‘ 'Germon, 380 U.S. 236, 245. See also Garner v. Teamsters

Local 776, 346 U.S. 485; Weber v. Anheuser-Busch, 348

U.S. 468. Job discrimination to encourage unionism by -

compelling adherence to a union’s institutional rules is at. ©

least arguably an unfair labor practice under section 8 of

the Act, as is union-inspired discrimination in the referral

of job applicants from an exclusive:hiring hall. Radio Off-

cers’ Union v. NLRB, 347 U.S. 17; cf. Carpenters Local 60

v. NLRB, 365 U.S. 651; Teamsters Local 357 v. NLRB, 365

U.S. 667. Absent some special factor, therefore, the courts

are obviously ousted of jurisdiction to entertain .actions

like thase involved here

Preemption admits of two exceptions. Despite the pres-

ence of activities potentially subject to the NLRA, states

retain the power to regulate as a matter of their own state

law* (1) conduct of “merely peripheral concern” to the

federal Act, and (2) conduct “marked by violence and im-

minent threats to the publie order.” Garmon, 359 U.S. at

243-44, 247, citing Gonzales for the first exception and

he

ect 8 |

* *In addition, the doctrine of primary jurisdiction, does not apply

to prevent a state court from assuming jurisdiction over a suit

under tec. 301 of the Taft-Hartley Act o1 a contract between an.

employer and a.union, even though an unfair labor practice is -

also involved; however, the law to be applied in such a case is not

state law but federal law. Smith v. Evenin, News Assn., 371 US.

195; see also Charles Dowd Bor Co. v. Courtney, 368 US. 502;

Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95; Atkinson v.

Sinclair Refining Co., 370 U.S. 238. This line of decisions gives

respondents no comfort. .The suits here are between individuals —

and labor organizations. and are grounded on state substantive law,

not on any‘collective bargaining agreement. -

6

_ Russell and Construction Workers.v. Laburnum Construc-

tion Corp., 347 U.S. 656, for the second. No one suggests

that violence is any part of either of the instant cases. Nor

is the Gonzales exception applicable. ~ i

In Gonzales the “crux of the claim,” as revealed by the

pleadings, was an individual’s expylsion from a labor .

organization in alleged violation of his contract of mem-:

bership. 356 U.S. at 618. This wrong would have been

totally beyond the jurisdiction and remedial powers of the

NLRB, and the union did not contest the power of the state

courts to order reinstatement. Jd. at 619. In both cases

presently before the Court, on the other hand, the crux of

the claims was the loss of employ ment, because of Anion

discrimination or coercion. And that is of the very stuff of

Board jurisdiction. In~ Perko the respondent -made ‘no

claim whatsoever on thé basis of lost membership rights |

(R. 9). In Borden the respondent did make an allegation

that he was for a time denied transfer into one loeal from

a sister local, but the jury found to the contrary/(R. 2, 12,

63). So respondents can rely upon neither the “violence”

exception nor the Gonzales* exception to the preemption

~~~qdoctrine in attempting to sustain the jurisdiction or reme-

ra dial power of the state courts.

_ We leave it to petitioners to dispose of the various other

’ subsidiary grounds which have been advanced for uphold-.

ing state, jurisdiction in these cases. Their flavor is sug-

gested by the contention of the Texas Court cf Civil

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‘In Gonzales, furthermore, the union's pleadings “challenged the

jurisdiction of the [state] court, but said nothing about unfair

labor practices.’’ 356 U.S. at 822, n.1. ‘In contrast, the pleadinre:

of petitioners hcre expressly pointed out the applicability of ‘ .

protections or prohibitions of the- NLURA (R. [Perko] 12; /

[Borden] 6). F

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Appeals in a there could have been no discrimi-

‘nation to encourage udion membership in. violation of sec-

tions 8(a)(3) and 8(b)(2) because “plaintiff was already

a member” (R.351). That argument was laid to rest by this

Court as long ago as Radio Officers, 347: U.S. 17.

- Ss Courts Should Not Have The Power To Supply A Rem-

edy For Nonviolent Conduct Arguably Subject To The ©

National Labor Relations Act, Regardless Of Their

Jurisdiction Over The Basic Cause Of Action.

‘A..State Court APPLicaTIONS AND. MISAPPLICATIONS | OF

GonzaLes

“

As we have dsnnanatinted, the decisionselow are plainly

wrong because they sustain state court jurisdiction over

- conduct arguably subject to the exclusive gurisdiction of the

NLRB, in direct ‘conflict with the Garmon holding. Each

ease is clearly distinguishable from ‘the situation in Gon-

- gales or Russell, where a state court assumed jurisdiction

over Conduct subject to state control and then, in the course

of adjudicating the issues properly before it, supplied a

remedy which reached conduct:.subject to the federal Act.

Although the present cases can this easily be disposed of

on the narrow ground that they fall within the Garmon —

rather than the Gonzales pattern, in our view the Court,

should use this opportunity to reexamine the validity of the

Gonzales distinction itself, and should base its decisions

on @ more comprehensive and realistic rationale than may

be possible while the cummin sts precedents, still

stand.

_ The courts below. in both of the ial eases cited

Gonzales in support of their assertion of jurisdiction. This

is customary whenever an individual seeks a judicial rem-

edy: against a labor organization for alleged interference

--with his-job rights, awe: of the precise nature of his

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cause of action. What proposition Gonzales may be cited

for in any given opinion seems to be as much a function of

- ~ geography as. of legal ‘analysis. We have, however, at-

* tempted to make some reasonable classification of a eross-

section of the reported- decisions. .

; Distressingly, but, significantly, the tnlenat number of

- opinions seem unable to articulate exactly what they think

Gonzales means, especially in light of the subsequent Gar-

mon decision; the natural tendency in such a situation is

for a court to uphold its own jurisdiction: Another eet of

decisions applies Gonzales with literal correctness but, in-

congruous results. The most thought-provoking approach

is one which, while still ill-defined and at odds with existing

pre ‘dent, indicates how Gonzales could logically be ex-

tended to‘undermine almost the entire doctrine of federal

preemption and primary jurisdiction. Finally, and we hope

prophetically, one line of cases suggests that Gonzales has

effectively -been overruled by Garmon. We shall deal in

turn with each of these categories.

“\L: The courts,of such states as Ohio, Oklahoma, North

Carolina, Kansas and Idaho quite simply do not under-

stand Gonzales. Essentially, they think it authorizes state

court jurisdiction whenever a cause of action can be char-

acterized as a-tortious invasion of & property right, or a

breach of contract, or can otherwise be tagged with a label

derived from the common law, even though the alleged

wrong is also an unfair labor practice,“ Thus, in Perko, the

Supreme Court of Ohio cited Gonzales and Russell for the

‘proposition: “The National Labor Relations Act does not

_give the National Labor Relations Board such exclusive ju-

. Tisdiction over the subject matter of an action to recover

damages for a common-law tort, which is also an unfair

labor practice’proscribed by the act; as to preclude an ap-

propriate state court from exercising jurisdiction” (R. 9-

.

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). See sine * ehiee v. Otis, Elevator Co., 331 P. 2d 481

(Okla. 1958) (“blacklisting” of employee by union and em-

ployer) ; Willard v. Huffman, 250 No. Car. 396, 109 S.E. 24.

233 (1959), cert. den. 361 U.S. 893 (employee discharged for

union activities); Taylor v. Operating Engineers Local 101,

189 Kan. 137, 368 P.:2d 8 (1962) (union inteeference with

employee's contract of employment). Even where Gonzales

might possibly have been correctly applied, as in Lockridge

- v¥. Motor Coach Employees, 369 P. 2d 1006, 1010 (Ida. 1962)

(union member. sued for damages resulting from allegedly ©

wrongful suspension), a court may be able to do no better

in rationalizing the controlling decisions than to say: “In.

view of the unsettled state of the federal law, our course

is clear. We must assert jurisdiction in every doubtful case

**e °. ” ,

2. The New York courts sem to ion followed Siseutes

«_ With literal exactitude and in so doing have only succeeded ©

- in emphasizing its defects. In Green v. Folks, 13 App. Div.

2d 744, 215 N.Y.S. 2d 96 (1961), the court dismissed an

employee's action against his employer and union to recover

damages for an allegediy~antawful discharge + stemming

‘from an invalid suspension from the union. The employee

then turned around and sued the union on a theory of

wrongful suspension, seeking reinstatement.to membership

» and consequential — damages for loss of wages. Citing-

Gonzales, the court\ accepted jurisdiction over thix more

artfully pleaded second action. 223-N.Y.S. 2d 287 (N.Y.

Cty. 1961). Yet the major change in the substaney“of the

’. suit was the dropping of the employer as a defendant.

3: In upholding state jurisdiction in Borden below, the _

Texas Court of Civi! Appeals relied on Gon8ales to support

the view that the federal Act “does not displace state court

jurisdiction over suits to determine and enforce rights of

union members in their union” (R. 351). As we have previ-

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& “onaly ieaiisased this: is set 7 kee construction of the plead.

ings in. Borden. ‘The_pleadings here are still in-no better -

posture: t than those in the first round of thé New -York

litigation in Green v. Folks, just discussed; the crux of the |

action is the loss of job rights, not the loss of union mem- —

bership. tights: Yet it must be conceded there is a certain

pervetse logiewin ‘the implications. of the : Texas opinion.

Unless Gonzales. is rigorously limited ‘to its precise facts,* ,

is os could not a ‘union member sue -his organization —_—

breach of an ““‘ffnplied promise” of equal treatment in his. —

eontract of membership, and then recover consequential

. «damages. for iscrimination in job referrals or other em- . -

‘ployment rights? * - The realistic answer, of course, is that

we cannot afford to jeopardize natiénal labor policy by

allowing state courts to immunize. themselves from the pre-

emption | doctrine’ by the* simple process - -of reading “into

_ union constitutions, " a matter of state-contract'law,* what- |

? Cc

-~ te

“* See part T suri p. é

* See note -4| | supra. But ‘suggesting ‘that’ Gennatie might be fol- |

lowed as long as the falisinanic words, “sec. 79” “see. 8” om“unfair — -

labor practice,” do not.appear in the “union’s. answer, places en-

{ tirely too high a premium, we feel, on skillful pleading. In addi- 2

. tion, of course, Gonzales dealt with an expelled: member’s. suit for

. reinstatement, not with a member’s suit for enforcement of other

- intraunion rights: It may be difficult in theory, however, to make

le a decisive distinction. ie

’ Paragraph XII of the ori nal petition and paragraph XV of

; - the first.amended originalepetition in Borden contained allegations ~.

.. of just such breaches of an “implied promise” in the contract of ~

‘- membership (R. 4, 14). Respondent’ pleading error was his failure.

to:make these alleged hes ‘the “crux” of his action. Surely

‘ the: vitality of uniform: na ational , labor poliey cannot be aljawed to

Ifinge on these vagaries. |

"©The potential applicability of state e substantive law is ened | in

iteelf to make the situation entirely different from cases of suits

"under eee: a1 of the Taft: care ad Act, where federal law is ap-

°

we .

3

11

és ever “implied promises” happen to’ suit their purposes.

Gonzales must be reexamined, and its implications, at least,

repudiated. © |

4. Pennsylvania regards Giicoatis as being. effectively,

overruled by Garmon. See Waz v. Mailers Union, 400 Pa.

173, 161 A. 2d 603 (1960). That view may not be in accord-

ance with the literal language of thé Garmon opinion: But

"it is wholly justified by the practical necessity, as recognized

. by this Court in its decisions from Garner through Garmon,

of ‘strictly limiting the exercise. of state. jurisdiction in the -

field of labor relations in order to ensure: the effectivences -

‘of uniform national policy.

This mass of conflicting state court interpretations ‘of

' and implications. of that decion, and to extirpate. its po-

2 Gonzales underscores the need to reevaluate the premises

tential for thwarting whee

‘al labor onjectives. oe,

—_—

B. Tue: FALLACIES OF GONZALES ©

lar Gonzales an 1 individual sued a union’ ae sibeitieemesa

on the ground he had been expelled in violation of his mem-

_bership contract, and this Court upheld the power of a state

-court to inclade in the remedy an award of damages for lost

' wages and mental suffering resulting from the breach of

contract. 356 U.S. at 620-21. Professor Michael Sovern of

F Columbia’ observes. that three arguments were given to

support this result, and concludes ‘as to two that “neither

_of them will withsted- analysis.” * We agreé with the

v

Plicable and this Court has the power of full rey iew. See note 3

supra and note 12 infra.

: * Sovern, “Section 301 and the Printers Sartediesion of the

- NLRB,” 76 Harv. L. Rev. 529, 555 (1963). Numerous other eom-

mentators, including some sympathetic to the result, have character-

ized Gonzales as béing out of harmony with the general tenor. of

this Court's preemption decisions. See, ¢.g., Meltzer, “The Supreme

é .

. —

ane

aaiead jodgment. It was ‘ema in’ Gonzales that the

- “evidentiary coincidence” between the facts needed there

to support a breach of cbntract and the facts needed in a

“plausible proceeding” before the NLRB did not require —

displacement of state court jurisdiction, any more than did |

the “argumentative coincidence” of facts'im the tort action - _

in Laburnum. 356 U.S. at 621. That rationale, insofar as.

it\ likened. Gonzales te-a tort suit, was expunged by Garmon;

3 state jurisdiction is preempted where the conduct is “argu- |

ably subject” to the NLRA. 359 U.S. at 245. It was further

suggested i in Gonzales that the-award of damages presented

no greater risk of conflict with the Board than the rein-

statement to membership. 356 U.S. at’621. But as Sovern

says: “This simply is not true. * * * the award of damages

is based on the ‘Tesolution of issues that are central to the.

is leaves one remaining ground for Gonzales. Once

was reasoned, the state court should have the power to

“fill out” the remedy by. awarding damages for: the conse-

quential loss of wages and’ mental suffering; there was no__

need to “mutilate the comprehensive relief of equity” by

requiring an.employee to go to the courts for his lost mem-

. bership:and to the Labor Board for his lost wages. 356,U.S.

at 621. That rationale, too, we submit, is demonstrably

unsound. As a matter of legal theory, it is-premised on a -

concept of preemption whose validity’ was. assumed by a

Court, Congress, and State Jurisdiction over Labor Relatioris,” 59

- Col. L.” Rey. 6, 44 (1959); Sehwartz, “The Supreme Court— —

October 1957 Term.” 57 Mich. L. Rev. 315, 332 (1959); Hanslowe,

“Labor Relations Law,” 36 N.Y. Univ. L. Rev. 1446, 1448 (1961)

(“[t]hé distinction [between Garmon and Gonzales situations) is

not always easily drawn and may, in this sort of case, depend more ©

upon the semantics of pleading than upon substance”). — ~ ee

_% Sovern, supra note 9, 76 Harv. L. Rev. at 555-56, n. 80.

ving acquired jurisdiction over the reinstatement suit, it . |

_— . 13 . 3

‘majority of the Court at the time-of Gonzales, but: which

\was ultimately rejected in Garmon. And asa matter of |

a : of fragmented remedies against the undesirability of over:

- ., lapping or conflicting remedies, with the erroneous practical

‘ > judgment being. made titat the latter was the lesser evil.

/ When Gonealts was decided the prevailing view of this

Court was that the application of the preemption principle

¢ téfhed on the existence of a possibie “conflict”. of “reme-.

eee 7 * dies.” Laburnum, 347 U.S. at 665; Russell, 356 US. at 644,

as ra Consequently, there was a certain appeal to. the Gonzales

labor policy, it represents a balancing of: the. unde-irability _

_ argument that state court jurisdiction should ‘be \apheld if

_ where the Labor Board could not give the kind of relief or _ .

the full relief.sought by a party. But with Garmon this con-

- cept evaporated. The experience.of more than a decade of ©,

adjusting federal-state relations in this area had taught

that ‘the erucial factor i in preemption was not: the Temedy

but the conduct remedied, “the nature of the'activities/which

- the States have sought to regulate, rather than * ee the-

; method of regulation adopted.” 359 U.S. at 243. Gonzales

-\. ° ould then properly be left to stand for the proposition that,

“the states retain the power to regulaté conduct which is“a

merely peripheral concern of the Labor ensue Rela-

tion feo ep Pha ee a

- The fault lies in the Gonzales eiaiboiiiain not the Gar-

‘ mon rationalization. Union membership rights as such are

7"; indeed of only peripheral concern ‘to the scheme of the

NLRA ;,but concern with job discrimination aimed at en-

couraging or discouraging. unionism is at the Act’s very

) core. When the state court reinstated Gonzales to: union

. membership it. was, we will assume, validly - enforcing a

| contract in accordance with: state law. When it proceeded

to award damages for lost job rights, however, it was in-

vading a federal domain by regulating labor relations,

14

again in accordance with state law. To characterize what

‘+ took place in any other fashion is to engage, as the Chief

> Justice remarked in dissenting in Gonzales, in “a game that"

is' played with labels.” 556 US. at 638. Na

Gonzales likewise finds no support \m the dusishine of this

Court which have sustained the concurrent jurisdiction of .

the féderal and state courts to entertain suits on collective

bargaining agreements, despite the possible involvement of

unfair labor practices." Gonzales was a contract action, but

the contract was between an organization and a member,

‘to be interpreted and énforced, we gather, under ‘state

law," not a contract between a union and an employer, to

be interpreted and enforced under a section of the same

‘comprehensive federal law which delineates unfair labor -

practices and prescribes remedies for them. Within the one

scheme possible conflicts between decisions of the

Board and the courts are ey subject’ to ultimate

a

; ass «

———— | \

* See note 3 supra.

In G this Court apparently accepted the traditional

view. in this country that'a union constitution and bylaws are a

contract ‘between union and member, enforceable as a matter of

state law. 356 U. S. at 618-19. In Parks v. IBEW, 52 LRRM 2281,

46 Lab. Cas. J 18,073 (4th Cir. Jan. 23; 1963), it was held that a

local union could sue its international: for alleged violation of the

' international. rnin under sec. 301, on the ground the con-

stitution was a contract “between * * * labor organizations.” Even

if this is correct, it would seem a long additional jump to sustain

301 jurisdiction when an individual member sues ‘his union, and an

impossible leap when the basis of: the action is the local consti-

tution or bylaws.

That brings us to the basic policy question in Gonzales.

Which should be given paramountcy: the employee's desire

to avoid having to pursue his remedies before /two tribunals —

- (put differently, a state’s-interest in providing an “anmuti-

lated” equitable remedy), or the nation’s interest in pro-

moting a uniform system of labor regulation? The question

should not be answered in the abstract, as rhe often

attempted. Former Professor Paul R. Hays of (Columbia

has wisely cautioned, for example, that too much theoretical

‘analysis could result in underestimating “the possibilities

of the severe impact on labor-management relations of the

decisions in the Russell casé and, even more importantly, —

the Goneales case.” * a ‘res \

|

In the real world, then, the inconvenience which would/be

_ caused an employee if Gonzales were overruled is nowhere

near as bad as it may sound when one says.he- would -be

forced to “pursue his remedies before two tribunals.” So

far as the federal ‘remedy is coneerned, it means he would

have to walk around to the nearest NLRB regional office,

‘or mail the office a letter, and ‘submit his charges. From

then on Board agents would take over the pursuing of his’

remedy.\ On the other hand, if the Gonzales-Russell doctrine

is sustained and extended in accordance with its logical

implications, a labor organization may be faced with a suit

which is technically for breach of a membership contract,

but which carries with it the very genuine possibility that |

the remedy provided by the state court will include an © ©

* award for back pay, for ouaees — or mental suffer-

‘7

_ ™ Hays, “Foreword,” "59,60 ™ Rev. 1,5 -.

16

ing in an amount some twenty times the back pay,"* and for

the “foreseeable” loss of the complaining employee's earn-

ings during the entire remainder of his life expectancy.”

If some two or. three dozen employees are involved—and.

intraunion litigation is likely to involve a group of dis-

affected members—an award in-which all sorts of subsidiary

damages are added to the actual loss of wages can easily

-. mount to a total in excess of a million dollars."* For a local

labor union that can mean obliteration.

As long as the officially declared oallay of the United

States includes “encouraging the practice and procedure

of collective bargaining” through “representatives of [the

employees’) own choosing,” "' the awarding of such stagger-

g sums by state courts as a remedy for conduct subject °

the NLRA represents. a veritable displacement | of na- |

ional labor policy, with the form of the action serving only |

a shabby cloak over the reality underneath. Set against

a displacement of federal policy, any minor inconveni-

caused an employee who may have to file charges with

th NLRB as well as a suit in the courts, and any theor-

‘étical “mutilation” of a court’s comprehensive equity re-.

medy, are as nothing in the balance. We question, indeed,

* See Russell, 356 U.S. at 652, n. 10 (judgment upheld for $10,-

000, of which only $500 represented lost wages) ; see also the listing .

of companion actions, id. at 657, n. 16.

""* See, ¢.g., Casida v. Operating Engineers, Civ il No. 10884, ‘D.

. Tex., ‘ diseussed in Brandwen, “Punitive-Exemplary Damages in

Labor Relations Litigiation,’ "29 Univ. Chi. L. Rev. 460, 461, n. 8

(1962), and aceompanying text.

1* Ibid. In Casida a Texas judge and jury swarded twenty-eight

employees who lost their jobs during a strike $1,265,896. See also

Russell, 356 U.S. at 656-58 (Russell was one of thirty ‘fellow em-

' ployees who filed claims totaling $1,500,000 in the Alabama courts).

_ “'NLRA §1, 49 Stat. 449, §1 (1935), as. amended by 1 Stat. 136

(1947), 29USC. §151. ; ‘tia

a

17

whether many employees concentrate’ « on the court route

because they find any real inconvenience in having to pur-

sue their remedies before two tribunals; we suggest that

the usual reason for avoiding the Labor Board, when it

would have jurisdiction and could order job reinstatement

and award back pay, is the simnple desire to get a labor un-

ion before a judge and jury imbued with hostile regional .

‘attitudes and armed with Auch antiquated but formidable

truncheons as the power to award “smart” money.

Viewed either theoretically or practically, therefore, the _

kind of award upheld in Gonzales, or in Russell, is plainly

incompatible with federal labor. policy and with the main.

body of current preemption doctrine. The formulation of

a more adequate. rule to cover such situations as Gonzales

and Russell is in order.

\

‘Cc. THE PRoPER PREEMPTION Rue P

We need not quarrel with ‘the Gaymon proposition that

the states retain jurisdiction to deal with “violence” or with

conduct of a “merely peripheral concern” to the LMRA.

Nonetheless, these are the exceptions; the general rule

enunciated in Garmon is that the courts are ousted of juris-

diction over conduct “arguably subject” to the jurisdic. -

tion of the NLRB. ‘From Garner through Garmon the

mainstream of preemption theory reflects the same under-

lying reason for exclusive jurisdiction—which is. also the

- key to the solution here: ‘Administration is more than a

means of regulation; administration is regulation. * * * To

leave the States free to regulate conduct so plainly within

the central aim.of federal regulation involves too great

. a danger of conflict between power asserted by Congress

‘and requirements imposed by state law.” Garmon, 359 U.S.

at 243, 244; see also Garner, 346 U.S. at 490-91. It is only

left for us to ask: How, in fact, can state law “regulate” an

activity “within the central aim of federal regulation”?

wv

18

In Garmon this Court turned its attention, we believe

properly, to the nature of the activities regulated, rather

than the method of regulation adopted, as the prime factor

in resolving preemption problema. Yet it would be a dis-

service to the Garmon principle to allow its abstract valid-

ity to blind us to the reality earlier recognized by this

Court in Garner: “* * * when two separate remedies are

‘brought to bear on the same activity, a conflict is imminent.”

. 346 U.S. at 498-99. (Emphasis added.) State law could

' pvegulate labor relations, in potential conflict with the fed-

eral scheme, if it could provide a separate remedy by

awarding back pay and punitive damages to an employee

_who brings an action grounded on job discrimination aimed

at encouraging or discouraging union adherence. As the

dissenters in Gonzales so correctly insisted, there is in

effect not the least bit less regulation of labor relations,

and not the least bit less potential conflict with the federal

scheme, when state law provides a separate remedy by

awarding back. pay and punitive damages or damages for

“mental suffering” to an employee who suffers job dis-

_ ¢rimination aimed at encouraging union adherence, merely

because the employee grounds his action on the loss of un-

. jon membership rights. See 356 cs at 623-33 (dissenting

opinion) ; cf. Russell, 356 U.S. at 647-59 (dissenting opin-

ion). 7 / rsh

In short, state law could regulate conduct “within the

central aim” of national labor policy if it could provide

remedies when such conduct is made. the subject matter of

a state court action; and state law can continue effectively

to regulate ‘conduct “within the central aim” of national

> labor policy as long as this Court allows a state court to

provide remedies for such conduct on the theory it is pro-

viding “consequential damages” for other conduct of a

merely peripheral concern to the federal scheme. To para-

\ phrase Garmon, a remedy is more than a means of regu-

e , P

lation; a remedy is regulation. The fact that state remedies,

such as punitive damages, will often be far more devastat-

ing in their impact on a labor organization than the reme-

‘dies available through the NLRB only serves to emphasize

the way a state can employ its remedial powers to effectu-

ate its own notions of substantive labor relations policies

19 a

ander the guise of enforcing nonfederal rights. As the ~

Chief Justice said in his Russell dissent: “The Federal Act

represents an attempt to balance the competing interests -

of employee, union and management. By providing addi-

tional remedies the States may upset that balance as effec-

tively as by meateating or es existing ones.” ” 356

U.S. at 650.

The Garmon rule, fa hou be refashioned somewhat |

as follows: When an activity is arguably subject to section

7 or section 8 ofthe federal Act, a court must defer to

the exclusive competence of the NLRB to regulate such

activity, except as necessary to maintain public order, not

only by refusing to entertain an action based on that activ-

_ity but also by refusing to provide a remedy for it even

where it is related to some other conduct which is within

the court’s jurisdiction and which is the subject of the

action.”

: ' ea

* We have phrased our statement of the rule in keeping with

the Garmon wording. It might well be, however, that the issue of

federal preemption should not pivot solely on the narrow question

of whether a particular activity is either protected or prohibited by

the National Labor Relations Act. The majority opinion in Garmon,

see 359 U.S. at 245, may foreshadow an acceptance by this Court

of a broader preemption doctrine along the lines advocated by such

scholars as former Professor Cox. For him the NLRA is a “com-

prehensive code of reguletion” in the field of labor-management

relations, effecting a “total pre-emption of state laws dealing with

unionization and collective bargaining, including resort to peaceful

strikes and picketing.” Cox, “The Labor Decisions of the Supreme

Court at the October Term 1957,” Proceedings of the ABA Section

2 .

‘So stated, the principle gives

has been taught by the ons from Garner through

Garmon; disposes_ot! ‘disharmonies of Gonzales and

Russell; eaves intact state jurisdiction to remedy

violence and other conduct not central to. the federal

scheme. If on occasion, there might be some difficulty in

deciding whether a state court had in fact taken preempted

conduct into account in. fashioning a remedy for conduct

subject to state control,” any such difficulty would be more

than offset by the increased- protection afforded national

labor policy. The suggested change in the preemption rule

would of course not vary the capacity of the federal and

state courts to entertain suits to enforce contracts between

unions and employers. as a matter of federal law . under

section 301 of Taft-Hartley.” -

We \respectfully urge the Court to use this opportunity

to reexamine Gonzales and Russell, to repudiate their dan-

gerous rationales, and to base the decisions in the present

cases on reasoning like that we have proposed. ©

weight to the best that

of Labor Relations Law 12, 20-21 (1958); see also “Report of the

Committee on State Labor Legislation,” Proceedings of the ABA

' Section of Labor Relations Law 133, 136 (1959). This Court has

stated that preemption is not affected by any distinction between

state laws regulating labor-management relations as such and state

laws of general applicability. Weber v. Anheuser-Busch, 348 U.S.

468, 479-480. Cf. Teamsters Local 24 v. Oliver, 358 U.S. 283.

** The dissenters in Russell acknowledged that a state court could —

award damages for “physical injuries infli in the course of

conduct regulated under the Federal Act,” byit not for “ economic

logs sustained from conduet regulated by the Federal A 356

U.S. at 649, 650. In certain situations a preci ir ted hetieees

the one kind of damages and the other might be hard to draw. But

it would seem no harder than determining whether any oven jury

verdict is “excessive.” .

* See note 3 supra.

es ee 9]

CONCLUSION —

For the foregoing reasons and for the reasons set forth

in the briefs for the petitioners, the judgments below in

No. 482 and No. 541 should be rpyersed.

, Respectfully submitted,

_ J. Abert WoL

General Counsel, AFL-CIO

Ropenr C. Mayer

THropore J. St. ANTOINE -

736 Bowen Building

815 Fifteenth Street, N.W.-

Washington 5, D. C. .

Tuomas BK, Harris

Associate General Counsel,

AFL-CIO

815 Sixteenth Street, N.W.

Washington 6, D. C.

March 1963