United Mine Workers v Gibbs Federal Jurisdiction 383 US 715 by Mu1sKkV


									                                                                                                   Page 1
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                         LEXSEE 383 US 715


                                                 No. 243

                          SUPREME COURT OF THE UNITED STATES

                  383 U.S. 715; 86 S. Ct. 1130; 16 L. Ed. 2d 218; 1966 U.S. LEXIS
               2837; 53 Lab. Cas. (CCH) P11,135; 10 Fed. R. Serv. 2d (Callaghan)
                                     361; 61 L.R.R.M. 2561

                                      January 20, 1966, Argued
                                      March 28, 1966, Decided

PRIOR HISTORY:                                          neighboring mines. There was no further vio-
                                                        lence at the mine site, a picket line was main-
                                                        tained there for 9 months, and no further at-
                                                        tempts were made to open the mine during that
                                                        period. The plaintiff lost his job as superinten-
                                                        dent, never entered into performance of the
                                                        haulage contract, and allegedly began losing
    343 F.2d 609, reversed.                             other trucking contracts and mine leases he
                                                        held in nearby areas. Subsequently, he sued the
                                                        defendant in the United States District Court
SUMMARY:                                                for the Eastern District of Tennessee, seeking
    After a coal company had hired the plaintiff        damages under 303 of the Labor Management
as mine superintendent to attempt to open a             Relations Act on the basis of an alleged sec-
new mine and had given him a contract to haul           ondary boycott, and also seeking damages un-
the mine's coal to a railroad loading point,            der state law on the basis of an unlawful boy-
armed members of one of the local unions of             cott and an unlawful conspiracy to interfere
the defendant international union forcibly pre-         with his contract of employment and his con-
vented the opening of the mine, threatened the          tract of haulage. The trial judge, who found that
plaintiff, and beat an organizer for a rival union      the plaintiff's claims of pressure intended to
whose members were to be used for work at the           cause mining firms other than his employer to
mine. The defendant had no representatives              cease doing business with him were unsupport-
present at the time of such violence, but the de-       ed by the evidence, refused to submit such
fendant's field representative for the area in-         claims to the jury, but in connection with both
cluding the local union learned of the violence         the employment contract and the plaintiff's
while attending an out-of-town meeting, and he          haulage contract with his employer, the jury
returned with explicit instructions from his in-        found that the defendant had violated both 303
ternational union superiors to establish a lim-         and state law, and it awarded punitive damages,
ited picket line, to prevent any further violence,      as well as awarding compensatory damages.
and to see to it that the strike did not spread to      The trial court set aside the award under the
                                                                                                    Page 2
                                      383 U.S. 715, *; 86 S. Ct. 1130, **;
                                 16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

haulage contract on the ground that damage               Headnote: [1]
was unproved, held that union pressure causing           While a federal court may not assume juris-
the plaintiff's discharge as superintendent did          diction of a separate and distinct nonfederal
not violate 303, and granted a remittitur as to          cause of action because it is joined in the
both the punitive damages and the compensato-            same complaint with a federal cause of ac-
ry damages under the state law claim for inter-          tion, yet where two distinct grounds in sup-
ference with the employment contract. (220 F             port of a single cause of action are alleged,
Supp 871.) The Court of Appeals for the Sixth            only one of which presents a federal ques-
Circuit affirmed. (343 F2d 609.)                         tion, and the federal question averred is not
    On certiorari, the United States Supreme             plainly wanting in substance, the federal
Court reversed. In an opinion by Brennan, J., it         court, even though the federal ground is not
was held (in Part I), expressing the unanimous           established, may nevertheless retain and
view of the Court, that the District Court had           dispose of the case upon the nonfederal
the power to exercise pendent jurisdiction over          ground.
the plaintiff's nonfederal claims and that it was
not error to refuse to dismiss such claims. Ex-
                                                         COURTS § 240
pressing the views of six members of the Court,
                                                         pendent federal jurisdiction -- nonfederal
the opinion held (in Part II) that where the con-
                                                         claims --
sequences of peaceful and violent conduct are
separable, recovery under state law may be had
                                                         Headnote: [2]
only for the latter, and (in Part III) that reversal
                                                         A federal court's judicial power to exercise
was necessary because "clear proof" was lack-
                                                         pendent jurisdiction over a nonfederal claim
ing, as required by 6 of the Norris-LaGuardia
                                                         exists whenever there is a federal claim having
Act, that the defendant had participated in, au-
                                                         substance sufficient to confer subject matter
thorized, or ratified the violence which had oc-
                                                         jurisdiction on the court and the relationship
curred, the term "clear proof" being construed
                                                         between that claim and the nonfederal claims
to require more than the ordinary civil burden
                                                         made in the complaint permits the conclusion
of a bare preponderance of the evidence, but
                                                         that the entire action before the court comprises
less than the criminal burden of proof beyond
                                                         but one constitutional "case"; the nonfederal
reasonable doubt.
                                                         and federal claims must derive from a common
    Harlan, J., joined by Clark, J., concurred,          nucleus of operative fact, but if, considered
joining in Part I of the Court's opinion relating        without regard for their federal or nonfederal
to pendent jurisdiction, expressing reservations         character, a plaintiff's claims are such that he
as to Part II of the Court's opinion, and agree-         would ordinarily be expected to try them all in
ing with the holding in Part III, but disagreeing        one judicial proceeding, then, assuming sub-
with the Court's construction of the term "clear         stantiality of the federal issues, there is power
proof."                                                  in federal courts to hear the whole.
    Warren, Ch. J., did not participate.
LAWYERS' EDITION HEADNOTES:                              COURTS § 230.7
[***HN1]                                                 rules of civil procedure -- effect on federal ju-
COURTS § 240                                             risdiction --
pendent federal jurisdiction -- nonfederal
claims --                                                Headnote: [3A] [3B]
                                                                                                     Page 3
                                      383 U.S. 715, *; 86 S. Ct. 1130, **;
                                 16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

Although the Federal Rules of Civil Procedure             [***HN6]
do not expand the jurisdiction of federal courts,        COURTS § 240
they embody the tendency of judicial decisions           federal jurisdiction -- pre-emption --
to require a plaintiff to try his whole case at one
time and to that extent emphasize the basis of           Headnote: [6]
pendent federal jurisdiction over nonfederal             The interrelationship between state and federal
claims.                                                  law where the allowable scope of a state claim
                                                         implicates the federal doctrine of pre-emption
 [***HN4]                                                does not create statutory federal question juris-
COURTS § 240                                             diction, but is relevant to the exercise of pen-
pendent federal jurisdiction -- nonfederal               dent jurisdiction over the state claim.
claims --
Headnote: [4]                                            COURTS § 240
Pendent jurisdiction is a doctrine of discretion,        pendent federal jurisdiction -- nonfederal
not of plaintiff's right, it need not be exercised       claims --
in every case in which it is found to exist, and
its justification lies in considerations of judicial     Headnote: [7]
economy, convenience, and fairness to liti-              Pendent federal jurisdiction over a nonfederal
gants, and if these are not present, a federal           claim should ordinarily be refused where there
court should hesitate to exercise jurisdiction           are reasons independent of jurisdictional con-
over state claims, even though bound to apply            siderations, such as the likelihood of jury con-
state law to them; needless decisions of state           fusion in treating divergent legal theories of
law should be avoided both as a matter of                relief, that would justify separating state and
comity and to promote justice between the par-           federal claims for trial.
ties, by procuring for them a surer-footed read-
ing of applicable law.                                    [***HN8]
                                                         COURTS § 240
 [***HN5]                                                pendent federal jurisdiction -- nonfederal
COURTS § 240                                             claims --
pendent federal jurisdiction -- nonfederal
claims --                                                Headnote: [8]
                                                         Although the question whether a federal court
Headnote: [5]                                            has power to exercise pendent jurisdiction over
Under the doctrine of pendent federal jurisdic-          nonfederal claims is ordinarily resolved on the
tion over nonfederal claims, if federal claims           pleadings, the issue whether pendent jurisdic-
are dismissed before trial even though not in-           tion has been properly assumed is one which
substantial in a jurisdictional sense, state claims      remains open throughout the litigation, and
which are alleged should be dismissed as well,           once it appears that a state claim constitutes the
and if it appears that the state issues substan-         real body of a case, to which the federal claim
tially predominate, whether in terms of proof,           is only an appendage, the state claim may fairly
of the scope of the issues raised, or of the com-        be dismissed.
prehensiveness of the remedy sought, the state
claims may be dismissed without prejudice and            [***HN9]
left for resolution to state tribunals.                  COURTS § 278.5
                                                                                                   Page 4
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

federal jurisdiction -- secondary boycott -- sub-       Headnote: [11]
stantiality of claim --                                 Since federal courts are particularly appropriate
                                                        bodies for the application of pre-emption prin-
Headnote: [9]                                           ciples, the question whether the permissible
Claims alleging federal jurisdiction under 303          scope of a state claim is limited by the doctrine
of the Labor Management Relations Act (29               of pre-emption affords a special reason for the
USC 187), authorizing federal suits for damag-          exercise of a Federal District Court's pendent
es resulting from secondary boycotts, are sub-          jurisdiction over nonfederal claims in an action
stantial where the plaintiff, a mine superinten-        in which jurisdiction is allegedly based on 303
dent whose employer gave him a contract to              of the Labor Management Relations Act (29
haul coal, avers that as a result of the defendant      USC 187), authorizing federal suits for damag-
union's concerted plan against him, and by rea-         es resulting from secondary boycotts.
son of secondary union pressures exerted on his
employer and other coal operators, he never              [***HN12]
entered into performance of his haulage con-            COMMERCE § 129
tract and soon began to lose other trucking con-        labor violence -- scope of remedies --
tracts and mine leases he held in nearby areas.
                                                        Headnote: [12]
[***HN10]                                               In the area of violence and threats of violence
APPEAL AND ERROR § 1408                                 in labor disputes which are covered by federal
                                                        labor legislation, the permissible scope of state
COURTS § 240                                            remedies is strictly confined to the direct con-
dismissal -- pendent federal jurisdiction -- non-       sequences of such violence or threats and does
federal claims --                                       not include consequences resulting from asso-
                                                        ciated peaceful picketing or other union activi-
Headnote: [10]                                          ty; where the consequences of peaceful and
Although a Federal District Court might in its          violent conduct are separable, recovery under
sound discretion have dismissed a state claim in        state law may be had only for the latter, and it
an action alleging jurisdiction under 303 of the        is essential to focus attention upon violence or
Labor Management Relations Act (29 USC                  threats of violence as a predicate of any recov-
187), authorizing federal suits for damages re-         ery awarded.
sulting from secondary boycotts, the circum-
stances show no error in refusing to do so,              [***HN13]
where the federal claims under 303 were sub-            LABOR § 19
stantial and were not so remote and did not play        liability of union --
such a minor role at the trial that in effect the
state claim only was tried, and the jury returned       Headnote: [13]
verdicts for the plaintiff on the federal claims,       The Labor Management Relations Act (29 USC
which verdicts the trial court set aside only for       141 et seq.) expressly provides that for purpos-
lack of proof of damages.                               es of the Act, including 303 (29 USC 187),
                                                        which authorizes federal suits for damages re-
 [***HN11]                                              sulting from secondary boycotts, the responsi-
COURTS § 240                                            bility of a union for the acts of its members and
pendent federal jurisdiction -- nonfederal              officers is to be measured by reference to ordi-
claims --                                               nary doctrines of agency, rather than the more
                                                        stringent standards of 6 of the Norris-
                                                                                                        Page 5
                                      383 U.S. 715, *; 86 S. Ct. 1130, **;
                                 16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

LaGuardia Act (29 USC 106), which conditions             sion, but he is required to persuade by a sub-
responsibility upon clear proof of the union's           stantial margin, to come forward with more
actual participation, actual authorization, or rat-      than a bare preponderance of the evidence to
ification after actual knowledge; but 6 is appli-        prevail.
cable to cases not arising under the Labor Man-
agement Relations Act and applies to federal              [***HN16]
court hearings of state tort claims arising out of       EVIDENCE § 970.3
labor disputes, whether or not they are associ-          labor violence -- proof of authorization or par-
ated with claims under 303 to which 6 does not           ticipation --
                                                         Headnote: [16]
[***HN14]                                                Although officers and members of a local union
DAMAGES § 16                                             were present in force at a mine site when vio-
                                                         lence was used to prevent the mine from open-
LABOR § 115.5                                            ing, clear proof that the local's international un-
punitive damages --                                      ion authorized or participated in such violence
                                                         is lacking where the international union was not
Headnote: [14]                                           even aware of management's plans to open the
Punitive damages may be recovered on state               mine until after the violence had occurred.
claims involving damages resulting from a un-
ion's conduct in a labor dispute, but not on             [***HN17]
claims under 303 of the Labor Management                 EVIDENCE § 970.3
Relations Act (29 USC 187), authorizing feder-
al suits for damages resulting from secondary            LABOR § 19
boycotts.                                                violence -- proof of union's ratification --

 [***HN15]                                               Headnote: [17]
EVIDENCE § 970.3                                         Although a union has involved itself in a labor
liability of labor union -- "clear proof" --             dispute after violence occurred and has carried
                                                         on some normal union functions, such as provi-
Headnote: [15]                                           sion of strike relief, and although there has
Under 6 of the Norris-LaGuardia Act (29 USC              been continued picketing at the mine site where
106), which conditions a union's responsibility          the violence occurred, the union's ratification of
in a federal court for the unlawful acts of its          such violence after actual knowledge thereof
officers, members, or agents upon "clear proof"          cannot be inferred from such facts alone, but
of the union's actual participation in, or actual        depends, under 6 of the Norris-LaGuardia Act
authorization of, such acts, or of ratification of       (29 USC 106), upon clear proof either that the
such acts after actual knowledge thereof, the            union approved the violence which occurred or
term "clear proof" is to be given a meaning like         that it participated actively or by knowing tol-
that commonly accorded such similar phrases              erance in further acts which were in themselves
as "clear, unequivocal, and convincing proof";           actionable under state law or intentionally drew
the plaintiff in a civil case is not required to         upon the previous violence for their force; such
satisfy the criminal standard of reasonable              proof is lacking, and the evidence does not es-
doubt on the issue of participation, authoriza-          tablish that the union built its picketing cam-
tion, or ratification, nor may he prevail by             paign upon the fears which the violence engen-
meeting the ordinary civil burden of persua-             dered, where the record shows that although the
                                                                                                   Page 6
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

union neither affirmatively disavowed such un-          with instructions to establish a limited picket
lawful acts as may previously have occurred             line, prevent further violence, and to see that
nor assured that it would prevent further vio-          neighboring mines were not struck. There was
lence, it firmly instructed its representative to       no further violence at the mine site; a picket
return to the scene, assume control of the strike,      line was maintained for nine months; and no
suppress violence, limit the size of the picket         further effort was made to open the mine. Re-
line, and assure that no other area mines were          spondent lost his job as superintendent, never
affected, and the representative succeeded in           performed his haulage contract, and allegedly
ending violence at the mine site and reducing           lost other trucking contracts and mine leases
the number of pickets to a very few.                    because of a concerted union plan against him.
                                                        Suing only the international union, he sought
 [***HN18]                                              recovery under § 303 of the Labor Manage-
COMMERCE § 129.3                                        ment Relations Act and the common law of
peaceful secondary activities -- recovery under         Tennessee. Jurisdiction was premised on alle-
state law --                                            gations of secondary boycotts under § 303; and
                                                        the state law claim, for which jurisdiction was
Headnote: [18]                                          based on the doctrine of pendent jurisdiction,
A mine superintendent cannot recover damages            asserted an unlawful conspiracy and boycott to
from a union under state law, and is limited to         interfere with respondent's contracts of em-
his remedy under 303 of the Labor Manage-               ployment and haulage. The jury found that peti-
ment Relations Act (29 USC 187), which au-              tioner had violated both § 303 and state law
thorizes suits against unions for damages sus-          and respondent was awarded actual and puni-
tained as the result of unlawful secondary activ-       tive damages. On motion, the trial court set
ities, where the union engaged in peaceful ac-          aside the damages award with respect to the
tivities exerting pressure on the superinten-           haulage contract on the ground that damage
dent's employer and other coal operators for the        was not proved. It also held that union pressure
alleged purpose of assuring that the superinten-        on respondent's employer to discharge him
dent would lose his job, his coal haulage con-          would constitute only a primary dispute with
tract with his employer, and other trucking con-        the employer, not cognizable under § 303. In-
tracts and mine leases in nearby areas.                 terference with employment was cognizable as
                                                        a state claim and a remitted award was sus-
SYLLABUS:                                               tained thereon. The Court of Appeals affirmed.
      A coal company closed a mine in Tennes-
see and laid off miners belonging to one of pe-             1. The District Court properly entertained
titioner's local unions. Thereafter the company,        jurisdiction of the claim based on state law. Pp.
through a subsidiary, attempted to open a new           721-729.
mine nearby with members of a rival union.                  (a) The state law claim, based in part on vi-
Respondent was hired as mine superintendent             olence and intimidation, was not pre-empted by
and given a contract to truck coal to the nearest       § 303. P. 721.
rail loading point. On August 15 and 16, 1960,
armed members of petitioner's local forcibly                (b) Pendent jurisdiction, in the sense of ju-
prevented the opening of the mine, threatened           dicial power, exists whenever there is a sub-
respondent, and assaulted an organizer for the          stantial federal claim and the relationship be-
rival union. Petitioner's area representative was       tween it and the asserted state claims permits
away at a union board meeting when he learned           the conclusion that the entire action before the
of the violence. He returned late on August 16          court comprises one "case." P. 725.
                                                                                                    Page 7
                                      383 U.S. 715, *; 86 S. Ct. 1130, **;
                                 16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

    (c) Pendent jurisdiction is a doctrine of dis-       proof," used elsewhere. Although under this
cretion, justified by judicial economy, conven-          standard the plaintiff in a civil suit does not
ience and fairness to litigants. P. 726.                 have to satisfy the criminal standard of reason-
                                                         able doubt, he is required to persuade by a sub-
    (d) The District Court did not exceed its
                                                         stantial margin and to come forward with more
discretion in exercising jurisdiction over the
                                                         than a bare preponderance of the evidence. P.
state law claim. Pp. 727-729.
    2. State law remedies against violence and
                                                             (c) Respondent did not present clear proof
threats of violence arising in labor disputes
                                                         that petitioner authorized or participated in the
have been sustained against the challenge of
                                                         violence, or that it ratified the violence which
pre-emption by federal labor legislation, but the
                                                         had occurred, and accordingly cannot recover
scope of such remedies is confined to the direct
                                                         from petitioner. Pp. 738-742.
consequences of such conduct. Pp. 729-731.
     3. Although petitioner concedes that vio-           COUNSEL:
lence which would justify application of such
                                                             Willard P. Owens argued the cause for peti-
limited state tort law occurred during the first
                                                         tioner. With him on the brief were E. H.
two days of the strike, it appeared that neither
                                                         Rayson and R. R. Kramer.
the pleadings, arguments of counsel, nor the
instructions to the jury adequately defined the             Clarence Walker argued the cause for re-
area within which damages could be awarded               spondent. With him on the brief was William
under state law, where the tort claimed, essen-          Ables, Jr.
tially a "conspiracy" to interfere with respond-
ent's contractual relations, was not itself so lim-      JUDGES:
ited. Pp. 732-735.                                           Fortas, Harlan, Brennan, Black, Stewart,
    4. Since petitioner was not clearly proved to        Clark, White, Douglas; Warren took no part in
have participated in or authorized the two days'         the decision of this case
violence, nor to have ratified it or built its pick-
eting campaign upon the fear of the violence             OPINIONBY:
engendered, the special proof requirements of §              BRENNAN
6 of the Norris-LaGuardia Act were not satis-
fied, and petitioner cannot be held liable to re-
spondent under state law. Pp. 735-742.
                                                            [*717] [***223] [**1134] MR. JUS-
    (a) While the Labor Management Relations             TICE BRENNAN delivered the opinion of the
Act expressly provides that for purposes of that         Court.
Act, including § 303, the union's responsibility
for acts of its members and officers is to be               Respondent Paul Gibbs was awarded com-
measured by ordinary agency standards rather             pensatory and punitive damages in this action
than § 6's more stringent standard of "clear             against petitioner United Mine Workers of
proof," it does not displace § 6 for other pur-          America (UMW) for alleged violations of §
poses and § 6 plainly applies to federal court           303 of the Labor Management Relations Act,
hearings of state tort claims arising out of labor       1947, 61 Stat. 158, as amended, n1 and of the
disputes. Pp. 736-737.                                   common        law        [**1135]          of
   (b) The "clear proof" language of § 6 is
similar to "clear, unequivocal, and convincing
                                                                                                   Page 8
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                                  "(b) It shall be an unfair labor prac-
     [*718] Tennessee. The case grew out of
                                                              tice for a labor organization or its agents
the rivalry between the United Mine Workers
and the Southern Labor Union over representa-
tion of workers in the southern Appalachian                        ....
coal fields.    Tennessee Consolidated Coal                       "(4)(i) to engage in, or to induce or
Company, not a party here, laid off 100 miners                encourage any individual employed by
of the UMW's Local 5881 when it closed one                    any person engaged in commerce or in an
of its mines in southern Tennessee during the                 industry affecting commerce to engage
spring of 1960. Late that summer, Grundy                      in, a strike or a refusal in the course of
Company, a wholly owned subsidiary of Con-                    his employment to use, manufacture,
solidated, hired respondent as mine superinten-               process, transport, or otherwise, handle
dent to attempt to open a new mine on                         or work on any goods, articles, materials,
Consolidated's property at nearby Gray's Creek                or commodities or to perform any ser-
through use of members of the Southern Labor                  vices; or (ii) to threaten, coerce, or re-
Union. [***224] As part of the arrangement,                   strain any person engaged in commerce
Grundy also gave respondent a contract to haul                or in an industry affecting commerce,
the mine's coal to the nearest railroad loading               where in either case an object thereof is -
point.                                                        -
         n1 Section 303 of the Labor Man-                          "(B) forcing or requiring any person
      agement Relations Act, 1947 provides:                   to cease using, selling, handling, trans-
          "(a) It shall be unlawful, for the pur-             porting, or otherwise dealing in the prod-
      pose of this section only, in an industry               ucts of any other producer, processor, or
      or activity affecting commerce, for any                 manufacturer, or to cease doing business
      labor organization to engage in any activ-              with any other person, or forcing or re-
      ity or conduct defined as an unfair labor               quiring any other employer to recognize
      practice in section 158 (b)(4) of this title.           or bargain with a labor organization as
                                                              the representative of his employees un-
          "(b) Whoever shall be injured in his
                                                              less such labor organization has been cer-
      business or property by reason [of] any
                                                              tified as the representative of such em-
      violation of subsection (a) of this section
                                                              ployees under the provisions of section
      may sue therefor in any district court of
                                                              159 of this title: Provided, That nothing
      the United States subject to the limita-
                                                              contained in this clause (B) shall be con-
      tions and provisions of section 185 of
                                                              strued to make unlawful, where not oth-
      this title without respect to the amount in
                                                              erwise unlawful, any primary strike or
      controversy, or in any other court having
                                                              primary picketing . . . ."
      jurisdiction of the parties, and shall re-
      cover the damages by him sustained and
      the cost of the suit." 29 U. S. C. § 187              On August 15 and 16, 1960, armed mem-
      (1964 ed.).                                       bers of Local 5881 forcibly prevented the open-
                                                        ing of the mine, threatening respondent and
          Section 158 (b)(4) of Title 29 U. S.
                                                        beating an organizer for the rival union. n2 The
      C. (1964 ed.), § 8 (b)(4) of the National
                                                        members of the local believed Consolidated
      Labor Relations Act, as amended, 73
      Stat. 542, provides, in relevant part, that:
                                                                                                  Page 9
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                              found that Local 5881 had engaged in
     [*719] had promised them the jobs at the
                                                              coercive picketing in violation of § 8
new mine; they insisted that if anyone would
                                                              (b)(1)(A), 61 Stat. 141, 29 U. S. C. §
do the work, they would. At this time, no rep-
                                                              158 (b)(1)(A) (1964 ed.), Local 5881,
resentative of the UMW, their international un-
                                                              UMWA, 130 N. L. R. B. 1181. The Inter-
ion, was present. George Gilbert, the UMW's
                                                              national itself was not charged in this
field representative for the area including Local
                                                              proceeding, and the Board's considera-
5881, was away at Middlesboro, Kentucky, at-
                                                              tion focused entirely on the events of
tending an Executive Board meeting when the
                                                              August 16.
members of the local discovered Grundy's plan;
n3 he did not return to the area until late in the
day of August 16. There was uncontradicted
testimony that he first learned of the violence                   n3 The only testimony suggesting
while at the meeting, and returned with explicit              that Gilbert might have been at the mine
instructions from his international union supe-               site on August 15-16 was Gibbs' state-
riors to establish a limited picket line, to pre-             ment that "Well, everything happened so
vent any further violence, and to see to it that              fast there, I'm thinking that I seen Mr.
the strike did not spread to neighboring mines.               Gilbert drive up there, but where he
There was no further violence at the mine site;               went, I don't know." Whether such testi-
a picket line was maintained there for nine                   mony could ever be sufficient to estab-
months; and no further attempts were made to                  lish presence we need not decide, since
open the mine during that period. n4                          respondent effectively conceded in the
                                                              Sixth Circuit and here that Gilbert was in
                                                              Middlesboro when the violence occurred.
          n2 These events were also the subject
      of two proceedings before the National                      n4 Immediately after the Board's or-
      Labor Relations Board. In one, the                      der in the proceedings against it, note 2,
      Board found that Consolidated had un-                   supra, Consolidated reopened the mine it
      lawfully assisted the Southern Labor Un-                had closed during the spring of 1960, and
      ion in violation of § 8 (a)(2) of the Na-               hired the men of Local 5881. Later, and
      tional Labor Relations Act, as amended,                 while this litigation was awaiting trial,
      49 Stat. 452, 29 U. S. C. § 158 (a)(2)                  that mine was closed as the result of an
      (1964 ed.), Tennessee Consolidated Coal                 accident. At this point, the fall of 1962,
      Co., 131 N. L. R. B. 536, enforcement                   the Gray's Creek mine was opened using
      denied sub nom. Labor Board v. Tennes-                  members of Local 5881.
      see Consolidated Coal Co., 307 F.2d 374
      (C. A. 6th Cir. 1962). In the other, it
                                                                                                Page 10
                                   383 U.S. 715, *; 86 S. Ct. 1130, **;
                              16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                            tanooga Speedway & Motordrome Co.,
     [*720] Respondent lost his job as superin-
                                                            138 Tenn. 534, 198 S. W. 775 (1917);
tendent, and never entered into performance of
                                                            Dale v. Temple Co., 186 Tenn. 69, 208 S.
his haulage contract. He testified that he soon
                                                            W. 2d 344 (1948).
began to lose other trucking contracts and mine
leases he held in nearby areas. Claiming these
effects to be the result of a concerted union             The trial judge refused to submit to the jury
plan against him, he sought recovery not              the claims of pressure intended to cause mining
against Local 5881 or its members, but only           firms other than Grundy to cease doing busi-
against petitioner, the international union. The      ness with Gibbs; he found those claims unsup-
suit was brought in the United States District        ported by the evidence. The jury's verdict was
Court for the Eastern District of Tennessee, and      that the UMW had violated both § 303 and
jurisdiction was premised on allegations of           state law. Gibbs was awarded $ 60,000 as dam-
secondary boycotts under [**1136] § 303.              ages under the employment contract and $
The state law claim, for which jurisdiction was       14,500 under the haulage contract; he was also
based upon the doctrine of pendent jurisdiction,      awarded $ 100,000 punitive damages. On mo-
asserted "an unlawful conspiracy and an unlaw-        tion, the trial court set aside the award of dam-
ful boycott aimed at him and [Grundy] to mali-        ages with respect to the haulage contract on the
ciously, wantonly and willfully interfere with        ground that damage was unproved. It also held
his contract [***225] of employment and with          that union pressure on Grundy to discharge re-
his contract of haulage." n5                          spondent as supervisor would constitute only a
                                                      primary dispute with Grundy, as respondent's
                                                      employer, and hence was not cognizable as a
         n5 See Dukes v. Brotherhood of               claim under § 303. Interference with the
      Painters, Local No. 437, 191 Tenn. 495,
      235 S. W. 2d 7 (1950); Brumley v. Chat-
                                                                                               Page 11
                                   383 U.S. 715, *; 86 S. Ct. 1130, **;
                              16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

     [*721] employment relationship was cog-
nizable as a state claim, however, and a remit-           A threshold question is whether the District
ted award was sustained on the state law claim.       Court properly entertained jurisdiction of the
n6 220 F.Supp. 871. The Court of Appeals for          claim based on Tennessee law. There was no
the Sixth Circuit affirmed. 343 F.2d 609. We          need to decide a like question in Teamsters Un-
granted certiorari. 382 U.S. 809. We reverse.         ion v. Morton, 377 U.S. 252, since the pertinent
                                                      state claim there was based on peaceful sec-
                                                      ondary activities and we held that state law
          n6 The questions had been submitted         based on such activities had been pre-empted
      to the jury on a special verdict form. The      by § 303. But here respondent's claim is based
      suggested remittitur from $ 60,000 to $         in part on proofs of violence and intimidation.
      30,000 for damages on the employment            "We have allowed the States to grant compen-
      contract and from $ 100,000 to $ 45,000         sation for the consequences, as defined by the
      punitive damages was accepted by re-            traditional law of torts, of conduct marked by
      spondent. In view of our disposition, we        violence and imminent threats to the public or-
      do not reach petitioner's contentions that      der. United Automobile Workers v. Russell,
      the verdict must be set aside in toto for       356 U.S. 634; United Construction Workers v.
      prejudicial summation by respondent's           Laburnum Corp., 347 U.S. 656. . . . State ju-
      counsel, or because the actual damages          risdiction has prevailed in these situations be-
      awarded substantially exceeded the              cause the compelling state interest, in the
      proof, and the punitive damage award            scheme of our federalism, in the maintenance
      may have rested in part on the award of         of domestic peace is not overridden in the ab-
      actual damages for interference with the        sence of clearly expressed congressional direc-
      haulage contract, which was vacated as          tion." San Diego Building Trades Council v.
      unproved.                                       Garmon, 359 U.S. 236, 247.
                                                                                                Page 12
                                   383 U.S. 715, *; 86 S. Ct. 1130, **;
                              16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                      where two separate and distinct causes of ac-
                                                      tion are alleged, one only of which is federal in
                                                      character. In the former, where the federal
 [***HR1] The fact that state remedies were
                                                      question averred is not plainly wanting in sub-
not entirely pre-empted does not, however, an-
                                                      stance, the federal court, even though the feder-
swer the question whether the state claim was
                                                      al ground be not established, may nevertheless
properly adjudicated in the District Court ab-
                                                      retain and dispose of the case upon the non-
sent diversity jurisdiction. The Court held in
                                                      federal ground; in the latter it may not do so
Hurn v. Oursler, 289 U.S. 238, [***226] that
                                                      upon the non-federal cause of action." 289
state law claims are appropriate for federal
                                                      U.S., at 246. The question is into which catego-
court determination if they form a [**1137]
                                                      ry the present action fell.
separate but parallel ground for relief also
sought in a substantial claim based on federal             Hurn was decided in 1933, before the unifi-
law. The Court distinguished permissible from         cation of law and equity by the Federal Rules
nonpermissible exercises of federal judicial          of Civil Procedure. At the time, the meaning of
power over state law claims by contrasting "a         "cause of action" was a subject of serious dis-
case where two distinct grounds in support of a       pute; n7 the phrase might "mean one thing for
single cause of action are alleged, one only of       one purpose and something different for anoth-
which presents a federal question, and a case         er."
                                                                                                   Page 13
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                        or the other of several distinct acts of alleged
     [*723] United States v. Memphis Cotton
                                                        negligence or to a combination of some or all
Oil Co., 288 U.S. 62, 67-68. n8 The Court in
                                                        of them. In either view, there would be but a
Hurn identified what it meant by the term by
                                                        single wrongful invasion of a single primary
citation of Baltimore S. S. Co. v. Phillips, 274
                                                        right of the plaintiff, namely, the right of bodily
U.S. 316, a case in which "cause of action" had
                                                        safety, whether the acts constituting such inva-
been used to identify the operative scope of the
                                                        sion were one or many, simple or complex.
doctrine of res judicata. In that case the Court
had noted that "'the whole tendency of our de-               "A cause of action does not consist of facts,
cisions is to require a plaintiff to try his whole      but of the unlawful violation of a right which
cause of action and his whole case at one               the facts show. The number and variety of the
time.'" 274 U.S., at 320. It stated its holding in      facts alleged do not establish more than one
the following language, quoted in part in the           cause of action so long as their result, whether
Hurn opinion:                                           they be considered severally or in combination,
                                                        is the violation of but one [***227] right by a
                                                        single legal wrong. The mere multiplication of
                                                        grounds of negligence alleged as causing the
"Upon principle, it is perfectly plain that the
                                                        same injury does not result in multiplying the
respondent [a seaman suing for an injury sus-
                                                        causes of action. 'The facts are merely the
tained while working aboard ship] suffered but
one actionable wrong and was entitled to but
one recovery, whether his injury was due to one
                                                                                                   Page 14
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                        Fed. Rule Civ. Proc. 2, much of the controversy
     [*724] and not the end. They do not con-
                                                        over "cause of action" abated. The phrase re-
stitute the cause of action, but they show its
                                                        mained as the keystone of the Hurn test, how-
existence by making the wrong appear.'" Id., at
                                                        ever, and, as commentators have noted, n9 has
                                                        been the source of considerable confusion.
                                                        Under the Rules, the impulse is toward enter-
Had the Court found a jurisdictional bar to
                                                        taining the broadest possible scope of action
reaching the state claim in Hurn, we [**1138]
                                                        consistent with fairness to the parties; joinder
assume that the doctrine of res judicata would
                                                        of claims, parties and remedies is strongly en-
not have been applicable in any subsequent
                                                        couraged. n10 Yet because the Hurn question
state suit. But the citation of Baltimore S. S.
                                                        involves issues of jurisdiction as well as con-
Co. shows that the Court found that the weighty
                                                        venience, there has been some tendency to limit
policies of judicial economy and fairness to
                                                        its application to cases in which the state and
parties reflected in res judicata doctrine were in
themselves strong counsel for the adoption of a         federal claims are, as in Hurn, "little more than
                                                        the equivalent of different epithets to character-
rule which would permit federal courts to dis-
                                                        ize the same group of circumstances." 289
pose of the state as well as the federal claims.
                                                        U.S., at 246. n11

          n7 See Clark on Code Pleading 75 et
      seq. (1928); Clark, The Code Cause of                       n9 Shulman & Jaegerman, Some Ju-
      Action, 33 Yale L. J. 817 (1924);                       risdictional Limitations on Federal Pro-
      McCaskill, Actions and Causes of Ac-                    cedure, 45 Yale L. J. 393, 397-410
      tions, 34 Yale L. J. 614 (1925);                        (1936); Wechsler, Federal Jurisdiction
      McCaskill, One Form of Civil Action,                    and the Revision of the Judicial Code, 13
      But What Procedure, for the Federal                     Law & Contemp. Prob. 216, 232 (1948);
      Courts, 30 Ill. L. Rev. 415 (1935); Gavit,              Barron & Holtzoff, Federal Practice and
      A "Pragmatic Definition" of the "Cause                  Procedure § 23 (1965 Supp.).
      of Action"? 82 U. Pa. L. Rev. 129
      (1933); Clark, The Cause of Action, id.,
      at 354 (1934); Gavit, The Cause of Ac-
      tion -- a Reply, id., at 695 (1934).                        n10 See, e. g., Fed. Rules Civ. Proc.
                                                              2, 18- 20, 42.
          n8 See also American Fire & Cas.
      Co. v. Finn, 341 U.S. 6, 12; Musher                         n11 E. g., Musher Foundation v. Al-
      Foundation, Inc. v. Alba Trading Co.,                   ba Trading Co., supra; Note, The Evolu-
      127 F.2d 9, 12 (C. A. 2d Cir. 1942) (dis-               tion and Scope of the Doctrine of Pen-
      senting opinion of Clark, J.).                          dent Jurisdiction in the Federal Courts,
                                                              62 Col. L. Rev. 1018, 1029-1030 (1962).
   With the adoption of the Federal Rules of
Civil Procedure and the unified form of action,
                                                                                                        Page 15
                                      383 U.S. 715, *; 86 S. Ct. 1130, **;
                                 16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                               presented, Gully v. First National Bank,
                                                               299 U.S. 109, although the issue whether
                                                               a claim for relief qualifies as a case "aris-
 [***HR2] [***HR3A] This limited approach
                                                               ing under . . . the Laws of the United
is unnecessarily grudging. Pendent jurisdic-
                                                               States" and the issue whether federal and
tion, in the sense of judicial power, exists
                                                               state claims constitute one "case" for
whenever there is a claim "arising under [the]
                                                               pendent jurisdiction purposes may often
Constitution, the Laws of the United States, and
                                                               appear together, see Dann v. Studebaker-
Treaties made, or which shall be made, under
                                                               Packard Corp., 288 F.2d 201, 211-215
their Authority . . . ," U.S. Const., Art. III, § 2,
                                                               (C. A. 6th Cir. 1961); Borak v. J. I. Case
and the relationship between that claim and the
                                                               Co., 317 F.2d 838, 847-848 (C. A. 7th
state claim permits the conclusion that the en-
                                                               Cir. 1963), aff'd on other grounds, 377
tire action before the court comprises but one
                                                               U.S. 426.
constitutional "case." n12 The federal claim
must have substance sufficient to confer subject
matter jurisdiction on the court. Levering &
Garrigues Co. v. Morrin, 289 U.S. 103.                   [***HR3B]
[***228] The state and federal claims must
derive from a common nucleus of operative                      n13 Cf. Armstrong Co. v. Nu-Enamel
fact. But if, considered without regard to their               Corp., 305 U.S. 315, 325. Note, Prob-
federal or state character, a plaintiff's claims are           lems of Parallel State and Federal Reme-
such that he would ordinarily be expected to try               dies, 71 Harv. L. Rev. 513, 514 (1958).
them all in one judicial proceeding, then, as-                 While it is commonplace that the Federal
suming substantiality of the federal issues,                   Rules of Civil Procedure do not expand
there is power in federal courts to hear the                   the jurisdiction of federal courts, they do
whole. n13                                                     embody "the whole tendency of our deci-
                                                               sions . . . to require a plaintiff to try his . .
                                                               . whole case at one time," Baltimore S. S.
          n12 The question whether joined
                                                               Co. v. Phillips, supra, and to that extent
      state and federal claims constitute one
                                                               emphasize the basis of pendent jurisdic-
      "case" for jurisdictional purposes is to be
      distinguished from the often equally dif-
      ficult inquiry whether any "case" at all is
                                                                                                     Page 16
                                       383 U.S. 715, *; 86 S. Ct. 1130, **;
                                  16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                          law should be avoided both as a matter of
                                                          comity and to promote justice between the par-
                                                          ties, by procuring for them a surer-footed read-
 [***HR4] [***HR5] [***HR6] [***HR7]
                                                          ing of applicable law. n15 Certainly, if the fed-
That [**1139] power need not be exercised in
                                                          eral claims are dismissed before trial, even
every case in which it is found to exist. It has
                                                          though not insubstantial in a jurisdictional
consistently been recognized that pendent ju-
                                                          sense, the state claims should be dismissed as
risdiction is a doctrine of discretion, not of
                                                          well. n16 Similarly, if it appears that the state
plaintiff's right. n14 Its justification lies in con-
                                                          issues substantially predominate, whether in
siderations of judicial economy, convenience
                                                          terms of proof, of the scope of the issues raised,
and fairness to litigants; if these are not present
                                                          or of the comprehensiveness of the remedy
a federal court should hesitate to exercise juris-
                                                          sought, the state claims may be dismissed
diction over state claims, even though bound to
                                                          without               prejudice               and
apply state law to them, Erie R. Co. v. Tomp-
kins, 304 U.S. 64. Needless decisions of state
                                                                                                 Page 17
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*727] left for resolution to state tribunals.              to hold on to the determination of issues
There may, on the other hand, be situations in               that might be more appropriately left to
which the state claim is so closely tied to ques-            settlement in state court litigation," at
tions of federal policy that the argument for                433. See also Wechsler, supra, note 9, at
exercise of pendent jurisdiction is particularly             232-233; Note, 74 Harv. L. Rev. 1660,
strong. In the present case, for example, the                1661 (1961); Note, supra, note 11, at
allowable scope of the state claim implicates                1043-1044.
the federal doctrine of pre-emption; while this
interrelationship does not create statutory fed-
eral question jurisdiction, Louisville & N. R.
Co. v. Mottley, 211 U.S. 149, its existence is                   n16 Note, supra, note 11, at 1025-
relevant to the exercise of discretion. Finally,             1026; Wham-O-Mfg. Co. v. Paradise
there may be reasons independent of jurisdic-                Mfg. Co., 327 F.2d 748, 752-754 (C. A.
tional considerations, such as the likelihood of             9th Cir. 1964).
jury confusion in treating divergent legal theo-
ries of relief, that would justify separating
[***229] state and federal claims for trial, Fed.
Rule Civ. Proc. 42 (b). If so, jurisdiction             [***HR8] The question of power will ordinar-
should ordinarily be refused.                          ily be resolved on the pleadings. But the issue
                                                       whether pendent jurisdiction has been properly
          n14 Massachusetts Universalist Con-          assumed is one which remains open throughout
      vention v. Hildreth & Rogers Co., 183            the litigation. Pretrial procedures or even the
      F.2d 497 (C. A. 1st Cir. 1950);                  trial itself may reveal a substantial hegemony
      Moynahan v. Pari-Mutuel Employees                of state law claims, or likelihood of jury confu-
      Guild, 317 F.2d 209, 211-212 (C. A. 9th          sion, which could not have been anticipated at
      Cir. 1963); op. cit. supra, notes 9 and 11.      the pleading stage. Although it will of course
                                                       be appropriate to take account in this circum-
                                                       stance of the already completed course of the
          n15 Some have seen this considera-           litigation, dismissal of the state claim might
      tion as the principal argument against ex-       even then be merited. For example, it may ap-
      ercise of pendent jurisdiction. Thus, be-        pear that the plaintiff was well aware of the na-
      fore Erie, it was remarked that "the limi-       ture of his proofs and the relative importance of
      tations [on pendent jurisdiction] are in         his claims; recognition of a federal court's wide
      the wise discretion of the courts to be          latitude to [**1140] decide ancillary questions
      fixed in individual cases by the exercise        of state law does not imply that it must tolerate
      of that statesmanship which is required          a litigant's effort to impose upon it what is in
      of any arbiter of the relations of states to     effect only a state law case. Once it appears
      nation in a federal system." Shulman &           that a state claim constitutes the real body of a
      Jaegerman, supra, note 9, at 408. In his         case, to which the federal claim is only an ap-
      oft-cited concurrence in Strachman v.            pendage, the state claim may fairly be dis-
      Palmer, 177 F.2d 427, 431 (C. A. 1st Cir.        missed.
      1949), Judge Magruder counseled that
      "federal courts should not be overeager
                                                                                                 Page 18
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                       recovery could not be given separately on the
                                                       federal and state claims.
 [***HR9] We are not prepared to say that in
                                                        [***HR10] [***HR11] It is true that the §
the present case the District Court exceeded its
                                                       303 claims ultimately failed and that the only
discretion in proceeding to judgment on the
                                                       recovery allowed respondent was on the state
state claim. We may assume for purposes of
                                                       claim. We cannot confidently say, however,
decision that the District Court was correct in
                                                       that the federal issues were so remote or played
its holding that the claim of pressure on Grundy
                                                       such a minor role at the trial that in effect the
to terminate the employment contract was out-
                                                       state claim only was tried. Although the Dis-
side the purview of § 303. Even so, the § 303
                                                       trict Court dismissed as unproved the § 303
claims based on secondary pressures on Grun-
                                                       claims that petitioner's secondary activities in-
dy relative to the haulage contract and on other
                                                       cluded attempts to induce coal operators other
coal operators generally were substantial. Alt-
hough § 303 limited recovery to compensatory           than Grundy to cease doing business with re-
                                                       spondent, the court submitted the § 303 claims
damages based on secondary pressures, Team-
                                                       relating to Grundy to the jury. The jury re-
sters Union v. Morton, supra, and state law al-
                                                       turned verdicts against petitioner on those §
lowed both compensatory and punitive damag-
                                                       303 claims, and it was only on petitioner's mo-
es, and allowed such damages as to both sec-
                                                       tion for a directed verdict and a judgment n. o.
ondary and primary activity, the state and fed-
                                                       v. that the verdicts on those claims were set
eral claims arose from the same nucleus of op-
                                                       aside. The District Judge considered the claim
erative fact and reflected alternative remedies.
                                                       as            to           the           haulage
Indeed, the verdict sheet sent in to the jury au-
thorized only one award of damages, so that
                                                                                                Page 19
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*729] contract proved as to liability, and held       [***HR12] This Court has consistently recog-
it failed only for lack of proof of damages.           nized the right of States to deal with violence
Although there was some risk of confusing the          and threats of violence appearing in labor dis-
jury in joining the state and federal claims --        putes, sustaining a variety of remedial measures
especially since, as will be developed, differing      against the contention that state law was pre-
standards of proof of UMW involvement ap-              empted by the passage of federal labor legisla-
plied -- the possibility of confusion could be         tion. Allen-Bradley Local v. Wisconsin Board,
lessened by employing a special verdict form,          315 U.S. 740; United Construction Workers v.
as the District Court did. Moreover, the ques-         Laburnum Construction Corp., 347 U.S. 656;
tion whether [***230] the permissible scope            United Automobile Workers v. Wisconsin
of the state claim was limited by the doctrine of      Board, 351 U.S. 266; Youngdahl v. Rainfair,
pre-emption afforded a special reason for the          Inc., 355 U.S. 131; United Automobile Workers
exercise of pendent jurisdiction; the federal          v. Russell, 356 U.S. 634. [**1141] Petitioner
courts are particularly appropriate bodies for         concedes the principle, but argues that the per-
the application of pre-emption principles. We          missible scope of state remedies in this area is
thus conclude that although it may be that the         strictly confined to the direct consequences of
District Court might, in its sound discretion,         such conduct, and does not include conse-
have dismissed the state claim, the circum-            quences resulting from associated peaceful
stances show no error in refusing to do so.            picketing or other union activity. We agree.
   II.                                                     Our opinions on this subject, frequently an-
                                                       nounced over weighty arguments in dissent that
                                                       state                                  remedies
                                                                                                  Page 20
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

      [*730] were being given too broad scope,
                                                        In Russell, we specifically observed that the
have approved only remedies carefully limited
                                                        jury had been charged that to award damages it
to the protection of the compelling state interest
                                                        must find a proximate relation between the vio-
in the maintenance of domestic peace. Thus, in
                                                        lence and threats of force and violence com-
San Diego Building Trades Council v. Garmon,
                                                        plained of, on the one hand, and the loss of
359 U.S. 236, we read our prior decisions as
                                                        wages allegedly suffered, on the other. 356
only allowing "the States to grant compensation
                                                        U.S., at 638, n. 3. In the two Wisconsin Board
for the consequences, as defined by the tradi-
                                                        cases it was noted that the State's administra-
tional law of torts, of conduct marked by vio-
                                                        tive-injunctive relief was limited to prohibition
lence and imminent threats to the public order,"
                                                        against continuation of the unlawful picketing,
id., at 247, and noted that in Laburnum
                                                        not all picketing. 315 U.S., at 748; 351 U.S., at
                                                        269-270, n. 3. And in Youngdahl, the Court
                                                        held that a state court injunction which would
"damages were restricted to the 'damages di-            have prohibited all picketing must be modified
rectly and proximately caused by wrongful               to permit peaceful picketing of the premises.
conduct chargeable to the defendants . . .' as          We said, "though the state court was within its
defined by the traditional law of torts. . . . Thus     discretionary power in enjoining future acts of
there is nothing in the measure of damages to           violence, intimidation and threats of violence
indicate that state power was exerted to com-           [***231] by the strikers and the union, yet it is
pensate for anything more than the direct con-          equally clear that such court entered the pre-
sequences of the violent conduct." Id., 248, n.         empted                                   domain
6, at 249.
                                                                                                  Page 21
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*731] of the National Labor Relations Board           and repeated acts of violence -- "a pattern of
insofar as it enjoined peaceful picketing . . . ."      violence . . . which would inevitably reappear
355 U.S., at 139. n17                                   in the event picketing were later resumed." The
                                                        Court in Meadowmoor had stated the question
                                                        presented as "whether a state can choose to au-
          n17 In Teamsters Union v. Morton,
                                                        thorize its courts to enjoin acts of picketing in
      supra, a similar analysis was applied to
                                                        themselves peaceful when they are enmeshed
      permit recovery under § 303 of damages
                                                        with contemporaneously violent conduct which
      suffered during a strike characterized by
                                                        is concededly [**1142] outlawed," 312 U.S.,
      proscribed secondary activity only to the
                                                        at 292, and had reasoned that
      extent that the damages claimed were the
      proximate result of such activity; damag-
      es for associated primary strike activity
      could not be recovered.                           "acts which in isolation are peaceful may be
                                                        part of a coercive thrust when entangled with
                                                        acts of violence. The picketing in this case was
    It is true that in Milk Wagon Drivers Union
                                                        set in a background of violence. In such a set-
v. Meadowmoor Dairies, 312 U.S. 287, the
                                                        ting it could justifiably be concluded that the
Court approved sweeping state injunctive relief
                                                        momentum of fear generated by past violence
barring any future picketing in a labor dispute,
                                                        would survive even though future picketing
whether peaceful or not. That case, however,
                                                        might be wholly peaceful." Id., at 294.
was decided only on a constitutional claim of
freedom of speech. We did not consider the
                                                        Such special facts, if they appeared in an action
impact of federal labor policy on state regulato-
                                                        for damages after picketing marred by violence
ry power. Moreover, as we recognized in
                                                        had                                     occurred,
Youngdahl, supra, at 139, the case was decided
in the context of a strike marked by extreme
                                                                                                   Page 22
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*732] might support the conclusion that all          state tort law within these narrow bounds oc-
damages resulting from the picketing were              curred during the first two days of the strike. It
proximately caused by its violent component or         is a separate issue, however, whether the plead-
by the fear which that violence engendered.            ings, the arguments of counsel to the jury, or
n18 Where the consequences of peaceful and             the instructions to the jury adequately defined
violent conduct are separable, however, it is          the compass within which damages could be
clear that recovery may be had only for the lat-       awarded under state law. The tort claimed was,
ter.                                                   in essence, a "conspiracy" to interfere with
                                                       Gibbs' contractual relations. The tort of "con-
                                                       spiracy" is poorly defined, and highly suscepti-
          n18 It would of course be relevant if
                                                       ble to judicial expansion; its relatively brief his-
      the Board had already intervened and as
                                                       tory is colored by use as a weapon against the
      here, note 2, supra, issued an order
                                                       developing labor movement. n19 Indeed, a
      which permitted the continuance of
      peaceful picketing activity.                     reading [***232] of the record in this case
                                                       gives the impression that the notion of "con-
                                                       spiracy" was employed here to expand the ap-
    In the present case, petitioner concedes that      plication     of    state    law      substantially
violence which would justify application of
                                                                                                   Page 23
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                        it would not have been relevant that the union
   [*733] beyond the limits to be observed in
                                                        had not actually authorized, participated in or
showing direct union involvement in violence.
                                                        ratified the particular violence involved or even
                                                        the general use of violence. It would only be
          n19 On the flexibility of "conspiracy"        necessary to show a conspiracy in which the
      as a tort, see Original Ballet Russe, Ltd.        union had a part, and to show also that those
      v. Ballet Theatre, Inc., 133 F.2d 187, 189        who engaged in the violence were members of
      (C. A. 2d Cir. 1943); Riley v. Dun &              the conspiracy and their acts were related to the
      Bradstreet, Inc., 195 F.2d 812 (C. A. 6th         conspiracy's purpose. n21
      Cir. 1952); Charlesworth, Conspiracy as
      a Ground of Liability in Tort, 36 L. Q.
                                                                 n20 Respondent's attorney argued in
      Rev. 38 (1920); Burdick, Conspiracy as a
      Crime, and as a Tort, 7 Col. L. Rev. 229
      (1907); Burdick, The Tort of Conspiracy,                    ". . . and here is the conspiracy. Mr.
      8 Col. L. Rev. 117 (1908). The anti-labor               Pass [an official of petitioner's] testified,
      uses of the doctrine are well illustrated in            we want that contract all over this nation.
      Sayre, Labor and the Courts, 39 Yale L.                 That contract or better. I don't guess at
      J. 682, 684-687 (1930). Similar dangers                 that, there is his testimony. There is no
      are presented by the tort of malicious in-              deviation from that contract, Mr.
      terference with contract, id., at 691-695,              Turnblazer so says, unless it is approved
      a doctrine equally young which in its ori-              in Washington. They impose a nation-
      gins required a showing of interference                 wide contract all over this nation, all
      by force, threats, or fraud, but does so no             over. I don't care whether it is in Canada
      more, Sayre, Inducing Breach of Con-                    or West Virginia or California or Ten-
      tract, 36 Harv. L. Rev. 663 (1923);                     nessee."
      Comment, 56 Nw. U. L. Rev. 391

                                                                   n21 Note 5, supra.
    Thus, respondent's complaint alleged "an
unlawful conspiracy and an unlawful boycott . .
. to maliciously, wantonly and willfully inter-             The instructions to the jury also appear not
fere with his contract of employment and with           to have kept the conspiracy concept within any
his contract of haulage." No limitation to inter-       proper bounds. The charge instructed the jury
ference by violence appears. Similarly, counsel         separately on the § 303 and conspiracy claims,
in arguing to the jury asserted, not that the con-      characterizing each as predicated on an asser-
spiracy in which the union had allegedly partic-        tion that there had been "unlawful" picketing
ipated and from which its liability could be in-        action, and distinguishing one from the other
ferred was a conspiracy of violence but that it         on the basis that in the conspiracy claim "the
was a conspiracy to impose the UMW and the              lawfulness of the means rather than the lawful-
UMW's standard contract on the coal fields of           ness of the object or the purpose
Tennessee. n20 Under the state [**1143] law,
                                                                                                    Page 24
                                      383 U.S. 715, *; 86 S. Ct. 1130, **;
                                 16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                         existence [***233] of a conspiracy that the
      [*734] of the picketing . . . is controlling."
                                                         agreement between the conspirators be formal-
But in charging the conspiracy claim, the court
                                                         ly made between the parties at any one time, if,
stressed that the "unlawfulness" of the picket-
                                                         for example, two persons agreed to pursue an
ing, rather than violence as such, would be con-
                                                         unlawful purpose or pursue a lawful purpose by
trolling. Thus, in characterizing respondent's
                                                         unlawful means, then later a third person with
claim of a conspiracy intentionally to interfere
                                                         knowledge of the existence of the conspiracy
with his contractual relations with Grundy, the
                                                         assents to it either impliedly or expressly and
trial judge said respondent asserted the interfer-
                                                         participates in it, then all three are conspirators
ence to be "wrongful in that it was accom-
                                                         in the same conspiracy. . . . All that is required
plished by unlawful means, including violence
                                                         is that each party to the conspiracy know of the
and threats of violence." Turning to the ques-
                                                         existence of the conspiracy and that each agrees
tion of the international union's responsibility,
                                                         to assist in some manner in the furtherance of
he said this depended on a showing that it "was
a party to a conspiracy pursuant to which the            the unlawful purpose . . . or any unlawful
                                                         means of accomplishing an unlawful purpose."
interference was committed." He defined con-
spiracy as
                                                         The trial judge then charged, in accordance
                                                         with the Tennessee common law on conspiracy,
                                                         n22 that the union, if a member of a conspiracy,
"an agreement between two or more . . . to do            would be liable for all acts "done in concert . . .
an unlawful thing, or to do a lawful thing by            with the common purpose, and to effect
unlawful means. . . . It is not essential to the
                                                                                                    Page 25
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*735] a common design," whether or not it                 "No officer or member of any association
had authorized, participated in, or ratified the        or organization, and no association or organiza-
particular acts. The jury was told it might             tion participating or interested [**1144] in a
award "only such damages as . . . he has sus-           labor dispute, shall be held responsible or liable
tained as a proximate and direct result of the          in any court of the United States for the unlaw-
action of the defendant," and that "no award of         ful acts of individual officers, members, or
damages can be made . . . on the basis of losses        agents, except upon clear proof of actual partic-
sustained . . . as a result of lawful activity upon     ipation in, or actual authorization of, such acts,
the part of the defendant or its agents." Such          or of ratification of such acts after actual
instructions do not focus the jury's attention          knowledge thereof."
upon violence or threats of violence as the es-
sential predicate of any recovery it might              Petitioner vigorously contends that § 6 applied
award.                                                  to the state claims in this case; that, on this rec-
                                                        ord, it cannot be charged with having partici-
                                                        pated in or authorized the violence of August
          n22 Ibid.
                                                        15-16; and that its acts once it learned of the
                                                        violence fell short of what would be necessary
   III.                                                 to show either ratification of the violence or
    Even assuming the conspiracy concept                any intent to build its picketing campaign upon
could be and was kept within limits proper to           the fears the violence engendered. We agree.
the application of state tort law under the pre-
emption doctrine, reversal is nevertheless re-                   n23 47 Stat. 71, 29 U. S. C. § 106
quired here for failure to meet the special proof             (1964 ed.).
requirements imposed by § 6 of the Norris-
LaGuardia Act: n23
                                                                                                 Page 26
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

     [*736] We held in Brotherhood of Car-
                                                        [***HR13] [***HR14] Shortly thereafter,
penters v. United States, 330 U.S. 395, 403,
                                                       Congress passed the Labor Management Rela-
                                                       tions Act, which expressly provides that for the
                                                       purposes of that statute, including § 303, the
                                                       responsibility of a union for the acts of its
"whether § 6 should be called a rule of evi-           members and officers is to be measured by ref-
dence or one that changes the substantive law          erence to ordinary doctrines of agency, rather
of agency . . . its purpose and effect was to re-      than the more stringent standards of § 6. n24
lieve organizations . . . and members of those         Yet although the legislative history indicates
organizations from liability for damages or im-        that Congress was well aware of the Carpenters
putation of guilt for lawless acts done in labor       decision, n25 it did not repeal § 6 outright, but
disputes by some individual officers or mem-           left it applicable to cases not arising under the
bers of the organization, without clear proof          new Act. This selectivity is not surprising, for
that the organization or member charged with           on state claims, though not on § 303 claims,
responsibility for the offense actually partici-       punitive damages may be recovered. The driv-
pated, gave prior authorization, or ratified such      ing force behind § 6 n26 and the opposition to
acts [***234] after actual knowledge of their          § 303, even in its limited form, n27 was the
perpetration."                                         fear that unions might be destroyed
                                                                                                   Page 27
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*737] if they could be held liable for damage              members, or agents" of the organization.
done by acts beyond their practical control.                 Since the local was not a party here, we
Plainly, § 6 applies to federal court adjudica-              have no occasion to assess this issue. Li-
tions of state tort claims arising out of labor              ability of the international union is prem-
disputes, whether or not they are associated                 ised on the acts of Gilbert and the
with claims under § 303 to which the section                 UMW's other agents, or not at all.
does not apply. n28
          n24 National Labor Relations Act, as
      amended, § 2 (13), 61 Stat. 139, 29 U. S.         [***HR15] Although the statute does not de-
      C. § 152 (13) (1964 ed.); Labor Man-             fine "clear proof," its history and rationale sug-
      agement Relations Act, 1947, § § 301             gest that Congress meant at least to signify a
      (e), 303 (b), 61 Stat. 157, 159, 29 U. S.        meaning like that commonly accorded such
      C. § § 185 (e), 187 (b) (1964 ed.).              similar phrases as "clear, unequivocal, and
                                                       convincing proof." Under this standard, the
         n25 See, e. g., S. Rep. No. 105, 80th
                                                       plaintiff in a civil case is not required to satisfy
      Cong., 1st Sess., p. 21.
                                                       the criminal standard of reasonable doubt on
          n26 The fullest statement of the basis       the issue of participation, authorization or rati-
      for § 6 appears in S. Rep. No. 163, 72d          fication; neither may he prevail by meeting the
      Cong., 1st Sess., pp. 19-21.                     ordinary civil burden of persuasion. He is re-
          n27 The present § 303 was intro-             quired to persuade by a substantial margin, to
      duced on the floor of the Senate by Sena-        come forward with "more than a bare prepon-
      tor Taft, in response to a more severe           derance of the evidence to prevail."
      proposal which would have permitted in-          Schneiderman v. United States, 320 U.S. 118,
      junctive relief as well as damages against       125. In our view, that burden was not met. n29
      secondary activity. 93 Cong. Rec. 4769-
      4770, 4833-4847, 4858-4875 (1947).                         n29 In charging the jury, the trial
      The tenor of the opposition may be seen                judge first instructed the jury at length
      in those pages, and also at 93 Cong. Rec.              that the plaintiff's burden was to prove
      4765-4766 (remarks of Senator Thomas);                 his case by a preponderance of the evi-
      93 Cong. Rec. 6451-6452 (remarks of                    dence, and that "if the plaintiff carries the
      Senator Morse); 93 Cong. Rec. 6520-                    burden of proof by a preponderance of
      6521 (remarks of Senator Pepper).                      the evidence, however slight that pre-
                                                             ponderance might be, he has done all that
                                                             is required of him and is entitled to a
                                                             verdict." In connection with substantive
          n28 The argument might be made                     discussion of the state claim, he then re-
      that if there were "clear proof" that the              marked:
      local union was responsible, the respon-
      sibility of the international union vis-a-             "Before the defendant may be held re-
      vis its local would be governed by a less              sponsible for the acts of its agents in en-
      demanding standard than that applicable                tering into a conspiracy during the course
      for determining the responsibility of a la-            of a labor dispute, there must be clear
      bor organization or its officers on the ba-            proof that the particular conspiracy
      sis of the acts of "individual officers,               charged or the act generally of that nature
                                                                                        Page 28
                              383 U.S. 715, *; 86 S. Ct. 1130, **;
                         16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

had been expressly authorized or neces-                not understand the phrase or completely
sarily followed from a granted authority               overlooked it in the context of the
by the defendant, or that such conspiracy              lengthy charge given. No challenge is
was subsequently ratified by the defend-               directly made to the charge, however,
ant after actual knowledge thereof."                   and it does not appear whether an objec-
                                                       tion was entered. Accordingly, we do
The phrase "clear proof," referred to just             not rest judgment on this point.
this once, was never explained. The pos-
sibility is strong that the jury either did
                                                                                                   Page 29
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                        [first two days' violence]." This view accurately
                                                        reflects the state of the record. Petitioner was
                                                        not even aware of Grundy's plan to open the
 [***HR16] At [***235] the outset, it is clear
                                                        Gray's Creek mine until after the violence had
that the requisite showing was not made as to
possible union authorization of or participation
in the violence of August 15 and 16. Although
                                                         [***HR17] The remaining issue is whether
it is undoubtedly true that the officers and
                                                        there was clear proof that the union ratified the
members of Local 5881 were present in force at
                                                        violence which had occurred. Preliminarily,
the mine site on those days, neither the Local
                                                        we note that it would be inconsistent with the
nor they are parties to this suit. Mr. Gilbert, the
                                                        fabric of national labor policy to infer ratifica-
UMW representative, had left the area for a
                                                        tion from the mere fact that petitioner involved
business meeting before the series of events
                                                        itself in the dispute after the violence had oc-
culminating in the violence, and immediately
upon his return, the violence subsided. The             curred, or from the fact that it carried on some
                                                        normal union functions, such as provision of
Sixth Circuit conceded that "the proofs were
                                                        strike relief.     A union would ordinarily
sketchy as to defendant's responsibility for the
                                                                                                 Page 30
                                   383 U.S. 715, *; 86 S. Ct. 1130, **;
                              16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*739] undertake these tasks during the course       required is proof, either that the union approved
of a lawful strike. National labor policy re-         the violence which occurred, or that it partici-
quires that national unions be encouraged to          pated actively or by knowing tolerance in fur-
exercise a restraining influence on explosive         ther acts which were in themselves actionable
strike situations; and when they seek to do so,       under state law or intentionally drew upon the
they should not for these activities be made to       previous violence for their force.
risk liability for such harm as may already have          The record here is persuasive that the peti-
been done. The fact that ripples of the earlier       tioner did what it could to stop or curtail the
violence may still be felt should not be permit-      violence.     There      was     repeated     and
ted, and under § 6 is not permitted, to impose        uncontradicted testimony that when news of the
such liability. Because the dispute which             violence reached the meeting that Gilbert was
sparked the violence will often continue, the
                                                      attending, he was given firm instructions to re-
union will feel a responsibility to take up the       turn to the scene, to assume control of the
dispute as well as to curb its excesses. There        strike, to suppress violence, to limit the size of
can be no rigid requirement that a union af-          the picket line, and to assure that no other area
firmatively disavow such unlawful acts as may         mines        were      affected.     n30       He
previously have occurred. Cf. [**1146]
ILGWU v. Labor Board, 237 F.2d 545. What is
                                                                                                  Page 31
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                             stopped to ask how he might get to an-
     [*740] succeeded. Although the day after
                                                             other mine. Gilbert was present among
his return two [***236] Consolidated officers
                                                             the picketers, and gave him instructions.
were harassed by a large and unruly mob in a
                                                             Gilbert told the salesman that he "could-
nearby town, this incident was unrelated to re-
                                                             n't get through" the road chosen, and
spondent, and was not repeated. There was no
                                                             should approach by another route; he
further violence at the mine site, and the num-
                                                             said the salesman should tell any union
ber of pickets was reduced to a very few. Other
                                                             men he met that he had spoken to Gil-
mines in the immediate area, including two
                                                             bert. A sinister cast can be put on this
worked on lease by Gibbs, continued to oper-
                                                             incident, but it shows clearly only that
ate, although strenuous effort was required to
                                                             Gilbert was in control of the strike and
accomplish this; one union official testified, "I
                                                             that operations unrelated to Gray's Creek
thought I was going to get whipped two or
                                                             were not being interfered with. It is sig-
three times [by members of the Local who op-
posed this policy]." n31                                     nificant that the salesman did not claim
                                                             to have been stopped by force or threat-
                                                             ened in any way; it appears he did no
          n30 Other international union per-                 more than seek directions, and received
      sonnel were also later sent, perhaps in                no more in return.
      part because the union wanted to put its
      best foot forward in the NLRB proceed-               To be sure, there was testimony that Gilbert
      ings, note 2, supra, which ensued. One           and, through him, the international union were
      such person testified,                           not pleased with respondent's role in the abor-
                                                       tive venture to open the Gray's Creek mines
      ". . . I explained to them that the labor        with members of the Southern Labor Union. A
      board was there investigating and that           company officer testified that when the mines
      certainly any mass picketing would only          finally opened respondent was not hired, be-
      cause them a great deal of trouble, and          cause "Had I hired Mr. Paul Gibbs none of the-
      instructed them that they should limit the       se mines would be open today." Respondent
      number of their pickets and under no cir-        testified that Gilbert had told him, shortly after
      cumstances have any violence or any              assuming control of the strike, "I want you to
      threats of violence to any person coming         keep your damn hands off of that Gray's Creek
      into or near that area."                         area over there, and tell that Southern Labor
                                                       Union that we don't intend for you to work that
          n31 About six days after the violence,       mine." To another, Gilbert is alleged to have
      an earthmoving equipment salesman                said,      "Hell,    we      can't    let     that
      driving by the entrance to the mine site
                                                                                                  Page 32
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                       accorded further attempts to open the Gray's
     [*741] go on . . . Paul was trying to bring
                                                       Creek area. The aura of violence remained to
this other union in there, and [Gilbert said] he
                                                       enhance the effectiveness of the picketing. Cer-
ain't going to get by with it." A third witness
                                                       tainly there is a threat of violence when the
reported remarks of a similar tenor. Respond-
                                                       man who has just knocked me down my front
ent testified that fear for his own safety caused
                                                       steps continues to stand guard at my front
him not to visit his mine leases after the events
                                                       door." 343 F.2d, at 616.
of August 15 and 16. His foreman testified to
minor acts of violence at the mine site, never
                                                       An "impression" is too ephemeral a product to
connected to any person or persons.
                                                       be the result of "clear proof." As we have said,
     [**1147] The relevant question, however,          the mere fact of continued picketing at the mine
is whether Gilbert or other UMW representa-            site is not properly relied upon to show ratifica-
tives were clearly shown to have endorsed vio-         tion. But even accepting the passage as a hold-
lence or threats of violence as a means of set-        ing [***237] that "clear proof" of UMW in-
tling the dispute. The Sixth Circuit's answer          volvement is present, we do not so read the
was that they had. Its view of the record gave         record.
                                                        [***HR18] If there was a remaining threat of
                                                       violence here, it was a threat which arose from
"the impression that the threat of violence re-        the context of the dispute, and not from the
mained throughout the succeeding days and              manner in which the international union was
months. The night and day picketing that fol-          shown to have handled it. This dispute began
lowed its spectacular beginning was but a guar-        when unemployed miners in the Appalachian
anty and warning that like treatment would be          hills                                discovered
                                                                                                    Page 33
                                      383 U.S. 715, *; 86 S. Ct. 1130, **;
                                 16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

 [*742] that jobs they believed had been prom-              THE CHIEF JUSTICE took no part in the
ised to them were being given to others behind           decision of this case.
their backs. In considering the vicarious liabil-
ity of the international union, accommodation            CONCURBY:
must be made for that fact. The record here                  HARLAN
clearly bears the construction that the interna-
tional union exerted pressure to assure that re-
spondent would lose his present jobs and obtain
no more. But the record fails to rebut petition-            MR. JUSTICE HARLAN, whom MR.
er's contention that it had been unwilling to see        JUSTICE CLARK joins, concurring.
its ends accomplished through violence, and                  I agree with and join in Part I of the Court's
indeed had sought to control the excesses                opinion relating to pendent jurisdiction. As to
which had occurred. Since the record estab-              Part II, I refrain from joining the Court's specu-
lishes only peaceful activities in this regard on        lations about the uses to which it may put the
the part of petitioner, respondent was limited to        pre-emption doctrine in similar future cases.
his § 303 remedy. Teamsters Union v. Mor-                The holding in Part III that the Norris-
ton, supra. Although our result would undoubt-           LaGuardia Act requires reversal here seems to
edly be firmer if the petitioner had assured re-         me correct, but my interpretation of the statute
spondent that, having assumed control of the             is different and somewhat narrower than that of
strike, it would prevent further violence, in the        the Court.
circumstances of this case the crucial fact of
petitioner's participation in or ratification of the         The statutory requirement for union liability
violence that occurred was not proved to the             in this case is "clear proof of actual participa-
degree of certainty required by § 6.                     tion            in,          or            actual
                                                                                                  Page 34
                                     383 U.S. 715, *; 86 S. Ct. 1130, **;
                                16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                              The section is quoted in full at p. 735,
     [*743] authorization of . . . [the unlawful
acts], or of ratification of such acts after actual
knowledge thereof." n1 The Court construes                         n2 The principal legislative docu-
this provision as fixing a new test of the quan-              ment, S. Rep. No. 163, 72 Cong., 1st
tum of proof, somewhere [**1148] between                      Sess., pp. 19-21, is not very illuminating
ordinary civil and criminal standards. I do not               but it does at the end of its discussion of
think the admittedly vague legislative history                the section make reference to Frankfurter
imports this reading, and I believe it introduces             & Greene, The Labor Injunction 74-75
a revealing inconsistency since the new test                  (1930). At these pages, to illustrate rul-
could not be applied to criminal cases, conced-               ings on union responsibility that are
edly governed by the same statutory language,                 deemed improper, that book states:
without standing the statute on its head by hav-              "'Authorization' has been found as a fact
ing it reduce present quantum-of-proof re-                    where the unlawful acts 'have been on
quirements in criminal cases, that is, proof "be-             such a large scale, and in point of time
yond a reasonable doubt." The best reading I                  and place so connected with the admitted
can give the statute, absent more light than has              conduct of the strike, that it is impossible
been shed upon it in this case, is one directing it           on the record here to view them in any
against a particular type of inferential proof of             other light than as done in furtherance of
authority or ratification unacceptable to those               a common purpose and as part of a
who framed the law. For me, the gist of the                   common plan'; where the union has
statute is that in the usual instance a union's               failed to discipline the wrong-doer;
carrying [***238] on of its normal strike func-               where the union has granted strike bene-
tions and its failure to take affirmative action to           fits." (Footnotes omitted.) See also id., at
dispel misconduct are not in themselves proof                 220-221, n. 42; United Brotherhood of
of authorization or ratification of the wrongdo-              Carpenters v. United States, 330 U.S.
ing. n2                                                       395, 418-419 and n. 2 (Frankfurter, J.,

          n1 Norris-LaGuardia Act, § 6, 47
      Stat. 71, 29 U. S. C. § 106 (1964 ed.).
                                                                                                Page 35
                                    383 U.S. 715, *; 86 S. Ct. 1130, **;
                               16 L. Ed. 2d 218, ***; 1966 U.S. LEXIS 2837

                                                           Validity and construction of 303 of Labor
     [*744] In the present case, apart from a
                                                       Management Relations Act (29 USC 187) giv-
few quite ambiguous episodes, there was noth-
                                                       ing right of action against union for inducing
ing to bring the violence home to the union ex-
                                                       strikes and secondary boycotts. 12 L ed 2d
cept, as the Sixth Circuit stressed (see p. 741,
                                                       1141, 47 ALR2d 864.
ante), that the union continued through its
picketing the threat that the earlier violence            Constitutionality and construction of the
would be renewed and did not repudiate the             provision of the Labor Management Relations
violence or promise to oppose its renewal.             Act (Taft-Hartley Act) making it an unfair la-
Whatever arguments could be made for impos-            bor practice for a labor organization to engage
ing liability in such a situation, I think it ap-      in a secondary boycott. 95 L ed 1297, 16
proximates what the statute was designed to            ALR2d 769.
forbid. On this basis, I concur in the reversal.          State power to enjoin picketing as affected
                                                       by Federal Labor Relations Acts. 2 L ed 2d
REFERENCES: Return To Full Text Opinion                1630, 3 L ed 2d 1932, 32 ALR 2d 1026.
                                                           National Labor Relations Act and Labor
                  Annotation References:               Management Relations Act as excluding state
                                                       action. 93 L ed 470, 94 L ed 984, 95 L ed 384,
    Modern status of rules as to pendent federal       98 L ed 245, 99 L ed 559, 100 L ed 1174.
jurisdiction over nonfederal claims. 5 ALR3d
1040.                                                      Injunction against picketing per se, where
                                                       past picketing has been accompanied by vio-
    May federal court, acquiring jurisdiction          lence or other improper conduct. 132 ALR
because of federal question but deciding such          1218.
question adversely to party invoking jurisdic-
tion, decide nonfederal questions. 12 ALR2d                Picketing of place of business by persons
695.                                                   not employed therein. 11 ALR2d 1274.
    Discretion of federal court to remit relevant          Right of third party in area picketed during
state issues to state court in which no action is      labor dispute, who has no connection with the
pending. 94 L ed 879, 3 L ed 2d 1827, 8                dispute, to relief against such picketing. 15
ALR2d 1228.                                            ALR2d 1396.
   What actions arise under the Constitution,
laws, and treaties of the United States. 12
ALR2d 5, 13 ALR2d 390, 14 ALR2d 992.
**********     Print Completed   **********

Time of Request:      August 28, 2006   09:23 AM EDT

Print Number:         1822:115421031
Number of Lines:      894
Number of Pages:

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