U.S. Supreme Court United Mine Workers v. Gibbs, 383
U.S. 715 (1966) United Mine Workers of America v.
Gibbs No. 243 Argued January 20,
1966 Decided March 28,
1966 383
U.S. 715 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT Syllabus A coal company closed a mine in Tennessee and laid off miners
belonging to one of petitioner's local unions. Thereafter, the
company, through a subsidiary, attempted to open a new mine nearby
with members of a rival union. Respondent was hired as mine
superintendent and given a contract to truck coal to the nearest
rail loading point. On August 15 and 16, 1960, armed members of
petitioner's local forcibly prevented the opening of the mine,
threatened respondent, and assaulted an organizer for the rival
union. Petitioner's area representative was away at a union board
meeting when he learned of the violence. He returned late on August
16 with instructions to establish a limited picket line, prevent
further violence, and to see that neighboring mines were not
struck. There was no further violence at the mine site; a picket
line was maintained for nine months, and no further effort was made
to open the mine. Respondent lost his job as superintendent, never
performed his haulage contract, and allegedly lost other trucking
contracts and mine leases because of a concerted union plan against
him. Suing only the international union, he sought recovery under §
303 of the Labor Management Relations Act and the common law of
Tennessee. Jurisdiction was premised on allegations of secondary
boycotts under § 303, and the state law claim, for which
jurisdiction was based on the doctrine of pendent jurisdiction,
asserted an unlawful conspiracy and boycott to interfere with
respondent's contracts of employment and haulage. The jury found
that petitioner had violated both § 303 and state law, and
respondent was awarded actual and punitive damages. On motion, the
trial court set aside the damages award with respect to the haulage
contract on the ground that damage was not proved. It also held
that union pressure on respondent's employer to discharge him would
constitute only a primary dispute with the employer, not cognizable
under § 303. Interference with employment was cognizable as a state
claim, and a remitted award was sustained thereon. The Court of
Appeals affirmed. Held: 1. The District Court properly entertained jurisdiction of the
claim based on state law. Pp. 383 U. S.
721 -729. Page 383 U. S. 716 (a) The state law claim, based in part on violence and
intimidation, was not preempted by § 303. P. 383 U. S.
721 .

															(b) Pendent jurisdiction, in the sense of judicial power, exists
whenever there is a substantial federal claim and the relationship
between it and the asserted state claims permits the conclusion
that the entire action before the court comprises one "case." P. 383 U. S.
725 .

															(c) Pendent jurisdiction is a doctrine of discretion, justified
by judicial economy, convenience and fairness to litigants. P. 383 U. S.
726 .

															(d) The District Court did not exceed its discretion in
exercising jurisdiction over the state law claim. Pp. 383 U. S.
727 -729.

															2. State law remedies against violence and threats of violence
arising in labor disputes have been sustained against the challenge
of preemption by federal labor legislation, but the scope of such
remedies is confined to the direct consequences of such conduct.
Pp. 383 U. S.
729 -731.

															3. Although petitioner concedes that violence which would
justify application of such limited state tort law occurred during
the first two days of the strike, it appeared that neither the
pleadings, arguments of counsel, nor the instructions to the jury
adequately defined the area within which damages could be awarded
under state law, where the tort claimed, essentially a "conspiracy"
to interfere with respondent's contractual relations, was not
itself so limited. Pp. 383 U. S.
732 -735.

															4. Since petitioner was not clearly proved to have participated
in or authorized the two days' violence, nor to have ratified it or
built its picketing campaign upon the fear of the violence
engendered, the special proof requirements of § 6 of the
Norris-LaGuardia Act were not satisfied, and petitioner cannot be
held liable to respondent under state law. Pp. 383 U. S.
735 -742.

															(a) While the Labor Management Relations Act expressly provides
that, for purposes of that Act, including § 303, the union's
responsibility for acts of its members and officers is to be
measured by ordinary agency standards, rather than § 6's more
stringent standard of "clear proof," it does not displace § 6 for
other purposes, and § 6 plainly applies to federal court hearings
of state tort claims arising out of labor disputes. Pp. 383 U. S.
736 -737.

															(b) The "clear proof" language of § 6 is similar to "clear,
unequivocal, and convincing proof," used elsewhere. Although, under
this standard, the plaintiff in a civil suit does not have to
satisfy the criminal standard of reasonable doubt, he is required
to persuade by a substantial margin, and to come forward with more
than a bare preponderance of the evidence. P. 383 U. S.
737 . Page 383 U. S. 717 (c) Respondent did not present clear proof that petitioner
authorized or participated in the violence, or that it ratified the
violence which had occurred, and, accordingly, cannot recover from
petitioner. Pp. 383 U. S.
738 -742.

															343 F.2d 609, reversed.

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															Respondent Paul Gibbs was awarded compensatory and punitive
damages in this action against petitioner United Mine Workers of
America (UMW) for alleged violations of § 303 of the Labor
Management Relations Act, 1947, 61 Stat. 158, as amended, [ Footnote 1 ] and of the common law
of Page 383 U. S. 718 Tennessee. The case grew out of the rivalry between the United
Mine Workers and the Southern Labor Union over representation of
workers in the southern Appalachian coal fields. Tennessee
Consolidated Coal Company, not a party here, laid off 100 miners of
the UMW's Local 5881 when it closed one of its mines in southern
Tennessee during the spring of 1960. Late that summer, Grundy
Company, a wholly owned subsidiary of Consolidated, hired
respondent as mine superintendent to attempt to open a new mine on
Consolidated's property at nearby Gray's Creek through use of
members of the Southern Labor Union. As part of the arrangement,
Grundy also gave respondent a contract to haul the mine's coal to
the nearest railroad loading point.

															On August 15 and 16, 1960, armed members of Local 5881 forcibly
prevented the opening of the mine, threatening respondent and
beating an organizer for the rival union. [ Footnote 2 ] The members of the local believed
Consolidated Page 383 U. S. 719 had promised them the jobs at the new mine; they insisted that,
if anyone would do the work, they would. At this time, no
representative of the IMW, their international union, was present.
George Gilbert, the UMW's field representative for the area
including Local 881, was away at Middlesboro, Kentucky, attending
an Executive Board meeting when the members of the local discovered
Grundy's plan; [ Footnote 3 ] 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 while at the meeting, and returned with explicit
instructions from his international union superiors to establish a
limited picket line, to prevent any further violence, and to see to
it that the strike did not spread to neighboring mines. There was
no further violence at the mine site; a picket line was maintained
there for nine months, and no further attempts were made to open
the mine during that period. [ Footnote 4 ] Page 383 U. S. 720 Respondent lost his job as superintendent, and never entered
into performance of his haulage contract. He testified that he soon
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 plan against him, he sought recovery not against
Local 5881 or its members, but only against petitioner, the
international union. The suit was brought in the United States
District Court for the Eastern District of Tennessee, and
jurisdiction was premised on allegations of secondary boycotts
under § 303. The state law claim, for which jurisdiction was based
upon the doctrine of pendent jurisdiction, asserted

															"an unlawful conspiracy and an unlawful boycott aimed at him and
[Grundy] to maliciously, wantonly and willfully interfere with his
contract of employment and with his contract of haulage. [ Footnote 5 ]"

															The trial judge refused to submit to the jury the claims of
pressure intended to cause mining firms other than Grundy to cease
doing business with Gibbs; he found those claims unsupported by the
evidence. The jury's verdict was that the UMW had violated both §
303 and state law. Gibbs was awarded $60,000 as damages under the
employment contract and $14,500 under the haulage contract; he was
also awarded $100,000 punitive damages. On motion, the trial court
set aside the award of damages with respect to the haulage contract
on the ground that damage was unproved. It also held that union
pressure on Grundy to discharge respondent as supervisor would
constitute only a primary dispute with Grundy, as respondent's
employer, and hence was not cognizable as a claim under § 303.
Interference with the Page 383 U. S. 721 employment relationship was cognizable as a state claim,
however, and a remitted award was sustained on the state law claim.
[ Footnote 6 ] 220 F.
Supp. 871 . The Court of Appeals for the Sixth Circuit affirmed.
343 F.2d 609. We granted certiorari. 382 U.S. 809. We reverse. I A threshold question is whether the District Court properly
entertained jurisdiction of the claim based on Tennessee law. There
was no need to decide a like question in Teamsters Union v.
Morton, 377 U. S. 252 ,
since the pertinent state claim there was based on peaceful
secondary activities, and we held that state law based on such
activities had been preempted by § 303. But here, respondent's
claim is based in part on proofs of violence and intimidation.

															"[W]e have allowed the States to grant compensation for the
consequences, as defined by the traditional law of torts, of
conduct marked by violence and imminent threats to the public
order. United Automobile Workers v. Russell, 356 U. S.
634 ; United Construction Workers v. Laburnum
Corp., 347 U. S. 656 . . . . State
jurisdiction has prevailed in these situations because the
compelling state interest, in the scheme of our federalism, in the
maintenance of domestic peace is not overridden in the absence of
clearly expressed congressional direction." San Diego Building Trades Council v. Garmon, 359 U. S. 236 , 359 U. S.
247 . Page 383 U. S. 722 The fact that state remedies were not entirely preempted does
not, however, answer the question whether the state claim was
properly adjudicated in the District Court absent diversity
jurisdiction. The Court held in Hurn v. Oursler, 289 U. S. 238 ,
that state law claims are appropriate for federal court
determination if they form a separate but parallel ground for
relief also sought in a substantial claim based on federal law. The
Court distinguished permissible from nonpermissible exercises of
federal judicial power over state law claims by contrasting

															"a case where two distinct grounds in support of a single cause
of action are alleged, one only of which presents a federal
question, and a case where two separate and distinct causes of
action are alleged, one only of which is federal in character. In
the former, where the federal question averred is not plainly
wanting in substance, the federal court, even though the federal
ground be not established, may nevertheless retain and dispose of
the case upon the nonfederal ground; in the latter, it may not do
so upon the nonfederal cause of action."

															289 U.S. at 289 U. S. 246 .
The question is into which category the present action fell. Hurn was decided in 1933, before the unification of law
and equity by the Federal Rules of Civil Procedure. At the time,
the meaning of "cause of action" was a subject of serious dispute;
[ Footnote 7 ] the phrase might
"mean one thing for one purpose and something different for
another." Page 383 U. S. 723 United States v. Memphis Cotton Oil Co., 288 U. S.
62 , 288 U. S. 67 -68.
[ Footnote 8 ] The Court in Hurn identified what it meant by the term by citation of Baltimore S.S. Co. v. Phillips, 274 U.
S. 316 , a case in which "cause of action" had been used
to identify the operative scope of the doctrine of res
judicata. In that case, the Court had noted that " the
whole tendency of our decisions is to require a plaintiff to try
his whole cause of action and his whole case at one time.'" 274
U.S. at 274 U. S. 320 .
It stated its holding in the following language, quoted in part in
the Hurn opinion: "Upon principle, it is perfectly plain that the respondent [a
seaman suing for an injury sustained while working aboard ship]
suffered but one actionable wrong, and was entitled to but one
recovery, whether his injury was due to one or the other of several
distinct acts of alleged negligence, or to a combination of some or
all of them. In either view, there would be but a single wrongful
invasion of a single primary right of the plaintiff, namely, the
right of bodily safety, whether the acts constituting such invasion
were one or many, simple or complex."

															"A cause of action does not consist of facts, but of the
unlawful violation of a right which the facts show. The number and
variety of the facts alleged do not establish more than one cause
of action so long as their result, whether they be considered
severally or in combination, is the violation of but one right by a
single legal wrong. The mere multiplication of grounds of
negligence alleged as causing the same injury does not result in
multiplying the causes of action."

															"The facts are merely the means, Page 383 U. S. 724 and not the end. They do not constitute the cause of action, but
they show its existence by making the wrong appear." Id. at 271 U. S. 321 .
Had the Court found a jurisdictional bar to reaching the state
claim in Hurn, we assume that the doctrine of res
judicata would not have been applicable in any subsequent
state suit. But the citation of Baltimore S.S. Co. shows
that the Court found that the weighty policies of judicial economy
and fairness to parties reflected in res judicata doctrine
were, in themselves, strong counsel for the adoption of a rule
which would permit federal courts to dispose of the state as well
as the federal claims.

															With the adoption of the Federal Rules of Civil Procedure and
the unified form of action, Fed.Rule Civ.Proc. 2, much of the
controversy over "cause of action" abated. The phrase remained as
the keystone of the Hurn test, however, and, as
commentators have noted, [ Footnote
9 ] has been the source of considerable confusion. Under the
Rules, the impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties; joinder of
claims, parties and remedies is strongly encouraged. [ Footnote 10 ] Yet, because the Hurn question involves issues of jurisdiction, as well as
convenience, there has been some tendency to limit its application
to cases in which the state and federal claims are, as in Hurn, "little more than the equivalent of different
epithets to characterize the same group of circumstances." 289 U.S.
at 289 U. S. 246 .
[ Footnote 11 ] Page 383 U. S. 725 This limited approach is unnecessarily grudging. Pendent
jurisdiction, in the sense of judicial power, exists whenever there
is a claim "arising under [t]he Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under
their Authority . . . ," U.S.Const., Art. III, § 2, and the
relationship between that claim and the state claim permits the
conclusion that the entire action before the court comprises but
one constitutional "case." [ Footnote 12 ] The federal claim must have substance
sufficient to confer subject matter jurisdiction on the court. Levering & Garriges Co. v. Morrin, 289 U.
S. 103 . The state and federal claims must derive from a
common nucleus of operative fact. But if, considered without regard
to their federal or state character, a plaintiff's claims are such
that he would ordinarily be expected to try them all in one
judicial proceeding, then, assuming substantiality of the federal
issues, there is power in federal courts to hear the whole.
[ Footnote 13 ] Page 383 U. S. 726 That power need not be exercised in every case in which it is
found to exist. It has consistently been recognized that pendent
jurisdiction is a doctrine of discretion, not of plaintiff's right.
[ Footnote 14 ] Its
justification lies in considerations of judicial economy,
convenience and fairness to litigants; if these are not present, a
federal court should hesitate to exercise jurisdiction over state
claims, even though bound to apply state law to them, Erie R.
Co. v. Tompkins, 304 U. S. 64 .
Needless decisions of state law should be avoided, both as a matter
of comity and to promote justice between the parties, by procuring
for them a surer-footed reading of applicable law. [ Footnote 15 ] Certainly, if the federal
claims are dismissed before trial, even though not insubstantial in
a jurisdictional sense, the state claims should be dismissed as
well. [ Footnote 16 ]
Similarly, if it appears that the state issues substantially
predominate, whether, in terms of proof, of the scope of the issues
raised, or of the comprehensiveness of the remedy sought, the state
claims may be dismissed without prejudice and Page 383 U. S. 727 left for resolution to state tribunals. There may, on the other
hand, be situations in which the state claim is so closely tied to
questions of federal policy that the argument for exercise of
pendent jurisdiction is particularly strong. In the present case,
for example, the allowable scope of the state claim implicates the
federal doctrine of preemption; while this interrelationship does
not create statutory federal question jurisdiction, Louisville
& N. R. Co. v. Mottley, 211 U. S. 149 , its
existence is relevant to the exercise of discretion. Finally, there
may be reasons independent of jurisdictional considerations, such a
the likelihood of jury confusion in treating divergent legal
theories of relief, that would justify separating state and federal
claims for trial, Fed.Rule Civ.Proc. 42(b). If so, jurisdiction
should ordinarily be refused.

															The question of power will ordinarily be resolved on the
pleadings. But the issue whether pendent jurisdiction has been
properly assumed is one which remains open throughout the
litigation. Pretrial procedures, or even the trial itself, may
reveal a substantial hegemony of state law claims, or likelihood of
jury confusion, which could not have been anticipated at the
pleading stage. Although it will, of course, be appropriate to take
account in this circumstance of the already completed course of the
litigation, dismissal of the state claim might even then be
merited. For example, it may appear that the plaintiff was well
aware of the nature of his proofs and the relative importance of
his claims; recognition of a federal court's wide latitude to
decide ancillary questions of state law does not imply that it must
tolerate a litigant's effort to impose upon it what is in effect
only a state law case. Once it appears that a state claim
constitutes the real body of a case, to which the federal claim is
only an appendage, the state claim may fairly be dismissed. Page 383 U. S. 728 We are not prepared to say that, in the present case, the
District Court exceeded its discretion in proceeding to judgment on
the state claim. We may assume for purposes of decision that the
District Court was correct in its holding that the claim of
pressure on Grundy to terminate the employment contract was outside
the purview of § 303. Even so, the § 303 claims based on secondary
pressures on Grundy relative to the haulage contract and on other
coal operators generally were substantial. Although § 303 limited
recovery to compensatory damages based on secondary pressures, Teamsters Union v. Morton, supra, and state law allowed
both compensatory and punitive damages, and allowed such damages as
to both secondary and primary activity, the state and federal
claims arose from the same nucleus of operative fact and reflected
alternative remedies. Indeed, the verdict sheet sent in to the jury
authorized only one award of damages, so that recovery could not be
given separately on the federal and state claims.

															It is true that the § 303 claims ultimately failed, and that the
only recovery allowed respondent was on the state claim. We cannot
confidently say, however, that the federal issues were so remote,
or played such a minor role at the trial that, in effect, the state
claim only was tried. Although the District Court dismissed as
unproved the § 303 claims that petitioner's secondary activities
included attempts to induce coal operators other than Grundy to
cease doing business with respondent, the court submitted the § 303
claims relating to Grundy to the jury. The jury returned verdicts
against petitioner on those § 303 claims, and it was only on
petitioner's motion for a directed verdict and a judgment n.o.v. that the verdicts on those claims were set aside.
The District Judge considered the claim as to the haulage Page 383 U. S. 729 contract proved as to liability, and held it failed only for
lack of proof of damages. Although there was some risk of confusing
the jury in joining the state and federal claims, especially since,
as will be developed, differing standards of proof of UMW
involvement applied -- the possibility of confusion could be
lessened by employing a special verdict form, as the District Court
did. Moreover, the question whether the permissible scope of the
state claim was limited by the doctrine of preemption afforded a
special reason for the exercise of pendent jurisdiction; the
federal courts are particularly appropriate bodies for the
application of preemption principles. We thus conclude that,
although it may be that the District Court might, in its sound
discretion, have dismissed the state claim, the circumstances show
no error in refusing to do so. II This Court has consistently recognized the right of States to
deal with violence and threats of violence appearing in labor
disputes, sustaining a variety of remedial measures against the
contention that state law was preempted by the passage of federal
labor legislation. Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740 ; United Construction Workers v. Laburnum Construction
Corp., 347 U. S. 656 ; United Automobile Workers v. Wisconsin Board, 351 U.
S. 266 ; Youngdahl v. Rainfair, Inc., 355 U. S. 131 ; United Automobile Workers v. Russell, 356 U.
S. 634 . Petitioner concedes the principle, but argues
that the permissible scope of state remedies in this area is
strictly confined to the direct consequences of such conduct, and
does not include consequences resulting from associated peaceful
picketing or other union activity. We agree.

															Our opinions on this subject, frequently announced over weighty
arguments in dissent that state remedies Page 383 U. S. 730 were being given too broad scope, have approved only remedies
carefully limited to the protection of the compelling state
interest in the maintenance of domestic peace. Thus, in San
Diego Building Trades Council v. Garmon, 359 U.
S. 236 , we read our prior decisions as only allowing

															"the States to grant compensation for the consequences, as
defined by the traditional law of torts, of conduct marked by
violence and imminent threats to the public order," id. at 359 U. S. 247 ,
and noted that, in Laburnum, "damages were restricted to the 'damages directly and
proximately caused by wrongful conduct chargeable to the defendants
. . . ' as defined by the traditional law of torts. . . . Thus,
there is nothing in the measure of damages to indicate that state
power was exerted to compensate for anything more than the direct
consequences of the violent conduct." Id. 359 U. S. 248 ,
n. 6, at 359 U. S. 249 .
In Russell, we specifically observed that the jury had
been charged that, to award damages, it must find a proximate
relation between the violence and threats of force and violence
complained of, on the one hand, and the loss of wages allegedly
suffered, on the other. 356 U.S. at 356 U. S. 638 ,
n. 3. In the two Wisconsin Board cases it was noted that
the State's administrative injunctive relief was limited to
prohibition against continuation of the unlawful picketing, not all
picketing. 315 U.S. at 315 U. S. 748 ;
351 U.S. at 351 U. S.
269 -270, n. 3. And in Youngdahl, the Court held
that a state court injunction which would have prohibited all
picketing must be modified to permit peaceful picketing of the
premises. We said,

															"[t]hough the state court was within its discretionary power in
enjoining future acts of violence, intimidation and threats of
violence by the strikers and the union, yet it is equally clear
that such court entered the preempted domain Page 383 U. S. 731 of the National Labor Relations Board insofar as it enjoined
peaceful picketing. . . ."

															355 U.S. at 355 U. S. 139 .
[ Footnote 17 ]

															It is true that, in Milk Wagon Drivers Union v. Meadowmoor
Dairies, 312 U. S. 287 , the
Court approved sweeping state injunctive relief barring any future
picketing in a labor dispute, whether peaceful or not. That case,
however, was decided only on a constitutional claim of freedom of
speech. We did not consider the impact of federal labor policy on
state regulatory power. Moreover, as we recognized in Youngdahl, supra, at 355 U. S. 139 ,
the case was decided in the context of a strike marked by extreme
and repeated acts of violence -- "a pattern of violence . . . which
would inevitably reappear in the event picketing were later
resumed." The Court in Meadowmoor had stated the question
presented as

															"whether a state can choose to authorize its courts to enjoin
acts of picketing in themselves peaceful when they are enmeshed
with contemporaneously violent conduct which is concededly
outlawed,"

															312 U.S. at 312 U. S. 292 ,
and had reasoned that

															"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 set in a background of violence. In such a
setting, it could justifiably be concluded that the momentum of
fear generated by past violence would survive even though future
picketing might be wholly peaceful." Id. at 312 U. S. 294 .
Such special facts, if they appeared in an action for damages after
picketing marred by violence had occurred, Page 383 U. S. 732 might support the conclusion that all damages resulting from the
picketing were proximately caused by its violent component or by
the fear which that violence engendered. [ Footnote 18 ] Where the consequences of peaceful and
violent conduct are separable, however, it is clear that recovery
may be had only for the latter.

															In the present case, petitioner concedes that violence which
would justify application of state tort law within these narrow
bounds occurred during the first two days of the strike. It is a
separate issue, however, whether the pleadings, the arguments of
counsel to the jury, or the instructions to the jury adequately
defined the compass within which damages could be awarded under
state law. The tort claimed was, in essence, a "conspiracy" to
interfere with Gibbs' contractual relations. The tort of
"conspiracy" is poorly defined, and highly susceptible to judicial
expansion; its relatively brief history is colored by use as a
weapon against the developing labor movement. [ Footnote 19 ] Indeed, a reading of the record in
this case gives the impression that the notion of "conspiracy" was
employed here to expand the application of state law
substantially Page 383 U. S. 733 beyond the limits to be observed in showing direct union
involvement in violence.

															Thus, respondent's complaint alleged

															"an unlawful conspiracy and an unlawful boycott . . . to
maliciously, wantonly and willfully interfere with his contract of
employment and with his contract of haulage."

															No limitation to interference by violence appears. Similarly,
counsel, in arguing to the jury, asserted not that the conspiracy
in which the union had allegedly participated and from which its
liability could be inferred was a conspiracy of violence, but that
it was a conspiracy to impose the UMW and the UMW's standard
contract on the coal fields of Tennessee. [ Footnote 20 ] Under the state law, it would not
have been relevant that the union had not actually authorized,
participated in, or ratified the particular violence involved, or
even the general use of violence. It would only be necessary to
show a conspiracy in which the union had a part, and to show also
that those who engaged in the violence were members of the
conspiracy, and their acts were related to the conspiracy's
purpose. [ Footnote 21 ]

															The instructions to the jury also appear not to have kept the
conspiracy concept within any proper bounds. The charge instructed
the jury separately on the § 303 and conspiracy claims,
characterizing each as predicated on an assertion that there had
been "unlawful" picketing action, and distinguishing one from the
other on the basis that, in the conspiracy claim "the lawfulness of
the means, rather than the lawfulness of the object or the
purpose Page 383 U. S. 734 of the picketing . . . is controlling." But, in charging the
conspiracy claim, the court stressed that the "unlawfulness" of the
picketing, rather than violence as such, would be controlling.
Thus, in characterizing respondent's claim of a conspiracy
intentionally to interfere with his contractual relations with
Grundy, the trial judge said respondent asserted the interference
to be "wrongful in that it was accomplished by unlawful means,
including violence and threats of violence." Turning to the
question of the international union's responsibility, he said this
depended on a showing that it "was a party to a conspiracy pursuant
to which the interference was committed." He defined conspiracy
as

															"an agreement between two or more . . . to do an unlawful thing,
or to do a lawful thing by unlawful means. . . . It is not
essential to the existence of a conspiracy that the agreement
between the conspirators be formally made between the parties at
any one time, if, for example, two persons agreed to pursue an
unlawful purpose or pursue a lawful purpose by unlawful means, then
later a third person with knowledge of the existence of the
conspiracy assents to it either impliedly or expressly and
participates in it, then all three are conspirators in the same
conspiracy. . . . [A]ll that is required is that each party to the
conspiracy know of the existence of the conspiracy and that each
agrees to assist in some manner in the furtherance of the unlawful
purpose . . . or any unlawful means of accomplishing an unlawful
purpose."

															The trial judge then charged, in accordance with the Tennessee
common law on conspiracy, [ Footnote 22 ] that the union, if a member of a conspiracy,
would be liable for all acts "done in concert . . . with the common
purpose, and to effect Page 383 U. S. 735 a common design," whether or not it had authorized, participated
in, or ratified the particular acts. The jury was told it might
award "only such damages as . . . he has sustained as a proximate
and direct result of the action of the defendant," and that

															"[n]o award of damages can be made . . . on the basis of losses
sustained . . . as a result of lawful activity upon the part of the
defendant or its agents."

															Such instructions do not focus the jury's attention upon
violence or threats of violence as the essential predicate of any
recovery it might award. III Even assuming the conspiracy concept could be and was kept
within limits proper to the application of state tort law under the
preemption doctrine, reversal is nevertheless required here for
failure to meet the special proof requirements imposed by § 6 of
the Norris-LaGuardia Act: [ Footnote 23 ]

															"No officer or member of any association or organization, and no
association or organization participating or interested in a labor
dispute, shall be held responsible or liable in any court of the
United States for the unlawful acts of individual officers,
members, or agents, except upon clear proof of actual participation
in, or actual authorization of, such acts, or of ratification of
such acts after actual knowledge thereof."

															Petitioner vigorously contends that § 6 applied to the state
claims in this case; that, on this record, it cannot be charged
with having participated in or authorized the violence of August
15-16, and that its acts, once it learned of the violence, fell
short of what would be necessary to show either ratification of the
violence or any intent to build its picketing campaign upon the
fears the violence engendered. We agree. Page 383 U. S. 736 We held in Brotherhood of Carpenters v. United States, 330 U. S. 395 , 330 U. S. 403 ,
that

															"whether § 6 should be called a rule of evidence or one that
changes the substantive law of agency . . . , its purpose and
effect was to relieve organizations . . . and members of those
organizations from liability for damages or imputation of guilt for
lawless acts done in labor disputes by some individual officers or
members of the organization without clear proof that the
organization or member charged with responsibility for the offense
actually participated, gave prior authorization, or ratified such
acts after actual knowledge of their perpetration."

															Shortly thereafter, Congress passed the Labor Management
Relations Act, which expressly provides that, for the purposes of
that statute, including § 303, the responsibility of a union for
the acts of its members and officers is to be measured by reference
to ordinary doctrines of agency, rather than the more stringent
standards of § 6. [ Footnote
24 ] Yet, although the legislative history indicates that
Congress was well aware of the Carpenters decision,
[ Footnote 25 ] it did not
repeal § 6 outright, but left it applicable to cases not arising
under the new Act. This selectivity is not surprising, for, on
state claims, though not on § 303 claims, punitive damages may be
recovered. The driving force behind § 6 [ Footnote 26 ] and the opposition to § 303, even in its
limited form, [ Footnote 27 ]
was the fear that unions might be destroyed Page 383 U. S. 737 if they could be held liable for damage done by acts beyond
their practical control. Plainly, § 6 applies to federal court
adjudications of state tort claims arising out of labor disputes,
whether or not they are associated with claims under § 303 to which
the section does not apply. [ Footnote 28 ]

															Although the statute does not define "clear proof," its history
and rationale suggest that Congress meant at least to signify a
meaning like that commonly accorded such similar phrases as "clear,
unequivocal, and convincing proof." Under this standard, the
plaintiff in a civil case is not required to satisfy the criminal
standard of reasonable doubt on the issue of participation,
authorization or ratification; neither may he prevail by meeting
the ordinary civil burden of persuasion. He is required to persuade
by a substantial margin, to come forward with "more than a bare
preponderance of the evidence to prevail." Schneiderman v.
United States, 320 U. S. 118 , 320 U. S. 125 .
In our view, that burden was not met. [ Footnote 29 ] Page 383 U. S. 738 At the outset, it is clear that the requisite showing was not
made as to possible union authorization of or participation in the
violence of August 15 and 16. Although it is undoubtedly true that
the officers and members of Local 5881 were present in force at the
mine site on those days, neither the Local nor they are parties to
this suit. Mr. Gilbert, the UMW representative, had left the area
for a business meeting before the series of events culminating in
the violence, and, immediately upon his return, the violence
subsided. The Sixth Circuit conceded that "[t]he proofs were
sketchy as to defendant's responsibility for the [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 Gray's
Creek mine until after the violence had occurred. The remaining
issue is whether there was clear proof that the union ratified the
violence which had occurred. Preliminarily, we note that it would
be inconsistent with the fabric of national labor policy to infer
ratification from the mere fact that petitioner involved itself in
the dispute after the violence had occurred, or from the fact that
it carried on some normal union functions, such as provision of
strike relief. A union would ordinarily Page 383 U. S. 739 undertake these tasks during the course of a lawful strike.
National labor policy requires that national unions be encouraged
to exercise a restraining influence on explosive strike situations,
and, when they seek to do so, they should not, for these
activities, be made to risk liability for such harm as may already
have been done. The fact that ripples of the earlier violence may
still be felt should not be permitted, and, under § 6, is not
permitted, to impose such liability. Because the dispute which
sparked the violence will often continue, the union will feel a
responsibility to take up the dispute, as well as to curb its
excesses. There can be no rigid requirement that a union
affirmatively disavow such unlawful acts as may previously have
occurred. Cf. ILGWU v. Labor Board, 237 F.2d 545. What is
required is proof either that the union approved the violence which
occurred or that it participated actively or by knowing tolerance
in further acts which were, in themselves, actionable under state
law or intentionally drew upon the previous violence for their
force.

															The record here is persuasive that the petitioner did what it
could to stop or curtail the violence. There was repeated and
uncontradicted testimony that, when news of the violence reached
the meeting that Gilbert was attending, he was given firm
instructions to return to the scene, to assume control of the
strike, to suppress violence, to limit the size of the picket line,
and to assure that no other area mines were affected. [ Footnote 30 ] He Page 383 U. S. 740 succeeded. Although, the day after his return, two Consolidated
officers were harassed by a large and unruly mob in a nearby town,
this incident was unrelated to respondent, and was not repeated.
There was no further violence at the mine site, and the number of
pickets was reduced to a very few. Other mines in the immediate
area, including two worked on lease by Gibbs, continued to operate,
although strenuous effort was required to accomplish this; one
union official testified, "I thought I was going to get whipped two
or three times [by members of the Local who opposed this policy]."
[ Footnote 31 ]

															To be sure, there was testimony that Gilbert, and, through him,
the international union, were not pleased with respondent's role in
the abortive venture to open the Gray's Creek mines with members of
the Southern Labor Union. A company officer testified that, when
the mines finally opened, respondent was not hired, because, "Had I
hired Mr. Paul Gibbs, none of these mines would be open today."
Respondent testified that Gilbert had told him, shortly after
assuming control of the strike,

															"I want you to keep your damn hands off of that Gray's Creek
area over there, and tell that Southern Labor Union that we don't
intend for you to work that mine."

															To another, Gilbert is alleged to have said, "Hell, we can't let
that Page 383 U. S. 741 go on . . . Paul was trying to bring this other union in there,
and [Gilbert said] he ain't going to get by with it." A third
witness reported remarks of a similar tenor. Respondent testified
that fear for his own safety caused him not to visit his mine
leases after the events of August 15 and 16. His foreman testified
to minor acts of violence at the mine site, never connected to any
person or persons.

															The relevant question, however, is whether Gilbert or other UMW
representatives were clearly shown to have endorsed violence or
threats of violence as a means of settling the dispute. The Sixth
Circuit's answer was that they had. Its view of the record gave
it

															"the impression that the threat of violence remained throughout
the succeeding days and months. The night and day picketing that
followed its spectacular beginning was but a guaranty and warning
that like treatment would be accorded further attempts to open the
Gray's Creek area. The aura of violence remained to enhance the
effectiveness of the picketing. Certainly there is a threat of
violence when the man who has just knocked me down my front steps
continues to stand guard at my front door."

															343 F.2d at 616. An "impression" is too ephemeral a product to
be the result of "clear proof." As we have said, the mere fact of
continued picketing at the mine site is not properly relied upon to
show ratification. But even accepting the passage as a holding that
"clear proof" of UMW involvement is present, we do not so read the
record.

															If there was a remaining threat of violence here, it was a
threat which arose from the context of the dispute, and not from
the manner in which the international union was shown to have
handled it. This dispute began when unemployed miners in the
Appalachian hills discovered Page 383 U. S. 742 that jobs they believed had been promised to them were being
given to others behind their backs. In considering the vicarious
liability of the international union, accommodation must be made
for that fact. The record here clearly bears the construction that
the international union exerted pressure to assure that respondent
would lose his present jobs and obtain no more. But the record
fails to rebut petitioner's contention that it had been unwilling
to see its ends accomplished through violence, and indeed had
sought to control the excesses which had occurred. Since the record
establishes only peaceful activities in this regard on the part of
petitioner, respondent was limited to his § 303 remedy. Teamsters Union v. Morton, supra. Although our result
would undoubtedly be firmer if the petitioner had assured
respondent that, having assumed control of the strike, it would
prevent further violence, in the circumstances of this case, the
crucial fact of petitioner's participation in or ratification of
the violence that occurred was not proved to the degree of
certainty required by § 6. Reversed. THE CHIEF JUSTICE took no part in the decision of this case.

															[ Footnote 1 ]

															Section 303 of the Labor Management Relations Act, 1947
provides:

															"(a) It shall be unlawful, for the purpose of this section only,
in an industry or activity affecting commerce, for any labor
organization to engage in any activity or conduct defined as an
unfair labor practice in section 158(b)(4) of this title."

															"(b) Whoever shall be injured in his business or property by
reason [of] any violation of subsection (a) of this section may sue
therefor in any district court of the United States subject to the
limitations and provisions of section 185 of this title without
respect to the amount in controversy, or in any other court having
jurisdiction of the parties, and shall recover the damages by him
sustained and the cost of the suit."

															29 U.S.C. § 187 (1964 ed.).

															Section 158(b)(4) of Title 29 U.S.C. (1964 ed.), § 8(b)(4) of
the National Labor Relations Act, as amended, 73 Stat. 542,
provides, in relevant part, that:

															"(b) It shall be an unfair labor practice for a labor
organization or its agents --"

															" * * * *" "(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise, handle or work on any goods, articles, materials, or
commodities or to perform any services; or (ii) to threaten,
coerce, or restrain any person engaged in commerce or in an
industry affecting commerce, where in either case an object thereof
is --"

															" * * * *" "(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of any
other producer, processor, or manufacturer, or to cease doing
business with any other person, or forcing or requiring any other
employer to recognize or bargain with a labor organization as the
representative of his employees unless such labor organization has
been certified as the representative of such employees under the
provisions of section 159 of this title: Provided, That
nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or
primary picketing. . . ."

															[ Footnote 2 ]

															These events were also the subject of two proceedings before the
National Labor Relations Board. In one, the Board found that
Consolidated had unlawfully assisted the Southern Labor Union in
violation of § 8(a)(2) of the National Labor Relations Act, as
amended, 49 Stat. 452, 29 U.S.C. § 158(a)(2) (1964 ed.), Tennessee Consolidated Coal Co., 131 NLRB 536, enforcement denied sub nom. Labor Board v. Tennessee
Consolidated Coal Co., 307 F.2d 374 (C.A. 6th Cir.1962). In
the other, it found that Local 5881 had engaged in coercive
picketing in violation of § 8(b)(1)(A), 61 Stat. 141, 29 U.S.C. §
158(b)(1)(A) (1964 ed.), Local 5881, UMWA, 130 NLRB 1181. The
International itself was not charged in this proceeding, and the
Board's consideration focused entirely on the events of August
16.

															[ Footnote 3 ]

															The only testimony suggesting that Gilbert might have been at
the mine site on August 15-16 was Gibbs' statement that "Well,
everything happened so fast there, I'm thinking that I seen Mr.
Gilbert drive up there, but where he went, I don't know." Whether
such testimony could ever be sufficient to establish presence, we
need not decide, since respondent effectively conceded in the Sixth
Circuit and here that Gilbert was in Middlesboro when the violence
occurred.

															[ Footnote 4 ]

															Immediately after the Board's order in the proceedings against
it, note 2 supra, Consolidated reopened the mine it had closed during the spring of
1960, and hired the men of Local 5881. Later, and while this
litigation was awaiting trial, that mine was closed as the result
of an accident. At this point, the fall of 1962, the Gray's Creek
mine was opened using members of Local 5881.

															[ Footnote 5 ] See Dukes v. Brotherhood of Painters, Local No. 47, 191
Tenn. 495, 235
S.W.2d 7 (1950); Brumley v. Chattanooga Speedway Motordrome
Co., 138 Tenn. 534, 198 S.W. 775 (1917); Dale v. Temple
Co., 186 Tenn. 69, 208 S.W.2d 344 (1948).

															[ Footnote 6 ]

															The questions had been submitted to the jury on a special
verdict form. The suggested remittitur from $60,000 to $30,000 for
damages on the employment contract and from $100,000 to $45,000
punitive damages was accepted by respondent. In view of our
disposition, we do not reach petitioner's contentions that the
verdict must be set aside in toto for prejudicial
summation by respondent's counsel, or because the actual damages
awarded substantially exceeded the proof, and the punitive damage
award may have rested in part on the award of actual damages for
interference with the haulage contract, which was vacated as
unproved.

															[ Footnote 7 ] See Clark on Code Pleading 75 et seq. (1928);
Clark, The Code Cause of Action, 33 Yale L.J. 817 (1924);
McCaskill, Actions and Causes of Actions, 34 Yale L.J. 614 (1925);
McCaskill, One Form of Civil Action, But What Procedure, for the
Federal Courts, 30 Ill.L.Rev. 415 (1935); Gavit, A "Pragmatic
Definition" of the "Cause of Action"? 82 U.Pa.L.Rev. 129 (1933);
Clark, The Cause of Action, id. at 354 (1934); Gavit, The
Cause of Action -- a Reply, id. at 695 (1934).

															[ Footnote 8 ] See also American Fire & Cas. Co. v. Finn, 341 U. S. 6 , 341 U. S. 12 ; Musher Foundation, Inc. v. Alba Trading Co., 127 F.2d 9,
12 (C.A.2d Cir.1942) (dissenting opinion of Clark, J.).

															[ Footnote 9 ]

															Shulman & Jaegerman, Some Jurisdictional Limitations on
Federal Procedure, 45 Yale L.J. 393, 397-410 (1936); Wechsler,
Federal Jurisdiction and the Revision of the Judicial Code, 13 Law
& Contemp.Prob. 216, 232 (1948); Barron & Holtzoff, Federal
Practice and Procedure § 23 (1965 Supp.).

															[ Footnote 10 ] See, e.g., Fed.Rules Civ.Proc. 2, 18-20, 42.

															[ Footnote 11 ] E.g., Musher Foundation v. Alba Trading Co., supra; Note, The Evolution and Scope of the Doctrine of Pendent
Jurisdiction in the Federal Courts, 62 Col.L.Rev. 1018, 1029-1030
(1962).

															[ Footnote 12 ]

															The question whether joined state and federal claims constitute
one "case" for jurisdictional purposes is to be distinguished from
the often equally difficult inquiry whether any "case" at all is
presented, Gully v. First National Bank, 299 U.
S. 109 , although the issue whether a claim for relief
qualifies as a case "arising under . . . the Laws of the United
States" and the issue whether federal and state claims constitute
one "case" for pendent jurisdiction purposes may often appear
together, see Dann v. Studebaker-Packard Corp., 288 F.2d
201, 211-215 (C.A. 6th Cir.1961); Borak v. J. I. Case Co., 317 F.2d 838, 847-848 (C.A. 7th Cir.1963), aff'd on other
grounds, 377 U. S. 377 U.S.
426.

															[ Footnote 13 ] Cf. Armstrong Co. v. Nu-Enamel Corp., 305 U.
S. 315 , 305 U. S. 325 .
Note, Problems of Parallel State and Federal Remedies, 71
Harv.L.Rev. 513, 514 (1958). While it is commonplace that the
Federal Rules of Civil Procedure do not expand the jurisdiction of
federal courts, they do embody "the whole tendency of our decisions
. . . to require a plaintiff to try his . . . whole case at one
time," Baltimore S.S. Co. v. Phillips, supra, and, to that
extent, emphasize the basis of pendent jurisdiction.

															[ Footnote 14 ] Massachusetts Universalist Convention v. Hildreth &
Rogers Co., 183 F.2d 497 (C.A. 1st Cir.1950); Moynahan v.
Pari-Mutuel Employees Guild, 317 F.2d 209, 211-212 (C.A. 9th
Cir.1963); op. cit. supra, notes 9 and | 9 and S.
715fn11|>11.

															[ Footnote 15 ]

															Some have seen this consideration as the principal argument
against exercise of pendent jurisdiction. Thus, before Erie, it was remarked that

															"the limitations [on pendent. jurisdiction] are, in the wise
discretion of the courts, to be fixed in individual cases by the
exercise of that statesmanship which is required of any arbiter of
the relations of states to nation in a federal system."

															Shulman & Jaegerman, supra, note 9 at 408. In his oft-cited concurrence in Strachman v. Palmer, 177 F.2d 427, 431 (C.A. 1st
Cir.1949), Judge Magruder counseled that

															"[f]ederal courts should not be overeager to hold on to the
determination of issues that might be more appropriately left to
settlement in state court litigation,"

															at 433. See also Wechsler, supra, note 9 at 232-233; Note, 74 Harv.L.Rev.
1660, 1661 (1961); Note, supra, note 11 at 1013-1044.

															[ Footnote 16 ]

															Note, supra, note
11 at 1025-1026; Wham-O-Mfg. Co. v. Paradise Mfg. Co., 327 F.2d 748, 752-754 (C.A. 9th Cir.1964).

															[ Footnote 17 ]

															In Teamsters Union v. Morton, supra, a similar analysis
was applied to permit recovery under § 303 of damages suffered
during a strike characterized by proscribed secondary activity only
to the extent that the damages claimed were the proximate result of
such activity; damages for associated primary strike activity could
not be recovered.

															[ Footnote 18 ]

															It would, of course, be relevant if the Board had already
intervened and, as here, note 2 supra, issued an order which permitted the continuance of
peaceful picketing activity.

															[ Footnote 19 ]

															On the flexibility of "conspiracy" as a tort, see Original
Ballet Ruse, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189
(C.A.2d Cir.1943); Riley v. Dun & Bradstreet, Inc., 195 F.2d 812 (C.A. 6th Cir.1952); Charlesworth, Conspiracy as a
Ground of Liability in Tort, 36 L.Q.Rev. 38 (1920); Burdick,
Conspiracy as a Crime, and as a Tort, 7 Col.L.Rev. 229 (1907);
Burdick, The Tort of Conspiracy, 8 Col.L.Rev. 117 (1908). The
anti-labor uses of the doctrine are well illustrated in Sayre,
Labor and the Courts, 39 Yale L.J. 682, 684-687 (1930). Similar
dangers are presented by the tort of malicious interference with
contract, id. at 691-695, a doctrine equally young which,
in its origins, required a showing of interference by force,
threats, or fraud, but does so no more, Sayre, Inducing Breach of
Contract, 36 Harv.L.Rev. 663 (1923); Comment, 56 Nw.U.L.Rev. 391
(1961).

															[ Footnote 20 ]

															Respondent's attorney argued in summation:

															". . . and here is the conspiracy. Mr. Pass [an official of
petitioner's] testified, we want that contract all over this
nation. That contract or better. I don't guess at that, there is
his testimony. There is no deviation from that contract, Mr.
Turnblazer so says, unless it is approved in Washington. They
impose a nationwide contract all over this nation, all over. I
don't care whether it is in Canada or West Virginia or California
or Tennessee."

															[ Footnote 21 ] Note 5 supra. [ Footnote 22 ] Ibid. [ Footnote 23 ]

															47 Stat. 71, 29 U.S.C. § 106 (1964 ed.).

															[ Footnote 24 ]

															National Labor Relations Act, as amended, § 2(13), 61 Stat. 139,
29 U.S.C. § 152(13) (1964 ed.); Labor Management Relations Act,
1947, §§ 301(e), 303(b), 61 Stat. 157, 159, 29 U.S.C. §§ 185(e),
187(b) (1964 ed.).

															[ Footnote 25 ] See, e.g., S.Rep. No. 105, 80th Cong., 1st Sess., p.
21.

															[ Footnote 26 ]

															The fullest statement of the basis for § 6 appears in S.Rep. No.
163, 72d Cong., 1st Sess., pp. 121.

															[ Footnote 27 ]

															The present § 303 was introduced on the floor of the Senate by
Senator Taft, in response to a more severe proposal which would
have permitted injunctive relief as well as damages against
secondary activity. 93 Cong.Rec. 4769-4770, 4833-4847, 4858-4875
(1947). The tenor of the opposition may be seen in those pages, and
also at 93 Cong.Rec. 4765-4766 (remarks of Senator Thomas); 93
Cong.Rec. 6451-6452 (remarks of Senator Morse); 93 Cong.Rec.
6520-6521 (remarks of Senator Pepper).

															[ Footnote 28 ]

															The argument might be made that, if there were "clear proof"
that the local union was responsible, the responsibility of the
international union vis-a-vis its local would be governed
by a less demanding standard than that applicable for determining
the responsibility of a labor organization or its officers on the
basis of the acts of "individual officers, members, or agents" of
the organization. Since the local was not a party here, we have no
occasion to assess this issue. Liability of the international union
is premised on the acts of Gilbert and the UMW's other agents, or
not at all.

															[ Footnote 29 ]

															In charging the jury, the trial judge first instructed the jury
at length that the plaintiff's burden was to prove his case by a
preponderance of the evidence, and that,

															"if the plaintiff carries the burden of proof by a preponderance
of the evidence, however slight that preponderance might be, he has
done all that is required of him and is entitled to a verdict."

															In connection with substantive discussion of the state claim, he
then remarked:

															"Before the defendant may be held responsible for the acts of
its agents in entering into a conspiracy during the course of a
labor dispute, there must be clear proof that the particular
conspiracy charged or the act generally of that nature had been
expressly authorized or necessarily followed from a granted
authority by the defendant, or that such conspiracy was
subsequently ratified by the defendant after actual knowledge
thereof."

															The phrase "clear proof," referred to just this once, was never
explained. The possibility is strong that the jury either did not
understand the phrase or completely overlooked it in the context of
the lengthy charge given. No challenge is directly made to the
charge, however, and it does not appear whether an objection was
entered. Accordingly, we do not rest judgment on this point.

															[ Footnote 30 ]

															Other international union personnel were also later sent,
perhaps in part because the union wanted to put its best foot
forward in the NLRB proceedings, note 2 supra, which ensued. One such person
testified,

															". . . I explained to them that the labor board was there
investigating, and that certainly any mass picketing would only
cause them a great deal of trouble, and instructed them that they
should limit the number of their pickets, and under no
circumstances have any violence or any threats of violence to any
person coming into or near that area."

															[ Footnote 31 ]

															About six days after the violence, an earth-moving equipment
salesman driving by the entrance to the mine site stopped to ask
how he might get to another mine. Gilbert was present among the
picketers, and gave him instructions. Gilbert told the salesman
that he "couldn't get through" the road chosen, and should approach
by another route; he said the salesman should tell any union men he
met that he had spoken to Gilbert. A sinister cast can be put on
this incident, but it shows clearly only that Gilbert was in
control of the strike, and that operations unrelated to Gray's
Creek were not being interfered with. It is significant that the
salesman did not claim to have been stopped by force or threatened
in any way; it appears he did no more than seek directions, and
received no more in return.

															MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
concurring.

															I agree with and join in Part I of the Court's opinion relating
to pendent jurisdiction. As to Part II, I refrain from joining the
Court's speculations about the uses to which it may put the
preemption doctrine in similar future cases. The holding in Part
III that the Norris-LaGuardia Act requires reversal here seems to
me correct, but my interpretation of the statute is different, and
somewhat narrower, than that of the Court.

															The statutory requirement for union liability in this case
is

															"clear proof of actual participation in, or actual Page 383 U. S. 743 authorization of . . . [the unlawful acts], or of ratification
of such acts after actual knowledge thereof. [ Footnote 2/1 ]"

															The Court construes this provision as fixing a new test of the
quantum of proof, somewhere between ordinary civil and criminal
standards. I do not think the admittedly vague legislative history
imports this reading, and I believe it introduces a revealing
inconsistency, since the new test could not be applied to criminal
cases, concededly governed by the same statutory language, without
standing the statute on its head by having it reduce present quantum of proof requirements in criminal cases, that is,
proof "beyond a reasonable doubt." The best reading I can give the
statute, absent more light than has been shed upon it in this case,
is one directing it against a particular type of inferential proof
of authority or ratification unacceptable to those who framed the
law. For me, the gist of the statute is that, in the usual
instance, a union's carrying on of its normal strike functions and
its failure to take affirmative action to dispel misconduct are
not, in themselves, proof of authorization or ratification of the
wrongdoing. [ Footnote 2/2 ] Page 383 U. S. 744 In the present case, apart from a few quite ambiguous episodes,
there was nothing to bring the violence home to the union except,
as the Sixth Circuit stressed ( see p. 383 U. S. 741 , ante ), that the union continued, through its picketing,
the threat that the earlier violence would be renewed, and did not
repudiate the violence or promise to oppose its renewal. Whatever
arguments could be made for imposing liability in such a situation,
I think it approximates what the statute was designed to forbid. On
this basis, I concur in the reversal.

															[ Footnote 2/1 ]

															Norris-LaGuardia Act, § 6, 47 Stat. 71, 28 U.S.C. § 106 (1964
ed.). The section is quoted in full at p. 383 U. S. 735 , ante. [ Footnote 2/2 ]

															The principal legislative doctrine, S.Rep. No. 163, 72 Cong.,
1st Sess., pp. 19-21, is not very illuminating, but it does, at the
end of its discussion of the section, make reference to Frankfurter
& Greene, The Labor Injunction 74-75 (1930). At these pages, to
illustrate rulings rulings on union responsibility that are deemed
improper, that book states:

															"'Authoriziation' has been found as a fact where the unlawful
acts 'have been on such a large scale, and, in point of time and
place so connected with the admitted conduct of the strike, that it
is impossible on the record here to view them in any other light
than as done in furtherance of a common purpose and as part of a
common plan;' where the union has failed to discipline the
wrongdoer; where the union has granted strike benefits."

															(Footnotes omitted.) See also id., at 220-221, n. 42; United Brotherhood of Carpenters v. United States, 330 U. S. 395 , 330 U. S.
418 -419, and n. 2 (Frankfurther, J., dissenting).