Day 138 - 20 Jun 95 - Page 71
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2 MR. RAMPTON: A bit stronger in this country.
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4 MR. JUSTICE BELL: It seemed to attribute more importance to the
5 likelihood of success on the merits but also there is
6 obviously the question of what harm will be done if the
7 interim order is not made. But what it does not tell me,
8 I may have missed it, is do you use the words "cause of
9 action"?
10 A. Yes.
11
12 Q. What the cause of action of the Plaintiffs was?
13 A. If we are talking the same ----
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15 Q. It is in an ordinary civil court, is it not?
16 A. Yes.
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18 Q. It is not a labour court?
19 A. That is correct, It is the Federal District Court.
20 Under the TUFF Act, the National Labour Relations Act is
21 also called TUFF, there is a provision in there dealing
22 with the obligations of unions to fairly represent their
23 members and not to act in derogation of their members'
24 interests. This action was brought under that provision. I
25 commonly refer to it, and it is commonly referred to in the
26 US, as the duty of fair representation by one's union. In
27 the US, controversy sometimes occur between ----
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29 Q. I do not think you need say any more. I just wanted to see
30 what the basis of it all might be.
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32 MR. RAMPTON: Do you know from your knowledge of US law, and
33 particularly Supreme Court law, Mr. Stein, whether it might
34 have been open to the union to raise a first amendment or
35 free speech defence to it in theory?
36 A. In theory, yes, but the issue that would be litigated
37 here, the primary issue was whether or not they are
38 properly representing their members by what they were
39 doing.
40
41 Q. Can I take it, having read this judgment, that the nature
42 of the union's purported representation was in fact to
43 endanger the jobs of their people?
44 A. Yes, that is why the workers had gone to the court and
45 that is what they are alleging.
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47 Q. One can see how the judge works that out as one reads
48 through it. I am not going to read all of it. What
49 I would like you to look at, please, is paragraph 5 on page
50 1380 where the judge says this. "The likelihood of success
51 by the Plaintiffs on the merits in this case is
52 substantial. Evidence adduced during the course of the
53 hearing reveals that the United States Department of
54 Agriculture on learning of the circulation of the leaflets
55 advised Defendants that while its agents had reported
56 certain unsanitary conditions existing prior to any daily
57 operations" -- and I stress those words --"these conditions
58 were corrected by Tyson and that Defendants' leaflets
59 presented the situation out of context in terms of the
60 department's reports. Other evidence reflects that the
