Day 138 - 20 Jun 95 - Page 71


     
     1
     2   MR. RAMPTON:  A bit stronger in this country.
     3
     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 ----
    14
    15   Q.   It is in an ordinary civil court, is it not?
    16        A.  Yes.
    17
    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 ----
    28
    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.
    31
    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.
    46
    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

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